ACLU and CHLPI File Suit Against Colorado Medicaid for HCV Restrictions

Originally published by North Denver News on September 19^th, 2016.

The ACLU of Colorado filed a federal class action lawsuit this morning on behalf of thousands of low-income Coloradans suffering from Hepatitis C who are being denied life-saving treatment due to Colorado Medicaid restrictions that force them to incur serious harm to their health before gaining access to the cure.

“Federal law requires state Medicaid agencies to pay for medically necessary treatment, but Colorado Medicaid illegally denies a cure for Hepatitis C for reasons that are not medically justified,” said Mark Silverstein, ACLU of Colorado Legal Director. “We are challenging a policy that forces Coloradans who cannot afford private insurance to live with the serious negative health effects of Hepatitis C and to wait for a cure, possibly for years, until they have suffered measurable and potentially irreversible liver damage.”

Hepatitis C is a life-threatening, communicable disease that attacks the liver. It is the most deadly infectious disease in the U.S., killing more Americans than the next 60 infectious diseases combined. Even in the initial stages of the disease, Hepatitis C can cause serious symptoms, including fatigue, joint pain, depression, arthritis, as well as an increased risk of heart attacks, diabetes, nerve damage, jaundice, and various cancers.

Breakthrough medications approved by the FDA over the last three years cure Hepatitis C in more than 90 percent of cases. These treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of commercial health insurers in Colorado.

There are approximately 14,400 low-income Coloradans infected with Hepatitis C who rely on Medicaid for healthcare. Federal law requires state Medicaid agencies to provide “medically necessary” services and treatments. Last November, the federal agency responsible for administering Medicaid issued guidance advising all state Medicaid agencies to provide access to the new treatment without imposing unreasonable restrictions.

For years, Colorado Medicaid required patients to demonstrate significant scarring on their liver, as indicated by a “fibrosis score” of F3 or higher on a F0 to F4 scale, before gaining access to treatment.

In July, the ACLU of Colorado wrote to the Colorado Department of Healthcare and Policy Financing (HCPF),the agency responsible for setting state Medicaid policy, to urge coverage of all patients regardless of “fibrosis score.”

“Providing full access to Hepatitis C treatments is the fiscally sound decision for Colorado Medicaid, because early treatment precludes expenses that would otherwise be incurred as a result of the disease’s progression,” the ACLU wrote in the July letter. The ACLU also noted that a federal court in Washington had recently ordered that state to lift restrictions similar to Colorado’s after concluding that treatment was medically necessary for all patients with chronic Hepatitis C infections.

Earlier this month, HCPF altered its policy to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added an ambiguous new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year.

“The latest policy change is a half-step that falls short of what the law requires, which is full access to medically necessary treatment for all patients with Hepatitis C,” said ACLU of Colorado Staff Attorney Sara Neel. “The ill-conceived pregnancy exception perversely incentivizes women to either commit to get pregnant or to lie to their doctor about their family planning decisions in order to gain access to treatment.”

Robert Cunningham, a Denver resident, is the named plaintiff and class representative in the suit. He was diagnosed with Hepatitis C in 2004 and has been denied access to treatment by Colorado Medicaid because his fibrosis score is F1.

“Everyone should have the right to treatment that can cure them. It should not be just reserved for some segments of the country, with the poorest being forced to wait and suffer,” said Cunningham. “I want to get healthy, and I want to give people like me a voice and help the system to change.”

The class action lawsuit was filed this morning in federal district court. Attorneys representing Cunningham and the plaintiff class include Silverstein and Neel, Kevin Costello from the Harvard Law School Center for Health Law and Policy Innovation, and ACLU cooperating attorneys Lawrence W. Treece and Lauren E. Schmidt of Brownstein Hyatt Farber Schreck LLP.