The Kansas Medicaid program sets too many barriers for patients to receive a potentially life-saving, if extremely costly, drug regimen, a lawsuit filed Thursday contends.
The class action filed in federal court argues that KanCare should cover the cost of medications that have proven effective in treating hepatitis C without subjecting patients to a lengthy list of conditions.
“Depriving sick individuals of medication that has been proven to cure their infection is not only cruel, but it completely denies logic,” Lauren Bonds, legal director of the ACLU of Kansas, said in a statement. “No person in this country should be forced to get sicker before they are allowed to get better.”
The ACLU and the law firm of Shook Hardy & Bacon filed the case on behalf of two KanCare recipients: Jamie Harper, a resident of Leavenworth, and Jessica Owens, a resident of Wyandotte County. Both are enrolled in KanCare and have hepatitis C, according to the lawsuit.
In both cases, the lawsuit says, KanCare denied them coverage of medications that cure the disease more than 90 percent of the time.
In the past, there was no effective treatment for chronic hepatitis C infections. In recent years, however, the U.S. Food and Drug Administration has approved several direct-acting antiviral drugs that have proved extremely effective in curing the disease with minimal side effects.
The drugs, including Sovaldi and Harvoni, are extremely costly, however. A full course of treatment with Sovaldi, which is manufactured by Gilead Sciences Inc., costs around $84,000 before rebates and discounts.
The lawsuit names Jeff Andersen, acting secretary of the Kansas Department of Health and Environment, and Jon Hamdorf, director of the Kansas Division of Health Care and Finance.
Gerald Kratochvil, a spokesman for both, said they won’t comment on pending litigation.
KanCare has about 360,000 enrollees. In 2014, 35,000 Kansans had hepatitis C, according to the U.S. Census Bureau, but it’s not known how many of them were enrolled in KanCare, the state’s managed care program. The lawsuit estimates the number is in the thousands.
The lawsuit alleges that Kansas’ hepatitis C guidelines violate federal law because they are much more restrictive than national guidelines. More than half of Kansas’ share of Medicaid spending is provided by the federal government.
For example, the lawsuit says, KanCare denies direct-acting antiviral drugs, which is now the standard of care, to patients who have tested positive for alcohol or illicit drug use. Patients also must undergo six months of “abstinence” testing before KanCare will consider covering the drugs.
KanCare also limits coverage to patients with a fibrosis score of F3 or F4, the lawsuit alleges. Fibrosis scores measure the health of the liver. Scores range from F0, meaning there’s mild or no scarring of the liver, to F4, meaning there’s significant liver damage or cirrhosis.
The suit says that approved treatment guidelines call for nearly all hep C patients, regardless of fibrosis score, to receive direct-acting antiviral drugs.
Hepatitis C is a contagious liver disease that can range in severity from a few weeks in duration to a chronic, lifelong illness that can cause severe damage to the liver and even death, according to the the Centers for Disease Control and Prevention. The CDC estimates between 2.7 million and 3.9 million people in the U.S. have chronic hepatitis C. Most people become infected by sharing needles, syringes or other equipment to inject drugs. The disease can also be spread by sexual contact, although that risk is thought to be low.
At least eight lawsuits challenging state prisons’ refusal to cover the cost of the drugs for inmates have been filed across the country in recent years. One of them was filed by the ACLU of Missouri and accuses the Missouri Department of Correction of denying thousands of inmates with hepatitis C direct anti-viral treatments. The judge overseeing the case has certified it as a class action on behalf of a potential class of thousands of inmates.
More recently, a federal judge in Florida ordered the Florida corrections department to immediately begin treatment of inmates who test positive for hepatitis C with direct acting antiviral drugs. The state is expected to spend millions of dollars to comply with the order.
The lawsuit over KanCare’s alleged treatment policies is one of several nationwide challenging states’ refusal to cover the cost of direct acting antiviral treatment for Medicaid beneficiaries, as opposed to prison inmates.
A similar lawsuit was filed against Missouri in October 2016. That suit was dropped in November 2017 after the state agreed to cover the cost of direct acting antiviral drugs.
The KanCare lawsuit asks the court to bar Kansas from enforcing its current coverage conditions and the state to develop less restrictive criteria for coverage.
Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.