PRISON HEPATITIS LEGAL FIGHT CONTINUES
After admitting they failed to adequately screen prisoners for the highly contagious disease, Florida corrections officials are challenging a federal judge’s order that found the agency was “deliberately indifferent” to inmates infected with hepatitis C.

The state Department of Corrections last week filed a notice of appeal at the 11th U.S. Circuit Court of Appeals, the latest move in a drawn-out legal battle over the state’s handling of thousands of inmates with the liver-damaging disease.

Last month, Chief U.S. District Judge Mark Walker expanded the number of inmates ordered to receive potentially expensive care, following up on a previous order that mandated the state properly treat inmates with the virus.

Walker’s April 18 ruling added prisoners at the early stages of hepatitis C, a move that could add between 20,000 and 40,000 more inmates to about 7,000 already ordered to receive treatment, according to attorneys who filed the class-action lawsuit in 2017.

Last week, Attorney General Ashley Moody’s office, which represents the Department of Correction, filed the notice at the Atlanta-based appeals court, saying the state intends to appeal the class certification of the lawsuit, Walker’s final order, and “all previous rulings, opinions and orders entered in this case.” As is common, the notice does not detail the state’s full legal arguments.

The notice of appeal came after corrections officials decided not to contest a preliminary injunction ordered by Walker in December 2017. In that injunction, the judge ordered the state to come up with a plan to properly treat inmates and file monthly status reports showing the agency’s compliance with his mandate.

Since then, the corrections agency screened more than 55,000 inmates, identified more than 7,185 as having chronic hepatitis C and started or completed treating 4,901 inmates, Walker wrote in last month’s final order.

In addition, the corrections department “has also recognized some of its past wrongs,” such as admitting that it “was not adequately monitoring all inmates” infected with the disease prior to the preliminary injunction, Walker wrote.

The agency blamed the dearth of treatment on “lack of funding,” noting that a single course of treatment may cost as much as $37,000 or more, according to court records.

This month, lawmakers passed a budget for the upcoming 2019-2020 fiscal year that earmarked $50 million to treat inmates with hepatitis C. The budget is pending approval by Gov. Ron DeSantis. The Department of Corrections had sought nearly $37 million to address hepatitis C treatment before Walker’s April order expanded the number of inmates.

While the notice to appeal does not elaborate on what portions of Walker’s order the agency is contesting, other court filings show the corrections department balked at the plaintiffs’ request to expand treatment to inmates at early stages of the virus. The state also asked the judge to reject the plaintiffs’ request that prisoners be required to “opt out” of being tested for the disease.

In a May 2018 filing, for example, lawyers for the department wrote that two areas of dispute remained after the preliminary injunction. Those issues were whether inmates in the early stages of hepatitis C require “only monitoring with appropriate and timely lab work” as an adequate treatment, and whether the use of “opt in” testing violates Eighth Amendment standards that prohibit prison officials from “deliberate indifference” to inmates’ “serious medical needs.”

The state’s lawyers last year wrote that the corrections agency “no longer wishes to contest” the issues addressed in Walker’s preliminary injunction and asked the judge to make that order permanent but not to go any further.

Between 20 and 50 percent of people infected with hepatitis C “spontaneously clear the virus within six months of infection,” the state argued.

Inmates who do not have a liver condition known as fibrosis or who have mild fibrosis should not be provided treatment, lawyers for the state wrote, noting that Walker’s preliminary injunction did not include prisoners in the early stages of the disease.

“To provide that the Eighth Amendment mandates treatment of inmates who may be completely asymptomatic and who have no fibrosis would convert the Eighth Amendment from a prohibition against cruel and unusual punishment, to a vehicle to obtain drugs and treatment of choice,” the state’s lawyers argued.

But in last month’s decision, Walker wrote that his earlier order “was focused on ensuring that the sickest inmates were treated first” because “it was unrealistic to order FDC (the Florida Department of Corrections) to treat everyone immediately.”

More than a year later, “FDC can no longer use resource limitations and implementation difficulties as an excuse to delay treatment,” the judge scolded.

“In sum, this court finds that even (inmates with no or mild fibrosis) have serious medical needs, FDC is aware of those needs, and FDC’s decision not to treat those inmates --- without any medical reason for that decision --- constitutes deliberate indifference,” Walker wrote.

After Walker issued the preliminary injunction, lawyers for the plaintiffs asked that corrections officials be required to have inmates “opt out” of being tested for hepatitis C.

The state argued, however, that corrections officials have “opted for a voluntary testing approach” and provide training and education about hepatitis C to inmates.

In a court filing last year, the plaintiffs’ lawyers noted that, of inmates infected with hepatitis C, 61 had refused to participate in the process of identifying how far the disease had progressed and 171 had refused antiviral treatment.

The refusal numbers were “incredibly high,” given the 95 percent cure rate and “devastating consequences of the disease,” wrote lawyers for the Florida Justice Institute, which represent the inmates.

“The only logical inference is that the vast majority of these patients were not fully informed of the above information,” they argued.

Walker’s April order, among other things, required corrections officials to either adopt a system of opt-out testing “along with an aggressive notice campaign,” or to adopt an “opt-in” system of testing paired with peer education.

The state on Monday filed a notice that said it would use a system of “opt-out testing along with an aggressive notice campaign.”