ACLU sues Colorado Medicaid for treatment of Hepatitis C patients

Lawsuit seeks expanded access to drug
Posted at 2:05 PM, Sep 19, 2016
and last updated 2016-09-19 20:51:51-04

DENVER --The ACLU of Colorado is filing a federal class action lawsuit against Colorado's Medicaid program in an effort to increase access to a live-saving drug to treat hepatitis C.

The American Civil Liberties Union suit filed Monday states that thousands of low-income Coloradans suffering from hepatitis C are being denied treatments that have more than a 90 percent cure rate, but cost about $40,000 per person.
"We're sitting on it because of money," said David Higginbothum, a Canon City plumber who believes he contracted hepatitis C while working in a hospital in college. "My doctor just flat out told me they're not going to treat me."
Hepatitis C is a life-threatening, infectious disease that attacks the liver, but Medicare will only cover patients in more advanced stages of the disease.

The ACLU says the treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of private insurers in Colorado.

“Not only is covering early treatment the right thing to do, it's the legal thing to do” 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.”

There are approximately 14,450 low-income Coloradans infected with hepatitis C who rely on Medicaid for healthcare, according to the Colorado Department of Health Care Policy and Financing.

Federal law requires state Medicaid agencies to provide “medically necessary” services and treatments, said Silverstein.

“Providing early treatment is the fiscally sound decision long-term and it prevents other infections,” said Silverstein.

Mark Williamson, a spokesman with the Colorado Department Health Care Policy and Financing, said the agency will not comment on pending litigation, but pointed to the relaxation on the restrictions earlier this month.

The state Medicaid program changed its policy on Sept. 1 to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added a new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year.

But the ACLU said that policy does not go far enough, which is why the class action lawsuit is seeking an injunction.

“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 in a statement.

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 in a statement. “I want to get healthy, and I want to give people like me a voice and help the system to change.”   

View the ACLU complaint:

View the ACLU’s July letter to Colorado HCPF:


Sign up for Denver7 email alerts to stay informed about breaking news and daily headlines.

Or, keep up-to-date by following Denver7 on Facebook, Instagram and Twitter.