ACLU sues Kansas over Hep C drug denials for Medicaid patients

Feb. 15--The American Civil Liberties Union is suing Kansas officials, claiming that the state's Medicaid program denies hepatitis C treatments until patients are severely ill.

The federal class action suit filed Thursday says that people on KanCare often can't get coverage for drugs with a 90 percent success rate for curing the hepatitis C virus, or HCV.

"KanCare's denial to provide essential medical care to individuals suffering from HCV is grossly negligent and nonsensical," Lauren Bonds, legal director of the ACLU of Kansas, said in a prepared statement. "Depriving sick individuals of medication that has been proven to cure their infection is not only cruel, but it completely denies logic. No person in this country should be forced to get sicker before they are allowed to get better."

The ACLU's suit names Kansas Department of Health and Environment Secretary Jeff Andersen and KDHE Division of Health Care Finance director Jon Hamdorf as defendants. A spokesman for KDHE, the state agency in charge of KanCare, said the agency hadn't been served with the suit and doesn't comment on pending litigation.

KanCare covers about 425,000 low-income Kansans. Most of them are children, the elderly, pregnant women and people with disabilities.

The suit was filed on behalf of all KanCare recipients improperly denied coverage for HCV drugs, but the two named plaintiffs are Jamie Harper, from Leavenworth, and Jessica Owens, from Kansas City, Kan. According to the lawsuit, both of them were prescribed HCV drugs by their doctors, but KanCare refused to cover them because the two weren't "sick enough."

Hepatitis C is a blood-borne infection that initially has mild symptoms or none at all. But it can progress to fatigue, nausea, loss of appetite, and yellowing of the eyes and skin. If left unchecked, it can cause fatal liver damage.

The National Viral Hepatitis Roundtable and the Harvard Law School's Center for Health Law and Policy Innovation graded Kansas a "D" on its "2017 Hepatitis C: State of Medicaid Access" report card.

The report card authors said two of the three private insurance companies that administer KanCare require "severe liver damage" before they cover the HCV drugs. The third company, Amerigroup, allows some coverage for chronic hepatitis C patients before they get to that point, depending on the drug regimen requested.

The first drugs that could cure hepatitis C came on the market in 2013. They cost close to $100,000 for a course of treatment and Medicaid programs across the country have struggled to figure out to how to pay for them without ballooning state budgets.

Federal officials acknowledged the cost concerns in a November 2015 letter to state Medicaid officials, but warned they might be in violation of federal Medicaid rules if they "unreasonably restrict access to these drugs."

The ACLU suit says Kansas is in violation. The group said it settled a similar lawsuit against Missouri after that state loosened its rules for who could get Medicaid coverage for the hepatitis C drugs. The National Viral Hepatitis Roundtable and the Harvard Law School's Center for Health Law and Policy Innovation gives Missouri's new policies an "A."

Andy Marso: 816-234-4055, @andymarso

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