06.08.16

Litigation is forcing States to finally stop restricting Hepatitis C treatment for Medicaid recipients

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Last week, a federal judge in Washington State ruled that the state Medicaid authority cannot place undue limitations on access to Hepatitis C (HCV) drugs for patients, as Medicaid has the duty to provide “medically necessary” treatment to the patients it covers. Until this ruling, many states, including Washington, citing the high cost of the latest direct acting antiviral (DAA) drugs to treat HCV and justification to restricted Medicaid recipients’ access to these drugs only to patients whose liver has already sustained serious damage because of the illness.

On June 3rd, 2016, under the looming threat of litigation and in acknowledgment of the Washington state holding, the Delaware Division of Medicaid and Medical Assistance changed their policy of rationing Hepatitis C drugs to no longer restrict treatment only to those with significant liver damage or cirrhosis.

These changes are a major victory for Hepatitis C patients and their advocates. Slowly but surely, states are coming into compliance with the medical necessity treatment requirements under Medicaid for Hepatitis C patients. In November, 2015, the Centers for Medicaid and Medicare Services issued a guidance letter informing states that they needed to remove restrictions to access to treatment for Hepatitis C. State governments administrate and fund much of their Medicaid program, and many cited the high cost of the latest DAA treatment drugs as the reason for rationing care. However, this practice seems counter-intuitive to efficient health care provision and budgeting. While it is true that the cost of these new drugs is high, they provide curative treatment for HCV infections, and can thus prevent the adverse health effects and associated treatment costs caused by a prolonged chronic HCV infection, such as cirrhosis, liver cancer or liver failure. Early treatment of the illness also improves overall quality of life and long-term potential workforce productivity and economic engagement in society of those infected. They will be able to work without needing extensive absences for illness; they will contribute to the economy by having income and purchasing power. The up-front costs to health care insurers may be steep, but the long term return on investment is both the cost savings of a lifetime of expensive health care for a chronically infected HCV patient, and the value of preserving millions of human lives from suffering, illness and ultimately an untimely death. There is no amount of money that should be substituted for such an invaluable benefit.

There is still much work to be done to ameliorate the barriers to access issues for Americans living with HCV infections. However, actions such as these landmark steps by state Medicaid are essential to resolving this crisis. It is past due that all of the state Medicaid authorities revisit their treatment policies and remove any barriers to treatment for HCV patients. If they continue to resist, they are now on notice that costly and likely unsuccessful litigation is inevitably in their future. Hepatitis C advocates must stay the course to ensure these restrictive policies are removed for all Medicaid patients. It is also the hope that the paradigm shift in the public sector motivates private insurers to remove their care-rationing restrictions as well.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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