Cunningham v. Birch (Hepatitis C Treatment Restrictions)

ACLU Case No. 2015-20


The ACLU of Colorado filed a federal class action lawsuit on behalf of thousands of low-income Coloradans suffering from Hepatitis C who have been denied access to life-saving treatment due to Colorado Medicaid restrictions that force them to incur serious harm to their health before gaining access to the cure.

Hepatitis C is a life-threatening, communicable disease that attacks the liver. It is the most deadly infectious disease in the U.S., killing more Americans than the next 60 infectious diseases combined. Even in the initial stages of the disease, Hepatitis C can cause serious symptoms, including fatigue, joint pain, depression, arthritis, as well as an increased risk of heart attacks, diabetes, nerve damage, jaundice, and various cancers.

Breakthrough medications approved by the FDA over the last three years cure Hepatitis C in more than 90 percent of cases. These treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of commercial health insurers in Colorado.

There are approximately 14,400 low-income Coloradans infected with Hepatitis C who rely on Medicaid for healthcare.  Federal law requires state Medicaid agencies to provide “medically necessary” services and treatments.  In November 2015, the federal agency responsible for administering Medicaid issued guidance advising all state Medicaid agencies to provide access to the new treatment without imposing unreasonable restrictions.

For years, Colorado Medicaid required patients to demonstrate significant scarring on their liver, as indicated by a “fibrosis score” of F3 or higher on a scale of F0 to F4, before gaining access to treatment.

In July 2016, the ACLU of Colorado wrote to the Colorado Department of Healthcare and Policy Financing (HCPF), the agency responsible for setting state Medicaid policy, to urge coverage of all patients regardless of “fibrosis score.”

HCPF altered its policy in September 2016 to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added an ambiguous new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year.

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.

The class action lawsuit was filed in federal district court.  Attorneys representing Cunningham and the plaintiff class include Silverstein and Neel, Kevin Costello from the Harvard Law School Center for Health Law and Policy Innovation, and ACLU cooperating attorneys Lawrence W. Treece and Lauren E. Schmidt of Brownstein Hyatt Farber Schreck LLP.

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