Rotting Away

Thousands of New York inmates have hepatitis C. Only a few hundred get treatment.

But as Robert Hilton found out, even if you go along with the rules, the outcome is often the same: no treatment. Hilton is the lead plaintiff in the new class action, filed in federal court on August 17.

Hilton began treatment for hep C at Bellevue in 2002. But a few months after starting, he became homeless, and his treatment was interrupted. In August 2004, he was locked up on a parole violation and shipped upstate to Altona. Upon intake there, he underwent a routine exam at which he told doctors about his infection, the resulting liver disease, and his treatment history.

But the medical staff waited two months to conduct its own tests, according to the complaint, and a full seven months to recommend him for treatment. Then Chief Medical Officer Lester Wright ruled Hilton couldn't start until he took drug addiction classes, even though no previous doctor in or out of the system had suggested it and even though Hilton professed to have not used drugs in 13 years—much of which time he spent passing drug tests as a parolee.

Hilton acquiesced and signed up for the class—only to be put on a lengthy waiting list. He was then transferred to another facility, where counseling staff again tried to enroll him in an addiction class. This time, his enrollment was turned down because he would be eligible for parole before the class finished. "As antiretroviral treatment continues to be denied on the basis of this catch-22," the class action complaint notes, "Mr. Hilton's liver continues to deteriorate."

The state declined to comment on this and other suits it now faces.

In previous suits, the corrections department has offered a reasonable-sounding defense. Hep C treatment is no joke—at least a shot a week and daily pills that can cause depression and flu-like symptoms similar to those of heroin withdrawal. Even the regular needle use can be traumatic for someone kicking an old habit. So the department worries about triggering relapses. And all credible medical guidelines stress that no one who's actively using drugs or alcohol should start treatment without getting sober, lest they fail to complete the regimen.

The stakes are high: If you start and don't finish, your virus will likely mutate, developing the sort of drug resistance we've heard so much about with HIV.

Critics, however, point out that all of the guidelines cited by corrections warn only against treating active users. The concern over relapse is the department's own.

In early November, the prison officials submitted a sweeping policy change to the U.S. District Court for the Northern District of New York, asking that a central part of Hilton's case be dismissed based on that change. The new policy removes the drug abuse class requirement but maintains an insistence that inmates have "no evidence of active substance abuse" in the previous six months. Those with evidence of such will be evaluated on a case-by-case basis.

Alexander Rienert, an attorney with Koob & Magoolaghan, which is leading the Hilton class action and has led a number of previous hep C suits, says that's not near good enough. He wants to see a far more detailed portrait of how the system will scale up treatment—and how it will get those it has previously turned away into treatment. "What Dr. Wright is saying is, trust us, you don't have to be involved anymore," scoffs Rienert. "But our experience is, the only time an individual gets treated is when an attorney has stepped in."

Moreover, Rienert says he's already received at least one new complaint from an inmate who has been denied treatment based on his failure to take a drug abuse class.

Milton Zelermyer, a staff attorney with Legal Aid's Prisoners' Rights Project, adds that there remain plenty of ways for corrections to ration treatment. Already, the prisons only test certain inmates for hep C, and as Hammerstein's experience shows, many likely candidates slip through unscreened. But effective hep C screening and treatment also require extensive diagnostics, including regular blood tests and a liver biopsy—just the sort of thing the department delayed for months before denying Hilton based on the drug class rule. So the new policy looks like progress, Zelermyer says, but "how it works in reality is another question."

Prison health advocates say the system's failure to deal adequately with hep C is just the latest disaster to come from letting prison guards control public health. Even as the narrow legal battle over hep C intensifies, advocates are pressing a broader legislative reform. Of course, for activists in Albany, reforms for guys like Rahiem and Hammerstein and Hilton have been the most dead on arrival.

The corrections department's health care challenge is already massive—it runs what amounts to the nation's largest HIV medical practice, for instance. Yet it is exempt from Department of Health oversight because state law considers its facilities more akin to private colleges than public hospitals. The state assembly wants that law changed, but neither the health department nor corrections wants to be part of an arranged marriage; bills calling for it have twice stalled in the senate.

And that leaves dying inmates' futures in the hands of the courts. "There could be something out there for you—whatever medicine, whatever program, whatever doctor you have to see—and they ain't telling," Hammerstein complains, "because the facility don't want to go for the money."

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