The drug can cost $100,000. Do Minnesota inmates have a right to get it?

Five prison inmates infected with hepatitis C are seeking class-action status for a lawsuit that would require the Minnesota Department of Corrections to offer a class of groundbreaking, but extremely expensive, new drugs.

The medications, known as "direct acting antiviral" (DAA) drugs, can have a 95 percent cure rate, but they can cost anywhere from $26,400 to well above $100,000 per patient.

The litigation joins a series of similar lawsuits across the country that ask whether prison inmates have a right to the latest, most effective drugs even if the cost could overwhelm a state's corrections budget.

Private and government health insurers have increasingly agreed to cover the drugs for patients suffering from all levels of hepatitis C, a contagious disease that attacks the liver. But the cost for Minnesota inmates could well exceed the department's entire annual budget.

Attorneys for the inmates and the Department of Corrections plan to meet this week to determine if they can reach a settlement.

Attorneys for the prisoners argue that any potential costs associated with treating the more than 1,000 potentially infected inmates is outweighed by the constitutional violation of not doing so, as well as the potential public health risks.

The inmates "would have public and private access to the cure were they not incarcerated," wrote Andrew Mohring, an attorney for the plaintiffs, in an amended complaint filed last month. "Their sentences include the extrajudicial punishment of being deprived of an available cure, while their disease advances."

Left untreated, hepatitis C can cause severe liver scarring and even cancer.

Although some inmates are now getting the new drugs, the lawsuit alleges that the DOC's medical guidelines contravene the medical standard of care endorsed by "practitioners, major medical associations, and care providers" that requires testing and immediate treatment of all patients with chronic hepatitis C, with limited exceptions.

The DAAs, first approved by federal regulators in 2013, have limited side effects and only require taking a pill once or twice daily for eight to 12 weeks.

The prisoners' lawsuit says inmates bear a disproportionate risk of viral hepatitis, and that public health experts now view active treatment and testing as a vital tool in eliminating the disease as a threat to the larger community.

Mohring pointed to Corrections Department estimates that the state is monitoring only about 400 of the more than 1,000 to 1,500 prisoners it believes could be infected. Of that number, just 66 were being treated with DAAs as of March 2017.

A spokeswoman said the department could not comment on ongoing litigation. But in court filings this month asking U.S. District Judge Patrick Schiltz to dismiss the case, an attorney for the state denied that drug costs were the department's primary motive.

Assistant Attorney General Kathryn Fodness wrote that "many factors are taken into consideration when determining whether a prisoner will be treated with DAA medications." A decision for the plaintiffs, she wrote, could "result in a fundamental alteration to the DOC or its programming."

At a July hearing, Fodness argued that simply having hepatitis C, which can take decades to progress, is not by itself a "serious medical condition." Thus, she argued, denying DAAs to inmates not suffering from advanced stages of the infection does not amount to "deliberate indifference," she said.

"If I get infected today," Fodness told the judge, "I could go years without any sort of medical impact to my health."

"You could, but you wouldn't," Schiltz replied. "You, like anybody in this courtroom, would go to your doctor and get the drugs so that you didn't even risk it, especially since it appears that the experts agree that the progression of the disease can vary among people and can be unpredictable."

The advent of DAAs proved to be an early strain on both public and private insurers. But some insurers have since suggested that covering the highly effective drugs now can curb costs associated with liver transplants or chemotherapy later.

"From a societal perspective it's a cost-effective intervention," said Lawrence Lee, the chief medical officer for UCare Minnesota, one of the state's bigger health insurers. Lee said the market has expanded from two such drugs to nine, and the most recent is among the cheapest to date.

While the federal Bureau of Prisons has issued its own guidelines for screening and treating hepatitis C, states are still trying to figure out how to pay for such treatments. More than a half-dozen similar federal lawsuits are pending in other states.

A 2016 article in the influential journal Health Affairs recommended that states increase funding for treating inmates with hepatitis and that corrections departments consider partnering with other government agencies to negotiate discounts through federal programs.

"It's a Catch-22 where you have lots of people with hepatitis C, but your ability to treat it is constrained by the cost of the drug," said Gregg Gonsalves, an epidemiology and law professor at Yale University and one of the report's authors.

Stephen Montemayor • 612-673-1755 Twitter: @smontemayor