Update:  The settlement described below has been formally approved by the court, and is now in place.

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Notice of Settlement with Washington State

Over Access to Drugs to Treat Hepatitis C

There are new, highly effective drugs to treat and cure Hepatitis C.  These drugs are called direct acting anti-virals (DDAs), and include such drugs as Harvoni (ledipasvir-sofosburvir), Olysio (simeprevir), Sovaldi (sofosbuvir), Viekira Pak (ombitasvir/paritaprevir/ritonavir plus dasabuvir) and Zepatier (elbasvir/grazoprevir).  Other similar drugs are in various stages of review and are likely to be approved by the FDA as well.  If you are a Medicaid beneficiary in Washington State, you may now have the right to seek treatment with these new drugs.

WHAT IS THIS CASE ABOUT?

Two people on Medicaid brought this lawsuit. They said Washington State was keeping some people on Medicaid from getting the Hepatitis C treatment they needed. They said the state was using a person’s fibrosis score to decide who got treatment. Only people with fibrosis scores of F3 and F4, and some with an F2 score were getting treatment. A person’s fibrosis score tells how much Hepatitis C has scarred the person’s liver. A higher score means more scarring. 

They asked the judge to say that using fibrosis scores this way was not allowed under the law.  They wanted people with lower fibrosis scores to get treated with the new Hepatitis C drugs.  These new drugs usually cure Hepatitis C.

Three months after the case was filed the judge ordered the state to stop using fibrosis scores to decide who could get the new Hepatitis C drugs. This order was a preliminary order. Later, the judge said the case could be a class action. You can view the court's preliminary injunction order here, and its order certifying a class here.

The state and the attorneys for the class then talked with each other to see if the case could be settled.  Those talks resulted in an agreement to settle the case.  That agreement must be approved by the court, and class members have the right to object to, support or comment on the settlement agreement. 

AM I A MEMBER OF THE CLASS?

The Class is defined as individuals who:

(1)   Was, are, or will be enrolled in the Medicaid Program on or after October 10, 2014;

(2)   Need, or are expected to need treatment for Hepatitis C with Harvoni™ or other new Hepatitis C drugs; and

(3)   Did not meet the coverage criteria for the drugs adopted by WHCA because, for example, the state determined that you were not sick enough to get treatment with the new drugs.  

WHAT DOES THE AGREEMENT SAY?

You can see the whole Agreement here.  Here is a summary:

•  Coverage of Harvoni and other similar drugs for the treatment of Hepatitis C

The Agreement says the state will follow the court’s preliminary order for at least three years into the future.  Fibrosis scores cannot be used to deny coverage for Harvoni or one of the other new drugs.

•  Attorney’s Fees, Litigation Costs, and Costs of Claims Administration

Under the proposed Settlement Agreement, the state will pay the attorneys’ fees of the attorneys representing the class. This amount will be based upon the attorneys’ normal hourly rates and the time they spent on the case. The court will determine the exact amount. In addition, the state will pay the attorneys the money they paid out of pocket on behalf of the class. The judge must approve these out-of-pocket costs as well.

•  Case Contribution Awards

The judge will be asked to award $7,500 each to B.E. and A.R. B.E. and A.R. are the class representatives. The state is responsible for paying this sum. The judge must approve the case contribution awards.  

Timeline and schedule of events

A final approval hearing to determine whether the Agreement is reasonable, fair and adequate is scheduled for April 4, 2017 at 9 a.m. in the courtroom of the Hon. John C. Coughenour at the United States Courthouse, 700 Stewart Street, Seattle WA 98101.

Any class member who wishes to comment on, or object to, the Agreement must submit written comments and/or objections to the Court no later than March 21, 2017.  This process is explained in the class notice, which appears in the "key documents" section, below.

Any class member who wishes to appear at the hearing may do so if he or she submits written notice to the Court, with copies to counsel, that he or she intends to appear in person or through counsel.  In the written notice to appear, the Class Member must describe the nature of his or her comment or objections.  Written notice of intent to appear must be filed with the Court and mailed to counsel by March 21, 2017.  This process is explained in the class notice, which appears in the "key documents" section, below.

How to get additional information

For more information, you can email Class Counsel at medicaidhepc@columbialegal.org.

You can also call Class Counsel at 1-800-260-6260 ext. 155.

key documents

The Settlement Agreement is here.   

The class notice is here (English) and here (Spanish).

The motion for preliminary approval is here, and the order granting this motion is here.

Class counsel's motion for an award of attorney fees is here.

The motion for final approval will be posted here when it becomes available.

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