Currents

BOARD RETREAT

by Catherine Lemann, Chair

The ALL Board of Directors met on Saturday, March 10 at Little River Bluffs in Folsom on the Little Tchefuncte River. The Board has had a retreat for the past couple of years, but the out of town location was a first. Our hosts, David Campbell and Charles Apffel, provided a beautiful setting and a delicious meal in the harmonious environment. I am sure that we would not have accomplished as much elsewhere.

The retreat provided us with the opportunity to discuss the long-range issues that we do not address at out monthly meetings. Jean Patru, MSW, joined us in the morning to assist the group as facilitator. Jean has supported ALL in the past and we are grateful for her donation of time and expertise. One immediate accomplishment was to restructure our committees, which now include Public Relations/Publicity, Fundraising, Legal, Volunteer, and the Pro Bono event.

The work of ALL has evolved with the changing demographics of the HIV-positive community. There is less of a need for end-stage documentation and estate planning. There are more cases that involve discrimination in housing or employment, or access to public benefits based on disability. We serve more clients who are women and from the African-American community with the shift in demographics.

We have had a number of resignations from the Board recently, and there is also talk afoot to expand the board from its present limit of 15. We are actively recruiting replacements, so if you are interested please contact the AIDSLaw office and ask for Linton for more information. You do not have to be an attorney-there are many issues that come before the board that require no legal expertise, and having more than one point of view is very important. Because ALL is a state-wide organization, it would be wonderful to have directors from various areas of Louisiana. We are also particularly interested in finding women, people of color and people who are HIV-positive, but there's room enough for everyone.

I appreciate the commitment of Linton and all Board members to spend most of a Saturday focusing on the organization. It was a chance for us to learn more about each other, to focus on the important work of ALL, and to begin to make plans for the future.

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FROM THE FRONT OFFICE

COMINGS AND GOINGS

The big news is our new staff attorney, Stacey LaFleur-Spawn, who started work just after the first of the year. She replaced Stacey Evans, who moved to Pennsylvania at the end of 2000. Please go to page three for the article about our new staffer.

The AIDSLaw board also has changed some since the last issue. Gregory Curtis, our treasurer for the past year, has resigned due to the increased responsibilities at his job as employment manager of the new Ritz-Carlton. He has been replaced by Joe Williams, a vice president at Hibernia National Bank, who joined the board last year. The board is also losing Rosetta Lee, Demond Smith, and Jane Martin, all due to heavy work loads. Demond has been on the board for 18 months, Rosetta for close to three years, and Jane for almost four. We thank all three of them for their hard work and dedication throughout the years.

LEGAL ROUND-UP

It's open season on employees at the United States Supreme Court.

In the last issue, we mentioned that the Court was considering whether State employees were protected by the Americans with Disabilities Act (ADA) and could bring suit in federal court. Patricia Garrett was a nurse at the University of Alabama's medical school who took a leave of absence due to breast cancer. Demoted when she returned to work, Garrett sued the University under the ADA. In a companion case, Milton Ash, a security officer for the State of Alabama, said his bosses refused to enforce their own anti-smoking policy to accommodate his severe asthma, and gave him a car that leaked carbon monoxide into the passenger area.

The briefs filed with the Court presented a litany of horror stories perpetrated by the States on the disabled. Mentally retarded children were used as guinea pigs to test the effects of radiation, with isotopes mixed into their morning oatmeal; mandatory sterilization for the "feeble-minded," (including epileptics in four States) existed as late as the 1980s; over half the children with only orthopedic problems still go to special schools; policy decisions discouraged the disabled from using public transit until recently.

Nevertheless, on February 21, 2001 the Supreme Court held in favor of the States in a 5-4 opinion authored by Chief Justice Rehnquist and joined by the Court's conservative wing, Justices Kennedy, O'Connor, Scalia and Thomas. Garrett v. University of Alabama, No. 99-1240, 531 U.S. ___ (2001). The majority concluded that Congress had failed to identify a history of unconstitutional employment discrimination by the States against the disabled, and held that Garrett and Ash could not get a money judgment against the State under the ADA. In a dissent, Justice Breyer, writing for Justices Ginsburg, Souter and Stevens, questioned not only the Court's assessment of the Congressional record, but also the standard it had imposed on Congress in making a legislative record.

State employees may still be able to sue under the federal Rehabilitation Act of 1973 if their agency receives federal funds, but this statue is also under challenge as a violation of the Eleventh Amendment. Louisiana's law protecting the disabled is not as broad as the ADA, and has rarely been interpreted by the courts since most cases have been brought under the ADA. In addition, State employees will no longer have the protection of having the law administered by the Equal Employment Opportunities Commission, with backup from the Disability Rights Section of the Department of Justice. Lawsuits brought in State courts also will be presided over by elected judges rather than appointed judges in the federal system.

Just a few days later, the Court ruled 5-4 (same lineup among the Justices) that employers can require employees to arbitrate job-related disputes, if the employers insert a clause to that effect into the employees' contract. Circuit City Stores, Inc. v. Adams, No. 99-1379. By interpreting the 1925 federal arbitration statute broadly to encompass employment contracts as well as commercial contracts, the Court took away the right of a gay man to have his harassment claim heard by a judge or jury. Instead, he has to go to arbitration, a procedure that tends to favor the employer.

At the appellate level, the Eleventh Circuit in Atlanta, which covers Alabama, Georgia and Florida, has taken an appeal from a healthcare worker who was suspended and then demoted to an administrative position after his employer discovered his HIV status. The plaintiff, who worked as a dental hygienist, contends that the lower court disregarded expert testimony that he posed virtually no risk to his patients. In Bragdon v. Abbott, which involved an HIV-positive patient, the Supreme Court said that determining whether there is a significant risk of HIV transmission had to be based on objective medical evidence, not just fear. Will the same standard be applied when it is the healthcare worker who has HIV?

Locally, the Louisiana sodomy statute is before the courts again. Last year, the Louisiana Supreme Court rebuffed a challenge to the law in a criminal case, and asked an Orleans Parish district court to reexamine its prior ruling in a civil case that the law was unconstitutional. Now the lower court has held once again that the statute transgresses the right to privacy found in the Louisiana Constitution. Round two at the Supremes is coming up.

OFFICE NOTES

The generosity of AIDSLaw' friends and supporters is often overwhelming. Recently the Louisiana State Bar Association agreed to underwrite the cost of networking the computers in our office, and when the job is complete we anticipate being able to serve our clients more quickly and efficiently. We were also very fortunate to have a photocopy machine donated by Robert Matthews, a New Orleans attorney. Leopold Weill, III, who also practices law in New Orleans, donated a set of law books that already has come in handy. Larry Becnel, a New Orleans attorney who recently stepped down as ALL's board chair, donated an armchair, and Jimmy Fahrenholtz, formerly AIDSLaw's director and now on the School Board, gave a desk, chair and bookcase. Last but not least, Brett Buck, a New Orleans massage therapist, gave us an excellent computer and scanner.

During the last few months, ALL has also been assisted by several law students who have helped with research topics. Michelle Boudreaux worked on issues relating to women's treatment, while Kristi Emfinger did research on damage awards and Social Security issues. Nancy Casbeer helped the staff prepare an article on the Garrett decision mentioned above, and Corey Jones organized the ALL research files, a Herculean task. Randy Blandin has been working on a complicated worker's compensation issue, while Tracey Hayes has been looking into privacy and medical discrimination issues.

We've also been lucky to have Shannon Hager come around on Fridays. A nurse who started her involvement with AIDS in 1983 while working in Zaire for the World Health Organization, Shannon works at the HIV Outpatient Clinic in New Orleans and just got her paralegal certificate. She has been helping us by reviewing medical records in Social Security cases, drafting pleadings for others clients, and other paralegal duties.

Thank you to everyone. We could not do the job without you.

WHY WE DO WHAT WE DO

People often do not appreciate the important connection between legal services and medical care for people living with HIV and AIDS.

The United States is the only major industrialized country without some form of universal access to healthcare. People with HIV/IAIDS have one major thing in common-they need health care. Most of our work for clients is to assure them this access, to find some way that they fit into the fractured scheme of health care we have in America.

When we prepare and notarize income affidavits for clients, this is often the first step toward primary health care provided through the State system. Some of our estate planning documents, like living wills and medical powers of attorney, relate directly to health care. But our most important job is to protect clients' health care or to help them obtain it if they don't already have it. Stopping health care discrimination ensures that clients have the best care available, despite HIV status. Stemming employment discrimination keeps people employed and eligible for employee benefits. Even without benefits, an employed person is more likely to have better access to existing and emerging treatments due to a steady income.

Advice about confidentiality can prevent unlawful and/or needless disclosure of HIV/AIDS status that could result in job termination or other discrimination. Educating employers or health care providers about the difficulty of transmitting HIV/AIDS can also reduce discrimination in those areas and keep clients eligible for benefits, or allow them to get care without delays or hindrances imposed by those with unjustified fears about transmission.

For clients with private health insurance, explaining benefits or getting them reinstated if they have been terminated can make the difference in ensuring access to primary care. Helping clients resolve debtor/creditor issues can free up income that will help them access care. Assistance with housing issues can keep clients from becoming homeless, a recognized barrier to getting good health care.

Perhaps most important, helping clients get public benefits through the Social Security programs can be the critical factor in their living longer.

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Statistics about HIV and AIDS

• Number of people living with HIV in Louisiana as of March 31, 2001: 12,730.*
• Number of deaths in Louisiana as of the same date: 7,625*
• Number of Louisiana children under the age of 13 who are living with HIV/AIDS:131.*
• Number of Louisiana residents over the age of 60 who are living with HIV/AIDS: 316.*
• Percentage of Louisiana residents with HIV who are African-American: 64.
• Percentage of African-American among those diagnosed in Louisiana in 2001: 71*
• Percentage of Louisiana residents with HIV who are women: 27*
• Percentage of women among those diagnosed in Louisiana in 2001: 28.8*
• Number of parishes with more than 1000 residents infected with HIV: 3*
• Number of parishes with no residents infected with HIV: 0*
• Parishes with more than 100 residents living with HIV/AIDS, in order: Orleans, East Baton Rouge, Jefferson, Caddo, Lafayette, Calcasieu, Ouachita, Rapides, St. Tammany, Iberville, Avoyelles, Washington, Tangipahoa, St. Landry, Allen, West Feliciana, Terrebonne, East Feliciana*

*From the Louisiana Office of Public Health

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SO, YOU'RE INTERESTED IN FILING FOR SOCIAL SECURITY DISABILITY...

by Iska Beck

There are many common misconceptions about who is or is not considered disabled from Social Security's perspective. In this article I'll provide an outline of requirements for a finding of disability under Social Security rules and regulations for adults; impairments for children are rather different and are not covered. In a subsequent article, I will explore some of the more common questions I receive from clients and health care providers concerning disability benefits.

The Social Security Administration (SSA) defines disability as (1) the inability to engage in any substantial gainful activity (2) by reason of any medically determinable physical or mental impairment(s) (3) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. This is a threshold issue for disability and SSA is very serious about the duration requirement. If the applicant's medical condition is only temporarily disabling, like a broken leg which is expected to heal within twelve months, the applicant is not disabled.

The rules governing all aspects of Social Security issues and claims can be found in the Code of Federal Regulations and the United States Code. The specific listing of impairments for individual medical conditions is found at 20 CFR Subpt. P. Ap. 1. While the list is not exhaustive for all known medical conditions, an applicant who has a condition listed here, invariably has an easier time in qualifying than one who has a more unusual medical condition or a combination of medical conditions. Anyone wishing to see a complete listing of impairments can contact SSA or look the regulations up in a law library.

SSA considers a wide variety of evidence in making a disability determination. Keep in mind, however, that this is a medical disability program which requires evidence of medical treatment; simply put, a patient will never get Social Security disability without treatment. While SSA will consider a client's self reporting testimony, they are more interested in objective medical evidence found in medical reports. Also, it is not enough for a treating physician to write a note saying a patient is disabled without giving a detailed description of the disability.

There are thirteen categories, or "listings", of impairments for adults. All of AIDSLaw's clients will be evaluated, at least in part, under the immune system listing, designated as 14.00 (there is no listing designated as 10.00). The immune system listing covers both overactive and dysregulated immune system disorders and immune suppressed disorders (like lupus, systemic sclerosis, scleroderma, Raynaud's phenomena polymyositis and dermatomyositis) and immune suppressed disorder like HIV/AIDS.

Because HIV suppresses the immune system, all other body systems are potentially vulnerable to attack by opportunistic infections. As such, many of the listed impairments refer the SSA examiner to other body systems for evaluation of disability, such as neurology, neoplasm (cancers), skin, blood, cardiac or genito-urinary. The potential for HIV to affect all systems makes the determination of disability difficult for all involved, claimants, SSA examiners, representatives and the court system.

An HIV diagnosis alone is not enough to establish disability. SSA will look initially at the T-cell or CD4 count, as a measure of whether the patient has a sufficiently suppressed immune system to be at risk for opportunistic infections, but not all opportunistic infections are considered equally disabling. Additionally, the SSA examiner is instructed to evaluate information concerning fatigue, weight loss, night sweats, pain, restriction of daily living, difficulty in maintaining social functioning and difficulties in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

It is critically important that patient files are fully documented. The report by the health care provider is given greater evidentiary credibility than a consulting physician's report purchased by SSA.

Questions which measure fatigue are usually phrased in terms of "How far can you walk before you must rest?", and "Are you able to clean a complete room in your home before resting, or only part of a room?". Some of the Administrative Law Judges prefer to measure fatigue in terms of "how many minutes can you walk before tiring?". Another common issue tied to fatigue is sleep disturbance, whether the patient is able to sleep through the night and if not, what causes the patient to awaken. It is extremely important for the health care provider this document this information as SSA is more likely to accept this type of report from the health care provider rather than by only the patient's testimony.

Reports of pain by a patient also need to be referenced in the medical records. This includes pain from any separate orthopedic condition, from herpes or from neuropathy. If neuropathy exists, the record should state whether the pain is limited to the feet or extends to the hands as well. If pain in the hands would limit a patient's ability to use a computer or to write, this fact should be recorded in the patient's file since such limitations definitely limit the ability to engage in sedentary work. Many applicants for Social Security disability who are unable to return to past work still have their claims denied because SSA considers them able to perform lighter duty or sedentary work. If a patient is restricted to less than a full range of sedentary work, SSA will usually award disability.

Psychiatric components such as restrictions of daily activities, difficulties in maintaining social functioning, forgetfulness, memory loss, and difficulties in completing tasks in a timely manner also serve to limit a patient's ability to engage in sedentary work. Questions such as "Do you have trouble remembering to take your medications?" or "Do you have to write down reminders to yourself?" are usually an easy way to begin questioning patients who are frequently extremely embarrassed by their current memory losses..

The other 12 adult listings and the type of evidence follow. Please note that furnishing the evidence does not mean the patient will win, but without the evidence the patient will almost surely lose.

1.00 Musculoskeletal. The health care provider will need to describe any non-union of a fracture or range of motion of the affected area of the body by degrees.

2.00 Special Senses and Speech. Provide findings on visual fields and visual acuity needs. For a hearing loss, provide test results.

3.00 Respiratory. Interpretation of chest x-rays and results of pulmonary function studies along with laboratory findings must be provided.

4.00 Cardiovascular System. For cardiac impairments where there is chest pain, a diagnosis of angina without a specific description of the chest pain will be considered inadequate. The doctor must describe the chest pain in the terms SSA wants, i.e., the pain is squeezing, burning, substernal in location, radiating to the left arm or jaw and relieved by rest in ten minutes or by nitroglycerine in three minutes.

5.00 Digestive. Lab results, biopsy and charting of weight loss are required.

6.00 Genito-urinary System. SSA requires laboratory findings and a report of the deterioration of renal (kidney) function, as well as charting the weight loss.

7.00 Hemic and Lymphatic System (blood disorders). Laboratory findings and pathology reports are required.

8.00 Skin. SSA requires information that the lesions have not responded to prescribed treatment.

9.00 Endocrine System. The endocrine system impairments involves diabetes and thyroid disorders. Health care providers must provide laboratory findings and x-ray evidence.

11.00 Neurological. Neurological disorders such as epilepsy require an EEG as well as laboratory findings that the prescribed medication is at a therapeutic blood level. Any evidence of alcohol consumption while on seizure medication will result in an automatic denial of the claim.

12.00 Mental Disorders. Mental impairments are particularly difficult to establish as independently disabling under SSA's rules. The health care provider needs to provide extremely detailed information concerning the patient's presenting problems (DEFINE), treatment and daily activities.

13.00 Neoplastic Diseases. The health care provider must provide a pathology report along with detailed information concerning location of the neoplasm, metastases (if any), treatment, and response to treatment. Certain cancers are more amenable to treatment than others. For example, Oat cell carcinoma is considered disabling but non-metastatic breast carcinoma is not.

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Stacey LaFleur-Spawn

AIDSLaw has a new attorney, Stacey LaFleur-Spawn, who started work in early January. Stacey grew up in New Orleans and graduated from Ben Franklin High School. After receiving her undergraduate degree in political science from George Washington University, she attended Rutgers Law School in Camden New Jersey and received her degree in 1997. During her law school years, Stacey worked with homeless people in Philadelphia and with Community Legal Services helping low-income clients with employment matters. Before coming to AIDSLaw, she practiced in New Orleans doing insurance law and working on civil RICO cases.

Stacey already has an active docket chiefly in the public benefits area, and she has taken over the task of keeping ALL's referral list up to date. She has also been on the road to see clients at the AIDS service organizations in Alexandria, Baton Rouge, Lafayette, Lake Charles, Monroe and Shreveport. In April, she will also provide the legal training for new volunteers at NO/AIDS Task Force.

After three months on the job, Stacey has been intrigued by the multifaceted issues that she has encountered. "It's always surprising to see how complex people's problems can be, but that's what makes this job interesting," she said.

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AIDSLaw Prison Project

by Deidre Peterson

I have been visiting prisons as part of the AIDSLaw prison outreach program for the past year. Every month, Sam Ashley, AIDSLaw's office manager, and I take our "roadshow" to the Louisiana Correctional Institute for Women at St. Gabriel (LCIW) , the St. Tammany Parish Jail and the Orleans Parish Prison (OPP). At LCIW we address the pre-release groups, which involve inmates expecting release from prison within a year. At OPP, which has a population of 5,000, we only see inmates enrolled in drug treatment programs. In the St. Tammany Parish Jail, we see a diverse population: women and men awaiting trial, federal inmates and Department of Corrections inmates.

Although our presentations are tailored for each group, we always start by talking about HIV prevention, then follow up with an overview of legal issues that affect persons infected with HIV. Sam, who is a certified HIV and substance abuse counselor, leads the prevention part while I take over for the legal presentation. I talk about estate planning, medical powers of attorney, living wills, public benefits for HIV-related disability, discrimination based on HIV-status, medical furloughs for seriously ill inmates, privacy issues, and issues of transmission liability. We also talk about the services that are available after release.

We decided to combine the presentations on prevention and legal issues for two reasons. First, the information on prevention is also extremely useful to people infected by HIV as a part of risk reduction to avoid re-infection with different virus strains and new infections with another STD. Second, by framing the presentation as one dealing as much with prevention as infection, people who are infected can attend without automatically bringing their HIV status into question.

Louisiana has one of the nation's highest incarceration rates. Reintegrating former inmates into society is essential if the cycle of crime is to be diminished. We think our program provides an avenue for reintegration for inmates with special problems facing them upon reentry into society. AIDSLaw has received new clients from prisons as a direct result of the prison out-reach. In many instances, AIDSLaw is the first agency a former inmate will visit or call after leaving jail. Besides helping with the legal issues, we also refer the former prisoners to job training and drug treatment facilities that have a history of working with people who have HIV.

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Thanks

Everyone at AIDSLaw wants to extend thanks to the many friends and supporters who have given generously to make sure that ALL continues its work. As long as fear and bias are salient traits of the AIDS epidemic, members of the affected community will need ALL's (and your) help if they are to be treated with dignity and fairness in the legal arena. Your support makes important legal protections a right rather than a dream.

GUARDIAN OF FREEDOM

• Linton Carney
• Club New Orleans
• Catherine Lemann

JUSTICE

• John Royes

APPELLATE JUDGE

• Tharp-Sontheimer-Tharp Funeral Homes

TRIAL JUDGE

• Thomas Alchediak, MD
• Larry C. Becnel
• Martha Kegel
• James F. Lestelle
• Gerry Pelayo
• Rayne Memorial United Methodist Church
• Clyde Watkins

SENIOR PARTNER

• United Services for AIDS

JUNIOR PARTNER

• Anonymous
• Larry C. Becnel, in memory of Carolyn Brown
• Paul G. Kilgore
• Clayton Latimer and Melinda Milam
• Rosetta Lee
• Joel Ridenour

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