Currents

A Newsletter for Friends of AIDSLaw of Louisiana December 1999 (Vol. 3, No. 1)

CLE Time By Iska Beck
Face Lift
Holiday Party
Where Jurat By Stacey Evans
From the Front Office By Linton Carney
AIDSLaw's wish list
Statistics about HIV and AIDS
Questions and Answers on Health Insurance by Geoff Murphy, Murphy & McKnight
New Staff Attorney
Thanks

	CLE Time By Iska Beck As the year draws to a close, it's time for the lawyers to make sure they have all their continuing legal education hours. For the past two years, AIDSLaw has hosted a program featuring such speakers as the Hon. Ginger Berrigan of the United States District Court for the Eastern District of Louisiana, Magistrate Judge Joseph C. Wilkinson, Jr. and Robert Kuehn, the director of the Tulane Environmental Law Center. This year, AIDSLaw is giving another program, in conjunction with PrimeTime CLE Institute. AIDSLaw wants to give special thanks to Pamela Ebel, PrimeTime's director, for all her assistance in putting on the program. Pam did practically everything, from garnering the speakers and arranging for the site to designing the brochure and publicizing the event. Without her, this CLE program simply would not have taken place, and we are deeply appreciative. The CLE will be on December 10 in the Pan American Life Center Conference Center, on the 11th Floor of 601 Poydras Street in New Orleans. The program, called "Bread and Butter Issues for the 21st Century," offers 8.5 hours of credit and fulfills both ethics and professionalism requirements. The program features topics ranging from sexual harassment law, as discussed by Susan Clade of Lambert & Lambert, to updates on income and gift tax law by Leon Rittenberg, II, of Baldwin & Haspel. Glenn DuCote from Baton Rouge will give a rundown on forced heirship after the Boggs decision, and Robert McKnight of Murphy & McKnight will discuss ERISA and its relationship to employee benefits determinations and job discrimination claims. Mediation is a growing trend in the law, and Eugenia Patru, a board certified social worker with a masters in the field will address the use of mediation in resolving employee disputes that involve claims of discrimination. Jimmy Fahrenholz, who recently left AIDSLaw for private practice, will lecture on the ethical considerations of representing a disabled client. To round out the program, the Hon. Alma L. Chase, Magistrate of the United States District Court in New Orleans, will speak on issues of professionalism. If you would like further information, please contact the AIDSLaw office. The price for the program is $195. Hope to see you there. Return to the Table of Contents
	Face Lift We hope you have already taken a look at AIDSLaw's website. You can find all sorts of information there, ranging from staff and board biographies to a listing of the agency's most popular publications. The site, with the catchy name of aidslaw.org, was purchased for AIDSLaw last year by Joel Ridenour, the treasurer at the time. Joel has moved to Washington, DC, and now Eric Hess and Hess marketing have volunteered to redesign the site. Hess Marketing has designed websites for many of the non-profit organizations in the New Orleans region, such as Belle Reve New Orleans. You can see some of the examples of their fine work at hessmarketing.com. So the next time you surf the net, look for the new and improved AIDSLaw site. Return to the Table of Contents
	Holiday Party AIDSLaw's holiday party has become something of a tradition, so once again we invite you and friends to share a cup of holiday cheer and a snack or two with the board and staff on Monday December 20 between 4 and 7 p.m. If you haven't dropped by the "new" AIDSLaw offices (144 Elk Place, Suite 1530), make this your opportunity to do so. As 1999 comes to an end, everyone at AIDSLaw wants to extend best wished for the holiday season and the coming year to our many friends and supporters. AIDSLaw would not be what it is without your help, and we hope our work has been worthy of the faith you placed in us. Return to the Table of Contents
	Where Jurat By Stacey Evans What a difference a jurat makes! It used to be that people who were unable to sign their name or affix their mark, could not execute a will. A new jurat allows people who are unable to sign their name due to physical infirmity to appoint another person to sign for them. For starters, a jurat is a clause written at the end of an affidavit, or in this case as will. The new law, which amends several articles of the Louisiana Civil Code, applies only to notarial testamentary documents. A notarial testament is a will that requires a notary and two witnesses. A testator is a person who makes a will. Before this new law, the only option available to people who could read but were unable to sign due to physical infirmity, was to use their mark as a signature. While the new law still allows testators to use their mark as their signature if they are able to do so, the special feature of the new law is that it allows people who are unable to sign due to a physical infirmity to appointing someone to sign for them. The reason behind this is that two witnesses and a notary public can verify the testator's wishes were adhered to in the will. This new jurat applies when people are unable to sign due to a physical infirmity. "Unable to sign" generally means that a person cannot sign his or her name. While the statute does not define what physical infirmity is, it may be safe to assume that HIV or AIDS is a physical infirmity. Before the new law, Louisiana already took other problems into account. For instance, if a testator is unable to read for any reason, whether illiteracy or blindness or both, but is able to sign, then the will must be read in front of two witnesses and a notary. Art. 1579. People who know how to read Braille may have their testament in Braille, so long as they declare that the testament is their testament and is written in Braille. Art. 1580. The Civil Code also allows people to have a will written in not only another language, but characters other than roman characters. Art. 1577 Comments. In fact if people are unable to understand what is written in their will because it is written in a language they do not understand, the will is invalid. The new law gives more flexibility for people with physical infirmities. As a result, more people will be able to embody their last wishes in a legal document. Return to the Table of Contents
	FYI From the Front Office By Linton Carney There is a new face at AIDSLaw, and it's mine. I've been booted from the board room to the front office as of November 1. It's been an exciting first month, with plenty to learn and many skills to master. I want to thank the board of directors for entrusting the leadership of ALL to me. The present staff also merit praise for helping me learn the ropes and putting up with my shortcomings (and sometimes short temper). I want to also thank Jimmy Fahrenholz, the former executive director. In addition to his years of service as a staff attorney and then executive director for the past year, he has made the transition as seamless as possible. Whether it was walking me through the administrative tasks or being on call to answer countless questions, Jimmy has been an asset to the end. AIDSLaw also recently said good-bye to Gail Lambert, our law clerk for several years, who will graduate from Tulane this semester. Gail worked for ALL for over three years until leaving for greener pastures. We wish her good luck in her future endeavors. NEW LOOK You may have noticed that several of the articles carry by-lines in this issue. AIDSLaw has always been fortunate in having supporters who would submit articles for Currents, but until now they have gone unacknowledged. So in this issue we want to give credit to Geoff Murphy for his article on health insurance issues (Geoff also wrote the very good article in the last issue on discrimination in health insurance). I also want to thank Jeffrey Reeder for writing several fine law columns in previous issues. You'll also see by-lines for Iska Beck and Stacey Evans who are staff attorneys at AIDSLaw. Articles without by-lines either are collaborative efforts or by me. STRAWS IN THE WIND There's a silly rumor out there that AIDS is over. Maybe vicious is the better word. While it's understandable that people want to trumpet the good news, it's just wrong to forget that people are still dying every day from AIDS. Recent data from the State (Louisiana, you may be surprised to know, has one of the best surveillance programs in the country) do have some happy prospects. Perinatal transmission of HIV is way down, probably due to increased use of AZT and C-sections (although there's some debate about the second). Mortality rates are also on the decline. But the drop in mortality rates is slowing. Is poor access to health care the cause? Are the new drugs starting to fail? Are people failing to take their meds? The jury is still our, but it's a clear sign that the battle isn't over. Complacency may be playing a part in the new infections, too. While the number of new cases of HIV are not climbing, they're not going down either. Everyone has heard about people who court infection now that the virus is supposedly tamed. But beyond the fringe element, there seems to be a lot of ordinary people who have taken the good news as a sign they can let down their guard. It would be a tragedy if one of the legacies of the new therapies was a new set of infected persons. Of course the numbers only show the people who get tested. We really don't know how many people are infected and don't know it. If Louisiana is a benchmark, there is some sobering news. A full 30% of people don't find out they're infected until they get sick. The message is get tested. Anonymously if possible, confidentially if anonymous testing isn't available. If you don't think you know the difference, call us. WEB SURFING The American Foundation for AIDS Research has put its directory online. Now everyone from healthcare providers to people living with HIV and AIDS can get quick information on research, treatment and drug interactions from this renowned group that started up in 1985. The directory editors intend to update the online information continuously while publishing in book form twice a year. Go to www.amfar.org/td. Return to the Table of Contents
	AIDSLaw's wish list AIDSLaw frequently uses or specifically needs the items below. If you can provide any of them, or know someone who could, please call us at (504) 568-1631: Paper towels Copy paper (8.5" x 11" and 8.5" x 14") Large conference room table Desks and chairs Waiting room furnishings Cold drinks (in cans) High-density IBM computer diskettes Legal-size writing pads Pens and pencils File folders Styrofoam or plastic cups Binder clips * For IRS purposes, AIDSLaw provides documentation specifying items donated. Return to the Table of Contents
	Statistics about HIV and AIDS Number of people living with HIV/AIDS in Louisiana as of September 30, 1999: 11,430. Over 25% of the people living with HIV/AIDS are women. Number of AIDS-related deaths in Louisiana as of September 30, 1999: 7,036. 222 children in Louisiana have been diagnosed with HIV/AIDS; 76 have died. 87% of the children diagnosed with HIV/AIDS are African-American. People over 50 make up 11% of HIV cases in Louisiana. 73% of new cases of HIV in Louisiana are among African-Americans. Over 1500 cases of AIDS have been reported in Baton Rouge, and almost 500 in Shreveport. Return to the Table of Contents
	Questions and Answers on Health Insurance By Geoff Murphy, Murphy & McKnight I have HIV. How can I get health insurance? Get a job. Under a federal law knows as HIPAA, if your employer has a group health plan, it cannot keep you off the plan simply because you have HIV (or any other medical condition.) It also can not require that your contribution to the plan be higher than that of other employees. It is possible the plan could exclude or limit coverage for a particular condition such as HIV (see last issue). However, very few employee health plans try to do this. Get married to someone with a job. Many employee health plans allow the spouse of a covered employee to join the plan. The employee must usually pay an additional premium. If the plan provides for spousal coverage, it can not exclude a particular spouse or charge a higher additional premium because of that spouse's medical condition. A few companies now allow domestic partners of employees to join their health plans. Start a business. So no one will hire you or marry you. THen start your own business, hire at least one other employee and buy an employer group health policy of your own. Under federal law, any insurance company that is selling group policies to small employers (those having between 2 and 50 employees), must sell one to your business, regardless of the medical condition of your employees. If you have from 3 to 35 employees, a Louisiana law will protect you against excessively high premiums. Buy an individual policy from the Louisiana Health Insurance Association "High Risk Pool." (Phone 1 800 736-0947) Private insurance companies will almost certainly refuse to sell a health insurance policy to an individual with HIV. However, Louisiana residents who have been turned down by two insurers are eligible to purchase a policy from the High Risk Pool. The coverage is not as extensive as under a typical individual or employer group policy: there is a $500,000 lifetime cap, $100,000 yearly cap, and $15,000 yearly prescription cap. And the premiums are higher, e.g. about $290 per month for a 40 year old, female non-smoker in the New Orleans area, with a $1000 annual deductible and a $3500 limit on co-payments. But this is still a lot cheaper than paying for your HIV care out of pocket. Note: availability of new High Risk Pool policies is dependent on the level of state funding, so there may be a waiting period near the end of the fiscal year. My boyfriend has great health insurance at his job and it offers spousal/dependent coverage, but no coverage for domestic partners. We can't get married because I'm a guy too. Can I get on his insurance policy as a dependent if he adopts me? Not unless you're chicken. Virtually all employee health insurance plans require that dependents be under age 19 at the time they join the plan. Coverage then ends when you reach 19, though some policies extend coverage up to age 23 if you remain in school, or indefinitely if you become totally disabled while covered. I'm about to start a new job. The new employer says I will have to wait three months before I can get on its health insurance plan. Is this legal? Yes, as long as it applies this waiting period to all new employees in your job classification and isn't singling you out because of a health condition. If you have an individual policy or have health coverage through your current employer, you can and should keep that coverage until you have met the new employer's waiting period. (The next issue will cover questions about continuing coverage from a previous employer.) I recently got on my employer's health plan. The plan is now refusing to pay for my HIV medications, claiming HIV is a "pre-existing condition." Can it do this? Possibly. Even with HIPAA, an employer group plan may, in some situations and for a limited period of time, refuse to cover pre-existing conditions. Whether this applies to you depends on several factors, including the definition of pre-existing condition contained int he plan, your exact diagnosis, and your treatment history at the time you joined the plan. If the exclusion applies to you, it can not last more than 12 months if you joined the plan during an open enrollment period or if you joined when you were first eligible. It can not last more than 18 months if you joined at some other time. And, the plan must usually count prior health coverage against the 12 (or 18) month exclusion period. For example, if you were on a previous employer's health plan for at least 12 months and you joined the new employer's health plan as soon as you were eligible to do so, you will have already met any pre-existing condition exclusion period in the new plan and it can not use this as a reason to deny coverage for HIV-related medications. There are several other twists and turns to pre-existing medical condition limitations not mentioned in this answer. If an insurer ever denies you HIV-related benefits based on this or any other reason, you should consult AIDSLaw with the specifics of your situation. The enrollment form for my employer's health plan has all sorts of health questions, including questions about HIV. If it has to accept me anyway, why is it asking for this? Where will this information go? What happens if I omit any information about HIV? It is asking for two reasons: First, to determine whether you are subject to a pre-existing condition limitation. Second, although an insurer can not turn you down for employer group health coverage based on your health, it can still turn you down for or attempt to rescind existing individual health, disability or life coverage. It could also report this information to the Medical Information Bureau (MIB), an insurance industry data bank, so that other insurers will have it when evaluating any claim or application you make for these other types of insurance. In addition to the insurer and the MIB, your employer may also have access to any information you put on the enrollment form. This is especially true if the plan is "self funded," i.e., if benefits are paid directly by the employer rather than by an insurance policy, or if the employer is involved in administering the plan, e.g., processing claims. If the plan is insured (not self funded) and if the employer is not involved in administering it, you should be able to minimize your employer's access to this information by sending the enrollment form and any claim forms directly to the insurer, along with a letter stating that you will sue it for invasion of privacy if it releases any medical information to your employer. Nothing in HIPAA makes it illegal for a plan to ask for this information. If you provide inaccurate or incomplete information on the enrollment form, it is possible the plan may later use this as an excuse to deny benefits. However, I have never heard of a plan doing this. Return to the Table of Contents
	New Staff Attorney For several years, ALL has been trying to add an additional staff attorney in order to serve out new clients better. This year, we went to many of our supporters with a plan to raise enough money to support a full time position. The idea was to create a slot that was unencumbered by some of the restrictions place on our grants, such as advocacy, or serving clients who may be slightly above income guidelines, or acting as general counsel for various AIDS Service Organizations all across the State. The result of the Major Gift Campaign, whose participants were acknowledged in the last issue of Currents, has been heartening, but we've fallen a little short of the goal. So we've decided to go forward with the plan, but on a pert-time (three days a week) basis for right now. We've advertised for a new attorney in various media, and we already have a stack of resumes to cull through. While we're a little disappointed that we didn't raise enough money for the full-time position, we want everyone to know that we haven't forgotten our pledge to improve services. The new attorney, even working just part-time, will provide depth that we really need. Three people can only be in so many places at one time, and a fourth warm body will help make sure that our clients are promptly served. Moreover, to the many generous people who supported the Major Gifts Campaign, we wanted to let them know that their money was being used for the purpose we had represented, if, unfortunately, on a more limited basis than we had hoped. Return to the Table of Contents
	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. APPELLATE JUDGE Club New Orleans Bill Peltier TRIAL JUDGE Mr. & Mrs. Frank Estrada and Lori Estrada, in memory of Teri Estrada Butch Spradling SENIOR PARTNER Dr. John D. Stover Darlene & Jody Dickerson JUNIOR PARTNER Peter Menard & Robert L. Trevino Clay Latimer Return to the Table of Contents
	Currents is produced three times annually by AIDSLaw of Louisiana, Inc., for its clients, donors, and other constituents. We invite your comments. Please send them to: AIDSLaw of Louisiana, Inc. Attention: Currents P.O.Box 30203 New Orleans, LA 70190 (504) 568-1631 or 800-375-5035 Fax: (504) 568-1242 email: info@aidslaw.org https://www.aidslaw.org funded in part by the Louisiana Bar Foundation IOLTA Program