Welcome to the first edition of MAP Legal News! Each month the Minnesota AIDS Project Legal Program will send you an update of our activities, interesting case law and policy updates, and stories of our clients and volunteers. Each month we will also focus on a particular legal issue and its relation to HIV/AIDS.

MAP Legal Services provides advice, direct representation and referrals to a network of volunteer attorneys for HIV-related legal matters, including estate planning, family law, discrimination, social security, immigration and employment-related concerns. Participants must be HIV-positive, meet financial eligibility requirements and complete our legal intake process. MAP also provides brief consultation to HIV service providers and family members on HIV-specific legal topics.

We hope you find this update informative and useful! If you have any comments or suggestions, please contact Caroline Palmer, Staff Attorney, at cpalmer@mnaidsproject.org or (612) 373-9174.

In this issue:

• Updates on HIV-related Case Law
• Legal Issue of the Month: Social Security Benefits and HIV
• Social Security cases in the MAP Legal Program
• Spotlight on volunteer attorney Fay Fishman

Updates on HIV-related Case Law

We have no recent Minnesota, Minnesota District, Eighth Circuit or United States Supreme Court cases to report. Here are some interesting cases from around the country and the world:

Makhathini v. GlaxoSmithKline S. Africa (S. Africa Competition Comm’n 1/28/2003)
The AIDS Healthcare Foundation (AHF) of California filed a complaint with the South Africa Competition Commission charging that the pharmaceutical company GlaxoSmithKline (GSK) has a “stranglehold on key drug patents” that it uses to maintain high monopoly pricing on AIDS drugs in that country. AHF claims that GSK’s refusal to license AIDS drugs to a generic manufacturer jeopardizes the lives of thousands of South Africans because they cannot afford the drugs at current prices. AHF has asked the South African Government to force GSK to grant licensing and manufacturing concessions in the country to increase drug availability. The group currently serves 250 to 300 people daily at its HIV clinic in Durban, South Africa and maintains a waiting list of at least 50 people (who cannot be immediately served, AHF says, because of the prohibitive GSK drug prices). AHF has also filed suit in federal court challenging the legality of GSK’s AZT and other medications patents. Hearings and decisions are pending in both matters.

Doe v. U.S. Postal Service., No. 01-5395 (D.C. Cir., 2/7/2003)
Doe, a U.S. Postal Service employee, claimed his supervisor violated his privacy rights by disclosing Doe’s HIV status to fellow employees. The supervisor obtained the information through Doe’s Family and Medical Leave Act benefits application. A U.S. District Court granted the Postal Service’s motion for summary judgment, holding that Doe did not present sufficient evidence and that the FMLA form did not qualify as an “employer inquiry” that would be subject to the medical confidentiality requirements under the Americans with Disabilities Act (ADA). Doe appealed to the U.S. Court of Appeals for the D.C. Circuit and the Court reversed and remanded the lower court’s ruling stating that Doe provided sufficient evidence of the confidentiality breach. The Court added that “substantial evidence” indicated that Doe’s supervisor got the health information from the FMLA form and that, since he processed such paperwork, he had access to it in the normal course of business.

People of the State of California v. Alexander, No. C040355 (Cal. Ct. App., 3d Dist, 2/11/2003)
A California appeals court modified the jail sentence of a man convicted of sexually assaulting a girl to exclude the trial court’s order that he be compelled to undergo an HIV blood test. Under California law such tests can be ordered when there is probable cause to believe that blood, semen or other bodily fluids capable of transmitting HIV were transferred from the defendant to the victim. Alexander claimed that because the trial court failed to make such a finding, he could not be compelled to take the test. The appeals court agreed and modified the judgment to strike the test order.

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Social Security Benefits and HIV

MAP clients access two types of Social Security benefits: SSI (Supplemental Security Income) and SSDI (Social Security Disability Insurance). SSI pays a monthly benefit to individuals who have limited “on-the-books” work history and low income and limited assets. Income and asset limits apply. It may also pay benefits to eligible clients who are waiting for SSDI to start. SSI recipients are also eligible for food stamps. SSDI is an insurance program for disabled people who have worked “on-the-books” and/or paid FICA taxes for a certain number of calendar quarters. The monthly benefit amount depends on the amount paid into the Social Security system. Payments begin after a five-month waiting period from the time of disability. SSDI recipients may be eligible for food stamps depending on the amount of their monthly benefit, and Medicare.

SSI claims are reviewed for a medical determination of disability. People with AIDS usually receive benefits based on a “presumptive decision,” a determination that the client will likely be disabled for 12 months based on a doctor’s letter stating that the client cannot work. People with less severe symptoms must undergo an SSI medical determination based on information from a client’s doctors, hospitals or clinics.

Social Security benefits are not always easily obtained. Many MAP clients are denied on their first application and sometimes on their second. MAP volunteer attorneys assist clients when their applications reach the hearing stage.

A frequent issue for MAP clients with SSDI is whether to return to work. HIV disease is unique in that a client can be completely debilitated and then recover to the extent that work is possible again. The Social Security Administration has a Trial Work Program that allows SSDI-beneficiaries to return to work for period of about nine months during a 60-month period. The nine months does not have to be consecutive. The Trial Work Program gives recipients an opportunity to find out if they can sustain employment. During the trial work period recipients can work and draw benefits. After the nine months are up the recipient needs to decide whether she is able to return to work or to keep receiving benefits. Recipients can keep receiving their benefits so long as they do not earn in excess of $800 per month. If the client earns over $800 per month the benefits will stop after three months. Benefits received during months when earnings went over $800 will be considered overpayments and should be returned to Social Security.

Returning to work also affects other benefits such as insurance and rent supplements. Clients are urged to consider all of the possible financial ramifications of returning to work. Clients who return to work and lose their benefits will qualify for benefits again if they re-apply within 36 months of completing their nine-month Trial Work Period. If an application is made during this time period, there is no need to file a new claim or satisfy the five-month waiting period.

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Social Security Cases in MAP Legal Services

One of the most frequent benefits issues in MAP Legal Services is overpayments and removal of SSI benefits due to a “fleeing felon” situation. In these cases the SSI benefits are suddenly stopped when Social Security becomes aware of an outstanding warrant or probation/parole violation on the part of the recipient. This law is found in Title XVI of the Social Security Act. Often the recipient is not even aware that they are considered a “fleeing felon” until their benefits are stopped.

This development is the result of changes made to the Social Security laws in 1996. A “fleeing felon” is someone who is “fleeing to avoid prosecution, or custody, or confinement after conviction for a crime.” Whether the act is considered a felony or a high misdemeanor is subject to laws of each state. The benefits will stop as of the first of the month in which “a warrant, court order or decision, or order or decision by the appropriate agency (e.g. parole board) is issued which finds that the individual is fleeing (or fled) to avoid prosecution, or custody or confinement after conviction for a crime . . ., or is violating (or violated) a condition of his/her probation or parole” or SSI benefits also will stop as of the first of the month “during which the individual fled to avoid such prosecution, custody or conviction, or violated a condition of probation or parole,” whichever is earlier. Because the law was changed as of August 26, 1996 the recipient may be considered ineligible only as of that date. If the recipient takes the necessary legal steps to resolve the violation or recall the warrant SSI benefits will resume as of the first day of the month following receipt of written notice.

Simply “fixing” the warrant is not often enough. The law actually provides that the recipient is not eligible to receive benefits for any month during which s/he is considered to have been fleeing prosecution. Once the matter is addressed the recipient is eligible for future benefits but will have also accumulated an overpayment for the months “fleeing.” Social Security will collect this overpayment by taking a monthly deduction from the recipient’s benefits. A Notice of Reconsideration will need to file in order to waive, cancel or reduce the overpayment.

Several MAP clients have experienced this situation and the results can be disastrous. One client with an outstanding warrant in Miami lost her Medical Assistance benefits because of the SSI termination. She has several medical conditions in addition to HIV and is dire need of her insurance. Happily the warrant was finally quashed and the client is on the way to having her benefits restored. Another client, whose two warrants from Arizona were recently resolved, lost his housing because his General Assistance benefits were stopped when his SSI stopped. For several days the client was homeless and relied on shelter housing during the coldest days of winter. Case management and Every Penny Counts worked to find emergency funds to keep the client from having to live on the streets where both his physical health and sobriety were at risk, while Legal Services worked with the public defenders in the appropriate counties to clear the warrants.

So what to do in this situation? Immediately contact the public defender in the county where the warrant has issued. Arrange to have a public defender bring the matter before a judge for an order recalling the warrant. If the matter is outside of Minnesota and you believe your client is too sick to travel obtain doctor’s verification. Sometimes an appearance is unavoidable, however, depending on the severity of the offense. Note that if no copy of the warrant or probation/parole violation is attached to the SSI termination notice (a requirement under the Social Security Act) then the client needs to file a Request for Reconsideration and request “Aid Paid Pending” so that benefits can continue during the appeal time period. In the Request the client should ask for a “formal conference” and request that the Social Security Administration subpoena the criminal “charging complaint,” the warrant, and any other underlying documents.

Social Security wants to extend the Fleeing Felon rule to SSDI benefits as well, however no action has been taken yet. If a client is approved for both SSI and SSDI benefits, and the fleeing felon rule applies to their case, only the SSI benefits will be terminated.

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Spotlight on volunteer attorney Fay Fishman

Fay E. Fishman is a partner in Peterson & Fishman, and maintains practices in both Minneapolis and Phoenix, Arizona. For several years Fay has assisted MAP Legal Services clients when their social security applications are denied. Other areas of her practice include ERISA and long term disability insurance. Her articles on Social Security Disability have been published in West’s Social Security Reporting Service, Minnesota Trial Lawyer Journal and the San Francisco Trial Lawyer Journal. She is also author of the Benefits Coordination Chapter of the Minnesota Workers’ Compensation Deskbook. We thank Fay for her willingness to help so many of our clients obtain the benefits they need. Her work has made a tremendous difference. Fay can be reached at:
Peterson & Fishman
3009 Holmes Ave. S.
Minneapolis, MN 55408
(612) 827-8123
fay@pflclaw.com

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Last Updated: Tuesday, April 3, 2007
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