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MAP Legal News
Vol. 1 No. 10
December 22, 2003
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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. If you do not wish to receive future editions of MAP
Legal News, or if you would like your name added to the list, please contact
Dan Kelly, Legal Services Assistant, at dkelly@mnaidsproject.org
or
(612) 373-2426.
In this issue:
Updates on HIV-related Case Law
We have no recent cases from the Eighth Circuit or Minnesota District
to report. Here are some interesting cases from Minnesota, the United
States Supreme Court, and around the country:
Pittsburgh Post-Gazette, Dec. 11, 2003:
An administrative judge ruled that the Pennsylvania state Medicaid program
should pay for an HIV-positive man's liver transplant. William Jean Gough
had been cleared by doctors at Starzl Transplant Institute for a transplant
but Pennsylvania denied Medicaid coverage because it interpreted a 1991
departmental policy statement to mean that individuals with severe life-limiting
conditions are not eligible for transplants. According to the judge, the
state's interpretation would rule out people with diabetes as well, and
a severe life-limiting disease is "an illness that no longer responds
to curative treatment." Gough's HIV infection is under control, his
current medical concerns have to do with hepatitis, and medical experts
believe his survival chances with a transplant are as good as for someone
who does not have HIV. The judge held that Gough, an AIDS activist, could
live for another three decades with a transplant and that he already diligently
followed his prescribed treatment, concluding "it is reasonable to
expect that he [Gough] will make many more valuable contributions to society."
Gough was represented by Lambda Legal.
Milwaukee Journal Sentinel, Dec. 4, 2003:
A 27-year-old man, Jason Burnett, was sentenced to 2 -? years in prison
for not disclosing his HIV status to a woman with whom he was having sexual
relations.
Burnett pleaded no contest to first-degree recklessly endangering safety
as a habitual offender. Nine similar charges were dismissed as part of
a plea agreement. Burnett was also sentenced to 7-? years of supervision.
The woman tested negative for HIV. The judge ordered that Burnett's sexual
partners must meet with his probation officer first to learn about his
HIV status before they have sex and Burnett must wear a condom during
sex. Burnett was also ordered to undergo HIV and AIDS education, drug
and alcohol treatment, get a full-time job, and submit to regular blood
tests.
Citizens for a Balanced City, et. al. v. Plymouth Congregational
Church, et al., A03-190 (Minn. App. Dec. 2, 2003):
The Minnesota Court of Appeals held that the city of Minneapolis acted
reasonably in
waiving a quarter-mile spacing requirement for Lydia House (1920 LaSalle
Avenue), a new supported housing facility that includes units specifically
set aside for formerly homeless people who are living with HIV. To make
way for Lydia House, Minneapolis waived the spacing requirement designed
to prevent facilities such as group homes from being concentrated in particular
neighborhoods. The city determined that the federal Fair Housing Amendment
Act intended to protect disabled people trumped the spacing requirement.
The Plymouth Church Neighborhood Foundation is sponsoring Lydia House
and was sued, along with the city, by a group of residents and businesses
calling themselves Citizens for a Balanced City. The group argued that
nearby blocks are already overpopulated with group facilities. Six of
Lydia House's 40 apartments are set aside for people living with HIV.
Lydia House, which opened in November, recently announced that all 40
of its units are now filled with people who were formerly homeless. From
MAP AIDSLine Update, December, 2003.
Raytheon Co. v. Hernandez, U.S. Slip Op 02-749 (Dec.
2, 2003):
Joel Hernandez tested positive for cocaine and admitted his behavior violated
Raytheon's workplace conduct rules. He was forced to resign. Two years
later Hernandez asked to be rehired and stated on his application that
Raytheon had previously employed him. He attached letters from his pastor
attesting to his active church participation and his Alcoholics Anonymous
counselor verifying his regular
attendance at meetings and his recovery. His application was rejected
based on Raytheon's policy against rehiring employees who are terminated
for workplace misconduct; the interviewer stated that she did not know
Hernandez was a former drug addict when she rejected his application.
Hernandez filed a charge with the Equal Employment Opportunity Commission
(EEOC) claiming that he had been discriminated
against under the Americans with Disabilities Act (ADA). The EEOC issued
a right-to-sue letter and Hernandez filed an ADA action claiming that
Raytheon rejected his application because of his past drug addiction and/or
because he was regarded as a drug addict. Hernandez responded to Raytheon's
summary judgment motion by arguing in the alternative, for the first time,
that if Raytheon had applied a
neutral no-rehire policy in his case it still violated the ADA because
of that policy's disparate-impact. Raytheon's summary judgment motion
on the disparate-treatment claim was granted and the District Court held
that the disparate-impact claim was not pleaded in a timely manner. The
Ninth Circuit upheld the summary judgment but allowed the disparate-impact
claim because Hernandez had a prima facie case of
discrimination and Raytheon did not have a legitimate, nondiscriminatory
reason for its no-rehire policy which was lawful on its face but unlawful
as applied to the employees who were forced to resign due to drug use
but were later rehabilitated. The United States Supreme Court held, however,
that the Ninth Circuit improperly applied
a disparate-impact analysis to Hernandez's disparate-treatment claim and
ignored the fact that Raytheon's no-rehire policy is a legitimate and
nondiscriminatory reason for refusing to rehire an employee terminated
for violating workplace conduct rules. The matter was vacated and remanded.
Goodridge v. Department of Health, SJC 08860 (Nov. 18,
2003):
The Massachusetts Supreme Judicial Court, in a 4-3 ruling, held that lesbian
and gay couples may no longer be excluded from the right to marry in Massachusetts.
According to the Court, "barring an individual from the protections,
benefits and obligations of civil marriage solely because that person
would a marry a person of the same sex violates the Massachusetts Constitution."
The Court gave the state
legislature 180 days to amend the civil marriage statutes in accordance
with its decision. The Massachusetts decision is broader than that of
the Vermont Supreme Court in 1999, which held that same-sex couples in
Vermont could be given the legal rights and benefits of marriage but not
the right to marry itself. The Massachusetts court recognized the social
injuries experienced by same sex couples because of the denial of the
right to marry, excluding them "from the full range of human experience"
and denying "enormous private and social advantages." Further,
the court spoke to the importance of protecting same-sex couples with
children: "These couples (including four of the plaintiff couples)
have children for the reasons others do to love them, to care for them,
to nurture them. But the task of child-rearing for same-sex couples is
made infinitely harder by their status as outliers to the marriage laws."
Hill v. Los Angeles County, No. S119639, petition for
review denied (Cal., 11/12/2003):
Lawrence E. Hill works in the Los Angeles County Support Services Department.
Hill argued that being forced to work a five-day, 40-hour per week schedule
was an adverse employment action. Hill had originally worked a "9/80
work schedule" which consisted of five nine-hour days followed by
a week in which he worked three nine-hour days, an eight-hour day, and
a full day off. This schedule provided Hill with time for AIDS-related
medical care however his employer argued that Hill's attendance rate improved
noticeably under the 5/40 schedule. Hill argued that his improvement in
attendance was due to an improvement in health and not the change in work
schedule
itself. After an appellate panel affirmed summary judgment in favor of
Los Angeles County, Hill asked the California Supreme Court to grant a
hearing to consider what an adverse employment action is and whether circumstantial
evidence of discriminatory intent could be used to prove discrimination.
The court declined to consider Hill's request.
South Carolina Med. Ass'n v. Thompson, No. 03-114, cert.
denied (U.S. Nov. 3, 2003):
The United States Supreme Court rejected a petition brought by a group
of doctors challenging the new federal privacy requirements protecting
patient records under the 1996 Health Insurance Portability and Accountability
Act (HIPAA). The South Carolina Medical Association (SCMA), which represents
over 6,000 physicians, claimed that Congress unlawfully "transferred
[to the Department of Health and Human Services (HHS)] the legislative
authority to enact medical privacy standards." HHS argued that the
department did not exceed its authority in promulgating the regulations
because Congress can vest broad rulemaking power in an agency so that
the agency may use its expertise in order to make policy decisions. SCMA
also claimed that the new rules would unfairly force doctors to retrain
their employees and review their billing practices to ensure compliance.
The District Court dismissed the case and the U.S. Court of Appeals for
the 4th Circuit affirmed.
Taylor v. Powell, No. 1:03CV01832 (RMC), answer filed
(D.D.C., 11/3/2003):
The United States State Department responded to an HIV bias lawsuit brought
by Lorenzo Taylor, a man denied employment with the Foreign Service and
rejected his claim that the withdrawal of a conditional employer offer
constituted a violation of the
Rehabilitation Act. The department refuted Taylor's contention that it
has a policy prohibiting the hiring of persons with HIV for Foreign Service
positions but also admitted that "there are no HIV-positive individuals
to whom the Department's Office of Medical Services has a issued a Class
1 medical clearance." This clearance is required for all Foreign
Service employees in positions that require possible worldwide assignment.
Meanwhile, a second man, Kyle W. Smith, has filed a similar lawsuit against
the State Department. According to Smith's complaint, he applied for employment
with the Foreign Service in late 2002 and received an offer contingent
upon a satisfactory completion of a background check and medical exam.
Smith's physician forwarded all of the required information, including
data on Smith's HIV-positive status, to the State Department. Smith was
then informed that he had earned an "Class 5" medical clearance,
disqualifying him for worldwide service, due to "an active illness
or condition that requires medical follow-up or treatment not available
in some areas of the world" or a condition requiring "certain
follow-up testing not
available worldwide." Smith's administrative waiver of the department's
decision was denied and he has initiated a formal complaint.
DiGiovanni v. Chevron Corp. Long-Term Disability Plan
Org., No. C-02-2835 SC, 2003 WL 22416416 (N.D. Cal., 10/20/2003):
Antonio DiGiovanni was first certified for long-term disability (LTD)
benefits in May 1991 by Connecticut General Life Insurance Company, a
third-party organization contacted by Chevron to oversee LTD claims. DiGiovanni
had worked for Chevron as an administrative assistant for two years and
was approved for benefits on the basis of his diagnosis of major depression,
"HIV-seriopositivity with AIDS-related complex" and "severe
progressive neuropathy." For six years DiGiovanni fulfilled this
plan obligation by submitting attending physician's statements of disability.
DiGiovanni then received a series of reports that he had no chance of
recovery and that he was totally disabled.
DiGiovanni argued that it was pointless to continue providing the statements
at a cost to him. Chevron responded that the statements were required,
and for the next three and a half years the parties communicated back
and forth, with Chevron requesting statements and DiGiovanni (and the
AIDS advocacy foundation he founded) refusing to provide them because
his permanent disability had been sufficiently established. DiGiovanni
offered to have an independent medical examiner look at his case but Chevron
refused. Chevron eventually terminated DiGiovanni's LTD benefits. DiGiovanni
unsuccessfully appealed the termination and failed to have the case opened
for
reconsideration. He filed suit against Chevron under the Employment Retirement
Security Act seeking reinstatement of his LTD benefits and damages for
breach of fiduciary duties. The district court judge ruled in favor of
DiGiovanni, calling Chevron's termination of his benefits an "abuse
of discretion" because it did not follow its own plan guidelines
in doing so. Chevron should have notified DiGiovanni that they were investigating
whether to terminate his benefits and failed to obtain a vocational evaluation
or resolve discrepancies in his medical documentation. Chevron was also
wrong for refusing DiGiovanni's offer to have an independent medical examiner
review his case. The federal judge upheld the lower court, ordering Chevron's
LTD plan board to reconsider DiGiovanni's termination.
State v. Collins, No. 03-388, 2003 WL 22304493, sentence
affirmed (La. Ct. App., 3d Cir., 10/8/2003):
Larry Collins, a convicted drug dealer, failed to convince a Louisiana
appeals court that his jail sentence of 16 years at hard labor for the
distribution of cocaine was excessive
given his HIV diagnosis and other health problems (he undergoes dialysis
and has a history of mental health issues). Collins received his sentence
as the result of a plea agreement but appealed, arguing that the sentence
was "constitutionally excessive" in light of the court's recent
ruling criticizing sentences that "make no measurable
contribution to acceptable penal goals of punishment and hence [are] nothing
more than the purposeful and needless imposition of pain and suffering"
(State v. Williams, No. 020707, 839 So.2d 1095 (La. Ct. App., 3d Cir.
Mar. 5, 2003)). The appeals court disagreed, holding that the trial judge
had considered Collins' HIV status because the
court "ran the entirety of the defendant's sentence concurrent with
the sentence he was then receiving because of his HIV status and various
other health conditions." The court held that Collins benefited from
the plea bargain and therefore the trial court did not impose its discretion
in imposing the defendant's sentence.
Back to top
Legal Issue of the Month: International Human Rights and HIV
December 10 was International Human Rights Day, marking the fifty-fifth
anniversary of the 1948 Universal Declaration of Human Rights. This is
a good opportunity, therefore, to briefly examine the relationship between
the HIV disease and international human rights.
According to the Joint United Nations Programme on HIV/AIDS (UNAIDS),
AIDS killed almost 25 million people between the beginning of the epidemic
and the end of 2001; another 40 million people were living with HIV or
AIDS, and five million new cases were diagnosed in 2001 alone. As a result,
HIV disease is considered a threat to
international security, peace and development. It is within this context
that any international law and human rights analysis of HIV disease must
be undertaken. The United Nations General Assembly's Declaration of Commitment
on HIV/AIDS stated: "[T]he full realization of human rights and fundamental
freedoms for all is an essential element in a global response to the HIV/AIDS
pandemic." (New York, United Nations, 2001; paragraphs 16, 58 (A/RES/S-26-2)).
Human rights are a "set of universal entitlements that individuals
enjoy irrespective of their sex, nationality, religion, culture, or other
status, that are inherent to human beings and that are proclaimed and
protected by international law." (David Patterson &
Leslie London, International Law, Human Rights and HIV/AIDS, Bulletin
of the World Health Organization 2002, 80 (12). After the genocide and
war crimes of World War II, human rights were prominently recognized in
the development of the United Nations in 1945 and the drafting of the
1948 declaration. The declaration is not a legally binding
document but it is, nonetheless, the most recognized statement protecting
human rights under the rule of law. International treaties and customary
international law enumerate the actual obligations of states to uphold
fundamental human rights.
In 1996 an international expert group convened by UNAIDS and the Office
of the High Commissioner of Human Rights created guidelines to assist
states in applying international human rights law in the context of HIV
disease. The guidelines were incorporated into a report during the 53rd
session of the Commission on Human Rights in 1997 and are now known as
the "International Guidelines on HIV/AIDS and Human Rights."
States have been asked to report on steps taken to promote and implement
the guidelines. Issues such as confidentiality, disclosure, discrimination,
and state capacity to limit personal freedoms are addressed. The guidelines
also recommend domestic legislation allowing for safeguards and flexibility
with respect to
international property agreements in order to ensure access to HIV disease
prevention and treatment.
Unfortunately, provisions for international enforcement of human rights
violations in relation to HIV disease (and other situations) are generally
weak. The guidelines say nothing, "for example, about our personal
moral responsibility to care for affected people, although it addresses
states' obligations in these areas." (Patterson
& London). Commentators also point out the western reliance on protecting
the rights of citizens from state interference sometimes clashes with
the concerns of developing countries in which a broad range of social,
political and cultural factors contribute to a
vulnerability, and weakened response, to the epidemic. Socioeconomic rights
are therefore key to an international response.
Sources: David Patterson & Leslie London, International Law, Human
Rights and HIV/AIDS, Bulletin of the World Health Organization 2002, 80
(12)
Back to top
Spotlight on MAP Legal Services Volunteer John Medeiros
John Medeiros, a longtime volunteer for MAP Legal Services, is the Practice
Group Administrator with the immigration law firm of Myers Thompson, PA,
located in Minneapolis, Minnesota. He has worked in the field of immigration
law since 1989, when he started as the Legal Education Program Coordinator
for the International Institute of Rhode Island. John has extensive experience
and knowledge in the area of HIV and immigration, and often lectures to
both community members and
healthcare professionals on topics such as Immigration Options for Those
Living with HIV, and How to Prepare HIV Waivers for Those Wishing to Immigrate
to the United States. He participates in MAP's monthly immigration clinic,
where he meets with clients individually to discuss immigration options
available to them. John can be reached
at (612) 349-3062.
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Correction
The November 2003 issue of MAP Legal News contained a typographical error
that changed the meaning of a sentence. In our article about social security
benefits the text should have read as follows: "Low CD4 lymphocyte
(T-cell) counts or high viral loads are not necessarily indicators of
disability if the client is otherwise asymptomatic or presents very few
of the required symptoms." We apologize for the error and thank one
of our vigilant readers for pointing it out!
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Last Updated:
Tuesday, April 3, 2007
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