LEGAL BRIEFS it by Bennett Klein and Gavriel Wolfe Protecting HIV/AIDS Disability Benefits BY‘ BENNETT KLEIN AND GAVRIEL WOLFE Editor is note: Susan and Beth begged for the month off. Bennett and Gavriel from Gay and Lesbian Advocates and Defenders in Boston offered to sit in for our dynamic duo this month. Living with AIDS in Portland, Maine, Robin Lambert was understandably panicked when he received a letter from his long-term dis- ability insurer stating his bene- fits were being terminated. Disability benefits, whether private benefits from a long- term disability insurer or pub- lic such as Supplemental Security Income and Social Security Disability Insurance, are a matter of survival for peo- ple unable to work due to HIV or AIDS. From Lambert’s point of view, he had advanced AIDS, low T-cell counts, a history of opportunistic infections, side effects from medications, and constant, debilitating fatigue, which made regular employ- ment impossible for him. The insurer, however, claimed improved anti-viral medica- tions had “stabilized” his con- dition. Lambert, according to the insurer, had not been hospi- talized or diagnosed with an AIDS-related illness in a long time. The insurer even hired a detective to videotape Lambert doing errands to show he was fully capable of working. Many people with HIV or Q 9 handcrafted yihrfor evervdav lit/in! 37 Tahs Corners Shopping Cenrer . Caspian Hot - Glass Studio hand blown oil lamps Wiltistona VT 871'889‘l Weekdays 10-6, Saturday 10-5 AIDS who received disability benefits in the past have been able to return to work. Insurers, however, may attempt to tenni- nate benefits for people who, like Lambert, are significantly improved and living longer, but still unable to work due to severe fatigue, medications’ side effects, infections, or other debilitating effects of advanced HIV disease. With much pub- licity about improved treat- ments, long—term disability insurers, possibly even the Social Security Administration, will likely review claims more closely down the road. There is no need for panic. But more than ever, people with HIV and their doctors must understand what to. do today to protect themselves from unwarranted and arbitrary assaults on benefits in future. Receipt of Social Security benefits does not automatically entitle a person to coverage under a private disability poli- cy. An insured must provide independent proof of meeting the insurance policy’s defini- tion of disability. The key to this is ongoing, consistentand detailed documentation in the medical record of a person’s limitations. ' It is not necessary to demon- strate hospitalization or current opportunistic infections to be eligible for disability benefits. Another real——often underesti- mated——reason a person with HIV may be unable to work is severe fatigue. ‘ But insurers often try to deny disability benefits if there is no laboratory data or other objective evidence that a per- son is unable to work. Fortunately, many courts squarely reject the insurer’s position, ruling that disability insurers cannot disregard a subjective symptom such as fatigue simply because a doc- tor cannot measure it or deter- mine its precise cause. Many people with HIV stop reporting fatigue at every doc- tor’s visit because it has become the norm and no longer November 2000 | Out in the Mountains |5 This is particularly impor- tant because in assessing dis- ability due to subjective symp- toms, many courts give more weight to the opinion of a physician who has assessed the patient’s symptoms over time than to paper review of records by the insurance company’s medical consultant. Some people with HIV claim inability to work due to their medications. It is often difficult to establish that a per- son is unable to work simply because it’s difficult to main- tain a complex medication reg- imen in the workplace: employers are obligated to pro- vide employees with reason- able accommodation to take medications if necessary. Side effects or toxicities from med- ications, however, can help establish disability if they are sufficiently debilitating. It is Silence can give an insurer a basis to claim that a person has no HIV-related limitations. seems remarkable or notewor- thy. But this silence can give an insurer a basis to claim that a person has no HIV-related lim- itations. Even if a person has become accustomed to a cer- tain level of fatigue, the rele- vant factor for determining dis- ability benefits is a person’s current level of fatigue as com- pared to the pre-disability level. Therefore, people should report at every doctor’s visit symptoms such as fatigue, low energy or reduced stamina, sleeplessness or insomnia, sleeping long hours, need to sleep and nap during the day, difficulty with concentration or memory, medication side effects, or any other HIV-relat- ed effects. ’ 802.660.8396 mediator ‘ Diane M. Felicio, Ph.D; Trying to work it out and getting nowhere? Conflict can be productive. separation - divorce - employee relations - consumer disputes E an Estate, w;i1»tf'j_ Laurie S. Rosenzweig Attorney at Law _ 18 South Main Street, P.O. Box 1455, Rutland, VT 05701 802-786-2251 ‘e-mail: Sabu234@AOL.com V ‘Trusts, General.Practice important to document the actual impact of side effects on an individual, not just a med- ication’s general or potential side effects. Finally, doctors sometimes unwittingly create obstacles for patients by making notes in medical records that say “clini- cally stable,” “doing well,” or “asymptomatic.” Although these phrases may be medical- ly accurate, an insurer can take them out of context and claim a person is not experiencing HIV-related limitations. Therefore, it is important that patients make sure that in cor- respondence with disability insurers, doctors explain that while antiviral medications may have slowed the pace of disease progression, such nota- tions have to be taken in con- text of the individual’s overall medical history and condition. Terms such as “clinically sta- ble” and “doing well” are rela- tive to the patient’s baseline medical condition and do not necessarily indicate the absence of HIV-related deficits. It is normal for insurers to ask doctors for periodic updates about a patient’s med- ical condition. In the past, indi- cating that the patient has AIDS may have been sufficient justification of eligibility for benefits. Today, however, it is important that the doctor pro- vide detailedexplanation of the person’s limitations from HIV. After months of legal bat- tling and emotional stress, Robin Lambert’s disability benefits were ultimately restored. His case gives us the most important lesson in pro- tecting disability benefits in future: communicate with your doctor. What is in your medical records today can affect your disability coverage tomorrow and for years to come. Bennett Klein is AIDS Law Project Director at Gay & Lesbian Advocates &‘ Defenders in Boston. Gavriel Wolfe is GLAD Bilingual Client Advocate. GLAD is a New England-wide legal orga- nization that fights in the courts for the rights of les- bians, gay men, bisexuals and people living with HIV. Note: GLAD represented Robin Lambert.V Good legal advice E can make all the difference. Langrock Sperry 8: W001, offers the services of 22 lawyers with over 300 years combined experience in all areas of the law — including two lesbian attorneys with special expertise serving the legal needs of the g/l/b/t/q community. SUSAN MURRAY & BETH ROBINSON With offices in Middlebury and Burlington Middlebury (802) 388-6356 Burlington (802) 864-0217 smurray@langrock.com brobinson@langrock.com Langrock Sperry & Wool, LLP 'A'rToRNEYs AT LAW