June 1991

Legal Perspectives: HIV, AIDS and the Law

Ed. Note: The following article is the
last in a three-part series based on infor-
mation presented at the “Legal Perspec-
tives on Lesbian and Gay Concerns in the
19 ’s" seminar held on March 14, 1991,
at the Vermont Law School.

by Hugh Coyle

In his introduction to a discussion on
legal issues associated with HIV/AIDS,
Evan Wolfson noted that nearly every area
of law has been affected by the epidemic,
and that many battles remain to be fought.
Wolfson himselfis one of the leaders in that
battle, particularly in his work with the
Lambda Legal Defense and Education
Fund of New York.

Wolfson began by addressing prob-
lems of discrimination, especially in em-
ployment, and noted that there are several
major tools to work with in such cases. Two
of the most commonly used acts are the
Federal Rehabilitation Act of 1973, which
applies primarily to federal employees, and
the Americans with Disabilities Act, which
relates to a wider (though not total) range of
work situations.

Two cases in particular set important
legal standards in the area of disease-re-
lated discrimination: the Arline case and
the Chalk case. In Arline, the Significant
Risk Standard was developed. This stan-
dard ruled that employees with contagious
diseases are considered handicapped, and
that employers need to supply reasonable
accommodation for their condition. Em-
ployers also needed to establish that there
was significant risk to other employees
before initiating termination procedures
against the infected employee.

Chalk tested this standard against an
actual AIDS case, with the ultimate ruling
that the standard remained applicable in
cases dealing with HIV and AIDS. Thus, in

most states, an employee with HIV is rec-
ognized as handicapped, and is covered by
the anti-discrimination guidelines devel-
oped in Arline.

While these standards apply to those
already infected with HIV, there are other
statutes which protect those who are per-
ceived to be at high risk for such infection.
One in particular, the ERISA Statute, regu-
lates the administration of employee bene-
fits and prohibitsfiring an employee in
order to deprive him or her of health or
insurance benefits.

Traditionally, the courts have re-
sponded well to cases involving people
with HIV or AIDS and those perceived to
be at high risk, though the latter is being
tested to a greater degree. Still, problems
exist in dealing with such cases: the client
may become too ill to fouow through with
the proceedings; the amount of time in-
volved may further jeopardize the health or
financial status of the client; and the legal
tools used to fight the case are often called
into question due to their precarious nature,
thus prolonging the court case.

Such obstacles can be fatal in cases
dealing with access to care, which Wolfson
sees as the “paramount issue” in AIDS
cases. Such considerations go beyond the
epidemic and point to the need for some sort
of national health care system. As Wolfson
stated, “AIDS has indicated the problem;
now we need to find the answer.”

In his dealings with insurance compa-
nies on matters of health care, Wolfson
observed what he called “massive discrimi-
nation.” Gays and lesbians have tradition-
ally been targets for discrimination in the
insurance industry, with tactics ranging
from red-lining of neighborhoods (the Vil-
lage in New York, for example) to flagging
certain industries as “high risk” (the florist
and hairstyling trades, for example).

While such techniques are used by
insurance carriers to justify not extending
initial coverage, there are also a number of
strategies used to deny claims made after
the coverage has been established. These
include the manipulation of pre-existing
conditions (i.e. claiming that if the infec-
tion occurred prior to the start of the policy,
then it would not be covered), the classifi-
cation of medication and treatment as
“experimental” (even though nearly all of
HIV and AIDS treatments, given their re-
cent development, could be termed as
such), the prolongation of the investigation
of the claim, and the actual alteration of the
plan to avoid coverage in cases dealing
with HIV and AIDS.

Typically, insurance companies will
not include coverage for HIV and AIDS in
health plans, citing the extreme costs that
would be incurred. However, a recent re-
port based on cases reported by New
York’s Empire Blue Cross and Blue Shield
showed that HIV claims were able to be
paid “with relative ease,” even when a large
number of cases were involved.

Some employers have switched from a
standard coverage plan underwritten by an
insurance company to a self-insured plan,
which is not necessarily covered by state
laws. The pivotal legal issue here is
whether or not a federal statute such as
ERISA pre-empts state laws.

The problems are even worse for the
uninsured and those who must rely on enti-
tlement program's. Obstacles here include
underfunding and a lack of quality control.

Wolfson noted that one of the more
frustrating aspects of HIV and AIDS legal
cases was the number of times in which
battles already won had to be re-fought as
new cases called into question things which
had already been done. A case in point is the
(continued on page 19)

Member National
Lesbian and
Gay Law
Association

ROBERT W. ZEUNER

ATTORNEY AT LAW

Bauer, Gravel and Watson
362 Main Street
Burlington. VT 05401
863-5538

100 MAIN STREEF
P.O BOX 247

O.
Hoff, Agel, Curtis, Pacht & Cassidy, P.C.

BURLINGTON, VT 05402-0247

David W. Curtis

ATTORNEY AT LAW

802-864-4531