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TRANSITIONAL PLANNING FOR PEOPLE WITH HIV/AIDS 

Atlanta Legal Aid Society
AIDS Legal Project
March 2004

Many times, people who are HIV positive, but asymptomatic or mildly symptomatic, have questions about making the transition from full employment to part-time or non-employment. For example, some may wonder whether to tell their employers about their condition to gain reasonable accommodation under the Americans with Disabilities Act (ADA) or they want to know what will happen to their group health insurance coverage if they have to quit. They may wonder how to apply for Social Security Disability (SSD) or Supplemental Security Income (SSI), and how much they can expect to receive in cash benefits. Whether they know it or not, these people are engaging in transitional planning and, by doing so, are truly empowering themselves in the face of a future that often seeks to dissipate personal power.

1.  Reasonable Accommodation under the ADA

The Americans with Disabilities Act of 1990 (ADA) applies only to certain employers. The ADA covers employers of 15 or more employees "for each working day in each of 20 or more calendar weeks in the current or preceding year" and the agents of any such employers.

The ADA does not cover the U.S. government (but Section 501 of the Rehabilitation Act of 1973 does), Indian tribes or bona fide membership clubs that are tax exempt under Section 501 of the Internal Revenue Code.

If you are a person who is HIV positive, whether or not you are experiencing symptoms that require reasonable accommodation, then you may be "disabled" under the terms of the ADA.

Perhaps you can continue to work, but need some cooperation from your employer, i.e., reasonable accommodation. The ADA defines "reasonable accommodation" as including job restructuring, part-time or modified work schedules, or reassignment to a vacant position. Your employer is obligated to provide reasonable accommodation to you, assuming you are still able to perform the essential functions of your job, as long as that accommodation does not impose "an undue hardship on the operation of" the employer's business.

To obtain reasonable accommodation and the protection of the ADA, however, you must reveal your HIV status to your employer. The decision whether or not to reveal this information must be solely up to you. The upside of such revelation is that you will be able to proceed under the protection of the ADA. The downside is that your employer may react in an illegal manner by firing you or breaching your confidentiality by impermissibly disclosing your AIDS confidential information. You may have legal remedies to such illegal actions, but even having such legal remedies does not mitigate the harm and the stress you will feel if the employer acts improperly. Fortunately, as more and more employers become educated about their obligations under the ADA, fewer people will be faced with the possible downside discussed above. Nevertheless, the bottom line is that only the fully informed employee can make the decision whether or not to disclose his HIV status to his employer for the purpose of gaining reasonable accommodations under the ADA.

Reasonable accommodation is available only under federal law, not Georgia law.

2.  Employment Discrimination

If you are struggling with the decision about whether or not to disclose your HIV status to an employer to gain reasonable accommodation, you may naturally fear losing your job because of discrimination against people with HIV. You can rely on one of three major acts for protection should your employer threaten adverse action: the ADA, the Rehabilitation Act of 1973 (29 U.S.C. § 794), and Georgia's Equal Employment for the Handicapped Code ("EEHC"), O.C.G.A. § 34-6A-1 et seq.

If your employer is not covered by the ADA (see Section 1. supra for discussion of ADA coverage), but receives federal funding, the Rehabilitation Act of 1973 may apply. If neither federal law applies, and the employer has 15 or more employees, the EEHC may apply.

For the purposes of transitional planning, you only need to know that the threat of discriminatory firing is possible, but that some strong remedies are in place for your protection. Nevertheless, you must be aware that Georgia is an "employment at will" state so any case of discriminatory firing will be made more difficult to prove if the issues are clouded with other performance problems unrelated to your HIV status.

3.  Confidentiality Requirements from an Employer

Georgia law governs the confidentiality of "AIDS confidential information." The definition of AIDS confidential information is found at O.C.G.A. § 31-22-9.1(a)(2), and includes your HIV status.

Disclosure of AIDS confidential information is controlled by O.C.G.A. § 24-9-47. In the employment context, you will be most interested in O.C.G.A. § 24-9-47(m), which outlines to whom the employer can disclose your HIV status once you decide to reveal that status to your employer. Generally, the employer can only disclose your HIV status to other employees "when reasonably necessary in the ordinary course of business to carry out the purposes for which that disclosure is authorized." Id.

You must tell your employer that any information your employer receives about your HIV status is confidential and remains confidential even though some limited disclosure is required to gain the protection of the ADA. O.C.G.A. § 24-9-47(n). If you are adamant about the need for confidentiality, your employer will be more apt to guard the confidentiality of the disclosed information.

4.  COBRA Continuation of Group Health Insurance and Conversion to Individual Health Insurance

Under federal law, an employee covered by group health insurance has the right to extend that group coverage at the employee's expense for 18 months after a reduction of hours or termination from employment (except when termination is for gross misconduct). 29 U.S.C. §1163. This is commonly called COBRA continuation coverage. To obtain the coverage, you must elect coverage by completing a form provided by your employer and returning that form before the deadline to the employer.

Several points should be kept in mind:

a) COBRA only applies to employers with 20 or more employees on a typical business day during the preceding calendar year (29 U.S.C. § 1161(b));

b) The employer can take up to 44 days from the termination date to send the COBRA election form to you (29 U.S.C. 1166 (a)(2) and (c));

c) You must return the completed election form within 60 days of receipt of the form (29 U.S.C. § 1165(1)(C)).

You should make a copy of the completed form and the outside of the envelope and then mail the completed form by certified mail, return receipt requested.

You will then be notified of the premium cost, which can be 102% of the employer's cost of the group health insurance premium. 29 U.S.C. § 1162(3).

If you are found by Social Security to have become disabled within 60 days of the date of the qualifying event (date of termination or reduction in hours) and if you so notify the plan administrator within 60 days of the date of the Social Security notice, then COBRA continuation can last 29 months, at which time Medicare will take over. 29 U.S.C. §§ 1162(2)(flush language) and 1166(a)(3). The premium can go up to 150% of the employer's group cost during the eleven month extension.

You will have the option of conversion at the end of the COBRA period from group to individual health insurance if such a conversion option is otherwise generally available to similarly situated active employees under the group plan. The terms and cost of coverage can, and undoubtedly will, change, but no medical examination can be required. 29 U.S.C. § 1162(5). If, on the other hand, the conversion option is not otherwise generally available, HIPAA requires that you will have the option to convert to an individual policy administered throughout the Georgia Insurance Commissioner's Office. 

5.  Continuation of Group Health Insurance Under Georgia Law

When COBRA does not apply (such as when the employer has fewer than 20 employees), the Georgia law on continuation may apply if your health coverage is provided by "pure" insurance as opposed to a self funded plan. The law can be found at O.C.G.A. § 33-24-21.1 and can provide for continuation coverage for three months upon your payment of the required premium at the group rate. You would also have the right to convert to an individual policy without evidence of insurability. O.C.G.A. § 33-24-21.1(f).

After the three month continuation period, you can choose to extend your major medical or comprehensive medical benefits for twelve months in the case of total disability. Ga. Comp. R. & Regs. r. 120-2-10-.10(5)(d). The extension of benefits is provided free of cost to you. At the end of the twelve month period, however, you cannot convert to an individual policy.

Your decision must be between conversion to an individual policy, which can continue indefinitely as long as the premiums are paid by the client or by DHR (see section 11 below), and extension of benefits for twelve months free of charge. If you believe you need insurance for more than twelve months, you should favor conversion. If you have no money to pay the conversion policy's premium and cannot qualify for DHR's Insurance Assistance Program (see section 11 below), then you may decide twelve free months of coverage is your better option.

6.  What to Expect with AIDS Caps

Employers with self-funded group health plans may try to cap AIDS related expenses. Anyone doing transitional planning must be aware that an increasing number of companies are instituting AIDS caps and some are doing so retroactively, i.e., the caps apply to employees or former employees under COBRA who are already ill and have already made AIDS related claims under the group health plan. Such retroactive application of an AIDS cap in self-funded group health plans has been found to be legal under ERISA in the Fifth and Eleventh Circuits.

7.  Eligibility for Social Security Disability and Supplemental Security Income (SSD/SSI)

If you begin to experience symptoms of the HIV disease, you should consider applying for both SSD and SSI. The symptoms could be as general as low energy, noticeable fatigue, weight loss and forgetfulness, or as specific as bouts with Pneumocystis carinii pneumonia (PCP) or Toxoplasmosis of the brain.

Refer to "A Guide to Social Security and SSI Disability Benefits for People With HIV Infection," which is a free booklet published by the Social Security Administration. Copies can be accessed on the Internet at www.ssa.gov or ordered by writing:

Social Security Administration
Office of Public Affairs
Public Information Distribution Center
P.O. Box 17743
Baltimore, MD 21235.

Even those who have not suffered from an opportunistic infection may still be disabled, but have more difficulty in being approved for disability. One must show marked difficulty in performing physical or mental tasks. This showing can be hard to establish and is often the stumbling block for applicants at the initial level. Therefore, if you have been denied benefits at the initial level, you should seek legal assistance in pursuing a reconsideration and other appeal options.

8.  How Much to Expect in Cash Benefits From SSD and SSI

You can find out your anticipated SSD payments by completing the Form SSA-7004 "Request for Earnings and Benefit Estimate Statement." The form can be obtained by calling Social Security at 1-800-772-1213. The form is only one page and is easy to complete. You should receive the requested information within 6 weeks of mailing the form.  You may also request the statement online at www.ssa.gov.

9.  Work After Getting SSD and SSI

You can try to go back to work after receiving your Social Security benefits.  Contact Social Security for details.

10.  Individual or Employment-Based Disability Insurance

You may have disability insurance either individually or through your employer. In either case, it is important to read the policy carefully to learn about its benefits.

Issues to consider are (1) how the payment of private disability benefits coordinates with Social Security Disability (SSD) payments (often each dollar of SSD reduces the private cash benefit by one dollar); (2) whether the policy is void under its pre-existing condition clause; and (3) whether the policy has a waiver of premium provision in the event of disability.

You should be advised that benefits payable under an employment-based policy are taxable if the employer paid the premiums and not taxable if you paid the premiums.

Finally, you will lose employment-based disability payments if you are fired before invoking the policy.

11.  Insurance Assistance Program for Health Insurance Premiums

The Georgia Department of Human Resources (DHR) has the Insurance Assistance Program, funded in part by the Ryan White CARE Act, that pays the private health insurance premiums for indigent or low-income persons with HIV. You must complete an application form (which must include your doctor's signature) and return the form to the local health department or DHR.

In Metro Atlanta, forms are available at the Infectious Disease Clinic, AID Atlanta, Fulton County Health Department and the Department of Human Resources.

Outside Atlanta, forms are available at the local county health department.

12.  ADAP

The Georgia Department of Human Resources also runs the AIDS Drug Assistance Program (ADAP). Funds are short, but when the program is funded it can pay for the drug costs of a low-income client. To enroll in the program, you must contact the local county health department or, for Metro Atlanta residents, the Infectious Disease Clinic, AID Atlanta, Mobile Mercy Care Corporation, or the Fulton County Health Department.

It is also worthwhile to ask your doctor to contact the drug manufacturing company directly to see if it has a program to provide free medication to persons who would otherwise be unable to obtain the medication.

13.  Viatical Settlements

Both group and individual term life insurance policies can be cashed in prior to death for a price. Two methods are often available. The first is viatical settlement, which is a transaction between the owner of the policy and a non-insurance company that buys the policy at a (usually deep) discount. The second is the living needs benefit or accelerated death benefit, which involves a transaction between the owner/insured and the insurance carrier. The second method is an express, purchased benefit of the policy and so is not automatically available to each insured.

You need to be aware that any cashing in of a life insurance policy is a taxable event and could have an adverse effect on public benefits (a lump sum would probably be considered income in the month received and a resource, to the extent unspent, thereafter). The U.S. Treasury Department has issued regulations that address under what circumstances a viatical settlement is non-taxable.

Atlanta Legal Aid Society
AIDS Legal Project
March 2004