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HIV and the Law

The Health Law Section and the Public Awareness Committee of the Maryland State Bar Association have prepared this information. It is intended to inform the public and not serve as legal advice.

Introduction

If you have been diagnosed with the Human Immunodeficiency Virus (HIV)*, you face numerous health and legal issues. You should understand the legal issues and be aware of the resources you can use to meet your challenge.

*As used in this informational piece, the term "HIV" includes asymptomatic HIV infection as well as full-blown AIDS.

Confidentiality

Assuming that you have been tested at an anonymous test site where you did not give your name, you now are the only person who knows of your HIV status. Revealing that information to others is a highly personal decision, which you may make in due time, but that revelation will impact your life in a variety of ways.

For example, you would be wise to visit your physician immediately for additional tests and possible treatment. Once you do so, however, your HIV status will be entered into your permanent medical chart. Although Maryland has laws protecting the confidentiality of all your health records, some individuals are permitted to gain access to your records. For example, if you use any form of health insurance, including Medicare and Medicaid, your insurer is permitted to view your medical record to assure that you are receiving the services it is covering. Other employees of the health care provider are also permitted to view your record.

Insurance

Having your HIV status on record may make it more difficult to obtain health insurance or life insurance in the future. If you have tested positive or HIV and are considering a change of jobs, you may be ineligible for the health insurance under the plan the new job offers or the new plan may exclude any costs associated with HIV. This "new" insurer is permitted to exclude or limit coverage for "pre-existing" conditions, such as your HIV. Maryland law permits the new insurer a period of two years from the date you acquired your new coverage to claim that your HIV status was a pre-existing condition and therefore, not covered under your new health insurance policy.

For this reason, many people choose to be anonymously tested for HIV in order to make certain career and other life decisions before a permanent record is made of their HIV status.

Under no circumstance may your existing health insurance policy be cancelled by your insurer merely because you have tested positively for HIV or been diagnosed with AIDS. As long as you live up to all of the terms of your policy, which includes paying all of your premiums on time, your current policy will stay in effect.

Obtaining Benefits

If you are no longer able to work and you have health insurance through your employer, you may be entitled to continue that insurance coverage for period of 29 months after you stop working. In order to qualify for this coverage, however, your employer must have at least 20 employees enrolled in the group health plan and you must pay your share of the group’s rate.

Regardless of the size of your employer’s enrolled workforce, you may be entitled to "convert" your group coverage to an individual policy when you are no longer employed. It is very important that you carefully read the terms of your policy and convert before any stated deadline.

The Social Security Administration offers benefits to individuals who become disabled and unable to work due to an HIV-related illness. To determine your eligibility for these programs, call the Social Security Administration at 1-800-772-1213.

The Medical Assistance Program of Maryland (Medicaid) offers free medical benefits for persons living below a certain income level. If you are on Supplementary Security Income (SSI) or General Public Assistance (GPA), you are automatically eligible for Medicaid benefits. Otherwise, you must satisfy the Medicaid Program that your income and liquid assets are below established levels. For Medicaid information, call (410) 225-1463.

The Maryland Pharmacy Assistance Program, 1-800-492-1974 and the Maryland AIDS Drug Assistance Program, (410) 225-6804, may pay for all approved prescription drugs you are required to take. The eligibility income levels for these two programs are higher than for Medicaid.

Employment

Except in very rare circumstances, your employer has no legal right to know your HIV status. Your health care providers and insurance company should not make such a disclosure without your permission. However, if your employer is self-insured (meaning that it pays for all of its employees’ health care expenses out of its own pocket) it will soon learn of your HIV status based on the bills for medical services submitted by you or your health care providers.

You may not be fired from your job merely because you have tested positive for HIV or have AIDS. As long as you are physically capable of performing your work duties in the same manner as your fellow employees, according to your job description, and as long as you do not work in a field or in which your condition poses a measurable health risk to others, your job is legally y protected. Even if you become ill or disabled from performing your current job, your employer may be required to place you in a position that you can perform.

Maintaining Control

A major concern of many people with HIV is caring for loved ones in the event of illness or death. Since some persons with HIV are in relationships not recognized by Maryland law, such as common law marriages and homosexual relationships, it is very important to seek legal advice and draw up the necessary papers to provide partners with the same rights as a legally recognized spouse or partner. These rights may range from guaranteeing a partner visiting rights in the hospital to allowing a partner to make certain health care decisions on your behalf in the event that you are incapable of making such a decision on your own. Many persons with HIV choose to execute a "living will", which permits them to direct the type of health care that they want to receive if they become terminally ill.

You should also consider preparing an advance directive, to name someone to make healthcare decisions for you if you are unable to make your own. You can obtain forms from the Maryland Attorney General’s Office, Opinions Division (410) 576-7000, the General Assembly’s Department of Legislative Reference (410) 841-3810 or from the DC area (301) 858-3810, the State Office on Aging 1-800-243-3425, any area agency on aging, your local hospital or nursing home or your lawyer. You should also consider preparing a durable power of attorney for finance to name someone to handle your financial affairs if you become unable to do so. A lawyer can help you with this type of form.

If you have HIV, you should review your life insurance policy to verify that your intended beneficiary is listed. Selection of a beneficiary is solely up to you. You may also want to determine whether you are permitted to increase the dollar amount of benefits under your policy. A person with HIV will find it difficult to obtain new life insurance since life insurers are permitted to refuse applicants who have HIV or AIDS. Insurers may not refuse to insure you merely because they suspect you have HIV or AIDS or that you are at high risk for contracting HIV or AIDS.

An important part of providing for your partner and loved ones is the execution of a will, which allows you to control how your property is distributed after your death. In Maryland, when a person dies without a will, his or her property automatically goes to a legal spouse, children, parents or other relatives. By executing a simple will, you can override the automatic provisions of Maryland law to ensure that your property is distributed to individuals you designate. A will empowers you to control the things you have worked hard to acquire in your lifetime.

There are a variety of legal resources available to help people with HIV or AIDS. HERO in Baltimore, (410) 685-1180, and the Whitman Walker Clinic in Washington, DC, (202) 797-3553, have attorneys on staff who offer free legal assistance. Both organizations, as well as AIDS Action Baltimore, (410) 837-AIDS. The U.S. Department of Health and Human Services Office of Civil Rights maintain an AIDS Project Coordinator, (215) 596-0814, who can assist you if you have been the victim of discrimination because of your HIV status.

For a free legal guide to health care for people with HIV, called Taking Control: A Legal Guide to Health Care in Maryland for People Living with HIV, call (410) 539-5936.

HIV and the Law © 1986, MSBA, Inc. Revised 1997
All rights reserved. No part of this work may be reproduced in any form without written permission from the Maryland State Bar Association.

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