At the AIDS Law Project of Pennsylvania, we believe “AIDS is hard enough, justice shouldn’t be.” Every day we work to secure justice for our clients.
Justice Secured: Settlement for Iraq War Vet Denied Aquatic Therapy because of HIV
On June 23, 2016, the AIDS Law Project of Pennsylvania filed a federal lawsuit on behalf of an HIV-positive Iraq war veteran. The lawsuit alleged Bonnie Jones, who used a pseudonym to protect her identity, was denied aquatic therapy because she has HIV. Defendants Drayer Physical Therapy and OSS Orthopaedic Hospital deny liability.
On May 16, 2017, this case was settled to the mutual satisfaction of all parties.
- 6/25/16 (York Daily Record) Iraq War vet denied therapy due to HIV, lawsuit alleges
- 6/7/17 (York Daily Record) Iraq War vet settles lawsuit alleging HIV-related discrimination
Justice Served: Successful settlement for chef and fiancé fired because of HIV status
The couple had recently moved to the small Pennsylvania town, where one of them had grown up. They were eager to plant hometown roots and prepare to be married. Both had gotten jobs in May 2016 at a country club restaurant, one as a chef. Sadly, everything fell apart quickly.
On their first day at work, the couple prepared a meal to follow the funeral of a country club member. The employer and guests praised them for their effort. When they arrived for work on their second day, the chef was told he was fired because his employer had learned he had HIV.
The chef’s fiancé, who does not have HIV, was initially allowed to keep his job, but his hours were steadily reduced until he was fired a few weeks later.
“They were incredulous,” said Adrian M. Lowe, a staff attorney at the AIDS Law Project of Pennsylvania. “They’d heard stories about this kind of stigma, but they’d never experienced it.”
Federal and state laws clearly prohibit discrimination against people with HIV and AIDS. The protection also extends to those who are regarded as having HIV and AIDS and to those who associate with people living with HIV and AIDS. Further, the Centers for Disease Control and Prevention have long recognized that food handlers with HIV do not present a risk of HIV transmission to co-workers or consumers.
The first step the AIDS Law Project takes in these kinds of cases is to send a letter to the employer explaining the law and medical science concerning HIV and requesting an informal resolution of the matter.
If that doesn’t work, complaints can be filed with various state and federal agencies or the matter can be taken to court.
Although both the science and the law concerning HIV and AIDS have long been established, the AIDS Law Project handled 189 discrimination cases in 2016.
In this case, the restaurant responded quickly to the letter and a settlement including undisclosed financial compensation was reached.
The settlement covered both the chef and his fiancé, who was also targeted because of his association with a person with HIV.
As a result of the incident, the couple was unemployed and unable to find work. They were forced to leave their small town and move out-of-state for jobs in their field. With this case behind them, they are once again planting seeds and planning a wedding.
In addition to Adrian, the AIDS Law Project’s executive director, Ronda B. Goldfein, of counsel Sarah Schalman-Bergen and summer associate Imani Hudson-Hill, Temple University Beasley School of Law, worked on the case.
At the AIDS Law Project of Pennsylvania, we believe “AIDS is hard enough, justice shouldn’t be.” Every day we work to secure justice for our clients. Starting June 14, 2017, we will issue a weekly #JusticeUpdate to report on our work.
The future looked promising for the young man as he prepared to further his education by attending graduate school. Then he got an unexpected and unpleasant surprise in March that threatened to derail his plans.
The Social Security Administration notified him that it had overpaid him about $13,500 in benefits and wanted the money back. His monthly benefit also was cut off, money he needed until he was in graduate school The man, 33, had been meticulous about his records and thought he had provided all the relevant information to Social Security.
“He was befuddled,” said Jacob M. Eden, a staff attorney at the AIDS Law Project. “He was upset he was receiving these bills.”
The student appealed the decision on his own in April, but was rejected again. Social Security said he should not have been paid in any given month when he had more than $2,000 in his bank account. The man was aware of the rule, but also thought student loan payments were exempt. He was right. The only months he had more than $2,000 was when he’d received a student loan payment.
“He knew the rules,” Jacob said. “He provided all the information required and he still lost.”
Although he had provided all the relevant information, Social Security said they couldn’t determine the timing and amounts of the payments. A second appeal would have to go to an administrative law judge, which could take many months. That would have played havoc with the man’s plans for his future. He wanted to sell his house by the end of June so he could move to go to graduate school. Reviewing the case, Jacob realized Social Security had not given the man a face-to-face meeting, as regulation required.
“They made the decision before doing all the due process,” Jacob said.
Jacob successfully argued that the case should stay in the local Social Security office, avoiding lengthy delays. A personal conference was scheduled in May, which Jacob attended with his client. But it wasn’t over yet. Although Social Security restarted the man’s $733-a-month benefit, it said it would deduct money for the overpayment, which should never have been imposed. Jacob was able to deal with that problem with a phone call. Social Security agreed that the man owed nothing.
Getting justice for a client doesn’t have to mean filing a lawsuit and fighting it out in court. A recent case provides an example of what AIDS Law Project Staff Attorney Adrian M. Lowe calls preventative lawyering.
The AIDS Law Project recently helped a woman whose life was in turmoil when she contacted us. Her husband had become seriously ill and was admitted to a hospital, where he was diagnosed with AIDS. Soon after, she tested HIV positive. The woman had worked for a small, family-owned business for two decades. She loved her job and considered her boss a major source of support, so she shared her diagnosis.
Although initially supportive, that soon changed. A few days after her disclosure, her boss told her she would have to tell all the other employees about her diagnosis for insurance liability reasons. If she didn’t, he said, he would fire her. She didn’t want to tell her coworkers – at that point she had only told two close friends. But she also didn’t want to antagonize her employer or lose her job.
Her doctor referred her to the AIDS Law Project, where she spoke with Lowe and Executive Director Ronda B. Goldfein.
“She felt cornered,” Adrian said. “Everything was piling up against her.”
Ronda and Adrian reassured her that there was no legal obligation to disclose, and that she could take legal action if she was fired because of her HIV. With their client clear on her legal rights, the three strategized about how to maintain her right to privacy while avoiding a confrontation with her boss.
Clearly, her boss needed to be educated about how universal precautions prevent a risk of transmission in the workplace. They decided that message was better coming from a doctor, rather than getting an intimidating call from a lawyer. The woman asked her boss to contact her doctor, which he did. After learning about the facts about HIV, her boss said she did not have to inform her coworkers. Instead, he organized an all-staff training on workplace safety, including universal precautions. The training did not single out the woman or HIV in any way.
“We’re always happy to get a good outcome without subjecting the client to the trauma of litigation,” Ronda said. “Contrary to what you see on television, lawsuits aren’t fun for anyone.”
The 64-year-old man was losing weight at a dangerous rate, a consequence of his HIV, a diagnosis he received in 1992. He was often overwhelmed with malaise. Fatigue was a constant companion.
“It affected every area of his life,” said Adrian M. Lowe, a staff attorney at the AIDS Law Project.
His doctor hoped a liquid nutritional supplement would remedy the decline and wrote him a prescription for three cans a day. He took the prescription to the specialty pharmacy he used, assuming his insurance would cover it. He had Medicare and Medicaid. He had Medicare because of his work history, and Medicaid through the Medical Assistance for Worker’s with a Disability (MAWD) because he had a small part-time job. Then he got the bad news. His insurance refused to pay for it. His only income was Social Security Disability Insurance. There was no way he could pay for the supplement on his own.
“He was discouraged,” Adrian said. “He had thought it would be covered.”
After the man came to the AIDS Law Project in December 2015, Adrian set about figuring out what to do. He learned that Medicaid does in fact cover nutritional supplements, but requires prior authorization, which the client had not obtained. The medical need must be documented to obtain prior authorization, so Adrian worked with his client’s doctor and nutritionist to assemble all the necessary medical records, a lengthy process. Adrian was finally able to apply for prior authorization in May and in July the state Office of Medical Assistance Programs approved it.
“He was grateful that he finally got what his doctor had prescribed.” Adrian said. “No one should have to wait that long to get something as basic as nutritional supplements.”
It was on her first day in her new rented house, after the frenzy of moving in, that the woman noticed the horrendous smell.
“It was horrible,” she said. “It was turning my stomach.”
The woman had hoped her new home would bring some peace to her life after a period of instability. It wasn’t shaping up that way. The smell was so bad and pervasive that she said it triggered a panic attack and she had to go to the hospital. She never spent a single night in the house, instead seeking shelter with family.
As she later investigated the source of the smell, she went to the basement, which she had not been able to inspect before she moved in. She found more than a foot of water. She notified the landlord, who took almost a week to have the basement cleaned. By that point the woman decided she’d had enough and notified the landlord she just wanted her money back so she could find a new place. The landlord never responded, so she contacted the AIDS Law Project.
Despite repeated efforts over several months by Malissa L. Durham, an Equal Justice Works Fellow at the AIDS Law Project, the landlord never responded. While researching the case in landlord tenant court, Malissa saw that the landlord had filed an eviction notice against her client. The landlord knew she had never stayed at the house, but still posted the eviction notice and court date on the front door. With the woman not at the hearing to defend herself, the judge granted the eviction and back rent to the landlord.
Malissa was eventually able to get a new eviction hearing, where the judge reversed the original order. Then Malissa successfully sued on her client’s behalf in small claims court to get her security deposit back. The landlord didn’t pay within 30 days, as required by law, so the woman was able to collect double the judgment, about $1,900.
“The AIDS Law Project was the first place I called,” she said. “If I’d done it on my own, I may not have gotten anything back.”
A Montgomery County hospital has agreed to pay $25,000 to settle a claim brought by the AIDS Law Project of Pennsylvania on behalf of a woman who said she was denied medical treatment because she is HIV positive.
The woman alleged that in 2013 she was turned away from Mercy Suburban Hospital’s bariatric facility after she reported during the intake process that she has HIV.
On the recommendation of her primary care doctor, the woman was seeking bariatric surgery. After learning she had HIV, a doctor who had been scheduled to meet with her told a nurse to inform her he could not do the surgery because she was HIV positive, according to the Justice Department’s investigation.
The doctor never examined the woman or reviewed her past medical records.
The AIDS Law Project filed a complaint with the U.S. Department of Justice alleging that the hospital violated the Americans with Disabilities Act.
The department pursued the complaint and on Oct. 5 announced that the hospital had agreed to pay the woman $20,000 in damages as well as a $5,000 civil penalty to the United States. Mercy also agreed to implement a non-discrimination policy, advertise the policy and train employees and contractors to abide by it. Although Mercy settled the complaint, it denied liability.
AIDS Law Project Executive Director Ronda B. Goldfein and Staff Attorney Adrian M. Lowe represented the woman. Assistant United States Attorney Jacqueline C. Romero investigated the case.
The settlement agreement can be found here.
The man loved his work. His job was his identity.
At age 39, he was proud of the fact that he had worked steadily since he was 14. For those in his immediate circles, work was often intermittent and hard to come by. He was always “that guy who works.”
Furthermore, he believed his work at a residential facility for troubled youth was providing an invaluable service.
“He believed in work,” said Adrian M. Lowe, Esq., a staff attorney for the AIDS Law Project of Pennsylvania. “He liked helping young people get back on track.”
His life nose-dived the moment his employer found out he had HIV. First he was suspended. Then he was fired.
“They said, ‘We’re sorry to see you go, but state law says you can’t work here because you have an infectious disease,’” Adrian said.
“He kind of fell apart,” recalled Ronda B. Goldfein, Esq., executive director of the AIDS Law Project. “His work gave him meaning. It gave him context to his life. All of a sudden he feels he has no life and no future.”
The man knew about the AIDS Law Project from his social work, so gave us a call.
Unfortunately, it is a battle we have had to fight many times during the years. About 30 state licensing boards require workers to be free of infectious, contagious or communicable diseases. Some employers assumed that applied to HIV, which simply was not the case because it is not transmitted through casual contact in the workplace.
The AIDS Law Project led an initiative to clarify the law, and in 2011 the state issued new guidelines explicitly excluding diseases such as HIV.
By firing the man, the employer wound up on the wrong side of federal and state anti-discrimination law.
Part of our mission is to educate people, including employers, on all aspects of the law regarding HIV and AIDS. Our efforts appear to be bearing fruit.
When we contacted the employer’s lawyers, they quickly acknowledged that our client had been fired based on faulty advice about the law.
Our client, who had been out of work for about 26 weeks, got his job back in October, as well as back pay and compensatory damages.
And his identity and dignity were restored.
“He’s glad to be reclaiming who he was,” Ronda said. “He’s back on track.”
The 52-year-old woman was scheduled to move in March 1, but the apartment was full of trash and unlivable.
She finally moved in March 10, only to find a host of other problems. The apartment was infested with ants, roaches and bed bugs. There was mold in bathroom, the bathroom and kitchen sinks flooded and the toilet often backed up.
Those conditions would have been tough for anyone to tolerate, but the woman also had an anxiety disorder, which made her situation unbearable, said Jennifer Collins, Esq., the housing attorney for the AIDS Law Project.
“To have this chaos where she lived, it was incredibly stressful,” Jennifer said. “There were lots of tears.”
The woman had gone to a meeting of a tenant’s rights non-profit, where she was advised to write to the landlord and threaten to withhold the rent. When the problem weren’t fixed she started putting her rent in escrow, so she could prove later she intended to pay it.
That was the right thing to do, but by the time she came to the AIDS Law Project the situation had spiraled beyond her control and understanding.
The woman received a housing subsidy for people with AIDS that is administered by a local non-profit agency. The landlord told the agency the woman had stopped paying rent – without mentioning the letter she had sent. The agency, believing she had violated the terms of the subsidy, terminated it. . Without the subsidy, the woman whose sole income was $750 a month in Social Security, could not afford the apartment.
The landlord also filed an eviction action in Municipal Court demanding $3,293 in back rent.
Our housing paralegal Michael Gluk, supervised by Jennifer, took on the case.
“Every time she called she was very distressed,” Michael said. “She would often call in tears.”
Michael reassured her that he would help her through the complicated process.
Michael appealed the housing subsidy loss with the city’s Office of Housing and Community Development (OHCD).He worked with the non-profit agency to resolve the conflict. The OHCD ordered the agency to continue the subsidy until the appeal hearing.
Michael advised his client to contact the city’s Licenses and Inspections department and request that they visit the apartment to document the conditions. Armed with the L & I report, Jennifer successfully represented the client at the eviction hearing. The eviction was denied and the landlord agreed to fix all the problems with the apartment.
With the denial of the eviction complaint to bolster him, Michael successfully represented the woman at his first OHCD hearing. Her housing subsidy was restored, giving the woman a sense of security and a safe, clean home.
“It felt good to be able to help her,” Michael said.
Many migrants who come to the United States from Mexico are seeking economic opportunities and a better way of life.
Some have additional reasons, such as a man Yolanda French Lollis, Esq., the AIDS Law Project’s managing attorney, has represented periodically for about 15 years.
“He wanted a better life for himself as a gay man,” Yolanda said. “It was difficult being openly gay in Mexico.”
He came to this country in the 1990s on a tourist visa, eventually staying in a Pennsylvania city. One night in 1996 he was walking down the street when he was jumped by a stranger, dragged into a building and raped.
“He was traumatized and humiliated by the experience,” Yolanda said. “He had anxiety, despair, he couldn’t trust anybody.”
It got even worse.
After the violent assault he was diagnosed with HIV. Despite fearing homophobia in Mexico, he returned to his country because his tourist visa was expiring. Going back also put his health at risk. His doctor said the HIV treatment he was getting here was probably unavailable in Mexico.
“Borders determine a lot of things,” Yolanda said. “People on one side of the border get health care. People on the other side don’t.”
He was able to get another temporary visa in 2000. The AIDS Law Project helped him get that visa extended, but eventually he returned to Mexico as that visa was expiring.
Unable to get a new visa in Mexico, the man made the decision in 2005 to undertake the dangerous journey to cross the border into the US.
He came to us again in 2011, seeking to stay in the country with appropriate documentation. As he had been the victim of a rape in the US, Yolanda knew he could be eligible for a U Visa, a nonimmigrant visa for people who have been the victims of crime, suffered substantial physical or mental abuse and are willing to help law enforcement in the investigation of the crime.
Although the man met those criteria, he had another tough hurdle to clear.
Because he entered the US without permission, he was ineligible for the U visa without a waiver. Yolanda successfully argued that he deserved a waiver because of his personal circumstances and his many contributions to his community.
Although many undocumented immigrants live in the shadows, the man was immersed in community life. He was an activist, focusing on health care, civil rights and immigrant issues. Among other things, he had spoken to medical students about Latino cultural differences and worked with the local police on racial profiling issues.
“The list goes on and on.” Yolanda said. “It’s just incredible.”
Our case file for him is thick with letters of support from community members describing the contributions he has made.
In 2013, we were notified that our client was eligible for a U Visa, but that wasn’t the end of it. There is a limit on the number of U Visas that can be issued in a year and the cap had been reached for 2013.
Finally, in October he was granted his U Visa. In three years he can apply for a permanent resident visa, or green card.
“He is a great advocate for himself and other people,” Yolanda said. “For him, it’s all about health care.”
It had been a long and often painful journey for the woman who fled her abusive husband in the 1990s.
The final straw was when he cut her with a knife and threatened her baby.
Mother and child moved into a shelter, and then began rebuilding their lives. They overcame struggles to get health care and housing.
Now her 18-year-old son, on the brink of going to college, wanted to make a change in his own life. All these years he had carried his abusive father’s last name. Now he wanted to be rid of it. He wanted a new last name.
The AIDS Law Project had represented the family numerous times in the past, so the son turned to us for help.
At 18, it was easier for him to change his name than when he was a minor. For one, he didn’t need parental permission. He had no contact with his father and didn’t want any.
“He wanted peace of mind and closure,” said Malissa L. Durham, J.D., an Equal Justice Works Fellow, sponsored by the Norflet Progress Fund at the AIDS Law Project. “His legal name tied him to his father.”
Legally changing your name is a relatively simple procedure, but the circumstances of the case required additional precautions that Malissa and Staff Attorney Juan Baez, Esq. needed to address.
The trauma of domestic violence had created a fear that remained with the family.
“He didn’t want his father, or anyone in his father’s family, to find out where he lived,” Juan said.
Along with the name change, Juan and Malissa secured a waiver of publication of the decision and got the record sealed.
Not long after our client turned 18, he got his new name.
“Severing ties with his father was the best birthday present he could get,” Juan said.
A health care worker visited his home last year to perform wound care. During the visit the worker told his uncle to keep the children in the household away from him because he had HIV.
The warning about casual contact demonstrated a disturbing lack of accurate information about HIV transmission. It also clearly violated state and federal confidentiality laws.
The team of Staff Attorney Adrian Lowe and Executive Director Ronda Goldfein contacted the home health care company about the incident. Thankfully, the company accepted responsibility and agreed to pay our client $15,000. Equally important, the company agreed to implement HIV transmission and confidentiality training for its staff.
Both HIV and immigration law are extraordinarily complicated and ever evolving. The intersection of the two can be impossible for many people to comprehend. Way back in 2000, a woman who had moved to the Philadelphia area from Liberia with her four young children contacted us. They were allowed to enter the country in 1996 to be reunited with their husband and father, who had been granted political asylum.
When her husband became ill and died, the family’s future turned uncertain. Through the vagaries of immigration law, they were no longer eligible for asylum through him and had to apply on their own behalf.
Managing Attorney Yolanda French Lollis helped the mother and four children finally get asylum in 2006, which allowed them to apply for a green card.
The children were granted green cards, but the mother, who had HIV, faced numerous hurdles. Although an HIV waiver existed at the time, an applicant had to be healthy to get it and she was too sick to qualify.
Despite the obstacles, we continued to fight for the family. A combination of the mother’s improving health and changes in immigration law concerning HIV eventually allowed us to help her apply for a green card.
It was granted in December. Throughout the ordeal her children thrived in their new country. All four have graduated from college.
“She said, ‘Thank you for not giving up on me,’” Lollis said.
A client had been denied Supplemental Security Income, or SSI, because her local Social Security Administration office in rural Pennsylvania kept miscalculating her finances. Our lawyer went to a hearing before an administrative law judge, where he methodically did the math, explaining why the woman was entitled to SSI. The judge agreed, granting the woman back payments for the SSI she had been denied and allowed her to get new payments.
A client came to us with a whopping overpayment of $136,000 in Social Security disability payments; SSA said he shouldn’t have received any disability payments because he was “working” at the time. He received a modest stipend over several years while studying for a university degree. We argued the stipend wasn’t tied to any requirements, such as teaching, so it can’t be counted as work. Social Security agreed with her, significantly reducing the overpayment demand.
Two of our clients were in a Philadelphia hospital that offers psychiatric treatment and drug and alcohol rehabilitation. They discovered that their names were on a list of patients with HIV that was left in the open, violating their confidentiality. They soon became pariahs on their floor, so much so that one of the clients was shunned in a group hug at the end of a counseling session. We sued the hospital, eventually getting a financial settlement for each client. More importantly, the hospital was reminded that patients deserve the peace of mind that their private information will be protected, especially when there are enough challenges to seeking and getting help with mental health, substance abuse and HIV-related issues.
A client who lives in public housing came to us with an eviction notice after being unable to pay her rent as a result of illness – first her child’s, then hers. She was a couple of days away from a lockout and we knew we had to move fast. After an understanding of the woman’s circumstances, and a recalculating of the rent based on her lack of employment, the client and her two young children were able to remain in their home. At last contact, the woman was on the mend and ready to resume working.
A mentally-ill client had been refused Social Security disability, which provides income to people whose disability prevents them from working. We pieced together the facts necessary to mount an appeal. Among evidence that had been ignored, we discovered the man had attempted suicide several times and had mutilated parts of his body. A judge eventually ruled in favor of the client, even repeating much of our brief in his decision. Finally, the client was scheduled to start receiving the much-needed disability checks that had been wrongly denied to him.
A client who is an HIV-positive single mother of four was fired from her job at a snack-food manufacturer after her supervisors found out her status. After a 4-year-long legal struggle, the company and the national staffing agency that placed her in the job agreed to settle discrimination claims out of court. Just as importantly, the staffing agency also agreed to distribute posters to all the food-service businesses it places workers at, reminding them that federal and state law prohibits discrimination against workers with HIV, and that HIV/AIDS is not on the list of diseases that can be transmitted through food handling.
A client called us seeking permanency-planning help for her two boys, aged 8 and 10. Pennsylvania’s Standby Guardianship law, which the AIDS Law Project authored, assists terminally ill parents make arrangements for the future care of their children. We made an emergency visit to the hospital and later went to court, ensuring that the boys were placed with their great-uncle after her death, in accordance with the client’s wishes.
A client who was fighting cancer came to us after getting a foreclosure notice on the Philadelphia home he lives in with his partner, one he grew up in and inherited from his mother. We negotiated with the mortgage company, which agreed on terms the client was able to meet. With the stress of losing his home off his mind, he focused on his health – and is now cancer-free.
A client who is a low-wage worker and speaks little English learned he was entitled to a significant tax refund. Then he received word that there was a problem with his return. At one point, the IRS was even claiming he owed money. We were able to show that the client was entitled to the tax deductions he claimed and to the refund.
A client was in danger of being thrown out of his apartment because he had three “rescue” cats and his building had a one-pet policy. We learned the client suffers from HIV-related depression. We showed that the cats were actually therapeutic, making their presence a “reasonable accommodation” under disability laws.
A client’s food stamp benefits were cut nearly in half without clear explanation. She visited her local welfare office, which offered little help. We reviewed the case, finding that state welfare officials had failed to consider the client’s housing subsidy, which made it seem she had more money than she really did. Because of our work, her benefits were restored.
Launching Case Closed
In an effort to more fully explain our work, we will issue periodic reports on our activity.