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Know How to Respond When Your HIV Claim Is Chosen for Review

Protecting Your Benefits

February 2000

Under Social Security regulations, persons who are approved for Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) are subject to a Continuing Disability Review (CDR) every three years, to determine if their condition still is disabling and still expected to be permanent. Below are some guidelines to protect your benefits.


Changes in Social Security Law

In September 1993, Social Security Ruling (SSR) 93-2p was published. This policy interpretation, designed to assist the Administrative Law Judges and others in their evaluation of benefits applications, clarified the duration element of the disability test and became effective on October 13, 1993.

Before an applicant can qualify for SSDI and/or SSI benefits, the applicant must prove that:

  • He/she is not working, or doing any "substantial gainful activity" that is the equivalent of work.

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  • He/she has a severe medical impairment.

  • The impairment meets or equals one of the disability listings, which is in the Code of Federal Regulations, and is expected to last 12 months or more.

  • The impairment prevents the applicant from returning to his/her former work.

  • The impairment prevents the applicant from doing any other kind of work in the U.S.

Under SSR 93-2p, any applicant who suffers from an impairment included under the HIV listings and who has submitted medical records to SSA (which document that impairment and its severity), does not have to prove that the impairment is expected to last 12 months or more. Under SSR 93-2p, the duration element has been eliminated with regard to HIV and AIDS cases.

In November 1997, the Social Security Administration (SSA) changed its procedures manual (also known as POMS) to screen out certain cases from Continuing Disability Review (CDR). The local SSA offices were given permission to screen out "HIV infection" cases, which had been approved 1991 to the present.


What the Changes in the Law Mean to You

Technically, HIV and AIDS are still considered permanent disabilities -- until there is an effective cure.

If HIV and AIDS are permanent disabilities, it makes no sense to flag such cases for CDRs. By the SSA's own law and procedure, HIV and AIDS cases are supposed to be exempt from these reviews.

It has been our experience, however, that people receiving SSDI and/or SSI based on an HIV or AIDS disability still may receive a CDR notice.

These notices cannot be ignored! If you receive a CDR notice, contact AIDS Project Los Angeles' Benefits Department or AIDS Service Center immediately. You may only have 10 calendar days to file a form at your local SSA office to continue receiving disability benefits until the CDR matter is resolved.

Precisely because HIV and AIDS are still considered terminal illnesses, it may be easy to prove that you remain disabled and that, therefore, you still are entitled to disability benefits; but if you do not respond to the CDR notice within the 10-day deadline, your benefits could be cut off!


Disability Not Based on HIV

Sometimes, the applicant's claim for benefits is approved -- but the disability determination is not based on HIV or AIDS. It may be based on another medical condition, such as depression, hepatitis, anemia, diabetes, heart disease, etc. Check your Notice of Decision carefully and confirm on what basis your claim for disability benefits was approved.

If your disability application was approved for a non-HIV or AIDS condition and you have received a CDR notice, it is possible to submit evidence of your current HIV or AIDS status, as well as evidence of any other ongoing medical condition(s), during the CDR. The APLA Benefits Department and AIDS Service Center can assist you with submission of medical (or any other relevant) evidence during a Continuing Disability Review meeting.


The CDR is Denied

If SSA decides that your disability is no longer permanent -- such that you now are expected to return to work -- don't panic! You have the right to appeal that CDR decision.

If you appeal the CDR decision, you will be entitled to a hearing before an Administrative Law Judge. HALSA can provide legal representation (at no cost to you) at such hearings.

If you have received a denial of benefits, after a Continuing Disability Review meeting, or if you've received a notice of CDR, contact APLA's Benefits Department at (323) 993-1444, (323) 993-1409 or (323) 993-1475, the AIDS Service Center at (626) 441-8495, or HALSA's intake line at (323) 993-1640 as soon as possible.

Leslie Kline-Capelle is a benefits attorney for the HIV/AIDS Legal Services Alliance.


This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).


  
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This article was provided by AIDS Project Los Angeles. It is a part of the publication Positive Living.
 
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