The Bragdon v. Abbott decision by the U.S. Supreme Court in June has again raised the issue of just what is "disability."
The terms "disabled" and "disability" are terms of art when used in statutes and in benefit programs, whether private or public. Does the June 25 court decision affect your ability to collect Social Security or other benefits? It does not.
In this important case, the court decided that a person with HIV infection -- regardless of whether he or she is symptomatic or asymptomatic -- qualifies for protection under the Americans with Disabilities Act. The ruling applies strictly to that particular law and has no bearing on any disability determinations under Social Security, State Disability or other laws and programs.
The suit was brought by a woman who was refused dental treatment by a dentist because of her HIV status. The dentist insisted that the only way he would treat her would be if she were willing to pay the additional cost of having the routine dental procedure done in the operating room of a hospital.
The woman maintained that this was discrimination, and prohibited under the ADA. The dentist maintained that because she was HIV-asymptomatic, she was not "disabled" under the ADA and therefore not protected by it.
To qualify for protection under the ADA, one must have a physical or mental impairment that "substantially limits one or more...major life activities." The Supreme Court ruled that, from the very moment of infection, HIV infection is an impairment that qualifies someone for protection under ADA. It substantially limits the ability to reproduce because of the risk of infection to the partner and, for women, the danger of infecting the child perinatally.
According to Justice Anthony Kennedy, writing for the court, reproduction is a major life activity because "Reproduction and the sexual dynamics surrounding it are central to the life process itself." It's interesting to note that the court was careful to tie sexual activity as a major life activity directly to reproduction.
Lower courts had disputed whether HIV-asymptomatic individuals were protected under ADA. Now with the Supreme Court ruling, all are protected regardless of the jurisdiction.
It must be emphasized, however, that important as this decision is for every U.S. resident with HIV, it has no impact on anything outside the Americans with Disabilities Act. Each act, each law, and each benefit has its own definition of disability, and most of them are concerned with total disability. The Bragdon ruling does not mean that people with asymptomatic HIV are disabled under federal, state or private disability benefits programs.
This is a good opportunity to review some of the major benefit plans' definitions.
State Disability defines (total) disability as "any illness or injury, either physical or mental, that prevents you from doing your regular or customary work during your regularly scheduled hours." Given the streamlined nature of the State Disability claims process, this has generally meant that a physician's certification of symptoms and disability gets a quick claims approval.
At the other extreme is Social Security. Their definition of (total) disability is "you are unable to do any kind of 'substantial' work for which you are suited" and the disability is expected to last at least one year or the condition is so severe that you are not expected to live.
In the past, Social Security has streamlined their lengthy claim process for persons with HIV by processing them quicker and by using a history of infections to qualify someone for benefits. A verified diagnosis of a major opportunistic infection such as pneumocystis carinii pneumonia, toxoplasmosis, cryptococcosis, etc. would generate a quick approval whether or not the individual was currently manifesting symptoms. While Social Security has not formally changed how they process HIV claims, there are indications that the "automatic" infections are no longer always bringing an automatic approval.
Private disability policies usually use two definitions of total disability in their contracts. While each contract may vary slightly, usually they define total disability as "the inability to perform the material duties of your occupation," a definition that is similar to California's State Disability plan. After a person has collected benefits for two years the definition shifts to be the inability to perform the material duties of "any occupation for which you are reasonably suited by education, training, or experience," which makes meeting the definition a little harder.
A good example of the difference between the two definitions would be a surgeon with arthritis in the hands. That would make the surgeon totally disabled for the first two years but not disabled under the later definition since he or she could teach surgery.
Unfortunately, there is no standard meaning for the terms "disabled" or "total disability." When using the terms in relation to the various public and private benefits programs, the ADA, the Rehabilitation Act, the Fair Housing Amendments Act, and other similar laws, it is important to remember that each will attach its own meaning to the term and that meaning can vary dramatically from plan to plan.