AIDS Legal Project casework

December 14, 2007Duke Law News

The following are brief descriptions of the types of legal work recently handled by Duke Law students enrolled in the AIDS Legal Project.

1. Estate Planning: Each student in the clinic had the opportunity to prepare wills and advance directives for their clients. For many clients, this planning involved setting up trusts for children or for persons who receive government benefits. Not only did each student learn substantive aspects of estate planning law, but by the end of the semester, most students were also able to comfortably discuss difficult end-of-life decisions with their clients.

2. Planning for Children: Several students used North Carolina’s standby guardianship statute to help their clients make future guardianship plans for their children. One student handled a guardianship hearing for a grandmother of children whose mother and father had both died of AIDS. Another student went to court to get a guardian appointed for children whose mother was sick and no longer able to care for them. Still other students represented HIV-infected parents who were able to care for their children, but who wanted to make contingency plans in case their health failed in the future. Not only did the hearings give the students the opportunity to handle a trial before the Clerk of Court, they also provided crucial stability to the children and families involved.

3. Discrimination and Breaches of Confidentiality: Unfortunately, HIV disease is still accompanied by significant stigma for many who are infected. Students of the AIDS Legal Project handled three discrimination cases this past semester — each involving the application of the federal Americans with Disabilities Act. One client sought a reasonable accommodation on her job so that she could continue working with the increasing symptoms of her illness. Another client was denied admission to massage therapy classes because of his HIV status, and a third client was denied access to employer-provided insurance benefits because of his health status. At least one student involved in these cases will continue to handle her case as an advanced student in the clinic next semester.

Because of the fear of discrimination, most of our clients keep their HIV status extremely confidential. We had two clients this past year who were faced with the situation of a medical provider discussing their HIV status in a voice loud enough for other patients and visitors to hear. The HIV status of a third client was revealed to members of her church by another church member who worked at the local hospital and had access to the client’s medical chart. In writing demand letters to the hospitals involved, students became well-versed in the federal HIPAA law and North Carolina’s HIV confidentiality statute. In one case, the physician involved wrote a letter of apology to the client and the hospital instituted particularized training for its staff regarding the sensitivity of HIV status.

4. Benefits Advocacy: Each student in the clinic this past semester worked on either a private long-term disability case (involving the application of the federal ERISA law) or a Social Security disability case (involving the application of federal Social Security law). When our disability clients reach us, they have usually been waiting for over a year for their disability to be approved. The failures of the Social Security disability system have been written about extensively — most recently in an article on the front page of The New York Times on December 10, 2007. Many of our clients are homeless or in very marginal living situations. When a student, through his or her efforts, is able to gain disability and Medicaid or Medicare for a client, it usually means that the client can rent a place to live, buy food, and get much-needed medical care. In order to reach this goal for the clients, students handle appeals for clients within the administrative framework set up by Social Security. They work with treating physicians to understand complex medical records, after which they summarize the providers’ opinions in affidavits. Students gather facts, interview witnesses who know the client, and draft affidavits and legal memos to the Administrative Law Judges. They may also work with a vocational expert. If the case is not approved beforehand, students represent claimants in hearings before an Administrative Law Judge.

5. Road Trips: Students in the clinic have the opportunity to take several “road trips” to AIDS services or case management agencies in North Carolina where they meet with clients to prepare their wills, advance directives, and guardianship designations in one day. This past semester, students in the clinic traveled with clinical faculty to Greensboro, Wilson, Wilmington, Winston-Salem, and Fayetteville to meet with clients. By the end of a road trip day, students have lost their anxiety, honed their interviewing skills and solidified the substantive knowledge related to the documents they are preparing.

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