Are HIV Claims Being Classified as TERI?

February 1, 2007

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Readers of the HIV listserv may have been following the recent discussions concerning classification of HIV cases as TERI cases.  What is a TERI case, you may ask?  TERI cases are, according to SSA, “cases with an indication of terminal illness” that should be handled in an “expeditious” manner.  See POMS DI 23020.045.  The euphemism is used to avoid the word “terminal” on the claims file or other documents that might be reviewed by the claimant. A Form-2200 (TERI flag) is placed in the file.

The POMS describe the procedures for identifying and processing TERI cases.  The claimant must have an impairment that is considered untreatable (“i.e., the impairment cannot be reversed and is expected to end in death”).  SSA includes in that category:

• Chronic dependence on a cardiopulmonary life-sustaining device.
• Awaiting a heart, heart/lung, lung, liver or bone marrow transplant (excludes kidney and corneal transplants).
• Chronic pulmonary or heart failure requiring continuous home oxygen and is unable to care for personal needs.
• A malignant disease (e.g., cancer), and is home confined or institutionalized, with inability to care for personal needs and unresponsive to therapy.
• Diabetic with one or more of the following: multiple amputations due to diabetic gangrene, recurrent cardiovascular events (infarction, failure), recurrent cerebrovascular events with neurological deficit.
• Chronic liver disease; e.g., cirrhosis, hepatitis, with history of massive gastrointestinal hemorrhage.
• Comatose for 30 days or more.
• Newborn with a lethal genetic or congenital defect.

This list, however, is not intended to be all-inclusive.

Advocates are often successful in having AIDS cases classified as TERI.  Various POMS sections involving determinations in HIV cases refer to possible TERI treatment.  See, e.g., DI 24595.001 and DI 11055.241.  Inquiries on the HIV listserv, however, raised the question of whether SSA has recently added to the requirements for proving TERI eligibility.   Rumor had it that SSA had changed its criteria, as reflected in SSA Publication No. 05-10019 (Social Security for People Living with AIDS), available at http://www.ssa.gov/pubs/10019.html.

That publication includes a section entitled “How can I help speed up my claim?” Vital information includes:

• The names and addresses of any doctors, hospitals or clinics you have been to for treatment;
• How HIV/AIDS has affected your daily activities, such as cleaning, shopping, cooking, taking the bus, etc.; and
• The kinds of jobs you have had during the past 15 years.

Additionally, SSA will ask the treating doctor to complete a form indicating how the HIV infection has affected the claimant.  See Forms SSA 4814 for adults or SSA 4815 for children.

HIV advocates have clarified, however, that nothing in this “policy” changes SSA’s requirements for characterizing HIV/AIDS cases as TERI.  In fact, the forms referred to in this section actually apply to “presumptive disability” determinations. 

And what, you may now ask, is “presumptive disability?”  According to DI 23535.001, a “claimant, including a child, applying for Supplemental Security Income (SSI) based on disability or blindness, may receive up to 6 months payments prior to the final determination of disability or blindness if he/she is determined to be presumptively disabled or blind and meets all other eligibility requirements.” Presumptive disability (PD) determinations can be made at any point in the process by either the Field Office or the Disability Determination Service (DDS - or Division of Disability Determinations in New York State). 

The Field Offices are authorized to make such determinations based on observation and/or allegations of fifteen specific categories of impairments.  See POMS DI 23535.005, which includes impairments such as total blindness, total deafness, amputation, stroke, and Down Syndrome, among others.  Symptomatic HIV disease must be confirmed by medical sources.

Presumptive benefits may also be awarded by the DDSs in other cases identified by SSA as impairments with “high PD potential,” including HIV disease.  See POMS DI 23535.010, which also warns adjudicators of the “low PD potential” in claims involving mental impairments, respiratory disease and back pain.  POMS §§ DI 23535.011 & 23535.012 set forth the responsibilities of the DDSs and field offices in PD cases involving claimants alleging Human Immunodeficiency Virus (HIV) infection. 

Formal determinations in PD cases are to be expedited “to avoid interruption of payments,” since payments will in fact “be interrupted” if a formal determination is not made within six month.  POMS DI 23535.015.  Note that payments based on PD/PB are not considered overpayments if it is later determined that the claimant is not disabled or blind unless the claim is disallowed due to ineligibility based on nondisability factors, or it is subsequently determined that the amount of payment was computed in error. POMS DI 23535.001.

So, a claimant with symptomatic HIV disease could potentially be classified as TERI and be awarded presumptive disability benefits. There do not appear to be any new policies limiting either determination.  Thus, a client who is HIV symptomatic and on medications should still be able to assert TERI rights. 

If you have heard otherwise, or have had problems with getting your client’s claim classified as TERI, please let us know.