Untitled Texas Attorney General Opinion ( 1985 )

.
The Attorrwy General of Texas
December 2. 1985
JIM MAlTOX
Attorney General
Supreme Court BulldIn Mr. Vernon M. Arrell Opinion NO. JM-388
P. 0. Box 12546 Commissioner
Austin, TX. 76711.2546 Texas Rehabilitat:.cmCommission Re: Whether a client of the Texas
512/475~2501 118 E. Riverside Drive Rehabilitation Commissiou is in-
Telex 9101674-1367
Telecopier 5121475-0266
Austin, Texas 7f1704 eligible for benefits under the
Ainson-Hazelwood Act, section
54.203 of the Texas Education Code
714 Jackson, Suite 700
Dallas. TX. 75202.4508
Dear Mr. Arrell:
2141742-6944
You have requested an opinion on the following question:
4624eibertaAve.,suite160
E, Paso, TX. 79905.2793 Is a disabled Texan denied state educational
9151533.3464 benefita provided in Subsection (a) of the Einson-
RazelwoodLCollege Student Loan Act (section 54.203
fool Texas, Suite 700 of the Education Code) solely because of the
Houston, TX. 77002-3111 individual's status as a client of the Texas
7131223.5666 Rehabilitation cotmission under the federal
Rehabilitation Act of 1973. as amended?
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
The Hinson-Easelwood Act exempts certain veterans and their
608/747~5236 dependents from :?ayment of fees at public institutions of higher
education. Educ. Code $54.203. The exemption from payment of fees
does not apply, however, to persons who are eligible for certain types
4309 N. Tenth, Suite S
of federal aid:
McAllen. TX. 78501-1665
51216824547
The zxenption from fees provided for in Sub-
section ~:a)of this section does not apply to a
200 Main Plaza, Suite 400 person if at the time of his registration he is
San Antonio, TX. 76205-2797
512/225-4191
eligible for educational benefits under federal
legislation in effect at the time of his registra-
tion. .i person is covered by the exemptions if
An Equal OppOrtU!IitY/ his St-to benefits under federal legislation is
Affirmative Action EmplOver extinguished at the time of his registration.
(Emphasis added).
Educ. Code §54.20:(d).
You ask whether a veteran is ineligible for benefits under the
Hinson-Hazelwood ,kt if he is a client of the Texas Rehabilitation
Commission [hereinafter TRC]. Although the joint state-federal funds
available to TRC under the federal Rehabilitation Act of 1973 could
p. 1774
Mr. Vernon M. Arrell - Page 2 (JM-388) .
possibly be used to pay fes:sat an institution of higher education for
a client of TRC, we do 1101: think that clients of TRC are within the
scope of subsection (d) of section 54.203. Thus, in our opinion, a
veteran is not ineligible :forbenefits under the Hinsou-Hazelwood Act
simply because of his statr.8as a client of TRC.
TRC administers a joint state-federal vocational rehabilitation
program pursuant to the Rehabilitation Act of 1973 and its amendments.
29 U.S.C. 90701 through 75:L.. To be eligible to receive federal funds
under that act a state murlt submit a three-year plan to the federal
office that administers the act. 29 U.S.C. 0721. The plan must
contain the plans, policies, and methods to be
followed in carrylug out the State plan and in its
administration and superrrision, including a
description of the:method to be used to expand and
improve services to handicapped individuals with
the most severe handicaps and a description of the
method to be used to utilize existing rehabilita-
tion facilities to the maximum extent feasible;
and, in the event that vocational rehabilitation
services caonot tie:
provided to all eligible handi-
capped individuals who apply for such services,
show (1) the ordter to be followed in selecting
iudividuals to whom vocational rehabilitation
sewices will br, provided, and (2) the outcomes
and service goale,,and the time within which they
may be achieved, for the rehabilitation of such
individuals, whj.ch order of selection for the
provision of vomtional rehabilitation services
shall be determimrd on the basis of serving first
those individuals with the most severe handicaps
and shall be consistent with priorities in such
order of selectin so determiued, and outcme and
service goals fol:serving handicapped individuals,
established in regulations prescribed by the
Commissioner.
29 U.S.C. 1721(a)(5)(A).
The act also provides that a counselor together with the
handicapped person shall develop an "individualized written rehabili-
tation program" for each handicapped person eligible for vocational
rehabilitation services. :!9 U.S.C. 54721(a)(9), 722. The iudivi-
dualized program shall inckstde:
(1) a statemnt of long-range rehabilitation
goals for the individual and intermediate rehabi-
litation objectives related to the attainment of
such goals, (211 a stat-t of the specific
p. 1775
Mr. Vernon M. Arrell - Page 3 (JM-388)
vocational rehab,L:Litation
services to be provided,
(3) the projected date for the initiation and the
anticipated- duration of each such service, (4)
objective criter:Laand an evaluation procedure and
schedule for determining whether such objectives
and goals are be:Lngachieved, and (5) where appro-
priate, a detailed explanation of the availability
of a client assistance project established in such
area pursuant ':o section 732 of this title.
(Emphasis added).
29 U.S.C. 1722(b).
The set requires the state to provide to a client any of the
following services that are necessary to render the client employable:
(1) evaluati,m of rehabilitation potential,
including diagmstic and related services,
incidental to t,be determination of eligibility
for, and the nawre and scope of, services to be
provided, inch< lug, wherr appropriate, examiua-
tion by a physician skilled in the diagnosis and
treatuent of mental or emotional disorders, or by
a licensed psychologist in accordance with State
laws and regulations, or both;
(2) counseling, guidance, referral, and place-
ment services f'or handicapped individuals, ill-
eluding 'follow-up, follow-along, and other post-
employment servf'ces necessary to assist such
individuals to maintain their employment and
services designed to help handicapped individuals
secure needed services from other agencies, where
such SSKViCSS are not available under this
chapter;
(3) vocational and other training services for
handicapped iutiividuals, which shall include
personal and vclcational adjustment, books, and
other training materials, and services to the
families of suck. individuals as are necessary to
the adjustment or rehabilitation of such indivi-
duals:
Provided, that w training services in institu-
tions of higher Education shall be paid for with
funds under thisymbchapter unless maximum efforts
have been made -to secure grant assistance, in
whole or in par', from other sources to pay for
such training. . " . (Emphasis added).
p. 1776
Mr. Vernon M. Arrell - Page 4 (JM-388)
29 U.S.C. 1723. See 29 U.S.C. $721(a) (requiring the states to
provide the servlcecet out in section 723(l) through (3)).
In summary, once TRC accepts a handicapped person as a client,
individual rehabllitatiou goals are set for the client. TRC then
provides services or amists the client in obtaining services
necessary for the client to achieve those goals. Because training at
an institutiou of higher &ucation might be a necessary service for a
particular client, TRC could use its funds to pay fees at an institu-
tion of higher education. f:uchpayments, however, are a low-priority
use of TRC's funds. Inde,ed, the federal act directs TRC to make
"maximum efforts" to find other sources for payment of such fees. 29
U.S.C. $723(a)(3). Thus, <:ven if a client of TRC needed training at
an institution of higher education because of his individual rehabili-
tation plan, TRC would clearly have fulfilled its obligation to that
client if it assisted him ::nobtaining such training under some other
program. See Schornstein-v. New Jersey Division of Vocational
RehabilitatG, 519 F. Supp. 773 (D.N.J. 1981). sff'd, 688 F.2d 824
(3rd Cir. 1982) (regarding entitlenreut to services under the
Rehabilitation A& of 1973). -
We do not think that this possibility of payment of fees out of
joint state-federal funds is the type of "eligibility" for federal
educational benefits at which subsection (d) of the Hinson-Hazelwood
Act was directed. The oriSina1 language of that provision stated that
the exemption from the p,ayment of fees did not apply to persons
eligible for educational benefits
under Public Law No. 16, 78th Congress, or amend-
ments thereto, or under Public Law No. 346, 78th
Congress [popularly known as the 'G.I. Bill'], or
amendments thereto, or under any other Federal
legislation. . . .
Acts 1945, 49th Leg., ch. 338, at 553. The prksenr language of
section 54.203(d) comes frxn the nonsubstantive recodification of the
laws dealing with higher education. Acts 1971, 62nd Leg., ch. 1024,
at 3118. 3319. The two pic.cesof federal legislation mentioned in the
original version of section 54.203(d) both gave certain persons an
absolute right to federal educational benefits. The purpose of
exempting persons entitlei to such educational benefits from the
benefits of the Hinson-Raselwood Act was to allow colleges to receive
tuition payments from the federal government. See Attorney General
Opinion V-688 (1948) (once a veteran has exhaustedG.1. benefits, he
is entitled to the benefits of the Hinson-Hazelwood Act). If the
students who were otherwis,aentitled to federal tuition payments were
exempt from such payments, the federal money would be lost to the
state of Texas.
p. 1777
Mr. Vernon M. Arrell - Page 5 (JM-388)
The federal funds the state of Texas receives under the
Rehabilitation Act of 1973 are not analogous to funds paid by the
federal gave-nt under tie G.I. Bill or similar federal legislation.
First, as we discussed abom, a client of TRC has no e to payment
of fees at an institution of higher education simply because of his
status as a client. Also, one purpose of the federal Rehabilitation
Act is to insure efficient allocation of resources. Therefore, the
act directs TRC to assist Its clients in ffnding benefits available
under other programs. See 29 U.S.C. 85721(8) and 723(a)(3). Finally,
federal money that TRCGld "save" by directing its clients to other
sources of rehabilitation services is not lost to the state of Texas.
Rather, TRC could use that money to provide other services to the same
client or to provide servi:es to other clients.
In our opinion the exemption set out in subsection (d) of the
Hinson-Hazelwood Act does not apply to someone simply because he is a
client of TRC.
SUMMARY
A person is not automatically ineligible for
benefits under i:he Hinson-Hazelwood Act, section
54.203 of the Teaas Education Code, because of his
status as a client of the Texas Rehabilitation
Commission.
Very truly your
J A, k
JIM HATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attornq General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 1778
Mr. Vernon M. Arrell - Page:6 (~~-388)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairmen
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1779