March 4, 1980

Mr. John E. Madigan 
Secretary 
Department of Vocational Rehabilitation 
Richard F. Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 80-13

Expenditure of State Funds to Assist Handicapped Individuals to Secure and/or Maintain Employment

Dear Mr. Madigan:

You have requested an official opinion from this office based on the  following factual situation:

FACTS: 

A severely handicapped client of your department has presented the need for the purchase of a specially equipped vehicle for use as transportation to and from his place of work.  Prior to purchase of the specially equipped vehicle the client, who is confined to a wheelchair, was regularly transferred bodily from his wheelchair into a vehicle for travel purposes and then retransferred to his wheelchair.  The client recently required hospitalization for treatment of skin breakdown caused by transfers from the wheelchair to the automobile and back.  A state-incurred medical bill of over one hundred fifty thousand dollars ($150,000) resulted.  The client's doctor advises that the transfers from the wheelchair to a vehicle and back may not continue. Accordingly, the client, who has a good employment record, would be unable to continue his employment without state-assisted purchase of a specially equipped vehicle.

Based upon the above facts, you have asked the following question:

QUESTION: 

Does the Department of Vocational Rehabilitation, in administering social security trust fund money, have the authority to purchase a specially equipped vehicle for a severely handicapped client whose continued employment depends upon access to such equipment and where the client is financially unable to acquire the equipment?

SDCL 28-9-23 provides: 

Terms used in this chapter, unless the context plainly requires otherwise, mean: 

     . . . 

(10)  'Vocational rehabilitation' and 'vocational rehabilitation services,' any services, provided directly or through public or private instrumentalities, found by the director to be necessary to compensate a disabled individual for his employment handicap, and to enable him to engage in a remunerative occupation including, but not limited to, medical and vocational diagnosis, vocational guidance, counseling and placement, rehabilitation training, physical restoration, transportation, occupational licenses, customary occupational tools and equipment, maintenance, and training books and materials.  (Emphasis supplied).

SDCL 28-9-32 provides: 

Except as otherwise provided by law or specified in an agreement with the federal government, the following rehabilitation services shall be provided  without cost to disabled individuals who need financial assistance to obtain the services: 

(1)  Physical restorations; 

(2)  Transportation, for any purpose except determining the individual's eligibility for vocational rehabilitation services and the nature and extent of the services necessary;

SDCL 28-9-40 provides: 

The division shall make agreements or plans to cooperate with the United States in carrying out the purposes of any federal statutes pertaining to vocational rehabilitation.  The division may adopt such methods of administration as are found by the United States to be necessary for the proper and efficient operation of such agreements or plans.  The division may comply with such conditions as may be necessary to secure the full benefits of such federal statutes.

The federal government's Rehabilitation Services Manual, § MT #63 (February, 1978) addressed the transportation problems of severely handicapped individuals and clearly indicates that in proper circumstances the outright purchase of a specially equipped vehicle for a severely handicapped client is encouraged when that is the most fiscally responsible method to pursue.  Therefore, in answer to your question when the Division has made the determination required by SDCL 28-9-30 that a particular handicapped individual needs a particular  service or product in order to maintain or achieve employability there appears to be no restriction upon the Division's discretion in determining what service or product is required by the client.  The answer to your question is yes assuming you have appropriated funds available for this purpose.

Respectfully submitted,

Mark V. Meierhenry
Attorney General