Texas Rehabilitation Commission, DAB No. 727 (1986)

GAB Decision 727

March 18, 1986

Texas Rehabilitation Commission; 
Docket No. 85-183 through 85-187; 85-189 through 85-196 and 85-227;  85-234 through 85-236
Garrett, Donald F.; Tietz, Alexander G.  Settle, Norval D.

The Texas Rehabilitation Commission (State) appealed decisions by the
Social Security Administration (Agency, SSA) denying reimbursement for
the cost of vocational rehabilitation (VR) services provided by the
State to 17 individuals.  The State claimed reimbursement under section
1615 of the Social Security Act (Act), which authorizes the Secretary to
pay the states from title XVI funds for the successful rehabilitation of
blind or disabled individuals receiving Supplemental Security Income
(SSI) benefits under that title.  All of the appeals involve the issue
whether an individual was "receiving benefits" within the meaning of
section 1615--(1) for months in which the individual did not receive
cash payments but remained on the SSA rolls in a nonpayment status or
(2) for months with respect to which SSA retroactively determined that
cash payments were improperly made.  The parties agreed that the cases
should be consolidated for the Board's consideration of the legal issue
and that any factual development of the cases would be stayed until
after the legal issue was decided by the Board. SeeBoard's letter to
parties dated December 17, 1985.  As discussed below, we conclude that
an individual was not "receiving benefits" for purposes of reimbursement
for VR services provided in any month unless the individual properly
received cash payments under the SSI program during that month.  In view
of this conclusion, no further development of the record in these cases
is necessary, and we uphold the Agency's determination denying
reimbursement for the cost of VR services provided to the 17 individuals
in question.

Statutory and Regulatory Framework

The Vocational Rehabilitation Act of 1943 (and later, the Rehabilitation
Act of 1973) authorized federal financial participation in the cost of
vocational rehabilitation services provided by dthe states pursuant to a
state plan.  In 1972, the SSI program was established, providing for the
payment of benefits to aged, blind, or disabled individuals determined
to be eligible on the basis of(2) income and resources.  (Section 301,
Pub. L. 92-603) Section 1615 of the Social Security Act, as amended by
Pub. L. 92-603, required the Secretary to refer to the state agency
administering the state plan for vocational rehabilitation services any
blind or disabled individual under age 65 who "is receiving benefits (or
with respect to whom benefits are paid) under this title." The section
further authorized the Secretary to pay title XVI funds to the state
agency for costs incurred in the provision of rehabilitation services to
individuals referred under that section.  Regulations specifically
implementing section 1615 were published in 1974, appearing with the
regulations governing the state vocational rehabilitation services
program under the Rehabilitation Act.  (39 Fed. Reg. 25436 (July 10,
1974)) The regulations for the SSI program, also published in 1974, (39
Fed. Reg.  28625 (August 9, 1974)), did not directly address the use of
title XVI funds to cover the cost of VR services to SSI recipients.

In 1981, section 1615 of the Act was amended to limit payment from title
XVI funds for VR services to cases of "successful" rehabilitation.
(Section 2344, Pub. L. 97-35) The section now provides in pertinent part
that:

   (a) In the case of any blind or disabled individual who--

   (1) has not attained age 65, and

   (2) is receiving benefits (or with respect to whom benefits are paid)
under this title,

   the Secretary shall make provision for referral of such individual to
the appropriate State agency administering the State plan for vocational
rehabilitation services approved under the Vocational Rehabilitation
Act, . . . and . . . for a review not less often than quarterly of such
individual's blindness or disability and his need for and utilization of
the services made available to him under such plan.

   * * * *

   (d) The Secretary is authorized to reimburse the State agency
administering or supervising the administration of a State plan for
vocational rehabilitation services approved under Vocational
Rehabilitation Act for the costs incurred under such plan in the
provision of rehabilitation services to individuals who are referred for
such services pursuant to subsection (a) if such services result in
their performance of substantial gainful activity which lasts for a
continuous period of nine months. . . .(3)

The regulations implementing this amendment were published in 1983,
appearing as part of the SSI program regulations.  (48 Fed. Reg. 6286
(February 10, 1983)) These regulations were published after the VR
services were provided in at least some of the cases in question. /1/
Subsequently, the regulations implementing section 1615 as orginally
enacted were removed from the Code of Federal Regulations as obsolete
(50 Fed. Reg. 38628 (September 23, 1985)), and by agreement of the
parties have no application to the cases letter dated February 18, 1986)
The 1983 regulations provide, in pertinent part, that:

   (a) To be payable, the services must have been provided:

   * * *

   (2) During months the individual is eligible for SSI payments. . . .

20 CFR 416.2213.  Section 416.2203 of 20 CFR states:

   "Eligible" means meet all the requirements for supplemental security
income benefits under section 1614 (a)(2), 1614(a)(3) or 1619(a) of the
Act and is receiving SSI payments.


(The citation to sections 1614(a)(2), 1614(a)(3), and 1619(a) of the
Act, which define when an individual shall be considered blind or
disabled, apparently indicates that individuals eligible for SSI on the
basis of age rather than blindness or disability are not eligible for
referral for VR services under section 1615.)

Issues Presented

The State's claims for reimbursement for VR services provided in each of
the 17 cases in question here were denied on the ground that the
individuals were not eligible for SSI benefits during the months in
which the services were provided.  (Although the SSA determinations did
not specify that the cases involved SSI payments rather than disability
insurance payments under title II of the Act--which also provides a
basis for reimbursement for the cost of VR services--the parties
indicatt the cases involved ponly SSI.  (Board's letter to parties dated
February 4, 1986)) Specifically, the Agency found that, in each, the
individual's eligibility(4) for SSI ended prior to the months in which
the services for which the State claimed reimbursement were provided.

The State, however, asserted that in some cases the individuals in fact
received SSI payments in the months in question, and that in other
cases, the individuals' eligibility for SSI payments had not been
terminated even though they were not eligible to receive, and did not in
fact receive, SSI payments during the months in question.  In the former
situation, SSA retroactively ruled that the individuals should not have
received the SSI payments. /2/ The State did not dispute SSA's
retroactive determination of ineligibility, but argued that the receipt
of payments, even where the payments were improperly made, provided a
basis for reimbursement of the cost of VR services.  The latter
situation occurred because the SSI regulations permit an individual who
was previously determined eligible for SSI but who no longer meets all
eligibility requirements to remain on the SSA rolls in "nonpayment
status" for a period of twelve months, at which time eligibility for
payment is terminated if eligibility has not been reestablished.  20 CFR
416.1335.  This "suspension" as opposed to "termination" of eligibility
permits payments to the individual to be resumed without the filing of a
new application if he or she establishes within the twelve-month period
that all requirements for eligibility are met.  20 CFR 416.1321(b).
Thus, in the case of some of the individuals in question, VR services
were provided while the individual's eligibility for SSI payments had
been suspended but not terminated.  The question before us is whether
individuals in either of the two situations described were "receiving
benefits" within the meaning of section 1615 of the Act.


Analysis

I.  Individuals Whose Eligibility Was Suspended

There is no merit in the State's argument that an individual whose
eligibility for SSI was suspended but not terminated during the months
in which services were provided was "receiving benefits" within the
meaning of section 1615.  The section refers to an individual who "is
receiving benefits (or with respect to whom benefits are paid) under
this title. . . ." The parenthetical expression alludes to the situation
where, pursuant to section(5) 1631(a)(2) of the Act, someone other than
the eligible individual (a "representative payee") is designated to
receive benefits on his behalf.  The statute is clear that, in that
situation, "benefits" are cash payments, since it states that benefits
are "paid." Inasmuch as a representative payee receives, on behalf of
the eligible individual, the same benefits as an eligible individual
would otherwise receive directly, it is clear that the "benefits"
referred to immediately preceding the parenthetical expression are also
cash payments.  The term "benefit" is, moreover, used consistently
throughout title XVI to mean cash payment.  Section 1611(b)(1) is
preceded by the caption "Amounts of Benefits," which in turn refers to a
footnote showing specific dollar amounts payable.  Section 1631 is
preceded by the caption "Payment of Benefits," and the section itself
addresses, among other things, the frequency at which benefits "shall be
paid." Thus, the statute is clear on its face that an individual is
"receiving benefits" only if he is receiving SSI payments.  The basic
SSI program regulations applicable during the period in question here
are also clear on this point, since they specifically define the term
"benefits" as "any payments made under the SSI program." 20 CFR 416.302.

The State acknowledged that an individual must be "receiving benefits"
at the time the VR services are provided. /3/ The State argued, however,
that an individual was still "receiving(6) benefits" if his or her
eligibility for benefits had been suspended since an individual in a
"nonpayment status" remains eligible for SSI.  We disagree.  The SSI
regulations are clear that a suspension as well as a termination is
based on a determination that the individual is no longer eligible for
SSI payments.  The use of suspensions merely recognizes the practical
realities of the SSI program, where an individual's status (i.e.,
eligible or non-eligible) can easily change from month to month as his
income and resources--the primary determinants of eligibility--
fluctuate.  Thus, suspension is merely a procedural device which
obviates the necessity for a new application each time the individual
reestablishes his or her eligibility.  It is not substantively different
from termination, and in neither case is the individual eligible for
SSI.


The State also argued that individuals in a "nonpayment status" continue
to receive benefits since they remain on the VR rolls by virtue of the
referral mandated by section 1615, and may remain eligible for Medicaid
(where eligibility was initially predicated on the receipt of SSI
payments) under circumstances described in the SSI regulations at 20 CFR
416.266.  While these may be considered benefits in a broad sense,
however, it is clear from the discussion above that the term "benefits"
as used in the Act has a narrower meaning.  Moreover, eligibility for
Medicaid is not a benefit under title XVI; Medicaid is a completely
separate program under title XIX of the Act.  Similarly, since
eligibility for VR services is not established by title XVI and since
funding is available from other sources for VR services that do not
qualify for reimbursement under title XVI, the receipt of such services
pursuant to a title XVI referral does not constitute a benefit under
that title.  (7)

The State argued in addition that benefits other than SSI payments were
available under section 1631(h) of the Act, which provides for the
payment of travel expenses to individuals in connection with disability
determinations under title XVI.  However, the State did not allege that
any such payments were received by the individuals in question for the
months at issue here.

The State also cited as a benefit State supplementary payments available
under section 1616 to individuals receiving SSI payments or to
individuals who would but for their income be eligible for such
payments.  The SSI regulations at 20 CFR 416.302 include State
supplementary payments in the definition of "benefits";  however, as in
the case of travel payments, the State did not allege that the
individuals in question here were receiving these benefits.

The State also characterized as benefits under the Act the provision for
continuation of SSI payments for two months after the cessation of
blindness or disability (section 1631(a)(5)), and the provision for
continuation of SSI payments for individuals no longer disabled until
completion of their VR program (section 1631(a)(6)).  However, since the
benefit conferred by these provisions is the SSI payment itself, this
fails to advance the State's position that there were title XVI benefits
other than SSI payments.  (The State did not argue that any of the
individuals in question should have received SSI payments under these
provisions.)

The State also cited the provision for cost-of-living adjustments in the
amount of SSI payments (section 1617) as conferring a benefits under the
Act.  However, the provision merely authorizes increases in the amount
of SSI payments and does not confer a separate benefit.

Finally, the State argued that a dichotomy between SSI cash payments and
other benefits under title XVI was clear from the fact that the statute
and regulations permitted cash payments to be made to a representative
payee although the eligible individual was considered to be the
beneficiary.  This fails to demonstrate the existence of benefits other
than SSI payments, however, since the eligible individual is considered
the beneficiary by virtue of the receipt on his behalf of the SSI
payments.

The Agency cited in support of its determination the regulations
implementing the 1981 amendment to section 1615.  These regulations
specifically require that VR services have been provided during months
the individual meets all the requirements for SSI and is(8) receiving
SSI payments.  (20 CFR 416.2213(a)(2) and 416.2203) While these
regulations clearly support the Agency's position, they do not apply to
at least some of the cases in question since, as previously noted, the
regulations were not published when the services were provided.  As
discussed above, however, the statutory language alone is sufficiently
clear to support the denial of reimbursement in those cases with respect
to which the regulations do not apply.

II.  Individuals Who Received Payments for Which They Were Ineligible

The State's argument that reimbursement is available for VR services
provided during months that an individual received payments for which he
was later determined ineligible is also without merit.  The State argued
that the payment "was a benefit when paid" and that the later
determination of ineligibility was irrelevant because "it was a matter
between the SSA and its recipients." (State's reply brief, p. 4)
However, the only sense in which a benefit was received in this
situation is that the individual received an SSI check to which he or
she was not entitled.  The more reasonable interpretation of the statute
is that the individual must receive benefits which he or she was
eligible to receive under the SSI program.  Moreover, as previously
noted, "benefits" are defined by the SSI regulations as "payments made
under the SSI program." A payment that is made to an individual who is
in fact ineligible for that payment is not made "under the SSI program"
in accordance with this regulation.  Thus, there is in this situation no
basis for the payment of VR costs since payment is predicated on the
receipt of SSI benefits.  We see no basis, moreover, for the State's
position that the later determination that the individual was ineligible
for the payments is a matter of privity between SSA and the individual.
If the issuance of an SSI payment in the first instance is an
appropriate subject of inquiry for purposes of determining whether the
cost of VR services is reimbursable, then the later determination that
the payment was not properly made is appropriately taken into
consideration in determining whether the cost of VR services may be
reimbursed.

It is arguable, however, that since neither the statute nor the
regulation discussed above expressly require that the individual be
actually eligible for the SSI payments received, it is reasonable to
read the statute without implying this requirement.  Unlike the
situation in I. above, the State here had no way of knowing at the time
that it provided the VR services that the individual was not in fact
eligible for the SSI payments.  The determination of eligibility was
made by SSA, possibly based on(9) erroneous information provided by the
recipient or possibly based on its own error in the face of accurate
information.  Since SSA administers the SSI program, it might be argued,
SSA should bear the cost of VR services which the State provided on the
basis of that erroneous determination.

However, the State never alleged that it relied on the SSA determination
of eligibility in initiating or continuing VR services, nor is it likely
that this was the case.  A referral of an SSI recipient by the Secretary
to the State VR agency does not obligate the State to provide VR
services to that individual.  Once an individual is referred to the
State, the State must make a determination whether the individual meets
basic eligibility requirements for VR services.  34 CFR 361.31.  Even if
the individual meets all requirements for VR services, such services may
not be provided depending on the order established in the State's VR
plan for selecting individuals to be provided VR services when those
services cannot be provided to all eligible individuals.  34 CFR 361.36.
/4/ Moreover, it is likely that the State might have provided VR
services to the individuals in question here even if they had not been
referred by the Secretary since referrals may be made by other sources
and since the individuals themselves might have applied for VR services.
See 34 CFR 361.20(a) and 361.30.  Thus, the referral by the Secretary is
merely one of several mechanisms for assuring that the State makes VR
services available to individuals who meet criteria established by the
State in its State VR plan.  The availability (or not) of title XVI
funding does not appear to affect the determination by the State to
provide VR services or to continue providing such services once the
State becomes aware of the individual's ineligibility for SSI.

(10)

As was the case in the situation described in I. above, the Agency
relied on the 1983 regulations implementing the 1981 amendment to
section 1615 (which may not be applicable to all of the cases in dispute
here) to support its determination.  These regulations expressly require
that the individual must be actually eligible for the SSI payments
received in order to provide a basis for reimbursement of the cost of VR
services provided to him or her.  Since we have found that this
requirement is implicit in the statute and that this reading of the
statute is supported by the definition of "benefits" in the basic SSI
regulations, we conclude that the Agency correctly denied the State's
claims for reimbursement in these cases regardless of whether the 1983
regulations applied.

Conclusion

For the foregoing reasons, we conclude that reimbursement for the cost
of VR services provided to individuals during months when their
eligibility for SSI was suspended or in which they received SSI payments
for which they were not eligible was properly denied.  Accordingly, we
uphold the Agency's determination in all 17 appeals.  /1/ Due to the
        lack of factual development in these cases, the record does not
show the dates services were provided in all cases.  /2/ We note that
        the SSI regulations provide that the Agency may under certain
circumstances waive recovery of an overpayment.  20 CFR 416.550.  Since
there is no indication in the record for the 17 cases at issue that a
waiver was requested, however, our decision does not consider this
situation.         /3/ The "receiving benefits" language of section 1615
appears only in the context of the requirement that the Secretary make
provision for referring any blind or disabled individual for VR
services.  Thus, the statute does not expressly require that an
individual continue to receive benefits during the time that he receives
VR services in order for the cost of those services to be reimbursable.
However, this is in our view the only reasonable reading of the statute.
If the State were permitted to rely solely on the referral from SSA of
individuals then eligible for SSI as a basis for claiming reimbursement
for the cost of VR services, there would be no limit on reimbursable
services, even where the individual's eligibility for SSI had been
terminated. Moreover, section 1631 (a)(5) of the Act provides for the
continuation of SSI payments to an individual who is no longer disabled
until the completion of the individual's VR program if certain criteria
are met. Since this reduces the likelihood that SSI payments will stop
while an individual is receiving VR services, it mitigates the apparent
harshness of the rule that reimbursement is not available for the cost
of VR services provided to an individual no longer receiving SSI
payments.  In addition, as noted previously, the 1981 amendment to
section 1615 made reimbursement available only where VR services are
successful, i.e., result in the performance of substantial gainful
activity which lasts for a continuous period of nine months.  The
intended effect of this provision was to pay only for those VR services
which resulted in the reduction or elimination of the individual's need
for SSI payments, by enabling hin to obtain gainful employment.  No such
savings would be realized where the individual was not receiving SSI
payments when the VR services were provided.         /4/ Section
361.124(b) in 34 CFR Subpart E provided that the order of selection for
services for any SSI recipient "shall be in accordance with the
recipient's readiness and potential for rehabilitation to productive
activity and without regard to any other order of selection set forth in
the State plan." As noted previously, however, both parties agreed that
Subpart E was not applicable during the periods in question in these
cases.