CONSTRUING INITIATIVE 178 IN REGARD TO THE AID TO THE BLIND PROGRAM IN CONJUNCTION WITH PUBLIC LAW 734

CONSTRUING INITIATIVE 178 IN REGARD TO THE AID TO THE BLIND PROGRAM IN CONJUNCTION WITH PUBLIC LAW 734

The Department cannot exempt $50.00 from the blind program in Public Law 734 without amending current statutes.

The Department cannot accept determinations of blindness from optometrists as well as ophthalmologists.

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                                                                December 6, 1950

Honorable Roderic Olzendam, Director
Department of Social Security
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 398

Attention:  Mr. Jack Wedemeyer

Gentlemen:

            You have requested the opinion of this office on the following questions:

            1. Can the Department of Social Security, without any further change in the law, take advantage of the provisions of Public Law 734 which exempts $50.00 of income in the blind program.

            2. Can the Department accept examinations to determine blindness from optometrists as well as ophthalmologists.

            Our conclusions may be summarized as follows:

            1. The Department cannot exempt $50.00 from the blind program in Public Law 734 without amending current statutes.

            2. The Department cannot accept determinations of blindness from optometrists as well as ophthalmologists.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            Public Law 734 which amends the Federal Social Security Act and which was recently passed by Congress and signed by the President contains a provision which permits states to disregard up to $50.00 of earned income in determining the need of blind applicants or recipients.  That provision is permissive beginning October 1, 1950, and becomes mandatory on July 1, 1952.  The determination of need and consideration of income made to the blind program is found in subdivisions d, e and f of section s, Initiative 178, as follows:

            "(d) 'Income'‑-Net income in cash or kind available to an applicant or recipient, the receipt of which is regular and predictable enough that an applicant or recipient may rely upon it to contribute appreciably toward meeting his needs.

            "(e) 'Need'‑-The amount by which the requirements of an individual for himself and the dependent members of his family, as measured by the standards of the department, exceed all income and resources available to such individual in meeting such requirements.

            "(f) 'Resource'‑-Any asset, tangible or intangible, which can be applied toward meeting an applicant's or recipient's need, either directly or by conversion into money or its equivalent: PROVIDED, That the following described assets shall not be considered as a resource available to meet need during such time as they are used by an applicant or recipient in the manner and form as follows:

            "(1) The home as defined in Section 3-a hereof.

            "(2) Personal property and belongings as defined in Section 3-a hereof.

            "(3) Household furnishings and personal clothing used and useful to the person.

            "(4) An automobile or other form of conveyance if such conveyance is necessary to an applicant or recipient because of a lack of, or an inability  [[Orig. Op. Page 3]] to use, public transportation.  The department shall have the right by rule and regulations to fix a maximum value on such conveyance.

            "(5) Cash of not to exceed two hundred dollars for a single person or four hundred dollars for a family unit, or marketable securities of such value.

            "(6) Life insurance having a cash surrender value not in excess of five hundred dollars for a single person or one thousand dollars for a family unit: PROVIDED, That this maximum allowance shall be decreased by the amount of cash held by the person or the family unit under item 5 above."

            Under the provisions of Initiative 178, quoted above, it is indicated that in order to be eligible for blind assistance, an applicant must be in need and he is in need if he does not have income and resources sufficient to provide himself and dependents with food, clothing, etc.  It is clear that the statute contemplates that all resources and income should be taken into consideration by the department in determining not only the persons eligible for but also the amount of his grant.

            Section 1002 (a) (8) of the Federal Social Security Act, effective for the period beginning October 1, 1950, and ending on June 30, 1952, reads as follows:

            "'(8) provide that the State agency shall, in determining need, take into consideration any other income and resources of an individual claiming aid to the blind; except that the State agency may, in making such determination, disregard not to exceed $50 per month of earned income;'"

            Effective July 1, 1952, the above clause reads:

            "'(8) provide that the State agency shall, in determining need, take into consideration any other income and resources of the individual  [[Orig. Op. Page 4]] claiming aid to the blind; except that, in making such determination, the State agency shall disregard the first $50 per month of earned income;'"

            Accordingly, it is the opinion of this office that the more liberal provisions of Public Law 734 relating to the blind program cannot be taken advantage of by the Department of Social Security until some remedial legislation is enacted by the legislature.

            The provisions of Public Law 734 provide that between October 1, 1950, and June 30, 1952, it is optional with the state whether or not they permit examinations by optometrists as well as ophthalmologists to determine blindness.

            Section 3, Chapter 132, Laws of 1937, as amended by chapter 170, Laws of 1941, provides as follows:

            "In cooperation with the Department of Public Health, there shall be established and maintained such service as is needed looking toward the prevention of blindness, the purpose of which shall be to determine the causes of blindness, and to inaugurate and cooperate in any preventive measure for the State of Washington as may appear practicable.  Whenever a blind or partially blind person can be benefited by medical or surgical treatment for which he is unable to pay, arrangement shall be made for an examination, with the consent of the individual, and for the necessary treatment by an ophthalmologist or physician skilled in the diseases of the eye."

            In addition, section 9, chapter 132, Laws of 1937, as amended by chapter 170, Laws of 1941 (§ 10007-7 Rem. Supp.), provides in part as follows:

            "* * * The local administrative board shall fully establish the facts set forth in the application and any other facts it deems necessary.  The board shall grant or deny the application within thirty (30) days from the date of its filing.  An examination of the applicant's eyes by an ophthalmologist or physician skilled in the diseases of the eye shall be provided without charge to the applicant."

             [[Orig. Op. Page 5]]

            The provisions of that act have not been amended or repealed since 1941 and, accordingly, are still in effect.  Title X, Section 1002 (a) (1), which is the pertinent portion of Public Law 734, provides as follows:

            "* * * in determining whether an individual is blind, there shall be an examination by a physician skilled in the diseases of the eye orby an optometrist."  (Emphasis supplied).

            Inasmuch as the language of Washington statute was copied from the Federal Act, it must be assumed that the terms used in the two acts have the same meaning.  Clearly the addition of the word optometrist in the provision supra points out the fact that an optometrist was not covered within the scope of the term of "a physician skilled in the diseases of the eye" or it would have been unnecessary to amend the Federal Act in order to permit examinations by optometrists.  Apparently Congress and our own legislature took the view that an optometrist was not covered by the language "physicians skilled in diseases of the eye" and in view of that apparent construction, it is our opinion that our statute cannot be construed to permit examination by an optometrist unless the act is amended to specifically so provide.

            We suggest that this matter be called to the attention of the 1951 legislature for remedial legislation when it convenes in January.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General