Number 17 January 11, 1973

Number 17 January 11, 1973 Honorable Charles N. Collatos Commissioner of Veterans' Services Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Collatos: You have requested my opinion relative to applications received at local veterans' services offices requesting assistance for the payment of expenses incurred for the care, attendance, and instruction of mentally retarded children of veterans who are in special schools. Specifically, you ask the following question: "May the veterans' agent of a town make payment or may the Commissioner of Veterans' Services, acting under the provisions of Chapter 115 [of the General Laws], authorize payment by a veterans' agent of such sums as are necessary to provide such special care and instruction in a private school or any other place where such care and instruction are furnished?" Apart from any constitutional questions that arise by implication from your letter, it is my opinion that you may not provide the assistance re- quested except under the circumstances outlined in the last paragraph of this opinion. A veteran is entitled to receive "veterans' benefits" in " . . . [o]nIy such amounts ... as [are] necessary to afford him sufficient relief or support . . ." G. L. c. 115, § 5, as amended by St. 1968, c. 402. It is axiomatic that a veteran be in need of "relief or support" before he is eligible to receive "veterans' benefits." In fact, a veteran "... who is able to support himself or who is in receipt of income from any source sufficient for his support . . ." is not eligible to receive "veterans' bene- fits." IhicL It follows that a veteran is not in need of "relief or support" when the relief requested is available to him from another source other than public welfare.* A review of the statutes relating to education reveals that appropriate relief may be available from other sources. General Laws, c. 71, § 46 (as amended by St. 1968, c. 297) provides that every town and regional school district having five or more mentally retarded children is required to establish special classes for educable and trainable mentally retarded I he piiipovc ol \elcr.m\' henellls is to panicle veler^ins with .ilil ^ind .issisi.cnce thioiiyh ,i iTiediuni other th.in public welfiiie. O/K ^m. Ccn.. Oct. 25. I94S. p. 43. P.O. 12 73 children. General Laws, c. 76. § 12 provides that it" a child resides in a town that has not established such special classes, he may attend special classes in another public school at the expense of his town. The availability of special classes for the care and instruction of men- tally retarded children in the public schools and the attendant statutory authorization for transportation expenses to such classes appears to provide relief to veterans from a source other than veterans' benefits. Accordingly, it is my opinion that the statutory test that veterans be in need of "relief or support" is not met where classes in public schools are available to the children of veterans. However. I am advised that the statutory authorization for public school classes is not fully implemented in some cases, either from a lack of appropriations or for other reasons. In addition, it appears that public instruction, when offered, may not be on a par with that available from private schools. In those cases, it is my opinion that veterans* benefits may be paid for private school care and instruction where it can be dem- onstrated either (1) that public classes are not available to the veteran's child or (2) that the public care and instruction is inferior to that offered on a private basis and the child requires the higher level of care and in- struction. Such determinations are questions of fact and should be made by the local veteran's agent of the city or town involved. Such a con- struction of the statute, in my view, fully implements the public policy of this Commonwealth that mentally retarded or emotionally disturbed children be afforded the best possible care and instruction. Verv truly yours. ROBERT H. QUINN Attorney (iciwrcil