K.K. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

 

(NOTE: The status of this decision is Published.)

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION



                             SUPERIOR COURT OF NEW JERSEY
                             APPELLATE DIVISION
                             DOCKET NO. A-5447-15T3


K.K.,
                                  APPROVED FOR PUBLICATION
     Petitioner-Appellant,
                                     February 14, 2018
v.                                  APPELLATE DIVISION

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES and
SOMERSET COUNTY BOARD OF
SOCIAL SERVICES,

     Respondents-Respondents.
______________________________


         Argued December 20, 2017 - Decided February 14, 2018

         Before Judges Fuentes, Koblitz and Manahan.

         On appeal from the Department of           Human
         Services, Docket No. 18100203741-01.

         Kevin Kovacs argued the cause for appellant
         (Law Offices of Kevin Kovacs, attorneys; Kevin
         Kovacs, on the brief).

         Jacqueline R. D'Alessandro, Deputy Attorney
         General, argued the cause for respondents
         (Christopher S. Porrino, Attorney General,
         attorney; Melissa H. Raksa, Assistant Attorney
         General, of counsel on the brief; Jacqueline
         R. D'Alessandro, on the brief).
      The opinion of the court was delivered by

KOBLITZ, J.A.D.

      K.K. appeals from the July 27, 2016 final agency decision of

the Department of Human Services, Division of Medical Assistance

and Health Services (DMAHS) denying him coverage under the New

Jersey Medical Assistance and Health Services Act, (Medicaid),


N.J.S.A. 30:4D-1 to -19.5,           because he "had not been a permanent

resident for five years or more."                 Because K.K. was a legal

permanent resident (LPR) before August 22, 1996, we reverse based

on the plain wording of the Medicaid eligibility statute, 
N.J.S.A.

30:4D-3(q)(1)(a).

      K.K., an eighty-eight-year-old man, first became an LPR of

the United States on July 15, 1991.                 K.K. worked in the United

States for at least forty qualified quarters (ten years), and

received a modest social security benefit of $226 per month in

2015.     K.K. gave up his LPR card in 2007 upon leaving the United

States.     Seven years later, in 2014, K.K. returned to the United

States and obtained a new LPR card.

      On June 16, 2015, he applied for Medicaid benefits through

the   Somerset     County    Board   of    Social    Services    (SCBSS).      His

application was denied two months later on the basis that he had

not been an LPR of the United States for five years or more.                   K.K.

appealed     and    the     matter   was      referred   to     the   Office    of


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Administrative Law.       
N.J.S.A. 52:14B-1 to -15; 
N.J.S.A. 52:14F-1

to -13.     The supervisor of Adult Medicaid for the SCBSS testified

that when K.K. applied for Medicaid, both his new LPR card and the

agency computer system noted an entry date of July 2014, with no

indication that he had previously resided in the country.              His

application stating his 1991 entry was not considered.          K.K. was

thus rejected because the computer records reviewed reflected he

had not been an LPR for five years, as required of someone who

entered the United States after August 22, 1996.         At the hearing,

K.K. proved he had entered the United States in 1991 and received

an LPR card in 1996, which he surrendered upon leaving the country

in 2007.     His LPR card was at that time set to expire in 2015,

after he applied for Medicaid.       The card he obtained upon reentry

in   2014    is   valid   until   2024.   Both   cards   have   the   same

identification number.      The Administrative Law Judge (ALJ) issued

an initial decision affirming the Medicaid denial on the basis

that K.K. surrendered his card and obtained a new one.           The ALJ

determined that K.K. had thus fully abandoned his original LPR

status.     DMAHS adopted the ALJ's decision.

      "Appellate review of an agency's determination is limited in

scope."     Circus Liquors, Inc. v. Governing Body of Middletown

Twp., 
199 N.J. 1, 9 (2009).       As our Supreme Court has made clear,

"[i]n administrative law, the overarching informative principle


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guiding   appellate   review    requires    that   courts   defer     to    the

specialized or technical expertise of the agency charged with

administration of a regulatory system."        In re Virtua-West Jersey

Hosp., 
194 N.J. 413, 422 (2008).           We are bound to uphold the

administrative agency decision "unless there is a clear showing

that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence."               Ibid. (citing In re

Herrmann, 
192 N.J. 19, 28 (2007)).

     "A court is in no way bound by an agency's interpretation of

a statute or its determination of a strictly legal issue.                  [If]

an agency's determination . . . is a legal determination, the

appellate court's review is de novo."          L.A. v. Bd. of Educ. of

City of Trenton, Mercer Cty., 
221 N.J. 192, 204 (2015) (citation

omitted).    Our Supreme Court has explained that a state agency

interpretation of a federal statute should be reviewed de novo and

without deference to the agency.         In re RCN of NY, 
186 N.J. 83,

92 (2006).

     "Medicaid was created by Congress in 1965 to provide medical

services to families and individuals who would otherwise not be

able to afford necessary care."     S. Jersey Family Med. Ctrs., Inc.

v. City of Pleasantville, 
351 N.J. Super. 262, 274 (App. Div.

2002)   (citation   omitted).     "The     Medicaid    program   is     fairly


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characterized as a 'cooperative federal-state endeavor' where, in

return      for   federal   monies,      states   must   comply   with    federal

requirements."        A.B. v. Div. of Med. Assistance & Health Servs.,


407 N.J. Super. 330, 342 (App. Div. 2009) (quoting L.M. v. State,

Div. of Med. Assistance & Health Servs., 
140 N.J. 480, 484 (1995)).

Thus   we    review    de   novo   how    Medicaid   interacts    with    federal

immigration law, U.S.C. § 1101(a)(13)(C), and the federal Personal

Responsibility and Work Opportunity Reconciliation Act of 1996

(PRWOR1).         Levine v. State, Dep't of Transp., Div. of Motor

Vehicles, 
338 N.J. Super. 28, 32 (App. Div. 2001).

       The Legislature amended Medicaid to comply with PRWOR.               PRWOR

was enacted by Congress to continue the federal immigration policy

of promoting self-sufficiency and self-reliance of immigrants to

reduce the burden on public benefits such as Medicaid.                   8 U.S.C.

§ 1601.

       If an LPR was present in the United States prior to August

22, 1996, or if an LPR entered after that date but maintained a

continuous residency for at least five years, she or he is eligible

for Medicaid.       A.B., 
407 N.J. Super. at 350-51 (holding that brief

visits to the United States prior to August 22, 1996 do not qualify

an individual for Medicaid).


1
    PRWOR, Pub.L. No. 104-104, 
110 Stat. 56, is codified as
amendments to various sections, including 42 U.S.C., 7 U.S.C., and
8 U.S.C.
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     K.K. argues that because he lived in the United States and

received an LPR card prior to August 22, 1996, he qualifies for

Medicaid and "the analysis should end" there.       DMAHS argues that

any permanent resident who enters the United States after August

22, 1996, is subject to the five-year waiting period, even if the

individual was an LPR before August 22, 1996.       DMAHS urges that

K.K. should be treated for Medicaid eligibility purposes as he was

treated by the United States Citizenship and Immigration Services

when he sought readmission in 2014. After an absence that exceeded

180 days, pursuant to U.S.C. § 1101(a)(13)(C)(ii), he was treated

as if he were entering the country for the first time.       "[I]f a

lawful permanent resident falls into one of the six subsections

[under U.S.C. § 1101(a)(13)(C)], the clear import [] is that he

is stripped of his lawful permanent residence. That is, he becomes

an alien seeking admission as if he were entering for the first

time."   Taveras v. AG of the United States, 
731 F.3d 281, 290 (3d

Cir. 2013) (citation omitted).         DMAHS reasons that if K.K.'s

residency status resets, so should his Medicaid eligibility.      That

position,    however,   is   not   supported   by   Medicaid-specific

regulations.

     A 2007 Federal Register instruction regarding means-tested

public benefits such as Medicaid reads:

            If the applicant entered the United States
            before August 22, 1996 and obtained qualified

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           alien status before that date, he or she is
           eligible for all federal means-tested public
           benefits for which he or she satisfies all
           programmatic eligibility requirements.    You
           should not engage in any further verification
           of immigration status for those persons.

           [
62 Fed. Reg. 61415 (Nov. 17, 1997) (emphasis
           added).]

      The United States Department of Health and Human Services

Centers for Medicare and Medicaid Services answered questions on

the   eligibility    of   permanent   residents       to   receive    Medicaid,

stating that continuous presence in the country was not required.

Question   nine     states:    "What      does   it    mean   to     []     remain

'continuously present' in the United States?"              It answered:

           Any single absence from the United States of
           more than 30 days, or a total aggregate of
           absences of more than 90 days, is considered
           to interrupt “continuous presence." Once an
           immigrant obtains qualified alien status, he
           or she does not have to remain continuously
           present in the United States in order to avoid
           application of the five-year bar. "Continuous
           presence" is discussed in more detail in DOJ’s
           Interim Guidance at 
62 Federal Register 61415.

           [Department of Health and Human Services
           Centers for Medicare and Medicaid Services
           “Questions and Answers on the Five-Year Bar,”
           http://library.niwap.org/wp-content/uploads/
           2015/pdf/PB-faq-QA5YearBar-06.23.04.pdf
           (last visited December 12, 2017) (emphasis
           added); A.B., 
407 N.J. Super. at 338.]

A lapse in continuous presence is thus permitted, so long as an

individual has already obtained qualified alien status.



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62 Federal Register 61415 states:

           TANF, Medicaid, and SSI are federal means-
           tested public benefits that are not otherwise
           exempted under [PRWOR]. . . . The eligibility
           of qualified aliens for federal means-tested
           public benefits turns on [1] whether they
           entered the U.S. before August 22, 1996, [2]
           the number of years since they obtained
           qualified alien status, [3] their particular
           immigration status, and [4] the specific
           benefits they were seeking.

     K.K. entered before August 22, 1996 and obtained LPR status.

K.K.'s absence from the country for seven years after reaching the

age of sixty-five relieved the government of making Medicaid

payments   during   that   time,   thus   safeguarding   the   taxpayer's

resources.     In light of federal immigration policy intended to

reduce the burden on public benefits, such absences need not be

discouraged.

     Reversed.




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