NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1855-06T11855-06T1

A.B.,

Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE & HEALTH SERVICES and CAMDEN COUNTY BOARD OF SOCIAL SERVICES,

Respondents-Respondents.

_________________________________

Argued: October 2, 2008 - Decided:

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from the Department of Human Ser­vices, Division of Medical Assistance and Health Services, Docket No. HMARP-00220-2006S.

Candidus Dougherty argued the cause for appellant (Rutgers Civil Practice Clinic, attorneys; Traci Overton, Supervising Attor­ney; Ms. Dougherty and F. Gregory Lastowka of the Pennsylvania bar, admitted pro hac vice, on the brief).

Dianna Rosenheim, Deputy Attorney General, argued the cause for respondent Division of Medical Assistance and Health Services (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Caitlin A. McLaughlin, Deputy Attorney General, on the brief).

Respondent Camden County Board of Social Services has not filed a brief.

The opinion of the court was delivered by

C.L. Miniman, J.A.D.

Petitioner A.B. appeals from an October 10, 2006, final decision of respondent Division of Medical Assis­tance and Health Services (the Division) finding that A.B. was not eligible to participate in the New Jersey Care Program (NJCare), N.J.A.C. 10:72-1.1 to -9.8. We affirm.

I.

The facts are undisputed. A.B., a Russian immigrant who is now ninety years old, became a lawful permanent resident (LPR) of the United States on December 1, 2005. Prior to that time, A.B. was physically present in the United States for six months in 1992, for two months in 1994, and for two months in the spring of 1996. With these exceptions, A.B. resided in Russia prior to obtaining LPR status here.

On December 19, 2005, A.B. applied to the Camden County Board of Social Services (CCBSS) for benefits under NJCare, stat­ing that he was unemployed and had no source of income. The CCBSS denied A.B.'s application on January 3, 2006, stating that he did not meet the eligibility requirements of N.J.A.C. 10:72-3.4(a)(5), which includes persons over the age of sixty-five as persons eligible for Medicaid benefits, because he had not been in the country for five years (the five-year bar), as required by N.J.A.C. 10:72-3.2. The regulation pro­vides in pertinent part that if a person who is otherwise eligi­ble for Medicaid benefits was not "present in" the United States prior to August 22, 1996, such person must thereafter reside in this country for five years in order to qualify for benefits:

(a) In order to be eligible for the Medicaid program, an individual must be a citizen of the United States, an alien law­fully admitted for permanent residence, or an alien approved for temporary residence who can be classified as an eligible alien in accordance with this chapter.

. . . .

(b) The following aliens, if present in the United States prior to August 22, 1996, and if otherwise meeting the eligibil­ity criteria, are entitled to full Medicaid benefits:

1. An alien lawfully admitted for permanent residence;

. . . .

(c) The following aliens entering the United States on or after August 22, 1996, and if otherwise meeting the eligibility criteria, are entitled to Medicaid benefits:

1. An alien lawfully admitted for per­manent residence but only after having been present in the United States for five years . . . .

[Ibid.]

On January 10, 2006, A.B. requested a hearing and the Divi­sion referred the matter to the Office of Administrative Law (OAL) as a contested case pursuant to N.J.A.C. 10:6-1.3(a) and N.J.S.A. 52:14B-9. The Administrative Law Judge (ALJ) left the record open until August 27, 2006, during which time A.B. and CCBSS submitted supplemental briefs. On September 18, 2006, the ALJ issued an initial decision in favor of A.B. in which he recited the following facts stipulated by the parties:

1. Prior to August 22, 1996, [A.B.] was physically present in the United States for six months in 1992, two months in 1994 and for two months in the spring of 1996.

2. If [A.B.] is found to meet the "pre­sent in" requirement of N.J.A.C. 10:72-3.2(b), he is eligible for [NJCare] Medicaid benefits.

3. [A.B.] became a permanent resi­dent on December 1, 2005, as indicated on his Permanent Resident Card. [(Citation omitted).]

4. [The Division] relies on N.J.A.C. 10:72-3.2(c)(1) to deny [A.B.'s] request for NJC[are] because he has not been present in the United States for five years.

5. A.B. relies on N.J.A.C. 10:72-3.2(b)(2) for [his] argument that [he] should be granted refugee status, but acknowledges that he has not been admitted pursuant to section 207 of the Immigration and Naturalization Act.

6. N.J.A.C. 10:72-3.2(e)(3)(ii) sets forth acceptable documentation for eligible alien/refugees. [A.B.] does not possess any of the specified documentation.

7. [A.B.] was born on November 27, 1918.

8. Medicaid Communication No. 17, dated October 5, 1999, which requires continuous presence in the United States, prior to August 22, 1996, is an interpretation by The Department of Human Services (DHS) and not a rule promulgated in accordance with the Administrative Procedures Act (APA).

The ALJ concluded that the phrase "present in the United States" contained in the eligibility for NJCare, N.J.A.C. 10:72-3.2(b), was satisfied by A.B.'s presence in the United States for six months in 1992, two months in 1994, and two months in 1996. The ALJ relied on the ordinary meaning of "pre­sent," statutory definitions of the term, and judicial decisions con­struing it. The ALJ con­cluded that "pre­sent in" was not syn­ony­mous with "continuously present in," but connoted something much less permanent and reversed the denial of benefits.

The CCBSS filed an exception on September 29, 2006, on the ground that NJCare is a Medicaid program governed by "Medicaid Communication No. 17," which requires continuous presence from some date prior to August 22, 1996, until the individual has acquired qualified alien status. CCBSS urged that this communication was an interpretation of N.J.A.C. 10:72-3.2(b) and was consistent with eligibility requirements for aliens in other entitlement programs, such as N.J.A.C. 10:90-2.10(a)(1). A.B. filed a cross-exception and motion for emergency relief request­ing temporary NJCare eligibility on October 3, 2006. He argued that Medicaid Communication No. 17 had not been the sub­ject of rule­making, as required by the New Jersey Administrative Proce­dures Act, N.J.S.A. 52:14B-1 to -15, and was thus invalid and that other regulations, such as N.J.A.C. 10:90-2.10(b)(1) (x), specifi­cally required continuous presence, unlike N.J.A.C. 10:72-3.2(b).

II.

On October 10, 2006, Ann Clemency Kohler, the Division's Director, issued a timely Final Agency Decision reversing the ALJ's Initial Decision and denying A.B.'s motion for tem­po­rary eligibility for NJCare. The Division determined that "[f]ederal policy clearly states that continuous presence is an essential prerequisite to a finding of Medicaid eligibility. Indeed, guidance from the Centers for Medicare and Medicaid Ser­vices (CMS), the federal agency charged with overseeing the Medicaid program, provides questions and answers to issues regarding alien status and eligibility." The Division quoted the following portion of the document:

Q8. What about undocumented immigrants who entered the United States prior to August 22, 1996, but obtained qualified alien status after that date?

Based on interim guidance issued by the U.S. Department of Justice (DOJ), immi­grants, who entered the country without proper documents as well as those who over­stayed their visa are treated the same as those who entered and remain in the country with valid immi­gration documents.

Thus, all immigrants who (1) entered the country prior to August 22, 1996 and (2) remained continuously present in the United States until becoming a quali­fied alien, are eligible for Medicaid imme­diately upon obtaining qualified alien status, provided that they otherwise are eligible for cover­age under your state plan. See Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eli­gibility Under Title IV of the Personal Responsibility and Work Opportunity Recon­ciliation Act of 1996, 62 Federal Register 61344 at 61414-61416 (November 17, 1997).

Q9. What does it mean to remain "continuously present" in the United States?

To avoid application of the five-year bar, immigrants who entered the United States before August 22, 1996, but who obtain qualified alien status on or after that date, must remain "continuously pre­sent["] in this country from their last date of entry into the United States prior to August 22, 1996 until they obtain qualified alien status. 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.

Immigrants who (1) entered the United States at some point prior to August 22, 1996 and (2) obtained qualified alien status on or after that date, but (3) did not remain continuously present in the United States from their last date of entry into the country prior to August 22, 1996, until they became a qualified alien, are not con­sidered as having entered the United States prior to August 22, 1996. Accordingly, such immigrants are subject to the five-year bar.

http://new.cms.hhs.gov/MedicaidEligibility/downloads/FiveYearBar3.pdf

The Director concluded that A.B. "did not remain 'con­tinu­ously present' in the United States since his last visit in the spring of 1996. [A.B.'s] five-year bar began on the date he obtained qualified alien status, or December 1, 2005." Thus, the Director concluded that NJCare benefits were correctly denied to A.B. This appeal followed.

A.B. contends that the Division did not clearly state its reasons for rejecting the Initial Decision, contrary to statu­tory, regulatory, and common-law requirements. He further con­tends the Division violated his due process rights because the Final Agency Decision had no basis in law. He argues that NJCare is a state-funded program which should be interpreted in accordance with New Jer­sey——not federal——law and that state law mandates the provision of NJCare benefits because he was present in the United States before August 22, 1996, was an LPR at the time of his applica­tion, and any other interpretation would vio­late the federal Equal Protection Clause. He urges that state law defines the term "present in" as being physically within the borders of New Jersey without any durational component. He alleges that the agency failed to amend N.J.A.C. 10:72-3.2(b) through rulemaking to give it any other meaning and asserts that Medicaid Communi­cation No. 17 was never promulgated as a rule under the New Jer­sey Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. Thus, he urges, it is not applicable to a determination of NJCare benefits.

The Division, on the other hand, asserts that both federal and state law mandate that NJCare benefits are subject to the five-year bar from the date of LPR designation, making A.B. ineligible for benefits. It further asserts that its action was not arbitrary, capricious or unreasonable and was supported by credible evidence in the record.

III.

Our review of final decisions by administrative agencies such as this is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in apply­ing the legislative policies to the facts, the agency clearly erred in reaching a con­clusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Generally, "[o]ur function is to determine whether the admin­istrative action was arbitrary, capricious or unreason­able." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citation omitted). The burden of demon­strating that the agency's action was arbi­trary, capricious or unreason­able rests upon the person chal­lenging the administra­tive action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citation omitted).

However, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Nevertheless, "we are not bound by the agency's legal opin­ions." Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citation omitted). Statutory and regu­latory construction is a purely legal issue subject to de novo review. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

"[A] rule of an administrative agency is subject to the same canons of construction as a stat­ute." In re N.J.A.C. 14A:20-1.1, 216 N.J. Super. 297, 306 (App. Div. 1987) (citation omitted). N.J.S.A. 1:1-1 provides gen­eral instructions for judicial construction of statutes and laws in New Jersey:

In the construction of laws and stat­utes of this state, both civil and criminal, words and phrases shall be read and con­strued with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.

Therefore, when a court is called upon to review a statute, determining the Legislature's or the agency's intent is the paramount goal and, generally, the best indicator of that intent is the statutory or regulatory language itself. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citation omitted). We begin with the words of the statute or regu­lation and ascribe to them their ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008). We will read the words in context with related pro­visions so as to give sense to the legislation or regulatory scheme as a whole. DiProspero, supra, 183 N.J. at 492.

"It is not the function of [a reviewing court] to 'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). We "cannot 'write in an additional qualification that the Legislature pointedly omitted in drafting its own enactment.'" Ibid. (quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952)). Nor may we "'engage in con­jecture or surmise which will circumvent the plain meaning of the act.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). Therefore, if the meaning of those words is clear, the analysis is com­plete and we need look no further. Mason, supra, 196 N.J. at 68.

On the other hand, common sense should not be abandoned when interpreting a statute:

[W]e also have stressed that "where a lit­eral interpretation would create a mani­festly absurd result, contrary to public policy, the spirit of the law should con­trol." Turner v. First Union Nat. Bank, 162 N.J. 75, 84 (1999) (citing Watt v. Mayor of Franklin, 21 N.J. 274, 278 (1956)). Thus, when a "'literal interpretation of individ­ual statutory terms or provisions'" would lead to results "'inconsistent with the overall purpose of the statute,'" that interpretation should be rejected. [Alan J.] Cornblatt[, P.A.] v. Barow, 153 N.J. 218, 242 (1998) (quoting Young [v. Schering Corp.,] 141 N.J. [16,] 25 [(1995))].

[Hubbard v. Reed, 168 N.J. 387, 392-93 (2001).]

So too, "[a] regulation '[should] not be interpreted in a manner leading