On appeal from the Department of Human Services.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
This appeal challenges the validity of the Personal Needs Allowance regulations (N.J.A.C. 10:123-3.1 et seq.), promulgated by the Department of Human Services to implement the "Rooming and Boarding House Act of 1979" (Act) (L. 1979, c. 496); N.J.S.A. 55:13B-1 et seq. N.J.A.C. 10:123-3.2 of the regulations, which became effective on August 27, 1980, provides:
The owner or operator of each residential health care facility or boarding house shall reserve to each Supplemental Security Income recipient residing therein a personal needs allowance in an amount of at least $40 until such time as this rule may be amended. No owner or operator or agent thereof shall interfere with the recipient's retention, use, or control of the personal needs allowance.*fn1
The act pursuant to which the regulations under review were promulgated was signed by the Governor on February 29, 1980, to take effect 180 days after its enactment, to wit. August 27, 1980. The effective date of the act was made 180 days after it was enacted for the express purpose of "allow[ing] the departments (particularly the Department of Community Affairs) time to prepare for implementation." Senate Bill 3111, § 39. As part of a comprehensive attempt to revamp the supervision and regulation of the segment of the housing industry dealing with residential health care facilities, our Legislature also amended the powers and duties of the Commissioner of Human Services (Commissioner), who is charged with administering the Supplemental Social Security Income Program (SSI) established pursuant to Title XVI of the Social Security Act, 42 U.S.C.A. §§ 1381-1383c. See N.J.S.A. 44:7-85 et seq. N.J.S.A. 44:7-87(h) of the new Supplementary Assistance Statute gives the Commissioner the authority to:
h. Ensure that any eligible person residing in a rooming or boarding house or residential health care facility has reserved to him a monthly amount, from payment received under the provisions of the act to which this act is a supplement or from any other income, as a personal needs allowance. The personal needs allowance may vary according to the type of facility in which an eligible person resides, but in no case shall be less than $25.00 per month.
By a letter dated June 24, 1980 the owners and operators of facilities accommodating individuals under the SSI Program were informed by the Commissioner that commencing in July 1980 the recommended Personal Needs Allowance (PNA) for each of their residents should be increased from $30 to $40 a month. In that same letter the owners and operators were informed of the new statutory authority granted the Commissioner to enforce compliance with the "recommended" PNA level.
When the Commissioner received information that some of the owners and operators had refused to increase the PNA level, she submitted the regulations in question to the Division of Administrative Procedure on August 6, 1980 on an emergency
basis, thereby obviating the notice requirements of N.J.S.A. 52:14B-4. The Commissioner submitted the regulations with a proposed effective date of August 27, 1980, the same effective date as the law granting her the authority to promulgate such rules.
As required by the emergency rules adoption procedure under N.J.S.A. 52:14B-4 and N.J.A.C. 15:15-4.18 and 4.19, the Commissioner explained in writing her reasons for requesting the expedited adoption of the proposed rules, in part, stating:
I am submitting them for adoption on an emergency basis due to the need to protect the health and welfare of a very vulnerable population potentially at ...