On appeal from the Department of Human Services, Division of Family Development, Agency No. C050833.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
B.H. appeals from a final agency determination that she no longer qualifies for Work First New Jersey/Temporary Assistance for Needy Families (WFNJ/TANF) benefits for her family because she also receives benefits from the Subsidized Adoption Program (SAP)*fn1 for her two adopted children. We reverse that decision because the instruction issued by the agency governing her and similarly situated families is effectively a rule and it was not promulgated in accordance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.
Appellant B.H. received benefits from the TANF segment of the WFNJ/TANF welfare program*fn2 under the Work First New Jersey Act (WFNJ Act). N.J.S.A. 44:10-55 to -70; N.J.A.C. 10:90-1.1 to -20.13.*fn3 The WFNJ/TANF program is administered at the local level by county welfare agencies pursuant to regulations and directives of the Department of Human Services (DHS), Division of Family Development (DFD). N.J.A.C. 10:90-1.1(g).
B.H. is a single mother with two adopted children. B.H received WFNJ/TANF benefits in the amount of $322 per month. B.H. filed a Redetermination/Recertification For Assistance application with DFD on November 21, 2005. In this application, B.H. certified that she received Social Security in the amount of $512 per month and Supplemental Security Income (SSI) in the amount of $118.25 per month. In addition, B.H. reported that she received $683.29 for her adopted daughter and $527.31 for her adopted son, a total of $1,210.60 per month from SAP administered by the New Jersey Division of Youth and Family Services (DYFS). B.H. also reported that her adopted daughter had part-time employment.
Initially, the local county welfare agency found B.H. eligible for continuing WFNJ/TANF benefits. In June 2006, DFD issued Instruction No. 06-6-4. It declared that a WFNJ/TANF grant could not be provided for a child receiving a DYFS grant during the same period. The instruction noted that "an eligible child cannot be included in the WFNJ/TANF cash payment for any month in which he or she receives a DYFS grant." The DFD explained as follows:
N.J.A.C. 10:90-3.19(a) provides that grants provided through DYFS such as DYFS Kinship Program payments, monies received through the DYFS [SAP], and monies received on behalf of a foster child are exempt as income in the calculation of the TANF grant.
However, there must not be any duplication between such aid and the public assistance grant.
Pursuant to this instruction, the local county welfare agency notified B.H. that her WFNJ/TANF assistance would be terminated effective July 1, 2006. According to the notice, B.H.'s WFNJ/TANF benefits were terminated because her unearned income exceeded the maximum benefit payment level. B.H.'s total unearned income was listed as $0. The local agency further noted that the adverse action was taken in accordance with N.J.A.C. 10:90-3.1.
Thereafter, B.H. requested a hearing, and the matter was transmitted to the Office of Administrative Law. The initial decision issued by the administrative law judge (ALJ) found that DFD Instruction No. 06-6-4 and the county welfare agency's decision to terminate previously approved benefits "constitutes a material and significant change from [DFD's] prior position," because N.J.A.C. 10:90-3.19(a)15vii specifically ...