On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, Docket No. HMARP-00220-2006S.
The opinion of the court was delivered by: C.L. Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Baxter.
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.
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,*fn1 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).
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 over-stayed 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 ...