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W.W. v. Velez

July 8, 2010

W.W., PETITIONER-APPELLANT,
v.
JENNIFER VELEZ, COMMISSIONER OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF FAMILY DEVELOPMENT, RESPONDENT-RESPONDENT.



On appeal from the Department of Human Services, Division of Family Development, Agency Docket No. C034339.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2010

Before Judges Graves and Sabatino.

Appellant W.W. is a recipient of food stamp benefits. He appeals from a final administrative decision by the Department of Human Services, Division of Family Development (the DFD) dated April 29, 2009. The DFD found that the medical expenses incurred by appellant's wife, S.W., could not be used in the calculation of appellant's food stamp allotment between April 28, 2005, and August 1, 2005, because appellant's wife was an "excluded household member" under N.J.A.C. 10:87-2.3 due to her status as an ineligible alien. We affirm.

Appellant's wife underwent surgery in December 2004, and incurred medical bills that totaled approximately $4000 to $4500. At the time of appellant's recertification on April 28, 2005, he requested an increase in his food stamp benefits based on his claim that he was responsible for paying his wife's medical expenses.

The Passaic County Board of Social Services (the Board) denied appellant's request for an increase in his benefits, finding S.W. was not part of appellant's food stamp household because she was not an "eligible alien" under N.J.A.C. 10:87-2.3(c)(3). Appellant requested a fair hearing to contest the decision, and on July 13, 2005, the matter was transmitted to the Office of Administrative Law.

At the hearing before an Administrative Law Judge (ALJ) on September 6, 2005, appellant stipulated his wife was "not on a grant for [food stamps] or any other benefits due to her alien status." Nevertheless, appellant claimed he was entitled to include his wife's medical expenses when calculating his food stamp benefits under the doctrine of necessaries set forth in Jersey Shore Med. Ctr. v. Estate of Baum, 84 N.J. 137 (1980).

In a decision dated September 13, 2005, the ALJ noted that the New Jersey Administrative Code did "not provide for the expenses of an ineligible alien to be available in the calculation of an eligible recipient's [food stamp] benefits." Therefore, the ALJ determined that appellant was "not eligible for an increase in his [food stamp] benefits based upon the medical expenses incurred as a result of his wife's surgery." On September 21, 2005, the DFD adopted the ALJ decision, and appellant appealed.

In an unpublished opinion, W.W. v. Dep't of Human Servs., No. A-2252-05 (App. Div. Apr. 11, 2007), this court remanded the matter for further proceedings because the record did "not reflect whether appellant is elderly or disabled, whether he has incurred medical expenses under Jersey Shore, whether he is liable for same, and if so, when such liability attached."

Following the remand decision, the Director of the DFD consulted with Joseph Weingart, the Regional Director of the Food Stamp Program for the United States Department of Agriculture (USDA), to obtain an opinion whether appellant could deduct his wife's medical expenses. In a letter dated June 22, 2007, Weingart indicated:

We have received an informal opinion from the USDA Office of General Counsel (OGC). Our OGC concurs with New Jersey's position that the household in question is not ...


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