OF MEDICAL ASSIST AND ALSO AND HEALTH SERVICES CAN WE PLEASE HAVE APPEARANCES OF
COUNSEL. STEPHEN SLOCUM: GOOD MORNING YOUR HONOR ON
BEHALF OF THE PETITIONER DIVISION OF MEDICAL I AM GOING TO TAKE MY NAFSHG EVER
GOOD MORNING URNLS IN BEHALF OF THE PETITIONER DIVISION OF MEDICAL ASSISTANCE
AND HEM SERVICES, DEPUTY ATTORNEY GENERAL STEVEN SLOEK UM.
JOSHUA M. SPIELBERG: GOOD MORNING. JOSH WHAT MANY SPIELBERG FROM LEGAL SERVICE
S OF NEW JERSEY, ON BEHALF OF RESPONDENT CROSS PETITIONER E M.
JOSHUA M. SPIELBERG: GOOD MORNING YOUR HONOR KEN EPTSZ ETD SOUTD JERSEY LEGAL
SERVICES REPRESENTING THE RESPONDENT PETITIONER G C. A. GOOD MORNING
YOUR HONORS TIM THINK THAN MALONE FROM FASHLG PLAN STIEN WITH ALLER HAG AND ON
BEHALF OF AN AMICUS KEY COMMUNITY HEALTH LAW PROJ EDGE AND DISABILITIES
RIGHTS NEW JERSEY. CHIEF JUSTICE RABNER: WELCOME COUNSEL.
THERE IS A CHANCE WE MAY GET THROUGH THERE ARGUMENT BY 1230 I HOPE WE DO.
IF NOT, AND IF WE ARE NOT CLOSE TO THE END WE WILL GO BREAK AT AROUND THEN AND
RESUME AFTER WARDS BUT WITH THE AM OF RESERVE TIME LET'S SEE IF WE CAN PULL THAT
OFFER MR. SLOEK UM PLEASE GO AHEAD. STEPHEN SLOCUM: TUNS.
I WOULD LIKE T RESOIFZ A FEW MINUTES FOR REBUTTAL IF UPON.
CHIEF JUSTICE RABNER: THAT IS FINE. STEPHEN SLOCUM:
THANK YOU. GOOD MORNING, YOUR HONORS. THIS MATTER
THE STALT TRI FRANL WORK AND THE MEDICINE INDICATE PRINCIPLES ARE CERTAINLY COMPLEX
AND. CHIEF JUSTICE RABNER: IF YOU CAN TRY TO KEEP YOUR
VOICE UP A RIL BIT MORE. STEPHEN SLOCUM: CERTAINLY YOUR HONOR.
AND I OBVIOUSLY RECOGNIZE THE EXCITING MORNING I AM GOING GO
OWN PRACTICE TO MEDICINE KWAT IN AN IS NOT AN EASY DOCKET. HOWEVER,
AS SET FORTH AT LENGTH IN THE BRIEFING, THE LOGICAL STECHS TOWARDS RESOLUTION OF
THIS MATTER ARE ULTIMATELY QUITE PLAIN. THE FEDERAL STATUTE RIESHS THE
DIVISION TO APPLY THE SZS I METHODOLOGY AND THE S S I METHODOLOGY USZ A TWO STEP
PROCESS. UNDER STEP ONE, THE APPLICANTS' ELIGIBILITY IS DETERMINED BASED
ON THE APPLICANTS' INDIVIDUAL MEANS FIRST. THEN, UNDER ACCEPT TWO, IF THE APPLICANT
IS INDIVIDUALLY ELIGIBLE, FAMILY SIZE AND DEEMING APPLY. THE
STATE STATUTE WAS NAKT THE SPECIFICALLY TO FOLLOW THE FEDERAL STATUTE AND TO IMPLEMENT
AFRMENT BE D MEDICINE INDICATE IN NEW JERSEY. IN THE DIVISIONS REGULATION
WAS PROMULGATED TO EFFECTUATE THE STATUTE IN ACCORDANCE WITH FEDERAL MEDICAID LAW
AND PURNT TO THE DEEM METHODOLOGY AS CROSS REFERENCED IN THE REGULATION WHICH
THE DIVISION HAD ALREADY BEEN EMPLOYING FOR AT LEAST 7 YEARS. WITH
THE COURT'S PATIENT, I WOULD LIKE TO EXPLAIN EXACTLY HOW AN APPLICATION FOR THE
A DEE BE PROGRAM IS EVALUATED. THE FIRST STEP AS WITH ANY MEDIC
AID APPLICANT THE MRIBLTHS' INDIVIDUAL MEANS ARE LOOKED AT AND IF THEY EXCEED
THE ELIGIBILITY STANDARDS, THAT IS THE END OF THE INQUIRY. THE INDIVIDUAL IS INELIGIBLE
AS HAPPENED HERE WITH G C AND E M OR IF THE APPLICANT IS INDIVIDUALLY
ELIGIBLE, WE THEN MOV ON TO THE SECOND STEP. IN THE SECOND STEP THE DIVISION THEN
LOOKS AT FAMILY SIZE AND WHETHER SPOUSAL OR HOUSEHOLD INCOME OR OTHER MEANS
ARE AVAILABLE OR SHOULD PROVIDE SUPPORT. A. I WANT TO CLARIFY THAT IT IS HERE
IN THE SECOND STEP OF THE S S I METHODOLOGY WHERE FAMILY SIZE BECOMES
RELEVANT. AND THAT IS TO CLARIFY THE DIVISION DOES NOT READ
THE STATUTORY LANGUAGE ADJUSTED FOR FAMILY SIZE OUT OF THE STATUTE. NOR IS THE
DIVISION A #2E789ING TO BE CUTE OR TO PLAY WITH THE LANGUAGE AND SAY OH,
WE LOOK AT FAMILY SIZE, IT'S JUST SECRETLY ALWAYS A FAMILY OF ONE. THAT IS NOT
WHAT IS HAPPENING. THE SFRMENT S YIEFRMENT METHODOLOGY IS UNAM BIG LUGS
GEE REQUIRED BY THE FEDERAL STATUTE A FAK THAT BOTH APPELLANTS KNOWLEDGE AND CONCEDE
IN THEIR BRIEFING TO THIS COURT AND WHICH THE APPELLATE DIVISION NOTE DZ AS A
THRESHOLD THAT MANDATORY SFRMENT S I METHODOLOGY IS A TWO STEP PROCESS FOR FAMILY
SIZE ONLY KONLS INTO PLAY DURING THE SECOND STEP ^ ( ^ ) WHERE
^ ( ^ ). AND THAT'S WHAT HAPPENED HERE. IN 1988
WHEN THE DIVISION PROMULGATED THE REGULATION IT APPLIED ITS SUBJECT MATTER EXPERTISE
TO IMPLEMENT THE STATUTE IN A MANNER CONSISTENT WITH FEDERAL MEDICAID LAW
FOLLOWING BOTH THAT STATUTORY TEXT THE AND THE NECESSARY MEDICAID CONTEXT. SIGNIFICANT
LY, IN THE 33 YEARS SINCE THE REGULATION WAS PROM #U8 GAITED THE NEW JERSEY
LEG UR HAS RAISED NO KWERNS WITH ITS ^ CON ^ CONNECTICUT SKENTSZ AND C M S HAS
CONFIRM AND APPROVED THE STATE MEDICINE KATD PLAN UNDER THIS REGULATION
DREL CONFIRMING WHAT THE DIVISION THAT THIS IS RIGHT, THIS IS THE WAY TO PROCESS
IS SUPPOSED TO LAP. THE DIVISION AND DIVISION READS INTERPRETS
THE STATUTORY TEXT IN THE CONTEXT OF MEDICINE KAD LAW WHERE THE A BE D
PROGRAM MUST FOLLOW THESS I METHODOLOGY. AND AT RISK OF SICHL FLI REPEATING MYSELF
BUT IT DOSZ BEAR STRESSING, FAMILY SIZE IS NOT IGNORED, NOR IS IT WATCHED
OR MISUSED. IT IS APPLIED WHERE IT IS MEANT TO BE APPLIED IN THE SECOND STEP OF THE
S S I METHODOLOGY. THE APPELLATE DIVISION DISCOUNTED THE AGENCIES' EXPERTISE
AND ULTIMATELY IT A TOENLTSED TO VIEW THE STATUTORY TEXT IN A VACUUM ULTIMATELY
IT ERRED IN FAILING TO HARM MONDAY NICE THE HIGHLY DEFENSE REN SHALL STANDARD
WHICH IS DUE TO THE ATHSD SEE IN ITS INTERPRETATION AND INL MREMENT TAGS OF THE
STATUTE WITH THE MORE GENERAL STANDARD OF PLAIN TEXT THE STATUTORY ANALYSIS
WHERE APPLICABLE. AND IN SHORT, THAT GENERAL STANDARD IS NOT APPLICABLE HERE.
THE MORE SPECIFIC MEDICAID DEFRN SHALL STANDARD IS MRIK AND HERE AND DOES
NEED TO BE SOCK US. MEDICAID IS TOO COMPLEX TO FAVOR COMMON MEANINGS OVER ^ CON ^
CONNECTICUT TEBLGS NON AND INDEED IN THE VERY FIRST LINE OF THE STATE STATUTE HERE
THE DEFINITIONS ARE ONLY APT QUOTE UNLESS THE CONTEXT OTHERWISE REQUIRES
". THE SPECIFIC OUTWEIGHS THE GENERAL. GIVEN THAT STANDARD
AND GIVEN THE DIVISIONS APPLICATION OF ITS SUBJECT MATTER EXPERTISE TO IMPLEMENT
THE A B D PROGRAM IN A MANNER CONSISTENT WITH BOTH THE FEDERAL STATUTORY TEXT AND
THE STATE STATUTORY TEXT HOW CAN THE DIVISIONS INTERPRETATION AND THUS THE
REGULATION BE CONSIDERED PLAINLY UNREASONABLE, UNABLE TO BE HARM NONE NICEED OR
PATENTLY INCORRECT. THAT IS THE STANDARD AND IT'S NOT METD HERE.
THE REGULATION." CHIEF JUSTICE RABNER: MR. PLEASING HEAD.
STEPHEN SLOCUM: THE REGULATIONS COMPORTS WITH BOTH THE FEDERAL STATUTE
AND THE STATE STATUTE. ACCORDINGLY THE REGULATION SHOULD BE UPHELD AND THAT
ASPECT OF THE APPELLATE DIVISIONS DECISION SHRUBBERY VERSED.
CHIEF JUSTICE RABNER: MR. SLOEK UM, #I78 LOOKING AT SECTION TWO A OF THE FEDERAL
STATUTE. 1396 AFRMENT M 2 A WHICH SPEAKS TO NOT EXCEEDING THE POVERTY LINE
APPLICABLE TO A FAMILY OF A SIZE INVOLVED. HOW DOES THAT LANGUAGE GET US TO THE
POINT THAT YOU HAVE JUST STRESSED THAT YOU DON'T CONSIDER FAMILY SIZE UNTIL STEP
TWO? STEPHEN SLOCUM: SO YOUR HONOR WE NEED TO LOOK AT THE
PARENT THEY THE CALIFORNIA TEXT DREL BEFORE THAT LANGUAGE. SO IN THIS SAME SECTION
SORRY YOUR HONOR IN YES DRELG BEFORE THAT YOUR HONOR IN M 1 B SO DREL PRECEDING
PARAGRAPH IT SPECIFIES THAT THE INCOME QUOTE AS DETERMINED UNDER SECTION THEN IT
SPEAKS TO THE CROSS REFERENCE. JUSTICE PATTERSON: NOIR I
MOL JIES I MISSED THE REFERENCE IF YOU WOULDN'T MIND JUST REPEATING THAT.
STEPHEN SLOCUM: CERTAINLY. SO IN THE FEDERAL STATUTE, SO
42 U.S. C 1396 A M 1 B, INSTRUCTS THE STATES ANY STATES THAT KWASH TO ESTABLISH
THIS PROGRAM TO SET THE INCOME LEVEL, THE PARENT THEY THE CALIFORNIA TEXT
IN THERE SPECIFIES THAT INCOME IS TO BE DETERMINED UNDER SECTION 1612 WHICH IS
42 U.S.C. 1382 A FOR PURPOSES OF THE SUPPLEMENTAL SECURITY PROGRAM EXCEPT
AS PROVIDED IN 2 C. CHIEF JUSTICE RABNER: THAT IS A VERY LONG
STATUTE THAT I HAVE IN MY HAND CAN YOU DIRECT US TO THE PARTICULAR PART IN 1382
A WHERE WE SHOULD FOCUS ON. STEPHEN SLOCUM: SO IN 1382 AFRMENT,
LOOKING IN A 1- 2, SO IT IS THE FIRST I AM NOT SURE IF THE COURT HAS IT
PRINTED OUT ALL THE ELECTRICIAN IS IT WOULD BE ON THE FIRST CONVERSATION PAGE RIGHT
THERE AND IT GOOD INS WITH UNEARNED INCOME MEANS ALL OTHER INCOME INCLUDING
AND THEN LAWN CHEST INTO A VERY EXTENSIVE PARAGRAPH. SO THAT IS THE SPECIFIC.
JUSTICE FERNANDEZ-VINA: I AM SORRY CHIEF ARE YOU DONE.
STEPHEN SLOCUM: I APOLOGIZE IFRJT I WAS JUST HOPING THAT YOU COULD FOCUS
US IN ON THE FIRST AND SECOND STEP POINTING TO THE LANGUAGE IN THE STATUTE.
STEPHEN SLOCUM: SO. CHIEF JUSTICE RABNER: I SEE
THAT VERY LONG PARAGRAPH IN AFRMENT WHAT ARE YOU RELYING ON SPIFRL.
STEPHEN SLOCUM: YES SO THE UNFORTUNATELYLY IT COULD BE MORE ELEGANT IS
THE PROBABLY THE BEST WAY TO PHRASE IT, IT IS THAT SECTION, AFRMENT 2 CAPITAL
A HAS THE LONG DRAWN OUT EXPLANATION WHERE IT IS MORE ELEGANTLY PUT FORWARD IS
IN THE C F R AND THAT CITATION YOUR HONOR IS AT 20 C F R 416 DOT 1163 D
AS IN DAVID. THAT IS THE C F R FOBLG THIS STATUTE WHICH MORE PLAINLY AND ELEGANT
LY SFLANS THE SFRMENT S I METHODOLOGY AND THE TWO STEP PROCESS.
JUSTICE FERNANDEZ-VINA: COUNSEL CAN I ASK YOU A SIMPLE QUESTION? ON YOUR OPENING
STATEMENT IF I UNDERSTAND IT, INITIALLY YOU LOOK AT THE APPLICANTS' WAGES
TO SEE IF HE OR SHE IS QUALIFIED, CORRECT. STEPHEN SLOCUM: INCOME
AND VARIOUS MEANS YOUR HONOR. JUSTICE FERNANDEZ-VINA: OKAY
AND THEN IF THEY MAKE TOO MUCH THEY ARE OUT. STEPHEN SLOCUM:
YES. JUSTICE FERNANDEZ-VINA: THEN THE SEK STOEP IS IF THEY
MAKE ENOUGH TO QUALIFY THEN YOU LOOK AT FEEM ASSETS TO SEE IF THEY DEN DISQUALIFY
HIM. STEPHEN SLOCUM: IN SOME CIRCUMSTANCES. A. OR HER.
STEPHEN SLOCUM: YOUR HONOR ONLY IF THERE IS FLEL ELIGIBLE
SFUS OR ELIGIBLE SPOUSE WHO IS I BELIEVE IT'S PREGNANT OR A CHILD.
JUSTICE FERNANDEZ-VINA: BUT NONETHELESS THE INQUIRY THE DUJ INQUIRY IS TO DETERMINE
WHETHER THEY ARE DISQUALIFIED YOU DON'T LOOK AT THE FAMILY INCOME IN ORDER
TO SEE IF HE SUPPORTS OR HE OR SHE SUPPORTS OTHER PEOPLE THAT WOULD MAKE THEN
THEN QUALIFIED YOU LOOK AT IT THE OTHER WAY YOU ARE LOOKING TO DISQUALIFY
THEM STEP ONE IF HE OR SHE MAKES TOO MUCH THEN STEP TWO IF YOU LOOK TO SEE FTD
FAEJ MAKES E NUFZ THAT IS I AM FUNL ABL TO HIM OR HER TO DWIS QUALIFY BASICALLY
YOU ARE LOOKING FWOELT TO DIGS QUALIFY NOT TO LOOK TO SEE IF TLER COVERED IS THAT
IS THAT BASICALLY WHAT YOUR OPENING STATEMENT WAS. STEPHEN
SLOCUM: ULTSLY YES, YOUR HONOR BUT THE ONLY THE EXCEPTION I KWO MAKE TO THAT AND
IT GOES TO THE FOINT EARLIER WHERE WORDS AND SHADING CAN MATTER PARTICULARLY
IN THE LEGAL CONTEXT, IT'S NOT A MATTER OF TRIEK TO SET ROAD BLOCKS OR SET DIFFERENT
BARS DEFINE ANYWAY TO DISQUALIFY. JUSTICE FERNANDEZ-VINA:
I DIDN'T SAY THAT I SAID YOU ARE LOOKING THE AT BOTH TO GIS QUALIFY NOT TO
LOOK AT THE SEK FART KWALGS HIM FWAU HE SUPPORTS MORE DEPENDENTS HONOR WHATEVER
YOU ARE LOOKING AT IT THE OTHER WAY TO DISQUALIFY FO SEE IF THEY ARE
DISQUALIFIED NOT LOOKING TO DISQUALIFY LOOKING TO SEE IF THEY ARE DISQUALIFIED IS THAT
CORRECT. STEPHEN SLOCUM: YES AND TO THAT POINT IT IS NOT
AN ACTIVE EF FORLT TO DISQUALIFY OR FIND A WAY TO PAT SPAT LET'S TAKE A SIMPLE
AND PERHAPS STREEM EXAMPLE YOU HAVE SOMEONE WHO IS JUST BELOW #40S INCOME
AND ASSETS ARE JUST BELOW THE LINE THAT'S DRAWN IN THE MEDICAID LAW AND THEN THEY
TURN OUT TO HAVE TEN DEPENDENTS. WHO HAVE NO INCOME JUST TO MAKE IT SIMPLE.
DO THE TEN DOES THE FACT THAT INDIVIDUAL HAS TEN DEPENDENTS HAVE ANY BEARING
ON THE INQUIRY? STEPHEN SLOCUM: IT WOULD ULTIMATELY YES IT
DOES COME IN DURING THE STEP TWO IT IS LOOKED AT IN STEP TWO IT IS PART OF THE
CALCULUS BUT IN THAT SITUATION BECAUSE THEY HAVE NO INCOME IT WOULD THE
INDIVIDUAL WOULD CERTAINLY BE ELIGIBLE YES. JUSTICE SOLOMON: BUT
NOT IF THAT INDIVIDUAL MADE JUST ABOVE THE POVERTY LEVEL INDIVIDUALLY.
STEPHEN SLOCUM: YES. JUSTICE SOLOMON: THAT
ONE INDIVIDUAL WHO MAKES JUST ABOVE THE POVERTY LEVEL AND IS LIVING ALONE
LET'S SAY, DOESN'T QUALIFY AS DOES THE PERSON JUST A BOFTD POVERTY LEVEL AND LIVING
WITH TEN DEPENDENTS DOESN'T QUALIFY. STEPHEN SLOCUM: YES, YOUR
HONOR. JUSTICE SOLOMON: BUT WASN'T THE PURPOSE OF THE AMENDMENTS
TO THE STATUTE TO EXPAND EL JIBLTH? STEPHEN SLOCUM: YES, YOUR HONOR
AND IT DID SOOL SOLG LOU. STEPHEN SLOCUM: THAT IS ANOTHER
POINT I WANT TO EM IF AN IS SIGH SOEB BRA IN 1978 #6 THE FRAT STATUTE WOE
IT PASSED THE IN TEJS WAS TO EXPANDS MEDICAID IT WAS TO EXPAND MEDICAID INCREASE
THE INDIVIDUALS WHO ARE ELIGIBLE FOR MEDICAID IT CERTAINLY DID NOT KRETD
MEDICINE KWARD ACTOR FOUL OR ANY SORT THERE WAS NO INDICATION OF INTENT TO GET
EVERYBODY WHO CAN POSSIBLY BE ON MEDICAID ON MEDICAID RATHER IT WAS AN EXPANSION
THAT EXPANSION WAS DEFINITELY EFFECTUATED. IN NEW JERSEY ALONE THE SPARNGS DID
INCREASE NEW JERSEY PARTICIPANTS OR BENEFICIARIES BY I BELIEVE
APPROXIMATELY 65 THOUSAND INDIVIDUALS AND THAT WAS ACCOMPLISHED IN MULTIPLE WAYS.
ONE WAS THE FUNDAMENTALAL SWITCH FROM THE F B R THE FRAM BENEFIT RIGHT TO
THE IF 78 RESPECT FEDERAL POVERTY LEVEL WHICH AS WHEN USED AS A KEY STONE AS A
STARTING POINTS WHERE ALL THE STANDARDS ARE GOING TO COME FROM AND THIS IS THE
FIRST DOLLAR AMOUNT WE'RE LOOKING AT, THAT EXPANSION -- THAT CHANGE.
JUSTICE SOLOMON: LOWERED SLER DLEERMG. STEPHEN SLOCUM: OF IN WILL GO
P DRAS LIE INCREASED. JUSTICE SOLOMON: LOWERED THE TLESHL
HOLE SFLOO YES OR IT INCREASED THE MAXIMUM MEANS FROM AND THESE ARE MADE
UP NUNLS BUT FROM A $500 TO $600 IT GREATLY SPANLTDZED THE PROGRAM WHICH IS WHAT
HAPPENED IN NEW JERSEY. THE OTHER POINTS I WANT TO STRESS IS THAT TIME
ING ASPECT AS WELL, THAT THIS METHODOLOGY AND THE REGULATION THESE ARE NOT AFTER
THE FACT YOU KNOW THESE ARE NOT IT IS NOT AGENCY SGLIEKS ACTION OR AGO SEE
RULES TAKD ON LATER TO TRY TO CLOSE THE PROGRAM OR LIMIT EL JIBLTD.
JUSTICE ALBIN: BUT IT DOESN'T -- LOOK, YOUR DEFINITION DOESN'T SEEM TO FOLLOW
THE LANGUAGE. I HEARD -- WHAT JUSTICE FERN DECEMBER VEEN AN SAID YOU HAVE
A DOUBLE DISQUALIFICATION THEORY OVER HERE. IF HE'S JEL INELIGIBLE INDIVIDUALLY
HE'S GONE IF HE IS ELIGIBLE THEN HE CAN GET FLOKD OUT BY HIS FAMILY. SO YOU
FOUND TWO WAYS TO DISQUALIFY HIM AS OPPOSED TO IF HE'S ELIGIBLE BY $1 INDIVIDUALLY
AND HE HAS NINE CHILDREN, HE'S DONE. WE DON'T CONSIDER THE NINE CHILDREN.
AND THE FACT THAT THEY'RE LIVING IN DIRE POVERTY. THAT'S WHAT I'M HEARING FROM YOU.
AND I'M LOOKING AT THE STATUTE I WANT US TO LOOK AT THE STATUTE. AND I'M
LOOGS AT OUR STATE STATUTE N.J.S.A. 30: 4 D- 3 SMALL I 11 I WOINT GO THROUGH EVERYTHING
BUT IT SAYS WHOSE INCOME DOES NOT EXCEED 1 HUNDRED PUBLIC EMPLOYMENT RETIREMENT
SYSTEM OF THE POVERTY LEVEL ADJUSTED FOR FAMILY SIZE. AND THE DEFINITION OF
POVERTY LEVEL MEANS THE OFFICIAL POVERTY LEVEL BASED ON FAMILY SIZE. NOW, THAT
LOOKS -- I KNOW YOU ARE SAYING THIS IS EXTRAORDINARY COMPLICATED AND ONLY THE
REGULATORS CAN SEEM TO UNDERSTAND THIS, BUT THAT LOOKS FAIRLY SIMPLE TO
ME. AND THEN WHEN I LOOK AT THE REGULATION, I DON'T SEE THAT LANGUAGE THERE
THERE IS NOTHING ABOUT FAMILY SIZE THERE. WHY CAN'T MEMBERS OF THE JUDICIARY,
MEMBERS OF THE PUBLIC UNDERSTAND THE STATUTE WITHOUT ALL OF THIS REGULATORY RIG
A MONTH V IN A ROLE THAT SEEMS TO PUT THE STATUTE ON ITS ON ITS HEAD?
STEPHEN SLOCUM: ULTIMATELY YOUR HONOR AND OBVIOUSLY RESPECTFULLY.
JUSTICE SOLOMON: NICE E LIT RACIAL. STEPHEN SLOCUM:
SO ULTIMATELY THAT IS THE PIT FALL THAT THE APPELLATE DIVISION FELL INTO AND IT
WAS THE DESIRE TO JUST LOOK AT THE STATUTORY TEXT AGAIN TO EXCISE PHRASES
READ THEM IN A VACUUM KWOUT ALL THE MEDICINE INDICATE CONTEXT. AND YES, JUST A
FACIAL READING AND I SERJ AM THE NOT GEELG FO SAY THE STATUTE DOESN'T CREW THAT
LINE ADJUSTED FOR FAMILY SIZE AND RESOURCES YAD TODAY YAD TODAY YES, IT IS
THERE, BUT THE DIVISION IS NOT READING IT OUT WE ARE NOT IGNORING IT QUEER
APPLYING IT CONSISTENT WITH THE FEDERAL REQUIREMENT TO USE THE S S I METHODOLOGY
WHERE IT APPLIES. AND THAT'S ULTIMATELY THE IR ^ REMEMBERING ^ WRECK SIGH
ABL PROBLEM WITH APPELLANTS READING OF THE STATUTE WHICH THE APPELLATE DIVISION
ACCEPTED. JUSTICE ALBIN: LOOK, THE LEGISLATE ^ YOURS ^
YOURSELF PASSING A STATUTE SO WE ARE TRYING TO FIGURE OUT LIKE WHAT DID THEY MEAN?
DID THEY NOT MEAN THE WORDS THAT THEY PUT ON THE STATUTE? DID THEY MEAN
INSTEAD WORDS THAT COMPLETE EXCISE ADJUSTED FOR FAMILY SIZE AS IT APPEARS IN YOUR
REGULATION? WHEN I SAY YOUR ^ REMEMBERING ^ WRECK ULGS BECAUSE YOU'RE WITH THE
DIVISION THAT'S PROMULGATED THESE REGULATIONS. AND YOUR ADVERSARYS ARE SAYING
THAT YOUR REGULATION IS BASICALLY NULLIFYING WHAT THE LEGISLATURE PUT IN THAT
STATUTE. INCOME DOES NOT EXCEED A HUNDRED PUBLIC EMPLOYMENT RETIREMENT SYSTEM
OF THE POFR SEE LEVEL ADJUSTED FOR FAMILY SIZE AND NOW YOU'VE COME UP WITH YOUR
OWN LITTLE I AM SAYING YOU, DIVISION, YOUR OWN LITTLE MODEL THAT TAKES OUT FAMILY
SIZE. JUSTICE FERNANDEZ-VINA: HE IS AN TOERJ GENERAL IS NOT
WITH THE DIFRGS SFLOO THE SHORT AND ALSO IS NO YOUR HONOR ARN IRNL GOING TO QUALIFY.
THE DIVISIONS MODEL DOES NOT TAKE OUT FAMILY SIZE IT APPLIES FAMILY SIZE
WHERE FAMILY SIZE SHOULD BE APPLIED IN MEDICAID LAW. JUSTICE
ALBIN: YOU HAVE FAMILY SIZE CAN KNOCK THEN OUT NOT TO GET THEM IN. BECAUSE IF
HE'S ELIGIBLE, YOU'LL KNOCK HIM OUT BASED UPON FAMILY SIZE YOU ARE WILLING
TO LOOK TO SEE KWLORT ALL OF HIS CHILDREN HAVE BIG INVESTMENTS OR THEY ARE MAKING
A LOT OF INCOME BUT IF HE HAS NINE CHILDREN OKAY, WHO ARE UNDER AGE AND
HAVE NO INCOME, THEN YOU DON'T WARRANT TO CONSIDER THAT YOU DON'T TWANT TO ADJUST
THAT FOR FAMILY SIZE. AM I CORRECT? STEPHEN SLOCUM: NO,
YOUR HONOR AMAL DEL SNEE HOW I AM WRONG ABOUT THAT. STEPHEN
SLOCUM: THERE ARE A NUMBER OF THINGS TO RESPOND TO THERE. ONE, MEDICAID IS A
PUBLIC ASSISTANCE PROGRAM OF LIMITED RESOURCES. IT IS NOT THIS IS NOT AN
ENDLESS WELL FROM WHICH MONEY CAN NO, THIS IS A LIMITED PROGRAM, IT IS A HIGHLY
REGULATED PROGRAM WITH BRIGHT LINE RULES. JUSTICE ALBIN: I
UNDERSTAND THAT. BUT TO MY QUESTION, IF HE'S INELIGIBLE BY A DOLLAR, YOU DON'T
CARE THAT HE HAS NINE CHILDREN TO FEED. THAT'S FLOTD PART OF YOUR METHODOLOGY
NIM. YOU DON'T ADJUST FOR THAT FAMILY SIZE UNDER YOUR INTERPRETATION. AM I RIGHT
OR AM I WRONG? STEPHEN SLOCUM: THIS SPECIFIC PROGRAM.
JUSTICE ALBIN: YES. STEPHEN SLOCUM: YES FOR THIS
SPECIFIC PROGRAM FOR A B D MEDICAID FAU FAUS SFRNLTS THAT WHAT WE ARE HERE
FOR THIS SPECIFIC PROGRAM. STEPHEN SLOCUM: YES, YOUR HONOR BUT MY
ONLY POINT IS TO THE EQUITY CONCERNS OF AN INDIVIDUAL WITH NINE CHILDREN
WHO IS ONLY A DOLLAR OVER, THERE ARE MANY OTHER MEDICAID PROGRAMS OTHER PUBLIC
ASSISTANCE FOR WHICH AN INDIVIDUAL MAYBE ELIGIBLE UNDER THESE RULES AND
THIS FWRIET LINE RULE FOR THIS PROGRAM, THEY ARE INELIGIBLE. JUSTICE
LAVECCHIA: BUT THE LEGISLATE ^ YOURS ^ YOURSELF LANGUAGE FOR THIS PROGRAM IS HAS
SET UP A STRUCTURE THAT WORKS ON THE BASIS OF INCOME DEEMING. YOU LAID
THAT OUT IN YOUR ORIGINAL EXPLANATION OF THE SYSTEM. YOU'VE DIVIDED IT INTO TWO
PARTS AND HAVE CHOSEN TO LOOK AT DEEMING AND COMPLIANCE AND ONLY ONE PART
FTD REGULATORY AND LIT I CAN PROCESS. BUT IT SEEMS TO ME THAT THE REGULATION SCHEME
IN ALL OF ITS PARTS NEEDS TO COMPLY WITH THE STATUTE. SO THE PROBLEM THAT I
HAVE STENG BACK AND SEEING THE BIG PICTURE OF THIS REG.. IS WE HAVE A METHODOLOGY
BILTD ON INCOME DEEMING, RIGHT, I DON'T UNDERSTAND WHY IT'S RATIONAL FOR
AN APPLICANT WHOSE RECOGNIZED TO BE LIVING NOT INDIVIDUAL LE BUT IN A COHESIVE
HOUSE HOLE, HAS TO FIRST BE ELIGIBLE AS AN INDIVIDUAL WHEN THE ENTIRE STRUCTURE
IS PREMISED ON AN INCOME DEEMING METHODOLOGY TO BEGIN WITH FOR THIS AFRMENT B D
PROGRAM SPECIFICALLY. CAN YOU HELP ME WITH THAT. STEPHEN
SLOCUM: I THINK SO, YOUR HONOR. AND IT'S WE'RE THE GENESIS OF THISSS I METHODOLOGY
COMES FROM AND WHERE SO WHERE I WOULD TAKE EXCEPTION WITH THE COURTS RESZ
TAGS THERE IT IS NOT THAT WE OR I OR THE AGENCY HAS CREATED THIS METHODOLOGY OR
HAS FINN ANYTHING LD THE SYSTEM WHERE WE ONLY LOOK AT DEEMING AT STEP TWO
THAT IS NOT THE GENESIS THE GENESIS OF THE DEEMING IS AT THE FEDERAL LEVEL, IT IS
UNDER SOEB BRA IT IS UNDER THAT C F R IT IS ALSO IN THE PAMS TS PROGRAM
OPERATION GOES PLAN YOU WILL SYSTEM AS FUB BY C M S VERY CLEARLY SPELLING OUT THAT'S
THE PROCESS, THAT IS THE METHODOLOGY, THAT IS HOW YOU CONDUCT DEEMING. SO
IT'S NOT THAT THE DIVISION HAS CONCOCTED IT, WE ARE FOLLOWING THE FEDERAL REQUIREMENT
AND ULTHLY THAT. JUSTICE LAVECCHIA: THE FEDERAL REQUIREMENTS
ALLOWS THE STATE TO SETD IT AS LONG AS THE LEVEL IS NOT ABOVE THE FEDERAL POVERTY
LEVEL CORRECT. STEPHEN SLOCUM: YES, YOUR HONOR.
JUSTICE LAVECCHIA: OKAY. STEPHEN SLOCUM: THE STANDARD YES.
JUSTICE LAVECCHIA: RIGHT SO THAT DOESN'T MEAN THAT IT LOCKS IN THAT THE
REST OF THAT METHODOLOGY TO HELP HOW NEW JERSEY HAS CLOSE EVEN TO STRUCK TLUR
THIS SPECIFIC OPTIONAL PROGRAM. STEPHEN SLOCUM: NO YOUR HONOR.
THE MELT DOLL GEE IS A MANDATE THAT IS AS SET FORTH IN THE FEDERAL REGULATION
THE MELT DOLL GEE THIS IS THIS IS THE MEANS OF DETERMINEING NOT THE DOLLAR AM THE
STANDARDS WHICH THE STATE MAY SET BUT THE MEENTS OF DETERMINEING AND CALCULATING
WHAT YOU ARE GOING TO COMPARE TO THAT STANDARD THAT IS A PREREQUISITE AND
THAT IS AGAIN CONCEDED IN BOTH APPELLANTS BRIEFING AND THE APPELLATE DIVISION ALSO
NOTED IT. AND THAT IS KIEFR THE ULTS PROBLEM AND I THINK THAT PIT FALL WITH
THE APPELLATE DIVISIONS LOGIC AND TURNING TO JUST LOOK AT THE TEXT IS THAT. IF
YOU ACCEPT THAT READING, THEN THE STATE CANNOT APPLY THESS I METHODOLOGY. THAT
READING WOULD BE THAT THE STATE STATUTE FORBIDS THIS METHODOLOGY. BUT THE
FEDERAL STATUTE WHICH THE STATE MUST COMPLY WITH AND WHICH THE MEDICINE INDICATE
PROGRAM MUST COMPLY WITH, SFRESLY REQUIRES THIS METHODOLOGY.
CHIEF JUSTICE RABNER: SO ARE YOU SAYING THAT THE NEW JERSEY STATUTE ITSELF IF READ
LITERALLY SECTION 11 THAT WE HAVE BEEN LOOKING AT, IS IN CONFLICT WITH
FEDERAL LAW? STEPHEN SLOCUM: UNDER SOMETHING INTERPRETATION
EVIDENTLY YOUR HONOR YES. CHIEF JUSTICE RABNER: BECAUSE YOU HAVE
TOLD US EARLIER THAT IT'S THE CROSS REFERENCE TO SECTION 138882 AFRMENT
THAT PRINGS IN THE METHODOLOGY AND BEFORE YOU SIT DOUJ I AM GOING TO HAVE YOU EXPLAIN
WHAT PART OF THAT STATUTE BECAUSE I HAVE BEEN LOOKING AT IT AND HAFSHLT
FOUND IT AND WE WILL COME TO THAT LATER BUT THAT CROSS REFERENCE DOESN'T APPEAR
IN THE NEW JERSEY LAW AT SEBLGS 11. SDOOS SNA MAKE THE NEW JERSEY LAW CONTRARY
ON ITS FACE. STEPHEN SLOCUM: SO IF READ THAT WAY, IF READ
UNDER APPELLANTS READING AND THAT I WILL CALL THE PLAIN TEXT READING, YES, THE
SHORT ANSWER IS YES. AND THAT IS WHY IT IS NECESSARY FOR THE DIVISION TO APPLY
ITS SUBJECT MATTER EXPERTISE AND TO A MRIETD MEDICAID CONTEXT TO READ THAT
STATUTE WHICH IT HAS DONE TO READ THAT STATUTE IN A WAY CONSISTENT WITH THE FEDERAL
LAW AND THE FEDERAL MEDICAID REQUIREMENTS WHEN NAKING THIS REGULATION.
THE STATE AB I AM GOING TO KEEP SFRESING IT, THE STATE IS NOT READING THE LANGUAGE
OUT WE ARE NOT IGNORING IT WE ARE NOT TRYING TO WARP IT, WE ARE APPLYING
IT WHERE IT APPLIES. SPAT PAT LAST AGENCY SMAD A DETERMINATION THAT THERE IS A
CONFLICT BETWEEN OUR STATUTE AND FEDERAL LAW? STEPHEN SLOCUM:
ULTIMATELY YOUR HONOR I THINK DEPENDING ON THE OUT KOMENT OF THIS CASE IS THE
SHORT ANSWER THERE. THE PRACTICAL RAMIFICATIONS OF THE COURT'S DECISION
CAN BE VERY SUBSTANTIAL IF TS COURT RULES THAT IF THE COURT IF THE COURT A DONTS
THE APPELLATE DIVISION GOES READING OR APPELLANTS READING THAT THE STATE
STATUTE FORBIDS APPLICATION OF THE METHODOLOGY, A LOT OF THIRNGS THEN YOU KNOW
COME TO AHEAD. THE REGULATION ITSELF KWO NEED TO BE I AMENDED OR CHANGED
THE KROGS REFERENCE THE REGULATION WITHIN IT FOR THE OTHER DEEMING ALSO NEEDS TO BE
DEALT WITH. THE STATE PLAN WILL NEED TO BE AMENDED WITH C M S APPROVAL. THEE
RECEIPT CLI DISAPPROVAL BUT THAT IS HOW TO MAKE THEM OUT AND THEN ULTIMATELY THE
EFFECT OBVIOUSLY WOULD BE AN INCREASED IN INDIVIDUALS RECEIVING BENEFITS AND
WHATEVER THAT COST MIGHT BE. JUSTICE ALBIN: EVEN THE FEDERAL LAW,
I THINK THIS HAS BEEN REFERENCED ALREADY, 1396 AFRMENT M 2 A, MAY NOT EXCEED
A PERCENTAGE NOT MORE THAN ONE HUNDRED PUBLIC EMPLOYMENT RETIREMENT SYSTEM OF THE
OFFICIAL POVERTY LINE DOT DOT DOT APPLICABLE TO A FAMILY OF THE SIZE
INVOLVED SO THE FEDERAL STATUTE AS WELL SEEMS TO HAVE SEEMS TO INDICATE THAT THE
INCOME LEVEL HAS TO BE IN RELATIONSHIP TO FAMILY SIZE. AM I WRONG?
STEPHEN SLOCUM: IN SHORT, YES, YOUR HONOR. AND THE REASON BEING THAT
2 A SPEAKS TO THE STATE SETTING THAT STANDARD AND THE ULTIMATE DOLLAR
AMOUNT AND FIGURE THAT WLEER TO COMPARE THE INDIVIDUALS INCOME WITH. SO IN
SETTING THAT STANDARD THERE ARE DIFFERENT STANDARDS FOR EACH FAMILY SIZE.
JUSTICE ALBIN: WHAT DID THEY MEAN? WHAT DID THEY WHAT DID THE FEDERAL DRAFTERS
OF THIS STATUTE MEAN WHEN THEY SAID APPLICABLE TO A FAMILY OF THE SIZE
INVOLVED, WHY IS THAT LANGUAGE THERE? YOU SEEM -- ICHL' HEARING YOU YOU SEEM TO
READ THAT OUT OF THE FEDERAL STATUTE AVEN THEN YOU ARE READING IT OUT OF THE
STATE STATUTE AS WELL. STEPHEN SLOCUM: NO YOUR HONOR. CERTAINLY
NOT READING IT OUT. IT IS WHEN THE STATE SET THE STANDARDS AND THE ULTD
THE ELIGIBILITY STANDARDS THAT FINAL DOLLAR AMOUNT BY WHICH FOLLOWING THE MET DOLT
GEE THE APPLICANTS AMOUNT A DOLLAR FIGURE IS SET THERE AND CALCULATED THEN
THAT IS COMPARED TO THE STANDARD AND THE STARN ARDZ WINBERRY REALTY BEING SETS
HERE UNDER 2 A ARE THERE IS A DIFFERENT STANDARD FOR EACH FAMILY SIZE SO
YOU KNOW IN THIS SITUATION AN INDIVIDUAL OR G C APPLYING WITH A SPOUSE AND CHILDREN
A FAENL SIZE OF FOUR, THERE IS A HIRE FAMILY THERE IS A HIRE POFR SEE LINE
FOR A FAENL OF FOUR THEN THERE IS A FOR A FAENL SIZE OF TWO ALS IN EFRMENT MFRMENT
SO WHEN YOU GET TO THE SECOND STEP THAT INCOME LEVEL WHICH CANNOT EXCEED TO
THE OFFICIAL POVERTY LINE APPLICABLE TO THE FAMILY SIZE INVOLVED, THAT'S PART
THAT'S NOT EXACTLY PART OF THE SOAK STEP BUT IT IS THE CONCLUSION OF THE SECOND
STEP COMPARING IT TO THE STANDARD THAT IS BEING ESTABLISHED AND THE RULE
FOR DIFFERENT STANDARDS FOR EACH FAMILY SIZE. CHIEF JUSTICE
RABNER: YOUR ANSWER THEN AGAIN PIF OTS OFFER OF THE REFERENCE TO 1382 THAT
APPEARS IN SESHGS ONE BFRMENTD BUT NOT IN 2 AFRMENT. COULD YOU DIG DOWN A LITTLE
DNAER ARN TEM US WHAT YOU ARE RELYING ON IN 1382 A? STEPHEN
SLOCUM: THE SHORT AND ALSO IS UNFORTUNATELY NO YOUR HONOR. THAT'S FAIR.
CHIEF JUSTICE RABNER: THAT'S TWR I END UP. STEPHEN SLOCUM:
THAT IS FAIR. THE STATUTE IS IS DENSE IS THE POLITE EAST WAY TO PUT IT.
HOWEVER, THE FEDERAL REGULATION FOLLOWING IT IS MUCH MORE ELEGANT AND MUCH MORE
CLEAR THE C F R MORE CLEARLY EXPLAINS THIS IS EXACTLY THE TWO STEP PROCESS AND
THIS IS THE INTENTION OF THE POINTS OF THAT STATUTE FAT SPAT PLEASING HEAD.
JUSTICE PIERRE-LOUIS: DO YOU HAVE THAT REGULAR ULGSZ IN FRONTS
OF YOU AND IT IS SESHGS THAT YOU ARE RELYING UPON BUT AS HAS BEEN DISCUSSED THERE
IS SOME VERY CLEAR PLANNING LANGUAGE IN OUR STATUTE IN THE FEDERAL STATUTE
THAT DISCUSSES THE FAMILY SIZE APPLYING THE FAMILY SIZE YOU'RE TELLING US THAT
THE THAT 1382 A DOES NOT MAKE IT CLEAR WITH REGARD TO THE TWO STEP PROCESS
SO CAN YOU TELL US EXACTLY WHERE IN THE REGULATIONS YOU ARE RELYING ON TO TELL
US THE COMMUNITY SUPERVISION FOR LIFE IGNORE THIS PLAIN LANGUAGE IN OUR OWN
STATUTE AND IN THE FEDERAL STATUTE WITH REGARD TO THE FAMILY SIZE?
STEPHEN SLOCUM: ONE MOMENT YOUR HONOR. SO THE CITATION YOUR HONOR IS 20 C F R
416 DOT OR .1163 THEN IT IS SUBSECTION D AS IN DAVID. I WILL SEE IF I CAN
-- AND THE CITATION UNFORTUNATELY I DO NOT HAVE A SEPARATE PRINT OUT OF THAT KRFR
ARE ARE IN FROJTS EVER ME HOUFRN IT IS QUOTESED AT LENGTHS IN THE DIVISIONS
CERTIFICATION AT PAGE 17 TO 18 AND I CAN READ THAT THERE OR SPECIFICALLY THE UNDER
LINED EMPHASIZED LANGUAGE QUOTE WE SUBTRACT ONLY YOUR OWN COUNT ABL
INCOME FROM THE FEDERAL BENEFIT RATE FOR AN INDIVIDUAL TO DETERMINE WHETHER YOU
ARE ELIGIBLE FORSS I BENEFITS. THEN THE NEXT POINTS OR SUB .2 AGAIN THE QUOTED
LANGUAGE: WIE YOU ANG YOUR INELIGIBLE SFOUS AS AN ELIGIBLE. THE QUOTED
LANGUAGE THERE ALONE DIDN'T HELP FRM IN THE AMOUNT OF YOUR IF IN THE AMOUNT IF
IF THE AMOUNT OF YOUR INELIGIBLE SPOUSES INCOME THAT REMAINS AFTER APPROPRIATE
ALLOCATIONS IS MORE THAN THE DIFFERENCE BETWEEN THE FEDERAL BENEFIT RATE OR AN
ELIGIBLE COUPLE AND THE FLALG GRFRMENT RATES FOR AN ELIGIBLE INDIVIDUAL WE
TREAT YOU AND YOUR INELIGIBLE SPOUSE AS AN ELIGIBLE COUPLE. SO THE CREDIT OF ARE
AS QUOTED ON PAGE 17 OF THE DIVISIONS CERTIFICATION DOES SPECIFY IN VERY
CLEAR LANGUAGE THAT THERE ARE TWO THE STENS STENS UNDER FARG TWONL SWEE LOOK AT
YOU FIRST PARAGRAPH TWO WIE THEN LOOK AT THE SPOUSE. JUSTICE
SOLOMON: WHERE DOLLS IT IS AN I THAT WHERE DOES IT SAY KWEE LOOK AT YOU FIRST?
BECAUSE THE STATUTE DOESN'T SAY THAT. AND THE JERSEY STATUTE DOESN'T SAY
THAT. BOTH STAFRPS FEDERAL AND STATE CAN FOR FAMILY SIZE. WHERE DOES THAT REGULATION
SAY FIRST WE DECIDE IF YOU ARE INDIVIDUALLY ELIGIBLE THEN.
JUSTICE PATTERSON: IT IS IN THE CREDIT OF ARE SECTION SOLT SOL I AM LOOKING
AT IT #IR789 NOT LOOKING AT THE REGULAR GO AHEAD. STEPHEN SLOCUM:
IS THAT EXACT KWORDZ OF SAGS FIRST OR SAYING IT IS A TWO STEP SPROS EAST THE
ELEGANT WORDING IT IS NOT THERE, THE ON ITS FACE THOUGH THE CLEAR READING OF THE
THE CREDIT OF ARE DOES DEFER ANY OF THE LE GHET CERT THOSE TWO.
JUSTICE SOLOMON: UNFORTUNATELYLY FEDERAL CASES AND STATD CASES THAT HAVE TOIPTDED
THAT DISAGREE WITH YOU. THEY SAY IT CONSIDERS FAMILY SIZE.
STEPHEN SLOCUM: I BELIEVE THE COURT IS REFERENCING YOUR HONOR IS REFERENCING.
JUSTICE SOLOMON: SISHTHS SISHTHS I TLIT WAS SFLOO MRARTD
IN WITHIN OBLG AND TWEET ON CASES SOL SOMERSET COUNTY I BELIEVE SO.
STEPHEN SLOCUM: CERTAINLY YOUR HONOR. THOUGH CASES ARE VERY SNEDLY DISTINGUISHABLE
ALTHOUGH IT IS VERY SIMILAR LANGUAGE, VERY SIMILAR LANGUAGE. JUSTICE
SOLOMON: IT IS IDENTIFIES CALIFORNIA LANGUAGE. STEPHEN SLOCUM:
HOWEVER YOUR HONOR THAT IS A MEDICARE STATUTE NOT MEDICAID AND THERE ARE I AM
NUMBER RABL DIFFERENCES BETWEEN THE TWO ANG AGAIN THIS IS WHERE THE CONTEXT
MEDICAID ^ CON ^ CONNECTICUT TEBLGS REALLY APPLIES BUT FURTHER THAT UNDER THROWS
3 CASES THAT MEDICINES CARE PROGRAM TALKED ABOUT IS INCREDIBLY SMALL PROGRAM
IT DOES NOT INCLUDE DEEMING AT ALL SOL SOLG FOR GET THAT FOR A MINUTE FRM IS THERE
ANYTHING THAT SAYS THAT STATUTE WITH IDENTICAL LANGUAGE THAT HAS BEEN
INTERPRETED DIFFERENTLY THAN YOU SAY DOESN'T APPLY IN THE CASE OF MEDICINE KAD OR
MEDICARE? IT DOESN'T APPLY HERE. A. MEDICARE MEDICAID. DOESN'T APPLY
HERE. STEPHEN SLOCUM: SO OTHER THAN THOSE CASES ON THEIR
FACE TALKING ABOUT A DIFFERENT PROGRAM A DIFFERENT I BELIEVE THE PROGRAM IS MEDICARE
AND MEDICAID AND ALSO MUCH SMALLER FRAM WITHIN MEDICARE THAT DOSZ NOT INCLUDE
DEEMING AND I BELIEVE ONLY INCLUSION A KWON HUNDRED DOLLARS A KNOWLY.
JUSTICE SOLOMON: I GET ALL THAT THE LANGUAGE IS THE SAME IT'S CAN INTERPRETED
BY FEDERAL AND STATE COURTS DIFFERENTLY THAN YOU SUGGEST. OUR STATUTE,
THIS STATUTE, USES THE SAME LANGUAGE AND YOU WANT IT INTERPRETED DIFFERENTLY HERE.
STEPHEN SLOCUM: NOT EXACTLY YOUR HONOR AND THERE IS ALSO
CONTACT MATCH CHOE THE SECOND CIRCUIT DECISION WHICH THE DIVISION HAS CITED WHICH
DOES SPEAK AT LENGTH ABOUT THIS DIFFERENTIATION BETWEEN THE STANDARD
AND METHODOLOGY AND KAM CHOE DOES SFRESLY FIND THAT THE TERMINATION OF WHETHER TO
APPLY THIS ONE PERSON VERSUS TWO PERSON IS PART OF THE ME METHODOLOGY AND
DOES COMPORT WITH THE DIVISIONS READING OF THE FEDERAL STATUTE AS I HAVE EXPLAINED
AND ARGUED TODAY SO THERE IS PRECEDENT SUPPORTING THAT YOUR HONOR.
CHIEF JUSTICE RABNER: CAN I TAKE YOU BACK TO THE C CREDIT IF ARE REGULAR WHICH
YOU HAVE TOLD US IS QUITE CLEAR AS TO THE FIRST AND SECOND STEPS. TWEER'
HERE TALKING ABOUT FAMILY SIZE. THE C F R REG. THE IF IRM RIDE GOES IT CORRECTLY
TALKS ABOUT AN INELIGIBLE SPOUSES INCOME AND WHEN AND HOW THAT IS TOK
ALLOCATED. IT DOESN'T SPEAK TO THE ENTIRE FAMILY SIZE OR DOES IT?
STEPHEN SLOCUM: THE QUOTED LANGUAGE IN THE PETITION NOT ENTIRELY NOT AS DREL AS.
CHIEF JUSTICE RABNER: I AM LOOKING AT THE C F ARE REGULAR ITSELF
NOW DOES IT SPEAK TO THE NUMBER OF CHILDREN AND HOW THAT IS TO EFFECT THE
CALCULUS IF AT ALL. Q. BECAUSE I DON'T SEE IT IN THE REG.
STEPHEN SLOCUM: I DO NOT HAVE THE FULL CREDIT OF ARE TEXT BEFORE ME YOUR HONOR
INL HESITANT TO SPEAK ON THAT WITHOUT BEING ABLE TO MAKE SHURL.
CHIEF JUSTICE RABNER: IF IT DOESN'T SPEAK TO HOW ONE SHOULD TREELT CHILDREN OF THE
APPLICANT THEN IT IS THE BE ALL AND END ALL AS HAS BEEN SUGGESTED TO US.
STEPHEN SLOCUM: IT IS CERTAINLY NOT THE BE ALL AND ENTD ALL
YOUR HONOR. THAT IS NOT MY ARGUMENT THAT IS NOT THE DIVISIONS POSITION.
CHIEF JUSTICE RABNER: DOES IT AFFIRMATIVELY ESTABLISH THIS TWO STEP
MOUNTAIN DOEL GEE IF THE CREDIT OF ARE REGULAR DOES NOT REFERENCE CHILDREN?
STEPHEN SLOCUM: I APOLOGIZE I REALIZE I AM NOT ANSWERING
THAT QUESTION DREL YOUR HONOR. BUT THE ESTABLISHMENT OF THE TWO STEP PROCESS UNDER
THE S MANY MANY METHODOLOGY SFLOTD SCLOO I LOOK E I HAVE CREDIT OF ARE IT IS
ALSO SPELLED UT IN THE FOMS AND I BELIEVE THE POMS LANGUAGE IS MORE CONCRETE I
FWLEEFR IT USES THE LANGUAGE QUOTE MUST FIRST BE ELIGIBLE BASED ON HIS OR
HER OWN INCOME ". SO THE POMS DOES USE THE MCH MUCH CLEARER LANGUAGE AS DOES SFRES
LY SAY FIRST INDIVIDUALLY FWR LOOKING AT OERLS." CHIEF JUSTICE
RABNER: CAN YOU REMIENLTDZ US WHAT THE AK ANYONE FNLDZ STAR SFLO FLAM OOPGSS
MANUAL SYSTEM IT IS PUBLISHED BY CREDIT MANY OR MADE AVAILABLE ON LIENDZ BY CREDIT
MANYS THE POMS PARTICULARLY I AM REFERRING TO IS POMSS I 01320.400.
JUSTICE ALBIN: WHAT IS THAT. CHIEF JUSTICE RABNER: IS THAT A REGULAR.
WHO PROMULGATED IT. STEPHEN SLOCUM: IT IS THE EQUIVALENT
TO AGO SEE GUIDANCE. IT IS THE EQUIVALENT CREDIT MANYS EXPLAINING ITS
REGULATIONS AND PROVIDING A MORE IF A REQUEST APPROACH DMON SPAT PAT VERY CLOI
QUALIFY IN ILTHS LANGUAGE IT'S SAYING YOU THIS YOU THIS. STEPHEN
SLOCUM: IT'S MREENTS TO BE GUIDANCE MENTS TO BE UNDERSTANDABLE AS OPPOSED TO THE
IN FIT NITDLY CROSS REFERENCING COMPLEX YOU NEED A ROAD MAP.
JUSTICE ALBIN: WE HAVE THE STATUTE WE HAVE WHAT YOU CALL IS THIS ELEGANT ^ REMEMBERING
^ WRECK ULGS THAT EXPLAINS THE STATUTE THAT DOESN'T SEEN SO ELEGANT AND THEN
WE HAVE NOW THIS MANUAL TRYING TO EXPLAIN TO US THE REGULATION WHAT THE REGULATION
MEANS. WE EVER ALL THESE LAYERS. STEPHEN SLOCUM: UNFORTUNATELY
YES, YOUR HONOR AND I CAN'T PRETENDS THAT THE STATUTE SOMETHING THEY ARE
A NIGHT SNAR I WILL ADMIT THAT OPENLY I HAVE BEEN DOING THERE FOR 8 YEARS AND KIEFR
WISH I HADN'T. CHIEF JUSTICE RABNER: USUAL NOW ON RECORD.
STEPHEN SLOCUM: BUT AS HORNL AS THE STAFRPS ARE TLUKLY.
JUSTICE FERNANDEZ-VINA: ESSENTIALLY AIR GUIDES ANSWER MANUAL FOR FENL WHO APPLY
BUT IT IS NOT BINDING ON THIS COURT IT IS NOT BY THE LEGISLATURE BY ANY
REGULATING BY THE AGENCY IT IS JUST SOMETHING LIKE A QUESTION AND ANSWER FORMAT
SORT OF LIKE YOU KNOW THEY TEACH YOU HOW TO TUNE UP YOUR CAR SOMETHING LIKE THAT.
STEPHEN SLOCUM: I WOULD CERTAINLY DESCRIBE IT IN OTHER WEIGHT
THAN THAT YOUR HONOR AGAIN THE MOST. JUSTICE FERNANDEZ-VINA:
AZ SUM YOU HAVE A BIG CAR. STEPHEN SLOCUM: THE MOST KRAT
COMPLAR SON KWOB AN AGENT SIGH GUIDANCE OR A MEDICINE COME THAT THE H MANY
S MIGHT NISHLG IT IS A MORE PLAIN LANGUAGE HAS A LOT OF WEIGHT THAT PHRASE IS USED
GAUZE FAUS VETED BY IT IS. STEPHEN SLOCUM: ANYONE PARDON.
JUSTICE FERNANDEZ-VINA: IS IT VETED BY ANYONE LIKE THE AGENCY
THE HEAD OF THE AGENCY OR. STEPHEN SLOCUM: I'M NOT SURE YOUR HONOR
I CAN CERTAINLY SCHEK INTO THAT I CAN CONFIRM THAT SUBMIT A CERTIFICATION
OR CLARIFICATION AFTER ARGUMENT. IT IS PUBLISHED MADE AVAILABLE BY THE AGENCY
IT IS AN IT IS CERTAINLY AN OFFICIAL PUBLICATION BY CREDIT MANYS IT IS NOT
A SINGLE ROEG EMPLOYEE OR SOMEONE ON THE WE CAN END IT IS PUT FORWARD AS GUIDANCE
BY CREDIT MANYS. JUSTICE ALBIN: AND YOU ARE TELLING US WITH
RESPECT TO WHAT WOULD SEEM TO BE THE PLAIN LANGUAGE OF THE STATE STATUTE THAT WE
SHOULD DISREGARD THAT BECAUSE THE LEGISLATURE DID NOT MEAN WHAT IT SAID THERE.
STEPHEN SLOCUM: NOT DISREGARD YOUR HONOR APPLY IT WHERE IT
APPLIES WHERE IT APPLIES AND SPIFRL HERE SPEAKING AS TO WHAT THE LEGISLATURE MEANT
IN THE LEGISLATIVE HISTORY AND PARTICULARLY THE AS A MATTER OF REVIEW
FINANCE AND A SFROEP RACIALS STATEMENT FROM JUNE 15TH, 1987, THIS IS CITED BY THE
APPELLATE DIVISION, IT DOES SPEAK TO THE INTENTION IT IS SFRESLY STATED
THAT THE EXPANSION IS TO CREATE THE A B D MEDICAID PROGRAM IN NEW JERSEY PURNT
TO SOEB BRA AND TO EFFECTUATE SOEB BRAS' THE NEW PROGRAM IN NEW JERSEY.
JUSTICE ALBIN: I HAVE THE LETHS I HAVE STARMENT HERE TOS 2972 BETWEEN THE
HELTS AND WHERE EVER WELFARE COMMITTEE WHERE IT SAYS THE AS A MATTER OF BILL
29720 CREDIT ARE INCLUDES PERSONS WHO ARE 6 AN 5 YEARS OF ANL OR OLDER DABLTDZ OR
BLIENLDZ ON WHOSE INCOMES ARE LESS THAN THE APPROPRIATE POVERTY LEVEL FOR THEIR
FAEMG SIZE. FOR NAR FAIR SEEM THAT IS "WHAT IT SAYS ANG WHOSE ASSETS DO
NOT EXCEED THE LEVEL PERMITTED UNDER THE STATE'S MEDICALLY NEEDS I PROGRAM. NOW,
THAT SEEMS TO BE LETHD I HAVE HISTORY IN SUPPORT OF THE LANGUAGE OF THE
BILL CORRECT." STEPHEN SLOCUM: YES, YOUR HONOR BUT IT IS
AGAIN APPLYING FAMILY SIZE WHERE IT APPLIES. JUSTICE ALBIN: LESS
THAN THE APPROPRIATE POVERTY LEVEL FOR THE FAMILY SIZE. EXPANDS THE ELIGIBILITY
CRITERIA TO INCLUDE PERSONS A PERSON WHO IS DISABLED, OKAY, BASED UPON THE POVERTY
LEVEL FOR THE FAMILY SIZE. LIKE WHAT IS SO DIFFICULT ABOUT THAT? TO
UNDERSTAND? STEPHEN SLOCUM: AND AGAIN YOUR HONOR RESPECTFULLY
IT IS THAT PIT FALL THAT THE APPELLATE DIVISION FELL INTO THAT TRYING TO LOOK AT
JUST THAT PLAIN TEXT THE READS IT IN A VACUUM AND JUST READS IT.
JUSTICE ALBIN: I AM READING YOU THE LEG I HAVE AT LEAST THAT BILL THAT BILL COULD BE
MISTAKEN TOO. STEPHEN SLOCUM: YES, YOUR HONOR WELL IT IS
NOT MISTAKEN YOUR HONOR. JUSTICE PATTERSON: YOU ARE SAYING LET ME
SEE IF I UNDERSTAND WHAT YOU ARE SAYING. YOU ARE SAYING THAT SINCE THE
S S I METHODOLOGY HAS TO BE USED AND YOU ARE MAKING YOUR INTERPRETATION OF THE
S S I METHODOLOGY IS THE FAMILY SIZE DOES NOT MATTER WITH RESPECT TO POUR
NUMBERS OF FABS ONLY AS TO INCOME AND YOU ONLY DEAL WITH IT WITH E YOU GET TO THE
SECOND STAGE AFTER YOU LOOK AT THE INCOME, THEN NOT WITHSTANDING THE INTENT
OF THE NEW JERSEY STATUTE, IT CAN'T COMPORT WITH THE FEDERAL LAW. IS THAT WHAT
YOU ARE SAYING? STEPHEN SLOCUM: YES, YOUR HONOR. THAT
YES IF THE COURT ACCEPTS THE APPELLATE DIVISIONS READING OF THE STATE STATUTE
AND APPELLANTS READING OF THE STATE STATUTE IT IS IR ^ REMEMBERING ^ WRECK SIGH
ABL AND CANNOT BE HARMONIZED WITH THE FEDERAL REQUIREMENTS THAT WE APPLY
THE S S I METHODOLOGY AND LAST AND THE ONLY OTHER POINTSD ON THAT I REALLY WRANT
TO EMPHASIZE AND UNFORTUNATELY KEEP REPEATING MYSELF BUT THE DIVISION IS
NOT IGNORING THE LANGUAGE OR READING IT OUT, IT IS APPLYING IT AT THE POINT AND
AT THE TIME AND STEP WHERE IT APPLIES. CHIEF JUSTICE RABNER:
COULD THE STATE COME UP WITH A METHODOLOGY DIFFERENT THAN THE ONE THAT YOU HAVE
DESCRIBED THAT WOULD APPLY SO LONG AS IT DID NOT EXCEED A HUNDRED PUBLIC EMPLOYMENT
RETIREMENT SYSTEM OF THE OFFICIAL POVERTY LINE? STEPHEN SLOCUM:
ASSUMING A WAIVER OR ASSUMING A WAIVER OR APPROVAL OF A WAIVER OR AN EXPANSION
BY CREDIT MANYS, PRESUMABLY YOUR HONOR YES. JUSTICE LAVECCHIA: WHY
DO YOU SAY THAT WHEN SECTION 1396 A AND THEN YOU GET DOWN TO MFRMENT 1 A
AND B, TALKS ABOUT HOW ONE COUNTS INCOME EARNED VERSUS UNEARNED INCOME AND HOW
IT'S COMPARED, BUT IT STILL SAYS THAT CALCULATED INCOME IS COMPARED AGAINST
WHATEVER PERCENTAGE OF THE F P L APPLICABLE TO THE FAMILY SIZE FAMILY OF THE SIZE
INVOLVED THAT THE STATE CHOOSES TO APPLY FOR ITS F P L AS LONG AS IT IS BELOW
THAT F P L, WHY ARNTS WE SATISFYING THE FEDERAL REQUIREMENT?
STEPHEN SLOCUM: BECAUSE, YOUR HONOR, M 1 B REQUIRES THAT WHEN CALIFORNIA CULL
ING THE INDIVIDUAL'S INCOME OR IN CALCULATING ULTIMATELY THE FAMILY SIZE
INCOME FOR THAT STEP TWO IS APPLYING THIS METHODOLOGY. JUSTICE
LAVECCHIA: IT IS APPLYING THE METD DOLG GEE BUT YOU'RE INSISTING ON THE APPLICATION
AT A STAGE EARLIER THAN THE FEDERAL LAW SEEMS TO REQUIRE. I'M LOOKING AT
THE SAME FEDERAL LANGUAGE AND IT LOOKS AS IF THEY ARE LOOKING AT THE END PRODUCT
WHEREAS THE SO-CALLED METHODOLOGY THAT THE STALT IS ARGUEING IS COMPELLED
BY THE FEDERAL LAW DOES NOT SEEM TO BE INSISTING ON THAT FIRST STAGE THRESHOLD
THAT YOU ARE ARGUEING WE SHOULD IMPLEMENT THE STATUTE TO BE.
STEPHEN SLOCUM: IF I UNDERSTAND THE COURT'S QUESTION, I BELIEVE THE WHERE THE
^ SHRUGS ^ SOLUTION FOR THAT CONCERN WHERE THAT PROBLEM COMES FROM IS IN
COME CHOE AND LOOKING AT THAT THE DIFFERENCE BETWEEN ESTABLISHING THE STANDARD
SO THE THAT GO DOM AR AMOUNT VERSUS WHAT THE METHODOLOGY IS AND THE
CALCULATIONS AND HOW YOU DETERMINE WHAT THE DOLLAR AMOUNT IS. AND WHERE THAT MATTERS
PARTICULARLY IN TERMS OF THIS, IS IF YOU WERE TO SIMPLY LOOK IF YOU WERE
TO IF YOU TAKE INCOME OR IF YOU I AM SORRY IF YOU TRY TO LOOK AT A METHODOLOGY
WHERE YOU LOOK AT THE INDIVIDUAL YOU DON'T DO STEP KWON IF YOU JUMP STRAIGHT TO
STEP TWO, IF YOU. JUSTICE LAVECCHIA: YOU LOOK AT IT HOLE LIST
PARTICULAR CLI. STEPHEN SLOCUM: YES. THE PROBLEM THERE IS
THAT IF SGLUR YOU REMOVE THE METHODOLOGY AND IF YOU ONLY LOOK AT THE STANDARD AND
YOU WANT TO APPLY YOU LOOK AT THE INDIVIDUAL INDIVIDUAL'S INCOME SIMPLY
AGAINST THE STANDARD WITHOUT A METHODOLOGY INVOLVED, YOU LOSE YOU LOSE THE
CONCRETENESS OR THE CONCRETE FLEGS SNTD NECESSARILY THE WORDS I WARRANTS UJ FORM
FORM EVER CROSS FLIKTS IS A BETTER WHAT I TO PHRASE IT YOU LOSE HAVING THE
SAME APPROACH ABOUT WHAT IS CALCULATED AND WHAT IS CONSIDERED PART OF THAT INCOME.
JUSTICE LAVECCHIA: AS LONG AS YOU ARE APPLYING THE FEDERAL
REQUIREMENTS FOR TWA GETS DEEM AND WHAT DOESN'T, HAS JTD THE FEDERAL GOVERNMENT
ALLOWED THE STATE TO CREATE THESE OP SHUNG NAL PROGRAMS AS LONG AS THE ULTIMATE
LEVEL IS BELOW THE FEDERAL POVERTY LINE? IT SEEMS TO ME THAT'S WHAT THE LEGISLATURE
OUR LEGISLATURE'S LANGUAGE TRIED TO ACCOMPLISH. BY CREATING THIS A B D
PROGRAM. STEPHEN SLOCUM: I APOLOGIZE YOUR HONOR I JUST WLANTS
TO THINK IS THAT THROUGH FOR A MOMENT YOUR HONOR. JUSTICE LAVECCHIA:
UH-HUM. LET ME SAY IT A DIFFERENT WAY. THERE ARE INCOME CALCULATION PROCESSES
THAT THE FEDERAL GOVERNMENT HAS REQUIRED. THOSE ARE NOT NECESSARILY BEING ABROGATEED
BY THIS PROGRAM, THIS A B D PROGRAM BEING USING THOSE PROCESSES AS AT JUST
STED FOR FAMILY SIZE AS LONG AS THE F SGLOOCHLT P L THAT NEW JERSEY USES REMAINS
BELOW THE FEDERAL GOFRMENTS F P L ONE HUNDRED PUBLIC EMPLOYMENT RETIREMENT
SYSTEM OF ITS F P L. STEPHEN SLOCUM: I BELIEVE THAT IS A
POTENTIAL READING YOUR HONOR AND I RECOGNIZE THAT IS A LAVR LAFR SJTD THAT WHAT
THE APGSZ SAID? SNFRMENT ISN'T THAT WHAT THE APPELLATE DIVISION SAID?
STEPHEN SLOCUM: UNFORTUNATELY YOUR HONOR I THINK IT ULTIMATE CONCERN WHAT
IT COMES DOWN TO THOUGH STILL RENANLS THAT THE FEDERAL STATUTE SAYS THE LANGUAGE
AS DETERMINED UNDER THIS UNDER SECTION UNDER THES GOES I METHODOLOGY THE FEDERAL
STATUTE THERE IS REALTY RENO ROOM FOR THAT IT SAYS ASZ REQUIRED ANDZ THE S
S I METHODOLOGY. ARN I AM NOT SURE HOW IT'S POSSIBLE TO READ THE FEDERAL STATUTE
TO EXCLUDES THAT LANGUAGE OR REETD THAT LANGUAGE OUT TO ENABLE THE STATE TO DO
A DIFFERENT METHODOLOGY PARTICULARLY HERE WHERE THIS IS A METHODOLOGY THAT
HAS BEEN APPLIED IN EXCESS OF 30 DECADES WITH FEDERAL BLESSING WITH FEDERAL APPROVAL
WITH FEDERAL CONFIRMATION THAT THAT'S RIGHT YOU ARE DOING IT THE CORRECT
WAY, I AM NOT SURE HOW NECESSARILY TO SHIFT GEARS AT THIS POINT FOR A COMPLETELY
DIFFERENT READING AND IMPLEMENT A DIFFERENT METHODOLOGY.
JUSTICE PATTERSON: ARE YOU SAYING THERE ARE TWO CORE REQUIREMENTS IN THE FEDERAL
LAW AND I'M INCLUDING THE C F R AS WELL AS THE STATUTE THERE ONE IS TO USE
THE S S I METHODOLOGY AND THE OTHER IS TO REMAIN AT THAT AT OR BELOW THAT FEDERAL
POVERTY LINE? STEPHEN SLOCUM: YES. JUSTICE
PATTERSON: IS THAT DISTILLED TO THE ESSENCE THERE ARE TWO THINGS THAT ARE
REQUIRED HERE. STEPHEN SLOCUM: YES AND AS BRIEFED THE
DIFRNTS BETWEEN A STANDARD SETTING A STANDARD VERSUS APPLYING THE METHODOLOGY.
JUSTICE PATTERSON: OKAY. SO NEW JERSEY STATUTE AND ASSUMING
FOR PURPOSES OF THE DISCUSSION THAT THE APPELLATE DIVISION HAS MRO SGLIEFRJTS
PROPERLY TERMITEED NEW JERSEY AS INTENDING FAMILY SIZE, NEW JERSEY STATUTE
AS INTENDING FAMILY SIZE FOB A FACTOR IN SETTING THE AMOUNT, THAT DOESN'T TELL
ME IF I AM WRONG THAT DOES NOT RUN INTO TRUNL WITH THE SPOFRLY LINE ASPECT
OF THIS BUT WHERE WE WHERE YOU PERCEIVE A CONFLICT WHICH YOU'VE ATTEMPTED TO ^
REMEMBERING ^ WRECK OR THE AGENCY HAS ATTEMPTED TO RECONCILE IS THAT TS S S I MET
HODOLOGY REQUIRES THE TWO STEPTS. STEPHEN SLOCUM: YES, YOUR HONOR.
JUSTICE PATTERSON: AND THAT THE FEDZ: ARE REQUIRING NEW JERSEY
TO APPLY THROWS TWO STENS FOR POLICY REASONS THAT ARE BELOW MY CERTAINLY MY
EXPERTISE BUT IT HAS YILTHS REASONS FOR SAYING THAT IT DOESN'T REAL MATTER
WHY THEY SAY IT THAT'S WHAT THEY SAY AND THAT THAT'S REALLY NOT RECONCILE ABL IS
YOUR POSITION WITH THE PERHAPS CLEAR INTENT OF THE LEGISLATURE TO EXPAND
ELIGIBILITY AM I RIGHT ABOUT THAT. STEPHEN SLOCUM: YES, YOUR HONOR
AND I WOULD TAKE SOME DPEPGS OR E KWIFR INDICATE AROUND THE LOETH YOU ARE
INTENTION TO EXPAND BUT I THINK I HAVE ALREADY MADE THOSE POINTS I UNLESS THE COURT
WOULD LIKE ME IS TO REPEAT THEM OR TRY TO KRAR FILE. JUSTICE
PATTERSON: IS THERE OBVIOUSLY THE LOETHD YOU ARE THIS IS THE LEGISLATURE'S PROGRAM
I AM NOT SUGGESTING THAT THIS COURT WOULD EVER ENGAGE IN FOLLOW SEE MAKING
BUT DO YOU SEE IF 234 DEED THE TOLL SEE IS AS EXPRESSED IN SOME OF THE QUESTIONING
THAT YOU HEARD, DO YOU SEE A LEGISLATIVE WORK AROUND AS POSSIBLE?
STEPHEN SLOCUM: UNDER THE STATUTE AS WRITTEN, NO. JUSTICE
PATTERSON: OUR STATUTE. STEPHEN SLOCUM: UNDER THE FEDERAL OR THE
STATE STAT STATUTE AS WRITTEN THE A WORK AROUND VERSUS AN A NEMENT OR
CORRECTION. JUSTICE PATTERSON: LET ME JUST OUT OF CURIOSITY.
Q. SOMETHING THAT NEW JERSEY PERHAPS THE LEGISLATURE PERHAPS COULD
A MEFRND THE STATUTE TO DO THAT WOULD ALLOW NEW JERSEY TO HAVE A PROGRAM WITH THE
ELIGIBILITY THAT IF IN FACT THE APPELLATE DIVISIONS RIGHT ABOUT THE INTENT
TO EXPAND EL JINLT AND HAVE FAMILY SIZE FWEE A CONSIDERATION, IS THERE A FIX TO
THE STATUTE THAT THE LEGISLATURE COULD DO? STEPHEN SLOCUM:
I UNDERSTAND. TUN FOR CLARIFYING. A FIX SUCH THAT THE DIVISION WOULD NOT NEED
TO AMEND THE STATE PLAN OR GET CREDIT MANYS APPROVAL, NO. IS THE SHORT ANSWER
THERE. ANY SORT OF CHANGE OR ANY SORT OF INTERPRETATION OTHER THAN THE
DIVISIONS CURRENTS INTERPRETATION, THE CURRENT IMPLEMENTATION OF THE REGULATION
WOULD REQUIRE AN A MECHLT TO THE STATE PLAN AND CREDIT MANYS APPROVAL.
JUSTICE PATTERSON: OKAY. OKAY. NEXT QUESTION IS, IF SUCH APPROVAL COULD BE
GAFRND IS THERE A FIX? I JUST NEED I AM SKGS THIS NOT IT IS THE LEGISLATE
URTS "ISSUE BUT JUST TO TRY TO UNDERSTAND BECAUSE YOU ARE STAYING THERE IS A CONFLICT.
IS THERE A WAY TO RECONCILE THEM IN YOUR VIEW AND THE VIEW FRLT AGENCY?
" STEPHEN SLOCUM: IF C M S WERE TO GRANT A WAIVER OR SPANTHS
OF THE PROGRAM, YES. C M S HARASS THE AUTHORITY AND THE ABILITY THEY COULD ALLOW
THE DIVISION TO EXPAND A B D AND NOT USE ITS METHODOLOGY AND CREATE MORE
ELIGIBLE INDIVIDUALS AS APPELLANTS ARE SEEKING. C M S KWO A PROV THAT BUT THAT
IS CREDIT M SS DIVISION IT KWOB UNDER AN A MENL WAIVER OR EXPANSION OTHER
CHANGE OF THE STATE PLAN. SO YES IT CAN HAPPEN THE DIVISION CAN JUST PLAIN DO
NO. JUSTICE PATTERSON: TO REFORM THE PROGRAM AND THEN GO
TO THE FEDZ: AND SAY DOES THIS COMPORT WITH WHAT YOU WANT TO PUT IT IN VERY SIMPLE
TERMS SFLOO YES THAT IS AN OPTION. JUSTICE LAVECCHIA: ARE YOU
SUGGESTING THAT YOU HAVE INFORMATION THAT THE FEDERAL GOVERNMENT WOULD REGARD
THE APPELLATE DIVISIONS HOLDING AS INCONSISTENT AND OUT OF COMPLIANCE WITH THE
FEDERAL GOCHLTS' APPROVAL OF OUR AFRMENT B D PROGRAM? STEPHEN
SLOCUM: THAT IS MY UNDERSTANDING OF DISCUSSIONS WITH THE CLIENT YOUR HONOR THAT
IS MY UNDERSTANDING OF MY CONVERSATIONS WITH MY CLIENT YOUR HONOR AND WITH
AGENCY REPRESENTATIVES IS THAT YES THE CREDIT NS ARAFA LAF DO YOU HAVE THAT IN
WRIELG. STEPHEN SLOCUM: I DO NOT. JUSTICE ALBIN:
YOU HAVE NOT NAT AN NAD A PREEMPTION INL LISTENING TO YOUR ARGUE YOU ARE MAKE CAN
A PREEMPTION ARGUMENT SFR IF I UNDERSTAND YOU CORRECTLY. YOU'RE SAYING
THAT OUR STATE STATUTE AS IT'S PLAINLY WRITTEN IS IN CONFLICT REQUEST FEDERAL
LAW. FORGET ABOUT THE REGULATION THAT YOU'RE CLAIMING IS A TEMGING TO HARM
NICE THE STATUTE WITH FEDERAL LAW AM I CORRECT? STEPHEN SLOCUM:
WITH GO SMALL CAVEATS YOUR HONOR ONE AS OPPOSED TO YOU KNOW BROAD PREEMPTION
AND ONE MROO MIETD CALL FLINL GLNL FREE SUNL QUEEN FLI STATE TLAU AND FEDERAL
LAW AS OPPOSED TO SFIK MID- KAD PREEMPTION AND AND BRIEFED AS SET FORTH IN THE
RECORD THE NEED FOR THE STATES TO FOLLOW THE FEDERAL MEDICAID PROGRAM SO
AS LONG ALS THAT CAVEAT OF MEDICINE KAD SPECIFIC PREEMPTION AS IT WERE, AND TWO,
NOT AS CURRENTLY A MRIEDZ AND NOT UNDER THE DIVISIONS INTERPRETATIONAL AM
AL AM I AM JUST ASKING YOU THE LITERAL LANGUAGE ARE YOU CLAIMING IS THAT PREEMPTED
BY FEDERAL LAW? STEPHEN SLOCUM: THE LIT RAM LANGUAGE AND
THE READING ADVANCED BY APPELLANTS AND SOMETHING BY THE APPELLATE DIVISION
YES, IT IS THE DIVISIONS POSITION THAT. JUSTICE ALBIN: HAVE
YOU MADE THAT ARGUMENT THIS PREEMPTION ARGUMENT? STEPHEN
SLOCUM: I ASSUME YOUR HONOR MEANS IN THIS COURT. JUSTICE ALBIN:
YEAH. STEPHEN SLOCUM: YES IS THE SHORT ANSWER I BELIEVE IT IS IN THE DIVISIONS PETITION FOR CERTIFICATION. I CAN LOOK FOR IT I BELIEVE
OKAY. STEPHEN SLOCUM: PERHAPS KNOWS ATS YOU KNOW HIT THE
FLAIL ON THAN HEAD THIS A FEEL HAS PASSED THROUGH A NUMBER OF HANDS OVERTIME BUT
I COULD FIND IT. I AM VERY CONFIDENT IT IS IN THE BRIEFING.
STEPHEN SLOCUM: JUSTICE ALBIN: WE EVER IT WE EVER IT YOU
DON'T HAVE TO. JUSTICE LAVECCHIA: CAN I ASK YOU ANOTHER
QUESTION MR. SLOEK UM? SECTION 1396 TALKS ABOUT COMPARING LET ME BACK UP. IT DOESN'T
SEEM TO MAKE MEDICAL SICH ANSWER FOR THE A B D BENEFICIARY GROUP DEPENDENT
ON S S I ELIGIBILITY IT SEEMS TO REQUIRE THAT INCOME BE CALCULATED IN THE SAME
WAY BUT THE PROGRAM DOESN'T HAVE TO BE SET UP THAT SOMEONE MUST BE MUST VAULT
THE S S I ELIGIBILITY STANDARDS. DO YOU AGREE WITH THAT. STEPHEN
SLOCUM: YES, YOUR HONOR I BELIEVE THAT IS KRAT THEREAFTER LAF OIK FALT PAT SO
JUST FOLLOWING UP ON JUSTS LAFRS QUESTION DOES THAT MEAN A STATE COULD SET
UP A PROGRAM THAT DIDN'T USE THAT THE S S I METHODOLOGY I GUESS WITH APPROVAL OF THE
FEDERAL AGENCY? STEPHEN SLOCUM: ASSUMING WITH APPROVAL
AND WHETHER IT IS AN EXPANSION AMENDMENT OR WAIVER UNDER THE STATE PLAN,
YES IS MY UNDERSTANDING OF IT AND I THINK COMMUNITY SUPERVISION FOR LIFE THE BECAUSE
THERE IS THE. JUSTICE LAVECCHIA: SO THAT ELIMINATES
PREEMPTION RIGHT? IT JUST YOU ARE REDUCED NOW IN THIS ARGUMENT TO POINTING TO THE
FACT THAT THERE HAD NOT BEEN PRIOR APPROVAL FROM THE FEDERAL GOVERNMENT FOR
INTERPRETING AND APPLYING OUR STATE STATUTES PLAIN LANGUAGE IN THE WAY WHICH THE
APPELLATE DIVISION INTERPRETED IT. RIGHT? STEPHEN SLOCUM:
NOT SOLELY YOUR HONOR NO. JUSTICE LAVECCHIA: WELL YOU JUST SAID
IT'S NOT THEY MAY HAVE TO USE AN INCOME CALCULATION METHODOLOGY BUT YOU
DON'T HAVE TO BECOME MAKE THE APPLICANT ELIGIBLE FOR S S I UNDER OUR A B D PROGRAM.
YOU GREED WITH THAT STATEMENT CORRECT. STEPHEN SLOCUM: YES, YOUR
HONOR. JUSTICE LAVECCHIA: OKAY. SO DO YOU THINK THE APPELLATE
DIVISIONS INTERPRETATION HAS GONE BEYOND THAT? STEPHEN SLOCUM:
YES, I DO YOUR HONOR I DO THINK IT APPELLATE DIVISIONS INTERPRETATION THE
ULTIMATE EFFECT OF IT IS THIS FINDING OR DETERMINATION THAT THE STATE STATUTE
FORBIDS THE S S I METHODOLOGY AND FOR BIDS THE TWO STEP FROST EAST SO THE EFFECT
OF THE APPELLATE DIVISIONS DECISION OR THE REASONING IS SIMPLY INCONSISTENT
AND IRRECONCILABLE. JUSTICE LAVECCHIA: SNA IS NOT AT VIOLATION OF
THE FEDERAL LAW IT'S AN INTERPRETATION OF OUR STATUTE AS REQUIRING NOT A TWO STEP
PROCESS. STEPHEN SLOCUM: YES. JUSTICE LAVECCHIA:
RIGHT. STEPHEN SLOCUM: AND THE STEPS THE STEPS. Q.
IT'S THE TLESH #40E8 ISSUE OR THE ULTIMATE ISSUE IS TRYING TO HARM NICE THOSE
TWO DIFFERENT STARDZ ON THE ONE IS THE STANDARD FTD HIGH DEFERENCE TO THE
DIVISION TO THE SUBJECT MATTER EXPERTISE AND AGAIN IT'S THAT PLAINLY WRONG PATENT
LY KRUCHT ILLEGAL OR YOU KNOW UNTHE VERY STANDARDS VERSUS THE MUCH BROADER DE NOVO
VOE PLAIN LANGUAGE READING BY APPLYING THE WRONG STANDARD THAT BROADER PLAIN
LANGUAGE READING AND NOT APPLYING THE DEFERENCE TO THE DIVISION AND THE WHICH IS
A PARTICULARSLY NECESSARY HERE GIVEN JUST HOW DENSE AND COMPLEX THIS IS
THAT FAILURE IN THE STANDARD APPLIED IS WHAT LED THE APPELLATE DIVISION TO TRY
TO APPLY PLAIN LANGUAGE WHEN PLAIN LANGUAGE JUST CAN'T WORK HERE. THE
SYSTEM CANNOT WORK IF YOU READ THAT LANGUAGE THAT STATUTORY LANGUAGE JUST IN A VACUUM
WITHOUT? JUSTICE ALBIN: WHAT I AM TRYING TO FIGURE YOU THE
IGS LET'S SAY THE STATUTE ITSELF AGS YOU ARE ARGUEING IS SOMEHOW IN CONFLICT WITH
FEDERAL LAW. ARE YOU ABLE TO SAVE IT WITH YOUR REGULATION? THAT'S WHAT THE
LEGISLATURE INTENDED. WHY WONTD IT RISE OR FALL JUST AS IT'S WRITTEN? YOU'RE
SUPPOSED TOSH IMPLEMENTING IT OKAY NOT UNDERMINING IT. IF IT'S IN CONFLICT
DW FRAM LAW THEN THE LEGISLATURE SHOULD BE WRITING A NEW LAW. ARE YOU FOLLOWING
ME? SFLOO I DO FOLLOW YOU YOUR HONOR AND I THINK IT ULTHLY COMES DOWN TO
IS THAT WHEN THE DIFGS IN IMPLEMENTING THE STATUTE AND READING IT IN GOOD FAITH
READ IT WITHIN THE CONTEXT OF MEDICINE KAD TO EFFECTUATE IT IN THE MEDICAID
PROGRAM. CHIEF JUSTICE RABNER: I THINK WE SHOULD TAKE A PAUSE
HERE. WE CAME CLOSE TO DOING ALL FOUR ARGUMENTS BY 1230. BUT WE FELL A LITTLE
BIT SHORT SO WHY DON'T WE TAKE A HALF HOUR BREAK AND I WOULD ASK WE WILL
RESUME WITH HOPEFULLY JUST A FEW QUESTIONS OF OF YOU AND THEN TURN TO YOUR COLLEAGUES
ON THE OTHER SIDE OF THE AISLE HERE. I DO DO YOU HAVE ACCESS TO 20 CREDIT
OF ARE 16 THE ONE YOU HAD CITED TO US THE FULL TEXT OF IT. STEPHEN
SLOCUM: I WILL YOUR HONOR YES. CHIEF JUSTICE RABNER: HAVE A LOOK
AT SECTION G AS WELL. THE EXAMPLES SECTION. AND IF YOU COULD PLEASE TELL
US WHETHER YOU THINK THAT HAS ANY RELEVANCE TO THE TWO STEP METD DOLL GEE THAT
WE HAVE TALK ABOUT AND IF SO WHY. STEPHEN SLOCUM: CERTAINLY
YOUR HONOR.