CASE IF AT ALL. STEPHEN SLOCUM: CERTAINLY, YOUR HONOR, I DID PULL THE CFR
WITH THE SUBJECT AND THE EXAMPLES, THE SHORT ANSWER IS I DON'T BELIEVE THAT THEY ARE
RELEVANT OR INSTRUCTIVE HERE. THE COURT: WHY IS THAT? STEPHEN
SLOCUM: THEY ARE SPEAKING TO DEEMING -- SO, CANDIDLY, I AM NOT ENTIRELY FAMILIAR WITH
THESE EXHIBITS HAVING LOOKED AT THEM, HOWEVER, HAVING LOOKED AT THEM HERE H TWO AS SPEBTS
ONE THEY APPEAR TO BE TALKING TO THE SSI ELIGIBILITY FOR THE WHOLE FAMILY AND MORE
CLOSELY TO A FAMILY APPLYING AS OPPOSED TO AN APPLICANT APPLYING AS WITH THE MEDICAID CASE
AND ADDITIONALLY I DO NOTE THAT THEY HAVEN'T BEEN AMENDED SINCE 1980 SO THE EXAMPLES IN
THE POMS WOULD BE MORE -- WOULD BE MORE INSTRUCT I HAVE. THEY DEAL WITH CLEARER NUMBERS
AN NUMBERS THAT MORE ACCURATELY AFFECT THE CURRENT STANDARD, FOR EXAMPLE THIS TALKS TO
F P R AS OPPOSED TO FELONY MURDER, THESE EXAMPLES ARE NOT RELEVANT IS THE SHORT ANSWER.
CHIEF JUSTICE RABNER: ARE YOUR ANSWERS EARLIER TO SECTION D THE SAME AS THEY
WERE. I DIDN'T SEE REFERENCE TO FAMILY SIZE OTHER THAN SPOUSE, IN EL LINL JIBL SPOUSE
THERE. STEPHEN SLOCUM: WITH REGARD TO DEEMING -- IF I UNDERSTAND THE QUESTION,
DO THE EXAMPLES IN SUBSECTION G CHANGE THE ARGUMENT AS TO THE NEED FOR DEEMING OR WHEN
FAMILY SIDES APPLIES. THE COURT: NO, NO, YOU TOLD US YOU DON'T THINK G APPLIES
AN YOU'VE GIVEN US THE REASONS, I WAS MOVING BACK TO D ON WHICH YOU HAD PRINCIPALLY RELIED
IN YOUR PRESENTATION TO US. I DON'T KNOW IF YOU HAD A SCHANS TO LOOK AT IT AGAIN. IT'S
IN FRONT OF YOU, I DID NOT SEE REFERENCE TO FAMILY MEMBERS OTHER THAN AN IN ELIGIBLE
SPOUSE WHICH GAVE ME PAUSE ABOUT THE METHODOLOGY AS YOU HAD LAID IT OUCHLT.
STEPHEN SLOCUM: I THINK THE SHORT ANSWER IS DEEMING NORMALLY COMES INTO EFFECT WHEN THERE
ISN'T AN ELIGIBLE SPOUSE, IF THERE IS AN ELIGIBLE SPOUSE DEEMING DOESN'T APPLY, DEEMING
ONLY COMES IN WHERE THERE IS AN ELIGIBLE APPLICANT AND AN IN ELIGIBLE SPOUSE.
THE COURT: I DON'T WANT TO BELABOR THIS TOO LONG BUT I UNDERSTOOD FROM YOUR EARLIER
PRESENTATION THAT D IS THE MAGIC BULLET THAT SAYS TO US HERE IS THE TWO-STEP PROCESS TO
DETERMINE FAMILY SIZE, INCOME LEVEL APPLICABLE TO A FAMILY OF THE SIZE INVOLVED AND I
WASN'T QUITE SURE HOW TO GET THERE FROM THE PLAIN TEXT OF THAT SECTION. WHAT AM I MISSING?
STEPHEN SLOCUM: RECOGNIZING THAT IT IS A DEFINITE WEAKNESS IN OUR ARGUMENT,
YOUR HONOR, IT IS NOT AS CLEARLY SPELLED OUT IN THE REGULATION AS IT COULD BE OR AS IT IS
IN THE POMS AND AS IT IS ELSEWHERE. CHIEF JUSTICE RABNER: UNDERSTOOD. ANYTHING ELSE? STEPHEN SLOCUM: NOT AT THIS TIME, YOUR HONOR, EXCEPT I MAY RESPOND
US MR. SLOCUM COUPLE. STEPHEN SLOCUM: THANK YOU. CHIEF
JUSTICE RABNER: MR. SPIELBERG. JOSHUA M. SPIELBERG: THANK YOU, GOOD
AFTERNOON, JUSTICE ES, BEFORE I BEGIN MY ARGUMENT I WOULD LIKE TO RESERVE, IF NECESSARY,
A FEW MINUTES FOR REBUTTAL AS CROSS PETITIONER. CHIEF JUSTICE RABNER: ON
WHICH ISSUE? JOSHUA M. SPIELBERG: THAT WOULD BE ON THE FEDERAL ISSUE WE ARE
CROSS PETITIONING ON THAT, IF NECESSARY. CHIEF JUSTICE RABNER: ALL RIGHT.
JOSHUA M. SPIELBERG: IF NECESSARY. ALTHOUGH THE INTERPRETATION
OF THE FEDERAL MEDICAID ACT CAN SOMETIMES BE COMPLICATED, THE ISSUE IN THIS CASE IS
REMARKABLY STRAIGHTFORWARD. DOES THE NEW JERSEY MEDICAID ACT AND THE FEDERAL MEDICAID
ACT OR DO THE NEW JERSEY AND FEDERAL MEDICAID ACT MEAN WHAT THEY SAY WHEN THEY SAY THAT
INCOME ELIGIBILITY FOR THIS MEDICAID PROGRAM MUST BE BASED ON FAMILY SIZE OR CITED ANOTHER
WAY, DOES THE NEW JERSEY REGULATION AT ISSUE HERE H WHICH MAKES IN ELIGIBLE FOR THIS PROGRAM
EVERY APPLICANT IF THEIR INCOME EXCEEDS THE INCOME -- THE POVERTY LEVEL FOR A FAMILY SIZE
OF ONE REGARDLESS OF THE APPLICANT'S ACTUAL FAMILY SIZE. SO AT THE BEGINNING,
I WOULD LIKE TO SAY THAT IT IS IMPORTANT TO UNDERSTAND THAT THE FEDERAL STATUTE HAS A
TWO-STEP PROCESS FOR DETERMINING ELIGIBILITY. THE FIRST STEP IS INCLUDED IN 13-96 I
M 1 B WHICH IS TO DETERMINE THE APPLICANT'S INCOME. THE SECOND STEP IS TO SET AN INCOME
ELIGIBILITY LEVEL AGAINST WHICH THE APPLICANT'S INCOME WILL BE COMPARED; THAT IS CONTAINED
IN 2 A SO 2 SEPARATE STEPS AND THE ONLY STEP THAT MENTIONS THE SSI PROGRAM IS DETERMINING
THE INCOME IN OTHER WORDS, WHAT IS ACCOUNTABLE INCOME FOR THIS PROGRAM. AND
THE PROBLEM WITH THE DIVISION'S ARGUMENT IS THEY CONFLATE THESE TWO SECTIONS. SSI ONLY
APPLIES TO M 1 B WHICH IS DETERMINING COUNTABLE INCOME. AND WHEN I SAY COUNTABLE INCOME
I MEAN THINGS LIKE WHETHER CHILD SUPPORT WILL BE INCLUDED, WHETHER INTEREST PAYMENTS WILL BE
INCLUDED, WHETHER INCOME SUPPORT FROM OTHERS WILL BE INCLUDED WHEN WE DETERMINE THE APPLICANT'S
INCOME. THAT'S -- WE DON'T HAVE A PROBLEM WITH NEW JERSEY'S METHOD FOR DOING
THAT. WHAT WE HAVE A PROBLEM WITH IS THE NEW JERSEY MEDICAID AGENCY REGULATION OR
APPLICATION OF THE SECOND STEP WHICH IS COMPARING THIS APPLICANT'S INCOME TO THE POVERTY
LEVEL FOR THE APPLICANT'S FAMILY SIZE. THE SECOND THING THAT I WOULD LIKE
TO POINT OUT, AND BY THE WAY, I THINK THAT JUSTICE LA VECCHIA WAS FOCUSING ON THAT IN
YOUR QUESTION PS ABOUT THE TWO STEPS AND WHAT IS DETERMINING COUNTABLE INCOME. THE SECOND
THING I WOULD LIKE TO POINT OUT IS THAT THE NEW JERSEY MEDICAID AGENCY ALSO MISTAKES WHAT
WE FIND OBJECTIONABLE ABOUT THE NEW JERSEY REGULATION IN QUESTION. THE OBJECTIONABLE
PART OF THAT REGULATION IS THAT IT IGNORES FAMILY SIZE FOR CERTAIN APPLICANTS. THE OVERALL
REGULATION TALKS ABOUT DEEMING. AGAIN, DEEMING GOES TO THE FIRST STEP, WHAT IS COUNTABLE
INCOME. IF THERE IS ANOTHER FAMILY MEMBER, DO WE DEEM THAT INCOME AND, AGAIN, WE DON'T
HAVE A PROBLEM WITH THE DEEMING ISSUE. WHAT WE HAVE A PROBLEM WITH IS THE INCOME ELIGIBILITY
DETERMINATION REFLECTED SPECIFICALLY IN D 1. SO IT'S NOT 4.4 B IN GENERAL, IT'S 4.4 D
1 AS IT DETERMINES INCOME ELIGIBILITY. THE PLAIN LANGUAGE OF THESE TWO STATUTES
IS REINFORCED BY THE LEGISLATIVE HISTORY AND BOTH LEGISLATIVE HISTORIES ILLUSTRATE THAT
THE MEDICAID PROGRAM STARTED OUT COVERING A CERTAIN CATEGORY OF INDIVIDUALS AND OVER TIME
IT EASE EX SPANLDED THE CATEGORY OF INDIVIDUALS WHO ARE ELIGIBLE SO ORIGINALLY THE MEDICAID
PROGRAM ONLY COVERED INDIVIDUALS WHO WERE ON SSI IN TERMS OF AGED BLIND AND DISABLED
INDIVIDUALS. LATER, THE STATUTE WAS AMENDED AT THE FEDERAL LEVEL AND NEW JERSEY
ADOPTED THIS FEDERAL ASPECT BY CREATING THE MEDICAID ONLY PROGRAM, WHICH WAS SSI OR FOR
INDIVIDUALS WHO WOULD QUALIFY FOR SSI, BUT DID NOT RECEIVE THE WENT BENEFIT.
NOW, THE EXPANSION THAT WE ARE TALKING ABOUT GOES BEYOND THOSE TWO ORIGINAL GROUPS. IT
IS EX SPANLDED BEYOND THOSE WHO QUALIFY FOR SSI AND THAT'S WHAT HAPPENED WITH THE NEW
JERSEY STATUTE IN THIS CASE FOLLOWING SUIT FROM THE FEDERAL STATUTE THAT SAYS YOU CAN
EXPAND BEYOND THOSE ELIGIBLE FOR SSI. AND SO WHAT THE MEDICAID AGENCY IS INSISTING
IS THAT WE GET STUCK IN THE MEDICAID THOD DOLL JEE THEY USE FOR PERSONS WHO ARE ELIGIBLE
UNDER MEDICAID ONLY WHICH IS SPECIFICALLY TIED TO THE SSI PROGRAM AND WHAT BOTH THE FEDERAL
LEGISLATIVE HISTORY AND THE STATE LEGISLATIVE HISTORY ESTABLISH IS THERE WAS A DESIRE
TO EXPAND BEYOND THOSE INDIVIDUALS. THAT WAS TO BE ACCOMPLISHED BY USING A PERCENTAGE
OF THE FEDERAL POVERTY LEVEL THAT IS NOT GREATER THAN ONE HUNDRED PERCENT AND IT WAS TO
INCLUDE THE FAMILY SIZE OF THE APPLICANT. JUSTICE PATTERSON: I AM SORRY
FOR THE INTERRUPTION, MR. SPIELBERG, BUT JUST TO BE CLEAR YOUR POSITION IS THAT THIS
PARTICULAR PROGRAM DOES NOT REQUIRE ELIGIBILITY TO BE CALCULATED IN ACCORDANCE WITH THE
TWO-STEP PROCEDURE FOR SSI. JOSHUA M. SPIELBERG: THAT IS CORRECT.
JUSTICE PATTERSON: SO THE REGULATION THAT IS BEING DISCUSSED HERE, I AM ASSUMING YOUR
POSITION IS THAT THAT REGULATION DOES NOT MANDATE THE TWO-STEP PROCEDURE? JOSHUA
M. SPIELBERG: ABSOLUTELY, YES. JUSTICE PATTERSON: DOES FEDERAL LAW LIMIT
THE STATE'S METHODOLOGY IN CALCULATING ELIGIBILITY? JOSHUA M.
SPIELBERG: IT ONLY LIMITS HOW THE STATE ESTABLISHES COUNTABLE INCOME SO ONLY THE
FIRST STEP IS THE WAY THAT THE FEDERAL LAW LIMITS. IT DOES NOT -- THE LIMITATIONS THAT
IT PLACES ON THE ELIGIBILITY DETERMINATION IS IT MUST BE A PERCENTAGE OF THE FEDERAL
POVERTY LEVEL AND IT MUST BE ADJUSTED FOR FAMILY SIZE. JUSTICE PATTERSON:
PUTTING YOURSELF IN THE SHOES OF A STATE REGULATOR UNDER THIS PROGRAM, WHAT IS THE
RANGE -- HOW MUCH -- WHAT IS THE LEEWAY, DEFINE THE LEEWAY THAT FEDERAL LAW PERMITS IN
TERMS OF CALCULATING THE IMPACT OF FAMILY SIZE. JOSHUA M. SPIELBERG: SO
IT REALLY DOESN'T ALLOW YOU TO DO ANYTHING BUT TO TAKE THE ACTUAL FAMILY SIZE INTO ACCOUNT.
THE DISCRETION THAT IT PROVIDES THE STATE IS THEY DIDN'T HAVE TO GO ALL THE WAY UP TO
A HUNDRED PERCENT OF THE POVERTY LEVEL. THEY COULD HAVE SAID WE'LL COVER PEOPLE ONLY
AT 85 PERCENT OR 90 PERCENT BUT THEY CHOSE TO GO TO A HUNDRED. WITH RESPECT TO FAMILY
SIZE, TO TAKE THAT INTO ACCOUNT FOR EVERY APPLICANT, THERE IS NO DISCRETION UNDERSTAND
FEDERAL LAW. THEY ARE REQUIRED TO TAKE THAT INTO ACCOUNT. JUSTICE PATTERSON:
AND IS THERE A LIMIT -- IS THERE ANY FEDERAL CONSTRAINT ON THE ABILITY OF A STATE
REGULATOR WITH RESPECT TO WHAT THEY CAN DO WITH FAMILY SIZE? YOU KNOW, YOU CAN
TAKE FAMILY SIZE INTO ACCOUNT, BUT WE'RE TALKING ABOUT HERE A NUMERICAL CALCULATION OF
ELIGIBILITY, DOES THE FEDERAL LAW REQUIRE THE STATES TO CALCULATE THE IMPACT OF FAMILY
SIZE IN ANY PARTICULAR WAY? JOSHUA M. SPIELBERG: IT SAYS THAT THE INCOME
ELIGIBILITY LIMIT HAS TO BE ADJUSTED BASED ON THE APPLICANT'S FAMILY SIZE. JUSTICE
PATTERSON: NO, I SEE THAT. ALL I AM SAYING BECAUSE OBVIOUSLY ONE OF THE REALLY DIFFICULT
ASPECTS OF THIS CASE IS THE INTERPLAY BETWEEN FEDERAL AND STATE LAW AND MEDICAID CERTAINLY
HAS SOME VERY DEFINITIVE REQUIREMENTS, BUT ALSO HAS SOME REQUIREMENTS THAT PERHAPS LEAVE
MORE WIGGLE ROOM FOR LACK OF A BETTER TERM. SO IF YOU'RE A STATE REGULATOR
AND YOU'RE READING THE FEDERAL STATUTE AND REGULATIONS, IS THERE ONLY ONE WAY YOU HAVE
TO TAKE IN FAMILY SIZE -- TAKE INTO ACCOUNT FAMILY SIZE OR DO YOU HAVE CHOICES AS TO
TWL YOU CALCULATE, YOU KNOW, YOU PICK A NUMBER, A FAMILY SIZE OF FOUR HAS THIS AMOUNT OF
ELIGIBILITY OR THIS NUMBER. I AM IN ARTICULATELY ASKING YOU ARE THERE LIMITS
IN WHAT THIS FEDERAL LAW ALLOWS IN THAT REGARD? JOSHUA M. SPIELBERG: I
THINK THERE ARE. THE FEDERAL LAW -- IF YOUR QUESTION IS DOES THE FEDERAL LAW ALLOW ANY
DISCRETION TO ALLOW SOMETHING LIKE THE STATE DID HERE WHICH IS IGNORE FAMILY SIZE FOR
SOME APPLICANTS, IT DOESN'T PERMIT THAT. JUSTICE PATTERSON: I UNDERSTAND
THAT, BUT DOES IT CONSTRAIN THE STATE'S METHODOLOGY THAT IT USES TO ACCOUNT FOR
FAMILY SIZE? DO YOU SEE WHAT I MEAN? BECAUSE YOU CAN DO A LOT
OF DIFFERENT THINGS WITH FAMILY SIZE IF THERE ARE TEN PEOPLE IN THE FAMILY THAT COULD
AFFECT ELIGIBILITY IN A NUMBER OF DIFFERENT WAYS SO DOES THE FEDERAL LAW RIRP THAT?
JOSHUA M. SPIELBERG: THE ONLY OTHER ASPECT THAT I CAN THINK OF IS THIS DEEMING
ISSUE, ARE YOU WILLING TO DEEM THE INCOME FROM THE OTHER MEMBERS OF THE FAMILY AND THE
STATE CAN DO THAT, THEY CAN. THAT IS NOT TS OBJECTIONABLE PART OF THIS SO THAT WOULD BE
ONE AREA WHERE THE SITE HAS DISCRETION. JUSTICE PATTERSON: IS THE ONLY IMPACT
OF FAMILY SIZE THAT IT CHANGES THE FEDERAL POVERTY LEVEL? JOSHUA M.
SPIELBERG: YES. JUSTICE PATTERSON: SO THERE REALLY IS -- THERE IS A FORMULA
THAT FAMILY SIZE FITS INTO AN DICTATES? JOSHUA M. SPIELBERG: RIGHT.
JUSTICE PATTERSON: OKAY, THAT ANSWERS MY QUESTION. THE COURT: YOU'VE
DESCRIBED YOUR UNDERSTANDING OF THE STATE LAW AND YOU'VE TOLD US THAT THAT CROSS REFERENCE
TO 13-82 UNDER FEDERAL STATUTE DOES NOT APPLY TO 2 A, DO YOU READ THE CFR AND THE GUIDANCE
THAT IS CONTAINED IN POMS IN THE SAME WAY AS MR. SLOCUM? JOSHUA M. SPIELBERG:
I DO NOT. SO THE REFERENCE TO THE SPECIFIC SSI PROVISION IS A PROVISION THAT DEALS WITH
MAINLY, REALLY SSI ELIGIBILITY RULES AND NOT ANY SSI ELIGIBILITY LIMITS AND NOT MEDICAID
SO IT IS NOT ONE -- IT IS ONE THAT IS APPLICABLE TO SSI, BUT NOT APPLICABLE TO MEDICAID
BECAUSE THE MEDICAID STATUTE HAS CREATED ITS OWN ELIGIBILITY RULES FOR THIS PROGRAM.
JUSTICE ALBIN: WHAT THE STATE COULD DO, BUT WHAT IT HASN'T DONE IS IT COULD
SAY FOR A FAMILY SIZE OF FIVE, WE'RE GOING TO OPERATE UNDER 85 PERCENT OF THE FPL, THAT
WOULD REDUCE THE NUMBER OF PEOPLE ELIGIBLE, THE STATE COULD DO THAT. JOSHUA M.
SPIELBERG: YES. JUSTICE ALBIN: BUT THEY HAVEN'T DONE IT. THEY DECIDED TO
DO IT A DIFFERENT WAY BY THE REGULATION BY JUST CUTTING OUT FAMILY SIZE. JOSHUA
M. SPIELBERG: RIGHT. SO THEY COULD HAVE ADJUSTED THE POVERTY LEVEL. THEY HAD A CHOICE
ABOUT IS THAT. THEY COULD HAVE IN YOUR EXAMPLE TAKEN 85 PERCENT; THAT'S WHERE THEY HAVE
-- THE STAILT HAS DISCRETION, BUT IT DOESN'T HAVE DISCRETION TO DISREGARD FAMILY SIZE
FOR ANY APPLICANT. JUSTICE ALBIN: RIGHT IT CAN'T MAKE IT 120 PERCENT BY
FEDERAL LAW. JOSHUA M. SPIELBERG: THAT'S TRUE, YES. AND, AGAIN,
IF YOU LOOK AT THE LEGISLATIVE HISTORY AND WE CITE THAT IN OUR BRIEF, BUT BOTH THE STATE
LEGISLATIVE HISTORY AN THE FEDERAL LEGISLATIVE HISTORY SPECIFICALLY REFER TO FAMILY SIZE.
IN FACT IN THE FEDERAL LEGISLATIVE HISTORY, ONE OF THE PHRASES THAT IS USED IS ADJUSTED
FOR FAMILY SIZE WHICH NEW JERSEY USED THAT LANGUAGE INSTEAD OF APPLICABLE TO A FAMILY
OF THE SIZE OF BLANK. BUT THE PLAIN LANGUAGE READ RG IS CONSISTENT WITH THE
LEGISLATIVE HISTORY. JUSTICE ALBIN: MR. SLOCUM SAYS WE ACCEPT YOUR
INTERPRETATION, THE FEDERAL GOVERNMENT IS GOING TO SAY THAT THE LEGITIMATE YOUR AND THE
STATE'S NONCOMPLIANCE AN MAY CUT OFF THE SPIGOT, WELL. JOSHUA M. SPIELBERG:
WELL THE FIRST THING I WILL SAY IS THERE IS NO INDICATION IN THE RECORD THAT THAT WOULD
HAPPEN. THERE IS NO INDICATION THAT IF HE SPOKE TO C M S APPROVAL OF THE STATE REGULATION,
THAT'S NOT IN THE RECORD IN ANY WAY TO THE EXTENT THAT SOME C M S OFFICIAL MAY HAVE LOOKED
AT THIS AND NOT NOTICED THAT IT VIOLATED FEDERAL LAW, THAT'S POSSIBLE, BUT THAT'S NOT
IN THE RECORD. I THINK THE FEDERAL GOVERNMENT WOULD SAY THAT THE NEW JERSEY STATUTE IS
IN COMPLIANCE WITH FEDERAL LAW AND THE NEW JERSEY REGULATION VIOLATES FEDERAL LAW.
JUSTICE PIERRE-LOUIS: COUNSEL HAVE YOU REVIEWED THE POMS GUIDANCE? JOSHUA M.
SPIELBERG: THE POMS MANUAL. JUSTICE PIERRE-LOUIS: YES. JOSHUA M.
SPIELBERG: I HAVE NOT REVIEWED THE POMS MANUAL IN ANY DETAIL BUT I THINK CHIEF JUSTICE
RABNER'S POINT IS THAT EVEN IF YOU LOOK AT THE REGULATIONS WHICH HAVE MORE CONTROLLING
EFFECT THAT THIS SSI RULE WOULDN'T APPLY TO ELIGIBILITY SO THE POMS MAY BE -- IS EVEN
FURTHER REMOVED FROM THAT. JUSTICE PIERRE-LOUIS: SEVERAL STEPS REMOVED
FROM THE STATUTE AND THE REGULATION AND THEN THE MANUAL? JOSHUA M. SPIELBERG:
RIGHT. CORRECT. I ALSO WOULD LIKE TO TALK ABOUT -- WE TALKED ABOUT THE PLAIN
LANGUAGE IN THE LEGISLATIVE HISTORY. I WOULD ALSO LIKE TO TALK ABOUT THE UNJUST ILLOGICAL
AND ARBITRARY RESULTS THAT ARE THE RESULT OF THE STATE'S REGULATION. FOR MY
CLIENLT, E.M., HE IS A PERSON WHO WORKED ALL OF HIS LIFE. HE BECAME DISABLED AT AGE 57
AND THEREFORE HE BECAME ELIGIBLE FOR SOCIAL SECURITY DISABILITY BENEFITS AND HE IS
MARRIED TO A 53 YEAR OLD WOMAN WHO HAS DIABETES IS ALMOST BLIND AND DOES NOT HAVE ANY INCOME.
THEY ARE STRUGGLING TO PROVIDE FOR THEIR FAMILY OF TWO ON HIS INCOME OF $1193 PER MONTH,
WHICH WAS BELOW THE FEDERAL POVERTY LEVEL FOR A FAMILY OF TWO IN 2017, WHICH WAS 1354
AND YET HE IS BEING DENIED THE HEALTH COVERAGE THAT HE NEEDS AS A DISABLED PERSON BECAUSE
HIS INCOME IS HIGHER THAN THE INCOME ELIGIBILITY OR A HUNDRED PERCENT OF THE POVERTY LEVEL
FOR A HOUSEHOLD OF ONE SO THAT'S AN EXAMPLE OF THE UNJUST RESULTS FROM THE STATUTE.
JUSTICE ALBIN: THE ONLY WAY HE GETS RELIEF IS BY GETTING A DIVORCE.
JOSHUA M. SPIELBERG: YES. JUSTICE ALBIN: THAT'S CRAZY. JOSHUA M.
SPIELBERG: RIGHT. AND IN TERMS OF ARBITRARY RESULTS, IF WE HAD A HYPOTHETICAL
COUPLE WHERE THE HUSBAND HAD $900 IN INCOME AND THE WIFE HAD $293, WHICH WOULD BE THE
EXACT SAME INCOME AS E.M. UNDER NEW JERSEY'S REGULATION, THIS COUPLE OR THIS HUSBAND WHO
APPLIED WOULD BE ELIGIBLE EVEN THOUGH HE HAD THE EXACT SAME INCOME AS E.M. AND EVEN HE
COULD HAVE A HIGHER INCOME THAN E.M. AND BE APPROVED AS LONG AS HIS FAMILY INCOME WAS
BELOW $1354. AND THEN, THIS GETS BACK TO THE POLICY BEHIND THE STATUTES AS REFLECTED
IN THE LEGISLATIVE HISTORY, IT WAS TO COVER MORE INDIVIDUALS. AND IT SPECIFICALLY KEYED
IT TO THE POVERTY LEVEL AND FAMILY SIZE TO AFFECT THE FACT THAT E.M. IS POORER AT $1193
HAVING A LARGER HOUSEHOLD DEPENDENT ON HIM THAN AN INDIVIDUAL APPLICANT WHO IS ONLY TRYING
TO SUPPORT ONE PERSON AT THAT INCOME LEVEL. WE HAVEN'T REALLY ADDRESSED THE
APPELLATE DIVISION'S RULING THAT THE REGULATION DOES NOT VIOLATE THE FEDERAL MEDICAID
ACT AND WE BELIEVE IT IS IMPORTANT FOR THIS COURT TO ALSO REVERSE THAT HOLDING THAT'S
OUR CROSS PETITION. THE APPELLATE DIVISION REASONING ON THIS ISSUE WAS
MISGUIDED. IT CONFUSED THE DISCRETION THAT THE STATE HAD TO SET AN INCOME LEVEL UP TO
ONE HUNDRED PERCENT WITH A DISCRETION ON FAMILY SIZE OR ON WHAT THE COMPARISON WAS. AND
UNDER THE APPELLATE DIVISION'S RULING, YOU COULD HAVE A STATE REGULATION THAT WOULD PREVENT
ALL APPLICANTS FROM BEING ELIGIBLE BY COMPARING ALL APPLICANTS OR APPLICANTS OF EVERY
FAMILY SIZE TOLL HOUSEHOLD SIZE OF ONE. THE NEW JERSEY REGULATION JUST PLEA VENTS SOME
APPLICANTS FROM BEING ELIGIBLE IF THEY EXCEED IT BUT UNDER THE APPELLATE DIVISION RULING,
YOU WOULD HAVE EVEN MORE ARBITRARY RESULTS INCONSISTENT WITH THE STATE.
JUSTICE ALBIN: YOUR ARGUMENT IS IF THE REGULATION WERE IN FACT A STATUTE IT WOULD BE IN
VIOLATION OF FEDERAL LAW. JOSHUA M. SPIELBERG: I'M SORRY. SAY THAT AGAIN.
JUSTICE ALBIN: IF THE STATE REGULATION WERE IN FACT THE STATUTE, IF THAT
WAS THE STATUTORY LANGUAGE INSTEAD OF THE REGULATORY LANGUAGE YOUR ARGUMENT IS THAT
WOULD NOT BE IN COMPLIANCE WITH FEDERAL. JOSHUA M. SPIELBERG: THAT IS CORRECT.
THAT IS CORRECT. AND, ALSO, THE APPELLATE DIVISION'S DECISION ON THE STATE ONE, THE
FEDERAL LAW QUESTION ARE INCONSISTENT. THE STATE LAW WAS ADOPTED PURSUANT TO THE FEDERAL
LAW AND IT IS IMPORTANT THAT THEY BE READ CONSISTENTLY WITH EACH OTHER AND THE
APPELLATE DIVISION LOOKED AT THE LEGISLATIVE HISTORY FOR THE STATE STATUTE, BUT NOT FOR
THE FEDERAL STATUTE AND THE FEDERAL STATUTE LEGISLATIVE HISTORY WHICH IS QUOTED IN OUR
BRIEFS MAKES JUST AS CLEAR THAT THE INTENTION WAS THAT FAMILY SIZE ADJUSTMENT POVERTY
LEVEL FOR FAMILY SIZE WAS MANDATORY. THE OTHER REASON IT IS IMPORTANT TO ADDRESS
THIS ISSUE IS BECAUSE IF THE APPELLATE DIVISION HOLDING ON THE FEDERAL GROUND IS ALLOWED
TO STAND, THEN THE AGENCY MAY GO TO THE STATE AND SAY JUST CHANGE YOUR LAW TO COMPLY WITH
OUR REGULATION AND THE COURT HAS SAID THAT'S HOK BECAUSE IT DOESN'T VIOLATE FEDERAL LAW.
AND FINALLY -- JUSTICE LA VECCHIA: ON THAT POINT, JUST HYPOTHETICAL
LY IF WE WERE TO GIVE A RULING IN YOUR FAVOR ALONG THOSE LINES WHAT IF THE FEDERAL GOVERNMENT
DISAGREED? JOSHUA M. SPIELBERG: IF THE FEDERAL GOVERNMENT DISAGREED, I DON'T
KNOW HOW THEY WOULD EXPRESS THAT. JUSTICE LA VECCHIA: ME EITHER.
JOSHUA M. SPIELBERG: JUSTICE ALBIN: YOU'RE IN VIOLATION OF FEDERAL LAW.
UNTIL YOU'RE IN COMPLIANCE WITH FEDERAL LAW WE'RE NOT GOING TO FUND YOUR PROGRAM.
JUSTICE LA VECCHIA: WE HAVE TO REACH THAT QUESTION IF WE WERE TO AGREE WITH YOUR FIRST
ARGUMENT AND INTERPRET THE REGULATION THE WAY YOU'RE ASKING THEN DOES THAT PATH OFFER
LESS OF A LIKELIHOOD THAT THE STATE WOULD BE FOUND IN VIOLATION OF FEDERAL REQUIREMENTS?
IN OTHER WORDS, A SUGGESTION THAT, YOU KNOW, THERE MIGHT BE A LATER PROBLEM.
JOSHUA M. SPIELBERG: I DON'T THINK THAT PATH WOULD OBVIATE THE POSSIBILITY
THAT THE FEDERAL GOVERNMENT COULD SAY THAT NEW JERSEY WASN'T IN COMPLIANCE BECAUSE YOU'VE
UPHELD THE REGULATION. THE DIVISION'S ARGUMENT IS THAT THIS IS REQUIRED BY FEDERAL LAW
SO EVEN IF YOU JUST UPHOLD THE REGULATION, THE FEDERAL GOVERNMENT COULD COME IN AND SAY
THIS IS A VIOLATION. JUSTICE LA VECCHIA: IN YOUR VIEW, THAT DOES NOT WORK.
JOSHUA M. SPIELBERG: RIGHT, THAT DOES NOT WORK AS AVOIDING THAT POSSIBLE
RESULT, BUT I THINK THE FEDERAL GOVERNMENT IF THEY LOOKED AT THIS ISSUE WOULD AGREE THAT
INTERVAL DAGS OF THE STATE REGULATION IS REQUIRED BY FEDERAL LAW. AND THE
OTHER THING I WOULD SAY AND JUSTICE SOLOMON BROUGHT UP THE CASES FROM OTHER
JURISDICTIONS, THERE ARE FOUR CASES FROM OTHER INJURIES DIKSZ, THREE OF WHICH LOOK AT THE
IDENTICAL LANGUAGE FOR ANOTHER MEDICAID PROGRAM AND THEY'VE ALL INTERPRETED REGULATIONS
IDENTICAL TO THE ONE THE STATE HAS HERE AS VIOLATING THE FEDERAL STATUTE.
AND THEN THE FOURTH CASE, WHICH IS THE PACHAS CASE FROM NORTH CAROLINA LOOKS AT THE FEDERAL
PROVISION HERE 1396 A.M. AND A NORTH CAROLINA REGULATION THAT WAS THE SAME AS THE NEW
JERSEY ONE AND INVALIDATED THAT ONE, NOW I SHOULD SAY ABOUT PACHAS THAT THERE WAS A PROCEDURAL
ISSUE IN THAT CASE SO THE NORTH CAROLINA SUPREME COURT NEVER REACHED THE ULTIMATE ISSUE
BUT THEY CITED EXTENSIVELY FROM THE TRIAL COURT, WHICH HAD INVALIDATED THE REGULATION
BASED ON THE SIMILAR NORTH CAROLINA CASE ON THE MEDICAID PROGRAM WITH THE EXACT SAME
STATUTORY LANGUAGE AND SAID IT'S CLEAR, IF IT'S INVALID IN THAT PROGRAM IT'S INVALID IN
THIS PROGRAM AND THE STATE OF NORTH CAROLINA NEVER EVEN CHALLENGED THAT PART OF THE RULING
LAV. JUSTICE PATTERSON: IS THERE ANY FEDERAL LAW THAT YOU CAN CITE US TO
WHEN YOU'RE DEALING WITH -- LET ME JUST BE FRANK ABOUT MY CONCERNS THAT THERE MAY BE
NUANCE DIFFERENCES BETWEEN DIFFERENT PROGRAMS AND I SEE WHAT YOU'RE SAY PLEADING GUILTY
ABOUT THE LANGUAGE BEING SIMILAR, BUT THESE PROGRAMS ARE SO COMPLEX THAT IT MAY BE FOR
REASONS THAT ARE NOT APPARENT IN THESE CASES THAT THERE IS SOMETHING IN THE PARTICULAR
PROGRAM THAT IS BEING DESCRIBED THERE, WHICH IS MR. SLOCUM BRIEFLY ADDRESSED, THAT MAY
MEAN THAT THE ANALOGY IS NOT PERFECT. IS THERE SOME LAW OUT THERE OR GUIDANCE
FROM THE FEDERAL AGENCY THAT TELLS US THAT WE CAN LOOK ACROSS PROGRAMS THAT HAVE SIMILAR
LANGUAGE AND FIND GUIDANCE IN TERMS OF CONGRESSIONAL INTENT? JOSHUA M.
SPIELBERG: I DON'T KNOW THAT THERE IS ANY FEDERAL RAL GUIDANCE BUT YOU CAN LOOK AT THE
TWO STATUTORY PROVISIONS AN THEY USE IDENTICAL LANGUAGE APPLICABLE TO THE SIESZ OF A FAMILY
INVOLVED. NOW, MR. SLOCUM WAS TRYING TO MAKE A DISTINCTION WITH THESE CASES AND SAY THEY
WERE ABOUT MEDICARE PROGRAMS AND NOT MEDICAID PROGRAMS, THAT'S INCORRECT, THOSE ARE
MEDICAID PROGRAMS FOR PEOPLE WHO ALSO RECEIVE MEDICAID CARE AND I WOULD CITE, WE HAVE AN
APPELLATE DIVISION CASE THAT SPECIFICALLY SPEAKS TO THESE PROGRAMS AS BEING MEDICAID PROGRAM
WHICH IS -- JUSTICE PATTERSON: EVEN IF THEY ARE BOTH ULTIMATELY DEALING
WITH MEDICAID ELIGIBILITY, HOW DO WE KNOW THAT IT IS A FAIR EXERCISE TO EXTRAPOLATE THE
STATEMENTS IN THE CASES ABOUT THE CONGRESSIONAL INTENT FROM ONE PROGRAM TO THE OTHER BECAUSE
THESE PROGRAMS HAVE VERY NUANCED FEATURES TO THEM THAT PERHAPS ARE NOT READILY APPARENT
FROM THE CASES? JOSHUA M. SPIELBERG: WELL, I THINK YOU NEED TO GET
INTO THE LEGISLATIVE HISTORY FOR THAT ASPECT OF IT. I THINK YOU JUST NEED TO COMPARE THE
STATUTORY LANGUAGE AND THE STATUTORY LANGUAGE APPLICABLE TO A FAMILY OF THE SIZE INVOLVED
IS THE SAME AND I DON'T THINK THERE IS ANY NUANCE AND THERE WAS NO NUANCE IN THOSE CASES
THAT WOULD MAKE IT DIFFERENT IN TERMS OF APPLYING READING OF THE STATUTORY LANGUAGE.
CHIEF JUSTICE RABNER: MR. SPIELBERG, IN AN AREA LIKE THIS WHICH DEPENDS SO
MUCH ON VERY TECHNICAL, INTRICATE FEDERAL LAW OF WHICH THIS COURT IS NOT AN EXPERT ON
THE MEDICAID PROGRAM, I COME BACK TO AN EARLIER QUESTION, WOULD IT MAKE SENSE IN AN EX
ERCISE OF RESTRAINT FOR THE COURT TO SAY THE STATE REGULATION VIOLATES STATE LAW AND THAT
WE, THEREFORE, NEED GO KNOW FORTH AN NEITHER ADOPT NOR EXPRESS A VIEW ON THE APPELLATE
DIVISION'S HOLDING WITH RESPECT TO WHETHER THE STATE REG VIOLATES FEDERAL LAW?
JOSHUA M. SPIELBERG: SO, AGAIN, I THINK THE DANGER IS THEN THAT THE EXECUTIVE BRANCH MAY
GO TO THE LEGISLATIVE BRANCH AND SAY LET'S TWEAK THIS STATUTE SO IT COMPLIES WITH OUR
REGULATION. CHIEF JUSTICE RABNER: AND WE WOULD THEN WELCOME YOU BACK.
JOSHUA M. SPIELBERG: BUT THIS CASE ORIGINATED IN 2017. IT HAS GOTTEN TO THE COURT
IN 2021 SO IN THE MEANTIME NUMEROUS INDIVIDUALS WHO ARE ELIGIBLE HAVE NOT BEEN GETTING
THESE BENEFITS AND IF THE LEGITIMATE YOUR DID THAT, THEY THERE WOULD BE MORE INDIVIDUALS
IN THAT SITUATION. THE OTHER THING I WOULD SAY IS -- CHIEF JUSTICE
RABNER: ARE THERE OTHER STATES THAT ARE -- THAT ARE KOUNLTING FOR FAMILY SIZE IN THE WAY
THAT YOU'RE ADVOCATING NEW JERSEY SHOULD THAT HAVE RUN INTO THAT PROBLEM WHERE THE
EXECUTIVE BRANCH HAS COME TO THEM. JOSHUA M. SPIELBERG: I DON'T KNOW; THAT'S
NOT SOMETHING I KNOW, BUT IT IS, I THINK, A LEGITIMATE CONCERN OF MEDICAID BENEFICIARIES
IN NEW JERSEY. THE OTHER THING I WOULD SAY IS THE MEDICAID STATUTE CAN BE
COMPLICATED, BUT IT IS NOT REALLY THAT COMPLICATED HERE IN TERMS OF WHAT IS AT
ESTABLISHING HERE. I THINK THAT -- THE COURT: WE HAVE YOUR WORD ON THAT,
RIGHT? JOSHUA M. SPIELBERG: YOU DO. AND THE OTHER THING I WOULD SAY IS
THAT CLOP UP TOP STAKE CLOP. THE OTHER THING I WOULD SAY IS THAT MR. SLOCUM HAGS TALKED
ABOUT DEFENSE TO THE AGENCY IN THESE SITUATIONS, BUT THIS IS THE AGENCY INTERPRETING FEDERAL
LAW AND I WOULD QUOTE FROM K K VERSUS DIVISION OF MEDICAL ASSISTANCE, 453 NJ SUPER 157,
APPELLATE DIVISION, 2018, OUR SUPREME COURT IS EXPLORING THAT A STATE AGENCY INTERPRETATION
OF A FEDERAL STATUTE SHOULD BE REVIEWED DE NOVO AND WITHOUT DEFENSE TO THE AGENCY SO DEFENSE
DOESN'T APPLY HERE AND, AGAIN, GRANTED, MEDICAID CAN BE COMPLICATED AND THE MEDICAID STATUTE
CAN BE COMPLICATED BUT THE ISSUE HERE IS RELATIVELY STRAIGHTFORWARD. IT'S REALLY
INTERPRETING 13-96 A.M. AND DISTINGUISHING BETWEEN M 1 AND M 2 A AND THAT'S THE --
JUSTICE PATTERSON: IF THIS IS A STRAIGHTFORWARD ISSUE, I WANT TO SEE A COMPLICATED ONE?
JOSHUA M. SPIELBERG: WELL, I THINK, AGAIN, THE DIVISION HAS TRIED TO MAKE
IT MORE COMPLICATED BY GETTING INTO SSI RULES. WE DON'T NEED TO GET INTO SSI RULES.
JUSTICE PATTERSON: I AM NOT GOING TO SAY ANYTHING FURTHER. CHIEF
JUSTICE RABNER: THAT ISSUE ASIDE, IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD, I THINK
WE HAVE YOUR POSITION? JOSHUA M. SPIELBERG: LET'S SEE IF THERE IS ANYTHING
ELSE. I THINK I HAVE COVERED EVERYTHING ON THE NEW JERSEY CASE THAT SAYS
THESE ARE MEDICAID PROGRAMS IS 464 NJ SUPER 343 APPELLATE DIVISION, 2020 CLOP UP TOP THE
CITE. JUSTICE PIERRE-LOUIS: WHAT IS THE NAME OF THAT CASE? CHIEF
JUSTICE RABNER: THE NAME OF THE CASE? JOSHUA M. SPIELBERG: THE NAME OF THE
CASE WAS D C VERSUS DIVISION OF MEDICAL ASSISTANCE. JUSTICE
PIERRE-LOUIS: THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, MR. SPIELBERG,
MR. GOLDMAN YOU'RE UP NEXT AND I WOULD LIKE YOU WILL AN MR. MALONE TO INCORPORATE ANY
ARGUMENTS YOU'VE ALREADY HEARD AS PART OF YOUR PRESENTATION, PLEASE GO AHEAD. MAL.
KENNETH M. GOLDMAN: THANK YOU, YOUR HONOR. AT THIS POINT I AM NOT GOING TO PROFESS
TO YOU WE HAVE THE ARGUMENTS ALREADY MADE, MR. SPIELBERG IS THE EXPERT ON THIS. OUR OFFICE
ALMOST HAD TO DRAW STRAWS IN ORDER FOR KNEE TO TAKE ON THIS CASE AND DO THE ARGUMENT,
BUT THERE ARE A COUPLE OF THINGS I WOULD LIKE TO JUST POINT OUT MAYBE FOR EMPHASIS, ONE
THING THAT REALLY HASN'T BEEN DEVELOPED HERE BECAUSE IT WASN'T REALLY DEVELOPED AS PARTS
OF THE RECORD BELOW, BUT IF IT IS ESTABLISHED THAT BOTH E.M. AND GREAT OAKS ARE BOTH
DISABLED, BOTH ARE GETTING SOCIAL SECURITY DISABILITY BENEFITS. THEY ARE ALSO GETTING
MEDICARE, THAT WASN'T SPELLED OUT IN THE FINDINGS PER FACT IN THE A J HEARING BUT IT IS
IN THE RECORD, IT IS IN THEIR APPLICATIONS AND THE REASON THAT IS RELEVANT IS THAT THIS
MEDICAID A D D PROGRAM, CONGRESS INTENDED MAINLY TO BENEFIT DISABLED INDIVIDUALS WHO ARE
RECEIVING MEDICARE; THAT IS REFLECTED IN THE HOUSE COMMITTEE REPORT. IT IS CITED IN OUR
PETITION, IT'S THE PETITION OF GK ON PAGES 13 TO 14 T THERE IS A HYPERLINK TO THERE, BUT
CONGRESS WAS VERY EXPLICIT AS TO THE EXPANSION OF THIS PROGRAM AND I AM QUOTING FROM THE
COMMITTEE REPORT THAT THEY RECOGNIZE THAT, QUOTE, THE EXTENSION OF MEDICAID COVERAGE TO
POOR, ELDERLY DISABLED MEDICAID CARE BENEFICIARIES IS A PREGSING PRIORITY BECAUSE
QUOTE THEY ARE AMONG THE SICK ES AN POOREST OF OUR SENIOR AND DISABLED CITIZENS, END QUOTE
AND BEYOND. NEEDED HEALTH SERVICES IS INSUFFICIENT BECAUSE THEY NAS SUBSTANTIAL
OUT OF POCKET COSTS FOR NEEDED CARE AND INCUR DEVASTATING FINANCIAL BURDENS WHILE ILL
NESS STRIKES EMORY SO EVEN THEY ARE RECEIVING MEDICARE THE POINT OF MEDICARE A D D THE
MAIN FOCUS WAS TO SUPPLEMENT MEDICARE COVERAGE. MEDICARE, THERE IS A 20 PERCENT COPAY
ON ELIGIBLE SERVICES. THERE IS A PREMIUM AND THERE IS OTHER SERVICES THAT ARE NOT PROVIDED
AN FOR FAMILIES AT THE POVERTY LEVEL THAT CAN BE HAVE A DEVASTATING EFFECT. AGAIN THE
RECORD WASN'T FULLY DEVELOPED BUT IT IS NOT HARD TO IMAGINE A FAMILY LIKE MY CLIENT G
C WHOSE TOTAL HOUSEHOLD INCOME WAS LESS THAN $2,000 A MONTH, WHICH WAS UNDER THE FEDERAL
POVERTY GUIDELINE WOULD NOT BE ABLE TO AAFFORD MAJOR SURGERY IF THEY HAD TO PAY 20 PERCENT
OF THE SURGERY SO WHAT CONGRESS WAS FOCUSING ON IN 1986 WHEN THEY AUTHORIZED STATES TO
EXPAND MEDICAID WAS TO SUPPLEMENT MEDICARE COVERAGE FOR THE MOST POOREST OF THE DISABLED
INDIVIDUALS. NOW, WE'VE ALSO USED THE TERMS SSI. SSI IS SIGNIFICANTLY DIFFERENT
THAN SSD, SSI SUPPLEMENTAL SECURITY INCOME, SSD IS SOCIAL SECURITY DISABILITY INCOME.
UNDER SSI, THAT IS INTENDED TO HELP THE MOST IMPOVERISHED, DISABLED, ABD INDIVIDUALS IN
THE COUNTRY. IT IS INTENDED FOR PEOPLE WHO HAVE HAD VERY LITTLE OR NO WORK HISTORY.
IT IS IN EFFECT AN EXTENSION OF PUBLIC BENEFITS AND IT'S BASED ON ACTUAL NEED. SOCIAL
SECURITY DISABILITY IS VRS SIMILAR TO SOCIAL SECURITY RETIREMENT. IT IS NOT BASED ON
ANY STANDARD OF NEED. IT IS BASED ON WORK HISTORY. AND IT'S BASED ON THE BENEFIT LEVEL
IS TIED TO, FOR SOCIAL SECURITY DISABILITY IS BASED ON THE NUMBER OF -- THE AVERAGE SALARY
DURING THE TIME THAT THE PERSON WAS WORKING BEFORE THEY BECAME DISABLED. THE REASON THAT
IS IMPORTANT HERE IS THAT THESE TWO CASES ILLUSTRATE E.M. AND G C, BOTH HAD A WORK
HISTORY, BOTH BECAME DISABLED, BUT BECAUSE OF THEIR WORK HISTORY, THEY WERE SLIGHT -- THEIR
INDIVIDUAL SOCIAL SECURITY DISABILITY BENEFITS WERE SLIGHTLY OVER THE FEDERAL POVERTY
GUIDELINE EVEN THOUGH EVERYONE ACKNOWLEDGED THEY WERE LIVING IN A FAMILY UNDER THE POVERTY
GUIDELINE. SO THE ACTUAL APPLICATION OF THIS REGULATION IS TO DEEM IN ELIGIBLE
RIGHT AT THE START DISABLED SOCIAL SECURITY DISABILITY RECIPIENTS WHO HAVE WORKED THEIR
ADULT LIVES, BUT NOW BECAUSE OF THEIR -- THEY ARE BEING PENALIZED BY GETTING A HIGHER
SOCIAL SECURITY DISABILITY BENEFIT BY PUTTING THEM SLIGHTLY OVER. I THINK IT WAS A MATTER
OF A COUPLE OF DOLLARS IN BOTH OF THESE CASES WITHOUT ANY REFERENCE TO THEIR ACTUAL LIVING
CIRCUMSTANCES WITH THE REST OF THEIR FAMILY; THAT'S JUST A PRACTICAL APPLICATION OF WHY
THE STATE'S REGULATION DOESN'T MAKE SENSE IN THIS CONTEXT. IT ALSO DOESN'T MAKE SENSE
BECAUSE WE DISCUSSED THAT THE SSI PROGRAM, YES, THE FIRST PART OF THE STATUTE M 1 B DOES
REFERENCE SSI, BUT IT ONLY IS REFERENCING IT AS TO WHAT TO COUNT AS INCOME. AND THE
REGULATION THAT THE STATE IS RELYING ON IS A REMNANT OF THE PREVIOUS MEDICAID PROGRAM THAT
THE ABDOMEN I OBJECT ABDOMEN INTENDED TO EXPAND UPON. THE MEDICALLY ONLY PROGRAM AS MR.
SPIELBERG INDICATED, THE ELIGIBILITY FOR THAT PROGRAM IS SOMEONE IS OTHERWISE ELIGIBLE
FOR SSI BUT FOR WHATEVER REASON ARE NOT GETTING THE CASH BENEFITS THEY CAN GET MEDICAID
ONLY AND THAT'S THE GENESIS OF THE STATE REGULATION. THAT WAS A STATE REGULATION THAT
WAS IN AFFECT UNDER THE MEDICAL ONLY PROGRAM. THE MEDICAID ABD WAS AN EXPANSION
OF THAT BUT FOR WHATEVER REASON THE STATE KEPT THE SSI METHODOLOGY REGULATION IN AN EX
SPANLDED PROGRAM. IT REALLY DOESN'T FIT. IT'S OUT OF MRALS AND THE FACT THAT 30 YEARS
HAS PASSED MEANS FOR WHATEVER REASON WE'RE JUST NOTICING IT NOW. I DON'T KNOW WHY THIS
DIDN'T COME UP EARLIER. MANY OF THE APPLICANTS FOR MEDICAID ARE PRO SE, BUT FOR WHATEVER
REASON THIS ISSUE HAS NOW COME UP IN TWO SEPARATE CASES AND IF YOU LOOK AT THE ACTUAL
ANALYSIS, THE REGULATION THAT THEY ARE RELYING ON, THE ONE THAT THEY FOCUS ON IS 20 CFR
14-11-63 D, IF YOU GO BACK AND READ THAT THAT IS NOT JUST A DEEMING STATUTE, SECTION D
SAYS ELIGIBILITY FOR SSI SO THEY ARE USING AN ELIGIBILITY STANDARD FOR SSI IN A PROGRAM
THAT IS MAINLY TO BENEFIT MEDICAID BENEFITS FOR SOCIAL SECURITY DISABILITY RECIPIENTS
AND THAT'S WHY THE STATE REGULATION DOESN'T MAKE ANY SENSE BECAUSE THE EXPANSION GOES
BEYOND THE SSI PROGRAM AND FOR WHATEVER REASON WHEN THE STATE ADOPTED THIS REGULATION
BACK IN, I THINK IT WAS 1988 OR AROUND THAT TIME, THEY -- THEY ACTUALLY DID DO A WHOLE
NEW SET OF REGULATIONS FOR MEDICAID ABD, BUT FOR WHATEVER REASON THEY INCORPORATED THAT
OLDER, MEDICALLY -- MED NGSZ MEDICAID ONLY REGULATION INTO THIS EX SPANLDED PROGRAM AND
THAT'S WHY THE REGULATION DOESN'T MAKE SENSE WHEN YOU START READING IT IN THE TERMS OF
WHAT THE STATE STATUTE AN THE FEDERAL STATUTE -- THE ACTUAL TEXT. AND THE
ACTUAL -- IF READING THOSE REGULATIONS -- 416-11-63 IS WITHIN PART K OF THE SSI INCOME
REGULATIONS, BUT BEFORE THEN IT IS REALLY THE REGULATIONS THAT WE BELIEVE CONGRESS IN
TENLDED TO FOCUS ON, 141 CLOP 14-16-1110 AS, HAS TO DO WITH DEFINITION OF EARNED INCOME,
THE OTHER ONE DEALS WITH UNEARNED INCOME. AND IN THIS CASE, THE CASE FROM 1996 HAD REVIEWED
WHAT THE STATE IS CALLING SSI METHODOLOGY AND REFERRED BACK TO THE U.S. SUPREME COURT
CASE AT KINS SAYING THAT THEY DEE MYSTIFIED THE METHODOLOGY MEANS BY SAYING IT SIMPLY
MEANS THE COMPONENTS OF INCOME THAT GO UNDER THE SSI PROGRAM, NOT THE ACTUAL ELIGIBILITY
STEPS TO DETERMINE IF YOU'RE ELIGIBLE FOR SSI BUT SIMPLY WHAT IS INCLUDED AND WHAT IS
NOT INCLUDED IN INCOME. THE EXAMPLES GIVEN IN THAT CASE WHY CHILD SUPPORT, INTEREST
PAYMENTS, JUST AS A DESCRIPTIVE LIST. SO, AGAIN, THE BOTTOM LINE IS I THINK
THAT THE PART OF THE PROBLEM FROM THE STATE REGULATION IS THAT IT IS A HOLD OVER FROM
THE PREVIOUS MEDICAID PROGRAM WHERE BOTH -- THAT RUNS AFOUL OF CONGRESSIONAL INTENT AND
OUR STATE LEGISLATURE'S INTENT TO EXPAND THE PROGRAM TO MAINLY BENEFIT SOCIAL SECURITY
DISABILITY RECIPIENTS WHO MAY BE RECEIVING MEDICAID CARE BUT BECAUSE THEIR FAMILIES ARE
BELOW THE FEDERAL POVERTY LEVEL, THEN THE STATE REGULATION REALLY DOESN'T MAKE SENSE.
ONE OTHER POINT, AGAIN, IT IS QUOTED AND WE DID QUOTE IT IN THE PETITION,
BUT THERE IS OTHER LANGUAGE THAT I BELIEVE IS IMPORTANT. AGAIN, THIS IS FROM THE HOUSE
COMMITTEE WHEN CONGRESS PASSED IN SUPPORT OF THE EXPANSION OF THIS PROGRAM AND THIS IS
A QUOTE VERBATIM, STAITS COULD DECIDE -- QUOTE, STAITS CAN DECIDE WHETHER TO EXTEND THE
COVERAGE TO THIS NEW OPTIONAL CATEGORY GOR RIKLY NEEDED GROUP AND IF SO WHAT LEVEL AT THE
INCOME ELIGIBILITY THRESHOLD HOWEVER THE STATE ELECTED THIS OPTION WOULD HAVE TO COVER
BOTH THE ELDERLY DISABLED AND WOULD HAVE TO APPLY THE SAME STANDARD AND RESOURCE TET,
TEST TO BOTH GROUPS AN TO ALL FAMILY SIZES AND, AGAIN, IN THE HOUSE THEY ARE TALKING
ALL FAMILY SIZES. THE IDEA HERE WAS TO LOOK AT THE MEDICAID APPLICANT, NOT AS A SEPARATE
INDIVIDUAL, BUT WITHIN THE CONTEXT OF THE ENTIRE FAMILY AND THAT IS WHY I THINK WE BELIEVE
THE APPELLATE DIVISION WAS CORRECT IN DEVELOPING THE REGULATION ON STATE GROUNDS, BUT
AS MR. SPIELBERG SAID, THE STATE LAW HAS TO COMPLY WITH FEDERAL LAW SO IF THE REGULAR
REGULATION IS INVALID UNDER STATE LAW BY DEFINITION IT WOULD HAVE TO BE INVALID UNDER
FEDERAL LAW. JUSTICE LA VECCHIA: THIS REGULATION ORIGINATED BACK IN 1988,
THAT'S WHERE WE SHOULD LOOK FOR THE HISTORY? GOLDMAN GOELTD WHICH. JUSTICE LA
VECCHIA: THE STATE REGULAR. KENNETH M. GOLDMAN: IN THE PETITION I THINK
WE -- YES. JUSTICE LA VECCHIA: WHERE WOULD WE LOOK IN THE NEW JERSEY
REGISTER. KENNETH M. GOLDMAN: I THINK IN THE APPELLATE BRIEFS WE GOT INTO
THAT IN MORE DETAIL ABOUT THE GENESIS OF IT. JUSTICE LA VECCHIA: IT WAS
MORE AFTER THE ADOPTION OF THE STATUTE. KENNETH M. GOLDMAN: I THINK IT WAS
ADOPTED ORIGINALLY AS AN EMERGENCY PRESENTING LAGS BUT THE ACTUAL REGULATION FOR A D B
IS, I BELIEVE, UN N.J.S.A. 10:72 AND THE MEDICAL -- MEDICAID ONLY IS N.J.S.A. 10-71 AND
THAT -- MR. SLOCUM CAN CORRECT ME IF I'M WRONG, BUT I BELIEVE THAT THE REGULATION AT ISSUE
HERE TODAY GENERATED NOT -- WASN'T SOMETHING NEW THAT WAS CREATED FOR THE ABD PROGRAM.
IT WAS ALREADY IN USE UNDER THE MEDICAID ONLY PROGRAM AND THE STATE DECIDED TO USE IT
UNDER THE NEW EX SPANLDED PROGRAM. JUSTICE LA VECCHIA: UNDERSTOOD, THANK YOU.
CHIEF JUSTICE RABNER: THANK YOU, MR. GOLDMAN. KENNETH M. GOLDMAN:
THANK YOU, MR. MALONE A. Q. FULLY KOENT TLAF MUCH ELSE TO ADD I
JUST YANT TO UNDERSCORE COMBASED ON SMIE CLIENT' EXPERIENCE HELPING DISABLED
AND ELTLY PEOPLE GET HELP KOEFRJTS THE IMPORTANCE OF THESE FRAMS TO THEM. AND
DISABLED INDIVIDUALS IN PARTICULAR FACE FACTORER HEALTH OUTCOMES THEY STRUGGLE
TO GET CARE, TEND TO HAVE IN OTHER PRE-EXISTING CONDITIONS OR THE LIKE THAT PUT
THEM AT RISK FOR A POOR HEALTH OUTCOMES AND THE MEDICAID PROGRAM HAS BEEN
PROVEN TO I AM FROF ACCESS TO HEALTH CARE AND #I78 PROVE HEALTH OUTCOMES FOR THESE
INDIVIDUALS. WE BELIEVE THE LEGISLATURE INTENDED TO EXPAND COVERAGE TO
THEM AND TO TAKE FAMILY SIZE INTO ACCOUNT IN DOING SO IN THE REGULATION AT ISSUE
HERE DOES NOT DO SO FOR AT LEAST A SIGNIFICANT SUB SET OF APPLICANTS
BECAUSE IT CONSIDERS EVERYONE A FAMILY SIZE OF ONE RIGHT OUT OF THE GAIT. WE THINK
THAT'S CONTRARY TO THE LEGISLATE YOU KNOW,' INTENT AND WE ASK THE COURT TO
UP HELD THE ANGSS IN VAM DEPRIVATION OF THE REGULATION AT ISSUE. THANK YOU.
CHIEF JUSTICE RABNER: THANK YOU MR. IN A LONE.
MR. SLOEK UM CAN YOU WANT TO OFFER REBUTDAL. STEPHEN SLOCUM:
TUN. TUN. NOT TWANTSING TO SINL FLI REFWAET WHAT'S
NTS FWREERS OR REFLIGHT SNIE ARGUMENT EARLIER I HAVE KNOW CAN TO ADD OTHER
THAN I WOULD LIKE TO FOLKS US THE COURT AGAIN ON THE HIGHLY DEFRN SHALL STANDARD
WHEN INVALIDATEING A REGULATION AND IT'S NOT JUGS A MATTER OF IF THERE IS
A DIFFERENT READING OR IF THERE ARE IF THERE MAYBE FLAUS IN THE AGENCIES'
INTERPRETATION, IT IS AN INCREDIBLY HIGH STANDARD IF THERE IS ROOM FOR THE
AGENCIES' INTERPRETATION, IT SHOULD BE ALLOWED. AND I AS BRIEFED AS ARGUED, I THINK
ALT THE VERY MINUTE MUMG THERE IS CLEARLY ROOM FOR THE AGENCIES' INTERPRETATION.
CHIEF JUSTICE RABNER: THANK YOU. MR. I DON'T
KNOW THAT IS EVERYONE ON THE KROGS KNOW EGS THAT WAS JUST TOUCHED THAT NEEDS TO BE
REBUTDED DO YOU HAVE A DIFFERENT TAKING SPEEL SPEEL JUST VERY QUICKLY.
BECAUSE THE ISSUE OF THE THE CONFLICT WITH FEDERAL LAW GETTING BACK TO THE QUESTION
THERE WAS SOME CONCERN THAT THE FEDERAL GOVERNMENT MAY CHALLENGE THIS WHAT
I WOULD SAY IS WE HAVE CASES FROM FOUR OTHER JURISDICTIONS WHICH HAVE HELD BASICALLY
THE SAME STATE REGULATION IN CONFLICT WITH EITHER THE EXACT SAME STATUTORY
PROVISION OR ONE WITH IDENTICAL LANGUAGE, NONE OF THOSE HAVE BEEN CHALLENGED AND
THEY WERE ALL DECIDED ON FEDERAL LAW. CHIEF JUSTICE RABNER:
ARE THERE OTHER STATES THE SAME QUESTION THAT I ASKED EARLIER ARE THERE OTHER
STATES THAT FOLLOW THE PRACTICE YOU ARE EVEN KOURNLING NEW JERSEY SHOULD FOLLOW
THAT HAVE RUN INTO THAT HAVE BROUGHT ON THE IER OF THE FEDERAL GOVERNMENT. A.
NONE. Q. IT DOES NL SEEN THERE IS MUCH RISK THEN FRNL YES
I WOULD AGREE WITH THAT. THE OTHER THING I WOULD SAY IS THIS COURT THE NEW JERSEY
SUPREME COURT HAS BEEN RECOGNIZED AS A LEADER I THINK NATIONWIDE IN ADDRESS
ING IMPORTANT LEGAL ISSUES AND I THINK IT WOULD BE HELPFUL HERE FOR THE NEW JERSEY
SUPREME COURT TO ALSO ADDRESS THE FEDERAL MEDICAID ISSUE HERE. IT'S COME
UP BEFORE. IT MAY COME UP AGAIN IN OTHER STATES? CHIEF JUSTICE RABNER:
UNDERSTOOD ONE LAST QUESTION DO YOU HAVE ANY IDEA HOW MANY OTHER STATES USE
FAMILY SIZE IN THE FASHION THAT HAS BEEN ADVANCED? SPEEL SPEEL IN TERMS OF THE
NEW JERSEY REGULATION? CHIEF JUSTICE RABNER: REGULATIONS NO IN
TERMS OF THE NEW JERSEY STATUTE SPEEL SPEEL NEW JERSEY STATUTE, I DON'T.
I DON'T KNOW WHETHER THERE HAVEN'T BEEN CHALLENGES IN OTHER STATES THAT I'M AWARE
OF BUT THEY MAYBE IN THE SAME SITUATION AS FLUJ WHERE WE DIDN'T BECOME AWARE
OF THIS CONFLICT UNTIL 4 YEARS AGO. CHIEF JUSTICE RABNER: THANK YOU.