J.S. v. Nebraska Dept. of Health & Human Servs. , 306 Neb. 20 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/17/2020 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
J.S, appellant, v. Nebraska Department
of Health and Human Services
et al., appellees.
___ N.W.2d ___
Filed June 5, 2020. No. S-18-1149.
1. Public Assistance: Words and Phrases. For the purposes of state or
local public benefits eligibility under Neb. Rev. Stat. § 4-108 (Reissue
2012), “lawfully present” means the alien classifications under 8 U.S.C.
§ 1621(a)(1), (2), and (3) (2012).
2. Public Assistance: Legislature. In order to affirmatively provide a state
public benefit to aliens not lawfully present in the United States, as
authorized by 8 U.S.C. § 1621(d) (2012), the Legislature must make a
positive or express statement extending eligibility by reference to immi-
gration status.
3. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modi-
fied by an appellate court for errors appearing on the record.
4. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. Administrative Law: Judgments. Whether an agency decision con-
forms to the law is by definition a question of law.
6. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law for which
an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
7. Medical Assistance: Federal Acts: States. The Medicaid program
provides joint federal and state funding of medical care for individuals
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Nebraska Supreme Court Advance Sheets
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
whose resources are insufficient to meet the cost of necessary medi-
cal care.
8. ____: ____: ____. A state is not obligated to participate in the Medicaid
program; however, once a state has voluntarily elected to participate, it
must comply with standards and requirements imposed by federal stat-
utes and regulations.
9. Administrative Law: Statutes. For purposes of construction, a rule
or regulation of an administrative agency is generally treated like a
statute.
10. ____: ____. Properly adopted and filed regulations have the effect of
statutory law.
11. Administrative Law. Absent a statutory or regulatory indication to the
contrary, language contained in a rule or regulation is to be given its
plain and ordinary meaning.
12. Federal Acts: Words and Phrases. In interpreting federal statutes, the
word “may” customarily connotes discretion. That connotation is par-
ticularly apt where “may” is used in contraposition to the word “shall.”
13. Statutes: Words and Phrases. The word “may” when used in a statute
will be given its ordinary, permissive, and discretionary meaning unless
it would manifestly defeat the statutory objective.
14. Medical Assistance: Federal Acts: States. Because Nebraska did not
elect to extend coverage under 42 U.S.C. § 1396b(v)(4)(A) (2018)
beyond age 18, neither the Children’s Health Insurance Program nor the
former foster care provisions of the Patient Protection and Affordable
Care Act provide coverage where a noncitizen applicant’s immigration
status is not qualified.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Statutes: Words and Phrases. It is not for the courts to supply missing
words or sentences to a statute to supply that which is not there.
17. Statutes: Legislature: Presumptions. In enacting a statute, the
Legislature must be presumed to have knowledge of all previous legisla-
tion upon the subject.
18. ____: ____: ____. The Legislature is presumed to know the general
condition surrounding the subject matter of the legislative enactment,
and it is presumed to know and contemplate the legal effect that accom-
panies the language it employs to make effective the legislation.
19. Constitutional Law. Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties and preroga-
tives of another branch.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
20. ____. The separation of powers clause prevents a branch from delegat-
ing its own duties or prerogatives except as the constitution directs
or permits.
21. Constitutional Law: Legislature: Courts: Appeal and Error. The
Nebraska Supreme Court does not sit as a superlegislature to review
the wisdom of legislative acts; that restraint reflects the reluctance
of the judiciary to set policy in areas constitutionally reserved to the
Legislature’s plenary power.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Allison Derr, Robert McEwen, and Sarah Helvey, of
Nebraska Appleseed Center for Law in the Public Interest, for
appellant.
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In E.M. v. Nebraska Dept. of Health & Human Servs.
(E.M.), 1 we held that legislation 2 creating the bridge to inde-
pendence program (B2I) 3 did not “affirmatively provide[]” 4
eligibility to noncitizen applicants who were not “lawfully
present.” 5 In this Administrative Procedure Act 6 appeal, J.S.,
1
E.M. v. Nebraska Dept. of Health & Human Servs., ante p. ___, ___
N.W.2d ___ (2020).
2
See Neb. Rev. Stat. §§ 43-4501 to 43-4514 (Reissue 2016, Cum. Supp.
2018 & Supp. 2019) (Young Adult Bridge to Independence Act).
3
See § 43-4503(1).
4
See 8 U.S.C. § 1621(d) (2012).
5
See id.
6
See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue
2014 & Cum. Supp. 2018).
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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a noncitizen who was admitted into B2I, challenges the dis-
trict court’s judgment affirming a state agency’s denial of
Medicaid 7 eligibility after she reached age 19. Essentially, we
must decide whether the statutes or regulations she cites autho-
rized her participation despite her immigration status and age.
Because they did not, we affirm the judgment.
II. BACKGROUND
1. B2I
In E.M., 8 we briefly introduced B2I, Nebraska’s extended
foster care program, which was created by the Young Adult
Bridge to Independence Act (YABI). 9 In this appeal, we rely
upon that description.
2. PRWORA and L.B. 403
Similarly, in E.M., 10 we extensively discussed the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) 11 and its Nebraska counterpart. 12 As we
explained there, PRWORA declared certain individuals to be
ineligible for any state public benefit. 13 Like PRWORA’s pro-
hibition on federal public benefits, 14 its proscription on state
public benefits applies “[n]otwithstanding any other provision
of law” 15 but with specified exceptions. 16
[1,2] There, we focused on the exception created by
§ 1621(d), which authorized a State to make an “alien who is
7
See Neb. Rev. Stat. § 68-903 (Reissue 2018) (medical assistance program
“shall also be known as [M]edicaid”).
8
E.M., supra note 1.
9
See §§ 43-4501 to 43-4514.
10
E.M., supra note 1.
11
Pub. L. No. 104-193, § 1, 110 Stat. 2105.
12
See Neb. Rev. Stat. §§ 4-108 to 4-113 (Reissue 2012 & Cum. Supp. 2018).
13
See § 1621(a).
14
See 8 U.S.C. § 1611 (2012).
15
§ 1621(a).
16
See § 1621(b) and (d).
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
not lawfully present in the United States” eligible for a State
public benefit by enactment of a State law which “affirma-
tively provides for such eligibility.” First, we determined that
for the purposes of state or local public benefits eligibility
under § 4-108, “lawfully present” means the alien classifi-
cations under § 1621(a)(1), (2), and (3). 17 Second, we held
that in order to affirmatively provide a state public benefit
to aliens not lawfully present in the United States, as autho-
rized by § 1621(d), the Legislature must make a positive or
express statement extending eligibility by reference to immi-
gration status. 18
3. J.S. and DHHS
J.S. is a citizen of El Salvador, who fled to Nebraska as a
minor. She was adjudicated in juvenile court 19 and placed into
foster care. At the time she applied to the Nebraska Department
of Health and Human Services (DHHS) for B2I, she had a
pending application for special immigrant juvenile (SIJ) status.
Upon turning 19 years old, J.S. was accepted into B2I but was
denied Medicaid coverage after her 19th birthday.
She requested a fair hearing with DHHS. At the hearing,
the parties presented evidence and made arguments. In DHHS’
order, it found that she did not meet “the basic requirement[s]
of ‘citizenship or alien status’ required for all Medicaid recipi-
ents.” It upheld the denial of Medicaid benefits.
4. District Court
J.S. filed a timely petition for review in the district court. She
argued that she was eligible for Medicaid under the Children’s
Health Insurance Program (CHIP) 20 and former foster care. 21
17
E.M., supra note 1.
18
Id.
19
See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
20
See Neb. Rev. Stat. § 68-969(2)(a) (Reissue 2018) (“CHIP means the
Children’s Health Insurance Program established pursuant to 42 U.S.C.
[§] 1397aa et seq.”).
21
See 42 U.S.C. § 1396a(a)(10)(A)(i)(IX) (2018).
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
She also contended that B2I extended medical assistance to all
young adults regardless of immigration status.
The district court disagreed that CHIP or former foster care
supported Medicaid eligibility. The court reasoned: Congress
allowed the states to provide Medicaid benefits to certain law-
fully residing alien children under CHIP, a state could elect to
extend benefits to individuals under 21 years old (and pregnant
women) who are “lawfully residing” aliens, 22 but Nebraska
chose to limit CHIP to children under 19 years old (and preg-
nant women). Thus, the court concluded that even though J.S.
was considered lawfully residing as defined by CHIP regula-
tions, she exceeded the age limitation when she reached her
19th birthday.
The court then considered whether J.S. could receive
Medicaid under B2I. That program provides several services
to participants, including “[m]edical care under the medical
assistance program for young adults who met the eligibil-
ity requirements of [§] 43-4504 and have signed a voluntary
services and support agreement as provided in [§] 43-4506.” 23
The court acknowledged that § 1621(a) declared aliens who
are not qualified aliens, nonimmigrants, or paroled into the
United States for less than 1 year ineligible for State or local
public benefits. And the court recognized that § 1621(d)
authorized an exception where a state law affirmatively pro-
vided for such eligibility. The court concluded that because
the Nebraska Legislature did not affirmatively provide for
unlawful aliens to receive Medicaid benefits under B2I, J.S.
was not entitled to Medicaid benefits. The court noted that
whether J.S. should have been accepted into B2I was not
before the court.
The court affirmed DHHS’ denial of Medicaid benefits.
J.S. filed a timely appeal, and we later granted her petition to
bypass the Nebraska Court of Appeals. 24
22
See 42 U.S.C. § 1396b(v)(4)(A) (2018).
23
§ 43-4505(1).
24
See Neb. Ct. R. App. P. § 2-102(B) (rev. 2015).
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306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
III. ASSIGNMENTS OF ERROR
J.S. assigns, reordered, that the district court erred in (1)
affirming DHHS’ denial of Medicaid benefits, (2) determining
that citizenship or immigration status was relevant to eligibility
for medical coverage for participants in B2I, and (3) failing to
determine that DHHS’ practice of denying medical coverage to
participants in B2I due to alien status violated the separation of
powers clause of the Nebraska Constitution.
IV. STANDARD OF REVIEW
[3-5] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. 25 When reviewing an
order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 26
Whether an agency decision conforms to the law is by defini-
tion a question of law. 27
[6] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 28
V. ANALYSIS
1. Medicaid Participation
[7,8] The Medicaid program provides joint federal and state
funding of medical care for individuals whose resources are
insufficient to meet the cost of necessary medical care. 29 A
25
McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56, 926
N.W.2d 660 (2019).
26
Id.
27
Id.
28
In re Application No. OP-0003, 303 Neb. 872, 923 N.W.2d 653 (2019).
29
In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
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Nebraska Supreme Court Advance Sheets
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
state is not obligated to participate in the Medicaid program;
however, once a state has voluntarily elected to participate, it
must comply with standards and requirements imposed by fed-
eral statutes and regulations. 30
DHHS concedes that Nebraska has “elected to participate
in the Medicaid program” 31 through enactment of the Medical
Assistance Act. 32 But it argues that it properly determined J.S.
was not eligible under the applicable statutes and regulations.
Challenging the district court’s judgment affirming DHHS’
denial of Medicaid eligibility, J.S. makes three arguments:
First, she argues that neither CHIP nor former foster care
conditions Medicaid eligibility on immigration status. Second,
she contends that B2I extends Medicaid coverage to all young
adults in B2I and that although she would be ineligible for
federal matching funds, the State should furnish medical
care with state funds only. Finally, she asserts that DHHS’
practice of denying Medicaid to unlawful aliens participat-
ing in B2I violated the separation of powers clause of the
Nebraska Constitution. 33
We note that in this court, as in the court below, the parties
do not question J.S.’ participation in B2I; they contest only her
eligibility for Medicaid benefits. Therefore, we are concerned
only with whether J.S. is eligible for Medicaid under the
Medical Assistance Act and § 43-4505(1).
Before turning to the arguments, we note that we will refer
to the “Medicaid state plan.” 34 This is a “comprehensive
written document, developed and amended by [DHHS] and
approved by the federal Centers for Medicare and Medicaid
Services, which describes the nature and scope of the medi-
cal assistance program and provides assurances that [DHHS]
30
Id.
31
Brief for appellee at 20-21.
32
See Neb. Rev. Stat. §§ 68-901 to 68-994 (Reissue 2018 & Supp. 2019).
33
See Neb. Const. art. II, § 1.
34
See § 68-907(4).
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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will administer the program in compliance with federal
requirements.” 35
2. Medicaid Eligibility Via CHIP
or Former Foster Care
J.S. concedes that PRWORA “generally restricts immigrants’
rights to receive federal, state, and local public benefits,” that
it “limits the receipt of federally reimbursed Medicaid to only
U.S. citizens or ‘qualified aliens,’” and that it “imposes a
five-year waiting period,” which, in combination, effectively
permits noncitizens, nonqualified aliens, and qualified aliens
subject to the waiting period to “only receive medical coverage
for the treatment of emergency medical conditions, even as to
children and pregnant women.” 36
Nevertheless, J.S. argues that she was eligible for Medicaid
under CHIP and former foster care. Before addressing her spe-
cific arguments, we review the regulations adopted by DHHS
to administer the Medicaid program in Nebraska.
(a) DHHS Regulations
[9-11] The Medical Assistance Act requires DHHS to
“administer the [Medicaid] program” 37 and empowers it to
“adopt and promulgate rules and regulations.” 38 For pur-
poses of construction, a rule or regulation of an administra-
tive agency is generally treated like a statute. 39 Properly
adopted and filed regulations have the effect of statutory law. 40
Absent a statutory or regulatory indication to the contrary,
language contained in a rule or regulation is to be given its
plain and ordinary meaning. 41 DHHS’ regulations governing
35
Id.
36
Brief for appellant at 14, 15.
37
§ 68-908(1).
38
§ 68-908(2).
39
McManus Enters., supra note 25.
40
Id.
41
Id.
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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Medicaid eligibility are codified in title 477 of the Nebraska
Administrative Code.
J.S. did not meet Medicaid’s primary eligibility requirements
under title 477. One “Primary Eligibility Requirement[]” is
“U.S. citizenship or alien status.” 42 “In order to be eligible for
Medicaid, an individual’s status must be documented as one
of the following . . . [a] citizen of the United States; [or a]
Qualified Alien[] . . . .” 43 Within this regulation, a numbered
list from 2 to 4 specifies criteria for an “individual’s status,” 44
but none apply to J.S.
Despite not meeting the primary eligibility requirements,
J.S. contends that she is eligible for Medicaid, because, she
argues, a “lawfully present” child exception applied under
both CHIP and former foster care. We examine each category
in turn.
(b) CHIP
“CHIP means the Children’s Health Insurance Program
established pursuant to 42 U.S.C. [§] 1397aa et seq.” 45 A
regulation in effect at the time of J.S.’ application and the pro-
ceedings below stated, in relevant part, as follows: “Children’s
Health Insurance Program (CHIP): Children age 18 or younger
. . . are eligible for CHIP . . . .” 46
J.S. argues that in 2009, “Congress created an exception
to PRWORA in its enactment of [§] 214” 47 of the Children’s
Health Insurance Program Reauthorization Act of 2009
(CHIPRA). 48 The federal statute, as codified, states, “A State
may elect (in a plan amendment under this subchapter) to
42
See 477 Neb. Admin. Code, ch. 2, § 001 (2014).
43
477 Neb. Admin. Code, ch. 5, § 001 (2014).
44
Id.
45
§ 68-969(2).
46
477 Neb. Admin. Code, ch. 18, § 003.01 (2014).
47
Brief for appellant at 15.
48
Pub. L. No. 111-3, § 1, 123 Stat. 8.
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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provide medical assistance . . . , notwithstanding [specified
sections of PRWORA], to children . . . who are lawfully resid-
ing in the United States . . . , within . . . the following eligi-
bility categor[y]: . . . (ii) . . . Individuals under 21 years of
age . . . .” 49
[12,13] But, as the district court correctly determined,
§ 1396b(v)(4)(A) was permissive and not mandatory,
and Nebraska did not extend Medicaid eligibility under
§ 1396b(v)(4)(A) beyond those persons age 18 years and
younger. In interpreting federal statutes, the word “may”
customarily connotes discretion. That connotation is particu-
larly apt where “may” is used in contraposition to the word
“shall.” 50 Similarly, we have said: The word “may” when used
in a statute will be given its ordinary, permissive, and discre-
tionary meaning unless it would manifestly defeat the statutory
objective. 51 Here, the word “may” afforded the State a choice:
to “elect” or not. 52 As DHHS points out, the age of majority in
Nebraska is 19. 53 Although the age-of-majority statute has been
amended twice since the proceedings below, neither amend-
ment applies here. 54 DHHS argues, “In its Medicaid State Plan,
the State of Nebraska chose to limit such eligibility to lawfully
residing children under [age 19].” 55 And J.S. concedes that
DHHS “correctly point[s] out that although Nebraska elected
to provide Medicaid to lawfully residing children through
[§] 214, it only elected to do so in its State Plan up to age
nineteen, rather than twenty-one.” 56
49
§ 1396b(v)(4)(A) (emphasis omitted).
50
See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 125 S.
Ct. 694, 160 L. Ed. 2d 708 (2005).
51
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
52
See § 1396b(v)(4)(A).
53
See Neb. Rev. Stat. § 43-2101 (Reissue 2016).
54
See, 2018 Neb. Laws, L.B. 982, § 1; 2019 Neb. Laws, L.B. 55, § 5.
55
Brief for appellee at 26.
56
Reply brief for appellant at 4.
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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CHIP provides no support for J.S.’ claim. J.S. was 19 years
old when she was denied Medicaid. Once she reached age 19,
she was no longer eligible for Medicaid under CHIP. We now
turn to her argument regarding former foster care.
(c) Former Foster Care
J.S. argues that DHHS “must provide coverage to all eligible
individuals under mandatory categories of the federal Medicaid
program, including the Former Foster Care Category” 57 of the
Patient Protection and Affordable Care Act (ACA). 58 She cites
the eligibility criteria of § 1396a(a)(10)(A)(i)(IX), including
age, enrollment status, having been in foster care, and hav-
ing been enrolled in a state plan or under a waiver of a plan
while in foster care. She argues, “Aside from her citizenship
status, it is undisputed that [she] met all of the basic eligibility
requirements . . . .” 59 She then argues that “under [§] 214 of
CHIPRA, she became entitled to receive Medicaid under the
Former Foster Care Category.” 60
DHHS responds that because J.S. was not a U.S. citizen
or qualified alien, she did not qualify as a former foster care
child under § 1396a(a)(10)(A)(i)(IX) after she reached the age
of majority, i.e., age 19. “Under the former foster care child
exemption,” DHHS argues, “[J.S.] still must meet the basic
eligibility requirements, including [U.S.] citizenship or eligible
alien status.” 61 DHHS then argues that although the State could
have elected under CHIPRA to provide federal Medicaid to
pending SIJ applicants under age 21, it did not do so in its
Medicaid state plan.
In reply, J.S. concedes that DHHS is “correct in saying
‘Nebraska is not required to provide federal Medicaid to [SIJ
57
Brief for appellant at 21.
58
See Pub. L. No. 111-148, § 1, 124 Stat. 119.
59
Brief for appellant at 21.
60
Id. at 22.
61
Brief for appellee at 26.
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status] applicants under the age of 21.’” 62 And thereafter,
her argument rests solely on YABI. Thus, she implicitly con-
cedes that § 1396b(v)(4)(A)—the codification of § 214 of
CHIPRA 63—does not by itself overcome her immigration sta-
tus after age 19. It could not do so, DHHS correctly argues,
because Nebraska did not elect to extend medical assistance
under § 1396b(v)(4)(A) past age 18.
At the fair hearing before DHHS, one of the exhibits received
without objection purported to be a response from the federal
Centers for Medicare and Medicaid Services, responding to a
Nebraska inquiry. The answer stated, in relevant part, “[f]ormer
foster children who are age 19 or older and have an immigra-
tion status that is considered lawfully present but is not con-
sidered to be ‘qualified’ would not be eligible for full Medicaid
coverage, unless the individual was a pregnant woman.” This
merely confirms J.S.’ implicit concession.
[14] In summary, because Nebraska did not elect to extend
coverage under § 1396b(v)(4)(A) beyond age 18, neither
CHIP nor the former foster care provisions of the ACA pro-
vide coverage where a noncitizen applicant’s immigration
status is not qualified. We now turn to J.S.’ argument based
on YABI.
3. Medicaid Eligibility Via
B2I Under YABI
In E.M., 64 we addressed YABI and B2I, which extend serv­
ices and support to former foster youth who are between 19
and 21 years old. 65 But, here, we must specifically consider
§ 43-4505(1), which we did not address directly in E.M.
Under § 43-4505, “[e]xtended services and support provided
under [B2I] include, but are not limited to: (1) Medical care
62
Reply brief for appellant at 4.
63
Pub. L. No. 111-3, § 214, 123 Stat. 56.
64
E.M., supra note 1.
65
See §§ 43-4504 and 43-4505.
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under the medical assistance program for young adults who
meet the eligibility requirements of section 43-4504 and have
signed a voluntary services and support agreement as provided
in section 43-4506.”
(a) Principles of Statutory
Interpretation
[15,16] The same principles of statutory interpretation we
employed in E.M. apply here. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. 66 It is not for
the courts to supply missing words or sentences to a statute to
supply that which is not there. 67
(b) PRWORA Applies to YABI
In E.M., we reached several conclusions that direct our rea-
soning here: (1) PRWORA and its Nebraska equivalent apply
to B2I, (2) YABI could not be extended by omission to aliens
not lawfully present in the United States, (3) PRWORA instead
required a positive or express statement by reference to immi-
gration status, and (4) YABI lacks any such statement. 68
J.S. raises two arguments identical to contentions rejected in
E.M. Once again, neither is persuasive.
First, she says that YABI “makes no mention of citizenship
as a prerequisite to receiving medical care within extended
foster care” and that neither §§ 43-4504 or 43-4505(1) “limit
the availability . . . to non-qualified aliens, or give deference
to PRWORA.” 69 But this is merely the “omission” argument
that we rejected in E.M. There, we held, the omission of a law-
ful presence requirement in YABI did not qualify as a positive
66
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71
(2019).
67
State v. Jedlicka, ante p. 52, 938 N.W.2d 854 (2020).
68
See E.M., supra note 1.
69
Brief for appellant at 18.
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
or express statement extending eligibility by reference to immi-
gration status. 70
Second, J.S. points to the same case management service 71
we addressed in E.M. There, we observed that this subsection
describes a service and not a recipient eligible by immigration
status. Under PRWORA, in order for a noncitizen not “law-
fully present” to receive a state public benefit, the Legislature
was required to “affirmatively provide[]” for such eligibil­
ity. 72 In rejecting the same argument there, we observed that
no such statement appeared anywhere in YABI. Here, as
we did in E.M., we decline to supply words left out by the
Legislature.
(c) § 43-4505(1)
To escape the reach of PRWORA, J.S. argues that the “pas-
sage of [YABI] constituted a ‘[m]aterial change[] in State law’
requiring [DHHS] to amend its State Plan to carry out the
Legislature’s mandate to provide medical care to all children
within B2I,” including noncitizens having pending SIJ applica-
tions. 73 This argument relies upon a federal regulation, which
states, “The [Medicaid state] plan must provide that it will
be amended whenever necessary to reflect . . . (ii) Material
changes in State law . . . .” 74
DHHS responds that the passage of YABI did not require
the State to amend its Medicaid state plan. Instead, DHHS con-
tends that YABI must be read in conjunction with PRWORA 75
and its Nebraska counterpart. 76 DHHS points out that YABI
does not affirmatively provide for Medicaid coverage to
70
See E.M., supra note 1.
71
See § 43-4505(3)(h).
72
See § 1621(d).
73
Brief for appellant at 17.
74
42 C.F.R. § 430.12(c)(1)(ii) (2010).
75
See § 1621(d).
76
See § 4-108.
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a noncitizen who is not “lawfully present” as defined by
PRWORA. And DHHS suggests that the Legislature was
familiar with these prior statutes. We agree with DHHS.
[17,18] In enacting a statute, the Legislature must be pre-
sumed to have knowledge of all previous legislation upon the
subject. 77 The Legislature is also presumed to know the gen-
eral condition surrounding the subject matter of the legislative
enactment, and it is presumed to know and contemplate the
legal effect that accompanies the language it employs to make
effective the legislation. 78 And, as we recognized in E.M., the
Legislature knows how to affirmatively provide for noncitizens
to receive public benefits. 79
Section 43-4505 first came into law in 2013. 80 It was
amended in 2014 81 and 2015. 82 In none of this legislation was
there any language affirmatively providing for public benefits
to noncitizens. And although each of these legislative acts
directed DHHS to submit plan amendments, 83 J.S. has not
pointed to anything in these plan amendments or associated
federal statutes excepting B2I from PRWORA or § 4-108.
Moreover, J.S.’ argument claiming that § 43-4505 was a
material change in state law would duplicate the former foster
care category and conflict with the ACA. In 2010, the ACA
required the States to provide Medicaid coverage to youth
who have aged out of foster care until they turn 26 years old. 84
77
In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017).
78
Stew. v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
79
See E.M., supra note 1.
80
See 2013 Neb. Laws, L.B. 216, § 5 (as part of what was then known as
Young Adult Voluntary Services and Support Act).
81
See 2014 Neb. Laws, L.B. 853, § 34.
82
See 2015 Neb. Laws, L.B. 243, § 17.
83
See, 2013 Neb. Laws, L.B. 216, § 14; 2014 Neb. Laws, L.B. 853, § 44;
2015 Neb. Laws, L.B. 243, § 24.
84
See § 1396a(a)(10)(A)(i)(IX).
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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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In compliance with federal law, Nebraska amended its State
plan and provided for former foster youth to receive Medicaid
until they turned 26 years old. 85 At the time J.S. applied for
Medicaid, the former foster care category existed and did
not require an amendment to the State plan. J.S.’ construc-
tion would effectively limit former foster care recipients of
Medicaid only to those participating in B2I and reduce the age
limit from 26 to 21 years. Because the state Medicaid plan
already covered former foster care youth, § 43-4505(1) was not
a material change in state law.
4. Separation of Powers
J.S. contends that DHHS’ “practices and regulations limiting
non-qualified aliens’ ability to receive medical coverage despite
their presence in B2I” 86 violates the separation of powers
clause of the Nebraska Constitution. 87 Thus, she claims, DHHS
has encroached on the prerogatives of the Legislature.
[19,20] Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties
and prerogatives of another branch. 88 The separation of powers
clause prevents a branch from delegating its own duties or pre-
rogatives except as the constitution directs or permits. 89
[21] But as DHHS responds, the Legislature passed § 4-108,
which provides that “[n]otwithstanding any other provisions
of law, unless exempted . . . pursuant to federal law, no state
agency . . . shall provide public benefits to a person not law-
fully present in the United States.” If the Legislature intended
that nonqualified aliens were to receive Medicaid, it could
easily have included language to that effect in YABI. The
Nebraska Supreme Court does not sit as a superlegislature to
85
477 Neb. Admin. Code, ch. 28, § 003 (2018).
86
Brief for appellant at 24.
87
See Neb. Const. art. II, § 1.
88
In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
89
Id.
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review the wisdom of legislative acts; that restraint reflects
the reluctance of the judiciary to set policy in areas constitu-
tionally reserved to the Legislature’s plenary power. 90 DHHS
did not violate the separation of powers clause in denying
J.S. Medicaid.
VI. CONCLUSION
We conclude that the district court did not err in determining
that J.S. was not eligible for Medicaid. We affirm the judgment
of the district court.
Affirmed.
90
Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).