{ "id": 9250466, "name": "CHRISTINE OKALE and BLAISE OKALE-WEEKS by and through his Guardian Ad Litem, CHRISTINE OKALE, Petitioners v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent", "name_abbreviation": "Okale v. North Carolina Department of Health & Human Services", "decision_date": "2002-10-15", "docket_number": "No. COA02-96", "first_page": "475", "last_page": "481", "citations": [ { "type": "official", "cite": "153 N.C. App. 475" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 C.F.R. \u00a7 233.40", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(a)(1)(i)" } ], "opinion_index": 0 }, { "cite": "42 C.F.R. \u00a7 435.403", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "pin_cites": [ { "page": "(i)(l)(i)" }, { "page": "(h)(3)" }, { "page": "(i)(l)(i)" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7\u00a7 1396", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] } ], "analysis": { "cardinality": 632, "char_count": 13514, "ocr_confidence": 0.757, "pagerank": { "raw": 6.851754712648726e-08, "percentile": 0.4177214578919466 }, "sha256": "b16c902128f87ff40a59c7ffa097b30124f98a24c879307bd269266b93d53f9d", "simhash": "1:907fd9f646aa2c67", "word_count": 2195 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BRYANT concur." ], "parties": [ "CHRISTINE OKALE and BLAISE OKALE-WEEKS by and through his Guardian Ad Litem, CHRISTINE OKALE, Petitioners v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nPetitioners sought judicial review of Respondent\u2019s final agency decision denying petitioners\u2019 claim for emergency Medicaid coverage on the grounds that petitioners failed to meet the state residency requirement. The trial court affirmed the final agency decision. Petitioners appeal. We affirm the decision of the trial court.\nI. Facts\nOn 30 January 2000, Christine Okale (Okale) entered the United States from Africa with her husband and two children under a tourist visa which was to expire on 30 July 2000. Okale admits that when she entered the United States on the tourist visa, she had no intention of just visiting. Okale was approximately three months pregnant at that time. Okale and her family subsequently came to North Carolina. On 25 June 2000, Okale gave birth to a son, Blaise Okale-Weeks (Blaise). At the time of Blaise\u2019s birth, Okale had (1) entered into a lease for an apartment in Raleigh, (2) opened a checking account, (3) enrolled her two other children in the Wake County Public School System, and (4) obtained a North Carolina identification card and a driver\u2019s license.\nOn 28 June 2000, Okale applied with Wake County Department of Social Services (DSS) for Medicaid to cover the costs associated with Blaise\u2019s birth. On 3 July 2000, her application was denied on the grounds that neither she nor her son met state residency requirements. Okale appealed the decision to a local appeal hearing which upheld the denial of benefits. Okale requested a state appeal hearing before a hearing officer for respondent who issued a decision on 29 January 2001 affirming the 3 July 2000 decision. Okale further appealed to the chief hearing officer of respondent who issued a final agency decision on 23 February 2001 again affirming the 3 July 2000 decision. The evidentiary hearing audiotapes from the 23 February 2000 hearing were accidentally erased. Another hearing was held and the 3 July 2000 decision to deny emergency medicaid benefits was again upheld on 7 May 2001.\nOn 2 April 2001, petitioners filed a Petition for Judicial Review of the agency decision. Following a hearing, the trial court affirmed the final agency decision denying emergency medicaid to Okale and Blaise on 6 September 2001. Petitioners appeal.\nII.Issue\nPetitioners contend: (1) the final agency decision was based on a rule which was not promulgated in accordance with the North Carolina Administrative Procedure Act and (2) the rule created an irrebuttable presumption which is contrary to federal and state law and regulation.\nIII.Standard of Review\nUnder the North Carolina Administrative Procedure Act (NCAPA), an aggrieved party has the right to judicial review of a final agency decision in a contested case. N.C. Gen. Stat. \u00a7 150B-43 (2001). The standard of review depends on the issues presented for judicial review. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1991), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). If the contention is that the agency\u2019s decision was a legal error, de novo review is used. Id. If the contention is that the decision was not supported by the evidence or was arbitrary or capricious the \u201cwhole record test\u201d is used. Id. As petitioners contend respondent made legal errors, we review this decision de novo. Id.\nIV.MAF Manual\nRespondent publishes the \u201cNorth Carolina Family and Children\u2019s Medicaid Manual\u201d (\u201cMAF Manual\u201d). (The MAF Manual has subsequently changed to an on-line format with changes in the section numbers. All numbers referenced hereinafter will be to the sections as they appeared at the time petitioner sought Medicaid coverage.) The stated purpose of the MAF Manual is as follows:\nThe Family and Children\u2019s Medicaid Manual describes the North Carolina Medicaid and Health Choice programs. These programs provide medical insurance coverage for qualifying citizens of North Carolina.\nThe Manual describes who may be covered under North Carolina Medicaid for Families and Children or NC Health Choice. It provides requirements that a person must meet to qualify for medical coverage and the process by which coverage is determined. (There is another manual for Medicaid for the Aged, Blind and Disabled.)\nAdditionally, the Manual explains the rights and responsibilities of a person requesting or receiving North Carolina Medicaid for Families and Children or NC Health Choice and provides an overview of the benefits of this medical insurance coverage.\nMA-3100(I). Petitioners contend that the MAF Manual is a rule which has not been promulgated in accordance with the NCAPA.\nThe NCAPA defines \u201crule\u201d as:\nany agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. . . . The term does not include the following:\nc. Nonbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule.\nN.C. Gen. Stat. \u00a7 150B-2(8a) (emphasis added).\nThe MAF Manual is a nonbinding statement from the agency which defines, interprets, and explains the statutes and rules for Medicaid. Although the MAF Manual sets out the requirements for Medicaid eligibility, it merely explains the definitions that currently exist in the federal and state statutes, rules, and regulations. Violations of or failure to comply with the MAF Manual is of no effect but failure to meet the requirements set out in the federal and state statutes and regulations is a ground to deny medicaid payments. The MAF Manual falls squarely within the exception to rules created in N.C. Gen. Stat. \u00a7 150B-2(8a). Respondent was not required to complete the procedural requirements for rule-making to publish the MAF Manual. This assignment of error is overruled.\nV. State Residency\nThe MAF Manual states \u201cNon-immigrants may be legally admitted to the U.S., but only for a temporary or specified time. These aliens are NOT ELIGIBLE for full Medicaid or emergency medical services because they do not meet the N.C. residency requirement. Refer to MA-3230, State Residence.\u201d MA-3404(III.E.3) (emphasis in original). Petitioners contend that \u201c[t]he MAF Manual provision mandating that a non-immigrant alien can never meet state residence requirements is contrary to federal and state law.\u201d\nA. Medicaid Regulatory Scheme\nThe Medicaid program, established by Congress through the Social Security Act, 42 U.S.C. \u00a7\u00a7 1396 et seq (2001), is a joint federal-state program. A state that elects to participate is bound by the controlling federal statutes and regulations. North Carolina elected to participate by establishing its Medicaid program through the adoption of N.C. Gen. Stat. \u00a7\u00a7 108A-54 through 108A-70.5. The program is governed under and administered by respondent.\nAn alien\u2019s status determines the extent of medicaid benefits she is eligible to obtain. If otherwise entitled to receive Medicaid, a qualified alien is entitled to full medicaid benefits. 10 NCAC 50B .0302 (July 2002). A non-qualified alien is only entitled to emergency medicaid benefits. 10 NCAC 50B .0302(c). A qualified alien is defined as:\n(1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act,\n(2) an alien who is granted asylum under section 208 of such Act,\n(3) a refugee who is admitted to the United States under section 207 of such Act,\n(4) an alien who is paroled in the United States under section 212(d)(5) of such Act for a period of at least 1 year,\n(5) an alien whose deportation is being withheld under section 243(h) of such Act (as in effect immediately before the effective date of section 307 of division C of Public Law 104-208) or section 241(b)(3) of such Act (as amended by section 305(a) of division C of Public Law 104-208).\n(6) an alien who is granted conditional entry pursuant to section 203(a)(7) of such Act as in effect prior to April 1, 1980; or\n(7) an alien who is a Cuban and Haitian entrant....\n8 U.S.C. 1641(b) (2001); 10 NCAC 50B .0302(b)(2). It is undisputed that Okale failed to qualify under any of these seven categories at the time she requested medicaid benefits. Any other alien is a non-qualified alien. 10 NCAC 50B .0302(c). Emergency medical services include payments for emergency labor and birth. 42 C.F.R. 435.406(b) (2001); 42 U.S.C. 1396b(v). The Code of Federal Regulations expressly states: \u201cNone of the categories allows Medicaid eligibility for non-immigrants: for example, students or visitors.\u201d 42 C.F.R. 435.408(b).\nB. State Residency\nOne of the other eligibility requirements to receive medicaid benefits is state residency. North Carolina relies on the federal regulations to define who is a resident of the state. 10 NCAC 50B .0303(a). Under the federal regulations, the state of residence for an individual over the age of 21, who is not residing in an institution, is the state where the individual is \u201c[l]iving with the intention to remain there permanently or for an indefinite period of time.\u201d 42 C.F.R. \u00a7 435.403(i)(l)(i). For an individual under the age of 21 who is not residing in an institution and is not emancipated, the residency of the child is based on the residency of the parent. 42 C.F.R. \u00a7 435.403(h)(3). Petitioners must meet the Medicaid requirements established under the state and federal Laws regardless of the stated interpretation in the MAF Manual. Because Okale was lawfully in the United States on an unexpired tourist visa at the time of the request for Medicaid payment, she was a non-qualified alien and ineligible for full medicaid payments. Okale is only entitled to emergency medicaid payments for her labor and birth if she meets the other Medicaid requirements including North Carolina residency.\nResidency is defined in the federal regulation as \u201cliving in the State voluntarily with the intention of making his or her home there and not for a temporary purpose.... Residence may not depend upon the reason for which the individual entered the State, except insofar as it may bear upon whether the individual is there voluntarily or for a temporary purpose.\u201d 45 C.F.R. \u00a7 233.40(a)(1)(i). \u201cAn individual visiting in the state without intent to remain shall be ineligible for Medicaid.\u201d 10 N.C.A.C. 50B .0303(c). \u201cThe client\u2019s statement shall be accepted as verification unless there is reason to doubt it.\u201d 10 N.C.A.C. 50B .0303(f).\nHere, Okale expressed her intention of remaining only temporarily in the United States by entering on a tourist visa. The tourist visa had yet to expire when she gave birth. Her tourist visa declared that she intended to remain no later than 30 July 2000. While Okale stated that she intended to remain in North Carolina permanently and presented evidence of her intent to remain at the evidentiary hearings, this intent was called into doubt by her unexpired tourist visa. Her original application for a tourist visa necessarily includes her promise and understanding to leave North Carolina and America on or before the expiration date of her tourist visa. Okale\u2019s original declaration that she intends to leave the state and the country no later than 30 July 2000 is contrary to an \u201cintention to remain there permanently or for an indefinite period of time\u201d as required by law. 42 C.F.R. \u00a7 435.403(i)(l)(i). The unexpired tourist temporary visa creates the verification to doubt Okale\u2019s asserted intent to remain in the state. To hold otherwise, we must presume that Okale will violate the law and attempt to illegally stay beyond her latest declared date of departure from this state and country. This assignment of error is overruled.\nVI. Conclusion\nOkale failed to establish state residency. As Okale was not a resident of the state for Medicaid payment purposes, Blaise was also not a resident of North Carolina. We affirm the trial court\u2019s order affirming the final agency decision to deny Okale emergency Medicaid payments.\nAffirmed.\nJudges MCCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "East Central Community Legal Services, by Celia Pistolis and Lila T. Forro, and North Carolina Justice and Community Development Center, by Jack Holtzman, for petitioners-appellants.", "Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for respondent-appellee." ], "corrections": "", "head_matter": "CHRISTINE OKALE and BLAISE OKALE-WEEKS by and through his Guardian Ad Litem, CHRISTINE OKALE, Petitioners v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent\nNo. COA02-96\n(Filed 15 October 2002)\nPublic Assistance\u2014 emergency Medicaid coverage \u2014 state residency requirement\nA de novo review revealed that the trial court did not err by affirming respondent Department of Health and Human Services\u2019 final agency decision to deny petitioner mother\u2019s request for emergency Medicaid coverage for the birth of her child based on petitioner\u2019s failure to meet the state residency requirement, because: (1) petitioner mother, who was visiting the United States from Africa, expressed her intention of remaining only temporarily in the United States by entering on a tourist visa which had yet to expire when she gave birth; and (2) the unexpired tourist temporary visa created the verification to doubt petitioner\u2019s asserted intent to remain in the state.\nAppeal by petitioners from judgment entered 31 August 2001 by Judge Orlando F. Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals 18 September 2002.\nEast Central Community Legal Services, by Celia Pistolis and Lila T. Forro, and North Carolina Justice and Community Development Center, by Jack Holtzman, for petitioners-appellants.\nAttorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for respondent-appellee." }, "file_name": "0475-01", "first_page_order": 505, "last_page_order": 511 }