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Johnsen v. State5/13/2005
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
Neb. Rev. Stat. §§ 68-1202 to 68-1210 (Reissue 2003) allow the State to subsidize certain social services, including childcare. Acting under the auspices of these statutes, the Nebraska Department of Health and Human Services (DHHS) has created the "Child Care Subsidy Program." In 2002, DHHS adopted new regulations that would require that a family have income of less than 120 percent of the federal poverty level to be eligible for the Child Care Subsidy Program. The new regulations superseded regulations that had set the income eligibility level for the Child Care Subsidy Program at 185 percent of the federal poverty level.
The appellants, Kendra Johnsen and Jamie Koch, represent a class of persons whose income is between 120 and 185 percent of the federal poverty level and who lost the benefits they were receiving because of the new income eligibility level. They contend that the new regulation violates the principle of separation of powers found in Neb. Const. art. II, § 1, because it conflicts with an income eligibility level adopted by the Legislature. In addition, Johnsen argues that DHHS violated her due process rights by notifying her before the new regulation went into effect that the new regulation would result in her losing benefits. We are not persuaded by either argument and affirm the district court's judgment.
I. BACKGROUND
For persons who are ineligible for the aid to dependent children program (ADC), there are two childcare assistance options in Nebraska. The first is transitional childcare, which provides childcare assistance to families who have previously received cash assistance under ADC, but are no longer eligible for ADC. Families can receive childcare assistance for up to 24 months after they have stopped receiving ADC if the family's income is at or below 185 percent of the federal poverty level. Neb. Rev. Stat. § 68-1724(1)(c) (Reissue 2003).
The second childcare assistance option and the one at issue is the Child Care Subsidy Program. The Child Care Subsidy Program, as implemented by DHHS regulations, provides childcare assistance to low-income families who either have never received ADC benefits or have not received ADC benefits within the last 24 months.
No statute expressly creates the Child Care Subsidy Program. But according to the parties, it is authorized by §§ 68-1202 to 68-1210. Section 68-1202 provides that social services, including childcare, may be provided on behalf of recipients with payments for such social services made directly to vendors. Social services shall include those mandatory and optional services to former, present, or potential social services recipients provided for under the federal Social Security Act, as amended, and described by the State of Nebraska in the approved State Plan for Services.
Section 68-1204 authorizes DHHS to "adopt and promulgate rules and regulations, enter into agreements, and adopt fee schedules with regard to social services described in section 68-1202."
In 1998, DHHS adopted 474 Neb. Admin. Code, ch. 7, § 002.01B2 (1998), which set the income eligibility limit for the Child Care Subsidy Program at 185 percent of the federal poverty level, the same level that § 68-1724(1)(c) sets for transitional childcare. Under both options, the amount of aid an individual family received was set by a sliding scale. The closer a family was to the income eligibility limit, the less aid they received. See, § 68-1724(1)(c); 474 Neb. Admin. Code, ch. 7, § 002.02B (2000).
Here, the dispute found its impetus in 2002 Neb. Laws, L.B. 1309, an appropriat
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