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CLEARY EX REL. CLEARY v. WALDMAN

No. 97-5145.

167 F.3d 801 (1999)

Thomas J. CLEARY, by his next friend Carolyne CLEARY; Carolyne Cleary, individually, on their own behalf and on behalf of all other persons similarly situated, Appellants, v. William WALDMAN, in his official capacity as Commissioner of New Jersey Department of Human Services; Leonard Fishman, in his official capacity as Commissioner of New Jersey Department of Health and Senior Services; Velvet Miller, in her official capacity as Director of Division of Medical Assistance and Health Services; Mark Schiffer, in his official capacity as Director of Passaic County Board of Social Services, New Jersey Association of Health Care Facilities; New Jersey Association of Nonprofit Homes for the Aging, Inc. Intervenors-Defendants in District Court.

United States Court of Appeals, Third Circuit.

Decided February 8, 1999.

Attorney(s) appearing for the Case

Stephen A. Feldman (Argued), Ellen R. Wase, Beth A. Lovitch, Feldman & Feldman, Philadelphia, PA, for Appellant.

Charles A. Miller (Argued), Ann-Kelley Yelverton, Covington & Burling, Washington, DC, Peter Verniero, Attorney General of New Jersey, Meredith G. Van Pelt, Deputy Attorney General, Trenton, NJ, for Appellees Waldman, Fishman, Miller and Schiffer.

Jonathan D. Weiner, Richard J. Kravitz, Maureen E. Kerns, Fox, Rothschild, O'Brien & Frankel LLP, Lawrenceville, NJ, for Appellee New Jersey Association of Health Care Facilities.

Bruce W. Clark, Kara W. Swanson, Dechert, Price & Rhoads, Princeton, NJ, for Appellee New Jersey Association of Non-Profit Homes For the Aging, Inc.

Achilles M. Perry, O'Melveny & Myers LLP, New York, N.Y., for Amicus Curiae Alzheimer Associations, NJ.

Joel M. Hamme, Joseph W. Metro, Reed, Smith, Shaw & McClay, Washington, DC, for Amicus Curiae American Health Care Association.

Before: SCIRICA, ROTH and RENDELL, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

In this appeal we must decide if New Jersey's implementation of a portion of the Medicare Catastrophic Coverage Act ("MCCA" or the "Act") violates Federal law. Specifically, we must determine whether New Jersey may employ an "income-first" approach, rather than a "resource-first" approach, when determining Medicaid eligibility for a spouse who is institutionalized in a long-term care facility.

I. FACTS<...

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