Davio v. Nebraska Dept. of Health & Human Servs.

district court shall confirm the award unless a party has moved
for vacation, modification, or correction of the award.
CONCLUSION
The plain language of § 25-2612 requires that a court
confirm an arbitration award upon application of a party. We
therefore reverse the district court’s decision granting State
Farm’s motion to strike and remand the cause for proceedings
consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	263
Cite as 280 Neb. 263
JennifeR davio, individually and on behalf of all otheRs
similaRly situated, appellee and cRoss -appellant,
v. nebRaska depaRtment of health and
human seRvices et al ., appellants
and cRoss -appellees.
786 N.W.2d 655
Filed July 23, 2010. 	No. S-09-985.
1. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision made by the
court below.
2. Jurisdiction: Appeal and Error.a 	jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion independent of the lower
court’s decision.
3. Pleadings: Notice. Under the liberalized rules of notice pleading, a party is
only required to set forth a short and plain statement of the claim showing that
the pleader is entitled to relief. The party is not required to plead legal theo-
ries or cite appropriate statutes so long as the pleading gives fair notice of the
claims asserted.
4. Justiciable Issues. The required showing of a case or controversy is made when
the plaintiff shows the existence of a justiciable controversy and an interest in
the subject matter of the action, i.e., that there is a controversy between persons
whose interests are adverse and that the plaintiff is a person whose rights, status,
or other legal relations are affected by the challenge.
5. Class Actions.a class action cannot be employed to circumvent affirmative
defenses or to revive claims which are no longer viable.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

6. Administrative Law: Time. Litigants who fail to seek an administrative hear-
ing within the time period set by applicable regulations are forever barred from
recovering retroactive monetary relief under thea dministrativep rocedurea ct.
7. Actions: Parties: Time.e ven if a suit is against a private party, where retroactive
relief would be paid from public funds, the suit is in essence an action against
the State.
8. Administrative Law. Neb.r ev. Stat. § 84-911 (2008) provides for the right to
challenge the validity of any rule or regulation directly to the district court with-
out first requesting that the administrative agency pass upon the question.
9. Administrative Law: Parties.a regulation deemed invalid cannot be imple-
mented against anyone, whether or not a party to the action to declare the regula-
tion invalid.
10. Administrative Law: Statutes: Legislature. The Legislature may enact statutes
to set forth the law, and it may authorize an administrative or executive depart-
ment to make rules and regulations to carry out an expressed legislative purpose,
but the limitations of the power granted and the standards by which the granted
powers are to be administered must be clearly and definitely stated in the autho-
rizing act.
11. Administrative Law: Statutes.a n administrative agency may not employ its
rulemaking power to modify, alter, or enlarge provisions of a statute which it is
charged with administering.
12. Statutes: Legislature: Intent. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions are consistent, harmonious, and sensible.
13. Statutes. If the language of a statute is clear, the words of such statute are the end
of any judicial inquiry regarding its meaning.
14. ____. To the extent there is a conflict between two statutes on the same subject,
the specific statute controls over the general statute.
15. Public Assistance: Contracts: Legislature: Medical Assistance. Neb.r ev.
Stat. § 68-1723 (reissue 2009) provides that a family’s cash assistance benefits
shall be removed as a sanction for noncompliance with ane mployment First
self-sufficiency contract; the Legislature has not authorized thed epartment of
health andh uman Services to removem edicaid for failure to comply with
such contract.
appeal from thed istrict Court for Lancaster County: kaRen
b. floweRs, Judge.a ffirmed.
matthew G.d unning, Speciala ssistanta ttorney General,
for appellants.
Jamesa 	. 	Goddard 	andr 	ebecca 	Gould, 	of 	Nebraska
appleseed Center for Law in thep ublic Interest, for appellee.
heavican, c.J., wRight, connolly, stephan, mccoRmack ,
and milleR-leRman, JJ.
264 	280N ebraSka repOrTS

mccoRmack , J.
I. NaTUre OF CaSe
Jenniferd avio failed to comply with a self-sufficiency
“employment First” contract entered into between herself and
thed epartment ofh ealth andh uman Services (dhhS). The
contract was part of her application for assistance through the
aid tod ependent Children (adC) program.a s a result of her
noncompliance,d avio lost both her family’sad C benefits and
herm edicaid coverage pursuant todhh S’ administrative code
(regulation 2-020.09b2f),1 which stated: “If the parent fails
or refuses to participate in [employment First] without good
cause, allad C cash assistance for the entire family must be
closed as well as the medical assistance for the adult(s).”d avio
alleges thatr egulation 2-020.09b2f is an unconstitutional
enlargement of the stated policy by the Legislature that the
sanction for failure to comply withe mployment First shall be
only the removal ofad C benefits.2 We agree thatr egulation
2-020.09b2f is invalid insofar as it authorizes the removal of
medicaid benefits as a sanction for the failure to comply with
employment First.
II.ba CkGrOUNd
davio is an unemployed single mother. She suffers from a
heart condition which necessitates monthly visits to a cardi-
ologist, medication, and the drainage of fluid around the heart.
before receivingad C benefits,d avio signed a self-sufficiency
contract which required her to follow a case plan that included
30 hours of job search activities per week, with set check-in
and checkout sessions at an employment education and training
service.dhh S agreed to provided avio withad C cash assist-
ance, childcare assistance, and a bus pass. She was also found
eligible form edicaid coverage without a separate application,
pursuant to departmental regulations.
davio chose a childcare provider she trusted, but who was
located a substantial distance from her home and the employ-
ment service.a s a result, she was eventually unable to meet
1 468 Neb.a dmin. Code, ch. 2, § 020.09b2f (2006).
2 See Neb.r ev. Stat. § 68-1723(2) (reissue 2009).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	265
Cite as 280 Neb. 263

the job search attendance requirements, anddhh S sanctioned
davio for noncompliance.dhh S removed all her family’sad C
cash assistance andd avio’sm edicaid coverage. Since that time,
davio has not sought medical care for her heart condition.
davio challenged the sanction in an administrative hear-
ing before a hearing officer fordhh S.d avio argued that she
had good cause for her noncompliance and thatr egulation
2-020.09b2f violated separation of powers insofar as it autho-
rized removal ofm edicaid coverage. The hearing officer found
against her on both points.
davio next filed a class action in the district court for
Lancaster County on behalf of herself and all Nebraska parents
who have receivedad C and whosem edicaid has been removed
because of a sanction undere mployment First.d avio’s petition
asked for reversal of the hearing officer’s decision removing her
medicaid, a declaration thatr egulation 2-020.09b2f violates
separation of powers, an injunction from future implementa-
tion of that regulation, and reimbursement to all members of
the class for any medical care paid which would have been
covered bym edicaid but for the enforcement of the regulation.
The action was brought againstdhh S, as well as various indi-
viduals who work fordhh S and are in charge of implement-
inge mployment First andm edicaid benefits. For simplicity,
we will refer only todhh S. In the statement of facts of her
12-page petition, she also stated: “davio no longer contests the
validity of the sanction issued ina ugust 2007.”
dhhS moved to dismiss the petition for lack of subject mat-
ter jurisdiction, and it objected to class certification. The dis-
trict court denied the motion to dismiss. The court granted the
motion for class certification as to the declaratory and injunc-
tive relief, but denied it with respect to the appeal pursuant to
thea dministrativep rocedurea ct (apa) and request for dam-
ages. In support of the certification,d avio presented evidence
that in the first 3 months of 2008, approximately 400ad C
participants had theirm edicaid benefits taken away for failure
to cooperate withe mployment First. No further evidence was
presented regarding the participants’ challenges beforedhh S
or their specific expenses incurred because of the removal
ofm edicaid.
266 	280N ebraSka repOrTS

dhhS filed an answer generally denying the allegations
against it and pleading sovereign immunity. For the sake of
completeness, although noting thatd avio no longer seemed to
contest her noncompliance, the district court found that she had
failed to be actively engaged in the activities outlined in her
self-sufficiency contract and that she did not have good cause
for her lack of cooperation.b ut the court agreed withd avio
that the sanction she received should have been limited to the
loss of her cash assistance. The court declared thatr egulation
2-020.09b2f was invalid insofar as it removedm edicaid bene-
fits for adults who fail to comply with their self-sufficiency
contracts and that an injunction should be granted prohibiting
the implementation of that aspect of the regulation. The parties
stipulated thatd avio had incurred no medical expenses during
the period in question; therefore, no damages were granted.
dhhS appeals, andd avio cross-appeals.
III.a SSIGNmeNTS OFerr Or
dhhS assigns, consolidated and restated, that the district
court erred in (1) finding that it had subject matter jurisdic-
tion, (2) finding that class action status should be granted to
davio’s challenge of the validity ofr egulation 2-020.09b2f,
and (3) finding thatr egulation 2-020.09b2f is invalid and
unconstitutional.
davio’s cross-appeal asserts that the district court erred in
failing to permit the class members from seeking all the reme-
dies available under Neb.r ev. Stat. § 84-917 (reissue 2008).
Iv. STaNdard OFrev IeW
[1] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below.3
[2]a 	jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
3 Kosmicki v. State, 264 Neb. 887, 652 N.W.2d 883 (2002).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	267
Cite as 280 Neb. 263

law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.4
v.a NaLYSIS
1. subJect matteR JuRisdiction and
class ceRtification
dhhS presents several arguments pertaining to the jurisdic-
tion of the lower court and the appropriateness of the class
action.a lthough sovereign immunity is waived by theapa ,
dhhS argues that any issues relevant to an appeal under the
apa became moot whend avio stated in her petition that
she “no longer contests the validity of the sanction issued in
august 2007.”dhh S also asserts that the district court erred
in certifying the class, because there was no evidence that the
members of the class had exhausted their administrative reme-
dies.d avio, for her part, appeals the district court’s decision to
limit the class action to declaratory and injunctive relief.
(a) Case or Controversy
dhhS’ principal focus is on the single sentence from the
statement of facts ind avio’s petition quoted above.dhh S
argues thatd avio conceded she no longer had a present case or
controversy and that she simply sought an abstract declaration
of the validity ofr egulation 2-020.09b2f, which would not
directly affect her interests. This argument completely ignores
davio’s request for relief and the theory upon which the case
was tried, and it lacks any merit.
[3] Under the liberalized rules of notice pleading,5 a party
is only required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.6 The party is
not required to plead legal theories or cite appropriate statutes
so long as the pleading gives fair notice of the claims asserted.7
The rationale for this liberal notice pleading standard is that
4 Jacob North Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596
(2010).
5 See Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
6 Id.
7 See id.
268 	280N ebraSka repOrTS

when a party has a valid claim, he or she should recover on it
regardless of a failure to perceive the true basis of the claim
at the pleading stage, provided always that a late shift in the
thrust of the case will not prejudice the other party in maintain-
ing a defense upon the merits.8
davio’s petition clearly asked not only that the court declare
regulation 2-020.09b2f unconstitutional, but also that it reverse
the hearing officer’s order removing herm edicaid benefits.
read in context, we agree withd avio that her statement that
she “no longer contests the validity of the sanction issued in
august 2007” referred to the determination by the hearing
officer that she did not have cause for her failure to perform
here mployment First contract.a lthoughd avio had originally
challenged, in the proceedings before the hearing officer, the
decision to sanction her at all, nowhere in her petition before
the district court does she contest the fact of her noncompli-
ance and the consequential removal of her family’sad C bene-
fits.dhh S’ attempt to read the sentence as a concession that
davio no longer contests the removal of herm edicaid benefits
makes the petition nonsensical.m ore important, it places that
sentence above the issues actually presented and argued by
the parties.
[4] The required showing of a case or controversy is made
when the plaintiff shows the existence of a justiciable contro-
versy and an interest in the subject matter of the action, i.e.,
that there is a controversy between persons whose interests are
adverse and that the plaintiff is a person whose rights, status, or
other legal relations are affected by the challenge.9d avio has
made such a showing.
(b) Class Certification
both parties dispute the certification of the class.d avio
argues that the court erred in limiting the class action to declar-
atory and injunctive relief.dhh S argues, in contrast, that
the court should not have allowed class certification at all. In
8 Id.
9 See Professional Firefighters of Omaha v. City of Omaha, 243 Neb. 166,
498 N.W.2d 325 (1993).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	269
Cite as 280 Neb. 263

determining whether a class action is properly brought, broad
discretion is vested in the trial court.10
[5]a ddressingd avio’s cross-claim first, we conclude that
the district court did not abuse its discretion in refusing to cer-
tify the class for any claims involving monetary relief. We note
thatdhh S does not argue that there can never be a class action
under any provision of theapa .r ather, it argues that, in this
case, there can be no showing that most of the alleged class
members had first challenged the removal of theirm edicaid
benefits before a hearing officer in a timely manner—and that
they had preserved that challenge by appealing to an appellate
court.dhh S notes that the purported class in this case includes
all participants who have had theirm edicaid benefits removed
pursuant to a regulation that is over 10 years old. We agree
withdhh S that the absence of such a showing of exhaus-
tion of administrative remedies was a proper consideration by
the district court in denying certification of the class.a 	class
action cannot be employed to circumvent affirmative defenses
or to revive claims which are no longer viable.11
[6] In Golden Five v. Department of Soc. Serv.,12 we explained
that litigants who fail to seek an administrative hearing within
the time period set by applicable regulations are forever barred
from recovering retroactive monetary relief under theapa .
In that case, eight medical care facilities that participated in
am edicaid reimbursement program contested a statutory pro-
vision that mandated a 3.75-percent cap on any increase in
future payments to the facilities regardless of the costs actually
incurred.13r ather than challenge the agency’s action before a
10 See, Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 745 N.W.2d
291 (2008); Riha Farms, Inc. v. County of Sarpy, 212 Neb. 385, 322
N.W.2d 797 (1982).
11 See, Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th
Cir. 1998); Escott v. Barchris Construction Corporation, 340 F.2d 731 (2d
Cir. 1965); Clayborne v. Omaha Public Power Dist., 211 F.r.d. 573 (d.
Neb. 2002); Barnes v. City of Atlanta, 281 Ga. 256, 637 S.e.2d 4 (2006).
12 Golden Five v. Department of Soc. Serv., 229 Neb. 148, 425 N.W.2d 865
(1988).
13 Id.
270 	280N ebraSka repOrTS

hearing officer, the facilities first brought an action in federal
court against the director of thed epartment of Social Services,
asking for a declaration that the 3.75-percent cap provision was
in violation of a federal provision stating that reimbursement
must meet the costs incurred by efficiently and economically
operated facilities.14 Thee ighth Circuit Court ofa ppeals held
in favor of the facilities and declared the regulation to be in
violation of the Supremacy Clause.15
afterward, the facilities filed under theapa 	for retroactive
monetary relief through administrative appeal hearings. We
affirmed the hearing officer’s decision to deny retroactive relief
because the facilities had failed to timely contest the case
before the agency. We explained that the implementation of
the statute was not an ongoing act and was thus governed by a
regulation stating that the facility may request an appeal within
90 days of the decision or inaction.16
We stated that although it was true that the hearing officer
would not have had the power to declare the statute unconstitu-
tional, “[i]f appellants wanted something more than an injunc-
tion to be applied in the future, they were required to exercise
their rights timely under state administrative procedures.”17
The constitutionality of the statute could, after all, have been
decided on appeal from the hearing officer’s decision.18
[7]b ut the facilities instead chose to contest the constitu-
tionality of the statute in federal court.19a nd, we explained,
sovereign immunity precluded federal courts from granting the
facilities the monetary relief they sought.20e ven if it was a suit
against a private party, such retroactive relief would be paid
from public funds and was, therefore, in essence, an action
14 Id.
15 Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291 (8th Cir. 1985).
16 Golden Five v. Department of Soc. Serv., supra note 12.
17 Id. at 155-56, 425 N.W.2d at 870.
18 See Golden Five v. Department of Soc. Serv., supra note 12.
19 Id.
20 Id.
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	271
Cite as 280 Neb. 263

against the State.21 We concluded that the facilities’ decision to
bring action in federal court “achieved the result of protection
from any future application of the 3.75-percent limitation by
thed epartment, but it did not preserve a remedy which can
only be awarded by a state agency or court, insofar as retro-
active relief is sought.”22
While Golden Five was not a class action, it illustrates the
necessity of filing a contested case before a hearing officer
in order to preserve the right to retroactive monetary relief.
The case of Thiboutot v. State23 presents a class action very
similar to the case at bar and further illustrates this point. The
original plaintiffs in Thiboutot had fully pursued their admin-
istrative remedies to challenge a regulation governinga id to
Families withd ependent Children benefits. They sought to
declare the regulation invalid and to obtain retroactive mone-
tary relief.
however, while their appeal was pending before the district
court, the plaintiffs amended their complaint to allege a class
action seeking both monetary and injunctive relief for other
beneficiaries ofa id to Families withd ependent Children. The
district court ultimately decided to grant the injunction against
them ained epartment ofh uman Services from enforcing the
regulation, which the court determined to be invalid.b ut the
court refused to consider claims for retroactive monetary bene-
fits on behalf of the class,24 and the plaintiffs appealed. The
court of appeals held that the district court’s limitation was
proper because the waiver of sovereign immunity for admin-
istrative appeals referred only to individuals who have sought
administrative review of an agency hearing.25
Similarly, here, the waiver of sovereign immunity for an
action seeking monetary relief from a state agency is found
21 See id.
22 Id. at 156, 425 N.W.2d at 870. See, also, Edelman v. Jordan, 415 U.S. 651,
94 S. Ct. 1347, 39 L.e d. 2d 662 (1974).
23 Thiboutot v. State, 405a .2d 230 (me. 1979).
24 Id.
25 Id.
272 	280N ebraSka repOrTS

in Neb.r ev. Stat. §§ 84-913 to 84-917 (reissue 2008). Those
provisions first require a hearing before the administrative
agency contesting its action. We are unaware of any other
means of redress applicable tod avio’s claims which would
waive sovereign immunity for an action for retroactive mone-
tary relief.b ecause it appears that a large number of the
members of the purported class did not first challenge before
a hearing officer the removal of theirm edicaid benefits, the
district court’s limitation of the class certification in this case
was proper.
[8,9]a s fordhh S’ argument that the court erred in certify-
ing the class even for the purpose of declaratory and injunctive
relief, we find no harm and no reason to reverse the district
court’s decision. We note first that Neb.r ev. Stat. § 84-911
(reissue 2008) provides for the right to challenge the validity
of any rule or regulation directly to the district court without
first requesting that the administrative agency pass upon the
question.b ut regardless of whether this provision envisions
class actions as such, the limited certification of the class in
this case was harmless error. It is axiomatic that a regula-
tion deemed invalid cannot be implemented against anyone,
whether or not a party to this suit. In other words, even if the
court had denied class certification, the declaratory and injunc-
tive relief requested byd avio would have inured to the benefit
of the purported class.26 We therefore find no merit todhh S’
assignments of error pertaining to the district court’s certifica-
tion of the class, which was strictly for purposes of declaratory
and injunctive relief.
2. is R emoval of medicaid
benefits authoRized?
[10,11] We turn now to the underlying merits of the dis-
pute.b efore setting forth the labyrinth of pertinent federal
and state welfare laws, we briefly discuss the relationship of
the Legislature todhh S and the principles of separation of
26 See, United Farm. of Fla. H. Proj., Inc. v. City of Delray Beach, 493 F.2d
799 (5th Cir. 1974); 7a Charlesa lan Wright et al., Federalp ractice and
procedure § 1771 (2005).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	273
Cite as 280 Neb. 263

powers upon whichd avio relies. Neb. Const. art II, § 1, states
that “no person or collection of persons being one of these
departments shall exercise any power properly belonging to
either of the others except as expressly directed or permitted.”
This provision prohibits the Legislature from improperly dele-
gating its own duties and prerogatives.27 The Legislature may
enact statutes to set forth the law,28 and it may authorize an
administrative or executive department to make rules and regu-
lations to carry out an expressed legislative purpose, but the
limitations of the power granted and the standards by which
the granted powers are to be administered must be clearly and
definitely stated in the authorizing act.29 Such standards may
not rest on indefinite, obscure, or vague generalities, or upon
extrinsic evidence not readily available.30a nd an administra-
tive agency may not employ its rulemaking power to modify,
alter, or enlarge provisions of a statute which it is charged
with administering.31
[12-14] We also set forth the standards of statutory interpre-
tation which are relevant to this case and which guide our analy-
sis. Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.32 If the language of a statute is clear,
however, the words of such statute are the end of any judicial
inquiry regarding its meaning.33 To the extent there is a conflict
27 See Clemens v. Harvey, 247 Neb. 77, 525 N.W.2d 185 (1994).
28 Id.
29 See Boll v. Department of Revenue, 247 Neb. 473, 528 N.W.2d 300
(1995).
30 Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151
(1996).
31 Clemens v. Harvey, supra note 27.
32 See Kosmicki v. State, supra note 3. See, also, Placek v. Edstrom, 148 Neb.
79, 26 N.W.2d 489 (1947).
33 State ex rel. Lanman v. Board of Cty. Commissioners, 277 Neb. 492, 763
N.W.2d 392 (2009).
274 	280N ebraSka repOrTS

between two statutes on the same subject, the specific statute
controls over the general statute.34
We turn now to the statutes.b roadly, two comprehensive
acts, them edicala ssistancea ct35 and the Welfarer eform
act,36 govern this case.
(a)m edicala ssistancea ct
medicaid is provided for in them edicala ssistancea ct. The
medicala ssistancea ct was enacted as a cooperative federal-
state program to provide health care to needy individuals.37
dhhS is assigned the responsibility of administering this
program.38 It was originally enacted in 1965, but it has been
continuously revised, most extensively in 2006.39 The current
public policy statement for them edicala ssistancea ct, con-
tained in § 68-905, states:
It is the public policy of the State of Nebraska to pro-
vide a program of medical assistance on behalf of eligible
low-income Nebraska residents that (1) assists eligible
recipients to access necessary and appropriate health care
and related services, (2) emphasizes prevention, early
intervention, and the provision of health care and related
services in the least restrictive environment consistent
with the health care and related needs of the recipients
of such services, (3) emphasizes personal independence,
self-sufficiency, and freedom of choice, (4) emphasizes
personal responsibility and accountability for the payment
of health care and related expenses and the appropriate
utilization of health care and related services, (5) coop-
erates with public and private sector entities to promote
the public health, (6) cooperates with providers, public
34 Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009).
35 Neb.r ev. Stat. §§ 68-901 to 68-967 (reissue 2009).
36 Neb.r ev. Stat. §§ 68-1708 to 68-1734 (reissue 2009).
37 Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740
N.W.2d 27 (2007).
38 §§ 68-907(2) and 68-908(1).
39 See 2006 Neb. Laws, L.b. 1248.
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	275
Cite as 280 Neb. 263

and private employers, and private sector insurers in
providing access to health care and related services and
encouraging and supporting the development and utiliza-
tion of alternatives to publicly funded medical assistance
for such services, (7) is appropriately managed and fis-
cally sustainable, and (8) qualifies for federal matching
funds under federal law.
eligibility form edicaid is defined in § 68-915, which sets forth
specific disability, income, or dependency prerequisites.
dhhS is authorized in § 68-912 to place “[l]imits on goods
and services”:
(1) The department may establish (a) premiums, copay-
ments, and deductibles for goods and services provided
under the medical assistance program, (b) limits on the
amount, duration, and scope of goods and services that
recipients may receive under the medical assistance pro-
gram, and (c) requirements for recipients of medical
assistance as a necessary condition for the continued
receipt of such assistance, including, but not limited to,
active participation in care coordination and appropriate
disease management programs and activities.
(2) In establishing and limiting coverage for services
under the medical assistance program, the department
shall consider (a) the effect of such coverage and limi-
tations on recipients of medical assistance and medical
assistance expenditures, (b) the public policy in section
68-905, (c) the experience and outcomes of other states,
(d) the nature and scope of benchmark or benchmark-
equivalent health insurance coverage as recognized under
federal law, and (e) other relevant factors as determined
by the department.
prior to the adoption and promulgation of proposed rules and
regulations under § 68-912 or relating to the implementa-
tion ofm edicaid state plan amendments or waivers,dhh S
is required to report to the Governor, the Legislature, and the
medicaidr eform Council with a summary of the proposed
rules and regulations and their projected impact.40 Legislative
40 See § 68-909(2).
276 	280N ebraSka repOrTS

consideration includes, but is not limited to, the introduction of
a legislative bill, a legislative resolution, or an amendment to
pending legislation relating to such rules and regulations.41
Section 68-916 of them edicala ssistancea ct mandates that
the recipient assign todhh S any medical care support avail-
able under court order or under rights to pursue or receive pay-
ments from any third party liable for the medical care. Section
68-917 is entitled “applicant or recipient; failure to cooperate;
effect.” It is limited on its face to the failure to cooperate in
obtaining reimbursement for medical care or services as man-
dated in § 68-916.
(b) Welfarer eforma ct
The primary benefit described by the Welfarer eforma ct
is up to 60 months of cash assistance.42 This benefit is derived
from Neb.r ev. Stat. § 43-512 (reissue 2008), which sets
forthad C benefits and which is incorporated into the Welfare
reforma ct. In addition, the Welfarer eforma ct provides
qualifying participants assistance with transportation expenses,
participation and work expense, parenting education, family
planning, budgeting, and relocation.43 When no longer eligible
to receive cash assistance, the Welfarer eforma ct provides
for transitional supportive services for those who still require
it. Such services include health care coverage available on a
sliding-scale basis to individuals and families with incomes up
to 185 percent of the federal poverty level if other health care
coverage is not available.44
The primary innovation of the Welfarer eforma ct is the
self-sufficiencye mployment First contract. In order to receive
the benefits of thea ct, the recipient must first undergo
a comprehensive assessment and develop ane mployment
First contract with a case manager that provides for a means
to achieve specified self-sufficiency goals.45 The contract
41 § 68-912(4).
42 See § 68-1724.
43 § 68-1722.
44 §§ 68-1709 to 68-1724.
45 § 68-1718.
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	277
Cite as 280 Neb. 263

is to have a timeline of benchmarks to facilitate “forward
momentum.”46
according to the Welfarer eforma ct, the self-sufficiency
evaluation procedure is triggered when an individual or fam-
ily applies forad C assistance pursuant to § 43-512.47 It
is not triggered by am edicaid application under § 68-915.
however,dhh S has passed regulations makingad C bene-
ficiaries automatically eligible form edicaid without a separate
§ 68-915 application.48
We have explained that the intent of the Welfarer eform
act, at least in part, was to reform the welfare system to
remove disincentives to employment, promote economic self-
sufficiency, and provide individuals and families with the sup-
port needed to move from public assistance to economic self-
sufficiency.49 It was intended to be implemented in a manner
consistent with federal law50 and to change public assistance
from 	entitlements 	to 	temporary, 	“contract-based” 	support,
accomplished through individualized assessments of the per-
sonal and economic resources of the applicant and the use of
individualized self-sufficiency contracts.51b ut we have never
addressed whether such self-sufficiency, contract-based support
applies tom edicaid.
Section 68-1723(1) states that “[c]ash assistance shall be
provided only while recipients are actively engaged in the spe-
cific activities outlined in the self-sufficiency contract . . . .”
Section 68-1723(2) further specifies that in recipient families
with at least one adult with the capacity to work, “[i]f any such
adult fails to cooperate in carrying out the terms of the con-
tract, the family shall be ineligible for cash assistance.”
46 § 68-1719.
47 § 68-1718(1).
48 468 Neb.a dmin. Code, ch. 4, § 001.01a (2002).
49 § 68-1709; Mason v. State, 267 Neb. 44, 672 N.W.2d 28 (2003); Kosmicki
v. State, supra note 3.
50 § 68-1710.
51 See, § 68-1709; Mason v. State, supra note 49; Kosmicki v. State, supra
note 3.
278 	280N ebraSka repOrTS

Section 43-512(5)(a), which has maintained the relevant
language since its amendment in 1990, grantsdhh S regula-
tory power:
For the purpose of preventing dependency, the department
shall adopt and promulgate rules and regulations provid-
ing for services to former and potential recipients of aid
to dependent children and medical assistance benefits.
The department shall adopt and promulgate rules and regu-
lations establishing programs and cooperating with pro-
grams of work incentive, work experience, job training,
and education. The provisions of this section with regard
to determination of need, amount of payment, maximum
payment, and method of payment shall not be applicable
to families or children included in such programs.
The Welfarer eforma ct grantsdhh S the power and duty to
“adopt and promulgate rules and regulations to carry out the
Welfarer eforma ct.”52
In the preamble, the Welfarer eforma ct sets forth 20 “poli-
cies” thatdhh S “shall implement.”53 These policies range from
the specific requirement that it exclude, for instance, the cash
value of life insurance policies when calculating resources,
to the general policy of encouraging minor parents to live
with their parents. In this appeal,dhh S relies particularly
on policy (d) of § 68-1713(1), which was added in 1995 and
states in full: “make Sanctionsm ore Stringent toe mphasize
participant Obligations.”
Georgek 	ahlandt, 	the 	administrator 	of 	the 	“economic
assistance Unit” withdhh S, testified that this language was
related to welfare reform committee recommendations in 1993.
kahlandt testified that prior to that time, if an individual
refused to participate ine mployment First, the only sanction
was the removal of that individual’s monthly $71ad C cash
assistance benefit, and even that was tempered by an increase
in the family’s food stamp allowance. It wask ahlandt’s opin-
ion that the language in policy (d) contemplated not only the
52 § 68-1715.
53 § 68-1713(1).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	279
Cite as 280 Neb. 263

increase in the removal of cash assistance from the individual
to the entire family, an amount in excess of $400 for a family
of four, but also the removal ofm edicaid benefits.p rior to the
passage of policy (d),dhh S did not removem edicaid benefits
for the failure to comply with self-sufficiency goals.
kahlandt 	explained 	that 	the 	committee 	was 	formed 	in
anticipation of the federalp ersonalr esponsibility and Work
Opportunity andr econciliationa ct, which was passed in
1996. That legislation created the Temporarya ssistance for
Needy Families program, which replaced the welfare pro-
grams known asa id to Families withd ependent Children,
the Job Opportunities andb asic Skills Training program, and
thee mergencya ssistance program. The law ended federal
entitlement to assistance and instead created the Temporary
assistance for Needy Families program as a block grant that
provides states, territories, and tribes federal funds each year.
Under 42 U.S.C. § 1936u-1(3)(a) (2006) of the Social Security
act, participating states have the option, although they are not
required, to terminate medical assistance for failure to meet the
work requirement tied to cash assistance.
(c) Noa uthorization tor emovem edicaid
as is apparent from the above, there is nothing in any
of the relevant statutes which expressly statesdhh S may
removem edicaid benefits as a sanction for noncompliance
withe mployment First.dhh S relies instead on the fact
that the law does not specifically prohibit the removal of
medicaid and that the Legislature has expressed a public
policy of welfare as being temporary, contract-based support.
dhhS also attempts to patch together the various provisions
granting regulatory authority, the “[l]imits on goods and serv-
ices” provision of § 68-912, and, especially, the statement
in § 68-1713(1)(d) that it “make Sanctionsm ore Stringent
toe mphasizep articipant Obligations” to make an argument
for a clear mandate by the Legislature. We do not find such
a mandate.
as already discussed, it is the Legislature’s stated public
policy, at least in the Welfarer eforma ct, that able-bodied
recipients become self-sufficient as quickly as possible so
280 	280N ebraSka repOrTS

that their welfare benefits are merely temporary.54 On the
other hand, the acts also have beneficent purposes that go
beyond simply pushing recipients toward the ultimate goal of
self-sufficiency. We have said that in the absence of clearly
expressed intent to the contrary, we must construe these laws
so as to effectuate their beneficent purposes.55
It is particularly the policy of them edicala ssistancea ct
to provide medical care to persons in need.56a nd, unlike the
Welfarer eforma ct, which focuses onad C and other transi-
tional benefits, them edicala ssistancea ct makes no reference
toe mployment First contracts. The lengthy set of policies
set forth by them edicala ssistancea ct does not indicate that
medicaid benefits should be tied to quasi-contractual obliga-
tions of “forward momentum.” Section 68-912 of them edical
assistancea ct specifically sets forth the limitsdhh S can
place on benefits, and yet it focuses solely on the patient
participation 	and 	responsibility 	concerns 	common 	to 	any
health provider, such as copayments and limitations on what
services are covered. It fails to make any reference to self-
sufficiency contracts.
Section 43-512(5)(a) comes slightly closer inasmuch as it
refers to both “medical assistance benefits” and “preventing
dependency.”h owever, it does so in the context of “providing
for services” for the participant. It, again, makes absolutely
no reference to sanctions. In fact, it seems from reading
§ 43-512 as a whole that the rules and regulations referred to
in that section were meant to pertain to benefits supplemental
to the basic welfare provisions—for which “need, amount
of payment, maximum payment, and method of payment”
are applicable.
Finally, we find, contrary todhh S’ assertion, that the pro-
vision thatdhh S shall “make Sanctionsm ore Stringent to
emphasizep articipant Obligations”57 provides no particular
54 See, e.g., Kosmicki v. State, supra note 3.
55 See Mason v. State, supra note 49.
56 See § 68-905.
57 § 68-1713(1)(d).
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	281
Cite as 280 Neb. 263

directive. It certainly does not and, indeed, cannot confer upon
dhhS unlimited discretion in determining the measure and the
means of sanctions for noncompliance. Instead, this provision
must be read in conjunction with the limitations and standards
expressly provided by the Legislature. In effect, these provi-
sions define what rules and regulationsdhh S may pass to
“make Sanctionsm ore Stringent.”
[15] What is most pertinent to this case is the fact that in
§ 68-1723 of the Welfarer eforma ct, the Legislature has
set forth specific provisions concerning the prescribed sanc-
tion for noncompliance withe mployment First self-sufficiency
contracts. That provision specifies only that the family’s “cash
assistance” shall be removed as a consequence of noncompli-
ance. If the Legislature had intendedm edicaid to be removed
as a sanction for noncompliance, there was no reason not to
have stated so in § 68-1723. We lack authority to add to this
provision language that clearly is not there.58
dhhS asserts that if we do not construe “make Sanctions
more Stringent” to authorize the removal ofm edicaid, then that
provision is rendered meaningless.dhh S rests this assertion
on the fact that policy (d) of § 68-1713(1) was finally adopted
on June 13, 1995, while the sanction provision of § 68-1723
had already been adopted ona pril 20, 1994.59 We find this
argument unconvincing. The language of policy (d) is general
and could mean nothing more than the stricter implementation
of the sanctions outlined in § 68-1723. Or, asdhh S suggests,
the language could have been contemplated in conjunction with
other language that ultimately did not make it into the Welfare
reforma ct.a sd avio suggests, it could refer to the contem-
plated increase to removing the entire family’sad C benefits,
even though the latter provision was ultimately adopted first. In
other words, the reason and the timing of policy (d) are largely
a matter of speculation. Such speculation is unnecessary when
the statutes clearly define the appropriate sanctions for speci-
fied behavior.
58 See State v. Havorka, 218 Neb. 367, 355 N.W.2d 343 (1984).
59 See, 1995 Neb. Laws, L.b. 455, § 10; 1994 Neb. Laws, L.b. 1224, § 23.
282 	280N ebraSka repOrTS

Nor are we convinced to stray from the clear language of the
acts bydhh S’ argument of legislative acquiescence. Where
a statute has long been construed by administrative officials
charged with its execution, and where the Legislature has sev-
eral times been in session without amending or changing such
statute—despite its full knowledge of the interpretation—we
will not disregard that interpretation unless it is clearly erro-
neous.60b ut this seldom-used rule of legislative acquiescence
to administrative interpretations is but a complement to the
traditional rules of statutory construction already set forth. In
McQuiston v. Griffith,61 for instance, the plaintiff’s proposed
interpretation of a statute was already a stretch, and the fact
that the Legislature had not acted to “correct” it was simply
further evidence that our interpretation was correct.
We will not ignore the meaning of the statutes relevant to
this case simply becausedhh S has passed a regulation and
the Legislature has since failed to amend its law to correct
dhhS’ error. In other words,dhh S’ interpretation was clearly
erroneous.m oreover, althoughdhh S points to provisions
in them edicala ssistancea ct which mandate that reports be
sent to the Governor and the Legislature, there is no evidence
in this case that the Legislature actually considered such a
report or was specifically aware ofr egulation 2-020.09b2f and
its implementation.
vI. CONCLUSION
It is both consistent and logical that the Legislature chose
to remove as a sanction only those benefits gained specifically
as a result of entering into the self-sufficiency contract, and
to not further penalize the recipient by taking awaym edicaid.
more to the point, we, likedhh S, are without the power
to enlarge upon the expressed legislative purpose.62 Finding
specific provisions covering noncompliance, which do not
authorize the removal ofm edicaid, and finding no provision
60 See McQuiston v. Griffith, 128 Neb. 260, 258 N.W. 553 (1935).
61 Id.
62 See, e.g., Boll v. Department of Revenue, supra note 29; Clemens v.
Harvey, supra note 27.
davIO v.N ebraSka depT.OF heaLTh & hUmaNS ervS. 	283
Cite as 280 Neb. 263

elsewhere that allows this as a sanction, we find the limitations
of the Legislature’s delegation clear. Therefore, in enacting
regulation 2-020.09b2f,dhh S unlawfully enlarged upon the
authorizing statutes and violated the principles of separation of
powers. The district court was correct in declaringr egulation
2-020.09b2f invalid.
affiRmed.
geRRaRd, J., not participating.
in Re inteRest of gabRiela h.,
a child undeR 18 yeaRs of age .
state of nebRaska , appellee , v. nebRaska depaRtment
of health and human seRvices , appellant.
785 N.W.2d 843
Filed July 23, 2010. 	No. S-09-1261.
1. Juvenile Courts: Appeal and Error. an appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Juvenile Courts: Jurisdiction: Statutes. as a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
4. Juvenile Courts: Minors. The Nebraska Juvenile Code must be liberally con-
strued to accomplish its purpose of serving the best interests of the juveniles who
fall within it.
5. Juvenile Courts: Child Custody. Juvenile courts are accorded broad discre-
tion in their determination of the placement of children adjudicated abused or
neglected and to serve the best interests of the children involved.
6. Statutes. Statutes relating to the same subject matter will be construed so as to
maintain a sensible and consistent scheme, giving effect to every provision.
7. Juvenile Courts: Parental Rights: Adoption. Where a juvenile has been adju-
dicated pursuant to Neb.r ev. Stat. § 43-247(3)(a) (reissue 2008) and a perma-
nency objective of adoption has been established, a juvenile court has authority
under the Nebraska Juvenile Code to order the Nebraskad epartment ofh ealth
andh uman Services to accept a tendered relinquishment of parental rights.
appeal from the Separate Juvenile Court ofd ouglas County:
douglas f. Johnson, Judge.a ffirmed.
284 	280N ebraSka repOrTS