An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1278


Filed: 7 October 2003



     v .                                 Wake County
                                     No. 01 CVS 5243


    Appeal by petitioner from judgment entered 3 July 2002 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 20 August 2003.

    Ott Cone & Redpath, P.A., by Melanie M. Hamilton and Thomas E. Cone, for petitioner appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balantine, Jr., for respondent appellee.

    McCULLOUGH, Judge.

    Petitioner sought judicial review of respondent's final agency decision denying petitioner's claim for Medicaid benefits on the grounds that petitioner failed to meet the state residency requirement. The trial court affirmed the final agency decision. Petitioner appeals.
    Amelia Clark came to the United States in February 2000 to attend her daughter's funeral. She entered the United States on a visitor's visa which was set to expire in August of 2000. Duringher visit, Clark became ill and began dialysis treatment.
    On 2 June 2000, Clark submitted an application for Medicaid to the Wake County Department of Social Services. Wake County denied the application on 9 June 2000, because at the time Clark did not meet the Medicaid requirement that she be a resident of the State of North Carolina. On 13 June 2000, Wake County conducted a local appeal hearing and upheld the decision to deny Medicaid. Clark appealed the denial of her application to the Division of Social Services, North Carolina Department of Health and Human Services. A state appeal hearing was held on 20 October 2000, and a final decision affirming the denial of Clark's Medicaid application was issued on 29 March 2001.
    After her application for Medicaid was originally denied, Clark received notification from the Immigration and Naturalization Service (“INS”) on 4 July 2000 that her application for asylum had been received and was pending as of 27 June 2000. This notice informed her that she could remain in the United States until a decision on her application was made and required her to receive advance parole from INS before leaving the country while her application was pending.
    Under 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. § 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 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). If the contention is that the agency's 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 and capricious, the “whole record test” is used. Id. Petitioner contends that the respondent's decision was legal error. Therefore, we review this issue de novo.
    Petitioner contends: (1) the final agency decision was erroneous because the agency failed to conduct a factual inquiry into whether Clark intended to remain in North Carolina indefinitely as required by federal and state law and regulation, and (2) the trial court erred in affirming the final agency decision because the respondent relied on a rule which was not promulgated in accordance with the Administrative Procedure Act. We disagree.
    The respondent publishes the North Carolina Adult Medicaid Manual (“MA Manual”) to explain the requirements for administering the Medicaid program pursuant to controlling state and federal regulations. The section addressing non-qualified aliens states:
         Non-immigrants may be legally admitted to the U.S., but only for a temporary or specified period of time. These aliens are NOT ELIGIBLE for full Medicaid or emergency medical services because they do not meet the N.C. residency requirement.

MA-2504 III.E.3.
    “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned bya higher court.” In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). This Court has already decided the issues on appeal in this case, and that decision is controlling. In Okale v. N.C. Dep't of Health & Human Servs., 153 N.C. App. 475, 570 S.E.2d 741 (2002), this Court upheld the denial of Medicaid benefits for an unqualified alien who was in this country by virtue of an unexpired visitor's visa at the time of her application. The Court found that an alien who entered the United States on a tourist visa did not have the requisite intent to become a resident of the state. Id. at 480-81, 570 S.E.2d at 744. Although the alien stated her intent to stay in North Carolina permanently, “this intent was called into doubt by her unexpired tourist visa.” Id. at 481, 570 S.E.2d at 745.
    In this case, there is no dispute that at the time Clark applied for Medicaid, she was an unqualified alien who was in the United States on an unexpired visitor's visa. Clark entered the country in February 2000 on a visitor's visa which was set to expire in August of 2000. When she applied for Medicaid on 2 June 2000, Clark was legally required to leave the country before the expiration of her visa. By operation of law, Clark was prohibited on 2 June 2000 from remaining in North Carolina permanently or for an indefinite period of time.
    Petitioner argues that respondent failed to conduct an inquiry into whether she had the intention to remain in North Carolina indefinitely. In fact, respondent did carry out such an inquiry and determined that Clark was in this country on an unexpired visa. Although Clark subsequently stated an intent to remain in North Carolina, her unexpired visa created a reason to doubt that intent.
    Petitioner also contends that the trial court erred in affirming the final agency decision because the respondent relied on a rule which was not promulgated in accordance with the Administrative Procedure Act. However, the Court unambiguously rejected this argument in Okale finding that the provisions at issue were non-binding statements from the agency which define, interpret, and explain the statutes for Medicaid. Id. at 478-79, 570 S.E.2d at 743.
    We have carefully considered petitioner's other arguments and
find them to be without merit. Therefore, the trial court's decision to affirm the agency's denial of petitioner's application for Medicaid is affirmed.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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