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J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 306 Neb. 20

J.S, appellant, v. Nebraska Department 

of Health and Human Services 

et al., appellees.

___ N.W.2d ___

Filed June 5, 2020. No. S-18-1149.

1. Public Assistance: Words and Phrases. For the purposes of state or 

local public benefits eligibility under Neb. Rev. Stat. § 4-108 (Reissue 

2012), “lawfully present” means the alien classifications under 8 U.S.C. 

§ 1621(a)(1), (2), and (3) (2012).

2. Public Assistance: Legislature. In order to affirmatively provide a state 

public benefit to aliens not lawfully present in the United States, as 

authorized by 8 U.S.C. § 1621(d) (2012), the Legislature must make a 

positive or express statement extending eligibility by reference to immigration status.

3. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

4. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, 

the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor 

unreasonable.

5. Administrative Law: Judgments. Whether an agency decision conforms to the law is by definition a question of law.

6. Administrative Law: Statutes: Appeal and Error. The meaning and 

interpretation of statutes and regulations are questions of law for which 

an appellate court has an obligation to reach an independent conclusion 

irrespective of the decision made by the court below.

7. Medical Assistance: Federal Acts: States. The Medicaid program 

provides joint federal and state funding of medical care for individuals 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/05/2020 08:08 AM CDT
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whose resources are insufficient to meet the cost of necessary medical care.

8. ____: ____: ____. A state is not obligated to participate in the Medicaid 

program; however, once a state has voluntarily elected to participate, it 

must comply with standards and requirements imposed by federal statutes and regulations.

9. Administrative Law: Statutes. For purposes of construction, a rule 

or regulation of an administrative agency is generally treated like a 

statute.

10. ____: ____. Properly adopted and filed regulations have the effect of 

statutory law.

11. Administrative Law. Absent a statutory or regulatory indication to the 

contrary, language contained in a rule or regulation is to be given its 

plain and ordinary meaning.

12. Federal Acts: Words and Phrases. In interpreting federal statutes, the 

word “may” customarily connotes discretion. That connotation is particularly apt where “may” is used in contraposition to the word “shall.”

13. Statutes: Words and Phrases. The word “may” when used in a statute 

will be given its ordinary, permissive, and discretionary meaning unless 

it would manifestly defeat the statutory objective.

14. Medical Assistance: Federal Acts: States. Because Nebraska did not 

elect to extend coverage under 42 U.S.C. § 1396b(v)(4)(A) (2018) 

beyond age 18, neither the Children’s Health Insurance Program nor the 

former foster care provisions of the Patient Protection and Affordable 

Care Act provide coverage where a noncitizen applicant’s immigration 

status is not qualified.

15. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

16. Statutes: Words and Phrases. It is not for the courts to supply missing 

words or sentences to a statute to supply that which is not there.

17. Statutes: Legislature: Presumptions. In enacting a statute, the 

Legislature must be presumed to have knowledge of all previous legislation upon the subject.

18. ____: ____: ____. The Legislature is presumed to know the general 

condition surrounding the subject matter of the legislative enactment, 

and it is presumed to know and contemplate the legal effect that accompanies the language it employs to make effective the legislation.

19. Constitutional Law. Nebraska’s separation of powers clause prohibits 

the three governmental branches from exercising the duties and prerogatives of another branch.
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20. ____. The separation of powers clause prevents a branch from delegating its own duties or prerogatives except as the constitution directs 

or permits.

21. Constitutional Law: Legislature: Courts: Appeal and Error. The 

Nebraska Supreme Court does not sit as a superlegislature to review 

the wisdom of legislative acts; that restraint reflects the reluctance 

of the judiciary to set policy in areas constitutionally reserved to the 

Legislature’s plenary power.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.

Allison Derr, Robert McEwen, and Sarah Helvey, of 

Nebraska Appleseed Center for Law in the Public Interest, for 

appellant.

Douglas J. Peterson, Attorney General, and Ryan C. Gilbride 

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In E.M. v. Nebraska Dept. of Health & Human Servs. 

(E.M.), 1 we held that legislation 2 creating the bridge to independence program (B2I) 3 did not “affirmatively provide[]” 4

eligibility to noncitizen applicants who were not “lawfully 

present.” 5 In this Administrative Procedure Act 6 appeal, J.S., 

1 E.M. v. Nebraska Dept. of Health & Human Servs., ante p. ___, ___ 

N.W.2d ___ (2020).

2 See Neb. Rev. Stat. §§ 43-4501 to 43-4514 (Reissue 2016, Cum. Supp. 

2018 & Supp. 2019) (Young Adult Bridge to Independence Act).

3 See § 43-4503(1).

4 See 8 U.S.C. § 1621(d) (2012).

5 See id.

6 See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue 

2014 & Cum. Supp. 2018).
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a noncitizen who was admitted into B2I, challenges the district court’s judgment affirming a state agency’s denial of 

Medicaid 7 eligibility after she reached age 19. Essentially, we 

must decide whether the statutes or regulations she cites authorized her participation despite her immigration status and age. 

Because they did not, we affirm the judgment.

II. BACKGROUND

1. B2I

In E.M.,

 8 we briefly introduced B2I, Nebraska’s extended 

foster care program, which was created by the Young Adult 

Bridge to Independence Act (YABI). 9 In this appeal, we rely 

upon that description.

2. PRWORA and L.B. 403

Similarly, in E.M.,

 10 we extensively discussed the Personal 

Responsibility and Work Opportunity Reconciliation Act of 

1996 (PRWORA) 11 and its Nebraska counterpart. 12 As we 

explained there, PRWORA declared certain individuals to be 

ineligible for any state public benefit. 13 Like PRWORA’s prohibition on federal public benefits, 14 its proscription on state 

public benefits applies “[n]otwithstanding any other provision 

of law” 15 but with specified exceptions. 16

[1,2] There, we focused on the exception created by 

§ 1621(d), which authorized a State to make an “alien who is 

7 See Neb. Rev. Stat. § 68-903 (Reissue 2018) (medical assistance program 

“shall also be known as [M]edicaid”).

8 E.M., supra note 1.

9 See §§ 43-4501 to 43-4514.

10 E.M., supra note 1.

11 Pub. L. No. 104-193, § 1, 110 Stat. 2105.

12 See Neb. Rev. Stat. §§ 4-108 to 4-113 (Reissue 2012 & Cum. Supp. 2018).

13 See § 1621(a).

14 See 8 U.S.C. § 1611 (2012).

15 § 1621(a).

16 See § 1621(b) and (d).
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not lawfully present in the United States” eligible for a State 

public benefit by enactment of a State law which “affirmatively provides for such eligibility.” First, we determined that 

for the purposes of state or local public benefits eligibility 

under § 4-108, “lawfully present” means the alien classifications under § 1621(a)(1), (2), and (3). 17 Second, we held 

that in order to affirmatively provide a state public benefit 

to aliens not lawfully present in the United States, as authorized by § 1621(d), the Legislature must make a positive or 

express statement extending eligibility by reference to immigration status. 18

3. J.S. and DHHS

J.S. is a citizen of El Salvador, who fled to Nebraska as a 

minor. She was adjudicated in juvenile court 19 and placed into 

foster care. At the time she applied to the Nebraska Department 

of Health and Human Services (DHHS) for B2I, she had a 

pending application for special immigrant juvenile (SIJ) status. 

Upon turning 19 years old, J.S. was accepted into B2I but was 

denied Medicaid coverage after her 19th birthday.

She requested a fair hearing with DHHS. At the hearing, 

the parties presented evidence and made arguments. In DHHS’ 

order, it found that she did not meet “the basic requirement[s] 

of ‘citizenship or alien status’ required for all Medicaid recipients.” It upheld the denial of Medicaid benefits.

4. District Court

J.S. filed a timely petition for review in the district court. She 

argued that she was eligible for Medicaid under the Children’s 

Health Insurance Program (CHIP) 20 and former foster care. 21

17 E.M., supra note 1.

18 Id.

19 See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).

20 See Neb. Rev. Stat. § 68-969(2)(a) (Reissue 2018) (“CHIP means the 

Children’s Health Insurance Program established pursuant to 42 U.S.C. 

[§] 1397aa et seq.”).

21 See 42 U.S.C. § 1396a(a)(10)(A)(i)(IX) (2018).
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She also contended that B2I extended medical assistance to all 

young adults regardless of immigration status.

The district court disagreed that CHIP or former foster care 

supported Medicaid eligibility. The court reasoned: Congress 

allowed the states to provide Medicaid benefits to certain lawfully residing alien children under CHIP, a state could elect to 

extend benefits to individuals under 21 years old (and pregnant 

women) who are “lawfully residing” aliens, 22 but Nebraska 

chose to limit CHIP to children under 19 years old (and pregnant women). Thus, the court concluded that even though J.S. 

was considered lawfully residing as defined by CHIP regulations, she exceeded the age limitation when she reached her 

19th birthday.

The court then considered whether J.S. could receive 

Medicaid under B2I. That program provides several services 

to participants, including “[m]edical care under the medical 

assistance program for young adults who met the eligibility requirements of [§] 43-4504 and have signed a voluntary 

services and support agreement as provided in [§] 43-4506.” 23

The court acknowledged that § 1621(a) declared aliens who 

are not qualified aliens, nonimmigrants, or paroled into the 

United States for less than 1 year ineligible for State or local 

public benefits. And the court recognized that § 1621(d) 

authorized an exception where a state law affirmatively provided for such eligibility. The court concluded that because 

the Nebraska Legislature did not affirmatively provide for 

unlawful aliens to receive Medicaid benefits under B2I, J.S. 

was not entitled to Medicaid benefits. The court noted that 

whether J.S. should have been accepted into B2I was not 

before the court.

The court affirmed DHHS’ denial of Medicaid benefits. 

J.S. filed a timely appeal, and we later granted her petition to 

bypass the Nebraska Court of Appeals. 24

22 See 42 U.S.C. § 1396b(v)(4)(A) (2018).

23 § 43-4505(1).

24 See Neb. Ct. R. App. P. § 2-102(B) (rev. 2015).
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III. ASSIGNMENTS OF ERROR

J.S. assigns, reordered, that the district court erred in (1) 

affirming DHHS’ denial of Medicaid benefits, (2) determining 

that citizenship or immigration status was relevant to eligibility 

for medical coverage for participants in B2I, and (3) failing to 

determine that DHHS’ practice of denying medical coverage to 

participants in B2I due to alien status violated the separation of 

powers clause of the Nebraska Constitution.

IV. STANDARD OF REVIEW

[3-5] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act may be reversed, vacated, or modified by an appellate 

court for errors appearing on the record. 25 When reviewing an 

order of a district court under the Administrative Procedure Act 

for errors appearing on the record, the inquiry is whether the 

decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 26

Whether an agency decision conforms to the law is by definition a question of law. 27

[6] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below. 28

V. ANALYSIS

1. Medicaid Participation

[7,8] The Medicaid program provides joint federal and state 

funding of medical care for individuals whose resources are 

insufficient to meet the cost of necessary medical care. 29 A 

25 McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56, 926 

N.W.2d 660 (2019).

26 Id.

27 Id.

28 In re Application No. OP-0003, 303 Neb. 872, 923 N.W.2d 653 (2019).

29 In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
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state is not obligated to participate in the Medicaid program; 

however, once a state has voluntarily elected to participate, it 

must comply with standards and requirements imposed by federal statutes and regulations. 30

DHHS concedes that Nebraska has “elected to participate 

in the Medicaid program” 31 through enactment of the Medical 

Assistance Act. 32 But it argues that it properly determined J.S. 

was not eligible under the applicable statutes and regulations.

Challenging the district court’s judgment affirming DHHS’ 

denial of Medicaid eligibility, J.S. makes three arguments: 

First, she argues that neither CHIP nor former foster care 

conditions Medicaid eligibility on immigration status. Second, 

she contends that B2I extends Medicaid coverage to all young 

adults in B2I and that although she would be ineligible for 

federal matching funds, the State should furnish medical 

care with state funds only. Finally, she asserts that DHHS’ 

practice of denying Medicaid to unlawful aliens participating in B2I violated the separation of powers clause of the 

Nebraska Constitution. 33

We note that in this court, as in the court below, the parties 

do not question J.S.’ participation in B2I; they contest only her 

eligibility for Medicaid benefits. Therefore, we are concerned 

only with whether J.S. is eligible for Medicaid under the 

Medical Assistance Act and § 43-4505(1).

Before turning to the arguments, we note that we will refer 

to the “Medicaid state plan.” 34 This is a “comprehensive 

written document, developed and amended by [DHHS] and 

approved by the federal Centers for Medicare and Medicaid 

Services, which describes the nature and scope of the medical assistance program and provides assurances that [DHHS] 

30 Id.

31 Brief for appellee at 20-21.

32 See Neb. Rev. Stat. §§ 68-901 to 68-994 (Reissue 2018 & Supp. 2019).

33 See Neb. Const. art. II, § 1.

34 See § 68-907(4).
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will administer the program in compliance with federal 

requirements.” 35

2. Medicaid Eligibility Via CHIP 

or Former Foster Care

J.S. concedes that PRWORA “generally restricts immigrants’ 

rights to receive federal, state, and local public benefits,” that 

it “limits the receipt of federally reimbursed Medicaid to only 

U.S. citizens or ‘qualified aliens,’” and that it “imposes a 

five-year waiting period,” which, in combination, effectively 

permits noncitizens, nonqualified aliens, and qualified aliens 

subject to the waiting period to “only receive medical coverage 

for the treatment of emergency medical conditions, even as to 

children and pregnant women.” 36

Nevertheless, J.S. argues that she was eligible for Medicaid 

under CHIP and former foster care. Before addressing her specific arguments, we review the regulations adopted by DHHS 

to administer the Medicaid program in Nebraska.

(a) DHHS Regulations

[9-11] The Medical Assistance Act requires DHHS to 

“administer the [Medicaid] program” 37 and empowers it to 

“adopt and promulgate rules and regulations.” 38 For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute. 39 Properly 

adopted and filed regulations have the effect of statutory law. 40

Absent a statutory or regulatory indication to the contrary, 

language contained in a rule or regulation is to be given its 

plain and ordinary meaning. 41 DHHS’ regulations governing 

35 Id.

36 Brief for appellant at 14, 15.

37 § 68-908(1).

38 § 68-908(2).

39 McManus Enters., supra note 25.

40 Id.

41 Id.
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Medicaid eligibility are codified in title 477 of the Nebraska 

Administrative Code.

J.S. did not meet Medicaid’s primary eligibility requirements 

under title 477. One “Primary Eligibility Requirement[]” is 

“U.S. citizenship or alien status.” 42 “In order to be eligible for 

Medicaid, an individual’s status must be documented as one 

of the following . . . [a] citizen of the United States; [or a] 

Qualified Alien[] . . . .” 43 Within this regulation, a numbered 

list from 2 to 4 specifies criteria for an “individual’s status,” 44

but none apply to J.S.

Despite not meeting the primary eligibility requirements, 

J.S. contends that she is eligible for Medicaid, because, she 

argues, a “lawfully present” child exception applied under 

both CHIP and former foster care. We examine each category 

in turn.

(b) CHIP

“CHIP means the Children’s Health Insurance Program 

established pursuant to 42 U.S.C. [§] 1397aa et seq.” 45 A 

regulation in effect at the time of J.S.’ application and the proceedings below stated, in relevant part, as follows: “Children’s 

Health Insurance Program (CHIP): Children age 18 or younger 

. . . are eligible for CHIP . . . .” 46

J.S. argues that in 2009, “Congress created an exception 

to PRWORA in its enactment of [§] 214” 47 of the Children’s 

Health Insurance Program Reauthorization Act of 2009 

(CHIPRA). 48 The federal statute, as codified, states, “A State 

may elect (in a plan amendment under this subchapter) to 

42 See 477 Neb. Admin. Code, ch. 2, § 001 (2014).

43 477 Neb. Admin. Code, ch. 5, § 001 (2014).

44 Id.

45 § 68-969(2).

46 477 Neb. Admin. Code, ch. 18, § 003.01 (2014).

47 Brief for appellant at 15.

48 Pub. L. No. 111-3, § 1, 123 Stat. 8.
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provide medical assistance . . . , notwithstanding [specified 

sections of PRWORA], to children . . . who are lawfully residing in the United States . . . , within . . . the following eligibility categor[y]: . . . (ii) . . . Individuals under 21 years of 

age . . . .” 49

[12,13] But, as the district court correctly determined, 

§ 1396b(v)(4)(A) was permissive and not mandatory, 

and Nebraska did not extend Medicaid eligibility under 

§ 1396b(v)(4)(A) beyond those persons age 18 years and 

younger. In interpreting federal statutes, the word “may” 

customarily connotes discretion. That connotation is particularly apt where “may” is used in contraposition to the word 

“shall.” 50 Similarly, we have said: The word “may” when used 

in a statute will be given its ordinary, permissive, and discretionary meaning unless it would manifestly defeat the statutory 

objective. 51 Here, the word “may” afforded the State a choice: 

to “elect” or not. 52 As DHHS points out, the age of majority in 

Nebraska is 19. 53 Although the age-of-majority statute has been 

amended twice since the proceedings below, neither amendment applies here. 54 DHHS argues, “In its Medicaid State Plan, 

the State of Nebraska chose to limit such eligibility to lawfully 

residing children under [age 19].” 55 And J.S. concedes that 

DHHS “correctly point[s] out that although Nebraska elected 

to provide Medicaid to lawfully residing children through 

[§] 214, it only elected to do so in its State Plan up to age 

nineteen, rather than twenty-one.” 56

49 § 1396b(v)(4)(A) (emphasis omitted).

50 See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 125 S. 

Ct. 694, 160 L. Ed. 2d 708 (2005).

51 Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).

52 See § 1396b(v)(4)(A).

53 See Neb. Rev. Stat. § 43-2101 (Reissue 2016).

54 See, 2018 Neb. Laws, L.B. 982, § 1; 2019 Neb. Laws, L.B. 55, § 5.

55 Brief for appellee at 26.

56 Reply brief for appellant at 4.
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CHIP provides no support for J.S.’ claim. J.S. was 19 years 

old when she was denied Medicaid. Once she reached age 19, 

she was no longer eligible for Medicaid under CHIP. We now 

turn to her argument regarding former foster care.

(c) Former Foster Care

J.S. argues that DHHS “must provide coverage to all eligible 

individuals under mandatory categories of the federal Medicaid 

program, including the Former Foster Care Category” 57 of the 

Patient Protection and Affordable Care Act (ACA). 58 She cites 

the eligibility criteria of § 1396a(a)(10)(A)(i)(IX), including 

age, enrollment status, having been in foster care, and having been enrolled in a state plan or under a waiver of a plan 

while in foster care. She argues, “Aside from her citizenship 

status, it is undisputed that [she] met all of the basic eligibility 

requirements . . . .” 59 She then argues that “under [§] 214 of 

CHIPRA, she became entitled to receive Medicaid under the 

Former Foster Care Category.” 60

DHHS responds that because J.S. was not a U.S. citizen 

or qualified alien, she did not qualify as a former foster care 

child under § 1396a(a)(10)(A)(i)(IX) after she reached the age 

of majority, i.e., age 19. “Under the former foster care child 

exemption,” DHHS argues, “[J.S.] still must meet the basic 

eligibility requirements, including [U.S.] citizenship or eligible 

alien status.” 61 DHHS then argues that although the State could 

have elected under CHIPRA to provide federal Medicaid to 

pending SIJ applicants under age 21, it did not do so in its 

Medicaid state plan.

In reply, J.S. concedes that DHHS is “correct in saying 

‘Nebraska is not required to provide federal Medicaid to [SIJ 

57 Brief for appellant at 21.

58 See Pub. L. No. 111-148, § 1, 124 Stat. 119.

59 Brief for appellant at 21.

60 Id. at 22.

61 Brief for appellee at 26.
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status] applicants under the age of 21.’” 62 And thereafter, 

her argument rests solely on YABI. Thus, she implicitly concedes that § 1396b(v)(4)(A)—the codification of § 214 of 

CHIPRA 63—does not by itself overcome her immigration status after age 19. It could not do so, DHHS correctly argues, 

because Nebraska did not elect to extend medical assistance 

under § 1396b(v)(4)(A) past age 18.

At the fair hearing before DHHS, one of the exhibits received 

without objection purported to be a response from the federal 

Centers for Medicare and Medicaid Services, responding to a 

Nebraska inquiry. The answer stated, in relevant part, “[f]ormer 

foster children who are age 19 or older and have an immigration status that is considered lawfully present but is not considered to be ‘qualified’ would not be eligible for full Medicaid 

coverage, unless the individual was a pregnant woman.” This 

merely confirms J.S.’ implicit concession.

[14] In summary, because Nebraska did not elect to extend 

coverage under § 1396b(v)(4)(A) beyond age 18, neither 

CHIP nor the former foster care provisions of the ACA provide coverage where a noncitizen applicant’s immigration 

status is not qualified. We now turn to J.S.’ argument based 

on YABI.

3. Medicaid Eligibility Via 

B2I Under YABI

In E.M.,

 64 we addressed YABI and B2I, which extend services and support to former foster youth who are between 19 

and 21 years old. 65 But, here, we must specifically consider 

§ 43-4505(1), which we did not address directly in E.M.

Under § 43-4505, “[e]xtended services and support provided 

under [B2I] include, but are not limited to: (1) Medical care 

62 Reply brief for appellant at 4.

63 Pub. L. No. 111-3, § 214, 123 Stat. 56.

64 E.M., supra note 1.

65 See §§ 43-4504 and 43-4505.
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under the medical assistance program for young adults who 

meet the eligibility requirements of section 43-4504 and have 

signed a voluntary services and support agreement as provided 

in section 43-4506.”

(a) Principles of Statutory 

Interpretation

[15,16] The same principles of statutory interpretation we 

employed in E.M. apply here. Statutory language is to be given 

its plain and ordinary meaning, and an appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

words which are plain, direct, and unambiguous. 66 It is not for 

the courts to supply missing words or sentences to a statute to 

supply that which is not there. 67

(b) PRWORA Applies to YABI

In E.M., we reached several conclusions that direct our reasoning here: (1) PRWORA and its Nebraska equivalent apply 

to B2I, (2) YABI could not be extended by omission to aliens 

not lawfully present in the United States, (3) PRWORA instead 

required a positive or express statement by reference to immigration status, and (4) YABI lacks any such statement. 68

J.S. raises two arguments identical to contentions rejected in 

E.M. Once again, neither is persuasive.

First, she says that YABI “makes no mention of citizenship 

as a prerequisite to receiving medical care within extended 

foster care” and that neither §§ 43-4504 or 43-4505(1) “limit 

the availability . . . to non-qualified aliens, or give deference 

to PRWORA.” 69 But this is merely the “omission” argument 

that we rejected in E.M. There, we held, the omission of a lawful presence requirement in YABI did not qualify as a positive 

66 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 

(2019).

67 State v. Jedlicka, ante p. 52, 938 N.W.2d 854 (2020).

68 See E.M., supra note 1.

69 Brief for appellant at 18.
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or express statement extending eligibility by reference to immigration status. 70

Second, J.S. points to the same case management service 71

we addressed in E.M. There, we observed that this subsection 

describes a service and not a recipient eligible by immigration 

status. Under PRWORA, in order for a noncitizen not “lawfully present” to receive a state public benefit, the Legislature 

was required to “affirmatively provide[]” for such eligibility. 72 In rejecting the same argument there, we observed that 

no such statement appeared anywhere in YABI. Here, as 

we did in E.M., we decline to supply words left out by the 

Legislature.

(c) § 43-4505(1)

To escape the reach of PRWORA, J.S. argues that the “passage of [YABI] constituted a ‘[m]aterial change[] in State law’ 

requiring [DHHS] to amend its State Plan to carry out the 

Legislature’s mandate to provide medical care to all children 

within B2I,” including noncitizens having pending SIJ applications. 73 This argument relies upon a federal regulation, which 

states, “The [Medicaid state] plan must provide that it will 

be amended whenever necessary to reflect . . . (ii) Material 

changes in State law . . . .” 74

DHHS responds that the passage of YABI did not require 

the State to amend its Medicaid state plan. Instead, DHHS contends that YABI must be read in conjunction with PRWORA 75

and its Nebraska counterpart. 76 DHHS points out that YABI 

does not affirmatively provide for Medicaid coverage to 

70 See E.M., supra note 1.

71 See § 43-4505(3)(h).

72 See § 1621(d).

73 Brief for appellant at 17.

74 42 C.F.R. § 430.12(c)(1)(ii) (2010).

75 See § 1621(d).

76 See § 4-108.
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a noncitizen who is not “lawfully present” as defined by 

PRWORA. And DHHS suggests that the Legislature was 

familiar with these prior statutes. We agree with DHHS.

[17,18] In enacting a statute, the Legislature must be presumed to have knowledge of all previous legislation upon the 

subject. 77 The Legislature is also presumed to know the general condition surrounding the subject matter of the legislative 

enactment, and it is presumed to know and contemplate the 

legal effect that accompanies the language it employs to make 

effective the legislation. 78 And, as we recognized in E.M., the 

Legislature knows how to affirmatively provide for noncitizens 

to receive public benefits. 79

Section 43-4505 first came into law in 2013. 80 It was 

amended in 2014 81 and 2015. 82 In none of this legislation was 

there any language affirmatively providing for public benefits 

to noncitizens. And although each of these legislative acts 

directed DHHS to submit plan amendments, 83 J.S. has not 

pointed to anything in these plan amendments or associated 

federal statutes excepting B2I from PRWORA or § 4-108.

Moreover, J.S.’ argument claiming that § 43-4505 was a 

material change in state law would duplicate the former foster 

care category and conflict with the ACA. In 2010, the ACA 

required the States to provide Medicaid coverage to youth 

who have aged out of foster care until they turn 26 years old. 84

77 In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017).

78 Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016).

79 See E.M., supra note 1.

80 See 2013 Neb. Laws, L.B. 216, § 5 (as part of what was then known as 

Young Adult Voluntary Services and Support Act).

81 See 2014 Neb. Laws, L.B. 853, § 34.

82 See 2015 Neb. Laws, L.B. 243, § 17.

83 See, 2013 Neb. Laws, L.B. 216, § 14; 2014 Neb. Laws, L.B. 853, § 44; 

2015 Neb. Laws, L.B. 243, § 24.

84 See § 1396a(a)(10)(A)(i)(IX).
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In compliance with federal law, Nebraska amended its State 

plan and provided for former foster youth to receive Medicaid 

until they turned 26 years old. 85 At the time J.S. applied for 

Medicaid, the former foster care category existed and did 

not require an amendment to the State plan. J.S.’ construction would effectively limit former foster care recipients of 

Medicaid only to those participating in B2I and reduce the age 

limit from 26 to 21 years. Because the state Medicaid plan 

already covered former foster care youth, § 43-4505(1) was not 

a material change in state law.

4. Separation of Powers

J.S. contends that DHHS’ “practices and regulations limiting 

non-qualified aliens’ ability to receive medical coverage despite 

their presence in B2I” 86 violates the separation of powers 

clause of the Nebraska Constitution. 87 Thus, she claims, DHHS 

has encroached on the prerogatives of the Legislature.

[19,20] Nebraska’s separation of powers clause prohibits 

the three governmental branches from exercising the duties 

and prerogatives of another branch. 88 The separation of powers 

clause prevents a branch from delegating its own duties or prerogatives except as the constitution directs or permits. 89

[21] But as DHHS responds, the Legislature passed § 4-108, 

which provides that “[n]otwithstanding any other provisions 

of law, unless exempted . . . pursuant to federal law, no state 

agency . . . shall provide public benefits to a person not lawfully present in the United States.” If the Legislature intended 

that nonqualified aliens were to receive Medicaid, it could 

easily have included language to that effect in YABI. The 

Nebraska Supreme Court does not sit as a superlegislature to 

85 477 Neb. Admin. Code, ch. 28, § 003 (2018).

86 Brief for appellant at 24.

87 See Neb. Const. art. II, § 1.

88 In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).

89 Id.
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review the wisdom of legislative acts; that restraint reflects 

the reluctance of the judiciary to set policy in areas constitutionally reserved to the Legislature’s plenary power. 90 DHHS 

did not violate the separation of powers clause in denying 

J.S. Medicaid.

VI. CONCLUSION

We conclude that the district court did not err in determining 

that J.S. was not eligible for Medicaid. We affirm the judgment 

of the district court.

Affirmed.

90 Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 

N.W.2d 164 (2007).