THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The Estate of Ada B. Nicholson, by Ronald D. Nicholson, Personal Representative, Appellant,

v.

South Carolina Department of Health and Human Services, Respondent.

Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge

Opinion No. 4368
Submitted March 3, 2008 Filed April 3, 2008

AFFIRMED

Robert J. Thomas, Sarah L. Clingman, and Amy M. Lander, of Columbia, for Appellant.

George R. Burnett, South Carolina Department of Health and Human Services, of Columbia, for Respondent.

WILLIAMS, J.: Ronald D. Nicholson, as the Personal Representative (the PR) for the Estate of Ada B. Nicholson (Mother), appeals the decision of the Administrative Law Judge (ALJ) affirming the South Carolina Department of Health and Human Services (the Department) denial of Max Nicholsons (Son) request for an undue hardship waiver under the South Carolina Medicaid program (Medicaid). We affirm.

FACTS

In April 1996, Mother began receiving services from Community Long Term Care (CLTC), a program provided by Medicaid. CLTC provides services to Medicaid recipients who elect to receive assistance in their homes rather than seek admission to a nursing facility. Mother continued to receive these services until January 1999 when she moved into Easley Nursing Home (the Nursing Home). While in the Nursing Home, Mothers care was paid for by Medicaid. In July 2004, Mother passed away. Mothers estate consisted of a partial interest in her home.

Following Mothers death, the Department determined it had paid $206,616.26 for CLTC and/or nursing home care on Mothers behalf, and subsequently, the Department filed a claim in that amount against Mothers estate. The PR then requested a hardship waiver on behalf of Son, who was incarcerated at the time, claiming Son had lived with Mother for more than two years prior to her entering the Nursing Home, which would preclude the Department from asserting an interest in Mothers home. Son had been incarcerated since October 2002.

The Department denied the PRs request. The Department stated the hardship waiver would not be granted for the following reasons: (1) Sons income exceeded 185% of the federal poverty guidelines; (2) Son was not actually residing in Mothers home at the time the waiver was requested; and (3) Son had not lived in Mothers home in over two and a half years prior to Mothers institutionalization. Pursuant to the provisions of the Appeals and Hearings regulations of the Department, the PR appealed the Departments denial, and a hearing was scheduled.

The Hearing Officer assigned to review the PRs appeal subsequently concurred with the Departments decision to deny the waiver. The Hearing Officer additionally found CLTC services were the functional equivalent of nursing home care. The PR then appealed the Hearing Officers decision to the Administrative Law Court. Although the ALJ did not rule on the issue of whether CLTC is the functional equivalent of institutionalization, the ALJ did find Son was not actually residing in Mothers home when the waiver application was submitted. The ALJ, therefore, upheld the Hearing Officers denial of Sons hardship waiver. This appeal follows.

STANDARD OF REVIEW

Appeals from decisions by the [D]epartment are heard pursuant to the Administrative Procedures Act [(APA)] . . . . S.C. Code Ann. 44-6-190 (2002). The APA, therefore, determines the standard of judicial review for cases initially heard by the Department. Todds Ice Cream, Inc. v. S.C. Employment Sec. Commn, 281 S.C. 254, 257, 315 S.E.2d 373, 375 (Ct. App. 1984). It is well settled that in reviewing a decision by an administrative agency, this Court will not substitute its judgment for that of the agency concerning the weight of the evidence as to questions of fact. Kearse v. State Health and Human Servs. Fin. Commn, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995). Pursuant to the APA, this [C]ourt may reverse or modify an agency decision which is either affected by error of law or clearly erroneous in view of the reliable, probative, and substantial evidence in the record. S.C. Dept of Labor, Licensing, & Regulation v. Girgis, 332 S.C. 162, 166, 503 S.E.2d 490, 492 (Ct. App. 1998). The substantial evidence standard is met if a reasonable mind might accept the evidence as adequate to support the agencys conclusion. Kearse, 318 S.C. at 200, 456 S.E.2d at 893.

LAW/ANALYSIS

The PR argues the ALJ erred in finding Son was not actually residing in Mothers home when the hardship application was made. We disagree.

The Department may seek recovery of medical assistance paid under Medicaid from the estate of an individual who, at the age of fifty-five or older, received medical assistance consisting of nursing facility services or home and community-based services. S.C. Code Ann. 43-7-460(A)(2) (Supp. 2007). The Department must waive recovery, however, upon proof of undue hardship asserted by an heir or devisee of the decedent. S.C. Code Ann. 43-7-460(C) (Supp. 2007).

An undue hardship exists if the surviving child of the decedent lived in the home of the decedent for at least two years immediately prior to the decedents institutionalization. Section 43-7-460(C)(1)(d). The child claiming this hardship, however, must have been actually residing in the [decedents] home at the time the hardship [was] claimed. Section 43-7-460(C)(1) (emphasis added). Another situation allowing for an undue hardship waiver is when the claimant has been living in the decedents home two years prior to the decedents death, owns no real property, and earns below a certain income level. Section 43-7-460(C)(2)(a), (c), (d). As in the previous example, however, the claimant must have been actually residing in the [decedents] home at the time the hardship [was] claimed. Section 43-7-460(C)(2)(b) (emphasis added). The statute fails to define the phrase actually residing. Consequently, we must turn to the rules of statutory construction to ascertain the phrases meaning.

The cardinal rule of statutory construction is to determine and give effect to the intent of the legislature. Charleston County Sch. Dist. v. State Budget & Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). The best evidence of legislative intent is the text of the statute. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 231, 612 S.E.2d 719, 724 (Ct. App. 2005). If the terms of the statute are clear, the court must apply those terms according to their literal meaning. City of Columbia v. Am. Civil Liberties Union of S.C., Inc., 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996). If there is any ambiguity in the statute, however, that ambiguity should be resolved in favor of a just, equitable, and beneficial operation of the law. Stephen v. Avins Constr. Co., 324 S.C. 334, 340, 478 S.E.2d 74, 77 (Ct. App. 1996). Furthermore, [t]he language [of the statute] must also be read in a sense which harmonizes with its subject matter and accords with its general purpose. Cox v. BellSouth Telecomm., 356 S.C. 468, 472, 589 S.E.2d 766, 768 (Ct. App. 2003). Where a word is not defined in a statute, our appellate courts have looked to the usual dictionary meaning to supply its meaning. Lee v. Thermal Engg Corp., 352 S.C. 81, 91-92, 572 S.E.2d 298, 303-04 (Ct. App. 2002).

Reside has been defined as (1) to dwell permanently or continuously; (2) to have a settled abode for a time; or (3) to have ones residence or domicile. Websters Third New International Dictionary 1931 (1986). However, in the legal field, the term reside has been defined as to [l]ive, dwell, abide, sojourn, stay, remain, [or] lodge. Blacks law dictionary 1176 (5th ed. 1979). Additionally, the term residence has been defined as [t]he place where one actually lives, as distinguished from a domicile . . . . Blacks law dictionary 1050 (7th ed. 2000). Domicile has been defined as [t]he place at which a person is physically present and that the person regards as home; a persons true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere. Id. at 396.

In light of these definitions, residence is a somewhat general and fluid term. When read alone, the word residence is susceptible to varying interpretations. Phillips v. S.C. Tax Commn, 195 S.C. 472, 476, 12 S.E.2d 13, 15 (1940). It may have a restricted or enlarged meaning, and therefore, the precise meaning of the term is dependent upon the explanatory context. Id. at 476-77, 12 S.E.2d at 15-16.

The context in which actually residing is used in Section 43-7-460 indicates the phrase has a restricted meaning of physical presence, rather than a broader meaning of domicile. The statute allows for waivers of the States recovery only in situations when the ramifications would be extremely detrimental to the claimant. See Section 43-7-460(C) (stating the Department must waive recovery if an heir or devisee proves undue hardship will ensue). The requirement that the claimant must actually be living in the decedents home when the undue hardship waiver is claimed is one way the statute ensures the waivers are permitted in only those limited situations.

This restricted meaning of physical presence is bolstered by the emphasis added by the adverb actually. This adverb stresses the importance that the claimant must currently be living in the decedents home when the hardship is claimed. Looking at the language of the statute, it is insufficient to show the decedents home is the claimants domicile without proof the home is also the claimants current residence. This interpretation is in line with previous case law which has recognized that residence is a more elastic and flexible term than domicile or citizenship. A person may have only one domicile, but may have several residences. Cook v. Fed. Ins. Co., 263 S.C. 575, 582, 211 S.E.2d 881, 884 (1975). We also note, while a persons legal residence is often determined by his or her domicile, a persons actual residence will be determined by his or her present physical location. 25 Am. Jur. 2d Domicil 9 (2008). This distinction between actual residence and legal residence has long been recognized. See Phillips, 195 S.C. at 477, 12 S.E.2d at 16 (But a distinction has long been made between actual residence and legal residence.) (emphasis in original).

Finding the phrase actually residing requires physical presence in the decedents home, Son must have been currently living in Mothers home when the hardship waiver application was made. Son was incarcerated at the South Carolina Department of Corrections when the PR requested the undue hardship waiver, and thus, he was not physically present in Mothers home when the hardship waiver application was made. Therefore, Son did not meet the requirements for an undue hardship waiver, and the waiver was properly denied.

CONCLUSION

For the foregoing reasons, the decision of the ALJ is

AFFIRMED.[1]

HUFF and KITTREDGE, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.