dissenting.
The issue here is the continued validity of eligibility standards for Medical Assistance for the Aged (MAA) promulgated by the Department of Human Services in 1963 and not adjusted for inflation since then. The majority remands to the Commissioner to consider amending the regulations, directing him to take into account the medical needs of the plaintiffs, the economic costs of the program and “any other factors that he deems appropriate.” (at 381) I agree that these regulations need serious re-evaluation. However, contrary to the majority, I would hold the regulations facially invalid. I would remand only for the purpose of drafting new regulations consistent with the statute, N.J.S.A. 44:7-76 to -84.
The MAA statute sets forth a clear and unambiguous entitlement to medical assistance. “Subject to the provisions of this act, any resident of New Jersey [over 65 years old and ineligible for Medicaid], whose income and resources are insufficient to meet the costs of health services provided under this act, shall be entitled to receive medical assistance for the aged.” N.J.S.A. 44:7-76 (emphasis added). In implementing this entitlement, the Commissioner is directed
[t]o provide that, in determining need for medical assistance for the aged and the amount of such assistance to be granted, there shall be taken into consideration all other income and resources of the aged individual, making due allowance for a minimum standard of living compatible with decency and health. [N.J.S.A. 44:7-81(c) (emphasis added) ]
There can be no confusion about the meaning of these provisions. Any eligible person who needs MAA services and cannot reasonably afford them must be provided such services.1
*391MAA eligibility standards which deny benefits to persons clearly falling within the statutory entitlement must be held invalid. “Administrative regulations, of course, cannot alter the terms of a legislative enactment or frustrate the policy embodied in the statute.” New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Commission, 82 N.J. 57, 82 (1980). See Common Cause v. New Jersey Election Law Enforcement Commission, 74 N.J. 231, 243 (1977); Abelson’s, Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 423-24 (1950). The majority opinion ignores this basic premise. By suggesting that consistency with the underlying statute is merely “[o]ne measure of the validity of an administrative regulation,” at 387, the majority implies that these regulations could be upheld despite being inconsistent with the statute.
Expressing concern for the economic difficulties faced by the State, the majority suggests that “the economic costs of the regulation are relevant on remand,” at 389. But it is the role of the Legislature to weigh the cost of assistance against the social obligation to care for those unable to provide for themselves, and it has clearly resolved the issue in favor of assistance. The Director is legally bound to set the assistance at a level that provides a “minimum standard of living compatible with decency and health.” N.J.S.A. 44:7-81(c). He may not contravene this clear legislative entitlement. To the extent that the Commissioner argues otherwise, and to the extent that the majority *392opinion accepts that position, they fundamentally misconstrue the function of administrative agencies.
The record before us clearly demonstrates that the challenged eligibility standards are contrary to the MAA statute. For two of the plaintiffs here, the monthly cost of necessary medical services covered by MAA actually exceeds their total monthly income. Two others would have less than $100 per month remaining for necessities such as food and rent. See at 379, n.l. It would hardly be an overextension of judicial notice for us to conclude that minus $306.72 (Coppola) or even $92.50 (Ciccone) is an inadequate monthly income “for a minimum standard of living compatible with decency and health.” N.J. S.A. 44:7-81(c). Yet, both of these plaintiffs are ineligible for MAA under the current eligibility criteria.
The record further shows that the MAA eligibility standards have remained unchanged since 1963, even though prices have more than doubled since then. It strains credulity to the limit to suggest that the 1963 standard was so generous that it has survived the ravages of inflation. The clear evidence shows that those standards are, in 1982, so stingy that they bear no relation whatever to any minimum standard of living, much less one which reflects decency and health.
For these reasons, I would hold the challenged eligibility criteria invalid on their face. They are contrary to a clear legislative enactment and are therefore illegal. Chamber of Commerce, supra.
Plaintiffs here are elderly, indigent, and of failing health. They are among the most vulnerable persons in our society. The New Jersey Legislature has repeatedly manifésted its beneficent concern for the well-being of the elderly members of our community. At 387-388. The MAA program is a worthy reflection of that concern. By establishing unduly parsimonious eligibility criteria, the Commissioner has undermined this necessary humanitarian program. But it is not the Commissioner’s privilege to lower the statutory criteria. It is his duty to obey the law.
*393The current eligibility criteria contravene the statute. I would order the Commissioner to promulgate new regulations which set assistance at a level consistent with a minimum standard of living compatible with decency and health. The majority does not do so. I therefore dissent.
For affirmance and modification — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O’HERN — 6.
Dissen ting — J ustice PASHMAN — 1.
To justify its position that the Commissioner can set standards which contravene the above-cited portion of N.J.S.A. 44:7-81(c), the majority relies *391upon the introductory clause in N.J.S.A. 44:7-76, which reads “[sjubject to the provisions of this act.. .” Somehow, the majority finds that this stock phrase gives the Commissioner full discretion to enforce or to ignore the substantive provisions of the statute. There is no justification for this interpretation.
The Majority reads N.J.S.A. 44:7-81(c) as the provision granting discretion to the Commissioner. In fact, N.J.S.A. 44:7-81(c) unequivocally directs the Commissioner to set eligibility standards “making due allowance for a minimum standard of living compatible with decency and health.” The act does not merely suggest that the Commissioner set such standards in his discretion: it directs him to act in accord with the statutory criteria.