JULIA PICHARDO v. THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0810-08T30810-08T3

JULIA PICHARDO,

Appellant,

v.

THE NEW JERSEY

DEPARTMENT OF HUMAN

SERVICES, DIVISION OF

DISABILITY SERVICES,

Respondent.

______________________

 

Submitted September 14, 2009 - Decided

Before Judge Rodr guez and Reisner.

On appeal from the Department of Human Services, Division of Disability Services, Docket No. 00370.

New Jersey Protection and Advocacy, Inc., attorneys for appellant (Curtis D. Edmonds, on the briefs).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laurie M. Tompkins, Deputy Attorney General, on the brief).

PER CURIAM

Julia Pichardo appeals from a September 2, 2008 final decision issued by the Department of Human Services (DHS), Division of Disability Services (DDS), denying her request for funding to repair or replace her laptop computer. We affirm.

I

These are the undisputed facts. Pursuant to N.J.S.A. 30:6F-6, the DHS administers the Traumatic Brain Injury Fund (Fund) as "the payer of last resort, for the costs of post-acute care, services and financial assistance provided in this State to residents of this State who have survived neuro-trauma with a traumatic brain injury." See also N.J.A.C. 10:141-1.3. In the event there are insufficient funds to meet all applicants' needs, the statute authorizes DHS to set priorities for the expenditure of the Fund's resources. N.J.S.A. 30:6F-6b(4). The Fund is administered on a day-to-day basis by the Traumatic Brain Injury Fund Review Committee (Committee), which reviews individual funding applications and determines eligibility. See N.J.A.C. 10:141-1.8. Appeals from the Committee are decided by the DDS, which administers the Fund for DHS. See N.J.A.C. 10:141-1.4(a)1.

Pichardo has been eligible for assistance from the Fund since 2004. In March 2005, the Fund provided $869 as partial funding to purchase a laptop computer for Pichardo. The State Division of Vocational Rehabilitation Services paid the balance of the $1451 purchase price. In December 2007, Pichardo requested by email that the Fund pay approximately $700 to fix her laptop, because it had been damaged due to a "fall from a height."

The Fund's staff sent her a responding email on December 10, 2007, denying the request, because the Fund's regulations preclude payment for repairing computer equipment. Once the Fund pays to provide a computer, or other "assistive technology," the recipient is responsible to pay for any repairs that may later be required:

Assistive technology is defined as any technological device that improves the functional independence of the beneficiary. Equipment and technology must be justified under the service plan as necessary and cost effective. This definition excludes payment for routine repairs, upgrades, or service contracts. Such expenses shall remain the responsibility of the beneficiary.

[N.J.A.C. 10:141.1.12(a)(33)(emphasis added).]

On December 17, 2007, one week after the agency rejected her request to pay for repairs, Pichardo submitted a request that the Fund pay $3000 to buy her a new computer. By letter dated February 4, 2008, the Committee denied the request for two reasons: (1) The Fund had already provided funding for a computer and "[a] computer and printer is a one time purchase by the Fund;" and (2) "care [and] maintenance . . . is the responsibility of the individual recipient."

Through her counsel, Pichardo requested that the Committee reconsider its decision. She contended, in pertinent part, that the "one computer per individual lifetime" policy was "potentially unfair," because it did not "take into account the changing needs of individuals with traumatic brain injuries over their lifetimes" and did not "consider advances in technology." She also argued that her existing computer had a cracked screen, was unusable and was "unfixable." She did not provide legally competent evidence of the latter claim, nor did she provide evidence that in her individual case her existing computer's technology was obsolete due to her "changing needs."

When reconsideration was denied, Pichardo appealed to the DDS, which rejected the appeal on September 2, 2008. The DDS concluded that the matter did not require an evidentiary hearing, because there were no material facts in dispute, see, e.g., In re Farmers' Mut. Fire Assur. Ass'n of N.J., 256 N.J. Super. 607, 618 (App. Div. 1992), and the Committee and Pichardo simply disagreed "as to how the Fund's regulations and policies should apply" to her request for funding for a new computer.

The DDS concluded that her request for a new computer "was a means of evading" the agency's regulations "prohibiting payment for routine repairs." The agency also rejected Pichardo's challenge to the "one computer per lifetime" policy, because her arguments in support of that challenge had no application to her personal situation. She was not asking for a new computer due to changes in technology or changes in her medical condition and ability to use technology. Instead the Committee considered her case "as a request for a replacement for a laptop damaged in an accident." However, acknowledging the policy issues raised by Pichardo's counsel, the DDS did indicate that the Fund would consider clarifying its "one computer" policy "as it relates to changes in technology and changes in a recipient's condition."

Finally, the DDS decision reaffirmed the Committee's regulatory authority to "'develop . . . policies and procedures'" to "maintain the fiscal integrity of the Fund" pursuant to N.J.A.C. 10:141-1.4(a)(2)(iv). The DDS concluded:

The "one computer per lifetime" policy is a means of maintaining the fiscal integrity of the Fund so that it can best serve the people of the State of New Jersey living with traumatic brain injuries. Given that Ms. Pichardo is requesting a new laptop at its current value of $3,000 to circumvent the regulatory prohibition against repair of her original laptop, I have determined that granting a request for a second laptop within approximately three years of funding the first laptop is not sound fiscal policy. Granting the 2007 request would have been a poor use of the public revenue contained in the fund. N.J.A.C. 10:141-1.12 clearly states that all technology purchases must be "cost effective." N.J.A.C. 10:141-1.12(a)(33). I reject the notion that the Fund somehow owes Ms. Pichardo another laptop given that she successfully used the laptop for years before it was damaged. If the Committee granted Ms. Pichardo's request, it would then be in a position where it has set[] a precedent of replacing any damaged equipment purchased on behalf of any beneficiary after a period of successful use. This precedent would certainly lead the Fund into financial peril.

The agency also found that fixing a cracked laptop screen was a routine repair, ineligible for funding under the regulations.

II

On this appeal, our review of the agency's final decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007) (citing In re Carter, 191 N.J. 474, 482 (2007)). We must affirm the agency's determination "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, supra, 192 N.J. at 27-28 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Our review is restricted to four general inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

We defer, where appropriate, to an interpretation of a statute by the agency charged with its implementation, see Nelson v. Bd. of Educ., 148 N.J. 358, 364 (1997), although we are "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

While conceding that no facts were in dispute, Pichardo contends here, as she did before the agency, that the "one computer per lifetime" policy should be invalidated as inconsistent with the purpose of the Traumatic Brain Injury Fund legislation. She argues that the policy does not take into account changes in technology or changes in one's ability to use technology. However, we agree with the agency that this contention is not ripe for our consideration, because Pichardo's factual situation does not present either of the asserted problems with the policy. We also note the agency's expressed willingness to reconsider the policy in situations where technology, or an individual's abilities, have changed.

Pichardo also disagrees with the agency's judgment that providing her with a new computer would not be cost effective. She contends that she needs a new computer to finish her education and for her work as a substitute teacher. She further questions the agency's conclusion that her application for a new computer was an attempt to evade the regulatory prohibition on paying for repairs.

Having reviewed the record, we conclude that Pichardo's appellate contentions do not justify our disturbing the agency's decision under the applicable legal standards, R. 2:11-3(e)(1)(D), and are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in the agency's cogent written decision dated September 2, 2008.

Affirmed.

(continued)

(continued)

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A-0810-08T3

October 1, 2009