IN THE MATTER OF M.P a Disabled Adult

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3019-10T2

IN THE MATTER OF M.P.,

a Disabled Adult.

___________________________________

April 10, 2012

Argued November 30, 2011 - Decided

Before Judges Cuff and Waugh.

On appeal from the Divisionof Developmental Disabilities.

Evelina E. G. Padilla argued the cause for appellant M.P. (Hinkle, Fingles & Prior, P.C., attorneys; Herbert D. Hinkle and S. Paul Prior, of counsel; Ms. Padilla, on the briefs).

Gerard Hughes, Deputy Attorney General,argued the cause for respondent New Jersey Department of Human Services, Division of Developmental Disabilities (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Hughes, on the brief).

PER CURIAM

Petitioner J.P., to whom we refer by the pseudonym Jessica, is the mother of M.P., a developmentally-disabled adult with Down Syndrome to whom we refer by the pseudonym Milton. Jessica appeals from the final administrative action of the Division of Developmental Disabilities (DDD) in the New Jersey Department of Human Services, which denied her request that DDD place Milton at Jespy House, a home for developmentally-disabled adults who can potentially live independently and gain employment. She also appeals DDD's refusal to reimburse her for expenses she incurred in maintaining Milton at Jespy House for approximately ten years. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Milton became eligible for services from DDD in February 1999. In 2000, he completed special education services supplied by DDD. Jessica sought a residential placement for Milton because he expressed a desire to live on his own. She placed Milton at Jespy House at her own expense in January 2001. In 2003, DDD placed Milton on its priority waiting list for a residential placement.1

In 2006, the DDD offered Milton an emergency placement at another location. Because she did not consider the location suitable for Milton, Jessica rejected the placement offer. DDD subsequently withdrew the offer as mistakenly made, inasmuch as Milton had housing and was not then eligible for an emergency placement. See N.J.A.C. 10:46B-3.3(a) ("An emergency need for services or placement shall be deemed established when the person is homeless or in imminent peril . . . .").

In November 2007, Jespy House informed Jessica that Milton would have to leave in thirty days because his fees had not been paid for one year. The termination date was later extended to May 4, 2008. Based on his threatened removal from Jespy House, DDD determined that Milton would soon be homeless and, consequently, was eligible for an emergency placement pursuant to N.J.A.C. 10:46B-3.3(a).

As required by N.J.A.C. 10:46B-3.3(c), DDD sought an emergency placement for Milton to meet his basic needs of food, shelter, and personal safety. It found a placement at a group home in Newark and offered it to Jessica on May 2, 2008. DDD also informed Jessica that it would hold an individual habilitation plan (IHP) meeting within thirty days to plan for Milton's transition to a permanent facility or to continue him at the Newark facility as a permanent facility. Because she believed that the emergency placement was inappropriate for her son, Jessica declined it.

DDD subsequently reevaluated Milton's emergency status and determined that he had remained at the Jespy House beyond the May 4 termination date. Consequently, it determined that he no longer needed an emergency placement.

Jessica sought administrative review of the decision to terminate Milton's emergency status, as well as its refusal to place him at Jespy House as his emergency placement. After an informal meeting held in July, one of DDD's administrative practice officers (APO) affirmed the initial DDD decision to withdraw emergency status. Because the APO had failed to provide Jessica with a report of his findings, DDD granted Jessica's request for a second informal conference, which was held in December before another APO. The second APO also confirmed the initial DDD decision, explaining that the offer made by the DDD was sufficient to meet Milton's basic needs of food, shelter, and personal safety. He further confirmed that Milton no longer satisfied the requirements for emergency status because he was not in danger of becoming homeless and his needs were being met at Jespy House.

Jessica pursued an administrative appeal of the second APO's decision. DDD granted an administrative paper review, which resulted in a recommended decision to affirm the initial DDD decision. Jessica appealed the April 2010 recommended decision.

On January 11, 2011, Assistant Commissioner Kenneth W. Ritchey affirmed all of the agency's actions in a final decision. He determined Milton's situation was no longer emergent. Ritchey denied Jessica's request that the matter be referred to the Office of Administrative Law (OAL) as a contested case because there were no material facts in dispute. This appeal followed.

II.

On appeal, Jessica argues that (1) DDD should have sent the case to OAL as a contested case, (2) that DDD's decision was arbitrary, capricious, and unreasonable, (3) that DDD failed to adhere to its obligation to provide an appropriate placement for Milton, and (4) that DDD should have reimbursed her for the costs she incurred in maintaining Milton at Jespy House.

A.

The scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't Cmty. Affairs, 186 N.J. 5, 15-16 (2006)). We accord to the agency's exercise of its statutorily delegated responsibilities a "strong presumption of reason ableness." City of Newark v. Natural Res. Council, 82 N.J 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appel lant. Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super 276, 285 (App. Div. 1986), aff'd, 107 N.J 355 (1987) (quoting Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980)) (citing In re Guardianship Servs. Regulations, 198 N.J. Super. 132, 137 (App. Div. 1984)).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009) (citations omitted).

The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J.500, 513 (1992) (citations omitted).

B.

Jessica contends that DDD erred by refusing to refer this matter to OAL for hearing as a "contested case," which is defined as

a proceeding . . . in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing.
 
[N.J.S.A.52:14B-2(b).]

We have held that, "[i]f [the] matter before [the] agency does not present contested material issues of fact that can be decided only 'after [an] opportunity for an agency hearing,'" the matter "is not a contested case subject to [referral] to . . . OAL." Sloan ex rel. Sloan v. Klagholtz, 342 N.J. Super.385, 392 (App. Div. 2001) (quoting Quad Enters. v. Borough of Paramus, 250 N.J. Super.256, 263 (App. Div. 1991)).

Our review of the record satisfies us that there were no contested issues warranting referral to OAL. There is no dispute that Milton is entitled to receive services from DDD on account of his disability. In fact, during the pendency of this appeal, DDD began paying for his day services at Jespy House. There also appears to be no dispute that Jespy House is an appropriate placement for Milton. We do not understand DDD to contend that the facility in Newark was the best long-term placement for Milton, but only that it was an appropriate and available emergency placement. The real issue, as we understand it, was whether Milton was entitled to receive DDD funding for Jespy House or a similarly appropriate placement prior to his reaching the top of DDD's waiting list for residential services.

In J.D. ex rel. D.D.H. v. New Jersey Division of Developmental Disabilities, 329 N.J. Super. 516, 525 (App. Div. 2000), we held that no OAL hearing was required under similar circumstances. As was the case in J.D., the disputes in this case do not concern "adjudicative facts" of the type required for a "contested case" warranting referral to OAL. Ibid.

Consequently, we hold that DDD did not err in refusing to send this matter to OAL.

C.

N.J.S.A. 30:4-25.6 requires DDD to provide an eligible person "with appropriate functional service to the extent available." If such services are not available, DDD is obligated to "provide alternate service and, at the request of the applicant, shall also place the eligible person on a waiting list for the preferred service pending its availability." Ibid.; see N.J.A.C. 10:46C-1.4 (concerning establishment of waiting lists). As noted above, Milton has been placed on the priority waiting list, but has not yet reached the top of the list.

As we observed in J.D., supra, 329 N.J. Super. at 522, "DDD is faced with the daunting and unenviable task of attempting to provide for a large number of clients with inadequate funding for placement of all those in need of service." DDD has "establish[ed] standards and criteria" to address its inability to provide all required services due to its limited financial resources by adopting regulations. Ibid.

One of those regulations, N.J.A.C. 10:46B-3.3, provides for emergency services and placements "when the person is homeless or in imminent peril." In that event, DDD must find an emergency placement, even if the individual is not on a list or is not high enough on the list to warrant a placement absent the emergency. See ibid. However, that placement need only meet the person's "basic needs." N.J.A.C. 10:46B-3.3(c). An IHP must then be developed

to plan for an orderly transition to a more permanent placement, unless the [interdisciplinary team] confirms the placement will meet the needs of this individual as a long-term placement. If the [interdisciplinary team] determines that the placement is inappropriate, the individual shall be placed in the next appropriate Division funded vacancy that becomes available. If no Division funded vacancy becomes available beforehand, the individual shall be added when the Division receives an appropriation for placement.

[N.J.A.C. 10:46B-3.3(c)(8).]

As we recognized in U.C., supra, 423 N.J. Super. at 609-10, "funding is insufficient to place all developmentally disabled persons who are in need of a residential facility. Consequently, most residential placements are made from waiting lists established under the rules set forth in N.J.A.C. 10:46C-1.4," unless there is a basis for an emergency placement.

Jessica's argument is that, once DDD determined that Milton was in need of an emergency placement because he was going to be terminated from Jespy House, it was obligated to fund his placement there or to find another suitable placement, but not one that would merely meet his "basic needs." She relies in large part on N.J.S.A. 30:6D-9, which provides:

Every service for persons with developmental disabilities offered by any facility shall be designed to maximize the developmental potential of such persons and shall be provided in a humane manner in accordance with generally accepted standards for the delivery of such service and with full recognition and respect for the dignity, individuality and constitutional, civil and legal rights of each person receiving such service, and in a setting and manner which is least restrictive of each person's personal liberty.

She argues that, to the extent the regulations cited above conflict with the provisions of that statute, they are invalid. See Inre Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004) (if a regulation is plainly at odds with the governing statute, it will be set aside).

In New Jersey SPCA v. New Jersey Department of Agriculture, 196 N.J. 366, 385 (2008), the Supreme Court held that

in . . . review of an agency's interpre-tation of statutes within its scope of authority and its adoption of rules implementing its enabling statutes, [courts should] afford the agency great deference. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004). As we have explained: "[s]uch deference is appropriate because it recognizes that 'agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are "particularly well equipped to read . . . and to evaluate the factual and technical issues that . . . rulemaking would invite."'" Ibid. (quoting New Jersey State League of Municipalities v. [Dep't] of [Cmty.] Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 474 (1984))). For this reason, we begin with a presumption that an agency's regulations are both valid and reasonable and we place on the challenging party the burden of proving that the regulation violates the statute. N.J. State League of Muns., supra, 158 N.J. at 222.

Applying that standard, we reject Jessica's argument that the regulations are invalid.

Jessica's argument ignores the very real problem of insufficient funding. The Legislature recognized that problem when it provided, in N.J.S.A. 30:4-25.6, that DDD is to provide an eligible person "with appropriate functional service to the extent available." In addition, although N.J.S.A. 30:6D-27 requires the DDD director to "[p]rovide services for eligible persons with developmental disabilities by identifying appropriate programs to meet their needs," it provides an exception "if the most appropriate services are not immediately available, [in which case] the director may provide an eligible person with a developmental disability with alternate services." Finally, N.J.S.A. 30:4-25.6 specifically provides that,

[i]n the event that the functional service which has been specified as most appropriate from time to time is not immediately available, the commissioner shall provide alternate service and, at the request of the applicant, shall also place the eligible person on a waiting list for the preferred service pending its availability.

As we held in J.D., supra, 329 N.J. Super. at 522, "[b]y using the phrase 'to the extent available', the Legislature contemplated that fiscal constraints may delay provision of services."

Consequently, we reject Jessica's contention that DDD's regulatory scheme is invalid because it is inconsistent with DDD's statutory obligations.

D.

Our review of the record convinces us that Jessica has failed to demonstrate that DDD's final decision was arbitrary, capricious, or unreasonable, or that it lacked fair support in the record. DDD was willing to find an emergency placement and begin the process of finding a suitable long-term placement when it appeared that Milton would have to leave Jespy House. Even though the proposed emergent placement was far from ideal, DDD was not obligated to move Milton to the top of the priority list, either directly or by reimbursing Jessica's expenses, in preference to others who had been on the list for a longer period. However, that is essentially the relief sought in this appeal. Once it became clear that Milton would not be required to leave Jespy House, DDD appropriately determined that he was no longer eligible for an emergency placement.

Given the breadth of the need and the limitation of the available funding, DDD is called upon to make difficult decisions on a daily basis. We conclude, as we did in J.D., that DDD has established an appropriate methodology for doing so, one that is consistent with its statutory mandate and due process. Jessica's arguments to the contrary do not warrant further discussion in a written decision. R. 2:11-3(e)(1)(E).

While we appreciate Jessica's efforts to seek the best possible placement for her son and the financial burden inherent in her decision to bear the necessary expense on an interim basis until he becomes eligible for a suitable placement by DDD, "we also appreciate DDD's difficult mission in attempting to weigh and evaluate the competing demands for limited financial resources. After all, DDD must achieve the greatest good for the greatest number of its clients." J.D., supra, 329 N.J. Super. at 527 (citing P.F. v. N.J. Div. of Disabilities, 139 N.J. 522, 531 (1995)).

A

1 It can take "as long as ten years" to obtain a residential placement from the waiting list. In re Civil Commitment of U.C., 423 N.J. Super. 601, 610 n.5 (App. Div. 2012).