R.V. v. STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

R.V.,

Petitioner-Appellant,

v.

STATE OF NEW JERSEY,

DEPARTMENT OF HUMAN

SERVICES, DIVISION OF

FAMILY DEVELOPMENT,

Respondent-Respondent.

________________________________________________________________

January 14, 2014

 

Argued July 23, 2013 Decided

 

Before Judges Espinosa and Hoffman.

 

On appeal from the New Jersey Department of Human Services, Division of Family Development, Agency Ref. No. GA385448.

 

Matthew Weisberg argued the cause for appellant (South Jersey Legal Services, Inc., attorneys; Mr. Weisberg, Lee Ginsburg, Kenneth M. Goldman and Olga D. Pomar, on the briefs).

 

John Regina, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Regina, on the brief).

 

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Petitioner R.V. appeals from a final agency decision of the Department of Human Services, Division of Family Development (the Division or DHS/DFD), that denied his application for benefits under the Supportive Housing Assistance Program (SHAP). We affirm.

R.V. is fifty-four years old and disabled. He receives monthly benefits of $210 from the Work First New Jersey (WFNJ) program, N.J.S.A. 44:10-34 et seq., as administered by the Camden County Board of Social Services (CCBSS) under the supervision of the Division. N.J.A.C. 10:90-1.1 et seq.

In addition to the assistance provided by WFNJ, N.J.S.A. 44:10-51 authorizes "emergency assistance" (EA), which is provided "only to recipients of Work First New Jersey and persons receiving Supplemental Security Income . . . in emergent situations, as determined by the commissioner, for up to 12 cumulative months." N.J.S.A. 44:10-51(a). Emergency assistance is intended to provide "a supportive service to meet the emergent needs of WFNJ recipients" where circumstances, if not addressed, would "result in imminent or actual homelessness of the individual or family." N.J.A.C. 10:90-6.1(a). There are limitations to the period of time for which emergency assistance may be provided as well. See N.J.A.C. 10:90-6.4.

In October 2011, R.V. received notice from CCBSS that he had received eighteen months of EA. He was told to apply through SHAP for an extension of his Temporary Rental Assistance (TRA) benefits and to provide a Med-1 form to be completed by his doctor regarding his disability.

Established as a pilot program with an effective date of October 20, 2008, SHAP extended EA benefits to WFNJ recipients who met certain criteria. See 40 N.J.R. 6205(a) (Oct. 20, 2008) (codified, but later replaced at N.J.A.C. 10:90-6.9). For WFNJ recipients who qualified for TRA and had exhausted six months of their cumulative twelve-month lifetime limit on receipt of EA benefits in temporary housing, SHAP provided up to an additional twelve months of EA and up to two six-month extensions. Id. For WFNJ recipients "who are determined permanently disabled and are in imminent danger of homelessness," SHAP provided for up to thirty-six months of EA if one or more of the specified criteria were met. As applicable to R.V., SHAP regulations required evidence that he had applied for and was either pending approval or appealing a denial of SSI disability benefits, to be "supported by a WFNJ/MED-1 form substantiating at least 12 months of disability." Id.

R.V. submitted an application on October 17, 2011, accompanied by a MED-1 form from his doctor that stated he was disabled for a period of six months. On October 21, 2011, R.V. was notified by his housing specialist at CCBSS that he needed a MED-1 form stating he was disabled for twelve months and that he had to apply for Supplemental Security Income/Social Security Disability (SSI/SSD) benefits. He was told to contact the housing specialist by October 28, 2011.

On October 27, 2011, just ten days after R.V. made his application, the Division issued a directive to the county welfare agencies advising that the SHAP program expired on October 20, 2011 (DFD Instruction No. 11-10-06 or the directive). The directive stated, in part:

County and municipal agencies are advised that no new applications for SHAP are to be taken. . . .

 

Current SHAP recipients shall not be terminated unless there is evidence of non-compliance with their EA service plan or other WFNJ program requirements.

 

On October 31, 2011, CCBSS denied R.V.'s application for SHAP. The reasons provided for the denial were the lack of documentation of long-term medical or psychological problems, the lack of repeated inpatient hospital care, and the lack of any record that he had applied for SSI benefits or had an appeal pending from the denial of such an application.

On November 14, 2011, R.V. submitted a written request for a fair hearing, asking to continue receiving benefits until a hearing was held. Later that month, Edwin Soto, a social work supervisor, met with R.V. and informed him "his application would continue terminated." In or about early December 2012, Tywana Thornton, the Fair Hearing Liaison for CCBSS, also wrote she had "explained to [R.V.] that the SHAP Program has been discontinued," given him a copy of the directive, and explained he was not eligible for a fair hearing pursuant to the directive.

In January 2012, after repeated efforts to obtain satisfactory documentation from his physician, R.V. obtained a MED-1 form in which his physician certified R.V. was unable to work for the period from January 20, 2012, through January 20, 2013. R.V. submitted the form and a copy of his SSD application to CCBSS. His application was unsuccessful. Soto stated the following in his Fair Hearing Report, dated March 1, 2012,

The Camden County Board of Social Services has provided client with all housing under the current regulations. The client received 12 months of TRA then he received a hardship extension of 6 months. However he did not qualify for the [SHAP] Pilot program which per DFD Instruction No. 11-10-06 expired October 20, 2011.

 

After R.V.'s landlord obtained a judgment of possession and filed for a warrant of removal, R.V. requested an emergent administrative hearing, which was conducted before an administrative law judge (ALJ) in March 2012. The ALJ found that R.V. did not satisfy the requirements for the SHAP program until January 2012, more than two months after SHAP ended. She further rejected R.V.'s argument that the termination of SHAP by means of the directive violated the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 et seq., noting that the pilot program expired thirty-six months after its inception "by operation of law" pursuant to N.J.A.C. 10:90-6.9 (as it existed at the time) rather than as a result of the directive. R.V. appealed, and the Division adopted the decision of the ALJ.

This court granted R.V.'s motion for ad interim injunctive relief, directing the Department to pay EA and TRA benefits to R.V. pending the outcome of this appeal. As a result, R.V. has received the benefits he sought to extend in October 2011 since July 2012.

R.V. presents the following arguments in his appeal from the final decision of the Division:

POINT I

 

DHS/DFD ERRED IN FINDING THAT R.V. DID NOT QUALIFY FOR THE SUPPORTIVE HOUSING ASSISTANCE PROGRAM (SHAP).

 

A. The Purpose Of SHAP Is To Provide Extended Emergency Assistance Benefits To Permanently Disabled Work First New Jersey General Assistance Recipients to Prevent Their Homelessness

 

B. R.V. Qualified For SHAP When He Applied On October 17, 2011, Three Days Before The October 20, 2011 Date That DHS/DFD Claims SHAP Had Expired For New Applicants

 

POINT II

 

DHS/DFD ERRED AS A MATTER OF LAW IN RULING THAT NEW APPLICANTS COULD NOT APPLY FOR SHAP AS OF OCTOBER 20, 2011.

 

A. DHS/DFD Violated The NJ Administrative Procedures Act By Amending The SHAP Regulations Ending Applications For New Applicants Through Informal Internal Program Instruction Rather Than Formal Rulemaking Mandated By N.J.S.A. 52:14B-4.

 

B. DHS/DFD Erred As A Matter Of Law In Ruling That SHAP Expired By Operation Of Law On October 20, 2011, Pursuant To N.J.S.A. 44:10-53.

 

C. Even If SHAP Had Expired For New Applicants By Operation Of Law Pursuant To N.J.S.A. 44:10-53, The Proper Expiration Date Was Not Until March 1, 2012-Three Years From When DHS/DFD Began SHAP's Waiver of WFNJ Requirements

 

POINT III

 

DHS/DFD'S REPEAL OF SHAP AND ADOPTION OF HAP IN JULY 2012 DOES NOT MOOT R.V.'S APPEAL BECAUSE HE COULD BE UNFAIRLY DENIED HIS FULL HAP ALLOTMENT DUE TO DHS/DFD'S IMPROPER DENIAL OF HIS SHAP APPLICATION.

We find none of these arguments persuasive.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). This court may not reverse an agency's decision unless: (1) it is arbitrary, capricious, or unreasonable; (2) it violates express or implied legislative policies; (3) it offends the State or Federal Constitution; or (4) the findings on which it is based are not supported by substantial, credible evidence in the record. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). Strictly legal issues are reviewed without deference, but where an agency interprets its own enabling legislation, this court must accord substantial deference. See Pressler & Verniero, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2014); Mayflower Secs. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Pursuant to N.J.S.A. 44:10-53, the Commissioner of the Division is authorized to create pilot programs which, in his or her judgment, are "likely to assist in promoting the objectives of the Work First New Jersey program . . . ." For such experimental or pilot programs, "the commissioner may waive compliance with the requirements of the Work First New Jersey program to the extent the commissioner deems necessary to carry out the project and for a period of time not to exceed three years." Ibid. (Emphasis added.) Therefore, the authorized life for any pilot program approved by the Commissioner was limited to three years. For any program to extend beyond that time, the requirements of the WFNJ program had to be met.

SHAP was just such a pilot program, codified while in effect at N.J.A.C. 10:90-6.9. At the end of the three-year period during which the pilot program could be conducted without compliance with the WFNJ program requirements, the Commissioner elected to have the program expire, rather than modify SHAP to conform to WFNJ requirements. We therefore agree with the agency that SHAP expired in October 2011 and that there was no violation of the APA.

It is undisputed that, as of the time that SHAP expired and the directive was sent, R.V. was not a recipient in the SHAP program. He acknowledges that there are no regulations that authorize or preclude the supplementation of deficient SHAP applications that were submitted before the October 20, 2011 expiration date. Here, the Division decided the denial of EA SHAP was appropriate because R.V. "provided the requisite MED-1 form too long after the application for it to be considered as part of the application." Given the fact that the authority to conduct a pilot program not subject to WFNJ program requirements expired in October 2011, we are satisfied that the agency's decision was not arbitrary, capricious, or unreasonable.

Affirmed. The order dated July 12, 2012, which directed the Division to resume paying housing assistance to R.V. pending appeal is vacated.