MARIE PHILLIPS v. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARIE PHILLIPS,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF HEALTH AND SENIOR

SERVICES,

Respondent-Respondent.

______________________________

May 31, 2016

Before Judges Reisner and Hoffman.

On appeal from the New Jersey Department of Health and Senior Services, Docket No. 14-0743.

Law Offices of Garces & Grabler, attorneys for appellant (Jared A. Geist, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kate Judd Calendar, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Marie Phillips appeals from the September 5, 2014 final decision of the Department of Health and Senior Services (the Department) denying her application to become a Certified Nurse Aide (CNA). We affirm.

I

We discern the following facts from the record. On July 7, 2014, Phillips applied to the Department for CNA certification. The application asked if she had been convicted of certain types of crimes or offenses. Despite having been convicted in October 2001 of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) which was included as one of the enumerated crimes Phillips answered "NO" to the question by way of a sworn affidavit. Notably, the application explicitly cautioned that "[c]riminal history information is PERMANENT unless expunged or sealed by judicial order." Moreover, the document instructed the applicant to answer "YES" if she had ever been convicted of any of the listed crimes or offenses, or else she would be disqualified from certification for at least two years. Nevertheless, Phillips signed the application, acknowledging that she had read and understood the document and also understood that a false answer would result in immediate disqualification from CNA certification.

On July 30, 2014, the Department sent Phillips a notice advising of her disqualification based upon the false information contained in her application. The notice also informed her that she had thirty days to contest the accuracy of the criminal history record. The notice further explained that she could request a hearing before an administrative law judge (ALJ) only to contest the accuracy of the criminal history listed, but she may not ask the ALJ to review rehabilitation material or make a determination of rehabilitation pursuant to N.J.S.A. 26:2H-84(d) and N.J.A.C. 8:43I-2.3(c).1 On August 23, 2014, Phillips submitted a letter to the Department wherein she admitted the reported criminal history, but requested more time and explained she had filed the paperwork to expunge her record. The Department denied this extension of time.

In order to become a CNA in New Jersey, each applicant must complete a sworn criminal background investigation. N.J.S.A. 26:2H-84(d), N.J.A.C. 8:43I-2.1(a). If the results of the criminal background check indicate that the applicant has been convicted of any crime or disorderly persons offense "[a]gainst the family, children or incompetents," then that applicant shall be disqualified. N.J.S.A. 26:2H-83(a)(1)(b); N.J.A.C. 8:43I-2.3(a)(1)(ii). Furthermore, "[a] person who submits a false sworn statement shall be disqualified from certification as a nurse aide . . . ." N.J.S.A. 26:2H-84(d); accord N.J.A.C. 8:43I-2.8(a).

II

Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We will not disturb an agency decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

We accept the factual findings of an administrative agency as long as they are supported by sufficient credible evidence, and we may not substitute our judgment for that of the agency. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Though we are not bound by an agency's determination of a purely legal question, we will give "substantial deference" to an agency's reasonable interpretation of statutes that the agency enforces. Richardson v. Bd. of Trs., Police & Fireman's Ret. Sys., 192 N.J. 189, 196 (2007).

On appeal, Phillips "acknowledges the accuracy of the criminal history," but asks that the proceedings be reversed or remanded as a result of multiple Department errors. Specifically, Phillips argues that she should have received a hearing to determine whether the incorrect information on her application was the result of a false oath as opposed to an innocent mistake. She also argues that the Department's refusal to consider rehabilitative factors violates her right to due process.

In its final agency decision, the Department provided Phillips with the following explanation for denying her requests for relief

Because you do not contest the accuracy of the criminal history revealed by the Department's investigation, you are not entitled to a hearing before an administrative law judge. See N.J.A.C. 8:43I-2.3(c) ("A person shall be disqualified from certification if that person files a false sworn statement in the application . . . , and shall not be permitted to request a determination of rehabilitation . . . ."). Nor are you entitled to an extension of time with respect to denial of your application. Accordingly, your request is denied, and the Department's denial of your application to become a Certified Nurse Aide is affirmed.

We further note that the Department acknowledged that, pursuant to N.J.A.C. 8:43I-2.8(b), Phillips will become eligible to reapply for CNA certification on July 30, 2016.

It is clear from the evidence that Phillips pled guilty to endangering the welfare of a child in Essex County Superior Court in October 2001. Moreover, on her notarized criminal background investigation application dated July 7, 2014, she swore that she had never been convicted of any disqualifying offenses or crimes, including those "[a]gainst the family, children or incompetents." In addition, Phillips acknowledged the guilty plea in her August 23, 2014 letter to the Department.

Accordingly, the record clearly supports the determination that Phillips was properly disqualified from CNA certification in the State of New Jersey, because of her conviction for endangering the welfare of a child, and because she filed a false criminal background investigation application. Her arguments for reversal or remand clearly lack merit. Phillips failed to make any showing that the decision under review is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.

Affirmed.

1 Although the Department references N.J.A.C. 8:41I-2.3(c), based on the given context of the notice, we discern that it intended to reference N.J.A.C. 8:43I-2.3(c).