N.H - v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF FAMILY DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0216-09T1

N.H.,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF HUMAN

SERVICES, DIVISION OF FAMILY

DEVELOPMENT,1

Respondent-Respondent.

______________________________

March 9, 2011

Submitted December 8, 2010 - Decided

Before Judges Cuff and Sapp-Peterson.

On appeal from a Final Decision of the Department of Human Services, Division of Family Development, Docket No. S810878.

N.H., appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Rachana R. Munshi, Deputy Attorney General, on the brief).

PER CURIAM

N.H. appeals from the final administrative agency decision terminating his food stamp benefits for the period November 8, 2008 through January 2009 on the basis that he failed to cooperate with the recertification process despite notice and an opportunity to present the documentation necessary to accomplish the recertification. We affirm.

N.H. has been a participant in the federally-funded Food Stamp Program ("FSP" or "FS") through the Hudson County Department of Family Services (HCDFS), Division of Family Development (DFD). The FSP is administered locally through county welfare agencies in accordance with regulations promulgated by DFD. Among the regulations is the requirement that FSP participants periodically undergo recertification in order to insure continued eligibility to receive food stamp benefits. N.J.A.C. 10:87-2.12(b), -6.20, and -6.21. The recertification process includes completing a new application for food stamp benefits as well as a face-to-face interview with a qualified eligibility worker. N.J.A.C. 10:87-2.18(a) and (f)(1). Further, the recertification process requires that households receiving food stamp benefits must cooperate in verifying the requisite information necessary to complete a food stamp application or recertification. N.J.A.C. 10:87-2.14 to -2.17. In particular, N.J.A.C. 10:87-2.16 provides that a household "shall [] be determined ineligible if it refuses to cooperate in any subsequent review of its eligibility, including reviews generated by reported changes and applications for recertification."

In 2008, N.H.'s FSP benefits were reduced. He appealed the reduction and the matter was transferred to the Office of Administrative Law as a contested case. The dispute was ultimately settled and resulted in N.H. withdrawing his request for a hearing. As part of the settlement, N.H. agreed to provide HCDFS with his "prescriptions for the over[-]the[-] counter purchases in March [20]08," and HCDFS agreed to "reconsider whether those items [were] deductible." HCFDS also agreed to review, for eligibility purposes, the prescriptions for over-the-counter medications purchased in April and May 2008. For reasons not set forth in the record, the settlement was not enforced by either party and the matter proceeded for a formal hearing before an Administrative Law Judge (ALJ).

The ALJ issued an initial decision, concluding that N.H. had failed to cooperate with HCDFS, and therefore the termination of his FSP benefits was proper. Specifically, the ALJ found that N.H. refused to attend a recertification meeting scheduled for October 6, 2008; some of the medication purchases that N.H. sought to have deducted from his income for purposes of calculating his continued eligibility for food stamps were not supported by prescriptions; and that HCDFS had not deducted the properly documented over-the-counter purchases in calculating N.H.'s benefits.

The ALJ directed that HCDFS "review all of [N.H.]'s recurring over-the-counter medications from the date of his re[]certification effective on March 1, 2008 to the present and recalculate the costs of such medications in his FS allowance." Acknowledging that some of N.H.'s prescription submissions "were not easily discernable[,]" the ALJ also ordered that N.H. supply the agency "with a typed or printed statement provided by his pharmacist describing each over-the-counter medication which he claimed should have been considered for his FS benefits, the date prescribed, its cost and written proof that it was prescribed by his physician[.]" Additionally, the ALJ directed that in the event N.H. "refuse[d] to satisfy these requirements, no recalculation of his FS benefits [was] required." Finally, because N.H. submitted no corroborative support for his calculations, the ALJ rejected and dismissed N.H.'s challenge to the "general correctness of the agency's calculation of his FS benefits." N.H. filed exceptions to the ALJ's initial determination. The Director of DFD adopted the ALJ's initial decision with comment:

With regard to the petitioner's non-receipt of [f]ood [s]tamps for November and December 2008 and January 2009, the agency determined that the petitioner did not cooperate since he was not available for his October 6, 2008 recertification which was scheduled to be held at his home. There is nothing in the record which indicates that the petitioner contacted the agency to have his appointment rescheduled. The petitioner's caseworker testified that the petitioner did not respond to the agency's follow-up letter concerning his missed October 2008 recertification.

The agency action concerning the petitioner's non-receipt of [f]ood [s]tamps from November 2008 through January 2009 is affirmed.

The matter concerning the reduction of the petitioner's [f]ood [s]tamps in March 2008 is a continuation of the matter heard under HPW Number 5270-08. During the previous hearing, a Stipulation of Settlement was reached by the parties involved. According to the terms of the settlement, the petitioner withdrew his fair hearing and agreed to submit his over-the-counter prescription expenses to the agency so that they could be used to calculate his March, April and May benefits. The record indicates that the petitioner submitted verification of the over-the-counter prescription drugs he purchased from March through May 2008[,] but the information written on the prescription pads by his doctor and/or pharmacist was not easily discernible. The ALJ concluded, and I agree, that the petitioner must take further steps to facilitate the recalculation of his [f]ood [s]tamps before further action can be taken in accordance with N.J.A.C. 10:90-5.10(A)3i3.

This matter is remanded to the agency to afford the petitioner the opportunity to supply agency staff with the typed or printed statements provided by the doctor and/or pharmacist describing each over-the-counter medication which they claimed should have been considered when calculating his [f]ood [s]tamp benefits. The date each medication was prescribed, its cost and proof that it was prescribed by a doctor must be considered.

The present appeal followed.

On appeal, N.H., as he did before the agency, challenges the general correctness of the calculations of his FSP benefits and the finding that he did not cooperate with the recertification process. We reject these arguments and conclude that they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

We begin by noting that since this matter was submitted to us for resolution on our December 8, 2010 calendar, we have been advised, through correspondence from the deputy attorney general representing DFD, that HCDFS has agreed to "include over-the counter medications and purchases in the calculation of [N.H.]'s [f]ood [s]tamp benefits[.]" Consequently, N.H.'s claim that HCDFS failed to include those purchases in its calculations is moot, leaving for resolution whether his benefits were improperly terminated from November 2008 through January 2009 and the propriety of the dismissal of his challenge to the general calculation of his FSP benefits.

In our review of a final administrative agency determination, we accord deference to the agency's factual findings and will only intervene to set aside its determination where we conclude that the decision "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (citation and internal quotation marks omitted). The deference we accord to agency decision-making is especially appropriate where the agency's decision is informed by its subject matter expertise in the area delegated to it by the Legislature. See Close v. Kordulak, 44 N.J. 589, 599 (1965).

Here, the finding that N.H. failed to cooperate in the recertification process is amply supported by the record. There is no dispute that N.H. had notice of the scheduled recertification meeting, spoke with an HCDFS representative to schedule the meeting, and then did not respond when the representative appeared at his home on two different occasions on the scheduled date. In addition to leaving telephonic messages, the representative notified N.H. in writing the very next day, directing N.H. to contact the representative. The correspondence also advised N.H. that the consequence for not responding to the notice would be termination of his FSP benefits. N.H. did not follow up.

Regarding N.H.'s calculations, he presented no documentation to support his figures. Consequently, the Director properly rejected N.H.'s challenges to the general calculation of his benefits.

Affirmed.

1 Incorrectly pled as Hudson County Department of Family Services.