IN THE MATTER OF M.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4136-11T1

IN THE MATTER OF

M.J.

______________________

December 13, 2012

 

Argued: November 15, 2012 - Decided:

 

Before Judges Axelrad, Sapp-Peterson and Haas.

 

On appeal from the New Jersey Department of Human Services, Division of Developmental Disabilities.

 

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

 

Gerard Hughes, Deputy Attorney General, argued the cause for respondent New Jersey Department of Human Services (Jeffrey S. Chiesa, Attorney General, attorney; Michelle Miller, Assistant Attorney General, of counsel; Mr. Hughes, on the brief).

PER CURIAM

B.J. and G.J., the parents of M.J., a developmentally disabled adult, appeal from the final decision of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD) holding that M.J. is not entitled to a contested case hearing or placement on an emergency basis. Appellants also seek compensation for the DDD's failure to provide day services, reimbursement for their expense of placing him in a private placement facility, and attorneys' fees and costs of litigation. We affirm.

I.

M.J. is a thirty-two-year-old developmentally disabled man diagnosed with cerebral palsy who suffers from right hemiparesis, static encephalopathy, seizure disorder, generalized anxiety disorder, and learning disabilities. Because of his disabilities, M.J. was determined eligible for DDD services in September 1997. The approval letter also stated that "[M.J]'s name is being added to the waiting list for an alternate living arrangement, with placement to take place sometime in the future," with the caveat that "the provision of all services is contingent upon the availability of resources."

M.J. received special education and related services until his educational entitlement ended on June 30, 2001, at which time he "aged out" at twenty-one years of age. He earned an associates degree at Middlesex Community College and has been employed, including at the time of the DDD's final decision.

M.J. lived at home with his father, B.J., and mother, G.J., until May 2007. G.J. is the sole wage earner for the family. B.J. is permanently disabled and unable to work. B.J. certified that he suffers from sleep apnea, high blood pressure, and depression, and these conditions are exacerbated by the stress caused by caring for M.J. B.J. also certified that he was "more disorganized and more forgetful and essentially unable" to adequately care for his son while his wife was at work.

On August 28, 2006, G.J. advised M.J.'s case manager, Beth Malone, that they had identified JESPY House,1 a private agency which operates supervised apartments for individuals with developmental disabilities, as a possible placement for M.J. and sought the DDD's assistance. Malone's progress report of that date reflects the phone conversation, noting M.J. was working part-time at Sam's club, "Mom looked into placement at JESPY House (listing its address and phone number)," M.J. was participating in the recreational programs there, and "Mom wants him placed at JESPY w/ DDD assistance." (emphasis added). The progress report further reflects Malone "explained placement procedure (He is on priority list) (and that Division will most likely not be able to assist w/ cost of placement at JESPY)."

In a letter dated October 12, 2006, the DDD confirmed it received appellants' request to place M.J. on its Alternative Living Arrangement Waiting List, effective September 3, 2005. The letter stated that appellants' "preference was honored to place [M.J.] in the priority category due to a determination of significant risk and the willingness to accept the preferred service if it were offered."

On May 24, 2007, G.J. informed Malone that they had placed M.J. at JESPY House on May l4. Her progress report reflects that "Family would like DDD to assist w/ cost of placement," and she "explained that RLC, [Real Life Choices, which allows individuals to self-direct their services,] may be the only available option to them & it would only offer supports, not cover residential costs." Malone further reported that G.J. "was interested in any assistance they can get[,]" to which she responded, that M.J. was "on the primary waiting list but his name may not be reached for some time." (emphasis added).

By letter of August 6, 2007, through counsel, appellants asked the DDD to consider M.J. for emergency placement. The letter advised that about a year ago, appellants came to the conclusion they could no longer care for their son at home and contacted the DDD for residential assistance, explaining they were contemplating placing him at JESPY House. He referenced the case manager's letter. He also stated she

promised to look into funding for residential services, including JESPY House, but did not get back to the family. The [family] did not speak to the case manager again until May 2007 when they called to tell her they were placing [M.J.] at JESPY House. She still had not investigated residential funding but again promised to do so. To date, she has not responded to the family, nor did she ever explain to them the possibility of placement on an emergency basis.

 

The letter further advised that B.J.'s health was deteriorating and G.J. could no longer work and care for M.J. at the same time. Appellants' counsel faxed a copy of the letter "as a follow-up emergency placement request" on January 14, 2008. Appellants' counsel sent another follow-up letter on July 8, 2008.

By letter of April 16, 2009, they appealed "the denial of emergency status and appropriate residential services." Appellants alleged the DDD's actions and failure to provide M.J. with appropriate residential services violated the Developmental Disabilities Rights Act, N.J.S.A. 30:6D-1 to -12, and related state and federal law. Appellants requested a hearing pursuant to N.J.A.C. 10:48, continued placement at JESPY House, and other appropriate relief, including reimbursement of attorneys' fees and costs.

By letter of July 30, 2009, the DDD advised it determined the appeal to be a non-contested matter. However, an informal conference would be scheduled for appellants to present new or additional information to support their position.

The conference took place on September 23, 2009. It was attended by appellants and their attorney, Herbert D. Hinkle; Malone; and the DDD's County Administrator, Marge Briegal. Stephen DeLuca, the DDD's Regional Administrative Practice Officer, chaired the conference.

By letter of December 8, 2009 to the DDD's Assistant Commissioner, appellants' counsel asserted due process of law violations in the agency perfunctorily deeming the matter non-contested and in failing to issue its informal conference report within twenty working-days as required by N.J.A.C. 10:48-4.1(a)(3). Appellants' counsel sent a follow-up letter on March 29, 2010, but again received no response.

On December 6, 2010, appellants and eight other families filed a complaint for declaratory and injunctive relief in the Chancery Division, Mercer County, seeking: (1) a declaratory judgment with respect to the pending appeals; (2) an injunction requiring the DDD to transmit appellants' appeals to the Office of Administrative Law (OAL) for a contested case hearing; and (3) other appropriate relief, including attorneys' fees and costs. On February 22, 2011, the Chancery Division transferred the case to the Appellate Division. R. 2:2-3(a)(2).

Appellants filed a motion for summary disposition, which we denied by order of September 6, 2011. The DDD filed a motion for remand to issue a final decision addressing the merits of the appeal, which we granted by order of December 8, 2011.

The DDD released the informal conference report on August 26, 2011. DeLuca summarized both parties' positions and ultimately denied appellants' request for emergency residential services, but did recommend that "immediate consideration be given to [M.J]'s eligibility for day program services either through traditional day services or by self direction."

DeLuca explained that pursuant to N.J.A.C. 10:46B-3.3(a), "[a]n emergency need for services or placement shall be deemed established when the person is homeless or in imminent peril, as defined in this chapter." He stated that "[w]hile imminent peril might have existed prior to the private placement for [M.J.] into JESPY House, this was never assessed by the Regional Administrator pursuant to N.J.A.C. 10:46B-3.3(b) to determine whether an emergency might have existed prior to August of 2007." Accordingly, the "only potential emergent need for placement would have occurred if the family could not continue to provide for the private funding of [M.J]'s placement and a date certain where he would become homeless was established." The report also noted that a request for emergency placement was not made until August 2007.

DeLuca further explained that the DDD did not contest that M.J. was assigned a Priority Waiting List date not simply because his youngest parent turned fifty-five years of age. See N.J.A.C. 10:46C-1.4.2 Furthermore, while some of the conditions listed in N.J.A.C. 10:46C-1.4(d) might have required evaluation by the DDD to determine if there were a need for emergency placement, the case manager "did not chart that there was any request for this and it did not get communicated until August of 2007 that an emergency might have existed."

Appellants filed an administrative appeal, urging that "self-directed day services should have been provided at a minimum starting in 2005," and "the matter should be deemed to be an emergency." They further contended it was unconscionable that it took the DDD four years to reach this point and "the family should not be made to bear the brunt of the cost of services during this period."

By letter of September 9, 2011, the DDD offered an administrative paper review pursuant to N.J.A.C. 10:48-4.3. On November 16, 2011, appellants' counsel received a copy of the agency's file on M.J. Appellants submitted their brief on December 14, 2011. In their accompanying certification dated December 7, 20ll, they elaborated, in part:

6. Despite our efforts to involve DDD in [M.J.'s] transition from educational services to adult services, [M.J.] was never provided with day services nor was he ever placed on a waiting list for such services.

 

7. On or about August 2006, we came to the conclusion that we could no longer care for [M.J.] at home. We looked at a number of possible placements and decided that JESPY House best met [M.J.'s] needs. We contacted the [DDD] for residential assistance, explaining that we were contemplating placing [M.J.] at JESPY House. [Reference to Malone's attached Progress Report].

 

. . . .

 

11. The DDD case manager promised to look into funding for residential services, including JESPY House, yet never followed-up with [] us. The DDD case manager never indicated that the agency could or might provide assistance either in the form of an emergency placement or funding for day services.

 

12. In May 2007, we contacted [M.J.'s] case manager to notify her that we could not safely care for [M.J.] at home anymore and were placing [M.J.] at JESPY House. [Reference to Malone's attached Progress Report].

 

. . . .

 

16. JESPY House helped [M.J.] find a number of part time jobs. [M.J.] currently works part-time as a greeter at Walmart.

 

17. We have paid the shortfall between [M.J.'s] placement at JESPY House and his limited income and social security benefits.

 

. . . .

 

37. The situation is very frustrating. The process has dragged on for years. Since I placed [M.J.] at JESPY House, DDD has not provided him with any services. We reached out to DDD over five years ago seeking whatever assistance DDD could offer due to the critical situation we were in. DDD never explained the process for an emergency placement nor offered us any assistance despite our repeated pleas to DDD for assistance. DDD never even offered [M.J.] day services despite the fact that DDD routinely provides other families with day services or money for the cost of such services. DDD's need to take more than five years to reach this point is unconscionable and we should not be made to bear the brunt of the cost of services DDD should have been providing.

 

On January, 19, 2012, Casey C. Woods, the DDD's Administrative Review Officer, issued a recommended decision upholding the agency's prior findings that M.J. did not meet the appropriate emergency placement criteria and his family's request for reimbursement and attorneys' fees should be denied. He found there were no material issues in dispute warranting a transfer of the case to the OAL because N.J.A.C. 10:46B-5.1(c) expressly provides that appeals regarding "recommendations of placement changes where no specific offers of placement have been made shall be considered non-contested," and the DDD did not offer an emergency placement.

He further found that because appellants never requested emergency services in 2006, "no in-home assessment took place to determine whether or not M.J.'s living situation at the time met standards of homelessness or imminent peril." Woods advised appellants "to continue to cooperate with Division staff to identify appropriate day services."

Appellants filed exceptions, arguing: (1) there are material factual disputes requiring a hearing; (2) it is unjust to allow the DDD to refuse to offer placement despite its obligation to do so and then rely on that fact to prevent appellants from receiving a hearing when they challenge that decision; (3) the DDD's failure to inform the family of its ability to request emergency residential services is not a policy decision but is a violation of its statutory obligation; (4) the DDD's administrative appeal procedure provided no opportunity for meaningful discovery, to present sworn oral testimony, to confront and cross examine agency staff, to present one's case before an impartial decision-maker and the decision is not based on evidence deduced at a hearing; (5) the DDD failed to advise the family of the procedure to request emergency residential services and it is unjust to allow the DDD to delay serving individuals in emergency situations and then benefit from its inaction by divesting itself of the responsibility to provide services; and (6) the DDD has failed to offer M.J. day services continuously since July 1, 2001.

On March 9, 2012, Dawn Apgar, the DDD's Acting Assistant Commissioner (AAC), issued a final decision finding the DDD's "determination not to assume funding for M.J.'s placement at JESPY was proper," the DDD "did not arbitrarily and capriciously deny M.J. day services," and the "matter need not be transmitted" to the OAL. Accordingly, she denied appellants' request for reimbursement, prospective funding for M.J.'s placement at JESPY, and attorneys' fees.

She explained the record indicates appellants did not make a request for emergency services until their August 6, 2007 letter. She noted the inconsistency in appellants' position, as in their written arguments they stated, "The request for emergency placement was first made in August 2006[,]" when M.J.'s mother first requested the DDD fund a placement for him at JESPY House. However, in their exceptions, in reference to the August 2006 conversation, they stated, "There was no discussion of emergency residential services," and they took the position that the case manager "failed to advise the family of their option to request emergency residential services."

AAC Apgar found the case manager's notations reflected what the family was seeking from the DDD in August 2006 was "funding toward a placement at JESPY," and contained "no indication that the family was in need of or requested emergency services at that time." She concluded the case manager "appropriately informed the family that M.J. was not reachable on the priority waiting list" and had no further obligation at that time. AAC Apgar further determined there is "no affirmative duty that [the DDD] staff advise a family about the possibility of emergency services under these circumstances, where the family is seeking funding for a residential placement of its choice."

AAC Apgar noted that when appellants made the formal request for emergency services in August 2007, M.J. was residing at JESPY House. As it was undisputed M.J. was then in no danger of becoming homeless or in imminent peril, see N.J.A.C. 10:46B-3.3(a), an emergency did not exist. Nevertheless, the remedy for an emergency would have been "emergency services designed to meet M.J.'s basic needs for food, shelter and personal safety or an interim placement in a vacancy funded by the DDD, neither of which encompassed placement at JESPY House." AAC Apgar emphasized that to allow M.J. to receive DDD "funding toward his placement of choice would be unjust to the many individuals who are currently on the waiting list." See N.J.A.C. 10:46C (setting forth the Waiting List Procedures).

With regard to the DDD's obligation to provide M.J. with "appropriate functional services," N.J.S.A. 30:4-25.6, AAC Apgar found the following with respect to appellants' claim for day services:

The file indicates that [appellants] did not request day services for [M.J.] until after this appeal began. [Appellants] do not allege that they ever requested day services from the Division and that the Division denied such a request. The file does indicate that M.J. has been engaged in various employment and volunteer opportunities since his educational entitlement ended. Thus, M.J. likely did not have a need for day services, and this explains why [appellants] never requested them. His mother twice completed a document expressing a preference for employment for M.J. [Appellants] assert in their exceptions that they requested whatever assistance the Division could provide. It is a misinterpretation of the case manager's notations to conclude that this included day services. The family was unequivocally seeking funding for the placement at JESPY.

 

[(Emphasis added).]

 

She found there was no legal basis to require the DDD to offer day services to an individual who did not request them and showed no need for them. Accordingly, she concluded the DDD did not behave arbitrarily or capriciously. Nevertheless, the decision noted that the DDD was presently preparing a self-directed day services budget for M.J. in response to appellants' request for day services made during the course of the appeal.3

AAC Apgar further found the appeal was a non-contested matter that did not warrant transfer to the OAL for three reasons: (1) it does not involve an appeal of determinations of ineligibility for services or of specific offers of non-waiver funded placements under the agency's appeal procedure regulation, N.J.A.C. 10:48-22; (2) there are no disputes of material adjudicative facts and the only issue is whether the DDD applied its statutory and regulatory responsibilities to the facts; and (3) there is no constitutional requirement for a trial-type hearing. This appeal ensued.

Appellants renew the following arguments on appeal:

POINT I

THIS APPEAL IS A CONTESTED CASE THAT MUST BE TRANSMITTED TO THE OFFICE OF ADMINISTRATIVE LAW FOR A HEARING.

 

A. APPELLANTS HAVE A RIGHT TO A CONTESTED HEARING PURSUANT TO N.J.A.C. 10:46B-5.1.

 

B. APPELLANTS ARE ENTITLED TO A TRIAL- TYPE HEARING IN LIGHT OF THE MATERIAL FACTS IN DISPUTE.

 

C. APPELLANTS HAVE A CONSTITUTIONAL RIGHT TO A CONTESTED CASE HEARING.

 

POINT II

THE DDD'S REFUSAL TO PROVIDE M.J. A RESIDENTIAL PLACEMENT FROM THE DDD ON AN EMERGENCY BASIS IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.

 

POINT III

THE DDD'S FAILURE TO PROVIDE M.J. WITH DAY SERVICES FROM 2 001 TO 2012 IS ARBITRARY AND CAPRICIOUS AND VIOLATES M.J.'S RIGHT TO EQUAL PROTECTION UNDER THE FEDERAL AND NEW JERSEY CONSTITUTIONS.

 

POINT IV

THE DDD IS REQUIRED TO PROVIDE RETROACTIVE ASSISTANCE AND TO FUND M.J.'S PLACEMENT AT JESPY HOUSE PROSPECTIVELY.

 

POINT V

APPELLANTS ARE ENTITLED TO REIMBURSEMENT FOR ATTORNEYS' FEES AND COSTS OF LITIGATION.

 

Based on our review of the record and applicable law, we are not persuaded by these arguments and affirm.

II.

We begin with an overview of our standard of review of administrative agency determinations. Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We "may reverse only if we conclude that the decision of the administrative agency is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000) (citations omitted).

"The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff d, 107 N.J. 355 (1987).

Administrative regulations are subject to the same rules of construction as statutes. Essex Cnty. Welfare Bd. v. Klein, 149 N.J. Super. 241, 247 (App. Div. 1977). A regulation should be "construed in accordance with the plain meaning of its language . . . and in a manner that makes sense when read in the context of the entire regulation." Medford Convalescent & Nursing Ctr. v. Div. of Med. Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985) (internal citations omitted). In interpreting a regulation, a reviewing court should give deference to the views of the administrative agency that implements the determinations. Barone, supra, 210 N.J. Super. at 285.

A. Entitlement to a Hearing

Appellants contend this matter is a placement appeal challenging the DDD's refusal to provide an emergency placement, and thus they have a right to a contested case hearing pursuant to N.J.A.C. 10:46B-5.1. Specifically, they urge that it would be unjust to allow the DDD to refuse to offer placement despite its obligation to do so and then rely on that fact to prevent them from receiving a hearing when they challenge that decision. We are not persuaded by this argument.

According to N.J.A.C. 10:46B-5.1(a), "[p]lacement decisions may be appealed in accordance with N.J.A.C. 10:48." N.J.A.C. 10:46B-5.1(b) provides that "[s]pecific offers of placement shall be considered contested cases if appealed." Placement is defined as "the out-of-home living arrangement, other than for respite, provided by the Division." N.J.A.C. 10:48-1.5. A contested matter is:

an adversarial 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.

 

[Ibid.]

 

Pursuant to N.J.A.C. 10:48-3.1(a), "[a]ppeals of non-waiver services that are funded only by State funds and for which there are no statutory or regulatory rights of appeal shall be considered non-contested." Furthermore, N.J.A.C. 10:48-3.1(b) states that "[i]f the matter is determined to be non-contested, an informal conference, as described at N.J.A.C. 10:48-4, shall be offered to resolve the matter."

The DDD never made a specific offer to place M.J. anywhere. Instead, appellants asked the DDD to assist in funding M.J.'s placement at JESPY House. In response, the case manager explained that M.J. was on the priority waiting list for placement, but his name may not be reached for some time. Appellants then made the decision to privately place M.J. at JESPY House. Three months later their attorney requested an emergency placement. Appellants did not appeal a "specific offer of placement," N.J.A.C. 10:46B-5.1(b), but rather whether M.J. was entitled to an emergency placement. In its present posture, we do not consider this dispute to be a challenge to a placement requiring transmittal to the OAL as a contested case. See J.E. ex rel G.E. v. Dep't of Human Servs., 131 N.J. 552, 568-71 (1993).

Hearings are required for appeals of offers of placement because "expert witnesses would be expected to testify concerning the types of services best suited to the client's unique needs" and "witnesses would be likely to address the factors that determine which placement would best achieve the person's habilitative goals, and the level of restriction on the client's liberty that is dictated by the level of handicap." J.E, supra, 131 N.J. at 566. In contrast, an appeal regarding eligibility for an emergency placement involves only the issue of whether the individual is homeless or in imminent peril, see N.J.A.C. 10:46B-1.3, which warrants a hearing only if there are disputed material facts.

We disagree with appellants that there are material facts in dispute as to whether M.J.'s circumstances warranted an emergency placement and whether the DDD failed to provide day services.

"[N]ot every factual dispute need be referred to [the] OAL as a contested case." J.D., supra, 329 N.J. Super. at 525. Entitlement to a trial-type hearing in administrative proceedings "is generally limited to the situation where adjudicatory facts -- that is, facts pertaining to a particular party -- are in issue." High Horizons Dev. Co. v. N.J. Dep't of Transp., 120 N.J. 40, 49 (1990) (internal quotation marks and citations omitted). Adjudicative facts "usually answer the question of who did what, where, when, how, why, with what motive." Ibid. Furthermore, "[i]t is the presence of disputed adjudicative facts, not the vital interests at stake, that requires the protection of formal trial procedure." J.D., supra, 329 N.J. Super. at 525 (citing High Horizons Dev. Co., supra, 120 N.J. at 53).

We have reiterated that the "mere existence of disputed facts is not conclusive" and that an "agency must grant a plenary hearing only if material disputed adjudicative facts exist." J.D., supra, 329 N.J. Super. at 525 (citing Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, sub. nom. Tiger Inn v. Frank, 498 U.S. 1073, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991)). We are satisfied that bald allegations or naked conclusions such as those asserted by appellants are insufficient to require an agency to transmit the matter to the OAL as a contested case.

Appellants primarily rely on a March 27, 2008 confidential e-mail from Malone to DeLuca, in response to a request for an update on M.J., in which she referenced appellants' attorney's letter requesting emergency placement. The case manager described her conversation with the family as reflected in her notes, including:

I told the family if they placed [M.J.] at JESPY on their own, DDD would most likely not be able to assist with residential funding. The family did not seem as interested in emergency placement as they were interested in placing [M.J.] at JESPY house with DDD assistance. Since [M.J.] was placed by his family at JESPY House in May of 2007, I'm assuming they don't want another placement but assistance with [M.J.]'s funding at Jespy.

 

Appellants contend this e-mail raises a debatable issue that when G.J. first contacted Malone in August 2006 about JESPY House, the case manager failed to advise the family of their option to request emergency residential services, failed to assess the situation, and failed to discuss the issue of day services with them. Appellants, however, cite no legal basis requiring the DDD staff to advise a family about the possibility of emergency services when the family is seeking funding for a residential placement of its choice. Moreover, appellants concede they never requested emergency services during this phone call.

Appellants also did not request day services in August 2006. Merely because they made efforts to involve the DDD in M.J.'s transition from educational services to adult services does not raise a debatable issue as to whether the family requested day services. See N.J.S.A. 30:4-25.6 (stating that "[t]he commissioner shall, upon proper application for admission, forthwith admit the eligible person with a developmental disability, and provide him with appropriate functional service to the extent available." (emphasis added)).

In May 2007, G.J. advised Malone of M.J.'s private placement at JESPY and simply expressed that she was "interested in any assistance she could receive." Their attorney's letter sent three months later made no mention of day services. Nor did their attorney's April 16, 2009 letter appealing the denial of emergency status and appropriate residential services reference day services. Only at the informal conference was there a request for an evaluation of M.J.'s vocational support needs and, in response, DeLuca recommended that immediate consideration be given to M.J.'s eligibility for day services. As a result, commencing May 1, 2012, the DDD began paying $1177.08 per month ($14,125 per year) to JESPY House towards these services.

We also reject appellants' arguments that they have a constitutional right to a contested case hearing in this matter. We are satisfied the administrative appeal procedure offered by the DDD is adequate to protect M.J.'s interest. See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (holding that the risk of erroneous deprivation of that interest through the agency procedures used, and the probable value of additional or substitute procedural safeguards is one of the factors considered in assessing whether a hearing is constitutionally required).

The DDD afforded appellants adequate review of their claims. The decisions from the informal conference, appeal, and final agency decision were all issued by different administrators. Appellants were permitted to present new and additional information to support their position at the informal conference, written arguments for the appeal, and exceptions to the recommended decision for the final agency decision. The informal conference report even recommended that "immediate consideration be given to his eligibility for day program services." While appellants may not like the decisions reached by the DDD, or how long it took to issue its report, they cannot argue the procedures were unjust.

B. Emergency Placement

Appellants next argue the DDD's refusal to provide M.J. an emergency residential placement is not supported by substantial credible evidence in the record. They urge that M.J.'s situation constituted an emergency because of the significant risk to his and their health, safety, and welfare. They also contend they are being penalized for "resorting to self-help." We disagree.

Pursuant to N.J.A.C. 10:46B-3.3(a), "[a]n emergency need for services or placement shall be deemed established when the person is homeless or in imminent peril, as defined in this chapter." "Homeless" is defined as "the person has no place to live or the person's living arrangement will end on a date certain within 30 days and he or she has no other living arrangements after that date." N.J.A.C. 10:46B-1.3. "Imminent peril" is:

a situation which could reasonably be expected to cause serious risk to the health, safety or welfare of the individual receiving services or another person in the current living arrangement. Imminent peril does not exist if the Division can put supports into the living arrangement which eliminate the serious risk to the individual.

[Ibid.]

We have "recognize[d] that [the Division] 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 services." J.D., supra, 329 N.J. Super. at 522. (footnote omitted). Consequently, the DDD has a waiting list procedure. Ibid.

J.D. was an adult with severe mental and developmental disabilities who was placed by the DDD on a waiting list for a skill development home. Id. at 518. In the interim, his mother placed him in a residential program at her expense. Id. at 518-19. Several years later, she contacted the DDD and advised she could no longer afford the program and requested financial assistance. Id. at 519. Like appellants here, J.D. alleged that if he resided at home, his parents could not care for him. Id. at 520.

We affirmed the DDD's determination that J.D. was not entitled to an emergency placement, noting he was "not in a situation which could reasonably be expected to cause serious risk to his health, safety or welfare in his current living arrangement"; to the contrary, his mother never expressed any concern or dissatisfaction with his residential placement. Id. at 523. Moreover, there was no contention that J.D.'s living arrangements would end on a date certain within thirty days and he had no other living arrangements after that date. Ibid. We thus concluded he was not homeless or in imminent peril and was therefore not entitled to an emergency placement pursuant to N.J.S.A. 10:46B-3.3(a). Ibid.

We also rejected J.D.'s argument that the DDD was required to provide alternate services to him. Ibid. We noted that "N.J.S.A. 30:4-25.6 requires DDD to provide alternate service when the most appropriate service is not immediately available." Ibid. J.D.'s family was pleased with the arrangements at his current placement and never requested alternate services. Id. at 523-24.

Similarly, M.J. was already privately placed at JESPY House when his attorney requested emergency placement in August 2007, and he has not alleged that he is in any danger at JESPY House or he will be discharged at a date certain. Even, for the sake of argument, if we construe M.J.'s mother's phone call to the case manager in August 2006 as a request for emergency placement, the record reflects that his parents were having difficulty caring for him at that time but it does not demonstrate that M.J. was in "imminent peril." Moreover, G.J. clearly indicated she wanted M.J. placed at JESPY House, so that was her primary objective and assistance from the DDD was sought to accomplish that objective.

As noted by Malone, she explained to G.J. that the DDD most likely would not be able to assist with the cost of placement there. Thus, if the DDD had effectuated an emergency placement, M.J.'s family would not have achieved its goal of placing him where he was familiar and in a program they felt best met his needs.

The present case is dissimilar to Rosen v. N.J. Div. of Developmental Disabilities, 256 N.J. Super. 629 (App. Div. 1992), certif. denied, 133 N.J. 440 (1993). There, twenty-eight year old Stephanie, who was "profoundly retarded and quadriplegic" and had "the living skills of a totally dependent infant," was placed by her parents, at their expense, in a private residential facility for mentally disabled persons because they were unable to care for her due to their physical ailments and age. Id. at 631-33. Thereafter, they applied to the DDD for services at her current placement. Id. at 633. Eventually, the DDD deemed her eligible for its services but concluded she was a low priority for residential placement because she was well cared for in her current placement, and made a determination she should be placed in a group home. Ibid.

After numerous appeals through the administrative process, we noted our reluctance to "substitute our judgment for that of the administrative agency" but ultimately determined it was necessary to step in due to the egregious inaction of the DDD. Id. at 642. We held the record supported the finding the agency did not perform its statutory duties as it offered neither an appropriate placement nor alternative services. Ibid. We explained:

The initial recommendation of the intake team that Stephanie be placed in a group home, which was affirmed and reaffirmed as the case proceeded along its journey through the bureaucratic maze, was essentially meaningless. To our knowledge, no specific group home was ever identified as being able to meet the needs of the client. It was not enough for the DDD to conjure up some idealized, but non-existent, group facility which could provide appropriate care. The object was, and continues to be, to find a facility that can accommodate Stephanie's complex needs.

 

Nor were the DDD's subsequent placement recommendations adequate. Clearly, the IHP that was prepared pursuant to the Director's order did not satisfy the statutory requirement. As we noted earlier, it was entirely silent on the subject of placement. The addendum of January 2, 1991 was equally meaningless. It will be recalled that the addendum recommended an institutional placement at an unidentified developmental center. The addendum was devoid of any information with respect to where and when the placement would be made. Finally, the Director's letter of February 20, 1991 in which he suggested that Stephanie be placed in an unnamed "intermediate care facility" added nothing to what the Rosens already knew. Again, no specific institution was recommended or suggested.

 

After this appeal was filed, the Director notified the Rosens that Stephanie would be placed in the Vineland facility within 180 days. As we pointed out, however, this institution is a 1200 bed facility located on two separate campuses. No specific program or placement within the institution was recommended. In any event, that placement never materialized.

 

[Id. at 642.]

 

C. Day Services

As previously noted, we are not convinced appellants' request for "any assistance" was a "proper application" for day services under N.J.S.A. 30:4-25.6. We have already determined the DDD did not act arbitrarily and capriciously in that regard. We thus reject appellants' federal and state equal protection argument without the need for further discussion. R. 2:11-3(e)(1)(E). We note, as pointed out by AAC Apgar in her decision, M.J.'s mother "twice completed a document expressing a preference for employment for M.J." Thus, she had no hesitancy to ask for specific services.

 

 

D. Retroactive Assistance and Prospective

Funding at JESPY House

Appellants seek retroactive reimbursement for the cost of day services from July 1, 200l, the day after M.J. "aged out," to April 30, 2012. They also seek retroactive reimbursement for emergency placement costs from August 2006, when they contend they expressed they were in a dire situation, or alternatively from May 2007 to the present. They also request that the DDD be directed to fund M.J. at the JESPY House or at a suitable alternate placement. Appellants further urge that we use the current day service budget and residential placement costs to determine the amount and do not consider the DDD's budget in assessing the amount. See Rosen, supra, 256 N.J. Super. at 645 (mandating retroactive financial reimbursement by the DDD in certain circumstances); T.R. v. N.J. Div. of Developmental Disabilities, 249 N.J. Super. 77 (App. Div. l99l) (same).

The issue of reimbursement is "not a mere question of discretion." S.I. v. N.J. Div. of Developmental Disabilities, 265 N.J. Super. 251, 262 (App. Div. 1993). We expressly limited T.R. and Rosen to those circumstances where the DDD was so "manifestly mistaken" or the placement was so "arbitrary" as to warrant such extraordinary relief. Id. at 262. We explained:

[W]e do not read either case to mean that retroactive financial reimbursement is automatically mandated if neither an optimal nor alternative service has been provided immediately upon the eligibility determination. In Rosen, where the disability was so palpably critical as to leave no room for question as to arbitrariness and unfairness of the Division's actions, we found an inherent equitable basis for ordering reimbursement, but recognized that Lascari [v. Board of Educ., 116 N.J. 30, 49-53 (1989)]'s order of reimbursement was grounded in authority provided by 20 U.S.C. Sec. 1415(e)(2). There is no comparable authority in Developmental Disability legislation.

 

Thus, the reimbursement issue is not a mere question of discretion. We view Rosen and T.R. as cases involving such manifestly mistaken or arbitrary placement classification as to have made unnecessary any further inquiry into the question of whether the Division's assessment of priority and provision of services was consistent with its budget and with its treatment of similarly situated waiting-list eligibles. Assuming that equitable considerations alone can afford authority for ordering retroactive reimbursement by a State agency, we think it clear that at most, such an order should be recognized as a rare equitable exception to the established rule which, even if issued, may be enforceable only within the Division's budgetary means.

 

[Id. at 262-63 (emphasis added).]

As we are not persuaded appellants have carried their burden of demonstrating the DDD was "manifestly mistaken" in this matter, the rare equitable remedy of financial reimbursement is not warranted. Moreover, we are not convinced the record supports an order directing the DDD to pay for M.J.'s residential services at this juncture beyond the contribution to day services at JESPY House the agency began paying on May 1, 2012.

E. Attorneys' Fees and Costs

Lastly, appellants argue they are entitled to reimbursement for attorneys' fees and costs of litigation because they have demonstrated viable federal procedural due process claims based, in part, on the DDD's failure to transmit the appeal to the OAL as a contested case. See U.S.C.A. 1983; Hospital Ctr. At Orange v. Guhl, 331 N.J. Super. 322, 338 (App. Div. 2000) (holding that "[a]ttorney's fees are recoverable in a 1983 action if the plaintiffs prevail on a state law issue arising from the same nucleus of common facts as the federal claims, provided the federal claims are substantial enough to support federal jurisdiction") (citations omitted).

We have concluded the DDD properly declined to transmit this appeal to the OAL. We further concluded the agency was neither arbitrary nor capricious in its handling of this matter. We do not countenance the failure of the DDD to respond to the August 6, 2007 letter from appellants' attorney requesting emergency placement, or to his follow-up letters. Nevertheless, appellants did wait almost two years to file an appeal. Thus, they had a "readily available remedy to prevent undue delay in the issuance of [a] decision[] in their [] appeal[.]" See Hospital Ctr. At Orange, supra, 331 N.J. Super. at 340 (holding that "[w]hen a state affords a full judicial mechanism with which to challenge the administrative decision[s] in question, the state provides adequate procedural due process, . . . whether or not [appellants] avail[] [themselves] of the provided appeal mechanism").

Affirmed.

1 Throughout the record, M.J.'s residential facility is inconsistently spelled as Jespy and JESPY House. We will consistently spell it correctly in this opinion as JESPY House.

2 Chapter 46C, Waiting List Procedures, was repealed and Chapter 46C Community Care Waiver Waiting List Procedures, was adopted as new rules by R. 2012 d.161, effective September 17, 2012.

3 At oral argument we were informed that as of May 1, 2012, M.J. began receiving day services while at JESPY House through the Directed Services' budget.