B.L.R. v. 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NOT FOR PUBLICATION WITHOUT THE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

B.L.R.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF HUMAN

SERVICES,

Respondent.

______________________________

December 10, 2014

Submitted September 30, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the New Jersey Department of Human Services.

B.L.R., appellant pro se.

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

PER CURIAM

Appellant, B.L.R., appeals from a decision of the Department of Human Services (DHS) denying him the opportunity to be assigned overtime work, or work in sensitive areas at the Special Treatment Unit (STU) to which he is involuntarily committed pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. His appeal is grounded in the denial of his due process rights. After reviewing the underlying facts and applicable law, we affirm. However, we once again hold, as we did previously in M.X.L v. New Jersey Department of Human Services, 379 N.J. Super. 37 (App. Div. 2005), that patients who are involuntarily committed are entitled to copies of DHS policies and procedures that govern their confinement.

As part of the STU treatment program, residents of the facility are allowed to perform certain types of work. Here, however, B.L.R. was notified on April 5, 2013, that he was ineligible for overtime work status and/or sensitive area status during the three month period from April 2013 through June 2013. He received this notification via a list of ineligible patients posted by DHS staff in the dayroom of his STU. B.L.R. claims he and other residents of the STU were never advised as to regulations or criteria which would make him ineligible for overtime. B.L.R. requested in a written form provided by DHS that he be advised as to why he was being denied the ability to work overtime. B.L.R. states that it appeared to him that the decision was based on favoritism, and not actual policy or regulations.

In response, his treatment providers advised B.L.R. in writing that he was not eligible for overtime status as a result of his failing a Substance Abuse Relapse Prevention module. Thereafter, B.L.R. filed an administrative appeal acknowledging he had failed to complete the treatment module, but claimed that he had been denied his due process rights because there was no written policy or regulation provided to him that advised him that his failure to comply with treatment protocols would result in his loss of overtime work privileges.

However, B.L.R. and other residents of the facility had been provided with a Residents Guide (Guide). The Guide, in a section entitled "Work Related Consequences," states

[w]ork programs are part of treatment and a privilege rather than a right. Paid work assignments are given as an incentive for general good behavior and full participation in treatment. As a privilege, a job may be suspended or withdrawn for non-compliance with other treatment programming, for work ethic infringements or for rule violations.

Clearly, the Guide informs patients that their privilege to work can be partially withdrawn as in this case. Moreover, the Guide allows for complete withdrawal for failure to complete treatment modules. The Guide is accurate in that the right to work within the facility is a privilege and part of the treatment program. In M.X.L., supra, we held "[i]ndeed, the loss of personal television, less access to facility organizations and gym, reduction in job opportunities and canteen privileges, and restrictions on visitation rights do not trigger procedural due process protections." 379 N.J. Super. 48-49 (quoting McKuney v. Lile, 536 U.S. 24, 48, 122, S. Ct. 2017, 2031, 153 L. Ed. 2d 47 (2002)).

B.L.R.'s claim, therefore, is meritless. Yet, DHS's written decision in response to the appeal he pursued within the agency causes us concern as it was contrary to our decision in M.X.L. that patients are entitled to copies of the agency policies and procedures. The original response to his inquiry when he questioned his loss of privileges was that it was a result of his failure to complete an education module. This was a correct response. However, in response to his administrative appeal within the agency, the written decision of DHS in its entirety was as follows: "[T]he rules are in our policy (vocational) and unfortuneately [sic] we do not give out copies of our policies that said, I'm sure these concerns can be addressed in your process gp [group] where the criteria is reviewed."

It is from this administrative decision that B.L.R. filed his appeal. It is troubling that the official written decision of the agency was contrary to our prior decision in M.X.L. Fortunately, as the agency conceded in its brief, the agency decision was incorrect, and B.L.R. actually had in his possession the relevant policies as set forth in the Guide.

We, therefore, affirm the decision to limit B.L.R.'s work privileges and find his rights were not violated.

Affirmed.