IN THE MATTER OF P.A.

RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-5521-16T2



IN THE MATTER OF P.A.
________________________

                Submitted October 25, 2018 – Decided January 17, 2019

                Before Judges O'Connor and Whipple.

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

                William E. Anderson, appellant pro se.

                Gurbir S. Grewal, Attorney General, attorney for
                respondent New Jersey Department of Human
                Services (Melissa H. Raksa, Assistant Attorney
                General, of counsel; James A. McGhee, Deputy
                Attorney General, on the brief).

PER CURIAM

      P.A. is an adult client of the New Jersey Division of Developmental

Disabilities (Division). He has resided in a Division-funded residential facility

for a number of years. He appeals from the Division's July 11, 2017 final
agency decision, which adopted the recommended decision of an

administrative review officer.

      P.A. mounts three principal contentions. He challenges the Division's

authority to require him to contribute toward the cost of his care. He further

claims that, even if he is obligated to contribute, the Division's method of

calculating his contribution is erroneous. Finally, he claims the Division's

method of calculating the amount he must pay for a guardianship fee and a

burial trust fund is erroneous. After reviewing the record and applicable legal

principles, we affirm.

      In general, an adult client receiving Division-funded services is

responsible for all necessary costs of his care and maintenance, see  N.J.S.A.

30:4-24(6); N.J.A.C. 10:46D-2.1(f), but the Division in fact requires that a

client pay only a percentage share commensurate with his income. See

 N.J.S.A. 30:4-60a; N.J.A.C. 10:46D-2.2(c) and (d); N.J.A.C. 10:46D-3.1.

      P.A. receives unearned income in the form of Social Security benefits

(benefits). Consistent with N.J.A.C. 10:46D-3.1, the Division has required and

P.A. has contributed only a portion of his benefits to the Division to pay for

the cost of his care. N.J.A.C. 10:46D-3.1 provides a formula the Division is to




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use to calculate what an adult client who does not have dependents must

contribute; P.A. does not have any dependents.

      Specifically, N.J.A.C. 10:46D-3.1(b) mandates such an adult client

contribute seventy-five percent of his disposable monthly income toward the

cost of his care. Further, as much as six percent of his total gross annual

income may be used toward a guardianship fee. See N.J.A.C. 10:46D-3.1(f).

P.A.'s parents serve as his guardians. N.J.A.C. 10:46D-3.1(g) provides that an

individual may contribute as much as ten percent per month of his disposable

income toward a burial trust until the burial contract is paid in full.

      In September 2016, P.A. submitted an appeal letter to the Division

contesting the method used to determine his contribution to the cost of his

care. Unsatisfied with the Division's response, in November 2016, P.A.'s

guardians and Division representatives met to discuss the cost of P.A.'s care in

an informal conference. During the conference, the guardians also asserted the

Division incorrectly calculated P.A.'s contribution to his guardianship fee.

      The Division staff advised the guardians that, first, in accordance with

N.J.A.C. 10:46D-3.1(b), seventy-five percent of P.A.'s disposable monthly

income was being used toward the cost of his care. Second, consistent with

N.J.A.C. 10:46D-3.1(f), P.A. was permitted to use up to six percent of his total


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gross annual income for the provision of a private guardianship. In 2016,

P.A.'s total gross annual income was $15,564.

      To determine the specific contributions P.A. was required to pay

pursuant to N.J.A.C. 10:46D-3.1(b) and (f), the Division staff subtracted from

P.A.'s monthly gross income of $1297 a six percent guardianship fee of $77.82

($1297 x .06), as well as his monthly personal needs allowance of $40, leaving

P.A. a monthly disposable income of $1179.18. From the latter figure, the

Division determined P.A. owed $884.38 per month to the Division for his care

($1179.18 x 75%), and P.A. retained $412.62 per month for himself.

      During the conference, the guardians asserted the guardianship fee

should have been calculated after deducting from P.A.'s gross monthly income

his personal needs allowance and his contribution toward his care, which

would have resulted in him retaining $432.07 per month for himself. The

guardians also claimed the Division lacked any authority to require P.A. to

contribute to his care; it is not clear from the record what the guardians' basis

was for this claim. The guardians demanded P.A. be refunded for any

contributions he made for his care during the previous decade.

      Following the conference, P.A. requested he be permitted to contribute

to a burial trust fund, pursuant to N.J.A.C. 10:46D-3.1(g)(4). The Division


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approved, allowing P.A. to contribute up to ten percent of his disposable

monthly income to a burial trust fund. An irrevocable burial trust fund was

subsequently opened on his behalf. P.A. thereafter claimed the Division was

deducting too much from his income to fund this trust. Notwithstanding

N.J.A.C. 10:46D-3.1(g)(4) states a burial trust fund allowance is to be

deducted before the contribution to care amount is calculated and removed,

P.A. contended the burial trust fund allowance should have been calculated by

taking ten percent of P.A.'s disposable income after the amount he was to

contribute toward his care had been deducted.

      In December 2016, a Community Services Administrative Practice

Officer of the Division issued a report rejecting all of P.A.'s contentions. In

April 2017, a Division administrative review officer submitted a recommended

opinion, in which it found the Division correctly calculated P.A.'s

contributions to his care, guardianship fee, and burial trust fund, finding all

calculations adhered to applicable regulations. The recommended opinion was

adopted as a final agency decision by the assistant commissioner of the

Division of Developmental Disabilities. This appeal ensued.

      On appeal, P.A. contends  N.J.S.A. 30:4-60(b) precludes the Division

from requiring P.A. to contribute toward his care, because there was no "prior


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annual formula promulgated by the Department of the Treasury." He seeks the

return of all money he has paid toward his care. He also contends the

guardianship fee and the contribution to the burial trust fund must be

determined by calculating these costs "last."

      "Appellate courts have 'a limited role' in the review of [agency]

decisions." In re Stallworth,  208 N.J. 182, 194 (2011) (quoting Henry v.

Rahway State Prison,  81 N.J. 571, 579 (1980)). To reverse, an appellate court

must find that the agency decision was arbitrary, capricious, or unreasonable.

In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp.,  216 N.J.
 370, 385 (2013). A court may intervene where it is "clear that the agency

action is inconsistent with its mandate," or if the agency's decision is

unsupported by substantial evidence in the record. Ibid. (quoting In re

Petitions for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1,  117 N.J. 311, 325

(1989)).

       N.J.S.A. 30:4-60 provides in pertinent part:

            b. If the Department of Human Services determines
            that the person has a developmental disability and is
            eligible for functional services from the Division of
            Developmental Disabilities, the department, using a
            formula of financial ability to pay as promulgated
            annually by the Department of the Treasury, shall
            determine if the person with a developmental
            disability has sufficient income, assets, resources or

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             estate to pay for the person's maintenance as fixed by
             the department, or is able to make any payment
             towards the person's maintenance, or if the person's
             chargeable relatives or other persons chargeable by
             contract are able to pay the person's maintenance or
             make any payment toward the person's maintenance
             on the person's behalf.

             [(emphasis supplied).]

      P.A. asserts that, since 2010, in contravention of  N.J.S.A. 30:4-60(b), the

Department of Treasury has not promulgated a formula of financial ability to

pay. Therefore, P.A. reasons, because the Division has not had a formula to

determine how much an adult client must contribute toward his care, the

Division lacked authority to assess any costs against him, entitling him to a

refund of any contribution he has made toward his care. We disagree.

       N.J.S.A. 30:4-60a states the Department of Human Services shall adopt

regulations pursuant to the Administrative Procedure Act,  N.J.S.A. 52:14B-1

to -31, "concerning the . . . determination of patient liability to contribute to

the cost of care and maintenance pursuant to [N.J.S.A.] 30:4-60." In

accordance with  N.J.S.A. 30:4-60a, the Division adopted various regulations,

one of which establishes the formula to calculate an adult client's contribution

to his care, including the client's contribution toward his guardianship fee and

a burial trust fund. See N.J.A.C. 10:46D-3.1. In accordance with the authority


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this regulation provided to it, the Division properly assessed the subject costs

and contributions about which P.A. complains.

      We have considered P.A.'s claim the Division did not calculate these

costs and contributions in accordance with the regulatory formula, and have

determined his arguments are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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