Stanton, J.c.c. (temporarily assigned).
[159 NJSuper Page 168] Plaintiff Robert G. Guempel is the father of Linda J. Guempel, a 17-year-old mentally retarded child who has been a resident at the Hunterdon State School since 1969. Pursuant to N.J.S.A. 30:4-165.3 and related statutes it has been decided
in previous proceedings that plaintiff is a legally responsible relative who must contribute to the costs of Linda's care in residential services in accordance with his financial ability. Because he is a highly successful business executive earning in excess of $100,000 a year, plaintiff has previously been ordered to pay the full per capita cost of Linda's maintenance, which currently amounts to about $12,000 a year. Plaintiff does not dispute the factual accuracy of the determination that he is able to pay that cost without undue hardship. However, he claims that N.J. Const. (1947) Art. VIII, § IV, par. 1, the "thorough and efficient" education clause, prohibits the State and county from charging him for the cost of Linda's care at the Hunterdon State School. He makes a similar claim based upon federal statutes and regulations dealing with the funding of programs for the education and rehabilitation of the handicapped.
Although the present action is not a class action under R. 4:32, there are many parents and other relatives throughout the State who are presently being required to pay all or some portion of the cost of maintaining residents at some seven state institutions for the mentally retarded. The ultimate outcome of this case may well have a significant impact upon their financial rights and obligations.
The "thorough and efficient" education clause of the State Constitution reads as follows:
The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in the State between the ages of five and eighteen years. [ N.J. Const. (1947), Art. VIII, § IV, par. 1]
Implementing legislation has gone beyond the minimum requirements of the State Constitution by extending the benefits of free public schools to persons between the ages of 5 and 20. N.J.S.A. 18A:38-1 et seq. The Legislature has divided mentally retarded children into three broad categories for educational purposes in N.J.S.A. 18A:46-9, which reads as follows:
Each child classified pursuant to section 18A:46-8 as mentally retarded shall be similarly further identified, examined and classified into one of the following subcategories:
a. Educable mentally retarded children, who are those who may be expected to succeed with a minimum of supervision in homes and schools and community life and are characterized particularly by reasonable expectation that at maturity they will be capable of vocational and social independence in competitive environment;
b. Trainable mentally retarded children, who are so retarded that they cannot be classified as educable but are, notwithstanding, potentially capable of self-help, of communicating satisfactorily, of participating in groups, of directing their behavior so as not to be dangerous to themselves or others and of achieving with training some degree of personal independence and social and economic usefulness within sheltered environments;
c. Children eligible for day training, who are those so severely mentally retarded as to be incapable of giving evidence of understanding and responding in a positive manner to simple directions expressed in the child's primary mode of communication and who cannot in some manner express basic wants and needs.
Local boards of education are responsible for providing an education to mentally retarded children who are educable or trainable. N.J.S.A. 18A:46-13. If adequate facilities and programs are not available within the local district, the local board must make arrangements to send the child, at the local board's expense, to a facility or program outside the district. All of this occurs without charge to the child or his relatives as part of the system of free public education. See N.J.S.A. 18A-46-14. If a child is so severely retarded that he falls into the category of being eligible for day training, the local board of education is not responsible for him. The local board may exclude him from its programs, in which case he becomes the responsibility of the State Board of Education and of the State Department of Human Services. N.J.S.A. 18A:46-17 and 18A:46-18.1.
It is undisputed that Linda is so severely mentally retarded that she is eligible for day training within the meaning of the statutory classification. This means that her care and education are the responsibility of the State Board of Education and of the State Department of Human Services.
It should be noted that the statutory classification of mentally retarded children into three groups differs from the generally accepted psychological classification of mentally retarded persons. The testimony in this case indicates that most psychologists who deal with the mentally retarded divide them into five categories. Starting with the highest level of intelligence as the first category, those categories are: (1) borderline retarded, (2) mildly retarded, (3) moderately retarded, (4) severely retarded and (5) profoundly retarded. A severely retarded person has an I.Q. in the range of 21-35. A profoundly retarded person has an I.Q. of 20 or below. Although the statutory classification and the general psychological classifications were developed independently and without conscious regard to each other, the expert witnesses in this case were in agreement that persons who are severely retarded or profoundly retarded would also happen to fall into the statutory classification of children eligible for day training.
The testimony in this case establishes that, under present arrangements made by the State Board of Education and by the Department of Human Services, a child eligible for day training is dealt with in one of two ways. If the total family situation is such that the child can live at home, the child is left with his parents and receives training, five days a week, in a day care center. The day care center attempts to teach the child simple living skills and habits. Also, just by taking physical care of the child for a number of hours each school day, the center provides the parents of the child, particularly the mother, with a desperately needed respite from the crushing burden of coping with a severely or profoundly retarded child. The entire cost of the day care center program is borne by the State, without any charge whatever to parents or other relatives. At the present time the State pays approximately $5,500 a year for each retarded child in a day care center. Philosophically and financially, placement in a day care center is the preferred route and is used whenever feasible.
The second way of dealing with a child eligible for day training is to place him in one of the state schools for the mentally retarded. The Hunterdon State School is one of seven such schools operated by the State of New Jersey. Persons attending the state schools reside in them on a full-time basis. The testimony in this case clearly establishes that the decision to place a retarded person in a state school is not based upon educational criteria. It is based upon the ability of the retarded person's family to handle him and keep him at home. If the family of a child eligible for day training cannot cope with him at home, he is placed in a state school.
The per capita cost of maintaining a resident in a state school for the mentally retarded is determined each year by the State House Commission, acting on the advice of the Commissioner of Human Services. The applicable statute authorizes the Commission to establish the rate either for a group of institutions or for single institutions. N.J.S.A. 30:4-78. In practice, the Commission has determined the cost separately for each of the seven state schools, and the cost does vary widely from one school to another. In determining the per capita cost the Commission takes the total cost to the State of running the institution and divides it by the number of residents. The term "total cost to the State" requires some explanation. It does not include any capital costs, any interest payments for capital borrowings, any depreciation for buildings and plant, or certain items designated as extraordinary items. Also eliminated from the calculation are expenses covered by federal grants. The State recognizes that part of the cost of operating the state schools is generated by educational activities which take place in the school. It also recognizes that under N.J. Const. (1947), Art. VIII, § IV, par. 1, and implementing legislation it may not assess against residents or their relatives the cost of supplying educational services to residents of school age. Accordingly, once the per capita cost has been determined as
stated above, it is adjusted or reduced to reflect education expenditures within the institution.
Educational costs are narrowly defined by the State in making the adjustment. They include salary costs for teachers, fringe benefits for teachers, educational supplies and the servicing, repair and replacement of educational equipment. The educational costs thus defined are divided by the number of residents under 21 years of age to obtain the educational per capita expenditure. The educational per capita cost is then subtracted from the per capita cost to produce the adjusted per capita cost. Subject to financial ability to pay, the adjusted per capita cost is then assessed against the resident or his legally responsible relative. For recent fiscal years the cost figures for residents at the Hunterdon State School have worked out as follows:
Per capita Per capita Adjusted
cost educational per capita
1975 $10,170.67 $218.33 $9,952.34
1976 10,699.45 370.40 10,329.05
1977 11,397.19 332.47 11,064.72
1978 12,704.99 309.68 12,395.31
Plaintiff argues that a severely or profoundly retarded child such as Linda has so many learning problems and disabilities that virtually everything done to her or for her has to be done by a professional person ("professional" here being broadly used to mean a nonparent of the child) and should be treated as an educational activity within the thrust of the state constitutional requirement that the State provide for the maintenance and support of a thorough and efficient system of free public schools. Thus, plaintiff argues that he should not have to pay anything toward the cost of caring for Linda at the Hunterdon State School, with the possible exception of a very modest amount for food, clothing and physical medical needs. In order to appreciate and evaluate plaintiff's argument, certain comparisons must be
made (or perhaps, more accurately, certain contrasts must be drawn) between the rearing and education of a normal child and the rearing and education of ...