On appeal from the Division of Developmental Disabilities, Department of Human Services.
Antell, Ashbey and A.m. Stein.*fn1The opinion of the court was delivered by Ashbey, J.A.D.
[243 NJSuper Page 477] Petitioner, T.L., appeals from a final determination of the Department of Human Services, Division of Developmental Disabilities (DDD), denying his application for services. We reverse and remand for further proceedings.
Twenty-one year old T.L.'s 1988 application for services appears to be one of the first considered by DDD pursuant to the 1985 Division of Developmental Disabilities Act (Act), N.J.S.A. 30:6D-23 et seq. Effective May 24, 1985, the Act established DDD within the State Department of Human Services to replace the existing Division of Mental Retardation (DMR). Under the Act the Director of the DDD was required within three years to provide services for all eligible developmentally disabled persons by "identifying appropriate programs to meet their needs and by facilitating the establishment of community based services for these persons. . . ." N.J.S.A. 30:6D-27a; see also L. 1985 c. 145, sec. 13 (appended to N.J.S.A. 30:6D-23 historical and statutory notes). While DMR had previously primarily served persons diagnosed as retarded, eligibility for the new Division's services was to be related to the functional result of a mental or physical impairment.*fn2
The Act defines a "developmental disability" as:
a severe, chronic disability of a person which: (1) is attributable to a mental or physical impairment or combination of mental or physical impairments; (2) is manifest before age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and (5) reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to mental retardation, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met. [ N.J.S.A. 30:6D-25b].
T.L. applied for DDD to provide him with a sheltered boarding home away from his family. Pursuant to established procedure, DDD intake worker Susan Schaeffer came to T.L.'s house and administered the Critical Adaptive Behaviors Inventory (CABI), the standard DDD test for determining an applicant's level of functioning.*fn3 She found T.L. had substantial functional limitations in the areas of self-care, language, learning, self-direction and capacity for independent living or economic self-sufficiency, in fact, all six areas of functioning except mobility.*fn4 Schaeffer recommended T.L. be found eligible for services.
This recommendation was subsequently reviewed by a DDD interdisciplinary team which recommended T.L.'s ineligibility for services, finding no evidence of a "severe" developmental disability of a "chronic, lifelong" nature. The team referred T.L. to his local board of social services for boarding home services. Of the five voting members, two, including Schaeffer, dissented.
Following DDD's Southern Regional Administrator's further determination of ineligibility, another test was scheduled and a
second intake worker, Katherine Crawford, administered another CABI to T.L. Between T.L.'s first CABI and his second, the Division changed its procedures so that the intake worker would not complete the CABI, but would take individual recommendations to the team, which would finish the task. In the meantime T.L. was twice hospitalized for seizures.
While Crawford recommended ineligibility, concluding T.L. did not have a chronic or severe disability, she found him functionally limited in learning, self-direction and capacity for independent living or economic self-sufficiency. She also found his limitations possibly due to "social/emotional problems" as opposed to a "developmental disability." A new interdisciplinary team met and recommended ineligibility. A second team of supervisors also recommended ineligibility. The Regional Administrator again concurred. A contested case before the office of Administrative Law (OAL) ensued. Following a hearing before an Administrative Law Judge (ALJ), DDD's director accepted, as his final decision, the ALJ's initial decision recommending that T.L. was ineligible for DDD services.
Certain facts were undisputed. T.L. was born on December 4, 1966. Almost from his entry into school, he was classified as perceptually impaired and emotionally disturbed, with an I.Q. in the borderline to low average range. As an adolescent he had received some vocational training, worked on landscaping and farm crews, assembled typewriter ribbons, done maintenance work for McDonald's and obtained his driver's license. He had attended a sheltered factory workshop from August to December 1987 where his behavior was characterized immature and disruptive. On June 6, 1988, he had suffered the first of the two seizures and since that time had been taking Dilantin. The ALJ found that T.L. had been receiving Supplemental Security Income.*fn5
At trial Susan Schaeffer testified that she continued to believe that T.L. had a substantial functional limitation in language, learning, self-direction and independent living or economic self-sufficiency. She also testified, however, that
one of my reasonings for . . . believing he was eligible was his impaired judgement and immature behavior. And as the team met more and more, and I was able to take advantage of other people's expertise and their views, I now understand that that is -- or now feel, excuse me, that that's not a developmental disability. An impaired judgment and immature behavior. That's more of an emotional problem and is not -- not an emotional problem is not considered a developmental disability. I tried to think of what I would recommend at this point if I was redoing it and I think I would probably defer to the team decision rather than make an opinion myself.
I think I am now more aware of the types of clients that are accepted into [the] division which I was not aware of at this time.
Respecting her finding that T.L. was deficient in capacity for learning, self-direction and capacity for independent living or economic self-sufficiency, Katherine Crawford testified that T.L. was unable to count money accurately, unable to explain his disability and unable to explain why the CABI was being administered. Crawford also said that T.L. could not currently administer or understand the concept of refilling his medicine, although he might learn if given proper training and opportunity. She found, as did Schaeffer, that T.L. was not able to tell her what makes a good employee or to understand why he was not able to keep jobs. Crawford separately concluded that T.L. did not exhibit a "severe" or "chronic" disability and that his major life activity limitations might be due to social and emotional difficulties as opposed to a developmental disability. It was her opinion T.L. could function in the community with supervision if he received counseling from a mental health
organization, vocational training that would allow him to be competitively employed and tutoring to develop money and budgeting skills. These two intake workers were the only DDD experts who had seen T.L. prior to trial.
DDD's Intake Supervisor for the Southern Regional District, Ralph Case, testified that T.L.'s functional limitations might not be of a lifelong or extended duration because, while his impairment was lifelong, he was unable to sustain employment because of his behavior, not impairment. Case found no evidence that T.L. was functionally limited in his capacity for self-care or self-direction, but that over-protectiveness had smothered his capacity. He said that applicants rejected by DDD could possibly receive services from the Division of Vocational Rehabilitation or the board of social services, but expressed a lack of familiarity with the range of services there provided. Case characterized the discrepancies between the results of the first and second CABIs, as perhaps due to the "novelty of process," or because in the interim the "process" had changed. He said that a finding of "severe" and "chronic" would be the "outcome" of the CABI, but that he disagreed with the scoring of the CABI by the workers. It was Case's conclusion that T.L.'s limitations were due to family problems and that he had attempted to manipulate certain examiners.
Case further said, "[w]e do not have the appropriate mental health services. There's a separate DMH and H [Department of Mental Health and Hospitals]." Case admitted that the relationship between DDD and mental health services had not been "anything to brag about," but concluded that a citizen "labeled as being a . . . DDD client, the door gets shut on them." When asked if his statutory interpretation was that of the Division, Case said, "[t]hat is the interpretation of southern region. I can't speak for the Division as a whole."
The DDD psychologist, Dr. Mastellone, opined that T.L. did not have a severe and chronic developmental disability, the CABI was neither a valid nor a reliable instrument to measure
functional limitation and that T.L.'s admitted limitations were due to his socio-emotional difficulties along with his attitude and motivational problems.*fn6 While T.L. had a learning disability, Mastellone said it was not severe. The doctor conceded that T.L. had limitations but "based on our criteria," they did not result from a developmental disability. Dr. Mastellone further said the Department of Developmental Disability was mandated to serve developmental disability clients, clients whose limitations are based on developmental disability not on a mental illness. He said, "the Division of Mental Health and Hospitals is there to serve people with mental illness and emotional problems and there is no sense in . . . there being a redundancy." Elsewhere, however, the doctor was clear that T.L. was not denied eligibility because of any mental problems. In his opinion, T.L. should be receiving psychotherapy to assist in alleviating his social and emotional problems.
T.L.'s mother testified that T.L. did chores at home, but was unable to handle money. She prepared his meals. When making any purchase, she had to instruct him as to the amount of change. If left at home by himself, he would leave the house and not return. He would not follow directions unless someone was watching over him. She said that since the summer of 1988 they attended counseling once or twice a week at the community mental health center because he screams and curses at her. T.L. also touched and hugged people in an inappropriate manner.
During the hearings, T.L., 22 years old, testified. When asked what it is to tell a lie, he responded, "it makes your nose grow longer." He gave the cost of a rooming house where he had thought of applying, as $800, but did not know if that was by the week or month. He did not see the room or know if he could cook. He said, "you go use the bathroom or do something but its like go across the street . . . get a sandwich or something." T.L. distinguished between jobs where he would work all week and only be paid $15 from jobs at $200 a week, which he would like. Of his seizures, he knew that he lost consciousness and once left the hospital before tests were taken. T.L. took medication every four hours for his seizures, but was unaware of its nature.*fn7
Dr. David Bogacki, a psychiatrist, testified that T.L. had minimal insight concerning his difficulties. While he was able to follow simple directions, he had difficulty expressing himself and insufficient vocabulary or communication skills to conduct ordinary business. Bogacki found that T.L. was substantially and functionally limited with a full scale I.Q. of 72. T.L. read at the fourth grade level, spelled at the fifth grade level and had third grade math skills. He had perceptual-motor problems, difficulty in conceptualizing and deficits in intermediate memory. Bogacki found T.L. would never be able to manage his personal finances and would not take his medication independently; had significant limitations for independent living and economic self-sufficiency, having lost rudimentary ...