On appeal from Department of Community Affairs, Office of Ombudsman for the Institutionalized Elderly.
Michels, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
This appeal challenges the facial validity of regulations promulgated by the Office of the Ombudsman for the Institutionalized Elderly (Ombudsman). As caretakers of institutionalized elderly, appellants are obliged by statute to report to the Ombudsman instances of suspected "abuse or exploitation" of the elderly that they learn about in the course of their employment. N.J.S.A. 52:27G-7.1. Appellants' main argument is that by including in the reporting requirement certain instances where "abuse" is defined as providing life-sustaining treatment, and by excluding certain instances where "abuse" is defined as withdrawing or withholding life-sustaining treatment, the regulations, which implement the statute, exceed the Ombudsman's statutory authority and are contrary to controlling Supreme Court decisions.
The pertinent part of the statutory definition of "abuse" appears in N.J.S.A. 52:27G-2a as follows:
"Abuse" means the willful infliction of physical pain, injury or mental anguish; unreasonable confinement; or the willful deprivation of services which are necessary to maintain a person's physical and mental health.
N.J.A.C. 5:100-1.2 repeats the statutory definition and particularizes two instances of abuse and one instance of nonabuse:
"Abuse" shall also mean imposing treatment upon a resident who has the capacity to make healthcare decisions, after the resident has made a voluntary and informed choice regarding such treatment. "Abuse" shall also mean providing to a resident treatment that is not medically indicated. . . . "Abuse" also shall not mean the withholding or withdrawal of life-sustaining treatment in accordance with the provisions of N.J.A.C. 5:100-2.
N.J.A.C. 5:100-2.3(d) excludes certain instances of withholding or withdrawal of life-sustaining treatment from the requirement to report "abuse":
The reporting procedures set forth in this section shall not apply when:
1. The resident is under age 60;*fn1 or
2. The resident, being fully informed and having the capacity to make a healthcare decision, chooses to withhold or withdraw life-sustaining treatment. The resident's attending physician shall make the determination of whether the resident is fully informed and has the capacity to make a healthcare decision. The physician's determination shall be based on the physician's reasonable medical judgment and shall be documented on the resident's chart; or
3. The life-sustaining treatment is not medically indicated for the resident. The resident's attending physician shall make this determination. Such determination shall be based on the physician's reasonable medical ...