King and Landau. The opinion of the court was delivered by Landau, J.A.D.
[265 NJSuper Page 252] This appeal raises questions about the extent and nature of the services or financial relief to which S.I. and her parents, G. and S.I. (Petitioners) are entitled from and after the date when S.I. was declared eligible for services by the New Jersey Division of Developmental Disabilities (Division). We address this question in light of the mandate of the statute, N.J.S.A. 30:4-25.6 and recent case law, but mindful of our obligation to respect constitutional limitations upon judicial exercise of executive or legislative powers. Although unargued, the record submitted requires that we address, too, a clear indication that the Division's prioritization and placement standards, heretofore promulgated by Circular and other informal methods of publication, should comply with the
requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to 15.
S.I. is a 32 year old mildly retarded, developmentally disabled woman. In 1976 her parents placed her in the Bancroft School located in Haddonfield, N.J. She was subsequently transferred to Bancroft's Voorhees Transitional Program, at a supervised townhouse apartment located in Voorhees, N.J. Except for a two-year period when funding was provided by a local school district, S.I.'s parents have paid for the cost of her programs.
Pursuant to N.J.S.A. 30:4-25.2, 30:6D-25(b) and N.J.A.C. 10:46-1.1 to 4.2, S.I. was determined eligible for services by the Division on April 11, 1988. The Division placed her on the waiting list for placement in a Division supervised apartment under the category of "Urgency Level III", (Can benefit from placement; waiting is not detrimental).*fn1 She remained in Bancroft at Petitioners' expense.
Petitioners then requested financial assistance from the Division and appealed the Urgency Level III designation.
In response to these requests, an Informal Conference was held on October 12, 1988 pursuant to N.J.A.C. 10:48-1.3. It was agreed that Petitioners would defer action on their appeal until the agency had an opportunity to show them several supervised apartments, other than Bancroft. However, the Division did not show Petitioners any supervised apartments, offer financial assistance, nor provide a specific primary or alternative placement plan for S.I.
On April 27, 1989, Petitioners again asked for assistance in funding S.I.'s placement at Bancroft or, in the alternative, for an offer of a suitable alternative program. On June 21, 1989 the Division announced its reversal of S.I.'s eligibility determination because her parents did not reside in New Jersey. The Petitioners appealed and an OAL Judge decided in favor of the Petitioners holding that, even though S.I. had been declared incompetent, the long period of Bancroft residency qualified her as a New Jersey resident, notwithstanding her parents' Pennsylvania domicile. This OAL opinion on March 6, 1990 was rejected by the Division Director who remanded the matter for further fact finding. Following an OAL hearing in June, 1990, but prior to the decision, the Division conceded S.I.'s New Jersey residency and the issue is not here presented.
S.I. was then reinstated as a client of the Division and again classified at Urgency Level III. Once more, Petitioners appealed this classification and requested placement, with retroactive funding, at Bancroft or in some other suitable program. As a result of an Informal Conference held on February 13, 1991, S.I.'s priority was changed from Urgency Level III to Level II (extended waiting for residential services would be detrimental). In addition, the Division invited the Petitioners to visit specific supervised
apartment programs. These programs, however, were found inappropriate for S.I. by both the parents and the Division case manager.
On March 8, 1991, Petitioners appealed the Informal Conference decision, contending that S.I.'s status should be changed to Urgency Level I and that the Division should fund her placement at Bancroft as an alternative service retroactive to the initial date of her eligibility.
The matter was determined by the Director to be "noncontested" pursuant to N.J.A.C. 10:48-1.6.*fn2 An extended Administrative Review Conference (ARC) was held on August 21 and 23, and October 2 and 6, 1991, in which evidence was received.
Mary Jean Gender testified she was S.I.'s educator at Bancroft for 3 1/2 years, and worked with a team of educators to develop programs for her. According to Gender, S.I. shares with two other young disabled women a three or four bedroom townhouse in an environment in which some houses are occupied by Bancroft residents and others by typical residential lessees.
S.I. is employed at two part-time jobs, and can do her own banking and shopping. However, Gender testified that S.I. frequently destroys property, especially items of clothing. When frustrated, she can harm herself, as exemplified by a recent self-biting incident. This unpredictability requires that she not be left alone for an extended period of time.
S.I.'s father, G., testified. He is a dentist. He and his wife placed S.I. in Bancroft at her request when she was 16 years old. During a four month period when S.I. stayed home with her parents, she needed constant supervision. G.I. said that S.I. was often destructive and that she struck him once.
G. also testified that, at 61 years of age, he now suffers from an arthritic condition, and so would like to retire from dentistry practice but cannot because the cost for S.I.'s placement at Bancroft is approximately $50,000 a year.
Dr. Alban, a clinical psychologist, testified that he met with S.I. on two occasions. He described S.I. as brain damaged and mildly retarded, posing a danger primarily to herself. She is disturbed by inconsistency, unreliability or unpredictability, and requires a high degree of consistency to foster appropriate behavior and responses. S.I. requires extensive supervision throughout the day and at night. In light of these needs, S.I. would regress if she were returned to her home environment and would become harmful to herself or others.
Barbara Chester, a Principal Community Program Specialist, testified on behalf of the Division. She said that the particular residence in which S.I. was placed by Bancroft was not currently licensed and that the Division would not place clients in unlicensed residences. Where a client is found to reside at an unlicensed facility, the proper course of action would be for the Division to remove the client or ask the facility to apply for a license. To her knowledge, ...