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D.D. v. New Jersey Div. of Developmental Disabilities

May 31, 2002

D.D., PETITIONER-APPELLANT,
v.
NEW JERSEY DIVISION OF DEVELOPMENTAL DISABILITIES, RESPONDENT-RESPONDENT.



On appeal from a final decision of the Division of Developmental Disabilities, in the Department of Human Services, OAL Dkt. No. HD-50569-98.

Before Judges Conley, A. A. Rodríguez and Lefelt.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 21, 2002

In this appeal, we are called upon to analyze the definition of "developmental disability" set forth in N.J.S.A. 30:6D-25b. D.D., a fifty-four year old mentally impaired man, sought services from the Division of Developmental Disabilities (Division) asserting that he suffered from a "developmental disability" as defined by N.J.S.A. 30:6D-25b. The Division denied his application. D.D. challenged the denial. The matter was transferred to the Office of Administrative Law as a contested case. Following a hearing, the Administrative Law Judge (ALJ) determined that D.D. was not eligible for the Division's services. The Division's Director adopted the ALJ's findings and conclusions. This constituted a final agency decision from which D.D. appeals. We reverse. We hold that the Director applied an incorrect standard in determining whether D.D. suffered from a developmental disability.

The facts may be summarized as follows. At birth, D.D. emerged from a breech delivery with his head flattened in the right occipital area. Subsequently, he developed prognathous (jaws that project forward to a marked degree) and altered dentition. He did not learn to walk or talk until he was two years old. He was not toilet trained until he was five or six years old. During childhood, D.D. suffered from impaired gross and fine motor coordination. He could not catch objects thrown to him and he had difficulty with his gait and balance. Because he failed the first grade, he was placed in a special education class.

When D.D. was thirteen years old, Martin Silbersweig, M.D., an internist, diagnosed him as mentally retarded. When D.D. was seventeen years old, Alvin L. Robins, M.D., a neurologist, noted that:

[D.D.] has diffuse cerebral dysfunction of a neonatal or perhaps antenatal etiology. This is manifested by mental retardation, by several skeletal dysplastic features, and more recently, a schizophrenic-like picture with alterations in affect, motor activity, and with hallucinosis.

Dr. Robins also described D.D. as having "profound neural abnormalities since neonatal life," and characterized his intellectual ability as "quite depressed."

D.D. left his special education school when he was nineteen. A close friend of D.D.'s father gave D.D. a job in a factory. D.D. remained at the factory for ten years until it closed down. Subsequently, D.D. worked at two other short term jobs arranged through the Association for Retarded Citizens (ARC). D.D. was unsuccessful in keeping these position due in part to his inability to perform basic job functions.

At age thirty-two, D.D. applied for Social Security Benefits. The benefits examiner, Daniel Wolkstein, PhD., determined that D.D. was functioning within the range of mild mental retardation with an Intelligence Quotient (I.Q.) of seventy-four.

At age fifty, D.D. applied to the Division for services. Richard J. Waldron, Ph.D, a psychologist, assessed D.D. and determined that his I.Q. was sixty-seven. Based on this assessment, Dr. Waldron opined that D.D. probably suffered from neurological involvement, that "[a]s his conditions worsen, it appears that his disabling conditions are permanent and unlikely to improve." Dr. Waldron's diagnoses were: Adjustment Disorder with Mixed Anxiety and Depressed Mood, Expressive Language Disorder, Mild Mental Retardation (primary disability) and Mild Cortical atrophy.

The Division denied D.D.'s application because there was no evidence of a developmental disability. An informal conference among D.D., members of his family, and representatives of the Division was unproductive. Consequently, the Division informed D.D. that he remained ineligible for services.

Three witnesses testified at the hearing conducted by the ALJ. Shashi Jain, PhD., a principal clinical psychologist with the Division, testified. She reviewed D.D.'s medical history and interviewed him. Dr. Jain opined that D.D.'s "cognitive adaptive behavior is at least in the Borderline Range as indicated by his previous psychological test results." Dr. Jain explained that a person must have an I.Q. score below seventy in order to qualify for services. This standard is mandated by N.J.A.C. ...


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