On appeal from Department of Human Services, Division of Developmental Disabilities, HDD-6088-02.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and Wecker.
Petitioner, T.H., is an adult who has been diagnosed with Asperger's Syndrome, a neurological disorder that shares some of the characteristics associated with autism.*fn1 T.H. appeals from a final agency decision of the Director of the Division of Developmental Disabilities denying his application for services as a developmentally disabled individual pursuant to the Developmentally Disabled Rights Act, N.J.S.A. 30:6D-1 to -12. See N.J.S.A. 30:6D-3a.*fn2
We have thoroughly reviewed the record and the briefs in light of the contentions of the parties, with particular attention to petitioner's contention that the regulation adopted by the Division and applied to his application is inconsistent with the statute under which the Division derives its authority. After full consideration of the arguments, we are convinced that the regulation is consistent with the underlying statute and therefore is valid and enforceable. In addition, we are satisfied that there is sufficient credible evidence to support the administrative law judge's initial decision, which was adopted by the Director. We therefore affirm the agency decision denying developmental disability services to T.H.
This is unquestionably a tragic case. T.H., a man born in 1949, lived with and was cared for by his parents until they died within eight months of each other when T.H. was fifty years old. The parties stipulated that T.H. has Asperger's Syndrome, and agreed that petitioner actually had the condition as a child, although the medical community had not identified and named the syndrome as such until well after T.H. reached adulthood. On the day of his mother's death in July 2000, while his siblings were making funeral arrangements, T.H. attempted suicide by carbon monoxide poisoning, along with an overdose of an anti-depression medication. While he survived the attempt, he was left with a traumatic brain injury, causing short-term memory loss and severe physical limitations; the latter require him to ambulate primarily with a wheelchair. He is unquestionably unable to function on his own at this time. His condition also has made it impossible for any of his siblings to care for him.
T.H.'s appeal from the Division's initial denial of services led to a contested hearing in the Office of Administrative Law. Three witnesses testified at that hearing. The judge qualified Dr. Arthur Bernstein, a full-time senior clinical psychologist with the Division, as an expert in both "clinical psychology" and "the issues regarding eligibility requirements for [Division] purposes." Dr. Bernstein testified on behalf of the Division. Dr. Linda Petti, who was also qualified as an expert in clinical psychology, testified on behalf of T.H. The only fact witness was T.H.'s older sister, J.S.
The administrative law judge found that "T.H. has failed to demonstrate how he is eligible to receive [developmental disability] services, given the criteria to obtain such services." The issue as defined by the judge was whether the functional limitations defined by N.J.S.A. 30:6D-3a(4), and required in order to qualify for assistance from the Division, were "manifest" before T.H. reached the age of twenty-two, as required by N.J.A.C. 10:46-1.3.
On appeal, T.H. presents these arguments:
THE A.L.J. RECOMMENDED, AND THE DIVISION OF DEVELOPMENTAL DISABILITIES APPLIED, THE INCORRECT LEGAL STANDARD WHEN MAKING ITS FINAL ADMINISTRATIVE AGENCY DECISION.
THE DIVISION OF DEVELOPMENTAL DISABILITIES' REGULATION, N.J.A.C. 10:46-1.3, CONFLICTS WITH N.J.S.A. 30:6D-3, RENDERING THE AGENCY'S REGULATION INVALID.
[T.H.] IS ELIGIBLE FOR SERVICES FROM THE DIVISION OF DEVELOPMENTAL DISABILITIES PURSUANT TO N.J.S.A. 30:6D-3.
In sum, T.H. contends that under the law, it is sufficient that his underlying condition was "manifest" before age twenty-two, even if all of his functional limitations were not.
The first issue before us is whether the agency evaluated petitioner under the correct definition of developmental disability. The ...