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T.H. v. Division of Developmental Disabilities

March 1, 2007

T.H., PETITIONER-APPELLANT,
v.
DIVISION OF DEVELOPMENTAL DISABILITES, RESPONDENT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 366 (2005).

SYLLABUS BY THE COURT

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal requires consideration of one of the regulatory requirements imposed by the Division of Developmental Disabilities (DDD) to qualify for services.

T.H. is a fifty-five year old man who suffers from Asperger's Syndrome, a developmental disability. T.H. was cared for by his parents his entire lifetime. In 2000, T.H.'s last parent died. One day later, T.H. attempted suicide, which caused him neurological damage. He was treated sequentially in a rehabilitation facility, a nursing home, and a group home, paid out of his parents' estate. By 2003, his care and housing cost $72,000 a year. At that rate, the remaining estate funds would have been exhausted by February 2004, at which time T.H. could no longer remain in the home unless he was declared eligible for services from DDD.

T.H.'s family applied for services on his behalf pursuant to N.J.S.A. 30:4-25.2. DDD staff interviewed T.H. and his family. Finding a "paucity of documentation" concerning T.H.'s developmental history, and noting that most of the history derived from "anecdotal" accounts by T.H. and his family, DDD determined that T.H. was ineligible for services because he showed no evidence of substantial functional limitations in three major life areas prior to the age of twenty-two, as required under N.J.A.C. 10:46-1.3. DDD also concluded that T.H.'s recent brain trauma hindered extrapolation of any functional limitations that may have been present prior to age twenty-two.

T.H. challenged the decision, and the matter was transferred to the OAL as a contested case. J.S., T.H.'s older sister and guardian, testified as the representative of all of his siblings. She stated that T.H.'s symptoms were evident at six years of age and significant enough that evaluating psychologists recommended placement in a group home. The family refused, choosing instead to care for T.H. themselves. J.S. described at length T.H.'s lifelong rigidity, reclusive behavior and obsessive preoccupations and related those characteristics to T.H.'s social isolation. Among other things, J.S. testified that T.H. had no close personal connections during his lifetime except with his parents and one boy when he was four years old. T.H. ate the same meal for dinner every night of his life and became agitated if any aspect of that meal changed. Although T.H. was employed, that employment was arranged by his father in the family business, and later was a condition of the sale of that business to outsiders. J.S. also stated that T.H. had no understanding of the value of money. Finally, T.H. had never prepared a meal, shopped for food, done laundry, or kept house, and never tended to his personal hygiene at all unless prodded again and again.

Linda Ann Petti, Ph.D., a psychologist, testified on T.H.'s behalf. She explained that Asperger's Disorder is incurable and usually results in limitations in the sufferer's daily functioning. Relying, in part, on her interviews with T.H. and his family, Dr. Petti concluded that T.H. was not capable of economic self-sufficiency or independent living. She also concluded that T.H.'s limitation pre-dated his suicide attempt and existed prior to his reaching the age of twenty-two. Dr. Arthur J. Bernstein, Ph. D., a psychologist employed by DDD, agreed that T.H.'s Asperger's was manifest or made present before the age of 22. He explained that DDD denied eligibility "because there was no concrete data other than anecdotal that [T.H.] had an intellectual or adaptive impairment that was severe and chronic prior to the age of 22." Dr. Bernstein added that it was difficult to ascertain T.H.'s limitations prior to age twenty-two because of the intervening brain trauma caused by his suicide attempt in 2000.

The ALJ recommended affirmance of the denial of services. In doing so, he specifically rejected the conclusions of T.H.'s expert because they were based on "anecdotal commentary at best from just a couple of people around T.H. as well as . . . T.H. himself." The ALJ noted that because of the lack of any documentation whatsoever relating T.H.'s limitations to his condition prior to age twenty-two, T.H. had failed to demonstrate that he met the statutory and regulatory criteria for eligibility. The Director of DDD adopted those findings and conclusions.

T.H. appealed, and the Appellate Division affirmed. T.H. v. Div. of Developmental Disabilities, 381 N.J. Super. 366 (App. Div. 2005). The panel characterized the case as a "close" one, but in the end was convinced that N.J.A.C. 10:46-1.3, the regulation defining developmental disability, is valid and enforceable, and that there was sufficient credible evidence to support the ALJ's decision. T.H.'s petition for certification was granted.

HELD: There is no statutory requirement that an applicant for services develop substantial functional limitations in three major life areas before age 22, and DDD's contrary interpretation, codified in N.J.A.C. 10:46-1.3, exceeded its authority and is invalid. In addition, it was inappropriate to reject the eyewitness testimony of the applicant's sister as anecdotal and the expert's conclusions because lacking in medical documentation.

1. First recognized during the 1990's, Asperger's Disorder is a mental disability that falls on the higher end of the autism spectrum, is characterized by a severe and sustained impairment in social interaction, the development of restricted, repetitive patterns of behavior, interests, and activities, and results in significant impairment in social, occupational, or other important areas of functioning. Its features generally become apparent in children between three and five years of age. Because the condition was not recognized or classified as a disorder until recently, many adult sufferers never received a diagnosis or treatment. Therefore, medical, psychiatric, and educational documentation of their early condition is unavailable. (pp. 9-12)

2. In 1975, Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act, mandating the protection of civil rights of persons with developmental disabilities and providing funding to achieve that goal. To obtain federal funding, New Jersey enacted the Developmentally Disabled Rights Act (DDRA), N.J.S.A. 30:6D-1 to -12, in 1977. The DDRA defines "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 inter-disciplinary or generic care, treatment or other services . . . . N.J.S.A. 30:6D-3(a). The Developmental Disabilities Act (DDD Act) established DDD to provide required services to the developmentally disabled and contains the identical definition of "developmental disability." DDD enacted regulations to implement the DDRA, and those regulations initially adopted verbatim the definition of "developmental disability" found in the statutes. The regulations were amended in 1995 to define "developmental disability" as an impairment that "results in substantial functional limitations before the age of 22 in three or more of the . . . areas of major life activity" identified above. N.J.A.C. 10:46-1.3 (emphasis added). (pp. 12-16)

3. T.H. argues that the definition of "developmental disability" in N.J.A.C. 10:46-1.3 conflicts with the corresponding statutory provisions insofar as it requires three functional limitations to be exhibited before age twenty-two. Although DDD is correct in arguing that the Legislature intended to base eligibility on functional limitations, it has exceeded its power in attempting to freeze those limitations "before age 22" and not at the time of application. Given that remedial and humanitarian statutes like the DDRA and the DDD Act should be liberally construed to achieve their beneficent purposes, the interpretation advanced here by DDD cannot be countenanced. N.J.A.C. 10:46-1.3 violates the statutes by adding an eligibility requirement not contemplated by the Legislature. The decision under review was based on an application of this invalid regulation. (pp. 16-24)

4. T.H.'s family testified unequivocally regarding his condition immediately prior to the suicide attempt, and recounted in detail that his fundamental limitations dated back to his childhood. DDD's expert viewed that testimony as deficient because it was "anecdotal;" and the ALJ faulted T.H.'s presentation, including that of his expert, because it was not based on "medically corroborating documentation" of his early condition. This denied T.H. an opportunity to establish his eligibility retroactively. The eyewitness testimony of T.H.'s sister was sufficient to support his expert's conclusion and, if believed, to sustain a determination that he suffered the substantial functional limitations in three life areas prior to his suicide attempt. (pp. 24-26)

Judgment of the Appellate Division is REVERSED, and the matter is REMANDED to DDD.

CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE and RIVERASOTO join in JUSTICE LONG's opinion. JUSTICE HOENS did not participate.

The opinion of the court was delivered by: Justice Long

Argued November 13, 2006

T.H. is a fifty-five year old man who suffers from Asperger's Syndrome, a developmental disability. Like many developmentally disabled persons, T.H. was cared for by his parents for his entire lifetime. They provided for his every need and sought no outside assistance. In 2000, T.H.'s last parent died. One day later, he attempted suicide. Thereafter, his family sought services on his behalf from the Division of Developmental Disabilities (DDD). His application was rejected because he failed to satisfy N.J.A.C. 10:46-1.3, which requires that an applicant suffer "substantial functional limitations" in three or more areas of major life activity "before the age of 22." Although DDD's own expert recognized that T.H. has suffered from Asperger's since childhood, DDD rejected the evidence proffered by T.H.'s family regarding his childhood limitations because it was "anecdotal" and not "documentary." T.H. appealed and the Appellate Division affirmed.

We hold that, because there is no statutory requirement that an applicant for services develop substantial functional limitations in three major life areas before age 22, the regulatory imposition of that requirement exceeded the power of DDD. We further hold that DDD's rejection of the evidence proffered by T.H.'s family, not on credibility grounds, but because it was anecdotal and not documentary, was arbitrary. Because T.H. was an adult long before Asperger's was a recognized disorder,*fn1 medical, educational and psychological documentation of his symptoms and treatment before age twenty-two was simply not available. The observations of his family, if believed by the Administrative Law Judge (ALJ), should have been considered an adequate substitute. We therefore reverse and remand the matter to DDD for reconsideration of T.H.'s application under the proper statutory standard giving due weight to the evidence proffered on his behalf.

I.

The facts of the case are as follows: after T.H.'s suicide attempt, which caused him neurological damage, he was treated sequentially in a rehabilitation facility, a nursing home, and a group home, paid out of his parents' estate. By 2003, his care and housing cost $72,000 a year. At that rate, the remaining estate funds would have been exhausted by February 2004, at which time T.H. could no longer remain in the home unless he was declared eligible for services from DDD.

T.H.'s family applied for services on his behalf pursuant to N.J.S.A. 30:4-25.2. DDD staff interviewed T.H. and his family. Finding a "paucity of documentation" concerning T.H.'s developmental history, and noting that most of that history derived from "anecdotal" accounts by T.H. and his family, DDD determined that T.H. was ineligible for services because he showed no evidence of substantial functional limitations in three major life areas prior to the age of twenty-two, as required under N.J.A.C. 10:46-1.3. DDD also concluded that T.H.'s recent brain trauma hindered extrapolation of any functional limitations that may have been present prior to age twenty-two. T.H. was recognized as presenting a "very complex and difficult picture;" however, "[i]n the absence of available retrospective data, DDD [was] unable to" declare him eligible for services.

T.H. challenged the decision, and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. J.S., T.H.'s older sister and guardian, testified as the representative of all of his siblings. Although she acknowledged that T.H. suffered physical limitations and short-term memory loss as a result of the suicide attempt, she underscored that his basic condition remained as it had been before that incident. She stated that T.H.'s symptoms were already evident at six years of age and significant enough that evaluating psychologists recommended that he be placed in a group home. The family refused, choosing instead to care for him themselves.

J.S. described T.H.'s lifelong rigidity, reclusive behavior and obsessive preoccupations and related those characteristics to T.H.'s social isolation. Indeed T.H. had, in his lifetime, no close personal connections except for his parents and one boy when he was four years old. According to J.S., T.H. would not attend family gatherings and avoided all social interactions, going so far as to miss work on days that social events were scheduled. J.S. further reported that T.H.'s social isolation was exacerbated by his inability to make eye contact during conversations and his constant monologues on matters of little or no interest to his listener. Indeed he rigidly refused to discuss any subjects other than advanced astronomy, his rejection by a girl he had asked for a date when he was nineteen years old, and more recently, the Jehovah's Witnesses' belief that the end of the world is coming.

T.H.'s obsessive behaviors also extended to his personal habits. For example, he ate the same meal for dinner every night of his life and became agitated if any aspect of that meal changed, including the presence of ice in his drink. In addition, according to his employer, he ritualistically clocked in and out of work at the exact same second each day.

In terms of T.H.'s employment history, J.S. underscored that that employment was arranged by their father in the family business, and later was a condition of the sale of the family business to outsiders. Although T.H. could carry out the meticulous and repetitive tasks of an expediter for which he was paid, J.S. stated that T.H. had no understanding of the value of money and was totally incapable of handling the most elementary aspects of his own finances. According to J.S., T.H., who never made a bank deposit or withdrawal in his life, once spent $13,000 to have a car that he had owned since 1969 repainted.

In terms of self care, T.H. had never prepared a meal, shopped for food, done laundry, or kept house. He also refused to tend to his personal hygiene at all, unless prodded. Thus, J.S. was of the opinion that even before the suicide attempt, her brother would never have been able to live on his own.

Linda Ann Petti, Ph.D., a psychologist who specializes in providing comprehensive cognitive rehabilitation counseling and psychoeducational and therapeutic services, testified on T.H.'s behalf. She explained that Asperger's Disorder is incurable and usually results in limitations in the sufferer's daily functioning, which can be severe. From her interviews with T.H. and his family, she found that T.H. was functionally intelligent, but as a result of Asperger's Disorder, was rigid in his behaviors and maladaptive to change; suffered from obsessive preoccupations; was withdrawn and self-isolated; fearful of the unfamiliar; incapable of reciprocal social interaction; could not understand money and finances; and was unable to gain and hold competitive employment. Dr. Petti concluded that T.H. was not capable of economic self-sufficiency or independent living. She also opined that, because he could not form appropriate peer relationships, he suffered a substantial functional limitation in the area of self-direction. She stated that T.H.'s personal hygiene practices were "highly inadequate" in terms of frequency, and because of his inability to shop for or prepare food, that he suffered a substantial functional limitation in the area of self-care. She also testified that T.H. suffered from substantial functional limitations in the area of language, due to his rigid literalism, which results in an inability to comprehend humor, sarcasm, or metaphor and renders T.H. highly vulnerable to exploitation.

Dr. Petti concluded that T.H.'s limitations pre-dated his suicide attempt and existed prior to his reaching the age of twenty-two. Indeed, she stated that the symptoms of Asperger's Disorder manifest in early childhood and are "very ingrained, very severe . . . and tend to grow worse and more embedded with time."

Arthur J. Bernstein, Ph.D., a psychologist employed by DDD, testified on its behalf. He recognized that Asperger's Disorder is a chronic, incurable, sometimes severe disability that is present from early childhood and agreed that T.H.'s Asperger's "was manifest or made present before the age of 22." Characterizing the case as "very complicated," Dr. Bernstein testified that DDD denied eligibility "because there was no concrete data other than anecdotal that [T.H.] had an intellectual or adaptive impairment that was severe and chronic prior to the age of 22." Dr. Bernstein added that it was difficult to ascertain T.H.'s limitations prior to age twenty-two because of the intervening brain trauma caused by his suicide attempt in 2000. He concluded that the available evidence indicated no substantial functional limitations before age twenty-two, observing that T.H. attended public school and technical school, drove a car, and maintained employment in his adult life.

The ALJ recommended affirmance of the denial of services. In doing so, he specifically rejected the conclusions of T.H.'s expert, Dr. Petti, because they were based on "anecdotal commentary at best from just a couple of people around T.H. as well as . . . T.H. himself." The ALJ noted that because of the "absolute dire paucity of any documentation whatsoever on behalf of T.H." relating his limitations to his condition prior to age twenty-two, T.H. had failed to demonstrate by a preponderance of the evidence that he met the statutory and regulatory criteria for eligibility. Thereafter, the Director of DDD adopted the findings and conclusions of the ALJ. T.H. appealed. The Appellate Division affirmed. T.H. v. Div. of Developmental Disabilities, 381 N.J. Super. 366, 382 (App. Div. 2005). In so doing, the panel characterized the case as a "close" one, but in the end was "convinced that [N.J.A.C. 10:46-1.3 -- the regulation defining developmental disability] is valid and enforceable," and that "there is sufficient credible evidence to support the [ALJ's] initial decision." Id. at 370, 382.

T.H. filed a petition for certification that we granted.

T.H. v. Div. of Developmental Disabilities, 186 N.J. 605 (2006). We also granted the motion of the Public ...


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