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E.B. v. Division of Developmental Disabilities

December 10, 2008

E.B., PETITIONER-APPELLANT
v.
DIVISION OF DEVELOPMENTAL DISABILITIES, RESPONDENT-RESPONDENT.



On appeal from a final decision of the Division of Developmental Disabilities, HDD 2993-2006.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2008

Before Judges Winkelstein and Fuentes.

Appellant, E.B., born on January 24, 1980, resides at the Trenton State Psychiatric Hospital. His diagnoses include schizoaffective bipolar disorder, attention deficit hyperactivity disorder, and polysubstance dependence. He appeals from a final decision by the Assistant Commissioner (the Commissioner) of the Division of Developmental Disabilities (the Division), determining that he was ineligible for Division services because he did not suffer from mental retardation before age 22. Affording the Division its traditional deference, and concluding that its decision is not manifestly mistaken, we affirm.

E.B. has behavioral difficulties and a low IQ. He is unable to live by himself. He dropped out of school during tenth grade, and has a history of alcohol and substance abuse, including the use of marijuana, cocaine and ecstasy. He was admitted to Trenton Psychiatric Hospital on September 1, 2004.

On October 25, 2004, E.B. applied to the Division for institutional services. The Division denied his application, stating that he did not meet the eligibility criteria under N.J.A.C. 10:46 because he did not have a developmental disability before age 22. E.B. appealed, and the case was transferred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). At that hearing, both the Division and E.B. called expert witnesses to testify as to whether E.B. suffered from a developmental disability before he was 22 years old. The experts differed when interpreting the results of several IQ tests that had been administered to E.B. between the ages of 15 and 25.

At age 15, E.B. received an IQ score of 86 on a full-scale Wechsler Intelligence Scale for Children - Third Revision (WISCIII) test. At age 21, he scored 67 on a Wechsler Abbreviated Scale of Intelligence (WASI) test. At age 24, he received another IQ score of 67, this time on a full scale Wechsler Adult Intelligence Scale - Third Revision (WAIS-III) test. At age 25, he received an IQ score of 75 on a WASI test administered by the Division's expert, and an IQ score of 67 on a full-scale WAISIII test, administered by Dr. Norman Weistuck, E.B.'s expert.

Dr. Weistuck testified that E.B.'s test scores indicated mental retardation. The Division's expert, Dr. Charles Daalder, testified that the low scores were not attributable to mental retardation, but rather were the result of mental illness contributed to by E.B.'s substance abuse. Both experts, as well as E.B.'s parents, testified about E.B.'s functional limitations in six major life activities.

The ALJ found that E.B. did have the developmental disability of mental retardation before he was 22 years old, which entitled him to Division services. The Commissioner rejected the ALJ's decision, and concluded that E.B. was not eligible for services from the Division. E.B. appeals from that final agency decision.

Our standard of review of an agency decision is constrained. We will not reverse unless the decision is arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record. P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 529-30 (1995); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973)). "If there is 'any fair argument in support of the course [taken by the agency] or any reasonable ground for difference of opinion among intelligent and conscientious officials,' [the court is] obliged to affirm." Rosen by Rosen v. N.J. Div. of Developmental Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992) (quoting Flanagan v. Civil Service Dept., 29 N.J. 1, 12 (1959)), certif. denied, 133 N.J. 440 (1993). "When an agency's decision is manifestly mistaken, however, the interests of justice authorize a reviewing court to shed its traditional deference to agency decisions." P.F., supra, 139 N.J. at 530.

To be eligible for Division services, an individual must have a developmental disability. N.J.S.A. 30:6D-25. The Division of Developmental Disabilities Act (the Act) defines a 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 interdisciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to mental retardation, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met. [N.J.S.A. 30:6D-25b.]

The concomitant regulations state that the criteria for establishing the presence of mental retardation shall be an IQ score of ...


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