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In re D.B.

January 26, 2009

IN THE MATTER OF D.B.


On appeal from a Final Decision of the Department of Human Services, Division of Developmental Disabilities.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Gilroy and Chambers.

H.B. and S.B., on behalf of their son D.B., appeal the final decision of the Department of Human Services (Department), Division of Developmental Disabilities (Division), requiring that they contribute to the cost of D.B.'s residential placement until he reaches the age of eighteen and that thereafter D.B. contribute to that cost from his Social Security payments. Although existing law requires these contributions, H.B. and S.B. contend that a settlement reached with the Division and D.B.'s school district in 1999 relieves them and D.B. of these obligations. We disagree, and affirm.

D.B., born on November 13, 1989, is autistic and severely mentally handicapped; he has poor life skills; and he has a history of severely violent behavior. In 1999, due to D.B.'s violent behavior and the refusal of D.B.'s local school district, the Roselle Park Board of Education (Board of Education), and the Division to fund a residential placement for him, his parents commenced litigation on his behalf to compel them to do so. That litigation was settled.

As part of the settlement, the Division agreed, in a written Stipulation of Settlement (Stipulation), to place D.B. in The Linden Neurobehavorial Stabilization Unit at Bancroft Neurohealth beginning on May 1, 1999, at the Division's cost. Beginning September 1, 1999, D.B. would be placed in the Children's Residential Program at Bancroft Neurohealth. The Stipulation further provided that the Division "will pay the residential portion of the Children's program, which at the time of the signing of this Agreement is $99,767.543 per year."*fn1 Nothing in the agreement refers to contributions by D.B. or his parents. The Stipulation was executed by H.B. and S.B. and their attorney as well as by a Deputy Attorney General and the Assistant Director of the Northern Region of the Division. The Stipulation was approved by the Administrative Law Judge in accordance with N.J.A.C. 1:1-19.1.

In the companion Stipulation of Settlement reached between D.B.'s parents on behalf of D.B. and the Board of Education, the Board of Education agreed to pay the educational component of D.B.'s placement, which in 1999 was $50,498.40.

These arrangements continued for a number of years, with the Division paying the residential component of D.B.'s placement and the Board of Education paying the educational component of the placement. The Division then sent a letter to D.B. requesting payment of a monthly contribution to the cost of his residential placement.*fn2 D.B. and his parents refused to make a contribution, contending that under the terms of the settlement, the costs of his placement were to be borne entirely by the Division and the Board of Education.

D.B.'s request for an administrative hearing was denied on the basis that no factfinding was necessary. In its Final Decision of September 6, 2007, the Department rejected the contention of D.B. and his parents that they need not contribute to his residential care. The Department concluded that the parents must contribute to D.B.'s residential placement cost until he reached the age of eighteen, in accordance with N.J.A.C. 10:46D-3.2. Based on the information that the parents had provided to the Department regarding their income, the Department determined that their income did not meet the minimum income threshold until January 2007. Accordingly, they did not owe any amounts up to that time. Because the Department had not yet received additional financial information requested from the parents, the exact amount of their contribution was not determined. The parents were ordered to submit the additional information if they had not already done so. Since D.B. turned eighteen on November 13, 2007, the parent's obligation to contribute spans a period of a little less than eleven months.

The Final Decision determined that beginning on November 13, 2007, when D.B. reaches the age of eighteen, he is to contribute to his residential placement cost in accordance with N.J.A.C. 10:46D-3.1. The Division determined that he must contribute seventy-five percent of his unearned income less a personal allowance of $40 per month. D.B.'s sole source of income identified by the Division was $753.05 a month in Social Security payments.

D.B. and his parents appeal the Final Decision. They contend that they were entitled to a factfinding hearing before an administrative law judge. They also maintain that due to the terms of the settlement, they have no obligation to make the contributions and that the Division is bound by those terms under the principles of res judicata, collateral estoppel, the entire controversy doctrine, and waiver.

At the outset, we note that no administrative hearing was required in this case. An administrative hearing is only necessary when material issues of fact are in dispute. N.J.A.C. 10:46D-6.1(f); Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, 498 U.S. 1073, 111 S.Ct. 799, 112 L.Ed. 2d 860 (1991). Here the material facts are not in dispute. Rather the disagreement concerns the ...


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