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Pichardo v. New Jersey Dep't of Human Services

October 1, 2009

JULIA PICHARDO, APPELLANT,
v.
THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF DISABILITY SERVICES, RESPONDENT.



On appeal from the Department of Human Services, Division of Disability Services, Docket No. 00370.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2009

Before Judge Rodríguez and Reisner.

Julia Pichardo appeals from a September 2, 2008 final decision issued by the Department of Human Services (DHS), Division of Disability Services (DDS), denying her request for funding to repair or replace her laptop computer. We affirm.

I.

These are the undisputed facts. Pursuant to N.J.S.A. 30:6F-6, the DHS administers the Traumatic Brain Injury Fund (Fund) as "the payer of last resort, for the costs of post-acute care, services and financial assistance provided in this State to residents of this State who have survived neuro-trauma with a traumatic brain injury." See also N.J.A.C. 10:141-1.3. In the event there are insufficient funds to meet all applicants' needs, the statute authorizes DHS to set priorities for the expenditure of the Fund's resources. N.J.S.A. 30:6F-6b(4). The Fund is administered on a day-to-day basis by the Traumatic Brain Injury Fund Review Committee (Committee), which reviews individual funding applications and determines eligibility. See N.J.A.C. 10:141-1.8. Appeals from the Committee are decided by the DDS, which administers the Fund for DHS. See N.J.A.C. 10:141-1.4(a)1.

Pichardo has been eligible for assistance from the Fund since 2004. In March 2005, the Fund provided $869 as partial funding to purchase a laptop computer for Pichardo. The State Division of Vocational Rehabilitation Services paid the balance of the $1451 purchase price. In December 2007, Pichardo requested by email that the Fund pay approximately $700 to fix her laptop, because it had been damaged due to a "fall from a height."

The Fund's staff sent her a responding email on December 10, 2007, denying the request, because the Fund's regulations preclude payment for repairing computer equipment. Once the Fund pays to provide a computer, or other "assistive technology," the recipient is responsible to pay for any repairs that may later be required:

Assistive technology is defined as any technological device that improves the functional independence of the beneficiary. Equipment and technology must be justified under the service plan as necessary and cost effective. This definition excludes payment for routine repairs, upgrades, or service contracts. Such expenses shall remain the responsibility of the beneficiary. [N.J.A.C. 10:141.1.12(a)(33)(emphasis added).]

On December 17, 2007, one week after the agency rejected her request to pay for repairs, Pichardo submitted a request that the Fund pay $3000 to buy her a new computer. By letter dated February 4, 2008, the Committee denied the request for two reasons: (1) The Fund had already provided funding for a computer and "[a] computer and printer is a one time purchase by the Fund;" and (2) "care [and] maintenance . . . is the responsibility of the individual recipient."

Through her counsel, Pichardo requested that the Committee reconsider its decision. She contended, in pertinent part, that the "one computer per individual lifetime" policy was "potentially unfair," because it did not "take into account the changing needs of individuals with traumatic brain injuries over their lifetimes" and did not "consider advances in technology." She also argued that her existing computer had a cracked screen, was unusable and was "unfixable." She did not provide legally competent evidence of the latter claim, nor did she provide evidence that in her individual case her existing computer's technology was obsolete due to her "changing needs."

When reconsideration was denied, Pichardo appealed to the DDS, which rejected the appeal on September 2, 2008. The DDS concluded that the matter did not require an evidentiary hearing, because there were no material facts in dispute, see, e.g., In re Farmers' Mut. Fire Assur. Ass'n of N.J., 256 N.J. Super. 607, 618 (App. Div. 1992), and the Committee and Pichardo simply disagreed "as to how the Fund's regulations and policies should apply" to her request for funding for a new computer.

The DDS concluded that her request for a new computer "was a means of evading" the agency's regulations "prohibiting payment for routine repairs." The agency also rejected Pichardo's challenge to the "one computer per lifetime" policy, because her arguments in support of that challenge had no application to her personal situation. She was not asking for a new computer due to changes in technology or changes in her medical condition and ability to use technology. Instead the Committee considered her case "as a request for a replacement for a laptop damaged in an accident." However, acknowledging the policy issues raised by Pichardo's counsel, ...


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