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J.J. and L.J. On Behalf of C.J v. New Jersey Division of Developmental Disabilities

May 23, 2011

J.J. AND L.J. ON BEHALF OF C.J., PETITIONERS-APPELLANTS,
v.
NEW JERSEY DIVISION OF DEVELOPMENTAL DISABILITIES, RESPONDENT-RESPONDENT.



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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2011

Before Judges Yannotti, Espinosa and Skillman.

J.J. and L.J., the parents and co-guardians of C.J., appeal from a final determination of the Division of Developmental Disabilities (Division), denying their application to provide funds for C.J.'s transportation to and from a day program. We affirm.

C.J. is a twenty-five year old man with autism and a history of serious maladaptive behavior. He resides with his parents in Somerset County. In 1990, C.J. was placed in an educational program at the Eden Institute (Eden) in Mercer County. From 1990 to 2007, his local school district paid for that program.

When C.J. reached the age of twenty-one, his school district was no longer obligated to bear the cost of his education. The Division offered to enroll C.J. in a day program at the Center for Family Support (CFS), which is located in Somerset County. Appellants declined the offer and requested that the Division enroll him in a vocational day program at Eden.

The Division agreed to do so, but informed appellants that it could not fund C.J.'s transportation to and from the program. Appellants initially accepted the Division's offer and assumed the responsibility for transporting C.J. to and from Eden.

However, appellants requested that the Division provide a written explanation for its refusal to provide C.J. with transportation to the Eden program. In January 2008, appellants asked that the matter be transmitted to the Office of Administrative Law (OAL) for a hearing.

In February 2008, Assistant Commissioner Kenneth W. Ritchey (Ritchey) advised appellants that the matter was not considered to be a "contested" case but offered appellants the opportunity for an informal conference with a hearing officer. The conference took place in April 2008, after which the hearing officer issued a letter dated May 15, 2008, in which he stated that there was no basis for the Division to change its position regarding appellants' request for transportation.

Thereafter, appellants advised the Division that they wanted to pursue the matter further and again requested that the case be transmitted to the OAL for a hearing. Appellants also asked the Division to explain why it had refused to provide C.J. with transportation when it was providing transportation to other individuals in the Eden program.

The Division again denied appellants' request to provide C.J. with transportation to and from the Eden program. In addition, on June 17, 2008, Lee Berkey (Berkey), the Division's Chief of Staff, informed appellants that C.J. was not eligible for any program from the Division which offered day services, including transportation services, because he was not on the "Community Care Waiver" (CCW).

The CCW is a program that allows the State to receive partial reimbursement from the federal Medicaid program for the cost of providing services to certain individuals who would require institutionalization without such services. 42 U.S.C.A. ยง 1396n(c)(1); N.J.A.C. 10:46-1.3. The Division operates a CCW program, but maintains a waiting list for the program ...


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