On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-140-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 15, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Plaintiff Cumberland County Board of Health appeals from a summary judgment order dismissing its action against defendants Mayor and Council of the City of Vineland. Because we find no legal error in the grant of summary judgment, we affirm.
This is a funding dispute between the parties arising from the provision of early intervention services by plaintiff to children with disabilities in the City of Vineland. The federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1482, directs the United States Secretary of Education to "make grants to States . . . to assist each State to maintain and implement a statewide . . . interagency system to provide early intervention services for infants and toddlers with disabilities and their families." 20 U.S.C.A. § 1433. States participating in the IDEA must comply with the requirements for establishing a statewide system. 20 U.S.C.A. § 1435. States must enter into interagency agreements that define each agency's duty to pay for the services, 20 U.S.C.A. § 1435(a)(10)(F), and may enter into contracts with service providers, 20 U.S.C.A. § 1435(a)(11).
New Jersey has elected to participate in the IDEA, Baer v. Klagholz, 339 N.J. Super. 168, 189 (App. Div.), certif. denied, 170 N.J. 84 (2001), and has adopted statutes and regulations to comply with the requirements for establishing a statewide system of early intervention services for children with disabilities. N.J.S.A. 26:1A-36.7; N.J.A.C. 8:17-1.1 to -18.2. Pursuant to N.J.S.A. 26:1A-36.7, the New Jersey Department of Health and Senior Services (DHSS) is the state agency required to "establish a [s]tatewide system of early intervention services" for children with disabilities.*fn1
New Jersey's response to the IDEA is primarily regulatory. Baer, supra, 339 N.J. Super. at 189. Any entity receiving funds from DHSS to render early intervention services under N.J.A.C. 8:17-3.3 is a "[p]rovider agency." N.J.A.C. 8:17-1.3. A provider agency is required to render early intervention services "at public expense and without fees being charged to parents," N.J.A.C. 8:17-9.2(a), unless the family's income equals or exceeds 350% of the federal poverty level, in which case the family must contribute, N.J.A.C. 8:17-9.2(b), (d), (e). Provider agencies under contract with DHSS are monitored by DHSS pursuant to N.J.A.C. 8:17-17.1.
On March 9, 1978, the Cumberland County Board of Chosen Freeholders (the Freeholders) passed a resolution establishing plaintiff in accordance with N.J.S.A. 26:3A2-4. Thereafter, plaintiff established the County Health Department pursuant to N.J.S.A. 26:3A2-6. In 1983, DHSS (then the New Jersey Department of Health) and plaintiff executed an Agreement of Cooperation (the Agreement) for the Health Department to provide early intervention services to all county residents.*fn2
DHSS makes detailed references to the Agreement in a November 18, 2005, letter to plaintiff. The Agreement apparently obligated plaintiff to provide "'case management services and early intervention intake'" for children with disabilities "'at no cost'" to county residents, which services would be jointly funded by the County and DHSS's Special Child Health Services (SCHS) through "'a mutually agreed upon agency and at a mutually agreed upon level of funding.'" The Agreement had a one-year term, automatically renewable on a year-to-year basis.*fn3
DHSS would monitor the "'agreed upon agency'" by including it as part of the Early Intervention Services (EIS) within the SCHS program. The "agreed upon agency" was apparently the Health Department in this case because DHSS identified the Health Department on its website as the SCHS Case Management Unit for the County. DHSS and the Health Department executed a grant contract, authorizing the Health Department to receive a grant to partly fund the cost of providing early intervention services to all County residents. Plaintiff has received a grant from DHSS since 2002, but it is unknown whether plaintiff or the Health Department executed a contract with DHSS in 2002.
As the SCHS program developed, the cost of providing early intervention services annually exceeded the amount of the DHSS grant. Plaintiff has paid for the shortfall from its general operating revenue, which is funded by the County. The County imposes a health tax on county residents living in municipalities that participate in the Health Department. The health tax is assessed at the same time as other taxes and is a separate line item on the county tax form.
City residents are not assessed the health tax because the City withdrew from participating in the Health Department in accordance with N.J.S.A. 26:3A2-12 by establishing a local health department. As a result, city residents do not share in the costs for providing early intervention services that are in excess of the grant. All other municipalities within the County participate in the Health Department. Concerned with this taxing disparity, plaintiff sought to cure it by seeking the City's voluntary participation in funding these services. Over time, the City vacillated over making voluntary payments to plaintiff of sums that represented the proportionate share of services utilized by city residents.
Based on the City's failure to remit payment, plaintiff informed DHSS in 2005 that it intended to terminate the early intervention services provided to city residents by the end of the year. In response, DHSS told plaintiff in a letter dated November 18, 2005, to continue providing services to city residents irrespective of any payments that may be due to plaintiff. DHSS advised plaintiff that ...