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Damian Caliendo, An Incapacitated Person, By and Through His v. Jennifer Velez

July 17, 2012

DAMIAN CALIENDO, AN INCAPACITATED PERSON, BY AND THROUGH HIS GUARDIANS, DANIEL AND ROSAMUND CALIENDO, PLAINTIFF-APPELLANT,
v.
JENNIFER VELEZ, COMMISSIONER, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, IN HER OFFICIAL CAPACITY; KENNETH W. RITCHEY, ASSISTANT COMMISSIONER, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF DEVELOPMENTAL DISABILITIES, IN HIS OFFICIAL CAPACITY; WILLIAM WALL, CHIEF EXECUTIVE OFFICER, HUNTERDON DEVELOPMENTAL CENTER, IN HIS OFFICIAL CAPACITY, AND CHRISTOPHER HOMA, COTTAGE TRAINING SUPERVISOR, HUNTERDON DEVELOPMENTAL CENTER, IN HIS PERSONAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-316-10.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 7, 2012

Before Judges Parrillo, Alvarez and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

This appeal challenges the validity of a regulation adopted by the Department of Human Services, N.J.A.C. 10:41-3.2(b), which provides that incident reports prepared by the Division of Developmental Disabilities are not public records and may be released only by court order. Appellant, a developmentally disabled adult who resides at the Hunterdon Developmental Center, contends that this regulation is inconsistent with N.J.S.A. 30:4-24.3, which authorizes a developmentally disabled resident of a state institution to consent to the release of a confidential document that mentions the resident. We reject this challenge and uphold the validity of N.J.A.C. 10:41-3.2(b).

The appeal was precipitated by an incident that occurred at an annual Christmas party held on December 1, 2007 at the cottage in the Hunterdon Developmental Center where appellant resides. When appellant's parents and guardians, Daniel and Rosamund Caliendo, arrived at the cottage, they observed appellant unattended, facing the wall, with his wheelchair tilted up in a position that prevented him from using his feet to move it, crying for someone to help him. The Caliendos immediately released the wheelchair from this position. They then asked the staff in attendance why their son had been placed in such a helpless position, but did not receive a satisfactory response.

Subsequently, the Caliendos submitted a written inquiry to Hunterdon Developmental Center concerning the incident involving their son. A member of the Hunterdon staff with the title "Quality Assurance Specialist" conducted an investigation of the incident, which included interviews of the members of the staff on duty in the cottage when it occurred. The results of the Quality Assurance Specialist's investigation were set forth in a fifteen-page report, dated December 11, 2007, which contained findings of fact, a series of conclusions regarding the incident, and recommendations for remedial actions to prevent a similar occurrence.

After receiving this report, the Chief Executive Officer at Hunterdon sent the Caliendos a letter, dated December 13, 2007, which summarized the results of its investigation. The letter stated that whatever member of the staff put their son's wheelchair in a tilted-back position "did so out of the disregard for the client's right to unrestricted mobility[,]" but that the investigation did not reveal the identity of that person. The letter also stated that "[a]additional training will be conducted to assure that [appellant's] rights . . . are protected."

The Caliendos advised officials of the Department of Human Services that they were not satisfied with this response and claimed that they were entitled, as appellant's guardians, to see the entire December 11, 2007 investigation report. However, the Department refused to release the report to the Caliendos on the ground that it was confidential.

Appellant subsequently filed a multi-count complaint in the Law Division against the Commissioner of the Department of Human Services, the Chief Executive Officer at Hunterdon and various other officials. One count of the complaint challenged the validity of N.J.A.C. 10:41-3.2(b). Every other count has now been resolved by a settlement agreement and dismissal based on that agreement. The Law Division transferred the count challenging N.J.A.C. 10:41-3.2(b) to this court in accordance with Rule 2:2-3(a)(2).

During the course of the proceedings before the Law Division, the trial court ordered the disclosure to the Caliendos of a redacted version of the December 11, 2007 investigation report. In addition, the Division provided an unredacted version of the report to Disability Rights New Jersey, the agency appointed to represent the interests of developmentally disabled persons in accordance with 42 U.S.C.A. ยง 15043, which also represents ...


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