On appeal from the New Jersey Department of Human Services, Division of Developmental Disabilities.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 15, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
B.J. and G.J., the parents of M.J., a developmentally disabled adult, appeal from the final decision of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD) holding that M.J. is not entitled to a contested case hearing or placement on an emergency basis. Appellants also seek compensation for the DDD's failure to provide day services, reimbursement for their expense of placing him in a private placement facility, and attorneys' fees and costs of litigation. We affirm.
M.J. is a thirty-two-year-old developmentally disabled man diagnosed with cerebral palsy who suffers from right hemiparesis, static encephalopathy, seizure disorder, generalized anxiety disorder, and learning disabilities. Because of his disabilities, M.J. was determined eligible for DDD services in September 1997. The approval letter also stated that "[M.J]'s name is being added to the waiting list for an alternate living arrangement, with placement to take place sometime in the future," with the caveat that "the provision of all services is contingent upon the availability of resources."
M.J. received special education and related services until his educational entitlement ended on June 30, 2001, at which time he "aged out" at twenty-one years of age. He earned an associates degree at Middlesex Community College and has been employed, including at the time of the DDD's final decision.
M.J. lived at home with his father, B.J., and mother, G.J., until May 2007. G.J. is the sole wage earner for the family. B.J. is permanently disabled and unable to work. B.J. certified that he suffers from sleep apnea, high blood pressure, and depression, and these conditions are exacerbated by the stress caused by caring for M.J. B.J. also certified that he was "more disorganized and more forgetful and essentially unable" to adequately care for his son while his wife was at work.
On August 28, 2006, G.J. advised M.J.'s case manager, Beth Malone, that they had identified JESPY House,*fn1 a private agency which operates supervised apartments for individuals with developmental disabilities, as a possible placement for M.J. and sought the DDD's assistance. Malone's progress report of that date reflects the phone conversation, noting M.J. was working part-time at Sam's club, "Mom looked into placement at JESPY House (listing its address and phone number)," M.J. was participating in the recreational programs there, and "Mom wants him placed at JESPY w/ DDD assistance." (emphasis added). The progress report further reflects Malone "explained placement procedure (He is on priority list) (and that Division will most likely not be able to assist w/ cost of placement at JESPY)."
In a letter dated October 12, 2006, the DDD confirmed it received appellants' request to place M.J. on its Alternative Living Arrangement Waiting List, effective September 3, 2005. The letter stated that appellants' "preference was honored to place [M.J.] in the priority category due to a determination of significant risk and the willingness to accept the preferred service if it were offered."
On May 24, 2007, G.J. informed Malone that they had placed M.J. at JESPY House on May l4. Her progress report reflects that "Family would like DDD to assist w/ cost of placement," and she "explained that RLC, [Real Life Choices, which allows individuals to self-direct their services,] may be the only available option to them & it would only offer supports, not cover residential costs." Malone further reported that G.J. "was interested in any assistance they can get[,]" to which she responded, that M.J. was "on the primary waiting list but his name may not be reached for some time." (emphasis added).
By letter of August 6, 2007, through counsel, appellants asked the DDD to consider M.J. for emergency placement. The letter advised that about a year ago, appellants came to the conclusion they could no longer care for their son at home and contacted the DDD for residential assistance, explaining they were contemplating placing him at JESPY House. He referenced the case manager's letter. He also stated she promised to look into funding for residential services, including JESPY House, but did not get back to the family. The [family] did not speak to the case manager again until May 2007 when they called to tell her they were placing [M.J.] at JESPY House. She still had not investigated residential funding but again promised to do so. To date, she has not responded to the family, nor did she ever explain to them the possibility of placement on an emergency basis.
The letter further advised that B.J.'s health was deteriorating and G.J. could no longer work and care for M.J. at the same time. Appellants' counsel faxed a copy of the letter "as a follow-up emergency placement request" on January 14, 2008. Appellants' counsel sent another follow-up letter on July 8, 2008.
By letter of April 16, 2009, they appealed "the denial of emergency status and appropriate residential services." Appellants alleged the DDD's actions and failure to provide M.J. with appropriate residential services violated the Developmental Disabilities Rights Act, N.J.S.A. 30:6D-1 to -12, and related state and federal law. Appellants requested a hearing pursuant to N.J.A.C. 10:48, continued placement at JESPY House, and other appropriate relief, including reimbursement of attorneys' fees and costs.
By letter of July 30, 2009, the DDD advised it determined the appeal to be a non-contested matter. However, an informal conference would be scheduled for appellants to present new or additional information to support their position.
The conference took place on September 23, 2009. It was attended by appellants and their attorney, Herbert D. Hinkle; Malone; and the DDD's County Administrator, Marge Briegal. Stephen DeLuca, the DDD's Regional Administrative Practice Officer, chaired the conference.
By letter of December 8, 2009 to the DDD's Assistant Commissioner, appellants' counsel asserted due process of law violations in the agency perfunctorily deeming the matter non-contested and in failing to issue its informal conference report within twenty working-days as required by N.J.A.C. 10:48-4.1(a)(3). Appellants' counsel sent a follow-up letter on March 29, 2010, but again received no response.
On December 6, 2010, appellants and eight other families filed a complaint for declaratory and injunctive relief in the Chancery Division, Mercer County, seeking: (1) a declaratory judgment with respect to the pending appeals; (2) an injunction requiring the DDD to transmit appellants' appeals to the Office of Administrative Law (OAL) for a contested case hearing; and (3) other appropriate relief, including attorneys' fees and costs. On February 22, 2011, the Chancery Division transferred the case to the Appellate Division. R. 2:2-3(a)(2).
Appellants filed a motion for summary disposition, which we denied by order of September 6, 2011. The DDD filed a motion for remand to issue a final decision addressing the merits of the appeal, which we granted by order of December 8, 2011.
The DDD released the informal conference report on August 26, 2011. DeLuca summarized both parties' positions and ultimately denied appellants' request for emergency residential services, but did recommend that "immediate consideration be given to [M.J]'s eligibility for day program services either through traditional day services or by self direction."
DeLuca explained that pursuant to N.J.A.C. 10:46B-3.3(a), "[a]n emergency need for services or placement shall be deemed established when the person is homeless or in imminent peril, as defined in this chapter." He stated that "[w]hile imminent peril might have existed prior to the private placement for [M.J.] into JESPY House, this was never assessed by the Regional Administrator pursuant to N.J.A.C. 10:46B-3.3(b) to determine whether an emergency might have existed prior to August of 2007." Accordingly, the "only potential emergent need for placement would have occurred if the family could not continue to provide for the private funding of [M.J]'s placement and a date certain where he would become homeless was established." The report also noted that a request for emergency placement was not made until August 2007.
DeLuca further explained that the DDD did not contest that M.J. was assigned a Priority Waiting List date not simply because his youngest parent turned fifty-five years of age. See N.J.A.C. 10:46C-1.4.*fn2 Furthermore, while some of the conditions listed in N.J.A.C. 10:46C-1.4(d) might have required evaluation by the DDD to determine if there were a need for emergency placement, the case manager "did not chart that there was any request for this and it did not get communicated until August of 2007 that an emergency might have existed."
Appellants filed an administrative appeal, urging that "self-directed day services should have been provided at a minimum starting in 2005," and "the matter should be deemed to be an emergency." They further contended it was unconscionable that it took the DDD four years to reach this point and "the family should not be made to bear the brunt of the cost of services during this period."
By letter of September 9, 2011, the DDD offered an administrative paper review pursuant to N.J.A.C. 10:48-4.3. On November 16, 2011, appellants' counsel received a copy of the agency's file on M.J. Appellants submitted their brief on December 14, 2011. In their accompanying certification dated December 7, 20ll, they elaborated, in part:
6. Despite our efforts to involve DDD in [M.J.'s] transition from educational services to adult services, [M.J.] was never provided with day services nor was he ever placed on a waiting list for such services.
7. On or about August 2006, we came to the conclusion that we could no longer care for [M.J.] at home. We looked at a number of possible placements and decided that JESPY House best met [M.J.'s] needs. We contacted the [DDD] for residential assistance, explaining that we were contemplating placing [M.J.] at JESPY House. [Reference to Malone's attached Progress Report].
11. The DDD case manager promised to look into funding for residential services, including JESPY House, yet never followed-up with  us. The DDD case manager never indicated that the agency could or might provide assistance either in the form of an emergency placement or funding for day services.
12. In May 2007, we contacted [M.J.'s] case manager to notify her that we could not safely care for [M.J.] at home anymore and were placing [M.J.] at JESPY House. ...