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In re J.S.

Superior Court of New Jersey, Appellate Division

June 21, 2013


Argued telephonically: March 22, 2013

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

Evelina E.G. Padilla argued the cause for appellant J.S. (Hinkle, Fingles & Prior, attorneys; Ms. Padilla and S. Paul Prior, on the brief).

Gene Rosenblum, Deputy Attorney General, argued the cause for respondent New Jersey Department of Human Services, Division of Developmental Disabilities (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Rosenblum, on the brief).

Before Judges Axelrad, Sapp-Peterson [1] and Haas.



The parents of J.S., a developmentally disabled adult who was in an out-of-state private residential placement, appeal from a final decision of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD), declining to place her name on the priority waiting list (PWL) retroactive to April 15, 1996. Appellants contend the DDD had an affirmative obligation to individually notify them of the change in the regulations that occurred in 1996, after J.S. had been assigned to the non-urgent waiting list category, which rendered J.S. eligible for placement on the PWL. They argue that as a remedy for the agency's failure, J.S. should be placed on the PWL retroactive to the date of the regulation rather than as of January 7, 2004, the date they requested the priority assignment. Appellants also challenge the DDD's decision to treat the matter as a non-contested case. They additionally seek attorneys' fees and costs of litigation. Based on our analysis of the record and applicable law, including our deference to the agency's interpretation of its regulations, we are not convinced the DDD was legally obligated to affirmatively provide such individual notice or that it acted arbitrarily or capriciously warranting judicial intervention.


J.S. is a forty-seven year old developmentally disabled woman who is severely cognitively impaired as a result of a brain injury. She is non-verbal and functions as a four-year old. Beginning in 1984, appellants privately placed her at Riverbrook residential program in Stockbridge, Massachusetts. The placement was funded initially by the school district and then by appellants.

By letter of January 10, 1995, the DDD advised appellants that J.S. was deemed eligible for services and placed her on a non-urgent (non-priority) "category 3" - "case management and community housing waiting list." Appellants did not challenge the placement. See N.J.A.C. 10:46C-1.8(a).[2] Because J.S. was placed privately outside New Jersey and appellants did not request any additional services, the DDD did not provide an Individualized Habitation Plan (IHP) for her. See N.J.S.A. 30:6D-10 (requiring the agency that is "primarily responsible for the delivery or for coordinating the delivery of services" for persons with developmental disabilities to develop an IHP); N.J.S.A. 30:6D-12 (providing for a plan coordinator to conduct an annual review of the IHP with such person's parents or representative); see also N.J.A.C. 10:46C-1.3 (defining IHP).

In 1996 the DDD's regulations changed, requiring the DDD to provide families with the opportunity to place their children on the PWL once the younger parent turned fifty-five years of age. See N.J.A.C. 10:46C-1.8(a) ("When both parents . . . reach age 55, they shall be given the option to have the individual placed on the urgent waiting list at the time of the annual IHP."); N.J.A.C. 10:46C-1.8(b) ("If the parent(s) does not choose to have the individual placed on the urgent waiting list, the parent(s) shall be given an option to place the individual on the waiting list no less than annually at the time of the IHP."); 28 N.J.R. 2614(a), eff. April 15, 1996.[3]

From 1996 to 2003 appellants had no contact with the DDD. In December 2003, appellants inquired by telephone about placing J.S. on the PWL, and on January 7, 2004, they submitted a written application for placement. A January 20, 2004 letter from the DDD to appellants confirmed that J.S. was approved for a Community Services Residential Arrangement and was placed in the priority category effective January 7, 2004. The letter further advised of the appeal procedure. Appellants did not then object to the effective date.

In 2005, appellants contacted the DDD case manager seeking assistance with the financial obligations at Riverbrook but were advised that funds were not available. At that time both appellants were over sixty-five years of age.

In a December 7, 2009 letter, appellants' counsel first requested the DDD place J.S. on the PWL for residential services retroactive to April 15, 1996, the effective date of N.J.A.C. 10:46-1.8, after J.S. became eligible and was assigned to the non-urgent waiting list category. The letter advised that J.S.' youngest parent had turned fifty-five in December 1994, and contended the DDD had an obligation to advise her family of the priority option available to it under the new regulation at the time of its enactment.

On January 22, 2010, the DDD advised that the request was going to be treated as a non-contested matter, N.J.A.C. 10:48-3.1, and held an informal conference on May 12, 2010. On December 6, 2010, appellants and eight other families filed a complaint for declaratory and injunctive relief in the Chancery Division, Mercer County, seeking to compel the agency to transmit their administrative appeals to the OAL for contested case hearings. By order of February 22, 2011, the Chancery Division granted the DDD's motion to transfer the case to the Appellate Division. R. 2:2-3(a)(2). By order of September 6, 2011, we denied appellants' motion for summary disposition, and by order of December 8, 2011, we granted the DDD's motion to remand to the agency to issue final decisions addressing the merits of the appeals.

In the interim, on August 19, 2011, the DDD released its informal conference report adverse to appellants. Appellants advised the DDD they wished to further pursue the appeal. The DDD offered appellants an administrative paper review pursuant to N.J.A.C. 10:48-4.3, and appellants submitted written arguments. On January 20, 2012, DDD's administrative review officer issued a recommended decision finding J.S. was properly placed on the PWL with an effective date of January 7, 2004. Appellants filed exceptions.

On March 9, 2012, the DDD issued a final agency decision concluding J.S. was properly assigned to the PWL effective January 7, 2004, rather than retroactively to April 15, 1996, and the determination was not arbitrary or capricious. Acting Assistant Commissioner (AAC) Dawn Apgar reasoned that: (1) appellants were given the opportunity to place J.S. on the PWL in 1995, and declined because she was in a private placement; (2) because appellants did not request any additional services for J.S. beyond those they were already privately providing for her at Riverbrook, the DDD did not have primary responsibility to provide services to her within the meaning of N.J.S.A. 30:6D-10, and did not provide an IHP for her; (3) appellants could have requested placement on the PWL at any time and were not prevented from doing so by the DDD; in fact, as soon as they requested that category, the DDD reviewed and approved the request because the agency determined J.S. was at significant risk; and (4) to give J.S. a PWL date of April 15, 1996, would be contrary to the agency's Waiting List Procedure. AAC Apgar also found the matter was a non-contested case that did not warrant transfer to the OAL for three reasons: (1) it did not involve an appeal of determinations of ineligibility for services, appeals of specific offers of placement, or appeals of waiver-funded services under the agency's appeal procedure, N.J.A.C. 10:48-2.2; (2) there were no disputes of material facts; and (3) there was no constitutional requirement for a trial-type hearing.

This appeal ensued. Appellants assert the ...

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