L.R. v. Division of Disability Services

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5701-11T2
L.R.,
APPROVED FOR PUBLICATION
Petitioner-Appellant,
February 6, 2014
v.
APPELLATE DIVISION
DIVISION OF DISABILITY SERVICES,
Respondent-Respondent.
_________________________________
Argued September 11, 2013 – Decided February 6, 2014
Before Judges Fuentes, Simonelli and
Fasciale.
On appeal from the New Jersey Department of
Human Services, Division of Disability
Services.
Susan W. Saidel argued the cause for appellant
(Disability Rights New Jersey, attorneys;
Ms. Saidel, of counsel and on the brief).
Jennifer Simons, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Simons, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
L.R. participates in the Personal Assistance Service
Program (PASP) established by the Legislature under the Personal
Assistance Services Act, N.J.S.A. 30:4G-13 to -22, (the Act).
The PASP is administered by the Division of Disability Services
(DDS or Division), in the New Jersey Department of Human
Services.1 As a resident of Hunterdon County, L.R. was able to
receive PASP assistance benefits under the "cash management
plan" earlier than other similarly situated eligible consumers
residing in other counties in the State.2 In December 2009,
L.R. requested to use the unspent part of her monthly budgeted
cash allowance to pay for the landline connection to her
residence phone, cell phone service, and internet access.
The Division denied her request on January 6, 2010.
Relying on N.J.A.C. 10:140-2.2(e), the Division determined it
was not obligated to pay for services that are not related to
1
DDS defines its core mission as "serving people who have become
disabled as adults, whether through illness or injury. Such
conditions are also called late-onset disabilities. It is
estimated that one in five people - about 1.75 million New
Jerseyans - has a disability that may limit their physical or
cognitive function." Division of Disability Services, STATE OF NEW
JERSEY, DEPARTMENT OF HUMAN SERVICES (January 21, 2014),
http://nj.gov/humanservices/dds/home/.
2
In March 2000, Hunterdon County became the first county in the
State to use the cash management plan as a pilot program. The
cash management model was adopted by Essex County in July 2001.
The Division convened a "PASP Cash Model Legislative Panel" in
2005 to develop a legislative proposal to implement the cash
model approach as a formal amendment to the Act. The
Legislature formally amended the Act to incorporate the cash
management model approach. The legislation was signed into law
by Governor Corzine effective November 20, 2009. 43 N.J.R.
2551(a)(Oct. 3, 2011).
2 A-5701-11T2
the consumer's personal care or performed by a personal
assistant. According to the Division, L.R. was only entitled to
receive financial assistance to pay the cost of a personal
assistant.
Although L.R. had the right to appeal an adverse agency
action under N.J.A.C. 10:140-3.10, and to further file an
administrative appeal of an adverse decision with the PASP State
Program Administrator, N.J.A.C. 10:140-3.11(d), she claims that
her initial efforts to challenge the denial of her request were
met with great resistance, misinformation, and obfuscation.3
L.R. eventually filed an administrative appeal which was
transferred to the Office of Administrative Law (OAL) for
adjudication.
3
In a certification included in her appellate appendix, L.R.
averred that the fiscal intermediary for the Hunterdon County
PASP told her there was no way for her to challenge this
determination by way of an appeal, grievance procedure, or other
form of reconsideration. Although these allegations have not
been confirmed, we expect the Division to investigate this
matter as a possible violation of L.R.'s Personal Assistance
Consumer's Bill of Rights under N.J.S.A. 30-4G-16.1(h), (i) and
(j).
The fiscal intermediary is the agency that disburses "the cash
benefit to consumers under the Personal Assistance Services
Program." N.J.A.C. 10:140-1.4. The fiscal intermediary also
serves as the business agent for the consumer and prepares "the
payroll checks and other disbursements at the direction of the
consumer, as well as keep records of all transactions." Ibid.
(Emphasis added).
3 A-5701-11T2
Because the salient facts were not disputed, both sides
moved for summary decision before the Administrative Law Judge
(ALJ) assigned to the case. After considering the arguments
presented, the ALJ issued an initial decision holding that under
N.J.S.A. 30:4G-14, PASP funding can only be used to cover the
cost of employing "personal care assistants" to perform
"personal assistance services," as defined in N.J.A.C. 10:140-
1.4. The ALJ thus accepted the Division's position to limit
PASP benefits to providing "personal care services through
personal care assistants."
As a corollary to this principal ruling, the ALJ rejected
L.R.'s argument that the programmatic funding restrictions
endorsed by the Division here were not applicable to individuals
receiving PASP funding through the "cash management model." As
authorized by N.J.A.C. 10:140-3.11(e), the Commissioner's final
decision adopted without modification the ALJ's findings and
conclusions of law. Although the Commissioner concluded that as
a matter of law, the Legislature intended the Act "to provide
individual recipients with choice and control over their chosen
services," he nevertheless concluded L.R. was not entitled to
use unspent budgeted funds under the cash management plan to
offset the cost of internet access and/or to pay for the use of
a cellular phone or landline telephone service in her residence.
4 A-5701-11T2
L.R. now appeals to this court pursuant to N.J.A.C. 10:140-
3.11(f), arguing that the Commissioner's decision to deny her
request is arbitrary and capricious because it undermines the
expressed purpose of the Act, "to promote the greatest possible
degree of self-control and self-direction on the part of each
recipient of services." N.J.S.A. 30:4G-15. According to L.R.,
the Legislature created the PASP "cash management model" to give
eligible participants the flexibility to utilize unspent monthly
budgeted funds in a manner that achieves a greater level of
independence and autonomy over their personal activities.
We agree with L.R.'s arguments and reverse. Our legal
analysis will be informed by the following uncontested facts.
I
L.R. is a fifty-four-year-old woman who suffers from
multiple disabilities4 that severely limit her everyday
4
L.R. has osteoarthritis and bone spurs in her neck which causes
pain and weakness throughout her arms and inhibits her ability
to perform tasks requiring repetitive motions; she has
difficulty reaching and retrieving items and is unable to lift
or move anything that weighs more than ten pounds; she suffers
from post-concussion syndrome with visual tracking difficulties,
migraine headaches, vertigo, light sensitivity, memory problems,
dry eye, and cataracts in both eyes; she has respiratory
problems including pneumonia, asthma, respiratory allergies, and
vocal cord dysfunction. She uses an inhaler and nebulizer to
treat these respiratory problems and, as a consequence, is
highly susceptible to respiratory infections. As a prophylactic
measure, she uses a surgical mask when she leaves her residence
(continued)
5 A-5701-11T2
activities. She uses a "variety of assistive devices" to get
around her home and travel outside her immediate environment.
These include "a power wheelchair, a rolling walker, a quad
cane, a reacher,5 and a stair lift." She spends nearly all of
her time at home. It is thus undisputed that L.R. is eligible
to receive PASP for a "permanent physical disability" as that
term is defined in N.J.S.A. 30:4G-14.6
(continued)
or when people come to visit. She also has digestive problems
that restrict her nutritional intake.
5
We take judicial notice under N.J.R.E. 201(b)(1) that a
"reacher" (a/k/a "grabber") is a hand-operated mechanical
device, with a manual grip attached to a metal pole that extends
approximately three to four feet in length from the handle, and
ends with an attached "V" shaped grip or retrieving claw. By
closing or opening the manual grip, the consumer is able to
adjust and manipulate the tension cords that run the length of
the pole, and ultimately attach to the grip claw. The consumer
opens or closes the "V" shaped grip by closing or opening the
"reacher's" handgrip. This also allows the consumer to adjust
the pressure of the retrieving claw to retrieve items as small
as a paperclip lying on the floor, as delicate and fragile as a
sheet of paper or a piece of jewelry, or as heavy as a book,
magazine, box, or bottle weighing as much as two to three
pounds. This device is an example of the type of unconventional
item that serves the needs of PASP consumers outside the
traditional "personal servant" paradigm.
6
N.J.S.A. 30:4G-14 defines "Permanent physical disability" as "a
severe impairment of a permanent nature which so restricts a
person's ability to perform essential activities of daily living
that the person needs assistance to maintain the person's
independence and health." Although the Legislature directed the
Commissioner of Human Services to "adopt rules to effectuate the
purposes of this [A]ct," N.J.S.A. 30:4G-21, N.J.A.C. 10:140-4.1
merely adopts the statutory definition without elaboration. In
(continued)
6 A-5701-11T2
PERSONAL ASSISTANCE SERVICE PROGRAM
Established under the Act in 1987, the Legislature directed
the Division to administer the PASP through designated county-
based agencies operating in each of the State's twenty-one
counties. N.J.S.A. 30:14G-15. The designated county agency is
charged with the responsibility of assisting
adults with permanent physical disabilities
in the performance of routine, nonmedical
tasks that are directly related to
maintaining their health and independence,
in order to enable these persons to be
employed or receive training or education
related to employment, parenting, or
volunteering, or to support community-based
independent living. The program shall seek
to promote the greatest possible degree of
self-control and self-direction on the part
of each recipient of services.
[Ibid.]
Before 2009, the PASP operated using two different
assistance models. The traditional service model provided a set
number of hours of "personal assistance services" to the
consumer. The Legislature defined "personal assistance
services" under the Act to encompass "health and chore related
tasks performed by a personal assistant. Personal assistance
services include, but are not limited to, assistance in
(continued)
fact, the Commissioner adopted this approach with respect to
many other regulations promulgated by under the Act.
7 A-5701-11T2
essential daily activities such as bathing, dressing and meal
preparation; assistance with mobility, laundry and shopping; and
driving or other forms of transportation." (Emphasis added.)
N.J.S.A. 30:4G-14. The eligible consumer receives a maximum of
forty hours per week of personal assistance services. N.J.A.C.
10:140-2.1(a)(8).
CASH MANAGEMENT MODEL
Commencing on November 20, 2009, the Legislature amended
the PASP to "enable the program to be operated on a 'cash and
counseling' model, wherein the consumer of personal assistance
services exercises control over the individual workers the
consumer employs, and manages and directs his own service plan."
ASSEMBLY HUMAN SERVICES COMMITTEE STATEMENT TO ASSEMBLY, NO. 2889, 2008
Legis. Bill Hist. N.J. A.B. 2889. The Act defines "Cash
Management Plan" as "the document used by the program which
indicates the monthly cash allowance and details the services
and supports required by the consumer in order to meet the
consumer's personal care needs." N.J.S.A. 30:4G-14; N.J.A.C.
10:140-1.4.
"The individual personal assistance services plan shall
serve as the template for the creation of the consumer's cash
management plan." N.J.A.C. 10:140-3.3(c). The cash management
plan serves a budgetary purpose by showing how the consumer's
8 A-5701-11T2
monthly cash allowances are utilized to meet the consumer's
needs. Ibid. The central overriding theme of the cash model
plan is to give PASP consumers greater flexibility to determine
what services they need to deal with the travails of daily
personal activities, and control over how PASP budgeted funds
are spent to underwrite the cost of those personalized services.
The Division made clear these twin policy goals at the
time it proposed a series of regulatory revisions required to
implement the cash management plan. The statement explaining
the need to amend N.J.A.C. 10:140-3.3(a), (the regulation that
describes the traditional "individual personal services plan"
and the "cash management plan") illustrates this point.
N.J.A.C. 10:140-3.3(a) is proposed for
amendment to reflect that an individual
personal assistance services plan is to be
designed by the consumer in consultation
with the county designated agency. The
Division is proposing this change in support
of the concept of consumer self-direction
that is the foundation of the PASP. The
term "individualized needs" has be
substituted for "specific needs" to better
clarify that the plan is driven by the needs
of the individual client. Rule text has
also been deleted that explains the role of
the county designated agency in preparation
of the individual personal assistance
services plan. This change is being made
because the text is redundant in
consideration of language that has been
proposed for addition to this subsection.
[43 N.J.R. 2551(a)(October 3, 2011)
(Emphasis added.)]
9 A-5701-11T2
The informational material provided to PASP participants by
the Division reflects and highlights the consumer-centric policy
underpinning the cash management model of funding. As the
Division explains, the cash management approach is intended to
provide consumers with "more control over their life." Toward
that end, the Division emphasizes the four key features of the
cash management model:
 Consumers make the decisions!
 Consumers have choices they never had before!
 Consumers decide what they want!
 Consumers receive a cash grant every month to buy your
own services!
Consistent with this policy directive, the Division has
authorized participants receiving PASP benefits through the cash
management model to use unspent budgeted funds to buy
wheelchairs, wheelchair lifts, emergency alert service devices,
and check printing machines. L.R. thus argues that
communication services such as internet access, cellular phone
service, and a landline connection to the fax machine fall
within the category of items intended to increase the
participant's level of independence and personal autonomy.
The following excerpts from L.R.'s certification describe
the real life, practical implications of this policy directive.
The cell phone allows me to send emails,
text messages, and make phone calls. Since
10 A-5701-11T2
it is portable, I can stay connected anytime
and anywhere.
. . . .
I use the computer and the internet for the
following: for banking and to pay bills, to
keep track of my credit record; to
participate in an online housing course and
to keep in contact with my housing
counselor; to research the best prices and
to get coupons, to get gluten free recipes,
to shop for groceries, office supplies,
supplements, and household goods; to do
research and request cds, dvds, books, and
interlibrary loans from the library; for
medical, legal, ADA, and other research; for
corresponding with my family and friends; to
participate in webinars on fair housing
issues and for PASP Cash Management Program
training; to search for the best doctors; to
keep in touch with my church and community
and to keep in touch with my attorney.
. . . .
I often use faxes when it is essential to
verify that a party has received a document.
This prevents me from having to send my
personal assistant to the post office to
send documents via certified mail.
. . . .
The internet allows me to do much of my
banking, shopping, research, and
correspondence from home. It reduces the
amount of work my personal assistants have
to do outside the home and makes their
errands more efficient. While I prefer to
do as much as I can for myself, the PASP
program, the personal assistants, and the
modern communications and correspondence
devices (internet, phone, fax, and cell
phone) are godsends to me and assist me with
being independent in spite of my multiple
11 A-5701-11T2
medical disabilities. In this age of
growing dependence on multiple forms of
communications technology, I would be cut
off from my family, friends, community, and
government programs without these essential
communications and correspondence devices
and services.
As these statements illustrate, access to the internet via
a personal computer or a mobile handheld device is a ubiquitous
characteristic of modern life and an indispensable means of
efficiently conducting a variety of personal activities. Most
importantly from a disabled person's perspective, this
technology provides an unparalleled level of personal autonomy
and privacy. Despite their best intentions, by their very
involvement third-party personal assistants inevitably intrude
into a disabled person's most profoundly and uniquely personal
matters. Modern technological advancements, especially in the
field of communication, has provided and continues to enhance
the means to permit a disabled person to carry out a variety of
highly personal activities independently, without having to
share intimate details of his or her life with strangers hired
by a government agency.
II
Our scope of review of an administrative agency's final
determination is limited. In re Carter, 191 N.J. 474, 482
(2007). We "may reverse only if we conclude that the decision
12 A-5701-11T2
of the administrative agency is arbitrary, capricious or
unreasonable, or is not supported by substantial credible
evidence in the record as a whole." J.D. v. N.J. Div. of
Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.
2000) (citations omitted).
"The burden of demonstrating that the agency's action was
arbitrary, capricious or unreasonable rests upon the person
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219
(2006); see also Barone v. Dep't of Human Servs., 210 N.J.
Super. 276, 285 (App. Div. 1986), aff’d, 107 N.J. 355 (1987).
Our role as an appellate court is to ensure the decision is
based on substantial evidence and supported by the record. In
re Carter, supra, 191 N.J. at 483 (citation omitted). While an
agency's expertise in the area is given great respect, the
appellate court is not bound by an agency's decision. Ibid.
(citation omitted).
Here, the Division denied L.R.'s funding request based on
its interpretation of what the Legislature intended when it
established the cash management model as an alternative means of
providing assistance to PSAP consumers. Because questions of
statutory interpretation are purely legal, our standard of
review is de novo. Maeker v. Ross, 430 N.J. Super. 79, 86 (App.
13 A-5701-11T2
Div. 2013). The Supreme Court has recently reaffirmed the legal
principles that must guide a court in interpreting statutory
provisions:
The chief aim when interpreting a law is to
determine and give effect to the
Legislature's intent. To do so, courts look
first to the plain language of the statute.
If the language is clear, the court's job is
complete. If the wording of a law is
ambiguous, a court may examine extrinsic
evidence for guidance, including legislative
history and committee reports.
Statutes must also be read in their
entirety; each part or section should be
construed in connection with every other
part or section to provide a harmonious
whole.
[In re Expungement D.J.B., ___ N.J. ___,
____ (2014) (slip op. at 8) (internal
citations and quotation marks omitted).]
The Legislature established the PASP
to assist adults with permanent physical
disabilities in the performance of routine,
nonmedical tasks that are directly related
to maintaining their health and
independence, in order to enable these
persons to be employed or receive training
or education related to employment,
parenting, or volunteering, or to support
community-based independent living. The
program shall seek to promote the greatest
possible degree of self-control and self-
direction on the part of each recipient of
services.
[N.J.S.A. 30:4G-15 (Emphasis added).]
14 A-5701-11T2
This overriding public policy is also reflected in the
regulations promulgated by the Commissioner. N.J.A.C. 10:140-
1.1; N.J.A.C. 10:140-1.3. Indeed, both sides of this dispute
agree that when it amended the Act in 2009 to create the cash
management plan, the Legislature intended to provide PASP
consumers with greater flexibility in determining what personal
services best suited their individual needs and enhance their
control over how to spend the funds allocated to their monthly
cash management budget.
The Division concedes that the cash management plan allows
consumers to use "unspent funds for meeting daily needs for
personal care, consistent with the program's regulations." It
nevertheless maintains that it "is not obligated to allow
program funds to be used for other expenses." (Emphasis added.)
Implicit in this key policy statement, is the assumption that
the type of expenses L.R. requests funding for are not for her
"personal care." Division regulations do not define the term
"personal care." However, the Legislature intended that PASP
funds be used "to promote the greatest possible degree of self-
control and self-direction on the part of each recipient of
services." N.J.S.A. 30:4G-15.
The only difference between a wheelchair, a wheelchair
lift, a check printing machine, and emergency alert service
15 A-5701-11T2
devices and internet and fax access and cellular phone service
is the level of technological sophistication. We discern no
rational basis to support the Commissioner's decision to
discriminate against technological advancements in
communications that enhance and promote the independence of
disabled consumers by encouraging self-reliance and protecting
the dignity inherent in personal privacy.
Indeed, using a cellular phone is a far better means of
summoning first responders to a medical or other personal
emergency than a blunt generic distress signal emitted from an
emergency alert device. A computer connected to the internet
puts a virtually limitless world of information and resources at
the fingertips of a disabled person. Internet access enables
the PASP participant to manage his or her personal financial
affairs through online banking, without the need to print and
mail checks. By allowing PASP participants the opportunity to
win the daily battles of personal independence through the use
of these devices, the Division would have fulfilled its core
mission "to promote the greatest possible degree of self-control
and self-direction on the part of each recipient of services."
N.J.S.A. 30:4G-15. Unfortunately, the Division opted to
construe the Act in a manner that runs counter to these
principles.
16 A-5701-11T2
Equally disturbing to us is the Division's construction of
the cash management model to permit consumers to use unspent
PASP funds to purchase items such as wheelchairs, wheelchair
lifts, emergency alert service devices, and check printing
machines, while disallowing expenditures to provide access to
modern communication and information management technology. No
reasonable person would dispute the notion that doing for one
self is always far better than having to rely on the good will
of others.
The PASP is grounded in the salutary notion of promoting
self-reliance for all eligible consumers. For those consumers
who have been forced to rely on personal assistants to carry out
basic banking functions, accessing their personal banking
accounts to thereafter conduct financial transactions online can
be a profound, liberating experience. We have no doubt that
this is the type of experience the Legislature intended to
promote when it adopted the Act.
By upholding the Division's decision to deny L.R.'s request
to use the unspent part of her PASP budgeted funds in the
fashion described here, the Commissioner endorsed an approach
utterly irreconcilable with the public policy underpinning the
Act. N.J.S.A. 30:4G-15. We therefore reverse the
Commissioner's decision as arbitrary, capricious, and
17 A-5701-11T2
inconsistent with the Legislature's policy of promoting the
greatest possible degree of self-control and self-direction on
the part of consumers of PASP services.
Reversed.
18 A-5701-11T2