(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 29, 1994 -- Decided April 10, 1995
POLLOCK, J., writing for a unanimous Court.
B.F. is a severely autistic young man who cannot communicate verbally. Among other problems, he has
a history of violent tantrums and an inability to adapt to change. Because of B.F.'s special needs, his parents
cannot care for him at home.
In 1987, the Mountain Lakes School District placed B.F. at the New England Center of Autism (NECA).
This is a "community-based" residential facility for people with autism. NECA personnel have successfully taught
B.F. many basic self-care skills, such as grocery shopping, banking, planning and preparing meals, and household
chores. Significantly, B.F. can work under supervision. He has held part-time jobs at a fast-food restaurant and
a bottled drinking-water company.
In 1990, the Division of Developmental Disabilities (DDD) began monitoring B.F.'s progress at NECA.
For three years, NECA personnel prepared an Individualized Educational Plan (IEP), which discussed B.F.'s
progress and recommended a course of treatment. Each year, the IEP recommended placing B.F. in a highly
structured program when he reached twenty-one. Each year, DDD concurred in the IEP's findings and
conclusions.
In August 1992, DDD prepared an Individualized Habilitation Plan (IHP) for B.F. An IHP, which is
similar to an IEP, recommends a course of treatment for a DDD client. The 1992 IHP adopted NECA's IEP,
which emphasized that to prevent regression, B.F.'s transition must provide for a continuous program.
In February 1993, a psychologist recommended to DDD that B.F. should remain at NECA. His report
expressed concern about the lack of comparable facilities in New Jersey.
At the close of the 1992-1993 school year, DDD assumed responsibility for B.F.'s placement. In so
doing, DDD informed the parents that B.F. was to be transferred to a small residential unit at North Princeton
Developmental Center. B.F.'s parents objected and ultimately sought a hearing before the Office of
Administrative Law (OAL)
The Chief Judge of the OAL, Jaynee LaVecchia, found that the "overwhelming expert testimony" led
to the conclusion that a transfer to the North Princeton facility would cause a regression in B.F.'s self-care skills.
That, in turn, would affect B.F.'s socialization and community involvement. She also concluded that DDD had
decided on B.F.'s placement primarily for financial reasons, noting that the placement decision was made before
B.F. was evaluated.
Focusing on financial concerns, the Director of DDD rejected Chief Judge LaVecchia's decision. He
concluded that the law placed no limitations on the DDD that would require it to provide a specific level of
service or to design a placement that would prevent a loss of basic care skills.
The Appellate Division affirmed the Director's decision. The Supreme Court granted the parents'
petition for certification.
HELD: The Division of Developmental Disabilities has not sustained its burden of proving that the proposed
transfer of an autistic twenty-one-year-old man from an out-of-state institution to a New Jersey institution is
appropriate.
1. The record does not support the Director's conclusion that the North Princeton facility is an appropriate
"alternate service" within the meaning of N.J.S.A. 30:4-25.6. (pp. 8-9)
2. Although courts typically defer to statutory interpretations by administrative agencies, such deference is
inappropriate when, as here, the agency interpretation clearly conflicts with the Legislature's intent. (pp. 9-10)
3. The Court's review of the decisions of the Director and the Chief Judge of the Office of Administrative Law
has led it to the inescapable conclusion that a preoccupation with budgetary problems unduly affected the
Director's reading of the record. (pp. 10-11)
4. Recent events have undermined the Director's belief that North Princeton would eventually provide an
appropriate level of service to B.F. Since oral argument, DDD has recommended that the North Princeton
facility be closed. That would result in another transfer for B.F. in 1997. (p. 11)
5. The Court is mindful of the fiscal constraints confronting the DDD and its goal of achieving the greatest good
for the greatest number of its clients. That commitment cannot, however, relieve the agency of its statutory
obligations to the individuals it was created to serve. (p. 11)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and STEIN join in
JUSTICE POLLOCK's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
52 September Term 1994
P.F. and B.F., on behalf of their
son, B.F.,
Petitioners-Appellants,
v.
NEW JERSEY DIVISION OF
DEVELOPMENTAL DISABILITIES,
Respondent-Respondent.
Argued November 29, 1994 -- Decided April 10, 1995
On certification to Superior Court, Appellate
Division.
Herbert D. Hinkle argued the cause for
appellants.
Joseph L. Yannotti, Assistant Attorney
General, argued the cause for respondent
(Deborah T. Poritz, Attorney General of New
Jersey, attorney; Todd A. Wigder and Judith
A. Nason, Deputy Attorneys General, on the
briefs).
Joseph B. Young, Deputy Director, argued the
cause for amicus curiae, New Jersey
Protection and Advocacy, Inc. (Sarah W.
Mitchell, Executive Director, attorney; Mr.
Young, Linda D. Headley, Senior Managing
Attorney, and David B. Harris, Deputy Public
Defender, on the brief).
The opinion of the Court was delivered by
POLLOCK, J.
The basic issue on this appeal is whether the Division of
Developmental Disabilities (DDD) has satisfied its burden of
proving that the proposed transfer of plaintiff B.F., an autistic
twenty-one-year-old man, from the out-of-state institution where
he currently resides to a New Jersey institution is appropriate.
The chief judge of the Office of Administrative Law (OAL) found
that DDD had not met that burden, but DDD's director disagreed.
In an unreported decision, the Appellate Division reluctantly
affirmed the director's decision. We granted the petition for
certification of P.F. and B.F., parents of B.F. ___ N.J. ___
(199_). After carefully reviewing the record, we conclude that
DDD has not met its burden of proof. Consequently, we reverse
the judgment of the Appellate Division.
B.F. is a severely autistic young man who cannot communicate verbally. He demonstrates perseverative behavior, which manifests itself in repetitive conduct, e.g., pacing incessantly, and rebellion against changes. Furthermore, he has a history of maladaptive behavior and violent tantrums. Because of B.F.'s special needs, the parties agree that his parents cannot care for him at home. For years, B.F.'s parents tried unsuccessfully to find an appropriate placement for their son.
In 1987, the Mountain Lakes School District placed B.F. at the New England Center of Autism (NECA). NECA is a "community-based" residential facility, which provides a group-home setting
for autistic individuals. At NECA, B.F. has learned to
communicate through various means, including gesturing and the
use of communication boards. His violent tantrums now are rare.
NECA personnel successfully have taught B.F. many basic self-care
skills, such as grocery shopping, banking, planning and preparing
meals, and household chores. Significantly, B.F. can work under
supervision. He has held part-time jobs at a local fast-food
restaurant and a bottled drinking-water company.
In 1990, DDD determined that B.F. was eligible for its
services, and began monitoring his progress at NECA. In each of
the 1990-91, 1991-92, and 1992-93 school years, NECA personnel
prepared an Individualized Educational Plan (IEP), which
discussed B.F.'s progress and recommended a course of treatment.
Each year, the IEP recommended placing B.F., when he reached
twenty-one, in a highly-structured behavioral and communications
program at a community-based facility. Each year, DDD concurred
in the IEP's findings and recommendations.
To ensure adequate time to prepare B.F. for the transition,
his 1990-91 IEP recommended identifying a facility in 1991-92,
one year before B.F. turned twenty-one. Although DDD concurred
with the IEP, it did not identify any facility during that year.
In August 1992, DDD prepared an Individualized Habilitation
Plan (IHP) pursuant to N.J.S.A. 30:6D-10. An IHP, which is
similar to an IEP, recommends a course of treatment for a DDD
client. The 1992 IHP adopted NECA's 1992-93 IEP, which
emphasized that to prevent regression, B.F.'s transition must
provide for a continuous program. NECA's IEP also recommended
training DDD personnel responsible for B.F. in the kinds of
programs offered at NECA.
DDD's 1992 IHP also recommended that a psychologist
evaluate B.F. Accordingly, in February 1993, Dr. Mark Friedman
issued a report to DDD recommending that B.F. stay at NECA. Dr.
Friedman noted B.F.'s progress at NECA, expressed concern about
the lack of comparable facilities in New Jersey, and warned that
B.F. might regress if transferred from NECA.
Between December 1992 and April 1993, B.F.'s parents tried to arrange a hearing with DDD to identify an appropriate placement. At the close of the 1992-93 school year, after B.F. became twenty-one years old, DDD assumed from the Mountain Lakes School District responsibility for BF's placement. Despite Dr. Friedman's recommendations, DDD notified B.F.'s parents in April 1993 that it would transfer B.F. to the "small residential unit number 4" (SRU4) at the North Princeton Developmental Center
(NPDC). SRU4 is a pilot program designed as a transitional
facility for institutionalized autistic clients.
Fearing that B.F. would lose the basic skills he had
developed at NECA, B.F.'s parents objected to the transfer. On
June 4, 1993, DDD staff explained to B.F.'s parents how his
proposed placement at SRU4 would serve his special needs. The
parents disagreed, and the matter proceeded to a hearing before
Chief Administrative Law Judge Jaynee LaVecchia of the OAL.
At the hearing, DDD stipulated that NECA is the most
appropriate placement for B.F. In addition, the parties
stipulated that B.F.'s placement at NECA costs $94,260 per year,
and that the proposed placement at NPDC costs $97,090 per year,
one-half of which would be absorbed by the federal government.
Thus, the proposed placement at NPDC would cost DDD only $48,545
per year. Ironically, B.F.'S placement at NECA, the most
appropriate placement for him, actually costs less than placement
at SRU4. DDD's sole reason for seeking to transfer B.F. from
NPDC to SRU4 is that, because of the availability of federal
funds, DDD will spend fewer State funds to maintain B.F. at SRU4.
DDD maintains that its budget does not contain sufficient funding
for B.F.'s placement at NECA.
At the hearing before the OAL, DDD presented testimony about
the financial ramifications of B.F.'s proposed placement and the
likely effect of placing B.F. at SRU4. B.F.'s mother, P.F., and
four experts also testified about the effect of transferring B.F.
from NECA to SRU4.
In meticulous findings of fact, Chief Judge LaVecchia found
that "[t]he overwhelming expert testimony" leads to the
conclusion that if DDD transfers B.F. to SRU4, he will regress
and lose his basic self-care skills. The chief judge found
further that "[r]egression for B.F. would affect his behaviors,
his communication, and flowing therefrom, his socialization and
community involvement." She also concluded that DDD decided to
place B.F. at SRU4 "primarily for financial reasons," noting that
the
meeting wherein B.F.'s placement at SRU4
within NPDC was decided (April 1993),
occurred before any professional involved in
that decision had met B.F. and evaluated him
and his needs. No discussion of regression
occurred at this meeting. Since then,
aspects of B.F.'s "plan" have been hastily
identified apparently in part as a defense to
this pending matter. . . . This does not
meet the [statutory] requirements of an
individually oriented plan developed
utilizing accepted standards of professional
judgment.
The chief judge correctly identified N.J.S.A. 30:4-25.6 and
N.J.S.A. 30:6D-9 as the dispositive statutes. N.J.S.A. 30:4-25.6
provides that
[t]he commissioner shall, upon proper
application for admission, forthwith admit
the eligible mentally retarded person, and
provide him with appropriate functional
service to the extent available. In the
event that the functional service which has
been specified as most appropriate from time
to time is not immediately available, the
commissioner shall provide alternate service
. . . .
N.J.S.A. 30:6D-9, part of the Developmentally Disabled Rights
Act, provides that
[e]very service for persons with
developmental disabilities offered by any
facility shall be designed to maximize the
developmental potential of such persons and
shall be provided in a humane manner in
accordance with generally accepted standards
for the delivery of such service and with
full recognition and respect for the dignity,
individuality and constitutional, civil and
legal rights of each person receiving such
service, and in a setting and manner which is
least restrictive of each person's personal
liberty.
The chief judge concluded that the legislative standards require that any alternate service must provide "a professionally devised, individually-oriented . . . program designed to prevent loss of basic care skills." She then determined that B.F.'s
proposed placement at SRU4 could not provide an adequate level of
training. Consequently, she recommended that the "placement
offered to date by DDD will not be permitted so [B.F.] shall stay
at NECA until DDD properly identifies an appropriate placement."
Focusing on fiscal concerns, the director rejected the ALJ's
decision. The director candidly acknowledged that "at first
review" the chief judge's conclusion "appears to be reasonable."
Noting, however, that "most alternate services will not provide
the same level of habilitation or will not meet as many of the
clients' needs as would the most appropriate placement," he
reasoned that the law places "no limitation . . . upon an
alternate service that requires it to be any specific level of
service or designed to prevent loss of basic care skills." The
director supported his decision by stating that even under the
ALJ's standard "the current habilitation plans and those that
will be developed are professionally devised to help B.F.
maintain his current fundamental self-care skills." Thus, he
concluded that B.F.'s proposed placement at SRU4 satisfied that
standard.
With due deference to the director's authority as the agency head to make findings of fact, we are nonetheless forced to conclude that the record does not support his conclusion that
SRU4 is an appropriate "alternate service" within the meaning of
N.J.S.A. 30:4-25.6. Although SRU4 may be appropriate for some of
DDD's clients, the record demonstrates that it is inappropriate
for B.F.
The Legislature has evinced a strong concern for the rights
of the developmentally disabled. N.J.S.A. 30:4-25.6 entitles
those needing DDD's services to the "[most] appropriate
functional service to the extent available." Furthermore, in the
Developmentally Disabled Rights Act, the Legislature explicitly
[found and declared] that the developmentally
disabled are entitled to certain fundamental
rights as citizens and that these rights
shall not be abrogated solely by reason of
admission to any facility or receipt of any
service for developmentally disabled persons;
that services which are offered to the
developmentally disabled shall be provided in
a manner which respects the dignity,
individuality and constitutional, civil and
legal rights of each developmentally disabled
person . . . .
The strength of that declaration suggests that the Legislature
would not want DDD's budgetary problems, as difficult as they may
be, to compel the removal of B.F. from the most appropriate
facility to one that is inappropriate.
Although courts typically defer to statutory interpretations
by administrative agencies, Metromedia, Inc. v. Director, Div. of
Taxation,
97 N.J. 313, 327 (1984), such deference is
inappropriate when an agency interpretation clearly conflicts
with the intent of the Legislature, GE Solid State, Inc. v.
Director, Div. of Taxation,
132 N.J. 298, 314 (1993). Thus, we
conclude that the director's suggestion that state law imposes no
minimum qualitative standards for an alternate service
contravenes the intent of the Legislature. We believe that the
chief ALJ's definition of "an alternate service" as a
professionally devised program designed to maintain a client's
basic self-care skills comes closer to the Legislature's mandate.
In adopting that standard in this case, we recognize that DDD,
after notice and hearing, may adopt a regulation setting a
different standard. N.J.S.A. 52:14B-4.
Ordinarily, an appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious, or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole. Dennery v. Board of Educ., 131 N.J. 626, 641 (1993); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Rowatti v. Gonchar, 101 N.J. 46, 51-52 (1985); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973). See generally Kenneth C. Davis & Richard J. Pierce, Jr.,
Administrative Law Treatise § 11.2 (3d ed. 1994) (discussing
"substantial evidence test"). When an agency's decision is
manifestly mistaken, however, the interests of justice authorize
a reviewing court to shed its traditional deference to agency
decisions. Clowes, supra, 109 N.J. at 588-89.
In searching for the appropriate judicial role in this case,
we are aware of the sharp differences between the chief ALJ and
the director. An agency head need not defer to the findings of
an administrative law judge. In re Kallen,
92 N.J. 14, 20
(1983). The agency head, however, may not ignore an
administrative law judge's abundantly supported conclusions.
Department of Health v. Tegnazian,
194 N.J. Super. 435, 450 (App.
Div. 1984). Our review of the decisions of the director and the
OAL lead us to the inescapable conclusion that preoccupation with
budgetary problems unduly affected the director's reading of the
record.
Chief Judge LaVecchia carefully documented her conclusion that placing B.F. at SRU4 is not appropriate, and that the placement likely would lead to B.F.'s regression and his loss of skills. Even DDD's experts agreed that B.F. likely will regress if transferred to SRU4. The director likewise acknowledged that SRU4 is not the most appropriate placement for B.F., and that B.F. would regress if moved from NECA to SRU4. He argued,
however, that budgetary problems compelled the placement and
suggested that B.F.'s loss of skills would not be permanent. In
making that suggestion, the director relied on DDD's expectations
that eventually it would provide an appropriate level of service
at SRU4
Recent events have undermined that reliance. Since oral
argument, DDD has recommended the closure of NPDC, which would
include SRU4. The director expects the Commissioner of Human
Services to make a decision later this month whether to close
NPDC. If the commissioner closes NPDC, B.F. would be subject to
yet another transfer by the end of 1997.
We are mindful of the fiscal constraints confronting DDD and
of its goal of achieving the greatest good for the greatest
number of its clients. An administrative agency's commitment to
collective justice, however, cannot relieve the agency of
statutory obligations to the individuals it was created to serve.
On this record, we cannot ignore the potentially disastrous
effect of the contemplated transfers on so fragile an individual
as B.F.
As we recently stated, "in proceedings instituted to challenge the DDD'S placement decisions, the Division bears the
burden of proving that its choice is the most appropriate for the
developmentally-disabled client." J.E. v. State,
131 N.J. 552,
570 (1993). On this record, we find that DDD has not met its
burden. We hold that DDD may not transfer B.F. from NECA until
such time as an appropriate alternative placement becomes
available.
The judgment of the Appellate Division is reversed.
Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, and Stein join in this opinion. Justice Coleman did not participate.
NO. A-52 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
P.F. and B.F., on behalf of their
son, B.F.,
Petitioners-Appellants,
v.
NEW JERSEY DIVISION OF
DEVELOPMENTAL DISABILITIES,
Respondent-Respondent.
DECIDED April 10, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY