Opinion
DOCKET NO. A-5737-13T1
12-12-2016
DEPARTMENT OF HUMAN SERVICES, OFFICE OF LICENSING, Petitioner-Respondent, v. ALICE WILKINS, Respondent-Appellant.
Alexander J. Wazeter argued the cause for appellant (Helmer, Conley & Kasselman, P.A., attorneys; Mr. Wazeter, on the briefs). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Rosenblum, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz, Nugent and Higbee. On appeal from Department of Human Services, Office of Program Integrity and Accountability, Docket No. HSL-15474-2012. Alexander J. Wazeter argued the cause for appellant (Helmer, Conley & Kasselman, P.A., attorneys; Mr. Wazeter, on the briefs). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Rosenblum, on the brief). The opinion of the court was delivered by HIGBEE, J.A.D.
Alice Wilkins appeals from a final decision of the Department of Human Services' Office of Program Integrity and Accountability (OPIA), revoking her license to operate a community care residence for individuals with developmental disabilities. Wilkins' license was first revoked by a letter from OPIA's Office of Licensing on October 2, 2012. She filed an administrative appeal of that decision, and the matter was referred to an Administrative Law Judge (ALJ) for a hearing.
Following the hearing, the ALJ found in Wilkins' favor and reversed the decision to revoke her license. Exceptions were filed to his Initial Decision. In a final agency decision, the Director of OPIA, on behalf of the Department of Human Services, reversed the ALJ's judgment and ordered Wilkins' license revoked. We have considered the arguments advanced on appeal in light of the record and applicable law. We affirm.
We discern the following relevant facts from the record and the transcript of testimony from the hearing before the ALJ. Wilkins was employed by New Jersey Mentor (Mentor), an organization with a contract to coordinate community care residences and client placements. As part of her job, she cared for developmentally disabled individuals in her home. In 2010, Wilkins cared for F.D. for a period of eight months. F.D. was a difficult client. She threatened and struck another disabled client living in the home. As a result of this, Wilkins filed a formal request to have her removed from her home. F.D. was moved to another residence.
Wilkins was asked to take F.D. back in her home on an emergency basis. She agreed, and in May 2012, F.D. again came to live with Wilkins. At the time, F.D. was approximately twenty years old. By this time, she had developed a history of disagreements with her caregivers.
Moreover, she had previously been found to have falsely accused others of mistreatment. Wilkins testified that F.D. was very manipulative and frequently told lies. In the binder Wilkins received from the Department of Developmental Disabilities (DDD), there were several reports of documented instances of F.D. falsely accusing other mentors and their family members of misconduct. In one event, when F.D. lived with Wilkins in 2010, she complained about advances from one of her teachers. Wilkins went to the school and reported it to the principal. It was investigated, but F.D.'s allegations were found to be untrue.
At the hearing before the ALJ, Wilkins further testified that F.D. was very difficult to manage. Wilkins described her as "being in a bad state." She was defiant and rude. She was frequently disheveled and had to be urged to perform personal hygiene tasks and to wear clean clothes. F.D. often refused to get out of bed for breakfast. She relayed her discontent to Wilkins, stating: "Why don't you leave me alone?" and "I don't want to be here." Another issue was F.D. suggested she had a "boyfriend" who was in his forties, whom she had never met, but spoke to frequently on the telephone. Wilkins was concerned about F.D. She called her supervisor for assistance but received no help.
On June 7, 2012, F.D. refused to get up for breakfast, come downstairs, and take a bath or get dressed. She was very defiant. Wilkins learned that F.D. wanted to go back to Newark in order to be near her "boyfriend." She called her supervisor and asked for F.D. to be immediately removed from her home. Her request was denied. F.D. also called Mentor and asked to be moved to Newark. Her request was also denied. Mentor's official policy was that a request for removal had to be made thirty days in advance of the actual move.
On June 8, 2012, F.D. slept late. Wilkins testified that she gave F.D. her breakfast and medication and then asked her to clean her room. F.D. flew into a rage and shouted, "Why don't you stop bothering me? You are aggravating me. I don't want to be here no more. I hate you." F.D. started stomping around, repeating over and over that she wanted to leave and go to Newark where she last lived and where her "boyfriend" resided. Wilkins called F.D.'s last mentor in Newark. She told Wilkins that F.D. could not return there because "she was trouble."
According to Wilkins, at this point, F.D. began crying, cursing, screaming, and punching the walls. F.D. also threatened Wilkins at that time, saying she would get a relative from Camden, who had been in jail, to come and shoot her. Wilkins called Mr. Crump at Mentor and asked him to remove F.D. from her house. He declined to assist her. Wilkins testified Crump told her to have F.D. taken by police to a crisis center where they might commit her. Wilkins advised Crump she was in a cast with a fractured foot and was in pain. Furthermore, she believed from past experience that the crisis center was not a good option for resolving the problem.
At some point after this call, F.D. threatened to run away. She went outside of the house with a packed bag. From the door and windows, Wilkins could see F.D. in front of the house. Wilkins locked the door. F.D. never left the property. She was still standing in the driveway when she called Maureen McCann, a caseworker, on her cell phone. McCan was told by F.D. she had been locked out of the house. McCann went to a supervisor, Mark Tahmoosh, for help. Tahmoosh called Wilkins. He asked if F.D. was locked out. Wilkins told him she was still outside and was now banging on the door. Tahmoosh told Wilkins to let her into the house. Wilkins immediately let F.D. enter the house and gave her the phone to talk to Tahmoosh.
Wilkins admits that while F.D. was on the phone with Tahmoosh she warned her, "you are either going to Ancora [Psychiatric Hospital] or I am calling crisis on you if you don't stop it. If this behavior doesn't change." Tahmoosh testified he heard Wilkins threaten F.D. with commitment while he was on the phone with her. He, however, asserts Wilkins used the words "locked up in Ancora," not the gentler language to which Wilkins attested. In addition, Tahmoosh testified he heard Wilkins say to F.D, "if you don't want to be here . . . then I don't want you here either." This was followed by, "I can say whatever I want in my home." Finally, Tahmoosh asserted that when F.D. was trying to talk to him on the phone, Wilkins began singing loudly in the background resulting in F.D., who had been calm during their conversation, becoming agitated.
Tahmoosh admitted he did not know the history of events before he called that day nor that Wilkins had sought help the day before and earlier that day. Tahmoosh also testified that developmental disabilities are related to IQ rather than mental illness, but some service recipients may also suffer from mental health issues. He was unaware of F.D.'s medical history. He testified that prior events or F.D.'s medical or placement history did not matter to him because locking a service recipient out of the house, even briefly, and threatening a service recipient constituted abuse and neglect.
Three other witnesses testified for OPIA. It was their view that regardless of F.D.'s history or her actions on the day in question, Wilkins' statements to F.D. were abusive and of a type that could inflict emotional harm on a developmentally disabled person.
In the ALJ's written decision reversing the termination, he noted that Wilkins had been a caregiver for seven years without incident before this event. The ALJ found that all of the witnesses were basically credible, but that the witnesses for OPIA possessed scant information about the incident and had no personal knowledge of F.D. On the other hand, he found Wilkins to be credible, stating:
She did not shy away from her statements or conduct. In fact, she admitted most of what was alleged. But she put the incident in context by elaborating on the days leading up to the incident and amply portrayed F.D.'s deteriorating behavior and tendency to provoke, manipulate or lie.
The ALJ emphasized the fact that Wilkins had reached out for help and that her employer and the DDD had failed to assist her. He noted that the State's witnesses did not know the history of F.D.'s prior lies and manipulation or of Wilkins' efforts to help her. The ALJ also observed that OPIA did not refute Wilkins' testimony that the binder she had received from DDD reported F.D. had falsely accused another mentor's family member of rape and made additional false claims about other care providers.
Although it was later amended in 2013, the ALJ applied the regulation regarding licensee requirements cited by the agency in their letter of termination, N.J.A.C. 10:44B-2.1, as it read when the incident occurred. He found Wilkins made the alleged statements but that they were not abusive when viewed in context. He further concluded that although Wilkins locked her door when F.D. was outside, she did so routinely for her own protection. She did not actually "lock F.D. out of her home" as alleged. F.D. chose to go outside. Wilkins let F.D. back in when she banged on the door. The ALJ also stated that Wilkins admitted some of her statements to F.D. were inappropriate and that she was remorseful. The ALJ reversed the termination of Wilkins concluding she had not committed abuse or neglect.
Petitioner and respondent filed exceptions with the Director of OPIA. The Director issued the Final Decision reversing the ALJ's Initial Decision in all respects. The Director explained that the fact Wilkins' actions were not intentional did not excuse them, nor did the fact that F.D. was acting out or her prior history. The Final Decision states that if a licensed community care provider abuses a developmentally disabled individual even with only verbal threats or demeaning statements that may cause emotional harm, that is abuse, and revocation of the license is the appropriate remedy. The Final Decision concludes that it is not relevant the abuse only occurs on one date; it is not relevant there is no actual emotional harm, as long as the actions of the care provider are of a type that may cause emotional harm; it is not relevant that Wilkins was stressed or that she was remorseful; and by considering these factors to excuse the actions of Wilkins, the ALJ "unreasonably, capriciously and arbitrarily ignored the regulatory definitions of abuse and neglect and applied an unknown standard."
The Director noted that the 2013 amendments to the N.J.A.C. broadened and more clearly defined the definition of "abuse," encompassing the conduct of Wilkins. Even under the older version relied upon by the ALJ, however, Wilkins' threats constituted abuse under state regulations. As to the charge of neglect, the Director concluded that regardless of why Wilkins locked her door, locking it while F.D. was out of the house and threatening to run away as opposed to at that moment calling for help or staying with F.D. constituted neglect. The Final Decision reversed the ALJ's ruling and revoked Wilkins' license.
This appeal followed.
Our standard of review of administrative determinations is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[W]e will not reverse the determination of an administrative agency unless it is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993). We limit our review "to a determination of whether the . . . decision is 'unreasonable, unsupported by the record or violative of the legislative will.'" D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004) (quoting Capodilupo v. W. Orange Twp. Ed. Bd., 218 N.J. Super. 510, 515 (App. Div. 1987), certif. denied, 109 N.J. 514 (1987)).
We are not bound by an administrative agency's legal opinions. Levine v. Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)). Nonetheless, administrative decisions are cloaked with a "strong presumption of reasonableness." Newark v. Nat. Res. Council, 82 N.J. 530, 539 (1980).
We have to "undertake a 'careful and principled consideration of the agency['s] record and findings.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Riverside Gen. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). However, if we are satisfied after our review "that the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm even if [we] . . . would have reached a different result." Campbell, supra, 169 N.J. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)); see also N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (holding that "a reviewing court is not to substitute its judgment for that of the agency").
Contrary to Wilkins' argument, there was sufficient evidence to support the agency's decision. As the ALJ acknowledged, Wilkins substantially admitted to committing the actions that resulted in the loss of her license. The Director fully explained her reasoning for reversing the ALJ, and we discern no basis for second-guessing the Final Decision. We appreciate the ALJ's concerns regarding the harshness of the revocation of Wilkins' license based upon the actions of a single day when she acted under stress, especially where the blame for the incident should be shared with those who ignored her prior pleas for help. However, we also recognize that the primary concern of the agency and the applicable regulations are to protect very vulnerable, developmentally disabled individuals, who are frequently difficult to manage from even unintentional abuse and neglect.
We conclude that the reversal of the ALJ's decision was neither arbitrary, capricious, nor unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION