Opinion
DOCKET NO. A-2922-12T2
01-15-2015
NEW JERSEY OFFICE OF THE PUBLIC DEFENDER, Appellant, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, Respondent.
Scott J. Kieserman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kieserman, on the briefs). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent New Jersey Department of Human Services, Division of Mental Health and Addiction Services (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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Hoffman. On appeal from Promulgation of Regulations under N.J.A.C. 10:36-1.3(c). Scott J. Kieserman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kieserman, on the briefs). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent New Jersey Department of Human Services, Division of Mental Health and Addiction Services (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 MAVEN, J.A.D.
Appellant New Jersey Office of the Public Defender (the Public Defender) filed this appeal against the Department of Human Services, Division of Mental Health and Addiction Services (Department) pursuant to Rule 2:2-3(a)(2), "allowing review [of] the validity of any rule promulgated by [a State administrative] agency." The Public Defender contends an administrative rule promulgated by the Department that governs the process by which a special status patient (SSP) at State psychiatric hospitals may be approved for a decrease in supervision or discharge, and a February 6, 2006 memo that clarifies the appropriate content of court testimony at certain commitment hearings violate the due process rights of civilly committed patients. For the reasons expressed in this opinion, we dismiss the appeal.
Pursuant to its legislative authority, the Department promulgated regulations regarding patient supervision at State psychiatric hospitals, N.J.A.C. 10:36-1.1 to -3.5, including those that establish the Level of Supervision System (System). N.J.A.C. 10:36-1.1. The System was "designed to provide a timely, uniform process which affords each patient the structure and intensity of supervision appropriate to his or her condition during the course of hospitalization." N.J.A.C. 10:36-1.1(a).
The purposes and duties of the Department are outlined in its enabling statute:
The Commissioner [of the Department of Human Services] shall have the power to promulgate regulations to assure that services in State and county psychiatric facilities are provided in an efficient and accessible manner and are of the highest quality. Regulations shall include, but shall not be limited to, the transfer of patients between facilities; the maintenance of quality in order to obtain certification by the United States Department of Health and Human Services; the review of the facility's budget; and the establishment of sanctions to assure the appropriate operation of facilities in compliance with State and federal laws and regulations.
[N.J.S.A. 30:1-12(2).]
The System applies to all individuals who have been hospitalized including those who have been deemed SSPs. N.J.A.C. 10:36-1.3(c). SSPs are psychiatric patients who have been (1) charged with certain serious offenses, (2) hospitalized because they were found incompetent to stand trial (IST) or not guilty by reason of insanity (NGRI) or (3) found to have a "predisposition for serious violent or other high risk behavior." N.J.A.C. 10:36-1.2.
The System requires Special Status Patient Review Committee (SSPRC) approval before any SSP can be discharged or have a decrease in supervision level, as recommended by the treatment team. N.J.A.C. 10:36-1.3(c)(1). The review is conducted by the SSPRC as "the Division recognizes that the management of some patients within its hospital system requires a more comprehensive and complete evaluation of the clinical, judicial[,] and administrative factors relevant to treatment plan development and implementation." N.J.A.C. 10:36-2.1(a). Thus, the purpose of SSPRC review is:
The SSPRC is made up of, at a minimum, the Medical/Clinical Director or Chief of Psychiatry, the Director of Psychology, the Director of Nursing Services, the Director of Rehabilitation Services, and the Director of Social Services, or experienced designees for these directors. N.J.A.C. 10:36-2.2(b).
"Treatment team" means the organized group of clinical staff who are responsible for the treatment of a specific patient who has been admitted to an adult psychiatric hospital. N.J.A.C. 10:36-1.2. Members of the treatment team meet in order to develop and implement treatment plans and to plan discharge/aftercare. Ibid.
to establish a mechanism which provides a comprehensive review of the clinical treatment and management of special status patients through ensuring appropriate treatment interventions, levels of supervision and planning at the time of movement to less restrictive settings, decrease of structures and security, or discharge, and to ensure that hospital staff conduct an appropriate risk/benefit assessment balancing the patient's need for effective treatment and the safety needs of all parties when special status patients are given privileges.
[N.J.A.C. 10:36-2.1(b).]
The treatment team makes recommendations to discharge or decrease the supervision level for SSPs to the SSPRC for review. N.J.A.C. 10:36-1.3(c). The SSPRC reviews the recommendations by balancing the patient's need to "successfully participate in treatment and rehabilitative programs, while maintaining a safe and secure therapeutic milieu for patients and staff." N.J.A.C. 10:36-1.1.
Regardless of whether the SSPRC completes its review by the patient's next regular court hearing date, and regardless of whether the SSPRC agrees with the treatment team's recommendation, the court may decide to discharge the SSP or to decrease the patient's supervision level. N.J.S.A. 30:4-27.15(b); N.J.S.A. 30:4-27.17; N.J.S.A. 2C:4-9(b); N.J.S.A. 2C:4-8(b); N.J.S.A. 2C:4-6(b). Pursuant to administrative rule, hospital staff are required to comply with the court's determination. N.J.A.C. 10:36-2.1(b).
On February 3, 2006, counsel for the Department issued a letter to the Director of the Public Defender's Division of Mental Health Advocacy memorializing an agreement reached between the Public Defender and the Department. The purpose of the agreement was to settle motions made by the Public Defender in several commitment cases, in which it sought to exclude the Department's legal specialist from commitment hearings. In return for the Public Defender's withdrawal of those motions and the understanding that it would not file similar motions in the future, the Department agreed to distribute the memo that is currently being challenged.
The Department's letter provided that upon distribution of the memo, the Public Defender would agree to the following:
The Public Defender will withdraw its pending applications requesting the exclusion of the Division's legal specialist that were submitted to Judge Krell at Ancora and Judges Venturi and Hagerty at Trenton Psychiatric Hospital and will also send a letter to Judge Lester Maisto stating that the Public Defender does not object to the legal specialist's attendance at commitment and [Conditional Extension Pending Placement] CEPP hearings.
The Public Defender will advise its attorneys and investigators not to raise the issue of the legal specialist's presence with clients or to otherwise suggest to
their clients that the legal specialist should be excluded.
The Public Defender will not request exclusion of the legal specialist based on the right to an [in camera] hearing unless its client spontaneously insists on the legal specialist's exclusion, in which case the public defender assigned to the case immediately will notify the Office of the Attorney General by telephone.
CEPP was created "for individuals who no longer met the standard for involuntary commitment, but for whom there was no present appropriate placement in the community." N.J. DEP'T OF HUMAN SERVS., DIVISION OF MENTAL HEALTH SERVICES, CONDITIONAL EXTENSION PENDING PLACEMENT (CEPP), www.state.nj.us/humanservices/dmhs/olmstead/cepp/ (last visited January 9, 2015). At CEPP hearings, "the court shall inquire into and receive evidence of the patients' placement as is necessary to support the entry of an order conditionally extending the patient's hospitalization." R. 4:74-7(h)(2). Furthermore, the "hospital employee who has primary responsibility for placing the patient shall prepare a written report and shall make it available to the court and all counsel no later than one business day prior to the hearing." Ibid. If the court is advised at the hearing that an appropriate placement is available, "it shall forthwith order such placement." Ibid.
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The memo, entitled "Testimony in Special Status Patient Review Committee (SSPRC) Cases" was intended to clarify any confusion or uncertainty that staff might have regarding the appropriate content of court testimony when a patient's supervision level or discharge are subject to the SSPRC review process. The memo addressed mandatory disclosures at the hearing, providing:
At the hearing . . . the witness from the treatment team must always testify truthfully and fully regarding his or her clinical opinion and the treatment team's recommendation, even when that recommendation has not been endorsed by the SSPRC. In cases where the SSPRC has not endorsed the treatment team's recommendation, both the treatment team's recommendation and the SSPRC's concerns must be documented in the witness's written report for the court.
As agreed, the Department distributed the memo upon receipt of the letter-agreement countersigned by the Public Defender's Director of Mental Health. The Department sent the memo to the Chief Executive Officers of each of the State psychiatric hospitals with instructions to distribute it to all medical and social work staff and to include it in orientation materials for medical and social work staff hired thereafter. The Public Defender responded by withdrawing its pending applications to exclude the legal specialists.
In this action, the Public Defender asserts that (1) the Division exceeded its authority when it promulgated N.J.A.C. 36:1-3(c) and issued the memo, and (2) the memo's directions violate the due process rights of civilly committed patients. The Public Defender argues under N.J.S.A. 52:14B-2(e), the memo has the weight and authority of a promulgated rule. As such, the challenge may be taken to the Appellate Division as of right. See R. 2:2-3(a)(2); N.J. Educ. Ass'n v. Liberara, 366 N.J. Super. 9, 13 (App. Div. 2004). Because the Public Defender is making a constitutional challenge to administrative regulations, the exhaustion doctrine does not apply. Sanchez v. Dep't of Human Servs., 314 N.J. Super. 11, 32 (App. Div. 1998).
Review of administrative regulations is extremely limited. See In re Adoption of Unif. Hous. Afford. Controls, 390 N.J. Super. 89, 100 (App. Div. 2007) (recognizing the deference that courts give to agency rulemaking). An administrative regulation is afforded a "presumption of reasonableness and validity." In re Twp. of Warren, 132 N.J. 1, 26 (1993). However, "presumption of validity does not attach if the regulation on its face reveals that the agency exceeded the power delegated to it by the Legislature." In re N.J. Individual Health Coverage Program's Readoption, 179 N.J. 570, 579 (2004).
The Public Defender has the burden of proving that the regulations are arbitrary, capricious, or unreasonable, or that they go beyond the scope of defendant's delegated power. Lewis ex rel. Lewis v. Catastrophic Illness in Children Relief Fund, 336 N.J. Super. 361, 369 (App. Div. 2001) (internal citation omitted). "To be valid, a regulation must be within the fair contemplation of the delegation of the enabling statute." Ibid. (quoting Alevras v. Delanoy, 245 N.J. Super. 32, 36 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991)). An administrative regulation will only be invalidated "in those rare instances when it is clear that the agency action is inconsistent with the legislative mandate." Warren, supra, 132 N.J. at 26.
In this matter, the Public Defender contends the Department regulations are applied differently to SSPs. The memo directs its employees to make unsolicited statements to the court during CEPP hearings about the SSPRC's review and recommendation. The Public Defender argues this results in statements by team members that "compromise the integrity of [the] hearings" and usurps the power of the court.
The Public Defender has provided no support for its contention. In fact, the Public Defender concedes that "[i]t is certainly within the authority of [the Department] to promulgate rules which require that committees review decisions made about patient care." The SSPRC does just that. See N.J.A.C. 10:36-1.3(c).
The enactment of legislation cannot anticipate every possible problem which may arise at an administrative agency. Lewis, supra, 336 N.J. Super. at 370. Hence, agencies are permitted "expert and flexible control" in providing solutions to complex problems. Id. at 370-71. The commitment of SSPs and the issues presented during the hearings were problems that arose at the Department. Its solution to address the issues, enactment of N.J.A.C. 10:36-1.3(c), was not arbitrary, capricious, or unreasonable. In the same vein, the Department acted within its authority when it distributed the memo. Moreover, the memo's direction to witnesses to truthfully convey the status and result of SSPRC reviews in their reports to the court is consistent with the Department's responsibilities to provide the commitment court with relevant information.
In short, neither N.J.A.C. 10:36-1.3(c) nor the memo exceeds the authority granted to the Department. The SSPRC review process functions within the constraints of the required and routine court review of commitment for SSPs.
The Department argues that the Public Defender lacks standing to challenge the administrative rules because it "represents no identified person who claims to be injured by the memorandum." The Department contends that a constitutional challenge may only be brought by a person who has allegedly been harmed by the regulation. We disagree.
According to N.J.S.A. 52:27EE-37, all "functions, powers, and duties which had been vested in the Division of Mental Health Advocacy in the Department of the Public Advocate are hereby transferred to and assumed by . . . the Office of the Public Defender." This is especially relevant to an applicable statute conferring standing on Public Defender:
The Director of the Division of Mental Health Advocacy may represent . . . the interests of indigent mental hospital admittees in such disputes and litigation as will, in the discretion of the Public Defender, best advance the interests of indigent mental hospital admittees as a class on an issue of general application to them, and may act as representative of indigent mental hospital admittees with any principal department or other instrumentality of State, county or local government.
[N.J.S.A. 52:27EE-31.]
While we conclude the Public Defender has standing to bring this application to challenge the regulations and rules on behalf of SSPs and other committed individuals affected by the rules in this case, the claims presented lack substantive merit. In light of our disposition in this matter, we need not address the Department's remaining argument.
The appeal is dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION