RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2435-14T3
NEW JERSEY DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T.J.,
Respondent-Appellant.
________________________________
Submitted November 28, 2017 – Decided July 16, 2018
Before Judges Carroll, Leone, and Mawla.
On appeal from the New Jersey Department of Human Services, Docket No. DRA #12-001.
Richard M. Pescatore, PC, attorneys for appellant (Jennifer M. Carlson, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Gene B. Rosenblum, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner T.J. appeals from an October 8, 2014 final agency
decision issued by the Director of the New Jersey Department of Human Services, Office of Program Integrity and Accountability
(Department). The Director reversed the initial decision of the
Administrative Law Judge (ALJ), who had dismissed the Department's
decision to place T.J.'s name on the Central Registry of Offenders
Against Individuals with Developmental Disabilities (Registry).
The Director agreed with the Department that T.J. was grossly
negligent in caring for T.N. (Patient), a resident at Woodbine
Developmental Center (WDC), a state-operated residential facility
for severely disabled men. We affirm.
I.
The following facts are undisputed. In 2006, T.J. was hired
as a human services assistant (HSA) by WDC. As an HSA, T.J.
provided direct care to the residents of WDC. WDC trained T.J.
in areas including in-service abuse and neglect, use of mechanical
restraints, and caring for residents with pica, "[a] perverted
appetite for substances not fit as food or of no nutritional
value[.]" Stedman's Medical Dictionary 1495 (28th ed. 2006).
T.J. volunteered to work overtime during the 11:00 p.m. to
7:00 a.m. shift on the night of January 12-13, 2011. She was
assigned to provide one-to-one enhanced support for Patient in
Cottage 16.
T.J. was not familiar with Patient because she was generally
not assigned to Cottage 16. However, each WDC resident had a
2 A-2435-14T3 client card that described his risks, required behavioral
supports, behavioral plan, and other important details. Patient's
card described him as follows. Patient is independent and
ambulatory while indoors. He uses a wheelchair exclusively for
out-of-cottage (OOC) transport. For cardiac reasons, precautions
are to be considered before placing him in restraints. His
behavioral risks include choking, pica, and aspiration pneumonia.
Patient's pica disorder is severe, and he has ingested shower
curtain rings, gastronomy tube connectors, electrical socket
protectors, latex gloves, and other items, and chews on his shorts,
blankets, and curtains. The card instructs the staff to "[k]eep
all items that could possibly be ingested out of his immediate
reach."
Following an investigation, the Department determined that
during her January 13, 2011 shift, T.J. "committed a substantiated
act of Neglect against [Patient]." Specifically, the Department
found: T.J. was asleep five feet away from Patient with her back
to him; her chair was covered with a plastic bag which created a
potential pica hazard; T.J. placed Patient in a wheelchair to
prevent him from walking around, which constituted an unauthorized
restraint, for her own convenience; Patient was found to have a
clothing protector (bib) in his mouth, which was unauthorized and
a pica hazard; T.J. failed to document the pica incident and
3 A-2435-14T3 otherwise maintain Patient's enhanced support log book; and T.J.
failed to provide one-to-one enhanced support to Patient.
On April 27, 2011, the Department notified T.J. that her name
would be placed on the Registry. T.J. appealed in a February 15,
2012 letter.1 The Department transferred the appeal to the Office
of Administrative Law on February 21, 2012.
Plenary hearings were held before the ALJ on seven dates
between October 2012 and July 2013. During the hearing, WDC
supervisors Cecilia Hope and Cynthia Eckeard Brown, Department
investigator Richard Sweeten, and clinical psychologist Dr. George
Ackley testified about WDC policies and Patient's treatment plan.
T.J., WDC senior supervisor Sherry Manwaring, T.J.'s direct
supervisor Delores Lee, and T.J.'s co-worker Joseph Egbeh
testified about the events of January 13, 2011. After the
testimony was concluded, the ALJ sua sponte ordered the Department
to present Patient's log book covering weeks that included the
January 13, 2011 incident.
During her testimony, T.J. admitted the following. At the
beginning of her shift, she was given Patient's client card and
read it prior to entering his room. She had been trained in
1 Meanwhile, T.J. was removed from employment by WDC as a result of an earlier incident. The propriety of her removal was not at issue in this case.
4 A-2435-14T3 enhanced support and understood she was to stay within arm's length
of Patient at all times and document every half hour of her shift
in his log book. She covered a chair in Patient's room with a
plastic trash bag because she had "an issue with germs." She
moved Patient from his bed to a wheelchair and restrained him
without getting approval from a supervisor to do so. She did not
record placing Patient in a wheelchair in his log book though "it
should have been documented."
Manwaring was on duty during T.J.'s overnight shift, and
testified as follows. While making her rounds, Manwaring entered
Cottage 16 around 3:40 a.m. on January 13, 2011. She entered
Patient's darkened room along with Lee and saw "a wheelchair with
[Patient] slumped over in it. He had a [bib] hanging out of his
mouth." On the opposite side of the room, she observed T.J. curled
up "in the fetal position" in a chair with her back to Patient.
Manwarning testified that T.J.'s chair was approximately ten feet
from Patient's wheelchair. Manwaring had Lee turn on the lights
and Manwaring spoke to Patient and removed the bib from his mouth
because it was a pica hazard.
During this sequence of events, T.J. was "non-responsive" –
"she didn't move or anything" and it "appeared that she was
sleeping." Manwaring "called her name [and] [s]he didn't move."
Manwaring called her name again with the same result. After
5 A-2435-14T3 Manwaring called T.J.'s name a third time, "she turned around, but
she was very groggy . . . she didn't seem with it at all."
Manwaring asked what Patient was doing, and T.J. "couldn't even
answer . . . she was just kind of looking at me." Manwaring
repeated the question, and T.J. responded, "sleeping."
Manwaring testified that T.J. had "a plastic bag on the back
of [the chair]," which was a pica hazard. Manwaring testified
that the chair was for the residents not the staff, and that the
caregivers had their own plastic chairs. Manwaring also testified
she checked the log book and found no entries between 12:30 a.m.
and 3:40 a.m. There was also no notation on why or how Patient
was placed in the wheelchair. Manwaring further testified that
Patient was mechanically restrained in his wheelchair by the
attachment of the chair's lap tray in a locked position. Manwaring
testified that the lap tray lock was located "around the back of
the chair" and that Patient could not get up while the tray was
locked onto the chair.
Moreover, Manwaring testified that Patient was "[a]bsolutely
not" supposed to be sleeping while restrained in a wheelchair by
a locked lap tray. Manwaring further testified that Patient was
"supposed to be in bed, and he has the right to choose not to be
in bed if he doesn't want to be," and "if he wants to walk around
the cottage, he should be allowed to walk around." Manwaring
6 A-2435-14T3 testified that "[i]f a wheelchair is not ordered by a doctor or
in [Patient's] plan, it is considered a restraint." Manwaring
testified that Patient's plan only called for him to be placed in
"a wheelchair with a seatbelt and laptop tray for OOC transport[.]"
Thus, the placement of Patient in a wheelchair to sleep was not
an approved restraint because the wheelchair was approved "for
transport only."
The ALJ found "the testimony of Sherry Manwaring not
credible," on the basis of entries in the log book that seemed to
contradict her claim that Patient was to be placed in a wheelchair
for transport purposes only. The ALJ made no credibility findings
as to Hope, Eckeard Brown, Sweeten, and Dr. Ackley, and did not
discuss their testimony.
The ALJ found that T.J. was "inattentive and groggy," that
she was "more than an arm's length away from" Patient, that her
"use of a trash bag to cover the fabric on the chair was
objectionable," that she admittedly "did not fill in the client
log every half hour," and that her conduct "warranted disciplinary
action." However, based largely on the log book, the ALJ
discredited Manwaring's testimony that T.J. was asleep, that T.J.
improperly placed and restrained Patient in his wheelchair, and
that Patient had a bib in his mouth. The ALJ ruled that the
Department failed to meet its burden of proof to show T.J. acted
7 A-2435-14T3 with gross negligence or recklessness. The ALJ dismissed the
Department's finding of negligence, and ordered the Department to
remove her name from the Registry. The Department filed
exceptions, arguing that the ALJ's credibility findings were
flawed due to the ALJ's interpretation of the log book.
On October 8, 2014, the Director issued a fourteen-page final
decision that rejected and modified the ALJ's initial decision.
The Director found that the ALJ's credibility determinations were
"so baseless and unsupported by facts that they must be modified"
and that the ALJ reached "baffling conclusions based on
unexplained, unexamined and questionable evidence." Referencing
the standard of care established by the testimony of Hope, Dr.
Ackley, Eckeard Brown, and Sweeten, and crediting Manwaring's
testimony, the Director ruled that T.J. committed acts of neglect
and acted with gross negligence and recklessness. The Director
concluded that T.J. was properly placed on the Registry. T.J.
appeals.
II.
We must hew to our standard of review. "Appellate courts
have 'a limited role' in the review of [administrative agency]
decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting
Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "An
8 A-2435-14T3 appellate court affords a 'strong presumption of reasonableness'
to an administrative agency's exercise of its statutorily
delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171
(2014) (citation omitted). "In order to reverse an agency's
judgment, an appellate court must find the agency's decision to
be 'arbitrary, capricious, or unreasonable, or [] not supported
by substantial credible evidence in the record as a whole.'"
Stallworth, 208 N.J. at 194 (quoting Henry, 81 N.J. at 579-80).
T.J. argues the Director acted arbitrarily and capriciously
in rejecting or modifying the ALJ's findings of fact and
credibility determinations. We disagree.
Under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to
-15, "[i]n reviewing the decision of an administrative law judge,
the agency head may reject or modify findings of fact, conclusions
of law or interpretations of agency policy in the decision, but
shall state clearly the reasons for doing so." N.J.S.A. 58:14B-
10(c). However, "generally it is not for [courts] or the agency
head to disturb [the ALJ's] credibility determination, made after
due consideration of the witnesses' testimony and demeanor during
the hearing." H.K. v. State, 184 N.J. 367, 384 (2005).
The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or
9 A-2435-14T3 unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the [Director] shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.
[N.J.S.A. 52:14B-10(c).]
"In a case where an administrative agency's findings of fact
are contrary to the findings of the ALJ who heard the case, there
is a particularly strong need for careful appellate review." In
re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). Moreover,
a reviewing court "need give no deference to the agency head on
the credibility issue" when the Director has overturned the ALJ's
credibility determinations of lay witnesses. Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 587-88 (1988). "It was the ALJ, and
not the Director, who heard the live testimony, and who was in a
position to judge the witnesses' credibility." Id. at 587.
After reviewing "the seven volumes of transcripts, evidential
documents, closing arguments, and exceptions," the Director found
the ALJ's initial decision was founded upon credibility findings
that are not supported by sufficient, competent, rational, or
trustworthy evidence." The Director found two principal reasons
for rejecting the ALJ's credibility findings.
10 A-2435-14T3 First, the ALJ's initial decision "never mentions the
testimony and evidence given by four witnesses" who "testified
. . . about the requisite and reasonable level of care that is
expected of the caregiver." The Director faulted the ALJ's failure
to analyze or reference the testimony of Hope, Eckeard Brown,
Sweeten, and Dr. Ackley to determine the standard of reasonable
care T.J. owed to Patient, concluding "[t]he enormous amount of
testimony at [the] hearing establishing the polices of [WDC] and
the initial decision's failure to recognize which witnesses were
aware of them, let alone following them, undermines the credibility
determinations that it contains."
The Director properly found credible the standard of care
established by the testimony of Hope, Dr. Ackley, Eckeard Brown,
and Sweeten as follows. Eckeard Brown's testimony "emphasized the
importance of a pica regime and the danger of enhanced support
personnel sleeping on duty." Dr. Ackley testified "[t]he duty of
anyone giving one to one care of an individual with pica, and
[specifically Patient]'s enhanced caregiver, is to constantly
watch and constantly intervene if he were to get hold of something
that he might ingest." Hope testified "that enhanced support
required being within an arm's length of the client and watching
the client continuously." Hope also testified that "documenting
the enhanced support [every half hour in the log book] promotes .
11 A-2435-14T3 . . '[a]ccountability of the staff that they are alert and
providing the specified service for the man.'"
As the four witnesses testified, [Patient]'s cottage housed
many individuals with pica, thus necessitating vigilant monitoring
within arm's length by enhanced support. Items such as plastic
bags should be kept away from patients, and staff should not
introduce unnecessary pica hazards.
Finally, Dr. Ackley, who helped develop Patient's support
plan, testified that Patient was not to be restrained in his
wheelchair, which was only for OOC transport. Eckeard Brown
testified that residents are free to choose to sit in their
wheelchairs if they desire, but that it was inappropriate for
enhanced support staff to restrain patients in wheelchairs without
obtaining permission from a supervisor or doctor. Hope testified
that all staff are trained that residents cannot be retrained for
the convenience of staff, and that the staff may not put an
ambulatory resident in a wheelchair with the lap tray down as a
restraint unless authorized by a supervisor.
The Director concluded that "[r]oughly half of the testimony,
concerning the proper policies and procedures, was never mentioned
and evidently, never considered." The Director found that without
considering those policies, the ALJ's "determination of the
veracity of testimony concerning the application of those policies
12 A-2435-14T3 is invalid [and] not based on sufficient, competent, rational, or
trustworthy evidence." We agree.
Second, the Director found that the ALJ's "reasons cited in
the initial decision for slighting Manwaring's credibility are not
borne out in the extensive record." In particular, the Director
criticized the ALJ's reliance on the log book entries to discredit
Manwaring.
As the Director noted, seven of the eight witnesses testified
that the staff are allowed to use Patient's wheelchair only for
transport. The only exception was T.J., whom the ALJ did not
credit. 2 Thus, substantial evidence supported the Director's
finding that T.J.'s use of a wheelchair to confine Patient violated
the standard of care.
Nonetheless, the ALJ "found Manwaring incredible because she
emphatically testified that residents are never placed in their
wheelchairs for the convenience of staff." The ALJ found
"Manwaring was not forthcoming to this tribunal regarding the
extent to which [Patient] was being placed in his wheelchair for
staff's convenience, and there[fore] she was deemed not credible."
The ALJ based those conclusions entirely on "the log book that was
2 Lee testified that she had not been familiar with Patient's wheelchair plan, but upon examining Patient's client card acknowledged it provided only for use of the "[w]heelchair with seatbelt and lap tray for OOC transport."
13 A-2435-14T3 requested by the undersigned" which "seriously undermined the
[Department's] case." As a result, the ALJ concluded that
Manwaring's testimony was "flatly untrue," and that testimony from
Manwaring and the Department's other witnesses that residents were
not placed in wheelchairs for the staff's convenience "rais[ed]
the spectre of 'false in one false in all.'"
The ALJ stated there were "fifty entries in the log book
between December 24, 2010, and January 12, 2011, wherein [Patient]
was logged in as sitting in his wheelchair watching television or
doing something similar." The ALJ insisted that: "[Patient]'s log
book contained documented proof that he was routinely placed in
his wheelchair for non-transportation purposes (i.e., for the
staff's convenience)"; "the log book . . . demonstrate[ed] that
the WDC permitted staff members to routinely place [Patient] in
his wheelchair"; it showed WDC "[m]anagement and staff condoned
and approved the practice of "[placing Patient in his wheelchair;
"WDC management knew, or should have known, that [Patient] was
being placed in his wheelchair for staff convenience, and did not
do anything about it until this matter arose."
The ALJ's conclusions drawn from the log book were not
supported by sufficient, competent, credible evidence, and were
unreasonable. To reach these conclusions, the ALJ ruled entirely
on the log book, and asserted the log book "does speak for itself."
14 A-2435-14T3 However, almost all the log book entries for the period cited
by the ALJ were consistent with Patient choosing to sit in his
wheelchair, and gave no indication Patient was "placed" in his
wheelchair by enhanced support staff, let alone restrained in his
wheelchair. Typical entries included: "[Patient] back in
wheelchair, unit #4 hallway"; "[Patient] sitting in his wheelchair
in unit #4!"; "[Patient] sitting in his wheelchair watching T.V.";
"[Patient] is sitting in his wheelchair"; "[Patient] walk around
the building, now back in dayroom in his wheelchair watching T.V.";
"[Patient] up dressed and in his wheelchair"; "[Patient] sitting
in his wheelchair relaxing and watching T.V. [in] unit 4 with
staff"; "[Patient] back in his wheelchair sitting in back day room
watching T.V."; and "[Patient] took a walk around the building for
about 15 mins. and returned in his wheelchair, and is in dayroom."
Of the fifty-five log entries that indicated Patient was in
his wheelchair, there are only three or four entries suggesting
that Patient was "placed" in the wheelchair by staff. The 6:55
a.m. entry from January 7, 2011, stated, "[Patient] is awake, and
is administered [hygiene] and placed in his assigned w/chair."
The 1:50 a.m. entry on January 11, 2011, stated, "[Patient] awake
place in his wheelchair will not stay in bed!" However, these
entries do not state that Patient was restrained in the wheelchair.
15 A-2435-14T3 The 5:30 p.m. entry from January 6, 2011, stated: "[Patient]
is in back dayroom watching T.V. Let [Patient] out of wheelchair
to walk around day room and exercise for a little bit." However,
the prior entry from 5:00 p.m. on that day stated that Patient's
colostomy bag "was off his stomach" and his enhanced support had
taken "him to nurse to replace bag." Thus, it could also be
inferred if Patient had been restrained in his wheelchair in that
instance, it may have been for a medical or safety reason after
having his colostomy bag replaced. In any event, one or even four
instances out of the fifty-five entries was insufficient to show
that the staff routinely placed or restrained Patient in his
wheelchair for staff convenience, contrary to the testimony of all
of the Department's witnesses.
By contrast, the ALJ's interpretations of the entries were
not supported by any other evidence. There was no testimony
regarding the log entries of any day except for the January 13,
2011 incident with T.J. Thus, there was little if any evidentiary
basis to conclude either that Patient was placed or restrained in
his wheelchair for staff convenience, and no evidence that it was
done regularly or condoned by the WDC.
Thus, as the Director determined, "[t]he ALJ made his own
interpretations of the many entries, by the numerous authors, with
no contextual evidence." The Director could permissibly find that
16 A-2435-14T3 was "not a valid basis to form a finding of credibility" against
Manwaring. See ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J.
Super. 531, 562 (App. Div. 2008) (holding it was not unreasonable
for the agency head to reject an ALJ's credibility findings because
"the number of visits to a site cannot form the sole basis on
which to base credibility"). Moreover, the record provides no
guidance as to whether the staff had received supervisory or
medical approval to place Patient in his wheelchair. Lacking such
crucial information here, it was impossible for the ALJ to draw
any conclusion about the reasons for Patient being in his
wheelchair without resorting to conjecture.
The ALJ also found that "Manwaring actually appears to have
initialed her approval of [placing Patient in his wheelchair] on
January 9, 2011," and that "charging [T.J.] with violating the WDC
restraint policy when Manwaring directly or indirectly approved
similar conduct and even signed off on it in the log is
extraordinary." However, there was no testimony that supervisors
initialed the log book to indicate their approval of the enhanced
support staff's log book entries or conduct. Rather, Manwaring,
Lee, and Sweeten testified that supervisors initialed the logs to
indicate that they had made their rounds at the proper intervals.
Manwaring and T.J. testified that when Manwaring made her January
13, 2011 rounds, she initialed Patient's log book even though T.J.
17 A-2435-14T3 had failed to properly maintain Patient's log up to that point.
There was no indication that her initials indicated approval of
T.J.'s conduct. To the contrary, Manwaring instructed T.J. to
properly update her log book entries. Thus, the Director correctly
found that the ALJ's use of the log book as the basis for
credibility findings was arbitrary, capricious, unreasonable, and
unsupported by sufficient evidence.
The ALJ also stated that "[t]he conflicting reports from
Egbeh, Lee, Manwaring and [T.J.], together with the preexisting
conflict between Manwaring and [T.J.], significantly undermined
proofs offered by" the Department. However, neither ground
supported the ALJ's discrediting of Manwaring.
First, any conflict of Manwaring with Egbeh's testimony was
irrelevant because the ALJ "found the testimony of Joseph Egbeh
incredible." Similarly, the ALJ found that T.J.'s "testimony was
vague and inconsistent, substantially reducing [its] weight and
credibility," and that T.J. "had poor independent recall of the
incident, other than her recorded statements," which were
inconsistent with each other and with her trial testimony.3
3 Although the ALJ based on the log book credited T.J.'s testimony, which Egbeh denied, that Egbeh told T.J. she could use the wheelchair as a restraint and helped her carry Patient into the wheelchair, T.J.'s use of Patient's wheelchair as a restraint was still contrary to his client card and WDC policy.
18 A-2435-14T3 Lee's testimony differed from Manwaring as Lee said T.J. was
awake and responded when Manwaring called her name. However, the
Director did not dispute that T.J. was awake and ultimately
responded. In any event, the ALJ found Lee only "marginally
credible," and noted "Lee committed many disciplinary infractions
(not making rounds, not supervising [T.J.], permitting [Patient]
to remain in a wheelchair), and since she was facing discipline
when she authored her incident reports, I was concerned that some
statements therein might be shaded or embellished."4
Second, the ALJ found Manwaring had a preexisting conflict
with T.J. because T.J. had filed a grievance several years earlier
claiming Manwaring was mistreating her. However, the grievance
was never litigated and was not sent to Manwaring. Manwaring
testified she was unaware of any grievance, and the WDC's Human
Resources manager testified Manwaring would not have been informed
of the grievance. As there was no evidence Manwaring was aware
of the grievance, the ALJ had no basis to find Manwaring had any
"animus" against T.J.
4 The Director found Egbeh's testimony was "marginally credible," and Lee's testimony was not credible. We need not review the Director's slightly different appraisal regarding these witnesses, because the outcome would be the same even if we adopted the ALJ's appraisal.
19 A-2435-14T3 Accordingly, we find that under N.J.S.A. 52:14B-10(c), the
Director properly determined that the ALJ's credibility findings
as to Manwaring were arbitrary, capricious, unreasonable, and not
supported by credible evidence in the record. Thus, the Director
was authorized to reject those findings. Unlike the ALJ's
findings, the Director's findings were supported by sufficient,
competent, and credible evidence in the record.
III.
T.J. argues that the Director acted arbitrarily and
capriciously in concluding that T.J. had committed gross
negligence and placing her name on the Registry. We disagree.
In L. 2010, c. 5, the Legislature created the Registry to
provide "for the protection of individuals with developmental
disabilities by identifying those caregivers who have wrongfully
caused them injury." N.J.S.A. 30:6D-73(a).5 As the "safety of
individuals with developmental disabilities receiving care from
State-operated facilities . . . shall be of paramount concern[,]"
the Legislature sought "to assure that the lives of these innocent
individuals . . . are immediately safeguarded from further injury
5 All our citations to the act are to the original version of the act, effective October 27, 2010, which existed at the time of the January 13, 2011 incident.
20 A-2435-14T3 and possible death and that the legal rights of such persons are
fully protected." N.J.S.A. 30:6D-73(b), (c).
Thus, the Registry was established to "prevent caregivers who
become offenders against individuals with developmental
disabilities from working with individuals with developmental
disabilities." N.J.S.A. 30:6D-73(d). Any caretaker added to the
Registry is prohibited from future employment by the Department
and "those facilities or programs licensed, contracted, or
regulated by the department, or from providing community-based
services with indirect State funding to persons with developmental
disabilities[.]" N.J.S.A. 30:6D-77(c)(3); see N.J.A.C. 10:44D-
1.1.
To effectuate these goals, the act required reporting to the
Department if "an individual with a developmental disability has
been subjected to abuse, neglect, or exploration by a caregiver."
N.J.S.A. 30:6D-75(a)(1). "Neglect" is defined as "willfully
failing to provide proper and sufficient food, clothing,
maintenance, medical care, or a clean and proper home; or failure
to do or permit to be done any act necessary for the well-being
of an individual with a developmental disability." N.J.S.A. 30:6D-
74. If there is "a substantial incident" of neglect, the offending
caregiver shall be included on the central registry," N.J.S.A.
30:6D-76(1), if the caregiver "acted with gross negligence,
21 A-2435-14T3 recklessness, or in a pattern of behavior that causes or
potentially causes harm to an individual with a developmental
disability." N.J.S.A. 30:6D-77(b)(2). The regulations further
defined the terms:
1. Acting with gross negligence is a conscious, voluntary act or omission in reckless disregard of a duty and of the consequences to another party.
2. Acting with recklessness is the creation of a substantial and unjustifiable risk of harm to others by a conscious disregard for that risk.
[N.J.A.C. 10:44D-4.1(c).]6
The Director found T.J.'s conduct was grossly negligent. The
ALJ's "determination that [T.J.'s] conduct was negligent but not
grossly negligent is a conclusion of law to which we [and the
agency head] are not required to defer." See N.J. Div. of Youth
& Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div.
2011); see Dep't of Children & Families v. T.B., 207 N.J. 294, 308
(2011) (stating A.R. "properly reject[ed] the contention that"
such determinations "are entitled to deference"); see also
N.J.S.A. 52:14B-10(c). Nonetheless, we find no cause to disturb
6 These regulations became effective on June 6, 2011, but T.J., the Department, the ALJ, and the Director have relied upon them without objection. In any event, the regulation's definition of "gross negligence" and "recklessness" mirror those in Black's Law Dictionary, 1134, 1385 (9th ed. 2009).
22 A-2435-14T3 the Department's determination that T.J.'s conduct was grossly
negligent and that her name should be placed on the Registry.
The Director concluded T.J. committed the following acts of
neglect and gross negligence: being "inattentive and groggy to the
point that she was not caring for" Patient; being "oblivious to
the one client she has been assigned, whose pica presents such a
danger that she is required to constantly observe him while
remaining within an arm's reach"; her "action of locking [Patient]
in his [wheelchair]"; her "use of a trash can liner to cover the
back of the chair in [Patient]'s room [which was] a dangerous and
unnecessary introduction of a hazard into the pica ward"; her
"failure to monitor [Patient], and allowing him to place a bib in
his mouth"; and her failure to stay within "an arm's length from
[Patient]," "to maintain the log book and . . . to report an
incident of pica."
The Director's findings that T.J. committed these acts and
omissions were supported by substantial, credible evidence,
particularly by Manwaring's testimony. These acts and omissions
constituted neglect, as T.J. was "willfully failing to provide
proper and sufficient . . . maintenance" and failing "to do . . .
any act necessary for the well-being of an individual with a
developmental disability." N.J.S.A. 30:6D-74.
23 A-2435-14T3 Moreover, T.J. "acted with gross negligence [and]
recklessness." N.J.S.A. 30:6D-77(b)(2). First, her acts and
omissions were "in reckless disregard of [her] duty and of the
consequences to [Patient]." N.J.A.C. 10:44D-4.1(c)(1). In
particular, her introduction of a pica hazard into Patient's room,
and her unauthorized restraining of Patient in the wheelchair,
were undeniably "conscious, voluntary" acts of gross negligence.
Ibid. Second, her acts and omissions created "a substantial and
unjustifiable risk of harm to others by a conscious disregard of
that risk." N.J.A.C. 10:44D-4.1(c)(2). Her recklessness and the
resultant risk is best demonstrated by her introduction of the
pica hazard, and her decision to curl up in a chair with her back
to Patient, unaware he had put a bib in his mouth. Her gross
negligence and recklessness could "potentially cause[] harm" to
Patient. N.J.S.A. 30:6D-77(b)(2).
T.J.'s only duty during her January 13, 2011 overtime shift
was to provide care to Patient, who suffers from severe pica.
T.J.'s failure to stay alert, attentive, and within an arm's reach,
and her introduction of a pica hazard, exposed Patient to
unacceptable potential dangers. It was not arbitrary, capricious,
or unreasonable for the Director to include her name on the
Registry to prevent other patients from being put at risk.
Affirmed.
24 A-2435-14T3