In the Matter of J.S., A-4132-11T1; Appellate Division; opinion by Axelrad, P.J.A.D.; decided and approved for publication June 21, 2013. Before Judges Axelrad, Sapp-Peterson and Haas. On appeal from the Department of Human Services, Division of Developmental Disabilities. DDS No. 22-2-0373 [22 pp.]

The parents of J.S., a developmentally disabled adult who was in an out-of-state private residential placement, appeal from a final decision of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD), declining to place her name on the priority waiting list (PWL) retroactive to April 15, 1996.

Appellants contend the DDD had an affirmative obligation to individually notify them of the change in the regulations that occurred in 1996, after J.S. had been assigned to the nonurgent waiting list category, which rendered J.S. eligible for placement on the PWL. They argue that as a remedy for the agency's failure, J.S. should be placed on the PWL retroactive to the date of the regulation rather than as of Jan. 7, 2004, the date they requested the priority assignment. Appellants also challenge the DDD's decision to treat the matter as a noncontested case. They additionally seek attorneys' fees and costs of litigation.

Held: The final determination of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD) is affirmed, declining to place J.S., a developmentally disabled adult who was in a private residential placement in Massachusetts and assigned to the nonurgent waiting list, on the priority waiting list retroactive to the date of the DDD's new regulations that rendered J.S. eligible for priority placement. Based on the language of the regulations and deference to the agency's interpretation of its regulations, the DDD was not legally obligated to affirmatively notify appellants, J.S.'s parents, of the change in regulations. Nor did the DDD act arbitrarily or capriciously warranting judicial intervention.

In 1996, the DDD's regulations changed, requiring the DDD to provide families with the opportunity to place their children on the PWL once the younger parent turned 55 years of age. The crux of appellants' argument is that N.J.A.C. 10:46C-1.8 imposed on the DDD an affirmative duty to advise of the new regulation and thus afford families the option to place eligible individuals on the PWL when the age 55 criterion was established in 1996 and every year thereafter. They urge that when the DDD fails to comply with its affirmative obligation to place its clients on the PWL according to the mandated procedures, it violates the agency's governing statute, and effectively denies its clients services to which they are entitled.

Specific to J.S., appellants contend the DDD acted arbitrarily and capriciously by failing to make any contact with them for several years and not advising them of the option to have J.S. placed on the PWL, for which she would have qualified in 1996 as her father was then more than 55 years of age. Appellants urge that it would be an injustice to permit the DDD to act arbitrarily and fail to carry out its affirmative obligation by placing J.S. on the PWL nearly eight years after she was entitled to placement, which results in a substantial further delay of the agency's responsibility to provide residential services to J.S. Appellants further argue that by failing to offer J.S. placement on the PWL as of 1996, the DDD treated her differently than similarly situated disabled persons whose younger parent turns 55 years of age, violating her right to equal protection under the state and federal constitutions.

The record demonstrates that at the time of eligibility on Jan. 10, 1995, J.S. was privately placed in Massachusetts and the DDD complied with its obligation to place J.S. on the nonurgent Category 3 waiting list. Appellants did not object to or otherwise appeal this designation. Moreover, appellants could have contacted the DDD case manager at any time prior to December 2003 and did not. Appellants also had the option to request that J.S. be added to the urgent waiting list but instead waited until the end of 2003, despite the public notice of the 1996 change in the DDD's regulation.

Additionally, during that time the DDD was not providing any services for J.S., let alone being "primarily responsible" for delivering or coordinating services for her. Thus, the agency did not provide an Individualized Habitation Plan (IHP) for J.S. that was annually reviewed with a plan coordinator and appellants. The agency, within its expertise and discretion, tied the mechanism for informing the families of the option of the priority placement and the exercise of that option to the time of the annual IHP. Accordingly, the express language of N.J.A.C. 10:46C-1.8(a) and (b) did not impose on the DDD an affirmative obligation to advise appellants of the change in regulations.

Appellants have also failed to support their equal protection claim. The DDD promptly acted on appellants' Jan. 7, 2004, request for priority. In accordance with N.J.A.C. 10:46C-1.8(c), the agency assigned J.S. to the urgent waiting list category effective to that date. Thus, J.S. was afforded the priority to which she was entitled under law.

The panel further disagrees with appellants that the administrative procedures offered by the DDD were inadequate and that they are entitled to an OAL hearing based on statute, regulation or a constitutional right. As the matter solely involves the DDD's interpretation and implementation of its regulation, a hearing is unnecessary. Appellants do not have a constitutional right to a contested case hearing in this matter. The administrative appeal procedure offered by the DDD is adequate to protect J.S.'s interest. Appellants are not entitled to reimbursement of attorney fees and costs.

For appellant J.S. — Evelina E.G. Padilla (Hinkle, Fingles & Prior; Padilla and S. Paul Prior on the brief). For respondent New Jersey Department of Human Services, Division of Developmental Disabilities — Gene Rosenblum, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel).