                        RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-5701-11T2

L.R.,
                                               APPROVED FOR PUBLICATION
     Petitioner-Appellant,
                                                  February 6, 2014
v.
                                                 APPELLATE DIVISION
DIVISION OF DISABILITY SERVICES,

     Respondent-Respondent.
_________________________________

            Argued September 11, 2013 – Decided February 6, 2014

            Before    Judges        Fuentes,     Simonelli      and
            Fasciale.

            On appeal from the New Jersey Department of
            Human   Services,  Division  of  Disability
            Services.

            Susan W. Saidel argued the cause for appellant
            (Disability Rights New Jersey, attorneys;
            Ms. Saidel, of counsel and on the brief).

            Jennifer Simons, Deputy Attorney General,
            argued the cause for respondent (John J.
            Hoffman, Acting Attorney General, attorney;
            Melissa H. Raksa, Assistant Attorney General,
            of counsel; Ms. Simons, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     L.R.    participates      in    the   Personal     Assistance        Service

Program (PASP) established by the Legislature under the Personal

Assistance Services Act, N.J.S.A. 30:4G-13 to -22, (the Act).
The PASP is administered by the Division of Disability Services

(DDS   or     Division),    in   the    New      Jersey    Department        of    Human

Services.1      As a resident of Hunterdon County, L.R. was able to

receive      PASP   assistance      benefits     under    the       "cash   management

plan" earlier than other similarly situated eligible consumers

residing in other counties in the State.2                      In    December      2009,

L.R. requested to use the unspent part of her monthly budgeted

cash   allowance      to   pay   for    the      landline      connection        to   her

residence phone, cell phone service, and internet access.

       The    Division     denied    her       request    on    January     6,     2010.

Relying on N.J.A.C. 10:140-2.2(e), the Division determined it

was not obligated to pay for services that are not related to


1
  DDS defines its core mission as "serving people who have become
disabled as adults, whether through illness or injury.       Such
conditions are also called late-onset disabilities. It is
estimated that one in five people - about 1.75 million New
Jerseyans - has a disability that may limit their physical or
cognitive function." Division of Disability Services, STATE OF NEW
JERSEY,  DEPARTMENT OF   HUMAN  SERVICES  (January   21,   2014),
http://nj.gov/humanservices/dds/home/.
2
   In March 2000, Hunterdon County became the first county in the
State to use the cash management plan as a pilot program.     The
cash management model was adopted by Essex County in July 2001.
The Division convened a "PASP Cash Model Legislative Panel" in
2005 to develop a legislative proposal to implement the cash
model approach as a formal amendment to the Act.              The
Legislature formally amended the Act to incorporate the cash
management model approach. The legislation was signed into law
by Governor Corzine effective November 20, 2009.       43 N.J.R.
2551(a)(Oct. 3, 2011).




                                           2                                    A-5701-11T2
the    consumer's     personal    care         or     performed      by    a     personal

assistant.     According to the Division, L.R. was only entitled to

receive    financial    assistance     to       pay    the   cost     of   a    personal

assistant.

       Although L.R. had the right to appeal an adverse agency

action    under   N.J.A.C.     10:140-3.10,           and    to    further       file    an

administrative appeal of an adverse decision with the PASP State

Program Administrator, N.J.A.C. 10:140-3.11(d), she claims that

her initial efforts to challenge the denial of her request were

met    with   great   resistance,     misinformation,              and    obfuscation.3

L.R.     eventually    filed     an   administrative              appeal    which       was

transferred     to    the   Office    of       Administrative        Law       (OAL)    for

adjudication.


3
  In a certification included in her appellate appendix, L.R.
averred that the fiscal intermediary for the Hunterdon County
PASP told her there was no way for her to challenge this
determination by way of an appeal, grievance procedure, or other
form of reconsideration.   Although these allegations have not
been confirmed, we expect the Division to investigate this
matter as a possible violation of L.R.'s Personal Assistance
Consumer's Bill of Rights under N.J.S.A. 30-4G-16.1(h), (i) and
(j).

The fiscal intermediary is the agency that disburses "the cash
benefit to consumers under the Personal Assistance Services
Program."   N.J.A.C. 10:140-1.4.  The fiscal intermediary also
serves as the business agent for the consumer and prepares "the
payroll checks and other disbursements at the direction of the
consumer, as well as keep records of all transactions."   Ibid.
(Emphasis added).




                                           3                                     A-5701-11T2
       Because the salient facts were not disputed, both sides

moved for summary decision before the Administrative Law Judge

(ALJ) assigned to the case.              After considering the arguments

presented, the ALJ issued an initial decision holding that under

N.J.S.A. 30:4G-14, PASP funding can only be used to cover the

cost     of    employing     "personal       care   assistants"    to   perform

"personal assistance services," as defined in N.J.A.C. 10:140-

1.4.     The ALJ thus accepted the Division's position to limit

PASP   benefits     to     providing    "personal     care   services   through

personal care assistants."

       As a corollary to this principal ruling, the ALJ rejected

L.R.'s     argument      that   the    programmatic    funding    restrictions

endorsed by the Division here were not applicable to individuals

receiving PASP funding through the "cash management model."                    As

authorized by N.J.A.C. 10:140-3.11(e), the Commissioner's final

decision      adopted    without   modification     the   ALJ's   findings    and

conclusions of law.         Although the Commissioner concluded that as

a matter of law, the Legislature intended the Act "to provide

individual recipients with choice and control over their chosen

services," he nevertheless concluded L.R. was not entitled to

use unspent budgeted funds under the cash management plan to

offset the cost of internet access and/or to pay for the use of

a cellular phone or landline telephone service in her residence.




                                         4                              A-5701-11T2
     L.R. now appeals to this court pursuant to N.J.A.C. 10:140-

3.11(f), arguing that the Commissioner's decision to deny her

request is arbitrary and capricious because it undermines the

expressed purpose of the Act, "to promote the greatest possible

degree of self-control and self-direction on the part of each

recipient of services."     N.J.S.A. 30:4G-15.     According to L.R.,

the Legislature created the PASP "cash management model" to give

eligible participants the flexibility to utilize unspent monthly

budgeted funds in a manner that achieves a greater level of

independence and autonomy over their personal activities.

     We agree with L.R.'s arguments and reverse.               Our legal

analysis will be informed by the following uncontested facts.

                                   I

     L.R.   is   a   fifty-four-year-old   woman   who   suffers     from

multiple    disabilities4   that   severely   limit      her    everyday




4
  L.R. has osteoarthritis and bone spurs in her neck which causes
pain and weakness throughout her arms and inhibits her ability
to   perform  tasks   requiring  repetitive   motions;   she   has
difficulty reaching and retrieving items and is unable to lift
or move anything that weighs more than ten pounds; she suffers
from post-concussion syndrome with visual tracking difficulties,
migraine headaches, vertigo, light sensitivity, memory problems,
dry eye, and cataracts in both eyes; she has respiratory
problems including pneumonia, asthma, respiratory allergies, and
vocal cord dysfunction.    She uses an inhaler and nebulizer to
treat these respiratory problems and, as a consequence, is
highly susceptible to respiratory infections. As a prophylactic
measure, she uses a surgical mask when she leaves her residence
                                                       (continued)


                                   5                             A-5701-11T2
activities.   She uses a "variety of assistive devices" to get

around her home and travel outside her immediate environment.

These include "a power wheelchair, a rolling walker,       a quad

cane, a reacher,5 and a stair lift."     She spends nearly all of

her time at home.   It is thus undisputed that L.R. is eligible

to receive PASP for a "permanent physical disability" as that

term is defined in N.J.S.A. 30:4G-14.6



(continued)
or when people come to visit.    She also has digestive problems
that restrict her nutritional intake.
5
   We take judicial notice under N.J.R.E. 201(b)(1) that a
"reacher" (a/k/a "grabber") is a hand-operated mechanical
device, with a manual grip attached to a metal pole that extends
approximately three to four feet in length from the handle, and
ends with an attached "V" shaped grip or retrieving claw.     By
closing or opening the manual grip, the consumer is able to
adjust and manipulate the tension cords that run the length of
the pole, and ultimately attach to the grip claw. The consumer
opens or closes the "V" shaped grip by closing or opening the
"reacher's" handgrip.   This also allows the consumer to adjust
the pressure of the retrieving claw to retrieve items as small
as a paperclip lying on the floor, as delicate and fragile as a
sheet of paper or a piece of jewelry, or as heavy as a book,
magazine, box, or bottle weighing as much as two to three
pounds. This device is an example of the type of unconventional
item that serves the needs of PASP consumers outside the
traditional "personal servant" paradigm.
6
  N.J.S.A. 30:4G-14 defines "Permanent physical disability" as "a
severe impairment of a permanent nature which so restricts a
person's ability to perform essential activities of daily living
that the person needs assistance to maintain the person's
independence and health." Although the Legislature directed the
Commissioner of Human Services to "adopt rules to effectuate the
purposes of this [A]ct," N.J.S.A. 30:4G-21, N.J.A.C. 10:140-4.1
merely adopts the statutory definition without elaboration. In
                                                      (continued)


                                6                         A-5701-11T2
                    PERSONAL ASSISTANCE SERVICE PROGRAM

    Established under the Act in 1987, the Legislature directed

the Division to administer the PASP through designated county-

based    agencies     operating         in    each      of    the   State's     twenty-one

counties.        N.J.S.A. 30:14G-15.                The designated county agency is

charged with the responsibility of assisting

            adults with permanent physical disabilities
            in the performance of routine, nonmedical
            tasks   that   are    directly    related to
            maintaining their health and independence,
            in order to enable these persons to be
            employed or receive training or education
            related   to   employment,     parenting, or
            volunteering, or to support community-based
            independent living. The program shall seek
            to promote the greatest possible degree of
            self-control and self-direction on the part
            of each recipient of services.

            [Ibid.]

    Before         2009,       the     PASP     operated       using      two    different

assistance models.             The traditional service model provided a set

number     of    hours     of       "personal        assistance      services"    to    the

consumer.           The        Legislature          defined      "personal      assistance

services" under the Act to encompass "health and chore related

tasks    performed        by    a    personal       assistant.      Personal    assistance

services        include,       but    are     not      limited      to,   assistance      in



(continued)
fact, the Commissioner adopted this approach with respect to
many other regulations promulgated by under the Act.



                                                7                                 A-5701-11T2
essential daily activities such as bathing, dressing and meal

preparation; assistance with mobility, laundry and shopping; and

driving or other forms of transportation."                     (Emphasis added.)

N.J.S.A. 30:4G-14.       The eligible consumer receives a maximum of

forty hours per week of personal assistance services.                       N.J.A.C.

10:140-2.1(a)(8).

                           CASH MANAGEMENT MODEL

      Commencing on November 20, 2009, the Legislature amended

the PASP to "enable the program to be operated on a 'cash and

counseling' model, wherein the consumer of personal assistance

services     exercises    control    over    the      individual       workers     the

consumer employs, and manages and directs his own service plan."

ASSEMBLY HUMAN SERVICES COMMITTEE STATEMENT      TO   ASSEMBLY, NO. 2889, 2008

Legis.   Bill    Hist.   N.J.     A.B.   2889.        The    Act     defines    "Cash

Management Plan"     as "the document used by the program which

indicates the monthly cash allowance and details the services

and   supports   required    by    the   consumer      in    order     to   meet   the

consumer's personal care needs."             N.J.S.A. 30:4G-14; N.J.A.C.

10:140-1.4.

      "The   individual     personal     assistance         services    plan    shall

serve as the template for the creation of the consumer's cash

management plan."        N.J.A.C. 10:140-3.3(c).             The cash management

plan serves a budgetary purpose by showing how the consumer's




                                         8                                   A-5701-11T2
monthly   cash    allowances    are   utilized      to   meet    the     consumer's

needs.    Ibid.     The central overriding theme of the cash model

plan is to give PASP consumers greater flexibility to determine

what   services   they   need   to    deal   with    the      travails    of   daily

personal activities, and control over how PASP budgeted funds

are spent to underwrite the cost of those personalized services.

       The Division made clear these twin policy goals at the

time it proposed a series of regulatory revisions required to

implement the cash management plan.              The statement explaining

the need to amend N.J.A.C. 10:140-3.3(a), (the regulation that

describes the traditional "individual personal services plan"

and the "cash management plan") illustrates this point.

           N.J.A.C.   10:140-3.3(a)    is   proposed   for
           amendment to reflect that an individual
           personal assistance services plan is to be
           designed by the consumer in consultation
           with the county designated agency. The
           Division is proposing this change in support
           of the concept of consumer self-direction
           that is the foundation of the PASP.         The
           term    "individualized     needs"    has    be
           substituted for "specific needs" to better
           clarify that the plan is driven by the needs
           of the individual client.       Rule text has
           also been deleted that explains the role of
           the county designated agency in preparation
           of   the   individual    personal    assistance
           services plan.    This change is being made
           because    the   text     is    redundant    in
           consideration of language that has been
           proposed for addition to this subsection.

           [43   N.J.R.    2551(a)(October               3,      2011)
           (Emphasis added.)]



                                       9                                   A-5701-11T2
      The informational material provided to PASP participants by

the Division reflects and highlights the consumer-centric policy

underpinning        the    cash   management      model     of    funding.      As    the

Division explains, the cash management approach is intended to

provide consumers with "more control over their life."                             Toward

that end, the Division emphasizes the four key features of the

cash management model:

             Consumers make the decisions!
             Consumers have choices they never had before!
             Consumers decide what they want!
             Consumers receive a cash grant every month to buy your
              own services!

      Consistent         with    this    policy   directive,       the    Division    has

authorized participants receiving PASP benefits through the cash

management         model    to     use    unspent    budgeted           funds   to    buy

wheelchairs, wheelchair lifts, emergency alert service devices,

and   check         printing      machines.          L.R.        thus     argues     that

communication services such as internet access, cellular phone

service,      and    a    landline      connection   to   the     fax     machine    fall

within       the    category       of    items    intended        to     increase     the

participant's level of independence and personal autonomy.

      The following excerpts from L.R.'s certification describe

the real life, practical implications of this policy directive.

              The cell phone allows me to send emails,
              text messages, and make phone calls. Since



                                            10                                  A-5701-11T2
it is portable, I can stay connected anytime
and anywhere.

     . . . .

I use the computer and the internet for the
following: for banking and to pay bills, to
keep   track   of   my   credit  record;   to
participate in an online housing course and
to   keep   in   contact   with  my   housing
counselor; to research the best prices and
to get coupons, to get gluten free recipes,
to shop for groceries, office supplies,
supplements, and household goods; to do
research and request cds, dvds, books, and
interlibrary loans from the library; for
medical, legal, ADA, and other research; for
corresponding with my family and friends; to
participate in webinars on fair housing
issues and for PASP Cash Management Program
training; to search for the best doctors; to
keep in touch with my church and community
and to keep in touch with my attorney.

     . . . .

I often use faxes when it is essential to
verify that a party has received a document.
This prevents me from having to send my
personal assistant to the post office to
send documents via certified mail.

     . . . .

The internet allows me to do much of my
banking,      shopping,    research,     and
correspondence from home.    It reduces the
amount of work my personal assistants have
to do outside the home and makes their
errands more efficient.   While I prefer to
do as much as I can for myself, the PASP
program, the personal assistants, and the
modern   communications  and  correspondence
devices (internet, phone, fax, and cell
phone) are godsends to me and assist me with
being independent in spite of my multiple



                     11                         A-5701-11T2
            medical disabilities.     In this age of
            growing dependence on multiple forms of
            communications technology, I would be cut
            off from my family, friends, community, and
            government programs without these essential
            communications and correspondence devices
            and services.

      As these statements illustrate, access to the internet via

a personal computer or a mobile handheld device is a ubiquitous

characteristic    of     modern    life    and   an   indispensable      means    of

efficiently conducting a variety of personal activities.                        Most

importantly      from     a    disabled        person's    perspective,         this

technology provides an unparalleled level of personal autonomy

and   privacy.       Despite   their      best   intentions,     by   their     very

involvement third-party personal assistants inevitably intrude

into a disabled person's most profoundly and uniquely personal

matters.      Modern technological advancements, especially in the

field of communication, has provided and continues to enhance

the means to permit a disabled person to carry out a variety of

highly    personal      activities   independently,        without      having   to

share intimate details of his or her life with strangers hired

by a government agency.

                                          II

      Our scope of review of an administrative agency's final

determination    is     limited.     In    re    Carter,   191   N.J.    474,    482

(2007).    We "may reverse only if we conclude that the decision




                                          12                              A-5701-11T2
of    the   administrative           agency       is    arbitrary,          capricious      or

unreasonable,        or   is    not    supported            by    substantial     credible

evidence in the record as a whole."                              J.D. v. N.J. Div. of

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.

2000) (citations omitted).

      "The burden of demonstrating that the agency's action was

arbitrary,        capricious    or    unreasonable           rests    upon     the    person

challenging the administrative action."                          In re Arenas, 385 N.J.

Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219

(2006);     see    also   Barone      v.    Dep't      of    Human    Servs.,    210     N.J.

Super. 276, 285 (App. Div. 1986), aff’d, 107 N.J. 355 (1987).

Our role as an appellate court is to ensure the decision is

based on substantial evidence and supported by the record.                                   In

re Carter, supra, 191 N.J. at 483 (citation omitted).                             While an

agency's     expertise     in   the        area   is    given       great    respect,       the

appellate court is not bound by an agency's decision.                                   Ibid.

(citation omitted).

      Here, the Division denied L.R.'s funding request based on

its   interpretation       of   what       the    Legislature         intended       when   it

established the cash management model as an alternative means of

providing assistance to PSAP consumers.                           Because questions of

statutory     interpretation          are     purely        legal,    our     standard      of

review is de novo.         Maeker v. Ross, 430 N.J. Super. 79, 86 (App.




                                             13                                      A-5701-11T2
Div. 2013).   The Supreme Court has recently reaffirmed the legal

principles that must guide a court in interpreting statutory

provisions:

         The chief aim when interpreting a law is to
         determine    and   give    effect   to   the
         Legislature's intent. To do so, courts look
         first to the plain language of the statute.
         If the language is clear, the court's job is
         complete.    If the wording of a law is
         ambiguous, a court may examine extrinsic
         evidence for guidance, including legislative
         history and committee reports.

         Statutes  must  also  be  read in   their
         entirety; each part or section should be
         construed in connection with every other
         part or section to provide a harmonious
         whole.

         [In re Expungement D.J.B., ___ N.J. ___,
         ____ (2014) (slip op. at 8) (internal
         citations and quotation marks omitted).]

    The Legislature established the PASP

         to assist adults with permanent physical
         disabilities in the performance of routine,
         nonmedical tasks that are directly related
         to    maintaining     their    health     and
         independence, in order to enable these
         persons to be employed or receive training
         or   education    related   to    employment,
         parenting, or volunteering, or to support
         community-based   independent   living.   The
         program shall seek to promote the greatest
         possible degree of self-control and self-
         direction on the part of each recipient of
         services.

         [N.J.S.A. 30:4G-15 (Emphasis added).]




                               14                        A-5701-11T2
    This     overriding       public    policy       is    also   reflected      in   the

regulations promulgated by the Commissioner.                       N.J.A.C. 10:140-

1.1; N.J.A.C. 10:140-1.3.              Indeed, both sides of this dispute

agree that when it amended the Act in 2009 to create the cash

management     plan,    the     Legislature          intended     to   provide        PASP

consumers with greater flexibility in determining what personal

services best suited their individual needs and enhance their

control over how to spend the funds allocated to their monthly

cash management budget.

    The Division concedes that the cash management plan allows

consumers to use "unspent funds for meeting daily needs for

personal care, consistent with the program's regulations."                             It

nevertheless       maintains    that     it   "is      not    obligated     to    allow

program funds to be used for other expenses."                     (Emphasis added.)

Implicit in this key policy statement, is the assumption that

the type of expenses L.R. requests funding for are not for her

"personal care."        Division regulations do not define the term

"personal care."        However, the Legislature intended that PASP

funds be used "to promote the greatest possible degree of self-

control and self-direction on the part of each recipient of

services."     N.J.S.A. 30:4G-15.

    The     only    difference     between       a    wheelchair,      a   wheelchair

lift,   a   check    printing    machine,     and         emergency    alert   service




                                         15                                    A-5701-11T2
devices and internet and fax access and cellular phone service

is the level of technological sophistication.                      We discern no

rational    basis    to     support     the      Commissioner's      decision     to

discriminate        against          technological           advancements         in

communications      that    enhance    and       promote    the   independence    of

disabled consumers by encouraging self-reliance and protecting

the dignity inherent in personal privacy.

    Indeed, using a cellular phone is a far better means of

summoning   first     responders       to    a    medical    or   other    personal

emergency than a blunt generic distress signal emitted from an

emergency alert device.             A computer connected to the internet

puts a virtually limitless world of information and resources at

the fingertips of a disabled person.                  Internet access enables

the PASP participant to manage his or her personal financial

affairs through online banking, without the need to print and

mail checks.      By allowing PASP participants the opportunity to

win the daily battles of personal independence through the use

of these devices, the Division would have fulfilled its core

mission "to promote the greatest possible degree of self-control

and self-direction on the part of each recipient of services."

N.J.S.A.    30:4G-15.           Unfortunately,       the     Division     opted   to

construe    the   Act      in   a   manner    that    runs    counter     to   these

principles.




                                        16                                 A-5701-11T2
       Equally disturbing to us is the Division's construction of

the cash management model to permit consumers to use unspent

PASP funds to purchase items such as wheelchairs, wheelchair

lifts,       emergency      alert     service      devices,    and     check     printing

machines, while disallowing expenditures to provide access to

modern communication and information management technology.                             No

reasonable person would dispute the notion that doing for one

self is always far better than having to rely on the good will

of others.

       The PASP is grounded in the salutary notion of promoting

self-reliance for all eligible consumers.                      For those consumers

who have been forced to rely on personal assistants to carry out

basic      banking     functions,       accessing          their   personal      banking

accounts to thereafter conduct financial transactions online can

be a profound, liberating experience.                       We have no doubt that

this    is    the    type    of   experience       the     Legislature    intended      to

promote when it adopted the Act.

       By upholding the Division's decision to deny L.R.'s request

to   use     the    unspent    part    of    her    PASP    budgeted     funds    in   the

fashion described here, the Commissioner endorsed an approach

utterly irreconcilable with the public policy underpinning the

Act.          N.J.S.A.        30:4G-15.            We      therefore     reverse       the

Commissioner's           decision       as        arbitrary,       capricious,         and




                                             17                                  A-5701-11T2
inconsistent   with   the   Legislature's   policy   of   promoting   the

greatest possible degree of self-control and self-direction on

the part of consumers of PASP services.

    Reversed.




                                  18                            A-5701-11T2
