                           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                        NOT FOR PUBLICATION WITHOUT THE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.

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