NOT FOR PUBLICATION WITHOUT THE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-5159-17T1
C.N.,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF HUMAN SERVICES,
Respondent-Respondent.
_____________________________
Submitted December 17, 2019 – Decided February 7, 2020
Before Judges Accurso and Gilson.
On appeal from the New Jersey Department of Human
Services, Docket No. 13-108.
Testa Heck Testa & White, PA, attorneys for appellant
(Michael L. Testa, of counsel and on the briefs;
Anthony Mario Imbesi, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jacqueline R. D'Alessandro,
Deputy Attorney General, on the brief).
PER CURIAM
This is the second appeal by petitioner C.N. from final agency decisions
by the Department of Human Services (Department), placing her on the Central
Registry of Offenders against Individuals with Developmental Disabilities
(Central Registry). 1 On the first appeal, we reversed and remanded because the
Department provided insufficient explanations for rejecting and modifying the
initial decision of the Administrative Law Judge (ALJ). On remand, the
Department conducted a detailed review of the record and provided a detailed
explanation of why it rejected the ALJ's findings and the facts and law
supporting its decision. Given our limited scope of review, we discern no basis
for rejecting the agency's second decision and affirm.
I.
We described the facts in our first opinion and, thus, will only summarize
some of the relevant facts. See C.N. v. N.J. Dep't of Human Servs., No. A-1841-
15 (App. Div. Jan. 9, 2018).
Petitioner is a registered nurse who worked for a group home operated by
Elwyn New Jersey. On October 20, 2012, petitioner was the on-duty nurse at a
home where S.K. was a resident. S.K. had developmental disabilities and
1
To protect the identity of the individuals, we refer to them by their initials. R.
1:38-3(f)(8).
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2
medical conditions for which she was prescribed a number of medications.
Those medications included Dilantin, which S.K. was to receive three times a
day, to treat a seizure disorder. Petitioner knew S.K. needed to receive her
Dilantin as prescribed because petitioner had been informed that S.K. had been
hospitalized five days earlier for "ambulatory dysfunction" caused by "sub-
therapeutic Dilantin levels."
At approximately 4 p.m., petitioner attempted to give S.K. her 4 p.m. dose
of Dilantin, but S.K. spit the medicine out. Petitioner did not immediately give
S.K. another dose of Dilantin. Instead, at approximately 6 p.m., petitioner put
a dose of Dilantin in pudding, gave the pudding to S.K., but did not confirm that
S.K. ate the pudding with the medicine.
Petitioner failed to note that S.K. had not taken her 4 p.m. dose on her
Medication Administration Record (MAR). Petitioner also pre-marked the
MAR to state that S.K. had received her Dilantin doses at their prescribed times
and that S.K. had been given other medications at their prescribed times.
After giving S.K. the pudding at approximately 6 p.m., petitioner attended
to other residents and went to the restroom. Shortly thereafter, S.K. became
unresponsive, and when petitioner could not be immediately located, a worker
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3
at the home called 911. Emergency medical technicians (EMTs) responded to
the home to attend to S.K.
The EMTs evaluated S.K., found her vital signs normal, but noted she was
lethargic. Accordingly, the EMTs took S.K. to the hospital for further
evaluation. At least one of the EMTs also reviewed S.K.'s MAR. At the
hospital, S.K. was diagnosed with Dilantin deficiency and she was given the
medication intravenously.
At approximately the time that the EMTs arrived, petitioner was located,
she came to S.K.'s room, and was present for some of the time that the EMTs
were attending to S.K. Petitioner did not inform the EMTs that S.K.'s MAR was
inaccurate in that S.K. had not taken her 4 p.m. dose of Dilantin and that other
medications, which were scheduled to be dispensed at 8 p.m. and "bedtime,"
were marked as having been given even though they had not been administered
to S.K.
In August 2013, the Department notified petitioner that her name would
be placed on the Central Registry. Caregivers on the Central Registry may not
be employed by facilities or programs providing services to individuals with
developmental disabilities operated by or receiving funding from the
Department. N.J.S.A. 30:6D-77(c)(3); N.J.A.C. 10:44D-1.1(b).
A-5159-17T1
4
Petitioner challenged her placement on the Central Registry and the matter
was transmitted to the Office of Administrative Law. After conducting a
hearing, an ALJ issued an initial decision reversing the placement and
dismissing the Department's action. On further administrative appeal, the
Department rejected the ALJ's initial decision and, on November 20, 2015, the
Department issued its first final agency determination that petitioner had been
grossly negligent and placing her on the Central Registry.
Petitioner appealed to us and we reversed and remanded the matter to the
Department. C.N., slip op. at 10, 13. In our initial decision, we determined that
the Department failed to explain its findings and, accordingly, those findings
and conclusions were arbitrary and capricious. We remanded the matter to the
Department with the direction that "the Department must determine whether
petitioner (1) acted with gross negligence or recklessness as defined in N.J.A.C.
10:44D-4.1(c); and, if so, (2) whether the evidence in the record supports a
finding that her actions actually harmed S.K. or placed S.K. in harm's way." Id.
at 13.
On remand, the Department conducted a review of the entire
administrative record. The Department then issued a thirteen-page, single-
spaced written "REVISED" final agency decision dated May 29, 2018. That
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5
decision detailed (1) the perceived errors in the ALJ's initial decision; (2) the
facts established by the record, including many material facts testified to by
petitioner; and (3) the governing law and regulations.
The Department first found that petitioner (1) never administered S.K. her
prescribed 4 p.m. dose of Dilantin; (2) incorrectly recorded on S.K.'s MAR that
she had received her 4 p.m. dose; (3) never confirmed that S.K. ingested her 8
p.m. dose of Dilantin, which was put in pudding at approximately 6 p.m.; (4)
inaccurately recorded on S.K.'s MAR that S.K. had received all her 8 p.m. and
"bedtime" medications, including Dilantin; and (5) never told the EMTs or
followed up with the hospital to let them know that S.K.'s MAR was inaccurate
and S.K. had not received all her prescribed Dilantin.
The Department also found that petitioner's actions and omissions put
S.K. in harm's way. In making that finding, the Department relied on the
hospital records that showed S.K. was tested for and diagnosed with Dilantin
deficiency. The Department also relied on petitioner's testimony, as a registered
nurse, that S.K. needed to receive her prescribed doses of Dilantin to protect
against seizures. The Department also found that the record established that
petitioner knew S.K. had just returned from a hospitalization for low Dilantin
levels.
A-5159-17T1
6
In summary, the Department found that petitioner had acted with gross
negligence and recklessness and her actions and omissions placed S.K. in harm's
way. Petitioner now challenges the Department's revised final agency decision
issued on May 29, 2018.
II.
In this second appeal, petitioner argues that (1) the final agency decision
is not supported by credible evidence in the record; and (2) the Depa rtment did
not meet its burden to prove that petitioner should be placed on the Central
Registry. We are not persuaded by these arguments and affirm because the
Department complied with our remand instructions and the facts and law support
the Department's determination.
Our review of an agency's final decision is limited. Circus Liquors, Inc.
v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Carter, 191
N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs,
186 N.J. 5, 15-16 (2006)). "An administrative agency's final quasi-judicial
decision will be sustained unless there is a clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks [factual] support in the record." In
re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv.,
39 N.J. 556, 562 (1963)). An agency's interpretation of a statute or case law,
A-5159-17T1
7
however, is subject to de novo review. Russo v. Bd. of Trs. Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011) (citing Toll Bros., Inc. v. Twp. of W. Windsor,
173 N.J. 502, 549 (2002)). Thus, in reviewing an agency's decision, we also
examine whether the agency erred in applying "the law to the facts." Twp.
Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J. Super. 273, 283-
84 (App. Div. 2013) (citing In re Stallworth, 208 N.J. 182, 194 (2011)).
An agency can reject and modify an ALJ's initial decision, but its authority
to do so is limited. Specifically, regulations require that when an agency rejects
an ALJ's decision, it must clearly state the basis for that rejection, and it must
cite specific evidence supporting the agency's final decision and interpretation
of the law. N.J.A.C. 1:1-18.6(b).
A caregiver can be placed on the Central Registry if he or she acts with
"gross negligence, recklessness or evidenced a pattern of behavior that caused
harm to an individual with a developmental disability or placed that individual
in harm's way." N.J.A.C. 10:44D-4.1(c). Gross negligence is a "conscious,
voluntary act or omission in reckless disregard of a duty and of the consequences
to another party." N.J.A.C. 10:44D-4.1(c)(1). 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)(2).
A-5159-17T1
8
Following our remand, the Department reviewed the testimony and
documents in the administrative record and found that petitioner was grossly
negligent and reckless in (1) improperly dispensing medications to S.K.; (2)
inaccurately recording information on S.K.'s MAR; and (3) failing to inform the
EMTs or hospital that S.K.'s MAR was inaccurate. Those findings are supported
by substantial credible evidence in the record.
In addition, the Department found that S.K. was placed in harm's way as
a result of petitioner's gross negligence and recklessness. In making that
determination, the Department relied on the uncontroverted facts that S.K. had
a seizure disorder, petitioner knew that it was important for S.K. to receive her
Dilantin medication as prescribed, and that low levels of Dilantin could result
in hospitalization. Again, those facts are supported by substantial credible
evidence in the record.
In summary, the Department's revised final agency decision issued on
May 29, 2018, complied with our remand instructions, and identified facts
supporting that petitioner acted with gross negligence and recklessness that
placed S.K. in harm's way. The Department also supported its determination to
A-5159-17T1
9
place petitioner on the Central Registry by citing to the governing law and
regulations. See N.J.S.A. 30:6D-73, -77; N.J.A.C. 10:44D-1.1 to -7.2.2
Petitioner also argues that the Department unfairly shifted its focus. She
contends that before the ALJ, the accusation against her was that she had over -
medicated S.K. She complains that the Department changed that focus in its
revised decision and found that she had under-medicated S.K. Our review of
the first and revised decisions by the Department satisfies us that the Department
appropriately considered the potential harm both from over-medication and
under-medication. Accordingly, we find no basis for reversing the Department
on this alleged shift of focus.
Finally, we acknowledge petitioner's legitimate argument that placing her
on the Central Registry could be perceived as a harsh result. Petitioner has been
a registered nurse since 2004. The Department did not cite to or rely on any
alleged negligence apart from the incident involving S.K. At the time that
incident occurred, petitioner was the only nurse on duty responsible for sixteen
2
In the Department's brief submitted on the second appeal, counsel suggested
that the showing of harm or potential harm is "legally immaterial" because the
focus should be on the caregiver. We read the Department's revised final
decision to have found a potential harm to S.K. Accordingly, we do not rely on,
and do not accept, the Department's contention that the Department need not
prove harm or a potential for harm.
A-5159-17T1
10
residents of a group home. S.K was in a weakened condition having just
returned from a hospitalization. Petitioner attended to S.K. but was then called
away to deal with other residents. While there is sufficient evidence to support
the Department's determination that petitioner acted with gross negligence and
recklessness, fortunately, S.K. was not substantially harmed. Moreover, the acts
and omissions by petitioner were all committed during a brief, and arguably
hectic, period of time. Consequently, reasonable people could question the
utility and fairness of prohibiting petitioner from continuing to serve as a nurse
to all persons with developmental disabilities. All that said, such a
determination is the responsibility of the Department, and it is not within our
purview to second guess that judgment.
Affirmed.
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