L.R. v. Division of Disability Services, 434 N.J. Super. 430 (App. Div. 2014). The core mission of the Division of Disability Services is “serving people who have become disabled as adults, whether through illness or injury.” The Division administers the Personal Assistance Service Program (“PASP”) that was established by the Personal Assistance Services Act, N.J.S.A. 30:4G-13 to -22. Though the PASP originally provided a set number of hours of “personal assistance services” by a personal assistant, the Legislature thereafter shifted to a “cash management plan,” which allowed the client more autonomy to decide how funds available to him or her would be spent, as “driven by the needs of the individual client.” N.J.S.A. 30:4G-15 expressly states that PASP funds are intended to be used “to promote the greatest possible degree of self-reliance and self-direction on the part of each recipient of services.”
L.R. is a woman who suffers from multiple disabilities. She uses an inhaler and a nebulizer for multiple respiratory problems, and a power wheelchair, a rolling walker, a quad cane, a “reacher” (a device with a claw that helps her pick things up), and a stair lift, due to her severe physical disabilities. She spends most of her time at home. L.R. received a monthly cash allowance under the cash management plan. She asked to use the unspent portion of one month’s allowance to pay for her landline phone, cellphone, and internet service. L.R. used those devices extensively for, among other things, banking, shopping, getting materials from the local library, staying in contact with her church, community, family, friends, and attorney, and researching doctors, gluten-free recipes, and cash management training, The Division denied her request, asserting that PASP funds could be used only for the client’s “personal care” or for the cost of a personal assistant. L.R. appealed, and the Appellate Division reversed in an opinion by Judge Fuentes.
Because this was a purely legal issue of statutory interpretation, the panel applied the de novo standard of review. The Division’s regulations did not define “personal care.” But Judge Fuentes found that the Division’s interpretation was arbitrary, capricious, and unreasonable. “The only difference between a wheelchair, a wheelchair lift, a check printing machine, and emergency alert service devices [all permitted uses of PASP monies] 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.”
Judge Fuentes went on to observe the effect that cellphones and internet access have in “allowing PASP participants the opportunity to win the daily battles of personal independence.” L.R. could use a cellphone to summon help rather than relying on “a blunt generic distress signal emitted from an emergency alert device.” She could do her own banking via the internet, without having to compromise her privacy and relinquish autonomy by having a personal assistant handle such financial matters. “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,” and the panel’s conclusion advanced the Legislature’s stated goal of promoting “the greatest possible degree of self-control and self-direction on the part of each recipient of services.”
The sensitivity of this opinion to the practical realities of life for the disabled is reminiscent of the best of New Jersey’s jurisprudence about the plight of those less fortunate. It also reminds us that technology, with all its frivolous or even potentially evil purposes, can also be a tremendous positive force.