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

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

NOT FOR PUBLICATION WITHOUT THE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.

February 7, 2020
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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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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 "subtherapeutic 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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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).
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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, singlespaced written "REVISED" final agency decision dated May 29, 2018. That 
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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. 
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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 Department 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, 
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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). 
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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 
10 A-5159-17T1

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 overmedicated 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.
11 A-5159-17T1

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.