                                NOT FOR PUBLICATION WITHOUT THE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-5648-16T1

MORRIS VIEW HEALTHCARE
CENTER,

          Appellant,

v.

DEPARTMENT OF HUMAN
SERVICES, DIVISION OF
AGING SERVICES,

     Respondent.
_____________________________

                    Argued February 4, 2019 – Decided March 5, 2019

                    Before Judges Messano, Fasciale and Gooden Brown.

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

                    Dennis F. Driscoll argued the cause for appellant
                    (Inglesino, Webster, Wyciskala & Taylor, LLC,
                    attorneys; Lisa D. Taylor, Justin A. Marchetta, and
                    Joseph M. Franck, of counsel and on the briefs).

                    Arundhati Mohankumar, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Gregory J.
            Sullivan and Arundhati Mohankumar, Deputy
            Attorneys General, on the brief).

PER CURIAM

      Morris View Healthcare Center (Morris View) appeals from a June 28,

2017 decision by the Department of Human Services (DHS), Division of Aging

Services, denying its requests for a hearing and a stay. Morris View sought the

hearing to contest a June 7, 2017 rate letter revising and recalculating Medicaid

rates, and it requested that DHS stay the ordered recoupment and downward

adjustment of its reimbursement pending the hearing. DHS initially refused to

conduct the hearing stating:

                  Morris View's appeal of these rates is proceeding
            in the Office of Administrative Law (OAL) under
            docket number DAS 12245-2016 N.[1] The rates
            referenced in the notices and your letter were revised
            specifically in the context of the pending appeal in
            response to records produced by Morris View during
            the discovery process. Since the matter is already
            before the OAL, . . . Morris View's request for a formal
            hearing is denied.




1
  Morris View Nursing Home v. Department of Human Services, Division of
Aging, DAS 12245-16 (the OAL initial action). In August 2018, an
administrative law judge (ALJ) inactivated the OAL initial action pending this
appeal.


                                                                         A-5648-16T1
                                       2
After denying the request for a stay, DHS advised Morris View that recoupment

would begin on August 17, 2017, and continue monthly until it repaid the

amount owed. But in its merits brief, DHS requests that we "transmit the June

2017 decision for a hearing."

      On appeal, Morris View maintains its position that a hearing is required.

It contends, however, that the issues pertaining to the June 2017 revised and

recalculated Medicaid rates are not part of the OAL initial action. It argues that

the June 2017 Medicaid rates are unrelated to a 2006 acuity audit, which Morris

View contends is the subject of the OAL initial action. Nevertheless, Morris

View focuses on the 2006 acuity audit and asserts that it is invalid for procedural

and substantive reasons.

      We conclude that remanding to the OAL will resolve this appeal and, as

DHS contends, avoid any further delay in the "full and final resolution of Morris

View's reimbursement rate." As the ALJ stated when she inactivated the OAL

initial action,

             both the OAL [initial action] and the Appellate
             Division case concern modifications made to the same
             Medicaid reimbursement rates based on the same acuity
             audit. The [June 7, 2017] letter[,] which led to the
             Appellate Division case[,] was an update to those rates
             based on additional documentation obtained in the
             course of discovery. Finally, both cases now involve
             the validity of the acuity audit as a core issue.

                                                                           A-5648-16T1
                                        3
                   Morris View correctly points out that the
            Appellate Division may remand in lieu of invalidating
            the acuity audit. Morris View is also correct that the
            [OAL initial action] includes additional challenges to
            the validity of the acuity audit. However, Morris View
            cannot know for certain what the Appellate Division
            will decide[,] and cannot reasonably suggest that the
            validity of the audit has little likelihood of being
            addressed[,] after substantially briefing the issue before
            the Appellate Division. Indeed, Morris View makes the
            exact same argument in its second motion for summary
            decision before the OAL. If the Appellate Division
            does precisely what Morris View explicitly asks –
            invalidating the 2006 acuity audit – there would be no
            need to rehash the issue here.

            [(footnotes omitted).]

Adjudication of the validity of the acuity audit, and related issues, is best

performed by the ALJ in the first instance.

      We therefore dismiss this appeal without prejudice. We remand the matter

to the OAL, direct the ALJ to consolidate this case with the OAL initial action,

and instruct the ALJ to adjudicate all pending issues. After the parties have

exhausted their administrative remedies, and if warranted, they may appeal from

a more fully developed record.




                                                                         A-5648-16T1
                                        4
