MITT KISHAN, LLC v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1695-18T3

MITT KISHAN, LLC d/b/a
SHAYONA PHARMACY
and RITA PATEL,

          Appellants,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,

     Respondent.
___________________________

                   Submitted October 26, 2020 – Decided November 16, 2020

                   Before Judges Mayer and Susswein.

                   On appeal from the New Jersey Department of Human
                   Services, Division of Medical Assistance and Health
                   Services.

                   Kasuri Byck, LLC, attorneys for appellants (Harrison
                   Ross Byck, on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
               General, of counsel; Jeanette M. Barnard, Deputy
               Attorney General, on the brief).

PER CURIAM

      Petitioners Mitt Kishan, LLC d/b/a Shayona Pharmacy and Rita Patel

(Patel) appeal from an April 19, 2018 final decision of respondent Department

of Human Services, Division of Medical Assistance and Health Services

(DMAHS). The DMAHS adopted a February 28, 2018 initial decision issued

by an administrative law judge (ALJ), enforcing a settlement agreement between

the parties. We affirm.

      In 2018, the Office of the State Comptroller, Medicaid Fraud Division

(MFD), investigated petitioners' Medicaid billing practices. The investigation,

reviewing the time period from May 2010 to May 2013, revealed petitioners

received Medicaid reimbursement for prescriptions lacking the necessary

supporting documentation required under  N.J.S.A. 30:4D-12(d). Based on its

investigation, MFD filed a notice of claim on January 25, 2018 to recover the

sum of $47,657.20, representing Medicaid overpayments received by

petitioners.

      The matter was transferred to the Office of Administrative Law and

assigned to an ALJ. On February 16, 2018, the parties, represented by counsel,

appeared before the ALJ for a settlement conference.       As a result of the

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settlement negotiations, the parties entered into a written settlement agreement

and mutual release to resolve the matter.

        Pursuant to the settlement document, petitioners agreed to pay $23,000 to

MFD. Patel signed the agreement on behalf of petitioners.1 In addition to

signing the written settlement agreement on February 16, 2018, the parties also

placed their agreement on the record before the ALJ that same day. Patel had

the benefit of counsel during the negotiations and at the hearing before the ALJ.2

        In response to questions posed by the ALJ, Patel acknowledged her

written and oral assent to the agreement. While under oath, Patel confirmed the

following: she understood the agreement; was not forced or coerced into

accepting the agreement; was not under the influence of any substance that

would impair her ability to understand the proceeding or the agreement; and was

satisfied with the services of her two attorneys. When asked by the ALJ if she

had any questions, Patel responded she had none. On the record, Patel expressed

her gratitude to the ALJ, the DMAHS's counsel, and her own attorneys for

resolving the matter.



1
  As part of the settlement, Shayona Pharmacy agreed to cease doing business
as a pharmacy in the State of New Jersey.
2
    In fact, petitioners had two attorneys at the settlement hearing.
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      Based on the ALJ's examination of Patel as to her understanding of the

terms of the settlement agreement, he issued a February 27, 2018 initial decision,

approving the settlement as placed on the record and in writing on February 16,

2018. The ALJ found "[t]he parties have voluntarily agreed to the settlement as

evidenced by their signatures or their representatives' signatures." In approving

the agreement, the ALJ noted the "settlement fully disposes of all issues in

controversy" and "meets the requirements of N.J.A.C. 1:1-19.1." The ALJ's

initial decision attached a copy of the February 16, 2018 Settlement Agreement

and Mutual Release signed by the parties and their counsel.

      On March 29, 2018, Patel paid the $23,000 settlement sum to MFD in

accordance with the terms of the settlement agreement.

      On April 19, 2018, the director of the DMAHS issued a final agency

decision adopting the "[s]ettlement [a]greement as based upon substantial

credible evidence and consistent with applicable law."

      On appeal, Patel argues the settlement agreement should be vacated and

set aside because she did not fully understand the terms and consequences of the

settlement agreement and she "felt rushed and under excessive pressure to

settle . . . ." We reject these arguments.




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      Our review of any agency's decision is limited. Circus Liquors, Inc. v.

Middletown Tp.,  199 N.J. 1, 9 (2009). An agency's determination should not be

reversed "unless it is arbitrary, capricious or unreasonable or it is not supported

by substantial credible evidence in the record as a whole." Lavezzi v. State,  219 N.J. 163, 171 (2014) (quoting Prado v. State,  186 N.J. 413, 427 (2006)).

      New Jersey courts have refused to vacate final settlements absent

compelling circumstances. Brundage v. Estate of Carambio,  195 N.J. 575, 601

(2008) (citing Nolan v. Lee Ho,  120 N.J. 465, 472 (1990)). "An agreement to

settle a lawsuit is a contract, which like all contracts, may be freely entered in to

and which a court, absent a demonstration of 'fraud or other compelling

circumstances,' should honor and enforce as it does other contracts." Pascarella

v. Bruck,  190 N.J. Super. 118, 124-25 (App. Div. 1983) (quoting Honeywell v.

Bubb,  130 N.J. Super. 130, 136 (App. Div. 1974)).

      The party seeking to vacate a settlement must provide "clear and

convincing evidence" that the agreement should be vacated. DeCaro v. DeCaro,

 13 N.J. 36, 42 (1953). We will not interfere with a judge's factual findings and

conclusions concerning a settlement agreement that are amply supported by the

record. Lahue v. Pio Costa,  263 N.J. Super. 575, 597 (App. Div. 1993). We

"strain to give effect to the terms of a settlement whenever possible." Brundage,


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 195 N.J. at 601 (quoting Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util.,  206 N.J. Super. 523, 528 (App. Div. 1985)).

      Here, Patel paid the settlement sum in full in March 2018. If Patel sought

to set aside the agreement because she did not understand its terms and felt

pressured into entering into the settlement, it is unlikely she would have paid

the settlement amount. Moreover, Patel had ample opportunity between the

ALJ's February 26, 2018 initial decision and the DMAHS's April 19, 2018 final

decision to seek to set aside the settlement agreement but did not do so.

      Having reviewed the transcript of the hearing before the ALJ, we are

satisfied the request to vacate and set aside the settlement agreement is nothing

more than Patel's belated remorse at her decision to settle despite paying an

amount significantly less than the original overpayment sum demanded by MFD.

Patel, on behalf of herself and Shayona Pharmacy, entered into an enforceable

settlement and petitioners failed to offer any clear and convincing evidence or

compelling circumstances to justify setting aside the settlement agreement.

      Affirmed.




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