
    CIRCUIT COURT OF THE CITY OF ROANOKE
    Liberty Nursing Home, Inc., Beverly Enterprises, Inc., and William J. Lemon v. Director, Virginia Department of Medical Assistance Services
    September 30, 1998
    Case No. CL97-829
   By Judge Robert P. Doherty, Jr.

The decision of the Director of the Virginia Department of Medical Assistance Services to reverse a hearing officer’s findings was reversed, vacated, and remanded for a new determination in keeping with this Court’s letter opinion of June 9, 1998. Plaintiffs now request an award of attorney’s fees pursuant to § 9-6.14:21, Code of Virginia (1950), as amended, arguing that because they substantially prevailed on the merits of the case, such an award is mandated by statute. The Attorney General disputes the Plaintiffs conclusion that they substantially prevailed on the merits of the case and contends that the agency’s position was substantially justified, thereby obviating any such award. The Court declines to award attorney’s fees, as thus far neither side has prevailed on the merits of their case.

The ultimate issue in this case deals with the application of approximately one million dollars or portions thereof, either to the Plaintiffs or to the Commonwealth. The letter opinion of June 9, 1998, did not decide that issue. It only determined that the time limitation contained in § 32.1-325.1:1 was a statute of repose and that the Director failed to follow statutory procedure when he did not give deference to those findings of the hearing officer that were based on the demeanor of the witnesses, as required by § 9-6.14:12. The Director’s decision was vacated and remanded for a new determination on the merits of the case. Neither side has as yet substantially prevailed.

Accordingly, the Plaintiffs application for attorney’s fees at this time is denied.  