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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE DARTMOUTH-HITCHCOCK CLINIC AND : MARY HITCHCOCK MEMORIAL HOSPITAL, : D/B/A DARTMOUTH-HITCHCOCK, ET AL. : : Plaintiffs, : : v. : : NICHOLAS A. TOUMPAS, in his official : capacity as Commissioner of the New Hampshire : Department of Health and Human Services, : : Defendant. :

CIVIL ACTION No.

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65, Dartmouth-Hitchcock Clinic and Mary Hitchcock Memorial Hospital, d/b/a Dartmouth-Hitchcock; Elliot Health System and its subsidiaries, Elliot Hospital of the City of Manchester, Elliot Physician Network, and Elliot Professional Services Network, Inc.; Catholic Medical Center; Wentworth-Douglass Hospital and its subsidiary, Wentworth-Douglass Physician Corporation; Exeter Hospital, Inc., and its subsidiaries, Core Physicians, LLC, Exeter Healthcare, Inc., and Rockingham VNA & Hospice; Southern New Hampshire Health System and its subsidiaries, Southern New Hampshire Medical Center and Foundation Medical Partners, Inc.; St. Joseph Hospital of Nashua, N.H.; LRGHealthcare d/b/a Lakes Region General Hospital; Cheshire Medical Center; Frisbie Memorial Hospital, (collectively, Provider Plaintiffs); and John Doe (Patient Plaintiff) (together with Provider Plaintiffs, Plaintiffs), by and through their attorneys, respectfully move this Court for entry of a preliminary injunction. In support of their motion, the Plaintiffs state as follows:

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1.

Provider Plaintiffs are integrated healthcare delivery systems comprised of

hospitals that provide inpatient and outpatient services and employ physicians in multidisciplinary practices. 2. Patient Plaintiff is an adult male resident of New Hampshire who was diagnosed

with rectal cancer in 2010. He has received ongoing treatment. He is a Medicaid beneficiary and has received healthcare services from physicians at Lakes Region General Hospital. 3. Pursuant to provider agreements, Provider Plaintiffs provide healthcare services in

accordance with the State of New Hampshires Medicaid program. 4. The States Medicaid program is administered by the New Hampshire Department

of Health and Human Services (DHHS). The defendant, Nicholas A. Toumpas, is the DHHS Commissioner. 5. As alleged in detail in the Complaint and in the Declarations of Robin F.

Kilfeather-Mackey, Michael Rose, Kevin OLeary, Peter E. Walcek, Richard J. Plamondon, Edward L. Dudley, John A. Marzinzik, Richard A. Elwell, Jill I. Batty, Henry Lipman, and John Doe (Plaintiff Declarations)1 submitted herewith, the State has enacted changes to reimbursement rates and reimbursement rate methodologies that are inconsistent with the requirements of the Medicaid Act and relevant implementing regulations, including 42 U.S.C. 1396a(a)(13)(A), 1396a(a)(30)(A), 1396b(a), and 42 C.F.R. 430.12 and 447.205. 6. As argued in detail in the accompanying memorandum of law, the Plaintiffs are

likely to succeed on the merits of their claims that the States enactments are preempted by the requirements of the Medicaid Act under the Supremacy Clause of the United States Constitution

Plaintiffs are separately moving to seal portions of the Walcet, Plamondon, and Marzinzik Declarations and the entire Doe Declaration. Redacted versions of the Walcek, Plamondon, and Marzinzik Declarations are submitted herewith.

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or are subject to challenge pursuant to 42 U.S.C. 1983 and that those enactments do, in fact, violate the provisions of the Medicaid Act and its implementing regulations. 7. As also argued in detail in the Plaintiffs memorandum of law, the other elements

required to secure injunctive relief are also amply met in this case. Continued enforcement of the improperly enacted reimbursement rate reductions and illegal rate reimbursement rate methodologies will result in irreparable harm to the Plaintiffs and plainly shifts the balance of equities in their favor. 8. Consequently, the Court should enter an order enjoining the Defendant, his

agents, servants, employees, successors and assigns from implementing, enforcing, using, or relying upon: a. b. the methodology changes effected by RSA 126-A:3, VII(a); the following rate reduction enactments: the October 30, 2008 33.48%

outpatient rate reduction; the November 21, 2008 10% inpatient rate reduction; the suspension of all outpatient settlement payments since 2009; the denial of Provider Plaintiffs ability to charge technical component fees for hospital-owned physician practices; suspension of payments to Provider Plaintiffs for certain catastrophic cases; and the outpatient radiology rate reduction; c. and d. the methodology changes effected by RSA 167:64, as amended by N.H. the rate reduction effected by N.H. Laws of 2011, Chapters 223 and 224;

Laws of 2011, Chapter 224. 9. As set forth in detail in the memorandum of law, no bond or other security is

required under Fed. R. Civ. P. 65(c).

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10 11.

Pursuant to LR 65.1, a proposed order appears as Exhibit A hereto. Pursuant to LR 7.1(a)(2), a memorandum of law in support of the motion for

preliminary injunction is submitted herewith. 12. The memorandum, the Plaintiff Declarations, and the Declaration of Emily P.

Feyrer, Esq., in support of this motion are incorporated by reference herein. WHEREFORE, the Plaintiffs respectfully request that this Court: A. Following notice to Defendant, conduct a hearing on the motion for preliminary injunction; Grant the Plaintiffs motion for preliminary injunction; Enter the proposed order submitted herewith; and Grant such further relief as may be just and reasonable.

B. C. D.

Respectfully submitted, PROVIDER PLAINTIFFS, By their Attorneys, NIXON PEABODY LLP

Dated: July 25, 2011

/s/ W. Scott OConnell W. Scott OConnell, Esquire N.H. Bar No. 9070 Gordon J. MacDonald, Esquire N.H. Bar No. 11011 Emily P. Feyrer, Esquire (Petition for Admission Pending) N.H. Bar No. 20434 900 Elm Street, 14th Floor Manchester, NH 03101-2031 (603) 628-4000 soconnell@nixonpeabody.com gmacdonald@nixonpeabody.com efeyrer@nixonpeabody.com

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OF COUNSEL:

/s/ John E. Friberg, Jr. John E. Friberg, Jr., Esquire N.H. Bar No. 11287 Elliot Health System One Elliot Way, Suite 303 Manchester, NH 03103 (603) 663-8940 jfriberg@Elliot-HS.org

/s/ Constance Sprauer Constance Sprauer, Esquire N.H. Bar No. 16879 Exeter Hospital 5 Alumni Drive Exeter, NH 03833 (603) 742-5252 csprauer@ehr.org

/s/ Erica Bodwell Erica Bodwell, Esquire N.H. Bar No. 8915
Southern New Hampshire Medical Center

8 Prospect Street Nashua, NH 03061 (603) 577-2677 erica.bodwell@snhmc.org

/s/ Mitchell Jean Mitchell Jean, Esquire N.H. Bar No. 1261 LRGHealthcare 80 Highland Street Laconia, NH 03246 (603) 524-2890 mjean@lrgh.org

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JOHN DOE, By his attorney, ORR & RENO, P.A.

/s/ William L. Chapman William L. Chapman, Esquire N.H. Bar No. 397 One Eagle Square Concord, NH 03302 (603) 224-2381 wchapman@orr-reno.com

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