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Motion for Preliminary Injunction 07-25-11

Motion for Preliminary Injunction 07-25-11

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Published by Grant Bosse
Motion to restore 2008 levels in Medicaid reimbursement rates in Dartmouth-Hitchcock v Toumpas.
Motion to restore 2008 levels in Medicaid reimbursement rates in Dartmouth-Hitchcock v Toumpas.

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Published by: Grant Bosse on Aug 08, 2011
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10/30/2011

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13547948.3
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW HAMPSHIREDARTMOUTH-HITCHCOCK CLINIC ANDMARY HITCHCOCK MEMORIAL HOSPITAL,D/B/A DARTMOUTH-HITCHCOCK, ET AL.
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CIVIL ACTION No.Plaintiffs,
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v.
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NICHOLAS A. TOUMPAS, in his officialcapacity as Commissioner of the New HampshireDepartment of Health and Human Services,
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Defendant.
:PLAINTIFFSMOTIONFORPRELIMINARYINJUNCTION
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, ElliotHospital of the City of Manchester, Elliot Physician Network, and Elliot Professional ServicesNetwork, Inc.; Catholic Medical Center; Wentworth-Douglass Hospital and its subsidiary,Wentworth-Douglass Physician Corporation; Exeter Hospital, Inc., and its subsidiaries, CorePhysicians, LLC, Exeter Healthcare, Inc., and Rockingham VNA & Hospice; Southern NewHampshire Health System and its subsidiaries, Southern New Hampshire Medical Center andFoundation Medical Partners, Inc.; St. Joseph Hospital of Nashua, N.H.; LRGHealthcare d/b/aLakes Region General Hospital; Cheshire Medical Center; Frisbie Memorial Hospital,(collectively, “Provider Plaintiffs”); and John Doe (“Patient Plaintiff”) (together with ProviderPlaintiffs, “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:
Case 1:11-cv-00358 Document 3 Filed 07/25/11 Page 1 of 6
 
13547948.3
21. Provider Plaintiffs are integrated healthcare delivery systems comprised of hospitals that provide inpatient and outpatient services and employ physicians in multi-disciplinary practices.2. Patient Plaintiff is an adult male resident of New Hampshire who was diagnosedwith rectal cancer in 2010. He has received ongoing treatment. He is a Medicaid beneficiaryand has received healthcare services from physicians at Lakes Region General Hospital.3. Pursuant to provider agreements, Provider Plaintiffs provide healthcare services inaccordance with the State of New Hampshire’s Medicaid program.4. The State’s Medicaid program is administered by the New Hampshire Departmentof Health and Human Services (“DHHS”). The defendant, Nicholas A. Toumpas, is the DHHSCommissioner.5. As alleged in detail in the Complaint and in the Declarations of Robin F.Kilfeather-Mackey, Michael Rose, Kevin O’Leary, Peter E. Walcek, Richard J. Plamondon,Edward L. Dudley, John A. Marzinzik, Richard A. Elwell, Jill I. Batty, Henry Lipman, and JohnDoe (“Plaintiff Declarations”)
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submitted herewith, the State has enacted changes toreimbursement rates and reimbursement rate methodologies that are inconsistent with therequirements 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 arelikely to succeed on the merits of their claims that the State’s enactments are preempted by therequirements of the Medicaid Act under the Supremacy Clause of the United States Constitution
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Plaintiffs are separately moving to seal portions of the Walcet, Plamondon, and Marzinzik Declarations and theentire Doe Declaration. Redacted versions of the Walcek, Plamondon, and Marzinzik Declarations are submittedherewith.
Case 1:11-cv-00358 Document 3 Filed 07/25/11 Page 2 of 6
 
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3or 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 elementsrequired to secure injunctive relief are also amply met in this case. Continued enforcement of the improperly enacted reimbursement rate reductions and illegal rate reimbursement ratemethodologies 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, hisagents, servants, employees, successors and assigns from implementing, enforcing, using, orrelying upon:a. the methodology changes effected by RSA 126-A:3, VII(a);b. the following rate reduction enactments: the October 30, 2008 33.48%outpatient rate reduction; the November 21, 2008 10% inpatient rate reduction; thesuspension of all outpatient settlement payments since 2009; the denial of ProviderPlaintiffs’ ability to charge technical component fees for hospital-owned physicianpractices; suspension of payments to Provider Plaintiffs for certain catastrophic cases;and the outpatient radiology rate reduction;c. the rate reduction effected by N.H. Laws of 2011, Chapters 223 and 224;andd. the methodology changes effected by RSA 167:64, as amended by N.H.Laws of 2011, Chapter 224.9. As set forth in detail in the memorandum of law, no bond or other security isrequired under Fed. R. Civ. P. 65(c).
Case 1:11-cv-00358 Document 3 Filed 07/25/11 Page 3 of 6

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