Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 1 of 34

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE **************************************** Dartmouth-Hitchcock Clinic and Mary * Hitchcock Memorial Hospital * d/b/a Dartmouth-Hitchcock, et al., * Plaintiff * * v. * Nicholas A. Toumpas, in his official capacity * as Commissioner of the New Hampshire * Department of Health and Human Services, * Defendant * * * ****************************************

11-cv-358-SM

ANSWER TO COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF The Defendant, Nicholas A. Toumpas, in his official capacity as Commissioner of the New Hampshire Department of Health and Human Services, by and through counsel, the New Hampshire Office of the Attorney General, submits the following Answer to the Complaint filed herein. The introductory paragraphs are legal are arguments and conclusions that do not require a response. To the extent that facts are alleged in these paragraphs, they are repeated in the specific numbered paragraphs and are admitted or denied in response to the specific numbered paragraphs. The Defendant, referred to hereinafter as DHHS specifically denies that it has violated Medicaid law or regulations or that the plaintiffs are entitled to any of the relief that they request. 1. The allegations of 1 are jurisdictional and require no response. However, the Defendant does not dispute the allegations of 1.

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 2 of 34

2. The allegations of 2 are jurisdictional and require no response. However, the Defendant does not dispute the allegations of 2. 3. The allegations of 3 are admitted. 4. The allegations of 4 are admitted to the extent that the Dartmouth-Hitchcock plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Dartmouth-Hitchcock are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Dartmouth-Hitchcock plaintiffs view of their organization. 5. The allegations of 5 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 6. The allegations of 6 are admitted to the extent that the Elliot Health System plaintiffs are not-for-profit corporation(s) and that they generally provide the types of services described. The remainder of the allegations concerning the Elliot Health System plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Elliot Health System plaintiffs view of their organization. 7. The allegations of 7 are admitted to the extent that the Elliot Health System plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Elliot Health System plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Elliot Health System plaintiffs view of their organization.

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 3 of 34

8. The allegations of 8 are admitted to the extent that the Elliot Health System plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Elliot Health System plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Elliot Health System plaintiffs view of their organization. 9. The allegations of 9 are admitted to the extent that the Elliot Health System plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Elliot Health System plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Elliot Health System plaintiffs view of their organization. 10. The allegations of 10 are admitted to the extent that the Elliot Health System plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Elliot Health System plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Elliot Health System plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 11. The allegations of 11 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 12. The allegations of 12 are admitted to the extent that the Catholic Medical Center plaintiffs are a not-for-profit corporation that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Catholic Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 4 of 34

therefore DHHS does not contest that these are the Catholic Medical Center plaintiffs view of their organization 13. DHHS is unsure what Catholic Medical Center means by voluntary in 13, however the remaining allegations are admitted. 14. DHHS has no personal knowledge of the facts alleged in 14, however for purposes of this answer they are irrelevant and DHHS does not contest them. 15. The allegations of 15 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 16. The allegations of 16 are admitted to the extent that the Wentworth Douglass Hospital plaintiffs are not-for-profit corporation(s) and for-profit corporations and that they generally provide the types of services described. The remainder of the allegations concerning the Wentworth Douglass plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Wentworth Douglass plaintiffs view of their organization. 17. The allegations of 17 are admitted to the extent that the Wentworth Douglass Hospital plaintiffs are not-for-profit corporation(s) and for-profit corporations and that they generally provide the types of services described. The remainder of the allegations concerning the Wentworth Douglass plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Wentworth Douglass plaintiffs view of their organization. 18. The allegations of 18 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid.

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 5 of 34

19. The allegations of 19 are admitted to the extent that the Exeter Health Resources, Inc. plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Exeter Health Resources are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Exeter Health Resources plaintiffs view of their organization. 20. The allegations of 20 are admitted to the extent that the Exeter Health Resources, Inc. plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Exeter Health Resources are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Exeter Health Resources plaintiffs view of their organization. 21. The allegations of 21 are admitted to the extent that the Exeter Health Resources plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Exeter Health Resources plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Exeter Health Resources plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 22. The allegations of 22 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid.

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 6 of 34

23. The allegations of 23 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 24. The allegations of 24 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 25. The allegations of 25 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 26. The allegations of 26 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 7 of 34

hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 27. The allegations of 27 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 28. The allegations of 28 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs are not-for-profit corporations that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. 29. The allegations of 29 are admitted to the extent that the Southern New Hampshire Medical Center plaintiffs generally provide the types of services described. The remainder of the allegations concerning the Southern New Hampshire Medical Center plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 8 of 34

lawsuit and therefore DHHS does not contest that these are the Southern New Hampshire Medical Center plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 30. The allegations of 30 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 31. The allegations of 31 are admitted to the extent that the St. Joseph Hospital of Nashua plaintiff is not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the St. Joseph Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the St. Joseph Hospital plaintiffs view of their organization. 32. DHHS is unsure what St. Joseph Hospital means by voluntary in 32, however the remaining allegations are admitted. 33. The allegations of 33 can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore for purposes of this litigation DHHS does not contest these allegations. 34. The allegations of 34 are admitted to the extent that the St. Joseph Hospital of Nashua plaintiff is not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the St. Joseph Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the St. Joseph Hospital plaintiffs view of their organization. However it is further noted that PPS hospital is a Medicare term, not a Medicaid designation.

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 9 of 34

35. The allegations of 35 are admitted to the extent that the St. Joseph Hospital of Nashua plaintiff is not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the St. Joseph Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the St. Joseph Hospital plaintiffs view of their organization. 36. The allegations of 36 are admitted to the extent that the St. Joseph Hospital plaintiffs generally provide the types of services described. The remainder of the allegations concerning the St. Joseph Hospital plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the St. Joseph Hospital plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 37. The allegations of 37 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 38. The allegations of 38 are admitted to the extent that the LRGHealthcare plaintiffs are notfor-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the LRGHealthcare are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the LRGHealthcare plaintiffs view of their organization. 39. The allegations of 39 are admitted to the extent that the LRGHealthcare plaintiffs are notfor-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 10 of 34

the LRGHealthcare are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the LRGHealthcare plaintiffs view of their organization. 40. The allegations of 40 are admitted to the extent that the LRGHealthcare plaintiffs are notfor-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the LRGHealthcare are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the LRGHealthcare plaintiffs view of their organization. 41. The allegations of 41 are admitted to the extent that the LRGHealthcare plaintiffs generally provide the types of services described. The remainder of the allegations concerning the LRGHealthcare plaintiffs opinion of their organization can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the LRGHealthcare plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 42. The allegations of 42 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 43. The allegations of 43 are admitted to the extent that the Cheshire Medical Center plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Cheshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and

10

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 11 of 34

therefore DHHS does not contest that these are the Cheshire Medical Center plaintiffs view of their organization. 44. The allegations of 44 are admitted to the extent that the Cheshire Medical Center plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Cheshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Cheshire Medical Center plaintiffs view of their organization. 45. The allegations of 45 are admitted to the extent that the Cheshire Medical Center plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Cheshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Cheshire Medical Center plaintiffs view of their organization. Further, it is noted that Rural Referral Center is a Medicare designation, not Medicaid. 46. The allegations of 46 are admitted to the extent that the Cheshire Medical Center plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Cheshire Medical Center are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and

11

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 12 of 34

therefore DHHS does not contest that these are the Cheshire Medical Center plaintiffs view of their organization. 47. The allegations of 47 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 48. The allegations of 48 are admitted to the extent that the Frisbie Memorial Hospital plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Frisbie Memorial Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Frisbie Memorial Hospital plaintiffs view of their organization. 49. The allegations of 49 are admitted to the extent that the Frisbie Memorial Hospital plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Frisbie Memorial Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Frisbie Memorial Hospital plaintiffs view of their organization. 50. The allegations of 50 are admitted to the extent that the Frisbie Memorial Hospital plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Frisbie Memorial Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and

12

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 13 of 34

therefore DHHS does not contest that these are the Frisbie Memorial Hospital plaintiffs view of their organization. 51. The allegations of 51 are admitted to the extent that the Frisbie Memorial Hospital plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations concerning the Frisbie Memorial Hospital are plaintiffs opinion of their organization and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these are the Frisbie Memorial Hospital plaintiffs view of their organization. However the defendant does not approve subsidiaries, they enroll qualified providers. 52. The allegations of 52 are admitted to the extent that the Medicaid enrolled organizations have provider agreements that are required in order for them to bill Medicaid. 53. The allegations of 53 are admitted to the extent that the plaintiffs are not-for-profit corporation(s) that include operation of a non-critical access hospital and that they generally provide the types of services described. The remainder of the allegations are plaintiffs opinion of their organizational structure and can neither be admitted or denied by DHHS, however they are not relevant to this lawsuit and therefore DHHS does not contest that these plaintiffs view of their organization. 54. The factual allegations of 54 are admitted. To the extent there are legal conclusions or argument they do not require response. 55. The factual allegations of 55 are admitted. To the extent there are legal conclusions or argument they do not require response.

13

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 14 of 34

56. The factual allegations of 56 are admitted. To the extent there are legal conclusions or argument they do not require response. 57. The factual allegations of 57 are admitted. To the extent there are legal conclusions or argument they do not require response. 58. The factual allegations of 58 are admitted. To the extent there are legal conclusions or argument they do not require response. 59. The factual allegations of 59 are admitted. To the extent there are legal conclusions or argument they do not require response. 60. The factual allegations of 60 are denied. Once a state covers optional eligibility categories, it must offer the same benefit package as offered to all other eligibility categories and pay providers in specific category of service using the same payment methodology unless otherwise approved by CMS. To the extent there are legal conclusions or argument they do not require response. 61. The factual allegations of 61 are admitted. To the extent there are legal conclusions or argument they do not require response. 62. The factual allegations of 62 are admitted. To the extent there are legal conclusions or argument they do not require response. It is further noted federal matching funds may vary further depending on other criteria set by the federal goverment. 63. The first sentence of 63 is admitted, the second sentence is admitted subject to the explanation that the methodology and process for setting rates is not set by the Medicaid Act and does not require and are not included in NH Medicaid State Plan. To the extent there are legal conclusions or argument they do not require response.

14

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 15 of 34

64. The factual allegations of 64 are admitted, subject to the explanation that the methodology and process for setting rates are not set by the Medicaid Act and do not require and are not included in NH Medicaid State Plan. To the extent there are legal conclusions or argument they do not require response. 65. While it is admitted that States must comply with the cited regulation in the first sentence of 65, it is denied that it is a companion regulation to the statute cited. The remainder of the paragraph is legal conclusions or argument that do not require response. 66. To the extent that 66 quotes the statute and regulation it is admitted. The remainder of the paragraph is legal conclusions or argument that do not require response. 67. The factual allegations of 67 are admitted to the extent that CMS has proposed to amend the rule cited. By way of further answer, these proposed regulations were not articulated at the time of rate reductions cited in complaint and are still not finalized or in effect. The remainder of the paragraph is legal conclusions or argument that do not require response. 68. The factual allegations of 68 are admitted to the extent that federal regulations allow for upper payment limits, however the plaintiffs use UPL use out of context. UPL was conceived as an upper payment ceiling so that the Federal government could have an assurance on the maximum level of its obligation, not necessarily a standard for Medicaid reimbursement or suggestive of a required pathway for additional reimbursement. The remainder of the paragraph is legal conclusions or argument that do not require response. 69. The first sentence of 69 is admitted. The remainder of the paragraph is legal conclusions or argument that do not require response.

15

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 16 of 34

70. To the extent that the allegations of 70 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation it is admitted. Additionally, see response to 68. 71. The allegations of paragraph 71 are legal conclusions or argument that do not require response. To the extent facts are alleged they are denied, see response to 68. 72. The allegations of paragraph 72 are legal conclusions or argument that do not require response. To the extent facts are alleged they are denied, see response to 68. 73. The allegations of paragraph 73 are admitted. 74. The allegations of 74 are legal conclusions or argument that do not require response, however to the extent it accurately quotes the cited source the source of the quote is admitted. 75. The allegations of 75 are legal conclusions or argument that do not require response, however to the extent it accurately quotes the cited source the source of the quote is admitted. 76. The allegations of 76 are legal conclusions or argument that do not require response, however to the extent it accurately quotes the cited source the source of the quote is admitted. 77. The first sentence of 77 is admitted. The remainder of the paragraph is legal conclusions or argument that do not require response. By way of further answer, as DSH payments are allowed to take into account uncompensated care for individuals that do not qualify for Medicaid and for whom the state has therefore not agreed to accept responsibility, DSH payments are not and cannot be considered the same as Medicaid reimbursement rates. 78. The allegations of 78 are legal conclusions or argument that do not require response, however to the extent it correctly paraphrases statutes it is admitted. 79. The allegations of 79 are legal conclusions or argument that do not require response, however to the extent it correctly paraphrases statutes it is admitted.

16

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 17 of 34

80. The allegations of 80 are admitted. 81. The allegations of 81 are admitted, although the methods of raising the general fund share varies more widely than suggested. 82. The allegations of 82 are legal conclusions or argument that do not require response. However to the extent facts are alleged they are denied. In further response there is no requirement to consider the ratio of services provided to poor and/or uninsured when setting Medicaid rates. DSH is a separate and distinct payment program. DSH payments are remuneration for hospital losses in providing care to Medicaid and uninsured patients. DSH is an administrative grant, not a medical grant and, thus, not governed by the UPL. 83. To the extent that the allegations of 83 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation or case cited, it is admitted. 84. To the extent that the allegations of 84 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation or case cited, it is admitted. 85. To the extent that the allegations of 85 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation or case cited, it is admitted. By way of further answer, it is noted that DSH is an administrative grant award with a defined amount of federal funds allotted. A state could have a DSH program that exceeds the federal match amount, but funded solely with state general funds. 86. To the extent that the allegations of 86 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation or case cited, it is admitted.

17

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 18 of 34

87. To the extent that the allegations of 87 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the regulation or case cited, it is admitted. 88. The allegations of 88 are admitted. 89. The allegations of the first two sentences and the forth sentence of 89 are admitted. The third sentence is denied as facially inconsistent with the second sentence. 90. The allegations of 90 are admitted, however by way of further answer this is not unique to SFY 2009. 91. The allegations of 91 are admitted, although these requirements have changed over time. 92. To the extent that the allegations of 92 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the case cited, it is admitted that the quotation is correct. It is denied that in all circumstances the provider agreements are sufficient to constitute a contract. 93. To the extent that the allegations of 93 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the case cited, it is admitted that the quotation is correct. 94. The allegations of the first part of 94 before the word fails is admitted the remainder is denied as a legal conclusion that is inaccurate as there is not requirement that the process be described in detail in the state plan. 95. The allegations of 95 are admitted, although by way of further response the critical access hospital designation is a Medicare term, that is not relevant to Medicaid except that based on the financial situation of those hospitals generally, the state has utilized the designation in recent years in determining which hospitals are subject Medicaid rate reductions.

18

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 19 of 34

96. Although the words purports and detail are subjective terms that DHHS does not agree with, the allegations of 96 are generally admitted. 97. The allegations of 97 are admitted. 98. The allegations of 98 are generally admitted, except that by way of further answer the description is incomplete and there are a few exceptions. See the description provided in the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description. 99. The allegations of 99 are generally admitted, except that by way of further answer the description is incomplete and there are a few exceptions. See the description provided in the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description. 100. The allegations of the first sentence of 100 are generally admitted, although the match rate may have varied at times or in particular circumstances. The second sentence is denied as DHHS data indicates that the 2009 payments levels were $64,010,849 for inpatient services and $69,137,172 for outpatient services. 101. DHHS does not have sufficient information to admit or deny the allegations of 101, particularly as to the actual percentage and based thereon denies the allegations. 102. To the extent that the allegations of 102 accurately quotes the reports cited, it is admitted that the quotation is correct and it is admitted that DHHS prepared these reports. 103. To the extent that the allegations of 103 are legal conclusions or argument they do not require response, however it is admitted that the Medicaid rates paid to some New Hampshire Hospitals have been reduced in recent years and that budgetary considerations were a factor. Any remaining factual allegations or implications are denied.

19

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 20 of 34

104. To the extent that the allegations of 104 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct and the date of the amendment is correct. 105. To the extent that the allegations of 105 are legal conclusions or argument they do not require response. The factual allegation that a request would have to be submitted to the cited legislative committee and obtain fiscal committee approval are admitted. However there is nothing only about this process and any request may be denied. 106. The allegations of 106 are denied, although the methodology did not change and therefore no State Plan amendment was required, in subsequent state plan amendments the relevant page was updated and now states that reimbursement is at a percentage determined by DHHS. See the description provided in the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description. 107. The allegations of 107 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of notice. 108. The allegations of 108 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of notice. 109. The allegations of 109 are admitted. 110. To the extent that the allegations of 110 paraphrase a letter therefore to the extent it accurately quotes the letter it is admitted that the quotation is correct, although incomplete. 111. To the extent that the allegations of 111 quote the transcript it is admitted that it accurately quotes the transcript, although the quotation is incomplete and out of context. 112. To the extent that the allegations of 112 quote the transcript it is admitted that it accurately quotes the transcript, although the quotation is incomplete and out of context.

20

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 21 of 34

113. The allegations of 113 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of notice. 114. Although it is admitted that the cited rate reduction was proposed by executive order and approved by the fiscal committee the remainder of the allegations of 114 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of notice. 115. The allegation of 115 are admitted applied to non-critical access hospitals only. 116. The allegations of 116 are legal conclusions or argument that do not require response, however to the extent it accurately quotes the state plan it is admitted. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of the role of the Price per point. 117. The allegation of 117 are admitted except that the figure for 1999 is incorrect. 118. The allegation of 118 are admitted. 119. The allegations of 119 are legal conclusions or argument that do not require response. 120. To the extent that the allegations of 120 quote the transcript it is admitted that it accurately quotes the transcript, although the quotation is incomplete and out of context. 121. To the extent that the allegations of 121 quote the transcript it is admitted that it accurately quotes the transcript, although the quotation is incomplete and out of context. 122. To the extent that the allegations of 122 are legal conclusions or argument they do not require response however to the extent they are factual allegations they are denied as to the need for a state plan amendment and it is contended that adequate notice was provided. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of notice and legal arguments regarding state plan.

21

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 22 of 34

123. The allegations in 123 are denied, see response to 122. 124. To the extent that the allegations of 124 are legal conclusions or argument they do not require response, however the factual allegations are denied. 125. The allegation of 125 are admitted as to the first part of the sentence but denied as to allegation that it was without hearing or debate. 126. The allegation of 126 are admitted as to the first part of the sentence but denied as to second sentence. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of the status of settlement payments. 127. The allegations of 127 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of the status of settlement payments. 128. It is admitted that reductions or changes were made however the remainder of the allegation of 128 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of the history regarding each of the affected areas. 129. The allegation of 129 are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description of the notice for each of the affected areas. 130. To the extent that the allegations of 130 are legal conclusions or argument they do not require response however to the extent they are factual allegations they are denied. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument.

22

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 23 of 34

131. To the extent that the allegations of 131 are legal conclusions or argument they do not require response however to the extent they are factual allegations, Defendant incorporates his answers to the preceding complaint paragraphs 103-131 and further denies that these changes were with out notice or opportunity to comment. See the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. 132. The allegations of 132 are admitted. 133. The allegations of 133 are denied. UPL payments were made only on a one-time basis, with no inference of future obligation or intention to make such payments. UPL payments are not considered rate increases or rate decreases. 134. The allegations of 134 are denied. By way of further answer, UPL payments were made only on a one-time basis, with no inference of future obligation or intention to make such payments. UPL payments are not considered rate increases or rate decreases. They were suggested by the NHHA to capture ARRA enhanced rates knowing that ARRA funding would not be available in the future. 135. The allegations of 135 are admitted as to first two sentences. The last sentence is denied to the extent that the MET has always applied to both inpatient and outpatient services; the law change was a clarification in the wording to prevent hospitals from eroding NSPR. 136. The allegations of 136 are admitted, except Hampstead Hospital is exempted per CMS approval. 137. The legal conclusions and argument and negative connotations in the allegations of 137 are denied, although it is admitted that New Hampshire has received DSH funding during this period.

23

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 24 of 34

138. The legal conclusions and argument and negative connotations in the allegations of 138 are denied. Factual allegations are denied, although it is admitted that New Hampshire has received DSH funding during this period and has imposed MET taxes on the hospitals. These allegations are further irrelevant to the issues in this lawsuit. By way of further answer it is specifically denied that there was any reasonable basis for any Hospital to believe that it would always receive all MET taxes paid in return DSH payments. In addition the statute regarding MET and DSH had specifically been repealed in 1993. 139. The legal conclusions and argument in the allegations of 139 are denied. Factual allegations are denied and it is further stated that no Federal CMS funds went anywhere but to the Medicaid program. 140. To the extent that the allegations of 140 accurately quotes the letter cited, it is admitted that the quotation is correct. However by way of further response, in contradiction to the letters representation the legislature specifically repealed the statute regarding MET and DSH after the date the letter was written. 141. See response to 140. 142. The legal conclusions and argument and negative connotations in the allegations of 137 are denied, although it is admitted that New Hampshire has received DSH funding during this period. To the extent other facts are alleged, they are denied. 143. The allegations of 143 are denied. It is admitted that OIG released a report regarding NHs DSH payments in federal fiscal year 2004 and that the amount determined by OIG to be unallowable was $35,325,468 in federal matching funds. 144. The allegations of 144 are denied. While New Hampshire did modify its DSH program it was not necessarily the result of the OIG recommendations.

24

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 25 of 34

145. The allegations of 145 are admitted, 146. The allegations of 146 are admitted. 147. The allegations of 147 are denied. MET revenue is deposited into a MET holding account, and proportioned to the uncompensated care expense account and to general fund per state law. 148. To the extent that the allegations of 148 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct. 149. To the extent that the allegations of 149 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct. 150. To the extent that the allegations of 150 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct. 151. To the extent that the allegations of 151 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct. 152. To the extent that the allegations of 152 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct. 153. To the extent that the allegations of 152 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct.

25

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 26 of 34

154. The allegations of 154 are admitted, assuming that the dates cited are correct. 155. The allegations of 155 are admitted. 156. The allegations of 156 are admitted. 157. The allegations of 157 are admitted. 158. The allegations of 158 are admitted to the extent that DHHS reported this figure based on the hospitals reports to DHHS. 159. The allegations of 159 are admitted to the extent that DHHS reported this figure based on the hospitals reports to DHHS. However there is no requirement that Hospitals loses from Medicaid or from providing care to persons not qualified to receive Medicaid be paid by the state. The remaining allegations are denied except that it is admitted that hospitals may have paid more in MET than they received in UCC. 160. The allegations of 160 are denied. The State made payments to hospitals for services at rates in effect. Payments were made in timely and ongoing manner meeting all federal prompt payments standards, and more promptly than some other insurers. States have never agreed to assume liability under Medicaid law for all uncompensated care. Hospitals have non-profit charity status are required to act for the public benefit including providing free care to those that cannot afford it. 161. To the extent that the allegations of 161 are legal conclusions or argument they do not require response. The factual allegations are denied, and are more specifically addressed in the subsequent paragraphs. 162. The allegations of 162 are admitted.

26

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 27 of 34

163. The allegations of 163 are admitted. By way of further answer, there is no obligation in federal or state law to make UPL payments as previously noted, and changes to DSH payments are not Medicaid rate reductions. 164. To the extent that the allegations of 164 are legal conclusions or argument they do not require response, however to the extent it purports to accurately quote a statement made by DHHS, the source is not identified and therefore it cannot be verified and is therefore denied. 165. The allegations of 165 are denied. By way of further answer, on information and belief as the source of the statement is not identified, it is believed that the concern being expressed was in relation to whether or not the proposed limitation of DSH should apply to the critical access hospitals that have less ability to cost shift. 166. The allegations of 166 are denied. DSH payments are to support uncompensated care, not to make hospitals financially stable. It is further denied that the plaintiff hospitals are not financially stable or to the extent that they are not, that reduction in Medicaid is the sole factor. 167. The allegations of 167 are admitted. 168. To the extent that the allegations of 168 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the report cited, it is admitted that the quotation is correct although it is taken out of context. 169. The allegations of 169 are admitted. 170. The allegations of 170 are admitted. 171. The allegations of 171 are legal conclusions or argument that do not require response. To the extent that specific factual allegation are made they are denied and further responded to in the subsequent paragraphs.

27

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 28 of 34

172. It is admitted that RSA 167:64 was amended. The remaining allegations of 172 are legal conclusions or argument that do not require response. To the extent that specific factual allegations are made they are denied and further responded to in the subsequent paragraphs. 173. The allegations of 173 are denied as an incomplete characterization of the changes that standing alone is misleading and taken out of context. 174. The allegations of 174 are denied as an incomplete characterization of the changes that standing alone is misleading and taken out of context. 175. To the extent that the allegations of 175 are legal conclusions or argument they do not require response, however to the extent it accurately quotes the statute cited, it is admitted that the quotation is correct, although it is taken out of context. 176. The allegations of 176 are admitted. 177. The allegations of 177 are denied. 178. The allegations of 171 are legal conclusions or argument that do not require response. Further to the extent there is any issue about the calculation of MET tax liability, it is irrelevant to this lawsuit, and even if the tax were being calculated incorrectly which is denied by the state, the federal court would not have jurisdiction to enjoin a state tax. 179. The allegations of 179 are admitted, except that fee for service description is too restrictive. 180. The allegations of 180 are admitted as to the projections for MET revenue. 181. The allegations of 181 are legal conclusions or argument that do not require response. To the extent these figures are contained in Chapter 223, they are based on projected revenue. To the extent other facts are alleged they are denied. Further, to the extent there is any issue about the calculation of MET tax liability, it is irrelevant to this lawsuit, and even if the tax were being

28

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 29 of 34

calculated incorrectly which is denied by the state, the federal court would not have jurisdiction to enjoin a state tax. 182. The allegations of 182 are denied. Chapter 224, Laws 2011 states the following: 364 Use of Certain Unrestricted General Funds to Mitigate Department of Health and Human Services Spending Reductions; 1 Uncompensated Care. I. If general fund revenues exceed projected revenue estimates, the department of health and human services shall present a plan for approval to the fiscal committee of the general court detailing a proposal for making uncompensated care payments to hospitals pursuant to RSA 167:64, as amended by this act, for the fiscal year ending June 30, 2013. Such plan shall expend only up to the total amount of excess revenue. Said plan shall be presented to the fiscal committee of the general court no later than September 12, 2012. II. Notwithstanding any provision of law to the contrary, upon approval of the plan pursuant to paragraph I, with the approval of the joint legislative fiscal committee and the governor and council, the department of health and human services may expend funds in excess of budgeted amounts for the purpose of making uncompensated care payments to hospitals pursuant to RSA 167:64, as amended by this act, for the fiscal year ending June 30, 2013. Such payments may be paid on the warrant of the governor, out of any money in the treasury not otherwise appropriated. 183. The allegations of 183 are legal conclusions or argument that do not require response. The factual allegations of 183 are speculation and are therefore denied. By way of further answer, the State has made and will continue to make payments to hospitals for services at rates in effect. Payments are made in timely and ongoing manner meeting all federal prompt payments standards, and quicker than other insurers. States have never agreed to assume liability under Medicaid law for all uncompensated care. Hospitals have non-profit charity status are required to act for the public benefit. 184. The allegations of 184 are legal conclusions or argument that do not require response. To the extent that factual allegations are included in this paragraph they are denied. 185. The allegations of 185 are legal conclusions or argument that do not require response. To the extent that factual allegations are included in this paragraph they are denied.

29

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 30 of 34

186. The allegations of 186 are legal conclusions or argument that do not require response. To the extent that factual allegations are included in this paragraph they are denied. 187. The Defendant does not have personal knowledge on which he can base a belief regarding the facts asserted in 187 and based thereon denies these facts. 188. The allegations of 188 are legal conclusions or argument that do not require response. Additionally, to date DHHS is not aware that any of the hospitals have taken this actions alleged in this paragraph. Further as the rate reductions to hospitals complained of herein do not affect the fee for service rates that their hospital owned physician practices are entitled to bill for the physicians service to patients there is no evidence of direct correlation between physician practices patient acceptance and hospital rates. 189. The allegations of 189 are legal conclusions or argument that do not require response. By way of further response, even if the listed services are in fact closed, there will be no different access for Medicaid patients than for the general public in the same geographic area. 190. The allegations of 190 are legal conclusions or argument that do not require response. By way of further response, Federal Medicaid provisions do not allow for reimbursement of educational or wellness services in any event. 191. The allegations of 191 are legal conclusions or argument that do not require response. By way of further response, even if layoffs occur, this is no different that any business being required to operate efficiently, which is in fact consistent with the purpose of Medicaid law. Additionally, there will be no different access for Medicaid patients than for the general public in the same geographic area. It is further noted that in media reports regarding the filing of this lawsuit the following plaintiffs were quoted, Elliot Hospital layed on ~142 staff, simultaeously assuring the same high quality services. DHMC offered early retirement to ~170 stating that

30

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 31 of 34

these offers were already planned and would not affect patient care. Wentworth Douglas chose to lay off ~40 staff, but assured the public the underway construction project would continue as planned. 192. The allegations of 192 are legal conclusions or argument that do not require response. The factual allegations of 192 are denied. 193. The responses to the allegations of 1 - 192 are repeated and incorporated herein as to the allegations of 193. 194. 206. The allegations of 194 206 in Count I are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. 207. The responses to the allegations of 1 - 206 are repeated and incorporated herein as to the allegations of 207. 208. 217. The allegations of 208 217 in Count II are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. 218. The responses to the allegations of 1 - 217 are repeated and incorporated herein as to the allegations of 218. 219. 228. The allegations of 219 228 in Count III are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument.

31

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 32 of 34

229. The responses to the allegations of 1 - 228 are repeated and incorporated herein as to the allegations of 229. 230. 242. The allegations of 230 242 in Count IV are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. 243. The responses to the allegations of 1 - 242 are repeated and incorporated herein as to the allegations of 243. 244. 251. The allegations of 244 251 in Count V are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. 252. The responses to the allegations of 1 - 251 are repeated and incorporated herein as to the allegations of 252. 253. 259. The allegations of 253 259 in Count VI are legal conclusions or argument that do not require response. However, by way of further response see the Defendants Memorandum of Law in Support of the Objection to Motion for Preliminary Injunction for a complete description Defendants legal argument. The remaining paragraphs of the complaint are a request for relief that do not require a response. However it is specifically denied that the plaintiffs are entitled to the relief requested.

32

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 33 of 34

Additional Defenses As previously stated herein DHHS specifically incorporates the arguments and defenses raised in the objection to the motion for preliminary injunction and in the motion to dismiss filed concurrently herewith. Those defenses include but are not limited to the following: A. B. C. Plaintiffs claims fail because they do not have standing. The statutes or regulations they seek to enforce do not convey a private right of action. Federal law does not impliedly pre-empt state law as the state laws can be applied

consistently with federal law. D. E. F. G. H. I. Plaintiffs have failed to state facts sufficient to support a cause of action. Plaintiffs claims are barred by laches or the statute of limitations. Plaintiffs action is barred by the Anti-Injunction Act. Plaintiffs claims are barred in whole or in part by the doctrines of mootness or ripeness. The Plaintiffs action is barred by sovereign immunity or Eleventh Amendment immunity. To the extent that notice and opportunity to be heard was required the states processes

were adequate. J. To the extent that state plan amendment were required they have been done or there is

still time to submit a plan amendment and the claims are therefore premature. Defendant reserves the right to amend this list of defenses as necessary and allowed under federal rules of procedure. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the complaint and enter judgment for the Defendant. Respectfully submitted, NICHOLAS A. TOUMPAS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW

33

Case 1:11-cv-00358-SM Document 47

Filed 09/23/11 Page 34 of 34

HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES By his attorney, MICHAEL A. DELANEY ATTORNEY GENERAL

Date: September 23, 2011

/s/__Nancy J. Smith_______________ Nancy J. Smith, Bar No. 9085 Senior Assistant Attorney General Suzanne M. Gorman, Bar No. 6572 Senior Assistant Attorney General Laura E. B. Lombardi, Bar No. 12821 Assistant Attorney General New Hampshire Attorney Generals Office 33 Capitol Street Concord, New Hampshire 03301-6397 Telephone: (603) 271-3650 Email: nancy.smith@doj.nh.gov suzanne.gorman@doj.nh.gov laura.lombardi@doj.nh.gov CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on the following persons on this date and in the manner specified herein: Electronically Served Through ECF upon: Gordon J. MacDonald, Esquire, Scott OConnell, Esquire and William Chapman, Esquire.

__/s/__Nancy J. Smith______________ Nancy J. Smith Bar # 9085 Date: September 23, 2011

663253.njs

34