DUANE MORRIS LLP

A DELAWARE LIMITED LIABILITY PARTNERSHIP

By:

Christopher L. Soriano (No. 032142003)

Philip H. Lebowitz (pro hac vice application forthcoming)
Seth A. Goldberg (No. 1542004)
Erin M. Duffy (No. 024742004)
1940 Route 70 East, Suite 100
Cherry Hill, NJ 08003
856.874.4200 (Phone)
856.874.4388 (Fax)
csoriano@duanemorris.com
lebowitz@duanemorris.com
sagoldberg@duanemorris.com
emduffy@duanemorris.com
Attorneys for Virtua Health, Inc. and
Capital Health System, Inc., Plaintiffs
VIRTUA HEALTH, INC. and
CAPITAL HEALTH SYSTEM, Inc.

:
:
:
Plaintiffs,
:
:
v.
:
:
STATE OF NEW JERSEY and
:
CHRISTOPHER J. CHRISTIE, in his official :
capacity as Governor of the State of New
:
Jersey,
:
:
Defendants.
:

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION
MERCER COUNTY
Docket No.
CIVIL ACTION
VERIFIED COMPLAINT

Plaintiffs Virtua Health, Inc. (Virtua) and Capital Health System, Inc. (Capital), by
and through its undersigned counsel, and by way of its Verified Complaint in this matter, avers as
follows:
PRELIMINARY STATEMENT
On July 6, 2015, Governor Christie signed legislation, P.L. 2015, c. 70 (the Act), which
had been introduced in the Senate and Assembly for the first time less than 30 days earlier. If
made effective, the Act would circumvent the New Jersey Department of Healths
(Department) long-standing regulation of the delivery of Advanced Life Support (ALS)
emergency services for the benefit of three hospitals Cooper University Hospital (Cooper),
DM2\5968181.6

University Hospital, and Robert Wood Johnson University Hospital (RWJUH) to the
exclusion of every other health care facility in the State. The Act, without the Departments
involvement, would make each of the three hospitals the exclusive provider of ALS and Mobile
Intensive Care Unit (MICU) services in the city in which they operate (in fact, this benefit
would only apply to Cooper); it would award them the uncontested right at their option to
operate Basic Life Support (BLS) services in their respective municipalities; and it would
allow them to provide ALS and MICU services in new areas through an expedited regulatory
process not available to any other hospital (although in reality this special benefit would only
apply to RWJUH).
The three hospitals are the States only designated Level I trauma centers. While the
ostensible purpose of the Act is to prioritize Level I trauma centers, particularly Cooper, as
providers of emergency services, there is no rational basis for legislating that result. Because the
other two facilities already provide ALS services in their respective municipalities, only Cooper
would reap the special benefit of becoming the exclusive provider of ALS services in the City of
Camden, displacing Virtua as the Certificate of Need (CN) holder that has provided ALS and
MICU services in Camden for 38 years. In addition, since RWJHU is the only Level I trauma
center that meets the criteria to expand its ALS services to the City of Hamilton under an
expedited CN review process, it is the only Level I trauma center that benefits from that aspect of
the Act to the detriment of Capital.
In Camden, Burlington and Mercer Counties, the Act would do nothing to better
coordinate Emergency Medical Services (EMS) consisting of ALS and BLS services, but
would instead result in the piecemeal and inefficient delivery of ALS services on a municipality
basis, and disrupt the long-standing, Department-governed regional system under which quality

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EMS services have been provided by Virtua and Capital throughout those counties for over 35
years. Likewise, without any rational basis, the Act would allow RWJUH to circumvent the CN
requirements intended to contain costs and enhance quality that every other health care facility in
the State is required to satisfy by permitting RWJUH, through an expedited CN review process,
to expand into other areas where ALS services are currently being provided. The Act also allows
the three trauma centers the privilege of a right of first refusal to provide BLS services in their
municipalities, thereby taking from the municipalities themselves the ability to select their own
BLS providers. In a similarly irrational move, the legislature and Governor have approved the
appropriation of $5,000,000 to subsidize the implementation of the Act, notwithstanding the
current delivery of Virtuas and Capitals MICU services without such public subsidy.
Simply put, the Act will not create better coordination of services, contain the costs of
ALS and BLS services, or increase the quality of these services. The focus on Level I trauma
centers is more a smokescreen than legitimate justification, especially given that trauma cases
represent just 7% of ALS cases on a statewide basis, that Capital is a Level II trauma center and
can provide the same level of clinical treatment as a Level I trauma center, and professional
standards do not require or recommend that trauma centers provide ALS services. Thus, the
special privileges afforded by the Act to Cooper, University Hospital, and RWJUH to the
exclusion of all other providers in the state are not rationally related to the Acts stated purpose
or supported by any rational basis.
The New Jersey Constitution prohibits the adoption of private, special or local laws.
For over 100 years, New Jersey courts have overturned special legislation when it arbitrarily
excludes persons from the benefits of the law without any rational or reasonable basis relevant to

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the purpose and object of the act. Accordingly, the Court should declare the Act presented here
to be unconstitutional special legislation and enjoin Defendants from making it effective.
THE PARTIES
1.

Plaintiff Virtua Health, Inc. is a not-for-profit corporation headquartered at 50 Lake

Center, 401 Route 73 North, Marlton, New Jersey 08053. Virtua is a health care system
consisting of three hospitals, two major ambulatory care centers, three health and wellness
centers, two long-term care facilities, two home health services, eleven ambulatory surgery
centers and 68 Virtua Medical Group physicians offices.
2.

Plaintiff Capital Health System, Inc. is a not-for-profit corporation headquartered at 750

Brunswick Ave, Trenton, New Jersey 08638. Capital is comprised of its two hospitals, an
outpatient facility in Hamilton Township, and various primary and specialty care practices across
the region. Capital also has a Level II trauma center, state designated regional perinatal center,
and a psychiatric emergency screening center serving all of Mercer County.
3.

Defendant State of New Jersey is a body politic that has enacted P.L. 2015, c. 70. The

State will be implementing the provisions of that statute.

4.

Defendant Christopher J. Christie is the Governor of the State of New Jersey. He is the

chief executive officer of the State and is charged with, among other things, ensuring that the
laws and the Constitution of the State of New Jersey are faithfully executed.
5.

Venue is proper in Mercer County under R. 4:3-2(a)(2) in that this is an action brought

against a public agency in the county in which the action arises.

FACTUAL ALLEGATIONS
The Current Regulatory Structure for Emergency Medical Services
6.

Basic Life Support (BLS) services are low-level, non-invasive, ambulance-based

medical services, such as splinting fractures, bandaging wounds, and CPR, provided by
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emergency medical technicians (EMT) while transporting the patient to the nearest appropriate
hospital. Each municipality arranges separately, by ordinance or contract, for a BLS service
provider for its community.
7.

ALS services are high-level, often invasive, medical services, such as intravenous

medication administration, defibrillation and cardioversion, endotracheal intubation, and chest

decompression, that are provided by paramedics and nurses certified to render advanced, out-ofthe-hospital medical care under the direction of a medical command physician. ALS services are
provided out of a mobile intensive care unit (MICU), which is an vehicle that is specially
equipped to provide ALS services.
8.

BLS and ALS services work together, with ambulances providing BLS responding to all

911 calls. MICUs are called in to provide higher level ALS services when necessary.
9.

The Emergency Medical Services Act (the EMS Act), has governed EMS since 1984

and, among other things, provides for the Departments regulation of MICUs and paramedics.
See P. L. 1984, c.146 (N.J.S.A. 26:2K-7-20). The EMS Act authorizes the Commissioner of the
Department of Health (the Commissioner) to promulgate such rules and regulations as the
Commissioner deems necessary to effectuate the Act. N.J.S.A. 26:2K-17. The Department
promulgated the EMS regulations at N.J.A.C. 8:41-1.1 et seq.
10.

Under the EMS Act, only a hospital authorized by the Commissioner with an accredited

emergency service may develop and maintain a [MICU], and provide [ALS] services utilizing
registered professional nurses trained in [ALS] nursing, and mobile intensive care paramedics.
N.J.S.A 26:26K-12.
11.

The EMS Act requires the Commissioner to establish a State mobile intensive care

advisory council (the MICU Council), to advise the Department on all matters of mobile

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intensive care services, the Emergency Medical Service Helicopter Response Program and
emergency medical transportation. N.J.S.A. 26:2K-16.
12.

The MICU Council is charged with reviewing and recommending policy on subjects

including, but not limited to, advanced life support training programs, advanced life support
patient care equipment, biomedical and telecommunications equipment and procedures,
treatment protocols, and helicopter equipment and procedures, as well as other medical matters.
Id.
13.

The New Jersey EMS Council (EMS Council) was established in 1991 to advise the

Department on all matters regarding New Jerseys EMS system. The current EMS Council
includes representatives from the Department, as well as representatives from the States police,
fire, poison control and trauma forces, physicians and nurses specializing in MICU, BLS, and
EMS, and lay members of the community.
14.

The EMS Act has operated alongside the New Jersey Health Care Facilities Planning Act,

N.J.S.A. 26:2H-1 to -26 (the Health Planning Act), which was enacted in the 1970s, and which
authorizes the Department to limit the proliferation of health care services in order to protect the
quality and viability of services through the CN process, stating [n]o health care facility shall be
constructed or expanded, and no new health care service shall be instituted . . . except upon
application for and receipt of a Certificate of Need. N.J.S.A. 26:2H-7.
15.

The Health Planning Act delegated broad authority to the Department to establish

standards and procedures relating to the licensing of health care facilities and the institution of
certain additional health care services, N.J.S.A. 26:2H-5, pursuant to which the Department
issued regulations at N.J.A.C. 8:33 et seq. (the CN Regulations) implementing the Health
Planning Act.

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16.

For health care services subject to the CN Regulations, the provider of the services must

undergo either a full CN review or an expedited CN review. The full CN review process
requires the Commissioner to determine a need in a particular area for a service and to issue an
invitation or call (Call) for applicants to submit applications to provide the identified service.
N.J.A.C. 8:33-4.1 et seq. If the Commissioner does not issue a Call, the Department will not
entertain requests by new providers to offer that service. If the Commissioner issues a Call,
applications are submitted and evaluated by the Department based on competitive criteria and are
subject to public hearings before the State Health Planning Board. Id. After the Department and
the State Health Planning Board issue their recommendations, the Commissioner issues a written
opinion awarding or denying each of the applications submitted in response to the Call. Id.
17.

If a health care service is subject to the expedited CN review process, applicants may

submit an application on the first day of any month to initiate the services; providers are not
required to wait for the Commissioner to identify a need for the service. N.J.A.C. 8:33-5.1 et
seq. Expedited review is not a competitive process and the application is not subject to public
hearing before the State Health Planning Board. Id. The application is reviewed by the
Department, which makes a recommendation on the application to the Commissioner. Id. The
Commissioner must issue a decision on the application within 90 days of the application being
deemed complete by the Department. Id.
18.

In 1992 and again in 1998, the legislature enacted health care reform that exempted

certain health care services from the CN requirements; however, MICU services have always
remained subject to the full review CN process. See 1992, P.L. 1992, c.160 (N.J.S.A. 26:2H-7a)
(the 1992 CN Reform Act); P.L. 1998, C. 43 (N.J.S.A. 26:2H-7c) (the 1998 CN Reform

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Act). The 1998 CN Reform Act also legislatively convened a CN Study Commission to
determine if any other health care services should be exempted from the States CN laws.
19.

The CN Study Commission issued its report in February 2000 and recommended that

MICU services remain subject to the full review CN process because they are part of a welldeveloped regional system with trauma centers that is currently providing an appropriate array of
emergency services; a highly specialized service where quality is dependent on volume, could be
costly to initiate, particularly with the difficulty in retaining the services of paramedics. See CN
Study Commission Report, p. 13.
20.

The Commissions recommendations were based upon its finding that [q]uality and

volume are closely interrelated for many of the services we studied [including MICUs].
Certificate of Need, as opposed to licensing standards, is a tool to prevent quality problems in
these areas by promoting expansion of services only when a population-based need can be
shown, thus assuring sufficient volume to maintain staff skills and program financial viability.
CN Study Commission Report, p. 17.
21.

The Commission recommended that MICU services remain in direct certificate of need

review with a public process before the State Health Planning Board. Id.
Virtuas ALS Services and MIC Program
22.

Virtua has been awarded the CN to provide ALS services in Camden and Burlington

Counties through its state-licensed MICUs.

23.

Since on or about 1977, Virtua has been the sole provider of ALS services to 77

municipalities in Camden and Burlington Counties, and has spent decades perfecting the way
that it delivers care in this regional model.
24.

Virtua has invested significant funds in the development and maintenance of its ALS

program, which is comprised of twelve MICUs, one of which is located in the City of Camden,
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and which has always operated without any taxpayer support at any level of government. At
least three other Virtua MICUs provide ALS services within parts of the City of Camden from
locations outside of the city.
25.

Each MICU carries over $65,000 worth of sophisticated medical equipment, and

approximately one-third of Virtuas MICUs are replaced annually at a cost of $85,000 per unit.
26.

Virtua has also made a significant investment in the recruitment and training of highly

qualified paramedics for its MIC program, which currently utilizes over 175 paramedics.
27.

Virtua provides high quality ALS services, as demonstrated by the high percentages it has

recorded with respect to the following quality metrics.

Measure

28.

Percentage

Acquisition of 12-lead ECG (less than 5 minutes after

patient contact)

98.96%

Appropriate identification of cardiac risk factors in

female patients

98.13%

Appropriate Aspirin Administration in Cardiac Chest

Pain Patients

99.19%

Appropriate Administration of Pain Management

Medications

98.99%

Endotracheal Intubation Competency

94.44%

Cardiac Cath Lab Activation from the Field for STEMI

Patients (within 10 minutes of patient contact)

96.67%

Both the sponsor of the Assembly Bill and Coopers representative testified before the

Assembly Health and Senior Services Committee on June 15, 2015, that there was no issue with
the quality of ALS services provided by Virtua in the City of Camden.
Capitals ALS Services and MIC Program
29.

Capital has been awarded the CN to provide ALS services in Mercer County through its

state-licensed MICU.

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30.

Since 1977 Capital has been the sole provider of ALS services in Mercer County,

including the City of Hamilton, which is in the center of Mercer County.

31.

Capital has invested significant funds in the development and maintenance of its ALS

program, which is comprised of ten MICUs, one of which is located in the City of Hamilton, and
which has always operated without any taxpayer support at any level of government.
32.

Capitals MICU program breaks even financially and is financially dependent on

servicing the entire region so that municipalities with better payor mixes and higher
reimbursement, such as the City of Hamilton, can cross-subsidize poor cities with lower payor
mixes and reimbursement, such as the City of Trenton.
The Trauma System in New Jersey
33.

In 1981, the State designated two hospitals Cooper and University of Medicine and

Dentistry of New Jersey, now University Hospital as Level I trauma centers. RWJUH was
subsequently awarded a CN as a Level I trauma center in the 1990s. There are seven Level II
trauma centers in New Jersey.
34.

The regulations providing for a CN process for new trauma centers, N.J.A.C. 8:33P,

expired on June 19, 1997 and have not been re-promulgated. Therefore, currently there is no
regulatory scheme in effect that would allow a New Jersey hospital to apply for a CN to become
a Level I or Level II trauma center.
35.

Level I and Level II trauma centers have most of the same clinical capabilities, but Level

I trauma centers are generally affiliated with a medical school teaching hospital and conduct
research. See http://www.nj.gov/health/ems/trama_centers.shtml [visited July 21, 2015].
36.

Level I and Level II trauma centers demonstrate continuing compliance with the

Departments regulations by maintaining current verification at Level I or Level II in accordance

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with the verification review program conducted by the Committee on Trauma of the American
College of Surgeons (ACS). N.J.A.C. 8:43G-12.22.
37.

The ACS verifies the trauma centers status by reference to the resources listed in

Resources for Optimal Care of the Injured Patient, which the Department has incorporated into
its regulations at N.J.A.C. 8:43G-12.22. Nothing in these ACS standards or the Departments
regulations requires that trauma centers provide EMS services.
38.

According to the ACS website, Cooper, University Hospital, RWJUH and Atlantic Health

Systems Morristown Medical Center (Morristown) all meet the criteria of a Level I trauma
center. The six remaining New Jersey trauma centers, including Capital, meet the ACS criteria
of a Level II trauma center. Although Morristown is verified as a Level I trauma center by ACS,
it only holds a CN from the Department as a Level II trauma center.
39.

Cooper holds a CN to operate a Level I trauma facility in Camden. University Hospital

holds a CN to operate a Level I trauma center in Newark. RWJUH holds the CN to operate a
Level I trauma center in New Brunswick. Of the three Level I trauma centers in New Jersey,
Cooper is the only one that does not currently provide ALS services through a MICU.
40.

Of the 21 ALS services programs in the state, only four are provided by Level I trauma

centers. Seven of them are provided by a Level II trauma center. Ten of them are not operated
by a trauma center at all.
41.

There has been no finding or evidence that Level I trauma centers in general, or Cooper

specifically, would provide better ALS services than existing ALS providers, particularly because
trauma cases represent just 7% of ALS cases on a statewide basis and only 12% of cases in the
City of Camden and 7% of cases in the City of Hamilton.

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The Unconstitutional Act

42.

The Senate version of the Act was introduced on June 8, 2015, and the Assembly version

was introduced on June 11. The Assembly bill was heard by the Assembly Health and Senior
Services Committee on the morning of June 15 and moved out of committee. The Senate bill
was heard by the Senate Health, Human Services and Senior Citizens committee on the
afternoon of June 15, amended and moved out of committee without recommendation. The
Assembly Appropriations Committee acted, without a hearing on the bill, to concur with the
Senate Committees amendments. The Act was passed by both the Senate and the Assembly on
June 25, 2015, and was then approved and signed by Governor Christie as P.L. 2015, c.70 on
July 6, 2015.
43.

The Act, which takes effect 180 days from its enactment, is codified at N.J.S.A. 26:2K12

and provides three special privileges to the three trauma centers:

44.

A hospital which has been issued a certificate of need by the Department of

Health to operate a Level I trauma center shall be exclusively authorized to
develop and maintain advanced life support services in the municipality in which
the trauma center is located. N.J.S.A. 26:2K12.1a.(1).

[The Level I trauma center] shall have the right of first refusal to provide both
advanced life support and basic life support services in the municipality, provided
that the services are provided at no charge to the municipality, and the
municipality does not provide basic life support services as a municipal service or
as part of a shared services agreement. N.J.S.A. 26:2K12.1a.(2).

[The Level I trauma center] shall have the right to apply under expedited review
to provide advanced life support services in additional municipalities in which an
acute care hospital that, as of July 1, 2015, is part of the same health system as the
Level I trauma center is located, provided such application for expedited review is
submitted on or before December 31, 2016. N.J.S.A. 26:2K12.1b.

The only stated purpose of the Act is found in Assembly and Senate bills described as

the sponsors belief. This belief is based on linking ALS and BLS services under the three

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Level I trauma centers in order to centralize medical oversight, facilitate high-quality prehospital care, and support a more cost-efficient system. The Act fulfills none of these purposes.
45.

The Act would exclude all health care facilities except the Level I trauma centers from

providing ALS services in the municipalities where the three Level I trauma centers are located.
The Act could potentially also award BLS services exclusively to the Level I trauma centers, but
only under certain circumstances. In Newark, these circumstances (at no charge to the
municipality) may make this option unattractive. These legislative restrictions circumvent the
longstanding regulatory scheme for allocating such services, disregard the Departments
expertise in overseeing the regulation of such services, which includes ignoring the advice of the
EMS Council, and increase the public costs of such services unnecessarily. The Act offers no
reason to expect increased quality or any other benefit from the overt favoritism shown to the
three Level I trauma centers, particularly Cooper and RWJHU, by the State.
46.

Regarding the first prong of the Act, Section 1.a.(1), because Cooper is the only Level I

trauma center located in the City of Camden, if made effective, the Act would result in Cooper
becoming the exclusive provider of ALS services in Camden, without having to demonstrate any
of the indicia of need or expertise that have been the hallmark of the Departments long-standing
CN process. No other health care facility in New Jersey has been afforded this opportunity.
47.

This result would necessarily shut down Virtuas ALS services in Camden,

notwithstanding, among other things, that (a) Virtua has a CN to provide those services; (b)
Virtua has made significant investments in providing those services; (c) the ALS services Virtua
has been providing in Camden for 38 years are of uncontested high quality; and (d) Camden is
fully integrated into the State-mandated regional EMS system operated by Virtua.

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48.

Moreover, because Cooper currently does not have a MICU or providers qualified to

offer ALS services, nor does it provide BLS services, the State budget for the Fiscal Year 2016,
which began on July 1, 2015, appropriated $2.5 million of taxpayers money to Cooper to fund
its start-up of EMS in Camden.
49.

Because Virtua will continue to provide ALS services in other areas in southern New

Jersey, the Act would, if made effective, create a piecemeal ALS services system in Burlington
and Camden Counties, with Cooper providing ALS services in Camden and Virtua providing
ALS services in the rest of Camden and Burlington counties, without any rational basis for this
carving out of Camden from the existing system. Such a piecemeal system would be contrary to
the Acts stated purpose of centralization, and it is in direct contravention of the State-mandated
regionalization of Virtuas ALS services that has been in place in Burlington and Camden
Counties, without objection or contest, since the early 1970s.
50.

Regarding the second prong, Section 1.a.(2), the Act would also permit Cooper the right

of first refusal to provide BLS in the City of Camden. Thus, if the current provider, University
Hospital, ceases to provide BLS services, and Cooper so chooses, only Cooper and no other
qualified provider may contract with Camden for BLS services. Virtua has expressed its
continuing interest in providing BLS services in Camden since 2013, but would be precluded
from competing to offer this service to the City of Camden. Because University and RWJUH
already provide BLS services in their municipalities, this provision also benefits only Cooper.
51.

Although this aspect of the Act may be claimed to provide consistency (linking)

between ALS and BLS providers, the exact opposite effect would occur in the City of Newark.
There, where University Hospital is a Level I trauma center and is Newarks current provider of
both ALS and BLS services, the Act actually appears designed to offer Newark the opportunity

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to supply its own BLS services, since the Act only provides the Level I trauma center the right of
first refusal if the municipality does not provide basic life support services as a municipal
service or a shared service with another provider. Thus, by its own terms, the Act contravenes
any ostensible purpose of using Level I trauma centers to foster continuity between ALS and
BLS providers.
52.

The State budget for FY2016 includes an appropriation of $2.5 million for EMS in the

City of Newark, which appears to be intended for use by Newark to establish its own BLS
system. Thus, not only does this Act rely on an additional $2.5 million in appropriated funds to
implement Newarks new system, the awarding to the municipality the right to offer BLS
services completely belies any legitimate rationale for this provision favoring Level I trauma
centers.
53.

Section 1.b. of the Act the third prong provides a benefit to RWJUH not available to

any other hospital. Because RWJUH has an acute care hospital facility in Hamilton, the
legislation will allow RWJUH the right to apply under expedited CN review to provide ALS
services in the City of Hamilton, where Capital currently holds the CN to provide ALS services,
so long as RWJUH applies for the CN prior to December 31, 2016. Expedited review avoids the
competitive considerations and public hearing before the State Health Planning Board viewed as
essential by the CN Study Commission in 2000. It is unclear from the Act whether the CN under
consideration through this expedited process would be exclusive.
54.

This result would necessarily adversely impact Capitals ALS services in the City of

Hamilton and Mercer County, notwithstanding, among other things, that (a) Capital has a CN to
provide those services; (b) Capital has made significant investments in providing those services;
(c) the ALS services Capital has been providing in the City of Hamilton for 40 years are of

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uncontested high quality; (d) the City of Hamilton is fully integrated into the State-mandated
regional EMS system operated by Capital and (e) Capital is a Level II trauma center with the
exact same capabilities to treat trauma patients as RWJHU.
55.

The legislature previously delegated to the Department the central responsibility for

health care planning in the State. The Act, if made effective, however, would circumvent the
entire CN regulatory process, the related EMS Act, and the recommendations of the EMS
Council without any rational basis, for the benefit of Cooper and the other Level I trauma
centers.
56.

At its meeting on June 10, 2015, the EMS Council voted to oppose the then proposed Act

and recommend to the Commissioner that the Department affirmatively oppose its passage due to
its circumvention of the CN process.
57.

The New Jersey Hospital Association Board raised serious concerns regarding the

process and pace used to fast-track the Act and on June 24, 2015, sent letters to each member of
the General Assembly warning that the legislation marks a significant departure from past
practice involving an existing regulatory review process and could have broader, unintended
consequences statewide if it is not subject to a more thorough review of potential impacts.
58.

The MICU council was not consulted by the Department concerning the impact of the

Act and the Department has not made any public comments in support of or in opposition of the
Act.
59.

No other health care facilities are offered these opportunities and there is no rational basis

for the exclusion of all other actual and potential EMS providers in the state from these
geographic areas. Providers that are not Level I trauma centers will continue to provide 80% of
the ALS services in the state, with over 90% of the calls not involving trauma.

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60.

Furthermore, even if there were a basis to single out trauma centers for special treatment,

none having been shown, there is no rational basis to differentiate between Level I and Level II
trauma centers in the State, as the Act does, because they all have essentially the same clinical
and technical expertise. Indeed, Morristown, which is verified as a Level I trauma center by
ACS even though it only holds a Level II CN from the Department, is as qualified as Cooper,
RWJUH and University Hospital to provide ALS services in its municipality, but would
nonetheless be excluded from the benefits of the Act.
61.

In addition, there is no guarantee that the ALS and BLS services in Newark, New

Brunswick or Camden will be coordinated under the Level I trauma centers. The Act only
provides the three Level I trauma centers a right of first refusal to provide BLS services to a
municipality free of charge assuming the services are not provided by the municipality itself or
under a shared services agreement. Therefore, if a Level I trauma center does not accept the
terms of the BLS arrangement, it is under no obligation to provide BLS services to the
municipality.
COUNT 1
(Declaratory Judgment that P.L. 2015, c. 70 is Unconstitutional)
62.

The averments of Paragraphs 1-61 are incorporated by reference herein as if fully set

forth.
63.

The Declaratory Judgment Act, N.J.S.A. 2A-16:50 et seq. allows a party to seek a

declaration of rights, including that an act of the Legislature violates the New Jersey
Constitution.
64.

Article IV, Section VII, paragraph 9 of the New Jersey Constitution provides that the

Legislature shall not pass any private, special, or local laws[g]ranting to any corporation,
association, or individual any exclusive privilege, immunity or franchise whatever.
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65.

The Act is unconstitutional special legislation because it excludes without a rational basis

all New Jersey health care facilities already providing, or who might seek to provide, ALS
services from the privileges that the Act, if made effective, would afford to the current Level I
trauma centers, such as an exclusive ALS services area, right of first refusal for BLS services,
state subsidization of its EMS services start-up, and expedited CN review for expanding ALS
into other areas.
66.

The purpose of the Act, according to the sponsors belief in the Assembly bill, is that

linking ALS and BLS services under the States designated regional trauma centers will
centralize medical oversight, facilitate high-quality pre-hospital care, and support a more costefficient system. None of those stated purposes are accomplished by this legislation. The
exclusive privileges the Act grants are not reasonably related to the Acts stated purpose because,
as set forth in more detail above:
(a)

rather than centralize ALS services oversight, if made effective, at least

with respect to Camden and Burlington counties, the Act would carve up those services
municipality by municipality, resulting in the piecemeal delivery of ALS services;
(b)

rather than facilitate high-quality pre-hospital care, the Act only provides

to Cooper the exclusive right to provide ALS services in Camden, where Virtua has provided
uncontested high-quality pre-hospital care for 38 years; and to RWJUH an expedited route to
displace Capitals existing program in Hamilton; and
(c)

rather than support a more cost-efficient system for ALS services, the

piecemeal system proposed by the Act, if made effective, would divert taxpayer dollars to
subsidize the start-up of Coopers ALS services and, in Camden and Burlington Counties, and

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disrupt the efficiencies gained by the regional approach adopted by the Department in awarding
Virtua a two-county CN for ALS services.
67.

Accordingly, P.L. 2015, c.70 is unconstitutional special legislation in violation of Article

IV, Section VII, Paragraph 9 of the New Jersey Constitution.

WHEREFORE, plaintiffs Virtua Health, Inc. and Capital Health System, Inc.,
respectfully request that this Honorable Court:
1

Find and declare that the provisions of P.L. 2015, c.70 violate the New Jersey

Constitution;
68.

Permanently enjoin the defendants from implementing the provisions of P.L. 2015, c.70;

and
69.

Grant such other and further relief as may be appropriate.

DESIGNATION OF TRIAL COUNSEL
Christopher L. Soriano is designated trial counsel on behalf of the plaintiffs.
CERTIFICATION PURSUANT TO R 4:5-1
Pursuant to R.4:5-1, the undersigned hereby certifies to the best of his knowledge and

belief that the matter in controversy is not the subject of any other action pending in any court or
of a pending arbitration proceeding. There is no other action or arbitration proceeding
contemplated. There are no other parties who should be joined in the matter in controversy.
CERTIFICATION PURSUANT TO R. 1:38-7 AND 4:5-1(b)(3)
I certify that confidential personal identifiers have been redacted from documents now
submitted to the court, and will be redacted from all documents submitted in the future in
accordance with Rule 1:38-7(b).
DUANE MORRIS LLP
A Delaware Limited Liability Partnership

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By:
Dated: July 27, 2015

Christopher L. Soriano
Philip H. Lebowitz (pro hac vice forthcoming)
Seth A. Goldberg
Erin M. Duffy
Attorneys for Plaintiffs Virtua Health, Inc.
and Capital Health System, Inc.

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