Case 1:11-cv-00358-SM Document 50

Filed 09/23/11 Page 1 of 3

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

OBJECTION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION 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, objects to Plaintiffs Motion for Preliminary Injunction, Document 3. In support of this objection, Defendant states the following. 1. Plaintiffs, ten of the states thirteen non-critical access hospitals and one John

Doe individual Medicaid recipient, filed this lawsuit against the Commissioner of the Department of Health and Human Services regarding a number of legislative and departmental actions since 2005 that have reduced the reimbursement rates for Medicaid in-patient and outpatient services and that eliminated disproportionate share payments to non-critical access hospitals in the FY 2012/2013 budget. Complt. Doc. # 1. 2. On July 25, 2011, Plaintiffs filed a Motion for Preliminary Injunction, requesting

that the federal court enjoin each of the changes and require the state to revert to prior payments levels. Doc. # 3.

Case 1:11-cv-00358-SM Document 50 2 3.

Filed 09/23/11 Page 2 of 3

Plaintiffs must satisfy the following four essential criteria in order to prevail on

their request for preliminary injunctive relief: (1) that Plaintiffs have exhibited a likelihood of success on the merits; (2) that Plaintiffs will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on Defendant; and (4) that the public interest will not be adversely affected by the granting of the injunction. 4. Plaintiffs have failed to make the requisite showing for the reasons stated in the

accompany memorandum of law, and their motion for a preliminary injunction should be denied. 5. A memorandum of law is filed concurrently herewith.

WHEREFORE, Defendant respectfully requests that this Honorable Court: A. B. Deny Plaintiffs Motion for Preliminary Injunction; and Grant such further relief that is just and equitable. Respectfully submitted, NICHOLAS A. TOUMPAS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW 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. Senior Assistant Attorney General Laura E. B. Lombardi, Bar No. 12821 Assistant Attorney General New Hampshire Attorney Generals Office 33 Capitol Street

Case 1:11-cv-00358-SM Document 50 3

Filed 09/23/11 Page 3 of 3

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.

_Nancy J. Smith________________ Nancy J. Smith Bar # 9085 Date: September 23, 2011

665703.njs