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GUST ROSENFELD P.L.C.


One S. Church Ave., Suite 1900
Tucson, Arizona 85701-1627
Telephone: (520) 628-7070
Facsimile: (520) 624-3849
William S. Sowders Bar #022286
WSowders@gustlaw.com

Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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COCHISE REGIONAL HOSPITAL,

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Plaintiff,

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No.
DECLARATION OF DR. SETH
GUTERMAN IN SUPPORT OF
COMPLAINT AND EX PARTE
MOTION FOR (1) TEMPORARY
RESTRAINING ORDER AND (2)
ORDER TO SHOW CAUSE FOR
PRELIMINARY INJUNCTION

vs.
SYLVIA MATHEWS BURWELL, in her
official capacity as U.S. Secretary of
Health and Human Services; Marilyn
Tavenner, as Administrator of the Centers
for Medicare & Medicaid Services; and
Cara M. Christ, as Director of the Arizona
Department of Health Services,

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Defendant.

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I, Seth Guterman, MD FACEP, Chairman of the Board of Directors of the

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Cochise Regional Hospital (CRH) submit this declaration, pursuant to 28 U.S.C.


1746, in support of the Complaint (the Complaint) and CRHs Ex Parte Motion for
(1) Temporary Restraining Order and (2) Order to Show Cause for Preliminary
Injunction and hereby declare under penalty of perjury:
1.

I am Chairman of the Board of Directors of Douglas Community Hospital,

Inc., d/b/a Cochise Regional Hospital.


2.

I have an undergraduate degree in Biochemistry, with honors, from

Indiana University and a Doctor of Medicine, cum laude, from Ohio State University. I

have been a practicing doctor for over 25 years and have been the CEO of Peoples

Choice Hospital for over 4 years.


3.

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In January 2014, CRH purchased the operations of SAMC. The name was

changed to CRH.
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Since February 2014, the Arizona Department of Health Services

(ADHS) has made a total of nineteen site visits to the hospital. In 2012, ADHS made

only two site visits to SAMC. In 2013, ADHS made no site visits to SAMC. Most

hospitals have only one site visit per year.


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The dramatic increase in site visits is no coincidence. Connie Belden,

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who is Team Leader for medical facilities licensing at ADHS, told CRH in August 2014

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that CRH was complaint with all policy and procedures but intended to have CRHs

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hospital license revoked because she just does not like the nurses at CRH.

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In response, CRH informed Ms. Belden that CRH would seek a hearing

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before an Administrative Law Judge should she attempt to revoke CRHs license.

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Afterwards, Ms. Belden backs down and signs a basic agreement that CRH will

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continue to improve nursing services based upon the agreed upon criteria in a new

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agreement with ADHS.

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7.

In December 2014, CRH was granted a new hospital license.

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8.

From December 2014 to February 2015, the site visits decrease but do not

9.

In May 2015, Ms. Belden submitted a recommendation to CMS and HHS

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cease.

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to stop Medicare reimbursement to CRH because of inadequate nursing services. This

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was surprising to me because the very same nurses work or have worked at other

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hospitals and they are credentialed.

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10.

On May 8, 2015, CRH received a letter from CMS informing CRH that

CMS was terminating CRHs Medicare provider agreement due to inadequate nursing

services.

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CMS in its termination letter also informed CRH that CRH had 60 days in

which to appeal CMSs decision.


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In accordance with its administrative rights and remedies, CRH filed an

appeal on June 11, 2015.


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Over the next few weeks, CRH attempted on numerous occasions to get in

touch with CMS to discuss its appeal and see whether CRH could do anything in order
to resolve the situation.
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Finally, CRH was able to speak with Rufus Arther on July 2, 2015. On

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July 8, 2015, CRHs representatives flew to San Francisco to meet with Mr. Arther in

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person to present a plan of correction and discuss the disparity in the level of oversight

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of CRH.

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under advisement.

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Mr. Arther advised CRHs representatives that all factors would be taken

The next day Mr. Arther notified CRH that despite the progress made by

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the hospital and that fact that CRH is the only comprehensive healthcare facility in

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Douglas, Arizona, CMS would continue with its plans to terminate CRHs Medicare

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provider agreement effective July 10, 2015. CRH also advised Mr. Arther that this will

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cause irreparable financial and operational damage to the hospital and CMSs decision

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essentially would force the closure of CRH without sufficient due process and before

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CRH had exhausted its administrative rights and remedies.

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16.

If CRH closes, the 20,000 people living in Douglas, Arizona will be

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without access to top quality medical care. CRH is the only hospital in the southeastern

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border of Arizona for rural citizens in this area. All of the areas fire department

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