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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE DARTMOUTH-HITCHCOCK CLINIC AND : MARY HITCHCOCK MEMORIAL HOSPITAL, : D/B/A DARTMOUTH-HITCHCOCK, ET AL. : : Plaintiffs, : : v. : : NICHOLAS A. TOUMPAS, in his official : capacity as Commissioner of the New Hampshire : Department of Health and Human Services, : : Defendant. :

CIVIL ACTION No.

SWORN DECLARATION OF EMILY P. FEYRER IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION I, Emily P. Feyrer, declare under penalty of perjury that the following is true and correct: 1. I am counsel to the Provider Plaintiffs in the above-captioned matter. I have

personal knowledge of the facts stated herein. 2. Attached herewith as Exhibit A is a true and correct copy of the Medicaid

Program; Methods for Assuring Access to Covered Medicaid Services, 76 Fed. Reg. 88 (proposed May 6, 2011) (to be codified at 42 C.F.R. pt. 447). 3. Attached herewith as Exhibit B is a true and correct copy of the State of New

Hampshire, State Plan Under Title XIX of the Social Security Act (State Plan), Attachment 4.19 A, Page 6, Inpatient Hospital Services, Public Process for Determination of Rates, Effective Date 4/1/98. 4. Attached herewith as Exhibit C is a true and correct copy of a letter dated

October 30, 2008, to Representative Marjorie K. Smith, Chairman of the Fiscal Committee of the General Court, from Nicholas A. Toumpas concerning Medicaid reimbursement rate reductions.

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5.

Attached herewith as Exhibit D is a true and correct copy of the Fiscal

Committee of the General Court Minutes dated November 21, 2008. 6. Attached herewith as Exhibit E is a true and correct copy of a transcript of the

Fiscal Committee of the General Court meeting on November 21, 2008. 7. Attached herewith as Exhibit F is a true and correct copy of Executive Order

2008-10 signed by Governor John H. Lynch on November 21, 2008. 8. Attached herewith as Exhibit G is a true and correct copy of a letter dated

February 25, 1993, to Gary Carter, then-President of the New Hampshire Hospital Association from Harry M. Bird, M.D. and Stanley Arnold concerning imposition of a tax on hospital revenue. 9. Attached herewith as Exhibit H is a true and correct copy of the New Hampshire

Department of Health and Human Services, Office of Medicaid Business and Policy, presentation to House Finance Committee Division III dated February 7, 2011. 10. Attached herewith as Exhibit I is a true and correct copy of a report, Review of

New Hampshires Medicaid Disproportionate Share Hospital Payments During Federal Fiscal Year 2004, prepared by the United States Department of Health and Human Services, Office of Inspector General (OIG), dated July 2007. 11. Attached herewith as Exhibit J is a true and correct copy of a July 19, 2011, press

release entitled, State Will Seek Reconsideration of HHS Decision On 2004 DSH Audit, Appeals Board Claims 2004 Global Agreement Does Not Cover Audit Issues, issued by the New Hampshire Department of Health and Human Services Public Information Office.

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12.

Attached herewith as Exhibit K is a true and correct copy of the State Plan,

Attachment 4.19-A, Page 5e, Disproportionate SharePayment Adjustment, Effective Date 07/01/2003. 13. Attached herewith as Exhibit L is a true and correct copy of a letter dated

November 9, 2010 to Representative Marjorie K. Smith, Chairman of the Fiscal Committee of the General Court, and Governor John H. Lynch from Nicholas A. Toumpas requesting a schedule of payments for reimbursement of uncompensated care costs. 14. Attached herewith as Exhibit M is a true and correct copy of the Fiscal

Committee of the General Court Minutes, November 15, 2010. 15. Attached herewith as Exhibit N is a true and correct copy of Governor John H.

Lynchs Budget Address, February 15, 2011, which was downloaded from the State of New Hampshires website, www.nh.gov, on July 14, 2011. 16. Attached herewith as Exhibit O is a copy of excerpts from the Governors

Operating Budget for Fiscal Years ending June 30, 2012-2013, as submitted by John H. Lynch, Governor. For ease of reference, this excerpt has been modified by counsel to highlight certain provisions relating to the Medicaid Enhancement Tax and the Uncompensated Care Fund. 17. Attached herewith as Exhibit P is a true and correct copy of the State of New

Hampshire Department of Health and Human Services House Budget Reduction Options SFY12-13, dated March 9, 2011. 18. Attached herewith as Exhibit Q is a true and correct copy of the State of New

Hampshire Department of Health and Human Services Orientation to Medicaid & CHIP Programs, SFY 2012-2013 Budget, Senate Phase Medicaid Overview, dated April 7, 2011.

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19.

Attached herewith as Exhibit R are (a) a true and correct copy of a letter dated

May 24, 2011, to Dianne Heffron, Director of the Financial Management Group, Centers for Medicare & Medicaid Services (CMS), from Stephen M. Ahnen, President of the New Hampshire Hospital Association (NHHA), requesting confirmation of the CMS policy regarding the necessary scope of taxation applicable to tax imposed on hospitals net patient service revenue, together with four attachments to the letter, (b) a true and correct copy of a letter dated June 17, 2011, from Ms. Heffron in response to Mr. Ahnens May 24, 2011 letter, and (c) a true and correct copy of a letter dated June 30, 2011, from Nicholas A. Toumpas, New Hampshire Department of Health and Human Services Commissioner, to Richard R. McGreal, Associate Regional Administrator of CMS Division of Medicaid and Childrens Health, concerning the May 24, 2011, and June 17, 2011, correspondence between NHHA and CMS. 20. Attached herewith as Exhibit S is a copy of excerpts from New Hampshire Laws

of 2011, Chapter 223. For ease of reference, this excerpt has been modified by counsel to highlight certain provisions relating to Provider Payments, the Uncompensated Care Fund and the Medicaid Enhancement Tax. 21. Attached herewith as Exhibit T is a true and correct copy of the New Hampshire

Department of Health and Human Services, Office of Medicaid Business and Policy worksheet setting forth the formula for DSH funding for critical access hospitals, dated March 11, 2011. 22. Attached herewith as Exhibit U is a true and correct copy of Standard & Poors

RatingsDirect on the Global Credit Portal, New Hampshire Provider Tax Changes Create Negative Implications For Some Health Care Providers, Uncertainty For Others, dated July 20, 2011, which was downloaded on July 21, 2001, from the Standard & Poors website, www.standardandpoors.com/ratings.direct.

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23.

Attached herewith as Exhibit V is a true and correct copy of the State Plan,

Section 7General Provisions 7.1 Plan Amendments, Effective Date November 1, 1991. I DECLARE, under penalty of perjury, that the foregoing is true and correct. Executed on this 25th day of July, 2011. By: /s/ Emily P. Feyrer Emily P. Feyrer, Esq.

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