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Court Rules that Declaratory Judgment Action Will Proceed

Posted: November 15, 2013

Families waiting for the judge Nov14 2013

Court Rules that Declaratory Judgment Action Will Proceed

November 14, 2013 — Hillsborough Superior Court North Judge Gillian Abramson ruled this morning that the Declaratory Judgment action filed by plaintiffs, including the Area Agency developmental services system and individuals with developmental disabilities and their families, will proceed and set December 6, 2013 as the deadline for the plaintiffs’ summary judgment motion. The Declaratory Judgment action was filed by nine of the ten area agencies and a number of individual plaintiffs last summer. The State of New Hampshire requested that this case be dismissed maintaining that long term services are not currently included in Managed Care and that the “Commissioner is taking into account stakeholder engagement.”

Judge Abramson denied the state’s motion to dismiss and allowed the plaintiffs’ request to file a summary judgment motion by December 6. This decision is important since it gives the plaintiffs legal standing to challenge whether they are subject to Medicaid managed care for their long-term care services as the state moves forward with its plan.

The Declaratory Judgment action asks the court to rule on whether the legislature even intended to include the developmental services in managed care as described in Senate Bill 147 (SB147). The plaintiffs contend that the technical language of the 2011 law that brought managed care to New Hampshire specifically carves out the developmentally disabled. They say they were given assurances as the bill was being debated that long-term services for those clients weren’t part of the package. The Department of Health and Human Services, they argue, only included those services after the law was signed, doing so in a way that lacked transparency. Thomas Quarles, Jr., with the law firm Devine, Millimet, & Branch, represents the plaintiffs. He says the $2.2 billion contracts DHHS agreed to with the managed care organizations, or MCOs, lack any protections for disabled Medicaid recipients.

Following are opening remarks from Thomas Quarles, who described the plaintiffs’ position to the court as follows:

Tom Quarles: Your honor, we are puzzled why we’re here. I think you can discern from the pleadings that we believe the state has completely the wrong analysis where this case is postured procedurally. Clearly, we have a right to seek a Declaratory Judgment on the effect and the scope of this law passed in 2011. The state seems to either not understand or to be deliberately obfuscating what the issues are in order to delay reaching this case on the merits. And by that I mean that they are advocating that this case is not ripe for decision, that we don’t have standing to bring these claims, because the actual details and parameters of how the Department of Health and Human Services is going to implement Managed Care for long term care services has yet to be, detailed, discerned, and rolled out.

We agree. We agree; that’s the facts of this case. But what they ignore is that this bill was passed in 2011 by the legislature. We say, it does not apply to optional Medicaid services through both its plain meaning and its legislative history. That makes it ripe the day it passed for declaratory judgment actions.

Judge: Your position is the law has been enacted.

Tom Quarles: There’s no dispute it’s been enacted. And of course, that entitles us to a Declaratory Judgment relief, as you’ve seen in the pleadings.

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