2006-859, NH ASSOCIATION OF COUNTIES & a. v. COMMISSIONER, NH DEPARTMENT OF HEALTH & HUMAN SERVICES

The respondent, Commissioner of the New Hampshire

general, on the brief and orally), for the respondent. Kelly A. Ayotte, attorney general (Andrew B. Livernois, assistant attorney

brief and orally), for the petitioners. Devine, Millimet & Branch, PA, of Concord (Robert E. Dunn, Jr. on the to press. Errors may be reported by E-mail at the following address:

COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN

NEW HAMPSHIRE ASSOCIATION OF COUNTIES & a.

editorial errors in order that corrections may be made before the opinion goes No. 2006-859 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Center (Crotched Mountain). The remaining recipients received services either

sought reimbursement received services at Crotched Mountain Rehabilitation based nursing services. More than half of the OAA and APTD recipients for whose care DHHS previously received either nursing facility services or home and communitydisputed billings until recently. but has since stopped. The remaining three counties received none of the services the bills, but eventually stopped doing so. One county paid for a longer time, disputed category of recipients on a monthly basis. Six counties initially paid DHHS has continued to bill the counties for the services provided to the

4 p. 2 2 U.S.C.A. § 1396d(a)(4)(A), (f). were for what the Medicaid statute refers to as “nursing facility services.” See Medicaid costs,” which at least suggests a finding that the disputed billings the trial court characterized the disputed billings as being for “[l]ong-term disputed category of recipients had received. However, in a section heading, categorize as “nursing homes,” to OAA and APTD recipients who had not recipients,” but recited no facts concerning the nature of the services the based care].” For its part, the trial court referred to the “disputed category of

but who had not been in a nursing home or in [home or community-

Medicaid recipients who apparently were receiving certain types of skilled care The counties describe the subjects of the disputed billings as “over 100 licensure classification of the facilities in which they received those services. patients who received “nursing facility services,” regardless of the State According to the commissioner, all of the disputed billings were for

Medicaid-funded long-term “skilled care,” in facilities that DHHS does not DHHS sought to recover half of the non-federal share of the cost of providing supplemental bills, which are at the heart of this dispute. With those bills, In May, November and December p. 2 2002, DHHS sent the counties a series of amount allowed by statute. We affirm in part, vacate in part and remand. § 1396n(b)-(d) (West 2003 & Supp. 2007); 42 C.F.R. §§ 441.350 et seq. (2006). under a Medicaid waiver program, see RSA 167:18-b, II; 42 U.S.C.A. & Supp. 2007); and (2) home and community-based nursing services provided see RSA 167:18-b, I; 42 U.S.C.A. §§ 1396d(a)(4)(A), 1396d(f), 1396r (West 2003 with two kinds of Medicaid-funded long-term care: (1) nursing facility services, billed each county for a share of the cost of providing OAA and APTD recipients b (Supp. 2006), the department of health and human services (DHHS) has The record supports the following. Since 1999, pursuant to RSA 167:18-

facilities; and ( p. 2 2) billing the counties, in fiscal year 2004, in excess of the received services in facilities not licensed by the State as residential care payments.

p. 3 that actually reimbursed DHHS for those services a credit against future

provided in the disputed facilities; and (2) require DHHS to give the counties order that would: (1) prohibit DHHS from billing the counties for services commissioner. As a remedy for their first claim, the petitioners sought an

imposed by statute upon “all nursing facilities.” Crotched Mountain does not pay the nursing facility quality assessment, a fee

assuming

beds in Greenfield, the town where Crotched Mountain is located. In addition,

and therefore unconstitutional, the New Hampshire Association of Counties mandates within the meaning of Part I, Article 28-a of the State Constitution, arguendo that the Counties are correct in their contention that they billings in excess of $60 million for fiscal year 2004 were both unfunded petitioners’ summary judgment motion, the commissioner argued that “even some manner. The petitioners moved for summary judgment. In an objection to the would not have done so for recipients in facilities that it had not certified in DHHS division of public health services shows that there are no nursing home statutory licensure classifications. A “bed need report” prepared in 2005 by the demonstrate, that the bureau’s health facility categories are based upon the

“nursing homes” or receiving home and community-based nursing services and Asserting that billings for OAA and APTD recipients who were not in reasonable dispute that Medicaid has agreed to pay the federal share, and funded services in Crotched Mountain and other facilities, it seems beyond refused to pay bills for the excess amount over the cap of $2,109,8[8]6.56.” “nursing.” Both sides appear to assume, although the record does not amount it sought to collect to exactly $60 million. The “counties have [all] for 2004, but provided them a credit of $2,109,886.56, thus lowering the IV(a). DHHS submitted bills to the counties in the amount of $62,109,886.56 APTD recipients was capped, by statute, at $60 million. See RSA 167:18-b, facility services and home and community-based nursing services for OAA and In 2004, the amount DHHS was allowed to bill the counties for nursing

of the cost of providing care to OAA and APTD recipients receiving Medicaidsides agree that their dispute concerns responsibility for the non-federal share “special hospital - rehabilitation” category rather than the category labeled to provide nursing facility services for Medicaid recipients. However, as both health facilities administration (bureau) placed Crotched Mountain in the judgment record, that Crotched Mountain is certified by the federal government document titled “HEALTH FACILITY CATEGORY CODES,” the DHHS bureau of On the other hand, DHHS asserts, without direct evidence in the summary

Crotched Mountain as an exemplar for all the disputed facilities. In a in hospitals in New Hampshire or in out-of-state facilities. Both sides treat p. 4 167:18-b, IV(a). With regard to RSA 167:18-b, I, the trial court ruled: Constitution by billing the counties more than the amount allowed by RSA

167:18-b, I; and (5) the commissioner violated Part I, Article 28-a of the State Constitution by billing the counties for services falling outside the scope of RSA by ruling that sovereign immunity does not preclude the relief it granted in this RSA 167:18-a; (4) the commissioner violated Part I, Article 28-a of the State

from them. In addition, the commissioner contends that the trial court erred the counties were not obligated to pay for the disputed services pursuant to amount DHHS bills the counties rather than the net amount it seeks to recover recipients; and (3) the cap on billings in RSA 167:18-b, IV(a) refers to the gross State; (2) RSA 167:18-a applies only to cash payments to OAA and APTD

language of RSA 167:18-b. these institutions are not nursing homes or facilities under the whether the moving party is entitled to judgment as a matter of law. moving party and, if no genuine issue of material fact exists, we determine relief rather than money damages, it was not barred by sovereign immunity; (3) immunity; (2) because the credit the petitioners sought constituted equitable constitutional claim, the petitioners’ action was not barred by sovereign and APTD recipients in facilities other than nursing homes licensed by the 167:18-b, I, bars DHHS from billing the counties for services provided to OAA commissioner contends that the trial court erred by ruling that: (1) RSA merits, one related to sovereign immunity. Regarding the merits, the The commissioner raises four issues on appeal, three related to the

Guaranty Assoc. v. Elliot Hosp., 154 N.H. 571, 574 (2006). required of all nursing facilities under RSA 84-C:2, the Court finds N.H. Ins. issue have not paid a nursing facility quality assessment as evidence in the light most favorable to each party in its capacity as the non- because the Department does not dispute that the institutions at In reviewing the trial court’s summary judgment rulings, we consider the homes or nursing facilities in the State of New Hampshire, and

order from which the commissioner appeals, the trial court ruled that: (1) as a II

This appeal followed.

issue in this case are not and have never been licensed as nursing Because the Department does not dispute that the institutions at and that the credit they sought was barred by sovereign immunity. In the the petitioners’ entire action was barred by the doctrine of sovereign immunity 167:18-a.” The commissioner also moved for summary judgment, arguing that

RSA 167:18-b, those bills are permissible under the broader provisions of RSA have been improperly billed for the amount of the disputed funds pursuant to p. 5 5

necessarily, no constitutional violation. did not violate the statute; and (3) absent a statutory violation, there was, state for the amounts due under this section within 4 p. 5 5 days from home” in RSA 167:18-b, I; (2) under a proper construction of that term, DHHS created, but each county shall make monthly payments to the in the first instance from the public assistance fund hereby totally disabled recipients who are in nursing homes shall be made . . . relative to old age assistance or aid to the permanently and All expenditures in carrying out the purposes of this chapter

and that pay the nursing facility quality assessment, provides, in pertinent part: 167:18-b, I, to mean facilities that are licensed by the State as nursing facilities We limit ourselves to construing the relevant statutory language, which presented a genuine issue of material fact that precluded summary judgment. trial court agreed. In doing so, it construed the term “nursing homes” in RSA certification status of Crotched Mountain and the other disputed facilities term “nursing home” correctly, it would have determined that the federal

commissioner argues that: (1) the trial court misconstrued the term “nursing express no opinion on that aspect of the trial court’s ruling. Rather, the within the meaning of Part I, Article 28-a of the State Constitution, and so we court’s determination that the DHHS billing decisions at issue were “mandates” We begin by noting that the commissioner does not challenge the trial

provided to OAA and APTD recipients in State-licensed nursing facilities. The 167:18-b, I, only authorizes the State to seek reimbursement for services The commissioner further contends that if the trial court had construed the OAA and APTD recipients in facilities such as Crotched Mountain because RSA facility that is certified as a nursing facility by the federal Medicaid program. counties when DHHS billed them for a share of the cost of services provided to narrowly, and that the term “nursing home” should be construed to mean any The commissioner argues that the trial court construed RSA 167:18-b, I, too licensed as ‘nursing home[s] or facility[ies]’ by the State under RSA 1 p. 5 51-C:4.” ‘nursing facility’ were used within RSA 167:18-b to denote those facilities specifically, the trial court found “it logical that the terms ‘nursing home’ and

this action is a constitutional claim, it is not barred by the doctrine of sovereign

commissioner imposed an unconstitutional unfunded mandate upon the In their motion for summary judgment, the petitioners argued that the

challenge, and we do not consider, the trial court’s determination that because case, a credit against future DHHS billings. The commissioner does not p. 6 6

an outpatient rehabilitation clinic, ambulatory surgical center, hospice, or collection stations operated by laboratories; (4) “[f]acilities . . . operating as educational institutions; (2) home health care providers; (3) certain laboratories

us to limit the phrase to recipients who are in State-licensed nursing homes, facilities: (1) hospitals and infirmaries or health services maintained by per se. RSA 151:2, I, requires licensing for six classifications of health homes, because there is no statutory licensure classification for nursing homes suggestion to the contrary, DHHS has not licensed any facilities as nursing As a preliminary matter, we note that, notwithstanding the petitioners’

18 p. 6 6, 187 (2006). itself to determine its meaning. In the Matter of Baker & Winkler, 154 N.H. 167:18-b, I, contains an ambiguity that requires us to look beyond the statute RSA ch. 84-C (Supp. 2006). Because both interpretations are reasonable, RSA see RSA 151:2, I(e) (2005), that pay the nursing facility quality assessment, see

Medicaid program as nursing facilities. The petitioners, on the other hand, ask denote OAA and APTD recipients who are in facilities certified by the federal legislature intended the phrase “recipients who are in nursing homes” to with the federal Medicaid program in mind and that, as a consequence, the 1 p. 6 67:18-b, I. The commissioner contends that RSA 167:18-b, I, was adopted intend by using the phrase “recipients who are in nursing homes” in RSA The question of statutory construction we face is what did the legislature

other. In the Matter of Barrett & Coyne, 150 N.H. 520, 523 (2004). and, where reasonably possible, we construe statutes as consistent with each the statute considered as a whole. statutes concerning the same subject matter in interpreting any one of them advanced by the entire statutory scheme. Id. Moreover, we consider all legislature’s intent in enacting them, and in light of the policy sought to be 154 N.H. 13, 17 (200 p. 6 6). Our goal is to apply statutes in light of the consider the legislative history to aid our analysis. Cloutier v. City of Berlin, legislature did not see fit to include. Id. However, if a statute is ambiguous, we not consider what the legislature might have said or add language that the 50 percent of the non-federal share . . . . need not look beyond it for further indication of legislative intent, and we will words used. Id. When a statute’s language is plain and unambiguous, we statute, and, where possible, ascribe the plain and ordinary meanings to the

We are the final arbiters of the legislature’s intent, as expressed in the words of novo. In the Matter of Liquidation of Home Ins. Co., 154 N.H. 472, 479 (200 p. 6 6). The interpretation of a statute is a question of law, which we review de

RSA 1 p. 6 67:18-b, I (emphasis added).

granted to persons for which such county is liable, to the extent of notice thereof and shall reimburse said fund for all assistance facility is licensed

RSA 151, non-proprietary, defined as a nursing home for licensing purposes pursuant to “‘[n]ursing home’ [to] mean[ ] any institution or facility, whether proprietary or as a “residential care facility,” it is not accurate to say that any particular

definitions from 1969, the definition of “nursing home or facility” in RSA 151of the requirements set out in RSA 151-C:4. However, unlike either of the two 151-C:2, XXVI (2005), and found it logical to interpret RSA 16 p. 7 7:18-b, I, in light and Registration of Nursing Home Administrators,” the legislature defined 151:2, I(e). But while “nursing home” is listed as a kind of facility that qualifies facility” from the statute establishing the certificate of need process, Also during the 1969 legislative session, in “An Act Relative to the Licensing see RSA named, whether owned publicly or privately or operated for profit or not.” RSA For its part, the trial court pointed to a definition of “nursing home or must, necessarily, refer to a facility subject to license under RSA chapter 151. residential care facilities, board and care homes, or any other location, however 167:18-b, I, was first adopted, and both support the commissioner’s position. both were in effect in 1973 when the provision now denominated as RSA 459:1 (emphasis added). While the former definition was eventually repealed, legislature defined “‘[n]ursing [h]ome’ [to] mean[ ] any facility subject to license United States Department of Heath, Education and Welfare.” Laws 1969, definitions of “nursing home.” In “An Act Relative to Hospital Licensing,” the or the equivalent facility or facilities as defined by the secretary of the done so. To the contrary, in 1969, the legislature adopted two different

no such statutory classification of licensure. only facilities licensed by the State as nursing homes, because there simply is did nothing other than amend RSA chapter 151 (1964), the term “hereunder” not be limited to, nursing homes, sheltered care facilities, rest homes, 3 p. 7 79:2 (emphasis added), repealed by Laws 1979, 399:3. Because chapter 379 providing continuing nursing care for more than ten persons.” Laws 1969, hereunder which is maintained and operated for the express purpose of

“nursing home.” That is not to say, however, that the legislature has never As the petitioners acknowledge, RSA 16 p. 7 7:18-b does not define the term

decline the petitioners’ request to define the term “nursing homes” to include “nursing home” a separate statutory licensure classification. Accordingly, we facilities,” the statute provides that “[s]uch homes or facilities shall include, but “nursing,” but that administrative categorization is insufficient to make facilities; and (6) adult day care facilities. With regard to “residential care listing of “health facility category codes” includes a separate code labeled deformity, infirmity, or other physical disability is provided”; (5) residential care facilities. We understand that a bureau of health facilities administration with a variety of other kinds of facilities, are licensed as residential care

as a nursing home; under the statute, nursing homes, along

birthing center, or other entity where health care associated with illness, injury emergency medical care center, drop-in or walk-in care center, dialysis center, term. p. 8 3 p. 7 79 does not support the limitation the petitioners ask us to impose upon that

RSA 167:18-b, I, was first adopted, the definition of “nursing home” in chapter no separate statutory licensure classification for nursing homes in 1973, when by the State as residential care facilities or nursing homes. Because there was

evaluating nursing facilities. recognized that the federal government had an interest in and procedures for

to limit the term “nursing homes” in RSA 167:18-b, I, to those facilities licensed

first used the phrase “recipients who are in nursing homes” in RSA 167:18-b, I.

1969, four years before the initial adoption of RSA 167:18-b, I, the legislature Department of Health, Education and Welfare.” Laws 1969, 459:1. As early as Thus, there is no evidence supporting an inference that the legislature intended equivalent . . . facilities as defined by the secretary of the United States for residential care facilities, much less a classification for nursing homes. defined as nursing homes for the purposes of State licensing and “the when RSA 167:18-b, I, was first adopted, there was no licensure classification The legislature must be presumed to have been aware of the statutory licensing “nursing home” in RSA 167:18-b, I. See Home Insurance, 154 N.H. at 479. Finally, we turn to the context in which the legislature used the term definitions of “nursing home” that were in effect in 1973, when the legislature term “nursing home” in 1973. Accordingly, we turn to the two statutory statute could not have played any part in the legislature’s understanding of the

more strongly. That definition of “nursing home” includes both facilities not include a classification-specific schedule of licensing fees. In other words, The definition from chapter 459 favors the commissioner’s position even

establishes licensing fees based upon those classifications, 2003, which demonstrates that payment of the assessment established by that specifically identifies six classifications of facilities that require licensure and

Chapter 379 did

however named” that provided certain services. RSA 151:2 (1977). It also did institution, building, residence, private home, or other place or part thereof, licensure classification. It required licensing of any “hospital or other (2005), the version of RSA chapter 151 in force in 1973 had only a single

quality assessment; RSA chapter 84:C, which imposes that fee, was enacted in hospital licensing statute. That is because, unlike today, when RSA 151:2, I, reliance upon the fact that Crotched Mountain does not pay the nursing facility residential care facility, only that it be subject to license under the general in answering the question before us. Similarly unavailing is the petitioners’ not require a nursing home to be subject to license as a among other things, a facility subject to license under RSA chapter 151. The definition from chapter 379 provided that a nursing home was,

1 p. 9 995 – is silent with regard to licensing. Consequently, it is of little assistance C:2, XXVI – which was first adopted in 1985 and subsequently amended in 9

recipients receiving Medicaid-funded nursing facility services in institutions

at nursing facilities.

Titles XVIII and XIX of the Social Security Act.

phrase “recipients who are in nursing homes” to mean OAA and APTD the counties were billed. To make that point perfectly clear, we construe the Mountain and the other facilities housing OAA and APTD recipients for whom only half the non-federal share of nursing facility services provided in Crotched licensure. hospital services, see 42 U.S.C.A. § 13 p. 9 96d(a)(1) (West 2003 & Supp. 2007), but that the counties will be obligated to pay half the non-federal share of inpatient “nursing home” to include facilities such as Crotched Mountain does not mean

costs for such services must be in line with the rates paid for similar services services. However, when nursing facility services are provided in hospitals, the their residents defers to federal standards when facilities are certified under b, I, for services other than nursing facility services, such as inpatient hospital pertaining to the obligation of residential care facilities to evaluate the needs of 2003), which raises the specter of the counties being billed, under RSA 167:18upon, federal certification of nursing homes. For example, the statute provide nursing facility services, see 42 U.S.C.A. §§ 13 p. 9 96 l, 1396r(a) (West Title XIX, it is possible for facilities providing inpatient hospital services also to provide nursing facility services. But that is not the end of the matter. Under “nursing home” based upon federal certification standards rather than State 167:18-b, I, means any institution certified by the federal Medicaid program to recipients in institutions licensed by DHHS as residential care facilities. Based upon the foregoing, we hold that the term “nursing home” in RSA “nursing home,” to limit the applicability of RSA 167:18-b, I, to OAA and APTD XIX are “deemed licensed” and are exempt from annual inspections. 2006). And under RSA 151:5-b (2005), facilities certified under Titles XVIII and

enactments that continue the pattern of State recognition of, and reliance Our conclusion is further supported by subsequent legislative

the wording of RSA 167:18-b, I, as a whole favors a construction of the term recognized federal participation in funding the services at issue. On balance, N.H. at 47 p. 9 9, we conclude that the legislature did not intend, by using the term nursing homes,” but within RSA 167:18-b, I, itself, the legislature plainly language in the context of the statute as a whole, see Home Insurance, 154 Ins. Guaranty Assoc., 154 N.H. at 574, and our obligation to construe statutory

the legislature used the term “nursing home” in RSA 167:18-b, I, our obligation In light of the two statutory definitions of “nursing home” in force when

nursing homes.” To be sure, it also did not use the phrase “federally certified regime for health care facilities, yet it did not use the phrase “State licensed p. 10 “billings” to mean the gross amount billed, before the application of any offsets, commissioner argues that to the extent the trial court construed the term

167:18-a pertains not to reimbursement for medical services but to commissioner’s argument regarding RSA 167:18-a. counties have been billed for any such services, we decline to address the their rights when they declined to pay any of the disputed $2,109,886.56. The b, IV(a). The trial court agreed, and further ruled that the counties were within was $2,109,886.56 more than the $60 million cap established by RSA 167:18counties when DHHS billed them $62,109,886.56 for fiscal year 2004, which

trial court considered but rejected it, ruling, among other things, that RSA

services. Because the summary judgment record does not indicate that the

commissioner imposed an unconstitutional unfunded mandate upon the In their motion for summary judgment, the petitioners argued that the

167:18-a. Notwithstanding the untimely presentation of that argument, the 167:18-b, I, they were liable for half the costs of those services under RSA b, I, is vacated. Necessarily, the remedy awarded the counties is also vacated. half the non-federal share of the cost of the disputed services under RSA in facilities not certified by the federal government to provide nursing facility that the DHHS billings violated the State Constitution by violating RSA 167:18- services that do not qualify as nursing facility services and/or services provided the trial court’s grant of summary judgment to the petitioners on their claim 167:18-b, thus falling within the commissioner’s “even if,” would be medical exceeded its statutory authority by issuing the disputed billings. Accordingly, nursing homes,” the only services that would fall outside the coverage of RSA Based upon our construction of the phrase “recipients who are in

judgment, the commissioner argued that even if the counties were not liable for In his supplemental objection to the petitioners’ motion for summary

the petitioners are not entitled to judgment as a matter of law that DHHS IV

the doctrine of sovereign immunity. remedy imposed by the trial court – a credit against future billings – violates claim that they were billed unlawfully, we decline to determine whether the Because, at this point, the counties are not entitled to any remedy on the

Based upon our construction of “recipients who are in nursing homes,”

trial court construed that phrase differently, its order is vacated. certified by the Medicaid program to provide such services. To the extent the p. 11 11

obligated to pay in 2004. million to $58 million. We affirm the trial court’s ruling to that effect. b, III reduced the counties’ aggregate 2004 reimbursement obligation from $60

to the statutory arguments raised by the parties.

that the counties were within their rights not to pay any of the disputed We reach a different result with regard to the trial court’s determination

court never made any findings, regarding how much the counties were actually erroneous because the petitioners never presented any evidence, and the trial payment obligation to $58 million, he contends that the trial court’s ruling was IV(a), there appears to be no disagreement; both sides agree that RSA 167:18- Regarding the interplay between RSA 167:18-b, III and RSA 167:18-b,

regarding that aspect of the trial court’s ruling but, instead, confine ourselves unconstitutional unfunded mandate. Therefore, we again express no opinion billing in excess of the amount allowed by RSA 167:18-b, IV(a) would be an I, the commissioner does not contest the trial court’s determination that a As with his challenge to the trial court’s ruling regarding RSA 167:18-b,

RSA 167:18-b.

established by RSA 167:18-b, III reduced the cap on the counties’ actual 2004 (a) State fiscal year 2004–$60,000,000.

between July 1, 2004 and June 30, 2007 exceed: billings for the 12-month period of the state fiscal year, dated for which the counties are obligated and in no instance shall the federal share of the combined long-term care medicaid spending nursing facility services shall not exceed 50 percent of the nonsection for persons who have been determined eligible to receive IV. The total billings by all counties made pursuant to this

shall reduce the obligation of the counties under paragraph IV. year beginning July 1, 1998. . . . The credit under this paragraph addition, while the commissioner now concedes that the $2 million credit $2,000,000 against amounts due under this section for each fiscal counting when a corrected bill was sent out to replace an erroneous one. In III. The counties shall have an aggregate credit of erroneous bills to be counted toward the cap, and would allow for double for nursing services provide, in pertinent part: The statutory provisions limiting county liability for reimbursing DHHS

reading of the statute would lead to an absurd result because it would allow credits or adjustments, it erred. According to the commissioner, such a p. 12 12

court, upon remand, to address this issue to the extent necessary.

may or may not have been made by the trial court, but we encourage the trial determine that if it did so, it erred. We will not pass upon a legal ruling that unclear whether the trial court reached such a legal conclusion, but asks us to

offsets, or adjustments are made. The commissioner concedes that it is

whether the term “billings” applies only to gross billings, before any credits, actually did reimburse DHHS for 2004, and there still remains a legal issue: DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred. $2,109,886.56. However, the record does not indicate how much the counties

totaling $62,109,886.56 for 2004 and that the counties refused to pay $2,109,886.56. It is undisputed that DHHS submitted bills to the counties