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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2006-859 NEW HAMPSHIRE ASSOCIATION OF COUNTIES & a. v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES Argued: May 23, 2007 Opinion Issued: August 17, 2007 Devine, Millimet & Branch, PA, of Concord (Robert E. Dunn, Jr. on the brief and orally), for the petitioners. Kelly A. Ayotte, attorney general (Andrew B. Livernois, assistant attorney general, on the brief and orally), for the respondent. BRODERICK, C.J. The respondent, Commissioner of the New Hampshire Department of Health and Human Services (commissioner), appeals an order of the Superior Court (McHugh, J.) denying his motion for summary judgment and granting summary judgment to the petitioners, the New Hampshire Association of Counties, five individual counties and four county commissioners. In an action for declaratory and injunctive relief, the petitioners claimed that the commissioner violated Part I, Article 28-a of the State Constitution by: (1) requiring the counties to pay a share of the cost of providing Medicaid-funded long-term care to recipients of old age assistance (OAA) and assistance for the permanently and totally disabled (APTD) who

received services in facilities not licensed by the State as residential care facilities; and (2) billing the counties, in fiscal year 2004, in excess of the amount allowed by statute. We affirm in part, vacate in part and remand. I The record supports the following. Since 1999, pursuant to RSA 167:18b (Supp. 2006), the department of health and human services (DHHS) has billed each county for a share of the cost of providing OAA and APTD recipients with two kinds of Medicaid-funded long-term care: (1) nursing facility services, see RSA 167:18-b, I; 42 U.S.C.A.

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