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Tri-State Memorial Hospital v. United States, No. 2:25-cv-00181-TOR (E.D. Wash.), Answer to First Amended Complaint (ECF No. 40), June 11, 2026

Summary

The United States' Answer to First Amended Complaint, ECF No. 40, filed June 11, 2026 in Tri-State Memorial Hospital v. United States of America, Case No. 2:25-cv-00181-TOR, in the U.S. District Court for the Eastern District of Washington. The answer responds paragraph by paragraph to the hospital's complaint about Employee Retention Credit (ERC) refunds under the CARES Act, admitting some paragraphs, denying others and stating lack of sufficient information on others. For example, it admits that Tri-State applied for an ERC refund and denies that the IRS engaged in a lengthy delay. It invokes equitable recoupment to offset any recovery and asks for judgment for the United States and costs. The signature block carries /s/ Charles J. Butler.

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Cite this document

“Tri-State Memorial Hospital v. United States, No. 2:25-cv-00181-TOR (E.D. Wash.), Answer to First Amended Complaint (ECF No. 40), June 11, 2026.” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/tri-state-memorial-hospital-v-united-states-no-2-25-cv-00181-tor-e-d-w-114b116fd9/, SHA-256 3cd208949377c03ba567ae6007ff1af0cb430ac7098b58bb7ad091a3affae32a.

Full text

Case 2:25-cv-00181-TOR     ECF No. 40        filed 06/11/26   PageID.431   Page 1 of
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 1   BRETT SHUMATE
     Assistant Attorney General
 2
 3   JOSHUA WU
     Deputy Assistant Attorney General
 4   Tax Litigation Branch
 5   CHARLES J. BUTLER
     Assistant Director
 6   Tax Litigation Branch
 7   Civil Division, Department of Justice
     P.O. Box 683
 8   Washington, DC 20044
     (202) 514-6062
 9   Charles.J.Butler@usdoj.gov
10
     Counsel for the United States
11
12
                        UNITED STATES DISTRICT COURT
13
                       EASTERN DISTRICT OF WASHINGTON
14
15
     TRI-STATE MEMORIAL HOSPITAL,                     Case No. 2:25-cv-00181-TOR
16
                  Plaintiff,
17
                                                      UNITED STATES’ ANSWER TO
18    v.                                              FIRST AMENDED COMPLAINT
19
     UNITED STATES OF AMERICA,
20
                  Defendant.
21
22
23
24         The United States responds to Plaintiff Tri-State Memorial Hospital’s First
25   Amended Complaint as follows:
26
27   Complaint Paragraph 1: In March 2020, the federal government enacted the
28   CARES Act to aid businesses and individuals in response to the unprecedented
     ANSWER TO FIRST AMENDED COMPLAINT            1
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 1   public health crisis caused by the COVID-19 pandemic. The CARES Act was
 2   passed with large bipartisan support in Congress and was signed into law by
 3   President Trump.
 4   Answer: Admits.
 5
 6   Complaint Paragraph 2: The CARES Act created the Employee Retention Credit
 7   (“ERC”) for employers who continued to pay qualified wages to their employees
 8   during 2020 and 2021. The statute created a tax credit against applicable
 9   employment taxes for each calendar quarter in which a business was eligible. See
10   CARES Act § 2301(a); I.R.C. § 3134(a).
11   Answer: Admits.
12   Footnote 1: See the Coronavirus Aid, Relief, and Economic Security Act, Pub. L.
13   No. 116-136, 134 Stat. 281 (2020), as amended by § 206 and § 207 of the
14   Taxpayer Certainty and Disaster Tax Relief Act (hereinafter the “Relief Act”),
15   enacted as Division EE of the Consolidated Appropriations Act of 2021 Pub. L.
16   No. 116-260, 134 Stat. 3038 (2020) (hereinafter, “Consolidated Appropriations
17   Act”), and American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 8
18   (2021) (codified at I.R.C. § 3134) (hereinafter, “American Rescue Plan Act”)
19   (providing extensions through January 1, 2022).
20   Answer: Footnote 1 consists of citations to statutes and does not require a
21   response.
22
23   Complaint Paragraph 3: According to the United States Department of the
24   Treasury, the department to which the Internal Revenue Service (“IRS”) belongs,
25   the CARES Act and the Coronavirus Response and Consolidated Appropriations
26   Act of 2021 “provided fast and direct economic assistance for American workers,
27   families, small businesses, and industries.”
28
     ANSWER TO FIRST AMENDED COMPLAINT            2
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 1   Answer: The United States admits that the IRS is a bureau of the Department of
 2   Treasury. The United States lacks sufficient information to admit or deny the
 3   remaining allegations in paragraph 3.
 4   Footnote 2: U.S. Dep’t of the Treasury, About the CARES Act and the Consol.
 5   Appropriations Act, (last visited Aug. 19, 2024),
 6   https://home.treasury.gov/policyissues/coronavirus/about-the-cares
 7   act#:~:text=U.S.%20Department%20of%20the%20Treasury,-
 8   Search&text=The%20Coronavirus%20Aid%2C%20Relief%2C%20and,%2C%20s
 9   mall%20businesses%2C%20and%20industries.
10   Answer: Footnote 2 appears to cite a webpage that no longer exists and does not
11   require a response.
12
13   Complaint Paragraph 4: Tri-State qualified for the ERC under the text of the
14   CARES Act and applied for a refund with the IRS. After a lengthy delay, the IRS
15   has failed to process Plaintiff’s claims for an ERC refund.
16   Answer: The United States admits that Tri-State applied for an ERC refund and
17   denies that the IRS engaged in a lengthy delay. The United States lacks sufficient
18   information to admit or deny the remaining allegations in paragraph 4.
19
20   Complaint Paragraph 5: Tri-State brings this lawsuit to obtain the credits it is
21   entitled to receive under the CARES Act.
22   Answer: The United States admits that Tri-State brings this suit to obtain ERCs.
23   The United States otherwise lacks sufficient information to admit or deny the
24   allegations in paragraph 5.
25
26   Complaint Paragraph 6: The Court has subject matter jurisdiction under 28
27   U.S.C. §§ 1331, 1340 and 1346, I.R.C. § 7422, and 5 U.S.C. §§ 702, 704, and 706.
28
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 1   Answer: The United States admits that, if Tri-State duly filed claims for refund
 2   with the IRS and otherwise met jurisdictional prerequisites, the Court has
 3   jurisdiction under 28 U.S.C. §§ 1340 and 1346(a)(1). The United States otherwise
 4   denies the allegations in paragraph 6.
 5
 6   Complaint Paragraph 7: Venue is proper under 28 U.S.C. § 1391(e)(1) and
 7   § 1402 because Tri-State maintains its principal place of business and/or principal
 8   office in this district in Clarkston, Washington and a substantial part of the events
 9   giving rise to this action occurred in this district.
10   Answer: Admits.
11
12   Complaint Paragraph 8: Tri-State is a nonprofit corporation organized in the
13   State of Washington with its principal place of business in Clarkston, Washington.
14   Tri-State Memorial Hospital was originally incorporated on November 6, 1947, as
15   Asotin County Memorial Hospital, Inc. Tri-State Health operates as a not-for-profit
16   healthcare provider, delivering a broad spectrum of medical services, including
17   primary and specialty care, surgical procedures, outpatient services, and wellness
18   initiatives. Tri-State’s mission is to provide high quality healthcare throughout the
19   Clarkston community and beyond.
20   Answer: The United States lacks sufficient information to admit or deny the
21   allegations in paragraph 8.
22
23   Complaint Paragraph 9: The United States of America is the Defendant.
24   Answer: Admits.
25
26   Complaint Paragraph 10: In the beginning of 2020, COVID-19 swept through
27   the United States and the federal, state, and local governments issued historically
28   unprecedented orders to stem the spread of the disease. They issued lockdowns,
     ANSWER TO FIRST AMENDED COMPLAINT              4
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 1   required businesses to use Personal Protective Equipment (PPE), restricted group
 2   gatherings, added restrictions on health care providers, and forced business
 3   closures. Those orders had an expected side effect—they exacerbated the already
 4   substantial disruptions to the economy from the pandemic.
 5   Answer: The United States lacks sufficient information to admit or deny the
 6   allegations in paragraph 10.
 7
 8   Complaint Paragraph 11: Congress swiftly acted to mitigate the economic fallout
 9   from widespread business impairments and job losses stemming from COVID-19
10   and government orders. In March 2020, Congress enacted the CARES Act.
11   Answer: The United States admits that in March 2020, Congress enacted the
12   CARES Act. The United States lacks sufficient information to admit or deny the
13   remaining allegations in paragraph 11.
14
15   Complaint Paragraph 12: The CARES Act provided sweeping economic
16   support. As articulated by several members of Congress, one of the primary goals
17   of the CARES Act was to provide billions in assistance to businesses so they could
18   keep workers on their payrolls. Along with the ERC, the CARES Act authorized
19   direct payments to households and businesses on expedited timelines through
20   emergency measures such as the Paycheck Protection Program (PPP) and
21   Economic Impact Payments. See CARES Act §§ 1102, 6428.
22   Answer: The United States lacks sufficient information to admit or deny the
23   allegations in the first sentence of paragraph 12. The United States admits the
24   remaining allegations in paragraph 12.
25   Footnote 3: See, e.g., 166 Cong. Rec. S1897 (2020) (Sen. Collins explaining that
26   the sponsoring Senators “kept in mind the common goal of protecting those
27   employees . . . who are at risk of being laid off because of the cashflow problems
28   of their employers” and had the “joint vision . . . to help small businesses and their
     ANSWER TO FIRST AMENDED COMPLAINT             5
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 1   employees make it through to the other side of this crisis by providing cashflow
 2   assistance quickly to employers who agree to keep their workers on the payroll”);
 3   166 Cong. Rec. E347 (2020) (Rep. Adams explaining that she supported the
 4   CARES Act “because it provides billions in assistance to our number one job
 5   creators, our small businesses, as they look to make payroll and keep their workers
 6   employed”); 166 Cong. Rec. E343 (2020) (Rep. Crist voicing his support of the
 7   CARES Act because it “provides over $350 billion for small businesses on Main
 8   Street in grants, forgivable loans, and tax credits so they can make payroll and pay
 9   monthly bills to keep their businesses afloat”).
10   Answer: Footnote 3 appears to quote from the Congressional Record and does not
11   require a response.
12
13   Complaint Paragraph 13: The ERC program was a significant part of the
14   CARES Act and central to accomplishing the Act’s goal of encouraging businesses
15   to keep workers on their payrolls. The ERC program created a tax credit for
16   employers who were adversely affected by COVID-19 but nonetheless continued
17   to pay qualified wages, including some health plan expenses, to their employees.
18   See CARES Act § 2301; I.R.C. § 3134(c)(3); FS-2020-05 (May 2020). By helping
19   businesses maintain their employees, the ERC program also sought to lower
20   enrollments in public assistance programs—like Unemployment Insurance and
21   Medicaid—by people who might lose their jobs.
22   Answer: The United States lacks sufficient information to admit or deny the
23   allegations in the first and third sentences of paragraph 13. The United States
24   admits the allegations in the second sentence.
25   Footnote 4: See also U.S. Dep’t of the Treasury, Emp. Retention Tax Credit: What
26   You Need to Know, (last visited Aug. 19, 2024),
27   https://home.treasury.gov/system/files/136/Employee-Retention-Tax-Credit.pdf.
28   Answer: Footnote 4 cites a link to a document and does not require a response.
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 1   Complaint Paragraph 14: To ensure the program’s effectiveness, Congress made
 2   the ERC program widely available. Congress amended the CARES Act to require
 3   the IRS to conduct a public information campaign about the program in
 4   coordination with the Small Business Administration to encourage businesses to
 5   participate. See Relief Act § 207(i) (requiring government “outreach” to businesses
 6   by giving “notice about the credit allowed under this section and the requirements
 7   for eligibility to claim the credit”). It amended the Act to retroactively remove
 8   certain categorical bars on ERC eligibility for qualifying quarters in 2020. See
 9   Relief Act § 206. It also amended the CARES Act to relax the program’s eligibility
10   requirements and increase the amount of the credit for qualifying quarters in 2021.
11   See Relief Act § 207(b), (d).
12   Answer: The United States lacks sufficient information to admit or deny the
13   allegations in the first sentence of paragraph 14. The United States admits the
14   remaining allegations in paragraph 14.
15   Footnote 5: See also U.S. Dep’t of the Treasury, Treasury Encourages Bus.
16   Impacted by COVID-19 to Use Emp. Retention Credit (Mar. 31, 2020),
17   https://home.treasury.gov/news/press-releases/sm962.
18   Answer: Footnote 5 cites a Treasury press release and does not require a response.
19   Footnote 6: See also IRS Notice 2021-20(II.)(A.) (Mar. 1, 2021) (“Section 206 of
20   the Relief Act amended section 2301 of the CARES Act to permit an employer that
21   received a PPP loan to be eligible to claim an employee retention credit under
22   section 2301 of the CARES Act . . . , effective retroactive to the original effective
23   date of the CARES Act.”).
24   Answer: Footnote 6 cites to a Treasury press release and does not require a
25   response.
26
27
28
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 1   Complaint Paragraph 15: The original CARES Act, signed into law in March
 2   2020, provided a tax credit equal to 50% of qualified wages paid to employees, up
 3   to a maximum of $10,000 per employee of qualified wages for the year 2020.
 4   Answer: Admits.
 5
 6   Complaint Paragraph 16: In late 2020, the CARES Act was amended to raise the
 7   credit and extend its duration. The amendment allowed eligible employers to claim
 8   70% of the qualified wages paid with a cap of $10,000 per employee of qualified
 9   wages for each calendar quarter. Relief Act § 207(b); see also I.R.C. § 3134(a),
10   (b)(1)(A). This increased credit was extended to the first and second quarters of
11   2021, and eventually through the third quarter of 2021. Relief Act § 207(a);
12   American Rescue Plan Act (providing further relief of 70% of a cap of $10,000 for
13   the third and fourth quarters of 2021).
14   Answer: Admits.
15
16   Complaint Paragraph 17: In sum, an eligible employer could claim a 2020 credit
17   up to $5,000 per employee for the year, and, for 2021, the employer could claim a
18   credit up to $7,000 per employee per quarter.
19   Answer: Admits.
20
21   Complaint Paragraph 18: Unless otherwise excepted, qualified wages are wages
22   and compensation (subject to Social Security and Medicare taxes) paid by an
23   eligible employer to eligible employees and include the eligible employer’s
24   qualified health plan expenses that were properly allocable to such wages.
25   Answer: The United States admits that CARES Act § 2301(c)(5)(A) provides that
26   “wages” generally means wages as defined in 26 U.S.C. § 3121(a) and
27   compensation as defined in 26 U.S.C. § 3231(e). In addition, CARES Act
28   § 2301(c)(5)(A) provides that “wages” include amounts paid by an eligible
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 1   employer to provide and maintain a group health plan (as defined in 26 U.S.C.
 2   § 5000(b)(1)), but only to the extent that the amounts are excluded from the gross
 3   income of employees by reason of 26 U.S.C. § 106(a). The United States otherwise
 4   denies the allegations in paragraph 18.
 5
 6   Complaint Paragraph 19: The ERC was terminated for most employers in the
 7   fourth quarter of 2021 by the Infrastructure Investment and Jobs Act
 8   (“Infrastructure Act”). See IR-2021-242 (Dec. 6, 2021). Under the Infrastructure
 9   Act, only a recovery startup business may claim the ERC in the fourth quarter of
10   2021. Id.
11   Answer: Admits.
12
13   Complaint Paragraph 20: The ERC was available to businesses of many sizes,
14   but an eligible business generally had to meet one of two criteria for a given
15   quarter in 2020 or 2021: (1) a statutorily defined decline in the business’s gross
16   receipts when comparing an applicable quarter in 2020 or 2021 with the same
17   quarter in 2019, or (2) the business was fully or partially suspended due to a
18   governmental order during an applicable quarter in 2020 or 2021.
19   Answer: Admits.
20
21   Complaint Paragraph 21: A business qualifies as an “eligible employer” if it
22   suffered a statutorily required reduction in gross receipts in 2020 and 2021, as
23   compared to 2019. CARES Act § 2301(c)(2)(B); I.R.C. § 3134(c)(2)(A)(ii)(II).
24   Answer: Admits.
25
26   Complaint Paragraph 22: A qualifying quarter for 2020 is a quarter where the
27   business’s gross receipts were 50% less than the same quarter in 2019. CARES Act
28   § 2301(c)(2)(B).
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  1   Answer: Admits.
  2
  3   Complaint Paragraph 23: A qualifying quarter for 2021 is a quarter when the
  4   business’s gross receipts were 20% less than the same quarter in 2019. Relief Act §
  5   207(d); I.R.C. § 3134(c)(2)(A).
  6   Answer: Admits.
  7
  8   Complaint Paragraph 24: A business also qualifies as an “eligible employer” if it
  9   “is fully or partially suspended during the calendar quarter due to orders from an
 10   appropriate governmental authority limiting commerce, travel, or group meetings
 11   (for commercial, social, religious, or other purposes) due to the coronavirus disease
 12   of 2019 (COVID-19).” CARES Act § 2301(c)(2)(A)(i); I.R.C. §
 13   3134(c)(2)(A)(ii)(I).
 14   Answer: Admits.
 15
 16   Complaint Paragraph 25: The text of the CARES Act does not require anything
 17   additional for a business to qualify as an eligible employer under the suspension
 18   criteria.
 19   Answer: Denies.
 20
 21   Complaint Paragraph 26: In March 2021—roughly a year after Congress passed
 22   the CARES Act—the IRS published a 102-page guidance document titled “Notice
 23   2021-20” that addressed the full-or-partial-suspension test. See IRS Notice 2021-
 24   20 (Mar. 1, 2021).
 25   Answer: Admits.
 26
 27   Complaint Paragraph 27: The IRS did not follow the Administrative Procedure
 28   Act’s (“APA”) mandatory notice-and-comment process when issuing Notice 2021-
      ANSWER TO FIRST AMENDED COMPLAINT            10
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  1   20. Notice 2021-20 imposes several arbitrary and capricious requirements not
  2   found in either the text of the CARES Act or I.R.C. § 3134.
  3   Answer: Denies.
  4
  5   Complaint Paragraph 28: Nonetheless, Notice 2021-20 acknowledges several
  6   ways in which a business can qualify for the ERC under the suspension test. Notice
  7   2021-20 states that a business is partially suspended if “more than a nominal
  8   portion of its business operations are suspended by a governmental order.” IRS
  9   Notice 2021-20(III.)(C.), Q&A #11.7 A business may be partially suspended “as a
 10   result of the inability to obtain critical goods or materials from its suppliers
 11   because they were required to suspend operations.” Id. at Q&A #12. A business
 12   can also be partially suspended if government orders required the business to make
 13   modifications that have “more than a nominal effect on business operations.” Id. at
 14   Q&A #17.
 15   Answer: The United States admits that Notice 2021-20 provides advice on how a
 16   business can qualify for the ERC under the suspension test. The United States
 17   admits that paragraph 28 takes partial quotes from Notice 2021-20. The United
 18   States otherwise denies the allegations in paragraph 28.
 19   Footnote 7: Notice 2021-20 arbitrarily defines “a nominal portion” of a business’s
 20   operations as that portion of a business in which either “(i) the gross receipts from
 21   that portion of the business operations is not less than 10 percent of the total gross
 22   receipts . . . , or (ii) the hours of service performed by employees in that portion of
 23   the business is not less than 10 percent of the total number of hours of service
 24   performed by all employees in the employer’s business.” IRS Notice 2021-
 25   20(III.)(C.), Q&A #11. The statutory text does not impose a “nominal portion”
 26   requirement, nor does it impose a numerical threshold.
 27   Answer: The United States admits that footnote 7 partially quotes from a portion
 28   of Notice 2021-20 in which the IRS explains what it believes constitutes more than
      ANSWER TO FIRST AMENDED COMPLAINT           11
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  1   a nominal portion of business operations for purposes of the ERC. The United
  2   States otherwise denies the allegations in footnote 7.
  3
  4   Complaint Paragraph 29: The IRS has decided not to follow the plain text of the
  5   CARES Act or its Notice 2021-20.
  6   Answer: Denies.
  7
  8   Complaint Paragraph 30: In September 2023, the IRS unilaterally announced it
  9   was suspending its review and processing of new ERC claims. See IR-2023-169
 10   (Sept. 14, 2023). “During the ERC review period, the IRS continued to process
 11   claims received prior to September 2023. The agency processed 28,000 claims
 12   worth $2.2 billion and disallowed more than 14,000 claims worth more than $1
 13   billion.” IR-2024-169 (June 20, 2024). The IRS originally suggested its
 14   moratorium would end, and processing would resume, at the beginning of 2024.
 15   The IRS did not end the moratorium in 2024. The IRS partially lifted the
 16   moratorium for cases filed before January 31, 2024, yet the IRS continues to refuse
 17   to adhere to the statute.
 18   Answer: The United States admits that in September 2023, the IRS announced a
 19   moratorium on processing new ERC claims. The United States admits that on
 20   August 8, 2024, it lifted the moratorium for cases filed before January 31, 2024.
 21   And the United States admits that paragraph 30 quotes from IR-2024-169. The
 22   United States otherwise denies the allegation in Paragraph 30.
 23
 24   Complaint Paragraph 31: The IRS has claimed that it continues to process claims
 25   filed before the moratorium began on September 14, 2023, but it has done so “at a
 26   greatly reduced speed . . . .” IR-2023-169 (Sept. 14, 2023). In practice, the IRS has
 27   processed relatively few ERC claims since the moratorium began. The IRS has
 28
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  1   intentionally stalled the ERC program to such an extent that it has effectively
  2   suspended the program altogether.
  3   Answer: The United States admits that paragraph 31 quotes a few words from IR-
  4   2023-169. The United States otherwise denies the allegations in paragraph 31.
  5
  6   Complaint Paragraph 32: Tri-State qualifies for the ERC under the CARES Act
  7   because it partially suspended its business due to government orders in the first,
  8   second, and third quarters of 2021.
  9   Answer: The United States lacks sufficient information to admit or deny the
 10   allegations in paragraph 32.
 11
 12   Complaint Paragraph 33: During the pandemic, numerous state government
 13   orders partially suspended Tri-State’s business operations. The government orders
 14   significantly affected Tri-State’s operations by requiring Tri-State to isolate
 15   COVID-19 patients and cancel non-urgent procedures, reserve beds for COVID
 16   patients, reduce Tri-State’s usable space due to social distancing and barricade
 17   requirements, limit Tri-State’s available personnel through quarantine periods and
 18   COVID-19 protocols, and divert resources to vaccinate first responders, healthcare
 19   professionals, at-risk individuals, and the general community against COVID-19.
 20   Answer: The United States lacks sufficient information to admit or deny the
 21   allegations in paragraph 33.
 22
 23   Complaint Paragraph 34: On November 25, 2020, the Governor of the State of
 24   Washington, Jay Inslee, issued Proclamation 20-24.2 that imposed numerous
 25   restrictions from November 2020 to January 2022 on healthcare facilities.
 26   Proclamation 20-24.2 required Tri-State to comply with (1) over 30 separate
 27   requirements contained within the order itself, (2) guidance issued by the
 28   Washington Department of Health (“DOH”) and the Washington Department of
      ANSWER TO FIRST AMENDED COMPLAINT          13
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  1   Labor & Industries (“L&I”), and (3) guidance from the CDC regarding infection
  2   prevention and control, risk assessment and work restrictions for healthcare
  3   personnel potentially exposed to COVID-19, and the criteria for healthcare
  4   workers to return to work.
  5   Answer: The United States admits that on November 25, 2020, Governor Inslee
  6   issued Proclamation 20-24.2. The United States lacks sufficient information to
  7   admit or deny the remaining allegations in paragraph 34.
  8
  9   Complaint Paragraph 35: Proclamation 20-24.2 required Tri-State to develop
 10   and maintain an “expansion and contraction of care plan” responsive to the
 11   community’s COVID-19 assessment. Based on the proclamation, one of the
 12   following three phases would apply to the Hospital based on COVID assessments:
 13   Conventional Care Phase, Contingency Care Phase, or Crisis Care Phase. The
 14   Contingency Care Phase required the Hospital to ensure it had a COVID-19 surge
 15   capacity of 20 percent to continue providing “all appropriate clinical care” plus
 16   sufficient PPE. The Crisis Care Phase prohibited the Hospital from providing non-
 17   urgent care with limited exceptions for vaccinations and preventative care.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in paragraph 35.
 20
 21   Complaint Paragraph 36: To determine what Phase the hospital was operating in,
 22   Tri-State had to comply with the following monitoring and reporting obligations
 23   required by Proclamation 20-24.2:
 24   a. continuously monitor the COVID-19 status in the communities Tri-State serves;
 25   b. continuously monitor capacity in the health care system to ensure there are
 26   sufficient resources, including ventilators, beds, PPE, blood and blood products,
 27   pharmaceuticals, and trained staff available to combat any potential surges of
 28   COVID-19;
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  1   c. continuously monitor the supply of PPE and maintain sufficient access to PPE;
  2   and
  3   d. submit accurate and complete data, as required by any DOH guidelines, to the
  4   WA HEALTH data reporting system to allow for a state-wide common operating
  5   perspective on resource availability.
  6   If Tri-State failed to comply with these requirements, Proclamation 20-24.2
  7   prohibited it from performing any non-urgent services, procedures, or surgeries.
  8   Answer: The United States lacks sufficient information to admit or deny the
  9   allegations in paragraph 36.
 10
 11   Complaint Paragraph 37: The monitoring and reporting requirements burdened
 12   Tri-State’s operations with significant additional work. For example, the Director
 13   of Care Transition and Patient Flow at Tri-State reviewed COVID-19 trackers and
 14   charts daily to collect COVID-19 data and submit it.
 15   Answer: The United States lacks sufficient information to admit or deny the
 16   allegations in paragraph 37.
 17
 18   Complaint Paragraph 38: Tri-State diverted significant personnel hours to
 19   monitoring the number of available beds, assessing staffing levels to determine
 20   whether the Hospital fell within the Contingency Care or Crisis Care Phase, and
 21   securing and counting various supplies for COVID patients.
 22   Answer: The United States lacks sufficient information to admit or deny the
 23   allegations in paragraph 38.
 24
 25   Complaint Paragraph 39: At times throughout 2021, Tri-State was unable to
 26   maintain sufficient surge capacity and PPE in the Contingency Care Phase, so it
 27   was forced to suspend non-urgent procedures. While “non-urgent,” these
 28   procedures are neither medically insignificant to patients nor operationally
      ANSWER TO FIRST AMENDED COMPLAINT          15
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  1   insignificant to Tri-State. For example, Tri-State cancelled surgeries like total knee
  2   and hip replacements, knee and hip repairs, hernia repairs, transurethral resections
  3   of the prostate, and hysterectomies. This constituted a partial suspension of Tri-
  4   State’s business operations.
  5   Answer: The United States lacks sufficient information to admit or deny the
  6   allegations in paragraph 39.
  7
  8   Complaint Paragraph 40: Even when Tri-State was able to perform non-urgent
  9   procedures, its operations were still partially suspended.
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 40.
 12
 13   Complaint Paragraph 41: Due to surges in COVID-19 infection rates, Tri-State
 14   refrained from scheduling or cancelled non-urgent procedures during 2021. From
 15   January through September of 2021, Tri-State cancelled over 20 non-urgent
 16   procedures in compliance with Proclamation 20-24.2 due to lack of sufficient beds
 17   or staffing. Canceling procedures like these disrupted the daily work of Tri-State’s
 18   staff and physicians. Tri-State accordingly tried to avoid cancellations and preempt
 19   these disruptions to begin with. Tri-State personnel analyzed Tri-State’s COVID-
 20   19 infection rates, remaining space (which could be limited by reserves for surge
 21   capacity), supplies, and available staff to determine the number, if any, of non-
 22   urgent procedures to schedule. Tri-State was forced to materially limit the number
 23   of non-essential procedures it scheduled in 2021. These modifications constituted a
 24   partial suspension because they affected “more than nominal portions of the
 25   business operations.” See IRS Notice 2021-20 (“For example, an employer that
 26   maintains both essential and non-essential business operations, each of which are
 27   more than nominal portions of the business operations, may be considered to have
 28   a partial suspension of its operations if a governmental order restricts the
      ANSWER TO FIRST AMENDED COMPLAINT          16
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  1   operations of the non-essential portion of the business, even if the essential portion
  2   of the business is unaffected.”).
  3   Answer: The United States lacks sufficient information to admit or deny the
  4   allegations in paragraph 41.
  5
  6   Complaint Paragraph 42: Despite Tri-State’s planning, cancellations were
  7   inevitable due to unanticipated positive COVID-19 tests or because a patient
  8   experienced COVID-19 symptoms before their appointment or surgery. Tri-State
  9   cancelled these non-urgent procedures and appointments in compliance with the
 10   CDC’s Interim Infection Prevention and Control Recommendations for Healthcare
 11   Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic
 12   (“Infection Control Recommendations”) requirement that the Hospital reschedule
 13   patients who exhibited symptoms of or tested positive for COVID-19 within 10
 14   days of their scheduled appointment or procedure. When this happened, it was
 15   often not possible for the Hospital to schedule another patient in the patient’s
 16   place. Each cancelled procedure or appointment that Tri-State was unable to fill
 17   represented one less non-urgent patient the Hospital was able to treat that day.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in paragraph 42.
 20
 21   Complaint Paragraph 43: Tri-State’s non-essential procedures constituted “more
 22   than nominal portions” of its operations. For example, Tri-State’s inability to
 23   perform non-urgent medical care without interruption during 2021 resulted in a
 24   negative budget variance of approximately $4,600,000 from its anticipated in-
 25   patient revenue. Tri-State’s forecasted in-patient revenue for 2021 was already a
 26   pessimistic estimate based on the negative financial impact caused by COVID-19
 27   government orders in 2020. The negative variance of $4,600,000 represents a
 28   variance from its already suppressed forecast. Proclamation 20-24.2 partially
      ANSWER TO FIRST AMENDED COMPLAINT           17
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  1   suspended Tri-State’s operations by preventing the Hospital from performing non-
  2   urgent procedures during portions of 2021 and requiring the Hospital to divert
  3   extensive personnel hours, including overtime hours and travel personnel hours, to
  4   comply with the requirements of Proclamation 20-24.2 and other orders.
  5   Answer: The United States lacks sufficient information to admit or deny the
  6   allegations in paragraph 43.
  7
  8   Complaint Paragraph 44: Proclamation 20-24.2 required Tri-State to “[u]pdate
  9   [its] infection prevention policies and procedures” to reflect the CDC’s Infection
 10   Control Recommendations. In turn, the CDC’s Infection Control
 11   Recommendations required facilities to “screen and triage everyone entering a
 12   healthcare facility for signs and symptoms of COVID-19” by implementing the
 13   following procedures:
 14   a. limit and monitor points of entry to the facility,
 15   b. assess everyone entering the facility of symptoms of COVID-19 or exposure to
 16   anyone with a confirmed COVID-19 infection,
 17   c. properly manage anyone with a suspected or confirmed COVID-19 infection or
 18   who was exposed to a person with a suspected or confirmed COVID-19 infection,
 19   d. isolate patients in an exam room with the door closed, and
 20   e. maintain at least 6 feet of distance between patients waiting for care.
 21   Answer: The United States lacks sufficient information to admit or deny the
 22   allegations in paragraph 44.
 23
 24   Complaint Paragraph 45: To comply with Proclamation 20-24.2 and the CDC’s
 25   Infection Control Recommendations, Tri-State implemented COVID-19
 26   procedures. These procedures and their corresponding effects constituted a partial
 27   suspension of Tri-State’s business and affected more than nominal portions of Tri-
 28   State’s operations.
      ANSWER TO FIRST AMENDED COMPLAINT           18
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  1   Answer: The United States lacks sufficient information to admit or deny the
  2   allegations in paragraph 45.
  3
  4   Complaint Paragraph 46: Consistent with the CDC’s Infection Control
  5   Recommendations, Tri-State’s policy required it to “screen and triage” everyone
  6   entering its facility for “signs and symptoms of COVID-19.” As a part of this
  7   process, Tri-State (1) limited and monitored its entrances; (2) established and
  8   implemented COVID-19 screening procedures for all persons entering the
  9   Hospital; and (3) restricted or isolated anyone with a suspected COVID-19
 10   infection. Tri-State positioned its trained screeners at designated entrances within
 11   the Hospital. Tri-State’s screening procedures required Hospital personnel to ask
 12   all persons presenting at Tri-State about the following topics:
 13   a. Contact within the past 14 days with anyone infected with COVID-19
 14   or displaying COVID-19 like symptoms;
 15   b. Positive test for COVID-19 within the past 10 days;
 16   c. Direction from medical professional to monitor or quarantine due to potential
 17   COVID-19 infection; and
 18   d. New symptoms from list of symptoms associated with COVID-19.
 19   Answer: The United States lacks sufficient information to admit or deny the
 20   allegations in paragraph 46.
 21   Footnote 8: Tri-State’s Guidance For Severe Acute Respiratory Syndromes,
 22   SARS-CoV-1 and SARS-CoV-2, Middle East Respiratory Syndrome (MERS-
 23   CoV), and COVID-19 (“COVID-19 Guidance”) updated on January 6, 2021
 24   Answer: The United States lacks sufficient information to admit or deny the
 25   allegations in footnote 8.
 26   Footnote 9: Per Tri-State’s July 2021 updated screening guidance, fully vaccinated
 27   persons who were asymptomatic did not have to quarantine after COVID-19
 28   exposure.
      ANSWER TO FIRST AMENDED COMPLAINT          19
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  1   Answer: The United States lacks sufficient information to admit or deny the
  2   allegations in footnote 9.
  3
  4   Complaint Paragraph 47: As for hospital patients: if a patient responded “yes” to
  5   questions about the above topics, Tri-State quarantined the patient alone in a closed
  6   room, and Hospital personnel initiated a series of isolation procedures. The single
  7   room limitation reduced Tri-State’s room capacity because it could not place
  8   another patient into the room, even if the room normally accommodated two
  9   patients.
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 47.
 12
 13   Complaint Paragraph 48: The screening itself, in addition to the questionnaire,
 14   was time-consuming. For much of 2021, Tri-State took each patient’s temperature,
 15   tested the patient for COVID-19, and reported any positive results to the state of
 16   residence for the patient.
 17   Answer: The United States lacks sufficient information to admit or deny the
 18   allegations in paragraph 48.
 19
 20   Complaint Paragraph 49: When possible, Tri-State tried to screen patients by
 21   phone before their arrival. Tri-State personnel instructed patients with
 22   appointments to call ahead and inform the Hospital if they had any COVID-19
 23   symptoms. Tri-State personnel also called patients the day before their
 24   appointments to confirm the patient did not have any new COVID-19 symptoms
 25   and rescheduled appointments for any patients with COVID-19 symptoms who
 26   were seeking routine medical care or elective medical procedures. In certain cases,
 27   Tri-State tested patients multiple times for COVID-19 within a 24-hour period to
 28   determine appropriate isolation procedures.
      ANSWER TO FIRST AMENDED COMPLAINT          20
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  1   Answer: The United States lacks sufficient information to admit or deny the
  2   allegations in paragraph 49.
  3
  4   Complaint Paragraph 50: As for non-patient hospital guests: if a visitor
  5   responded “yes” to the COVID-19 screening questions, she was denied entry to
  6   Tri-State facilities. No visitors were allowed for COVID-19 positive patients
  7   except under certain circumstances, including the hospitalization of a minor child,
  8   end-of-life care, and visitation essential to a patient’s emotional health and well-
  9   being. Tri-State maintained a log-book of all visitors who entered patient rooms.
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 50.
 12
 13   Complaint Paragraph 51: Tri-State’s screening of visitors and its corresponding
 14   review of exceptions, which were performed to comply with CDC guidelines, led
 15   to massive administrative problems. Tri-State only granted visitor exceptions after
 16   discussions with Infection Control and Public Health personnel. Given their
 17   obvious importance to patients and their families, these decisions—determining
 18   when a patient was in end-of-life care and who could visit them—required
 19   extensive personnel time. And unsurprisingly, disagreements arose from these
 20   decisions—further disrupting operations.
 21   Answer: The United States lacks sufficient information to admit or deny the
 22   allegations in paragraph 51.
 23
 24   Complaint Paragraph 52: The disruptive and time-intensive nature of these CDC
 25   testing and screening procedures is demonstrated by the fact that Tri-State was
 26   forced to hire extra staffing to implement them. Tri-State had to require existing
 27   staff to work overtime and double time, hire dedicated screeners, and hire travel
 28   health workers. Tri-State spent approximately $240,000 on COVID-19 screeners
      ANSWER TO FIRST AMENDED COMPLAINT          21
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  1   from January 2021 to June 2021 and a substantial portion of the over $1,000,000 it
  2   paid to traveling staff in 2021 to comply with the requirements imposed on the
  3   Hospital by Proclamation 20-24.2.
  4   Answer: The United States lacks sufficient information to admit or deny the
  5   allegations in paragraph 52.
  6
  7   Complaint Paragraph 53: Tri-State had to perform a large volume of COVID-19
  8   tests to comply with the CDC’s Infection Control Recommendations. To conduct
  9   these tests, Tri-State had to change its Minor Care Center (like an urgent care
 10   facility) into a COVID-19 testing facility. Tri-State also used the Minor Care
 11   Center for its vaccine clinic as discussed in the Vaccination Clinic and Vaccine
 12   Mandate subsection. The required changes to the Minor Care Center created
 13   significant demands on personnel that were far more than nominal. In 2021, the
 14   Minor Care Center had an increase in overtime and double time hours by 190%
 15   compared with 2019.
 16   Answer: The United States lacks sufficient information to admit or deny the
 17   allegations in paragraph 53.
 18
 19   Complaint Paragraph 54: As a result of having to create a COVID testing and
 20   vaccine clinic, the Hospital had to make the minor care practice use the same
 21   facility as its family practice department. Combining the minor care and family
 22   practice departments reduced the number of patients either department was able to
 23   see on a daily basis. The change also created collateral personnel demands on the
 24   family practice department. In 2021, the family practice department had an
 25   increase of 308% in overtime and double time hours as compared to 2019.
 26   Answer: The United States lacks sufficient information to admit or deny the
 27   allegations in paragraph 54.
 28
      ANSWER TO FIRST AMENDED COMPLAINT          22
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  1   Complaint Paragraph 55: To limit the spread of COVID-19 within the Hospital,
  2   Proclamation 20-24.2 and the CDC’s Infection Control Recommendations required
  3   Tri-State to implement a combination of various forms of physical distancing,
  4   barriers, and testing. Proclamation 20-24.2 required hospitals to “maintain strict
  5   physical distancing in patient scheduling, check-in processes, positioning, and
  6   movement within a facility . . . [and] [s]et up waiting rooms and patient care areas
  7   to facilitate patients, visitors, and staff to maintain at least six feet of distance
  8   between them[,] . . . space out appointments, and consider scheduling or spatially
  9   separating well visits from sick visits.”
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 55.
 12
 13   Complaint Paragraph 56: To comply with these requirements, Tri-State erected
 14   physical barriers and enforced social distancing within the waiting rooms for its
 15   Emergency, Radiology, Medical Surgical Nursing, and Minor Care departments.
 16   Tri-State both replaced and added barriers throughout 2021 to protect staff as
 17   masking requirements changed based on vaccination status.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in paragraph 56.
 20
 21   Complaint Paragraph 57: To ensure patients and visitors adhered to social
 22   distancing requirements, Tri-State removed up to 50% of the chairs in all of its
 23   waiting rooms. These isolation protocols correspondingly limited the number of
 24   patients each waiting room could accommodate, which, in turn, limited the number
 25   of patients each department could treat per day. Tri-State would not schedule more
 26   patients for a department than its waiting room could accommodate. To prevent the
 27   patients from overflowing into hallways in violation of Proclamation 20-24.2, Tri-
 28
      ANSWER TO FIRST AMENDED COMPLAINT            23
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  1   State reduced the number of patients sent per day to any department with a waiting
  2   room by up to 50%.
  3   Answer: The United States lacks sufficient information to admit or deny the
  4   allegations in paragraph 57.
  5
  6   Complaint Paragraph 58: Both individually and collectively, these screening,
  7   quarantine, and social distancing procedures required by Proclamation 20-24.2
  8   caused a partial suspension of Tri-State’s business.
  9   Answer: The United States lacks sufficient information to admit or deny the
 10   allegations in paragraph 58.
 11
 12   Complaint Paragraph 59: Unlike other businesses, Tri-State had a duty to treat
 13   patients with active COVID-19 infections. To minimize the risk of COVID-19
 14   spreading from infected patients to Hospital personnel, the CDC’s Infection
 15   Control protocol required Tri-State to place COVID-19 patients in single-person
 16   rooms, limit visitors to the facility, prevent visitors of COVID-19 patients from
 17   going to locations other than the patient’s room within the facility, use dedicated
 18   medical equipment for patients with suspected or confirmed COVID-19 infections,
 19   vacate rooms of discharged COVID-19 patients until air changes removed
 20   infectious particles, perform specialized cleaning and disinfection procedures for
 21   surfaces and reusable equipment exposed to infected patients, and exclude
 22   personnel with high-risk exposure to COVID-19 from the workplace for 14 days.
 23   These requirements reduced the number of Tri-State’s rooms that it could use to
 24   treat patients and contributed to staffing shortages, which was a suspension of its
 25   operations.
 26   Answer: The United States lacks sufficient information to admit or deny the
 27   allegations in paragraph 59.
 28
      ANSWER TO FIRST AMENDED COMPLAINT          24
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  1   Footnote 10: CDC required a 14-day quarantine period for high-risk exposures in
  2   its “Interim U.S. Guidance for Risk Assessment and Work Restrictions for
  3   Healthcare Personnel with Potential Exposure to COVID-19.” Proclamation 20-
  4   24.2 required Tri-State to follow this CDC guidance.
  5   Answer: The United States lacks sufficient information to admit or deny the
  6   allegations in footnote 10.
  7
  8   Complaint Paragraph 60: To comply with the cleaning requirements, Tri-State
  9   implemented disinfection protocols in its COVID-19 Guidance, requiring the
 10   nursing department to complete “daily cleans” to minimize the number of staff in
 11   hospital inpatient rooms. Environmental Services performed a “terminal clean” of
 12   hospital rooms after discharging a patient. Tri-State also treated laundry, food
 13   service, and medical waste in compliance with its isolation protocols, including
 14   specially labeling all laundry service bags and biohazard waste containers.
 15   COVID-19 cleaning and disinfection protocols imposed additional burdens on the
 16   Environmental Services staff, which had 1,273 overtime and double time hours in
 17   2021, a 193% increase from 2019, and travel personnel time.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in paragraph 60.
 20   Footnote 11: Based on a revision to Tri-State’s COVID-19 Guidance,
 21   Environmental Services eventually took over this cleaning task.
 22   Answer: The United States lacks sufficient information to admit or deny the
 23   allegations in footnote 11.
 24
 25   Complaint Paragraph 61: As required by Proclamation 20-24.2, Tri-State
 26   followed CDC guidance when transporting COVID-19 patients within the facility
 27   or out of the facility. When transporting a COVID-19 patient within the Hospital,
 28   both patient and transporter had to wear all necessary personal protective
      ANSWER TO FIRST AMENDED COMPLAINT          25
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  1   equipment. These intra-Hospital transport procedures increased patient transport
  2   time, which limited the number of patients the Hospital could transport to a
  3   particular department within a day. For example, these transport procedures
  4   significantly limited the number of patients Tri-State could schedule per day for an
  5   MRI or CT Scan. When transferring COVID-19 patients to another facility, Tri-
  6   State had to notify the receiving facility and all entities involved in the transport
  7   that the patient had or potentially had COVID-19. When appropriate, Tri-State
  8   utilized the Lewiston (Idaho) Fire Department to help transfer a COVID-19 patient
  9   in an isolation pod. If the fire department was not available, Tri-State had to
 10   communicate all isolation and personal protective equipment needs to the
 11   transporting facility. These transport and transfer protocols between facilities
 12   increased the time it took for Tri-State to clear patients from its beds.
 13   Answer: The United States lacks sufficient information to admit or deny the
 14   allegations in paragraph 61.
 15   Footnote 12: The CDC’s Infection Control Recommendations publication, directly
 16   referenced by Proclamation 20-24.2, directs healthcare professional to refer to the
 17   CDC’s “COVID-19 website” for the transport of COVID-19 patients.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in footnote 12.
 20   Footnote 13: Given the burden of these procedures, Tri-State tried to minimize
 21   transporting patients when possible by performing certain procedures, such as
 22   chest x-rays, within patient rooms.
 23   Answer: The United States lacks sufficient information to admit or deny the
 24   allegations in footnote 13.
 25
 26   Complaint Paragraph 62: To minimize the spread of COVID-19 amongst Tri-
 27   State personnel and comply with the CDC’s Infection Control Recommendations,
 28   Hospital workers had to report any potential COVID-19 exposures of health care
      ANSWER TO FIRST AMENDED COMPLAINT           26
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  1   workers by calling Tri-State’s Employee Health Department. All Tri-State
  2   healthcare workers had to sign monthly attestations regarding any illnesses or
  3   travel, and all, except for surgeons, were screened upon entry to the facility. Each
  4   month, Tri-State personnel had to obtain and file these attestations. Tri-State had to
  5   devote substantial time to obtaining monthly attestations. In addition to
  6   attestations, Tri-State reported any personnel illnesses or exposures to the
  7   appropriate Tri-State supervisor and instructed the worker not to return to work
  8   until released by the Employee Health Department. During the first three quarters
  9   of 2021, Tri-State sent approximately 100 internal notifications of personnel
 10   illnesses or exposures. At a minimum, these reports represented approximately 100
 11   days when a Tri-State personnel member was unable to work due to exposure
 12   protocols, which were created to comply with the governmental orders.
 13   Answer: The United States lacks sufficient information to admit or deny the
 14   allegations in paragraph 62.
 15
 16   Complaint Paragraph 63: Different departments implemented their own
 17   screening and reporting requirements. For example, surgeons were screened when
 18   they entered the surgical department.
 19   Answer: The United States lacks sufficient information to admit or deny the
 20   allegations in paragraph 63.
 21
 22   Complaint Paragraph 64: Tri-State’s operations were partially suspended
 23   because Tri-State was forced to significantly modify more than nominal portions of
 24   its operations to comply with the cleaning and disinfection, patient transport, and
 25   reporting duties imposed by Proclamation 20-24.2. Tri-State had to restrict
 26   available beds. It had to slow room turnover for disinfection, which meant fewer
 27   rooms were available. It had to devote numerous additional personnel hours and
 28   overtime hours as well as hiring travel healthcare workers to adhere to these
      ANSWER TO FIRST AMENDED COMPLAINT          27
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  1   protocols. In 2021, Tri-State’s employes worked 23,234 overtime and double time
  2   hours, which represented a 20 percent increase from 2019. In addition, Tri-State
  3   spent a substantial portion of the $1,000,000 paid to traveling staff in 2021 to
  4   satisfy the requirements of Proclamation 20-24.2 and the CDC’s Infection Control
  5   Recommendations.
  6   Answer: The United States lacks sufficient information to admit or deny the
  7   allegations in paragraph 64.
  8
  9   Complaint Paragraph 65: Proclamation 20-24.2 conditioned Tri-State’s ability to
 10   perform nonurgent procedures on the distribution of an “effective [COVID-19]
 11   vaccine.” Complying with this mandate forced Tri-State to partially suspend its
 12   operations.
 13   Answer: The United States lacks sufficient information to admit or deny the
 14   allegations in paragraph 65.
 15
 16   Complaint Paragraph 66: COVID vaccinations themselves diverted Tri-State
 17   from its normal operations. Consistent with Proclamation 20-24.2’s directive, Tri-
 18   State used the Minor Care Center within the Hospital to open a vaccination clinic
 19   in December 2020. As discussed earlier, Tri-State had to transform the Minor Care
 20   Center into a COVID-19 testing center and vaccination clinic, forcing the Minor
 21   Care department to move into the Family Practice department. This relocation
 22   reduced the number of patients the Minor Care and Family Practice departments
 23   could treat and created logistical issues requiring significant amounts of staff
 24   overtime and double time hours.
 25   Answer: The United States lacks sufficient information to admit or deny the
 26   allegations in paragraph 66.
 27
 28
      ANSWER TO FIRST AMENDED COMPLAINT          28
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  1   Complaint Paragraph 67: Tri-State was actively vaccinating healthcare workers,
  2   first responders, and other persons included by the CDC in “Phase 1A.” By
  3   January 12, 2021, Tri-State had delivered approximately 500 COVID-19 vaccines.
  4   Tri-State personnel monitored patients for at least 15 minutes after they received a
  5   COVID-19 vaccination to ensure their safety. Tri-State also started a vaccination
  6   hotline to help individuals determine their COVID-19 vaccine eligibility and place
  7   them on Tri-State’s vaccine waitlist. To comply with CDC guidelines, Tri-State
  8   had to divert considerable resources and personnel to screen individuals for
  9   vaccine eligibility and properly store and administer the COVID-19 vaccines.
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 67.
 12
 13   Complaint Paragraph 68: In August 2021, Governor Jay Inslee issued
 14   Proclamation 21-14.1, expanding the State of Washington’s COVID-19 vaccine
 15   mandate to healthcare providers. The mandate required all healthcare providers to
 16   be fully vaccinated against COVID-19 and provide their employers with proof of
 17   their vaccination status by October 18, 2021, only two months after 21-14.1 issued.
 18   To comply with 21-14.1, Tri-State made efforts to ensure every person engaged in
 19   work for it was fully vaccinated against COVID-19 and devoted personnel to
 20   obtain documentation of “full vaccination against COVID-19” from every Tri-
 21   State worker. These vaccination requirements coupled with the short compliance
 22   timeline further strained Tri-State’s already taxed resources and caused Tri-State to
 23   divert resources from other departments of the Hospital causing more than a
 24   nominal effect on its business operations.
 25   Answer: The United States admits that in August 2021, Governor Inslee issued
 26   Proclamation 21-14.1. The United States otherwise lacks sufficient information to
 27   admit or deny the allegations in paragraph 68.
 28
      ANSWER TO FIRST AMENDED COMPLAINT            29
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  1   Complaint Paragraph 69: The government orders issued by federal and state
  2   entities—including Proclamation 20-24.2 and Proclamation 21-14.1—caused a
  3   partial suspension of the Hospital and its operations. The orders led to the
  4   cancellation of non-urgent procedures, a reduction in scheduling non-urgent
  5   procedures, the loss of beds and space for patients (and visitors), staffing shortages,
  6   the loss of the Minor Care Center facility, and the substantial interruption of
  7   normal operations.
  8   Answer: The United States lacks sufficient information to admit or deny the
  9   allegations in paragraph 69.
 10
 11   Complaint Paragraph 70: Tri-State incorporates by reference the allegations in
 12   Paragraphs 1 to 69 as if fully set forth herein.
 13   Answer: Paragraph 70 requires no response.
 14
 15   Complaint Paragraph 71: Tri-State is entitled to a tax refund for the first, second,
 16   and third quarters of 2021 under the government-order suspension test of the
 17   CARES Act.
 18   Answer: The United States lacks sufficient information to admit or deny the
 19   allegations in paragraph 71.
 20
 21   Complaint Paragraph 72: Tri-State is an eligible employer for the first, second,
 22   and third quarters of 2021 because it “was carrying on a trade or business” during
 23   those quarters and its operation during each quarter was “partially suspended” “due
 24   to orders from an appropriate governmental authority requiring healthcare facilities
 25   to follow restrictive infection prevention protocols due to the coronavirus disease
 26   2019 (COVID-19).” 26 U.S.C. § 3134(c)(2)(A).
 27   Answer: The United States lacks sufficient information to admit or deny the
 28   allegations in paragraph 72.
      ANSWER TO FIRST AMENDED COMPLAINT           30
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  1
  2   Complaint Paragraph 73: For determining Tri-State’s qualified wages, Tri-State
  3   and its wholly owned subsidiaries, Evergreen Estates Retirement & Assisted
  4   Living Community, L.L.C. (“Evergreen”), Vannvei, L.L.C (“Vannvei”), and
  5   Aquavia, L.L.C. (“Aquavia”) constitute a single employer. See 26 U.S.C. §
  6   3134(d). During 2019, Tri-State, Evergreen, Vannvei, and Aquavia collectively
  7   employed not greater than 500 employees. Consistent with the IRS’s guidance, Tri-
  8   State, Evergreen, Vannvei, and Aquavia deemed an employee as “full-time” for a
  9   calendar month if he or she employed “130 hours of service” for the month.
 10   Because Tri-State, Evergreen, Vannvei, and Aquavia together employed “not
 11   greater than 500 employees,” qualified wages are those “wages paid by such
 12   eligible employer with respect to an employee during any period” for which they
 13   were fully or partially suspended. 26 U.S.C. § 3134(c)(3)(A)(ii)(I).
 14   Answer: The United States lacks sufficient information to admit or deny the
 15   allegations in paragraph 73.
 16
 17   Complaint Paragraph 74: As Tri-State reported in its Forms 941-X, Tri-State’s
 18   qualified wages for Q1, Q2, and Q3 2021 were $5,302,244, $5,731,721, and
 19   $5,439,366, respectively.
 20   Answer: The United States lacks sufficient information to admit or deny the
 21   allegations in paragraph 74.
 22
 23   Complaint Paragraph 75: None of Tri-State’s qualifying wages were paid with
 24   payroll costs from the Paycheck Protection Program (PPP) loan forgiveness.
 25   Answer: The United States lacks sufficient information to admit or deny the
 26   allegations in paragraph 75.
 27
 28
      ANSWER TO FIRST AMENDED COMPLAINT         31
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  1   Complaint Paragraph 76: Tri-State made timely and proper claims for the ERC
  2   with the IRS. The following list shows when Tri-State filed its Forms 941-X with
  3   the IRS for each qualifying quarter and the ERC it claimed for each quarter:
  4   a. The 941-X for Q1 of 2021 was filed on January 31, 2024, and it claimed an ERC
  5   in the amount of $3,711,570.80 for that quarter.
  6   b. The 941-X for Q2 of 2021 was filed on January 31, 2024, and it claimed an ERC
  7   in the amount of $4,012,204.70 for that quarter.
  8   c. The 941-X for Q3 of 2021 was filed on January 31, 2024, and it claimed an ERC
  9   in the amount of $3,807,556.20 for that quarter.
 10   Answer: The United States lacks sufficient information to admit or deny the
 11   allegations in paragraph 76.
 12
 13   Complaint Paragraph 77: Under 26 U.S.C. §§ 7422 and 6532, a taxpayer may
 14   commence a refund suit for the recovery of income taxes in federal court after a
 15   claim for refund has been filed with the Secretary and six months has elapsed
 16   without decision.
 17   Answer: The United States admits that under 26 U.S.C. § 6532, no suit under
 18   § 7422(a) may begin before the expiration of six months from the date of filing the
 19   administrative claim required the IRS renders a decision within that time, nor after
 20   the expiration of two years from the date of the IRS mailing by certified mail or
 21   registered a notice of the disallowance of the part of the claim to which the suit
 22   relates.
 23
 24   Complaint Paragraph 78: It has been sixteen months since Tri-State filed its
 25   refund claims with the Internal Revenue Service (“IRS”). But the IRS has failed to
 26   process Tri-State’s valid ERC claims and so, not provided the required refund.
 27   Answer: The United States lacks sufficient information to admit or deny the
 28   allegations in paragraph 78.
      ANSWER TO FIRST AMENDED COMPLAINT          32
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  1   Complaint Paragraph 79: Under 26 U.S.C. § 6611, the United States owes
  2   interest on the refund due to Tri-State “from the date of the overpayment to a date
  3   (to be determined by the Secretary) preceding the date of the refund check by not
  4   more than 30 days.” I.R.C. § 6611(b)(2).
  5   Answer: The United States admits that, if it owes a tax refund, it would owe
  6   interest from the date of the overpayment to a date (to be determined by the
  7   Secretary) preceding the date of the refund check by not more than 30 days.
  8
  9   Complaint Paragraph 80: Tri-State overpaid its taxes and is entitled to the
 10   corresponding interest on its overpayment.
 11   Answer: The United States lacks sufficient information to admit or deny the
 12   allegations in paragraph 80.
 13
 14   Complaint Paragraph 81: Tri-State incorporates and realleges paragraphs 1
 15   through 56 above.
 16   Answer: Paragraph 81 requires no response.
 17
 18   Complaint Paragraph 82: Under 26 U.S.C. § 7430(c)(4)(B), the United States
 19   must pay litigation and administrative costs because its position is not
 20   “substantially justified.” The IRS created a self-imposed moratorium on processing
 21   ERC claims, and, as a result, has refused to process straightforward claims like
 22   those belonging to Plaintiff.
 23   Answer: Denies.
 24
 25   Complaint Paragraph 83: Tri-State prays for the following relief:
 26   a. A tax refund in the amounts of $11,531,331.70 for Tri-State’s Employee
 27   Retention Credit for the following taxable period: Q1, Q2, and Q3 of 2021;
 28
      ANSWER TO FIRST AMENDED COMPLAINT          33
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  1   b. The interest owed under 26 U.S.C. § 6611 on Tri-State’s $11,531,331.70 tax
  2   overpayment;
  3   c. Award reasonable attorneys’ fees and costs, as allowed by law;
  4   d. Award pre-judgment and post-judgment interest, as allowed by law; and
  5   e. Award such further relief as the Court may deem just and proper.
  6   Answer: Paragraph 83 states the relief Tri-States seeks and requires no response.
  7
  8                             AFFIRMATIVE DEFENSES
  9                                    FIRST DEFENSE
 10         Tri-State is not entitled to the ERC for periods in which it continued to
 11   receive or maintain its usual funding for employee salaries.
 12
 13                                  SECOND DEFENSE
 14         To the extent Tri-State claims the ERC based on wages reported as payroll
 15   costs to obtain Paycheck Protection Program loan forgiveness, it is not entitled to
 16   the ERC.
 17
 18                                    THIRD DEFENSE
 19         If the First Amended Complaint makes claims based on any grounds not
 20   asserted in a claim for refund filed with the IRS, the Court lacks jurisdiction under
 21   26 U.S.C. § 7422(a) to hear such claims and should dismiss them.
 22
 23                                  FOURTH DEFENSE
 24         If the Court determines that Tri-State has made an overpayment of tax, the
 25   United States is entitled, pursuant to 26 U.S.C. § 6402, to reduce any such
 26   overpayment based on any additional tax liabilities that Tri-State owes, whether or
 27   not previously assessed or alleged.
 28
      ANSWER TO FIRST AMENDED COMPLAINT          34
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  1                                    FIFTH DEFENSE
  2         If Tri-State establishes that it is entitled to any portion of the ERC claimed, it
  3   would not be entitled to deduct, for purposes of income tax for the periods at issue,
  4   the amount of wages paid to employees equal to such ERC. Under the doctrine of
  5   equitable recoupment, if Tri-State recovers any of the ERC claimed, the amount
  6   recovered should be offset by such wages paid to employees.
  7
  8                               DENIAL OF LIABILITY
  9         The United States denies every other allegation in the First Amended
 10   Complaint that it has not specifically admitted in this answer.
 11
 12   WHEREFORE, the United States respectfully requests judgment as follows:
 13   A.    Denial of the relief the First Amended Complaint seeks and entry of
 14   judgment in favor of the United States and against Tri-State; and
 15   B.    An award to the United States of costs and other relief the Court deems
 16   proper.
 17
 18
      Dated June 11, 2026                     BRETT SHUMATE
 19                                           Assistant Attorney General
 20
                                              JOSHUA WU
 21                                           Deputy Assistant Attorney General
 22                                           Tax Litigation Branch

 23                                           /s/ Charles J. Butler
 24                                           CHARLES J. BUTLER
                                              Tax Litigation Branch
 25                                           Civil Division, Department of Justice
 26
                                              Counsel for the United States of America
 27
 28
      ANSWER TO FIRST AMENDED COMPLAINT          35
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  1                            CERTIFICATE OF SERVICE
  2         I certify that on June 11, 2026, I filed the foregoing using the Court’s
  3   CM/ECF system, which will provide notice to all parties that have appeared.
  4
  5
                                             /s/ Charles J. Butler
  6                                          CHARLES J. BUTLER
  7                                          Tax Litigation Branch
                                             Civil Division, Department of Justice
  8
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      ANSWER TO FIRST AMENDED COMPLAINT         36


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