By Tom Jarvis
A federal class action alleging that New Hampshire has failed to provide necessary home- and community-based services to older adults and people with disabilities enrolled in its Choices for Independence (CFI) program will proceed toward trial after US District Court Judge Paul J. Barbadoro denied summary judgment to both sides.
In an April 17 memorandum opinion in Fitzmorris v. Weaver, Judge Barbadoro found that material factual disputes remain in the case, which was brought by participants in the CFI Waiver program against the New Hampshire Department of Health and Human Services (DHHS) and its commissioner, Lori Weaver.
The ruling does not decide whether the defendants violated federal disability rights laws. Rather, it permits the plaintiffs to continue pursuing claims that DHHS’s administration of the CFI program places participants at serious risk of unnecessary institutionalization in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
The CFI program provides Medicaid-funded home- and community-based services to eligible adults who meet the level of care required for nursing facility placement but choose to receive services in their homes and communities. According to the opinion, the program served 4,401 unique participants during the reporting period from July 1, 2022, through June 30, 2023.
The named plaintiffs, Emily Fitzmorris and Kathleen Bates, represent a class of CFI participants who, they allege, have been placed at serious risk of unjustified institutionalization because DHHS has failed to ensure they receive the community-based long-term care services and supports for which they have been found eligible and assessed to need.
Disability Rights Center–New Hampshire (DRC-NH) Litigation Director Jennifer Eber says the April ruling means the case will move toward trial, likely this fall.
“The New Hampshire Department of Health and Human Services’ ongoing failure to properly administer the CFI program has had devastating, real-world consequences for participants who rely on authorized CFI services to live safely at home,” Eber says. “Without timely delivery of services, CFI participants often cannot get out of bed in the morning or ready for bed at night, cannot use the bathroom, and are unable to bathe, change clothes, prepare meals, or move throughout their homes and communities.”
Eber says the plaintiffs are particularly concerned about authorized “hands-on” services, including home health aide, personal care, homemaker, and skilled nursing services.
New Hampshire Legal Assistance (NHLA) Justice in Aging Project Director Cheryl Steinberg says project partners and other stakeholders, including the AARP state office, had shared concerns with NHLA for several years about deficiencies in the CFI program before the lawsuit was filed.
“Because other forms of advocacy to improve the system were unsuccessful, people believed that court action would be the only way to effect meaningful changes to protect CFI participants,” Steinberg says.
The claims are based in part on the integration mandate applied by the US Supreme Court in Olmstead v. L.C., which requires public entities to administer services to people with disabilities in the most integrated setting appropriate to their needs.
In his memorandum opinion, Judge Barbadoro rejected the defendants’ argument that the plaintiffs lacked standing to pursue their claims, writing that the alleged injury is not the risk of institutionalization, but the alleged loss of services class members are entitled to receive in a community setting.
He also concluded that the plaintiffs had presented sufficient evidence to raise factual disputes about whether alleged deficiencies in reimbursement rates, real-time monitoring of service delivery, contingency planning, and oversight of case management agencies contribute to or worsen gaps in authorized services.
At the same time, Judge Barbadoro declined to grant summary judgment to the plaintiffs, finding that the record does not yet establish that they are entitled to judgment as a matter of law.
The defendants have disputed that CFI participants face a class-wide serious risk of institutionalization caused by DHHS’s actions or omissions and have argued that the plaintiffs have not identified reasonable changes that could be implemented without fundamentally altering the program.
The opinion also noted efforts by the state to increase resources for the program. Medicaid reimbursement rates, including CFI rates, increased by 3.1 percent in fiscal years 2020 and 2021, and the Legislature later appropriated more than $7.1 million for reimbursement rate increases in the 2024–2025 biennium, including $6.4 million for CFI providers.
DHHS Director of Communications Jake Leon says the department is reviewing the ruling and considering its next steps.
“DHHS is disappointed by the Court’s ruling and is reviewing the order with counsel while evaluating its legal options moving forward,” Leon says. “DHHS remains committed to minimizing institutionalization and helping eligible individuals receive services in their homes and communities to the greatest extent possible. The Department has made significant investments in its Choices for Independence program, including increasing expenditures from approximately $66 million in 2020 to $111 million in State Fiscal Year 2024.”
DRC-NH Executive Director Stephanie Patrick says the case concerns participants’ ability to remain in their own homes and make ordinary decisions about their lives.
“Community living is something that many people, especially people without disabilities, take for granted,” Patrick says. “When you live in your own home with supports, you can make your own decisions about all of these things and many others that we take for granted until they are taken from us.”