Settlement Reached in New Hampshire Class Action Lawsuit to Help Older Residents and Those with Disabilities Stay in Their Homes

CONCORD, New Hampshire—The parties in Fitzmorris v. New Hampshire Department of Health and Human Services have asked a federal court to preliminarily approve a proposed class action settlement. The agreement would require New Hampshire to make substantial changes to its in-home care program, which helps nearly 4,000 older adults and people with disabilities live safely in their communities.

Under the proposed settlement, the state must act when participants do not receive the care that the Department of Health and Human Services (DHHS) has authorized. It also requires the state to help them find direct care providers and address shortages in its home care provider network. The class is represented by AARP Foundation, Nixon Peabody, New Hampshire Legal Assistance and Disability Rights Center–New Hampshire.

“We’re proud of this settlement because it holds DHHS accountable for monitoring the safety and continued independence of the CFI participants,” said Elyssa Willadsen, director of the Justice in Aging Project at New Hampshire Legal Assistance. “It also provides class participants with finality by giving them a clearer path forward for resolving service gap issues.”

The lawsuit, filed in January 2021, challenges how New Hampshire administered its Medicaid-funded Choices for Independence (CFI) waiver program. Plaintiffs alleged that failures to provide approved in-home services put participants in danger and at risk of unnecessary placement in nursing facilities, in violation of the Americans with Disabilities Act and the Supreme Court’s landmark decision Olmstead v. L.C. An analysis of Medicaid data commissioned by Plaintiffs’ counsel found that hundreds of CFI waiver participants each month received less than half of their authorized hands-on services.

“I am proud to have been a part of this class action and am hopeful that the settlement will improve my finding service providers and receiving those services, like being able to get up out of bed in the morning,” said Emily Fitzmorris, named plaintiff in the case. “Without those services I cannot live in my home with my son.”

CFI services include personal care, homemaker assistance, home health and skilled nursing care. When those services are delayed or effectively denied, individuals can be left with no option other than being admitted for an institutional placement. The settlement establishes concrete steps to help participants receive the services DHHS has already authorized, including:

• Identify & address gaps in care: DHHS must identify participants receiving less than half of their authorized hands-on services and take steps to help them find providers.
• Address provider shortages: An independent consultant will assess the CFI provider network each year. If the network cannot meet participants’ needs, DHHS must take steps to increase provider reimbursement rates.
• Intervene more quickly when paid caregivers do not show up: DHHS must decide requests for higher specialized rates within three days when a participant cannot find a provider.
• Maintain an online directory of providers: DHHS must maintain and provide information online about which CFI agencies and workers are able to serve additional CFI participants.  
• Report on progress: DHHS must provide data to the independent consultant and plaintiffs’ counsel every six months.

The settlement will remain in effect for at least four years, with some provisions potentially extending to six years. DHHS has agreed that while the settlement is in effect, it will not seek to end the CFI program.

“Older adults and people with disabilities in New Hampshire were promised everyday care they needed—and were entitled to—to live safely at home,” said Louis Lopez, senior vice president of litigation at AARP Foundation. “This settlement is a win for people who want to remain in the homes and communities they know.”

“The services provided through the CFI program are life changing and often lifesaving,” said Jennifer Eber, litigation director for Disability Rights Center-NH. “This settlement ensures that badly needed improvements will be made to the program so those who rely on these services can also count on them.”

“I’m glad we reached a settlement,” said Kathleen Bates, a plaintiff in the case. “This settlement should make it easier to focus on what’s important to me, like my job, instead of how I’ll get out of bed in the morning or get back into bed at night.”

For more information and details about informational webinars scheduled for November, visit cfi.drchnh.org.