A class-action lawsuit that claimed the New Hampshire Department of Health and Human Services was failing to provide necessary care under a Medicaid program has been settled.
The state’s Choices for Independence program helps seniors and people with disabilities live at home. In 2021, the plaintiffs, who were people enrolled in the program, claimed that the program was underfunded and mismanaged, and that put them and other participants at risk of being involuntarily institutionalized into hospitals or nursing homes.
The plaintiffs argued that they weren’t receiving the at-home care deemed necessary by agencies, including assistance with meals, medication, and daily tasks such as going to the bathroom and keeping their homes hygienic.
The lawsuit also claimed that because participants were at serious risk of institutionalization, the program’s management was in violation with the American with Disabilities Act. The plaintiffs were represented by New Hampshire Legal Assistance, the Disability Rights Center-NH, and the AARP Foundation. In 2023, a federal judge allowed the case to move forward as a class-action lawsuit with members of the class being defined as those who were “at serious risk” of institutionalization due to lack of care services.
Pending approval from a federal judge, the settlement requires the state health department with federal oversight, hire a third party to analyze whether the CFI program is sustainably staffed and document all grievances related to gaps in service. The department must also identify the number of people who are missing a certain percentage of their services, and release biannual reports that must be made available to the public.
Within 90 days of the final settlement, the health department must also maintain a directory of CFI providers in the NH Easy portal.
The state health department must also review the pay rates for CFI services, and must include the cost of inflation, service costs and workforce and wage information in the review.
The health department also agreed to pay the plaintiff’s attorneys $4 million to cover fees and costs of the lawsuit.
Kierstan Schultz, an attorney for the plaintiffs from the law firm Nixon Peabody, said they were feeling positive overall with the settlement. A trial could have taken years to conclude.
“For a class that includes people who live in the Granite State with disabilities, sometimes those are older folks with disabilities as well, that delay really matters,” Schultz said.
Representatives of the state Department of Health and Human Services said people in the program deserve the ability to live independently in their homes and communities.
“Under the settlement agreement, DHHS is agreeing to increase its oversight of service gaps experienced by CFI waiver participants and to take steps aimed at reducing those gaps,” said Catherine Denny, assistant attorney general of the New Hampshire Department of Justice by email.
The state health department said the settlement also requires the department to request additional funding for the CFI program from the state legislature; the settlement doesn’t allocate additional legislative funding.
Program participants should receive a notice in the mail and via the NH Easy portal about next steps in the settlement and whether they want to object.
Legal counsel for the plaintiffs and the state health department will host two public information sessions about the settlement.
