A lawsuit alleging indifference and failure on the part of NH Department of Health and Human Services to keep older and disabled people from being unnecessarily institutionalized has been given the green light by a judge in U.S. District Court.
The lawsuit, filed in January 2021 by several organizations, including the AARP, Disability Rights Center-NH, NH Legal Assistance and the law firm of Nixon Peabody, represents three individuals and identifies a class of at least 3,500 people who claim the inadequate administration of the Choices for Independence Medicaid Waiver program has deprived them of the home and community-based care to which they are entitled by law.
The state’s attempt to dismiss the case was denied.
Geron Gadd, senior attorney with AARP Foundation and one of the attorneys representing the plaintiffs, said the problem stems from the state’s indifference to how the program operates.
“When you launch a system and then are indifferent to how it operates, adverse consequences follow,” she said, citing insufficiencies in monitoring when services are being delivered and a failure on the part of DHHS to provide people notice and meaningful ways to report when they’re in crisis.
The consequences of this indifference regarding the administration of the program can be disastrous for individuals, Gadd said, adding that the COVID-19 pandemic poses an increased risk for people due to the high number of cases in nursing facilities.
“When plaintiffs don’t receive these services they’re in physical danger. They could be stuck in bed waiting on assistance, sometimes for days, unable to use the restroom, to get dressed, to clean themselves, or to eat. Not getting these services can result in significant danger and risk.”
The CFI waiver program was created to help those who are eligible for Medicaid-funded long- term support to receive in-home care, thus avoiding the need for costly, restrictive, and potentially dangerous nursing facility placements.
Attorney Kierstan Schultz said the State is deficiently administering this program and has caused the plaintiffs in the class to go without the services they’ve already been assessed to need and are eligible for.
“The plaintiffs have experienced frequent interruptions in their services and delays, and sometimes services have been stopped unexpectedly,” Schultz said. “That’s deficient administration.”
One of the people represented in the lawsuit is referred to as Fitzmorris, a 36-year-old mother who became a tetraplegic as the result of an accident in 2018.
Choosing to live with her teenage son in her own apartment and to avoid institutionalization, Fitzmorris was determined to be eligible for the CFI Waiver Program in December 2018. She was authorized to receive 37 hours a week of personal care, homemaker, and nursing services through the program.
The lawsuit states that “other than brief periods of time since December 2018, Fitzmorris has not been provided those waiver services.”
Another plaintiff in the case, Bates, 59, has been diagnosed with cerebral palsy and scoliosis. She lives in a home she rents from her parents and wants to continue living there. She uses a wheelchair and needs assistance getting out of bed, dressing, toileting and bathing, the lawsuit states.
DHHS determined that Bates was eligible for waiver services amounting to 35 hours of services a week in 1992 but according to the lawsuit she is only receiving a few hours of services every week.
The lawsuit states:
“When her service providers are not available, she must choose between staying in bed without food and water or calling a friend who has a limited availability to assist her. These circumstances are jeopardizing her health and putting her at risk of institutionalization. Plaintiffs allege that defendants’ shoddy administration of the CFI waiver program is the root cause of their service gaps.”
Gadd said the delays experienced by people in the CFI program, such as those experienced by Bates, can last for years.
“Sometimes these are years-long delays,” she said. “Occasionally they’re shorter and there are varying periods, but these are long delays in both the onset and the gaps in care.”
The Americans with Disabilities Act requires DHHS to provide CFI participants with an integrated setting and the lawsuit makes clear the state is violating its integration mandate, citing four alleged deficiencies:
Failure to recruit sufficient number of providers; failure to monitor whether CFI participants are receiving services they’re authorized to receive; failure to act when made aware of cessation or delay in services; and a failure to give plaintiffs adequate notice of their right to a fair hearing when they’re losing their services through no fault of their own.
The state’s argument, which was rejected in U.S. District Court, attempted to place responsibility on case management agencies and case managers.
The lawsuit alleges the state’s actions or omissions are responsible for service gaps, and it uses an analogous argument—rejected by the circuit court— made by the state that involved a class of plaintiffs who sued the commissioner on the ground they were held at private hospitals for too long without due process.
In that case, Doe v. Shibinette, the commissioner argued the plaintiffs’ injury was not “fairly traceable” to her conduct. Instead, she argued, it was the state’s circuit court system, law enforcement, the state legislature, and private hospitals, who were ultimately responsible for the complaints brought by the plaintiffs.
Disability Rights Center-NH Litigation Director, Pamela Phelan, said the state bears the ultimate responsibility for the administration of the CFI Waiver Program.
“So many New Hampshire residents who rely on the CFI waiver program face unjustified hardship and risk. This decision allows us to continue our work to secure much-needed improvements to the program,” she said.
DHHS has until Dec. 18 to answer the complaint regarding CFI waivers and until then Schultz said the attorneys representing the plaintiffs will be pressing forward with discovery.
“These participants continue to be at risk every single day this case continues on,” she said. “So, we’re always amenable to discussion with the State. We believe it would be so much better for the named plaintiffs and the other members of this class if the State would take the time and effort now, take the resources necessary to improve the CFI Program without any further delay. We’re always hopeful that’s an option.”
DHHS and the New Hampshire Attorney General’s office were contacted for this story but declined comment.
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