Court rejects state's appeal request in AARP disabilities lawsuit

New Hampshire Union Leader - 2/27/2024

Feb. 26—The U.S. Court of Appeals for the First Circuit has rejected the state's appeal request in a lawsuit claiming a state-run program makes it more likely seniors and those with disabilities will end up in nursing institutions, allowing the litigation to proceed as a class action.

In January 2021, the New Hampshire Legal Assistance, Disabilities Rights Center and AARP Foundation sued the Department of Health and Human Services over administration of its Choice for Independence program (CFI).

The program uses federal and state Medicaid money to let eligible citizens receive health care services in their homes and not have to live in more restrictive settings.

In the lawsuit, the groups said state officials delegated decision-making to third-party managers, which resulted in these residents being denied their notice and due process rights.

The lawsuit accuses the state of "failure to administer its CFI Medicaid home and community-based waiver program in a manner that allows its participants to safely live at home rather than being forced into institutional settings such as nursing facilities."

The ruling allows plaintiffs to pursue court-ordered improvements for all CFI Waiver participants not receiving the home care services they have been authorized to receive.

The CFI program covers a range of services that allow individuals to live in their homes, including assistance with daily tasks like cooking, cleaning, bathing and bathroom use, along with transportation and intermittent nursing care.

In November 2021, the court rejected the state's attempt to dismiss the case, allowing the plaintiffs to pursue their claims under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and due process provisions of the U.S.Constitution.

Plaintiffs in the lawsuit are represented by attorneys from Nixon Peabody, New Hampshire Legal Assistance, AARP Foundation, and Disability Rights Center of New Hampshire.

"Although we are pleased that the case can proceed to trial as a class action, people's lives are at stake," said Jennifer Eber, litigation director for the Disability Rights Center of New Hampshire. "We continue to struggle to understand why the State is spending hundreds of thousands of dollars to defend this action rather than using those resources to fix a broken system."

"We are happy with the First Circuit's ruling that affirms the district court's decision to grant class certification," said Nixon Peabody attorney Kierstan Schultz. "The ruling is heartening for New Hampshire residents who rely on these CFI services, and we look forward to advancing this litigation toward a decision on the merits."

William Alvarado Rivera, senior vice president for litigation at AARP Foundation, said the court's ruling recognizes that state governments are "obligated to operate their programs to ensure that individuals with disabilities can live as they choose."

"It is discrimination to force people with disabilities who can and want to live in the community to move to institutional care," said Rivera.

"Problems with the CFI program affect people throughout New Hampshire," said Cheryl Steinberg, director of New Hampshire Legal Assistance's Justice in Aging Project. "We are glad the federal courts recognize that this lawsuit should proceed as a class action."

If you or someone you know has struggled to get needed services under the CFI Waiver program, email litigation@aarp.org.

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