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AARP disabilities lawsuit against state certified as a class action

New Hampshire Union Leader - 12/1/2023

Nov. 30—A U.S. District Court judge this week said a lawsuit claiming a state-run program makes it more likely seniors and those with disabilities will end up in nursing institutions may 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.

The U.S. Department of Justice filed a statement of interest supporting the plaintiff's motion for class certification.

"On behalf of New Hampshire residents who rely on these CFI services, we are extremely happy with the judge's ruling," said attorney Kierstan Schultz of Nixon Peabody, the plaintiffs' counsel. "The decision brings us another step closer to holding the State accountable to a class of CFI participants who are not receiving authorized and necessary services. "

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 all individuals 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," Rivera said.

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