Lawsuit seeks protection for New Hampshire residents facing dangerous institutional placements in nursing facilities

January 11, 2021

Senior Manager, Media Relations
Nicholas Braude

Concord, NH. New Hampshire residents who depend on the state to provide them with Medicaid-funded long-term care are suing the state for its failure to properly administer its Choices for Independence (CFI) Medicaid waiver.

Nixon Peabody, together with New Hampshire Legal Assistance, Disability Rights Center – New Hampshire, and the AARP Foundation, filed a lawsuit in federal court on behalf of older adults and persons with disabilities enrolled in the CFI program. They allege that New Hampshire’s failure to deliver CFI services places them at risk of unnecessary and dangerous institutionalization in nursing facilities.

The suit names the New Hampshire Department of Health & Human Services (NHDHHS) Commissioner Lori Shibinette and NHDHHS as defendants and seeks to compel them to operate New Hampshire’s CFI waiver program in accordance with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and due process provisions of the Constitution of the United States.

New Hampshire’s CFI Waiver is designed to provide vital assistance to qualified people who choose to continue living in their homes, and to avoid the need for costly and restrictive nursing facility placements. However, the state is currently operating the CFI program in a manner that systematically deprives CFI participants of the home and community-based care to which they are entitled to under the provisions of the waiver program.

The COVID-19 crisis has heightened the importance of preventing unnecessary institutionalization. In New Hampshire, 80% of all COVID-19 deaths have involved residents of these facilities—double the national average.

“It’s crucial that the state live up to its promises to provide fundamental support to CFI-eligible individuals, their caregivers, and families,” said Nixon Peabody attorney Kierstan Schultz. “These CFI services are a generally less costly means of supporting older adults and people with disabilities in integrated settings.”

In addition to Kierstan Schultz, the Nixon Peabody team working on the case includes partners Daniel Deane and Mark Knights, and paralegal Sharon Willier.

Click here to read the complaint.

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