NH facing class-action lawsuit over in-home care for older and disabled residents

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 12-05-2023 4:34 AM

Until last week, the Department of Health and Human Services was facing a lawsuit from two people who said the state had put them at severe risk of entering a nursing home by providing them less in-home care than it had deemed necessary. 

In one case, a 38-year-old woman with disabilities was receiving only a “small portion” of the 68 hours of weekly care the state had allotted her, according to the lawsuit. 

A federal judge has certified the case as a class-action lawsuit, pointing to evidence that there could be dozens, even hundreds of people who face the same risk of being institutionalized for the same reasons. 

The program at the center of the case is Choices for Independence, which provides nearly 3,800 Granite Staters who don’t want to go into a nursing home the basic care and services that allow them to remain at home or in a small community setting. That care can include assistance with bathing, housekeeping, and cooking.

In his ruling, Judge Paul Barbadoro defined the class as, “CFI Waiver participants who, during the pendency of this lawsuit, have been placed at serious risk of unjustified institutionalization because defendants, by act or omission, fail to ensure that the CFI participants receive the community-based long-term care services and supports … for which they have been found eligible and assessed to need.”

It was a significant victory for the advocacy groups, including New Hampshire Legal Assistance, the Disability Rights Center-NH, and the AARP Foundation, that filed the case in the U.S. District Court in New Hampshire in January 2021. Barbadoro had previously rejected their request for class-action certification, citing insufficient evidence that the individual plaintiffs’ experiences were typical of all CFI recipients. 

“It’s not like we couldn’t have still moved forward with the two individual plaintiffs, and the relief we could have gotten would have potentially had a systemic effect,” said New Hampshire Legal Assistance attorney Cheryl Steinberg. “But this gives us a much broader ability to create a sense of relief for the whole class that will hopefully improve the service delivery.”

The CFI program made headlines this year when the agencies the state relies on to provide services told lawmakers they could no longer afford to continue the work without significant rate increases from the state. Those increases came in October and will help address the workforce shortage issue raised in the lawsuit. Without workers, services can’t be provided.  

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But, the rate increase won’t address all the CFI program shortcomings alleged in the lawsuit. 

The plaintiffs allege the Department of Health and Human Services fails to sufficiently monitor and support the private agencies it licenses to plan and provide CFI services. 

While the department’s regulations grant those agencies discretion in determining what services a person needs and how to meet those needs, the state is still ultimately responsible for ensuring that CFI clients get those approved services, Barbadoro wrote.

Among the tasks given to the agencies is developing person-centered care plans that identify how care will be provided and the contingency plans if an assigned caregiver is unavailable. But, the department doesn’t review the plans for completeness and, in some cases, can’t because some agencies decline to share them, Barbadoro wrote.

When an agency has too few staff to provide the required hours of care, the department does not “meaningfully assist” by monitoring which of its licensed providers may have availability, according to his order.

The plaintiffs allege the department does not sufficiently track service gaps to know when a person is receiving fewer hours of care than approved. While Barbadoro found that the department has systems in place for identifying and responding to gaps, he said it needs to do more.

For example, the department looks for gaps by comparing the number of approved care hours against the hours provided. But it does so at a high level, not the client level, making it impossible to know in real time which client is receiving too few services.

The case is set to go to trial in March. 

Jennifer Eber, litigation director for Disability Rights Center-NH, described the day plaintiffs learned Barbadoro had certified the case as a class-action lawsuit as “hopeful.”

“With this decision, we can move forward with seeking change to the program so that it is managed in a way that does not leave CFI participants without the services that they need,” she said in a statement.

The Attorney General’s Office, which represents state agencies in court, declined to comment on the case Friday because it is pending. 

When Attorney General John Formella asked for an additional $7 million from the Joint Legislative Fiscal Committee in August for increased litigation cases, this was one case he mentioned. Others included the hundreds of civil lawsuits filed by people who said they were abused as children while held at the Youth Development Center.