The underlying dispute centers on New Hampshire's Choices for Independence Waiver program, a Medicaid program administered by the state Department of Health and Human Services that provides home and community-based care to adults who would otherwise qualify for nursing facility placement. Named plaintiffs Emily Fitzmorris and Kathleen Bates represent a certified class defined as CFI Waiver participants who, during the pendency of the 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 through the waiver program for which they have been found eligible and assessed to need. The plaintiffs allege those failures violate Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
Judge Paul J. Barbadoro of the District of New Hampshire denied cross-motions for summary judgment in Case No. 1:21-cv-25-PB, concluding that material factual disputes remain for trial on each of the defendants' principal arguments: that the plaintiffs lack standing, that only institutionalized persons may assert an Olmstead claim, that the plaintiffs cannot prove class-wide risk of institutionalization, that the defendants did not cause the alleged service gaps, and that the plaintiffs failed to identify reasonable and necessary modifications.
On the threshold question of whether an Olmstead claim may rest on a risk of institutionalization rather than actual institutionalization, the court rejected the defendants' position and aligned with the vast majority of courts that have addressed the issue. The court held that the injury giving plaintiffs standing is not the risk of institutionalization itself but the loss of benefits class members are entitled to receive in a community setting. The court also declined to apply Loper Bright Enterprises v. Raimondo to strip deference from a 2011 Department of Justice guidance document construing the integration regulation, reasoning that Loper Bright applies only to agencies' interpretations of statutes, not regulations, and that Kisor v. Wilkie remains the controlling standard for the latter. Applying Kisor, the court held the DOJ guidance entitled to deference.
On causation and the merits, the court identified four categories of disputed evidence that preclude summary judgment in the defendants' favor. Plaintiffs' expert economist Dr. David Blanchflower opined that CFI reimbursement rates do not allow providers to pay wages comparable to private-market rates in New Hampshire, thereby causing workforce shortages and service gaps, and that the defendants' June 2024 rate study is flawed and will not remedy the problem. Plaintiffs' Olmstead experts Nancy Weston and Randall Webster, analyzing a random sample of 100 CFI Waiver participants who missed more than fifty percent of their authorized critical services in one or more months, found very little evidence in the case management records that DHHS is even aware of the plight of so many of the CFI participants who are not getting their critical hands-on services, and that DHHS does not have a policy of verifying that CFI participants actually receive the services that DHHS authorizes. Their review found that thirty of the 100 sample participants were admitted to a nursing facility during the relevant period, sixty-five resorted to unpaid caregivers, and seventy-eight percent experienced adverse medical, emotional, or psychological consequences from service gaps. Dr. Mattan Schuchman, reviewing the same sample, concluded that a one-day gap creates a risk of dangerous crises and admission to institutional settings, and documented falls, pressure ulcers, medication errors, weight loss, and deteriorated home environments among participants who did not receive authorized services.
On the reasonable-modifications regulation, the court held that the First Circuit's decisions in Reed v. LePage Bakeries and Pollack v. Regional School Unit 75 place the initial burden on plaintiffs to propose modifications and demonstrate they are facially reasonable and necessary, but agreed with other courts that this burden is not a heavy one, after which the burden shifts to the defendants to show the modification is unreasonable, unnecessary, or would fundamentally alter the program. The court found that disputed facts precluded summary judgment for either side on those questions as well.
The court noted that New Hampshire benefits from significant cost savings by administering the CFI Waiver program: according to a July 2022 New Hampshire Fiscal Policy Institute report in the record, state budget funding per CFI enrollee totaled $18,997, while nursing facility funding from all sources per enrollee was $98,111, and DHHS Medicaid Director Harry Lipman testified that CFI is close to three times less [costly] than institutional care.