A U.S. District Judge heard arguments Wednesday to decide whether a lawsuit against the state’s health department will move forward. Medicaid recipients receiving in-home services are suing the state program, alleging it failed to provide the support they were promised. Both parties are seeking a summary judgement to resolve the lawsuit without going to trial.
Two Medicaid recipients first sued the state’s Choice for Independence program in 2021, which provides in-home services that facilitate daily living for folks who otherwise would need to move into hospitals or nursing homes. In 2023, Judge Paul Barbadoro allowed the case to move forward as a class action lawsuit. He defined participants in the suit, at the time, as those who are part of the CFI program who have been put at “serious” risk of being institutionalized unjustifiably because the state failed to provide adequate support.
The plaintiffs argue they have not received services the state determined they need. They allege that because of worker shortages participants missed prescribed treatments and therapies, suffered physical injuries, endured physical hardships and experienced worsening health conditions.
The state said during the hearing that roughly 5,000 people will participate in the program in 2025. In filings the state said the program cost roughly $111 million dollars in 2024.
New Hampshire Legal Assistance, the Disability Rights Center-NH, and the AARP Foundation are participating in the lawsuit against the NH health department.
Kelly Bagby, the attorney representing the plaintiffs, said the program is under-funded and understaffed. She also said there isn't an adequate way for individuals to report to the state when they don't receive services.
“They were dependent on their case management agencies to answer their calls, take their texts,” Bagby said. “But the problem in a lot of the cases we reviewed was that the case management agencies would take the calls and try their best, but … they can't just manufacture workers. They don't have that power.”
There are eight case management agencies that are authorized to fulfill Choice for Independence services.
Bagby said during the hearing that without medical assistance, some people in the program might not be able to take their medicine or complete daily living tasks like going to the bathroom.
Bagby said that the state needs to offer more providers to fill work shortages and make sure those workers are treated well. She said plaintiffs for the case also want to ensure that future participants in the program don’t run into the same issues.
In 2023, the state legislature allocated an additional $134 million dollars in the budget to Medicaid rate hikes, with a portion of those funds directly going to the Choice for Independence Program.
In legal documents filed this June the state said that they have adequately fulfilled funding costs for the program and that the state is not legally obligated to oversee the program to the degree the plaintiffs allege.
Judge Barbadoro said it may be weeks or months before he arrives at a decision on whether the case should move forward.
A spokesperson for the Department of Justice has declined to comment on this story.
