DD Waitlist Case: NH Supreme Court reverses Superior Court Decision, Grants Nonsuit Without Prejudice

April 2004

On April 14, 2004, the NH Supreme Court issued its decision in the DD Wait list case, also known as Bessie Cuming & a. v. Governor & a. The Supreme Court reversed the lower court's decision denying the Plaintiffs' request for a voluntary nonsuit without prejudice. This favorable decision is important to the Plaintiffs because it preserves their right to bring a claim in the future. Unfortunately, it does not solve the waiting list problem for individuals with developmental disabilities, and many people continue to go without needed services.

A little background: currently, over 300 people are on the waiting list for DD Services as a priority one or two, meaning the person is at imminent risk of substantial physical or emotional harm or significant regression, either immediately or within the next two years. Many others are on the waiting list that are considered a lower priority by the state. They have been found eligible, they are entitled to services under the HCBC-DD Waiver, but they are not receiving services or, in some cases, are receiving grossly inadequate services or overly restrictive placements.

The Disabilities Rights Center filed suit in January 2002 in Hillsborough County Superior Court on behalf of the plaintiffs, alleging that New Hampshire has failed to provide a comprehensive array of community-based services to individuals with developmental disabilities. In March 2003, the Superior Court denied Plaintiff's request to certify the action as a class action, precluding plaintiffs from proceeding on behalf of themselves and other individuals with developmental disabilities who were awaiting services.

In July 2003, the plaintiffs filed a Motion for Voluntary Nonsuit without prejudice. The Superior Court issued an order declaring a nonsuit with prejudice in August 2003. The Disabilities Rights Center appealed to the New Hampshire Supreme Court in September 2003.

If the case had remained a nonsuit with prejudice, the individual named Plaintiffs would not have been able to seek legal redress again to resolve their concerns regarding the waitlist unless certain personal circumstances were to change.


updated July 24, 2017