CFI Advocates Hopeful After State’s Appeal is Denied

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Date:  February 22, 2024


AARP External Relations: Madison Daniels,, (202) 531-9026
Nixon Peabody: Nicholas Braude,, (617) 838-0727

Link to original complaint available here

Link to class certification order available here

Link to PDF of press release here

CFI Advocates Hopeful After State’s Appeal is Denied

CONCORD, N.H. Yesterday, the United States Court of Appeals for the First Circuit rejected the State of New Hampshire’s appeal request in Fitzmorris et al. v. New Hampshire Dept. of Health and Human Services et al—allowing the class action lawsuit to proceed. The plaintiffs contend that the Choices for Independence (CFI) Waiver program is failing to provide authorized services to participants, thus putting them at unnecessary risk of being institutionalized in nursing homes.

New Hampshire’s CFI Waiver program provides vital assistance to qualified people who choose to stay in their homes 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.

Plaintiffs are represented by:

  • Nixon Peabody: Daniel Deane, Mark Knights, Kierstan Schultz, Tammy Nguyen, and Scott Dinner;
  • New Hampshire Legal Assistance: Marta Hurgin, Kay Drought, and Cheryl Steinberg;
  • AARP Foundation: Kelly Bagby, Maame Gyamfi, Stefan Shaibani, Stephen Cruzado, and Samantha Gerleman;
  • Disability Rights Center-New Hampshire: Jennifer Eber, Mia Fry, Haley Lipinski, Hannah Roberts, and Michele Bachelder.

“Although we are pleased that the case can proceed to trial as a class action, people’s lives are at stake. We continue to struggle to understand why the State is spending hundreds of thousands of dollars to defend this action rather than using those resources to fix a broken system,” said Disability Rights Center – New Hampshire’s Litigation Director, Jennifer Eber.

“We are happy with the First Circuit’s ruling that affirms the district court’s decision to grant class certification,” said Nixon Peabody attorney Kierstan Schultz. “The ruling is heartening for New Hampshire residents who rely on these CFI services, and we look forward to advancing this litigation toward a decision on the merits.”

“It is discrimination to force people with disabilities who can and want to live in the community to move to institutional care,” said William Alvarado Rivera, Senior Vice President for Litigation at AARP Foundation. “The court’s ruling recognizes that state governments are obligated to operate their programs to ensure that individuals with disabilities can live as they choose.”

Cheryl Steinberg, Director of the Justice in Aging Project of New Hampshire Legal Assistance said: “Problems with the CFI program affect people throughout New Hampshire. We are glad the federal courts recognize that this lawsuit should proceed as a class action.”

If you or someone you know has struggled to get needed services under the CFI Waiver program, email


AARP Foundation

AARP Foundation works to end senior poverty by helping vulnerable people over 50 build economic opportunity. Our approach emphasizes equitable outcomes for populations that have faced systemic discrimination. As AARP’s charitable affiliate, we serve AARP members and nonmembers alike. Through vigorous legal advocacy and evidence-based solutions, and by building supportive community connections, we foster resilience, advance equity and restore hope. To learn more, visit or follow @AARPFoundation on social media.

About Nixon Peabody

Nixon Peabody LLP is an American Lawyer top-100 law firm in the United States and has 15 offices worldwide. Our firm delivers exceptional service to our clients and our communities by combining high performance, entrepreneurial spirit, deep engagement, and an unwavering commitment to a culture of collaboration, diversity, and humanity. Visit us at

About Disability Rights Center-New Hampshire

Disability Rights Center – New Hampshire protects, advances, and strengthens the legal rights and advocacy interests of all people with disabilities. More information about DRC-NH can be found at

About New Hampshire Legal Assistance

New Hampshire Legal Assistance is a nonprofit law firm working to make justice a reality for and with people who experience economic hardship that threatens their basic human needs.  Through representation and systemic advocacy, NHLA offers civil legal aid that addresses the effects and root causes of poverty.  More information about NHLA can be found at

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Disability Rights Center – New Hampshire is a statewide non-profit organization dedicated to eliminating barriers for people with disabilities across New Hampshire. DRC is the federally designated protection and advocacy agency for New Hampshire and has authority under federal law to conduct investigations in cases of probable abuse or neglect.

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