NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
In 2021, Choices for Independence (CFI) program waiver participants filed a federal lawsuit against the New Hampshire Department of Health and Human Services (called DHHS) and its Commissioner. The lawsuit is called Fitzmorris v. NH DHHS. CFI is a Medicaid-funded program designed to help people with disabilities live at home and receive the care that they would otherwise have to move into a nursing facility to receive. The Plaintiffs bringing the lawsuit claimed that they were not receiving their authorized CFI services and were at risk of having to move into a nursing home.
There is currently a proposed settlement that requires DHHS to change its practices in many ways to better serve people with disabilities who participate in the CFI program.
The Federal Court must approve the proposed Class Action Settlement before it is final.
WHO IS PART OF THE SETTLEMENT?
You are a class member covered by the Fitzmorris v. DHHS lawsuit and the proposed Settlement if:
- You are or were enrolled in the New Hampshire Choices for Independence program at
any time after January 11, 2021;
and
- You experienced the risk of going into a nursing facility because you did not receive the
services that DHHS authorized for you to receive through the Choices for Independence
program.
SUMMARY OF THE PROPOSED SETTLEMENT
If the Federal Court approves it, the Settlement will be in place for four years. Actions that DHHS must take under the Settlement are summarized below. The lawsuit asked for changes in the CFI program and did not ask for money damages for individual CFI participants.
- DHHS must use an independent consultant each year to look at whether it has enough CFI workers to provide the CFI services that DHHS authorizes. If the analysis shows that the provider network is not meeting the needs of CFI participants either by state or county, then DHHS must take steps to increase the rate it pays for CFI services.
- One way to have a sufficient workforce is to look at how much CFI workers are being paid. DHHS has already included an increase in the money it pays for CFI services in its September, 2026, budget request – that increase considered the effects of inflation. DHHS agrees to perform reimbursement rate reviews for CFI services, including by using New Hampshire specific data. DHHS agrees to ask the legislature for rate increases if the rate reviews recommend rate increases.
- DHHS can authorize higher rates to reimburse CFI providers when a CFI participant is struggling to find a CFI worker. Those higher rates are called “specialized rates.” DHHS agrees to make “specialized rates” easier for CFI participants to obtain when they lack a CFI worker.
- DHHS agrees to maintain and provide information online about which CFI agencies and workers are able to serve additional CFI participants. This information will help participants and case managers find alternative care when the scheduled worker is not available.
- Each month, DHHS must determine which CFI participants received less than 50% of four authorized “Hands-On CFI Services.” Those Hands-On CFI Services are home health services, personal care services, homemaker services, and skilled nursing services.
- DHHS must identify these people through its data, then both CFI Case Management Agencies and DHHS will take steps to help the CFI participant obtain a CFI worker.
- DHHS will make changes to the CFI grievance system. A grievance is a complaint made either in writing or by phone to DHHS. If DHHS receives any grievance for failure to receive authorized CFI services, DHHS will generally begin contact with the CFI participant or appropriate reporter within two business days. DHHS will use steps like finding a CFI worker and authorizing specialized rates to resolve the grievance.
- DHHS will take steps so that CFI participants have a back up or “contingency plan” that identifies an alternative provider or alternative staffing if normally scheduled CFI workers are unavailable.
- DHHS will hire an independent consultant to help it do what it needs to do under the Settlement. DHHS agrees to pay Plaintiffs’ Counsel for some of the lawyers’ time and other costs they have spent and will spend on this lawsuit and the Settlement.
- Every six months, DHHS will provide data and reporting to an independent consultant and to Plaintiffs’ Counsel showing its progress under the Settlement.
- The Settlement will remain in place for at least 4 years after the Court approves it.
WHAT HAPPENS NOW? THE APPROVAL PROCESS
The Judge has made a preliminary finding that the Settlement appears reasonable.
To find out more about the Settlement, you are welcome to attend one or both of these public information sessions with DHHS and with the lawyers for the CFI participants who brought the lawsuit.
If you agree with the proposed Class Action Settlement, you do not need to do anything. You can file a comment with the Clerk if you like.
Class members who want to object to the proposed Class Action Settlement have two ways to object.
- Written Objection: Class members can file a written objection by December 7, 2026 with the Clerk, U.S. District Court, 55 Pleasant Street, Concord, NH 03301-3941. (Anything that you send to the Clerk will be a public record. The Clerk will include your document in the case file, and will share it with the lawyers for both sides of the case.)
- Appearing in Court on January 21, 2027: Class members can appear in person at the federal court on January 21, 2027 at 2 P.M. to make their objections orally at the hearing.
IF YOU DO NOT TAKE EITHER OF THOSE STEPS, THEN YOU WILL LOSE YOUR RIGHT TO OBJECT TO THE PROPOSED CLASS ACTION SETTLEMENT.
The Court has scheduled a hearing to consider any objections and decide whether to finally approve the proposed Class Action Settlement. The hearing will be held on January 21, 2027 at 2 P.M. at the United States District Court, 55 Pleasant Street, Concord, NH 03301. You are welcome to attend.
UNLESS YOU ARE OBJECTING TO THE SETTLEMENT IN WRITING, PLEASE DO NOT CONTACT THE COURT DIRECTLY.
If you have questions about this Notice or about the proposed Class Action Settlement, you may contact Attorney Hannah Roberts of the Disability Rights Center-NH, (603) 410-5202 (hannahr@drcnh.org) or Attorney Ali Gennaro of New Hampshire Legal Assistance, (603) 206-258 (agennaro@nhla.org). This Notice summarizes the proposed Class Action Settlement. If you would like a copy of the full proposed Class Action Settlement or the plain language summary, please call the Disability Rights Center at (603) 228-0432 or find them online at https://cfi.drcnh.org.
BINDING EFFECT
If the Federal Court approves the proposed Class Action Settlement, the Settlement prevents class members from bringing their own disability discrimination lawsuits about the same problems addressed by the Settlement. This means that you cannot later seek different or additional relief regarding these CFI discrimination issues during the years of the Class Action Settlement (4 years).
