Lawsuit Protecting the Rights of CFI Waiver Participants to Live Independently Will Proceed as Class Action

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Lawsuit Protecting the Rights of CFI Waiver Participants to Live Independently Will Proceed as Class Action

Date:  November 28, 2023


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

Downloadable PDF of Press Release Available Here

Link to the Court’s Decision Here

Link to Original Complaint Available Here

CONCORD, N.H. Yesterday, the U.S. District Court for the District of New Hampshire granted class certification in Fitzmorris v. New Hampshire Dept. of Health and Human Services, allowing the case to proceed as a class action. The lawsuit seeks to address the State’s failure to administer its Choices for Independence (CFI) Medicaid home and community-based waiver program in a manner that allows its participants to safely live at home rather than being forced into institutional settings such as nursing facilities.

The ruling allows plaintiffs, through their counsel — Nixon Peabody, New Hampshire Legal Assistance, Disability Rights Center – New Hampshire, and AARP Foundation — to pursue court-ordered improvements for all CFI Waiver participants who are not receiving the home care services they need and have been authorized to receive. The CFI program includes a range of services that, when provided, allow individuals to live in their homes, including assistance with daily tasks such as cooking, cleaning, bathing, and toileting, as well as transportation and intermittent nursing care.

The lawsuit, filed in January 2021, names both the New Hampshire Department of Health & Human Services and its commissioner as defendants. In November 2021, the Court rejected the State’s attempt to dismiss the case, allowing the plaintiffs to pursue their claims under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and due process provisions of the U.S. Constitution.

The U.S. Department of Justice filed a statement of interest supporting the plaintiff’s motion for class certification. Now that the Court has certified the class, the parties will litigate the merits.

“On behalf of New Hampshire residents who rely on these CFI services, we are extremely happy with the judge’s ruling,” said Nixon Peabody attorney Kierstan Schultz. “The decision brings us another step closer to holding the State accountable to a class of CFI participants who are not receiving authorized and necessary services. The State must provide authorized services to CFI-eligible individuals, their families, and their caregivers.”

“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 all individuals can live as they choose.”

Cheryl Steinberg, Director of the Justice in Aging Project of New Hampshire Legal Assistance said: “For all of the CFI Waiver participants in New Hampshire who live each day in fear that they will not get the Medicaid services they need to be safe in their homes, today is a good day. The federal court recognized that problems with the CFI program affect so many people that the case can proceed as a class action.”

“Yesterday was a hopeful day for CFI Waiver participants. With this decision, we can move forward with seeking change to the program so that it is managed in a way that does not leave CFI participants without the services that they need,” said Disability Rights Center – New Hampshire’s Litigation Director, Jennifer Eber.

The litigation team includes the following:

  • 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.

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

Please find the court’s decision here.


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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