Case Timeline & Documents

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 Class Action Settlement Agreement 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.

Learn more about the proposed Class Action Settlement Agreement and upcoming informational webinars.

Litigation Team: 

Nixon Peabody,  Disability Rights Center – NH, New Hampshire Legal Assistance, and AARP Foundation

Case Timeline and Related Documents

January 11, 2021: Lawsuit Filed

• This class action lawsuit names the New Hampshire Department of Health & Human Services (NHDHHS) Commissioner Lori Weaver and NHDHHS as defendants and seeks to compel them to operate New Hampshire’s CFI Waiver Program in accordance with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Medicaid Act, and due process provisions of the Constitution of the United States.
• Link to Complaint
• View Press Release (Jan 11, 2021)

November 18, 2021: Lawsuit Survives Motion to Dismiss

• The U.S. District Court for the District of New Hampshire rejected the State’s attempt to dismiss the case, allowing the named 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.
• Link to the Court’s decision
• View press release (Nov 29, 2021)

November 27, 2023: Court Grants Class Certification

• The U.S. District Court for the District of New Hampshire granted class certification allowing the case to proceed as a class action.
• Link to class certification
• View Press Release (Nov 28, 2023)

February 21, 2024: State’s Appeal of Class Certification Is Rejected

• The United States Court of Appeals for the First Circuit rejected the State’s appeal request—allowing the lawsuit to proceed as a class action.
• Link to Court’s decision
• View Press Release (Feb 22, 2024)

May 15, 2025: Plaintiffs Request a Partial Summary Judgment

• Link to Plaintiffs’ Memorandum of Law in Support of a Partial Summary Judgment (Redacted)

June 16, 2025: State Argues Against Plaintiffs’ Motion for Partial Summary Judgment and Files a Cross-Motion for Summary Judgment

• Link to State’s Memorandum In Support of Cross-Motion for Summary Judgment and In Opposition to Plaintiffs’ Motion for Summary Judgment

July 16, 2025: Plaintiffs Respond to the State’s Cross-Motion and Opposition for Summary Judgment

• Link to Plaintiffs’ Reply In Support of Their Motion For Summary Judgment and Objection to Defendants’ Cross-Motion for Summary Judgment

July 30, 2025: State Replies to Plaintiffs’ Objection to its Cross-Motion For Summary Judgment

• Link to State’s Reply in Support of Cross-Motion For Summary Judgment

August 22, 2025: Amicus Brief Filed in Support of Plaintiffs

• Link to Amicus Brief Of Justice In Aging, The Center For Medicare Advocacy, The Center For Public Representation, Disability Law United, Disability Rights Education And Defense Fund, National Consumer Voice For Quality Long-Term Care, And The National Health Law Program In Support Of Plaintiffs

September 18, 2025: State Responds to the Amicus Brief in Support of Plaintiffs

• Link to State’s Response to Amicus Brief

April 17, 2026: Court denies motions for summary judgment so case will head to trial.

• Link to Court’s Decision
• View Press Release (April 23, 2026)

October 5, 2026: Parties file for settlement.  This is a proposed settlement, awaiting Court’s preliminary approval.

• Link to proposed Class Action Settlement Agreement
• Link to proposed Class Notice
• Link to Joint Motion for Preliminary Approval of Settlement
• Link to Plaintiffs Unopposed Memorandum of Law in Support of Joint Motion
• Link to Exhibit 2 Proposed Order