Lawsuit Alleges DHHS Fails to Properly Administer Medicaid Waiver Program | News

Lawsuit alleging indifference and failure by the New Hampshire Department of Health and Human Services to prevent seniors and people with disabilities from being unnecessarily institutionalized has received the green light from a U.S. District Court judge .

The lawsuit, filed in January 2021 by several organizations including AARP, Disability Rights Center-NH, New Hampshire Legal Assistance and the Nixon Peabody law firm, represents three people and identifies a category of at least 3,500 people. who claim inadequate administration of the Medicaid Choices for Independence exemption program has deprived them of the home and community care to which they are entitled under the law.

The state’s attempt to close the case was rejected.

Geron Gadd, senior attorney at the AARP Foundation and one of the attorneys representing the plaintiffs, said the problem stems from the state’s indifference to how the program works.

“When you launch a system and then be indifferent to how it works, bad consequences ensue,” she said, citing inadequacies in monitoring service delivery and failure on the part of DHHS. to provide people with meaningful advice and ways to report when they are in crisis.

The consequences of this indifference to the administration of the program can be disastrous for individuals, Gadd said, adding that the COVID-19 pandemic poses an increased risk to people due to the high number of cases in healthcare facilities.

“When complainants do not receive these services, they are in physical danger. They could be bedridden waiting for assistance, sometimes for days, unable to use the toilet, dress, clean themselves, or eat. Failure to obtain these services can result in significant dangers and risks. “

The CFI waiver program was created to help those eligible for long-term Medicaid-funded support receive home care, thereby avoiding the need for expensive, restrictive, and potentially dangerous nursing home placements.

Lawyer Kierstan Schultz said the state was poorly administering the program and the group’s plaintiffs deprived themselves of the services they already needed and were eligible for.

“Complainants have experienced frequent interruptions in their services and delays, and sometimes services have been unexpectedly terminated,” said Schultz. “It’s a deficient administration. “

One of the people pictured in the lawsuit is Fitzmorris, a 36-year-old mother who became quadriplegic following an accident in 2018.

Choosing to live with her teenage son in her own apartment and avoid institutionalization, Fitzmorris was determined to qualify for the CFI waiver program in December 2018. She was allowed to receive 37 hours per week of care. personal, home help and nursing care through the program.

The lawsuit states that “other than brief periods since December 2018, Fitzmorris has not received these waiver services.”

Another plaintiff in the case, Bates, 59, was diagnosed with cerebral palsy and scoliosis. She lives in a house that she rents from her parents and wishes to continue living there. She uses a wheelchair and needs help getting out of bed, dressing, bathing and washing, the lawsuit says.

The DHHS determined that Bates was eligible for waiver services amounting to 35 hours of service per week in 1992, but according to the lawsuit, she receives only a few hours of service per week.

“When her service providers aren’t available, she has to choose between staying in bed without food or water or calling a friend with limited availability to help her. These circumstances put her health at risk and put her in danger of institutionalization. The complainants allege that the defendants’ maladministration of the CFI waiver program is the root cause of their service deficiencies.

Geron said delays experienced by people participating in the CFI program, such as those suffered by Bates, can last for years.

“Sometimes it’s delays of several years,” she said. “Sometimes they are shorter and the periods vary, but they are long delays both in the onset and in the gaps in care. “

The Americans with Disabilities Act requires the DHHS to provide CFI participants with an integrated framework, and the lawsuit makes it clear that the state is violating its integration mandate, citing four alleged shortcomings:

Failure to recruit a sufficient number of providers; failure to monitor whether CFI participants are receiving the services they are authorized to receive; failure to act when informed of the cessation or delay of services; and the failure to give complainants sufficient notice of their right to a fair hearing when they lose their services through no fault of their own.

The state’s argument, which was rejected by the United States district court, attempted to place the blame on case management agencies and case managers.

The lawsuit alleges that the state’s actions or omissions are responsible for the shortcomings in services, and it uses a similar argument – rejected by the circuit court – made by the state that involved a class of plaintiffs who sued the commissioner on the grounds that they were being held in private hospitals. too long without due process.

In this case, Doe v. Shibinette, the Commissioner argued that the complainants’ injury was not “just attributable” to his conduct. Instead, she argued, it was the system of state circuit courts, law enforcement, the state legislature and private hospitals that were ultimately responsible for complaints lodged by complainants.

Disability Rights Center-NH litigation director Pamela Phelan said the state bears ultimate responsibility for administering the CFI waiver program.

“So many New Hampshire residents who rely on the FCI’s waiver program face undue hardship and risk. This decision allows us to continue our work to achieve much-needed improvements to the program, ”she said.

The DHHS has until Dec. 18 to respond to the complaint about the CFI waivers and until then, Schultz said lawyers representing the plaintiffs will pursue the discovery.

“These participants continue to be in danger every day this case continues,” she said. “So we are always ready to discuss with the state. We think it would be so much better for the named complainants and the rest of this group if the state took the time and effort now, took the resources to improve the CFI program without further delay. We still hope this is an option.

DHHS and the New Hampshire attorney general’s office were contacted over this story but declined to comment.

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