Federal judge rules trial in case against Health and Human Services can move forward

A trial could soon determine the fate of Choices for Independence, New Hampshire’s at-home care program for people with physical disabilities and the elderly.

Judge Paul Barbadoro, who presides over the U.S. District Court of New Hampshire, ruled against a series of motions for summary judgment from both parties, which would’ve ended the case before a trial moved forward. Barbadoro is expected to set a trial date soon.

Choices for Independence is a Medicaid-funded program that seeks to provide participants with the care they need to stay at home instead of going to a nursing home. For those who use a wheelchair, this might mean a personal care aide comes to their house to help them out of bed, into the shower, and to get dressed. For older residents, it might mean someone delivers groceries to their home and cooks their meals. 

To qualify for the program, a person must have a condition or disability that would make them Medicaid-eligible for placement in a nursing home. Notably, it typically costs the state three times as much money to house someone in a nursing home than provide in-home care, according to evidence presented in court. About 5,000 people participate in the program, the state said in court filings.

In 2021, a coalition of nonprofit groups and attorneys — including the AARP Foundation, the Disability Rights Center-NH, New Hampshire Legal Assistance, and the private law firm Nixon Peabody — sued the New Hampshire Department of Health and Human Services, which operates the program, arguing that years of underinvestment have left it so lackluster it risks forcing participants into nursing homes anyway. This is, as the plaintiffs argue, a violation of the 1990 Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act, which protects people from being institutionalized in many cases. In 2023, the case — Fitzmorris v. NH Department of Health and Human Services — became a class-action lawsuit, greatly expanding its reach.

The department and its attorneys — the private law firm Brown & Peisch — have argued, among other things, that the plaintiffs are asking the court to mandate something beyond what the ADA and Rehabilitation Act require of it and that the risks of institutionalization are actually insubstantial. Health and Human Services has acknowledged the staffing shortage in the program, but it hasn’t committed to addressing that shortage on its own outside a court order.