New Hampshire CFI home-care settlement gets preliminary approval

Estimated reading time: 10 minutes.

A federal judge has given preliminary approval to a proposed settlement aimed at closing gaps in New Hampshire's Choices for Independence home-care program. The agreement would require the state to identify missing care, help find providers and review whether its provider network can meet participants' needs. It would not provide individual cash damages.

Key facts

Case. Fitzmorris v. New Hampshire Department of Health and Human Services, No. 1:21-cv-00025-PB, in the U.S. District Court for the District of New Hampshire.
Current status. Judge Paul J. Barbadoro preliminarily approved the agreement and class-notice process on October 7, 2026. Final approval remains undecided.
Affected group. The certified class concerns Choices for Independence participants placed at serious risk of unnecessary institutional care because they did not receive needed, authorized community services.
Written objections. The court-approved notice sets December 7, 2026 as the deadline.
Hearing. The final approval hearing is scheduled for January 21, 2027 at 2 p.m. in Concord.
Relief. Proposed program changes, not a settlement check for each participant.

What the October 7 order changed

The signed October 7 order follows the parties' October 5 settlement filing. Barbadoro preliminarily found the agreement fair, reasonable and adequate and approved notice to the class. That initial assessment allows affected people to learn about the terms and respond before the court makes a final decision.

This is already a certified class action, a lawsuit in which court-appointed representatives pursue common claims for a defined group. The judge confirmed that the existing class also constitutes the settlement class. He did not enter a final settlement judgment or decide that the defendants violated the law.

Approval is not final

The January hearing is still ahead. The agreement's general effective date is final court approval, not the October 7 preliminary order.

How Choices for Independence works

Choices for Independence, or CFI, is New Hampshire's Medicaid-funded program for home and community-based long-term care. Medicaid is a joint federal-state health coverage program. A federal waiver allows the state to fund specified services outside an institution for people who would otherwise need institutional care.

As the court's April 2026 opinion explains, CFI serves eligible adults who meet financial requirements and a nursing-facility level of care. That means their care needs meet the state's clinical standard for nursing-facility services, not that they must already live in a nursing home. They choose community care instead.

The New Hampshire Department of Health and Human Services, or DHHS, administers the program. Its commissioner, Lori Weaver, is also a defendant. DHHS determines eligibility and authorizes services. Private case management agencies develop care plans and arrange delivery through providers. Authorizing hours and finding a worker to deliver them are different steps.

The agreement calls four categories “hands-on” services. Home health aide and personal care services provide direct assistance; homemaker services support household needs; skilled nursing involves nursing care. The plaintiffs' concern is that missing this support can make staying at home unsafe even when the state has approved it.

Emily Fitzmorris and Kathleen Bates, both CFI participants, are the class representatives. Their lawyers include AARP Foundation, which advocates for older adults; Disability Rights Center-New Hampshire, a disability-rights nonprofit; New Hampshire Legal Assistance, a nonprofit civil legal-aid firm; and Nixon Peabody LLP, a law firm. These organizations represent the class, not an independent settlement administrator distributing payments.

Why participants sued and what the court decided

Participants filed suit on January 11, 2021. They alleged that gaps in authorized care put them at serious risk of unnecessary nursing-facility placement. The causal argument is specific: when help with daily care does not arrive, a person may lose the support that makes community living possible, even though institutional placement is not their preferred or necessary setting if that support is available.

The original complaint invoked disability-discrimination laws, Medicaid duties and constitutional due process, meaning protections for notice and an opportunity to challenge government decisions affecting benefits. The April opinion addressed the Americans with Disabilities Act's Title II, which applies to public entities, and Section 504 of the Rehabilitation Act, which applies to federally funded programs.

The disability claims rely on the integration requirement: public services must operate in the most integrated setting appropriate to a qualified person's needs. The Supreme Court's Olmstead v. L.C. decision addresses when community placement is required, considering professional assessment, the person's wishes and whether the state can reasonably accommodate the placement. It is not an unconditional promise of any requested service.

The major procedural steps were:

November 18, 2021. The district court denied the defendants' motion to dismiss, allowing the case to continue.
November 27, 2023. The court certified the class and appointed Fitzmorris and Bates as representatives.
February 21, 2024. The First Circuit appeals court denied the state's request for permission to appeal class certification at that stage.
April 17, 2026. Barbadoro denied both sides' requests for summary judgment, a decision without trial when no important factual dispute remains.
October 5 and 7, 2026. The parties filed the settlement, then received preliminary approval.

The April opinion rejected the argument that only people already institutionalized could bring this type of claim. But material factual disputes remained. The state disputed the class-wide risk, the connection between its conduct and that risk, and whether proposed changes were reasonable. Neither side obtained a final merits victory. The settlement expressly states that defendants admit no wrongdoing, legal violation or liability.

Who the settlement covers

The court-approved notice describes two conditions: enrollment in New Hampshire CFI during the period beginning January 11, 2021, and risk of nursing-facility placement because authorized CFI services were not received.

The agreement incorporates the certified definition more precisely. It covers CFI waiver participants who, during the lawsuit, were placed at serious risk of unjustified institutionalization because defendants failed, through action or inaction, to ensure receipt of community-based long-term care services and supports for which participants were eligible and assessed to need.

Enrollment alone therefore does not establish that every participant belongs to the class. The notice does not require people to have already entered a nursing facility. Readers uncertain about their circumstances can ask class counsel about the definition.

What would change in home care

The full agreement combines system-wide review with responses to individual service gaps.

Finding missing care. Beginning 90 days after final approval, DHHS would conduct monthly checks for participants receiving 50% or less of their authorized hands-on services during the previous 30 days. For identified class members, it would notify the case management agency and require use of backup plans or additional provider referrals. Further state action could include contacting providers, authorizing higher rates and investigating potential licensing violations.

Handling complaints. A grievance is a complaint about program services. Beginning within 90 days after final approval, DHHS would generally make an initial attempt to contact the participant or appropriate reporter within two business days after a grievance about missing care. This is a contact requirement, not a guarantee that care will be restored in two days. The monthly 50% screening threshold does not limit grievances to people missing that much care.

Paying providers. A specialized rate is a provider payment above the standard rate. Within 120 days after final approval, DHHS would revise its policy to require decisions on completed specialized-rate requests within three business days. A higher provider rate is not cash paid to a participant.

Checking staffing and rates. An independent consultant would examine the provider network annually. DHHS would review reimbursement rates and seek legislative funding for specified adjustments. Actual rate changes remain subject to legislative appropriations, approval by the Centers for Medicare & Medicaid Services, the federal agency overseeing Medicaid, and other required approvals. The agreement does not bind the New Hampshire legislature to fund those requests.

Finding providers and planning backup care. A portal for providers and case management agencies would support referrals. A separate, enhanced public directory depends on legislative funding and has a later timetable. The agreement also addresses contingency plans, meaning backup arrangements when the usual worker is unavailable.

DHHS would report progress every six months to the consultant and class counsel. The settlement would generally last four years after final approval, with the court retaining enforcement authority. Certain rate-review and funding-request provisions could extend for one additional two-year period if the legislature fails to approve all specified requests. DHHS would agree not to seek termination of CFI during the settlement.

No individual cash award

This case seeks program changes. The agreement includes lawyer and consultant payments, but no individual damages fund or cash-claim application.

Objections, the hearing and next steps

The notice says people who agree with the settlement need not do anything. Class members who object can file a written objection by December 7, 2026 with the Clerk, U.S. District Court, 55 Pleasant Street, Concord, NH 03301-3941. The notice warns that material sent to the clerk becomes a public record and is shared with both sides' lawyers.

Alternatively, class members can appear in person and object orally at the January 21, 2027 hearing at 2 p.m., at the United States District Court, 55 Pleasant Street, Concord, NH 03301. The signed order specifically says the court will hear from class members whether or not they filed an objection. If the court cannot hold the hearing as scheduled, it will post a new date on the court website.

Two ways to object

The December 7 deadline applies to written objections. The notice also allows oral objections at the January 21 hearing without a prior written objection.

Notice must be provided by November 6, 2026. The parties' notice report and final-approval motion, and the plaintiffs' fee motion, are due December 22. These are court-filing deadlines for the parties, not consumer claim deadlines.

Informational sessions with state representatives and plaintiffs' lawyers are listed for November 17 at 10 a.m. and November 30 at 6 p.m. Details are available through Disability Rights Center's case hub. For notice questions, readers can contact attorney Hannah Roberts at 603-410-5202 or hannahr@drcnh.org, or attorney Ali Gennaro at 603-206-2258 or agennaro@nhla.org. For accessible formats, language help or disability accommodations, the hub lists 603-228-0432 and mail@drcnh.org.

What remains uncertain

Final approval and successful implementation are not assured. The documents do not establish how much any particular participant's care would improve or whether lawmakers would approve every funding request.

The notice also warns of a binding effect if the court approves the deal: class members could not pursue different or additional relief for the same CFI disability-discrimination problems during the settlement's four years. Readers with questions about that limitation should ask class counsel rather than treat this article as an individualized assessment of legal rights.

The next step is to read the official notice and agreement, consider any response and check the hearing information for changes. This reporting explains the proposed settlement; it does not promise eligibility, care delivery or a legal outcome.

Frequently asked questions

Is the New Hampshire CFI settlement final?

No. The court gave preliminary approval on October 7, 2026. Final approval remains pending, with a hearing scheduled for January 21, 2027 at 2 p.m.

Who may be covered by Fitzmorris v. DHHS?

The certified class concerns CFI participants placed at serious risk of unjustified institutionalization during the lawsuit because needed community services were not delivered. The notice describes enrollment during the period beginning January 11, 2021 and nursing-facility risk caused by missing authorized services.

Will CFI participants receive settlement checks?

The proposed settlement does not provide individual money damages. It addresses program administration, missing care and provider access. Provider rate adjustments and payments to lawyers or the consultant are not individual settlement awards.

When are written objections due?

The notice sets December 7, 2026 as the written-objection deadline. Objections go to the federal court clerk in Concord and become public records. The notice and signed order also allow class members to speak at the hearing without a prior written objection.

Does a service gap guarantee immediate replacement care?

No. The agreement sets identification, contact, referral and other response duties, many starting after final approval. An initial contact deadline is not a deadline for completing every repair, and funding-dependent changes need the required approvals.

What if I agree with the proposed settlement?

The notice says no action is required if you agree. You may attend the hearing or information sessions. Read the notice's binding-effect warning and ask class counsel about questions specific to your rights.