A federal judge gave preliminary approval Oct. 7 to a settlement that would require New Hampshire to track missed in-home care and help participants find providers, according to the Disability Rights Center-New Hampshire.
Under the agreement, filed Oct. 5 in federal court in Concord, the health department would identify every month the people in its Choices for Independence program who received 50% or less of their authorized hands-on care. Their case management agencies would then have to act.
The deal would resolve a lawsuit filed in January 2021. U.S. District Judge Paul J. Barbadoro must still give final approval.
The program is a Medicaid waiver that pays for personal care, homemaker help, home health aides and skilled nursing so older adults and people with disabilities can stay out of nursing homes. Participants sued the Department of Health and Human Services, alleging that its failure to deliver authorized services put people at serious risk of unnecessary institutionalization, in violation of the Americans with Disabilities Act and the federal Rehabilitation Act. Barbadoro certified the class in November 2023 and in April denied both sides' motions for summary judgment. The two sides reached a tentative deal Sept. 4 after mediation before a federal magistrate judge, according to the plaintiffs' filing.
Monthly checks would begin 90 days after the settlement becomes final. Under the proposed agreement, the department would notify a participant's case management agency within two business days of finding a gap, and the agency would have to put the participant's contingency plan into effect or use a new online provider portal to make more referrals. The department would hire an outside consultant, at up to $175,000 a year, to test each year whether the provider network meets participants' needs, and would have to take steps to raise reimbursement rates if it does not. It would also have to decide requests for higher "specialized rates" within three business days and report on its compliance every six months.
The state would pay the class's lawyers $4 million in fees and costs, plus $60,000 a year for four years. The department admits no wrongdoing. The agreement provides for four years of oversight, with a limited extension of the rate provisions if the Legislature does not provide the required funding. The department agreed not to seek to end the program during the settlement.
"Without those services I cannot live in my home with my son," Emily Fitzmorris, one of the two class representatives, said in an Oct. 6 statement released by the plaintiffs' lawyers. Attorney General John M. Formella said in a statement that the settlement "strengthens accountability and oversight of the Choices for Independence program and provides a framework to address service gaps," the New Hampshire Bulletin reported Oct. 6.
Any rate adjustment remains subject to legislative appropriation and approval by the federal Centers for Medicare & Medicaid Services, the agreement says. The court-approved notice sets a Dec. 7 deadline for written objections. Class members may also object in person at the final-approval hearing on Jan. 21, 2027, at 2 p.m., at the federal courthouse, 55 Pleasant St., Concord. The court approved the notice Oct. 7.
Sources:
Court-approved class notice and objection instructions, updated Oct. 8, 2026
Case timeline and Oct. 7 preliminary-approval order
proposed class notice (Doc. 283-2), Oct. 5, 2026
plaintiffs' memorandum in support of preliminary approval (Doc. 284), Oct. 5, 2026