Fitzmorris v. N.H. Dep't of Health & Human Servs.

• Docket Number: 21-cv-25-PB,Opinion 2023 DNH 144
• Decision Date: 27 November 2023
• Parties: Emily Fitzmorris, et al. v. New Hampshire Department of Health and Human Services Commissioner Lori Weaver, et al.
• Court: U.S. District Court — District of New Hampshire

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Emily Fitzmorris, et al. v. New Hampshire Department of Health and Human Services Commissioner Lori Weaver, et al.

No. 21-cv-25-PB

Opinion No. 2023 DNH 144

United States District Court, D. New Hampshire

November 27, 2023

MEMORANDUM AND ORDER

Paul J. Barbadoro, United States District Judge

The plaintiffs in this putative class action are disabled individuals who are enrolled in New Hampshire's Choices for Independence (CFI) Waiver program, a Medicaid program administered by the New Hampshire Department of Health and Human Services (DHHS). The CFI Waiver program provides home and community-based care services to adults who would otherwise be Medicaid-eligible for nursing home care. The plaintiffs contend that DHHS's deficient operation of the CFI Waiver program has caused participants to be deprived of necessary medical services in violation of the Medicaid Act the Americans with Disabilities Act, and the Rehabilitation Act.

The plaintiffs filed an initial motion for class certification which I denied without prejudice after finding that the plaintiffs failed to establish commonality as required by Federal Rule of Civil Procedure 23(a)(2). The plaintiffs have now filed a renewed motion for class certification, supported by additional evidence. Because I conclude that the plaintiffs have satisfied each of the requirements of Rule 23, I grant their motion.

I. BACKGROUND

A. The CFI Waiver Program

“Medicaid is a cooperative federal-state program that provides medical care to needy individuals.” Douglas v. Indep. Living Ctr. of S. Cal., 565 U.S. 606, 610 (2012). States wishing to participate in the program must submit a “state Medicaid plan” that describes the services the state will provide and explains how it will administer the program. See 42 U.S.C. § 1396a. States may also apply for a “waiver” that exempts its state plan from certain requirements. See 42 U.S.C. § 1396n. Obtaining a waiver enables the state to establish a program to provide home and community-based services to persons who would otherwise require institutional care. See id.; see also 42 C.F.R. §§ 441.300 et seq.

New Hampshire established the CFI Waiver program pursuant to such a waiver. See Doc. 140-1 at 2. The program provides home and communitybased services to Medicaid-eligible adults who are “clinically eligible for nursing facility care because [they] require[] 24-hour care, ” N.H. Rev. Stat. Ann. § 151-E:3, but “prefer to be cared for at home or in other settings less acute than a nursing facility.” See N.H. Rev. Stat. Ann. §§ 151-E:1, II. DHHS is the state agency “responsible for CFI Waiver operations, including waiver program monitoring.” Doc. 23-3 at 15.

DHHS implements the CFI Waiver program through a network of eight private case management agencies that are licensed and regulated by the state. See Doc. 140-1 at 7. Once DHHS determines that an individual is eligible for the program, the participant is paired with a case management agency. N.H. Admin. R. He-E 805.07. The case management agency will then conduct an assessment to identify the participant's needs and develop a person-centered care plan describing the services required to meet those needs. N.H. Admin. R. He-E 805.05(b)-(c). “Once the person-centered plan is complete, the case manager will develop and submit to [DHHS] a service authorization request, which identifies the type and amount of all CFI Waiver program services the individual needs.” Doc. 140-1 at 8; see also N.H. Admin. R. He-E 801.05(b). DHHS must grant authorization for any services that are “necessary to meet the needs of the CFI Waiver participant.” Doc. 140-1 at 9; see also N.H. Admin. R. He-E 801.06(a).

Once authorization is received, the case management agency is tasked with coordinating the participant's waiver services, which are delivered by private service providers. See N.H. Admin. R. He-E 805.05(b)-(c). Case management agencies also have an ongoing responsibility to “[e]nsure that services . . . are being provided, as described in the [person-centered] care plan[.]” N.H. Admin. R. He-E 805.05(d). Nonetheless, case management agencies retain considerable discretion in determining how best to execute their responsibilities. See id.; N.H. Admin. R. He-E 805.10(c). Notwithstanding the substantial involvement of private actors, the proper administration of the CFI program remains the ultimate responsibility of DHHS. See Price v. Shibinette, 2021 DNH 179, 2021 WL 5397864, *10 (D.N.H. Nov. 18, 2021).

B. Statutory Requirements

Like all state Medicaid plans, the CFI Waiver program must comply with a number of federal statutes, including the Medicaid Act, the Americans with Disabilities Act, and the Rehabilitation Act. Under the Medicaid Act, all covered services must be furnished to eligible participants “with reasonable promptness.” See 42 U.S.C. § 1396a(a)(8); see also 42 U.S.C. § 1396d(a) (defining “medical assistance” to include “the care and services themselves”); O.B. v. Norwood, 838 F.3d 837, 843 (7th Cir. 2016). To this end, states must “[f]urnish Medicaid promptly to beneficiaries without any delay caused by the agency's administrative procedures[.]” 42 C.F.R. § 435.930(a); see also Vaughn v. Walthall, 968 F.3d 814, 824 (7th Cir. 2020) (applying § 435.930(a) to service delivery); B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 975 (9th Cir. 2019) (same); Doe v. Chiles, 136 F.3d 709, 717 (11th Cir. 1998) (same).

Accordingly, some courts have concluded that the so-called “reasonable promptness” provision of the Medicaid Act may be violated where the state's “administrative procedures” delay the provision of services. See Boulet v. Cellucci, 107 F.Supp.2d 61, 72-73 (D. Mass. 2000); see also Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 450 (6th Cir. 2020); Guggenberger v. Minnesota, 198 F.Supp.3d 973, 1012 (D. Minn. 2016). Cf. Albiston v. Me. Comm'r of Human Servs., 7 F.3d 258, 267 (1st Cir. 1993) (interpreting a substantially similar regulation under the Social Security Act as “equat[ing] reasonable ‘promptness' . . . with an absence of delay due to the State's administrative process”).

The CFI Waiver program must also comply with Title II of the Americans with Disabilities Act (Title II), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. §§ 794 et seq. Both Title II and Section 504 prohibit discrimination on the basis of disability.^[1] 42 U.S.C. § 12132; 29 U.S.C. § 794. In Olmstead v. L.C. ex rel. Zimring, the Supreme Court held that one form of prohibited discrimination is the “unjustified institutional isolation of persons with disabilities[.]” 527 U.S. 581, 600 (1999).

In the wake of Olmstead, both the Department of Justice and a majority of the courts of appeals have concluded that its holding “is not limited to individuals already subject to unjustified isolation, but also ‘extend[s] to persons at serious risk of institutionalization or segregation.'” Davis v. Shah, 821 F.3d 231, 262 (2d Cir. 2016) (quoting U.S. Dep't of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (updated Feb. 28, 2020), https://www.ada.gov/resources/olmstead-mandate-statement [hereinafter “DOJ Statement”]) (alterations in original). But see United States v. Mississippi, 82 F.4th 387, 392 (5th Cir. 2023) (concluding that Olmstead only applies to “actual institutionalization” rather than the “risk of institutionalization”). Accordingly, “a plaintiff may state a valid claim [under Title II] by demonstrating that the defendant's actions pose a serious risk of institutionalization for disabled persons.”^[2] Shah, 821 F.3d at 263.

Both Title II and Section 504 employ similar implementing regulations, two of which are relevant here: the methods of administration regulation and the integration mandate. The methods of administration regulation prohibits entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability[.]” See 28 C.F.R. § 35.130(b)(3)(i); see also 45 C.F.R. § 84.4(b)(4)(i); 28 C.F.R. § 41.51(b)(3)(i). Under this regulation, entities may not employ methods of administration that subject individuals to the risk of unjustified institutionalization. See, e.g., G.K. ex rel. Cooper v. Sununu, 2021 DNH 143, 2021 WL 4122517, *12 (D.N.H. Sept. 9, 2021); Day v. District of Columbia, 894 F.Supp.2d 1, 22 (D.D.C. 2012).

The integration mandate requires entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” See 28 C.F.R. § 35.130(d); see also 45 C.F.R. § 84.4(b)(2); 28 C.F.R. § 41.51(d). “The most integrated setting is defined as a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 18 (1st Cir. 2019) (hereinafter PPAL) (cleaned up).

Nonetheless the state's obligation to provide services in the most-integrated setting “is not boundless.” Olmstead, 527 U.S. at 603. While a state is required to “make reasonable modifications in policies, practices, or procedures” where “necessary to avoid discrimination on the basis of disability, ” it need not make modifications that “would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Thus, states must provide services in the community, rather than in institutional settings, only where (1) “the State's treatment professionals determine that [community] placement is appropriate;” (2) “the...