A federal judge has cleared the way for a trial that could reshape how New Hampshire delivers long-term care to roughly 5,000 of its most vulnerable residents. Judge Paul Barbadoro of the U.S. District Court of New Hampshire denied a series of summary-judgment motions filed by both sides in Fitzmorris v. New Hampshire Department of Health and Human Services, a class action over the state’s Choices for Independence program. As the New Hampshire Bulletin reported, Barbadoro is expected to set a trial date soon.

The ruling does not decide the case. It does decide that the case is ripe enough, and the disputes of fact serious enough, that a courtroom — not a motion calendar — is where Choices for Independence’s future will be sorted out.

What Choices For Independence Actually Does

Choices for Independence is a Medicaid-funded program that pays for the care a Granite Stater needs to stay in her own home rather than move into a nursing facility. For a participant who uses a wheelchair, that might mean a personal care aide who comes to the house in the morning, helps her get out of bed and into the shower, helps her dress, and sees her into her day. For an older participant, it might mean someone to deliver groceries, prep meals, and check that the medications are sorted. The shape of the help varies. The point is constant: keep the participant home.

To qualify, a person has to have a condition or disability that would otherwise make her Medicaid-eligible for nursing-home placement. Choices for Independence is, in other words, the cheaper, more humane alternative — and the cost numbers presented in court back that up. Evidence introduced in Fitzmorris indicates the state spends roughly three times as much to house someone in a nursing facility as it spends to deliver the in-home care that keeps her out of one. About 5,000 New Hampshire residents currently participate.

That is the program. The lawsuit is about whether New Hampshire is letting it work.

What The Plaintiffs Argue

The case began in 2021, when a coalition of nonprofits and law firms sued the state. The plaintiffs include the AARP Foundation, the Disability Rights Center-NH, New Hampshire Legal Assistance, and the private firm Nixon Peabody. Their argument is straightforward: years of underinvestment in Choices for Independence — and in particular, a chronic and unaddressed shortage of personal care aides — have starved the program to the point that participants face a real, foreseeable risk of being pushed into nursing homes anyway.

That risk, the plaintiffs say, runs afoul of the 1990 Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act, which together protect Americans from being institutionalized when community-based alternatives are available. The U.S. Supreme Court’s landmark 1999 decision in Olmstead v. L.C. — the case that anchors most modern disability-rights litigation in the long-term care space — sits behind the claim. In 2023, the litigation was certified as a class action, dramatically expanding its reach beyond the named plaintiffs.

The state’s defense, mounted by the private firm Brown & Peisch on behalf of the Department of Health and Human Services, has run on two tracks. The plaintiffs, the state argues, are asking for relief that goes beyond what the ADA and Rehabilitation Act actually require. And the institutionalization risk, the state contends, is not as substantial in practice as the plaintiffs claim. The department has acknowledged that Choices for Independence is short-staffed. It has not committed to fixing the shortage on its own — that is, without a court order forcing the issue.

That posture is what produced summary-judgment motions on both sides. Barbadoro’s denial means the disputes — about the actual risk of institutionalization, about the legal scope of what the state owes participants, and about whether the staffing shortage has crossed the line from operational problem to civil-rights violation — go to trial.

Why This Lands Politically

Choices for Independence does not exist in isolation in the New Hampshire health-policy landscape. Our coverage of the foundation Medicaid lays under New Hampshire’s healthcare system explained why a single Medicaid line item is rarely just a line item — Medicaid is the load-bearing wall under most of the state’s care infrastructure. The same logic applies here. A successful Fitzmorris verdict would, in practical terms, force the state to either fund the program at a level that keeps participants out of nursing homes or accept that the gap is itself a federal violation.

It also lands in a session that has already produced visible fights over the state’s care obligations to vulnerable people. Coverage of the broader issues at the Sununu Youth Services Center — and the legislative scrutiny it has drawn — runs on parallel tracks: state systems that depend on staffing the state has not fully provided, and the federal-court oversight that follows when the gap goes too long unaddressed.

What Comes Next

A trial date has not yet been set. When Barbadoro sets one, both sides will move into trial preparation in earnest. For the 5,000 New Hampshire residents currently relying on Choices for Independence to stay in their own homes — and the family caregivers, agencies, and aides who fill the gaps the program already cannot cover — the practical question is the same as it has been since 2021: does the program work well enough to keep them home, and if it does not, who is going to fix it?

That answer now goes to a courtroom.

Frequently Asked Questions

For related coverage, see our reporting on Federal Childcare Subsidy Rollbacks Pose Little Threat to New Hampshire’s Sch….

What is the Choices for Independence program?

Choices for Independence is a Medicaid-funded New Hampshire program that pays for the home-based care needed to keep eligible residents — primarily older adults and people with physical disabilities — out of nursing facilities. About 5,000 people currently participate. To qualify, a person must have a condition or disability that would otherwise make her Medicaid-eligible for nursing-home placement.

What is the Fitzmorris lawsuit about?

Fitzmorris v. NHDHHS is a class action filed in 2021 by the AARP Foundation, the Disability Rights Center-NH, New Hampshire Legal Assistance, and the firm Nixon Peabody. The plaintiffs argue that years of underinvestment — particularly a chronic personal-care-aide shortage — have left Choices for Independence unable to keep participants out of nursing homes, in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

What did Judge Barbadoro decide?

Judge Paul Barbadoro denied summary-judgment motions filed by both the plaintiffs and the state, meaning neither side prevailed at the pre-trial stage. The ruling sends the case to a jury or bench trial. A trial date has not yet been set, but Barbadoro is expected to schedule one soon.