CONCORD — The state is shirking its responsibility to provide at-home care that keeps elderly and disabled people out of nursing homes, advocates said in a federal lawsuit filed Monday.
The class action suit was filed by four New Hampshire residents. It details the struggles they say they face because the state Department of Health and Human Services is not providing adequate care under its Choices for Independence program.
The Medicaid-funded program provides home and community-based care as an alternative to more expensive nursing home care. As many as 3,500 people have been deemed eligible for the program, the lawsuit said.
Many beneficiaries are one crisis away from unnecessary institutionalization, and that means going to a nursing home, where they would be at a higher risk for COVID-19, the suit says.
“We just reached a point where our clients can no longer wait,” said Geron Gadd, senior staff attorney with the AARP Foundation in Washington. Also signing onto the suit are New Hampshire Legal Assistance, the Disability Rights Center and the Nixon Peabody law firm.
A spokeswoman said the Attorney General’s Office has yet to receive a copy of the complaint, but will respond when it does.
The suit faults the state for improper administration of the program. Gadd said about a dozen similar lawsuits have been filed across the country.
The suit seeks class designation for any New Hampshire resident deemed eligible for the program.
Among the initial plaintiffs:
Stephanie, 34, has a host of diseases and syndromes that keep her in a bed or wheelchair. Without the services, Stephanie remains for long periods in her bed, sometimes in her own urine, and is unable to bathe, use the bathroom or prepare appropriate meals. The suit said her mobility has deteriorated and at times she falls, necessitating a call to 911.
Emily suffers paralysis from an accident and is due 37 hours a week of personal, home and nursing care. She gets about four to six hours a week of nursing services. Her 70-year-old mother has postponed hip replacement surgery for two years so she can take care of Emily.
Kathleen suffers from cerebral palsy and scoliosis and needs help moving from her bed to her wheelchair. She’s been authorized for 35 hours of care a week but only gets a few hours. “When service workers are not available, Kathleen must choose between lying in her bed and going without food or water or calling her friend who has a limited ability to assist,” the complaint reads.
The lawsuit faults the state for not making efforts to recruit and train would-be providers. And it said the state has not set adequate rates for providers.
The lawsuit claims the state does not spend all the funds it earmarks for the program. Expenses for traditional Medicaid programs are split 50-50 between the state and federal governments.
Class action suits can be complex and time-consuming, and Gadd said this suit will require the state to turn over massive amounts of information.
Kierstan Schultz, a lawyer with Nixon Peabody, said that the lawsuit does not seek monetary damages. It seeks a judge to order the state to start providing adequate services.
“There’s really nothing holding the state back from choosing a different path here,” Schultz said.