On April 23, 2026, a federal judge denied summary judgment in Fitzmorris v. New Hampshire DHHS, ruling that substantial evidence suggests New Hampshire's Choices for Independence (CFI) Medicaid program may be failing to provide adequate in-home support for approximately 5,000 disabled and elderly residents. The case, filed in 2021 by AARP Foundation, Disability Rights Center-NH, New Hampshire Legal Assistance, and Nixon Peabody, will now proceed to trial.

U.S. District Judge Paul Barbadoro's ruling hinges on whether the state is violating the Americans with Disabilities Act's integration mandate, established in Olmstead v. L.C., which prohibits unnecessary institutionalization of disabled individuals. For families across the country who rely on similar Medicaid Home and Community-Based Services (HCBS) waiver programs, this case is a reminder that states are legally required to administer these programs effectively, not just offer them on paper.

What Happened in New Hampshire

The lawsuit alleges that years of underfunding and mismanagement have left New Hampshire's CFI program unable to deliver services participants need to remain safely in their homes. The program is designed to help eligible older adults and people with disabilities live independently by providing personal care, skilled nursing, adult day care, home modifications, and respite care.

According to the Disability Rights Center-NH, the state's failure to properly administer the program puts participants at serious risk of unnecessary institutionalization in nursing facilities. The case was certified as a class action in 2023, greatly expanding its reach to cover thousands of CFI participants.

The court denied both parties' motions for summary judgment, concluding that material facts remain in dispute and must be resolved at trial. Judge Barbadoro is expected to set a trial date soon, according to reporting by the New Hampshire Bulletin.

The Olmstead Precedent and Why It Applies Here

The 1999 Supreme Court decision in Olmstead v. L.C. established that unjustified institutional isolation of persons with disabilities is a form of discrimination under Title II of the ADA. States must provide services in the most integrated setting appropriate to each individual's needs.

What that means in practice: if a state offers a Medicaid HCBS waiver program designed to keep people in their homes, the state can't underfund or mismanage that program to the point where participants are forced into nursing facilities they don't need and don't want. The state has a legal obligation to make the home-based option work.

New Hampshire's CFI waiver serves people who meet nursing facility level of care but want to remain in their communities. The plaintiffs argue that inadequate service delivery defeats the entire purpose of the waiver, effectively forcing institutionalization through neglect.

What This Means for Families Nationwide

Every state operates Medicaid HCBS waiver programs. The structure and names vary (New Hampshire calls it Choices for Independence; other states use terms like "home care waiver," "elderly and disabled waiver," or "community living waiver"), but the core function is the same: providing home and community-based services to people who would otherwise require institutional care.

When these programs fail, families face impossible choices. Inadequate home care leaves loved ones at risk. Nursing facility placement may be unnecessary, isolating, and far more expensive for the state (institutionalization typically costs states three times as much as home-based care, according to Medicaid planning resources).

The New Hampshire case affirms that offering a program on paper isn't enough. States must fund and administer HCBS waivers at a level that allows participants to access the services they're entitled to under the law.

How to Document Service Gaps in Your State's HCBS Waiver Program

If you're enrolled in a Medicaid HCBS waiver program and not receiving the services you're supposed to get, document everything.

Keep a log with dates, times, and specific service gaps. "Personal care aide scheduled for 20 hours/week; received 8 hours this week; no explanation provided." Write down what happened, what should have happened, and who you contacted about it.

File complaints with your state Medicaid office and your state's protection and advocacy organization. Every state has one; you can find yours through the National Disability Rights Network. These organizations provide legal advocacy for people with disabilities at no cost.

If you're on a waiting list for HCBS waiver services, track how long you've been waiting and whether the state has given you a projected timeline. States are required to have reasonable waiting times; multi-year waits with no explanation may violate federal law.

What Families Can Do Now

• Check your current service plan against what you're receiving. Document every gap in writing.
• Contact your state's protection and advocacy organization if your HCBS waiver services aren't being delivered as promised. Find yours at NDRN.org.
• Understand your Olmstead rights. You have a legal right to services in the most integrated setting appropriate to your needs, which for most people means home and community-based care, not institutional placement.
• If you're in New Hampshire and enrolled in CFI, monitor the Fitzmorris case through Disability Rights Center-NH's case page.

What Advocates Are Saying

"New Hampshire residents should not be forced into institutions because the State fails to follow the law," said William Alvarado Rivera, senior vice president and litigation counsel for AARP Foundation, in the April 23 press release. "The Court's decision makes clear that older adults and people with disabilities are not receiving the services they need."

Jennifer Eber, litigation director at Disability Rights Center-NH, added: "People's lives are at stake, and we remain determined to create a future where CFI participants can access the services they need to live independently."

The trial date has not yet been set. The case will determine whether New Hampshire's administration of its HCBS waiver program violates federal disability rights law and what remedies are required to bring the program into compliance.

For families across the country, the message is clear: Medicaid HCBS waiver programs aren't optional extras. They're legal obligations, and when states fail to deliver, families have recourse.