Price et al v. NH Department of Health and Human Services, Commissioner et al
ORDER denying 23 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro. (js)
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 1 of 38
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stephanie Price et al.
Case No. 21-cv-25-PB
Opinion No. 2021 DNH 179
Lori Shibinette, Commissioner of
the New Hampshire Department of
Health and Human Services et al.
MEMORANDUM AND ORDER
Plaintiffs in this class action are disabled individuals
enrolled in New Hampshire’s Choices for Independence Waiver
(“CFI Waiver”), a Medicaid program administered by the New
Hampshire Department of Health and Human Services (“DHHS” or
The CFI Waiver program provides home and
community-based care services to adults who otherwise would be
Medicaid-eligible for nursing home care.
The complaint alleges
that DHHS and its Commissioner have failed to remedy defects in
the administration of the program, leading to significant gaps
in plaintiffs’ waiver services that place them at risk of
Plaintiffs seek declaratory
and injunctive relief on behalf of themselves and a putative
class, alleging violations of Title II of the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, the
Medicaid Act, and the Fourteenth Amendment’s due process clause.
Defendants move to dismiss the complaint for failure to state a
For the following reasons, I deny the motion.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 2 of 38
The Medicaid Program
Medicaid is the primary federal program for providing
medical care to needy individuals.
The program is subsidized by
the federal government and administered by each participating
To opt in to the program, a state must submit to the
Secretary of the U.S. Department of Health and Human Services
(“Secretary”) for approval a “State Plan,” which describes the
services that the state will cover through Medicaid and how the
state will administer the program.
See 42 U.S.C. § 1396a.
Services provided through Medicaid are subject to several
requirements, including that they must be available state-wide,
see id. § 1396a(a)(1), and comparably offered to all eligible
individuals, see id. § 1396a(a)(10)(B).
Section 1915(c) of the Social Security Act (in which the
Medicaid Act is embedded) authorizes the Secretary to waive
certain Medicaid rules when a state applies to establish a
program to provide home and community-based services to persons
who otherwise would require institutionalization.
§ 1396n(c); 42 C.F.R. §§ 441.300 et seq.
In its application for
a § 1915(c) waiver, a state must provide a range of assurances
to the Secretary concerning waiver services.
One such assurance
is that “necessary safeguards (including adequate standards for
provider participation) have been taken to protect the health
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 3 of 38
and welfare of individuals provided services under the waiver
and to assure financial accountability for funds expended with
respect to such services.”
C.F.R. § 441.302.
42 U.S.C. § 1396n(c)(2)(A); see 42
Another assurance is that the average per
capita expenditures for persons receiving benefits under the
waiver do not exceed the average estimated per capita cost of
providing Medicaid services to the same group of individuals in
an institutional setting.
See 42 U.S.C. § 1396n(c)(2)(D).
New Hampshire’s Long-Term Care Statute
New Hampshire has in place a statutory scheme for long-term
care of Medicaid-eligible adults.
Ann. § 151-E.
See generally N.H. Rev. Stat.
It was enacted in part to “expand choices
available” to persons who qualify for nursing home services but
who “prefer to be cared for at home or in other settings less
acute than a nursing facility.”
Id. § 151-E:1.
Care statute provides that an eligible person “shall have the
right to receive nursing facility services; however, the person
shall be offered and may choose to receive services in a less
restrictive setting if such services are available” under a
Medicaid waiver program for home and community-based care.
§ 151-E:4, I; see id. §§ 151-E:2, IV, VI; 151-E:3.
for waiver services, individuals must be at least 18 years of
age, clinically eligible for nursing facility care, and
financially eligible for Medicaid coverage.
See id. § 151-E:3,
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Clinical eligibility criteria require a qualified medical
professional working for DHHS to determine that the individual
requires 24-hour care.
See id. § 151-E:3, II.
authorizes DHHS to promulgate rules for the operation of the
See id. § 151-E:12.
The CFI Waiver Program
Pursuant to the Long-Term Care statute, New Hampshire has
sought and obtained a § 1915(c) waiver from the Secretary to
provide home and community-based services to Medicaid-eligible
persons who choose this alternative over nursing home placement.
The waiver program has come to be known as the CFI Waiver
The state’s § 1915(c) waiver application and
administrative rules promulgated by DHHS outline how the program
See Doc. No. 23-3 (§ 1915(c) waiver application);
N.H. Admin. R. He-E 801, 805. 2
DHHS is the state’s Medicaid agency “responsible for CFI
waiver operations, including waiver program monitoring.”
No. 23-3 at 15.
It employs “state staff who are specifically
designated to oversee the performance of each entity performing
It was formerly named the Home and Community-Based Care for the
Elderly and Chronically Ill program.
The relevant administrative rules are publicly available at:
(last visited November 17, 2021).
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 5 of 38
waiver operational and administrative functions.”
Id. at 17.
The Commissioner of DHHS (“Commissioner”) has “the ultimate
authority over all of NH’s [home and community-based service]
Id. at 15.
Applications for enrollment into the CFI Waiver program are
submitted to and processed by DHHS.
The Department enrolls
eligible participants after determining their financial and
clinical eligibility and verifying that they can be served with
home or community-based services at a cost no greater than the
average annual cost of nursing facility placement.
Admin. R. He-E 801.03, 801.04.
Following enrollment, a CFI participant either selects or
is assigned to a case management agency from a list provided by
See He-E 805.07.
Case management agencies are private
entities licensed by the state and enrolled as Medicaid
They contract with DHHS “to provide
targeted case management services to CFI participants.”
Those services include assisting participants in
gaining access to the needed CFI waiver services and
coordinating with the participants’ service providers.
Each participant is assigned a case manager who
works for the case management agency and is primarily tasked
with delivering the required case management services to the
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 6 of 38
At the outset, the designated case manager must work with
the participant to develop a written “comprehensive care plan
through a person-centered planning process.”
see He-E 805.05(c).
This care plan must identify all requested
waiver services, the names of selected providers of those
services, and any unfulfilled needs or gaps in services.
CFI waiver services that a participant may request
include, among others, home health aide, homemaker, personal
care, and skilled nursing services.
He-E 801.12(b); see He-E
801.14-801.28 (defining and setting forth requirements for each
type of CFI waiver service).
The participant has “the right to
freely select from among any willing and [Medicaid-]qualified
providers of waiver services.”
Doc. No. 23-3 at 134.
managers inform participants of all eligible Medicaid providers
in their geographical area and apprise them of their right to
self-direct their services and choose providers who are not yet
enrolled but who wish to become Medicaid providers.
Once the comprehensive care plan is prepared, the case
manager must request authorization from DHHS for the services
contained in the plan, including the specific providers the
participant has selected.
authority for approval” of the plan.
“DHHS has the final
Doc. No. 23-3 at 135.
Department must authorize services that are consistent with the
The authorization must
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 7 of 38
describe “specific types, units, and frequencies of medical and
other services” and must “be issued to specific service
providers identified by the participant’s case manager.”
Each service provider whom DHHS authorizes to provide
waiver services must develop a written care plan for the
That plan must contain, among
other information, a description of the participant’s needs and
the scope of services to be provided.
ensure that this provider-specific care plan is consistent with
and addresses the service needs identified in the participant’s
comprehensive care plan, the provider must communicate the
elements of the care plan to the participant’s case manager.
He-E 801.30(a)(2), (5).
Authorized waiver services are eligible for payment when
they are provided as specified in the participant’s
comprehensive care plan and comply with the DHHS criteria for
the type of service at issue.
payment, a provider must submit a claim to the state’s Medicaid
fiscal agent within one year of the service date.
Payments are made in accordance with rates
established by DHHS, which must follow statutory rate-setting
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 8 of 38
A case manager is responsible for ongoing monitoring of the
participant’s comprehensive care plan and attendant waiver
He-E 805.02(d); see Doc. No. 23-3 at 136.
includes making at least one monthly telephonic contact and one
in-person contact with the participant every sixty days.
Among the goals of such monitoring is for the case
manager to ensure “that services are adequate and appropriate
for the participant’s needs, and are being provided, as
described in the comprehensive care plan” and “that the
participant is satisfied with the comprehensive care plan.”
E 805.05(d)(2), (4).
The state does not operate a system that affords CFI
participants the opportunity to register grievances or
complaints with DHHS concerning the delivery of services under
the CFI Waiver program.
See Doc. No. 23-3 at 174-75.
administrative regulations require each case management agency
to establish its own written policies and procedures for
participant complaints, including how participants are informed
of those policies and procedures.
agency must ensure that grievance procedures are followed and
The regulations also provide for quality management reviews
of case management agencies.
Each agency must conduct quarterly
reviews of a sample of participant records and any reported
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 9 of 38
complaints relating to the delivery of waiver services.
The purpose of the participant record review is “to
evaluate the delivery of services identified in the
comprehensive care plan to ensure that participants’ needs are
being met in the community.”
The agency must
document the results of its reviews in reports that include any
deficiencies that were identified, remedial actions planned or
taken, and a summary of unmet service needs.
Quarterly quality management reports must be retained for
two years and made available to DHHS upon request.
At least once a year, DHHS must make a monitoring visit to
each case management agency.
visit, DHHS reviews a sample of participant records, quarterly
quality management reports, and agency employee records related
to provider qualifications.
discovers “individual problems,” it remedies them through
discussions with the case management agency or the responsible
Doc. No. 23-3 at 53.
trends are suspected or confirmed,” DHHS conducts a quality
improvement review and shares suggested remediation strategies
with the involved agency or provider.
The Department may
also require the submission of a corrective action plan and
conduct a follow-up to evaluate the effectiveness of the
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 10 of 38
Another option available to DHHS
is terminating the Medicaid provider participation agreement,
which would preclude that agency or provider from participating
in the CFI Waiver program.
See id. at 114-15.
The “Fair Hearing” Regime
Section 1902(a)(3) of the Social Security Act requires that
state Medicaid plans “provide for granting an opportunity for a
fair hearing before the State [Medicaid] agency to any
individual whose claim for medical assistance under the plan is
denied or is not acted upon with reasonable promptness.”
U.S.C. § 1396a(a)(3).
The federal regulations implementing this
provision state that this fair hearing regime “must meet the due
process standards set forth in Goldberg v. Kelly, 397 U.S. 254
(1970), and any additional standards specified in this subpart.”
42 C.F.R. § 431.205(d).
The regulations also specify when notice must be provided
to individuals under the fair hearing regime.
The circumstances that trigger the notice
requirement include when (1) an individual first applies to
Medicaid; (2) the state agency denies a claim for eligibility,
benefits, or services; (3) the state agency terminates,
suspends, or reduces an individual’s services or eligibility; or
(4) there is a request for a hearing by an individual who
“believes” that the state agency has either denied a claim for
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 11 of 38
eligibility, benefits, or services, not acted upon the claim
with reasonable promptness, or erroneously terminated,
suspended, or reduced that individual’s services or eligibility.
See id. §§ 431.206(c), 431.201, 431.220(a).
contents of the notice are governed by § 431.210.
The CFI Waiver program provides a hearing regime for
claimants that incorporates by reference the federal regulations
See Doc. No. 23-3 at 169.
§ 1915(c) waiver application specifies that individuals are
entitled to an administrative hearing when (1) they are not
given the choice of CFI Waiver services as an alternative to
institutional care, (2) they are denied services or providers of
their choice, or (3) their services are denied, suspended,
reduced, or terminated.
promulgated by DHHS further guarantee a hearing to any “person
adversely affected by a [DHHS] decision or action.”
R. He-C 201.02(b).
The regulations also specify when DHHS must provide
individualized notice of an applicant’s right to a hearing.
Notice is required (1) upon a determination of ineligibility for
the CFI Waiver program, He-E 801.04(e); (2) when DHHS does not
authorize all the waiver services requested, He-E 801.06(d); (3)
upon termination of eligibility for the program, He-E 801.07(e);
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 12 of 38
and (4) when the waiver services previously authorized are
reduced or terminated, id.
Under this regime, a hearing is deemed to be an “appeal” of
a decision made by DHHS.
See N.H. Rev. Stat. Ann. § 126-A:5,
VIII; N.H. Admin. R. He-C 201.01.
A presiding officer appointed
by the Commissioner conducts the hearing and makes a final
decision on behalf of the Commissioner unless the Commissioner
orders otherwise in a particular matter.
Commissioner’s final decision may be challenged on appeal to the
New Hampshire Supreme Court.
See N.H. Rev. Stat. Ann. § 541:6;
N.H. Sup. Ct. R. 10.
The named plaintiffs in this action, Stephanie Price, Emily
Fitzmorris, and Kathleen Bates, are disabled New Hampshire
residents who have been enrolled in the CFI Waiver program and
authorized to receive a range of waiver services concomitant
with their needs. 3
They have struggled to receive the full
extent of their authorized waiver services on a timely and
They bring this suit on behalf of themselves
and a class of similarly situated persons against DHHS and its
Commissioner Lori Shibinette on the ground that defendants’
Paul Scott was also a named plaintiff but recently passed away.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 13 of 38
failure to adequately administer the CFI Waiver program violates
plaintiffs’ federal statutory and constitutional rights.
The complaint alleges that defendants’ deficient
administration of the program has caused plaintiffs to go
without the CFI waiver services “in the amount and with the
frequency that they have been assessed to need.”
Doc. No. 1.
Compl. ¶ 32,
Plaintiffs claim that they “suffer protracted
delays in the onset of all or part of their waiver services,
frequent interruptions in their waiver services,  or the
unexpected cessation of their waiver services.”
Id. ¶ 33.
Plaintiffs refer to these delays and interruptions in service as
The severity of such service gaps is
alleged to place plaintiffs at risk of needing to be
institutionalized to receive the care they need.
experiences of the three named plaintiffs are illustrative.
Price is thirty-four years old and lives in an apartment.
She is disabled, requires administration of medication through a
port, and uses a wheelchair for mobility.
She wants to live in
her home, regain her mobility, and avoid institutionalization.
In September 2019, DHHS determined that Price was eligible for
the CFI Waiver program.
The Department authorized her request
for personal care and homemaker services in the amount and
frequency consistent with her needs.
Price, however, had to
wait nearly a year to receive any waiver service and since then
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 14 of 38
has received only a fraction of the authorized services.
brother and mother provide her with some support, but without
the full extent of the waiver services for which she has been
approved, Price remains for long periods of time in her bed,
sometimes in her own urine, and is unable to bathe, toilet, and
prepare appropriate meals.
As a result, her mobility has
deteriorated, and she has experienced falls and infections, some
of which have required hospitalization.
Id. ¶¶ 71-78.
Fitzmorris is a thirty-six-year-old mother who became a
tetraplegic as a result of an accident in 2018.
She lives in
her own apartment with her teenage son, wants to continue living
in her own home safely and with reliable services, and wants to
In December 2018, DHHS determined
that Fitzmorris was eligible for enrollment in the CFI Waiver
She was authorized to receive 37 hours a week of
personal care, homemaker, and nursing services through the
Other than for brief periods of time since December
2018, Fitzmorris has not been provided those waiver services.
Apart from four to six hours of nursing services she receives
every week through the Visiting Nurses Association, Fitzmorris
must rely on her 70-year-old mother to assist her on a daily
Without the waiver services she has been authorized to
receive, she is at risk of developing pressure sores,
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 15 of 38
infections, and other complications that could result in
Id. ¶¶ 79-85.
Bates, who is fifty-nine years old, has been diagnosed with
cerebral palsy and scoliosis.
She lives in a home that she
rents from her parents and wants to continue living there.
uses a wheelchair and needs assistance for transfers in and out
of bed and chair, dressing, toileting, and bathing.
determined that Bates was eligible for waiver services in 1992.
Currently, she is authorized to receive over 35 hours a week in
personal care services but is getting only a few hours of those
services every week.
When her service providers are not
available, she must choose between staying in bed without food
and water or calling a friend who has a limited ability to
These circumstances are jeopardizing her health and
putting her at risk of institutionalization.
Id. ¶¶ 86-92.
Plaintiffs allege that defendants’ shoddy administration of
the CFI Waiver program is the root cause of their service gaps.
There are four categories of systemic deficiencies in the
administration of the program alleged in the complaint.
First, defendants have allegedly failed to attract or
recruit a sufficient number of providers for some waiver
Plaintiffs allege that there is a “longstanding and
well-documented shortage of available service providers.”
This shortage has impacted some waiver services more than
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 16 of 38
others, with personal care, home health aide, and homemaker
services experiencing a “particularly acute” scarcity of
Id. ¶ 35.
The lack of available service providers
allegedly results in part from defendants’ failure to set
adequate rates of compensation for CFI Waiver services relative
to the compensation provided to nursing facilities.
Id. ¶ 36.
Defendants also have purportedly “failed to take reasonable nonmonetary measures” to expand the number of waiver service
providers, including failing to engage in “active efforts to
recruit, train, and place would-be providers.”
Id. ¶ 37.
Second, defendants have allegedly failed to adequately
monitor whether CFI participants are receiving their authorized
Plaintiffs assert that defendants do not
“attempt to systematically and accurately quantify the
discrepancy between” the authorized services and the services
CFI participants actually receive.
Id. ¶ 39.
defendants do not solicit reports from the participants’ case
managers on the nature or magnitude of service gaps.
Id. ¶ 40.
Third, defendants have allegedly failed to act when they
have been advised of service gaps.
The complaint alleges that
DHHS has payment data showing that the authorized waiver
services are significantly underutilized.
See id. ¶ 45.
defendants have purportedly failed to take reasonable action in
response, such as developing an adequate infrastructure for
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 17 of 38
self-directed care or reforming program policies and procedures
that allegedly offer “unclear directives to case management and
service provider agencies” and fail to ensure “a coherent and
effective working system for assessments, service
authorizations, care planning, and service delivery.”
Fourth, the complaint alleges that defendants have failed
to provide plaintiffs with adequate notice of their right to
challenge their service gaps in an administrative hearing.
Plaintiffs maintain that those service gaps amount to
“effective” denials, terminations, or reductions of their waiver
See id. ¶¶ 55-57.
As a result, plaintiffs assert
that defendants are required to provide them with notice that
they have the right to challenge service gaps via the
administrative hearing process described above.
The alleged actions and omissions attributed to defendants
form the basis of three sets of claims asserted in the
complaint: (1) violations of the integration mandate and the
methods of administration regulation promulgated under Title II
of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12131 et seq., and Section 504 of the Rehabilitation Act
(“the Rehabilitation Act”), 29 U.S.C. §§ 794 et seq. (Counts IIV); (2) denial of reasonably prompt services in violation of
Title XIX of the Social Security Act (“the Medicaid Act”), 42
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U.S.C. § 1396a(a)(8) (Count V); and (3) failure to provide
adequate notice of an opportunity to be heard when service gaps
arise, in violation of federal procedural due process and the
Medicaid Act, 42 U.S.C. § 1396a(a)(3) (Counts VI-VII)(“fair
Defendants have challenged the sufficiency of
plaintiffs’ allegations and moved to dismiss the complaint in
STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a plaintiff must make factual allegations
sufficient to “state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
A claim is facially
plausible if it “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
In testing a complaint’s sufficiency, I employ a two-step
See Ocasio–Hernández v. Fortuño-Burset, 640 F.3d 1,
12 (1st Cir. 2011).
First, I screen the complaint for
statements that “merely offer legal conclusions couched as fact
or threadbare recitals of the elements of a cause of action.”
Id. (cleaned up).
A claim consisting of little more than
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 19 of 38
“allegations that merely parrot the elements of the cause of
action” may be dismissed.
Second, I credit as true all
non-conclusory factual allegations and the reasonable inferences
drawn from those allegations and then determine if the claim is
The plausibility requirement “simply calls for
enough fact to raise a reasonable expectation that discovery
will reveal evidence” of illegal conduct.
Twombly, 550 U.S. at
The “make-or-break standard” is that those allegations and
inferences, “taken as true, must state a plausible, not a merely
conceivable, case for relief.”
Sepúlveda–Villarini v. Dep’t of
Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).
Defendants contend that plaintiffs’ three sets of claims
fail to state viable claims for relief.
First, they argue that
plaintiffs’ disability discrimination claims must be dismissed
primarily because (1) private entities, not defendants, are
responsible for the alleged service gaps, and (2) plaintiffs are
improperly attempting to use the ADA and the Rehabilitation Act
to assert standard of care claims. 4
Second, defendants maintain
The relevant provisions of the Rehabilitation Act mirror the
ADA, and the parties’ briefing assumes that the claims under the
two statutes are coextensive. Cf. Theriault v. Flynn, 162 F.3d
46, 48 n.3 (1st Cir. 1998) (“Title II of the ADA was expressly
modeled after Section 504 of the Rehabilitation Act, and is to
be interpreted consistently with that provision.”). For ease of
reference, I discuss the claims in terms of the ADA.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 20 of 38
that plaintiffs’ Medicaid Act and due process claims fail for
lack of state action.
In the alternative, defendants argue that
plaintiffs’ fair hearing claims must be dismissed because the
CFI Waiver program’s hearing regime provides plaintiffs with
adequate notice and opportunity for a hearing to challenge any
I address defendants’ arguments in turn and
conclude that they are not persuasive.
Disability Discrimination Claims
The complaint alleges that the CFI Waiver program offers
long-term care services in the most integrated settings
appropriate to plaintiffs’ needs – their homes and communities.
Defendants’ failure to remedy unnecessary gaps in those services
as part of their administration of the program, however, is
alleged to place plaintiffs at risk of unnecessary
institutionalization in violation of the ADA.
their claims on an ADA regulation known as the integration
mandate and a related methods of administration regulation.
Defendants argue that these claims must be dismissed principally
because (1) they seek to hold defendants liable for private acts
or omissions of the third-party case management agencies and
case managers who are responsible for the alleged service gaps,
and (2) they amount to standard of care claims that are not
cognizable under the ADA.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 21 of 38
The Integration Mandate and the Methods of
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.”
The Department of Justice (“DOJ”) has issued
regulations implementing this provision, two of which are at
issue in this case: the integration mandate and the methods of
The integration mandate requires a public entity to
“administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities.”
28 C.F.R. § 35.130(d).
preamble to the regulation defines “the most integrated setting”
as “a setting that enables individuals with disabilities to
interact with nondisabled persons to the fullest extent
28 C.F.R. Pt. 35, App. B.
Relatedly, public entities may not “utilize criteria or
methods of administration . . . [t]hat have the effect of
subjecting qualified individuals with disabilities to
28 C.F.R. § 35.130(b)(3).
recognized methods of administration claims as distinct causes
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 22 of 38
See, e.g., Kenneth R. ex rel. Tri-Cnty. CAP, Inc./GS
v. Hassan, 293 F.R.D. 254, 259-60 (D.N.H. 2013); Day v. District
of Columbia, 894 F. Supp. 2d 1, 22-23 (D.D.C. 2012). 5
A public entity must make “reasonable modifications in
policies, practices, or procedures” to ensure that the offered
services are provided in the most integrated setting.
C.F.R. § 35.130(b)(7).
This obligation, however, is not
The regulations “allow States to resist
modifications” to the extent such modifications “entail a
fundamental alteration” of the offered services and programs.
Olmstead v L.C. ex rel. Zimring, 527 U.S. 581, 603 (1999)
(cleaned up); see 28 C.F.R. § 35.130(b)(7).
The integration mandate reflects the DOJ’s view “that
unjustified placement or retention of persons in institutions,
severely limiting their exposure to the outside community,
constitutes a form of discrimination based on disability
prohibited by Title II.”
Olmstead, 527 U.S. at 596.
Supreme Court has identified “two evident judgments” in the
Id. at 600.
The first is that “institutional
To the extent defendants argue that a methods of administration
claim cannot be based on an alleged failure to provide services
in the most integrated setting appropriate, I recently rejected
the same argument in G.K. v. Sununu, 2021 DNH 143, 2021 WL
4122517, at *12 (D.N.H. Sept. 9, 2021) (citing 28 C.F.R.
§ 35.130(d)). Defendants cite no authority that would give me
cause to reexamine my interpretation of the regulation.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 23 of 38
placement of persons who can handle and benefit from community
settings perpetuates unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in community
The second is that “confinement in an institution
severely diminishes the everyday life activities of individuals,
including family relations, social contacts, work options,
economic independence, educational advancement, and cultural
Id. at 601.
In Olmstead, the Supreme Court
concluded that the DOJ’s views embodied in the integration
mandate “warrant respect” in part because “Congress explicitly
identified unjustified segregation of persons with disabilities
as a form of discrimination.”
Id. at 598-600 (cleaned up).
Olmstead ultimately “held that the word discrimination as used
in § 12132 includes not only disparate treatment of comparably
situated persons but also undue institutionalization of disabled
persons, no matter how anyone else is treated.”
rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 874
(7th Cir. 2013) (cleaned up).
Following Olmstead, the DOJ released informal guidelines
“directing that the integration mandate be read broadly.”
Steimel v. Wernert, 823 F.3d 902, 911 (7th Cir. 2016).
DOJ’s guidance specifies that “[i]ntegrated settings are located
in mainstream society.”
U.S. Dep’t of Justice, Statement of the
Department of Justice on Enforcement of the Integration Mandate
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 24 of 38
of Title II of the Americans with Disabilities Act and Olmstead
v. L.C. (June 22, 2011). 6
Such settings “offer access to
community activities and opportunities at times, frequencies and
with persons of an individual’s choosing; afford individuals
choice in their daily life activities; and, provide individuals
with disabilities the opportunity to interact with non-disabled
persons to the fullest extent possible.”
In line with the DOJ’s view, the Seventh Circuit has held
that the integration mandate, by its plain terms, must be read
broadly and that the DOJ’s interpretation is entitled to
See Steimel, 823 F.3d at 911.
The court reasoned
that the mandate is written in “maximalist language” that
“demands the most integrated setting appropriate, which it
defines as allowing interaction with non-disabled persons to the
fullest extent possible.”
Id. (cleaned up).
mandate thus “logically applies to all settings, not just to
institutional settings” and “bars unjustified segregation of
persons with disabilities, wherever it takes place.”
Available at https://www.ada.gov/olmstead/q&a_olmstead.htm
(last visited November 17, 2021).
I disagree with defendants’ narrow reading of the integration
mandate as only prohibiting isolation for which the sole
explanation is impermissible discrimination based on disability.
As I explained in rejecting a similar argument in G.K., this
view is inconsistent with both the plain language of the
integration mandate and the Supreme Court’s holding in Olmstead.
See G.K., 2021 WL 4122517, at *11.
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 25 of 38
Whether the Complaint Seeks to Hold Defendants Liable
for Actions of Third Parties
Defendants argue that plaintiffs’ integration mandate and
methods of administration claims fail because they are premised
on the actions and omissions of private actors – case management
agencies and case managers – for which defendants cannot be held
According to defendants, it is those private actors who
are responsible for the service gaps that plaintiffs allege are
placing them at risk of institutionalization.
attempt to recast the complaint’s allegations to disclaim their
alleged role in causing the service gaps fails to persuade.
The complaint plausibly alleges that defendants are
responsible for administering the CFI Waiver program, that the
program was designed to provide plaintiffs with long-term care
services in the most integrated settings appropriate to their
needs, and that defendants have failed to administer that
program in a manner that ensures plaintiffs actually receive the
services they were authorized to receive and need to prevent
Contrary to defendants’
contention, the complaint plausibly alleges that defendants’ own
actions or omissions are responsible for the service gaps.
Defendants’ alleged deficiencies include setting inadequate
compensation rates for waiver services, failing to monitor
service gaps, and failing to respond to those gaps by changing
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 26 of 38
their methods of administration.
As these allegations show,
plaintiffs do not seek to hold defendants liable for the
failures of their contractors but for a predicament of
defendants’ own making.
The First Circuit has recently rejected a similar argument
made by the Commissioner in an analogous context.
In Doe v.
Shibinette, a class of plaintiffs sued the Commissioner on the
ground that they were held at private hospitals pursuant to an
involuntary emergency admission order for too long without due
process due to a lack of available beds at the state’s
(1st Cir. Oct. 26, 2021).
-- F.4th --, 2021 WL 4958249, at *1-2
The Commissioner argued that the
plaintiffs’ injury was not fairly traceable to her conduct
because “the state circuit court system, law enforcement, the
state legislature, and private hospitals are . . . the ones
responsible for failing to hold a hearing, failing to transport
patients to a hearing, failing to appropriate enough money to
expand the number of beds at [the state’s] facilities, and the
control of emergency departments, respectively.”
The First Circuit disagreed.
Id. at *6.
The court reasoned that the
complaint plausibly alleged that the Commissioner “is the one
who bars [plaintiffs] from being released . . . until a probable
cause hearing is conducted . . . . [and] she has not ensured
that a probable cause hearing is held as soon as [plaintiffs]
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 27 of 38
contend that it must be.”
The complaint here likewise
alleges that plaintiffs’ injuries stem from service gaps that
the Commissioner must address and has failed to address through
her administration of the CFI Waiver program.
To the extent defendants suggest that they can insulate
themselves from ADA liability by contracting out to private
entities their obligation to provide services in compliance with
the ADA, they are wrong.
The ADA’s implementing regulations
expressly prohibit defendants from discriminating on the basis
of disability in the provision of services “directly or through
contractual, licensing, or other arrangements.”
§ 35.130(b)(1); see id. § 35.130(b)(3) (prohibiting both direct
and indirect use of methods of administration that subject the
disabled to discrimination based on disability).
the assurances that the state had to provide to the Secretary
when obtaining the § 1915(c) waiver was that services would be
“delivered in accordance with the service plan, including the
type, scope, amount, duration and frequency specified in the
Doc. No. 23-3 at 150.
That defendants may have chosen
to fulfill that obligation in part through contracts with
private parties does not absolve them of potential liability for
violating the ADA by failing to deliver services in the most
integrated settings appropriate to plaintiffs’ needs.
C.F.R. § 35.130(b)(1), (3); cf. Katie A. ex rel. Ludin v. Los
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 28 of 38
Angeles Cnty., 481 F.3d 1150, 1159 (9th Cir. 2007) (“Even if a
state delegates the responsibility to provide treatment [for
children eligible for medical assistance under the Medicaid Act]
to other entities such as local agencies or managed care
organizations, the ultimate responsibility to ensure treatment
remains with the state.”); A.H.R. v. Wash. State Health Care
Auth., 469 F. Supp. 3d 1018, 1034 (W.D. Wash. 2016 (even where
the state contracted with managed care organizations to provide
medical assistance to Medicaid-eligible children, holding that
the state “bears the responsibility to ensure that the State
Plan complies with federal law and that Plaintiffs received the
Defendants’ reliance on part of an ADA regulation that
addresses licensure and certification programs is also
Defendants cite the final sentence of 28 C.F.R.
§ 35.130(b)(6) for the proposition that the integration mandate
does not cover programs or activities of private entities that
are licensed or certified by a public entity.
That is true but
The CFI Waiver program is not a licensing or
It is a program created by the state and
administered by DHHS to provide home and community-based
services to eligible residents.
The Department’s reliance on a
network of private case management agencies and other Medicaid
providers licensed by the state to deliver those services does
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 29 of 38
not convert the waiver program into a private licensing or
certification program for purposes of the federal regulation.
The cases defendants cite do not suggest otherwise.
Ivy v. Williams, 781 F.3d 250, 256 (5th Cir. 2015) (Texas
Education Agency, which licensed and regulated private driver
education schools, not liable for physical inaccessibility of
those programs); Noel v. NYC Taxi & Limousine Comm’n, 687 F.3d
63, 70-72 (2d Cir. 2012) (city licensor and regulator of private
taxi service not liable for inaccessibility of taxis to
In fact, the Fifth Circuit in Ivy
distinguished cases where public entities were liable for
private actors’ violations of the ADA on the ground that those
private actors were not merely licensed by the public entity but
had a contractual relationship with that entity.
at 256-57 (collecting and analyzing cases).
See 781 F.3d
Here, the complaint
alleges that DHHS contracts with case management agencies to
provide services to participants of the Department’s own
Defendants’ argument that they merely license those
agencies cannot be squared with either the complaint’s
allegations or the regulations that govern the CFI Waiver
The home and community-based service cases the defendants
cite also fail to support their contention.
For example, in
Woods v. Tompkins County, the plaintiff was a disabled
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 30 of 38
individual who sued a county that administered a Medicaid
program for in-home aide services provided by private agencies.
See No. 516CV0007LEKTWD, 2019 WL 1409979, at *3-5 (N.D.N.Y. Mar.
The gist of the complaint was that the private
agencies were sending aides who had trouble working well with
the plaintiff and ultimately refused to serve her.
Although the district court granted the county’s motion for
summary judgment, it did so because the plaintiff did not allege
any deficiencies in the administration of the program and
instead focused solely on the private agencies’ refusal to
See id. at *10.
Here, by contrast,
plaintiffs expressly challenge defendants’ administration of the
waiver program, which is precisely the type of claim that the
court in Woods concluded could support a viable cause of action.
Defendants’ arguments to the contrary are meritless.
Whether the Complaint Asserts Nonactionable Standard
of Care Claims
Defendants also argue that the ADA claims must be dismissed
because they merely seek to recover for a standard of care
violation, which Olmstead rejected as a viable theory of
liability under the integration mandate.
Defendants once again
misconstrue plaintiffs’ claims.
According to defendants, plaintiffs’ allegations concerning
gaps in their authorized waiver services challenge the quality
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 31 of 38
of care that plaintiffs receive.
To improve that quality of
care, plaintiffs purportedly seek “new” or “better” services
that are not alleged to be provided to anyone else, such as
recruitment of new service providers and better monitoring of
the service delivery.
These types of claims, defendants say,
amount to standard of care claims that the Supreme Court has
disclaimed as a basis for liability under the integration
See Olmstead, 527 U.S. at 603 n.14 (stating that the
integration mandate guarantees neither a “standard of care” nor
“a certain level of benefits to individuals with disabilities”).
Although I agree that standard of care claims cannot be
challenged under the integration mandate, defendants’ argument
is a nonstarter because plaintiffs do not assert such claims.
The complaint seeks services in an integrated setting that
defendants already provide through the CFI Waiver program and
have assessed plaintiffs to need to avoid institutionalization.
Plaintiffs do not quibble with the quality of services they
Nor do they allege that they are entitled to
additional services beyond those that DHHS has authorized.
these reasons, this case is distinguishable from Buchanan v.
Maine, where the First Circuit construed the plaintiff’s claim
to concern “the adequacy of treatment.”
469 F.3d 158, 175 (1st
There, the claims before the court were couched as
discriminatory denial of service claims (not violations of the
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 32 of 38
integration mandate) but were in reality complaints about either
the quality of the services plaintiff received or defendants’
failure to provide services that the state’s providers
determined were unnecessary.
Here, by contrast,
plaintiffs are not dissatisfied with the services they received
but instead challenge defendants’ failure to deliver services in
the amount and frequency that DHHS has determined they need.
Other district courts presented with similar claims have
likewise determined that they assert viable integration mandate
See, e.g., Doxzon v. Dep’t of Human Servs., No. 1:20-
CV-00236, 2020 WL 3989651, at *10-11 (M.D. Pa. July 15, 2020);
A.H.R., 469 F. Supp. 3d at 1043-46; Ball v. Rodgers, No. CV 0067-TUC-EHC, 2009 WL 1395423, at *5 (D. Ariz. Apr. 24, 2009).
The court in Doxzon expressly rejected the defendants’ argument
that the plaintiff was asserting a standard of care claim.
2020 WL 3989651, at *10.
In that case, the plaintiff alleged
that the state defendants had enrolled her in a home and
community-based care waiver program, but she was not getting the
Id. at *1.
The court granted the plaintiff’s
request for a preliminary injunction, finding that she would
likely prevail on the merits of her integration mandate claim.
Id. at *10-11.
Because the plaintiff contended that she was
“eligible for numerous services that the defendants do provide
but have not provided to her,” the court concluded that she was
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 33 of 38
“not claiming that the defendants violated a standard of care as
to medical services that were provided to her.”
Id. at *10.
Defendants’ argument that plaintiffs are seeking new
services not provided to anyone else also misses the mark.
Plaintiffs are not requesting services beyond what they are
currently authorized to receive under the CFI Waiver program.
To the extent the complaint alleges that defendants must
implement new measures such as monitoring of the waiver services
and provider recruitment and training, plaintiffs are merely
seeking changes to the way in which the waiver program is
administered to ensure that they are provided with the services
that DHHS has already agreed they should receive.
plaintiffs seek services that exist and are given to others,
this case is distinguishable from the cases defendants cite in
support of their argument.
See Wright v. Giuliani, 230 F.3d
543, 548 (2d Cir. 2000) (affirming the district court’s denial
of a preliminary injunction requesting adequate emergency
housing for homeless persons with HIV where the record did not
enable the court to determine whether plaintiffs sought
reasonable modifications to existing programs, as opposed to new
substantive benefits); Rodriquez v. City of N.Y., 197 F.3d 611,
618-19 (2d Cir. 1999) (holding that defendants were not required
to provide plaintiffs enrolled in a Medicaid waiver program with
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 34 of 38
new safety monitoring services not provided to anyone in any
setting where plaintiffs alleged this type of service was
comparable to existing services and necessary to enable
plaintiffs to stay in their homes); Disability Rts. Cal. v.
Cnty. of Alameda, No. 20-cv-05256-CRB, 2021 WL 212900, at *11-12
(N.D. Cal. Jan. 21, 2021) (dismissing integration mandate claims
that sought expansion of existing community programs rather than
pointing to specific services that were being provided in an
institutional setting but could be provided in community
Thus, defendants’ challenges to the ADA claims fall
Medicaid Act and Due Process Claims
State Action Doctrine
Defendants argue that plaintiffs’ Medicaid Act and due
process claims fail for lack of state action.
rests on the same faulty premise as one of defendants’
challenges to the ADA claims – that the complaint seeks to hold
them liable for the acts of private parties.
Defendants contend that this case is really about actions
of private parties – case management agencies and case managers
who are responsible for any gaps in waiver services – that do
not amount to state action under any recognized theory.
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928
(2019) (describing the theories under which a state actor can be
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 35 of 38
liable for actions of a private party).
As I explained in
rejecting the same argument in the context of the ADA claims,
however, defendants misconstrue plaintiffs’ allegations.
At bottom, the actionable conduct alleged in the remaining
counts of the complaint is that of the Commissioner.
counts are based on her alleged failures to provide Medicaidcovered services with reasonable promptness and to notify
recipients of their right to challenge gaps in their waiver
services in a hearing before the Department.
plausibly alleges that flawed administration of the CFI Waiver
program, over which the Commissioner has the ultimate authority,
has led to unreasonable delays in the provision of waiver
The fact that the Commissioner chose to delegate the
provision of those services to case management agencies and
other providers does not mean that she can evade her duty to
ensure a reasonably prompt delivery of services.
Nor can she
use those relationships to insulate herself from claims that
she, not those third parties, must comply with the notice
requirements under the Medicaid Act and the due process clause.
See, e.g., 42 C.F.R. § 431.10(e) (“The Medicaid agency may not
delegate, to other than its own officials, the authority to
supervise the plan or to develop or issue policies, rules, and
regulations on program matters.”); Katie A., 481 F.3d at 1159
(“Even if a state delegates the responsibility to provide
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 36 of 38
treatment to other entities such as local agencies or managed
care organizations, the ultimate responsibility to ensure
treatment remains with the state.”); Catanzano v. Dowling, 60
F.3d 113, 118 (2d Cir. 1995) (“[I]t is patently unreasonable to
presume that Congress would permit a state to disclaim federal
responsibilities by contracting away its obligations to a
private entity.”) (cleaned up); Doxzon, 2020 WL 3989651, at *8
(rejecting the argument that a state can evade its
responsibility for providing Medicaid services by entering into
a managed care contract with a private entity).
To the extent defendants argue that the challenged actions
are akin to those found to be private actions in Blum v.
Yaretsky, 457 U.S. 991, 1002 (1982), their argument fails to
Plaintiffs in Blum challenged the clinical decisions
of private nursing home physicians and administrators to
discharge or transfer nursing home patients without certain
Id. at 997-98.
In holding that those
decisions were not state actions, the Supreme Court reasoned
that “the State is [not] responsible for the decision to
discharge or transfer particular patients.
ultimately turn on medical judgments made by private parties
according to professional standards that are not established by
Id. at 1008.
Here, by contrast, plaintiffs’ claims
arise from the Commissioner’s own actions and omissions in
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 37 of 38
administering the CFI Waiver program, for which she remains
Defendants’ attempt to reframe
plaintiffs’ claims as resting on private action is fruitless.
Viability of the Fair Hearing Claims
Defendants also challenge plaintiffs’ claims under
§ 1396a(a)(3) of the Medicaid Act and the due process clause
that defendants must provide them with adequate notice of their
right to challenge service gaps in an administrative hearing.
The parties agree that any CFI Waiver participant who believes
that a service gap constitutes an effective denial of service
can request a hearing on that basis, and DHHS must provide it
under 42 C.F.R. § 431.220(a)(1) and New Hampshire Administrative
Rule He-C 200.
The question is whether service gaps trigger the
notice requirement and, if so, whether the publicly available
material, including the § 1915(c) waiver and federal and state
regulations, satisfy that requirement.
Under the due process clause, “[t]he opportunity to be
heard must be tailored to the capacities and circumstances of
those who are to be heard.”
Goldberg, 397 U.S. at 268-69.
opportunity to be heard must be coupled with “notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.”
Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Case 1:21-cv-00025-PB Document 41 Filed 11/18/21 Page 38 of 38
regulations implementing the Medicaid Act incorporate this
standard by reference into the fair hearing regime under 42
U.S.C. § 1396a(a)(3).
See 42 C.F.R. § 431.205(d).
Given the focus on reasonableness and case-specific
circumstances when addressing notice issues, further factual
development is warranted where, as here, the court cannot
conclude that plaintiffs can prove no set of facts under which
their claims might be proper.
Because the requirement and
adequacy of notice are better suited for resolution at summary
judgment, I decline to dismiss the fair hearing claims at this
For the foregoing reasons, defendants’ motion to dismiss
(Doc. No. 23) is denied.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
November 18, 2021
Counsel of Record
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