Certification of a class-action lawsuit against New Hampshire’s home- and community-based services waiver program could be the catalyst for elevating assisted living as a viable Medicaid option, according to one senior living organization.
A federal judge certified a class-action lawsuit last week against the New Hampshire Department of Health and Human Services for placing recipients of its HCBS waiver program at “serious risk of unjustified institutionalization” by failing to ensure those services are provided.
Choices for Independence, New Hampshire’s Medicaid waiver program, provides HCBS to nearly 3,800 adults who would otherwise be Medicaid-eligible for nursing home care. Some assisted living providers provide HCBS to residents under the waiver program.
A lawsuit against the program was filed in January 2021 in US District Court in New Hampshire by New Hampshire Legal Assistance, the Disability Rights Center-New Hampshire and the AARP Foundation. After initially denying a motion for class certification, Judge Paul J. Barbadoro ruled on Nov. 27 that there was evidence that hundreds of people could face “unjustified institutionalization” due to CFIs failure to ensure eligible individuals received eligible community-based long-term services and supports.
Earlier this year, agencies that provide HCBS services through the CFI program — including assisted living providers — told lawmakers they could no longer afford to participate in the program without significant rate increases.
State legislators passed a state budget in June that gave providers a 3% increase in Medicaid payments in July, with additional raises coming in January. But the groups filing the lawsuit said the increase would address only workforce shortage issues, and would not correct the program’s shortcomings, including its failure to ensure CFI recipients receive approved services.
The suit could shine a light on assisted living as a viable HCBS option, according to Brendan Williams, president and CEO of the New Hampshire Health Care Association. He told McKnight’s Senior Living that too few providers are willing to take on Medicaid contracts because the “rates are just so terrible.”
“Too often, assisted living is treated as a middle child when it comes to home care and nursing homes — it’s the Jan Brady of long-term care,” Williams said.
And while the state made “solid progress” in the last legislative session on funding in home care, it only made “marginal progress” in improving funding for assisted living.
“We really do need a game-changer when it comes to placing a greater priority on making assisted living an option for Medicaid residents,” Williams said. “I hope that will emerge from this litigation.”
The state recently embarked on a gap analysis of its HCBS system to improve and promote community integration, independence and a robust system of LTSS for older adults and people living with disabilities.
