Fitzmorris v NHDHHS and the CFI Waiver Waitlist in New Hampshire

If your parent is stuck on the Choices for Independence waiver waitlist, you've probably heard the name Fitzmorris at some point. It's the federal class-action lawsuit that challenged New Hampshire's handling of its home care waitlist — and its outcome shapes what options families have right now.

What Fitzmorris Is About

Fitzmorris v. New Hampshire Department of Health and Human Services is a federal class-action lawsuit brought on behalf of individuals with disabilities who were placed on waitlists for New Hampshire's home and community-based Medicaid waiver services, including the Choices for Independence (CFI) waiver.

The core legal argument: by maintaining waitlists for home and community-based services while nursing home placement remains available without a wait, the state is effectively funneling people into institutions. The plaintiffs argued this violates the Americans with Disabilities Act and the Supreme Court's Olmstead v. L.C. decision, which established that states must provide services in the most integrated setting appropriate to a person's needs.

Why the Waitlist Exists

The CFI waiver operates under a federally capped number of annual enrollment slots — approximately 5,400. Unlike nursing home Medicaid, which is an entitlement (if you qualify, you get it), the CFI waiver is a capped program. When all slots are filled, eligible individuals go on a waitlist.

For families dealing with a parent who needs daily personal care assistance, home-delivered meals, or emergency response services, the waitlist creates an impossible situation. The parent may qualify clinically and financially for home-based services, but the slots are full. Nursing home Medicaid is an entitlement for people who qualify, so it may be available without the CFI waiver's capped waitlist — but it is a more expensive and more restrictive setting.

What Families on the Waitlist Can Do Now

While the litigation works through the courts, families need practical alternatives. Several state programs do not maintain the same kind of capped waitlist:

Personal Care Attendant Services Program. New Hampshire operates a personal care attendant program that provides hands-on assistance with activities of daily living. This program has different capacity constraints than the CFI waiver and may have availability when the waiver waitlist is long. Contact your local ServiceLink ADRC to ask about eligibility and current availability.

Participant-Directed and Managed Services (PDMS). If your parent does get a CFI waiver slot, the PDMS option allows them to select and manage their own caregivers — including paid family members or friends (excluding legally responsible spouses). Understanding this option in advance helps you plan for the possibility of using a family member or friend as a paid caregiver once a waiver slot opens, subject to program approval.

ServiceLink Options Counseling. Even while on the waitlist, ServiceLink counselors can help identify other support programs: the Family Caregiver Support Program, the state's adult day care services, Meals on Wheels, and transportation assistance. These don't replace the full CFI waiver package, but they can fill critical gaps.

Medicare Home Health. If your parent qualifies for Medicare-covered home health services — which requires a physician certification of homebound status — these services can provide skilled nursing visits, physical therapy, and occupational therapy regardless of the CFI waiver waitlist. Medicare home health is not a substitute for the ongoing non-medical personal care (bathing, dressing, toileting) that the CFI waiver primarily funds.

The Institutional Bias Problem

The Fitzmorris litigation highlights a structural issue in how New Hampshire funds long-term care. Nursing home Medicaid is an entitlement — no cap, no wait. Home and community-based services are capped. The financial irony is that home-based care through the CFI waiver costs the state significantly less per person than nursing home placement.

For families, this means the system's incentives are backwards. Your parent may qualify for home-based waiver services that could help keep them out of an $11,000 to $12,000 per month nursing home bed, but the home-care slot isn't available. Understanding this dynamic helps when advocating with legislators and when asking ServiceLink about alternatives and the status of the application.

Staying on the Waitlist While Managing Now

If your parent is on the CFI waiver waitlist, do not ignore it. Continue to respond to any contact requests from DHHS and ask how to keep the application and waitlist status current.

In the meantime, piece together the available programs, coordinate with Medicare home health if applicable, and document everything — the services your parent needs, the services they're receiving, and the gap between the two. This documentation is valuable both for the eventual waiver enrollment and for any participation in the ongoing litigation.

The Hospital-to-Home New Hampshire guide covers the full CFI waiver application process, the PDMS option, ServiceLink coordination, and the financial eligibility worksheets families need to prepare for enrollment when a slot becomes available.

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