LIVE FREE OR DIE LEGAL
This website is not an official source of law. This website does not provide legal advice. For official legal materials, verify against the relevant court, legislature, agency, or other official source. Legal information may be incomplete, outdated, or incorrectly processed. Consult a qualified attorney for advice about a specific legal matter.

This page is an unofficial LFoD record and is not legal advice. Verify the document against the official source before relying on it.

Petition of Jacob Solomon Mason et al.

October 17, 2024 - Brief

Official source

Case records

Open case page

Docket: 2023-0488

Date Record Text Type Party PDF
December 19, 2024 Petition of Mason Opinion Supreme Court Pre-Reporter
October 17, 2024 Appeal of Jacob Solomon Mason, Kayode Mason Current page Brief petitionerlakesmoorejointsupp PDF
October 17, 2024 Petition of Jacob Solomon Mason Et Al. Brief nhdhhsnhbdssupp PDF
June 27, 2024 Petition of Jacob Solomon Mason Et Al. Oral argument text Petition of Jacob Solomon Mason et al.; several petitioners; other petitioners; Lakes Region Community Services and The Moore Center, Inc.
June 27, 2024 June 27 2024 Supreme Court oral argument calendar - PDF
June 6, 2024 Appeal of Jacob Solomon Mason, Kayode Mason Brief lakesmoore PDF
June 6, 2024 Appeal of Jacob Solomon Mason, Kayode Mason Brief PDF
May 17, 2024 Petition of Jacob Solomon Mason Et Al. Brief nhdhhsnhbds PDF
April 17, 2024 Appeal of Jacob Solomon Mason, Kayode Mason Brief PDF
April 17, 2024 Appeal of Jacob Solomon Mason, Kayode Mason Brief lakesmoore PDF
December 31, 2023 2023 Fourth Quarterly Status Report Supreme Court case status list - PDF
September 30, 2023 2023 Third Quarterly Status Report Supreme Court case status list - PDF
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2023-0488
APPEAL OF JACOB SOLOMON MASON, KAYODE MASON
(individually and as guardian of Jacob Solomon Mason), MATTHEW
HALLE, CHERYL HOITT (individually and as guardian of Matthew
Halle), TYLER JEROME, TAMMY JEROME (individually and as co-
guardian of Tyler Jerome), RICHARD JEROME (individually and as co-
guardian of Tyler Jerome), DAEVON SOTO, VENUS BARRETO
(individually and as guardian of Daevon Soto), TIMOTHY DOUGLAS
MCDONALD, and OFFICE OF PUBLIC GUARDIAN (individually and
as guardian of Timothy McDonald)
On Certiorari Review Pursuant to Supreme Court Rule 11 from a Final
Decision of the New Hampshire Department of Health and Human
Services, Administrative Appeals Unit Docket Nos. 2022-0657, -0658,
-0659, -0660, and -0661
JOINT SUPPLEMENTAL BRIEF OF
PETITIONERS-APPELLANTS AND
THE AREA AGENCIES — THE MOORE CENTER, INC. AND
LAKES REGION COMMUNITY SERVICES
Dean B. Eggert (#746)
Elizabeth E. Ewing (#269009)
WADLEIGH, STARR & PETERS, PLLC
95 Market Street
Manchester, NH 03101
(603) 669-4140
deggert@wadleighlaw.com
eewing@wadleighlaw.com

Michael P. Flammia* Christian B.W. Stephens*

ECKERT SEAMANS CHERIN & MELLOTT, LLC

Two International Place, 16th Floor Boston, MA 02110 (617) 342-6800 mflammia@eckertseamans.com cstephens@eckertseamans.com

*Admitted pro hac vice

Attorneys for Petitioners-Appellants Jacob Solomon Mason, Kayode Mason, Matthew Halle, Cheryl Hoitt, Tyler Jerome, Tammy Jerome, Richard Jerome, Daevon Soto, and Venus Barreto Tracy M. Culberson (#16430)

NICHOLSON LAW FIRM

58 North State Street P.O. Box 4137 Concord, NH 03302 (603) 856-8441 tracy@nicholson-lawfirm.com

Attorneys for Petitioners-Appellants Timothy Douglas McDonald and Office of Public Guardian -- and --

Michael A. Delaney (#10504) Rebecca S. Walkley (#266258)

MCLANE MIDDLETON, PROFESSIONAL ASSOCIATION

900 Elm Street, P.O. Box 326 Manchester, NH 03105-0326 (603) 625-6464

Attorneys for the Area Agencies – The Moore Center, Inc. and Lakes Region Community Services

TABLE OF CONTENTS

TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
RELEV ANT LAWS 7
I. ANSWERS TO SUPPLEMENTAL QUESTIONS 8
QUESTION NUMBER 1 8
DISCUSSION 8
A. CMS’s 2012 Letter to Massachusetts 9
B. CMS’s 2022 Email Regarding Petitioners 10
QUESTION NUMBER 2 14
DISCUSSION 14
A. Regulatory Interpretation 14
B. Other Interpretive Canons Support This Reading 17
C. State Sovereignty Considerations 18
II. RESPONSE TO THE STATE’S SUPPLEMENTAL BRIEF 21
III. CONCLUSION 26
STATEMENT OF COMPLIANCE 29
CERTIFICATE OF SERVICE 29

TABLE OF AUTHORITIES

Page(s)
Cases Beal v. Doe, 432 U.S. 438 (1977) 19, 20
Bond v. United States, 564 U.S. 211 (2011) 19
Bowen v. Massachusetts, 487 U.S. 879 (1988) 9, 15
C.K. by Springstead v. Oakland Cmty. Health Network, Case No. 20-13301, 2022 WL 2898634 (E.D. Mich. July 21, 2022) (Op. & Order) 15
Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992) 18
Cole v. Town of Conway, 176 N.H. 560 (2024) 17, 18
Girard v. Town of Plymouth, 172 N.H. 576 (2019) 17
Petition of Guillemette, 171 N.H. 565 (2018) 15
Harris v. McRae, 448 U.S. 297 (1980) 9, 20
JRC v. Comm’r of Dep’t of Developmental Servs., 492 Mass. 772 (2023) 10, 11
Krainewood Shores Ass’n, Inc. v. Town of Moultonborough, 174 N.H. 103 (2021) 17, 23
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) 22
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) 19
Murphy v. National Collegiate Athletic Ass’n, 584 U.S. 453 (2018) 20, 21
New Hampshire Att’y Gen. v. Bass Victory Comm., 166 N.H. 796 (2014) 18
Printz v. United States, 521 U.S. 898 (1997) 20
W. Virginia v. Env’t Prot. Agency, 597 U.S. 697 (2022) 24
Statutes 42 U.S.C. §1396n 14
RSA 171-A:18 22, 23, 24, 25
Other Authorities 42 C.F.R. §400.203 9, 15
42 C.F.R. §441.300 18
42 C.F.R. §441.301 13, 14, 15, 16, 20, 23
42 C.F.R. §441.302 17
Sup. Ct. R. 16(6) 22
U.S. Const., amend. X 18
RELEV ANT LAWS (the following authorities are set forth fully in Supplemental Brief Appendix, located at the Supplemental Brief Appendix pages identified below) State Statutes RSA 171–A:1.............................................................................. Supp.Apx 4
RSA 171–A:13............................................................................ Supp.Apx 6
U.S. Constitution U.S. CONST. amend. X................................................................ Supp.Apx 7
Federal Statutes 42 U.S.C. §1396n........................................................................ Supp.Apx 8
Federal Regulations 42 C.F.R. §400.203.................................................................... Supp.Apx 42
42 C.F.R. §441.300.................................................................... Supp.Apx 44
42 C.F.R. §441.301.................................................................... Supp.Apx 45
42 C.F.R. §441.302.................................................................... Supp.Apx 58
Federal-State Communications CMS Letter to DHHS (Sept. 9, 2024) 67
I. ANSWERS TO SUPPLEMENTAL QUESTIONS 1
Petitioners and the Area Agencies hereby respond to the questions presented in the Court’s September 27, 2024, supplemental briefing order as follows: QUESTION NUMBER 1. Whether the State, for purposes of using state funding, is bound by the finding from the Centers for Medicare and Medicaid Services (CMS) that the Judge Rotenberg Education Center, Inc. (JRC) is not a qualified home and community-based service (HCBS) 42
C.F.R. § 441.301?
Response: No. DISCUSSION The CMS determination that JRC is not a qualified HCBS setting does not bind the State for purposes of using state funding.2 At most, if at all, any CMS determination about JRC impacts only the federal government’s share of state expenditures under the Medicaid program. It does not bind the State from using state funds to ensure the health, safety, and welfare of its citizens, including the two Petitioners (Tyler and Jacob) who remain at JRC pending their transitions to other placements. A. CMS’s 2012 Letter to Massachusetts In 2012, an associate CMS administrator notified Massachusetts in a letter that no individuals enrolled in Massachusetts’ Medicaid HCBS waiver could receive services from JRC and, accordingly, “the State should cease billing for FFP for HCBS services provided to individuals residing [at JRC].” JM. 383. In the Medicaid context, “FFP” means “federal financial participation”; that is, “the federal contribution to a State’s Medicaid program, ” also known as “reimbursement.” Bowen v. Massachusetts, 487
U.S. 879, 883-84 (1988) 4
If CMS’s positions precluded both federal and state funding, then the State could not have paid JRC for any period of time. Additionally, if no funding whatsoever was available, it would directly undercut the fundamental argument advanced by DHHS in these proceedings: that there was no termination of Petitioners’ services. In response to the March 2022 CMS email, DHHS did not claim that it was bound by CMS’s directives for purposes of state funding and therefore without any funding to assist or transition Petitioners. Instead, DHHS provided assurances that it was not billing the federal government for the placements at JRC but nonetheless was still funding the individuals’ placement at JRC and actively planning for their transition to an alternative placement. See JM. 1115. Indeed, not until the service of its dispositive motion in the administrative appeals in February 2023—nearly a year after its communications with CMS—did DHHS first claim through counsel that CMS’s position regarding JRC precluded state funding for Petitioners’ ongoing services pending transitions. See PB. 27-30 (discussing the administrative proceedings and DHHS’s post hoc rationalization for terminating state funding). Tellingly, in two briefs it filed in the administrative proceedings in September 2022, the agency acknowledged that it was “BDS’ s decision to no longer use general funds to pay for [Petitioners] to receive services at the JRC” and that “[t]here is no prohibition on other funding being utilized to continue paying for [Petitioners’] services at the JRC.” JM. 48 (emphasis added), JM 110
(same); see also JM. 116 (Funding Order) (“BDS notes that there is no
prohibition on other funding being used at the placement….”) (emphasis
added).
Lastly, DHHS freely and accurately admits that federal funding for
non-compliant service providers could permissibly continue with CMS’s
blessing during the so-called “transition period, ” during which each state
was implementing the Settings Rule and which DHHS concedes lasted at
least through March 17, 2023, see PB. 23 (record citations), and which, in
fact, continues to this day in New Hampshire. See Supplemental Brief
Appendix, at 67-72, CMS Letter to DHHS (Sept. 9, 2024) 1, 6
(approving a revised CAP for New Hampshire, retroactively “effective as of
March 17, 2023, ” which further enlarges the period for “[f]inal compliance
statewide with HCBS settings rule” through at least December 30, 2024),
available at: https://www.medicaid.gov/medicaid/home-community-based-
services/downloads/nh-appvd-cap-update.pdf.5 It would be illogical to
conclude that any CMS finding could preclude state funding when it would
not even operate to impact federal funding administered by CMS itself.
Indeed, even as it concerns federal funding, a preliminary finding by CMS
concerning the qualities of a particular setting is not binding on a state but
rather constitutes a “rebuttable presumption” that the State and other
interested parties can refute via the evidentiary “heightened scrutiny”
rebuttal process set forth in both the regulation and the State’s STP. See
PB. 18; 42 C.F.R. §441.301(c)(5)(v); JM. 240-41; JM. 479-82 (detailing the
State’s heightened scrutiny process). Even in that scenario, the State could
challenge CMS’s presumption regarding a provider and demonstrate “that
the setting does not have the qualities of an institution and that the setting
does have the qualities of home and community-based settings” and is
appropriate based on the individual needs of the individuals. 42 C.F.R.
§441.301(c)(5)(v).
DHHS argues that the “transition period…does not apply to JRC,
which has been categorically excluded from the HCBS waiver program
since 2012[.]” DHHS Br. 31 n.7. But the requirement of a transition plan is
a protection for the individuals receiving services and applies to the
individuals, and does not apply to service providers. E.g., JM 521
(discussing “the person-centered planning process” which occurs for each
individual beneficiary when an HCBS provider does not comply with the
settings rule and the individual must be relocated); JM. 484 (New
Hampshire’s STP, which provides that “[a]ll transitions to a new setting will
include a transition plan and will be individualized based on the needs of
the patient.”).
QUESTION NUMBER 2.
Whether, by its terms, 42 C.F.R. § 441.301 prohibits using
state funds to pay for services provided by JRC?
Response: No.
DISCUSSION
A. Regulatory Interpretation
By its terms, the federal regulation does not address nor concern the
use of state funds. As stated in Petitioners’ Opening Brief, the plain
language of the Settings Rule concerns only federal funds, and its context
and applicability are limited to the Medicaid program, which includes
HCBS waivers. See PB. 40-42; 42 U.S.C. §1396n(c) (Social Security Act,
§1915(c)). The only mention of funding in the regulation is found at
42 C.F.R. §441.301(c)(6)(v), which provides, in full, that:
Upon approval by CMS, the State will begin implementation
of the transition plans. The State’s failure to submit an
approvable transition plan as required by this section and/or
to comply with the terms of the approved transition plan may
result in compliance actions, including but not limited to
deferral/disallowance of Federal Financial Participation.
(underscore added).
As noted in response to the preceding question, in the Medicaid
context and therefore as used in the regulation, the term “Federal Financial
Participation” is specifically defined and “means the Federal Government’s
share of a State’s expenditures under the Medicaid program.” 42 C.F.R.
§400.203; Bowen, supra. By its express language, “Federal Financial
Participation, ” as used in the regulation, does not mean “state financial
participation.” See id. See also C.K. by Springstead v. Oakland Cmty.
Health Network, Case No. 20-13301, 2022 WL 2898634, at *9 (E.D. Mich.
July 21, 2022) (Op. & Order) (“[The federal Settings Rule] sets forth the
requirements under which states may use federal Medicaid funds to provide
home and community-based long-term services and supports.”) (emphasis
added). In interpreting the regulation, this Court does not “add language
that the…administrative agency did not see fit to include.” Petition of
Guillemette, 171 N.H. 565, 568 (2018). Accordingly, by its terms, 42 C.F.R.
§441.301 does not prohibit using state funds to pay for services provided by
JRC pending transition of the two remaining Petitioners. Indeed, no court,
nor CMS, has found that the federal Settings Rule (42 C.F.R. §441.301)
somehow prohibits using state funds to pay for services.
Federal Medicaid funding has resumed for the three Petitioners who
have been transitioned from JRC to new placements. For the two
Petitioners (Tyler and Jacob) who remain at JRC, CMS has already
deferred FFP for the services provided by JRC to them since March 2022,
pending the State’s fulfillment of its stated “commitment” to transition the
clients to HCBS settings. That FFP deferral, now in place for two-and-a-
half years, in no way impacts state funding for critical services that are
required under state law and the State’s approved transition plan. See
PB. 20-21 (discussing New Hampshire’s STP), PB. 37-44 (state law
arguments). Those services need to be in place until DHHS can meet its
commitment to CMS to transition all Petitioners to HCBS-compliant
facilities, at which time CMS will end the deferral of FFP. When the State
completes the transition to acceptable alternative settings, FFP for 1915(c)
waiver services for these Petitioners will resume and has, in fact, resumed
for the three Petitioners who have transitioned from JRC to date.
Ironically, the State has it completely backward. The State must
continue to expend state funds for Tyler and Jacob if New Hampshire
wishes to properly transition them and restore the current deferral of FFP
for the critical services provided to them at JRC. The Settings Rule requires
the state to comply with its approved transition plan or risk losing FFP. See
42 C.F.R. §441.301(c)(6)(v). DHHS flips this regulatory requirement on its
head, claiming that it cannot comply with its approved transition plan—
which requires DHHS to transition Tyler and Jacob “to a compliant setting”
(JM. 482(¶16))— because FFP was deferred for Petitioners. It is the other
way around: DHHS must use state funds to transition Tyler and Jacob to
qualified providers, thereby complying with its approved transition plan
and restoring the current deferral of FFP for the two. Or alternatively, as
further provided in the State’s STP, the State must “[t]ransition to non-
Medicaid reimbursement” or to new coverage “not requiring provision in a
home or community based setting” for Petitioners if an HCBS setting is not
available. JM. 482(¶16).
B. Other Interpretive Canons Support This Reading This Court uses “the same principles of construction when interpreting both statutes and regulations.” Girard v. Town of Plymouth, 172
N.H. 576, 582 (2019) 176
N.H. at 565 (“We construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.”). Moreover, as discussed in the following section, state sovereignty considerations apply in this context. In this regard, this Court and the U.S. Supreme Court both employ a “strong presumption against [federal] pre- emption, ” particularly where it concerns the historic police powers of a state; here, the State’s power to ensure the health and welfare of its citizens. See New Hampshire Att’y Gen. v. Bass Victory Comm., 166 N.H 796, 805
(2014); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 518 (1992).
C. State Sovereignty Considerations
State sovereignty considerations support Petitioners’ and the Area
Agencies’ supplemental answers and bar DHHS from abdicating its New
Hampshire statutory obligation to care for its most vulnerable citizens to a
federal agency’s unchecked interpretations. The Tenth Amendment, in
particular, confirms the federal government’s limited and enumerated
powers by guaranteeing that “[t]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.” U.S. Const., amend. X. As
described by the U.S. Supreme Court, the Tenth Amendment “secures the
freedom of the individual” by allowing the States to enact “local policies
‘more sensitive to the diverse needs of a heterogeneous society’” than laws
passed through “political processes that control a remote central power.”
Bond v. United States, 564 U.S. 211, 221 (2011). “By denying any one
government complete jurisdiction over all the concerns of public life,
federalism protects the liberty of the individual from arbitrary power.” Id. at
222. This principle of federalism thus reserves to the States authority to use
State funding to provide critical services to State citizens under State law.
See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (recognizing “the
historic primacy of state regulation of matters of health and safety”).
Conversely, the Social Security Act does not grant the federal
government or CMS the exclusive right to determine what medical services
a state may provide to its citizens. In this regard, the United States Supreme
Court has squarely stated that a State is free, at its own election, to provide
coverage for a service or treatment even where that coverage is not eligible
for federal reimbursement through Medicaid. See Beal v. Doe, 432 U.S.
438, 447 (1977). Although Beal specifically addressed whether a State was
required by Title XIX to provide Medicaid coverage for nontherapeutic
abortions, in reaching its conclusion that while extending such coverage
was not required by the federal statute, the Supreme Court explicitly held
“that the federal statute leaves a State free to provide such coverage if it so
desires.” Id.; see also id. at 447 n.15 (further observing that both the federal
government and the States were “entirely free…through the normal
processes of democracy, to provide the desired funding” because such
issues “present policy decisions of the widest concern” which “should be
resolved by the representatives of the people”).
Three years later, the Supreme Court reiterated its ruling in Beal that
a lack of federal Medicaid funding for a particular service did not preclude
the States, at their own election and expense, from providing such
necessary services for their citizens. See Harris v. McRae, 448 U.S. 297,
310 n.16 (1980) (reaffirming the principle that “[a] participating State is
free, if it so chooses, to include in its Medicaid plan those medically
necessary abortions for which federal reimbursement is unavailable”).
Applying the Supreme Court’s precedent here, the State cannot be bound
by a finding by CMS pursuant to 42 C.F.R. §441.301 because the State “is
free, if it so chooses, ” to provide necessary coverage via state funding even
in the absence of federal reimbursement. And, indeed, this is what
Massachusetts has already done in nearly identical circumstances. See
DHHS Brief at 31 n.8. A refusal by DHHS to utilize State funding in these
circumstances, despite an independent obligation under State law to provide
services to its most vulnerable citizens regardless of the availability of
federal funding, see, e.g., RSA 171-A:1, III; RSA 171-A:13, is an affront to
this core component of state sovereignty.
Similarly, the anticommandeering doctrine confirms that the State is
not bound by a finding from CMS for purposes of using state funding for
Petitioners. The anticommandeering doctrine “is simply the expression of a
fundamental structural decision incorporated into the Constitution, i.e., the
decision to withhold from Congress the power to issue orders directly to the
States.” Murphy v. National Collegiate Athletic Ass’n, 584 U.S 453, 470
(2018); Printz v. United States, 521 U.S. 898 (1997). The
anticommandeering principle serves as an important structural protection of
liberty and promotes political accountability. See Murphy, 584 U.S. at 470.
In this context, the doctrine also serves the important purpose of preserving
the State’s ability to protect its citizens by providing necessary services
even where the federal government will not.
Collectively, these sovereignty principles not only permit the State
to utilize State funds for Petitioners, they also preclude DHHS from using
the absence of federal reimbursement as an excuse to abandon Petitioners.
II. RESPONSE TO THE STATE’S SUPPLEMENTAL BRIEF
In its October 17, 2024, Supplemental Brief, DHHS concedes, with
respect to Question 2, “that federal law does not prohibit the expenditure of
state funds on services the JRC provides….” DHHS Supp. Br. (hereinafter
“SB.[page]”) at 4. On this issue, the parties agree.
Confoundingly, however, the State then appears to take the
inconsistent position in response to Question 1 that CMS’s determination
that JRC does not qualify as an HCBS provider effectively binds and
prohibits the state from using state resources to pay for Petitioners’
services, including Tyler and Jacob’s ongoing services pending their
transitions to alternative providers. See SB.8-11. In doing so, the State
proceeds to raise—for the first time, nearly four months after oral
argument—issues not within the narrow scope of this Court’s supplemental
briefing order, including issues related to state legislative appropriations
and the alleged potential liability of agency officials for using state funds to
pay JRC.6 Cf. Sup. Ct. R. 16(6) (irrelevant and immaterial matter in a brief
may be disregarded or stricken).
Insofar as the Court is inclined to consider the State’s new
arguments, Petitioners and the Area Agencies respond as follows.
First, the 2019 Amendments to RSA 171-A, upon which DHHS now
relies, concern only federal Medicaid funding, for the reasons stated by
Petitioners and the Area Agencies in their opening briefs (to which the
agency previously elected not to respond). E.g., PB. 40-44. This issue of
state statutory interpretation is an issue of law reviewed de novo and
reserved for this Court alone, and for which no deference should be
afforded to the agency’s interpretation. See Loper Bright Enterprises v.
Raimondo, 144 S. Ct. 2244, 2258 (2024) (interpretation of a statute is
exclusively a judicial function). And for good measure: DHHS provides no
developed textual analysis of either the state statutory language or the
federal regulatory language (which it claims was allegedly adopted by
reference into state law and precludes state funding)— neither of which
mention, or even allude to, state funding. See generally RSA 171-A:18, II;
42 C.F.R. §441.301.7 Indeed, with respect to federal regulations, including
the Settings Rule, DHHS admits that “nothing within [them] speaks to what
services a state may choose to fund with separate state appropriations.”
SB.5. Thus, the agency admits that no federal regulation, including the
Settings Rule, provides textual support for its position regarding the use of
state funding.
The most the State musters is its remarkable argument that the
phrase “in accordance with, ” which appears in RSA 171-A:18, II, means
that the New Hampshire Legislature has adopted by reference for purposes
of state law the federal Settings Rule and, therefore, the ultimate decision of
what services and service providers are appropriate for all New Hampshire
citizens in every case under RSA 171-A is a decision that the State has
delegated—indeed, abdicated—entirely to federal administrators with
CMS. See SB.9-10. The statutory language, however, cannot support the
weighty interpretation the agency posits.
This Court has explained that “in accordance with” simply means
“in agreement or harmony with; in conformity to.” Krainewood Shores
Ass’n, Inc. v. Town of Moultonborough, 174 N.H. 103, 108 (2021) (quoting
The Oxford English Dictionary 83 (2d ed. 1989)). And, as the State
concedes, “42 C.F.R. 441.301 does not contain any prohibition on the use
of state funds to pay for services at facilities such as JRC.” SB.5. Thus, “in
harmony with” 42 C.F.R. §441.301, the State may plainly still fund services
using state funds even if federal Medicaid funding is unavailable. This
Court can thus reject DHHS’s proposed reading of RSA 171-A:18 based on
its plain language alone.
In addition, the State’s interpretation of RSA 171-A:18, II is illogical
and incorrectly contemplates that the New Hampshire Legislature
completely abdicated funding decisions for its most developmentally
disabled adults to the federal government, a notion which the Petitioners
and Area Agencies refuted in their original briefs. Were the Court to agree
with the agency’s interpretation, it would mean that DHHS—the state
agency specifically charged with providing services for the State’s most
vulnerable and disabled citizens—has no authority to decide what is best
for the State’s citizens. Such a result is contrary to DHHS’s enabling
legislation and would amount to a drastic reallocation of power between the
State and the federal government, which is at odds with not only the best
interests of New Hampshire’s citizens but also the fundamental federalism
principles acknowledged by the State by which the federal government
cannot “limit a state’s ability to use state funds to pay for an individual’s
services at a legally operated facility” such as JRC. See SB.5-6 & n.1.
In a case such as this, where an agency is asserting an extraordinary,
sweeping, and consequential power (or, as here, an extraordinary deferral
of power) with great economic and political significance, courts should
“hesitate before concluding that [the legislature] meant to confer such
authority” without a clear, explicit legislative authorization to that effect,
and based only on a “plausible textual basis.” See W. Virginia v. Env’t Prot.
Agency, 597 U.S. 697, 721, 723 (2022) (discussing the “major questions
doctrine” and noting that “[e]xtraordinary grants of regulatory authority are
rarely accomplished through ‘modest words, ’ ‘vague terms, ’ or ‘subtle
device[s]’” such as the interpretation of “in accordance with” advanced by
DHHS in this case).
Second, even assuming, arguendo, that RSA 171-A:18 does, in fact,
graft the requirements of the federal Settings Rule onto all services
provided under RSA 171-A, the State makes no mention of the Settings
Rule’s obligation to identify and safely transition beneficiaries who are in
non-compliant settings to compliant ones under the State Transition
Plan. New Hampshire, in supporting and safely transitioning Tyler and
Jacob, is doing exactly what the Settings Rule contemplates. Likewise,
DHHS fully ignores the plain text of the Settings Rule, which permits a
state to rebut any CMS presumption regarding a particular setting’s
characteristics through the heightened scrutiny process. And even assuming
the New Hampshire Legislature decided to incorporate a federal standard
into a state law, the statutory text simply does not support the notion that
the Legislature also intended the State to be bound by any and all CMS
interpretations of those federal standards, or to cripple DHHS from
performing its basic and statutorily mandated function to provide for the
State’s disabled individuals. See RSA 171-A:18, II. Lastly, the State fails to
provide any explanation whatsoever as to how 100% state funding was
permissible between March 2022 and September 2022 after CMS advised
DHHS that federal funding must be immediately terminated if CMS’s
determinations supposedly bind the state for purposes of state funding.
What this appeal lays bare is DHHS’s abdication of its charge to
protect and support New Hampshire’s most vulnerable individuals by
providing necessary resources to keep Tyler and Jacob (and the general
public) safe from harm pending their transitions—critical supports and
services which DHHS appears to claim would constitute a “wasteful use of
state resources.” SB. 10.
III. CONCLUSION
This Court should reverse the Final Decision and order DHHS to
honor its legal duty under RSA 171-A to ensure Petitioners’ safe and
humane treatment and uninterrupted post-appeal funding for services at
JRC until the two Petitioners remaining at JRC have been transferred to
other qualified providers.
Respectfully submitted,
Petitioners-Appellants,
JACOB SOLOMON MASON, KAYODE
MASON (individually and as guardian of
Jacob Solomon Mason), MATTHEW
HALLE, CHERYL HOITT (individually
and as guardian of Matthew Halle),
TYLER JEROME, TAMMY JEROME
(individually and as co-guardian of Tyler
Jerome), RICHARD JEROME
(individually and as co-guardian of Tyler
Jerome), DAEVON SOTO, VENUS
BARRETO (individually and as
guardian of Daevon Soto),
By their attorneys,
/s/ Elizabeth E. Ewing Dean B. Eggert (#746) Elizabeth E. Ewing (#269009) 03101
(603) 669-4140
deggert@wadleighlaw.com
ewing@wadleighlaw.com
Michael P. Flammia* Christian B.W. Stephens* E CKERT SEAMANS CHERIN & MELLOTT, LLC Two International Place, 16th Floor Boston, MA 02110
(617) 342-6800
mflammia@eckertseamans.com
cstephens@eckertseamans.com
*Admitted pro hac vice
TIMOTHY DOUGLAS MCDONALD
and OFFICE OF PUBLIC GUARDIAN
(individually and as guardian of Timothy
McDonald),
By their attorney,
/s/ Tracy M. Culberson Tracy M. Culberson (#16430) 03302
(603) 856-8441
tracy@nicholson-lawfirm.com
-- and --
THE MOORE CENTER, INC. &
LAKES REGION COMMUNITY
SERVICES
By their attorneys,
/s/ Michael A. Delaney Michael A. Delaney (#10504) 326
Manchester, NH 03105
(603) 625-6464
michael.delaney@mclane.com
rebecca.walkley@mclane.com
Dated: October 17, 2024
STATEMENT OF COMPLIANCE
The undersigned hereby certifies that, pursuant to Supreme Court
Rule 16(11), this brief contains 4, 495 words, exclusive of those portions of
the brief that are excluded for word count purposes. Counsel relied upon
the word count of the computer program used to prepare this brief.
The undersigned further certifies that, pursuant to Supreme Court
Rule 26(7), this brief complies with Supreme Court Rule 26(2)-(4).
October 17, 2024 /s/ Elizabeth E. Ewing
Elizabeth E. Ewing

CERTIFICATE OF SERVICE

I hereby certify that on October 17, 2024, I served a copy of this document on the following counsel of record via the Supreme Court’s electronic filing system:

Counsel for Respondent, The New Hampshire Health and Human Services, Bureau of Developmental Services:

Mary A. Triick, Esq.

Senior Assistant Attorney General Office of the Attorney General Civil Bureau 1 Granite Place, South Concord, NH 03301-6397 Mary.A.Triick@doj.nh.gov

Footnotes

  1. All abbreviated terms were de fined in Petitioners’ or the Area Agencies’ Opening Briefs or Reply Briefs. 2 For the reasons stated in thei r Opening Briefs, Petitioners and the Area Agencies dispute that State law adopts and incorporates the Settings Rule. Petitioners further dispute that JRC is not an appropriate setting meeting the HCBS criteria.

  2. See also Harris v. McRae, 448 U.S. 297, 308 (1980) (“[Medicaid is] a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons.”).

  3. See, e.g., JM. 1586 (Feb. 11, 2022, email from DHHS Associate Commissioner regarding the funding of Petitioners’ services at JRC using only state general funds: “you can let [the Area Agencies] know that for the period they are unable to bill Medicaid for JRC, we will be using GF for the payment. At this point, we are committing to this until June 30 th and they must be engaged with the Department on active transition planning”); JM. 1590-91 (Feb. 16, 2022, email from DHHS Associate Commissioner regarding the funding of Petitioners’ services at JRC using only state general funds: “I approve this strategy and am only agreeing to pay for the JRC through 6/30/22 and we will assess after that time if it is needed”); JM. 1602 (Jun. 6, 2022, email from DHHS Associate Commissioner regarding the funding of Petitioners’ services at JRC using only state general funds: “Has there been any discussion or pushback re: the 9/2 deadline we have given the agencies?”).

  4. The Court should consider this le tter for the same reasons stated in Petitioners’ Opening Brief at 21 n.10, including because it is a matter of public record susceptible to judicial notice and directly relates to issues raised by Petitioners and the Area Agencies and litigated in the proceedings below and before this Court on appeal.

  5. The State is grasping at straws by arguing that BDS officials hold personal liability for using state appropriations to support developmentally disabled adults, when the legislature has clearly authorized non-lapsing appropriations for that purpose. See RSA 171-A:8-b. The fact that BDS obtained fiscal committee and governor and counsel approval to pay back JRC for withheld funds as ordered by this Court during the pendency of this appeal is immaterial to the supplemental questions. Even if material, the requested fiscal committee items simply evidence poor fiscal management by BDS over the state funds appropriated for the care of developmentally disabled adults.

  6. Nor does DHHS acknow ledge the legislative history of the 2019 Amendments which reveals the actual, narrow concerns addressed by the amended statutory language. Cf. PB. 43-44.