New Hampshire resolves hospitals’ lawsuit challenging mental health boarding in ERs

DHHS decides not to seek deadline extension of federal court order
Emergency Room
The NH Department of Health and Human Services and the NH Hospital Association issued a joint statement Wednesday describing the decision as a step toward ensuring people in crisis have timely access to care. (Dave Cummings/NH Bulletin)

The state announced Wednesday morning that it will not challenge a federal court order giving it until May 2024 to stop holding people it’s trying to hospitalize for emergency psychiatric care in emergency rooms for days, even weeks.

The Department of Health and Human Services and the Attorney General’s Office had told the court the state would stop the practice. But it sought a 2025 deadline and wanted 12 hours to find a patient a hospital bed, not the six hours U.S. District Court Judge Landya McCafferty ordered in May.

In seeking more time, the Department of Health and Human Services said a lack of available psychiatric hospital beds made it impossible to arrange admission for all patients within six hours.

The NH Hospital Association and nearly 20 hospitals had argued in federal court that the state was illegally seizing its property by boarding patients in emergency rooms while looking for a treatment bed.

The Department of Health and Human Services and the Hospital Association issued a joint statement Wednesday describing the decision as a step toward ensuring people in crisis have timely access to care.

“For the hospitals, this case has always been about ensuring patients suffering from an acute psychiatric crisis are able to receive the care they need by immediately being transferred to a health care facility specially designed for that purpose,” said Steve Ahnen, president of the hospital association, in a statement. “We look forward to working with the commissioner (of Health and Human Services) over the next year to ensure that the state has sufficient clinical and community behavioral health resources in place to end hospital emergency department boarding once and for all.”

Tuesday, the most recent data available, 40 adults were waiting for involuntary admission, according to the department. Thirty-four were being held in hospital emergency rooms.

Lori Weaver, interim commissioner of Health and Human Services, said in a statement Wednesday that she is committed to ending the wait list for people being held for involuntary emergency admission due to danger concerns for themselves or others.

“Individuals waiting in hospital emergency departments for a psychiatric bed is an issue that persists across the country,” she said. “ We will achieve this important milestone by working with our partners throughout the health care system to increase access to mental health services for all residents.”

She added, “We all need to act with urgency, unity, and compassion to resolve the emergency department boarding list.”

Gov. Chris Sununu, who blasted hospitals in March for challenging the long holds in their emergency rooms, did not immediately issue a statement about the resolution. In March, he said the hospitals had been “extremely clear that they don’t want to be part of the mental health solution.”

He added, “They should be ashamed. This latest (court challenge) by the hospitals is a horrible example of one of our most important community institutions, such as a hospital, essentially saying that mental health is not a health issue. And that’s wrong. They’re absolutely wrong.”

In 2021 the state Supreme Court ruled in a separate case that the state was violating people’s due process rights by holding them longer than three days without a chance to challenge their detention.

The department has said it believes its recent investments in preventative mental health services, such as more counseling and a 24-hour helpline, will help alleviate the need. It has also invested $15 million in a 144-bed psychiatric hospital SolutionHealth is planning to build in southeastern New Hampshire. It also bought Hampstead Hospital to treat children and youth.

This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.

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