The state has a 12-month deadline to end the controversial practice of boarding people having a psychiatric crisis in hospital emergency rooms, a federal judge has ruled.
By next May 17, the state will be required to accept someone into a psychiatric hospital six hours after a doctor authorizes involuntary admission, U.S. District Court Judge Landya McCafferty wrote in an order issued last Wednesday.
The ruling comes after years of lawsuits and judicial rulings to address the practice of boarding people in hospital emergency rooms while they wait for an open bed at the New Hampshire State Hospital.
On Friday, two days after McCafferty’s order, the state Department of Health and Human Services announced a “Mission Zero” plan to eliminate emergency room boarding, with a self-imposed deadline of 2025. The announcement made no mention of the judge’s ruling.
“Rebuilding our mental health system has been a priority since day one,” Gov. Chris Sununu said in a statement.
For more than a decade, New Hampshire adults and children have faced the “inhumane practice” of boarding, according to a statement issued by the New Hampshire chapter of the National Alliance on Mental Illness.
They are held against their will, typically in windowless rooms with nothing more than a bed on the floor, NAMI said. Confinement can last for days or weeks with little or no treatment or visitors, NAMI said.
“This confinement is traumatizing and, for people with serious mental illness, can often worsen symptoms,” NAMI said in its statement.
As of Friday, there were 45 adults and 17 children boarded in emergency rooms, according to the HHS website.
Under New Hampshire law, a person experiencing a mental health crisis is seen by a doctor, who signs papers to authorize an involuntary emergency admission in the New Hampshire State Hospital or another designated receiving facility.
In that facility, the patient goes before a judge, who decides whether enough evidence exists to continue their involuntary treatment.
Until last year, boarded patients did not go before a judge until they entered the state hospital, which could follow weeks of waiting. In 2020, judges rejected about one of four involuntary admissions.
Rulings have gone against the state over emergency room boarding in both federal and state courts. Most of those decisions have addressed civil rights violations against people held against their will without seeing a judge.
The state has fought such rulings, though last year it allowed for hearings by phone with a judge within three days of the signature on commitment papers.
McCafferty’s recent ruling focuses on the complaints of hospitals, who claimed that the boarding amounted to an unconstitutional seizure of their emergency rooms.
“The (Health and Human Services) commissioner is permanently and prospectively enjoined from seizing the hospitals’ property and resources in violation of their Fourth Amendment rights,” McCafferty wrote in a three-page order issued on Wednesday.
Five days before that order, McCafferty rejected efforts by state officials to throw out the five-year lawsuit. Rather, McCafferty added David King, the administrative judge of the New Hampshire Circuit Court, as a defendant.
King will have to address the issue of telephonic hearings, which lawyers representing patients reject.
The lawyers want video hearings, and they object to the current practice of having a single judge in Concord hear all the cases, saying that prevents patients from obtaining a local lawyer.
In their Friday announcement, officials stated three times that boarding is a problem nationwide, blaming it on structural changes in health care, severe workforce shortages and COVID-era increases in mental illness.
The new plan will seek to address:
Front-door issues, meaning the inability to access timely services in the community, which leads to a psychological crisis;
Inpatient supply and coordination, meaning insufficient beds for people with acute needs.
Back-door issues, meaning people who exceed their stays in inpatient psychiatric facilities because of lack of support when they leave.
DHHS Interim Commissioner Lori Weaver said her department was “hitting the gas” to eliminate boarding.
“The strategies employed as part of ‘Mission Zero’ are bold and proactive, designed to accelerate New Hampshire’s efforts to increase community-based services and reduce the need for, and length of, inpatient psychiatric admissions,” Weaver said.
DHHS wants to expand funding for community mental health centers in the next state budget, launch a certified community behavioral health clinic model, expand transitional housing and step-down care and develop landlord incentives.
Already, efforts are underway to add more than 100 beds to the system, DHHS said.
Work is now underway to make repairs to closed wings in the state hospital that should provide nearly three dozen additional beds.
Executives with the Dartmouth Hitchcock Medical Center in Lebanon have agreed to open a five-bed, designated receiving facility and Solution Health is finishing its plans to build a new, 120-bed project in southern New Hampshire.
