A federal court on Thursday ordered New Hampshire hospitals and the Department of Health and Human Services to come up with a schedule for ending the boarding of mental health patients in emergency rooms, sometimes for days and weeks, without timely placement in mental health facilities that can provide care they need.
The judgment Feb. 23 in U.S. District Court in Concord gives attorneys for DHHS and 18 New Hampshire hospitals 30 days to come up with joint or separate plans for phasing out the practice — deemed a violation of the U.S. Constitution’s Fourth Amendment, which prohibits unjust seizure of private property.
According to the order and emergency room records, mental health patients in crisis have waited as long as 17 days to transfer to New Hampshire Hospital, the state’s psychiatric hospital, or to one of six other designated receiving facilities (DRFs), including Hampstead Hospital, Elliot Hospital, Portsmouth and Concord Hospital. On Friday, 38 adults and eight minors were waiting for an open bed. According to DHHS, 30 adults waited in emergency rooms.
Mental health advocates say the unintended but perilous situation of fragile patients in limbo, often on beds in emergency room corridors, has been brewing for a decade. It’s compounded by the pandemic, an ongoing health care workforce shortage, long waits and increased demand for mental health services within communities, and hospital beds taken offline because of insufficient staff to care for patients.
In the ruling, U.S. District Judge Landya B. McCafferty sided with the claims of hospitals that psychiatric boarding in emergency rooms violates the rights of hospitals because hospital property — emergency room beds — are “seized” to provide a holding station for mental health patients, taking away space created for emergency care and critically ill patients awaiting hospital admission.
The Department of Health and Human Services declined to comment while the case is in litigation.
“We are currently in the process of reviewing the order and will respond as appropriate,” said Michael Garrity, spokesperson for New Hampshire Department of Justice attorneys representing DHHS.
Steve Ahnen, president of the New Hampshire Hospital Association, in an email on Friday praised McCafferty’s “clear and compelling order.”
“This case has always been about ensuring patients in acute psychiatric crisis are able to receive the care they need immediately and in a facility specially designed for that purpose,” Ahnen stated. “When a patient is experiencing a mental health crisis and an involuntary emergency admission is certified, then that patient becomes part of the state’s mental health system and is to be immediately transferred to the appropriate setting to receive the necessary care and due process that they need and are entitled to under law. We look forward to working with state leaders to ensure achievement of a permanent solution as quickly as practicable.”
Susan Stearns, executive director of NAMI- NH, the state’s chapter of the National Alliance on Mental Illness, said she genuinely understands the complex issues of this case, including insufficient workforce throughout “all of health care,” which erodes the number of available beds. Also lacking are supportive housing options for mental health patients awaiting discharge from New Hampshire Hospital, which can bring new admissions to a standstill.
At NAMI-NH, “Our greatest concern is we have people in need of mental health treatment because of a mental health crisis that end up boarding for days or a week with very little treatment. For any other illness, would we think that’s acceptable?” The longer treatment is delayed the greater the likelihood of negative outcomes, Stearns said.
“These are our fellow Granite Staters. The parties (in the lawsuit) need to come together,” she said.
Right now, there are more mental health beds in designated receiving facilities than there are beds in all of New Hampshire for voluntary psychiatric admissions, said Stearns. “It speaks to the lack of capacity in our system.”
Timely access to mental health care is an increasingly-urgent health care priority. “It’s a problem we all have to work to resolve,” said Stearns. “Every Granite Stater has skin in this game.”
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