New Hampshire, hospitals come to terms on psychiatric boarding multiyear lawsuit

The New Hampshire Hospital Association (NHHA) and state officials are putting to bed a multiyear legal dispute over acute mental health patients being involuntarily held in emergency departments, according to joint statements released by the parties Wednesday.

In the wake of court rulings that favored the hospitals’ position, the New Hampshire Department of Health and Human Services (DHHS) has agreed to begin transferring these patients to a designated receiving facility within a six-hour window, starting May 2024.

“Our agreement to resolve this case with the Commissioner is an important step to ensure that patients in an acute psychiatric crisis will get the specialized care they need, when and where they need it,” Steve Ahnen, president of the NHHA, said in a statement.

The dispute began in late 2018 when an anonymous plaintiff was boarded at Southern New Hampshire Medical Center “without any due process” and did not receive a hearing in which a judge would determine whether his mental condition was a threat to others for at least three days.

The patient petitioned the court for writ of habeas corpus, asking the court to require the DHHS “to perform its constitutionally required obligation to provide due process protections to individuals involuntarily detained in emergency rooms.”

Other patients, individual hospitals and the NHHA subsequently joined in on the case. The latter groups argued in court filings that the state was “avoiding its obligations” to promptly make a designated referral facility available for the interned patients and forcing hospitals to care for the patients.

Hospitals across the nation have warned that discharge bottlenecks are stranding mental health patients and others in emergency departments longer than medically necessary. The psychiatric care issue is exacerbated in New Hampshire, where 45 adults and four children were being boarded in emergency departments awaiting an inpatient psychiatric bed as of Tuesday, according to an AP report citing data from the National Alliance on Mental Illness.

In February, U.S. District Judge Landya McCafferty delivered a summary judgment that agreed with hospitals’ arguments that the state’s boarding practice violated their Fourth Amendment right against unreasonable seizure of their emergency departments.

The decision was followed in May by a permanent injunction giving DHHS 12 months to accept patient transfers within six hours of a hospital’s transmittal of an Involuntary Emergency Admission Certificate to the department.

Wednesday, NHHA and DHHS Commissioner Lori Weaver said they had struck a deal in which hospitals would set aside their pending legal claims and forego claims for incurred legal fees. In return, Weaver waived her right to appeal the summary judgment order and will work with the state’s hospitals to comply with the May 2024 deadline for prompt transfers.

“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,” Ahnen said. “We look forward to working with the Commissioner 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 so that IEA patients will finally be able to receive timely and appropriate care.”

In a statement, Weaver said she is “committed to eliminating” New Hampshire’s waiting list for psychiatric beds and “would achieve this important milestone” by collaborating with health organizations across the continuum of care.

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

At the national level, a coalition of 33 provider groups penned a joint letter to President Joe Biden last November warning that “gridlocked” hospital EDs were threatening patients’ lives and the well-being of healthcare workers alike. Elsewhere, the Hospital Association of New York State released an analysis this year that found emergency department discharge delays—often tied to mental health patients—were costing hospitals an average of $18,000 per day.