High court rules against state in ’emergency room boarding’ case

The New Hampshire Supreme Court on Tuesday ruled against the state’s argument that with a shortage of psychiatric beds, it can hold people in emergency rooms indefinitely, against their will, after finding them in need of emergency mental health care. 

The court said the state Department of Health and Human Services must provide individuals probable cause hearings to challenge their detainment within three days of arriving in an emergency room. The state Department of Health and Human Services has argued the three-day clock on “involuntary emergency admissions” begins when someone is transferred to a psychiatric hospital, not when they first arrive in an emergency room, even when the emergency room wait is days long.

“The parties have made clear that the statutory process is not working as the Legislature intended because of the lack of beds in receiving facilities,” the court said. “As a result, individuals who have been certified for involuntary emergency admission are boarded in private hospitals while waiting for space in designated receiving facilities … and [w]hile they wait, those persons are not provided treatment or probable cause hearings.”

Department of Health and Human Services spokesman Jake Leon issued a written statement: “We are currently reviewing the ruling and working with our legal counsel to determine how to comply with the court’s opinion.”

Ben Vihstadt, Gov. Chris Sununu’s spokesman, said Sununu has and will continue to prioritize mental health care.

“In 2016, New Hampshire’s mental health services were in disarray,” Vihstadt said in a written statement. “Governor Sununu took office and quickly rebuilt a broken system that successfully managed the emergency room waitlist prior to the COVID crisis. We have never taken our eye off this critical issue and the state is reviewing the decision to ensure our most vulnerable citizens get the services they deserve in their time of need.”

Mental health advocates on both sides of the aisle said Tuesday that the ruling underscores the need to invest in the state’s 10-year mental health plan – something the budget passed in 2019 did. A combination of challenges, largely stemming from the pandemic, has stalled those investments and new services. Advocates are concerned, however, that the Republican House budget proposes eliminating over 200 positions and $50 million from the state Department of Health and Human Services.

“This budget … is saying, ‘Yeah, you got a crisis, yeah you got a pandemic, but you have to cut positions and funding that can address these problems,” said Sen. Tom Sherman, a Rye Democrat. “How can you ask the commissioner to deal with this when you are pulling the rug out from under her?” 

The court did not offer a solution, saying those decisions belong to the Legislature and executive branch.

At the center of the “emergency room boarding” case is “Jane Doe,” a woman who waited in an emergency room for 20 days without a probable cause hearing, before being admitted to New Hampshire Hospital on a state involuntary emergency admission petition. In an interview Tuesday, the woman said she hopes the court’s decision will spare others from languishing in emergency rooms, an experience she called an “incarceration.”

“I seriously thought I might die in there,” she said. She was given a probable cause hearing three days after arriving at New Hampshire Hospital and then discharged.

Tuesday’s opinion upholds a lower-court ruling and reiterates a federal court finding in a separate but similar case that involves three men who were held in emergency rooms, one for 27 days and another for 15. The New Hampshire chapter of the ACLU filed a brief in Jane Doe’s case and brought a separate case in federal court on this issue.

“Today’s historic decision is a major victory for mental health advocacy: It recognizes that those being boarded in hospital emergency rooms are human beings entitled to prompt due process,” said Legal Director Gilles Bissonnette in a written statement. “For far too long, a lack of community-based mental health treatment options has meant some people, including our clients, have been held without probable cause hearings for weeks in emergency rooms, without access to a state-appointed lawyer or an opportunity to timely contest their detention.”

Sen. Cindy Rosenwald, a Nashua Democrat, said the ruling reinforces the need to preserve and expand mental health funding in the next budget. “The court brought down the hammer today,” she said. “There is nowhere else to go.”

The National Alliance on Mental Health New Hampshire, which intervened in the case, hailed the court’s ruling. 

“When justice is denied to one person, it is denied to all,” Executive Director Ken Norton said in a written statement. “Today’s decision on behalf of Jane Doe is a decision in favor of all Granite Staters. We are all Jane Doe.”

The New Hampshire Hospital Association and 23 hospitals also filed a brief in the case, arguing that the Department of Health and Human Services requires them to detain people who are being held under an involuntary emergency admission until a psychiatric bed becomes available. 

Association President Steve Ahnen said his members will continue working with the state to resolve the boarding crisis: “The court clearly affirmed that when a patient is experiencing a mental health crisis, and receives an involuntary emergency admission designation, then that patient should be immediately transferred to the appropriate setting to receive the specialized care and due process that they need and deserve.” 

Emergency room waits are not new or unique for adults and children in psychiatric crisis, and they have increased since the pandemic elevated mental health needs. On Tuesday, 42 adults and 14 children were waiting in emergency rooms for a bed at one of the state’s psychiatric hospitals. The length of their waits and whether they were being held under involuntary emergency admission status were not available yesterday. 

In most involuntary cases, judges find probable cause to commit the individual to a hospital, but not always.

In 2020, probable cause was found in 1,419 of 1,965 petitions, according to court records. No probable cause was found in 252 cases, and individuals were released prior to a hearing in 31 cases. Eighty petitions were withdrawn, and individuals in 68 cases waived their right to a hearing.

The numbers were similar for the 1,901 hearings held in 2019, according to the records.

In 2019, the state budget made significant investments in mental health care for adults and children that ranged from community-level treatment and mobile crisis response teams and residential treatment for children, and transitional housing for adults. 

“In the Legislature, we have, ever since Chris Sununu became governor, worked to upgrade our mental health facilities, and it’s been totally bipartisan,” said Sen. Jeb Bradley, a Wolfeboro Republican. “The pandemic has greatly exacerbated the mental health situation in New Hampshire and has caused resources to be stretched even further than they might have otherwise been.” 

The mobile crisis response team was delayed because the state expanded it to children and adults and has been negotiating with providers. The shortage of transitional housing is one of the main reasons New Hampshire Hospital cannot release patients as soon as they are ready. The department has tried to hire organizations to provide the services but been told the rates are too low. It has requested additional money for that project in the next budget. The community mental health centers have said they are struggling to meet requests for mental health care because their salaries cannot compete with private wages.

Asked about the House’s proposed cuts to the Department of Health and Human Services budget and staff, Bradley said he’s confident the Senate will “do its homework on the budget and prioritize mental health.” Additionally, he pointed to bipartisan legislation that seeks to lessen community mental health centers’ workforce shortage by allowing clinicians with bachelor’s and associate degrees to bill Medicaid and private insurance, something that is currently available only to master’s-level clinicians.

“We would have been much better off without the pandemic,” he said. “But that doesn’t mean we can just excuse everything to the pandemic. We have to continue to make the right steps to lessen the boarding of both adults and children in the hospital.”