The Bulletin Board

Lawyers say practice of emergency room boarding continues

By: - September 9, 2021 3:43 pm
An emergency room entrance

On Thursday, 18 adults and 10 children were waiting in emergency rooms for an in-patient bed, according to the Department of Health and Human Services website. (Dave Cummings | New Hampshire Bulletin)

Four months after the New Hampshire Supreme Court told the state it could no longer detain people in hospital emergency rooms without a hearing within three days, the practice continues, according to lawyers for the hospitals and people held during a mental health crisis.

An attorney representing the state Department of Health and Human Services disputed that allegation during a federal First Circuit Court of Appeals hearing Thursday. But he also acknowledged some violations continue when people in a mental health crisis come to an emergency room for help, a required first step to getting in-patient mental health treatment.

“It’s like turning a battleship, so I’m not going to come here and say that the system is completely consistent with the (state Supreme Court) decision,” attorney Sam Garland said. “But our understanding is, short of the pervasive and widespread alleged violations, the majority of folks are receiving their hearings in three days. For those who aren’t, we understand that many of them are receiving hearings on day four, day five.”

On Thursday, 18 adults and 10 children were waiting in emergency rooms for an in-patient bed, according to the Department of Health and Human Services website. The site does not say how long each person has been waiting or whether they are there voluntarily or being held against their will under an “involuntary emergency admission” petition. The numbers have fluctuated during the pandemic, with as many as 40 adults and 40 children waiting this spring.

Following the state Supreme Court decision, Health and Human Services Commissioner Lori Shibinette and Gov. Chris Sununu pledged to stop “emergency room boarding” immediately, and have been using federal pandemic aid to increase the number of available treatment beds. 

Shibinette’s department also proposed last-minute legislation in June that would have given the state flexibility around the three-day limit. A Senate committee unanimously rejected it. 

The allegations in the federal case, brought against the state in 2018 by the American Civil Liberties Union of New Hampshire, mirror those in the case decided by the state Supreme Court: A shortage of in-patient mental health beds has led the state to hold people in emergency rooms for days, even weeks, without a giving them a legally required hearing within three days to challenge their detainment.

The state asked the federal court to dismiss the case before it, saying that even with some lingering delays, the state has resolved the emergency room backup. 

Attorneys for the individuals held in emergency rooms and the hospitals objected.

The New Hampshire Hospital Association and its member hospitals, which intervened in the case after it was filed in 2018, claim the state has no legal right to force emergency rooms to house patients until it can find a treatment bed. 

“We’ll concede that since the (state Supreme Court) decision came out, the state has taken action, and the waitlist has been reduced,” said the hospitals’ attorney, Michael Ramsdell. “The state cannot claim that they’ve ended the problem. I can tell you that.”

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Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications.

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