NH hospitals seek court redress for boarding of psych involuntary emergency admits

By Christina P. O'Neill
March 3rd, 2023

On January 10, 15 not-for-profit acute-care New Hampshire hospitals filed a motion for summary judgment in Merrimack County Superior Court against the state’s Department of Health and Human Services, ordering the New Hampshire DHHS to ‘immediately’ transfer those people involuntarily held in hospital emergency rooms because of a mental health crisis to designated mental health (receiving) facilities.

The motion alleges that DHHS is failing to fulfill its duties to involuntary emergency admits (IEAs). They can be held in ERs for extended periods – days or weeks — until psychiatric beds become available in receiving facilities.

The backlog has repercussions throughout the health care system, not only in New Hampshire but in other states as well. Acute-care hospitals in New Hampshire are not optimized to hold IEAs for long periods.

Specific problems arising from the inability to promptly process IEAs to designated receiving facilities include overcrowding of emergency and medical-surgical spaces with sometimes-disruptive IEA admits who may pose a risk to staff and other patients. The COVID epidemic only aggravated this situation with its additional burdens on hospital space.

The January 10 motion for summary judgment cites a documented wait list, in operation for 10 years, for behavioral health admissions to acute-care hospitals. It indicates the number of New Hampshire IEA patients in need during any given time. They await transfer to a state-certified designated receiving facility (DRF), authorized to provide the level of treatment that acute-care hospitals cannot. For example, administering medications to the IEAs against their will requires regulatory approval, while medicating voluntary psychiatric admissions does not.

The state’s response to the filing declares the risk of transferring IEA patients to facilities ‘that cannot appropriately care for them,’ due to a shortage of staffed patient beds, with the possibility of harming the patients and possibly their transporters. I

Incoming DHHS Commissioner Lori Weaver also contended in the response that the hospitals “are part of a regulated state system that empowers them to place patients in state custody by the mere completion of an IEA certificate. … The hospitals do not have a right under state law to eject from their emergency departments persons suffering from mental health emergencies and demand state facilities to care for them. …” The state cites staff shortages to cover available patient beds as the reason for its inability to care for these transfers.

As of January 3, according to the state’s response to the January 10 filing, 37 IEAs awaited transfer across the New Hampshire health care system.

A previous legal action is a February 1, 2021 appeal filed by the ACLU of New Hampshire in the New Hampshire Supreme Court as a mandatory appeal from the Merrimack County Superior Court. It was on behalf of an IEA admittee, Jane Doe vs. Lori Shibinette, then-DHHS Commissioner. It alleged that Jane Doe’s patient rights had been violated through a lack of due process and/or hearings held within three days of involuntary admission to Dartmouth-Hitchcock Medical Center in Lebanon, NH.

After 17 days in a windowless room there, the appeal says, she was transferred to a receiving facility, state-run New Hampshire Hospital in Concord. Jane Doe’s appeal was based on the 17 days between involuntary admission and discharge to NHH. Subsequently, in May 2021, the New Hampshire Supreme Court upheld the rights of IEA patients to probable cause hearings within three days of detention.

The state put a program in place more than 18 months ago to reimburse hospitals for the added expense of caring for IEAs, involving Medicaid and private insurers, The Keene Sentinel reported in January.

But Donald Caruso, president and CEO of Cheshire Medical Center in Keene NH and 2022 board chair of the New Hampshire Hospital Association, reportedly said then those hospitals had not seen any reimbursement. He said that threats to the safety of hospital staff have become more severe as overcrowding has worsened in recent years. He was not available for comment at publication time.

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