N.H. Hospital Association joins ACLU lawsuit against state over psychiatric care

  • A security officer stands by while LNA Karen Johnson works with mental health patients in a make-shift care area in a Concord Hospital Emergency Room hallway Thursday. In recent months and especially for the last two weeks, the hospital has experienced a backlog of patients waiting to be admitted to New Hampshire State Hospital. In the meantime, other, medical patients are experiencing longer wait times.

Monitor staff
Published: 1/7/2019 5:52:38 PM

The New Hampshire Hospital Association is jumping into a lawsuit against the state over the boarding crisis for psychiatric patients, arguing that state officials are failing to provide timely care to patients by keeping them in emergency rooms.

In a statement Monday, Steve Ahnen, president of the association, said it would be submitting an intervention in the lawsuit, first submitted by the American Civil Liberties Union in November.

The association and its members agree with major portions of the ACLU argument and places the blame squarely with the state.

“New Hampshire’s failure to ensure immediate treatment and due process for those in need of mental health care services is morally and ethically wrong, and it does not serve the health care needs of patients,” Ahnen said.

In recent years, as New Hampshire faces bed shortages in its mental health outpatient facilities, patients seeking psychiatric care have been made to wait in emergency rooms for spots to open up. Some have wait for weeks; the waitlist numbers in the dozens.

State law requires involuntary psychiatric patients receive probable cause hearings within three days of admission. But under the current system, that process does not start until the patient is committed to an inpatient facility, which can take days or weeks before a bed becomes available.

In its class-action lawsuit, filed New Hampshire’s ACLU has called the system a violation of the 14th Amendment right to due process, urging state officials to start the three-day clock when the patient enters the emergency room.

The Hospital Association says the practice of holding psychiatric patients in the emergency rooms is itself a violation of state law, whatever the wait time. Under state law, those patients that are a danger to themselves – and for whom a petition of involuntary emergency admission has been filed – are meant to be passed onto “designated receiving facilities” designed for behavioral health, Ahnen said in a statement.

They are never meant to end up in an emergency room at all, Ahnen argued.

While the Hospital Association is joining the lawsuit, Ahnen said the association disagrees with the ACLU’s proposal for increased probable cause hearings in emergency departments.

“Not only is this bad public policy and bad health care practice, it serves to enable and perpetuate the flawed system that exists today. The solution is not to build courtrooms in hospital EDs; the solution is to move these patients to appropriate (designated receiving facilities) where they can get the care and due process to which they are entitled by state law.”

Both the hospital association and the ACLU have said they hope the lawsuit inspires the Legislature and state officials to find a fix before the courts step in.

Department of Health and Human Services officials were critical of the association’s decision to join the suit.

“At a time when the state is dedicating itself to rebuilding its mental health system, including significant investments and a new 10-Year Mental Health Plan, it’s disappointing to see hospitals use a lawsuit to walk awa y from the table, not be part of the solution, and not provide responsible care and services sufficient to meet the needs of the populations they serve,”  Commissioner Jeffrey Meyers said in a statement.

The governor and leading lawmakers have already pledged to address the needs of the state’s mental health system this legislative session and a lawsuit is the wrong way to go about it, Meyers said.

“Instead, the hospitals seek to broaden the scope of the ACLU’s lawsuit, shift important state policy decisions to federal court, and avoid any potential financial implications to themselves in the process,” Meyers said. “The approach is unnecessary and counterproductive.”

Editor’s note: This story was changed to include a statement from Department of Health and Human Services Commissioner Jeffrey Meyers.

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at (603) 369-3307, or on Twitter at @edewittNH.)

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