Judge: State has 6 hours to move patients from ERs to treatment when holding them for safety

The Attorney General’s Office declined to say whether it will challenge this week’s ruling from a federal judge requiring the state to stop boarding people multiple hours, days, and even weeks in hospital emergency rooms when seeking to involuntarily commit them for treatment. 

The judge gave the state a year to ensure patients are transferred from an emergency room to a treatment facility within six hours of completing an involuntary emergency commitment petition against them. The state had sought more time for both deadlines. It wanted up to 12 hours to transfer a patient and two years to find a way to make that possible. 

Friday morning, two days after the ruling, the Department of Health and Human Services issued a press release saying it has a plan in place to end emergency room boarding by 2025, a year later than the judge’s deadline. The release said it has been planning the initiative “Mission Zero,” a reference to eliminating the treatment bed waitlist, for several months.

In its release, the department said the effort will include expanding preventative community-level treatment by advocating that lawmakers include additional funding in the budget. It will try to expand housing options for those who are safe to be discharged from involuntary treatment but may not be ready to live independently.

The department has said the lack of places to discharge patients who are ready to safely leave the hospital but not ready to live on their own is also contributing to the bed shortage. 

The department said hospitals have agreed to make 125 new treatment beds available, five at Dartmouth hospital by the fall and 120 at a new treatment facility SolutionHealth is building. That is scheduled to open in early 2025, the release said.

In her order, U.S. District Court Judge Landya McCafferty also required the Department of Health and Human Services to update the court on its progress in four months with a second update four months later.

In response to a request for comment, Michael Garrity, spokesperson for the Attorney General’s Office, which represents the department in the case, said in an email: “The New Hampshire Department of Justice is reviewing the judge’s order and will respond in court, as appropriate.”

It’s the latest order in a 2018 case brought by ACLU of New Hampshire against the Department of Health and Human Services challenging the state’s handling of involuntary emergency admission cases, brought when someone in a mental health crisis is considered a danger to themself or others. A shortage of treatment beds has led to people languishing days or longer in emergency rooms while waiting for a bed to become available. In a separate case, the state Supreme Court ruled in 2021 that the state was violating people’s due process rights by holding them longer than three days without a chance to challenge their detention.

Mental health treatment providers and advocacy groups say there has been a surge in demand since the start of the pandemic. 

On Thursday, 30 adults with an involuntary emergency admission hold were waiting in emergency rooms for a bed, according to the Department of Health and Human Services’ online tracker. The tracker does not indicate how long they have been waiting for a treatment bed. 

The state hospital, which has the largest number of beds at 185, has closed 34 for renovation. 

The New Hampshire Hospital Association and nearly 20 hospitals intervened in the case to argue the state was illegally seizing its property by boarding patients in emergency rooms while looking for a treatment bed.

McCafferty ruled in favor of the hospitals and asked both the hospitals and the state to propose a solution that would ensure patients were transferred to a treatment bed sooner than many have been. 

The New Hampshire Hospital Association was among the groups Thursday that called McCafferty’s ruling giving the state just six hours to transfer a patient a win.

“On behalf of our patients and their families, we look forward to the day when a patient in acute psychiatric crisis is able to get the specialized mental health care services they need, when and where they need it,” said Steve Ahnen, president and CEO of the New Hampshire Hospital Association, in a statement.

Gilles Bissonnette, legal director of the ACLU of New Hampshire, said in an email, “The court’s decision today helps ensure that people who present in hospital emergency departments because of a mental health crisis will not have their constitutional rights violated. Granite Staters experiencing a mental health crisis should have a robust array of treatment opportunities that meet their needs, including the level of treatment they need, when they need it, and where they need it.”