Sununu blasts hospitals over lawsuit on ER boarding of mental health patients

In February, a federal court judge ruled the New Hampshire Department of Health and Human Services is violating the 4th Amendment by forcing hospitals to care for people experiencing mental health crises in emergency rooms.

Judge Landya McCafferty ruled the state’s process of getting people in a mental health crisis appropriate care is broken, and the state is essentially seizing property from the private hospitals when it forces them to board and treat patients who are supposed to be getting state services.

“The result is that the commissioner is seizing the hospitals’ emergency departments by boarding her patients there without the permission of the hospitals,” McCafferty wrote. “On this record, there is no dispute of material fact that the commissioner’s unlawful boarding practice is an unreasonable seizure of the hospitals’ emergency departments.”

The lawsuit was originally brought by a class of John Doe/Jane Doe plaintiffs who argue the state is violating the rights of people in crisis by forcing them to stay in emergency rooms for as long as four weeks while they wait to be admitted to a psychiatric hospital, usually New Hampshire State Hospital.

That lawsuit was joined by a group of 15 hospitals and health-care systems who sought judgment against the state, claiming DHHS is violating their 4th Amendment rights against unreasonable seizures. After some of the plaintiffs agreed to drop their complaints, the ruling is in favor of the 15 hospitals and one health-care system.

Sununu told reporters in about 2018 or 2019 the state offered hospitals millions of dollars to create more for beds in their communities to address the emergency room boarding crisis.

“They didn’t take us up on that. They didn’t want to be part of that solution,” Sununu said.

He noted there is money in his proposed two-year budget to support more beds for anyone who does create them.

“We will obviously help support them but the latest lawsuit by the hospitals is a horrible example of one of our most important community institutions such as a hospital essentially saying that mental health is not a health issue. And that is wrong. They are absolutely wrong. When we want hospitals to partner at a community level, they send in their lawyers.

“Nobody else does that, but they do that. And it just sends the absolute worst message to the families and the citizens of the communities of the cities and towns that rely on an all-hands-on-deck effort when it comes to mental health.

“They don’t believe anyone with mental health issues should be coming to their emergency rooms that they should be utilizing their services and that they should be a partner in that, and that is dead wrong. So we are going to move forward. We are going to keep providing the dollars and the funding and the services, it’s not about dollars. We have the money. This is about making sure that everybody comes to the table and understands that no one is immune from being part of the solution around mental health,” Sununu said.

Sununu defended his efforts to solve the emergency room boarding problem noting, “We have made huge investments and strides into making sure that anyone who does go to a hospital is getting due process. We have judges and lawyers that are specifically focused on mental health. We never had that before. We have our community partners with our mental health agencies that are putting all their efforts forward which is important.

“We have schools that are on board. We have police and fire that are on board. I mean, what police officer doesn’t have to go out and deal with mental health issues? Or a firefighter? They don’t show up in a mental health crisis and say ‘well the building is not on fire, I guess we’re not part of the solution.’

“Everybody takes an all-hands-on-deck approach to being part of the solution and hospitals have clearly said they want no part of it. And that is a real problem. And so, they want to fight with lawyers.

“We want to provide those community-based solutions and come to a better agreement. I think they have a lot of explaining to do to the citizens and cities and towns that they serve,” Sununu said.

After McCafferty’s ruling, Steve Ahnen, president of the New Hampshire Hospital Association, said the goal has always been to make sure everyone is getting the care they need. That’s not happening now for mental health patients being boarded in emergency rooms, he said.

“This case has always been about ensuring patients in acute psychiatric crisis are able to receive the care they need immediately and, in a facility, specially designed for that purpose,” Ahnen said.

Under the state’s involuntary commitment law, a person who is a danger to his or herself or others may be involuntarily committed and must have a probable cause hearing before a judge within three days of being admitted, continuing to be held.

In many cases, people are held much longer than three days as they wait for a bed to open in a psychiatric hospital, some as long as four weeks, without a probable cause hearing. Part of the problem, according to McCafferty, is the state simply does not have the facilities to treat people who are being held. New Hampshire State Hospital does not have enough beds, and it does not have enough staff, McCafferty wrote.

McCafferty denied the hospitals’ motion for an injunction against the state. Instead, she is ordering both sides to work out a detailed plan to stop the illegal seizure of hospital emergency rooms.

The complaint brought by the Doe plaintiffs is still pending in the United States District Court in Concord.

Ahnen said the hospitals are ready to work with NH DHHS and make sure people get the appropriate care.

“We look forward to working with state leaders to ensure the achievement of a permanent solution as quickly as practicable,” he said.

– Reporter Damien Fisher contributed to this report.