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Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 1 of 33
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`UNITED STATES DISTRICT COURT
` DISTRICT OF NEW HAMPSHIRE
`__________________________________________
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`
`)
`John Doe, on behalf of himself and all others
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`similarly situated, et al,
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`
`
`)
`)
`) Civil Case. No. 1:18-CV-01039-JD
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`)
`
`
`JEFFREY A. MEYERS, Commissioner of the New )
`Hampshire Department of Health and Human
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`Services, in his official capacity
`
`)
`__________________________________________)
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`
`v.
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`INTERVENORS’ AMENDED COMPLAINT
`Intervenor Plaintiffs New Hampshire Hospital Association, Alice Peck Day Memorial
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`Hospital, Androscoggin Valley Hospital, Catholic Medical Center, Cheshire Medical Center,
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`Concord Hospital, Cottage Hospital, Elliot Hospital, Frisbie Memorial Hospital, HCA Health
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`Services of New Hampshire (Parkland Medical Center and Portsmouth Regional Hospital),
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`Huggins Hospital, Littleton Hospital Association (Littleton Regional Healthcare),
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`LRGHealthcare (Franklin Regional Hospital and Lakes Region General Hospital), Mary
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`Hitchcock Memorial Hospital, Monadnock Community Hospital, New London Hospital,
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`Southern New Hampshire Medical Center, Speare Memorial Hospital, Upper Connecticut Valley
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`Hospital, Valley Regional Hospital, and Weeks Medical Center (collectively, “the Hospitals”)
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`file this Intervenors’ Amended Complaint against Jeffrey A. Meyers, Commissioner, New
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`Hampshire Department of Health and Human Services (“DHHS”), in his official capacity.
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`The Hospitals seek redress under the Fourth, Fifth and Fourteenth Amendments to the
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`United States Constitution and Part I, Articles 2 and 12 of the New Hampshire Constitution for
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`DHHS’s unconstitutional seizure and taking of the Hospitals’ property, and DHHS’s violations
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`of the Hospitals’ due process rights. The Hospitals seek declaratory and injunctive relief against
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`DHHS pursuant to the Declaratory Judgments Act, 28 U.S.C. §2201, the Civil Rights Act of
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 2 of 33
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`1871, 42 U.S.C. §1983, and RSA 135-C et seq.
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`INTRODUCTION
`This action was filed by ACLU-NH on behalf of John Doe and other similarly situated
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`individuals subject to involuntary emergency admission certificates (“IEA patients”). Plaintiff’s
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`Complaint correctly identifies many of the fundamental deficiencies of a State mental health
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`system that fails to provide timely access to mental health care services for many IEA patients
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`who need them. ACLU-NH accurately states that “the State is avoiding its obligations to make
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`treatment ‘immediately’ available to these individuals in DRF facilities1—responsibilities that
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`are exclusively reserved to it—by delegating them to non-DRF facilities. … Simply put, non-
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`DRF facilities … are compelled to provide State functions through this boarding.” The “non-
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`DRF facilities” that are compelled to hold and provide services to IEA patients instead of
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`transporting them to a DRF are the Hospitals’ emergency room departments (“EDs”).
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`Despite recognizing the burden placed on the Hospitals to provide exclusively State
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`functions, Plaintiff’s Complaint seeks to correct only a single and narrow unlawful practice, the
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`failure to provide IEA patients with timely probable cause hearings. ACLU-NH’s action will not
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`achieve medical benefits for most present and future IEA patients or remedy the burden placed
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`on the Hospitals. The purpose of the Intervenors’ Amended Complaint is to effectively address
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`the fact that DHHS’s practice and conduct ignore the core principle of the state’s statutory
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`scheme involving IEAs - that an IEA places the IEA patient in the care and custody of the state
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`mental health services system: “The involuntary emergency admission of a person shall be to
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`the state mental health services system under the supervision of the [DHHS]
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`commissioner.” RSA 135-C:28, I. DHHS’s practice and conduct also ignore the plain statutory
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`1 A DRF is “a treatment facility which is designated by the commissioner to accept for care, custody, and treatment
`persons involuntarily admitted to the state mental health services system.” RSA 135-C:2, XIV.
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`2
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 3 of 33
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`directive that upon completion of an IEA certificate the IEA patient must be immediately
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`delivered to a DRF. Instead of fulfilling its statutory obligations and providing the specialized
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`mental health treatment that IEA patients need, DHHS requires the Hospitals to hold IEA
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`patients in their EDs, typically for days, sometimes weeks, until DHHS directs the Hospital that
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`it may transport the IEA patient to a DRF.
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`The Hospitals seek a declaration that DHHS’s practice of forcing them to fulfill the
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`State’s statutory obligations to IEA patients is unlawful. Specifically, the Hospitals seek a
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`declaration that DHHS’s failure to immediately transfer IEA patients to a DRF, as required by
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`the plain language of the applicable statutory provision and thereby forcing the Hospitals, where
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`IEA patients typically remain for days or weeks to: (a) hold IEA patients in violation of their
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`constitutional and statutory rights, (b) provide services in lieu of the specialized mental health
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`services the state is obligated to provide; and (c) require hospital ED personnel to file successive
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`IEA petitions violates the Takings and Due Process Clauses of the Fifth and Fourteenth
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`Amendments to the United States Constitution, the Fourth Amendment’s protection against
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`unreasonable seizures, the Civil Rights Act, 18 U.S.C. §1983, Part I, Articles 2 and 12 of the
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`New Hampshire Constitution, and New Hampshire RSA 135-C et seq. The Hospitals also seek
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`injunctive relief requiring DHHS to cease its unlawful practice and to fulfill its statutory
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`obligations under RSA 135-C:27-33.
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`Although DHHS’s unlawful practice has existed for years, the Hospitals do not seek
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`compensatory damages for being required to fulfill the State’s obligations to IEA patients.
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`Instead, the Hospitals only seek nominal damages and recovery of their attorneys’ fees for
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`having to pursue litigation to force the State to cease its practice of requiring the Hospitals to
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`unlawfully hold IEA patients in their EDs and to bear the burden of the State’s systemic failure
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`3
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 4 of 33
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`to accept its responsibility to provide mental health services to IEA patients as required by law.
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`THE PARTIES
`Plaintiff New Hampshire Hospital Association (“NHHA”) is a non-profit
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`1.
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`corporation with a principal place of business at 125 Airport Road, Concord, New Hampshire
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`03301. NHHA provides leadership through advocacy, education and information in support of its
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`member hospitals and health care delivery systems. The Hospitals are NHHA members.
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`2.
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`Plaintiff Alice Peck Day Memorial Hospital (“APD”) is a New Hampshire not-
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`for-profit corporation and healthcare charitable trust with a principal place of business at 10
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`Alice Peck Day Drive, Lebanon, New Hampshire 03756. APD is not a DRF.
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`3.
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`Plaintiff Androscoggin Valley Hospital (“Androscoggin”) is a New Hampshire
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`not-for-profit corporation and healthcare charitable trust with a principal place of business at 59
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`Page Hill Road, Berlin, New Hampshire 03570. Androscoggin is not a DRF.
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`4.
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`Plaintiff Catholic Medical Center (“CMC”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 100 McGregor
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`Street, Manchester, New Hampshire 03102. CMC is not a DRF.
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`5.
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`Plaintiff Cheshire Medical Center (“Cheshire”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 580 Court Street,
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`Keene, New Hampshire 03431. Cheshire is not a DRF.
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`6.
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`Plaintiff Concord Hospital (“Concord”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 250 Pleasant
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`Street, Concord, New Hampshire 03301. Concord is not a DRF.
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`7.
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`Plaintiff Cottage Hospital (“Cottage”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 90 Swiftwater
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`Road, Woodsville, New Hampshire 03785. Cottage is not a DRF.
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`4
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`8.
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`Plaintiff Elliot Hospital (“Elliot”) is a New Hampshire not-for-profit corporation
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`and healthcare charitable trust with a principal place of business at 1 Elliot Way, Manchester,
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`New Hampshire 03103. There is a 14-bed DRF located at Elliot.
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`9.
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`Plaintiff Frisbie Memorial Hospital (“Frisbie”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 11 Whitehall
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`Road, Rochester, NH 03867. Frisbie is not a DRF.
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`10.
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`Plaintiff HCA Health Services of NH, Inc. (Parkland Medical Center [“Parkland”]
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`and Portsmouth Regional Hospital [“Portsmouth”]) is a New Hampshire corporation with a
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`principal place of business at One Park Plaza, Nashville, Tennessee 37203. Parkland is not a
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`DRF. There is a 12-bed DRF located at Portsmouth.
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`11.
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`Plaintiff Huggins Hospital (“Huggins”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 240 South Main
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`Street, Wolfeboro, New Hampshire 03894. Huggins is not a DRF.
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`12.
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`Plaintiff Littleton Hospital Association (Littleton Regional Healthcare [“LRH”])
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`is a New Hampshire not-for-profit corporation and healthcare charitable trust with a principal
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`place of business at 600 St. Johnsbury Road, Littleton, New Hampshire 03561. LRH is not a
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`DRF.
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`13.
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`Plaintiff LRGHealthcare (Franklin Regional Hospital and Lakes Region General
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`Hospital) (“LRG”) is a New Hampshire not-for-profit corporation and healthcare charitable trust
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`with a principal place of business at 80 Highland Street, Laconia, New Hampshire 03246. Lakes
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`Region General Hospital is not a DRF. There is a 10-bed DRF located at Franklin Regional
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`Hospital.
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`14.
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`Plaintiff Mary Hitchcock Memorial Hospital (“Mary Hitchcock”) is a New
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`5
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 6 of 33
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`Hampshire not-for-profit corporation and healthcare charitable trust with a principal place of
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`business at One Medical Center Drive, Lebanon, New Hampshire 03756. Mary Hitchcock is not
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`a DRF.
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`15.
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`Plaintiff Monadnock Community Hospital (“Monadnock”) is a New Hampshire
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`not-for-profit corporation and healthcare charitable trust with a principal place of business at 452
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`Old Street Road, Peterborough, New Hampshire 03458. Monadnock is not a DRF.
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`16.
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`Plaintiff New London Hospital (“New London”) is a New Hampshire not-for-
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`profit corporation and healthcare charitable trust with a principal place of business at 273 County
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`Road, New London, New Hampshire 03257. New London is not a DRF.
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`17.
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`Plaintiff Southern New Hampshire Medical Center (“SNHMC”) is a New
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`Hampshire not-for-profit corporation and healthcare charitable trust with a principal place of
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`business at 8 Prospect Street, Nashua, New Hampshire 03060. SNHMC is not a DRF.
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`18.
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`Plaintiff Speare Memorial Hospital (“Speare”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 16 Hospital Road,
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`Plymouth, New Hampshire 03264. Speare is not a DRF.
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`19.
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`Plaintiff Upper Connecticut Valley Hospital (“UCVH”) is a New Hampshire not-
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`for-profit corporation and healthcare charitable trust with a principal place of business at 181
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`Corliss Lane, Colebrook, New Hampshire 03576. UCVH is not a DRF.
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`20.
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`Plaintiff Valley Regional Hospital (“VRH”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 243 Elm Street,
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`Claremont, New Hampshire 03743. VRH is not a DRF.
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`21.
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`Plaintiff Weeks Medical Center (“Weeks”) is a New Hampshire not-for-profit
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`corporation and healthcare charitable trust with a principal place of business at 173 Middle
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`6
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 7 of 33
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`Street, Lancaster, New Hampshire 03584. Weeks is not a DRF.
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`22.
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`Defendant Jeffrey A. Meyers is Commissioner of the New Hampshire Department
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`of Health and Human Services with a business address of 129 Pleasant Street, Concord, New
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`Hampshire 03301. The Commissioner is responsible for administering all DHHS programs,
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`including those involving mental health services, and ensuring DHHS’s compliance with federal
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`and state law. Commissioner Meyers is sued in his official capacity. At all relevant times,
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`Commissioner Meyers and his agents, servants, and employees acted under color of state law.
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`JURISDICTION AND VENUE
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`23.
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`§1331 because the case arises under the Fourth, Fifth and Fourteenth Amendments to the United
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`States Constitution and the Civil Rights Act, 42 U.S.C. §1983.
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`24.
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`The Hospitals’ claims under Part I, Articles 2 and 12 of the New Hampshire
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`Constitution, and RSA 135-C arise under this Court’s supplemental jurisdiction, see 28 U.S.C.
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`§1367.
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`25.
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`26.
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`Declaratory relief is authorized by 28 U.S.C. §2201 and 28 U.S.C. §2202.
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`Venue is proper pursuant to 28 U.S.C. §1391(b).
`
`FACTS
`New Hampshire’s Involuntary Emergency Admission Statutory Scheme
`A person is eligible for involuntary emergency admission (“IEA”) if, as a result of
`27.
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`mental illness, he poses a danger to himself or others, as those phrases are defined by New
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`Hampshire statute. RSA 135-C:27. The core principle of the IEA statutory scheme is that an
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`IEA places an IEA patient in the care and custody of the state: “The involuntary emergency
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`admission of a person shall be to the state mental health services system under the supervision of
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`the [DHHS] commissioner.” RSA 135-C:28, I.
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`7
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 8 of 33
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`28.
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`An IEA may be ordered pursuant to a certificate of certain qualified medical
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`professionals as follows:
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`The admission may be ordered upon the certificate of a physician or APRN, as
`defined in RSA 135-C:2, II-a, who is approved by either a designated receiving
`facility or a community mental health program approved by the commissioner,
`provided that within 3 days of the completion of the petition the physician or
`APRN has conducted, or has caused to be conducted, a physical examination if
`indicated and circumstances permit, and a mental examination. The physician or
`APRN must find that the person to be admitted meets the criteria of RSA 135-
`C:27. The certificate shall state the time and, in detail, the nature of the
`examinations conducted. The certificate shall also state a specific act or actions
`the physician or APRN has actually observed or which have been reported to him
`or her by the petitioner or a reliable witness who shall be identified in the
`certificate, and which in the physician's or APRN's or designee's opinion satisfy
`the criteria set forth in RSA 135-C:27. …
`
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`Id. A person also may become subject to an IEA after being placed in protective custody by a
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`peace officer. See RSA 135-C:28, III .
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`29.
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`Upon completion of an IEA certificate, the IEA patient, now in “the state mental
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`health services system under the supervision of the [DHHS] commissioner[,]” RSA 135-C:28, I ,
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`is to be immediately delivered to a DRF2 as follows:
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`Upon completion of an involuntary emergency admission certificate under RSA
`135-C:28, any law enforcement officer shall, except as provided in paragraph II,
`take custody of the person to be admitted and immediately deliver him to the
`receiving facility identified in the certificate.
`
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`RSA 135-C:29, I. “The admission shall be made to the facility which can best provide the
`degree of security and treatment required by the person and shall be consistent with the
`placement principles set forth in RSA 135-C:15.” RSA 135-C:28, I.
`30.
`The IEA patient must be informed of the identity of the DRF to which he/she will
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`be delivered. Id. There are five DRFs in New Hampshire.3
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`2 As explained above, a DRF is “a treatment facility which is designated by the commissioner to accept for care,
`custody, and treatment persons involuntarily admitted to the state mental health services system.” RSA 135-C:2, XIV.
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` The DRFs are located at New Hampshire Hospital, Cypress Center, Elliot, Franklin Regional Hospital, and
`Portsmouth.
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` 3
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`8
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 9 of 33
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`31.
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`The statutory scheme is designed to provide IEA patients the immediate mental
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`health treatment they need. Plaintiff’s Complaint describes the difference between a hospital
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`ED and a DRF as follows:
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`because these emergency rooms are not community-based mobile crisis centers or
`DRFs designed to treat those involuntarily admitted under Chapter 135-C, many
`of these detained individuals may also not be receiving the medical care they need
`to address the mental health crisis they may be experiencing.
`
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`See John Doe v. Jeffery A. Meyers, et al., Civil Case No. 1:18-CV-01039-LM, Petition for Writ
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`of Habeas Corpus and Class Action Complaint for Declaratory and Injunctive Relief dated
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`November 10, 2018 (“Plaintiff’s Complaint”), p. 3.
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`32.
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`The statutes also are designed to protect IEA patients’ rights. A probable cause
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`hearing must be held in the Circuit Court within three days of an IEA. RSA 135-C:31, I. “If a
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`receiving facility has not been designated to receive or maintain custody following a probable
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`cause hearing of a person admitted under RSA 135-C:27-33, the facility shall, within 24 hours,
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`transfer the person to a receiving facility which has the proper designation.” RSA 135-C:31, V.
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`Upon arrival at a DRF, an IEA patient must be advised of her/his right to counsel and that the
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`IEA “cannot exceed a period of 10 days, not including Saturdays and Sundays, unless the period
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`is extended pursuant to RSA 135-C:32.” RSA 135-C:30, V.
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`DHHS’ Practice and Conduct, IEA Patients, and Admission to New Hampshire Hospital
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`DHHS describes New Hampshire Hospital (“NHH”) and the IEA process on its
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`33.
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`website.4 DHHS briefly describes NHH as follows:
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`New Hampshire Hospital (NHH) provides inpatient psychiatric treatment to
`patients admitted on an involuntary basis through an emergency admissions
`process, a non-emergency court order, or on a limited voluntary basis, depending
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`
` 4
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` Except for the fact alleged in paragraph 34 that is followed by a statutory citation, the facts alleged in paragraphs
`34-37 appear at https://www.dhhs.nh.gov/dcbcs/nhh/eligibility.htm, a copy of which is submitted as Exhibit 1 to
`Intervenors’ Amended Complaint.
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`
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`9
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 10 of 33
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`on the availability of facilities. Most admissions to NHH are through the
`Involuntary Emergency Admission (IEA) process (pursuant to NH state law, RSA
`135-C:27-33).
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`34.
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`“NHH does not provide walk-in emergency or crisis services.” Instead, a person
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`in need of an involuntary emergency admission is directed to “[c]ontact your local hospital
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`Emergency Department or the local Community Mental Health Center (CMHC) serving your
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`region of residence for an in-person evaluation.” Unlike NHH, the Hospitals, as a condition of
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`their license, are required to “operate an emergency department offering emergency services to
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`all individuals regardless of ability to pay 24 hours every day, 7 days a week.” RSA 151:2-g,
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`35.
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`According to DHHS, “[t]he IEA process begins with a visit to a local hospital
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`Emergency Department or CMHC, and the completion of an IEA Petition requesting admission
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`to New Hampshire Hospital.” DHHS directs persons who seek to have someone admitted to
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`NHH to bring the potential IEA patient to one of the Hospitals’ EDs: “The Petitioner may bring
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`the person to the local hospital Emergency Department or CMHC for evaluation, or ask the local
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`Police Department for assistance in transporting the person.”
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`36.
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`At the ED, “[a] doctor at the Emergency Department or CMHC will perform a
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`medical evaluation, and a psychiatrist or a mental health clinician will perform a
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`psychiatric/mental health evaluation.” “If the doctor determines that an involuntary inpatient
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`admission to NHH is appropriate, the Emergency Department will make arrangements with the
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`NHH Admitting Department for the person to be transported to NHH.” However, “[b]ecause
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`NHH has a limited bed capacity, the person may have to wait at the Emergency Department or
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`CMHC until a bed at NHH becomes available.”
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`37.
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`The process outlined on the DHHS website is the only process for an IEA
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`admission. Since NHH does not provide walk-in or emergency services, DHHS instructs people
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`10
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 11 of 33
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`to bring prospective IEA patients to Hospital EDs. Once at an ED, the Hospital is required to
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`perform a psychiatric/mental health evaluation. If an IEA is warranted, the IEA patient’s
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`admission is to NHH and the ED is directed to make arrangements to transport the patient to
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`NHH. However, when space is not available at NHH or another DRF, DHHS requires that the
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`Hospital hold the IEA patient at its ED.
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`DHHS Requires the Hospitals to Hold IEA Patients
`As described above, the IEA statutory scheme contains fixed temporal
`
`38.
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`requirements, including: (a) the IEA patient immediately becomes part of the state mental health
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`system, RSA 135-C:28, I; (b) immediate delivery of an IEA patient to a DRF following an IEA
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`certificate, RSA 135-C:29, I; (c) a probable cause hearing within three days, RSA 135-C:31, I;
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`and (d) a duration of no longer than ten days, RSA 135-C:30, V; RSA 135-C:32. DHHS does not
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`comply with the statutory requirements. Most significantly, although IEA patients are
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`immediately admitted to the state mental health system and NHH, they are not transported to
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`DRFs immediately following completion of an IEA certificate and typically spend days or weeks
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`in a Hospital ED before DHHS directs the Hospital to transport the IEA patient to a DRF.
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`39.
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`DHHS also fails to provide IEA patients with probable cause hearings within the
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`three-day deadline. According to DHHS, it is unnecessary to hold a probable cause hearing
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`within three days of completion of an IEA certificate at a Hospital ED. Instead, DHHS has
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`advised the Hospitals and the Circuit Court that the three-day period for a probable cause hearing
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`does not commence until an IEA patient arrives at a DRF.
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`40. When DHHS directs a Hospital not to immediately transport an IEA patient to a
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`DRF and informs the Hospital that it will let the Hospital know when the IEA patient may be
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`transported, DHHS compels the Hospital to hold and provide services to the IEA patient in its
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`ED until DHHS directs the transfer. During the time an IEA patient remains at a Hospital ED,
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`
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`11
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 12 of 33
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`DHHS also requires Hospital personnel to complete successive IEA certificates every three days
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`and to perform mental and physical examinations of the IEA patient for each IEA certificate. As
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`noted in Plaintiff’s Complaint, while the Hospitals’ EDs provide services to IEA patients, unlike
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`DRFs, the provision of such services is not the purpose for which the EDs are designed.
`
`41.
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`DHHS’s conduct routinely violates the IEA statutes. In sum, DHHS’s conduct
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`that impacts the Hospitals includes:
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`• directing Hospitals not to immediately transport IEA patients to a DRF;
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`requiring a Hospital to hold an IEA patient in its ED until there is space
`available at a DRF;
`
`•
`
`•
`
`failing to facilitate probable cause hearings within three days of the IEA
`certificate;
`
`
`
` allowing some IEA patients to remain subject to an IEA for longer than
`ten days;
`
` •
`
` •
`
`
`
` •
`
`
`
`requiring Hospital physicians or APRNs to file a new IEA certificate
`every three days until DHHS informs the Hospital that it may transport the
`IEA patient to a DRF; and
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`requiring Hospital staff to perform a mental and physical examination of
`an IEA patient for completion of a new IEA certification every three days.
`
`
`
`42.
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`DHHS’s conduct in administering the IEA process has existed for years and has
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`become sufficiently systemic to have acquired a name – “psychiatric boarding” or simply
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`“boarding.” According to the Human Services Research Institute’s December 22, 2017 report
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`entitled “Evaluation of the Capacity of the New Hampshire Behavioral Health System,” during
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`the period from November 1, 2013 through February 28, 2014, “[t]he average number of
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`psychiatric patients in hospital emergency departments awaiting placement in the New
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`Hampshire State Hospital was 21 adults and five children, with spikes as high as 35 adults and
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`14 children ….” See Plaintiff’s Complaint, p. 3; Human Services Research Institute, Final
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`
`
`12
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`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 13 of 33
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`Report: Evaluation of the Capacity of the New Hampshire Behavioral Health System (Dec. 22,
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`2017), at p. 23, available at https://www.hsri.org/publication/evaluation-of-the-capacity-of-the-
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`new-hampshire-behavioral-health-system.
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`
`
`43.
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`The practice has been exacerbated since then. According to the National Alliance
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`on Mental Health-New Hampshire (“NAMI-NH”), during the second quarter of 2015, an average
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`of approximately 14 adults and 6 children were detained in EDs until their placement in a DRF.
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`See Plaintiff’s Complaint, ¶27 (citing July 2018 NAMI-NH Data, Slide 4, attached as Exhibit A
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`to Plaintiff’s Complaint). In contrast, “[a]s of October 31, 2018, approximately 46 adults and 4
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`children were being involuntarily ‘boarded’ in [New Hampshire] emergency rooms under RSA
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`135-C:27-33 while awaiting admission to a [DRF].” Plaintiff’s Complaint, pp. 2-3.
`
`44.
`
`According to NAMI-NH, the average number of IEA patients boarded in hospital
`
`EDs during the first three quarters of 2018 was 48.67. See Exhibit A to Plaintiff’s Complaint,
`
`Slide 4. The Merrimack County Superior Court not long ago noted that on August 3, 2018, there
`
`were 60 patients boarded in New Hampshire EDs awaiting transfer to a DRF. See John Doe v.
`
`Concord Hospital, Merrimack County Superior Court, Case No. 2018-CV-448, Order dated
`
`August 9, 2018, p. 4, submitted as Exhibit 2 to this Intervenors’ Amended Complaint.
`
`45.
`
` Many boarded IEA patients experience significant delays between when they
`
`become part of the state mental health system until they are transported to a DRF. According to
`
`NAMI-NH, from July 11, 2017 to September 6, 2017, thirty-five percent of IEAs lasted 3 to 10
`
`days, and seventeen percent of IEAs resulted in boarding an IEA patient for greater than 10 days.
`
`See Exhibit A to Plaintiff’s Complaint, Slide 6. The plaintiff IEA patient in the Merrimack
`
`County case referenced in the preceding paragraph remained subject to successive IEA
`
`certificates in Concord’s ED from July 25 until August 8, 2018, a period of 15 days. See John
`
`
`
`13
`
`

`

`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 14 of 33
`
`Doe v. Concord Hospital, Merrimack County Superior Court, Case No. 2018-CV-448, Order
`
`dated September 6, 2018, p. 1, submitted as Exhibit 3 to this Intervenors’ Amended Complaint.
`
`46.
`
`The Hospitals’ recent experience is consistent with the data cited above. Between
`
`November 1 and December 31, 2018, the number of IEA patients boarded daily in New
`
`Hampshire’s hospitals ranged from a low of fourteen to a high of forty-seven. The average
`
`number of IEA patients boarded during this period was thirty.
`
`47.
`
`Androscoggin was forced to board at least one IEA patient on thirteen dates and
`
`boarded two IEA patients on three dates.5
`
`48. Between November 1 and December 31, 2018, CMC was forced to board at least
`
`one IEA patient on thirty-three dates. On seventeen of those dates, CMC was forced to board at
`
`least three IEA patients.
`
`49.
`
`Between November 1 and December 31, 2018, Cheshire was forced to board at
`
`least one IEA patient on twenty-six dates and boarded six IEA patients on five dates.
`
`50.
`
`On every date between November 1 and December 31, 2018, Concord was forced
`
`to board at least two and as many as eleven IEA patients. During those dates, an average number
`
`of six IEA patients were boarded at Concord.
`
`51.
`
`Between November 1 and December 31, 2018, Elliot was forced to board between
`
`one and seven IEA patients on all but two days. On fourteen of those dates, Elliot was forced to
`
`board at least four IEA patients.
`
`52.
`
`Between November 1 and December 31, 2018, Frisbie was forced to board at
`
`least one IEA patient on thirty-one dates. On twenty-four of those dates, Frisbie was forced to
`
`
`5 “Between November 1 and December 31, 2018” refers to the thirty-six business days during that time period.
`Weekends and holidays are excluded from the available data.
`
`
`
`
`14
`
`

`

`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 15 of 33
`
`board more than one IEA patient.
`
`53.
`
`Between November 1 and December 31, 2018, Huggins was forced to board an
`
`IEA patient on nine dates.
`
`54.
`
`Between November 1 and December 31, 2018, LRG was forced to board at least
`
`one IEA patient on twenty-six dates and on eleven dates boarded more than one IEA patient.
`
`55.
`
`For the thirteen-month period from November 2017 through November 2018,
`
`LRH averaged nine IEA patients per month who were boarded in its medical surgery unit. Unlike
`
`the other Hospitals where individuals are boarded in the facilities’ EDs, LRH admits patients
`
`waiting for placement at a DRF to its medical surgery unit. Between November 1 and December
`
`31, 2018, LRH was forced to board at least one IEA patient on nine dates and twice boarded
`
`more than one IEA patient.
`
`56.
`
`Between November 1 and December 31, 2018, Mary Hitchcock was forced to
`
`board at least one IEA patient on twenty-seven dates. On eighteen of those dates, Mary
`
`Hitchcock was forced to board at least two IEA patients.
`
`57.
`
`Between November 1 and December 31, 2018, Monadnock was forced to board
`
`at least one IEA patient on six dates and once boarded more than one IEA patient.
`
`58.
`
`Between November 1 and December 31, 2018, Parkland was forced to board at
`
`least one IEA patient on thirty-five dates. On twenty-four of those dates, Parkland was forced to
`
`board between two and five IEA patients.
`
`59.
`
`Between November 1 and December 31, 2018, Portsmouth was forced to board
`
`at least one IEA patient on twenty-five dates. On eight of those dates, Portsmouth was forced to
`
`board more than one IEA patient.
`
`60.
`
`During calendar year 2017, SNHMC boarded 188 IEA patients waiting for
`
`
`
`15
`
`

`

`Case 1:18-cv-01039-JD Document 77 Filed 07/19/19 Page 16 of 33
`
`admission to a DRF for an average of 4.5 days. From January 1 through December 18, 2018,
`
`SNHMC boarded 137 IEA patients for an average length of five days. In 2018, greater than
`
`thirty-nine percent of the patients SNHMC was forced to board remained there for at least six
`
`days awaiting a vacant bed at the appropriate DRF. Between November 1 and December 31,
`
`2018, SNHMC was forced to board at least one IEA patient on thirty-one dates. On twelve of
`
`those dates, SNHMC was forced to board between three and eight IEA patients.
`
`61.
`
`Between November 1 and December 31, 2018, Speare was forced to board an
`
`IEA patient on eleven dates and twice was forced to board more than one IEA patient.
`
`62.
`
`Between November 1 and December 31, 2018, UCHV was forced to board an
`
`IEA patient on one date.
`
`63.
`
`Between November 1 and December 31, 2018, VRH was forced to board at least
`
`one IEA patient on twenty-five dates and twice was forced to board two IEA patients.
`
`64.
`
`Between November 1 and December 31, 2018, Weeks was forced to board at least
`
`one IEA patient on six dates and boarded more than one IEA patient on four of those dates.
`
`65.
`
`In the Doe case referenced in paragraphs 44

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