New Developments in Psychiatric Boarding in Emergency Departments

In July 2023, the New Hampshire Department of Health and Human Services and a group of New Hampshire hospitals reached a settlement in a 5-year-long legal dispute over the practice of psychiatric boarding in hospital emergency departments. The hospitals successfully made the novel argument that boarding violates their rights, as well as those of patients. The case is a new and significant development in the legal battles among patients, advocates, hospitals, and states that have arisen as psychiatric boarding remains a pervasive challenge in American emergency departments. The lawsuit, initially filed as a class action by former patients, challenged the practice of involuntarily boarding individuals experiencing mental health crises in hospital emergency departments due to lack of inpatient mental health bed availability. Previous courts have found that involuntary psychiatric boarding violates patients' rights to due process by failing to provide patients a timely opportunity to challenge their confinement. In this case, New Hampshire hospitals joined the patients' lawsuit. They argued that the failure of the state to ensure an adequate number of inpatient psychiatric beds forced hospitals to board psychiatric patients in the emergency department for prolonged periods after providing acute assessment and stabilization of a patient's mental health crisis, as is their legal obligation under the Emergency Medical Treatment and Labor Act, until inpatient psychiatric admission could be effectuated. The hospitals further argued that this situation constituted a violation of the hospitals' Fourth Amendment rights of protection against unreasonable seizure of private property. In February 2023, the court found in favor of the hospitals and, in May, ordered a permanent injunction providing the state 1 year to resolve the situation and ensure that patients would not experience boarding longer than 6 hours. The state and hospitals settled remaining litigation in July with a commitment to work together to eliminate psychiatric boarding in the state. Building upon prior legal precedents finding that psychiatric boarding violates patients' due process rights by invoking the Fourth Amendment rights of the hospitals, this case represents a novel legal avenue for hospitals routinely boarding psychiatric patients to compel state action to resolve the problem. The United States mental health system is severely underfunded and understaffed, making it challenging to meet the needs of those with mental illnesses, especially those who present to emergency departments in crisis. The deinstitutionalization movement that began in the 1960s and significant reductions in funding for inpatient psychiatric hospitalization has led to a 95% decline in per capita public mental health beds.1Sisti D.A. Segal A.G. Emanuel E.J. Improving long-term psychiatric care: bring back the asylum.JAMA. 2015; 313: 243-244Crossref PubMed Scopus (104) Google Scholar Consequently, psychiatric boarding has become a common phenomenon among hospital emergency departments, forcing patients requiring acute inpatient psychiatric hospitalization to wait for an inpatient bed to become available for days, weeks, or even months,2O'Donnell E.P. Yanek L. Reynolds E. Ryan L.M. Ngo T.L. Characteristics of mental health patients boarding for longer than 24 hours in a pediatric emergency department.JAMA Pediatr. 2020; 174: 1206-1208Crossref PubMed Scopus (8) Google Scholar often without any legal recourse. Furthermore, the practice conflicts with regulatory guidance from organizations such as the Joint Commission, which identifies boarding times longer than 4 hours for all patients as a patient safety and quality of care concern.3Joint CommissionR3 Report: Requirement, Rationale, Reference. Patient Flow Through the Emergency Department.https://www.jointcommission.org/-/media/tjc/documents/standards/r3-reports/r3_report_issue_4.pdfDate: 2012Date accessed: April 11, 2023Google Scholar Boarding from all causes has been worsened by health care workforce shortages and compounded by the coronavirus disease 2019 pandemic. New data from academic emergency departments spanning 25 states showed a sustained increase in all-cause monthly boarding hours, at times reaching nearly triple the hours that occurred early during the pandemic (12,127 hours vs 4449 hours monthly, respectively) and 40% higher than pre-pandemic levels (8521 hours).4Kilaru A.S. Scheulen J.J. Harbertson C.A. Gonzales R. Mondal A. Agarwal A.K. Boarding in US academic emergency departments during the COVID-19 pandemic.Ann Emerg Med. 2023; 82: 247-254Abstract Full Text Full Text PDF PubMed Scopus (9) Google Scholar While all-cause boarding has increased, rates and duration of boarding for psychiatric patients has exceeded non-psychiatric patients throughout the pandemic.5Janke A.T. Nash K.A. Goyal P. Auerbach M. Venkatesh A.K. Pediatric mental health visits with prolonged length of stay in community emergency departments during COVID-19.J Am Coll Emerg Physicians Open. 2022; 3e12869PubMed Google Scholar,6Delayed and deteriorating: serious mental illness and psychiatric boarding in emergency departments. Treatment Advocacy Center November 2019.https://www.treatmentadvocacycenter.org/reports_publications/delayed-and-deteriorating-serious-mental-illness-and-psychiatric-boarding-in-emergency-departments/Date accessed: August 6, 2023Google Scholar Data from 107 community hospitals in 29 states during the pandemic found that pediatric mental health visits with lengths of stay greater than 12 hours and greater than 24 hours made up 20.9% and 7.3% of pediatric mental health visits overall, respectively, and visit counts greater than 24 hours nearly doubled.5Janke A.T. Nash K.A. Goyal P. Auerbach M. Venkatesh A.K. Pediatric mental health visits with prolonged length of stay in community emergency departments during COVID-19.J Am Coll Emerg Physicians Open. 2022; 3e12869PubMed Google Scholar Physician and patient advocacy groups have increasingly focused on this issue, with the American College of Emergency Physicians and 34 other professional societies, including the American Medical Association, writing to the White House in November 2022, describing emergency department boarding as a public health emergency and urging the Biden administration to convene appropriate stakeholders to identify both immediate and long-term solutions to the problem.7American College of Emergency Physicians (ACEP) et al.Emergency Department Boarding Crisis [open letter].https://www.acep.org/siteassets/new-pdfs/advocacy/emergency-department-boarding-crisis-sign-on-letter-11.07.22.pdfDate accessed: April 13, 2023Google Scholar In short, patients experiencing a mental health crisis are more likely to experience boarding than other patients, have longer boarding duration, and are particularly vulnerable to the harms of boarding.5Janke A.T. Nash K.A. Goyal P. Auerbach M. Venkatesh A.K. Pediatric mental health visits with prolonged length of stay in community emergency departments during COVID-19.J Am Coll Emerg Physicians Open. 2022; 3e12869PubMed Google Scholar,6Delayed and deteriorating: serious mental illness and psychiatric boarding in emergency departments. Treatment Advocacy Center November 2019.https://www.treatmentadvocacycenter.org/reports_publications/delayed-and-deteriorating-serious-mental-illness-and-psychiatric-boarding-in-emergency-departments/Date accessed: August 6, 2023Google Scholar,8Nordstrom K. Berlin J.S. Nash S.S. Shah S.B. Schmelzer N.A. Worley L.L.M. Boarding of mentally ill patients in emergency departments: American Psychiatric Association resource document.West J Emerg Med. 2019; 20: 690-695Crossref PubMed Scopus (58) Google Scholar Emergency department boarding has increased patient morbidity by prolonging and exacerbating psychiatric symptoms, increasing medical error, and prolonging hospitalization.6Delayed and deteriorating: serious mental illness and psychiatric boarding in emergency departments. Treatment Advocacy Center November 2019.https://www.treatmentadvocacycenter.org/reports_publications/delayed-and-deteriorating-serious-mental-illness-and-psychiatric-boarding-in-emergency-departments/Date accessed: August 6, 2023Google Scholar,9Kelen G.D. Wolfe R. D'Onofrio G. et al.Emergency department crowding: the canary in the health care system | catalyst non-issue content.NEJM Catalyst. 2021; 2: 1-26https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0217Date accessed: April 13, 2023Google Scholar Harms extend to the health care team through increased violence towards staff as well as clinician burnout.9Kelen G.D. Wolfe R. D'Onofrio G. et al.Emergency department crowding: the canary in the health care system | catalyst non-issue content.NEJM Catalyst. 2021; 2: 1-26https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0217Date accessed: April 13, 2023Google Scholar More research is needed on the psychological harms of boarding, but anecdotes from advocacy groups and professional societies indicate the prevalence of widespread medical staff trauma and moral distress.7American College of Emergency Physicians (ACEP) et al.Emergency Department Boarding Crisis [open letter].https://www.acep.org/siteassets/new-pdfs/advocacy/emergency-department-boarding-crisis-sign-on-letter-11.07.22.pdfDate accessed: April 13, 2023Google Scholar Psychiatric boarding has far-reaching societal implications. It exacerbates overcrowding in emergency departments. Rather than simply being an issue of inefficient resource allocation, boarding is symptomatic of broader health care system dysfunction.9Kelen G.D. Wolfe R. D'Onofrio G. et al.Emergency department crowding: the canary in the health care system | catalyst non-issue content.NEJM Catalyst. 2021; 2: 1-26https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0217Date accessed: April 13, 2023Google Scholar A range of complex factors contribute to the problem, including financial misalignment and perverse economic incentives that deprioritize mental health treatment. Health care funding models and economic drivers that pressure health care systems to maintain hospital inpatient unit occupancy levels greater than 90% and prioritize elective procedures over mental health treatment are primary contributors to boarding.7American College of Emergency Physicians (ACEP) et al.Emergency Department Boarding Crisis [open letter].https://www.acep.org/siteassets/new-pdfs/advocacy/emergency-department-boarding-crisis-sign-on-letter-11.07.22.pdfDate accessed: April 13, 2023Google Scholar,8Nordstrom K. Berlin J.S. Nash S.S. Shah S.B. Schmelzer N.A. Worley L.L.M. Boarding of mentally ill patients in emergency departments: American Psychiatric Association resource document.West J Emerg Med. 2019; 20: 690-695Crossref PubMed Scopus (58) Google Scholar However, solutions exist. The funding of appropriately staffed psychiatric beds is a major concern, as adequate resources must be allocated to ensure high-quality care for patients in crisis. Rescinding burdensome certificate-of-need regulations, which govern the establishment and expansion of health care facilities, may remove a bureaucratic bottleneck misallocating the distribution of psychiatric beds. Increased resources for outpatient community mental health and substance use disorder services can prevent crises from occurring. For example, data from The National Council for Mental Wellbeing has demonstrated early success of Certified Community Behavioral Health Clinics in decreasing emergency department visits and inpatient psychiatric hospitalizations by up to 50% with associated decreases in costs.10Transforming State Behavioral Health Systems: Findings From States on the Impact of CCBHC Implementation. The National Council on Mental Wellbeing.https://www.thenationalcouncil.org/wp-content/uploads/2022/02/Transforming-State-Behavioral-Health-Systems.pdfDate accessed: August 6, 2023Google Scholar Incentives to expand the pool of competent mental health professionals is the focus of a discussion draft of bipartisan federal legislation11Wyden, Crapo, Stabenow, Daines Unveil Mental Health Workforce Enhancement Discussion Draft. United States Senate Committee on Finance. September 22, 2022.https://www.finance.senate.gov/chairmans-news/wyden-crapo-stabenow-daines-unveil-mental-health-workforce-enhancement-discussion-draftDate accessed: August 6, 2023Google Scholar and increased mental health training in primary care and emergency medicine residency training programs can increase the competency of non-psychiatric physicians. Adoption of telepsychiatry can improve access to mental health resources in underserved areas and streamline mental health assessment, treatment and disposition planning in emergency departments, and localizing specialized psychiatric treatment in emergency departments can obviate the need for inpatient admission for some patients.8Nordstrom K. Berlin J.S. Nash S.S. Shah S.B. Schmelzer N.A. Worley L.L.M. Boarding of mentally ill patients in emergency departments: American Psychiatric Association resource document.West J Emerg Med. 2019; 20: 690-695Crossref PubMed Scopus (58) Google Scholar At a local level, as adopted in Boston and elsewhere, using standardized medical screening processes or improving transparency about open inpatient psychiatric beds within a geographic region can maximize the pairing of patients with an accepting psychiatric unit and minimize unnecessary denials of admission. Addressing the complex factors contributing to psychiatric boarding will require coordination and commitment from health care providers, health care systems, policymakers, and patient advocates.