Doe v. Comm'r, N.H. Dep't of Health & Human Servs.

657 F.Supp.3d 206

2023 DNH 020

John DOE, et al. v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES

Civil No. 18-cv-1039-LM

United States District Court, D. New Hampshire

Signed February 23, 2023

Aaron J. Curtis, Pro Hac Vice, Lara E. Veblen Trager, Pro Hac Vice, Theodore E. Tsekerides, Pro Hac Vice, Colin McGrath, Weil Gotshal & Manges, New York, NY, Henry Klementowicz, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, for John Doe, et al.

Anthony Galdieri (NHAG), Brandon Francis Chase, Samuel R. V. Garland, Scott Edward Sakowski, NH Attorney General's Office (DOJ) Department of Justice, Concord, NH, for NH Department of Health and Human Services, Commissioner.

James P. Harris, Michael D. Ramsdell, Sheehan Phinney Bass & Green PA, Manchester, NH, for Southern New Hampshire Medical Center, Concord Hospital.

James P. Harris, Jennifer P. Lyon, Michael D. Ramsdell, Sheehan Phinney Bass & Green PA, Manchester, NH, for St. Joseph's Hospital.

Mark Lavoie, Russell B. Pierce, Jr., Pro Hac Vice, Joshua Hadiaris, Norman Hanson DeTroy, LLC, Portland, ME, for Memorial Hospital.

ORDER

Landya B. McCafferty, United States District Judge

Four individual plaintiffs brought a putative class action against the Commissioner of the New Hampshire Department of Health and Human Services, challenging the Commissioner's practice of boarding individuals experiencing mental health crises in hospital emergency rooms without timely probable cause hearings. A group of New Hampshire hospitals ("Hospitals") intervened in the action to bring claims against the Commissioner that challenge the Commissioner's boarding practice, because of its effect on the Hospitals.¹ Currently before the court is the Hospitals' motion for summary judgment on Count II of their amended complaint in which they allege that the Commissioner's boarding practice violates the Fourth Amendment. The Commissioner opposes summary judgment.

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that " 'carries with it the potential to affect the outcome of the suit.' " French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021) (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)). A genuine factual dispute exists if "a reasonable jury could resolve the point in the favor of the nonmoving party." Id.

The court construes the summary judgment record in the light most favorable to the nonmoving party. Benson v. Wal-Mart Stores East, L.P., 14 F.4th 13, 17 (1st Cir. 2021). In addition, when the moving party also bears the burden of proof on the issue, that party must provide conclusive evidence showing that "no reasonable fact-finder could find other than in its favor." Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir. 2009); see also Photographic Illustrators Corp. v. Orgill, Inc., 953 F.3d 56, 65 (1st Cir. 2020).

BACKGROUND

The class plaintiffs in this case bring a claim against the Commissioner under the Fourteenth Amendment, alleging that her practice of boarding the state's mental health patients in hospital emergency rooms without probable cause hearings violates their rights to due process. The Hospitals intervened in the action and bring three claims that challenge the Commissioner's boarding practice as violations of their rights under the Fifth, Fourth, and Fourteenth Amendments. The Hospitals seek summary judgment on their Fourth Amendment claim, Count II.

Private hospitals in New Hampshire, including the Hospitals who brought this suit, are required to operate an emergency department 24 hours per day and 7 days per week. See RSA 151:2-g. Under Department of Health and Human Services ("DHHS") regulations, hospital emergency departments are required to provide emergency treatment for behavioral health issues, which include mental health issues. N.H. Admin. R. He-P 802.03(af). The Hospitals are licensed and have the requisite emergency departments. Doc. no. 241-2 ¶¶ 3-9.

Persons who are experiencing mental health emergencies or crises present in the Hospitals' emergency departments for help. In that situation, members of the Hospitals' emergency department staff examine those persons to determine, among other things, whether they should be certified for involuntary emergency admission ("IEA") to the state's mental health services system. The Hospital's claim in Count II arises from the Commissioner's failure to immediately receive IEA-certified patients into the state's facilities, which causes IEA-certified patients to be boarded in the Hospitals' emergency departments. The Hospitals contend that the Commissioner's practice of boarding her IEA-certified patients in their emergency departments constitutes an unreasonable seizure of their property in violation of the Fourth Amendment.

A. Legal Framework of IEA Certification

This court, the New Hampshire Supreme Court, and the First Circuit Court of Appeals have all addressed the statutory scheme applicable to IEA certification. See Doe v. Commissioner, No. 18-cv-1039-JD, 2020 DNH 070, 2020 WL 2079310, at *6-*11 (D.N.H. Apr. 30, 2020); Doe v. Commissioner, 174 N.H. 239, 248-51, 261 A.3d 968 (2021); Doe v. Shibinette, 16 F.4th 894, 897-98 (1st Cir. 2021). A summary of that framework follows.

State mental health system. RSA chapter 135-C is entitled: "New Hampshire Mental Health Services System." RSA 135-C (2015). Under that chapter, DHHS is authorized to "[e]stablish, maintain, and coordinate a comprehensive, effective, and efficient system of services for persons with mental illness." RSA 135-C:1,I(a) & 135-C:3. The Commissioner supervises and DHHS maintains and administers the state mental health services system. RSA 135-C:3.

Involuntary emergency admissions. The state system provides for voluntary and involuntary and emergency and non-emergency admissions under RSA 135-C. Doe, 174 N.H. at 248, 261 A.3d 968. Only IEAs are at issue in this case. IEAs are governed by RSA 135-C:27-:33.

IEA Eligibility. A person is eligible for IEA if his mental condition poses "a likelihood of danger to himself or others." RSA 135-C:27. The statute defines "danger to himself" to include attempting or threatening suicide, and "danger to others" if within a certain number of days the person "has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on another." RSA 135-C:27, I-II. Upon completion of the IEA certificate, the person is deemed by law to be admitted into "the state mental health services system under the supervision of the Commissioner." Doe, 174 N.H. at 252, 261 A.3d 968. The IEA certificate must identify the receiving facility in the state mental health services system where the IEA-certified patient "shall be admitted." RSA 135-C:28, I.

Approved medical providers. The individual responsible for making the IEA determination (and issuing the IEA certificate) is called an "approved medical provider." That medical provider can be an "approved physician, approved PA, or approved APRN." RSA 135-C:28, I. One must qualify to be an approved medical provider, and the Commissioner is required to maintain a list of approved medical providers. N.H. Admin. R. He-M 614.06(a). Approved medical providers are acting as part of the state system when conducting the IEA-certification process. Doe, 174 N.H. at 258, 261 A.3d 968; see also Doe v. Shibinette, 16 F.4th at 900.

Immediate delivery of patient to receiving facility. The IEA certificate must identify the receiving facility and the patient "must be delivered immediately to the facility identified in the certificate." Doe, 174 N.H. at 252, 261 A.3d 968 (citing RSA 135-C:29, II). Indeed, the patient's "admission to the state mental health services system and delivery to a receiving facility are to take place nearly simultaneously." Id.; see also N.H. Admin. R. He-M 614.08(a). A receiving facility includes the New Hampshire State Hospital and other facilities approved by the Commissioner "for the care, custody, and treatment" of IEA certified patients. RSA 135-C:26, I. These are known as "designated receiving facilities." Id. Although approved medical providers conduct the IEA-certification process in a private hospital, they do so as part of the state mental health system and do not admit IEA-certified patients into the private hospitals. Doe, 174 N.H. at 252, 261 A.3d 968.²

Probable cause hearing within 3 days of IEA certificate. A probable cause hearing must be held "within 3 days" after an IEA certificate is completed "in the [circuit court] having jurisdiction to determine if there was probable cause for involuntary emergency admission." RSA 135-C:31, I.³ The IEA-certified patient is entitled to notice of his or her right to be represented by counsel and to appointed counsel if indigent. RSA 135-C:30, I-IV. The patient must be given written notice of these rights within 12 hours of certification. Id.

Boarding IEA-certified patients indefinitely is not permitted. "Nothing in the statutory scheme allows a person to be held indefinitely pending delivery to a receiving facility." Doe, 174 N.H. at 252, 261 A.3d 968. Nevertheless, an IEA-certified patient is not free to leave. Id. Instead, that person "is deemed to be in the custody of DHHS" and "may be released only if the certificate is rescinded . . . ." Id. at 253, 261 A.3d 968 (quoting RSA 135-C:29-a). In summary, a person who is subject to an IEA certificate " 'is admitted to the state mental health services system under the supervision of the commissioner and is at that point placed in the custody and control of the commissioner.' " Id. (quoting Doe, 2020 WL 2079310, at *11).⁴

B. The Undisputed Record of How the IEA Process is Broken

The DHHS website provides direction to those seeking emergency mental health services from the state.⁵ Through the...