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

2020 DNH 071

John Doe, et al. v. Commissioner, New Hampshire Department of Health and Human Services¹

Civil No. 18-cv-1039-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

May 1, 2020

ORDER

John Doe, Jane Roe, Charles Coe, and Deborah Taylor filed a putative class action that challenges practices used by the Commissioner of the New Hampshire Department of Health and Human Services ("the Commissioner") and four New Hampshire hospitals to involuntarily detain individuals who experience mental health crises and seek treatment in hospital emergency rooms. The New Hampshire Hospital Association and twenty hospitals ("the hospitals") were granted leave to intervene in the action as plaintiffs and bring claims against the Commissioner of DHHS. The Commissioner moves to dismiss the hospitals' claims. The hospitals object.

Standard of Review

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts the well-pleaded factual allegations in the complaint as true and construes reasonable inferences in the plaintiff's favor. Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019). "To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face." Rios-Campbell v. U.S. Dept. of Commerce, 927 F.3d 21, 24 (1st Cir. 2019) (internal quotation marks omitted). The plausibility standard requires sufficient factual allegations "to remove the possibility of relief from the realm of mere conjecture." Dumont v. Reily Foods Co., 934 F.3d 35, 44 (1st Cir. 2019) (internal quotation marks omitted). The purpose of the plausibility standard is to "weed out cases that do not warrant either discovery or trial." Rios-Campbell, 927 F.3d at 24 (internal quotation marks omitted).

Parties

The hospital plaintiffs are the New Hampshire Hospital Association, Alice Peck Day Memorial Hospital, Androscoggin Valley Hospital, Catholic Medical Center, Cheshire Medical Center, Concord Hospital, Cottage Hospital, Elliot Hospital,Frisbie Memorial Hospital, HCA Health Services of New Hampshire (Parkland Medical Center and Portsmouth Regional Hospital), Huggins Hospital, Littleton Hospital Association (Littleton Regional Healthcare), LRGHealthcare (Franklin Regional Hospital and Lakes Region General Hospital), Mary Hitchcock Memorial Hospital, Monadnock Community Hospital, New London Hospital, Southern New Hampshire Medical Center, Speare Memorial Hospital, Upper Connecticut Valley Hospital, Valley Regional Hospital, and Weeks Medical Center.

The individual plaintiffs and the hospitals name the Commissioner of DHHS in her official capacity as the plaintiff in this case. The parties, however, from time to time, also refer to DHHS and the state as the defendant. It is understood by the parties that the Commissioner in her official capacity is the proper party defendant.

Statutory Framework

The hospitals' claims in this case arise from the Commissioner's practices with respect to persons experiencing mental health crises who are examined and evaluated in hospital emergency departments. The hospitals contend that the Commissioner is not fulfilling her statutory obligations to those persons, which results in violations of the hospitals'constitutional rights. The statutory framework for New Hampshire's mental health services system follows.

The "New Hampshire Public Health Mental Health Services System" was established under and is governed by RSA chapter 135-C. The purpose of RSA chapter 135-C is

to enable the department of health and human services to:

(a) Establish, maintain, and coordinate a comprehensive, effective, and efficient system of services for persons with mental illness.

(b) Reduce the occurrence, severity and duration of mental, emotional, and behavioral disabilities.

(c) Prevent mentally ill persons from harming themselves or others.

RSA 135-C:1, I; Petition of Sawyer, 170 N.H. 197, 200 (2017). DHHS is required to "establish, maintain, implement, and coordinate a system of mental health services under [RSA chapter 135-C]." RSA 135-C:3. The mental health services system "shall be supervised by the Commissioner" of DHHS. Id.

The chapter states that "[a]ny person seeking services from the state mental health services system may apply to an approved community mental health program or to a receiving facility." RSA 135-C:12, I.

Once a person seeks services at the emergency department of a local hospital or a community mental health center, or services are sought on a person's behalf, the person is examinedand a determination is made as to whether that person meets the criteria for involuntary emergency admission provided in RSA 135-C:27. Alternatively, if a "peace officer" takes a person into protective custody because of his or her behavior, the officer is required to transport the person "directly to an emergency room of a licensed general hospital" or to another place designated by the community mental health program serving that area. RSA 135-C:28, III.

"The involuntary emergency admission of a person shall be to the state mental health services system under the supervision of the Commissioner." RSA 135-C:28, I (emphasis added). Admission to the mental health services system "may be ordered upon the certificate" of an approved medical care provider at a hospital emergency department or community mental health center when the person examined meets the criteria of RSA 135-C:27. RSA 135-C:28, I. The Commissioner keeps a list of medical providers who are approved by her to administer IEA examinations and to complete IEA certificates. RSA 135-C:28, I.

The "Petition and Certificate for Involuntary Emergency Admission (IEA)" is a form that is available on the website www.courts.state.nh.us and is designated "NHJB-2826-D". Doc. no. 103-2. The form includes sections for a petitioner's statement about the person's dangerousness, for a witness'sstatement about the person's dangerous acts or behaviors, and for reports of the physical and mental examinations done by medical providers.

The last part of the form is entitled the "State of New Hampshire Certificate of Examining Physician or APRN for Involuntary Emergency Admission." In the certificate, the approved medical provider certifies to the provider's qualifications, that the provider is not a relative of the mentally ill person, and that the required examinations have been conducted. The provider then certifies that, in his or her opinion, the criteria of RSA 135-C:27 are satisfied "as the person is in such mental condition as a result of mental illness that s/he poses a serious likelihood of danger to self or others." Doc. no. 103-2, at *8.

Once an IEA certificate is completed, "a law enforcement officer shall, [unless an exception applies], take custody of the person and shall immediately deliver such person to the receiving facility." RSA 135-C:29, I. If certain specified situations arise "before custody of the person is accepted by a law enforcement officer pursuant to RSA 135-C:29, the certificate may be rescinded and the person who is the subject of the certificate released." RSA 135-C:29-a, I. "New Hampshire hospital and any other facility approved by the Commissionershall be designated as receiving facilities for the care, custody, and treatment of persons subject to involuntary admissions." RSA 135-C:26, I.

Designated receiving facilities are authorized to accept "persons involuntarily admitted to the state mental health services system" for "care, custody, and treatment." RSA 135-C:2, XIV. As is noted above, however, the Commissioner acknowledges that designated receiving facilities may not be available to accept IEA-certified persons, which then requires private hospitals to house those persons.²

An IEA-certified person is entitled to a probable cause hearing within three days after admission to the mental health services system. RSA 135-C:31, I. For purposes of the probablecause hearing, the person is entitled to notice of certain rights, including the right to counsel and the right "[t]o apply for admission on a voluntary basis." RSA 135-C:30. The person may also request a continuance of the hearing or waive the hearing. RSA 135-C:31, II & III. At the probable cause hearing, the burden is on the petitioner to show that probable cause existed for the involuntary emergency admission. RSA 135-C:31, I. The district court is required to render its decision as soon as possible "but not later than the end of the court's next regular business day." Id.

Background Information

The following background information is summarized from the allegations in the hospitals' amended complaint (document no. 77) and from documents provided with or cited in the amended complaint. For purposes of a motion to dismiss, the properly pleaded allegations in the complaint are taken as true.

In the complaint, the hospitals allege that the Commissioner engages in practices, together known as psychiatric boarding, through which the hospitals are required to house psychiatric patients who are subject to IEA certificates. The hospitals cite the DHHS website which describes the involuntary emergency admission ("IEA") process used by DHHS. N.H.D.H.H.S.,Involuntary Emergency Admissions (IEA), www.dhhs.nh.gov/dcbcs/nhh/eligibility.htm (last visited April 9, 2020) [http://perma.cc/PLG9-7ST9] ("DHHS website"). The DHHS website states that "[t]he IEA process begins with a visit to a local hospital Emergency Department or CMHC [community mental health center], and the completion of an IEA Petition requesting admission to New Hampshire Hospital."

As DHHS explains, New Hampshire Hospital does not provide "walk-in emergency or crisis services." For that reason, the website directs a person in need of emergency psychiatric services to "[c]ontact your local hospital Emergency Department or the local Community Mental Health Center (CMHC)." Id. The website also directs people who are seeking involuntary...