In the fall of 2022, Disability Rights Maine (DRM) represented a woman who had been “blue papered”[1] in an emergency department (ED) and was awaiting transfer to a psychiatric bed. She remained in the ED for 65 days until eventually being transferred to a psychiatric unit, two days after DRM filed a Petition for a Writ of Habeas Corpus in the Superior Court against the ED. After receiving treatment, she was discharged back to her apartment.
Her petition acknowledged meeting the standard for emergency involuntary psychiatric hospitalization but argued her due process rights were violated due to the prolonged wait for transfer from the ED to a psychiatric facility.
Some would argue that this case highlights the need for more psychiatric beds in Maine to prevent such lengthy stays in EDs due to long waitlists at psychiatric hospitals. However, a closer examination reveals a different reality.
Although technically moot, the Superior Court held a hearing on her petition even after her discharge. The court, in its opinion, found that her due process rights were indeed violated and she had the right to court appointed legal representation. This opinion is attached as A.F. v. MaineGeneral Medical Center.
The court noted that one reason for her extended stay in the ED was the repeated rejection by numerous psychiatric hospitals, citing reasons such as her acuity level being too high or not fitting their “milieu”. This selection process led to her being “stuck” in the ED, as these hospitals could refuse admission without any waitlist.
In its decision the Superior Court observed:
Over the course of the 65 days, A.F. was rejected by the following hospitals: Riverview Psychiatric Center, Dorothea Dix Psychiatric Center, Spring Harbor Hospital, Northern Light Acadia Hospital, Southern Maine Medical Center, St. Mary’s Regional Medical Center, Mid Coast Hospital, Penobscot Bay Hospital, Maine Medical Center, and MGMC. They all claimed that she was not a good fit for their hospital as her acuity level was too high, or otherwise did not fit their milieu. And these rejections repeatedly occurred while other patients, who were also awaiting admission from MGMC’s ED, were admitted to psychiatric hospitals.
The nursing director for the ED at MGMC, testified that there is essentially no “waiting list” for these patients as that term is conventionally understood. Instead, prospective hospitals are permitted to decide whether a patient is a good fit for their facility. If not, the patient and the ED where the patient is being detained, have no option but to accept that decision, and to wait. And wait they did.
Consequently, A.F. found herself confined to the emergency department until one of these hospitals had a change of heart. However, despite more than two months passing, this change didn’t materialize until after she filed her petition in the Superior Court.
Hence, increasing the number of beds would not have eased AF’s situation in the ED; it would have merely increased the count of beds inaccessible to her.
The court noted:
As her attorney essentially puts it, the beds were just not available to her” (emphasis in original).
How frequently does this scenario unfold, where individuals languish in the ED not due to bed availability but for reasons that could persist indefinitely due to these psychiatric hospitals refusing to admit?
Answering these questions is challenging. The Maine Department of Health and Human Services (DHHS) lacks centralized data on when psychiatric hospitals decline to admit “blue papered” patients from EDs based on reasons such as acuity level or not a good fit for milieu. Consequently, it’s difficult to ascertain whether, at a statewide level, individuals remain stuck in the ED primarily due to bed shortages or other reasons.
Furthermore, there’s no oversight to evaluate the acceptability of these hospitals’ determinations to refuse such patients.
For instance, many hospitals cited the concept of not being a good fit for the “milieu” as a justification for refusing A.F. The court, citing to the testimony of the ED nursing director, described the conditions in which A.F. was detained in the ED for over two months as follows:
The nursing director described the conditions as potentially worse than jail in most cases. There was no outdoor time, no windows, just four white walls. She urged consideration that the environment was akin to being in jail.
There appears to be insufficient oversight regarding whether psychiatric hospitals’ refusal to admit a “blue papered patient” due to their milieu or acuity is justified, particularly when the patient is subjected to conditions akin to jail with minimal treatment while waiting in the ED.
Moreover, it’s reasonable to speculate that an individual’s acuity level could intensify the longer they are exposed to such an environment, potentially reducing their appeal to psychiatric hospitals that reject admission based on escalating acuity levels.
Despite the DHHS contracting with these hospitals to accept “blue papered” patients, the court found that DHHS had essentially forfeited its right to object to these hospitals’ refusal to admit patients like A.F. The court stated:
The reality is that MGMC, like all the other hospitals, are “stuck” with the determinations about “acuity” and “milieu” made by other hospitals, and the other hospitals are “stuck” with determinations made by MGMC. The Court agrees with MGMC that the Court cannot and should not involve itself in making such clinical judgments, particularly when DHHS has apparently bargained away its own right to object to these clinical decisions, presumably to find private hospitals such as MGMC willing to accept patients like A.F. (emphasis added).
The court clearly recognized that the system’s flaw could have resulted in A.F. being detained indefinitely in the ED as psychiatric hospitals opted for other patients. The court emphasized:
But for Nurse Duprey’s intervention and Disability Rights Maine’s willingness to file this case, A.F. could have easily become another patient who lived at MGMC’s ED for six months.
The court, citing to a recent Maine Supreme Judicial Court decision, further noted that the problem with the system is not something that can be fixed judicially but should be addressed by the Executive and Legislative branches, stating:
There is no indication in LincolnHealth that the Law Court ever expected that the “restart process” could go on indefinitely, and it stated plainly that patients in AF’s circumstances continue to be protected by due process while waiting. A fair reading of the case would be that the Law Court went as far as it deemed appropriate with the record before it, but that it expected and hoped, along with the hospitals and Maine citizens who reside for extended periods in EDs, that the Executive and Legislative branches of Maine government would remedy what has now become a chronic problem.
The case of A.F. exemplifies the challenges faced by individuals awaiting transfer from emergency departments to psychiatric beds. The Superior Court’s observation of her extended emergency department stay, marked by repeated rejections from psychiatric hospitals, underscores systemic issues. The lack of oversight exacerbates the situation, with no centralized data to assess the frequency of such refusals or the appropriateness of hospital decisions. The Superior Court’s acknowledgment of the systemic flaw underscores the need for executive and legislative action to address the chronic problem of this type of selection process, as judicial intervention alone cannot rectify the issue. This was underscored by the court’s authority being restricted to ordering MaineGeneral to notify DRM if A.F. found herself in the same situation in the emergency department within the next five years.
[1] “Blue papered” is often used to describe Maine’s emergency involuntary psychiatric hospitalization process.
In January of this year Maine’s highest state court, the Maine Supreme Judicial Court, also known as the “Law Court”, issued a decision called A.S. v. LincolnHealth.[1] This decision had a substantial impact on the process used to hold someone in a general hospital’s emergency department under Maine’s law for emergency involuntary admission to a psychiatric hospital. Below is a Q&A regarding this case:
What happened in the A.S. case?
Law enforcement took A.S. into protective custody and brought him to an emergency department for a mental health evaluation. Maine statutes allow for a person to be involuntarily admitted to a psychiatric hospital on an emergency basis.
The process used is set out on a one page application form created by the State of Maine and is commonly referred to as being “blue papered.”
The first section of this form is filled out and signed by the person who is seeking to “blue paper” an individual.[2] The second section is filled out and signed by a medical practitioner that certifies that they have examined the person and it is their opinion the person meets the statutory criteria for emergency involuntary admission to a psychiatric hospital.
The third section of this form is called the “Judicial Review and Endorsement” section and it is required to have the name of the psychiatric hospital that is being proposed for the patient to be transferred to from the emergency room. Section 3 must be signed by a judicial officer.
At the time of A.S.’s detention, Section 3 looked like this:
The hospital emergency department had held A.S. for 30 days relying on this statute and filled out 16 blue papers, but never obtained the Part 3 “Judicial Review and Endorsement.” They argued that they were unable to so because they could not find a psychiatric hospital that would admit A.S. therefore were unable to fill in the blank with the name of a psychiatric hospital for the judicial officer to endorse the transfer to.
Was that allowed under the statute?
That was the issue in the A.S. case. While the statute contained language that allowed for a person to be held in an emergency department for an initial 24 hours and then, in certain circumstances, two 48 hour periods for a total of 120 hours, it did not address the issue of what would happen if this time limit was exceeded when an emergency department could not identify a psychiatric hospital to put in Section 3 of the form.
If the statute does not spell this out how did the Law Court interpret it?
The Law Court interpreted the statute as not requiring immediate release after 120 hours but also did not allow for the blue paper process to continue over and over again without obtaining a judicial endorsement. The Law Court stating:
Our interpretation of the plain language of the statute, however, does not mean that LincolnHealth was required to either discharge A.S. or transfer him to a psychiatric hospital at the end of the first 120-hour period. If the patient cannot be safely released after the entire 120-hour authorized hold period has lapsed and if there is still no psychiatric bed available, the hospital may “restart” the process.
This restart requires that a new application and certifying examination, including adequate and updated information relevant to the individual at that moment in time, be submitted for judicial endorsement within twenty-four hours after the 120-hour period ends. With a new judicial endorsement in hand, the hospital may then continue its efforts to find an appropriate placement for the patient and will not be required to discharge him. There is nothing in the statute that prohibits this practice, so long as the hospital immediately undertakes to secure judicial endorsement for every “new” statutorily authorized period of detention.
Did the Law Court give any further guidance?
Yes, they summarized their ruling as follows:
In summary, when a hospital determines that a person meets the requirements of [the statute] and it has a certificate from a medical practitioner that complies with [the statute], but there is no available psychiatric bed to which the person can be transferred, the hospital may detain the person for up to twenty-four hours only if it seeks to have the application for emergency hospitalization reviewed and approved by a judicial officer “immediately upon execution of [that] certificate.” With that approval, the hospital may then hold the individual for up to an additional ninety-six hours—one forty-eight hour period authorized by [the statute], and one forty-eight-hour period authorized by [the statute]—without additional judicial review so long as the hospital (1) periodically determines—medically—that the person continues to pose a likelihood of serious harm, [and] undertakes its best efforts to locate an inpatient psychiatric bed, and (3) notifies the Department of any detention exceeding twenty-four hours[3].
Why is this important?
Under this process, a judicial officer is going to be made aware that a person has been in an emergency department for any extended period of time.
How is this supposed to happen?
In March of 2021 the State of Maine changed it’s “Blue Paper” forms that the hospitals now must use.[4] One of the changes requires that any “blue paper” application submitted to the judicial officer must have attached to it all immediately preceding “blue paper” applications for the proposed patient.
Does the A.S. decision require the judicial officer to take any action when the number of “new” requests for authorized periods of detention in an emergency room reach a certain amount of time when added up together?
While the Law Court in the A.S. decision did not address this issue, they did emphasis the extraordinary nature of the power given to hospitals when using this process and the impact it has on the individual, stating:
Section 3863 and the other sections contained within article 3 authorize a hospital to do what it otherwise could not lawfully do—detain a person against his will. Section 3863 outlines the first step of that extraordinary process, a process that has the potential to deprive a person of his right to control where he is, what he does, and how he is treated. See Guardianship of Hughes, 1998 ME 186, ¶ 11, 715 A.2d 919 (explaining that involuntary commitment involves “a complete deprivation of a person’s liberty to the extent the person could lawfully be restrained by force from leaving the facility” (emphasis omitted)); Doe v. Graham, 2009 ME 88, ¶ 23, 977 A.2d 391 (“We have previously recognized that both the private and governmental interests associated with involuntary commitment due to mental illness are substantial.” (quotation marks omitted)).
Is there something that a person can do on their own?
Yes, if a person believes that they are being detained in an emergency room in violation of the law they can file an “Application for Writ of Habeas Corpus”.
Where would a person file this application?
Almost all of these types of applications are filed in the Superior Court.[5] And they would be filed with the Superior Court in the county where the emergency room the person is being held is located.
If the court hearing this Application for a Writ of Habeas Corpus finds that the person is not being held in accordance with the law does the court then have to order their release?
No. In the A.S. decision the Law Court stated:
A court facing a similar situation in the future—having to balance an individual’s liberty interests and his right to due process with concerns about his safety and the safety of the community—should understand that it has the ability to tailor any relief to effectively balance these competing interests.
Did the Law Court give any examples of what this might be?
Yes, they gave the following example:
For example, a court could tell the parties that it is granting the habeas petition but that it will stay for twenty-four hours the issuance of the mandate ordering release to allow the hospital to seek, through an application for involuntary admission, judicial endorsement of the patient’s continued detention.
If a person thinks they are being held in the emergency department and the hospital is not following the statute or the A.S. decision, how can they get help with filing an application for a Writ of Habeas Corpus?
They can call DRM and we will discuss the specific facts of their case.
If a person files an application for a Writ of Habeas Corpus on their own do they have a right to a court appointed lawyer?
That is unclear. The Law Court in a case called In Re Penelope W.[6] found that the ability for a person to proceed without representation at any key stages of an involuntary commitment proceeding is foreclosed by statute. Whether the rationale contained in In Re Penelope W. would be found applicable to a Habeas proceeding in accordance with the A.S. v. LincolnHealth decision is an open question.
If a person held in an emergency room files an application for a Writ of Habeas Corpus on their own are they prohibited from asking the court to appoint them a lawyer?
No. There is nothing that prohibits a person from asking for a court appointed lawyer when filing such an application.
If a person asks for the court to appoint them a lawyer but their request is denied what should they do?
Susan B. Anthony once said: “Someone struggled for your right to vote. Use it.”
However, sometimes “using it” comes with its own struggles. This is certainly true for individuals with disabilities who are patients in psychiatric hospitals.
One of DRM’s core missions is to protect and advocate for the rights of individuals with disabilities who are patients in psychiatric hospitals. This means that we advocate for individuals to exercise their right to vote.
In the month leading up to Election Day 2020, DRM distributed over 700 voting information packets to all of Maine’s psychiatric hospitals. These packets were designed to ensure that both current patients, as well as those admitted the month before the election, would have information on how to make sure they could exercise their right to vote.
The packet contained the Maine Secretary of State’s voting guide, information on how to obtain an absentee ballot and how to register to vote. Also included was information on how to ask hospital staff for help by making access to voting part of the treatment planning process, as well as Disability Rights Maine’s contact information.
For individuals who were admitted to the hospital just prior to Election Day, but for whom the packets would not be helpful, DRM was available to offer direct assistance.
On Election Day, DRM had two such cases. One man had been admitted the weekend before the election. He was in his 60’s, a former poll volunteer and had never missed voting in any election…ever. DRM worked with the hospital to make sure that this man was able to have his ballot cast on that day.
A woman at a different hospital had the same experience. She was also admitted the weekend before the election. She was in her 40s and had a number of family and friends who had served in the military. She felt it was her duty to vote during every election so as to honor her family and friends who had served. DRM worked with the hospital to ensure that this woman was able to cast her ballot that on Election Day.
The right to vote is one of the most important rights and DRM was there to make sure that people not only received information on how to exercise their rights but also assistance on election day.
Medicaid is a health insurance program that is funded jointly by states and the federal government. In Maine this program is known as MaineCare. This insurance provides health coverage to over 200,000 Mainers, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. MaineCare is administered by the Maine Department of Health and Human Services (DHHS), according to federal requirements.
The express purpose of the federal Medicaid Act is to enable each State “to furnish medical assistance on behalf of [individuals] whose income and resources are insufficient to meet the costs of necessary medical services” and to provide “rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.” [1]
Not surprisingly Medicaid bars the use of federal funds for people aged 22-64 who are served in large institutions, including any facility with a capacity of over sixteen beds. This is commonly known as the “IMD exclusion.”[2]
The federal requirement that the funding of health care services be designed in order to ensure that individuals attain and maintain their independence is also the cornerstone of the Maine Department of Health and Human Services obligation to individuals with mental disabilities under the terms of a court approved class action settlement agreement. This agreement is commonly known as the “AMHI Settlement Agreement”.[3]
This prioritization of mental health services in the community to ensure that individuals are not inappropriately hospitalized is contained within the terms of the Settlement Agreement which provides that:
“All services within the comprehensive mental health system shall be oriented to supporting class members to continue to live in the community and to avoid hospitalization.”
Notwithstanding the above, on February 22, 2019 the Maine Department of Health and Human Services issued a draft proposal it intends to submit to the United Stated Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) seeking a waiver of this IMD exclusion.
This proposal fundamentally shifts the focus from ensuring the availability of adequate mental health services in the community in order for people with mental disabilities to avoid unwarranted institutionalization, to strategies on how to pay for fund such institutionalization.
DRM strongly opposes this waiver request and submitted its comments to DHHS at public hearings on March 6 & 7, 2019.
[2] IMD is an acronym that stands for “Institutes for Mental Diseases” which appeared in the original Medicaid Act passed in 1965. This outdated nomenclature has never been amended.
Disability Rights Maine (DRM) is the federally-mandated and State-designated nonprofit agency tasked with protecting and advocating for the rights of individuals with disabilities in the State of Maine. DRM’s primary responsibilities include preventing and responding to the abuse, neglect, discrimination, and other violations of the rights of individuals with disabilities.
Under both its federal and state authority DRM monitors the treatment of individuals with disabilities, including those with mental illness, to ensure that the services they receive are delivered in conformity with standards mandated by various state and federal laws and regulations. This includes individuals receiving treatment at hospitals and in correctional facilities.
During the spring of 2018 DRM discovered, as a result of our presence in these facilities, that individuals with mental illness were often being denied critical emergency mental health care at St. Mary’s Regional Medical Center (St. Mary’s) and Central Maine Medical Center (CMMC) in Lewiston, Maine. These are the only hospitals with emergency departments in the second largest metropolitan area in the State. These emergency departments should be critical resources for those experiencing a mental health crisis.
However, DRM learned that some individuals with mental illness who were suicidal, in mental health crisis, or both were being turned away from these hospital emergency departments without receiving adequate medical screening, stabilization services, or both.
Instead of receiving emergency treatment for their mental health symptoms some individuals were actually arrested and taken directly to Androscoggin County Jail where they continued to experience the same, or worsening symptoms of mental health crisis or suicidality for which they sought treatment in the first place.
When hospitals choose to call the police instead of providing patients with the treatment they are entitled to receive it essentially criminalizes mental illness. This leads to individuals not seeking desperately needed help out of a legitimate fear that, instead of getting the help they need, they may well find themselves locked in a jail cell.
The mental health system cannot function unless the providers of mental health services are willing to engage with individuals with mental illness who exhibit behaviors that are related to their mental illness for which the providers are legally required to provide treatment.[1]
DRM also learned that CMMC notified local law enforcement officials that they were not to take any individual in their custody experiencing a mental health crisis, suicidality, or both to its emergency department unless that individual was also experiencing some sort of trauma. It was later learned that CMMC had also notified Emergency Medical Services providers not to take individuals experiencing a mental health crisis to its emergency department.
CMMC and St. Mary’s were both found to be in violation of EMTALA (Emergency Medical Treatment and Active Labor Act). EMTALA is a federal law that protects any person experiencing a medical emergency who goes to the emergency department of a hospital that receives Medicare funding, such as St. Mary’s and CMMC. EMTALA requires that the emergency department screen any such individual for an emergency medical condition, such as suicidality, and then stabilize the individual if an emergency medical condition is found before discharging the individual, unless certain criteria are met. EMTALA is intended to ensure that hospitals do not turn away or discharge people who need emergency medical services, regardless of their ability to pay. When a patient is turned away or discharged by an emergency department in violation of EMTALA, the violation is sometimes referred to as “patient dumping.”
DRM was very concerned about EMTALA violations at both hospitals. DRM subsequently pursued administrative remedies with the Maine Division of Licensing and Certification and the regional office of the Centers for Medicare and Medicaid Services (CMS).
The resulting investigations conducted by staff from those agencies substantiated DRM’s complaints regarding the EMTALA violations in both hospitals. In addition the investigations uncovered numerous violations related to Medicare Conditions of Participation for hospitals. Four publicly available sets of documents outline the legal violations as well as the hospitals’ plans to prevent them from occurring again. A link to these documents can be found here.
An example of how the system fails when providers of mental health services call the police instead of providing treatment can be found in the CMS deficiency report as follows:
On 11/6/17 sometime between departing at 10:18 PM and 11:25 PM, Patient #2 attempted to enter the hospital [St. Mary’s], via the ED entrance, he/she was stopped by security, and was subsequently arrested.
A review of jail records indicated that Patient #2 was booked into jail on 11/7/17 at 12:27 AM for trespassing. Documentation on 11/7/17 indicated Patient #2 was seen by a mental health representative; per the mental health representative, the individual was placed on suicide watch “due to the individual’s deteriorating mental stability”; the nurse at the jail assessed Patient #2 at the jail and determined that the he/she was “highly delusional and incapable of expressing a lucid thought that was trustworthy”; was cooperative but “completely unaware of [her/his] surroundings or situation”; and yelling that he/she thought the jail was going to burn down. On 11/8/17, documentation indicated that the individual was screaming incoherent thoughts; yelling “that [his/her] back is broken, please help me, I have fallen four floors, I’m dying, please help me”; and was naked and banging. On 11/8/17, a mental examination was court ordered to determine the individual’s competency and the individual was committed to a psychiatric hospital for observation, evaluation and treatment.
This person’s decision to seek out mental health treatment at an emergency department led to him or her being locked in a jail cell naked. DRM will continue to advocate for the rights of individuals with mental illness who need emergency mental health treatment at emergency departments.
Question or concerns regarding EMTALA violations involving individuals with disabilities can be referred to Disability Rights Maine at 207.626.2774. EMTALA complaints can be made to the Maine Department of Health and Human Services, Division of Licensing and Certification. Visit https://www.maine.gov/dhhs/dlc/facility-information.shtml#jump3 for more information.
Read the documents relating to the complaints against CMMC and St. Mary’s. Document links will open in a new tab/window.
[DISCLAIMER: NOTHING IN THIS BLOG IS LEGAL ADVICE]
[1] This practice of providers of mental health services calling the police is not limited to emergency rooms. DRM published an extensive report on this problem entitled “Assessing the Use of Law Enforcement by Youth Residential Service Providers.” https://drme.org/news/2017/law-enforcement-youth.
