ER Boarding Legislation: The State-by-State Fight to End the Practice That Is Breaking Emergency Medicine

The numbers are staggering. The average psychiatric boarding time in U.S. emergency departments is 12.8 hours — more than half a day spent in a hallway bed, under fluorescent lights, in an environment designed for acute medical emergencies, not for the stabilization of psychiatric illness. In some states, the average exceeds 24 hours. Individual cases routinely stretch to days or weeks. A 2023 ACEP survey found that 84% of emergency physicians reported boarding psychiatric patients for more than 24 hours in the past month. The practice is nearly universal, nearly continuous, and — according to a growing body of research — actively harmful to the patients it affects.

What Boarding Is and Why It Happens

Boarding, in the emergency medicine context, refers to the practice of holding admitted patients in the emergency department after the decision to admit has been made — because no inpatient bed is available. The term is most commonly applied to psychiatric patients, but boarding affects patients across all diagnostic categories: medical patients waiting for ICU beds, surgical patients waiting for step-down beds, and patients with complex social needs waiting for placement in skilled nursing facilities or rehabilitation centers.

Psychiatric boarding is the most severe and most studied form of the problem. It occurs because the United States has dramatically reduced its inpatient psychiatric bed capacity over the past six decades. In 1955, the United States had approximately 560,000 state psychiatric hospital beds — roughly 340 beds per 100,000 population. By 2016, that number had fallen to approximately 37,000 beds — 11 beds per 100,000 population. The deinstitutionalization movement of the 1960s and 1970s, which closed state psychiatric hospitals in favor of community mental health centers, was supposed to be accompanied by a robust expansion of community-based care. The community care never materialized at the scale needed, and the result was a massive transfer of psychiatric patients from hospitals to emergency departments, jails, and the streets.

The consequences for emergency departments have been severe. A psychiatric patient in crisis who arrives in the ED and is determined to need inpatient psychiatric care cannot be discharged — they are a danger to themselves or others — but cannot be admitted because there is no bed. They wait in the ED, occupying a bed that could be used for other patients, receiving care from emergency nurses and physicians who are not trained in psychiatric nursing and who have dozens of other patients to manage. The wait stretches from hours to days, and the patient's condition often deteriorates in the chaotic, overstimulating environment of the ED.

The Research: What Boarding Does to Patients and Departments

The research on the consequences of boarding is extensive and consistent. For psychiatric patients, boarding in the ED is associated with worsening psychiatric symptoms, increased rates of restraint and seclusion, higher rates of adverse events, and lower rates of engagement with follow-up care after discharge. A 2019 study in Psychiatric Services found that psychiatric patients who boarded for more than 12 hours had significantly worse outcomes at 30 days than those who were admitted within 4 hours — including higher rates of readmission and lower rates of outpatient treatment engagement.

For emergency departments, boarding is associated with increased wait times for all patients, higher rates of patients leaving without being seen, increased rates of medical errors, and higher rates of staff burnout. A 2020 study in Annals of Emergency Medicine found that each additional boarded patient in an ED was associated with a 4-minute increase in door-to-physician time for all patients — a seemingly small effect that compounds rapidly in a busy department. The same study found that boarding was associated with a 2.5% increase in the probability that a patient would leave without being seen.

For emergency physicians and nurses, boarding is one of the primary drivers of burnout and moral injury. Emergency clinicians describe the experience of caring for boarded psychiatric patients — patients who need specialized care they cannot provide, in an environment that is actively harmful to those patients — as one of the most distressing aspects of their work. The ACEP 2026 Workforce Report found that boarding was cited by 67% of emergency physicians as a major contributor to their burnout.

The Legislative Landscape: What States Are Doing

The state legislative response to boarding has accelerated significantly since 2020, driven by the pandemic's devastating effect on psychiatric bed availability and by growing advocacy from emergency medicine organizations. As of 2026, more than 20 states have enacted some form of anti-boarding legislation, ranging from reporting requirements to financial penalties to mandated time limits.

The approaches vary significantly. Some states — including Massachusetts, Washington, and Oregon — have enacted hard time limits with financial penalties for non-compliance. Others — including California, New York, and Illinois — have enacted reporting requirements that mandate hospitals to publicly disclose their boarding times without imposing specific limits. Still others have focused on the supply side of the problem, enacting legislation to expand inpatient psychiatric bed capacity, fund crisis stabilization units, and develop mobile crisis response teams.

The supply-side approaches are generally considered more promising by emergency medicine experts, because they address the root cause of boarding rather than its symptoms. Crisis stabilization units — short-term psychiatric facilities that can hold patients for 23 hours without formal admission — have been shown to reduce ED boarding times in several states. Mobile crisis response teams, which dispatch mental health professionals rather than police to psychiatric emergencies, have reduced the number of psychiatric patients who arrive in emergency departments in the first place.

Washington State's 2023 Behavioral Health Crisis Response Act is widely regarded as the most comprehensive anti-boarding legislation enacted to date. The law combined time limits and penalties with significant investments in crisis stabilization capacity — funding 500 new crisis stabilization beds, expanding mobile crisis response statewide, and creating financial incentives for hospitals to develop psychiatric emergency programs. Early data from Washington suggests that the combined approach is more effective than either time limits or capacity investments alone.

The Federal Dimension: CMS, EMTALA, and the IMD Exclusion

Federal policy has been a significant contributor to the psychiatric bed shortage and, more recently, a potential source of solutions. The Institutions for Mental Disease (IMD) exclusion — a provision of Medicaid law that prohibits federal Medicaid funding for inpatient psychiatric care in facilities with more than 16 beds — has been a major barrier to expanding psychiatric bed capacity since it was enacted in 1965. The exclusion was originally intended to prevent states from using Medicaid to fund large state psychiatric hospitals, but it has had the unintended consequence of discouraging investment in medium-sized psychiatric facilities that could fill the gap between large hospitals and small crisis units.

Congress has repeatedly considered repealing or modifying the IMD exclusion, and several states have received Medicaid waivers allowing them to use federal funds for IMD-excluded facilities. The Biden administration expanded the availability of IMD waivers in 2022, and several states — including California, New York, and Texas — have used waivers to fund psychiatric bed expansion. The impact of these waivers on boarding times has been modest so far, because the bed expansion has not kept pace with the growth in demand.

CMS has also clarified that EMTALA applies to psychiatric emergencies — that hospitals must provide stabilizing treatment, including psychiatric treatment, to patients with psychiatric emergency medical conditions. But as with the anti-boarding legislation, the EMTALA obligation does not create the beds needed to fulfill it.

The Road Ahead

The boarding crisis will not be solved by legislation alone. The fundamental problem is a catastrophic mismatch between the demand for inpatient psychiatric care and the supply of inpatient psychiatric beds — a mismatch that has been building for six decades and cannot be reversed quickly. The legislative approaches that are most likely to make a meaningful difference are those that combine demand management (crisis stabilization units, mobile crisis response, community mental health) with supply expansion (new psychiatric beds, IMD waiver utilization, financial incentives for psychiatric capacity) and accountability mechanisms (boarding time reporting, financial penalties for egregious cases).

The emergency physicians and nurses who bear the daily burden of the boarding crisis are not waiting for a comprehensive solution. They are implementing the tools available to them: psychiatric emergency programs, telepsychiatry, peer support specialists, and warm handoffs to community mental health. These interventions help at the margins. They do not solve the problem. Solving the problem requires the kind of sustained, adequately funded investment in psychiatric care infrastructure that the United States has not made since the era of the state hospital — and that the political system has not yet found the will to make.