It’s astonishing and disgraceful that it took a state Supreme Court ruling for New Hampshire to finally acknowledge it must end its shameful warehousing of people experiencing mental health crises in hospital emergency rooms. But galvanize state officials into action the court’s ruling last week finally did, and the hope is for meaningful near-term progress to end ER boarding and long-term solutions to a crisis in the state mental health system that’s been exacerbated by the pandemic.
Under state law, those being kept involuntarily at a hospital ER must be transferred immediately to a psychiatric bed at a so-called designated receiving facility. In recent years however, several hospitals, including Keene’s Cheshire Medical Center, have closed their psychiatric wings due to inadequate insurance and Medicaid reimbursement. And hospitals and community mental health centers alike have faced recruiting challenges due to a nationwide shortage of licensed professionals. This has led to a decline in the number of receiving facilities and an acute shortage of psychiatric beds. The result: ER waits before transfer vary, but can last up to four weeks.
To protect patient rights, state law also requires a probable cause hearing within three days for anyone challenging their involuntary detainment. Because of the bed shortages, Gov. Chris Sununu’s administration took the mind-boggling position that the three-day clock doesn’t begin to tick until the person is actually transferred to a designated facility, leaving ER boarders in a nightmarish limbo straight out of a Kafka novel, as one of the Supreme Court justices hearing the case observed. In that case, the unnamed plaintiff was detained 20 days in an ER before being transferred to the state-run New Hampshire Hospital. The probable cause hearing she was finally granted following her transfer from the ER resulted in her discharge.
In its May 11 decision, the Supreme Court resoundingly rejected the state’s argument — which boiled down to “no bed, no rights” — and unanimously ruled the three-day clock for a probable cause hearing starts when a patient’s involuntary detainment begins, whether or not in an ER. The ruling should have come as no surprise to the state. Over a year ago, the federal District Court in Concord said much the same in a separate class-action case challenging the state’s ER boarding practice. Given that the number of adults and children being ER-boarded has gone up significantly during the pandemic — at times it’s been as high as 80 adults and children — it’s unfathomable that the Sununu administration continued to assert its untenable twilight zone position rather than focus on solving the problem.
Fortunately, Gov. Sununu says he accepts the urgency of the situation, stating in a press conference following last week’s ruling that he embraces the Supreme Court’s decision. He also issued an executive order that, he says, is aimed at opening more emergency beds by expanding the number of designated receiving facilities throughout the state and adding capacity at N.H. Hospital. And he went further and ordered a review of all mental health services in the state and directed the Department of Health and Human Services to take action to increase access to mental health services, “clarify” the role hospitals play in caring for mental health patients and assess capabilities at current community mental health centers or find alternative providers to help address what he called an overall “mental health crisis.”
For their part, the state’s hospital and community mental health provider associations said they welcomed the governor’s steps. They also reaffirmed their willingness to work with the state — if there’s adequate funding.
So in the end, it will once again come down to funding. Sununu said at his press conference that state has the funds and will be making “millions of dollars of investment” to expand capacity and address mental health system needs. If so, why adverse federal and now state court rulings were necessary for New Hampshire to act is unclear.
Swift action is needed, and it’s good the governor is now engaged. In the Legislature, key finance leaders in both houses are signaling federal pandemic aid the state is now slated to receive should be used to help respond to the court rulings and solve the mental health crisis. Given the pressing needs of those being poorly served by the state’s mental health system, funding from any source is welcome. But it’s sad commentary that it takes court rulings and federal aid for the state to adequately own up to its mental health responsibilities. Hardly the New Hampshire advantage.