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NH hospitals ask judge to order phase-out of emergency psychiatric boarding

The exterior of Cheshire Medical Center
Paul Cuno-Booth
/
NHPR
The state says workforce shortages are impeding its efforts to fix the issue.

New Hampshire has long struggled with a shortage of inpatient mental health beds, leaving some people in crisis held in hospital emergency departments for days or weeks as they wait for treatment.

On Wednesday, a lawyer for a group of New Hampshire hospitals asked a judge to set a deadline by which the state needs to end that practice.

“What we’re looking for, your honor, is, get us on the road that has an end,” attorney Michael Ramsdell said. “That’s what the state has refused to do so far.”

The lawsuit revolves around what are known as involuntary emergency admissions, or patients who are held involuntarily because of a mental health condition that poses a danger to themselves or others.

After a medical provider signs off, those patients are supposed to be transferred to the state-run New Hampshire Hospital or a designated mental health bed at a private facility, but there aren’t enough beds to meet the demand. As of Wednesday, 28 adults and 15 children were waiting in hospital emergency departments for inpatient mental health care.

The state health department has taken steps in recent years to expand mental health treatment, includingthe launch of mobile crisis services last year and the purchase of Hampstead Hospital to turn it into a psychiatric facility for youth.

But officials say they’ve been held back in those efforts because they can’t hire enough workers. Some beds at New Hampshire Hospital are going unused because of staff shortages.

Ramsdell argued the law requires the state to transfer patients into the mental health system as soon as an involuntary emergency admission is completed — and hiring challenges don’t relieve the state of that duty. He said the state could raise wages or shell out for temporary staffing, as private hospitals have had to do.

Ramsdell suggested Merrimack County Superior Court Judge Amy Ignatius set a deadline for the state to resolve the issue, with benchmarks along the way.

“No one anticipates this could be done overnight,” he said, though he noted the problem has been going on for years.

Senior Assistant Attorney General Samuel Garland acknowledged the system isn’t working as it should. But he said the law gives the state health department the flexibility to deal with less-than-ideal circumstances like a tight labor market and rise in mental health challenges during the pandemic.

Garland said the state could not currently comply with an order requiring it to immediately transfer patients who have been involuntarily admitted for emergency mental health treatment.

“The Department of Health and Human Services, I think, is on the record publicly committing to trying to add capacity to the system,” he said. “It can only do what it can do, though. Having the ability to create facilities or add beds is only as good as the people who can staff those beds, and the workforce shortage statewide is creating an impediment there.”

He also said the particular legal remedy sought by the hospitals — a writ of mandamus, which compels a public official to perform a specific administrative act — is not appropriate for the sort of systemic changes required to stop boarding patients in emergency departments.

The lawsuit is one of several in recent years over emergency room boarding. In 2021, the New Hampshire Supreme Court ruled the state was violating the rights of patients held against their will in emergency rooms by not promptly granting them probable cause hearings.

A separate lawsuit, brought by the ACLU of New Hampshire on behalf of patients alleging their due process rights were violated, remains pending in federal court. Most of the same hospitals have also intervened in that case.

Paul Cuno-Booth covers health and equity for NHPR. He previously worked as a reporter and editor for The Keene Sentinel, where he wrote about police accountability, local government and a range of other topics. He can be reached at pcuno-booth@nhpr.org.
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