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State, hospitals disagree on how long it will take to end ‘ER boarding’ in New Hampshire

Concord Hospital
Zoey Knox
Concord Hospital is one of the facilities involved in the ongoing dispute with the state.

State officials say they will need up to two years to fully eliminate wait times for inpatient mental health treatment, after a federal judge ruled New Hampshire must stop holding patients in psychiatric distress inside emergency rooms.

A group of about 20 local hospitals, however, say that timeline is too slow. They want the state to end the practice, sometimes called “ER boarding,” within one year.

New Hampshire has long struggled to meet the demand for mental health care, particularly for those in crisis. Some patients who are held involuntarily due to a psychiatric crisis spend days or weeks in hospital emergency rooms, because the state doesn’t have enough treatment beds to meet the demand. As of Monday, nine children and 33 adults — including 27 in ERs and six in correctional facilities — were waiting for emergency mental health beds, according to state data.

State officials have worked to expand the mental health system in recent years, but they say labor shortages have slowed that progress.

At New Hampshire Hospital, the state-run psychiatric facility in Concord, two units comprising about 30 beds are currently closed for repairs after they flooded in February. But interim Health and Human Services Commissioner Lori Weaver told the Executive Council last month that the facility would not have the staff to reopen them anyway.

State says labor shortages complicate hospitals’ proposed timeline

A hearing on the competing proposals is scheduled for May 15. The filings are part of an ongoing lawsuit brought by patients who alleged that the state violated their rights in handling their involuntary detentions in hospital settings.

The hospitals intervened in the lawsuit, arguing the state has a responsibility to immediately transfer involuntarily admitted patients to appropriate treatment and is unlawfully seizing the hospitals’ property when it instead leaves them in emergency departments for long periods.

U.S. District Court Chief Judge Landya B. McCafferty sided with the hospitals in February and directed both sides to propose a timeline for fixing the problem.

In court filings, the hospitals argue the state should be required to bring at least 60 more inpatient beds online within a year — starting with getting the unused beds at New Hampshire Hospital up and running again within six months.

“The Hospitals are willing to afford the [Health and Human Services] Commissioner one year to come into compliance, but the concession of time requires that the Commissioner demonstrate progress along the way,” lawyers for the hospitals wrote in a recent filing.

State health officials, meanwhile, say the hospitals’ desired timeline is impossible to achieve, in part due to labor shortages. New Hampshire Hospital already has vacancies, they say, even without trying to staff additional beds in a matter of months.

“The Commissioner cannot force individuals to apply for posted jobs,” lawyers for the state wrote, adding that “a court may not impose a remedy that is impossible to comply with.”

They’re asking for two years. In their court filing, state officials say multiple improvements to the mental health system are slated to come online during that time — including a new private psychiatric hospital — creating a “realistic possibility” the issue will be resolved by then.

Bed requirements, burden on hospitals also at issue

State officials also say the court should not impose specific requirements for how they get that done, such as requiring a minimum of new beds. They argue that would tie policymakers’ hands as they wrestle with a complex issue and new beds are just part of the solution, in addition to community-based services that reduce the need for hospitalization and transitional housing for people ready to leave inpatient treatment.

For their part, the hospitals say specific benchmarks are needed to make sure the state lives up to its promises. They say the state could contract with temporary staffing agencies if it can’t hire permanent workers quickly enough.

The hospitals also expressed concern that state officials could try to shift the burden — and cost — onto private hospitals. They cited Gov. Chris Sununu’s recent proposal to require every hospital to operate emergency mental-health beds as a condition of licensing. (House lawmakers stripped that proposal from the budget they passed this month.)

The two sides also differ on how quickly patients should be transferred once an emergency room doctor signs off on an involuntary admission. The hospitals say the state’s mental health system should be ready to accept those patients within six hours; the state is arguing for 12 hours.

State officials declined to comment on pending litigation. A spokesperson for the New Hampshire Hospital Association referred a reporter to a statement the organization issued in February about McCafferty’s order.

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
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