Editorial: Court must hold NH to account on ER boarding

Published: 05-30-2023 3:42 PM

U.S. District Judge Landya McCafferty has imposed a tight deadline on the state of New Hampshire to end the practice of detaining in hospital emergency departments patients involuntarily committed to the mental health system while they wait for in-patient psychiatric beds to become available. This is a steep challenge but also an important opportunity, and we urge the state to embrace it as such.

It’s particularly challenging because McCafferty, ruling in a suit brought in 2018, gave the Department of Health and Human Services (DHHS) just one year to come into compliance. She also required that once patients are certified for involuntary emergency admission on the grounds that they present a danger to themselves or others, they be transferred within six hours to a state-designated treatment facility.

On one hand, that’s an ambitious timeline; on the other, patients and their families who have languished in emergency departments for days and weeks without receiving the skilled psychiatric treatment they need and deserve almost certainly have quite another perspective on what’s a reasonable deadline. For its part, the state had asked McCafferty for two-year and 12-hour deadlines, respectively.

By lending a sense of urgency to the issue, the judge’s ruling presents an opportunity for the state to end promptly what has long been an inhumane, unsafe and unconstitutional situation. Thus we hope that the state Attorney General’s office will not drag out the process by appealing the order.

A couple of days after the ruling, DHHS announced “Mission Zero,” its plan to end emergency room boarding by 2025. (We were relieved that it was not titled “Mission Impossible.”) The strategy, which the department said it had been working on for months, relies on a planned 125 additional in-patient psychiatric beds in designated receiving facilities coming online by that date; on expanded funding for community mental health centers; on additional transitional housing and more “step-down” beds for patients who no longer need acute care but are not ready yet to return to the community; and on addressing workforce shortages.

“Building on years of progress, we are hitting the gas to fully eliminate ED boarding and build a mental health system that serves people at the right place at the right time,” said DHHS Interim Commissioner Lori Weaver, describing the strategies employed as “bold and proactive.”

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This acceleration of effort all sounded encouraging — at least until we reached the part of the press release that noted that many of the steps contemplated depend on legislative approval. Based on past history, that’s hardly a given. The New Hampshire Legislature does not exactly embrace court orders that require the expenditure of large sums of money. As we have noted many times before, it has never fulfilled the mandate of the New Hampshire Supreme Court in its Claremont rulings of 30 years ago to fund an adequate education for all public school students and pay for it with equitable taxation. The state per-pupil “adequacy grant” remains a pittance compared with what it actually costs to educate the state’s pupils.

The judge’s order in the emergency-room boarding case requires the health department to report on its progress in four months and then again in eight months, raising the possibility that if good headway is being made, the implementation deadline might be extended to 2025, as the state desires. But should Mission Zero founder, we hope the court will not hesitate to hold state government accountable by imposing meaningful sanctions to get meaningful results. Mental health patients, their families, hospitals and health care providers have put up with this disgraceful situation more than long enough; it’s past time to end it.