It’s not exactly a secret that New Hampshire state government has historically seized any opportunity to shirk costly responsibilities. The most obvious example is school funding; the Legislature has ignored for the better part of 30 years its constitutional obligation to fund an adequate education for all New Hampshire students and to pay for it with equitably levied taxes.

It’s hardly shocking, then, that 15 not-for-profit, acute-care New Hampshire hospitals — including Mary Hitchcock, Alice Peck Day, New London and Valley Regional — filed a complaint in Merrimack County Superior Court in December arguing that the state Department of Health and Human Services is failing to fulfill its duties to one of the most vulnerable segments of the population: people who by reason of mental illness are found likely to pose a threat of imminent harm to themselves and/or others, and thus are subject to involuntary emergency admission (IEA) to the mental health system.

The result of this failure, the hospitals contend, is that these patients often languish for days or weeks “boarding” in hospital emergency rooms waiting for an inpatient psychiatric bed rather than immediately receiving the specialized care they require. (In this context, boarding actually connotes being detained.)

By way of background, the process begins at the hospitals’ emergency departments where the patient receives a mental health examination and, depending on the circumstances, a physical examination as well. If the criteria for involuntary emergency admission are met, the providers on staff issue an IEA certificate and notify DHHS.

At that point, the hospitals’ complaint argues, New Hampshire law and state and federal court decisions require that patients to be transferred immediately to a mental health facility designated by the state, where they are entitled to a court-mandated probable cause hearing within three days to challenge their involuntary admission.

That, however, often doesn’t happen because New Hampshire Hospital, the state’s main psychiatric hospital, and other designated mental health facilities lack sufficient beds to accommodate them. Often only about 145 of NHH’s 187 beds are available, because of staff shortages.

Thus, the IEA patients must remain in hospital emergency departments for an indeterminate length of time during which they do not receive the expert care they need and sometimes pose a risk to other patients and staff. Meanwhile the hospitals are left to make arrangements for the court-mandated probable cause hearings.

The complaint notes that a waiting list for psychiatric beds has existed for at least 10 years.

The 15 hospitals are asking the court to issue a writ of mandamus — an order requiring DHHS to fulfill its legal obligations to immediately take custody of IEA patients. The state responds that it would be “inhumane” to transfer these patients to an understaffed state hospital, and that the commissioner has the authority to essentially deputize the hospitals to care for them. We suppose that under the state’s theory, it’s somehow humane to warehouse in emergency rooms IEA patients who are in acute distress.

As a story by the Keene Sentinel indicated earlier this month, the hospitals believe that the state is simply shifting the costs of care down to them because it refuses to spend the money needed to hire enough staff to solve the problem at the state level.

Dr. Don Caruso, a prime mover of the suit who is CEO of Cheshire Medical Center, told the Sentinel, “In my mind, the court is the only mechanism to move the state. The state is not going to follow the requirement that it care for these individuals without the court’s intervention. There have to be fines. And the fines have to be substantial enough that the state will move to hire the necessary staff instead.”

Regrettably, that seems to us to be about right. Whether the court will issue such an order and levy fines cannot be foreseen, although any immediate change in the status quo seems unlikely no matter how the judge rules. But in any case, it is a sad commentary that government in one of the nation’s wealthiest states declines to do what’s right because it’s deemed too expensive — at least until a court compels it to do so.

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