ACLU: New mental health law doesn’t go far enough

• Gov. Chris Sununu signs Senate Bill 11, a bipartisan bill to address the emergency department boarding crisis, at NAMI NH headquarters in Concord on Tuesday. Ethan DeWitt / Monitor staff

Despite a new law signed Tuesday by Gov. Chris Sununu to alleviate overcrowding at the state mental hospital, the American Civil Liberties Union of New Hampshire has no plans to drop its lawsuit, the organization said this week.

The lawsuit, waged against the state, accuses the state of violating the due process rights of involuntarily committed patients. On Tuesday, a spokesperson for the ACLU called the new law “a step in the right direction,” but said it does not fully address their concerns.

“While we hope that Senate Bill 11 helps lessen the waitlist in the long-term, SB 11 does not provide a mechanism in the short-term to ensure that individuals who are being held in hospital emergency rooms receive any due process – including appointed counsel and an opportunity to contest their detention – while they wait for placement at a DRF like New Hampshire Hospital,” the ACLU spokesperson said.

The organization’s class-action lawsuit centers around an anonymous plaintiff, “John Doe,” who the organization says was held in an emergency department in Southern New Hampshire Medical Center in November days after the 72-hour window prescribed in state statute for a hearing on his detention. The lawsuit, which asks the courts to require the state to “provide procedural due process,” has unfolded slowly; it’s been rescheduled and delayed numerous times and motions from the Department of Health and Human Services have still not been filed, according to court records.

The state Department of Health and Human Services declined to comment on the ongoing litigation, referring questions to the Department of Justice, which also declined to comment.

The bill, Senate Bill 11, seeks to address the emergency room boarding through greater state investment. It would put aside $10 million to mental health services, including more than $5 million to help hospitals build up designated receiving facilities to take in patients from emergency departments.

For the past few years, New Hampshire’s boarding crisis has exploded. In 2013, the state had an average of nine people in emergency rooms; in the past six years the number has quadrupled, according to Ken Norton, executive director of NAMI N.H., which tracks daily numbers of patients.

Much of the problem stems from a cataclysmic series of events from 2005 and 2013, as private and state-run hospitals lost psychiatric beds and some shut down entire units. Some of the losses happened gradually; others, like the closure of the inpatient psychiatric unit at Androscoggin Valley Hospital in 2007 or the shut down of Cheshire Medical Center’s unit in Keene, were abrupt.

Patients who in decades past had outlets for care near their communities were suddenly reliant on beds opening up at New Hampshire Hospital, which increasingly drew workforce support from Dartmouth-Hitchcock to meet the demand.

Then, in 2010, the Anna Philbrook Center – a psychiatric facility for children – closed, and 25 rooms in New Hampshire Hospital were designated for children. Suddenly a slowdown became a bottleneck.

“At the same time we really defunded … on the behavioral health side, and we also did not increase any funding for Medicaid services,” Sherman said in an interview Tuesday. “So what you have, you have like a perfect storm. You have decreased numbers of DRF beds, at the same time as you’re not helping with the preload and the afterload in the hospital.”

Legal uncertainty

The situation prompted the federal lawsuit last November by the American Civil Liberties Union of New Hampshire, which argues that involuntarily committed patients are not receiving due process due to the backlog, and that the state is in breach of its statutory obligations.

Under law, those patients must go from emergency departments to designated receiving facilities immediately and receive a hearing to contest their involuntary commitments within 72 hours. Patients stuck in the first phase are not getting that hearing, the ACLU says; the state’s Department of Health and Human Services argues that the 72-hour countdown doesn’t start until the patient finally gets to the DRF facility – sometimes weeks away – and that hospitals do not have the capability to carry out the kinds of hearings required.

For one thing, hospitals argue, many don’t have court facilities to even hold hearings – facilities that a DRF built under the new law could provide. But the ACLU has countered that hospitals practicing emergency room boarding could employ video conferencing, and argues the failure to provide the hearings is a violation of the Fourteenth Amendment and state statute.

“The State of New Hampshire has intentionally allowed a policy, practice, and/or custom to develop of failing to provide any procedural due process to individuals …” the lawsuit states, adding the practice is in violation RSA-C:31, I.

Up in the air after Tuesday’s signing: Whether the new reforms will alter the outcome of that lawsuit, in which state hospitals intervened last year to make its own argument against the state.

“I would like to hope it does,” Sen. Jeb Bradley, a Wolfeboro Republican who has championed SB 11, said in an interview Tuesday.

Sherman, agreed, saying whether or not the new DRF beds can be constructed immediately, the new facilities would eventually have the effect of allowing patients to be transferred out of emergency departments quickly, ideally negating the issue with 72-hour due process considerations.

“Any place that has DRFs also has the ability to have a hearing,” he said. But he added that SB 11 didn’t directly address the due process concerns specifically to allow the courts to weigh in.

“We deliberately did not want to put anybody in a position that might be changed by the findings of the lawsuit,” he said. “But once the court decides, then SB 11 says we have to move forward with that.”

Finding bidders

As the court procedures continue, a bigger question looms: Whether the new incentives will entice hospitals or providers to finally build the DRF beds, two years after no bidders emerged.

On this, both parties are more confident. “I think Sherman’s bill addressed all of (hospitals’) issues to a point that the Hospital Association feels that there will be bidders on the new beds that are funded in Sherman’s bill,” Bradley said, pointing to earlier complaints by hospitals about high workforce and capital costs that he said the bill addresses.

A statement Tuesday by Steve Ahnen, CEO of the of the New Hampshire Hospital, was slightly more cautious, calling SB 11 a “positive first step” but stopping short of guaranteeing bidders.

“We look forward to reviewing the RFP and sharing it with our hospital members in the coming weeks, and working with the administration and Legislature in our efforts to address the ongoing mental health crisis in New Hampshire,” Ahnen said, referring to the “request for proposals” set to be sent out by the Department of Health and Human Services for bidders for the beds.

But he also offered a warning that the mental health crisis was far from over. “The ED boarding crisis facing patients today is a symptom of a broader, systemic issue and one that will require a comprehensive approach: New Hampshire simply doesn’t have adequate resources to serve those suffering mental health issues,” Ahnen said.

(Ethan DeWitt can be reached at [email protected], 369-3307, or on Twitter at @edewittNH.)