Proposal would change ER hold rules for mental health patients

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Commissioner Lori Shibinette said the department’s proposed “medical protective custody” law will address long waits in emergency departments by diverting people who do not require involuntary hospitalization to lower-level, more appropriate care. (Susan J. Demas | Michigan Advance)

The Department of Health and Human Services proposed last-minute legislation Friday that would allow hospitals – in addition to the state – to detain mental health patients in their emergency rooms for up to three days to determine whether they could be treated without an involuntary admission to the state hospital.

Hospitals, which like other mental health advocates say they were not consulted, fear the proposal would perpetuate long emergency room waits and make them a party to the boarding crisis the state Supreme Court recently called unlawful

“(It) essentially continues the practice of allowing patients suffering an acute psychiatric crisis to be held in hospital emergency departments while awaiting transfer to New Hampshire Hospital or other facility appropriate for their care,” said Steve Ahnen, president and CEO of New Hampshire Hospital Association.

The proposed legislation was pitched to the Senate as an amendment to the budget, which is being voted on Thursday. The Senate ruled out that option and is reportedly considering bringing it up for discussion by attaching it to an unrelated bill set aside for possible reconsideration. Two-thirds of the Senate and House would have to agree to suspend the rules to do so.

No one could be reached at the Senate this week to comment on next steps for the proposal.

Commissioner Lori Shibinette said the department’s proposed “medical protective custody” law will address long waits in emergency departments by diverting people who do not require involuntary hospitalization to lower-level, more appropriate care. People whose mental health issues are tangled up with substance misuse may need only rehab, she said. Individuals suffering from dementia may do well in a long-term facility or at home with assistance and not need an involuntary admission.

“I think everybody can agree that having an (involuntary emergency admission) alternative is a good thing,” she said. 

Shibinette said during her time as CEO of New Hampshire Hospital, 40 percent of petitions seeking involuntary commitments were rescinded once health care providers had time to determine the person did not require involuntary hospitalization. According to 2020 court records, nearly 476 of the 1,965 involuntary emergency admission petitions filed that year did not lead to hospitalization because they were withdrawn, dismissed, or did not demonstrate probable cause for ongoing detainment.

The problem, Shibinette said, is that current law gives hospitals only one option – an involuntary emergency admission petition – to detain someone against their will for further evaluation. The proposed medical protective custody law would create a second option that does not automatically lead to involuntary hospitalization, she said.

“It’s a big deal to have an involuntary commitment to a psychiatric hospital, and that should be the last step in the process,” she said. 

Although the drafted language on the department’s website does not describe the process in such detail, DHHS spokesman Jake Leon said the proposed legislation would allow a “qualified medical provider” to hold someone for up to three days for treatment if they are a danger to themselves or others. The person would have the right to request a records review and challenge their detainment within 24 hours, according to the proposal. DHHS would have to perform the review within 24 hours, excluding Sundays and holidays. The person could remain in custody only if the department determined it was justified under the law. Otherwise the person would have to be released within three days of their arrival at the emergency department.

A few things remain unclear. Under the involuntary emergency admission process, a judge, not the department, reviews the case and decides whether there is probable cause to continue detainment. And, the language does not address the possibility hospitals will be unable to quickly find community treatment options like mental health counseling, safe housing, an opening in a rehab facility, or a bed in a long-term care setting. Those resources, like psychiatric beds, are limited and not meeting the need. The state is in the process of expanding community treatment options but doesn’t expect to have them in place for at least a few months.

In the Supreme Court case, NAMI New Hampshire joined the hospitals and the ACLU of New Hampshire in calling for an end to detaining people against their will for days without a due process hearing. Executive Director Ken Norton said that while people shouldn’t be held without a chance to challenge their detainment, they should also not be released just to meet a deadline if they need treatment. “We don’t want to see people being released because of a failure to comply with (the court ruling),” he said.

Shibinette said the state has interest or commitments from hospitals to add 25 in-patient psychiatric treatment beds. The state recently announced it would offer hospitals $200,000 annually for each bed it offered, nearly double what it offered previously. Long-term care facilities have agreed to provide another 25 beds for psychiatric care, again after the state significantly increased its payments.

By the end of the year, Shibinette expects to have doubled the number of community treatment programs, increased the number of transitional beds in local communities, and started the mobile crisis response team, she said. The state is also talking with neighboring states about providing short-term children’s services. 

There has already been a significant drop in the number of adults being held in emergency rooms for psychiatric treatment. Thanks primarily to newly available beds in long-term care facilities, as of Wednesday there were three adults in emergency rooms. Two weeks ago, there were 33. The number of children waiting for voluntary admissions, meaning they are not being detained against their will, has jumped in that time, from 25 to 36. 

Shibinette said the drop in the adult waitlist puts the state in compliance with the Supreme Court order that prohibits the department from boarding people in emergency rooms for days without a due process hearing.

Shibinette said the state shares responsibility for providing mental health care, but is not solely responsible. “It’s everybody’s responsibility,” she said. 

The department’s proposed law change concerns not only the hospitals but also mental health advocates like Norton.

“I didn’t know anything about it when I was alerted during the weekend,” he said. “And I still don’t know the thinking behind it.” Like Ahnen of the hospital association, Norton isn’t convinced this will get people treatment quickly or spare them long waits in emergency rooms. 

“The reality is that most hospitals don’t have the capability to provide anything other than minimal treatment,” he said. “We are not supportive of this medical protection suggestion. However, we might be willing if it were short-term and there were some specific goal that had to be achieved. If it were going to prevent harm from coming to people, perhaps we could be supportive of it.”

The state’s 10 community mental health centers, which contract with the state to provide low-cost mental health services, are concerned with another piece of the proposed legislation. It would allow the state to bring in private companies to join nonprofits in providing community mental health services. Roland Lamy, of the New Hampshire Community Behavioral Health Association, is worried doing so will lead to unintended consequences.

“This would further fragment care in each of our regions and potentially exacerbate our workforce issue if an external private entity came to do only certain services and hired our staff,” Lamy said. “Today the (community mental health centers) do a broad array of services and often subsidize services they provide because of many unfunded mandates. If a private entity does not have to meet all the conditions of a community mental health center but would be allowed to pick and choose what services they have interest in, it may jeopardize the system of care and create other downstream impacts to this important safety net provider in each region.”

Shibinette said all mental health providers who contract with the state, including private providers, will be held to the same rules.