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The General Assembly's response: 2014 amendments to mental health law.

A. Overview of Mental Health Legislation-2014.

Several major bills in the Senate and House were passed by the 2014 General Assembly to address key problems highlighted by the Deeds tragedy.

Those bills included:

Senate Bill 260, lengthening ECO and TDO time periods and procedures, and directing establishment of an acute psychiatric bed registry by DBHDS;

Senate Bill 439, also lengthening the ECO and TDO time periods, and requiring local CSBs to acknowledge receipt of mandatory outpatient treatment orders and transfer of persons subject to those orders to another CSB;

Senate Bill 576 (identical to House Bill 743), requiring the prompt filing in the court and forwarding to the Virginia State Police Central Criminal Records Exchange all commitment related orders affecting persons' rights in regard to firearms;

House Bill 293, providing procedures for assuring a facility placement for persons who are subject to an ECO and meet the criteria for a TDO;

House Bill 323, increasing a magistrate's options for a transportation order for persons under a TDO;

House Bill 478, lengthening ECO and TDO time periods, providing notice to the CSB when an ECO is executed, requiring rights notification to the person involved, and directing a study on reducing the burden on law enforcement in commitment cases; and

House Bill 1172, providing a procedure for persons in a facility under a TDO to be transferred to another facility prior to their commitment hearings.

Together, these bills resulted in the following changes in Virginia law related to mental health crisis response:

1. Time period for the Emergency Custody Order (ECO)

Before: 4 hours, with magistrate having discretion to grant a 2 hour extension

Now: 8 hours, with no extension [see [section][section]16.1-340G, H and K(minors), 37.2-808G, H, and K (adults)]

2. Notification to the CSB evaluator that the ECO has been executed and the person is in custody for evaluation

Before: The Virginia Code had no specific provision for notifying the CSB evaluator

Now: Law enforcement must notify the closest CSB when an ECO has been executed and where the person needing evaluation is located. [see [section][section]16.1-340I (minors) and 37.2-808J (adults)]

3. Assurance that a person held under and ECO and found by the CSB evaluator and the magistrate to meet the criteria for a TDO will be psychiatrically hospitalized under a TDO before the ECO expires

Before: No such assurance. A TDO could not be entered until the magistrate could identify in the TDO the hospital in which the person would be detained pending the involuntary commitment hearing. The CSB evaluator had to find a private or state psychiatric facility that would accept the person's placement under a TDO. There was no state statutory requirement that either a private or state hospital accept the person. If the ECO period (4 hours, plus a possible 2 hour extension) expired before a willing hospital could be found, the person could no longer be held, as the ECO could not be renewed.

Now: Assurance of hospital placement is provided. It is still the case that a TDO cannot be entered until the hospital in which the person will be detained can be identified in the order. However, Virginia law now provides that state mental health facilities cannot refuse the admission of a person held under an ECO when an alternative facility cannot be found and the ECO period is expiring. There are no exceptions to this requirement. However, both the state facility and the CSB can continue to search for another willing facility for up to 4 hours after the expiration of the ECO. [see [section]16.1-341D (for minors), and 37.2-809.1 (adults)]. (Note: as discussed below, there is a separate authorization in the newly amended Section 37.2-809(E) for the transfer of a person from the initial TDO facility to an "alternative" facility at any time during the TDO period, based upon specified criteria.)

4. The process for finding a psychiatric facility to accept a person under a TDO

Before: Normally, CSB emergency evaluators had to contact psychiatric facilities by phone, usually starting with those located in their jurisdiction and region and sometimes extending statewide, in an effort to find a willing facility. State facilities were under no state statutory obligation to provide a bed. Although DBHDS was in the process of developing a real-time web-based hospital bed registry to ease the search for beds by CSB evaluators, that registry was not online by the time of the 2014 General Assembly session. As discussed in the coverage of the Governor's Task Force below, in a small percentage of cases, CSB evaluators were unable to find a bed for individuals within the ECO period. Some of those individuals cooperated with the CSB evaluator and remained available for hospitalization under a TDO even after the ECO had expired, and eventually were hospitalized under a TDO despite the lapse of the ECO. However, others, like Gus Deeds, declined to cooperate, did not remain available, and were not hospitalized.

Now:

a. Bed Registry : A web-based Acute Psychiatric Bed Registry is now a requirement of state law under the new Section 37.2-308.1 to the Virginia Code. The law requires "real time" updates from all participating facilities, both private and public. Facilities can post descriptive information such as populations served and the limitations of the facilities' services and capacities. Community services boards, inpatient psychiatric facilities, public and private residential crisis stabilization units, and health care providers working in an emergency room of a hospital or clinic, or other facility rendering emergency medical care can access the bed registry.

b. Notice to the State Facility: Upon receiving notification of the need for an evaluation under an ECO, the CSB is required to contact the state facility serving the area to inform them that the individual will be transported to their facility upon the issuance of a TDO if an alternative facility cannot be identified by the expiration of the 8 hour ECO period. Once the evaluation is done, the CSB must give information about the individual to the state facility so it can determine the services the individual will need if admitted there. The state facility may search on its own for an alternative facility, including another state facility, for placement under a TDO. If it succeeds in finding an alternative facility, the state facility notifies the CSB, which then designates the alternative facility on the preadmission screening report. [see [section][section]16.1-340.1.D. and 16.1-340.1:1 (minors), and [section][section] 37.2-809E and 37.2-809.1 (adults)]. Even if the ECO period ends and the state facility must accept an individual under a TDO, the state facility and the CSB may continue to seek an alternative temporary detention facility for an additional 4 hours following admission. [see [section][section]16.1-340M (minors) and 37.2-808N (adults), both of which are currently set to expire on June 30, 2018].

c. Transfer to an alternative willing facility even after initial TDO placement in a facility: Section 37.2-809(E) authorizes transfer of a person to an alternative willing facility at any time during the TDO period "if it is determined that the alternative facility is a more appropriate facility for temporary detention of the individual given the specific security, medical, or behavioral health needs of the person." The CSB must provide notice to the court clerk of the name and address of the alternative facility and must include that information in the preadmission screening report that is submitted to the special justice at the involuntary commitment hearing.

5. The maximum TDO period pending the involuntary commitment hearing

Before: 48 hours for adults (or next business day for weekends and holidays); for juveniles, it was, and remains, 96 hours

Now: 72 hours for adults (or next business day for weekends and holidays) [see [section]37.2-814)1

6. Notification of Rights

Before: There was no specific provision in the Virginia Code to ensure that a person subject to a detention and commitment process was informed about the nature of that process and the person's rights within it.

Now: An adult taken into emergency custody or temporary detention must be given a written explanation of the process and the statutory protections for the individual that are associated with that process [see [section][section]37.2-808L and 37.2-809E1.

7. Transportation to carry out TDO

Before: A magistrate had to designate the law enforcement agency in the jurisdiction where a person under a TDO was residing to transport that person to a facility under a TDO. The only exception was when the "nearest boundary of the jurisdiction" in which that person was residing was "more than 50 miles from the nearest boundary of the jurisdiction in which the person is located" (emphasis added) In that case, the magistrate could designate the law enforcement agency in the jurisdiction in which the person was located to transport the person.

Now: The magistrate has the additional option of designating "any other willing law enforcement agency that has agreed to provide transportation." [see Section 37.2-8101.

8. Commitment Hearing and Gun Ownership

Before: Virginia Code Section 18.2-308.1:3 prohibits a person from purchasing possessing or transporting a firearm if that person was involuntarily committed to a psychiatric hospital or was subject to a TDO and then voluntarily entered a psychiatric hospital. Virginia Code Section 37.2814B required the special justice to advise a person at the beginning of a commitment hearing that he or she had the right to apply for voluntary admission but that to do so meant the person would be prohibited from possessing or purchasing a firearm. The code section did not mention the prohibition on transporting a firearm.

Now: The special justice is now required to inform the person that the person (if he or she has the capacity) has the right to apply for voluntary admission but that, if the person chooses to be voluntarily admitted, the person will be prohibited from possessing, purchasing or transporting a firearm [see Section 37.2-814B1.

9. Mandatory Outpatient Treatment (MOT)

Monitoring CSB acknowledges receipt of MOT order

Before: Section 37.2-817I required a local CSB responsible for monitoring a person who was under a Mandatory Outpatient Treatment (MOT) order to acknowledge that it had received a copy of the MOT order, but the code did not require that the acknowledgement occur within any specific time frame.

Now: The CSB ordered to provide monitoring under an MOT order must now acknowledge receipt of the MOT order within five business days of receiving it.

CSB transfer of monitoring responsibility when person moves

Before: Section 37.2-817J required that, when a person who was being monitored by a local CSB under a mandatory outpatient commitment order, the CSB remained responsible for such monitoring even after the person moved to a locality that was served by another CSB, until the CSB in the person's new locality acknowledged (1) the transfer of monitoring responsibilities to it, and (2) receipt of the order of transfer from the person's original committing court. The statute did not require that this acknowledgement occur within any specific time frame.

Now: A CSB receiving a transfer of MOT supervision from another CSB is now required to acknowledge the transfer of monitoring and receipt of the court order within 5 business days [see Section 37.2-817J].

10. Filing Commitment Orders with the Clerk of the Court

Before: Virginia Code Section 37.2-819 required court clerks to promptly forward to the CCRE both commitment orders and certifications of voluntary hospitalization by persons who were the subjects of TDOs. However, this section did not create any obligation on the special justices or judges to get these documents to the court clerks within any period of time.

Now: A judge or special justice must now file with the clerk commitment orders for involuntary admission and mandatory outpatient treatment, and documentation of voluntary admissions after a TDO, as soon as practicable but no later than the close of business on the next business day following completion of the hearing [see Section 37.2-819].

11. Annual Report by DBHDS

DBHDS must submit a report by June 30 of each year to the Governor and Chairmen of House Appropriations and Senate Finance "on the implementation" of Senate Bill 260. The information in the annual report must include:

* Number of notifications of individuals in need of facility services by CSBs,

* Number of alternative facilities contacted by CSBs and state facilities, and

* Number of temporary detentions provided by state facilities and alternative facilities, the lengths of stay, and the cost of the detentions.

B. Ongoing Studies Mandated by the 2014 General Assembly

1. On the role of law enforcement in the involuntary commitment process

Both Senate Bill 260 and House Bill 478 direct the Governor's Task Force on Improving Mental Health Services and Crisis Response (discussed below) to do the following by October 1, 2014:

a. "identify and examine issues related to the use of law enforcement in the involuntary admission process", and

b. "consider options to reduce the amount of resources needed to detain individuals during the emergency custody order period, including the amount of time spent providing transportation throughout the admission process."

Options to include:

(i) developing crisis stabilization units in all regions of the Commonwealth, and

(ii) contracting for retired officers to provide needed transportation.

2. On CSB evaluators

Both Senate Bill 261 and House Bill 1216 require DBHDS to:

a. "review the requirements related to qualifications, training, and oversight of' CSB evaluators of persons held under ECOs,

b. "make recommendations for increasing qualifications, training, and oversight" of those evaluators, and

c. report its findings to the Governor and General Assembly by December 1, 2014.

3. On the entire mental health services system in Virginia

Senate Joint Resolution No. 47 (SJ 47) establishes a joint subcommittee "to study mental health services in Virginia in the twenty-first century." The subcommittee, consisting of 5 members of the Senate and 7 members of the House of Delegates, was tasked to do the following:

a. Review and coordinate with the work of the Governor's Task Force on Improving Mental Health Services and Crisis Response (discussed below).

b. Review the state laws governing the provision of mental health services, including civil commitment laws.

c. Assess the systems of publicly funded mental health services, including emergency, forensic, and longterm, and services in jails and juvenile detention facilities.

d. Identify gaps in services and types of facilities and programs needed for mental health care in this century.

e. Recommend statutory or regulatory changes needed to improve access to services, quality of services, and outcomes for individuals.

Some key Senate Joint Resolution 47 findings:

Inadequate community resources: The Resolution is notable in acknowledging that, despite Virginia's long-term commitment to community-based care and access to emergency mental health services "without delay", the resources available to localities to realize that commitment have not kept pace with demand, while, at the same time, the number of state psychiatric hospital beds available to treat people has continued to shrink, leaving gaps in services that have not been filled by either the private or public sector.

Incarceration vs. treatment of people with mental illness: The Resolution is also notable for acknowledging that "a significant number of persons with mental illness commit various offenses, in many cases minor, nonviolent offenses, and are arrested by law-enforcement officers, brought before the courts, and held in jails or juvenile detention facilities rather than being provided with the necessary treatment in the most appropriate setting in order to prevent their entry into the criminal justice system." In addition, it notes that the Commonwealth has provided financial incentives to localities to build jails and juvenile detention centers, while it has provided no similar incentives for the construction of facilities to treat persons with mental illness, and that other regulatory requirements and financial incentives may have created the unintended consequence of increasing the involvement of people with mental illness in the criminal justice system.

The SJ 47 joint subcommittee's work is intended to be comprehensive, with the committee submitting an Interim report by December 1, 2015, and a final report by December 1, 2017. The joint subcommittee has met four times, either as a body or through one of its three workgroups (Crisis Intervention, Continuum of Care, and Special Populations), with the most recent meeting being on December 16, 2014, when it reviewed and approved the recommendations of the Governor's Task Force on Improving Mental Health Services and Crisis Response (discussed below). The agendas, materials and minutes of the joint subcommittee are being maintained by the Division of Legislative Services, which is providing support functions for the subcommittee. Those materials, which can be found on this DLS page, are full of excellent information, and will be reviewed in a future issue of the DMHL.
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Title Annotation:Virginia
Publication:Developments in Mental Health Law
Date:Dec 1, 2014
Words:2811
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