RD637 - Annual Report on the Implementation of 2014 Emergency Custody Order (ECO) and Temporary Detention Order (TDO) Law Change – June 30, 2022

Executive Summary:

In response to concerns regarding Virginia’s behavioral health crisis response system, the General Assembly enacted SB 260 in 2014 to ensure that every individual who met the criteria for temporary detention was provided access to inpatient psychiatric care. The new laws made sweeping changes in Virginia’s emergency custody order (ECO) and temporary detention order (TDO) laws. The new laws included changing the ECO timeframe to eight hours, creating the “Bed of Last Resort" requiring a state hospital to admit individuals under TDOs for whom no private bed was found during the ECO period, and updating other communication and notification requirements. Since the enactment of the new ECO and TDO laws, the Department of Behavioral Health and Developmental Services (DBHDS) partnered with stakeholders, including the community services boards (CSBs), state hospitals, private hospitals, magistrates, law enforcement, and others to monitor the requirements set forth in the ECO and TDO laws passed in 2014. An overview of the legislation can be found in Appendix A. The most salient impacts of the laws for Virginia’s behavioral health crisis response system are described below.

Rising State Hospital Admissions – Since the law changes in 2014, there has been a continual increase in the daily number of state hospital admissions of individuals under a TDO between FY 2013 and FY 2019, growing by 389 percent between during that time. This was specifically related to the Bed of Last Resort change. There was a slight decrease in state hospital TDO admissions in FY 2020 and FY 2021, with a more significant increase in FY 2022 as some state hospital beds were not operational due to COVID-19 and a state hospital staffing crisis.

State Hospital Bed Closures – In FY 2022, state hospitals experienced increased census and critical staffing shortages. The staffing shortages reached critical levels at the beginning of FY 2022, prompting a temporary admissions closure of five state hospitals while expediting appropriate discharges to move staff/patient ratios to safer levels. While all of these hospitals re-opened to limited admissions within about six weeks, currently 232 state hospital beds still remain offline due to a lack of sufficient direct care staff to operate them. There are 126 beds that have been safely reopened since the closure. At full capacity, the state hospitals have 1,380 adult and children’s beds.

TDO Admissions Delays – When no state bed is open for a Bed of Last Resort admission, the state hospitals do not deny the admission but the admission is delayed until a bed can be freed. In FY 2022, there were at least 7,242 patients who experienced this delay in admission. These patients waited an average of 43.2 hours for a bed. In 55 percent of these cases, a private bed was found for the patient before a state bed was made available.

Alternative Custody – Virginia law requires law enforcement to maintain custody during the ECO and TDO period except in cases when a Magistrate allows alternative transportation. When patients were waiting for a bed during times of delayed admission, so were law enforcement. During the 2022 General Assembly Session, DBHDS and the Administration worked with law enforcement to allow an alternative custody provider to relieve law enforcement and take custody of a person under a TDO. DBHDS also developed a new pilot opportunity to allow off-duty officers to accept custody of patients waiting for a state hospital TDO bed. In addition, the General Assembly required a workgroup to recommend more impactful and longer-term solutions to the custody problem. The workgroup started at the end of FY 2022.

Decreased Temporary Detention Orders – The number of temporary detention orders (TDOs) issued daily remained relatively stable over several years but decreased during the pandemic. The number of TDOs issued statewide also decreased during FY 2022. The reason for this change is currently unknown but is being monitored.

Decreased Evaluations – Following an initial increase in the second year, the average daily number of face-to-face evaluations completed by CSB emergency services clinicians for involuntary hospitalizations since FY 2016 has decreased steadily.