This report was prepared in response to language in the 2024 Appropriation Act that requires the Office of the Executive Secretary to collaborate with the Department of Behavioral Health and Developmental Services to study existing statewide jail diversion programs and initiatives for individuals with serious mental illness in Virginia and other states, and the feasibility of implementing an expedited diversion to court-ordered treatment process to divert individuals with a serious mental illness to court-supervised mental health treatment. Item 31T of the 2024 Appropriation Act reads as follows:

The Office of the Executive Secretary of the Supreme Court (OES) shall contract with the National Center for State Courts (NCSC) and collaborate with the Department of Behavioral Health and Developmental Services (DBHDS) to study existing statewide jail diversion programs and initiatives for individuals with a serious mental illness in Virginia and other states, and the feasibility of implementing an expedited diversion to court-ordered treatment (EDCOT) process to divert individuals with a serious mental illness to court-supervised mental health treatment. In conducting such study, OES shall work with DBHDS to (i) identify existing statewide jail diversion programs and initiatives for individuals with a serious mental illness in Virginia and determine the scope and effectiveness of such programs and initiatives, including the populations served; (ii) assess in what ways and to what extent an EDCOT process could divert individuals with a serious mental illness who are not currently served by existing programs in Virginia; (iii) examine the operational, legal, funding, and other barriers identified by stakeholders that would be required to address EDCOT implementation; and (iv) determine the feasibility of implementing an EDCOT process or similar diversion program in Virginia to allow for diversion of individuals with a serious mental illness not currently served by existing statewide diversion programs. OES shall work with NCSC to evaluate whether other states use diversion best practices that could more effectively and efficiently serve individuals with a mental illness who could be diverted to mental health treatment through an EDCOT process, and who are not currently served by existing statewide diversion programs in the Commonwealth. OES and DBHDS shall provide ample opportunities for meaningful collaboration and cooperation with stakeholders impacted by the potential implementation of an EDCOT process and changes to diversion programs in Virginia. OES shall report on its findings to the Behavioral Health Commission by November 1, 2025.

In 2023, the Behavioral Health Commission (BHC) conducted a limited-scope study to identify factors that may be barriers to effectively implementing Expedited Diversion to Court-Ordered Treatment (EDCOT) in Virginia.(*1) As part of that limited-scope study, the BHC examined the concept of EDCOT as explained by Steven Hoge and Richard Bonnie in the Journal of the American Academy of Psychiatry and the Law,(*2) and legislation seeking to implement an EDCOT process introduced in the 2023 General Assembly Session.

The BHC limited-scope study identified challenges in implementing EDCOT and recommended further study of the feasibility of implementing EDCOT, and an evaluation of other state diversion programs.(*3) In the 2024 Appropriation Act, the General Assembly included language directing OES, in collaboration with DBHDS, to further study an EDCOT process. It additionally funded a study by NCSC of diversion practices in other states.
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(*1) House Bill 2339 and Senate Bill 1174 were introduced during the 2023 General Assembly Session. The bills created an expedited diversion to court ordered treatment process in lieu of a criminal adjudication. An amendment in the nature of a substitute was offered, however, the bills were tabled/passed by in the House Courts of Justice and Senate Judiciary Committees with a letter requesting that the Behavioral Health Commission study this issue.
(*2) Hoge, S. and Bonnie, R. (2021, November 4). Expedited Diversion of Criminal Defendants to Court-Ordered Treatment. The Journal of the American Academy of Psychiatry and the Law.
https://jaapl.org/content/jaapl/early/2021/10/05/JAAPL.210076-21.full.pdf
(*3) Behavioral Health Commission. (2023) Expedited diversion to court-ordered treatment. (Report Document Number 92). https://bhc.virginia.gov/documents/Expedited%20diversion%20to%20court-ordered%20treatment%20report.pdf