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Bills to ease strain on Virginia mental hospitals advance without ‘bed of last resort’ changes

Eastern State Hospital in Williamsburg is the largest of nine state-run psychiatric hospitals. (Photo courtesy of DBHDS)
Eastern State Hospital in Williamsburg is the largest of nine state-run psychiatric hospitals. (Photo courtesy of DBHDS)

As Virginia’s General Assembly clears the midpoint of its legislative session, lawmakers are backing several changes to help ease the strain on the state’s psychiatric hospital system but have shown reluctance to change its bed of last resort law. 

This story was reported and written by our media partner The Virginia Mercury

Virginia’s behavioral health system has faced steep challenges with overcrowding and understaffing in recent years, culminating in the state  temporarily closing five of its psychiatric hospitals to new admissions in July 2021. A  recent review by the Joint Legislative Audit and Review Commission found that while industry standards call for no more than 85% of staffed beds at psychiatric hospitals to be filled due to safety concerns, bed capacity at seven of the state’s nine psychiatric hospitals routinely exceeds 95%, with three operating at 100%. 

At the crossover deadline, when each chamber must complete work on its own legislation, four bills that would institute changes recommended by JLARC had passed their respective bodies unanimously. 

That includes  legislation from Sen. Barbara Favola, D-Arlington, that would classify state psychiatric hospital nurses working 36 hours per week as full-time employees with the option to work 12-hour shifts. While the healthcare industry typically operates on such a schedule, current state policy requires employees who work fewer than 40 hours per week to have their pay and benefits reduced proportionately. JLARC found that puts state hospitals “at a disadvantage in competing against other employers.” One state hospital chief nurse executive told the commission the facility’s inability to only offer 12-hour shifts “has been a deal breaker for some of the people we offer positions to.” 

The 36-hour schedule is “a desirable work arrangement for many nurses, and it will help us to actually retain the ones we have and, perhaps, recruit,” Favola told a Senate committee this January.

bill from Del. Vivian Watts, D-Fairfax, would exclude behaviors and symptoms linked to neurocognitive and neurodevelopmental disorders from the definition of mental illness used by the state as the basis for involuntarily detaining people for their own and others’ safety. Watts has said the change would make sure patients with disorders like autism or dementia don’t end up in state psychiatric hospitals, where their needs might not be best met and where they take up valuable bed space. 

About half of all admissions to state hospitals are patients under a temporary detention order, who are involuntarily committed after officials determine they are “substantially likely” to pose an imminent risk to themselves or others. 

JLARC found that in fiscal year 2023, about 10% of all TDO patients who were discharged from state hospitals had a neurocognitive or neurodevelopmental disorder as their primary diagnosis.

“While not a large percentage of state hospital patients, these patients stay for relatively long periods of time, reducing hospitals’ capacity,” the commission wrote.

Finally, i dentical  bills from Del. Patrick Hope, D-Arlington, and Favola would direct the Office of the State Inspector General to develop and submit a plan to fully investigate complaints that contain serious allegations of abuse, neglect or inadequate care at any state psychiatric hospital.

Bed of last resort and drop-offs

Despite legislators’ embrace of some of JLARC’s recommendations, they have shown reluctance to adopt others, particularly those that would change Virginia’s decade-old “bed of law resort” law, which the report indicates is the main driver in hospital overcrowding. That law requires state psychiatric hospitals to admit any patient under a TDO if a bed cannot be found in a private hospital. These individuals are often “dropped off” to state hospitals by law enforcement. 

One bill from Del. Sam Rasoul, D-Roanoke, that would let state hospitals delay admission of TDO patients until the facility determines they don’t have “potentially life-threatening medical needs” died on the House floor this week.

Rasoul told the House Committee on Health and Human Services this month that current law requires state psychiatric hospitals to admit TDO patients even if they’re experiencing a medical emergency. That’s despite the fact, he said, that state psychiatric hospitals are not equipped to treat most non-behavioral medical problems.

Among the situations highlighted by JLARC in its recent report were drop-offs of patients with gunshot wounds, in the throes of alcohol withdrawal and suffering from internal bleeding.

“These admissions put the state at a huge medical liability, and at some point, someone is going to die due to negligence of this,” one psychiatric hospital staffer told the commission.

Although Attorney General Jason Miyares issued an  official opinion in January 2023 that drop-offs are illegal under Virginia law, JLARC found that between the issuance of the opinion and August 2023, police dropped off an additional 452 people at state hospitals.

Rasoul told the House Tuesday he had received an email from Gov. Glenn Youngkin’s administration this week saying Virginia is on pace for a “record number of these illegal drop-offs.”

“The problem is that the people that this bill in particular impacts, they don’t have a big association,” he said. “They don’t really have a strong voice to be able to text or email or call us. These are the most vulnerable in society saying, ‘Please do not drop us off some place that may not be able to care for us.’”

Tracey Smith with JLARC told the House Behavioral Health Subcommittee earlier this month that “drop-offs strain the already maxed-out capacity of state hospitals, but even more seriously, they put the TDO patient’s health and safety at risk.” 

“It’s very important to understand that our state psychiatric hospitals are genuinely not equipped to handle the serious medical emergencies like the general hospitals are,” Smith said. “This is a widespread misunderstanding.”

Colleen Miller with the disAbility Law Center told the House subcommittee that passing Rasoul’s bill could be the “most lifesaving measure you could take on this year.”

However, some lawmakers had reservations about the bill.

Del. Bobby Orrock, R-Spotsylvania, who also serves on JLARC, said he was concerned the bill would further tie up law enforcement time in waiting with patients. Instead, he said, legislators should come up with a more efficient process. 

If the bill passes, said Orrock, then this July, “this has to become the process, and buckle up buttercup, here it’s coming — local law enforcement, local EMS, everyone else — get ready, this is coming to you without any real ramp-up time.”

Hope, who also sits on the Behavioral Health Commission, echoed similar concerns in the House committee, although he said he’d support the bill with reservations. 

“I do think we should give it time to let this process play out,” Hope said. “We need to watch this carefully.”

Rasoul requested his bill be passed by the day Tuesday, effectively killing the legislation. 

“I hope in the off-season we will be able … to take a good look at the bed of last resort and our broken system,” he said.