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In the language of state agencies, it’s “loss of custody.” In the vernacular of medical staff, it’s being “street-ed.” Both refer to when an emergency medical department is unable to stop a patient deemed a threat to themselves or others from leaving the facility before receiving proper treatment.
Whatever you call it, in Virginia, it’s happening more frequently.
Data obtained from the state Department of Behavioral Health and Developmental Services shows the number of loss of custody events has nearly tripled since 2020, with 139 statewide for fiscal year 2022. In addition, last year 460 people under a temporary detention order (TDO) — a legal document signed by a magistrate that authorizes a person’s involuntary detention for mental health evaluation — were not admitted to state hospitals due to paperwork issues after being dropped off there by law enforcement.
“We all know there’s a crisis, but not everybody knows the extent of it,” said Ryan Dudley, crisis services director at the Hampton-Newport News Community Services Board, the second largest of Virginia’s regional boards charged with providing behavioral health services at the local level.
The figures reveal that even as the state is struggling to stabilize its beleaguered behavioral health system, long wait times for beds are allowing hundreds of Virginians in need of crisis-related mental health services to fall through the cracks.
State officials have taken notice. At the end of last year, Gov. Glenn Youngkin announced the formation of a “Prompt Placement Task Force” focused on reducing wait times for beds. Budget amendments proposed by the governor this December as part of his “Right Help, Right Now” plan to overhaul the state’s behavioral health system include funding for alternative medical facilities like crisis receiving centers and mobile crisis units aimed at bringing support closer to home. But with no budget compromise between Democrats and Republicans in the legislature, that investment is on hold.
While medical staff and mental health advocates are cautiously optimistic about the task force’s progress and the promised funding, in the meantime they continue to grapple with the chaos created by unintended consequences of state law.
“It is very frustrating,” said Hampton-Newport News CSB Deputy Executive Director Daphne Cunningham. “More so for the people who have to navigate it because they just don’t see that light at the end of the tunnel.”
Bed of last resort
Many of the cases where people in need of crisis-related behavioral health treatment are slipping out of the safety net can be traced back to the state’s 2014 “bed of last resort” law.
In Virginia, TDOs last 72 hours and were designed to give medical staff enough time to find a bed so the patient can be committed to a psychiatric hospital. That has not always been enough time, as was the case in 2013 when a bed couldn’t be found for 24-year-old Gus Deeds, who was released from a facility where he had been detained and shortly after stabbed his father, Sen. Creigh Deeds, D-Charlottesville, before committing suicide. Following this tragedy, Deeds sponsored a bill, passed in 2014, that sought to make changes to the process to ensure that there would always be a psychiatric bed for someone who needed one.
Known as the “bed of last resort” law, the legislation mandated that state hospitals had to admit patients who had been placed under a TDO if a bed at a private psychiatric hospital could not be found. The shortage of beds in the private sector quickly became clear as the number of TDO admissions jumped from 2,192 in 2015 to 6,649 in 2019. During the same period, the percentage of TDO patients taken by state hospitals climbed from 8.8% to 23.9%, leading some in the field to unofficially rename the law “bed of first resort.”
Then the COVID-19 pandemic happened, and cracks in the psychiatric care system widened. Quarantine requirements limited the number of available beds further. Existing hospital staffing shortages got worse. In July 2021, the situation had gotten so dire that the state closed five of its mental health hospitals to new admissions.
Some of the changes instituted during the pandemic remain in place. Commitment hearings, which must occur within the 72-hour TDO period and pre-pandemic were typically held in person at the hospital where the patient was being admitted, now occur in emergency departments, often via Zoom call. CSB staff, who previously would only testify at those hearings, have now taken on the responsibility of facilitating them.
“[There’s] not a clear definition of where the CSB role ends and where the state hospitals should pick up,” Cunningham said. “At the time of that legislation, there was no real next step of what happens if that bed of last resort isn’t there.”
The lack of psychiatric beds has made both private and state hospitals strict about who they choose to admit. An individual can be denied a bed based on the severity of their crisis, their history or other medical complications. Even when the patient is committed, there can be long wait times while a bed is located, from several hours to days, according to DBHDS communications director Lauren Cunningham, who is not related to Daphne Cunningham.
“When admissions are delayed, all parties involved in the civil commitment process are negatively impacted,” Cunningham with DBHDS said in an email, “including the individual who is experiencing a mental health crisis who typically is not receiving any treatment during this time.”
It is this delay that opens the window for patients to leave the facility before being committed.
Law enforcement’s role
By law, a police officer is required to monitor a patient under a TDO while the order is active, even up to the point of handcuffing them. But once the order expires after 72 hours, the officers return to other duties, and emergency department staff become responsible for holding the patient until he or she can be transferred to the state hospital.
Colonial Heights Police Chief William Anspach said that from 2019 to 2022, the total number of hours his officers spent waiting with patients under a TDO rose from 41 days to 103 days.
“It’s just not healthy to sit there in handcuffs for that long,” Anspach said. “It’s not healthy for the officer [either].”
While some TDOs are placed on people who have been charged with a crime, the majority are civil cases. That has given rise to some concerns over civil rights: In 2021, Del. Mike Cherry, R-Colonial Heights, proposed a bill that would have removed law enforcement from the TDO process. The measure did not make it out of committee, because some lawmakers argued that without law enforcement, more patients would “elope” and pose a danger to themselves or others.
“There’s just got to be a way we can all look at this and say when someone’s having a mental health crisis, they’re not a criminal,” Cherry said.
Without police or some other form of security present, however, many hospital and mental health workers say forcing the patient to continue waiting for a bed after the TDO expires is a struggle. Emergency departments can be noisy and turbulent environments and are not places where someone experiencing a mental health crisis often wants to stay.
Will Armstrong, a former emergency services coordinator at Colonial Behavioral Health, the community services board in the Williamsburg area, said that while CSB staff can call the magistrate who issued the TDO and request another, such asks are not often granted. That forces staff to continue their search for a bed using what he described as an outdated process that relies mainly on making phone calls or even sending faxes.
“Some people have called us bed brokers,” Armstrong said. “That’s the part of the job that’s burning people out.”
It is possible for patients to receive some treatment at the emergency department, and some are cleared for release after their hearing. But even that procedure can be chaotic. One person who was under a TDO this year and asked to remain anonymous said the clinic where he was detained had no discharge plan to outline what would happen when the TDO was up.
While he was fortunate to have someone he knew pick him up after he was released, he said other TDO patients at the clinic were not as lucky and were only given bags to put their belongings in before exiting.
“[There’s] certainly no care as to what happens to those people at the end of the TDO,” he said.
Complicating discharges even further is the fact that people under TDOs may be transported long distances to hospitals. Albemarle County Sheriff Chan Bryant said patients under her custody are often taken to places like Western State Hospital in Staunton, with no procedures in place to ensure their safe return.
“We’re taking these people out of the community and out of their support system and sending them five hours away and saying, ‘All right, good luck getting back,’” she said.
Earlier this year, Bryant requested an opinion from Virginia Attorney General Jason Miyares on law enforcement’s role relating to temporary detention. Miyares defended the current law.
“Law enforcement must execute the order without delay and maintain custody of the individual until custody is accepted by the temporary detention facility,” Miyares wrote. “Further, the law does not permit law enforcement to transfer an individual under a TDO to the facility of temporary detention unless the facility accepts custody of the individual for admission. Finally, it is my opinion that there is no legal authority for law enforcement to continue custody of an individual pursuant to a TDO beyond the length of time specified” in state code.
Dudley of the Hampton-Newport News CSB said stories like this can be disheartening for CSB staff, who are forced to come up with workarounds on a daily basis.
“We’ve taken on challenges that weren’t necessarily meant for the CSB to take on. The impact this has on us delivering other services is also significant,” he said. “We want a predictable process.”
Light at the end of the tunnel?
It is difficult to measure the exact steps the Prompt Placement Task Force has taken to overhaul the TDO process, because the governor’s office and the leader of the initiative, Janet Kelly, did not respond to multiple requests for further details. However, several people working with the task force offered insight into its workings.
Julian Walker, vice president of communications for the Virginia Hospital and Healthcare Association, said his organization has been engaged with the task force and supports the funding proposal the governor put forward in December.
“Our hospitals have added hundreds of behavioral health beds in the last several years,” Walker said. However, he continued, “different beds and different facilities are going to have different capabilities and different capacities to treat patients with specific needs.”
Cunningham said DBHDS has also been working with the task force “to ensure that individuals experiencing a mental health crisis are receiving the right help they need, right when they need it, while also reducing the burden on law enforcement, emergency departments, and other community partners who are working to ensure these individuals are safe until a bed can be found for them.”
There are not enough places in Virginia for people experiencing mental health crises to go when they need help, said Mental Health America of Virginia Executive Director Bruce Cruzer, but there are options for support. He encourages those in crisis to call the 988 “warm” line to talk to someone who can help.
“Everything really starts with de-stigmatizing mental health so that everyone sees it as part of health,” Cruze said. “If that’s the case, then when people aren’t feeling well mentally or emotionally, they’re going to talk about it, and then they’re more likely to ask for help and then get the help they need.”
Today, the high number of loss of custody events in the Virginia behavioral health system shows that many undergoing acute mental health crises are not receiving the timely aid they need. Plans are in the works to fill the gaps, but in the meantime health care professionals like Armstrong worry that without more resources, the risk of another tragedy will rise.
“I’m surprised there haven’t been more critical incidents,” Armstrong said.
