Jim: Okay, what does that other guy always say? I always need to look it up, what does the Radiolab guy say?
Jesse: What? Which one? Which Radiolab guy?
Jim: What does he say?
Jesse: Which one? There's more than one, you know there's more than one, right?
Jim: What if you said like, I'm Jesse Megan, and I said, and I'm Jim McQuaid.
Jesse:Ah, okay, I get it now. Sure we can do that, uh, Hi, I'm Jesse Mangan.
Jim: This is Jim McQuaid. No, don't use that one, that one's stupid. Can you say that again? Can you say it as if I'm responding to you?
Jesse: Uh huh, sure. Hi, I'm Jesse Mangan.
Jim: This is Jim McQuaid, I'm excited to be here, no, no I'm not. That's a lie.
Jesse: What?! Jim, you've ruined it, you've ruined the intro.
(laughter)
Jesse: I hope you're happy with yourself.
(laughter)
Jesse: Let's just go to the music.
(intro music from Reasonable by Christopher G. Brown)
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Jim McQuaid.
Jim: I'm Jim McQuaid, co-producer at Committable.
Jesse: And for this season we are going state by state to look at mental health laws throughout the US. In this episode, we are going to be talking about mental health laws in Virginia and to learn more about those laws I spoke with Ren Faszewski.
Ren Faszewski: Hi, my name is Ren Faszewski. I am a disability rights advocate with the Disability Law Center of Virginia. DLCV is the Protection and Advocacy Agency for the Commonwealth of Virginia. P&As are a federally mandated agency, every state has one, and we are tasked with protecting individuals with disabilities in their communities and ensuring their rights. This of course has a huge scope, this can go from special education, community accessibility, and all the way to institutional settings. My background specifically, I am on the Institutional Rights Unit, so we work in state operated hospitals, private hospitals, correctional facilities, assisted living facilities, and nursing homes.
Jesse: What is the mental health law in Virginia called?
Ren Faszewski: In the state of Virginia we have what's called the ECO, that is an Emergency Custody Order. Typically it’s issued by a magistrate and the ECO allows the police to detain a person in a psychiatric crisis and transport them to either an emergency room, or sometimes a CSB, to have an evaluation to determine what scope of services that person needs. This can happen where a loved one, or someone in the community, can go to the magistrate, present the evidence that this person needs to be taken for an evaluation, and the magistrate would issue that order. But law enforcement also have the ability to initiate what's called a paperless ECO. That means based on their professional judgment they feel that this person needs a psychiatric evaluation, so they initiate it on the spot and then later they would do the paperwork to get the approval from the magistrate. But there is criteria you have to meet; you have to have a mental illness, there has to be a substantial likelihood that as a result of that mental illness, that you would be at risk of causing serious harm to yourself or others, or serious harm due to a lack of capacity to care for yourself. So there are standards that need to be met in order to initiate that ECO order.
The E C O tends to be very common in these situations but to get an evaluation, what we call a pre-screening, you do not have to initiate an ECO. Again, if you were to just take your loved one to an emergency room, they would be able to start that process without an ECO. The ECO is specifically if that individual seems unable to, or unwilling to, volunteer for hospitalization or evaluation.
Jesse: So every state has a process for detaining someone for psychiatric evaluation and in Virginia that process is initiated by an ECO, an Emergency Custody Order. Usually an ECO involves some sort of preliminary paperwork process and approval by a magistrate, but law enforcement can initiate what is called a paperless ECO. Meaning that a law enforcement officer can essentially apprehend someone on the spot, detain them, bring them to a facility for evaluation, and fill out the paperwork afterwards.
So my next question for Ren was, at that point where a person is being detained for evaluation, probably in an ER, what options does that person have?
Ren Faszewski: So they have very little, they are in custody of law enforcement, right? And they are in custody of you until the evaluation's over, until the determination for your treatment has been made. So while they're at a hospital, or the CSB or what have you, the police are there on site and responsible for that person until the ECO expires, or the evaluation's done and whatever determination has been made.
Jesse: So the police have an obligation at that point to be there until the evaluation is completed?
Ren Faszewski: Yes.
Jesse: Who is eligible to do the evaluation? Is it only a physician? Or is there a broader scope of people?
Ren Faszewski: The people who are able to do the evaluations are called pre-screeners. These are folks at the CSBs who have been certified, they are qualified mental health professionals who are licensed. These are the ones who conduct, again, what we call a pre-screening. They're usually employed by the Community Services Board, so obviously if you're at the CSB, they're on site. If they're at an emergency room, they go to the emergency room and they conduct the evaluation there. And again, this evaluation really is determining if that patient needs inpatient care for whatever psychiatric crisis is occurring.
Jesse: If the pre screener decides, Yes, this is a situation where inpatient care is warranted. What happens next?
Ren Faszewski: There's a couple of things. So again, the standard they have to meet in order to meet involuntary inpatient hospitalization is they have to have a presence of a mental illness. Again, serious risk of harm to themselves, or others, or due to a lack of capacity to care for themselves. They must be in need of inpatient treatment, and that person is either unwilling or unable to consent to treatment. So all of those standards have to be met. You know, if that pre-screener determines that that person really needs inpatient treatment but at that point the individual says, well, I think you're right I really do need inpatient treatment. I want to voluntarily go to a hospital. Then they can recommend them for voluntary hospitalization and have that process moved along. If that is not the case and the pre screener still determines that inpatient hospitalization is needed then they recommend what is called a TDO, or a Temporary Detention Order.
This is a legal document saying that this individual must receive immediate hospitalization, for stabilization as well as evaluation on an involuntary basis, and this is a 72 hour period. Within that 72 hours they have to have a commitment hearing to determine whether that person requires further inpatient stabilization. So the pre-screener makes that recommendation and then would submit it to a magistrate. The magistrate, based on that information, would determine whether they are going to grant the TDO. The magistrate does not need to issue a TDO, they can make a different determination. If they determine that a TDO is not warranted then that person needs to be released from custody at that time, not only from the hospital itself, or the emergency room specifically, but also the custody of the police. So the ECO would end once that determination's been made. And, again, they also can decide to be hospitalized voluntarily, particularly if the pre-screen or the magistrate is saying you need to be hospitalized because there are pitfalls that can occur with involuntary hospitalization.
Specifically, if you go through this process and are TDO’d and then involuntarily committed, you do lose the right to possess a firearm in the state of Virginia. So that is a right, that is, is removed if you have this on your record.
Jim: Can you just specifically say what a TDO is?
Jesse: Yeah, there are a lot of acronyms throughout this conversation, so let's go over some of those terms. The first is an ECO, an Emergency Custody Order. An ECO initiates the detention for evaluation process where someone can be apprehended by law enforcement and brought to a facility where they will be evaluated by a pre-screener.
Jim: Emergency Custody Order, got it.
Jesse: After the ECO gets the person to a facility, a pre-screener evaluates that person to determine whether or not they meet the criteria for a TDO, a Temporary Detention Order. A TDO is a 72 hour hold for evaluation in a psychiatric facility.
Jim: Temporary Detention Order, okay.
Jesse: So those are the two main terms that we're talking about but in relation to those terms you'll also hear other terms like CSB and DBH. CSB is a Community Services Board, I probably should have explained this one earlier because when law enforcement apprehends someone with an Emergency Custody Order the pre-screening evaluation can happen at a CSB, it doesn't have to happen at an ER. Because a Community Services Board is a location within a county, or a city, responsible for delivering community-based behavioral health and developmental disability services. They really have a wide range of services that they are responsible for, and one of those services is providing 24/7 access to a pre-screener.
And D H is the Department of Behavioral Health.
Jim: D-B-H.
Jesse: And the last term is EBL, the Extraordinary Barriers List.
Jim: EBL, Extraordinary. Barriers List, and these aren't barriers that we're excited about because they're so amazing?
Jesse: No, The Extraordinary Barriers List is a list of people who continue to be detained in a psych facility after they have been clinically cleared for discharge. But we'll hear more about that later in the interview.
Jim: Okay, got it.
Jesse: Okay, so those terms are going to come up throughout the interview but the point we're at now in the conversation is the ECO/TDO process. So a person has been detained for evaluation by an ECO, an Emergency Custody Order, then evaluated by a pre-screener. And that pre-screener has determined that yes, this person meets the criteria for a TDO, a Temporary Detention Order. So what happens then?
Ren Faszewski: When the TDO is issued that initiates what we call a bed search, the pre-screener is responsible for finding the hospital bed that this person will be occupying. This is important with the ECO process because the ECO still continues during this bed search. So if a TDO is like, yep, we're gonna do this, the ECO continues until they find that bed. The reason that is important is because there is a 2014 law that we refer to as Bed of Last Resort. So if somebody is under an ECO and is going to be granted a TDO, again, they have this eight hour window in which that person needs to be evaluated. So again, that includes the transport to where they get that evaluation. The law states that at the end of this eight hour window, if they cannot find a private inpatient bed, that person will be admitted to a state operated facility.
Jesse: With the bed of last resort policy, if they can't go to a private facility then they'll go to a state run facility. Can you give some context about what the difference between those two types of facilities is?
Ren Faszewski: So, private hospitals of course, any hospital might have some sort of psychiatric inpatient unit. State operated facilities in Virginia are run by our department of Behavioral Health and Developmental Services. The state operated psychiatric hospitals have seen a very significant change since the bed of last resort law. Prior to that the majority of TDOs went to private facilities, they were the ones who were managing acute crises. The state operated facilities were much more heavily populated with folks who required longer term care. But that's also where folks who are involved in the forensic process, specifically not guilty by reason of insanity, they're the ones who get their treatment at state operated facilities. After the bed of last resort law, private hospitals, the admissions through TDOs has declined dramatically. While TDO admissions to state hospitals have increased dramatically. So there's been a significant change in the kind of patients that have been at the state operated facilities.
To kind of give a number, in 2015 only 11% of state hospital admissions were through the TDO process. By 2020 it was 25%, so that's a very dramatic increase. There's been a lot of discussion and debate over why that is but of course, part of that is that if no bed is found within eight hours they already know that that person's gonna end up at a state hospital.
There was actually a 2020 report from DBHDS that found that during a bed search local responders called an average of 25 to 30 different private providers to try to find a bed. Most commonly documented reasons for refusal included patient acuity, specifically that, Oh, they have a history of aggression, or they're currently possibly aggressive, co-occurring diagnoses, such as like developmental disabilities, or other medical conditions. So private hospitals have a lot of leeway to say that we are not able to meet the needs of this person, we do not have a bed that suits this person, but again, because of this law, state hospitals have to accept them.
You know, the census numbers have also increased dramatically, so that has put a considerable strain on the state hospital system. In addition to the fact that there are hundreds of folks at state hospitals that do not need to be there. The Department of Behavioral Health tracks what is called the Extraordinary Barriers List. These are folks that have been determined clinically ready for discharge but have not yet been due to some sort of barrier. In September, 2021 DBH just reported that there were 198 people in the state facilities that were on this EBL list. For context, Central State Hospital, excluding the maximum security unit, has 166 beds. So if you discharged everyone on the Extraordinary Barriers List, you would free up an entire hospital overnight.
Jesse: So, the bed of last resort law seems to have been designed with the intention of guaranteeing that a person who's determined to meet the criteria for a TDO will definitely end up in some sort of psych facility. And if the pre-screener can't find a bed at a private facility, then that person is going to a state facility. So it seems to have created this sort of paradigm shift where private facilities can choose which patients they want to accept and divert everyone else to state facilities that can't say no.
And the EBL, the Extraordinary Barriers List, seems to indicate this other problem within the system where people clinically approved for discharge aren't being discharged. That's almost 200 people being detained longer than they need to.
Jim: Just another instance of a system in place that could conceivably work but there is this lack of resources and a lack of, you know, infrastructure to actually make this work.
Jesse: Maybe? Although even if all of these facilities were given the necessary resources I think there would still be a valid debate about whether or not this law is actually helpful to the people being forced into those facilities.
Jim: Yeah, that's a good call.
Jesse: And so at this point, we've talked about the ECO and the TDO. The ECO forces someone to a place where they're going to be evaluated. The TDO is up to three business days of detention that can lead to a civil commitment, and that could lead to a person spending weeks, months, or even years in a facility. And it's quite possible that the person being pushed into this system was actually experiencing some sort of distress, they may have genuinely needed help. But during this process they may have been apprehended by police, handcuffed, detained involuntarily for evaluation, confined involuntarily for treatment. They may have lost their job, their home, custody of their kids, relationships. They may have gone through all of that and at some point they're released.
So, I asked Ren, at that point when they're released, what happens then?
Ren Faszewski: It is the responsibility of not only the hospital but the Community Services Board that serves that individual's location. So, a person may already be receiving services from the CSB but if a new individual, say from like Arlington County, ends up at a facility then it is Arlington County's responsibility to provide what we call a discharge plan. A discharge plan is supposed to be initiated during the admission process, so what is the clinical criteria that we are looking for to determine that this person is ready to be discharged. And the discharge plan not only includes, you know, the clinical services a person may need, so connecting them to case management services, connecting them to PACT or other community-based services. It also can include housing referrals, so getting them connected to permanent supportive housing. This can also include, okay, so upon this person's discharge, maybe they need SSI or SSDI benefits, or Medicaid or Medicare. It's making sure that those processes are started as well. So the purpose of a discharge plan is that once a person is released into the community, there should be a wraparound of services that meet their needs.
Again, whether it's clinical, housing, financial, what have you.
Jesse: So you had mentioned that one of the motivations for wanting to avoid an involuntary commitment could be that long-term it can affect whether or not you can own a firearm.
Ren Faszewski: Mm-hmm.
Jesse: Are there any other potential long-term impacts of an involuntary commitment?
Ren Faszewski: Well, of course involuntary commitments can impact your job. If you had a job before going into a hospital you may not have it upon being released because you don't know how long you're gonna be there. We have seen people lose their housing being involuntarily committed, cuz again, they're there for an undetermined length of time. We have seen, particularly for folks who are on the EBL and folks that are there after they've been determined clinically ready for discharge, and they simply aren't. You know, there's a period where once you're stable, why it's so important to get released is cuz if you're there longer and longer and longer, you're gonna backslide. That frustration, the fact that you're continually in a very restrictive setting, you tend to see a resurgence of psychiatric symptoms and then suddenly that person is, well, he's no longer ready for discharge because, you know, he's no longer clinically stable. And so the risk of people losing that clinical stability and again, being in the hospital for even longer is certainly a risk with these involuntary commitments.
So there's a lot of different consequences to the involuntary commitment process for folks cuz it's a highly restrictive setting and there's very little individual choice as to how long you stay there. So there's a lot of unintended consequences to that. And certainly we want to, again, prevent as many as possible if we're able to provide them the services they need in the community but you know, if they're in there, we wanna make sure that we are discharging folks when they need to be discharged, when they're clinically ready, and getting them out and into the communities where they can return to their lives, return to their families. And again, get the best outcomes where they're connected to.
Jesse: Okay, so to recap what we have learned about mental health laws in Virginia. A person can be brought in for an evaluation by an ECO, an Emergency Custody Order. They are on that ECO and monitored by police until a pre-screener completes an evaluation and determines whether or not that person can go free, or if they meet the criteria for a TDO, a Temporary Detention Order. If that person is believed to meet the criteria for a TDO, then they continue to be detained until the pre-screener finds a bed at a psychiatric facility. If the pre-screener does not find an available bed at a private facility within eight hours, then the bed of last resort law says that person must go to a state facility. And once a person reaches a psychiatric facility the TDO lasts for 72 hours and during that time the facility can apply to have that person committed. If a person is committed, then they may be detained for weeks, months, or possibly years, but at some point it is very likely they will be clinically cleared for discharge. When that person is cleared for discharge, then they should be released with a discharge plan. Unless, for some reason, the facility decides not to release them, then they end up on the EBL, the Extraordinary Barriers list. Where essentially they continue to be detained for possibly unclear reasons even though they have been clinically cleared for discharge from that facility, and I don't see how that isn't a clear violation of their civil rights but here we are.
Jim: Okay, I love our system, it's so wonderful.
Jesse: I'm glad you're loving this Jim, because next time, on Committable, we're going to be talking about mental health laws in Missouri.
Jim: Next time! On Committable!
Jesse: Oh, yeah, we should probably be doing that. You fixed it, Jim! You fixed the podcast! Jim: Totally did.
(laughter from Jesse)
Jesse: Committable is produced by Jim McQuaid, Michelle Stockmann and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.