Alternative Custody Workgroup Discusses Challenges and Opportunities at Second Meeting

July 26, 2022

The workgroup studying options to increase the use of alternative custody arrangements for individuals who are subject to an emergency custody order (ECO) or a temporary detention order (TDO) met for the second time on July 12 and discussed in more depth several topics that were initially raised at the group’s first meeting.  This workgroup was established by legislation passed during the 2022 General Assembly session (SB 202, Newman) in response to the continuing stresses on law enforcement agencies posed by delayed admissions to inpatient psychiatric care.

Jonathan Green, Director of Magistrate Services with the Supreme Court of Virginia, outlined challenges in the current alternative transportation process (and the recent statutory expansion to authorize the transfer of custody to the alternative transportation provider) from magistrates’ perspective.  Under current law, an alternative transportation provider must be identified to the magistrate (who may not otherwise be aware of all the resources available in each county he or she serves); the magistrate then evaluates whether the proposed alternative transportation provider is available, willing, and able to safely transport the individual subject to the temporary detention order.  While the state’s contracted provider, Allied Universal, is one alternative transportation provider, other possibilities are allowed under the law, including friends and relatives of the individual.  The statutory changes enacted in 2022 allow an alternative transportation provider to assume custody of the individual, but the magistrate’s decision in ordering alternative transportation is made based on factors involving transporting the individual.  Given the lengthy wait times in recent months, the period of custody may be far longer than the time it takes to transport the individual to the inpatient facility.  As Mr. Green noted, “It is one thing to analyze whether a proposed [alternative transportation provider] can safely transport a respondent to a designated location in the confines of a vehicle.  Determining whether a proposed [alternative transportation provider] can safely maintain custody of a person in a hospital ED for 24 or more hours would seem to require a different analysis, yet the current statutory language focuses only on transportation.”

Sheriff Jeremy A. Falls of Fauquier County underscored the challenges facing law enforcement under the current ECO/TDO system, but also outlined some promising approaches toward improving the process.  While lengthy waits in the emergency department place a strain on the department, which must patrol an area of 651 square miles with six or seven deputies on duty at any given time, the Crisis Intervention Team Assessment Center (CITAC) in neighboring Culpeper has drastically shortened deputies’ time required for ECOs.  The County’s co-responder program, established in partnership with Rappahannock Rapidan Community Services, involves the participation of a therapist who helps to provide resources to individuals in crisis and avert the need for ECOs or TDOs.  The County is interested in expanding the hours a therapist is on duty and also in establishing a satellite CITAC to expand capacity.

Sarah Owen, Legislative Aide to Senator Steve Newman, provided an outline of legislation carried by the Senator in 2022 that seeks to expand auxiliary police officers’ ability to execute ECOs and TDOs, with appropriate training.  Ms. Owen explained that the legislation is intended to add an option for law enforcement to transfer custody of individuals who may not meet the criteria for alternative transportation, and suggested that the legislature would be open to further changes in the law to refine the ECO/TDO process.

Suzanne Mayo and Gail Paysour of the Department of Behavioral Health and Developmental Services (DBHDS) presented information on the state’s current contract for alternative transportation and how it compares to efforts in other states.  The contract, which is up for renewal at the end of the month, currently covers transportation only, and the addition of alternative custody would be a change in its scope.  The legislature allocated $2 million in FY 2023 for alternative custody, which would allow for a pilot program to be established.  Ms. Mayo noted that Virginia’s commitment laws, with a short ECO period relative to other states paired with a “bed of last resort” law, are unique relative to other states.  Other states have implemented psychiatric observation units in emergency departments or psychiatric-specific emergency departments.  Allied Universal provides alternative transportation in other states, but on a hospital-by-hospital basis and not statewide.  Since Allied Universal is currently only able to meet a relatively small portion of the need for alternative transportation in Virginia, DBHDS is currently funding a pilot program in which it supplies hourly payments for off-duty law enforcement officers to maintain custody of individuals subject to TDOs.  This program is intended to provide some relief to law enforcement agencies through the establishment of Memoranda of Understanding with individual agencies, which allows customization based on a locality’s needs, but also requires a large number of individual MOUs to be developed.

Workgroup members discussed the potential for alternative custody and transportation to be supplied based on regional contracts, the possibility of revising current statutory eligibility requirements for ECOs and TDOs, and the need to consider providing additional resources to programming that has been shown to work (such as CITACs), among other facets of this complicated issue.  The workgroup’s next meeting is scheduled for August 9.

VACo Contact:  Katie Boyle

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