Update on Legislation Seeking to Reduce Law Enforcement Involvement in Mental Health Transports

February 15, 2022

A series of bills were introduced this session that intend to relieve the pressure on law enforcement associated with the emergency custody order and temporary detention order process by allowing for additional usage of alternative transportation and alternative custody arrangements.  As the legislature approaches crossover, three Senate bills are on the way to the House.

HB 1147 (Bell), the sole House bill that was reported from House Appropriations, as introduced provides that if the facility indicated on a temporary detention order is a state facility and no bed is immediately available, an employee or designee of the state facility who is available may assume custody of the person and transport the person to the state facility or to an alternative facility of temporary detention.  The bill provides that an employee or designee is deemed to be unavailable if all state funds for alternative custody have been expended; in that situation, the person would remain in law enforcement custody until custody is transferred to the state facility or alternative facility.  This bill was reported to the floor from House Appropriations after being reported from the Courts of Justice Committee, but was sent back to Courts of Justice for further amendment and has not reported back to the floor as of February 15.

SB 202 (Newman), which has passed the Senate, directs the Secretary of Health and Human Resources and the Secretary of Public Safety and Homeland Security to study options to increase the use of alternative custody arrangements for individuals who are subject to an emergency custody or temporary detention order.  This bill has passed the Senate.

SB 268 (Favola), as reported by the Senate Education and Health Committee and Senate Finance and Appropriations Committee, now incorporates similar measures by Senators Peake, Hanger, and Deeds; the bill was further amended on the Senate floor.  As passed by the Senate, the bill directs the magistrate or court issuing an emergency custody order to consider all options for alternative transportation in determining a transportation provider, and allows an employee or contractor of the Department of Behavioral Health and Developmental Services (DBHDS) to be an alternative transportation provider.  If no alternative transportation provider is available, willing, and able to provide transportation in a safe manner, the magistrate or court must designate the primary law-enforcement agency and jurisdiction designated to execute the emergency custody order.  The bill allows law enforcement to transfer custody to the alternative transportation provider upon execution of an emergency custody order (ECO) or temporary detention order (TDO).  The bill allows a designee of a state facility to take custody of an individual subject to a TDO and provide transportation to the designated temporary detention facility.  The bill also directs DBHDS to amend its existing contract for alternative transportation or enter into new contracts to ensure sufficient availability of alternative transportation providers, until state funds have been expended.

SB 593 (Newman) provides that auxiliary police officers who have met training standards established by the Department of Criminal Justice Services may execute emergency custody orders and provide transportation for a person subject to an emergency custody or temporary detention order.  The bill includes similar provisions regarding the transfer of custody by law enforcement to an alternative transportation provider to the language of SB 268.  This bill has also passed the Senate.

A key issue in consideration of these bills will be the availability of funding.  The introduced budget includes $1.9 million General Funds per year to cover costs associated with the current alternative transportation contract so that 24/7 coverage can be provided on a statewide basis.  The budget also contains a proposed $3.4 million GF in FY 2024 to fund a plan to increase alternative custody options for individuals under a TDO who are awaiting transportation to an inpatient bed; budget language directs DBHDS to develop this plan.

A related measure, SB 119 (Hanger), also addresses the temporary detention order process and requires consultation and the disclosure of relevant information between a treating physician or his/her designee and the employee or designee of the local community services board in any case in which a person subject to an evaluation is receiving services in a hospital emergency department.  This bill has also passed the Senate.  Two bills that would use the Certificate of Public Need process to encourage the development of additional inpatient psychiatric capacity were carried over in House Courts of Justice and Senate Education and Health, respectively.  HB 743 (Bell) and SB 293 (Deeds) would require the Commissioner of Health to exclude the availability of an existing inpatient psychiatric service or facilities in the area when determining whether a public need exists for a project involving the provision of inpatient psychiatric services or an inpatient psychiatric facility, if the existing facilities do not serve an adequate number of individuals who are subject to temporary detention orders.

VACo Contact:  Katie Boyle

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