State Report Recommends Sweeping Changes to Virginia Psychiatric Hospital System

In a sweeping report released Monday, a state commission recommended changes to Virginia’s decade-old “bed of last resort” law and urged the state to put greater pressure on private hospitals to accept patients under commitment orders.

The proposals, put forward by the Joint Legislative Audit and Review Commission, a state body that conducts studies for the General Assembly, are aimed at helping relieve Virginia’s beleaguered psychiatric hospital system.

“For years, Virginia state hospitals have routinely operated at their maximum capacities,” said JLARC Director Hal Greer. “The General Assembly’s and administration’s efforts to build out much-needed crisis response services statewide will hopefully alleviate the need for many Virginians to be involuntarily placed in an inpatient hospital. But it will take some time before we will start to see the census pressures at state hospitals relieved by these investments.”

Eastern State Hospital in James City County is one of Virginia’s nine publicly run mental hospitals, which have struggled with understaffing and an influx of psychiatric admissions. (Virginia Department of Behavioral Health and Developmental Services)

Virginia’s nine psychiatric hospitals — eight of which serve adults and one, the Commonwealth Center for Children and Adolescents in Staunton, devoted to youth — have increasingly found themselves short on both beds and staff. While industry standards say no more than 85% of staffed beds at psychiatric hospitals should be filled due to safety concerns, JLARC found that bed capacity at seven state hospitals routinely exceeds 95%, with three operating at 100%.

The crisis peaked in 2021 when staff shortages caused the Virginia Department of Behavioral Health and Developmental Services to close five state hospitals to new admissions.

Officials and experts say overcrowding in psychiatric hospitals produces risks for both patients and staff. JLARC’s findings bear that out: Between January 2022 and May 2023, the commission found 7,400 “physical incidents” occurred between patients at state psychiatric hospitals, with nearly 900 of them resulting in patient injury. At least 20% of staff at all nine hospitals reported they did not believe their facility was a safe place for patients; at Southern Virginia Mental Health Institute in Danville, that percentage was 42%.

Among the worst hospitals identified by JLARC is the Commonwealth Center for Children and Adolescents, which mostly serves youth between the ages of 12 and 17 and which the commission recommends lawmakers consider closing.

CCCA “has the highest rate of patient-on-patient and patient-on-staff physical safety incidents, the highest rate of patient self-harm, the highest number and percentage of substantiated human rights complaints, the highest use of physical restraint against patients, the highest staff turnover, nearly the highest staff vacancy rate, and the greatest dependence on expensive contract staff,” the commission wrote. An unannounced inspection of the facility in May by national accrediting agency, the Joint Commission found 28 serious violations, leading the behavioral health department to determine the hospital was “an immediate threat to the health and safety of patients.”

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Although the state has since taken steps to fix problems at the hospital, JLARC recommended the state develop plans to transfer its patients elsewhere or provide services at crisis stabilization centers closer to their homes.

On Monday, Sen. Jeremy McPike, D-Prince William, said the human rights violation numbers were “abhorrent” and that “concerning would be a generous word” to describe the findings on the youth hospital.

“It turns my stomach, and I know it does yours too,” he told Department of Behavioral Health and Developmental Services Commissioner Nelson Smith.

“We’ve been working aggressively. We did not take it lightly,” said Smith. “We removed the leadership there, which we believe is what triggered the Joint Commission arriving to the facility.”

Virginia Secretary of Health and Human Resources John Littel, in a letter, said JLARC’s report “underscores the urgent need for a transformation in the commonwealth’s mental health system,” one he said Virginia has already taken steps to begin through Gov. Glenn Youngkin’s “Right Help, Right Now” plan.

“The JLARC report rightly points out the system’s overreliance on state psychiatric hospitals for all levels of care, emphasizing the need for a shift towards putting individuals first,” he said. “The outdated approach disproportionately allocates limited resources to inpatient treatment, rather than meeting individuals where they are.”

Bed of last resort

Monday’s JLARC report indicates much of the overuse of state hospitals is due to the state’s 2014 bed of last resort law, which requires state psychiatric hospitals to accept any patient under a temporary detention order if a bed cannot be found at a privately operated facility.

“Since then, state hospitals have experienced significant ongoing capacity constraints and have regularly admitted more patients than they can safely accommodate,” the commission wrote.

About half of all admissions to state psychiatric hospitals are patients who are involuntarily committed after officials determine they are “substantially likely” to pose an imminent risk to themselves or others but are unwilling to be hospitalized for treatment voluntarily.

Under Virginia’s involuntary commitment process, a patient is first placed under an emergency custody order and then evaluated by the local community services board and a magistrate to decide whether they meet the criteria for a temporary detention order. A TDO allows the person to be held for up to 72 hours for adults or 96 hours for youth for mental health treatment; if a judge determines the patient requires further inpatient care, a civil commitment order allows them to be held for up to 30 days for adults or 90 for youth, with the possibility of extensions.

Finding a psychiatric bed for patients under a TDO often proves difficult, however. State law gives officials eight hours to find a bed for people in emergency custody or release them. If a bed in a privately operated hospital cannot be found, the patient must be admitted to one of the nine state-run institutions.

The bed of last resort requirement was the result of tragedy. In 2013, state mental health officials were unable to find a bed for Austin “Gus” Deeds, the son of state Sen. Creigh Deeds, D-Charlottesville, who had been placed under an emergency custody order while undergoing a mental health episode. After being sent home to his family, Gus Deeds stabbed his father 13 times before shooting himself.

More patients in crisis falling through cracks of state psychiatric commitment system

Sen. Deeds survived the attack and carried the bed of last resort law the next year to ensure that no Virginian in crisis fell through the cracks again. JLARC noted Monday that “increased admissions to state hospitals likely mean the law has served as a safety net for many Virginians experiencing psychiatric emergencies.”

But it has also had unintended consequences. JLARC found it has “contributed to the increase in inappropriate admissions to state hospitals, such as patients with dementia or intellectual disabilities, whom state hospitals are not equipped to treat.” And, the commission continued, it “does not allow state hospitals to deny admission to an individual under a TDO, even if it does not have sufficient numbers of staff, staff with the right types of expertise or training to treat them, or adequate physical space or equipment for use in treating them.”

State hospital workers interviewed by the commission said the law leads to unsustainable and unsafe circumstances.

“The admissions policy that requires this facility to take in more clients regardless of our facility’s ability (or lack thereof) due to staffing and bed availability is not only dangerous for all involved but sends a clear message to the employees that they are not important or valued,” said one staffer. “Something has to give! People are frustrated, and many are getting hurt or worse.”

JLARC is floating several possible changes to the law to relieve the pressure. One would give state hospitals the authority to deny new TDO admissions if 85% of their beds are filled. Another would amend statutory definitions of mental illness to exclude neurocognitive and neurodevelopmental disorders like dementia, traumatic brain injury, and autism spectrum disorders from the list of diagnoses that could qualify an individual for involuntary commitment under a TDO.

“Virginia’s current definition of mental illness can allow individuals who solely have dementia or an intellectual or developmental disability to meet the criteria for a civil TDO or civil commitment,” said Drew Dickinson, the project leader for the JLARC review.

State hospitals are seeing increasing numbers of those patients, said JLARC, even though there is little treatment state psychiatric hospitals can provide them.

“For an individual who is under a TDO but who … does not need psychiatric treatment, being placed in a psychiatric hospital where they will not receive effective treatment for their primary diagnoses is both counterproductive and unsafe,” the commission wrote.

Smith, however, cautioned in a letter that efforts to reduce the populations of individuals with neurocognitive or neurodevelopmental disorders from state hospitals could have “unintended consequences.”

“There is a high mental illness co-occurrence rate for individuals with intellectual and developmental disabilities (DD),” he wrote. “Determining whether an individual’s behaviors and symptoms are because of DD or a co-occurring mental illness can be extremely challenging and complex.”

Deeds on Tuesday said the state has “recognized for a long time that we’ve had a problem with people in the psychiatric hospitals that don’t belong there.”

Virginia’s Behavioral Health Commission, which he chairs, is scheduled to receive a briefing on JLARC’s findings Wednesday morning. Deeds said he’s eager to hear its recommendations.

“I want to be open-minded about this. I don’t want to be so tied to what we’ve done in the past that I don’t want to look for new solutions that would be better,” he said. “If there are better ways to skin a cat, I want to be part of the solution.”

Private hospitals and forensic patients

With state hospitals overwhelmed with patients, JLARC is also suggesting that Virginia put pressure on privately operated hospitals to accept more patients under temporary detention orders.

While the report acknowledges that private psychiatric hospitals currently discharge about 10 times as many patients as state-run hospitals every year, it contends those facilities — which include not only freestanding psychiatric facilities but also psychiatric units in everything from teaching to large hospital chains — could accept more involuntary patients.

“We acknowledge that privately operated hospitals are already accepting involuntary patients, but our analysis makes it clear they could be accepting many more,” said Greer Monday. “State policies are needed to encourage and perhaps direct these providers to accept more TDOs if they have the capacity to do so safely.”

Using numbers collected from the Virginia Health Information database, JLARC found that “31 of the 43 private psychiatric hospitals for adults used less than 85 percent of their average staffed bed capacity in 2022,” while “many of the hospitals operated far below that level.”

“Those findings are not unique to 2022,” Dickinson told lawmakers. “Similar patterns of underutilization exist for prior years.”

The commission calculated that if private psychiatric hospitals had occupied roughly half of their unused beds that year, “enough patients would have been diverted from adult state hospitals to allow them to operate at a safe capacity level.”

Virginia could also explore contracting with private hospitals to accept forensic patients — people facing criminal charges who must undergo competency evaluations or receive mental health treatment — JLARC said. Currently, all forensic patients are placed in state hospitals, where they are increasingly becoming a dominant population. In fiscal year 2023, the commission found, 47% of state hospital admissions were people facing criminal charges who had been ordered to receive psychiatric evaluations or treatments.

“State law does not require that forensic patients be treated at state hospitals,” JLARC wrote. “If state hospitals remain the only inpatient setting for treating forensic patients, the capacity pressures on state hospitals are likely to worsen.”

Julian Walker, a spokesperson for the Virginia Hospital and Healthcare Association, said privately operated hospitals in the state have “demonstrated a clear commitment” to increasing mental health access, including the Children’s Hospital of the King’s Daughters’ recent opening of a dedicated facility for youth mental health care in Norfolk.

“Our members are handling the vast majority of both voluntary and involuntary behavioral health admissions in the commonwealth,” he said.

JLARC noted that private hospitals “are justifiably concerned” about the risks of admitting more patients under TDOs and said the state could provide funding for additional security staff, training, and facility upgrades to incentivize hospitals to increase their involuntary admissions.

It also floated other possibilities for putting pressure on privately operated hospitals, ranging from conditioning state approval of new facilities or license renewals on a hospital’s agreement to accept more involuntary patients to increasing Medicaid reimbursement rates for treating such patients.

Massachusetts, the commission said, has taken a similar approach in tying requirements that a facility accepts patients who are under civil commitment orders to licensure.

Noting that Medicaid reimbursements “often fall short of the actual cost of care,”, particularly for psychiatric patients who may require heavy investments of time and resources, Walker said proposals that “look to supplement them is a conversation that we are certainly open to having and would welcome.”

“We will work with the General Assembly. We will work with the Youngkin administration. We will work with DBHDS,” he said. “We all share a similar or common goal.”

by Sarah Vogelsong, Virginia Mercury

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