Bill Text: VA SB682 | 2022 | Regular Session | Comm Sub
Bill Title: Temporary detention; alternative custody.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-02-08 - Incorporated by Finance and Appropriations [SB682 Detail]
Download: Virginia-2022-SB682-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§37.2-809 and 37.2-809.1 of the Code of Virginia are amended and reenacted as follows:
§37.2-809. Involuntary temporary detention; issuance and execution of order.
A. For the purposes of this section:
"Designee of the local community services board" means an examiner designated by the local community services board who (i) is skilled in the assessment and treatment of mental illness, (ii) has completed a certification program approved by the Department, (iii) is able to provide an independent examination of the person, (iv) is not related by blood or marriage to the person being evaluated, (v) has no financial interest in the admission or treatment of the person being evaluated, (vi) has no investment interest in the facility detaining or admitting the person under this article, and (vii) except for employees of state hospitals and of the U.S. Department of Veterans Affairs, is not employed by the facility.
"Employee" means an employee of the local community services board who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department.
"Investment interest" means the ownership or holding of an equity or debt security, including shares of stock in a corporation, interests or units of a partnership, bonds, debentures, notes, or other equity or debt instruments.
B. A magistrate shall issue, upon the sworn petition of any responsible person, treating physician, or upon his own motion and only after an evaluation conducted in-person or by means of a two-way electronic video and audio communication system as authorized in §37.2-804.1 by an employee or a designee of the local community services board to determine whether the person meets the criteria for temporary detention, a temporary detention order if it appears from all evidence readily available, including any recommendation from a physician, clinical psychologist, or clinical social worker treating the person, that the person (i) has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs; (ii) is in need of hospitalization or treatment; and (iii) is unwilling to volunteer or incapable of volunteering for hospitalization or treatment. The magistrate shall also consider, if available, (a) information provided by the person who initiated emergency custody and (b) the recommendations of any treating or examining physician licensed in Virginia either verbally or in writing prior to rendering a decision. Any temporary detention order entered pursuant to this section shall provide for the disclosure of medical records pursuant to §37.2-804.2. This subsection shall not preclude any other disclosures as required or permitted by law.
C. When considering whether there is probable cause to issue a temporary detention order, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician, psychologist, or clinical social worker licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any relevant hearsay evidence, (v) any medical records available, (vi) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (vii) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue a temporary detention order.
D. A magistrate may issue a temporary detention order without an emergency custody order proceeding. A magistrate may issue a temporary detention order without a prior evaluation pursuant to subsection B if (i) the person has been personally examined within the previous 72 hours by an employee or a designee of the local community services board or (ii) there is a significant physical, psychological, or medical risk to the person or to others associated with conducting such evaluation.
E. An employee or a designee of the local community services
board shall determine the facility of temporary detention in accordance with
the provisions of §37.2-809.1 for all individuals persons detained
pursuant to this section. An employee or designee of the local community
services board may change the facility of temporary detention and may designate
an alternative facility for temporary detention at any point during the period
of temporary detention if it is determined that the alternative facility is a
more appropriate facility for temporary detention of the individual
person given the specific security, medical, or behavioral health needs of
the person. In cases in which the facility of temporary detention is changed
following transfer of custody to an initial facility of temporary custody,
transportation of the individual person to the alternative
facility of temporary detention shall be provided in accordance with the
provisions of §37.2-810. The initial facility of temporary detention shall be
identified on the preadmission screening report and indicated on the temporary
detention order; however, if an employee or designee of the local community
services board designates an alternative facility, that employee or designee
shall provide written notice forthwith, on a form developed by the Executive
Secretary of the Supreme Court of Virginia, to the clerk of the issuing court
of the name and address of the alternative facility. Subject to the provisions
of §37.2-809.1, if a facility of temporary detention cannot be identified by
the time of the expiration of the period of emergency custody pursuant to §
37.2-808, the individual person shall be detained in a state
facility for the treatment of individuals persons with mental
illness and such facility shall be indicated on the temporary detention order.
Except as provided in §37.2-811 for inmates requiring hospitalization in
accordance with subdivision A 2 of §19.2-169.6, the person shall not be
detained in a jail or other place of confinement for persons charged with
criminal offenses and. Except as provided in subsection G and in §
37.2-811 for inmates requiring hospitalization in accordance with subdivision A
2 of §19.2-169.6, the person shall remain in the custody of law
enforcement until (i) the person is either detained within a secure
facility or, (ii) custody has been accepted by the appropriate
personnel designated by either the initial facility of temporary detention
identified in the temporary detention order or by the alternative facility of
temporary detention designated by the employee or designee of the local
community services board pursuant to this subsection, or (iii) custody has
been accepted by an employee or designee of the state facility indicated on the
temporary detention order pursuant to subsection F. The person detained or
in custody pursuant to this section shall be given a written summary of the
temporary detention procedures and the statutory protections associated with
those procedures.
F. If the facility indicated on the temporary detention order pursuant to subsection E is a state facility, an employee or designee of the state facility may assume custody of the person wherever the person is located. The employee or designee of the state facility who takes custody of a person pursuant to this subsection shall maintain custody of the person and shall transport the person to the state facility or to an alternative facility of temporary detention, if an alternative facility of temporary detention is designated in accordance with subsection E. Such transportation may include transportation of the person to a medical facility for medical evaluation prior to admission to the state facility or alternative facility of temporary detention if such medical evaluation is required by a physician at the admitting facility. Transportation and security of the person being admitted shall be the responsibility of the state facility.
G. A person who is subject to an order authorizing treatment issued in accordance with §53.1-133.04 shall remain in law-enforcement custody at all times prior to admission to the facility designated for treatment of the person pursuant to such order.
H. Any facility caring for a person placed with it pursuant to a temporary detention order is authorized to provide emergency medical and psychiatric services within its capabilities when the facility determines that the services are in the best interests of the person within its care. The costs incurred as a result of the hearings and by the facility in providing services during the period of temporary detention shall be paid and recovered pursuant to §37.2-804. The maximum costs reimbursable by the Commonwealth pursuant to this section shall be established by the State Board of Medical Assistance Services based on reasonable criteria. The State Board of Medical Assistance Services shall, by regulation, establish a reasonable rate per day of inpatient care for temporary detention.
G. I. The employee or the designee of the local
community services board who is conducting the evaluation pursuant to this
section shall determine, prior to the issuance of the temporary detention
order, the insurance status of the person. Where coverage by a third party
payor exists, the facility seeking reimbursement under this section shall first
seek reimbursement from the third party payor. The Commonwealth shall reimburse
the facility only for the balance of costs remaining after the allowances
covered by the third party payor have been received.
H. J. The duration of temporary detention shall
be sufficient to allow for completion of the examination required by §
37.2-815, preparation of the preadmission screening report required by §
37.2-816, and initiation of mental health treatment to stabilize the person's
psychiatric condition to avoid involuntary commitment where possible, but shall
not exceed 72 hours prior to a hearing. If the 72-hour period herein specified
terminates on a Saturday, Sunday, legal holiday, or day on which the court is
lawfully closed, the person may be detained, as herein provided, until the
close of business on the next day that is not a Saturday, Sunday, legal
holiday, or day on which the court is lawfully closed. The person may be
released, pursuant to §37.2-813, before the 72-hour period herein specified
has run.
I. K. If a temporary detention order is not
executed within 24 hours of its issuance, or within a shorter period as is
specified in the order, the order shall be void and shall be returned unexecuted
to the office of the clerk of the issuing court or, if the office is not open,
to any magistrate serving the jurisdiction of the issuing court. Subsequent
orders may be issued upon the original petition within 96 hours after the
petition is filed. However, a magistrate must again obtain the advice of an
employee or a designee of the local community services board prior to issuing a
subsequent order upon the original petition. Any petition for which no
temporary detention order or other process in connection therewith is served on
the subject of the petition within 96 hours after the petition is filed shall
be void and shall be returned to the office of the clerk of the issuing court.
J. L. The Executive Secretary of the Supreme
Court of Virginia shall establish and require that a magistrate, as provided by
this section, be available seven days a week, 24 hours a day, for the purpose
of performing the duties established by this section. Each community services
board shall provide to each general district court and magistrate's office
within its service area a list of its employees and designees who are available
to perform the evaluations required herein.
K. M. For purposes of this section, a health
care provider or designee of a local community services board or behavioral
health authority shall not be required to encrypt any email containing
information or medical records provided to a magistrate unless there is reason
to believe that a third party will attempt to intercept the email.
L. N. If the employee or designee of the
community services board who is conducting the evaluation pursuant to this
section recommends that the person should not be subject to a temporary
detention order, such employee or designee shall (i) inform the petitioner, the
person who initiated emergency custody if such person is present, and an onsite
treating physician of his recommendation; (ii) promptly inform such person who
initiated emergency custody that the community services board will facilitate
communication between the person and the magistrate if the person disagrees
with recommendations of the employee or designee of the community services
board who conducted the evaluation and the person who initiated emergency
custody so requests; and (iii) upon prompt request made by the person who
initiated emergency custody, arrange for such person who initiated emergency
custody to communicate with the magistrate as soon as is practicable and prior
to the expiration of the period of emergency custody. The magistrate shall
consider any information provided by the person who initiated emergency custody
and any recommendations of the treating or examining physician and the employee
or designee of the community services board who conducted the evaluation and
consider such information and recommendations in accordance with subsection B
in making his determination to issue a temporary detention order. The
individual person who is the subject of emergency custody shall
remain in the custody of law enforcement or a designee of law enforcement and
shall not be released from emergency custody until communication with the
magistrate pursuant to this subsection has concluded and the magistrate has
made a determination regarding issuance of a temporary detention order.
M. O. For purposes of this section, "person
who initiated emergency custody" means any person who initiated the
issuance of an emergency custody order pursuant to §37.2-808 or a
law-enforcement officer who takes a person into custody pursuant to subsection
G of §37.2-808.
§37.2-809.1. Facility of temporary detention.
A. In each case in which an employee or designee of the local community services board as defined in §37.2-809 is required to make an evaluation of an individual pursuant to subsection B, G, or H of §37.2-808, an employee or designee of the local community services board shall, upon being notified of the need for such evaluation, contact the state facility for the area in which the community services board is located and notify the state facility that the individual will be transported to the facility upon issuance of a temporary detention order if no other facility of temporary detention can be identified by the time of the expiration of the period of emergency custody pursuant to §37.2-808. Upon completion of the evaluation, the employee or designee of the local community services board shall convey to the state facility information about the individual necessary to allow the state facility to determine the services the individual will require upon admission.
B. A state facility may, following the notice in accordance with subsection A, conduct a search for an alternative facility that is able and willing to provide temporary detention and appropriate care to the individual, which may include another state facility if the state facility notified in accordance with subsection A is unable to provide temporary detention and appropriate care for the individual. Under no circumstances shall a state facility fail or refuse to admit an individual who meets the criteria for temporary detention pursuant to §37.2-809 unless an alternative facility that is able to provide temporary detention and appropriate care agrees to accept the individual for temporary detention and the individual shall not during the duration of the temporary detention order be released from custody except for purposes of transporting the individual to the state facility or alternative facility in accordance with the provisions of §37.2-810. If an alternative facility is identified and agrees to accept the individual for temporary detention, the state facility shall notify the community services board, and an employee or designee of the community services board shall designate the alternative facility on the prescreening report.
C. A state facility may conduct a search for an alternative facility that is able and willing to provide temporary detention and appropriate care to the individual in accordance with subsection B if the individual is in the custody of an employee or designee of the state facility pursuant to subsection F of §37.2-809.
D. The facility of temporary detention designated in accordance with this section shall be one that has been approved pursuant to regulations of the Board.
