A minor in mental health crisis spent four nights in the ER because Virginia didn’t have a state bed for her. This happens all the time.

A minor in mental health crisis spent four nights in the ER because Virginia didn’t have a state bed for her. This happens all the time.

It’s the first legal test of a public mental health reform born of tragedy, which experts say closed one loophole while further straining an overburdened and understaffed system. The impacts of the so-called “bed of last resort” law, enacted in 2014 to keep people in crisis from falling through the cracks, worsened during the pandemic.

More people needed acute mental health treatment, staff left for better-paying jobs or because they feared coronavirus and state hospitals became dangerously full, leading the state to refuse new admissions at five of eight adult facilities.

Representatives of private hospitals and public providers are at odds over who is responsible for the crunch, as pandemic-era challenges ripple through systems of care. Experts and lawmakers agree the number of public psychiatric beds — which eclipses that of other states — is a sign Virginia has not invested enough in community services and has too few providers.

Meanwhile, patients have to go somewhere.

Many — like the Giles County girl — have languished in cramped and chaotic emergency departments under police supervision, sometimes for days, delaying treatment and taking the officers away from other duties, law enforcement and hospital officials say.

The seven-page lawsuit filed in Giles County Circuit Court on Feb. 28, says the state Department of Behavioral Health and Developmental Services and the only state-run psychiatric hospital for children, the Commonwealth Center for Children and Adolescents in Staunton, have a pattern of “failing or refusing to admit, detain and treat” minors under temporary detention orders.

The attorney general’s office and DBHDS, through spokeswomen, declined to comment on the lawsuit, which names as defendants Nelson Smith, commissioner of DBHDS, and Jaime Bamford, director of the Commonwealth Center.

The suit does not seek financial damages, but asks the court to order DBHDS to follow state law and declare DBHDS’s failure or refusal to admit evaluate or treat the girl unlawful.

“Our goal is to make sure that kids that need mental health treatment get it and get it in a timely matter,” Richard L. Chidester, the county attorney, said in an interview Wednesday. “Everybody involved in the process would say that’s their goal, too … I sympathize with the position they are in, but somebody’s got to bring this to a head.”

The state hospital system’s share of patients court-ordered to care rose from about 1 in 10 in 2014, when the “bed of last resort” law took effect, to 1 in 4, according to state data analyzed by Heather Zelle, associate director of Mental Health Policy Research at the University of Virginia Institute of Law, Psychiatry, and Public Policy.

The thorny impacts of the law have driven debate — and efforts at change — at the statehouse for years, including by the bill’s author, state Sen. Creigh Deeds (D-Bath), who still bears the scars of the attack that led to reform.

He and Del. Rob Bell (R-Charlottesville) sponsored bills this session that would have incentivized private behavioral health providers to admit the same number of court-ordered admissions they accepted before the law took effect, but a heavy lobbying effort felled the bill, Deeds said.

Private hospitals still admit the highest number of patients under involuntary court order, but mental health advocates say the law lets them avoid the most challenging cases, knowing a state hospital will have to accept violent and agitated patients.

“I have had private hospitals reveal that there are patients that they will not admit on the basis of who they are and past experience, that they’re difficult to manage on their unit,” said Anna Mendez, executive director of the nonprofit Partner for Mental Health in Charlottesville, an affiliate of Mental Health America.

Deeds fought to make the state hospital system become a safety net for those in need, among other reforms, after a clinician failed to secure treatment for his 24-year-old son before the time clock on a court order ran out and Austin “Gus” Deeds walked out of the hospital while still in crisis. He attacked his father and fatally shot himself hours later.

“We’ll try again or we’ll try another approach,” Deeds said, of efforts to reform the law.

Julian Walker, spokesman for the Virginia Hospital and Healthcare Association, said it was time to “stop pointing fingers” and take a holistic approach to solutions, noting private providers still accept the highest number of court-ordered patients as well as people who admit themselves for psychiatric care.

“We need to see bed access as an important component but it’s not the only component,” Walker said, of the issues resulting in poor outcomes.

The lawsuit does not say why a magistrate ordered the Giles County girl to undergo psychiatric treatment at 2 a.m. on Feb. 21. She had been staying at a residential treatment facility at the time.

Chesterfield County Police drove her to Chippenham Hospital, for evaluation and, per the order, were supposed to then `bring her to the Commonwealth Center for treatment. But Commonwealth Center “asserted that it had no beds available and refused to accept” the patient, the lawsuit says.

She was held in the Chippenham Hospital Emergency Room for the duration of the order: 96 hours, according to court documents. The child’s Giles County foster care worker learned three days after the order was issued that a Commonwealth Center bed would probably be available after 8 a.m. the next day, court documents say. By then, however, the time she could be held under the order had elapsed.

The foster care worker and a co-worker drove four hours to pick up the child, Chidester said.

The Commonwealth Center has 48 beds, but can only has enough staff to safely operate 18 beds, its director, Bamford, said in an interview earlier this year. Most patients are 12 to 14 years old and are often refused admission to a private facility because of aggressive behavior, she said.

“We’re the only place that never says no,” she said.

The hospital has seen rapid change since state lawmakers in 2014 passed bed of last resort legislation, Bamford said. Previously the center served as a longer-term residential facility, but it now functions more like an acute care hospital with high turnover and a wait list. In 2019, the hospital admitted 1,200 patients for 48 beds.

Before the bed of last resort legislation, patients would stay 20 to 30 days on average. The average length of stay has since decreased to a week to 10 days, said Lauren Cunningham, a spokesperson for DBHDS.

The Commonwealth Center should have 5 licensed practical nurses; it has none. It’s budgeted for 20 direct care registered nurses; it has 10, she said.

Preventing the girl from getting inpatient treatment in a state psychiatric facility situation endangered the public, the lawsuit says. The girl previously assaulted employees and residents in the Chesterfield facility where she has been staying and the facility has now declined to continue her care, Chidester said. She is receiving mental health treatment elsewhere, he said, declining to say where.

Chesterfield County Police Chief Jeffrey S. Katz on March 3 posted a photo on Facebook showing at least eight police cruisers parked outside Chippenham Hospital, each one representing a person in mental health crisis in their custody.

“Our mental health system — staffed by many wonderful people — is so fundamentally broken that it does a better job keeping police officers off the streets than providing timely care to people in crisis,” he said.

Chesterfield County Police declined to comment on the Giles County case, but Brad Badgerow, the department’s mental health liaison, said officers function as “glorified babysitters” while a crisis clinician searches for a bed.

“Some people are just asleep the whole time. Some people are just so agitated they’re amped up the entire time,” he said. “They’re not getting the same level of treatment sitting in an ED than if they were up on a psychiatric floor where they should be.”

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