GOVERNOR
EXECUTIVE ORDER NUMBER SEVENTY (2020)
Addressing the Impact of the Novel
Coronavirus (COVID-19) on the Commonwealth's Psychiatric Hospital System
Importance of the Issue
The Commonwealth of Virginia, through the Department of
Behavioral Health and Developmental Services, operates eight behavioral health
facilities for adults and one for children. Under § 37.2-809.1 of the Code
of Virginia, these facilities must admit patients under emergency custody who
meet the criteria for temporary detention when no other facility of temporary
detention can be identified. Prior to the COVID-19 pandemic, the census of the
state-operated psychiatric hospitals averaged 95 percent or over their total
bed capacity. Through the month of July 2020, the state-operated psychiatric
hospitals experienced an increase in admissions and at times exceeded their
operating bed capacity. Several state-operated psychiatric hospitals have
experienced the drop-off of patients when there were no beds in the
state-operated psychiatric hospital to serve the patients safely. Such
drop-offs pose a risk to both patients and staff.
In addition to the increase in census levels, state-operated
psychiatric hospitals have seen confirmed cases of COVID-19 in patients and
staff. In order to control the spread of the virus within the congregate
settings of state-operated psychiatric hospitals, patients with confirmed or suspected
diagnoses of COVID-19 must be isolated or quarantined. Isolating and
quarantining, however, reduces bed capacity and further exacerbates the
pressure on the state-operated psychiatric hospitals to admit patients subject
to temporary detention orders after the emergency custody period expires.
While our state-operated psychiatric hospitals provide high
quality behavioral health care and treatment, they do not have the capability
to manage or to treat medical conditions that require medical interventions.
Transferring patients with acute symptoms of COVID-19 that require medical
monitoring and intervention or patients with other medical conditions who
cannot be managed adequately at the state-operated psychiatric hospitals
negatively impacts the health and safety of those patients.
COVID-19 will continue to place increased demands on the
Commonwealth's state-operated psychiatric hospitals. Response to the mental
health effects of the COVID-19 disaster will require both public and private
providers, as well as other agencies involved in the civil commitment process,
to work together. We must prioritize the patient's best interests to ensure
that each patient receives the requisite care and treatment. We must also
ensure that the state-operated psychiatric hospital system continues to operate
as a safety net for patients experiencing a mental health crisis.
Directive
Therefore, by virtue of the authority vested in me by Article
V, Section 7 of the Constitution of Virginia, by § 44-146.17 of the Code
of Virginia, and in furtherance of Amended Executive Order No. 51, I direct the
following:
1. As currently permitted by Chapter 8 of Title 37.2 of the Code
of Virginia, when the state-operated psychiatric hospitals are operating at
100% of their total bed capacity, state-operated psychiatric hospitals will not
agree to serve as the facility of temporary detention for patients who are not
under emergency custody pursuant to § 37.2-808 of the Code of Virginia.
2. Prior to the transfer and transport of a patient subject to
a temporary detention order to a state-operated psychiatric hospital, the
facility where the patient is located and the transporting law enforcement
agency or alternative transportation provider are strongly encouraged to
contact the state-operated psychiatric hospital of temporary detention to
ensure that a bed is available for the patient. If the state-operated
psychiatric hospital system is at or over total bed capacity, the facility
where the patient is located and the transporting law enforcement agency or
alternative transportation provider are encouraged to work with the
state-operated psychiatric hospital to delay transportation of the patient
until the state-operated psychiatric hospital can provide a bed.
3. Prior to releasing a patient under
a temporary detention order for transport to a state-operated psychiatric
hospital, providers participating in the State Medicaid Plan must comply with
the applicable Criteria for Medical Assessment Prior to Admission to a
Psychiatric Hospital, Inpatient Psychiatric or Crisis Stabilization Unit found
at http://www.dbhds.virginia.gov/assets/doc/about/masg/adults-medical-and-screening-guidelines-11-5-2018.pdf and http://www.dbhds.virginia.gov/assets/doc/about/masg
/peds-medical-assessment-and-screening-guidelines-11-5-2018.pdf. Such providers shall screen patients under emergency
custody or temporary detention for COVID-19 in accordance with guidance issued
by the Centers for Disease Control and Prevention and the Virginia Department
of Health. In addition, with consent of the patient subject to emergency
custody or temporary detention, such providers should administer a COVID-19
active infection test prior to the transfer of the patient to a state-operated
psychiatric hospital. If no other payment source is available, the Department
of Behavioral Health and Developmental Services will reimburse the provider for
the cost of the test.
4. Hospitals with emergency rooms
that are subject to the federal Emergency Medical Treatment and Labor Act, 42 USC § 1395dd, must
ensure that transfers of patients under temporary detention orders to
state-operated psychiatric hospitals are appropriate transfers. Hospitals with
emergency rooms should take into account a patient's COVID-19 status and
the inability of the state-operated psychiatric hospitals to isolate and treat
such patients properly. Doctors in a hospital where a patient is located for
emergency custody and the state-operated psychiatric hospital must communicate
regarding a patient's COVID-19 status prior to transfer. Law enforcement and
alternative transportation providers involved in the transportation of patients
under temporary detention orders should work with the hospital where the
patient is located for emergency custody and the state-operated psychiatric
hospital to ensure that transport occurs only when safe for the patient.
5. Appropriate use of a medical temporary detention order will
ensure that patients receive the medical care they need and could help to
reduce the census pressures at the state-operated psychiatric hospitals.
Section 37.2-1104 of the Code of Virginia provides a medical temporary
detention process that should be used in certain circumstances to address and
stabilize a patient's medical condition before transfer to a state-operated psychiatric
hospital. For patients experiencing intoxication, using the medical temporary
detention process, where applicable, may alleviate the need for further
psychiatric hospitalization. If a patient undergoing an emergency mental health
evaluation has an acute medical condition, including COVID-19 or intoxication,
and is incapable of making an informed decision regarding treatment,
consideration should be given to whether the criteria for a medical temporary
detention order under § 37.2-1104 of the Code of Virginia are met.
6. Every state-operated psychiatric hospital, community
services board (CSB), behavioral health authority (BHA), and private inpatient
provider licensed by the Department of Behavioral Health and Developmental
Services required to participate in the acute psychiatric bed registry under
§ 37.2-308.1 of the Code of Virginia (Registry) shall update information
included in the Registry whenever there is a change in bed availability, but
not less than twice daily, to assist in the location of facilities of temporary
detention for patients experiencing a mental health crisis.
7. In order to facilitate discharge of patients from
state-operated psychiatric hospitals to increase bed capacity, if the
responsible CSB or behavioral health authority BHA disagrees with a
state-operated psychiatric hospital's identification of a patient as ready for
discharge, the CSB/BHA shall document that disagreement in the patient's
treatment plan within 72 hours of the state-operated psychiatric hospital's identification.
Section 37.2-505(A) (3) of the Code of Virginia governing disagreements
related to discharge shall otherwise apply.
Effective Date of this
Executive Order
This Executive Order shall be effective until the expiration of
Amended Executive Order 51 unless this Order is sooner amended or rescinded by
further executive order.
Given under my hand and under the Seal of the Commonwealth of
Virginia, this 17th day of August, 2020.
/s/ Ralph S. Northam
Governor