Subtitle I. General Provisions.

Chapter 1. Definitions.

§ 37.2-100. Definitions.

As used in this title, unless the context requires a different meaning:

“Abuse” means any act or failure to act by an employee or other person responsible for the care of an individual in a facility or program operated, licensed, or funded by the Department, excluding those operated by the Department of Corrections, that was performed or was failed to be performed knowingly, recklessly, or intentionally, and that caused or might have caused physical or psychological harm, injury, or death to an individual receiving care or treatment for mental illness, developmental disabilities, or substance abuse. Examples of abuse include acts such as:

  1. Rape, sexual assault, or other criminal sexual behavior;
  2. Assault or battery;
  3. Use of language that demeans, threatens, intimidates, or humiliates the individual;
  4. Misuse or misappropriation of the individual’s assets, goods, or property;
  5. Use of excessive force when placing an individual in physical or mechanical restraint;
  6. Use of physical or mechanical restraints on an individual that is not in compliance with federal and state laws, regulations, and policies, professionally accepted standards of practice, or his individualized services plan; and
  7. Use of more restrictive or intensive services or denial of services to punish an individual or that is not consistent with his individualized services plan.“Administrative policy community services board” or “administrative policy board” means the public body organized in accordance with the provisions of Chapter 5 (§ 37.2-500 et seq.) that is appointed by and accountable to the governing body of each city and county that established it to set policy for and administer the provision of mental health, developmental, and substance abuse services. The “administrative policy community services board” or “administrative policy board” denotes the board, the members of which are appointed pursuant to § 37.2-501 with the powers and duties enumerated in subsection A of § 37.2-504 and § 37.2-505 . Mental health, developmental, and substance abuse services are provided through local government staff or through contracts with other organizations and providers.“Behavioral health authority” or “authority” means a public body and a body corporate and politic organized in accordance with the provisions of Chapter 6 (§ 37.2-600 et seq.) that is appointed by and accountable to the governing body of the city or county that established it for the provision of mental health, developmental, and substance abuse services. “Behavioral health authority” or “authority” also includes the organization that provides these services through its own staff or through contracts with other organizations and providers.“Behavioral health services” means the full range of mental health and substance abuse services.“Board” means the State Board of Behavioral Health and Developmental Services.“Commissioner” means the Commissioner of Behavioral Health and Developmental Services.“Community services board” means the public body established pursuant to § 37.2-501 that provides mental health, developmental, and substance abuse services within each city and county that established it; the term “community services board” shall include administrative policy community services boards, operating community services boards, and local government departments with policy-advisory community services boards.“Department” means the Department of Behavioral Health and Developmental Services.“Developmental disability” means a severe, chronic disability of an individual that (i) is attributable to a mental or physical impairment, or a combination of mental and physical impairments, other than a sole diagnosis of mental illness; (ii) is manifested before the individual reaches 22 years of age; (iii) is likely to continue indefinitely; (iv) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency; and (v) reflects the individual’s need for a combination and sequence of special interdisciplinary or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. An individual from birth to age nine, inclusive, who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the criteria described in clauses (i) through (v) if the individual, without services and supports, has a high probability of meeting those criteria later in life.“Developmental services” means planned, individualized, and person-centered services and supports provided to individuals with developmental disabilities for the purpose of enabling these individuals to increase their self-determination and independence, obtain employment, participate fully in all aspects of community life, advocate for themselves, and achieve their fullest potential to the greatest extent possible.“Facility” means a state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or developmental services facility. When modified by the word “state,” “facility” means a state hospital or training center operated by the Department, including the buildings and land associated with it.“Family member” means an immediate family member of an individual receiving services or the principal caregiver of that individual. A principal caregiver is a person who acts in the place of an immediate family member, including other relatives and foster care providers, but does not have a proprietary interest in the care of the individual receiving services.“Hospital,” when not modified by the words “state” or “licensed,” means a state hospital and a licensed hospital that provides care and treatment for persons with mental illness.“Individual receiving services” or “individual” means a current direct recipient of public or private mental health, developmental, or substance abuse treatment, rehabilitation, or habilitation services and includes the terms “consumer,” “patient,” “resident,” “recipient,” or “client.”“Intellectual disability” means a disability, originating before the age of 18 years, characterized concurrently by (i) significant subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.“Licensed hospital” means a hospital or institution, including a psychiatric unit of a general hospital, that is licensed pursuant to the provisions of this title.“Mental health services” means planned individualized interventions intended to reduce or ameliorate mental illness or the effects of mental illness through care, treatment, counseling, rehabilitation, medical or psychiatric care, or other supports provided to individuals with mental illness for the purpose of enabling these individuals to increase their self-determination and independence, obtain remunerative employment, participate fully in all aspects of community life, advocate for themselves, and achieve their fullest potential to the greatest extent possible.“Mental illness” means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.“Neglect” means failure by a person or a program or facility operated, licensed, or funded by the Department, excluding those operated by the Department of Corrections, responsible for providing services to do so, including nourishment, treatment, care, goods, or services necessary to the health, safety, or welfare of an individual receiving care or treatment for mental illness, developmental disabilities, or substance abuse.“Operating community services board” or “operating board” means the public body organized in accordance with the provisions of Chapter 5 (§ 37.2-500 et seq.) that is appointed by and accountable to the governing body of each city and county that established it for the direct provision of mental health, developmental, and substance abuse services. The “operating community services board” or “operating board” denotes the board, the members of which are appointed pursuant to § 37.2-501 with the powers and duties enumerated in subsection A of § 37.2-504 and § 37.2-505 . “Operating community services board” or “operating board” also includes the organization that provides such services, through its own staff or through contracts with other organizations and providers.“Performance contract” means the annual agreement negotiated and entered into by a community services board or behavioral health authority with the Department through which it provides state and federal funds appropriated for mental health, developmental, and substance abuse services to that community services board or behavioral health authority.“Policy-advisory community services board” or “policy-advisory board” means the public body organized in accordance with the provisions of Chapter 5 that is appointed by and accountable to the governing body of each city or county that established it to provide advice on policy matters to the local government department that provides mental health, developmental, and substance abuse services pursuant to subsection A of § 37.2-504 and § 37.2-505. The “policy-advisory community services board” or “policy-advisory board” denotes the board, the members of which are appointed pursuant to § 37.2-501 with the powers and duties enumerated in subsection B of § 37.2-504 .“Service area” means the city or county or combination of cities and counties or counties or cities that is served by a community services board or behavioral health authority or the cities and counties that are served by a state facility.“Special justice” means a person appointed by a chief judge of a judicial circuit for the purpose of performing the duties of a judge pursuant to § 37.2-803 .“State hospital” means a hospital, psychiatric institute, or other institution operated by the Department that provides care and treatment for persons with mental illness.“Substance abuse” means the use of drugs, enumerated in the Virginia Drug Control Act (§ 54.1-3400 et seq.), without a compelling medical reason or alcohol that (i) results in psychological or physiological dependence or danger to self or others as a function of continued and compulsive use or (ii) results in mental, emotional, or physical impairment that causes socially dysfunctional or socially disordering behavior and (iii), because of such substance abuse, requires care and treatment for the health of the individual. This care and treatment may include counseling, rehabilitation, or medical or psychiatric care.“Training center” means a facility operated by the Department that provides training, habilitation, or other individually focused supports to persons with intellectual disability.

History. Code 1950, §§ 37-1.1, 37-34.2:1, 37-254.1; 1950, pp. 899, 935; 1954, c. 668; 1958, c. 556; 1960, c. 133; 1964, cc. 483, 640; 1968, c. 477, § 37.1-1 ; 1972, cc. 635, 639; 1973, c. 465; 1974, c. 301; 1976, cc. 671, 767, § 37.1-203; 1979, c. 54; 1980, c. 582; 1982, c. 50; 1983, c. 538; 1984, c. 209; 1987, c. 413; 1994, c. 939; 1995, c. 693, § 15.1-1677; 1996, c. 861; 1997, c. 587, § 37.1-243; 1998, cc. 680, 724, § 37.1-1 94.1; 1999, c. 969; 2005, c. 716; 2009, cc. 813, 840; 2012, cc. 476, 507; 2015, c. 750; 2017, c. 458.

Transition provisions.

Title 37.1 has been rewritten, primarily as new Title 37.2, by Acts 2005, c. 716, effective October 1, 2005.

In addition to revision by Acts 2005, c. 716, some of the former sections in Title 37.1 were also amended by other acts passed at the 2005 Session. As required by § 30-152, the Code Commission has incorporated these amendments into the new sections.

Where appropriate, the historical citations to former sections have been added to corresponding new sections.

The case notes appearing under new sections were decided under corresponding former sections or under prior law.

Acts 2005, c. 716, cl. 2, effective October 1, 2005, provides: “That whenever any of the conditions, requirements, provisions, or contents of any section or chapter of Title 37.1 or any other title of the Code of Virginia as such titles existed prior to October 1, 2005, are transferred in the same or modified form to a new section or chapter of Title 37.2 or any other title of the Code and whenever any such former section or chapter is given a new number in Title 37.2 or any other title, all references to any such former section or chapter of Title 37.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents, or portions thereof.”

Acts 2005, c. 716, cl. 3, effective October 1, 2005, provides: “That the regulations of any department or agency affected by the revision of Title 37.1 or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act.”

Acts 2005, c. 716, cl. 4, effective October 1, 2005, provides: “That this title revision of Title 37.1 as Title 37.2 shall not be construed to require the reappointment of any officer or any member of a board, council, committee, or other appointed body referred to in Title 37.2 and each such officer and member shall continue to serve for the term for which appointed pursuant to the provisions of Title 37.1.”

Acts 2005, c. 716, cl. 5, effective October 1, 2005, provides: “That the provisions of § 30-152 of the Code of Virginia shall apply to the codification of Title 37.2 so as to give effect to other laws enacted by the 2005 session of the General Assembly, notwithstanding the delay in the effective date of this act.”

Acts 2005, c. 716, cl. 6, effective October 1, 2005, provides: “That the repeal of Title 37.1, effective as of October 1, 2005, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that day. Except as otherwise provided in this act, neither the repeal of Title 37.1 nor the enactment of Title 37.2 shall apply to offenses committed prior to October 1, 2005, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this enactment, an offense was committed prior to October 1, 2005, if any of the essential elements of the offense occurred prior thereto.”

Acts 2005, c. 716, cl. 7, effective October 1, 2005, provides: “That any notice given, recognizance taken, or process or writ issued before October 1, 2005, shall be valid although given, taken, or to be returned to a day after such date, in like manner as if Title 37.2 had been effective before the same was given, taken, or issued.”

Acts 2005, c. 716, cl. 8, effective October 1, 2005, provides: “That if any clause, sentence, paragraph, subdivision, or section of Title 37.2 shall be adjudged in any court of competent jurisdiction to be invalid, the judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, or section thereof directly involved in the controversy in which the judgment shall have been rendered, and to this end the provisions of Title 37.2 are declared severable.”

Cross references.

As to the Substance Abuse Services Council, see § 2.2-2696 . As to access to assisted living facilities by community services boards and behavioral health agencies, see § 63.2-1801 .

Editor’s note.

Acts 2009, cc. 813 and 840, cl. 2 provides: “That the regulations adopted by the State Mental Health, Mental Retardation and Substance Abuse Services Board in effect on the effective date of this act shall continue in effect until such time as amended or repealed by the State Board of Behavioral Health and Developmental Services.”

Acts 2009, cc. 813 and 840, cl. 3 provides: “That, as of the effective date of this act, the Department of and Office of Inspector General for Behavioral Health and Developmental Services shall be deemed the successor in interest to the Department of and Office of Inspector General for Mental Health, Mental Retardation and Substance Abuse Services to the extent that this act transfers powers and duties. All rights, title and interest in and to any real or tangible personal property vested in the Department of and Office of Inspector General for Mental Health, Mental Retardation and Substance Abuse Services to the extent that this act transfers powers and duties as of the effective date of this act shall be transferred to and taken as standing in the name of the Department of and Office of Inspector General for Behavioral Health and Developmental Services.”

Effective date.

This title became effective October 1, 2005.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “State Board of Behavioral Health and Developmental Services Board” for “State Mental Health, Mental Retardation and Substance Abuse Services Board” in the paragraph defining “Board,” “Commissioner of Behavioral Health and Developmental Services” for “Commissioner of Mental Health, Mental Retardation and Substance Abuse Services” in the paragraph defining “Commissioner,” and “Department of Behavioral Health and Developmental Services” for “Department of Mental Health, Mental Retardation and Substance Abuse Services” in the paragraph defining “Department.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “an individual” for “a person,” “individual’s” for “person’s” and “developmental” for “mental retardation” throughout the section; in the definition of “Abuse,” substituted “intellectual disability” for “mental retardation” near the end of the introductory paragraph and “or his individualized” for “or the person’s individualized” near the end of paragraph 6; in the paragraph defining “Behavioral health authority,” inserted “(§ 37.2-600 et seq.)” in the first sentence and “these services” for “such services” in the second sentence; added the paragraphs defining “Behavioral health services,” “Developmental services,” “Individual receiving services,” “Intellectual disability” and “Mental health services”; deleted the former definitions of “Consumer” and “Mental retardation”; in the paragraph defining “Family member,” substituted “of an individual receiving services or the principal caregiver of that individual” for “of a consumer or the principal caregiver of a consumer” at the end of the first sentence and “of the individual receiving services” for “of the consumer” at the end of the second sentence; in the paragraph defining “Neglect,” substituted “intellectual disability” for “mental retardation” near the end; in the paragraph defining “Operating community services board,” inserted “(§ 37.2-500 et seq.)”; and in the paragraph defining “Training center,” substituted “that provides training, habilitation, or other individually focused supports to persons with intellectual disability” for “for the treatment, training, or habilitation of, persons with mental retardation.”

The 2015 amendments.

The 2015 amendment by c. 750 added the definition for “Developmental disability.”

The 2017 amendments.

The 2017 amendment by c. 458 substituted “developmental disabilities” for “intellectual disability” throughout the section.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.07 Specific Types of Parties — Various Actions; Chapter 18 Juries and Jurors. § 18.04 Who May Serve as Jurors; Chapter 27 Property Actions. § 27.05 Sale, Lease, Etc., of Lands of Persons under a Disability; Chapter 32 Juvenile Domestic Relations Courts; Family Courts; Small Claim Courts; Commissioners in Chancery: Local Rules of Court. § 32.02 Proceedings in Juvenile and Domestic Relations Courts. Friend.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 10.

CASE NOTES

An habitual offender adjudication rendered against a person under a disability for whom no guardian ad litem has been appointed is merely voidable; absent a showing that the offender was incapable of understanding the nature of the proceedings against him or of defending his interest, he may not collaterally attack the habitual offender adjudication. Graham v. Commonwealth, 18 Va. App. 303, 443 S.E.2d 586, 10 Va. Law Rep. 1338, 1994 Va. App. LEXIS 254 (1994) (decided under prior law).

Adjudication as an habitual offender held voidable. —

Where evidence showed that appellant was personally served with a show cause order on November 14, 1986, while in jail, he was adjudicated an habitual offender in his absence on December 16, 1986, and was served with a copy of the adjudication on February 3, 1987, and although appellant presented evidence to show that he was an alcoholic at the time of the adjudication, his expert witness testified that appellant would have been able to understand the legal process if he were sober and not suffering from alcohol withdrawal and appellant presented no evidence to show that, at the time he received the show cause order in jail, he was suffering from any sort of alcohol withdrawal which would have prevented him from understanding the nature of the proceedings against him, appellant’s adjudication in the absence of a guardian ad litem was voidable only and may not be set aside in a collateral proceeding. Graham v. Commonwealth, 18 Va. App. 303, 443 S.E.2d 586, 10 Va. Law Rep. 1338, 1994 Va. App. LEXIS 254 (1994) (decided under prior law).

Need for guardian ad litem not found. —

Where defendant contended that at the time of his habitual offender adjudication, he was an alcoholic and a person under disability, the court’s failure to appoint a guardian ad litem to represent him did not render the adjudication void and subject to collateral attack. Absent a showing of actual incapacity, a judgment against an alcoholic is voidable only, not subject to collateral attack. The record supported the trial court’s determination that, at the time of his habitual offender adjudication defendant’s condition did not require the appointment of a guardian ad litem. Eagleston v. Commonwealth, 18 Va. App. 469, 445 S.E.2d 161, 10 Va. Law Rep. 1559, 1994 Va. App. LEXIS 363 (1994) (decided under prior law).

§ 37.2-101. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title the Board, the Commissioner, or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, the Commissioner, or the Department may be sent by regular mail.

History. 2011, c. 566.

Chapter 2. State Board of Behavioral Health and Developmental Services.

§ 37.2-200. State Board of Behavioral Health and Developmental Services.

  1. The State Board of Behavioral Health and Developmental Services is established as a policy board, within the meaning of § 2.2-2100 , in the executive branch of government. The Board shall consist of nine nonlegislative citizen members to be appointed by the Governor, subject to confirmation by the General Assembly. The nine members shall consist of one individual who is receiving or who has received services, one family member of  an individual who is receiving or who has received services, one individual who is receiving or who has received services or family member of such individual, one elected local government official, one psychiatrist licensed to practice in Virginia, and four citizens of the Commonwealth at large. The Governor, in appointing the psychiatrist member, may make his selection from nominations submitted by the Medical Society of Virginia in collaboration with the Psychiatric Society of Virginia and the Northern Virginia Chapter of the Washington Psychiatric Society.
  2. Appointments shall be made for terms of four years each, except appointments to fill vacancies that shall be for the unexpired terms of vacated appointments. Vacancies shall be filled in the same manner as the original appointments. All members may be reappointed. However, no member shall be eligible to serve more than two four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. No person shall serve more than a total of 12 years. Members of the Board may be suspended or removed by the Governor at his pleasure.
  3. Members of the Board shall receive compensation for their services and shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825 . The Board is authorized to employ a secretary to assist in the Board’s administrative duties. The compensation of the secretary shall be fixed by the Board within the specific limits of the appropriation made therefor by the General Assembly, and the compensation shall be subject to the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2. The secretary shall perform the duties required of him by the Board. The Department and all other agencies of the Commonwealth shall provide assistance to the Board upon request.
  4. The main office of the Board shall be in the City of Richmond. The Board shall meet quarterly and at such other times as it deems proper. The Board shall elect a chairman and vice-chairman from among its membership. The meetings of the Board shall be held at the call of the chairman or whenever the majority of the members so request. Five members shall constitute a quorum.
  5. The chairman of the Board shall submit to the Governor and the General Assembly an annual executive summary of the activity and work of the Board no later than the first day of each regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

History. Code 1950, §§ 37-27 to 37-31; 1956, c. 105; 1968, cc. 477, 502, §§ 37.1-3 to 37.1-7; 1974, c. 509; 1976, c. 671; 1980, c. 582; 1993, c. 178; 1998, c. 447; 2002, c. 50; 2005, c. 716; 2009, cc. 813, 840; 2012, cc. 476, 507.

Editor’s note.

Acts 2009, cc. 813 and 840, cl. 2 provides: “That the regulations adopted by the State Mental Health, Mental Retardation and Substance Abuse Services Board in effect on the effective date of this act shall continue in effect until such time as amended or repealed by the State Board of Behavioral Health and Developmental Services.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “State Board of Behavioral Health and Developmental Services” for “State Mental Health, Mental Retardation and Substance Abuse Services Board” at the beginning of subsection A.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “one individual who is receiving or who has received services, one family member of a an individual who is receiving or who has received services, one individual who is receiving or who has received services or family member of such individual,” for “one consumer or former consumer, one family member of a consumer or former consumer, one consumer or former consumer or family member of a consumer or former consumer,” in the third sentence of subsection A.

CASE NOTES

Former general board of directors for state hospitals for the insane was a public corporation. Western State Hosp. v. General Bd. of State Hosps. for Insane, 112 Va. 230 , 70 S.E. 505 , 1911 Va. LEXIS 75 (1911).

§ 37.2-201. Internal evaluation committee of Board.

The Board shall appoint an internal evaluation committee to be composed of at least three members of the Board who shall review and evaluate the effects of designated policies of the Board and the performance of the Department, state facilities, community services boards, and behavioral health authorities in carrying out those policies. The committee and any staff designated by the Commissioner shall have access to all records of the Department, state facilities, community services boards, and behavioral health authorities in carrying out these monitoring activities. The committee shall report its findings to the Board, which shall take action thereon as it deems appropriate.

History. 1980, c. 582, § 37.1-10.1; 2005, c. 716.

§ 37.2-202. Members not eligible for positions in Department.

No member of the Board shall be eligible for any position in the Department during the term for which he is appointed or for 12 months thereafter.

History. Code 1950, § 37-35; 1968, c. 477, § 37.1-19; 1976, c. 671; 2005, c. 716.

§ 37.2-203. Powers and duties of Board.

The Board shall have the following powers and duties:

  1. To develop and establish programmatic and fiscal policies governing the operation of state hospitals, training centers, community services boards, and behavioral health authorities;
  2. To ensure the development of long-range programs and plans for mental health, developmental, and substance abuse services provided by the Department, community services boards, and behavioral health authorities;
  3. To review and comment on all budgets and requests for appropriations for the Department prior to their submission to the Governor and on all applications for federal funds;
  4. To monitor the activities of the Department and its effectiveness in implementing the policies of the Board;
  5. To advise the Governor, Commissioner, and General Assembly on matters relating to mental health, developmental, and substance abuse services;
  6. To adopt regulations that may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Commissioner or the Department;
  7. To ensure the development of programs to educate citizens about and elicit public support for the activities of the Department, community services boards, and behavioral health authorities;
  8. To ensure that the Department assumes the responsibility for providing for education and training of school-age individuals receiving services in state facilities, pursuant to § 37.2-312 ;
  9. To change the names of state facilities; and
  10. To adopt regulations that establish the qualifications, education, and experience for registration of peer recovery specialists by the Board of Counseling.Prior to the adoption, amendment, or repeal of any regulation regarding substance abuse services, the Board shall, in addition to the procedures set forth in the Administrative Process Act (§ 2.2-4000 et seq.), present the proposed regulation to the Substance Abuse Services Council, established pursuant to § 2.2-2696 , at least 30 days prior to the Board’s action for the Council’s review and comment.

History. Code 1950, §§ 37-1 , 37-2, 37-4, 37-5, 37-34; 1954, c. 668; 1960, c. 133; 1968, c. 477, §§ 37.1-10, 37.1-34; 1976, cc. 671, 739, § 37.1-223; 1979, c. 41; 1980, c. 582; 1984, c. 720; 1985, c. 207; 1998, c. 724; 2005, c. 716; 2012, cc. 476, 507; 2017, cc. 418, 426.

Editor’s note.

Act 2017, c. 136, cl. 1 provides: “§ 1. That the State Board of Behavioral Health and Developmental Services (the Board) shall amend 12VAC35-105-20 of the Virginia Administrative Code to include (i) occupational therapists in the definitions of Qualified Mental Health Professional-Adult, Qualified Mental Health Professional-Child, and Qualified Mental Retardation Professional and (ii) occupational therapy assistants in the definition of Qualified Paraprofessional in Mental Health. In amending these definitions, the Board shall require educational and clinical experience for occupational therapists and occupational therapy assistants that is substantially equivalent to comparable professionals listed in current regulations.”

Acts 2017, c. 136, cl. 2 provides: “That the State Board of Behavioral Health and Developmental Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2017, cc. 418 and 426, cl. 2 provides: “That the Board of Behavioral Health and Developmental Services and the Board of Counseling shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2018, c. 572, cl. 1 provides: “That the State Board of Behavioral Health and Developmental Services shall amend regulations governing licensure of providers of behavioral health services to include behavior analysts in the definition of ‘licensed mental health professional.’ ”

Acts 2018, c. 572, cl. 2 provides: “That the State Board of Behavioral Health and Developmental Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” in subdivisions 2 and 5, and “individuals receiving services” for “consumers” in 8.

The 2017 amendments.

The 2017 amendments by cc. 418 and 426 are identical, and inserted subdivision 10 and made related changes.

CASE NOTES

Editor’s note.

The cases annotated below were decided under prior law.

Former general board of directors for state hospitals for the insane was a public corporation. Western State Hosp. v. General Bd. of State Hosps. for Insane, 112 Va. 230 , 70 S.E. 505 , 1911 Va. LEXIS 75 (1911).

A state hospital for the insane is a public corporation governed and controlled by the State. Although, under its charter, it may sue and be sued, regard must be had to the objects for which it was established in order to determine its liability. Maia's Adm'r v. Eastern State Hosp., 97 Va. 507 , 34 S.E. 617 , 1899 Va. LEXIS 65 (1899) (holding that the Eastern State Hospital is such a corporation).

When a hospital accepts a trust it stands on the same footing as any other trustee. The legislature may prohibit it from accepting the trust, but, when once accepted, the trust subject must be applied to the purpose to which it has been dedicated by the grantor. General Bd. of State Hosps. for Insane v. Robertson, 115 Va. 527 , 79 S.E. 1064 , 1913 Va. LEXIS 66 (1913).

And private property donated by a testator to a well-defined valid trust cannot be diverted by the legislature to a distinctly different object. Hence, where land was devised to the Western State Hospital in trust for the benefit of its inmates, Acts 1906, p. 36, establishing an epileptic colony on such land, was invalid as being an unlawful diversion of trust funds. General Bd. of State Hosps. for Insane v. Robertson, 115 Va. 527 , 79 S.E. 1064 , 1913 Va. LEXIS 66 (1913).

§ 37.2-203.1. Licensed provider; statement to prospective employer.

The Board of Behavioral Health and Developmental Services shall amend regulations governing licensed providers to require that every licensed provider provide a statement regarding a current or past employee or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506 to any other licensed provider with which the current or past employee has applied for employment or to fill a role that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506 . The statement shall address the character, ability, and fitness for employment in or to otherwise fill the role for which the person has applied and shall be provided upon receipt of a request for such information from the other licensed provider and written consent to the disclosure of such information executed by the current or past employee or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506. Nothing in the amended regulations shall require disclosure of information subject to privilege or confidentiality pursuant to § 8.01-581.16 , 8.01-581.17 , or 32.1-127.1:03 or federal law.

History. 2019, c. 776, § 32.1-326.4.

Editor’s note.

Acts 2019, c. 776 was codified as § 32.1-326.4 at the direction of the Virginia Code Commission. Effective March 9, 2021, former § 32.1-326.4 was renumbered as this section at the direction of the Virginia Code Commission.

§ 37.2-204. Appointments to state and local human rights committees.

The Board shall appoint a state human rights committee that shall appoint local human rights committees to address alleged violations of human rights of individuals receiving services. One-third of the appointments made to the state or local human rights committees shall be individuals who are receiving or who have received services or family members of such individuals, with at least two individuals who are receiving or who have received public or private mental health, developmental, or substance abuse treatment or habilitation services within five years of the date of their initial appointment on each committee. In addition, at least one appointment to the state and each local human rights committee shall be a health care provider. Remaining appointments shall include lawyers and persons with interest, knowledge, or training in the mental health, developmental, or substance abuse services field. No current employee of the Department, a community services board, or a behavioral health authority shall serve as a member of the state human rights committee. No current employee of the Department, a community services board, a behavioral health authority, or any facility, program, or organization licensed or funded by the Department or funded by a community services board or behavioral health authority shall serve as a member of any local human rights committee that serves an oversight function for the employing facility, program, or organization.

History. 1999, c. 969, § 37.1-84.3; 2001, c. 453; 2005, cc. 201, 716; 2012, cc. 476, 507.

Editor’s note.

Acts 2005, c. 201 amended former § 37.1-84.3, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendments by c. 201 have been given effect in this section as set out above by adding the third sentence and deleting “health care providers” following “lawyers” in the fourth sentence.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and rewrote the first sentence, and substituted “mental health, developmental, or substance abuse services field” for “mental health, mental retardation, or substance abuse field” at the end of the third sentence.

Chapter 3. Department of Behavioral Health and Developmental Services.

Article 1. The Department and the Commissioner.

§ 37.2-300. Creation and supervision of Department.

The Department of Behavioral Health and Developmental Services is hereby established in the executive branch of government responsible to the Governor. The Department shall be under the supervision and management of the Commissioner. The Commissioner shall carry out his management and supervisory responsibilities in accordance with the policies and regulations of the Board and applicable federal and state statutes and regulations.

History. Code 1950, §§ 14-22, 37-53; 1950, p. 902; 1964, c. 386, § 14.1-16; 1968, c. 477, § 37.1-39; 1972, c. 639; 1976, c. 671; 1980, c. 582; 1998, c. 872; 2005, c. 716; 2009, cc. 813, 840.

Editor’s note.

Acts 2019, c. 685 provides: “§ 1. That the Department of Behavioral Health and Developmental Services shall convene a work group to include representatives of the Office of the Attorney General, community services boards, local and regional jails, and such other stakeholders as it deems necessary to study the issue of and develop a plan for sharing of protected health information of individuals with mental health treatment needs who have been confined to a local or regional jail in the Commonwealth and who have previously received mental health treatment from a community services board or behavioral health authority in the Commonwealth. Such plan shall include a mechanism for (i) determining if an individual confined in a local or regional jail has previously received treatment from a community services board or behavioral health authority in the Commonwealth and (ii) in cases in which such person has received such treatment, transferring protected health information related to such treatment from the identified community services board to the sheriff or superintendent of the local or regional jail in which the person is confined. The Department shall report by October 1, 2019, to the Governor and the General Assembly on (a) development of the plan, (b) the content of the plan, and (c) the steps necessary to implement the plan, including any statutory or regulatory changes and any appropriations.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Department of Behavioral Health and Developmental Services” for “Department of Mental Health, Mental Retardaton and Substance Abuse Services” at the beginning of the first sentence.

§ 37.2-301. Appointment of Commissioner.

The Commissioner shall be appointed by the Governor, subject to confirmation by the General Assembly, if in session when the appointment is made or, if not in session, at its next session.

History. Code 1950, § 37-54; 1968, c. 477, § 37.1-40; 1976, c. 671; 2005, c. 716.

§ 37.2-302. Term of office and vacancy therein.

The Commissioner shall hold office at the pleasure of the Governor for a term coincident with that of the Governor making the appointment or until his successor shall be appointed and qualified. Vacancies shall be filled in the same manner as original appointments are made.

History. Code 1950, § 37-55; 1968, c. 477, § 37.1-41; 2005, c. 716.

§ 37.2-303. Qualifications of Commissioner.

The Commissioner shall be a person of proven executive and administrative ability and shall have had appropriate education and substantial experience in the fields of mental health, developmental, or substance abuse services.

History. Code 1950, § 37-56; 1968, c. 477, § 37.1-42; 1976, c. 671; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “mental health, developmental, or substance abuse services” for “mental health, mental retardation, or substance abuse.”

§ 37.2-304. Duties of Commissioner.

The Commissioner shall be the chief executive officer of the Department and shall have the following duties and powers:

  1. To supervise and manage the Department and its state facilities.
  2. To employ the personnel required to carry out the purposes of this title.
  3. To make and enter into all contracts and agreements necessary or incidental to the performance of the Department’s duties and the execution of its powers under this title, including contracts with the United States, other states, and agencies and governmental subdivisions of the Commonwealth, consistent with policies and regulations of the Board and applicable federal and state statutes and regulations.
  4. To accept, hold, and enjoy gifts, donations, and bequests on behalf of the Department from the United States government, agencies and instrumentalities thereof, and any other source, subject to the approval of the Governor. To these ends, the Commissioner shall have the power to comply with conditions and execute agreements that may be necessary, convenient, or desirable, consistent with policies and regulations of the Board.
  5. To accept, execute, and administer any trust in which the Department may have an interest, under the terms of the instruments creating the trust, subject to the approval of the Governor.
  6. To transfer between state hospitals and training centers school-age individuals who have been identified as appropriate to be placed in public school programs and to negotiate with other school divisions for placements in order to ameliorate the impact on those school divisions located in a jurisdiction in which a state hospital or training center is located.
  7. To provide to the Director of the Commonwealth’s designated protection and advocacy system, established pursuant to § 51.5-39.13 , a written report setting forth the known facts of (i) critical incidents, as that term is defined in § 37.2-709.1 , or deaths of individuals receiving services in facilities, within 15 working days of such critical incident or death; (ii) serious incidents and deaths that are required to be reported to the Department through its incident reporting system, as required by regulations adopted by the Board pursuant to Chapter 4 (§ 37.2-400 et seq.), within 15 working days of the date the report is received; and (iii) allegations of abuse or neglect that are required to be reported pursuant to regulations adopted by the Board pursuant to Chapter 4 (§ 37.2-400 et seq.), within five working days of the date on which the director’s final decision on the allegation is reported to the Department.
  8. To work with the appropriate state and federal entities to ensure that any individual who has received services in a state facility for more than one year has possession of or receives prior to discharge any of the following documents, when they are needed to obtain the services contained in his discharge plan: a Department of Motor Vehicles approved identification card that will expire 90 days from issuance, a copy of his birth certificate if the individual was born in the Commonwealth, or a social security card from the Social Security Administration. State facility directors, as part of their responsibilities pursuant to § 37.2-837 , shall implement this provision when discharging individuals.
  9. To work with the Department of Veterans Services and the Department for Aging and Rehabilitative Services to establish a program for mental health and rehabilitative services for Virginia veterans and members of the Virginia National Guard and Virginia residents in the Armed Forces Reserves not in active federal service and their family members pursuant to § 2.2-2001.1 .
  10. To establish and maintain a pharmaceutical and therapeutics committee composed of representatives of the Department of Medical Assistance Services, state facilities operated by the Department, community services boards, at least one health insurance plan, and at least one individual receiving services to develop a drug formulary for use at all community services boards, state facilities operated by the Department, and providers licensed by the Department.
  11. To establish and maintain the Commonwealth Mental Health First Aid Program pursuant to § 37.2-312.2 .
  12. To submit a report for the preceding fiscal year by December 1 of each year to the Governor and the Chairmen of the House Committee on Appropriations and Senate Committee on Finance and Appropriations that provides information on the operation of Virginia’s publicly funded behavioral health and developmental services system. The report shall include a brief narrative and data on the number of individuals receiving state facility services or community services board services, including purchased inpatient psychiatric services; the types and amounts of services received by these individuals; and state facility and community services board service capacities, staffing, revenues, and expenditures. The annual report shall describe major new initiatives implemented during the past year and shall provide information on the accomplishment of systemic outcome and performance measures during the year.
  13. To establish a comprehensive program for the prevention and treatment of problem gambling in the Commonwealth and administer the Problem Gambling Treatment and Support Fund established pursuant to § 37.2-314.2 .Unless specifically authorized by the Governor to accept or undertake activities for compensation, the Commissioner shall devote his entire time to his duties.

History. 1976, c. 671, § 37.1-42.1; 1980, c. 582; 1985, c. 158; 2000, cc. 565, 610; 2002, c. 572; 2003, c. 516; 2005, c. 716; 2008, cc. 584, 754; 2011, c. 473; 2012, cc. 476, 507, 803, 835, 847; 2013, c. 571; 2016, cc. 94, 407, 686; 2017, cc. 418, 426, 455, 470; 2020, cc. 1197, 1218, 1248, 1256; 2021, Sp. Sess. I, cc. 64, 65.

Editor’s note.

Acts 2011, c. 473, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services shall establish the pharmaceutical and therapeutics committee pursuant to subdivision 10 of § 37.2-304 of the Code of Virginia no later than July 1, 2011.”

Acts 2012, c. 847, cl. 3, as amended by Acts 2013, c. 571, cl. 2, provides: “That the provisions of this act amending §§ 2.2-510 , 37.2-304 , and 37.2-709 of the Code of Virginia shall be effective on January 1, 2014.”

Acts 2012, c. 847, cl. 4 provides: “That the Director of the Virginia Office for Protection and Advocacy shall, together with the Secretary of Health and Human Resources or his designee, develop a plan for implementation of the provisions of this act and shall report on such plan to the Governor and the General Assembly no later than December 1, 2013.”

Acts 2012, c. 847, cl. 5 provides: “That any regulations adopted by the Board for Protection and Advocacy being abolished by the first enactment of this act that are in effect before January 1, 2014, are hereby repealed as of that date. The Registrar of Regulations shall take appropriate administrative action to effect the repeal of the regulations in the Virginia Administrative Code.”

Acts 2013, c. 571, cl. 3 provides: “That the provisions of this act amending §§ 2.2-2905 , 2.2-3705.3 , 37.2-304 , and 37.2-709 of the Code of Virginia shall become effective January 1, 2014.”

Acts 2017, cc. 94 and 97 provide: “§ 1. The Commissioner of Behavioral Health and Developmental Services (the Commissioner) and the Director of Criminal Justice Services (the Director) shall, in conjunction with the relevant stakeholders, including the Virginia Association of Community Services Boards, the National Alliance on Mental Illness — Virginia, the Department of Medical Assistance Services, the Office of Emergency Medical Services, Mental Health America of Virginia, VOCAL, Inc., the Virginia Hospital and Healthcare Association, the Virginia Association of Health Plans, the Office of the Executive Secretary of the Supreme Court of Virginia, the Virginia Association of Chiefs of Police, the Virginia Sheriffs’ Association, the Virginia Association of Regional Jails, and the University of Virginia Institute of Law, Psychiatry, and Public Policy, develop a model for the use of alternative transportation providers to provide safe and efficient transportation of individuals involved in the emergency custody or involuntary admission process as an alternative to transportation by law enforcement.

“The model shall include criteria for the certification of alternative transportation providers, including the development of a training curriculum required to achieve such certification, and shall identify the appropriate agency responsible for providing such training and such certification. Further, the Commissioner and the Director shall identify any barriers to the use of alternative transportation in the Commonwealth and detail the costs associated with the implementation of such a model, along with the cost savings and benefits associated with the successful implementation of such a model.

“The model shall be completed by October 1, 2017, and reported to the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century, the House Committee for Courts of Justice, and the Senate Committee for Courts of Justice. The report on such model shall also be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2018 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

Acts 2017, cc. 137 and 192 provide: Ҥ 1. The Commissioner of Behavioral Health and Developmental Services (the Commissioner) shall, in conjunction with the relevant stakeholders, review the availability of forensic discharge planning services at local and regional correctional facilities for persons who have serious mental illnesses who are to be released from such facilities. The Commissioner shall develop a comprehensive plan for the provision of forensic discharge planning services for such persons at local or regional correctional facilities, which shall include the requirement that each facility have access to a discharge planner, and shall detail the cost considerations associated with the implementation of such a plan as well as any cost savings and benefits associated with the successful implementation of such a plan.

“The plan shall be completed by November 1, 2017, and reported to the Chairmen of the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century, the House Committee for Courts of Justice, and the Senate Committee for Courts of Justice. The report on such plan shall also be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2018 Regular Session of the General Assembly and shall be posted on the General Assembly’s website.”

Acts 2017, cc. 418 and 426, cl. 2 provides: “That the Board of Behavioral Health and Developmental Services and the Board of Counseling shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2020, cc. 918 and 919, cl. 1 provides: “That the Commissioner of Behavioral Health and Developmental Services shall establish a work group to (i) review the current process for conducting evaluations of persons who are subject to emergency custody orders to determine whether they meet the criteria for temporary detention, including any challenges or barriers to timely completion of such evaluations and factors giving rise to delays in completion of such evaluations, and (ii) develop a comprehensive plan to expand the individuals who may conduct effective evaluations of persons who are subject to emergency custody orders to determine whether they meet the criteria for temporary detention. The work group shall consider other states’ experiences in expanding the individuals who may conduct evaluations of persons subject to emergency custody orders. Such comprehensive plan shall include specific recommendations for legislative or budget actions necessary to implement the plan. The work group shall include representatives of the Virginia Association of Community Services Boards, the National Alliance on Mental Illness — Virginia, the Virginia Organization of Consumers Asserting Leadership (VOCAL), the Psychiatric Society of Virginia, the Virginia College of Emergency Physicians, the Medical Society of Virginia, and such other stakeholders as the Commissioner may deem appropriate. The work group shall report its findings and conclusions and the comprehensive plan to the Governor and the Chairmen of the House Committee on Health, Welfare and Institutions, the Senate Committee on Education and Health, and the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century by December 1, 2020.”

Acts 2020, cc. 1197 and 1248, cl. 2 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, cc. 1197 and 1248, cl. 3 provides: “That the Virginia Lottery Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2020, cc. 1218 and 1256, cl. 2 provides: “That the Virginia Lottery Board (the Board) shall promulgate regulations implementing the provisions of this act. The Board’s initial adoption of regulations shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption. The Board shall complete work on such regulations no later than September 15, 2020.”

The 2008 amendments.

The 2008 amendments by cc. 584 and 754 are identical, and added subdivision 9.

The 2011 amendments.

The 2011 amendment by c. 473 added subdivision 10.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “consumers” in subdivision 6, “individuals receiving services” for “consumers” in subdivision 7, “individual who has received services” for “person who has been a consumer,” “individual” for “consumer” and “individuals” for “consumers” in subdivision 8, and “at least one individual receiving services” for “at least one consumer” in subdivision 10.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and substituted “Department for Aging and Rehabilitative Services” for “Department of Rehabilitative Services” in subsection 9.

The 2012 amendments.

The 2012 amendment by c. 847, effective January 1, 2014, substituted “established pursuant to § 51.5-39.13 ” for “pursuant to § 51.5-39.12”. For effective date, see Editor’s note.

The 2013 amendments.

The 2013 amendment by c. 571, effective January 1, 2014, substituted “Commonwealth’s designated protection and advocacy system” for “Virginia Office for Protection and Advocacy” in both versions of subdivision 7.

The 2016 amendments.

The 2016 amendment by c. 94 added subdivision 11.

The 2016 amendment by c. 407 added subdivision 11 and was redesignated at the direction of the Virginia Code Commission as subdivision 12.

The 2016 amendment by c. 686 added subdivision 11 and was redesignated at the direction of the Virginia Code Commission as subdivision 13.

The 2017 amendments.

The 2017 amendments by cc. 418 and 426 are identical, and deleted former subdivision 11, which read “To certify individuals as peer providers in accordance with regulations adopted by the Board” and made related changes.

The 2017 amendments by cc. 455 and 470 are identical, and in subdivision 7, inserted the clause (i) designation and “as that term is defined in § 37.2-709.1 ,” “and (ii) serious injuries, as that term is defined in regulations adopted by the Board pursuant to § 37.2-400 , or deaths of individuals receiving services in programs operated or licensed by the Department” and “serious injury.”

The 2020 amendments.

The 2020 amendments by cc. 1197 and 1248 are identical, and substituted “House Committee on Appropriations and Senate Committee on Finance and Appropriations” for “House Appropriations and Senate Finances Committees” in subdivision 12; and inserted subdivision 13 before the final paragraph of the section.

The 2020 amendments by cc. 1218 and 1256 are identical, and added subdivision 13.

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 64 and 65, effective July 1, 2021, are identical, and in subdivision 7, inserted “within 15 working days of such critical incident or death” in clause (i), and rewrote clause (ii), which read “serious injuries, as that term is defined in regulations adopted by the Board pursuant to § 37.2-400 , or deaths of individuals receiving services in programs operated or licensed by the Department within 15 working days of the critical incident, serious injury, or death” and added clause (iii).

§ 37.2-305. Receiving gifts and endowments.

The Commissioner may receive gifts, bequests, and endowments to or for state facilities in their names or to or for any individual receiving services in state facilities. When gifts, bequests, and endowments are accepted by the Commissioner, he shall well and faithfully administer such trusts.

History. Code 1950, § 37-37; 1960, c. 134; 1968, c. 477, § 37.1-22; 1976, c. 671; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services” for “consumer” at the end of the first sentence.

§ 37.2-306. Research into causes of mental illness, developmental disabilities, substance abuse, and related subjects.

The Commissioner is hereby directed to promote research into the causes of mental illness, developmental disabilities, and substance abuse throughout the Commonwealth. The Commissioner shall encourage the directors of the state facilities and their staffs in the investigation of all subjects relating to mental illness, developmental disabilities, and substance abuse. In these research programs, the Commissioner shall make use, insofar as practicable, of the services and facilities of medical schools and the hospitals allied with them.

History. Code 1950, §§ 37-14, 37-38.1; 1950, p. 900; 1958, c. 610; 1968, c. 477, § 37.1-24; 1972, c. 639; 1976, c. 671; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507; 2017, c. 458.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “intellectual disability” for “mental retardation” twice.

The 2017 amendments.

The 2017 amendment by c. 458 substituted “developmental disabilities” for “intellectual disability” twice.

§ 37.2-307. Employment of special counsel to defend Board member, officer, or employee of Department in criminal cases.

If the Commissioner, any Board member, or any officer or employee of the Department is arrested, indicted, or otherwise prosecuted on any charge arising out of any act committed in the discharge of his official duties, the Commissioner may employ special counsel, to be approved by the Attorney General, to defend the person. The compensation for the special counsel employed pursuant to this section shall, subject to approval of the Attorney General, be paid out of funds appropriated to the Department.

History. Code 1950, § 37-16.2; 1966, c. 371; 1968, c. 477, § 37.1-38; 1976, c. 671; 2005, c. 716.

§ 37.2-308. Data reporting on children and adolescents.

  1. The Department shall collect and compile the following data:
    1. The total number of licensed and staffed inpatient acute care psychiatric beds for children under the age of 14 and adolescents ages 14 through 17; and
    2. The total number of licensed and staffed residential treatment beds for children under the age of 14 and adolescents ages 14 through 17 in residential facilities licensed pursuant to this title, excluding group homes.
  2. The Department shall collect and compile data obtained from the community policy and management team pursuant to subdivision 16 of § 2.2-5206 and each community services board or behavioral health authority pursuant to § 37.2-507 and subdivision 18 of § 37.2-605 . The Department shall ensure that the data reported is not duplicative.
  3. The Department shall report this data on a quarterly basis to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations and to the Virginia Commission on Youth.

History. 2002, cc. 585, 619, § 37.1-189.3; 2005, c. 716; 2008, c. 277.

Editor’s note.

The Virginia Code Commission authorized the substitution of “Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations” for “Chairmen of the House Appropriations and Senate Finance Committees.” March 10, 2021.

The 2008 amendments.

The 2008 amendment by c. 277 substituted “16” for “15” in the first sentence in subsection B.

§ 37.2-308.01. Commitment hearings for involuntary admissions; data sharing.

Notwithstanding the provisions of §§ 16.1-305 and 37.2-818 , at the request of the Department and as provided in this section, the Office of the Executive Secretary of the Supreme Court shall provide to the Department electronic data, including individually identifiable information, on the proceedings provided for in Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 and Chapter 8 (§ 37.2-800 et seq.). For the purposes of this section, “individually identifiable information” shall include the name and date of birth of the individual who is the subject of the proceeding and the last four digits of the individual’s social security number.

Electronic data collected by the Department pursuant to this section may be used by the Department for the purposes of developing and maintaining statistical archives, conducting research on the outcome of proceedings provided for in Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 and Chapter 8 (§ 37.2-800 et seq.), and preparing analyses and reports for use by the Department.

The Department shall take all necessary steps to protect the security and privacy of the electronic data to the same extent required by state and federal law and regulations governing health information privacy. Such electronic data shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

History. 2017, cc. 188, 719.

§ 37.2-308.1. Acute psychiatric bed registry.

  1. The Department shall develop and administer a web-based acute psychiatric bed registry to collect, aggregate, and display information about available acute beds in public and private inpatient psychiatric facilities and public and private residential crisis stabilization units to facilitate the identification and designation of facilities for the temporary detention and treatment of individuals who meet the criteria for temporary detention pursuant to § 37.2-809 .
  2. The acute psychiatric bed registry created pursuant to subsection A shall:
    1. Include descriptive information for every public and private inpatient psychiatric facility and every public and private residential crisis stabilization unit in the Commonwealth, including contact information for the facility or unit;
    2. Provide real-time information about the number of beds available at each facility or unit and, for each available bed, the type of patient that may be admitted, the level of security provided, and any other information that may be necessary to allow employees or designees of community services boards and employees of inpatient psychiatric facilities or public and private residential crisis stabilization units to identify appropriate facilities for detention and treatment of individuals who meet the criteria for temporary detention; and
    3. Allow employees and designees of community services boards, employees of inpatient psychiatric facilities or public and private residential crisis stabilization units, and health care providers as defined in § 8.01-581.1 working in an emergency room of a hospital or clinic or other facility rendering emergency medical care to perform searches of the registry to identify available beds that are appropriate for the detention and treatment of individuals who meet the criteria for temporary detention.
  3. Every state facility, community services board, behavioral health authority, and private inpatient provider licensed by the Department shall participate in the acute psychiatric bed registry established pursuant to subsection A and shall designate such employees as may be necessary to submit information for inclusion in the acute psychiatric bed registry and serve as a point of contact for addressing requests for information related to data reported to the acute psychiatric bed registry.
  4. Every state facility, community services board, behavioral health authority, and private inpatient provider licensed by the Department shall update information included in the acute psychiatric bed registry whenever there is a change in bed availability for the facility, board, authority, or provider or, if no change in bed availability has occurred, at least daily.
  5. The Commissioner may enter into a contract with a private entity for the development and administration of the acute psychiatric bed registry established pursuant to subsection A.

History. 2014, cc. 691, 774; 2015, cc. 34, 116.

Editor’s note.

Acts 2014, c. 691, cl. 2 provides: “That an emergency exists and the provisions of § 37.2-308.1 as created by this act are in force from the passage of this act [April 6, 2014] and that the remaining provisions of this act shall become effective in due course except as provided in the third enactment.”

Acts 2014, c. 691, cl. 4 provides: “That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities.”

Acts 2020, cc. 235 and 367, cl. 1 provides: “That the Department of Behavioral Health and Developmental Services (the Department) shall establish a work group to include representatives of such stakeholders as the Department may deem appropriate (i) to evaluate the role of the acute psychiatric bed registry (the registry) in collecting and disseminating information about the availability of acute psychiatric beds in the Commonwealth and collecting data and information to ensure adequate oversight of the process by which individuals are referred for acute psychiatric services, the structure of the registry, and the types of data required to be reported to the registry and (ii) to make recommendations for statutory, budgetary, or other actions necessary to redefine the purpose of the registry and improve its structure and effectiveness. The work group shall report its findings, conclusions, and recommendations to the Governor and the Chairmen of the Senate Committee on Education and Health, the House Committee on Health, Welfare and Institutions, and the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the Twenty-First Century by November 1, 2020.”

Effective date.

The provisions of Acts 2014, c. 691 enacting § 37.2-308.1 became effective April 6, 2014, by emergency clause.

Acts 2014, c. 774 became effective April 7, 2014, by emergency clause.

The 2015 amendments.

The 2015 amendments by cc. 34 and 116 are identical, added subsection D, and redesignated former subsection D as subsection E.

§ 37.2-309. Department responsible for substance abuse services; office established; qualifications of staff.

The Department shall be responsible for the administration, planning, and regulation of substance abuse services in the Commonwealth. The Commissioner shall establish an Office of Substance Abuse Services and employ a director and staff who shall have knowledge and experience in the field of substance abuse to carry out this responsibility. Each substance abuse treatment program shall provide data, statistics, schedules, and information that may be reasonably required to the Department.

History. 1976, cc. 739, 767, §§ 37.1-204, 37.1-219; 1980, c. 582; 1998, c. 724; 2005, c. 716.

§ 37.2-310. Powers and duties of Department related to substance abuse.

The Department shall have the following powers and duties related to substance abuse:

  1. To act as the sole state agency for the planning, coordination, and evaluation of the comprehensive interagency state plan for substance abuse services.
  2. To provide staff assistance to the Substance Abuse Services Council pursuant to § 2.2-2696 .
  3. To (i) develop, implement, and promote, in cooperation with federal, state, local, and other publicly-funded agencies, a comprehensive interagency state plan for substance abuse services, consistent with federal guidelines and regulations, for the long-range development of adequate and coordinated programs, services, and facilities for the research, prevention, and control of substance abuse and the treatment and rehabilitation of persons with substance abuse; (ii) review the plan annually; and (iii) make revisions in the plan that are necessary or desirable.
  4. To develop, in cooperation with the Department of Corrections, Virginia Parole Board, Department of Juvenile Justice, Department of Criminal Justice Services, Commission on the Virginia Alcohol Safety Action Program, Office of the Executive Secretary of the Supreme Court of Virginia, Department of Education, Department of Health, Department of Social Services, and other appropriate agencies, a section of the comprehensive interagency state plan for substance abuse services that addresses the need for treatment programs for persons with substance abuse who are involved with these agencies.
  5. To specify uniform methods for keeping statistical information for inclusion in the comprehensive interagency state plan for substance abuse services.
  6. To provide technical assistance and consultation services to state and local agencies in planning, developing, and implementing services for persons with substance abuse.
  7. To review and comment on all applications for state or federal funds or services to be used in substance abuse programs in accordance with § 37.2-311 and on all requests by state agencies for appropriations from the General Assembly for use in substance abuse programs.
  8. To recommend to the Governor and the General Assembly legislation necessary to implement programs, services, and facilities for the prevention and control of substance abuse and the treatment and rehabilitation of persons with substance abuse.
  9. To organize and foster training programs for all persons engaged in the treatment of substance abuse.
  10. To identify, coordinate, mobilize, and use the research and public service resources of institutions of higher education, all levels of government, business, industry, and the community at large in the understanding and solution of problems relating to substance abuse.
  11. To inspect substance abuse treatment programs at reasonable times and in a reasonable manner.
  12. To maintain a current list of substance abuse treatment programs, which shall be made available upon request.

History. 1976, cc. 739, 767, §§ 37.1-205, 37.1-205.1, 37.1-219; 1977, c. 18; 1980, c. 582; 1988, c. 212, § 37.1-205.1; 1998, c. 724; 2005, c. 716; 2016, c. 686.

The 2016 amendments.

The 2016 amendment by c. 686 deleted subdivision 4, which read “To report biennially to the General Assembly on the comprehensive interagency state plan for substance abuse services and the Department’s activities in administering, planning, and regulating substance abuse services and specifically on the extent to which the Department’s duties as specified in this title have been performed.”; and renumbered remaining subdivisions accordingly.

§ 37.2-311. Review of applications for state or federal funds or services used in substance abuse programs.

  1. No state agency that is authorized to issue final approval or disapproval of or to make a final review and comment on any application for state funds or services that are to be used in a substance abuse program shall take final action on an application until the application is first reviewed and commented on by the Department to determine its compatibility with the comprehensive interagency state plan for substance abuse services, and thereafter the review and comment by the Department shall remain a part of the application documents.
  2. Every applicant for any state funds, services, loans, grants-in-aid, or matching funds that are to be used in connection with any substance abuse program shall submit a copy of the application for those funds, services, loans, grants-in-aid, or matching funds to the Department for review and comment simultaneously with submission of the application to the funding source.
  3. The Department shall review and comment on each application within 45 days after receiving the application or in accordance with the requirements of the funding source.
  4. Every applicant for any federal funds that are to be used in connection with any substance abuse program shall submit a summary of the application for those funds to the Department for review and comment simultaneously with submission of the application to the funding source. If the application is approved, the applicant shall then provide the Department with a complete copy of the application as funded within 45 days of receiving official notification of funding.
  5. Each state agency requesting an appropriation or a change in an existing appropriation from the General Assembly for substance abuse programs shall submit the request to the Department for review and comment to determine its compatibility with the comprehensive interagency state plan for substance abuse services and shall supply the Department with all relevant information, including a full report on funds expended pursuant to prior appropriations. The Department shall provide the Governor and the General Assembly with its assessment of each request by a state agency for an appropriation or a change in an existing appropriation.

History. 1976, c. 767, § 37.1-206; 1980, c. 582; 1998, c. 724; 2005, c. 716; 2008, c. 83.

The 2008 amendments.

The 2008 amendment by c. 83 substituted “state funds” for “state or federal funds” near the middle of subsection A; substituted “any state funds” for “any federal or state funds” and “grants-in-aid, or matching funds that” for “grants-in-aid, matching funds, or services that” and “grants-in-aid, or matching funds to” for “grants-in-aid, matching funds, or services to” in subsection B; inserted subsection D and redesignated former subsection D as subsection E.

§ 37.2-311.1. Comprehensive crisis system; Marcus alert system; powers and duties of the Department related to comprehensive mental health, substance abuse, and developmental disability crisis services.

  1. As used in this section and §§ 37.2-311.2 through 37.2-311.6 , unless the context requires a different meaning:“Community care team” means a team of mental health service providers, and may include registered peer recovery specialists and law-enforcement officers as a team, with the mental health service providers leading such team, to help stabilize individuals in crisis situations. Law enforcement may provide backup support as needed to a community care team in accordance with the protocols and best practices developed pursuant to § 9.1-193 . In addition to serving as a co-response unit, community care teams may, at the discretion of the employing locality, engage in community mental health awareness and services.“Comprehensive crisis system” means the continuum of care established by the Department of Behavioral Health and Developmental Services pursuant to this section.“Crisis call center” means a call center that provides crisis intervention that meets NSPL standards for risk assessment and engagement and the requirements of § 37.2-311.2 .“Crisis stabilization center” means a facility providing short-term (under 24 hours) observation and crisis stabilization services to all referrals in a home-like, nonhospital environment.“Fund” means the Crisis Call Center Fund established under § 37.2-311.4 .“Historically economically disadvantaged community” means the same as that term is defined in § 56-576.“Mental health awareness response and community understanding services alert system” or “Marcus alert system” means a set of protocols to (i) initiate a behavioral health response to a behavioral health crisis, including for individuals experiencing a behavioral health crisis secondary to mental illness, substance abuse, developmental disabilities, or any combination thereof; (ii) divert such individuals to the behavioral health or developmental services system whenever feasible; and (iii) facilitate a specialized response in accordance with § 9.1-193 when diversion is not feasible.“Mobile crisis response” means the provision of professional, same-day intervention for children or adults who are experiencing crises and whose behaviors are consistent with mental illness or substance abuse, or both, including individuals experiencing a behavioral health crisis that is secondary to mental illness, substance abuse, developmental or intellectual disability, brain injury, or any combination thereof. “Mobile crisis response” may be provided by a community care team or a mobile crisis team, and a locality may establish either or both types of teams to best meet its needs.“Mobile crisis team” means a team of one or more qualified or licensed mental health professionals and may include a registered peer recovery specialist or a family support partner. A law-enforcement officer shall not be a member of a mobile crisis team, but law enforcement may provide backup support as needed to a mobile crisis team in accordance with the protocols and best practices developed pursuant to § 9.1-193.“NSPL” or “National Suicide Prevention Lifeline” means the national suicide prevention and mental health crisis hotline established by the federal government in accordance with 42 U.S.C. § 290bb—36c to provide a national network of crisis centers linked by a toll-free number to route callers in suicidal crisis or emotional distress to the closest certified local crisis center.“NSPL Administrator” means the entity designated by the federal government to administer the NSPL.“Registered peer recovery specialist” means the same as such term is defined in § 54.1-3500 .“SAMHSA” or “Substance Abuse and Mental Health Services Administration” means the agency within the U.S. Department of Health and Human Services that leads federal behavioral health efforts.
  2. The Department shall have the following duties and responsibilities for the provision of crisis services and support for individuals with mental illness, substance abuse, developmental or intellectual disabilities, or brain injury who are experiencing a crisis related to mental health, substance abuse, or behavioral support needs:
    1. The Department shall develop a comprehensive crisis system, with such funds as may be appropriated for such purpose, based on national best practice models and composed of a crisis call center, community care and mobile crisis teams, crisis stabilization centers, and the Marcus alert system. In addition to all requirements under this section, the crisis call center shall meet the requirements of § 37.2-311.2 .
    2. By July 1, 2021, the Department, in collaboration with the Department of Criminal Justice Services and law-enforcement, mental health, behavioral health, developmental services, emergency management, brain injury, and racial equity stakeholders, shall develop a written plan for the development of a Marcus alert system. Such plan shall (i) inventory past and current crisis intervention teams established pursuant to Article 13 (§ 9.1-187 et seq.) of Chapter 1 of Title 9.1 throughout the Commonwealth that have received state funding; (ii) inventory the existence, status, and experiences of community services board mobile crisis teams and crisis stabilization units; (iii) identify any other existing cooperative relationships between community services boards and law-enforcement agencies; (iv) review the prevalence of crisis situations involving mental illness or substance abuse, or both, including individuals experiencing a behavioral health crisis that is secondary to mental illness, substance abuse, developmental or intellectual disability, brain injury, or any combination thereof; (v) identify state and local funding of emergency and crisis services; (vi) include protocols to divert calls from the 9-1-1 dispatch and response system to a crisis call center for risk assessment and engagement, including assessment for mobile crisis or community care team dispatch; (vii) include protocols for local law-enforcement agencies to enter into memorandums of agreement with mobile crisis response providers regarding requests for law-enforcement backup during a mobile crisis or community care team response; (viii) develop minimum standards, best practices, and a system for the review and approval of protocols for law-enforcement participation in the Marcus alert system set forth in § 9.1-193 ; (ix) assign specific responsibilities, duties, and authorities among responsible state and local entities; and (x) assess the effectiveness of a locality’s or area’s plan for community involvement, including engaging with and providing services to historically economically disadvantaged communities, training, and therapeutic response alternatives.
    1. No later than December 1, 2021, the Department shall establish five Marcus alert programs and community care or mobile crisis teams, one located in each of the five Department regions. C. 1. No later than December 1, 2021, the Department shall establish five Marcus alert programs and community care or mobile crisis teams, one located in each of the five Department regions.
    2. No later than July 1, 2023, the Department shall establish five additional Marcus alert system programs and community care or mobile crisis teams, one located in each of the five Department regions. Community services boards or behavioral health authorities that serve the largest populations in each region, excluding those community services boards or behavioral health authorities already selected under subdivision 1, shall be selected for programs under this subdivision.
    3. The Department shall establish additional Marcus alert systems and community care teams in geographical areas served by a community services board or behavioral health authority by July 1, 2024; July 1, 2025; and July 1, 2026. No later than July 1, 2026, all community services board and behavioral health authority geographical areas shall have established a Marcus alert system that uses a community care or mobile crisis team.
    4. All community care teams and mobile crisis teams established under this section shall meet the standards set forth in § 37.2-311.3 .
  3. The Department shall assess and report on the impact and effectiveness of the comprehensive crisis system in meeting its goals. The assessment shall include the number of calls to the crisis call center, number of mobile crisis responses, number of crisis responses that involved law-enforcement backup, and overall function of the comprehensive crisis system. A portion of the report, focused on the function of the Marcus alert system and local protocols for law-enforcement participation in the Marcus alert system, shall be written in collaboration with the Department of Criminal Justice Services and shall include the number and description of approved local programs and how the programs interface comprehensive crisis system and mobile crisis response; the number of crisis incidents and injuries to any parties involved; a description of successes and problems encountered; and an analysis of the overall operation of any local protocols or programs, including any disparities in response and outcomes by race and ethnicity of individuals experiencing a behavioral health crisis and recommendations for improvement of the programs. The report shall also include a specific plan to phase in a Marcus alert system and mobile crisis response in each remaining geographical area served by a community services board or behavioral health authority as required in subdivision C 3. The Department, in collaboration with the Department of Criminal Justice Services, shall (i) submit a report by November 15, 2021, to the Joint Commission on Health Care outlining progress toward the assessment of these factors and any assessment items that are available for the reporting period and (ii) submit a comprehensive annual report to the Joint Commission on Health Care by November 15 of each subsequent year.

History. 2020, Sp. Sess. I, cc. 41, 42; 2021, Sp. Sess. I, c. 248.

Editor’s note.

Acts 2020 Sp. Sess. I, cc. 41 and 42, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services and the Department of Criminal Justice Services shall coordinate a public service campaign to run from July 1, 2021, until January 1, 2022, announcing the development and establishment of community care teams and mental health awareness response and community understanding services (Marcus) alert systems in localities and areas throughout the Commonwealth.”

Acts 2020 Sp. Sess. I, cc. 41 and 42, cl. 3 provides: “That this act shall be referred to as the Marcus-David Peters Act.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 248, effective July 1, 2021, in subsection A, inserted “and §§ 37.2-311.2 through 37.2-311.6 ” in the introductory language, in the definition for “Crisis call center,” substituted “NSPL” for “National Suicide Prevention Lifeline” and added “and the requirements of § 37.2-311.2 ”; inserted the definitions for “Fund,” “NSPL,” “Registered peer recovery specialist” and “SAMSHA”; added the second sentence in subdivision B 1; and added subdivision C 4.

Effective date.

This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-311.2. Powers and duties of crisis call center.

  1. The crisis call center established by the Department pursuant to § 37.2-311.1 shall provide crisis intervention services and crisis care coordination to individuals accessing the NSPL from any jurisdiction in the Commonwealth 24 hours a day, seven days a week.
  2. In administering the crisis call center, the Department shall:
    1. Apply for participation in and enter into an agreement with the NSPL Administrator for participation within the NSPL;
    2. Meet NSPL requirements and best practices guidelines for operational and clinical standards;
    3. Report, provide data, and participate in evaluations and related quality improvement activities as required by the NSPL Administrator;
    4. Use technology, including chat and text, that is interoperable across crisis and emergency response systems used throughout the Commonwealth and that is consistent with any standards promulgated by the NSPL Administrator;
    5. Deploy crisis and outgoing services, including mobile crisis teams and community care teams;
    6. Coordinate access to the comprehensive crisis system or other local resources as appropriate and according to guidelines and best practices established by the NSPL Administrator;
    7. Actively collaborate with local community service boards to coordinate linkages for persons contacting the NSPL with ongoing care needs;
    8. Establish formal agreements with local community services boards as it deems appropriate;
    9. Coordinate access to the comprehensive crisis system for individuals accessing the NSPL through appropriate information sharing regarding availability of services;
    10. Work with the NSPL Administrator and VCL networks to establish consistency of public messaging about services provided by the NSPL;
    11. Meet any requirements set forth by the NSPL Administrator for serving high-risk and specialized populations as identified by SAMHSA, including any policies and training requirements for providing linguistically and cultural competent care and, if appropriate, transferring such callers to an appropriate specialized center or subnetwork within or external to the NSPL network;
    12. Provide follow-up services to individuals who access the NSPL consistent with guidance and policies established by the NSPL;
    13. Report any information required by the U.S. Federal Communications Commission, including information regarding the collection and expenditure by the Commonwealth of state and federal funds for the purposes of administering the call center, and regarding the use of the NSPL through the crisis call center;
    14. Establish any work group or task force as necessary to administer the provisions of this section and §§ 37.2-311.1 and 37.2-311.3 ; and
    15. Comply with any applicable requirements, including associated deadlines, of the National Suicide Hotline Designation Act of 2020, P.L. 116-172.

History. 2021, Sp. Sess. I, c. 248.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-311.3. Standards for community care teams and mobile crisis teams.

The Department shall ensure that mobile crisis teams and community care teams:

  1. Are designed in partnership with community members, including people with lived experience utilizing crisis services;
  2. Are staffed by personnel who reflect the demographics of the community served;
  3. To the extent permitted by law, collect customer service data from individuals served, including demographic information and any information recommended by SAMHSA; and
  4. Collaborate with local law-enforcement agencies in use of the crisis call center.

History. 2021, Sp. Sess. I, c. 248.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-311.4. Crisis Call Center Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Crisis Call Center Fund. The Fund shall be established on the books of the Comptroller. All revenues accruing to the Fund pursuant to § 37.2-311.5 , all funds appropriated to the Fund, and any gifts, donations, grants, bequests, and other funds received on the Fund’s behalf shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of establishing and administering the crisis call center pursuant to the provisions of §§ 37.2-311.1 , 37.2-311.2 , and 37.2-311.3 . Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

History. 2021, Sp. Sess. I, c. 248.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-311.5. Collection of 988 charges.

    1. Each dealer, as defined in § 56-484.17:1, shall collect a prepaid wireless 988 charge of $0.08 from the end user, as defined in § 56-484.17:1, with respect to each retail transaction, as defined in § 56-484.17:1, occurring in the Commonwealth. A dealer may combine the tax imposed by this subdivision and the prepaid wireless E-911 charge imposed by subsection B of § 56-484.17:1 into a combined charge collected on a retail transaction and remitted to the Department of Taxation. If the dealer elects to combine the charges, the combined charge shall be identified as “911/988 Charge” on the invoice, receipt, or other similar document that is provided to the end user by the dealer or otherwise disclosed by the dealer to the end user. If a dealer collects a combined charge, the dealer shall report to the Department of Taxation, pursuant to forms and procedures prescribed by the Tax Commissioner, the respective amounts that are attributable to the prepaid wireless 988 charge imposed under this subdivision and the prepaid wireless E-911 charge imposed by subsection B of § 56-484.17:1. A. 1. Each dealer, as defined in § 56-484.17:1, shall collect a prepaid wireless 988 charge of $0.08 from the end user, as defined in § 56-484.17:1, with respect to each retail transaction, as defined in § 56-484.17:1, occurring in the Commonwealth. A dealer may combine the tax imposed by this subdivision and the prepaid wireless E-911 charge imposed by subsection B of § 56-484.17:1 into a combined charge collected on a retail transaction and remitted to the Department of Taxation. If the dealer elects to combine the charges, the combined charge shall be identified as “911/988 Charge” on the invoice, receipt, or other similar document that is provided to the end user by the dealer or otherwise disclosed by the dealer to the end user. If a dealer collects a combined charge, the dealer shall report to the Department of Taxation, pursuant to forms and procedures prescribed by the Tax Commissioner, the respective amounts that are attributable to the prepaid wireless 988 charge imposed under this subdivision and the prepaid wireless E-911 charge imposed by subsection B of § 56-484.17:1.
    2. Each CMRS provider, as defined in § 56-484.12, and each reseller of CMRS, as defined in § 56-484.12, shall collect a monthly postpaid wireless 988 charge of $0.12 from each of its customers whose place of primary use, as defined in § 56-484.12, is within the Commonwealth. The charge shall be billed with respect to customers of postpaid CMRS, as defined in § 56-484.12, by each CMRS provider and reseller of CMRS on each CMRS device capable of two-way interactive voice communication. A CMRS provider or reseller of CMRS may combine the tax imposed by this subdivision and the monthly wireless E-911 surcharge imposed by subsection B of § 56-484.17 into a combined charge to be collected from the customer. If a CMRS provider or reseller of CMRS elects to combine the charges, the combined charge shall be identified to the customer as the “911/988 Charge” through regular periodic billing. If a CMRS provider or reseller of CMRS collects a combined charge, such CMRS provider of reseller of CMRS shall report to the Department of Taxation, pursuant to forms and procedures prescribed by the Tax Commissioner, the respective amounts that are attributable to the monthly postpaid wireless 988 charge imposed under this subdivision and the monthly wireless E-911 surcharge imposed by subsection B of § 56-484.17.
  1. The charges imposed under this section shall be collected by the Department of Taxation and shall be subject to the provisions of Article 7 (§ 56-484.12 et seq.) of Chapter 15 of Title 56, mutatis mutandis, except that all revenues from the prepaid wireless 988 charge imposed under subdivision A 1 and from the monthly postpaid wireless 988 charge imposed under subdivision A 2 shall accrue to the Fund and shall be used for the purposes identified in § 37.2-311.4 .

History. 2021, Sp. Sess. I, c. 248.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-311.6. Liability for emergency calls to the National Suicide Prevention Lifeline.

  1. Any originating service provider, as defined in § 56-484.12, and its employees and agents shall not be liable to any person for damages incurred as a result of any act or omission by it, except gross negligence or intentional, willful, or wanton misconduct, in connection with an emergency call, as defined in § 56-484.19, to the NSPL or the crisis call center.
  2. Any originating service provider, as defined in § 56-484.12 and its employees and agents shall not be liable to any person for damages incurred as a result of any release of information not in the public record to the NSPL, to the crisis call center, to any employee or agent of the NSPL or the crisis call center, or to emergency responders, as defined in § 56-484.19, if such release of information occurred in connection with an emergency call, as defined in § 56-484.19 to the NSPL or the crisis call center.

History. 2021, Sp. Sess. I, c. 248.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 37.2-312. Department responsible for education and training programs.

The Department shall be responsible for providing for education and training of school-age individuals in state facilities. The Board of Education shall supervise the education and training provided to school-age individuals in training centers, and shall provide for and direct the education for school-age individuals in state hospitals in cooperation with the Department. In discharging this responsibility, the Department shall exercise leadership by: (i) coordinating actions with the Department of Education and state facilities to ensure consistency between treatment and educational priorities in the policy and implementation of direct services for school-age individuals in state facilities; (ii) ensuring that comparable resources especially in career and technical education, appropriate to the students’ disabilities and needs, are available in all state facilities; (iii) monitoring the quality of the instruction provided to all school-age individuals in state facilities; (iv) requiring state facility directors to evaluate the performance of the education directors pursuant to guidelines developed in cooperation with the Board of Education; (v) developing and implementing, in cooperation with the Department of Education, programs to ensure that the educational and treatment needs of children with dual diagnoses in state facilities are met; (vi) taking an active role with the Department of Education to evaluate the effectiveness of prevalent educational models in state facilities; and (vii) designing a mechanism for maintaining constant direct contact and the sharing of ideas, approaches, and innovations between the education directors and teachers whether they are employees of local school divisions or of the Commonwealth who are educating school-age individuals in state facilities.

History. 1985, c. 207, § 37.1-10.01; 2001, c. 483; 2005, c. 716; 2012, cc. 476, 507.

Editor’s note.

Acts 2001, c. 483, cl. 2, provides: “That this act shall not be construed to require any local school board to rename its vocational schools or programs or to require any public or private vocational school to change its name; however, any public school having in its name the terms vocational or vocational technical or any variation of these terms and designated by a local school board to be a vocational or vocational technical school shall comply with the relevant requirements for career and technical education set forth in Title 22.1 of the Code of Virginia and the applicable regulations.”

Acts 2001, c. 483, cl. 3, provides: “That nothing contained in this act shall be construed to require expenditure of funds to realign any name with the term “career and technical education” or to require any redesigning or reprinting of any logo, stationery, informational material or website. In addition, any stationery, pamphlets or other printed material referring to vocational education or some other term denoting career and technical education requiring an eventual revision of a state program or name may continue to be used in the normal course of business until consumed before being redesigned and reprinted.”

Acts 2001, c. 483, cl. 4, provides: “That, further, whenever any references are used in the Code of Virginia to vocational education or to vocational technical education or, when used to denote an education program, to vocational rehabilitation or any other state or local program name that clearly relates to career and technical education within its context, such terms shall be deemed to be subsumed by, synonymous with and included in the term ‘career and technical education.’ ”

Acts 2001, c. 483, cl. 5, provides: “That this act shall not be construed to require any additional services or changes in services in any state or local program or to require any such program to deliver different services than are required by applicable law.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “consumers” throughout the section.

§ 37.2-312.1. Department to be lead agency for suicide prevention across the lifespan.

  1. With such funds as may be appropriated for this purpose, the Department, in consultation with community services boards and behavioral health authorities, the Department of Health, local departments of health, and the Department for Aging and Rehabilitative Services, shall have the lead responsibility for the suicide prevention across the lifespan program. The Department shall coordinate the activities of the agencies of the Commonwealth pertaining to suicide prevention in order to develop and carry out a comprehensive suicide prevention plan addressing public awareness, the promotion of health development, early identification, intervention and treatment, and support to survivors. The Department shall cooperate with federal, state, and local agencies, private and public agencies, survivor groups, and other interested persons to prevent suicide.
  2. The Commissioner shall report annually by December 1 to the Governor and the General Assembly on the Department’s activities related to suicide prevention across the lifespan.

History. 2005, cc. 336, 434, 716, § 37.1-24.001; 2012, cc. 803, 835; 2018, c. 370.

Editor’s note.

Acts 2005, cc. 336 and 434, enacted former § 37.1-24.001. Pursuant to § 30-152 and Acts 2005, c. 716, c. 5, the 2005 enactment by cc. 336 and 434, has been given effect in this section as set out above.

Acts 2017, c. 464 provides: § 1. “That the Department of Behavioral Health and Developmental Services shall report by December 1, 2017, to the Governor and the General Assembly on its activities related to suicide prevention across the lifespan pursuant to § 37.2-312.1 of the Code of Virginia.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and substituted “Department for Aging and Rehabilitative Services” for “Department for the Aging” in the first sentence.

The 2018 amendments.

The 2018 amendment by c. 370 added subsection B and made related changes.

§ 37.2-312.2. Commonwealth Mental Health First Aid Program.

  1. For the purposes of this section, “certified trainer” means a person who has successfully completed a Mental Health First Aid instructor training program offered by the national authorities of Mental Health First Aid USA or the Commonwealth Mental Health First Aid Program and obtained a certification as an instructor of Mental Health First Aid.
  2. The Department shall establish and administer the Commonwealth Mental Health First Aid Program (the Program) to provide training by certified trainers of individuals residing or working in the Commonwealth on how to identify and assist individuals who have or may be developing a mental health or substance use disorder or who may be experiencing a mental health or substance abuse crisis. Such program shall include training on:
    1. Building mental health and substance abuse literacy designed to help the public identify, understand, and respond to the signs of mental illness and substance abuse;
    2. Assisting individuals who have or may be developing a mental health or substance use disorder or who may be experiencing a mental health or substance abuse crisis by (i) recognizing the symptoms of a mental health or substance use disorder; (ii) providing initial assistance to those experiencing a mental health crisis; (iii) guiding individuals requiring assistance, including individuals who may be experiencing a mental health or substance abuse crisis, toward appropriate professional assistance; (iv) providing comfort to an individual experiencing a mental health or substance abuse crisis; (v) helping an individual with a mental health or substance use disorder avoid a mental health or substance abuse crisis that may lead to more costly interventions and treatments; and (vi) promoting healing, recovery, and good mental health.
  3. The Department shall ensure that evaluative criteria are established to measure the effectiveness of the Program, including fidelity of the Program and training provided thereunder to the objectives set forth in subsection B.
  4. Neither the Department nor any other agency of the Commonwealth shall incur any liability by reason of (i) any action taken by an employer or other person on the basis of information or materials provided through the Program or (ii) any workplace violence that occurs, regardless of whether the workplace at which an episode of workplace violence occurs had received information or materials provided through the Program.

History. 2016, c. 407.

Cross references.

As to mental health awareness training for public school personnel, see § 22.1-298.6.

§ 37.2-313. Employment of unlicensed physician by Department.

Unless a physician is licensed by the Commonwealth or is in an internship or residency program approved by the Commissioner, he shall not be employed by the Department for the practice of any of the healing arts or to provide services under the supervision of the Commissioner.

History. 1974, c. 661, § 37.1-20.1; 1976, c. 671; 1980, c. 582; 2005, c. 716.

§ 37.2-313.1. Licensed physician required at certain training centers.

The Department of Behavioral Health and Developmental Services shall require a licensed physician to be on duty at all times for any certified skilled nursing beds in any state training center as defined in § 37.2-100 .

History. 2010, c. 355.

Editor’s note.

At the direction of the Virginia Code Commission, Acts 2010, c. 355, has been codified as § 37.2-313.1 .

§ 37.2-314. Background check required.

  1. As a condition of employment, the Department shall require any applicant who (i) accepts a position of employment at a state facility and was not employed by that state facility prior to July 1, 1996, or (ii) accepts a position with the Department that receives, monitors, or disburses funds of the Commonwealth and was not employed by the Department prior to July 1, 1996, to submit to fingerprinting and provide personal descriptive information to be forwarded along with the applicant’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant.
  2. For purposes of clause (i) of subsection A, the Department shall not hire for compensated employment persons who have been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02.
  3. Notwithstanding the provisions of subsection B, the Department may hire for compensated employment at an adult substance abuse or adult mental health treatment program a person who was convicted of any violation of § 18.2-51.3 ; any misdemeanor violation of § 18.2-56 or 18.2-56.1 or subsection A of § 18.2-57 ; any first offense misdemeanor violation of § 18.2-57 .2; any violation of § 18.2-60 , 18.2-89 , 18.2-92 , or 18.2-94 ; any misdemeanor violation of § 18.2-282 , 18.2-346 , or 18.2-346.01 ; any offense set forth in clause (iii) of the definition of barrier crime in § 19.2-392.02 , except an offense pursuant to subsection H1 or H2 of § 18.2-248 ; or any substantially similar offense under the laws of another jurisdiction, if the Department determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant’s substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history.
  4. The Department and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsection C to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms; shall not be under probation or parole supervision; shall have no pending charges in any locality; shall have paid all fines, restitution, and court costs for any prior convictions; and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the Department or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the Department decides to pay the cost.
  5. The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall submit a report to the state facility or to the Department. If an applicant is denied employment because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the state facility or Department shall not be disseminated except as provided in this section.
  6. Those applicants listed in clause (i) of subsection A also shall provide to the state facility or Department a copy of information from the central registry maintained pursuant to § 63.2-1515 on any investigation of child abuse or neglect undertaken on them.
  7. The Board may adopt regulations to comply with the provisions of this section. Copies of any information received by the state facility or Department pursuant to this section shall be available to the Department and to the applicable state facility but shall not be disseminated further, except as permitted by state or federal law. The cost of obtaining the criminal history record and the central registry information shall be borne by the applicant, unless the Department or state facility decides to pay the cost.

History. 1996, cc. 881, 927, § 37.1-20.3; 1999, c. 685; 2005, c. 716; 2012, cc. 383, 476, 507; 2017, c. 809; 2020, c. 1092; 2021, Sp. Sess. I, c. 188.

The 2012 amendments.

The 2012 amendment by c. 383, in subsection B, inserted “a felony violation of a protective order as set out in § 16.1-253.2,” “or B” preceding “of § 18.2-47 ,” and “a felony violation of a protective order as set out in § 18.2-60.4 .”

The 2012 amendments by cc. 476 and 507 are identical, and substituted “applicant” for “individual” near the beginning, and at the end, of subsection A; in subsection C, substituted “applicant’s” for “individual’s” in the first sentence and “applicant” for “individual” in the second sentence; and in subsection D, substituted “Those applicants” for “Those individuals” at the beginning.

The 2017 amendments.

The 2017 amendment by c. 809 rewrote the first paragraph in subsection B, which formerly listed specific criminal offenses.

The 2020 amendments.

The 2020 amendment by c. 1092, added subsections C and D and redesignated the remaining subsections accordingly.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted “18.2-346, or 18.2-346.01 ” for “or 18.2-346 ” in subsection C.

§ 37.2-314.1. Developmental Disabilities Mortality Review Committee; duties; membership; confidentiality; report; penalty.

  1. There is hereby created the Developmental Disabilities Mortality Review Committee (the Committee), which shall develop and implement procedures to ensure that deaths of persons with developmental disabilities receiving services from a provider licensed by the Department or in a training center or other state facility are reviewed and analyzed in a systematic way. The Committee shall review each death of a person with a developmental disability who was receiving services from a provider licensed by the Department or in a training center or other state facility at the time of his death. The Committee shall develop and revise as necessary operating procedures for the review of deaths of such persons, including identification of cases to be reviewed and procedures for coordinating among the agencies and professionals involved in such review. Such operating procedures shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq.) pursuant to subdivision B 17 of § 2.2-4002 .
  2. The Committee shall consist of the following persons or their designees: the Chief Clinical Officer appointed by the Commissioner; the Clinical Manager, Program Coordinator and Clinical Reviewer of the Department’s Mortality Review Team; the Senior Director of Quality Improvement of the Department; an employee of the Department with experience related to quality improvement; an employee of the Department with relevant programmatic or operational experience; a person licensed to practice medicine or osteopathy in the Commonwealth; a person licensed to practice as a registered nurse in the Commonwealth; and a person with experience in conducting mortality reviews who is not employed by or otherwise affiliated with the Department. The Chief Clinical Officer and the Clinical Manager of the Department’s Mortality Review Team shall serve as co-chairs of the Committee. The co-chairs of the committee or the Commissioner may appoint such additional members of the Committee as may be needed to complete developmental disability mortality reviews pursuant to this section.Members of the Committee shall serve such terms as may be determined by the Commissioner.
  3. Upon the request of the Chief Clinical Officer in his capacity as a co-chair of the Committee, information and records regarding an individual whose death is being reviewed by the Committee, including (i) any report of the circumstances of the death maintained by any state or local law-enforcement agency or the Office of the Chief Medical Examiner and (ii) information or records about the person maintained by any facility, hospital, nursing home, or health care provider that provided services to the individual, any social services agency that provided services to the individual, or any court shall be provided to the Chief Clinical Officer or his designee. Any presentence report prepared pursuant to § 19.2-299 for any person convicted of a crime that may have led to the death of the person whose death is the subject of review by the Committee shall be made available to the Chief Clinical Officer or his designee for inspection. In addition, the Chief Clinical Officer or his designee may inspect and copy from any health care provider in the Commonwealth, on behalf of the Committee, any health or mental health record of the individual, without authorization.
  4. All information obtained or generated by the Committee or on behalf of the Committee regarding a review shall be confidential and excluded from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) pursuant to subdivision 7 of § 2.2-3705.5 . Such information shall not be subject to subpoena or discovery or be admissible in any civil or criminal proceeding. If available from other sources, however, such information and records shall not be immune from subpoena, discovery, or introduction into evidence when obtained through such other sources solely because the information and records were presented to the Committee during a review pursuant to this section. The Committee shall compile all requested information collected for a clinical review. The findings of the Committee may be disclosed or published in statistical or other form but shall not identify any individuals.The portions of meetings in which individual death cases are discussed by the Committee shall be closed pursuant to subdivision A 21 of § 2.2-3711 . In addition to the requirements of § 2.2-3712 , all members of the Committee and other persons attending closed meetings of the Committee, including any persons presenting information or records on specific deaths, shall sign an agreement to maintain the confidentiality of the information, records, discussions, and opinions disclosed during meetings at which the Committee reviews a specific death. No member of the Committee or other person who participates in a review shall be required to make any statement regarding the review or any information collected during the review. Violations of this subsection are punishable as a Class 3 misdemeanor.
  5. Upon notification of the death of a person with a developmental disability who was receiving services from a provider licensed by the Department or in a training center or other state facility, any state or local government agency or facility that provided services to the person or maintained records on the person or the person’s family shall retain the records for 12 months after the date of the death.
  6. The Committee shall report its activities annually to the Governor and the General Assembly by December 1. Such report shall include statistical and other data on the deaths of persons with a developmental disability who were receiving services from a provider licensed by the Department or in a training center or other state facility at the time of their death and recommendations developed by the Committee to address the conditions that led to such deaths. Any statistical compilations prepared by the Committee shall be public record and shall not contain any personally identifying information.

History. 2020, c. 851.

§ 37.2-314.2. Problem Gambling Treatment and Support Fund.

  1. As used in this section:“Compulsive gambling” means persistent and recurrent problem gambling behavior leading to clinically significant impairment or distress, as indicated by an individual exhibiting four or more of the criteria as defined by the Diagnostic Statistical Manual of Mental Disorders in a 12-month period and where the behavior is not better explained by a manic episode.“Problem gambling” means a gambling behavior that causes disruptions in any major area of life, including the psychological, social, or vocational areas of life, but does not fulfill the criteria for diagnosis as a gambling disorder.
  2. There is hereby created in the state treasury a special nonreverting fund to be known as the Problem Gambling Treatment and Support Fund, referred to in this section as “the Fund.” The Fund shall be established on the books of the Comptroller. All revenue accruing to the Fund pursuant to subsection A of § 58.1-4038 and moneys required to be deposited into the Fund pursuant to Chapter 41 (§ 58.1-4100 et seq.) of Title 58.1 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of (i) providing counseling and other support services for compulsive and problem gamblers, (ii) developing and implementing compulsive and problem gambling treatment and prevention programs, and (iii) providing grants to support organizations that provide assistance to compulsive and problem gamblers. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

History. 2020, c. 1197, 1218, 1248, 1256, § 37.2-314.1 .

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 acts having been § 37.2-314.1 .

Editor’s note.

Acts 2020, cc. 1197 and 1248, cl. 2 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, cc. 1197 and 1248, cl. 3 provides: “That the Virginia Lottery Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2020, cc. 1218 and 1256, cl. 2 provides: “That the Virginia Lottery Board (the Board) shall promulgate regulations implementing the provisions of this act. The Board’s initial adoption of regulations shall be exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption. The Board shall complete work on such regulations no later than September 15, 2020.”

§ 37.2-314.3. Powers and duties of the Department related to supported decision-making agreements; report.

  1. As used in this section:“Principal” means an adult with an intellectual or developmental disability who seeks to enter or has entered into a supported decision-making agreement with a supporter.“Supported decision-making agreement” means an agreement between a principal and a supporter that sets out the specific terms of support to be provided by the supporter, including (i) helping the principal monitor and manage his medical, financial, and other affairs; (ii) assisting the principal in accessing, obtaining, and understanding information relevant to decisions regarding his affairs; (iii) assisting the principal in understanding information, options, responsibilities, and consequences of decisions; and (iv) ascertaining the wishes and decisions of the principal regarding his affairs, assisting in communicating such wishes and decisions to other persons, and advocating to ensure the wishes and decisions of the principal are implemented.“Supporter” means a person who has entered into a supported decision-making agreement with a principal.
  2. The Department shall develop and implement a program to educate individuals with intellectual and developmental disabilities, their families, and others regarding the availability of supported decision-making agreements, the process by which an individual with an intellectual or developmental disability may enter into a supported decision-making agreement with a supporter, and the rights and responsibilities of principals and supporters who are parties to a supported decision-making agreement. Such program shall include (i) specific training opportunities for individuals with intellectual and developmental disabilities and who seek to enter into supported decision-making agreements, individuals interested in serving as supporters pursuant to supported decision-making agreements, family members of principals and individuals with intellectual and developmental disabilities who seek to enter into supported decision-making agreements, and members of the medical, legal, and financial professions and other individuals who provide services to individuals with intellectual and developmental disabilities who may enter into supported decision-making agreements and (ii) development of model supported decision-making agreements for individuals who seek to enter into supported decision-making agreements. Such program shall also include development of information about and protocols for preventing, identifying, and addressing abuse and exploitation of individuals with intellectual and developmental disabilities who enter into supported decision-making agreements.
  3. The Department shall collect data regarding the utilization of supported decision-making agreements in the Commonwealth to guide the development of policies and programs to enhance the use of supported decision-making agreements and shall report such information together with recommendations to enhance the utilization of supported decision-making agreements annually to the Governor and the General Assembly by November 1.

History. 2021, Sp. Sess. I, c. 232.

Effective date.

This section is effective July 1, 2021, pursuant to Va. Const. Art. IV, § 13.

Article 2. Comprehensive State Plan for Behavioral Health and Developmental Services.

§ 37.2-315. Comprehensive State Plan for Behavioral Health and Developmental Services.

The Department, in consultation with community services boards, behavioral health authorities, state hospitals and training centers, individuals receiving services, families of individuals receiving services, advocacy organizations, and other interested parties, shall develop and update biennially a six-year Comprehensive State Plan for Behavioral Health and Developmental Services. The Comprehensive State Plan shall identify the needs of and the resource requirements for providing services and supports to persons with mental illness, developmental disabilities, or substance abuse across the Commonwealth and shall propose strategies to address these needs. The Comprehensive State Plan shall be used in the development of the Department’s biennial budget submission to the Governor.

History. 1998, c. 680, § 37.1-48.1; 2005, c. 716; 2012, cc. 476, 507; 2017, c. 458.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services, families of individuals receiving services,” for “consumers, consumers’ families,” in the first sentence, and “intellectual disability” for “mental retardation” in the second sentence.

The 2017 amendments.

The 2017 amendment by c. 458 substituted “developmental disabilities” for “intellectual disability.”

Article 3. System Restructuring.

§ 37.2-316. System restructuring; state and community consensus and planning team required.

  1. For the purpose of considering any restructuring of the system of mental health services involving an existing state hospital, the Commissioner shall establish a state and community consensus and planning team consisting of Department staff and representatives of the localities served by the state hospital, including local government officials, individuals receiving services, family members of individuals receiving services, advocates, state hospital employees, community services boards, behavioral health authorities, public and private service providers, licensed hospitals, local health department staff, local social services department staff, sheriffs’ office staff, area agencies on aging, and other interested persons. In addition, the members of the House of Delegates and the Senate representing the localities served by the affected state hospital may serve on the state and community consensus and planning team for that state hospital. Each state and community consensus and planning team, in collaboration with the Commissioner, shall develop a plan that addresses (i) the types, amounts, and locations of new and expanded community services that would be needed to successfully implement the closure or conversion of the state hospital to any use other than the provision of mental health services, including a six-year projection of the need for inpatient psychiatric beds and related community mental health services; (ii) the development of a detailed implementation plan designed to build community mental health infrastructure for current and future capacity needs; (iii) the creation of new and enhanced community services prior to the closure of the state hospital or its conversion to any use other than the provision of mental health services; (iv) the transition of individuals receiving services in the state hospital to community services in the locality of their residence prior to admission or the locality of their choice after discharge; (v) the resolution of issues relating to the restructuring implementation process, including employment issues involving state hospital employee transition planning and appropriate transitional benefits; and (vi) a six-year projection comparing the cost of the current structure and the proposed structure.
  2. The Commissioner shall ensure that each plan includes the following components:
    1. A plan for community education;
    2. A plan for the implementation of required community services, including state-of-the-art practice models and any models required to meet the unique characteristics of the area to be served, which may include models for rural areas;
    3. A plan for assuring the availability of adequate staff in the affected communities, including specific strategies for transferring qualified state hospital employees to community services;
    4. A plan for assuring the development, funding, and implementation of individualized discharge plans pursuant to § 37.2-505 for individuals discharged as a result of the closure or conversion of the state hospital to any use other than the provision of mental health services; and
    5. A provision for suspending implementation of the plan if the total general funds appropriated to the Department for state hospital and community services decrease in any year of plan implementation by more than 10 percent from the year in which the plan was approved by the General Assembly.
  3. At least nine months prior to any proposed state hospital closure or conversion of the state hospital to any use other than the provision of mental health services, the state and community consensus and planning team shall submit a plan to the Joint Commission on Health Care and the Governor for review and recommendation.
  4. The Joint Commission on Health Care shall make a recommendation to the General Assembly on the plan no later than six months prior to the date of the proposed closure or conversion of the state hospital to any use other than the provision of mental health services.
  5. Upon approval of the plan by the General Assembly and the Governor, the Commissioner shall ensure that the plan components required by subsection B are in place and may thereafter perform all tasks necessary to implement the closure or conversion of the state hospital to any use other than the provision of mental health services.
  6. Any funds saved by the closure or conversion of the state hospital to any use other than the provision of mental health services and not allocated to individualized services plans for individuals being transferred or discharged as a result of the closure or conversion of the state hospital to any use other than the provision of mental health services shall be invested in the Behavioral Health and Developmental Services Trust Fund established in Article 4 (§ 37.2-317 et seq.).
  7. Nothing in this section shall prevent the Commissioner from leasing unused, vacant space to any public or private organization.

History. 2002, c. 803, § 37.1-48.2; 2005, c. 716; 2009, cc. 813, 840; 2012, cc. 476, 507.

Editor’s note.

Acts 2002, c. 803, cl. 2, provides: “That the Secretary of Health and Human Resources shall facilitate coordination among the Virginia Department of Housing and Community Development, the Virginia Housing Development Authority, and the federal Department of Housing and Urban Development in order to ensure that adequate housing options are available for individuals transitioning to community services.”

Acts 2002, c. 803, cl. 3, provides: “That the Secretary of Health and Human Resources shall coordinate the efforts of the Department of Medical Assistance Services and the Department of Behavioral Health and Developmental Services in seeking the maximum Medicaid service options and potential Medicaid waivers from the federal Centers for Medicare & Medicaid Services.”

Acts 2002, c. 803, cl. 4, provides: “That the Secretaries of Commerce and Trade, Administration, Education, Transportation, and Public Safety shall assist the Secretary of Health and Human Resources in developing strategies to provide transition services and appropriate transitional benefits to any affected state facility employees, and to assist any affected local communities with economic development opportunities and transportation needs.”

Acts 2002, c. 803, cl. 5, provides: “That, for purposes of this act, whenever any reference is made to the Joint Commission on Health Care, such reference shall be deemed to include any successor in interest of the Joint Commission on Health Care.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental Services Trust Fund” for “Mental Health, Mental Retardaton and Substance Abuse Services Trust Fund” at the end of subsection F.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and in subsection A, substituted “individuals receiving services, family members of individuals receiving services” for “consumers, family members of consumers” in the first sentence, and “the transition of individuals receiving services in the state hospital” for “the transition of state hospital consumers” in clause (iv) of the third sentence; and in subsection F, substituted “individuals” for “consumers” and deleted “of this chapter” at the end.

Article 4. Behavioral Health and Developmental Services Trust Fund.

§ 37.2-317. Definitions.

As used in this article, unless the context requires a different meaning:

“Assets” means the buildings and land of state facilities operated by the Department.

“Fund” means the Behavioral Health and Developmental Services Trust Fund.

“Net proceeds” means the gross amount received by the seller on account of the sale of any assets (i) less costs incurred on behalf of the seller in connection with such sale and (ii), if after the sale the sold assets will be used by an entity other than a state agency or instrumentality or a local governmental entity in a governmental activity and debt obligations financed any portion of the sold assets and any amount of such obligations is outstanding at the time of the sale, less the amount necessary to provide for the payment or redemption of the portion of such outstanding obligations that financed the sold assets, which amount shall be used to pay or redeem such obligations or shall be transferred to the third party issuer of the obligations for a use permitted in accordance with such obligations.

History. 2000, cc. 569, 606, § 2.1-812; 2001, c. 844, § 37.1-258; 2002, c. 803; 2005, c. 716; 2009, cc. 813, 840.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental Services Trust Fund” for “Mental Health, Mental Retardaton and Substance Abuse Services Trust Fund” in the paragraph defining “Fund.”

§ 37.2-318. Behavioral Health and Developmental Services Trust Fund established; purpose.

There is hereby created in the state treasury a special nonreverting fund to be known as the Behavioral Health and Developmental Services Trust Fund to enhance and ensure for the coming years the quality of care and treatment provided to individuals receiving public mental health, developmental, and substance abuse services. The Fund shall be established on the books of the Comptroller. Notwithstanding the provisions of § 2.2-1156 , the Fund shall consist of the net proceeds of the sale of vacant buildings and land held by the Department. The Fund shall also consist of such moneys as shall be appropriated by the General Assembly and any private donations. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes set forth in this article. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

History. 2000, cc. 569, 606, § 2.1-813; 2001, c. 844, § 37.1-259; 2005, c. 716; 2009, cc. 813, 840; 2012, cc. 476, 507.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental Services Trust Fund” for “Mental Health, Mental Retardaton and Substance Abuse Services Trust Fund” near the beginning of the first sentence.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving public mental health, developmental, and substance abuse services” for “consumers of public mental health, mental retardation, and substance abuse services” at the end of the first sentence.

§ 37.2-319. Administration of Behavioral Health and Developmental Services Trust Fund.

  1. The Fund shall be administered by the Commissioner. Moneys in the Fund shall be used for mental health, developmental, or substance abuse services and to facilitate transition of individuals with intellectual disability from state training centers to community-based services. Notwithstanding any other provision of law, the net proceeds from the sale of any vacant buildings and land shall first be used to (i) deliver mental health, developmental, and substance abuse services within the same service area where the sold buildings and land were located to ensure the same level of mental health, developmental, and substance abuse services as before the sale and (ii) provide benefits pursuant to the Workforce Transition Act of 1995 (§ 2.2-3200 et seq.) to those persons who were employees of the Commonwealth and, as a result of the sale, are no longer employed by the Commonwealth or are otherwise negatively affected by the sale.
  2. For each fiscal year starting with the Commonwealth’s 2011-2012 fiscal year, any funds directed to be deposited into the Fund pursuant to the general appropriation act shall be appropriated for financing (i) a broad array of community-based services including but not limited to Intellectual Disability Home and Community Based Waiver services or (ii) appropriate community housing, for the purpose of transitioning individuals with intellectual disability from state training centers to community-based care.

History. 2000, cc. 569, 606, § 2.1-814; 2001, c. 844, § 37.1-260; 2005, c. 716; 2009, cc. 813, 840; 2011, cc. 724, 729; 2012, cc. 476, 507.

Editor’s note.

Acts 2011, cc. 724 and 729, cl. 2 provides: “At the direction of the Governor, the Secretary of Health and Human Resources shall develop a plan to transition individuals with mental retardation from state training centers to community-based settings. The plan shall include provisions to reduce the number of individuals who are currently residing in state training centers and include provisions to (i) offer a broad array of community-based services including but not limited to Intellectual Disability Home and Community Based Waivers and (ii) address the availability of appropriate community housing. The plan shall also include facility specific objectives and timeframes to implement changes and shall be developed with input from individuals receiving training center services and their families, community services boards, private providers, and the Department of Medical Assistance Services. The Secretary shall submit the plan to the Governor and Chairmen of the House Committee on Appropriations and the Senate Committee on Finance by November 1, 2011. The Secretary shall submit reports on the development and implementation of the plan to the Governor and the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance on the first of July and December of each year beginning July 1, 2011.”

Acts 2011, cc. 724 and 729, cl. 3 provides: “For the fiscal year beginning July 1, 2011, any funds directed to be deposited into the Behavioral Health and Developmental Services Trust Fund pursuant to the general appropriation act shall be appropriated for the purpose of financing a broad array of community-based services, including up to 600 Intellectual Disability Home and Community Based Waiver slots, one-time transition costs for community placements, appropriate community housing, and other identified community services that may not be covered through the waiver program, for the purpose of transitioning individuals with mental retardation from state training centers to community-based settings.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 327 B, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 37.2-319 of the Code of Virginia, the Commissioner shall prepare a plan to address the capital and programmatic needs of other state mental health facilities and state mental retardation training centers when considering expenditures from the trust fund. No less than 30 days prior to the expenditure of funds, the Commissioner shall present an expenditure plan to the Chairmen of the Senate Finance and House Appropriations Committees for their review and consideration.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental Services Trust Fund” for “Mental Health, Mental Retardaton and Substance Abuse Services Trust Fund” in the section heading.

The 2011 amendments.

The 2011 amendments by cc. 724 and 729 are identical, and, in subsection A, inserted the subsection designator, rewrote the second sentence, inserted “pursuant to the Workforce Transition Act of 1995 (§ 2.2-3200 et seq.)” preceding ”to those person who were employees of the Commonwealth” and deleted the last sentence, which read: “Benefits shall include appropriate transitional benefits”; and added subsection B.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and in subsection A, substituted “mental health, developmental,” for “mental illness, mental retardation” and “individuals with intellectual disability” for “individuals with mental retardation” in the first sentence, and “developmental” for “mental retardation” twice in clause (i) of the second sentence; and in subsection B, substituted “Community Based Waiver services” for “Community Based Waivers” in clause (i) and “intellectual disability” for “mental retardation” in clause (ii).

Chapter 4. Protection of Consumers.

Article 1. Human Rights.

§ 37.2-400. Rights of individuals receiving services.

  1. Each individual receiving services in a hospital, training center, other facility, or program operated, funded, or licensed by the Department, excluding those operated by the Department of Corrections, shall be assured his legal rights and care consistent with basic human dignity insofar as it is within the reasonable capabilities and limitations of the Department, funded program, or licensee and is consistent with sound therapeutic treatment. Each individual admitted to a hospital, training center, other facility, or program operated, funded, or licensed by the Department shall:
    1. Retain his legal rights as provided by state and federal law;
    2. Receive prompt evaluation and treatment or training about which he is informed insofar as he is capable of understanding;
    3. Be treated with dignity as a human being and be free from abuse or neglect;
    4. Not be the subject of experimental or investigational research without his prior written and informed consent or that of his legally authorized representative;
    5. Be afforded an opportunity to have access to consultation with a private physician at his own expense and, in the case of hazardous treatment or irreversible surgical procedures, have, upon request, an impartial review prior to implementation, except in case of emergency procedures required for the preservation of his health;
    6. Be treated under the least restrictive conditions consistent with his condition and not be subjected to unnecessary physical restraint and isolation;
    7. Be allowed to send and receive sealed letter mail;
    8. Have access to his medical and clinical treatment, training, or habilitation records and be assured of their confidentiality but, notwithstanding other provisions of law, this right shall be limited to access consistent with his condition and sound therapeutic treatment;
    9. Have the right to an impartial review of violations of the rights assured under this section and the right of access to legal counsel;
    10. Be afforded appropriate opportunities, consistent with the individual’s capabilities and capacity, to participate in the development and implementation of his individualized services plan; and
    11. Be afforded the opportunity to have a person of his choice notified of his general condition, location, and transfer to another facility.The Board shall adopt regulations to implement the provisions of this subsection after due notice and public hearing, as provided for in the Administrative Process Act (§ 2.2-4000 et seq.).
  2. The Board shall adopt regulations delineating the rights of individuals receiving services with respect to nutritionally adequate diet; safe and sanitary housing; participation in nontherapeutic labor; attendance or nonattendance at religious services; participation in treatment decision-making, including due process procedures to be followed when an individual may be unable to make an informed decision; notification of a person of his choice regarding his general condition, location, and transfer to another facility; use of telephones; suitable clothing; possession of money and valuables; and related matters.
  3. The human rights regulations shall be applicable to all hospitals, training centers, other facilities, and programs operated, funded, or licensed by the Department; these hospitals, training centers, other facilities, or programs may be classified as to population served, size, type of services, or other reasonable classification.
  4. The Board shall adopt regulations requiring public and private facilities and programs licensed or funded by the Department to provide nonprivileged information and statistical data to the Department related to (i) the results of investigations of abuse or neglect, (ii) deaths and serious injuries, (iii) instances of seclusion and restraint, including the duration, type, and rationale for use per individual receiving services, and (iv) findings by state or local human rights committees or the Office of Human Rights in the Department of human rights violations, abuse, or neglect. The Board’s regulations shall address the procedures for collecting, compiling, encrypting, and releasing the data. This information and statistical data shall be made available to the public in a format from which all information identifying a provider or an individual receiving services has been removed. The Board’s regulations shall specifically exclude all proceedings, minutes, records, and reports of any committee or nonprofit entity providing a centralized credentialing service that are identified as privileged pursuant to § 8.01-581.17 .

History. 1974, c. 335, § 37.1-84.1; 1976, c. 671; 1989, cc. 459, 591; 1992, c. 603; 1999, c. 969; 2005, c. 716; 2009, cc. 111, 517; 2012, cc. 476, 507.

Cross references.

As to medical treatment for patients or residents of mental health facilities who are incompetent to give consent, see § 54.1-2970 .

The 2009 amendments.

The 2009 amendments by cc. 111 and 517 are identical and, in subsection A, added subdivision A 11 and made related changes; and inserted “notification of an individual . . . to another facility” in subsection B.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “Each individual receiving services” for “Each person who is a consumer” at the beginning of the first sentence, and “Each individual admitted” for “Each person admitted” at the beginning of the second sentence, of the introductory paragraph of subsection A; substituted “individual’s” for “person’s” in subdivision A 10; substituted “a person” for “an individual” in subdivision A 11; in subsection B, substituted “individuals receiving services” for “consumers,” “an individual” for “a consumer” and “a person” for “an individual”; in subsection C, substituted “population served” for “consumer population”; and in subsection D, substituted “individual receiving services” for “consumer” at the end of clause (iii) of the first sentence, and “information identifying a provider or an individual receiving services has been removed” for “provider and consumer-identifying information has been removed” at the end of the third sentence.

Law Review.

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

CASE NOTES

Exhaustion of state remedies before bringing action in federal court. —

In a habeas corpus action, mentally retarded citizens of State Training Center are required to exhaust state remedies before bringing action in federal court for declaratory and injunctive relief requiring center to provide mentally retarded citizens with residential placements and social, educational and rehabilitative programs in their communities. Davis v. Buckley, 526 F. Supp. 985, 1981 U.S. Dist. LEXIS 15891 (E.D. Va. 1981) (decided under prior law).

Mentally retarded citizens of State Training Center are not required first to exhaust remedies before human rights committee at their institution before bringing action for declaratory and injunctive relief requiring center to provide them with residential placements and social, educational and rehabilitative programs in their communities. Davis v. Buckley, 526 F. Supp. 985, 1981 U.S. Dist. LEXIS 15891 (E.D. Va. 1981) (decided under prior law).

CIRCUIT COURT OPINIONS

Negligence per se. —

Hospital’s demurrer was overruled because a personal representative’s allegations that his decedent was sexually abused by a hospital employee fell outside the scope of the Virginia Medical Malpractice Act where the alleged acts and omissions involved decisions related to the operation of the hospital, rather than to the care of any particular patient, the personal representative’s claim under the Virginia Consumer Protection Act was alleged with adequate particularity, and the decedent was considered a member of the class of people for whose benefit the negligence per se statute was enacted, and suffered an injury of the type arguably against which the statute was designed to protect against. Parisi v. Cash, 91 Va. Cir. 415, 2015 Va. Cir. LEXIS 199 (Lynchburg Dec. 11, 2015).

§ 37.2-401. Authorized representative prohibition.

No employee of the Department, a state hospital or training center, a community services board or behavioral health authority, a community services board or behavioral health authority contractor, or any other public or private program or facility licensed or funded by the Department shall serve as an authorized representative for an individual receiving services in any state hospital or training center, community services board or behavioral health authority, community services board or behavioral health authority contractor, or other licensed or funded public or private program or facility, unless the employee is a relative or legal guardian of the individual receiving services.

History. 1974, c. 335, § 37.1-84.1; 1976, c. 671; 1989, cc. 459, 591; 1992, c. 603; 1999, c. 969; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “an authorized representative for an individual receiving services” for “a legally authorized representative for a consumer being treated” near the middle, and “individual receiving services” for “consumer” at the end.

§ 37.2-402. Board to establish regulations regarding human research.

The Board shall adopt regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) to implement the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 for human research, as defined in § 32.1-162.16 , to be conducted or authorized by the Department, any community services board or behavioral health authority, or any other facility or program operated, funded, or licensed by the Department. The regulations shall require the human research committee to submit to the Governor, the General Assembly, and the Commissioner or his designee at least annually a report on the human research projects reviewed and approved by the committee and shall require the committee to report any significant deviations from the proposals as approved.

History. 1979, c. 38, § 37.1-238; 1992, c. 603, § 37.1-24.01; 2005, c. 716.

Article 2. Licensing Providers of Behavioral Health and Developmental Services.

§ 37.2-403. Definitions.

As used in this article, unless the context requires a different meaning:

“Brain injury” means any injury to the brain that occurs after birth that is acquired through traumatic or non-traumatic insults. Non-traumatic insults may include but are not limited to anoxia, hypoxia, aneurysm, toxic exposure, encephalopathy, surgical interventions, tumor, and stroke. “Brain injury” does not include hereditary, congenital, or degenerative brain disorders, or injuries induced by birth trauma.

“Conditional license” means a license issued in accordance with the requirements of § 37.2-415 to a provider for a new service for a period of time sufficient to allow the provider to demonstrate compliance with regulations of the Board governing licensure of providers.

“Full license” means a license issued in accordance with the requirements of § 37.2-404 to a provider who demonstrates full compliance with the regulations of the Board governing licensure of providers.

“Provider” means any person, entity, or organization, excluding an agency of the federal government by whatever name or designation, that delivers (i) services to individuals with mental illness, developmental disabilities, or substance abuse or (ii) residential services for persons with brain injury. The person, entity, or organization shall include a hospital as defined in § 32.1-123 , community services board, behavioral health authority, private provider, and any other similar or related person, entity, or organization. It shall not include any individual practitioner who holds a license issued by a health regulatory board of the Department of Health Professions or who is exempt from licensing pursuant to § 54.1-3501 , 54.1-3601 , or 54.1-3701 .

“Provisional license” means a license issued to a provider previously issued a full license that has demonstrated a temporary inability to maintain compliance with licensing or human rights regulations or that has failed to comply with a previous corrective action plan, and that allows the provider to continue operating for a limited time while addressing the inability or failure to comply with regulations.

“Service or services” means:

  1. Planned individualized interventions intended to reduce or ameliorate mental illness, developmental disabilities, or substance abuse through care, treatment, training, habilitation, or other supports that are delivered by a provider to persons with mental illness, developmental disabilities, or substance abuse. Services include outpatient services, intensive in-home services, opioid treatment services, inpatient psychiatric hospitalization, community gero-psychiatric residential services, assertive community treatment, and other clinical services; day support, day treatment, partial hospitalization, psychosocial rehabilitation, and habilitation services; case management services; and supportive residential, special school, halfway house, in-home services, crisis stabilization, and other residential services; and
  2. Planned individualized interventions intended to reduce or ameliorate the effects of brain injury through care, treatment, or other supports provided in residential services for persons with brain injury.

History. Code 1950, § 37-254; 1950, p. 935; 1960, c. 496; 1964, c. 54; 1968, c. 477, § 37.1-179; 1971, Ex. Sess., c. 182; 1976, c. 671; 1977, cc. 89, 346; 1979, c. 54; 1980, c. 582; 2001, cc. 486, 506; 2002, c. 56; 2005, cc. 716, 718, 725; 2012, cc. 476, 507; 2014, c. 497; 2017, c. 458; 2021, Sp. Sess. I, cc. 3, 257.

Editor’s note.

Acts 2005, cc. 718 and 725, amended former § 37.1-179, from which this section was derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, Acts 2005, cc. 718 and 725, have been given effect in this section as set out above. The 2005 amendments by cc. 718 and 725 are identical, and inserted the definition of “Brain injury,” inserted items (iii) and (iv) in the definition of “Provider” and added subdivision 3 in the definition of “Service or services.”

Acts 2005, cc. 718 and 725, cl. 2 provides: “That the State Board of Mental Health, Mental Retardation and Substance Abuse Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “persons” and “intellectual disability” for “mental retardation” throughout the definitions of “Provider” and “Service or services”; deleted former clause (iii), which read “services to persons under the Brain Injury Waiver” and redesignated former clause (iv) as (iii) in the paragraph defining “Provider”; and in paragraph 3 of the definition of “Service or services,” deleted “under the Brain Injury Waiver or” following “or other supports provided.”

The 2014 amendments.

The 2014 amendment by c. 497 added the definitions of “Conditional license,” “Full license,” and “Provisional license.”

The 2017 amendments.

The 2017 amendment by c. 458, substituted “developmental disabilities” for “intellectual disability” throughout; in the definition of “Provider,” deleted former clause (ii) which read: “services to individuals who receive day support, in-home support, or crisis stabilization services funded through the Individual and Families Developmental Disabilities Support Waiver, or”; in the definition of “Service or services,” inserted “in-home services, crisis stabilization” in subdivision 1, deleted former subdivision 2 which read: “Day support, in-home support, and crisis stabilization services provided to individuals under the Individual and Families Developmental Disabilities Support Waiver; and”; and made related changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 3 and 257, effective July 1, 2021, are identical, and substituted “means” for “is” and deleted “but before age 65” following “after birth” in the definition of “Brain injury.”

§ 37.2-404. Authority of Commissioner to grant licenses.

The Commissioner, subject to regulations adopted by the Board, may license any suitable provider to establish, maintain and operate, or have charge of any service.

History. 1980, c. 582, § 37.1-179.1; 2001, cc. 486, 506; 2002, c. 56; 2005, c. 716.

Editor’s note.

Acts 2005, c. 7, cl. 1, effective February 25, 2005, and Acts 2005, c. 64, cl. 1, provide: Ҥ 1. Standards for the evaluation of the need and appropriateness for certain new licenses; moratorium on licensure of providers until standards in place.

“A. In addition to the existing regulations, the State Mental Health, Mental Retardation and Substance Abuse Services Board shall establish, pursuant to the Administrative Process Act, standards to evaluate the need and appropriateness for the issuance of new licenses to providers of treatment for persons with opiate addiction through the use of Methadone or any other controlled substance approved by the Food & Drug Administration for the use in opiate treatment. The standards shall include criteria for (i) determination of need for new clinics, taking into consideration (a) the number of persons residing in the service area who are known or reasonably estimated to be in need of such treatment; (b) the availability of relevant staff in the service area; and (c) the building or space proposed to be the site of the new clinic and its suitability; (ii) the availability of counseling or other services necessary for effective treatment of persons with opiate addiction; (iii) existing access to such treatment, including through physicians’ offices; (iv) the reasonable parameters, both geographic and demographic, of a clinic’s service area; and (v) the proposed clinic’s plan of operation, including security and accountability measures.

“B. Notwithstanding the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services’ discretion to grant licenses to providers of treatment for persons with opiate addiction through the use of the controlled substance, methadone, or other opioid replacements, a moratorium on the issuance of new licenses for such providers shall be in effect from the enactment date of this act until the date on which the regulations required by subsection A become effective.”

Acts 2005, cc. 7 and 64, cl. 2, provide: “That the State Mental Health, Mental Retardation and Substance Abuse Services Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

§ 37.2-405. License required; exception; license not transferable; operation of existing services; persons not to be admitted, etc., to unlicensed providers.

  1. No provider shall establish, conduct, maintain, or operate or continue to operate in the Commonwealth any service, without being licensed under this article, except where the provider is exempt from licensing.
  2. No license issued under this article shall be assignable or transferable.
  3. No person shall be admitted, placed, treated, maintained, housed, or otherwise kept, voluntarily or involuntarily, by any provider required to be licensed by subsection A, unless and until the provider is licensed by the Commissioner.

History. 1971, Ex. Sess., c. 181, § 37.1-183.1; 1976, c. 671; 1977, c. 346; 1980, c. 582; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-405.1. Certain provider information on website.

The Department of Behavioral Health and Developmental Services shall list licensed providers included on the website of the Department’s Office of Licensing by the assumed or fictitious name under which the provider is doing business in the Commonwealth. Within the file of that record following the name under which the provider does business in the Commonwealth, the record shall also include any other Virginia corporate name of the provider, if different from the assumed or fictitious name under which the provider is doing business.

History. 2013, c. 451.

Editor’s note.

Acts 2013, c. 451 was codified as this section at the direction of the Virginia Code Commission.

§ 37.2-405.2. Certain information required of applicants to operate a licensed service.

  1. Every applicant for licensure to establish, conduct, maintain, or operate or continue to operate a licensed service in the Commonwealth shall submit, together with an application for licensure:
    1. A working budget showing projected revenue and expenses for the first year of operation, including a revenue plan;
    2. Documentation of working capital to include (i) documentation of funds or a line of credit in the name of the applicant or owner sufficient to cover at least 90 days of operating expenses if the provider is a corporation, an unincorporated organization or association, a sole proprietor, or a partnership or (ii) appropriated revenue if the provider is a state or local government agency, board, or commission;
    3. Documentation of authority to conduct business in the Commonwealth;
    4. A statement of (i) the legal name of the applicant and, if the applicant is an association, partnership, limited liability company, or corporation, the names and addresses of its officers, agents, sponsors, partners, shareholders, or members and (ii) the legal name under which the applicant, any entity that operates group homes that is affiliated with or under common ownership or control with the applicant, and any entity that operates group homes and that is affiliated with or under common ownership or control with any officer, agent, sponsor, partner, shareholder or member of the applicant to which a license to operate a service has been issued in any other state, together with a list of the states in which such licenses have been issued and the dates for which such licenses were issued;
    5. A statement of any previous revocation, suspensions, or sanction comparable to those set forth in § 37.2-419 against any license to operate a service issued to the applicant or any entity affiliated with the applicant in any other state, including the dates and descriptions of such disciplinary actions or sanctions;
    6. A description of the specific services to be offered by the applicant including such elements as may be specified by the Department in regulations;
    7. A staffing plan, including information regarding employee credentials and job descriptions, containing such elements as may be specified by the Department in regulations;
    8. Operating policies that contain such elements as may be specified by the Department in regulations; and
    9. Any additional documentation as may be required by the Department.
  2. The Commissioner may refuse to grant a license to any application who fails or refuses to provide any information required to be submitted pursuant to subsection A.

History. 2020, c. 723.

§ 37.2-406. Conditions for initial licensure of certain providers.

  1. Notwithstanding the Commissioner’s discretion to grant licenses pursuant to this article or any Board regulation regarding licensing, no initial license shall be granted by the Commissioner to a provider of treatment for persons with opiate addiction through the use of (i) methadone or (ii) opioid replacements other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration if the provider is to be located within one-half mile of a public or private licensed day care center or a public or private K-12 school, except when such service is provided by a hospital licensed by the Board of Health or the Commissioner or is owned or operated by an agency of the Commonwealth.
  2. No provider shall be required to conduct, maintain, or operate services for the treatment of persons with opiate addiction through the use of (i) methadone or (ii) opioid replacements other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration on Sunday, except when such service is provided by a hospital licensed by the Board of Health or the Commissioner or is owned or operated by an agency of the Commonwealth, subject to regulations or guidelines issued by the Department consistent with the health, safety and welfare of individuals receiving services and the security of take-home doses of (i) methadone or (ii) opioid replacements other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration.
  3. Upon receiving notice of a proposal for or an application to obtain an initial license from a provider of treatment for persons with opiate addiction through the use of (i) methadone or (ii) opioid replacements other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration, the Commissioner shall, within 15 days of the receipt, notify the local governing body of and the community services board serving the jurisdiction in which the facility is to be located of the proposal or application and the facility’s proposed location.Within 30 days of the date of the notice, the local governing body and community services board shall submit to the Commissioner comments on the proposal or application. The local governing body shall notify the Commissioner within 30 days of the date of the notice concerning the compliance of the applicant with this section and any applicable local ordinances.
  4. No license shall be issued by the Commissioner to the provider until the conditions of this section have been met, i.e., local governing body and community services board comments have been received and the local governing body has determined compliance with the provisions of this section and any relevant local ordinances.
  5. No applicant for a license to provide treatment for persons with opiate addiction through the use of (i) methadone or (ii) opioid replacements other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration that has obtained a certificate of occupancy in accordance with the law and regulations in effect on January 1, 2004, shall be required to comply with the provisions of this section with respect to the existing facility for which the certificate of occupancy was obtained. No existing licensed provider shall be required to comply with the provisions of this section with respect to an existing facility in which it is currently providing such treatment. License applicants and licensees who fall within this exception shall, however, be required to comply with the provisions of this section for purposes of relocating an existing facility or establishing a new facility.
  6. The provisions of subsections A and E shall not apply to (i) the jurisdictions in Planning District 8, (ii) an applicant for a license for the purpose of relocating within a city located in Planning District 23 a facility to provide treatment for persons with opiate addiction through the use of methadone or other opioid replacements that has been providing such treatment in the same city since 1984 and is operated by and located with a community services board, or (iii) an applicant for a license to operate in its current location as a facility to provide treatment for persons with opiate addiction through the use of methadone or other opioid replacements when the facility is located within one-half mile of a public or private licensed day care center or a public or private K-12 school in Henrico County, the City of Newport News, or the City of Richmond and has been licensed and operated as a facility to provide treatment for persons with opiate addiction through the use of methadone or other opioid replacements by another provider immediately prior to submission of the application for a license.

History. 2004, cc. 823, 845, § 37.1-179.2; 2005, c. 716; 2007, c. 513; 2012, cc. 476, 507; 2014, cc. 173, 415; 2016, c. 480; 2018, cc. 187, 816.

The 2007 amendments.

The 2007 amendment by c. 513 added subsection B; redesignated former subsections B through E as present subsections C through F; and substituted “Upon” for “Further, upon” at the beginning of subsection C.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers” near the end of subsection B, and deleted “of this section” following “subsection A” in subsection F.

The 2014 amendments.

The 2014 amendments by cc. 173 and 415 are identical, and in subsection E inserted “with respect to the existing facility for which the certificate of occupancy was obtained,” substituted “with respect to an existing facility” for “in any city or county,” and added the last sentence; and in subsection F inserted “and subsection E” and the language beginning “or to an applicant” at the end.

The 2016 amendments.

The 2016 amendment by c. 480, in subsection A, substituted “(i) methadone or (ii) opioid replacements, other than opioid replacements approved for the treatment of opioid addiction by the U.S. Food and Drug Administration” for “methadone or other opioid replacements” or similar language in subsections A, C and E and twice in subsection B; and substituted “subsections A and E” for “subsection A and subsection E” in subsection F.

The 2018 amendments.

The 2018 amendments by cc. 187 and 816 are nearly identical, and added clause (iii) in subsection F. In addition c. 816 inserted “the City of Newport News” in clause (iii).

§ 37.2-407. Regulations for treatment of pregnant women with substance abuse.

The Board shall adopt regulations that ensure that providers licensed to offer substance abuse services develop policies and procedures for the timely and appropriate treatment of pregnant women with substance abuse.

History. 1992, c. 428, § 37.1-182.1; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-408. Regulation of services delivered in group homes and residential facilities for children.

  1. The Department shall assist and cooperate with other state departments in fulfilling their respective licensing and certification responsibilities. The Board shall adopt regulations that shall allow the Department to so assist and cooperate with other state departments. The Board may adopt regulations to enhance cooperation and assistance among agencies licensing similar programs.
  2. The Board’s regulations shall establish the Department as the single licensing agency, with the exception of educational programs licensed by the Department of Education, for group homes or residential facilities providing mental health, developmental, brain injury, or substance abuse services other than facilities operated or regulated by the Department of Juvenile Justice. Such regulations shall address the services required to be provided in group homes and residential facilities for children as it may deem appropriate to ensure the health and safety of the children. In addition, the Board’s regulations shall include, but shall not be limited to (i) specifications for the structure and accommodations of such homes and facilities according to the needs of the children to be placed; (ii) rules concerning allowable activities, local government- and home- or facility-imposed curfews, and study, recreational, and bedtime hours; and (iii) a requirement that each facility have a community liaison who shall be responsible for facilitating cooperative relationships with the neighbors, the school system, local law enforcement, local government officials, and the community at large.
  3. Pursuant to the procedures set forth in subsection D, the Commissioner may issue a summary order of suspension of the license of a group home or residential facility for children licensed pursuant to the Board’s regulations under subsection A, in conjunction with any proceeding for revocation, denial, or other action, when conditions or practices exist in the home or facility that pose an immediate and substantial threat to the health, safety, and welfare of the children who are residents and the Commissioner believes the operation should be suspended during the pendency of such proceeding.
  4. The summary order of suspension shall take effect upon its issuance and shall be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The order shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the summary order of suspension and shall be convened by the Commissioner or his designee.After such hearing, the Commissioner may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented. A final order of summary suspension shall include notice that the licensee may appeal the Commissioner’s decision to the appropriate circuit court no later than 10 days following issuance of the order. The sole issue before the court shall be whether the Department had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.The willful and material failure to comply with the summary order of suspension or final order of summary suspension shall be punishable as a Class 2 misdemeanor. The Commissioner may require the cooperation of any other agency or subdivision of the Commonwealth in the relocation of children who are residents of a home or facility whose license has been summarily suspended pursuant to this section and in any other actions necessary to reduce the risk of further harm to children.
  5. In addition to the requirements set forth above, the Board’s regulations shall require, as a condition of initial licensure or, if appropriate, license renewal, that the applicant shall: (i) be personally interviewed by Department personnel to determine the qualifications of the owner or operator before granting an initial license; (ii) provide evidence of having relevant prior experience before any initial license is granted; (iii) provide, as a condition of initial license or renewal licensure, evidence of staff participation in training on appropriate siting of the residential facilities for children, good neighbor policies, and community relations; and (iv) be required to screen children prior to admission to exclude children with behavioral issues, such as histories of violence, that cannot be managed in the relevant residential facility.
  6. In addition, the Department shall:
    1. Notify relevant local governments and placing and funding agencies, including the Office of Children’s Services, of multiple health and safety or human rights violations in residential facilities for which the Department serves as lead licensure agency when such violations result in the lowering of the licensure status of the facility to provisional;
    2. Post on the Department’s website information concerning the application for initial licensure of or renewal, denial, or provisional licensure of any residential facility for children located in the locality;
    3. Require all licensees to self-report lawsuits against or settlements with residential facility operators relating to the health and safety or human rights of residents and any criminal charges that may have been made relating to the health and safety or human rights of children receiving services;
    4. Require proof of contractual agreements or staff expertise to provide educational services, counseling services, psychological services, medical services, or any other services needed to serve the children receiving services in accordance with the facility’s operational plan;
    5. Modify the term of the license at any time during the term of the license based on a change in compliance; and
    6. Disseminate to local governments, or post on the Department’s website, an accurate (updated weekly or monthly as necessary) list of licensed and operating group homes and other residential facilities for children by locality with information on services and identification of the lead licensure agency.

History. 1990, c. 311, § 37.1-189.1; 2005, cc. 358, 363, 471, 485, 716; 2006, c. 781; 2008, c. 873; 2012, cc. 476, 507; 2015, c. 366.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

Editor’s note.

Acts 2005, cc. 358 and 471 amended former § 37.1-189.1, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendments by cc. 358 and 471 have been given effect in this section as set out above by adding subsection B.

Acts 2005, cc. 363 and 485 amended former § 37.1-189.1, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendments by cc. 363 and 485 have been given effect in this section as set out above by adding subsections C and D.

Acts 2005, cc. 363 and 485, cl. 2 provides: “That the State Mental Health, Mental Retardation and Substance Abuse Services Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2005, cc. 363 and 485, cl. 3 provides: “That the Executive Secretary of the Supreme Court and the Department of Mental Health, Mental Retardation and Substance Abuse Services shall establish a protocol for the expedited appointment of a hearing officer for the summary suspension of licenses in accordance with the provisions of this act.”

Acts 2006, c. 781, cl. 2 provides: “That the Board of Education, Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], Board of Social Services, and the State Board of Juvenile Justice shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2006, c. 781, cl. 3 provides: “That the Board of Education, Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], Board of Social Services, and the State Board of Juvenile Justice shall also include in the emergency regulations required by the second enactment clause provisions to implement the requirements enacted by HB 2461 (2005) and SB 1304 (2005) [Acts 2005, cc. 358, 471].”

Acts 2008, c. 873, cl. 2 provides: “That the Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], the Board of Social Services, and the Board of Juvenile Justice shall promulgate regulations to implement the provisions of this act no later than October 31, 2009.”

Acts 2008, c. 873, cl. 3 provides: “That the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22 VAC 42-11-10 et seq.) shall remain in full force and effect until such time as each Board required to promulgate regulations pursuant to this act promulgates such regulations as required by this act. Upon promulgation of regulations by a Board as required by this act, the Standards for Interdepartmental Regulation of Children’s Residential Facilities shall cease to apply to facilities licensed and regulated by that Board.”

The 2006 amendments.

The 2006 amendment by c. 781 added subsections E and F.

The 2008 amendments.

The 2008 amendment by c. 873 deleted “and in reducing and simplifying the regulations involved in such licensing and certification” from the end of the first sentence in subsection A; in subsection B, inserted the first sentence and substituted “Such regulations shall” for “The Board’s regulations shall” at the beginning of the second sentence; added subdivision F 6 and made related changes.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “mental health, developmental, brain injury” for “mental health, mental retardation, brain injury” in the first sentence of subsection B; substituted “(iv) be required to screen children prior to admission to exclude children with” for “(iv) be required to screen residents prior to admission to exclude individuals with” in subsection E; and in subsection F, substituted “children receiving services” for “residents” in subdivisions 3 and 4.

The 2015 amendments.

The 2015 amendment by c. 366 substituted “Office of Children’s Services” for “Office of Comprehensive Services” in subdivision F 1.

§ 37.2-408.1. Background check required; children’s residential facilities.

  1. Notwithstanding the provisions of § 37.2-416 , as a condition of employment, volunteering or providing services on a regular basis, every children’s residential facility that is regulated or operated by the Department shall require any person who (i) accepts a position of employment at such a facility, (ii) is currently employed by such a facility, (iii) volunteers for such a facility, or (iv) provides contractual services directly to a juvenile for such a facility to submit to fingerprinting and to provide personal descriptive information, to be forwarded along with the person’s fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding the person. The children’s residential facility shall inform the person that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final determination is made of the person’s eligibility to have responsibility for the safety and well-being of children. The person shall provide the children’s residential facility with a written statement or affirmation disclosing whether he has ever been convicted of or is the subject of pending charges for any offense within or outside the Commonwealth. The results of the criminal history background check must be received prior to permitting a person to work in the children’s residential facility.The Central Criminal Records Exchange, upon receipt of a person’s record or notification that no record exists, shall forward it to the state agency that operates or regulates the children’s residential facility with which the person is affiliated. The state agency shall, upon receipt of a person’s record lacking disposition data, conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data. The state agency shall report to the children’s facility whether the person is eligible to have responsibility for the safety and well-being of children. Except as otherwise provided in subsection B, no children’s residential facility regulated or operated by the Department shall hire for compensated employment or allow to volunteer or provide contractual services persons who have been convicted of or are the subject of pending charges for (a) any offense set forth in clause (i), (ii), (iii), or (v) of the definition of barrier crime in § 19.2-392.02 or (b) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (1) in the five years prior to the application date for employment, to be a volunteer, or to provide contractual services or (2) such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 . The provisions of this section also shall apply to structured residential programs, excluding secure detention facilities, established pursuant to § 16.1-309.3 for juvenile offenders cited in a complaint for intake or in a petition before the court that alleges the juvenile is delinquent or in need of services or supervision.
  2. Notwithstanding the provisions of subsection A, a children’s residential facility may hire for compensated employment or for volunteer or contractual service purposes persons who have been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2 , or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed such offense in the scope of his employment, volunteer, or contractual services.If the person is denied employment, or the opportunity to volunteer or provide services, at a children’s residential facility because of information appearing on his criminal history record, and the person disputes the information upon which the denial was based, upon written request of the person the state agency shall furnish the person the procedures for obtaining his criminal history record from the Federal Bureau of Investigation. The information provided to the children’s residential facility shall not be disseminated except as provided in this section.
  3. Those persons listed in clauses (i) through (iv) of subsection A also shall authorize the children’s residential facility to obtain a copy of information from the central registry maintained pursuant to § 63.2-1515 on any investigation of child abuse or neglect undertaken on him. The person shall provide the children’s residential facility with a written statement or affirmation disclosing whether he has ever been the subject of a founded case of child abuse or neglect within or outside the Commonwealth. The children’s residential facility shall receive the results of the central registry search prior to permitting a person to work. Children’s residential facilities regulated or operated by the Department shall not hire for compensated employment, or allow to volunteer or provide contractual services, persons who have a founded case of child abuse or neglect.
  4. The cost of obtaining the criminal history record and the central registry information shall be borne by the person unless the children’s residential facility, at its option, decides to pay the cost.

History. 2008, c. 873; 2012, cc. 383, 476, 507; 2016, c. 580; 2017, c. 809; 2019, cc. 100, 282.

Editor’s note.

Acts 2008, c. 873, cl. 2 provides: “That the Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], the Board of Social Services, and the Board of Juvenile Justice shall promulgate regulations to implement the provisions of this act no later than October 31, 2009.”

Acts 2008, c. 873, cl. 3 provides: “That the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22 VAC 42-11-10 et seq.) shall remain in full force and effect until such time as each Board required to promulgate regulations pursuant to this act promulgates such regulations as required by this act. Upon promulgation of regulations by a Board as required by this act, the Standards for Interdepartmental Regulation of Children’s Residential Facilities shall cease to apply to facilities licensed and regulated by that Board.”

The 2012 amendments.

The 2012 amendment by c. 383, in subsection A, in the fourth sentence, inserted “a felony violation of a protective order as set out in § 16.1-253.2,” “or B” preceding “of § 18.2-47 ,” and “a felony violation of a protective order as set out in § 18.2-60.4 .”

The 2012 amendments by cc. 476 and 507 are identical, and in subsection A, substituted “any person who” for “any individual who” preceding (i), “the person’s fingerprints” for “the applicant’s fingerprints” and “regarding the person” for “regarding such applicant” in the first sentence, substituted “person” for “applicant” in the second and third sentences of the first paragraph, and in the second paragraph, substituted “of a person’s record” for “of an individual’s record” in the first and second sentences, and “person” for “applicant” in the first and third sentences; in the second paragraph of subsection B, substituted “person” for “applicant” throughout, and “person’s” for “applicant’s” near the end of the second sentence; in subsection C, substituted “Those persons” for “Those individuals” at the beginning of the first sentence, “The person” for “The applicant” at the beginning of the second sentence, and “a person” for “an applicant” in the third sentence; and in subsection D, substituted “person” for “employee or volunteer.”

The 2016 amendments.

The 2016 amendment by c. 580 inserted “or an equivalent offense in another state” in clause (b) and added clause (d) in the second paragraph of subsection A and made related changes.

The 2017 amendments.

The 2017 amendment by c. 809, in subsection A, rewrote the fourth sentence, which formerly listed specific criminal offenses; and inserted “or any substantially similar offense under the laws of another jurisdiction” in subsection B.

The 2019 amendments.

The 2019 amendments by c. 100, effective February 21, 2019, and c. 282, effective March 8, 2019, are nearly identical, and in the first paragraph in subsection A, deleted “who was not employed by that facility prior to July 1, 2008” at the end of clause (i), inserted clause (ii) and the clause (iii) designator, deleted “on a regular basis and will be alone with a juvenile in the performance of his duties who was not a volunteer at such facility prior to July 1, 2008” at the end of clause (iii), redesignated former clause (iii) as clause (iv), substituted “a facility” for “facility on a regular basis and will be alone with a juvenile in the performance of his duties who did not provide such services prior to July 1, 2008” in clause (iv) and substituted “in the children’s residential facility” for “with children” at the end of the paragraph; in the second paragraph in subsection B, deleted the second sentence which read “If the person has been permitted to assume duties that do not involve contact with children pending receipt of the report, the children’s residential facility is not precluded from suspending the person from his position pending a final determination of the person’s eligibility to have responsibility for the safety and well-being of children”; and in subsection C, substituted “(i) through (iv)” for “(i), (ii), and (iii)” in the first sentence and deleted “alone with children” at the end of the third sentence.

§ 37.2-409. Intermediate care facilities for individuals with intellectual disability.

The Board may adopt regulations specifying the maximum number of individuals to be served by any intermediate care facility for individuals with intellectual disability (ICF/IID).

History. 2001, cc. 486, 506, § 37.1-189.2; 2005, c. 716; 2012, cc. 476, 507; 2017, c. 458.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “consumers” and “individuals with intellectual disability (ICF/MR)” for “the mentally retarded.”

The 2017 amendments.

The 2017 amendment by c. 458 substituted “(ICF/IID)” for “(ICF/MR).”

§ 37.2-410. Expiration of license; renewal; license fees.

Full licenses granted under this article may be issued for a period of one year or three successive years from the date of issuance and may be renewed by the Commissioner. The Commissioner shall issue a triennial license to a provider that has demonstrated full compliance with all applicable regulations of the Board related to health and safety of individuals receiving services during the previous licensing period and has demonstrated consistent compliance with all regulations of the Board during the previous 12-month period and the provider has taken steps satisfactory to the Department to prevent future violations and maintain full compliance with all applicable regulations during the three-year period. The Board may fix a reasonable fee for each license so issued and for any renewal thereof. All funds received by the Department under this article shall be paid into the general fund in the state treasury.

History. Code 1950, § 37-256; 1968, c. 477, § 37.1-181; 1976, c. 671; 1980, c. 582; 1983, c. 67; 1992, c. 666; 2001, cc. 486, 506; 2005, c. 716; 2014, c. 497.

The 2014 amendments.

The 2014 amendment by c. 497 substituted “Full licenses” for “Licenses,” “a period of one year or” for “periods of up to,” and added the second sentence.

§ 37.2-411. Inspections.

All services provided or delivered under any license shall be subject to review or inspection at any reasonable time by any authorized inspector or agent of the Department. The Commissioner or his authorized agents shall inspect all licensed providers and shall have access at all reasonable times to all services and records, including medical records. Records that are confidential under federal or state law shall be maintained as confidential by the Department and shall not be further disclosed except as permitted by law; however, there shall be no right of access to communications that are privileged pursuant to § 8.01-581.17 . The Commissioner shall call upon other state or local departments to assist in the inspections and those departments shall render an inspection report to the Commissioner. After receipt of all inspection reports, the Commissioner shall make the final determination with respect to the condition of the service so reviewed or inspected. The Commissioner or his authorized agents shall make at least one annual unannounced inspection of each service offered by each licensed provider. Inspections shall be focused on preventing specific risks to individuals receiving services, including an evaluation of the physical facilities in which the services are provided. In addition, the Commissioner shall promptly investigate all complaints. The Board may adopt and the Commissioner shall enforce reasonable regulations that may be necessary or proper to carry out the general purposes of this article.

History. Code 1950, § 37-257; 1968, c. 477, § 37.1-182; 1980, c. 582; 1992, c. 666; 2001, cc. 486, 506; 2005, c. 716; 2012, cc. 476, 507.

Cross references.

As to inspection of hospitals by state agencies generally, see § 32.1-125.1 .

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers” in the seventh sentence.

§ 37.2-412. Human rights review.

Licensing pursuant to this article shall be contingent upon substantial compliance with § 37.2-400 and acceptable implementation of the human rights regulations adopted pursuant thereto, as determined by periodic human rights reviews performed by the Department. Such reviews shall be conducted as part of the Department’s licensing reviews or, at the Department’s discretion, whenever human rights issues arise.

History. 1999, c. 969, § 37.1-182.3; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-413. Necessity for supervision by licensed provider.

No person shall maintain or operate any service unless such service is under the direct supervision of a provider licensed under this article.

History. Code 1950, § 37-258; 1950, p. 936; 1968, c. 477, § 37.1-184; 1976, c. 671; 1979, c. 54; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-414. Cure by mental or spiritual means without use of drugs or material remedy.

Nothing contained in this article shall be construed to authorize or require a license of a provider to establish, maintain and operate, or have charge of any service for the care and treatment of persons by the practice of the religious tenets of any church in the ministration to the sick and suffering by mental or spiritual means without the use of any drug or material remedy, whether gratuitously or for compensation, provided the statutes and regulations on sanitation and safety are complied with.

History. Code 1950, § 37-259; 1960, c. 496; 1968, c. 477, § 37.1-188; 1976, c. 671; 2001, cc. 486, 506; 2005, c. 716.

CASE NOTES

Any facility for care or treatment of mentally retarded is qualified for exemption. —

Under any reasonable interpretation of this section, any institution, hospital, or home for the care or treatment of mentally retarded persons is qualified for exemption if it treats its residents without drugs for the condition for which it exists, viz., mental retardation, even though some drugs are administered, provided the drugs are prescribed for other conditions by outside physicians. Cullum v. Faith Mission Home, Inc., 237 Va. 473 , 379 S.E.2d 445, 5 Va. Law Rep. 2187, 1989 Va. LEXIS 79 (1989) (decided under prior law).

Mission home was exempt from licensure even though administered drugs, used behavior modification, etc. —

Even though the mission home was engaged in such secular activities as administering physical punishment, administering drugs prescribed by physicians, administering vitamins without prescription, and using behavior modification techniques and other physical measures, these activities were spiritually motivated by sincerely held religious beliefs, and they qualified as “spiritual means,” entitling the mission home to exemption from licensure, and the trial court was correct in so ruling. Cullum v. Faith Mission Home, Inc., 237 Va. 473 , 379 S.E.2d 445, 5 Va. Law Rep. 2187, 1989 Va. LEXIS 79 (1989) (decided under prior law).

§ 37.2-415. Provisional and conditional licenses.

The Commissioner may issue a provisional license at any time to a provider that has previously been fully licensed when the provider is temporarily unable to comply with all licensing standards. The maximum term of a provisional license shall be six months. A provisional license may be renewed for a period not to exceed six months if the provider is not able to demonstrate compliance with all licensing regulations but demonstrates progress towards compliance. However, in no case shall the total period of provisional licensure exceed 12 successive months. A provisional license shall be prominently displayed by the provider in a format determined by the Commissioner at the site of the affected service and shall indicate thereon the violations of licensing standards to be corrected and the expiration date of the license. Whenever the Commissioner issues a provisional license, the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall apply. Any person aggrieved by the final decision of the Commissioner to issue a provisional license shall be entitled to judicial review of such decision in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

The Commissioner may issue a conditional license to a provider to operate a new service in order to permit the provider to demonstrate compliance with all licensing standards. The maximum term of a conditional license shall be six months. A conditional license may be renewed, but in no case, whether renewed or not, shall the total period of conditional licensing be longer than 12 successive months.

History. 1980, c. 582, § 37.1-183.2; 1990, c. 311; 2001, cc. 486, 506; 2005, c. 716; 2014, c. 497.

Editor’s note.

Acts 2020, c. 1289, Item 118 C 2, as added by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 37.2-415 , Code of Virginia, and regulations 12VAC35-105-50A.1.b and 12VAC35-46-90.A, the Commissioner of the Department of Behavioral Health and Developmental Services or any authorized agent may extend the period of any conditional license issued by the department for up to six months beyond the duration of the Governor’s emergency declaration for COVID-19.”

The 2014 amendments.

The 2014 amendment by c. 497 in the first paragraph inserted “at any time” and “in a format determined by the Commissioner,” substituted “for a period not to exceed six months if the provider is not able to demonstrate compliance with all licensing regulations but demonstrates progress towards compliance. However, in” for “but in” and “licensure exceed” for “licensing be longer than,” deleted “whether renewed or not” following “no case,” and added the last two sentences.

§ 37.2-416. Background checks required.

  1. As used in this section:“Direct care position” means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.“Hire for compensated employment” does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same licensee licensed pursuant to this article or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program licensed pursuant to this article if the person employed prior to July 1, 1999, in a licensed program had no convictions in the five years prior to the application date for employment. “Hire for compensated employment” includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same licensee licensed pursuant to this article or (b) new employment in any mental health or developmental services direct care position in another office or program of the same licensee licensed pursuant to this article for which the person has previously worked in an adult substance abuse treatment position.“Shared living” means an arrangement in which the Commonwealth’s program of medical assistance pays a portion of a person’s rent, utilities, and food expenses in return for the person residing with and providing companionship, support, and other limited, basic assistance to a person with developmental disabilities receiving medical assistance services in accordance with a waiver for whom he has no legal responsibility.
  2. Every provider licensed pursuant to this article shall require (i) any applicant who accepts employment in any direct care position, (ii) any applicant for approval as a sponsored residential service provider, (iii) any adult living in the home of an applicant for approval as a sponsored residential service provider, (iv) any person employed by a sponsored residential service provider to provide services in the home, (v) any person who enters into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, and (vi) any person under contract with the provider to serve in a direct care position to submit to fingerprinting and provide personal descriptive information to be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant. Except as otherwise provided in subsection C, D, or F, no provider licensed pursuant to this article shall:
    1. Hire for compensated employment any person who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02;
    2. Approve an applicant as a sponsored residential service provider if the applicant, any adult residing in the home of the applicant, or any person employed by the applicant has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date to be a sponsored residential service provider or (b) if such applicant continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02;
    3. Permit to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver any person who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to entering into a shared living arrangement or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02; or
    4. Allow any person under contract with the provider to serve in a direct care position who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02.The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall submit a report to the requesting authorized officer or director of a provider licensed pursuant to this article. If any applicant is denied employment because of information appearing on the criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the authorized officer or director of a provider licensed pursuant to this article shall not be disseminated except as provided in this section.
  3. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of § 18.2-51.3 ; any misdemeanor violation of § 18.2-56 or 18.2-56.1 or subsection A of § 18.2-57 ; any first offense misdemeanor violation of § 18.2-57 .2; any violation of § 18.2-60 , 18.2-89 , 18.2-92 , or 18.2-94 ; any misdemeanor violation of § 18.2-282 , 18.2-346 , or 18.2-346.01 ; any offense set forth in clause (iii) of the definition of barrier crime in § 19.2-392.02 , except an offense pursuant to subsections H1 and H2 of § 18.2-248 ; or any substantially similar offense under the laws of another jurisdiction, if the hiring provider determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant’s substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history.
  4. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse treatment facilities a person who has been convicted of not more than one offense under subsection C of § 18.2-57 , or any substantially similar offense under the laws of another jurisdiction, if (i) the person has been granted a simple pardon if the offense was a felony committed in Virginia, or the equivalent if the person was convicted under the laws of another jurisdiction; (ii) more than 10 years have elapsed since the conviction; and (iii) the hiring provider determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant’s substance abuse and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse history.
  5. The hiring provider and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections C and D to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the provider or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the licensed provider decides to pay the cost.
  6. Notwithstanding the provisions of subsection B, a provider may (i) hire for compensated employment, (ii) approve as a sponsored residential service provider, (iii) permit to enter into a shared living arrangement, or (iv) permit any person under contract with the provider to serve in a direct care position on behalf of the provider or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider persons who have been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2 , or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position. A provider may also approve a person as a sponsored residential service provider if (a) any adult living in the home of an applicant or (b) any person employed by the applicant to provide services in the home in which sponsored residential services are provided has been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2 , or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position.
  7. Providers licensed pursuant to this article also shall require, as a condition of employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to § 63.2-1515 .
  8. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the provider licensed pursuant to this article decides to pay the cost.
  9. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
  10. Notwithstanding any other provision of law, a provider licensed pursuant to this article that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment, to provide sponsored residential services, to provide services in the home of a sponsored residential service provider, or to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver.
  11. Any person employed by a temporary agency that has entered into a contract with the provider and who will serve in a direct care position on behalf of the provider licensed pursuant to this article shall undergo a background check that shall include:
    1. A criminal history records check through the Central Criminal Records Exchange pursuant to § 19.2-389 ; and
    2. A search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse and neglect.Except as otherwise provided in subsection C, D, or F, no provider licensed pursuant to this article shall permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 .

History. 1999, c. 685, § 37.1-183.3; 2001, cc. 486, 506, 784; 2002, c. 712; 2003, c. 468; 2005, c. 716; 2008, cc. 383, 407; 2011, c. 657; 2012, cc. 476, 507; 2016, c. 574; 2017, cc. 458, 775, 809; 2018, c. 569; 2019, c. 89; 2020, c. 1092; 2021, Sp. Sess. I, cc. 188, 475.

Cross references.

As to licensed provider statement to prospective employer, see § 32.1-326.4.

The 2008 amendments.

The 2008 amendments by cc. 383 and 407 are identical, and inserted “or adult mental health” twice in the first sentence in the second paragraph of subsection A; in subsection C, inserted “or adult mental health” following “employment at adult substance abuse” near the beginning, inserted clause (iii), and inserted “or mental illness” twice near the end; inserted “or mental illness” near the end of the first sentence in subsection D; and made a minor stylistic change.

The 2011 amendments.

The 2011 amendment by c. 657, in the first paragraph in subsection B, substituted “subsection C, D, or F” for “subsections C or E”; made a minor stylistic change in subsection C; added subsection D; redesignated former subsection D as subsection E, and therein substituted “subsections C and D” for “subsection C”; and redesignated the remaining subsections accordingly.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and in subsection A, substituted “direct care position” for “direct consumer care position” and “an individual receiving services” for “a consumer” in the first paragraph, and “or developmental services direct care position” for “or mental retardation direct consumer care position” in (a) and (b) of the second paragraph; in subsection B, substituted “direct care position” for “direct consumer care position” in the first sentence of the first paragraph, and substituted “an applicant’s record” for “an individual’s record” in the first sentence of the second paragraph; substituted “individuals receiving services” for “consumers” near the end of subsection D and in the first sentence of subsection E; and substituted “direct care position” for “direct consumer care position” at the end of subsection F.

The 2016 amendments.

The 2016 amendment by c. 574, in subsection A, divided the former first paragraph into the introductory language of subsection A and the definition for “Direct,” deleted “As used in this section” twice in the second paragraph, added the definition for “Shared living”; in subsection B, inserted the clause (i) and (a) designations and added clauses (ii)-(v) and (b) and (c); and substituted “approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waive” for “for all applicants” in subsection G.

The 2017 amendments.

The 2017 amendment by c. 458, in subsection A, deleted “intellectual or” preceding “developmental disabilities” in the definition of “Shared living.”

The 2017 amendment by c. 775, in subsection F, in the first sentence, inserted the clause (i) designation, inserted “(ii) approve as a sponsored residential service provider, or (iii) permit to enter into a shared living arrangement,” and added the last sentence.

The 2017 amendment by c. 809, in subsection B, rewrote the second sentence in the first paragraph, adding designations for subdivisions B 1 through B 3; rewrote subsections C and D; and inserted “or any substantially similar offense under the laws of another jurisdiction” in subsection F.

The 2018 amendments.

The 2018 amendment by c. 569 inserted “18.2-89” in subsection C.

The 2019 amendments.

The 2019 amendment by c. 89 added subsection J.

The 2020 amendments.

The 2020 amendment by c. 1092, inserted “if” at the beginning of clause (iv)(b) in subdivisions B 1, B 2, and B 3; in subsection C, substituted “treatment programs” for “treatment facilities,” and inserted “any first offense misdemeanor violation of § 18.2-57.2 ,” and “any misdemeanor violation of § 18.2-282 or 18.2-346 ”; and made a stylistic change.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted “18.2-346, or 18.2-346.01 ” for “or 18.2-346 ” in subsection C.

The 2021 amendment by Sp. Sess. I, c. 475, effective July 1, 2021, in subsection B, inserted “and (vi) any person under contract with the provider to serve in a direct care position” in the introductory paragraph; added subdivision B 4; in subsections C and D, inserted “or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider” and added similar language in clause (iv) of subsection F; in subsection G, inserted “or permission for any person under contract with the provider to serve in a direct care position”; added subsection K; and made stylistic changes.

§ 37.2-417. Proceeding to prevent unlawful operation of service.

In case any service is being operated in violation of the provisions of this article or of any applicable regulations made under these provisions, the Commissioner, in addition to other remedies, may institute any appropriate action or proceedings against the provider to prevent the unlawful operation and to restrain, correct, or abate such violation or violations. Any action or proceeding shall be instituted in the circuit court of the county or city where the provider is located or conducts business, and the court shall have jurisdiction to enjoin the unlawful operation or the violation or violations.

History. Code 1950, § 37-258.3; 1960, c. 496; 1968, c. 477, § 37.1-187; 1976, c. 671; 1980, c. 582; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-418. Revocation, suspension, or refusal of licenses; resumption of operation; summary suspension under certain circumstances; penalty.

  1. The Commissioner is authorized to revoke or suspend any license issued hereunder or refuse issuance of a license on any of the following grounds: (i) violation of any provision of this article or of any applicable regulation made pursuant to such provisions; (ii) permitting, aiding, or abetting the commission of an illegal act in services delivered by the provider; or (iii) conduct or practices detrimental to the welfare of any individual receiving services from the provider.
  2. Whenever the Commissioner revokes, suspends, or denies a license, the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall apply. Any person aggrieved by the final decision of the Commissioner to refuse to issue a license or by his revocation or suspension of a license is entitled to judicial review in accordance with the provisions of the Administrative Process Act.
  3. If a license is revoked or refused as herein provided, a new application for license may be considered by the Commissioner when the conditions upon which the action was based have been corrected and satisfactory evidence of this fact has been furnished. In no event may an applicant reapply for a license after the Commissioner has refused or revoked a license until a period of six months from the effective date of that action has elapsed, unless the Commissioner in his sole discretion believes that there has been such a change in the conditions causing refusal of the prior application or revocation of the license as to justify considering the new application. When an appeal is taken by the applicant pursuant to this section, the six-month period shall be extended until a final decision has been rendered on appeal. A new license may then be granted after proper inspection has been made and all provisions of this article and applicable regulations made thereunder have been complied with and recommendations to that effect have been made to the Commissioner upon the basis of an inspection by any authorized inspector or agent of the Department.
  4. Suspension of a license shall in all cases be for an indefinite time and the suspension may be lifted and rights under the license fully or partially restored at such time as the Commissioner determines, based on an inspection, that the rights of the licensee appear to so require and the interests of the public will not be jeopardized by resumption of operation.
  5. Pursuant to the procedures set forth in subsection F and in addition to the authority provided in subsections A through D, the Commissioner may issue a summary order of suspension of the license of a group home or residential facility for children, in conjunction with any proceeding for revocation, denial, or other action, when conditions or practices exist in the home or facility that pose an immediate and substantial threat to the health, safety, and welfare of the children who are residents and the Commissioner believes the operation should be suspended during the pendency of such proceeding.
  6. The summary order of suspension shall take effect upon its issuance and shall be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The order shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the summary order of suspension and shall be convened by the Commissioner or his designee.After such hearing, the Commissioner may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented. A final order of summary suspension shall include notice that the licensee may appeal the Commissioner’s decision to the appropriate circuit court no later than 10 days following issuance of the order. The sole issue before the court shall be whether the Commissioner had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.The willful and material failure to comply with the summary order of suspension or final order of summary suspension shall be punishable as a Class 2 misdemeanor. The Commissioner may require the cooperation of any other agency or subdivision of the Commonwealth in the relocation of children who are residents of a home or facility whose license has been summarily suspended pursuant to this section and in any other actions necessary to reduce the risk of further harm to children.
  7. The Commissioner shall inform other public agencies that provide funds to a provider, including the Departments of Social Services and Medical Assistance Services, when a provider’s license is suspended, revoked, or denied in accordance with this section.

History. Code 1950, §§ 37-258.1, 37-258.2; 1960, c. 496; 1968, c. 477, §§ 37.1-185, 37.1-186; 1976, c. 671; 1980, c. 582; 1984, c. 582; 1986, cc. 104, 615; 2001, cc. 486, 506; 2005, cc. 363, 485, 716; 2006, c. 168; 2014, c. 497.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

Editor’s note.

Acts 2005, cc. 363 and 485, amended former § 37.1-185, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendments by cc, 363 and 485 were given effect in this section by adding subsections E and F.

Acts 2005, cc. 363 and 485, cl. 2 provides: “That the State Mental Health, Mental Retardation and Substance Abuse Services Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2005, c. 363 and 485, cl. 3 provides: “That the Executive Secretary of the Supreme Court and the Department of Mental Health, Mental Retardation and Substance Abuse Services shall establish a protocol for the expedited appointment of a hearing officer for the summary suspension of licenses in accordance with the provisions of this act.”

Acts 2006, c. 168, cl. 2 provides: “That the Board of Education, the Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], the State Board of Juvenile Justice, and the Board of Social Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

The 2006 amendments.

The 2006 amendment by c. 168 inserted “summary suspension under certain circumstances” in the section heading; and substituted “Commissioner” for “Department” in the third sentence of the second paragraph in subsection F.

The 2014 amendments.

The 2014 amendment by c. 497 added subsection G.

§ 37.2-419. Human rights and licensing enforcement and sanctions; notice.

  1. As used in this section, “special order” means an administrative order issued to any party licensed or funded by the Department that has a stated duration of not more than 12 months and that may include a civil penalty that shall not exceed $500 per violation per day, prohibition of new admissions, or reduction of licensed capacity for violations of § 37.2-400 , the licensing or human rights regulations, or this article.
  2. Notwithstanding any other provision of law, following a proceeding as provided in § 2.2-4019 , the Commissioner may issue a special order for a violation of any of the provisions of § 37.2-400 or any regulation adopted under any provision of § 37.2-400 or of this article that adversely affects the human rights of individuals receiving services or poses an imminent and substantial threat to the health, safety, or welfare of individuals receiving services. The issuance of a special order shall be considered a case decision as defined in § 2.2-4001 . The Commissioner shall not delegate his authority to impose civil penalties in conjunction with the issuance of special orders. The Commissioner may take the following actions to sanction public and private providers licensed or funded by the Department for noncompliance with § 37.2-400 , the human rights regulations, or this article that are the subject of a special order:
    1. Place any service of any such provider on probation upon finding that it is substantially out of compliance with the licensing or human rights regulations and that the health or safety of individuals receiving services is at risk.
    2. Reduce licensed capacity or prohibit new admissions when he concludes that the provider cannot or will not make necessary corrections to achieve compliance with licensing or human rights regulations except by a temporary restriction of its scope of service.
    3. Require that probationary status announcements and denial or revocation notices be of sufficient size and distinction and be posted in a prominent place at each public entrance of the affected service.
    4. Mandate training for the provider’s employees, with any costs to be borne by the provider, when he concludes that the lack of training has led directly to violations of licensing or human rights regulations.
    5. Assess civil penalties of not more than $500 per violation per day upon finding that the licensed or funded provider is substantially out of compliance with the licensing or human rights regulations and that the health or safety of individuals receiving services is at risk.
    6. Withhold funds from licensed or funded providers receiving public funds that are in violation of the licensing or human rights regulations upon finding that the licensed or funded provider is substantially out of compliance and that the health or safety of individuals receiving services is at risk.
  3. The Commissioner shall inform other public agencies that provide funds to a provider, including the Departments of Social Services and Medical Assistance Services, that a special order has been issued in accordance with this section.
  4. The Board shall adopt regulations to implement the provisions of this section.

History. 1999, c. 969, § 37.1-185.1; 2001, cc. 486, 506; 2005, c. 716; 2012, cc. 476, 507; 2014, c. 497.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and in subsection B, substituted “individuals receiving services” for “consumers” twice in the introductory paragraph, and in subdivisions 1 and 5.

The 2014 amendments.

The 2014 amendment by c. 497, in subsection B, inserted “that are the subject of a special order”; deleted “provisional licenses” following “announcements” in subdivision B 3; in subdivision B 6 substituted “licensed or funded providers” for “licensees or programs” and inserted “upon finding that the licensed or funded provider is substantially out of compliance and that the health or safety of individuals receiving services is at risk”; and in subsection C substituted “a provider” for “the licensee or the program” and “that a special order has been issued in accordance with this section” for “of any licensee or program that is in violation of the licensing or human rights regulations.”

§ 37.2-419.1. Summary suspension of adult facility licenses under certain circumstances; due process; penalty.

  1. Pursuant to the procedures set forth in subsection B and in addition to the authority for other disciplinary actions provided in this chapter, the Commissioner may issue a summary order of suspension of the license of any group home or residential facility for adults, in conjunction with any proceeding for revocation, denial, or other action, when conditions or practices exist in the home or facility that pose an immediate and substantial threat to the health, safety, and welfare of the adults who are residents and the Commissioner believes the operation of the home or facility should be suspended during the pendency of such proceeding.
  2. The summary order of suspension shall take effect upon its issuance and shall be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The order shall state the time, date, and location of a hearing to determine whether the suspension is appropriate. Such hearing shall be held no later than three business days after the issuance of the summary order of suspension and shall be convened by the Commissioner or his designee.After such hearing, the Commissioner may issue a final order of summary suspension or may find that such summary suspension is not warranted by the facts and circumstances presented. A final order of summary suspension shall include notice that the licensee may appeal the Commissioner’s decision to the appropriate circuit court no later than 10 days following issuance of the order. The sole issue before the court shall be whether the Commissioner had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceeding. The concurrent revocation, denial, or other proceeding shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.The willful and material failure to comply with the summary order of suspension or final order of summary suspension shall be punishable as a Class 2 misdemeanor. The Commissioner may require the cooperation of any other agency or subdivision of the Commonwealth in the relocation of adults who are residents of a home or facility whose license has been summarily suspended pursuant to this section and in any other actions necessary to reduce the risk of further harm to such residents.

History. 2006, c. 168.

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

Editor’s note.

Acts 2006, c. 168, cl. 2 provides: “That the Board of Education, the Board of Mental Health, Mental Retardation and Substance Abuse Services [now Board of Behavioral Health and Developmental Services], the State Board of Juvenile Justice, and the Board of Social Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

§ 37.2-420. Offer or payment of remuneration in exchange for referral prohibited.

No provider licensed pursuant to this article shall knowingly and willfully offer or pay any remuneration directly or indirectly, in cash or in kind, to induce any practitioner of the healing arts or any clinical psychologist licensed under the provisions of Chapters 29 (§ 54.1-2900 et seq.) and 36 ( § 54.1-3600 et seq.) of Title 54.1 to refer a person or persons to any service of the provider. The term “remuneration” excludes any payments, business arrangements, or payment practices not prohibited by 42 U.S.C. § 1320a-7b(b), as amended, or any regulations adopted pursuant thereto.

History. 1990, c. 379, § 37.1-186.1; 1996, cc. 937, 980; 2001, cc. 486, 506; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “refer a person or persons to” for “refer an individual or individuals to” in the first sentence and “42 U.S.C. § 1320a-7b(b)” for “Title 42, Section 1320a-7b(b) of the United States Code” in the second sentence.

§ 37.2-421. Advertising by licensed providers.

The Board shall adopt regulations governing advertising practices of any provider licensed pursuant to this article. The regulations shall require that any provider’s advertisement not contain false or misleading information or false or misleading representations as to fees charged for services.

History. 1990, c. 809, § 37.1-188.1; 2001, cc. 486, 506; 2005, c. 716.

§ 37.2-421.1. Supportive housing providers.

  1. The Department may enter into an agreement for the provision of supportive housing for individuals receiving auxiliary grants pursuant to § 51.5-160 with any provider licensed to provide mental health community support services, intensive community treatment, programs of assertive community treatment, supportive in-home services, or supervised living residential services. Such agreement shall include requirements for (i) individualized supportive housing service plans for every individual receiving supportive housing services, (ii) access to skills training for every individual receiving supportive housing services, (iii) assistance with accessing available community-based services and supports for every individual receiving supportive housing services, (iv) recipient-level outcome data reporting, (v) adherence to identified supportive housing program components, (vi) initial identification and ongoing review of the level of care needs for each recipient, (vii) ongoing monitoring of services described in the recipient’s individualized supportive housing service plan, and (viii) annual inspections by the Department or its designee to determine whether the provider is in compliance with the requirements of the agreement.
  2. Supportive housing provided or facilitated by providers entering into agreements with the Department pursuant to this section shall include appropriate support services in the least restrictive and most integrated setting practicable for the recipient. Residential settings where supportive housing services are provided shall (i) comply with federal habitability standards, (ii) provide cooking and bathroom facilities in each unit, (iii) afford dignity and privacy to the recipient, (iv) include rights of tenancy pursuant to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.), (v) provide rental levels that leave sufficient funds for other necessary living expenses, and (vi) not admit or retain recipients who require ongoing, onsite, 24-hour supervision and care or recipients who have any of the conditions or care needs described in subsection D of § 63.2-1805 .
  3. The Department may revoke any agreement pursuant to subsection A if the Department determines that the provider has violated the terms of the agreement or any federal or state law or regulation and enter into an agreement with another provider to ensure uninterrupted supportive housing to the auxiliary grant recipient.

History. 2016, c. 567.

Editor’s note.

Acts 2016, c. 567, cl. 2 provides: “That the Commissioner for Aging and Rehabilitative Services shall promulgate regulations to implement the provisions of this act to be effective within 180 days of its enactment.”

Acts 2016, c. 567, cl. 3 provides: “That the Commissioner for Aging and Rehabilitative Services shall develop guidance documents for implementation of the provisions of this act no later than January 1, 2017. In developing such guidance documents, the Commissioner for Aging and Rehabilitative Services shall provide notice to the public and opportunity for public comment and public participation.”

Acts 2016, c. 567, cl. 4 provides: “That the provisions of this act shall not become effective if they conflict with any federal law or regulation or any guidance document provided by the U.S. Social Security Administration.”

Acts 2016, c. 567, cl. 5 provides: “That the Department of Medical Assistance Services shall seek to amend the state plan for medical assistance under Title XIX of the Social Security Act, and any waivers thereof, to implement the necessary changes pursuant to the provisions of this act. The Department of Medical Assistance Services shall have authority to implement such changes upon approval by the Centers for Medicare and Medicaid Services and prior to the completion of the regulatory process.”

Acts 2016, c. 567, cl. 6 provides: “That the number of auxiliary grant recipients in the supportive housing setting shall not exceed 60.”

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-1200” for “55-248.2.”

§ 37.2-422. Penalty.

Any person violating any provision of this article or any applicable regulation made under such provisions shall be guilty of a Class 3 misdemeanor, and each day, or part thereof, of continuation of any such violation shall constitute a separate offense.

History. Code 1950, § 37-260; 1960, c. 496; 1968, c. 477, § 37.1-189; 1976, c. 671; 2005, c. 716.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

Article 3. Office of the Inspector General for Behavioral Health and Developmental Services.

§§ 37.2-423 through 37.2-425. Repealed by Acts 2011, cc. 798 and 871, cl. 2, effective July 1, 2012.

Cross references.

For note regarding the recodification of Titles 2.1 and 9 as new Titles 2.2 and 9.1, and accompanying revision of other material, see the note under § 2.2-100 .

Editor’s note.

Former § 37.2-423 , creating the Office of Inspector General for Behavioral Health and Developmental Services, derived from 2000, c. 927, § 2.1-815; 2001, c. 844, § 37.1- 255; 2004, c. 169; 2005, c. 716; 2009, cc. 813, 840. Former § 37.2-424, pertaining to powers and duties of Inspector General, derived from 2000, c. 927, § 2.1-816; 2001, cc. 792, 844, § 37.1-256; 2003, cc. 35, 40, 450; 2004, c. 169; 2005, c. 716. Former § 37.2-425, pertaining to reports, derived from 2001, c. 792, § 2.1-816.1, § 37.1-256.1; 2002, c. 82; 2003, cc. 35, 40, 450; 2004, c. 169; 2005, c. 716.

Article 4. Miscellaneous and Penal Provisions.

§ 37.2-426. Officers may be appointed conservators of the peace; regulation of traffic.

Pursuant to § 19.2-13 , the director, resident officers, policemen, and fire fighters of any hospital or training center may be appointed conservators of the peace on the hospital or training center property and shall have, in addition to the powers of conservators of the peace, authority to patrol and regulate traffic on all roadways and roads through hospital or training center property and to issue summons for violations thereof.

History. Code 1950, § 37-15; 1964, c. 298; 1968, c. 477, § 37.1-148; 1972, c. 639; 1976, c. 671; 1977, c. 326; 2005, c. 716.

Cross references.

As to conservators of the peace generally, see § 19.2-12 et seq.

§ 37.2-427. Mistreatment of individuals receiving services in hospital or training center.

It shall be unlawful for any officer or employee of any hospital or training center or other person to maltreat or misuse any individual who is receiving services in any hospital or training center or who is on a day pass, family visit, or trial visit from a hospital or training center. Any officer or employee of any hospital or training center or other person who maltreats or misuses any individual who is receiving services in any hospital or training center or who is on a day pass, family visit, or trial visit from a hospital or training center is guilty of a Class 1 misdemeanor.

History. Code 1950, § 37-16; 1950, p. 901; 1968, c. 477, § 37.1-150; 2005, c. 716; 2012, cc. 476, 507.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “any individual who is receiving services” for “any consumer who is being served” in the first and second sentences.

§ 37.2-428. Aiding and abetting in escapes.

It shall be unlawful for any officer or employee of any hospital or training center or any other person to aid or abet in the escape or secretion of any lawfully admitted individual receiving services in any hospital or training center, while the individual is in the hospital or training center or on a day pass, family visit, trial visit, bond or escapement, or to willfully fail or refuse to return an individual on a day pass, family visit, or trial visit under his care and custody to any hospital or training center in which he is receiving services, having given written obligation to do so, when directed in writing to do so by the director of the hospital or training center. Any such officer or employee of any hospital or training center or any other person is guilty of a Class 1 misdemeanor.

History. Code 1950, § 37-228; 1968, c. 477, § 37.1-151; 2005, c. 716; 2012, cc. 476, 507.

Cross references.

As to warrant for person escaping, see § 37.2-833 . As to punishment for Class 1 misdemeanors, see § 18.2-11 . As to aiding the escape of prisoners, see §§ 18.2-473 , 18.2-475 and 18.2-476 .

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services in any hospital or training center, while the individual is” for “consumer of any hospital or training center, while the consumer is” and “an individual on a day pass” for “a consumer on a day pass” and “he is receiving services” for “he is a consumer” in the first sentence.

§ 37.2-429. Disorderly conduct on grounds and interference with officers.

It shall be unlawful for any person to conduct himself in an insulting or disorderly manner on the grounds of any hospital or training center or in any way to resist or interfere with any officer or employee of any hospital or training center in discharge of his duty. Any person who conducts himself in an insulting or disorderly manner on the grounds of any hospital or training center or in any way resists or interferes with any officer or employee of any hospital or training center in discharge of his duty is guilty of a Class 1 misdemeanor.

History. Code 1950, § 37-229; 1968, c. 477, § 37.1-152; 1976, c. 671; 2005, c. 716.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 37.2-430. Providing alcoholic beverages to individuals receiving services.

It shall be unlawful for any person to sell or give alcoholic beverages to any individual receiving services in any hospital or training center, bring alcoholic beverages onto the premises of the hospital or training center, administer alcoholic beverages to any individual receiving services, or place alcoholic beverages or cause them to be placed where any individual receiving services may access them, except if the alcoholic beverages are prescribed by the director or physicians of the hospital or training center. Any such person is guilty of a Class 1 misdemeanor.

History. Code 1950, § 37-230; 1968, c. 477, § 37.1-153; 1972, c. 639; 1976, c. 671; 2005, c. 716; 2012, cc. 476, 507.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services in” for “consumer at,” and twice substituted “individual receiving services” for “consumer” in the first sentence.

§ 37.2-431. Contriving or conspiring to maliciously obtain admission of person.

It shall be unlawful for any person to knowingly and maliciously contrive or conspire to obtain without reasonable cause the admission of any person to any hospital or training center. Any person who knowingly and maliciously contrives or conspires to obtain without reasonable cause the admission of any person to any hospital or training center is guilty of a Class 1 misdemeanor.

History. Code 1950, § 37-230.2; 1964, c. 640; 1968, c. 477, § 37.1-154; 2005, c. 716.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 37.2-431.1. Certified recovery residences.

  1. As used in this section:“Certified recovery residence” means a recovery residence that has been certified by the Department.“Credentialing entity” means a nonprofit organization that develops and administers professional certification programs according to nationally recognized recovery housing standards.“Recovery residence” means a housing facility that provides alcohol-free and illicit-drug-free housing to individuals with substance abuse disorders and individuals with co-occurring mental illnesses and substance abuse disorders that does not include clinical treatment services.
  2. No person shall advertise, represent, or otherwise imply to the public that a recovery residence or other housing facility is a certified recovery residence unless such recovery residence or other housing facility has been certified by the Department in accordance with regulations adopted by the Board. Such regulations may require accreditation by or membership in a credentialing agency as a condition of certification.
  3. The Department shall maintain a list of certified recovery residences on its website.
  4. The Department may institute civil proceedings in the name of the Commonwealth to enjoin any person from violating the provisions of this section and to recover a civil penalty of at least $200 but no more than $1,000 for each violation. Such proceedings shall be brought in the general district or circuit court for the county or city in which the violation occurred or where the defendant resides. Civil penalties assessed under this section shall be paid into the Behavioral Health and Developmental Services Trust Fund established in § 37.2-318 .

History. 2019, c. 220.

Article 5. Disclosure of Patient Information to Third Party Payors by Professionals.

§§ 37.2-432 through 37.2-440. Repealed by Acts 2005, cc. 43 and 111.

Editor’s note.

Acts 2005, c. 716, recodified former §§ 37.1-225 through 37.1-233 as §§ 37.2-432 through 37.2-440. Acts 2005, cc. 43 and 111, repealed former §§ 37.1-225 through 37.1-233. Pursuant to § 30-152, the repeal has been given effect in §§ 37.2-432 et seq.

Subtitle II. Behavioral Health and Developmental Services.

Chapter 5. Community Services Boards.

§ 37.2-500. Purpose; community services board; services to be provided.

  1. The Department, for the purposes of establishing, maintaining, and promoting the development of mental health, developmental, and substance abuse services in the Commonwealth, may provide funds to assist any city or county or any combinations of cities or counties or cities and counties in the provision of these services. Every county or city shall establish a community services board by itself or in any combination with other cities and counties, unless it establishes a behavioral health authority pursuant to Chapter 6 (§ 37.2-600 et seq.). Every county or city or any combination of cities and counties that has established a community services board, in consultation with that board, shall designate it as an operating community services board, an administrative policy community services board or a local government department with a policy-advisory community services board. The governing body of each city or county that established the community services board may change this designation at any time by ordinance. In the case of a community services board established by more than one city or county, the decision to change this designation shall be the unanimous decision of all governing bodies.
  2. The core of services provided by community services boards within the cities and counties that they serve shall include:
    1. Emergency services;
    2. Same-day mental health screening services;
    3. Outpatient primary care screening and monitoring services for physical health indicators and health risks and follow-up services for individuals identified as being in need of assistance with overcoming barriers to accessing primary health services, including developing linkages to primary health care providers; and
    4. Subject to the availability of funds appropriated for them, case management services.
  3. Subject to the availability of funds appropriated for them, the core of services may include a comprehensive system of inpatient, outpatient, day support, residential, prevention, early intervention, and other appropriate mental health, developmental, and substance abuse services necessary to provide individualized services and supports to persons with mental illness, developmental disabilities, or substance abuse. Community services boards may establish crisis stabilization units that provide residential crisis stabilization services.
  4. In order to provide comprehensive mental health, developmental, and substance abuse services within a continuum of care, the community services board shall function as the single point of entry into publicly funded mental health, developmental, and substance abuse services.
  5. A community services board may enter into contracts with private providers to ensure the delivery of services pursuant to this article.

History. 1968, c. 477, § 37.1-194; 1972, c. 498; 1974, c. 404; 1975, c. 200; 1976, cc. 41, 671; 1977, c. 90; 1980, c. 582; 1982, c. 295; 1984, c. 653; 1998, c. 680; 2002, cc. 51, 278; 2005, c. 716; 2010, c. 28; 2012, cc. 476, 507; 2017, cc. 458, 607, 683; 2021, Sp. Sess. I, c. 213.

Editor’s note.

Acts 2014, c. 292, cl. 1 provides: “That the Department of Behavioral Health and Developmental Services shall review requirements related to qualifications, training, and oversight of individuals designated by community services boards to perform evaluations of individuals taken into custody pursuant to an emergency custody order and to make recommendations for increasing such qualifications, training, and oversight, in order to protect the safety and well-being of individuals who are subject to emergency custody orders and the public. The Department shall report its findings to the Governor and the General Assembly by December 1, 2014.”

Acts 2017, cc. 607 and 683, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2019.”

Acts 2017, cc. 607 and 683, cl. 3 provides: “That, effective July 1, 2021, the core of services provided by community services boards and behavioral health authorities within cities and counties that they serve shall include, in addition to those set forth in subdivisions B 1, 2, and 3 of § 37.2-500 of the Code of Virginia, as amended by this act, and subdivisions C 1, 2, and 3 of § 37.2-601 of the Code of Virginia, as amended by this act, respectively, (i) crisis services for individuals with mental health or substance use disorders, (ii) outpatient mental health and substance abuse services, (iii) psychiatric rehabilitation services, (iv) peer support and family support services, (v) mental health services for members of the armed forces located 50 miles or more from a military treatment facility and veterans located 40 miles or more from a Veterans Health Administration medical facility, (vi) care coordination services, and (vii) case management services.”

Acts 2017, cc. 607 and 683, cl. 4 provides: “That the Department of Behavioral Health and Developmental Services shall report by December 1 of each year to the General Assembly regarding progress in the implementation of the provisions of this act.”’

Acts 2018, Sp. Sess. I, c. 2, as amended by Acts 2019, c. 854, Item 94 B, effective for the biennium ending June 30, 2020, provides: “The Commissioner, Department of Agriculture and Consumer Services, is authorized to collect an annual inspection fee, not to exceed $40, from all establishments that are subject to inspection pursuant to Title 3.2, Chapter 51, Code of Virginia. However, any such establishment that is subject to any permit fee, application fee, inspection fee, risk assessment fee, or similar fee imposed by any locality shall be subject to this annual inspection fee only to the extent that the annual inspection fee and the locally-imposed fee, when combined, do not exceed $40. This fee structure shall be subject to the approval of the Secretary of Agriculture and Forestry. Any food bank, second harvest certified food bank, food bank member charity, or other food related activity which is exempt from taxation under 26 U.S.C. § 501 (c) (3), which maintains a food handling or storage facility, or any food-related program operated by any Community Services Board, as defined in Title 37.2, Chapter 5, Code of Virginia, shall be exempt from this inspection fee. Also, a producer of fruits and herbs that are dried, without the addition of any other ingredients, and sold only at a local farmers’ market shall be exempt from the fee.”

The 2010 amendments.

The 2010 amendment by c. 28, effective March 4, 2010, added the last sentence of the second paragraph.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” throughout the section; deleted “of this title” at the end of the second sentence of the first paragraph; and substituted “mental illness, intellectual disability, or substance abuse” for “mental illnesses, mental retardation, or substance abuse” at the end of the second sentence of the second paragraph.

The 2017 amendments.

The 2017 amendment by c. 458 in subsection C, inserted “Subject to the availability of funds appropriated for them” at the beginning and substituted “developmental disabilities” for “intellectual disability.”

The 2017 amendments by cc. 607 and 683, effective July 1, 2019, are identical and designated existing paragraphs as subsections A, B, C, and D; and rewrote subsection B, which formerly read: “The core of services provided by community services boards within the cities and counties that they serve shall include emergency services and, subject to the availability of funds appropriated for them, case management services.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 213, effective July 1, 2021, added subsection E.

CASE NOTES

Action by retarded citizens for failure to provide programs to which entitled under federal law. —

Statement by director of local department of mental health and retardation that his organization has done what it can to provide mental health and retardation programs is not grounds for dismissal in action against him by retarded citizens to provide them with programs to which they were entitled under federal law. Davis v. Buckley, 526 F. Supp. 985, 1981 U.S. Dist. LEXIS 15891 (E.D. Va. 1981) (decided under prior law).

CIRCUIT COURT OPINIONS

Sovereign Immunity. —

In a case in which plaintiff slipped and fell on snow and ice in the parking lot of the Community Services Board’s main office, the board’s plea of sovereign immunity was sustained as it was a governmental entity; snow removal operations were governmental acts performed for the benefit of the public; the board cleared the parking lot so it could resume providing the mental health and substance abuse services mandated by Virginia law; the board had discretion in determining how much, if any, salt to apply to various portions of sidewalks and parking lots; and the individual plowing the snow had to exercise some degree of care and discretion in when and how to plow the parking lot. Holmes v. Sisk & RRSCB, 2021 Va. Cir. LEXIS 353 (Culpeper County Dec. 14, 2021).

Employee rights. —

Staff members failed to state a claim for an intentional tort of wrongful discharge under the public policy of the Community Service Board Act; the Community Services Board Act does not provide an explicit right for employees of the Board to exercise, it has the stated purpose to provide mental health services through a single point of entry for public access and public funding, and it has no provision for employee rights and does not create a class of persons directly entitled to protection. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

OPINIONS OF THE ATTORNEY GENERAL

Agency of local government for tax purposes. —

Community services boards are divisions or agencies of local government, and therefore, exempt from state electric utility and natural gas consumption taxes under §§ 58.1-2900 and 58.1-2904 . See opinion of Attorney General to The Honorable Judith Williams Jagdmann, Commissioner, State Corporation Commission, 17-027, (6/15/18).

§ 37.2-501. Community services board; appointment; membership; duties of fiscal agent.

  1. Every city or county or any combination of counties and cities, before it shall come within the provisions of this chapter, shall establish a community services board with no less than six and no more than 18 members. When any city or county singly establishes a community services board, the board shall be appointed by the governing body of the city or county establishing the board. When any combination of counties and cities establishes a community services board, the board of supervisors of each county or the council of each city shall mutually agree on the size of the board and shall appoint the members of the community services board. Prior to making appointments, the governing body shall disclose the names of those persons being considered for appointment.Appointments to the community services board shall be broadly representative of the community. One-third of the appointments to the board shall be individuals who are receiving or who have received services or family members of individuals who are receiving or who have received services, at least one of whom shall be an individual receiving services. One or more appointments may be nongovernmental service providers. Sheriffs or their designees also shall be appointed, when practical. No employee of the community services board or employee or board member of an organization that receives funding from any community services board shall be appointed a member of that board.No community services board shall be composed of a majority of local government officials, elected or appointed, as members, nor shall any county or city be represented on a board by more than two officials, elected or appointed.The board appointed pursuant to this section shall be responsible to the governing body of each county or city that established it.
  2. The county or city or any combination of cities and counties that establishes an operating or administrative policy board shall receive an independent annual audit of the total revenues and expenditures of that board, a copy of which shall be provided to the Department, and designate an official of one member city or county to act as fiscal agent for the board. The county or city whose designated official serves as fiscal agent for the board in the case of boards established by more than one city or county shall review and act upon the independent audit of the board and, in conjunction with the other cities and counties, arrange for the provision of legal services to the board. When a single county or city establishes an operating or administrative policy board, it shall arrange for the provision of legal services to the board.
  3. The county or city that establishes a policy-advisory board shall provide an annual audit of the total revenues and expenditures of the city or county government department to the board and the Department, carry out the responsibilities and duties enumerated in subsection A of § 37.2-504 and § 37.2-505 , and provide legal services to the board. When any combination of cities and counties establishes a policy-advisory board, those cities and counties shall designate which local government shall operate the city or county government department. This local government shall provide an annual audit of the total revenues and expenditures of that department to the board and the Department, carry out the responsibilities and duties enumerated in subsection A of § 37.2-504 and § 37.2-505 , and, in conjunction with the other cities and counties, arrange for the provision of legal services to the board.

History. 1968, c. 477, § 37.1-195; 1970, c. 346; 1972, c. 498; 1973, c. 78; 1976, c. 671; 1978, c. 11; 1980, c. 582; 1988, c. 285; 1989, c. 254; 1994, c. 939; 1996, c. 412; 1997, c. 323; 1998, cc. 667, 680; 1999, c. 653; 2005, c. 716; 2012, cc. 476, 507.

Cross references.

As to inclusion of an official or designee from a community services board established pursuant to this section on a community policy and management team, and a family assessment and planning team, see §§ 2.2-5205 and 2.2-5207 , respectively. As to state pool of funds for community policy and management teams, see § 2.2-5211 .

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals who are receiving or who have received services or family members of individuals who are receiving or who have received services, at least one of whom shall be an individual” for “identified consumers or former consumers or family members of consumers or former consumers, at least one of whom shall be a consumer” in the first sentence of the second paragraph of subsection A.

OPINIONS OF THE ATTORNEY GENERAL

Security at public facility operated by community services board. —

A sheriff may assign a deputy to provide full-time security at a public facility operated by a community services board, such as a program for students that is operated by a community services board in cooperation with a local public school system. See opinion of Attorney General to Lucy E. Phillips, Esquire, Washington County Attorney, 17-012, 2017 Va. AG LEXIS 25 (11/16/17).

Use of the word “shall.”. —

Use of the word “shall” in §§ 2.2-5205 and 2.2-5207 requires that each community policy and management team and family assessment and planning team include a parent representative. See opinion of Attorney General to The Honorable C.E. Cliff Hayes Jr., Member, Virginia House of Delegates, 20-040, (11/13/20).

§ 37.2-502. Community services board members; term of office; vacancies; removal.

The term of office of each member of a community services board shall be for three years from January 1 of the year of appointment or, at the option of the governing body of a county or city, from July 1 of the year of appointment, except that of the members first appointed, several shall be appointed for terms of one year each, several for terms of two years each, and the remaining members of the board for terms of three years each. The appointment of members for one-year, two-year, and three-year terms shall be as nearly equal as possible with regard to the total number of members on the board. If a governing body has appointed members for terms commencing January 1 or July 1 but desires to change the date on which the terms of office commence, the governing body may, as the terms of the members then in office expire, appoint successors for terms of two and one-half or three and one-half years, so that the terms expire on June 30 or December 31. In the case of a board established by more than one city or county, the decision to change the date on which terms of office commence shall be the unanimous decision of all governing bodies. Vacancies shall be filled for unexpired terms in the same manner as original appointments. No person shall be eligible to serve more than three full terms; however, a person first appointed to fill an unexpired term may serve three additional full three-year terms. The remainder of a term to which a member is first appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. However, after a one-year period has elapsed since the end of the member’s last three-year term, the governing body may reappoint that member. Any member of a board may be removed by the appointing authority for cause, after being given a written statement of the causes and an opportunity to be heard thereon.

History. 1968, c. 477, § 37.1-196; 1970, c. 346; 1972, c. 498; 1977, c. 88; 1979, c. 391; 1980, c. 582; 1998, c. 680; 2005, c. 716; 2007, c. 570; 2010, c. 71.

The 2007 amendments.

The 2007 amendment by c. 570 substituted “terms; however a person first appointed to fill an unexpired term may serve three additional full three-year terms” for “three-year terms; however, persons appointed to fill vacancies may serve three additional full three-year terms” at the end of the sixth sentence and inserted the seventh and eighth sentences.

The 2010 amendments.

The 2010 amendment by c. 71 substituted “one-year period” for “three-year period” in the next-to-last sentence.

§ 37.2-503. Compensation of community services board members.

The governing body of any county or city or the governing bodies of any combination of cities and counties establishing a community services board may pay, out of its general fund or their general funds, no more than $600 per year to each board member as compensation for his attendance at board meetings. No city or county shall be reimbursed out of state or federal funds for any part of such compensation.

History. 1982, c. 23, § 37.1-196.1; 1998, c. 680; 2005, c. 716.

§ 37.2-504. Community services boards; local government departments; powers and duties.

  1. Every operating and administrative policy community services board and local government department with a policy-advisory board shall have the following powers and duties:
    1. Review and evaluate public and private community mental health, developmental, and substance abuse services and facilities that receive funds from it and advise the governing body of each city or county that established it as to its findings.
    2. Pursuant to § 37.2-508 , submit to the governing body of each city or county that established it a performance contract for community mental health, developmental, and substance abuse services for its approval prior to submission of the contract to the Department.
    3. Within amounts appropriated for this purpose, provide services authorized under the performance contract.
    4. In accordance with its approved performance contract, enter into contracts with other providers for the delivery of services or operation of facilities.
    5. In the case of operating and administrative policy boards, make policies or regulations concerning the delivery of services and operation of facilities under its direction or supervision, subject to applicable policies and regulations adopted by the Board.
    6. In the case of an operating board, appoint an executive director of community mental health, developmental, and substance abuse services, who meets the minimum qualifications established by the Department, and prescribe his duties. The compensation of the executive director shall be fixed by the operating board within the amounts made available by appropriation for this purpose. The executive director shall serve at the pleasure of the operating board and be employed under an annually renewable contract that contains performance objectives and evaluation criteria. For an operating board, the Department shall approve the selection of the executive director for adherence to minimum qualifications established by the Department and the salary range of the executive director. In the case of an administrative policy board, the board shall participate with local government in the appointment and annual performance evaluation of an executive director of community mental health, developmental, and substance abuse services, who meets the minimum qualifications established by the Department, and prescribe his duties. The compensation of the executive director shall be fixed by local government in consultation with the administrative policy board within the amounts made available by appropriation for this purpose. In the case of a local government department with a policy-advisory board, the director of the local government department shall serve as the executive director. The policy-advisory board shall participate in the selection and the annual performance evaluation of the executive director, who meets the minimum qualifications established by the Department. The compensation of the executive director shall be fixed by local government in consultation with the policy-advisory board within the amounts made available by appropriation for this purpose.
    7. Prescribe a reasonable schedule of fees for services provided by personnel or facilities under the jurisdiction or supervision of the board and establish procedures for the collection of those fees. All fees collected shall be included in the performance contract submitted to the local governing body or bodies pursuant to subdivision 2 and § 37.2-508 and shall be used only for community mental health, developmental, and substance abuse services purposes. Every board shall institute a reimbursement system to maximize the collection of fees from individuals receiving services under its jurisdiction or supervision, consistent with the provisions of § 37.2-511 , and from responsible third party payors. Boards shall not attempt to bill or collect fees for time spent participating in commitment hearings for involuntary admissions pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8.
    8. Accept or refuse gifts, donations, bequests, or grants of money or property from any source and utilize them as authorized by the governing body of each city or county that established it.
    9. Seek and accept funds through federal grants. In accepting federal grants, the board shall not bind the governing body of any city or county that established it to any expenditures or conditions of acceptance without the prior approval of the governing body.
    10. Notwithstanding any provision of law to the contrary, disburse funds appropriated to it in accordance with such regulations as may be established by the governing body of each city or county that established it.
    11. Apply for and accept loans as authorized by the governing body of each city or county that established it.
    12. Develop joint written agreements, consistent with policies adopted by the Board, with local school divisions; health departments; boards of social services; housing agencies, where they exist; courts; sheriffs; area agencies on aging; and regional offices of the Department for Aging and Rehabilitative Services. The agreements shall specify the services to be provided to individuals. All participating agencies shall develop and implement the agreements and shall review the agreements annually.
    13. Develop and submit to the Department the necessary information for the preparation of the Comprehensive State Plan for Behavioral Health and Developmental Services pursuant to § 37.2-315 .
    14. Take all necessary and appropriate actions to maximize the involvement and participation of individuals receiving services and family members of individuals receiving services in policy formulation and services planning, delivery, and evaluation.
    15. Institute, singly or in combination with other community services boards or behavioral health authorities, a dispute resolution mechanism that is approved by the Department and enables individuals receiving services and family members of individuals receiving services to resolve concerns, issues, or disagreements about services without adversely affecting their access to or receipt of appropriate types and amounts of current or future services from the community services board.
    16. Notwithstanding the provisions of § 37.2-400 or any regulations adopted thereunder, release data and information about each individual receiving services to the Department so long as the Department implements procedures to protect the confidentiality of that data and information.
    17. In the case of administrative policy boards and local government departments with policy-advisory boards, carry out other duties and responsibilities as assigned by the governing body of each city or county that established it.
    18. In the case of an operating board, have authority, notwithstanding any provision of law to the contrary, to receive state and federal funds directly from the Department and act as its own fiscal agent, when authorized to do so by the governing body of each city or county that established it.By local agreement between the administrative policy board and the governing body of the city or county that established it, additional responsibilities may be carried out by the local government, including personnel or financial management. In the case of an administrative policy board established by more than one city or county, the cities and counties shall designate which local government shall assume these responsibilities.
  2. Every policy-advisory community services board, with staff support provided by the director of the local government department, shall have the following powers and duties:
    1. Advise the local government regarding policies or regulations for the delivery of services and operation of facilities by the local government department, subject to applicable policies and regulations adopted by the Board.
    2. Review and evaluate the operations of the local government department and advise the local governing body of each city or county that established it as to its findings.
    3. Review the community mental health, developmental, and substance abuse services provided by the local government department and advise the local governing body of each city or county that established it as to its findings.
    4. Review and comment on the performance contract, performance reports, and Comprehensive State Plan information developed by the local government department. The board’s comments shall be attached to the performance contract, performance reports, and Comprehensive State Plan information prior to their submission to the local governing body of each city or county that established it and to the Department.
    5. Advise the local government as to the necessary and appropriate actions to maximize the involvement and participation of individuals receiving services and family members of individuals receiving services in policy formulation and services planning, delivery, and evaluation.
    6. Participate in the selection and the annual performance evaluation of the local government department director employed by the city or county.
    7. Carry out other duties and responsibilities as assigned by the governing body of each city or county that established it.

History. 1968, c. 477, § 37.1-197; 1970, c. 346; 1972, c. 498; 1976, c. 671; 1977, c. 191; 1980, c. 582; 1982, c. 50; 1984, cc. 496, 505; 1986, c. 92; 1987, c. 79; 1995, c. 844; 1998, c. 680; 2005, cc. 75, 716; 2012, cc. 476, 507, 803, 805, 835, 836.

Editor’s note.

Acts 2005, c. 75 amended former § 37.1-197, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment by c. 75 has been given effect in this section as set out above by adding subdivision A 18.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” throughout the section; in subdivision A 7, deleted “of this section” following “subdivision 2” and inserted “services” following “substance abuse” in the second sentence, and substituted “individuals” for “persons” in the third sentence; substituted “individuals” for “consumers” at the end of the second sentence of subdivision A 12; substituted “Comprehensive State Plan for Behavioral Health and Developmental Services” for “Comprehensive State Plan for mental health, mental retardation, and substance abuse services” in subdivision A 13; substituted “individuals receiving services” for “consumers” twice in subdivisions A 14, A 15 and B 5; substituted “each individual receiving services” for “individual consumers” in subdivision A 16; and substituted “an operating board” for “operating boards” near the beginning of subdivision A 18.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and deleted “of this section” following “subdivision 2” in the second sentence of subdivision A 7; and substituted “regional offices of the Department for Aging and Rehabilitative Services” for “regional Department of Rehabilitative Services offices” in the first sentence of subdivision A 12.

The 2012 amendments by cc. 805 and 836 are identical, and substituted “a performance contract” for “an annual performance contract” in subdivision A 2; and “the performance contract” for “the annual performance contract” in subdivision B 4.

OPINIONS OF THE ATTORNEY GENERAL

Agency of local government for tax purposes. —

Community services boards are divisions or agencies of local government, and therefore, exempt from state electric utility and natural gas consumption taxes under §§ 58.1-2900 and 58.1-2904 . See opinion of Attorney General to The Honorable Judith Williams Jagdmann, Commissioner, State Corporation Commission, 17-027, (6/15/18).

§ 37.2-505. Coordination of services for preadmission screening and discharge planning.

  1. The community services board shall fulfill the following responsibilities:
    1. Be responsible for coordinating the community services necessary to accomplish effective preadmission screening and discharge planning for persons referred to the community services board. When preadmission screening reports are required by the court on an emergency basis pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8, the community services board shall ensure the development of the report for the court. To accomplish this coordination, the community services board shall establish a structure and procedures involving staff from the community services board and, as appropriate, representatives from (i) the state hospital or training center serving the board’s service area, (ii) the local department of social services, (iii) the health department, (iv) the Department for Aging and Rehabilitative Services office in the board’s service area, (v) the local school division, and (vi) other public and private human services agencies, including licensed hospitals.
    2. Provide preadmission screening services prior to the admission for treatment pursuant to § 37.2-805 or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of any person who requires emergency mental health services while in a city or county served by the community services board. In the case of inmates incarcerated in a regional jail, each community services board that serves a county or city that is a participant in the regional jail shall review any existing Memorandum of Understanding between the community services board and any other community services boards that serve the regional jail to ensure that such memorandum sets forth the roles and responsibilities of each community services board in the preadmission screening process, provides for communication and information sharing protocols between the community services boards, and provides for due consideration, including financial consideration, should there be disproportionate obligations on one of the community services boards.
    3. Provide, in consultation with the appropriate state hospital or training center, discharge planning for any individual who, prior to admission, resided in a city or county served by the community services board or who chooses to reside after discharge in a city or county served by the board and who is to be released from a state hospital or training center pursuant to § 37.2-837 . Upon initiation of discharge planning, the community services board that serves the city or county where the individual resided prior to admission shall inform the individual that he may choose to return to the county or city in which he resided prior to admission or to any other county or city in the Commonwealth. If the individual is unable to make informed decisions regarding his care, the community services board shall so inform his authorized representative, who may choose the county or city in which the individual shall reside upon discharge. In either case and to the extent permitted by federal law, for individuals who choose to return to the county or city in which they resided prior to admission, the community services board shall make every reasonable effort to place the individuals in such county or city. The community services board serving the county or city in which he will reside following discharge shall be responsible for arranging transportation for the individual upon request following the discharge protocols developed by the Department.The discharge plan shall be completed prior to the individual’s discharge. The plan shall be prepared with the involvement and participation of the individual receiving services or his representative and must reflect the individual’s preferences to the greatest extent possible. The plan shall include the mental health, developmental, substance abuse, social, educational, medical, employment, housing, legal, advocacy, transportation, and other services that the individual will need upon discharge into the community and identify the public or private agencies that have agreed to provide these services.No individual shall be discharged from a state hospital or training center without completion by the community services board of the discharge plan described in this subdivision. If state hospital or training center staff identify an individual as ready for discharge and the community services board that is responsible for the individual’s care disagrees, the community services board shall document in the treatment plan within 72 hours of the individual’s identification any reasons for not accepting the individual for discharge. If the state hospital or training center disagrees with the community services board and the board refuses to develop a discharge plan to accept the individual back into the community, the state hospital or training center or the community services board shall ask the Commissioner to review the state hospital’s or training center’s determination that the individual is ready for discharge in accordance with procedures established by the Department in collaboration with state hospitals, training centers, and community services boards. If the Commissioner determines that the individual is ready for discharge, a discharge plan shall be developed by the Department to ensure the availability of adequate services for the individual and the protection of the community. The Commissioner also shall verify that sufficient state-controlled funds have been allocated to the community services board through the performance contract. If sufficient state-controlled funds have been allocated, the Commissioner may contract with a private provider, another community services board, or a behavioral health authority to deliver the services specified in the discharge plan and withhold allocated funds applicable to that individual’s discharge plan from the community services board in accordance with subsections C and E of § 37.2-508 .
    4. Provide information, if available, to all hospitals licensed pursuant to Article 1 (§ 32.1-123 et seq.) of Chapter 5 of Title 32.1 about alcohol and substance abuse services available to minors.
  2. The community services board may perform the functions set out in subdivision A 1 in the case of children by referring them to the locality’s family assessment and planning team and by cooperating with the community policy and management team in the coordination of services for troubled youths and their families. The community services board may involve the family assessment and planning team and the community policy and management team, but it remains responsible for performing the functions set out in subdivisions A 2 and A 3 in the case of children.

History. 1980, c. 582, § 37.1-197.1; 1986, c. 609; 1992, cc. 837, 880; 1995, c. 844; 1998, c. 680; 2002, c. 747; 2005, c. 716; 2012, cc. 180, 476, 507, 656, 803, 813, 835; 2017, cc. 601, 606; 2021, Sp. Sess. I, c. 249.

Cross references.

As to social services and public assistance provided to patients discharged from state hospitals or training centers provided by local social services boards pursuant to this section, see § 63.2-1602 .

Editor’s note.

In subdivision A 3, in the second sentence, “individual” was substituted for “consumer” to conform with Acts 2012, cc. 476 and 507, at the direction of the Virginia Code Commission.

Acts 2021, Sp. Sess. I, c. 249, cl. 2 provides: “That the Commissioner of Behavioral Health and Developmental Services shall establish a work group with representatives of the Virginia Association of Community Services Boards to (i) review the current process for discharging patients from state mental health hospitals, including the current assigned responsibilities of state hospital staff and community services board staff, as well as the barriers to timely discharge for patients clinically ready to discharge, and (ii) develop potential options to expedite the discharge process for individuals who can be safely discharged back into the community. The work group shall develop a plan that includes recommendations for expediting the discharge process and shall identify the necessary funding to ensure that individuals receive essential services upon discharge and that discharges are timely. The work group shall report its findings and conclusions and its plan to the Chairmen of the House Committee on Health, Welfare and Institutions and the Senate Committee on Education and Health by September 1, 2021.”

The 2012 amendments.

The 2012 amendments by cc. 180 and 813 are identical, and added subdivision A 4.

The 2012 amendments by cc. 476 and 507 are identical, and in subdivision A 3, substituted “individual” for “person” in the first sentence of the first paragraph; in the first sentence of the second paragraph, substituted “individual’s” for “person’s” and in the second sentence substituted “individual receiving services or his representative and must reflect the individual’s” for “consumer or his representative and must reflect the consumer’s” and “developmental” for “mental retardation” and “individual” for “consumer” in the third sentence; and in the concluding paragraph of subsection A, substituted “individual” for “person,” “an individual” for “a consumer,” “individual’s” for “person’s,” “individual” for “consumer” and “individual’s” for “consumer’s.”

The 2012 amendment by c. 656 added the second through fifth sentences of subdivision A 3.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and substituted “Department for Aging and Rehabilitative Services” for “Department of Rehabilitative Services” in the last sentence of subdivision A 1.

The 2017 amendments.

The 2017 amendments by cc. 601 and 606 are identical, and added the last sentence in subdivision A 2.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 249, effective July 1, 2021, substituted “72 hours” for “30 days” in the second sentence of the third paragraph in subdivision A 3.

§ 37.2-506. Background checks required.

  1. As used in this section:“Direct care position” means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.“Hire for compensated employment” does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same community services board or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program of the same community services board if the person employed prior to July 1, 1999, had no convictions in the five years prior to the application date for employment. “Hire for compensated employment” includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same community services board or (b) new employment in any mental health or developmental services direct care position in another office or program of the same community services board for which the person has previously worked in an adult substance abuse treatment position.“Shared living” means an arrangement in which the Commonwealth’s program of medical assistance pays a portion of a person’s rent, utilities, and food expenses in return for the person residing with and providing companionship, support, and other limited, basic assistance to a person with developmental disabilities receiving medical assistance services in accordance with a waiver for whom he has no legal responsibility.
  2. Every community services board shall require (i) any applicant who accepts employment in any direct care position with the community services board, (ii) any applicant for approval as a sponsored residential service provider, (iii) any adult living in the home of an applicant for approval as a sponsored residential service provider, (iv) any person employed by a sponsored residential service provider to provide services in the home, (v) any person who enters into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, and (vi) any person under contract to serve in a direct care position on behalf of the community services board to submit to fingerprinting and provide personal descriptive information to be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant. Except as otherwise provided in subsection C, D, or F, no community services board shall hire for compensated employment, approve as a sponsored residential service provider, permit to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permit any person under contract to serve in a direct care position on behalf of the community services board persons who have been convicted of (a) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (b) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (1) in the five years prior to the application date for employment, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (2) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02.The Central Criminal Records Exchange, upon receipt of an applicant’s record or notification that no record exists, shall submit a report to the requesting executive director or personnel director of the community services board. If any applicant is denied employment because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the executive director or personnel director of any community services board shall not be disseminated except as provided in this section.
  3. Notwithstanding the provisions of subsection B, the community services board may hire for compensated employment or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of § 18.2-51.3 ; any misdemeanor violation of § 18.2-56 or 18.2-56.1 , subsection A of § 18.2-57 , or § 18.2-57 .2; any violation of § 18.2-60 , 18.2-89 , 18.2-92 , or 18.2-94 ; any misdemeanor violation of § 18.2-282 , 18.2-346 , or 18.2-346.01 ; any offense set forth in clause (iii) of the definition of barrier crime in § 19.2-392.02 , except an offense pursuant to subsection H1 or H2 of § 18.2-248 ; or any substantially similar offense under the laws of another jurisdiction, if the hiring community services board determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant’s substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history.
  4. Notwithstanding the provisions of subsection B, the community services board may hire for compensated employment or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse treatment programs a person who has been convicted of not more than one offense under subsection C of § 18.2-57 , or any substantially similar offense under the laws of another jurisdiction, if (i) the person has been granted a simple pardon if the offense was a felony committed in Virginia, or the equivalent if the person was convicted under the laws of another jurisdiction; (ii) more than 10 years have elapsed since the conviction; and (iii) the hiring community services board determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant’s substance abuse and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse history.
  5. The community services board and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections C and D to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the community services board or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the board decides to pay the cost.
  6. Notwithstanding the provisions of subsection B, a community services board may (i) hire for compensated employment, (ii) approve as a sponsored residential service provider, (iii) permit to enter into a shared living arrangement, or (iv) permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board persons who have been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2 , or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position. A community services board may also approve a person as a sponsored residential service provider if (a) any adult living in the home of an applicant or (b) any person employed by the applicant to provide services in the home in which sponsored residential services are provided has been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2 , or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position.
  7. Community services boards also shall require, as a condition of employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract to serve in a direct care position on behalf of the community services board, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to § 63.2-1515 .
  8. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the community services board decides to pay the cost.
  9. Notwithstanding any other provision of law, a community services board that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment, to provide sponsored residential services, to provide services in the home of a sponsored residential service provider, or to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver.
  10. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
  11. Any person employed by a temporary agency that has entered into a contract with a community services board and who will serve in a direct care position on behalf of the community services board shall undergo a background check that shall include:
    1. A criminal history records check through the Central Criminal Records Exchange pursuant to § 19.2-389 ; and
    2. A search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse and neglect.Except as otherwise provided in subsection C, D, or F, no community services board shall permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (a) in the five years prior to the application date for employment, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 .

History. 1997, c. 743, § 37.1-197.2; 1998, cc. 130, 680, 882; 1999, c. 685; 2001, c. 784; 2002, c. 712; 2003, c. 468; 2005, c. 716; 2008, cc. 383, 407; 2011, c. 657; 2012, cc. 476, 507; 2016, c. 574; 2017, cc. 458, 775, 809; 2018, c. 569; 2019, c. 89; 2020, c. 1092; 2021, Sp. Sess. I, cc. 188, 475.

Cross references.

As to licensed provider statement to prospective employer, see § 32.1-326.4.

The 2008 amendments.

The 2008 amendments by cc. 383 and 407 are nearly identical, and in subsection C, deleted “or” preceding “(ii),” inserted “or (iii) assault and battery, as set out in subsection A of § 18.2-57 ,” and inserted “or mental illness” twice and once in subsection D; inserted “or adult mental health” throughout the section. In addition, c. 407 inserted “or (iv) assault and battery against a family or household member, as set out in subsection A of § 18.2-57 .2” in subsection C.

The 2011 amendments.

The 2011 amendment by c. 657, in the first paragraph in subsection B, substituted “subsection C, D, or F” for “subsections C or E”; made a minor stylistic change in subsection C; added subsection D; redesignated former subsection D as subsection E, and therein substituted “subsections C and D” for “subsection C”; and redesignated the remaining subsections accordingly.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, substituted “direct care position” for “direct consumer care position” throughout the section; and in subsection A, substituted “an individual receiving services” for “a consumer” in the first paragraph, and “developmental services” for “mental retardation” in (a) and (b) of the second paragraph; substituted “an applicant’s record” for “an individual’s record” in the first sentence, and “on his criminal history” for “on the criminal history” in the second sentence, of the second paragraph of subsection B; and substituted “individuals receiving services” for “consumers” near the end of subsections C and D and in the first sentence of subsection E.

The 2016 amendments.

The 2016 amendment by c. 574, in subsection A, divided the former first paragraph into the introductory language of subsection A and the definition for “Direct,” deleted “As used in this section” twice in the second paragraph, added the definition for “Shared living”; in subsection B, inserted the clause (i) designation, added clauses (ii)-(v) and inserted “approve as a sponsored residential service provider, or permit to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver”; and substituted “approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver” for “for all applicant” in subsection G.

The 2017 amendments.

The 2017 amendment by c. 458, in subsection A, deleted “intellectual or” preceding “developmental disabilities” in the definition of “Shared living.”

The 2017 amendment by c. 775, in subsection F, in the first sentence, inserted the clause (i) designation, inserted “(ii) approve as a sponsored residential service provider, or (iii) permit to enter into a shared living arrangement,” and added the second sentence.

The 2017 amendment by c. 809, in subsection B, substituted clauses (a) and (b) for “any offense listed in subsection B of § 37.2-314 ” at the end of the first paragraph; rewrote subsection C; in subsection D, substituted “under subsection C of § 18.2-57 , or any substantially similar offense under the laws of another jurisdiction” for “of assault and battery of a law-enforcement officer under § 18.2-57 , or an equivalent offense in another state” and “person was convicted under the laws of another jurisdiction” for “offense was committed in another state”; and inserted “or any substantially similar offense under the laws of another jurisdiction” in subsection F.

The 2018 amendments.

The 2018 amendment by c. 569 inserted “18.2-89” in subsection C.

The 2019 amendments.

The 2019 amendment by c. 89 added subsection I and redesignated former subsection I as subsection J.

The 2020 amendments.

The 2020 amendment by c. 1092, inserted “if” at the beginning of clause (iv)(2) in the second sentence of the first paragraph in subsection B; in subsection C, inserted “any misdemeanor violation of § 18.2-282 or 18.2-346 ,” and made a stylistic change.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted “18.2-346, or 18.2-346.01 ” for “or 18.2-346 ” in subsection C.

The 2021 amendment by Sp. Sess. I, c. 475, effective July 1, 2021, in subsection B, inserted “and (vi) any person under contract to serve in a direct care position on behalf of the community services board” and “or permit any person under contract to serve in a direct care position on behalf of the community services board” in the first paragraph; in subsections C and D, inserted “or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board” and inserted similar language in clause (iv) of subsection F; inserted “or permission for any person under contract to serve in a direct care position on behalf of the community services board” in subsection G; added subsection K and the last paragraph in the section; and made stylistic changes.

§ 37.2-507. Data collection on children and adolescents.

Every community services board shall submit to the Department information on children under the age of 14 and adolescents ages 14 through 17 for whom admission to an inpatient acute care psychiatric or residential treatment facility licensed pursuant to Article 2 (§ 37.2-403 et seq.) of Chapter 4 of this title, excluding group homes, was sought but was unable to be obtained by the board. Information to be submitted shall include:

  1. The child or adolescent’s date of birth;
  2. Date admission was attempted; and
  3. Reason the child or adolescent could not be admitted to the facility.

History. 2002, cc. 585, 619, § 37.1-197.3; 2005, c. 716.

§ 37.2-508. Performance contract for mental health, developmental, and substance abuse services.

  1. The Department shall develop and initiate negotiation of the performance contracts through which it provides funds to community services boards to accomplish the purposes set forth in this chapter. In the case of operating boards, the Department may, notwithstanding any provision of law to the contrary, disburse state and federal funds appropriated to it for mental health, developmental, or substance abuse services directly to the operating board, when that operating board is authorized by the governing body of each city or county that established it to receive such funds. Six months prior to the end of an existing contract or, if no contract exists, six months prior to the beginning of each fiscal year, the Department shall make available to the public the standard performance contract form that it intends to use as the performance contract for that fiscal year and solicit public comments for a period of 60 days. Such contracts shall be for a fixed term and shall provide for annual renewal by the Board if the term exceeds one year.
  2. Any community services board may apply for the assistance provided in this chapter by submitting to the Department its proposed performance contract together with (i) the approval of its board of directors for operating and administrative policy boards or the comments of the local government department’s policy-advisory board and (ii) the approval of the contract by formal vote of the governing body of each city or county that established it. The community services board shall make its proposed performance contract available for public review and solicit public comments for a period of 30 days prior to submitting its proposed contract for the approval of its board of directors for operating and administrative policy boards or the comments of the local government department’s policy-advisory board. To avoid disruptions in service continuity and allow sufficient time to complete public review and comment about the contract and negotiation and approval of the contract, the Department may provide semi-monthly payments of state-controlled funds to the community services board. If the governing body of each city or county does not approve the proposed performance contract by September 30 of each year, the performance contract shall be deemed approved or renewed.
  3. The performance contract shall (i) delineate the responsibilities of the Department and the community services board; (ii) specify conditions that must be met for the receipt of state-controlled funds; (iii) identify the groups of individuals to be served with state-controlled funds; (iv) contain specific outcome measures for individuals receiving services, provider performance measures, satisfaction measures for individuals receiving services, and participation and involvement measures for individuals receiving services and their family members; (v) contain mechanisms that have been identified or developed jointly by the Department and community services board and that will be employed collaboratively by the community services board and the state hospital to manage the utilization of state hospital beds; (vi) establish an enforcement mechanism, should a community services board fail to be in substantial compliance with its performance contract, including notice and appeal processes and provisions for remediation, withholding or reducing funds, methods of repayment of funds, and the Department’s exercise of the provisions of subsection E; and (vii) include reporting requirements and information about revenues, costs, services, and individuals receiving services displayed in a consistent, comparable format determined by the Department.The Department may provide for performance monitoring in order to determine whether the community services boards are in substantial compliance with their performance contracts.
  4. No community services board shall be eligible to receive state-controlled funds for mental health, developmental, or substance abuse services after September 30 of each year unless (i) its performance contract has been approved or renewed by the governing body of each city or county that established it and by the Department; (ii) it provides service, cost, and revenue data and information and aggregate and individual data and information about individuals receiving services, notwithstanding the provisions of § 37.2-400 or any regulations adopted thereunder, to the Department in the format prescribed by the Department; and (iii) it uses standardized cost accounting and financial management practices approved by the Department.
  5. If, after unsuccessful use of a remediation process described in the performance contract, a community services board remains in substantial noncompliance with its performance contract with the Department, the Department may, after affording the community services board an adequate opportunity to use the appeal process described in the performance contract, terminate all or a portion of the contract. Using the state-controlled resources associated with that contract, the Department, after consulting with the governing body of each city or county that established the board, may negotiate a performance contract with another board, a behavioral health authority, or a private nonprofit or for-profit organization or organizations to obtain services that were the subject of the terminated performance contract.

History. 1968, c. 477, § 37.1-198; 1970, c. 346; 1972, c. 498; 1976, c. 671; 1980, c. 582; 1986, c. 176; 1998, c. 680; 2005, cc. 75, 716; 2012, cc. 476, 507, 805, 836.

Editor’s note.

Acts 2005, c. 75 amended former § 37.1-198, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment to this section by c. 75, has been given effect in this section as set out above by adding the second sentence in subsection A.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” in the second sentence of subsection A; in subsection C, substituted “individuals” for “consumers” in clause (iii); rewrote clause (iv), which read “contain specific consumer outcome, provider performance, consumer satisfaction, and consumer and family member participation and involvement measures”; in clause (vii), substituted “information about revenues, costs, services, and individuals receiving services” for “revenue, cost, service, and consumer information”; in subsection D, substituted “developmental” for “mental retardation” and substituted “and revenue data and information and aggregate and individual data and information about individuals receiving services” for “revenue, and aggregate and individual consumer data and information” in clause (ii).

The 2012 amendments by cc. 805 and 836 are identical, and, in subsection A, inserted “end of an existing contract or, if no contract exists, six months prior to the” in the third sentence, and added the last sentence; in subsection B, deleted “annually” following “submitting” and “for the next fiscal year” following “performance contract” in the first sentence, deleted “up to six” following “the Department may provide” in the third sentence, and added “or renewed” at the end of the last sentence; and inserted “or renewed” following “approved” in D (i).

§ 37.2-509. Mental health, developmental, and substance abuse services; allocation of funds by Department; reduction of funds.

  1. At the beginning of each fiscal year, the Department shall allocate available state-controlled funds to community services boards for disbursement in accordance with procedures established by the Department and performance contracts approved by the Department. Allocations of state-controlled funds to each community services board shall be determined by the Department, after careful consideration of all of the following factors:
    1. The total amounts of state-controlled funds appropriated for this purpose;
    2. Previous allocations of state-controlled funds to each community services board;
    3. Requirements or conditions attached to appropriations of state-controlled funds by the General Assembly, the Governor, or federal granting authorities;
    4. Community services board input about the uses of and methodologies for allocating existing and new state-controlled funds; and
    5. Other relevant and appropriate considerations.Allocations to any community services board for operating expenses, including salaries and other costs, or the construction of facilities shall not exceed 90 percent of the total amount of state and local matching funds provided for these expenses or such construction, unless a waiver is granted by the Department pursuant to policy adopted by the Board.
  2. The Department shall notify the governing body of each city or county that established the community services board before implementing any reduction of state-controlled funds. Before any city or county reduces local government matching funds, it shall notify its community services board and the Department.
  3. All fees collected by the community services board shall be included in its performance contract and retained and used by the board for mental health, developmental, and substance abuse services purposes.

History. 1968, c. 477, § 37.1-199; 1972, c. 629; 1974, c. 273; 1976, c. 671; 1977, cc. 88, 351; 1980, c. 582; 1985, c. 309; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” and inserted “services” preceding “purposes” in subsection C.

§ 37.2-510. Community services board; withdrawal of county or city.

No county or city participating in a joint community services board shall withdraw from it without providing two years’ notice to the other participating counties or cities, unless the other counties or cities agree to an earlier withdrawal.

History. 1968, c. 477, § 37.1-200; 1970, c. 346; 1972, c. 629; 1980, c. 582; 2005, c. 716.

§ 37.2-511. Liability for expenses of services.

The income and estate of an individual receiving services shall be liable for the expenses of services under the jurisdiction or supervision of any community services board that are utilized by the individual. Any person responsible for holding, managing, or controlling the income and estate of the individual shall apply the income and estate toward the expenses of the services utilized by the individual.

Any person responsible for the support of an individual receiving services pursuant to § 20-61 or a common law duty to support shall be liable for the expenses of services under the jurisdiction or supervision of any community services board that are utilized by the individual, unless the individual, regardless of age, qualifies for and is receiving aid under a federal or state program of assistance to the blind or disabled. Any such person shall no longer be financially liable, however, when a cumulative total of 1,826 days of (i) care and treatment or training for the individual in a state facility, (ii) utilization by the individual of services under the jurisdiction or supervision of any community services board, or (iii) a combination of (i) and (ii) has passed and payment for or a written agreement to pay the charges for 1,826 days of care and services has been made. Not less than three hours of service per day shall be required to include one day in the cumulative total of 1,826 days of utilization of services under the jurisdiction or supervision of any community services board. In order to claim this exemption, the person legally liable for the individual shall produce evidence sufficient to prove eligibility for it.

History. 1982, c. 50, § 37.1-202.1; 1984, c. 431; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “an individual receiving services” for “a consumer” in the first sentence of the first and second paragraphs, and “individual” for “consumer” throughout the section.

§ 37.2-512. Authority to enter into joint agreements.

  1. A community services board may enter into joint agreements, pursuant to subdivision A 4 of § 37.2-504 with one or more community services boards or behavioral health authorities, to provide treatment, habilitation, or support services for individuals receiving services with specialized and complex service needs and associated managerial, operational, and administrative services and support and to promote clinical, programmatic, or administrative effectiveness and efficiency. Services may be provided under a joint agreement by one or more community services boards or behavioral health authorities or by an administrator or management body established or contracted through a joint agreement.
  2. Participation in a joint agreement shall be voluntary and at the discretion of the community services board. No community services board shall be required to enter into a joint agreement pursuant to this section as a condition for the receipt of funds.
  3. No joint agreement shall relieve a community services board of any obligation or responsibility imposed upon it by law, but performance under the terms of a joint agreement may be offered in satisfaction of the obligation or responsibility of the community services board.
  4. The community services board’s participation in a joint agreement shall be described in the performance contract negotiated by the community services board and the Department pursuant to § 37.2-508 . The community services board shall provide a copy of a joint agreement to the governing body of each city or county that established the board for its review and comment at least 30 days before executing the agreement.
  5. A joint agreement shall state or describe:
    1. The term or duration of the joint agreement, which shall be for at least one year but may be extended annually pursuant to provisions in the joint agreement;
    2. The purpose or purposes of the joint agreement;
    3. The community services boards or behavioral health authorities participating in the joint agreement;
    4. The treatment, habilitation, or support services and associated managerial and administrative services and support to be provided through the joint agreement;
    5. The manner in which the joint agreement will be administered and any necessary actions by the participants will be coordinated;
    6. The manner in which the joint agreement will be financed, including the proportional share to be provided by each participating community services board or behavioral health authority, and the budget, which shall be incorporated as part of the joint agreement, will be established and administered;
    7. The manner by which state general funds, fee revenues, and other funds for the operation of the joint agreement will be received and disbursed by the participating boards or behavioral health authorities;
    8. The manner by which activities conducted under the joint agreement will be monitored, managed, reported, and evaluated;
    9. The permissible method or methods to be employed in accomplishing the partial or complete termination of the joint agreement and for disposing of any property acquired under the joint agreement upon such partial or complete termination; and
    10. Any other matters that are necessary and proper for the effective operation of the joint agreement.
  6. The joint agreement, in addition to the items enumerated in subsection E, may contain the following items.
    1. The joint agreement may provide for an administrator or management body that shall be responsible for administering activities conducted under the joint agreement. The organization, term, powers, and duties of any administrator or management body shall be specified in the joint agreement. This administrator or management body may be given authority through the joint agreement to employ staff and obtain services provided under the joint agreement though contracts on behalf of the community services boards or behavioral health authorities that have entered into the joint agreement. This administrator or management body shall defend or compromise, as appropriate, all claims, suits, actions, or proceedings arising from its performance under this joint agreement and shall obtain and maintain insurance sufficient for this purpose.
    2. The joint agreement may specify the manner of acquiring, holding, and disposing of real and personal property required for or used in activities conducted under the joint agreement.
    3. The joint agreement may describe how issues of liability will be handled and the types, amounts, and limits of any liability insurance coverage, including whether such coverage will be obtained through the Department of Treasury’s Division of Risk Management program pursuant to § 2.2-1839 or otherwise.
  7. Any community services board entering into a joint agreement pursuant to this section may provide funds or property, personnel, or services to the administrator or management body responsible for administering activities conducted under this joint agreement that may be within its legal powers to sell, lease, give, or otherwise supply.
  8. The community services boards or behavioral health authorities entering into a joint agreement pursuant to this section may create an administrator or management body to provide treatment, habilitation or support services on behalf of the participating community services boards or behavioral health authorities subject to the following conditions.
    1. The administrator or management body created pursuant to this subsection shall operate under contract with the participating community services boards or behavioral health authorities, and this contract shall be exempt from the requirements of the Virginia Public Procurement Act, (§ 2.2-4300 et seq.).
    2. The administrator or management body created pursuant to this subsection shall be subject to all statutory and regulatory requirements that apply to community services boards, including procurement, employment, Virginia Freedom of Information Act, disclosure and confidentiality of individual service and administrative records, data collection and reporting, and all other aspects of their business and services.
    3. The administrator or management body created pursuant to this subsection shall have the authority to receive funds from participating community services boards or behavioral health authorities; public and private sources such as foundations, gifts and grants; and public and private reimbursement from private insurers and the Department of Medical Assistance Services; but the administrator or management body shall not be authorized to receive funds directly from the Department.
    4. The administrator or management body created pursuant to this subsection shall defend or compromise, as appropriate, all claims, suits, actions, or proceedings arising from its performance under this joint agreement and shall obtain and maintain insurance sufficient for this purpose.

History. 2006, c. 656; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers” in the subsection A and “confidentiality of individual service” for “confidentiality of consumer” in subdivision H 2.

Chapter 6. Behavioral Health Authorities.

§ 37.2-600. Definitions.

As used in this chapter, unless the context requires a different meaning:

“Behavioral health” means the full range of mental health, developmental, and substance abuse services and treatment modalities.

“Behavioral health authority board of directors” means the public body organized in accordance with provisions of this chapter that is appointed by and accountable to the governing body of the city or county that established it.

“Behavioral health project” means any facility suitable for providing adequate care for concentrated centers of population and includes structures, buildings, improvements, additions, extensions, replacements, appurtenances, lands, rights in land, franchises, machinery, equipment, furnishings, landscaping, approaches, roadways, and other necessary or desirable facilities.

“Member” means a person appointed by the governing body of a city or county to the behavioral health authority board of directors.

History. 1995, c. 693, § 15.1-1677; 1996, c. 861; 1997, c. 587, § 37.1-243; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” in the paragraph defining “Behavioral health.”

OPINIONS OF THE ATTORNEY GENERAL

Agency of local government for tax purposes. —

Behavioral health authorities are agencies of local government, and therefore, exempt from state electric utility and natural gas consumption taxes under §§ 58.1-2900 and 58.1-2904 . See opinion of Attorney General to The Honorable Judith Williams Jagdmann, Commissioner, State Corporation Commission, 17-027, (6/15/18).

§ 37.2-601. Behavioral health authorities; purpose.

  1. The Department, for the purposes of establishing, maintaining, and promoting the development of behavioral health services in the Commonwealth, may provide funds to assist certain cities or counties in the provision of these services.
  2. The governing body of the Cities of Virginia Beach or Richmond or the County of Chesterfield may establish a behavioral health authority and shall declare its intention to do so by resolution.
  3. The behavioral health services provided by behavioral health authorities within the cities or counties they serve shall include:
    1. Emergency services;
    2. Same-day mental health screening services;
    3. Outpatient primary care screening and monitoring services for physical health indicators and health risks and follow-up services for individuals identified as being in need of assistance with overcoming barriers to accessing primary health services, including developing linkages to primary health care providers; and
    4. Subject to the availability of funds appropriated for them, case management services.
  4. Subject to the availability of funds appropriated for them, the behavioral health services may include a comprehensive system of inpatient, outpatient, day support, residential, prevention, early intervention, and other appropriate mental health, developmental, and substance abuse services necessary to provide individualized services and supports to persons with mental illness, developmental disabilities, or substance abuse. Behavioral health authorities may establish crisis stabilization units that provide residential crisis stabilization services.
  5. In order to provide comprehensive mental health, developmental, and substance abuse services within a continuum of care, the behavioral health authority shall function as the single point of entry into publicly funded mental health, developmental, and substance abuse services.

History. 1995, c. 693, §§ 15.1-1676, 15.1-1678; 1996, c. 861; 1997, c. 587, §§ 37.1-242, 37.1-244; 1998, c. 680; 2005, c. 716; 2010, c. 28; 2012, cc. 476, 507; 2017, cc. 458, 607, 683.

Editor’s note.

Acts 2017, cc. 607 and 683, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on July 1, 2019.”

Acts 2017, cc. 607 and 683, cl. 3 provides: “That, effective July 1, 2021, the core of services provided by community services boards and behavioral health authorities within cities and counties that they serve shall include, in addition to those set forth in subdivisions B 1, 2, and 3 of § 37.2-500 of the Code of Virginia, as amended by this act, and subdivisions C 1, 2, and 3 of § 37.2-601 of the Code of Virginia, as amended by this act, respectively, (i) crisis services for individuals with mental health or substance use disorders, (ii) outpatient mental health and substance abuse services, (iii) psychiatric rehabilitation services, (iv) peer support and family support services, (v) mental health services for members of the armed forces located 50 miles or more from a military treatment facility and veterans located 40 miles or more from a Veterans Health Administration medical facility, (vi) care coordination services, and (vii) case management services.”

Acts 2017, cc. 607 and 683, cl. 4 provides: “That the Department of Behavioral Health and Developmental Services shall report by December 1 of each year to the General Assembly regarding progress in the implementation of the provisions of this act.”

The 2010 amendments.

The 2010 amendment by c. 28, effective March 4, 2010, added the last sentence of the third paragraph.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental, and substance abuse services necessary to provide individualized services and supports to persons with mental illness, intellectual disability, or substance abuse” for “mental retardation, and substance abuse services necessary to provide individualized services and supports to persons with mental illnesses, mental retardation, or substance abuse” in the second sentence of the third paragraph and “developmental” for “mental retardation” twice in the last paragraph.

The 2017 amendments.

The 2017 amendment by c. 458 in subsection D, added “Subject to the availability of funds appropriated for them” at the beginning and substituted “developmental disabilities” for “intellectual disability.”

The 2017 amendment by cc. 607 and 683, effective July 1, 2019, are identical and designated the existing paragraphs as subsections A through E, and rewrote subsection C, which read “Subject to the availability of funds appropriated for them, the services and, subject to the availability of funds appropriated for them, case management services.”

OPINIONS OF THE ATTORNEY GENERAL

Agency of local government for tax purposes. —

Behavioral health authorities are agencies of local government, and therefore, exempt from state electric utility and natural gas consumption taxes under §§ 58.1-2900 and 58.1-2904 . See opinion of Attorney General to The Honorable Judith Williams Jagdmann, Commissioner, State Corporation Commission, 17-027, (6/15/18).

§ 37.2-602. Board of directors; appointment; membership.

A city or county, before it shall come within the provisions of this chapter, shall establish a behavioral health authority with a board of directors with no less than six and no more than 18 members. When any city or county establishes a behavioral health authority, the board of directors shall be appointed by the governing body of the city or county establishing the authority. Prior to making appointments, the governing body shall disclose the names of persons being considered for appointment.

Appointments to the board of directors shall be broadly representative of the community. One-third of the appointments to the board shall be individuals who are receiving or who have received services or family members of individuals who are receiving or who have received services, at least one of whom shall be an individual receiving services. One or more appointments may be nongovernmental services providers. Sheriffs or their designees also shall be appointed, when practical.

No board of directors shall include more than two local government officials, elected or appointed, as members.

The board of directors appointed pursuant to this section shall be responsible to the governing body of the city or county that established the authority.

The county or city that establishes a behavioral health authority shall receive an independent annual audit of the total revenues and expenditures from the authority, a copy of which shall be provided to the Department.

History. 1995, c. 693, § 15.1-1679; 1996, c. 861; 1997, c. 587, § 37.1-245; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals who are receiving or who have received services or family members of individuals who are receiving or who have received services, at least one of whom shall be an individual” for “identified consumers or former consumers or family members of consumers or former consumers, at least one of whom shall be a consumer” in the second sentence of the second paragraph.

§ 37.2-603. Board of directors; terms; vacancies; removal.

The term of office of each member of the behavioral health authority board of directors shall be for three years from January 1 of the year of appointment or, at the option of the governing body of the city or county, from July 1 of the year of appointment, except that of the members first appointed, several shall be appointed for terms of one year each, several for terms of two years each, and the remaining members for terms of three years each. The appointment of members for one-year, two-year, and three-year terms shall be as nearly equal as possible with regard to the total number of members. If the governing body has appointed members for terms commencing January 1 or July 1 but desires to change the date on which the terms of office commence, the governing body may, as the terms of the members then in office expire, appoint successors for terms of two and one-half or three and one-half years, so that the terms expire on June 30 or December 31. Vacancies shall be filled for unexpired terms in the same manner as original appointments. No person shall be eligible to serve more than three full consecutive three-year terms; however, persons appointed to fill vacancies may serve three additional full consecutive three-year terms. However, after a three-year period has elapsed since the end of the member’s last three-year term, the governing body may reappoint that member. Any member of the board of directors may be removed by the appointing authority for cause, after being given a written statement of the causes and an opportunity to be heard thereon.

History. 1995, c. 693, § 15.1-1680; 1996, c. 861; 1997, c. 587, § 37.1-246; 1998, c. 680; 2005, c. 716; 2009, c. 400.

The 2009 amendments.

The 2009 amendment by c. 400 inserted the next-to-last sentence.

§ 37.2-604. Board of directors; officers; meetings.

The members of the behavioral health authority board of directors shall annually elect one of their members as chairman and another as vice-chairman and also shall elect a secretary and a treasurer, who may or may not be members, for terms to be determined by the members. The same person may serve as secretary and treasurer. The members shall make regulations and bylaws for their own governance and procedure as they shall determine; they shall meet at least 10 times per year and may hold such special meetings as they deem necessary. The regulations and bylaws shall be submitted to the governing body of the city or county that established the authority for review and comment.

History. 1995, c. 693, § 15.1-1681; 1997, c. 587, § 37.1-247; 1998, c. 680; 2005, c. 716.

§ 37.2-605. Behavioral health authorities; powers and duties.

Every authority shall be deemed to be a public instrumentality, exercising public and essential governmental functions to provide for the public mental health, welfare, convenience, and prosperity of the residents and such other persons who might be served by the authority and to provide behavioral health services to those residents and persons. An authority shall have the following powers and duties:

  1. Review and evaluate public and private community mental health, developmental, and substance abuse services and facilities that receive funds from the authority and advise the governing body of the city or county that established it as to its findings.
  2. Pursuant to § 37.2-608 , submit to the governing body of the city or county that established the authority an annual performance contract for community mental health, developmental, and substance abuse services for its approval prior to submission of the contract to the Department.
  3. Within amounts appropriated for this purpose, provide services authorized under the performance contract.
  4. In accordance with its approved performance contract, enter into contracts with other providers for the delivery of services or operation of facilities.
  5. Make and enter into all other contracts or agreements as the authority may determine that are necessary or incidental to the performance of its duties and to the execution of powers granted by this chapter, including contracts with any federal agency, any subdivision or instrumentality of the Commonwealth, behavioral health providers, insurers, and managed care or health care networks on such terms and conditions as the authority may approve.
  6. Make policies or regulations concerning the delivery of services and operation of facilities under its direction or supervision, subject to applicable policies and regulations adopted by the Board.
  7. Appoint a chief executive officer of the behavioral health authority, who meets the minimum qualifications established by the Department, and prescribe his duties. The compensation of the chief executive officer shall be fixed by the authority within the amounts made available by appropriation for this purpose. The chief executive officer shall serve at the pleasure of the authority’s board of directors and be employed under an annually renewable contract that contains performance objectives and evaluation criteria. The Department shall approve the selection of the chief executive officer for adherence to minimum qualifications established by the Department and the salary range of the chief executive officer.
  8. Authorize the chief executive officer to maintain a complement of professional staff to operate the behavioral health authority’s service delivery system.
  9. Prescribe a reasonable schedule of fees for services provided by personnel or facilities under the jurisdiction or supervision of the authority and establish procedures for the collection of those fees. All fees collected shall be included in the performance contract submitted to the local governing body pursuant to subdivision 2 and § 37.2-608 and shall be used only for community mental health, developmental, and substance abuse services purposes. Every authority shall institute a reimbursement system to maximize the collection of fees from individuals receiving services under the jurisdiction or supervision of the authority, consistent with the provisions of § 37.2-612 , and from responsible third party payors. Authorities shall not attempt to bill or collect fees for time spent participating in commitment hearings for involuntary admissions pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8.
  10. Accept or refuse gifts, donations, bequests, or grants of money or property or other assistance from the federal government, the Commonwealth, any municipality thereof, or any other sources, public or private; utilize them to carry out any of its purposes; and enter into any agreement or contract regarding or relating to the acceptance, use, or repayment of any such grant or assistance.
  11. Seek and accept funds through federal grants. In accepting federal grants, the authority shall not bind the governing body of the city or county that established it to any expenditures or conditions of acceptance without the prior approval of that governing body.
  12. Notwithstanding any provision of law to the contrary, disburse funds appropriated to it in accordance with applicable regulations.
  13. Apply for and accept loans in accordance with regulations established by the board of directors.
  14. Develop joint written agreements, consistent with policies adopted by the Board, with local school divisions; health departments; local boards of social services; housing agencies, where they exist; courts; sheriffs; area agencies on aging; and regional offices of the Department for Aging and Rehabilitative Services. The agreements shall specify the services to be provided to individuals. All participating agencies shall develop and implement the agreements and shall review the agreements annually.
  15. Develop and submit to the Department the necessary information for the preparation of the Comprehensive State Plan for Behavioral Health and Developmental Services pursuant to § 37.2-315 .
  16. Take all necessary and appropriate actions to maximize the involvement and participation of individuals receiving services and family members of individuals receiving services in policy formulation and service planning, delivery, and evaluation.
  17. Institute, singly or in combination with community services boards or other behavioral health authorities, a dispute resolution mechanism that is approved by the Department and enables individuals receiving services and family members of individuals receiving services to resolve concerns, issues, or disagreements about services without adversely affecting their access to or receipt of appropriate types and amounts of current or future services from the authority.
  18. Notwithstanding the provisions of § 37.2-400 and regulations adopted thereunder, release data and information about each individual receiving services to the Department, so long as the Department implements procedures to protect the confidentiality of that data and information. Every authority shall submit data on children and youth in the same manner as community services boards, as set forth in § 37.2-507 .
  19. Fulfill all other duties and be subject to applicable provisions specified in the Code of Virginia pertaining to community services boards.
  20. Make loans and provide other assistance to corporations, partnerships, associations, joint ventures, or other entities in carrying out any activities authorized by this chapter.
  21. Transact its business, locate its offices and control, directly or through stock or nonstock corporations or other entities, facilities that will assist the authority in carrying out the purposes and intent of this chapter, including without limitations the power to own or operate, directly or indirectly, behavioral health facilities in its service area.
  22. Acquire property, real or personal, by purchase, gift, or devise on such terms and conditions and in such manner as it may deem proper and such rights, easements, or estates therein as may be necessary for its purposes and sell, lease, and dispose of the same or any portion thereof or interest therein, whenever it shall become expedient to do so.
  23. Participate in joint ventures with persons, corporations, partnerships, associations, or other entities for providing behavioral health care or related services or other activities that the authority may undertake to the extent that such undertakings assist the authority in carrying out the purposes and intent of this chapter.
  24. Conduct or engage in any lawful business, activity, effort, or project that is necessary or convenient for the purposes of the authority or for the exercise of any of its powers.
  25. As a public instrumentality, establish and operate its administrative management infrastructure in whole or in part independent of the local governing body; however, nothing in the chapter precludes behavioral health authorities from acquiring support services through existing governmental entities.
  26. Carry out capital improvements and bonding through existing economic or industrial development authorities.
  27. Establish retirement, group life insurance, and group accident and sickness insurance plans or systems for its employees in the same manner as cities, counties, and towns are permitted to do under § 51.1-801 .
  28. Provide an annual report to the Department of the authority’s activities.
  29. Ensure a continuation of all services for individuals during any transition period.

History. 1995, c. 693, § 15.1-1682; 1996, c. 861; 1997, cc. 587, 743, § 37.1-248; 1998, c. 680; 2002, cc. 585, 619, § 37.1-197.3; 2005, c. 716; 2012, cc. 476, 507, 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” in subdivisions 1, 2 and 9; substituted “individuals” for “persons” in the third sentence of subdivision 9; and substituted “individuals” for “consumers” in the second sentence of subdivision 14; substituted “individuals receiving services and family members of individuals receiving services” for “consumers and family members of consumers” in subdivision 16; substituted “individuals receiving services” for “consumers” twice in subdivision 17; substituted “each individual receiving services” for “individual consumers” in the first sentence of subdivision 18; substituted “persons” for “individuals” in subdivision 23; and substituted “services for individuals” for “consumer services” in subdivision 29.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and deleted “of this section” following “subdivision 2” in the second sentence of subdivision 9; and substituted “regional offices of the Department for Aging and Rehabilitative Services” for “regional Department of Rehabilitative Services offices” in the first sentence of subdivision 14.

OPINIONS OF THE ATTORNEY GENERAL

Agency of local government for tax purposes. —

Behavioral health authorities are agencies of local government, and therefore, exempt from state electric utility and natural gas consumption taxes under §§ 58.1-2900 and 58.1-2904 . See opinion of Attorney General to The Honorable Judith Williams Jagdmann, Commissioner, State Corporation Commission, 17-027, (6/15/18).

§ 37.2-606. Coordination of services for preadmission screening and discharge planning.

A behavioral health authority shall coordinate services for preadmission screening and discharge planning and provide preadmission screening services and discharge planning in the same manner as community services boards, as set forth in § 37.2-505 .

History. 1995, c. 693, § 15.1-1682; 1996, c. 861; 1997, cc. 587, 743, § 37.1-248; 1998, c. 680; 2005, c. 716.

§ 37.2-607. Background check required.

A behavioral health authority shall fulfill the duties of and be subject to the employee background check requirements that are applicable to community services boards, as set forth in § 37.2-506 .

History. 1997, c. 743, § 37.1-197.2; 1998, cc. 130, 680, 882; 1999, c. 685; 2001, c. 784; 2002, c. 712; 2003, c. 468; 2005, c. 716.

§ 37.2-608. Performance contract for mental health, developmental, and substance abuse services.

  1. The Department shall develop and initiate negotiation of the performance contracts through which it provides funds to behavioral health authorities to accomplish the purposes set forth in this chapter. The Department may, notwithstanding any provision of law to the contrary, disburse state and federal funds appropriated to it for mental health, developmental, and substance abuse services directly to the behavioral health authority. Six months prior to the beginning of each fiscal year, the Department shall make available to the public the standard performance contract form that it intends to use as the performance contract for that fiscal year and solicit public comments for a period of 60 days.
  2. Any behavioral health authority may apply for the assistance provided in this chapter by submitting annually to the Department its proposed performance contract for the next fiscal year together with the approval of its board of directors and the approval by formal vote of the governing body of the city or county that established it. The behavioral health authority shall make its proposed performance contract available for public review and solicit public comments for a period of 30 days prior to submitting its proposed contract for the approval of its board of directors. To avoid disruptions in service continuity and allow sufficient time to complete public review and comment about the contract and negotiation and approval of the contract, the Department may provide up to six semi-monthly payments of state-controlled funds to the authority. If the governing body of the city or county does not approve the proposed performance contract by September 30 of each year, the performance contract shall be deemed approved.
  3. The performance contract shall (i) delineate the responsibilities of the Department and the behavioral health authority; (ii) specify conditions that must be met for the receipt of state-controlled funds; (iii) identify the groups of individuals to be served with state-controlled funds; (iv) contain specific outcome measures for individuals receiving services, provider performance measures, satisfaction measures for individuals receiving services, and participation and involvement measures for individuals receiving services and their family members; (v) contain mechanisms that have been identified or developed jointly by the Department and the behavioral health authority and that will be employed collaboratively by the behavioral health authority and the state hospital to manage the utilization of state hospital beds; (vi) establish an enforcement mechanism, should the behavioral health authority fail to be in substantial compliance with its performance contract, including notice and appeal processes and provisions for remediation, withholding or reducing funds, methods of repayment of funds, and the Department’s exercise of the provisions of subsection E; and (vii) include reporting requirements and information about revenues, costs, services, and individuals receiving services displayed in a consistent, comparable format determined by the Department.The Department may provide for performance monitoring to determine whether behavioral health authorities are in substantial compliance with their performance contracts.
  4. No behavioral health authority shall be eligible to receive state-controlled funds for mental health, developmental, or substance abuse services after September 30 of each year unless (i) its performance contract has been approved by the governing body of the city or county that established it and by the Department; (ii) it provides service, cost, and revenue data and information, and aggregate and individual data and information about individuals receiving services, notwithstanding § 37.2-400 or any regulations adopted thereunder, to the Department in the format prescribed by the Department; and (iii), it uses standardized cost accounting and financial management practices approved by the Department.
  5. If, after unsuccessful use of a remediation process described in the performance contract, a behavioral health authority remains in substantial noncompliance with its performance contract with the Department, the Department may, after affording the authority an adequate opportunity to use the appeal process described in the performance contract, terminate all or a portion of the contract. Using the state-controlled resources associated with that contract, the Department, after consulting with the governing body of the city or county that established the behavioral health authority, may negotiate a performance contract with a community services board, another behavioral health authority, or a private nonprofit or for-profit organization or organizations to obtain services that were the subject of the terminated performance contract.

History. 1998, c. 680, § 37.1-248.1; 2005, cc. 75, 716; 2012, cc. 476, 507.

Editor’s note.

Acts 2005, c. 75 amended former § 37.1-248.1, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment by c. 75 has been given effect in this section as set out above by adding the second sentence in subsection A.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “developmental” for “mental retardation” in the second sentence of subsection A; in subsection C, substituted “individuals” for “consumers” in clause (iii); rewrote clause (iv), which read “contains specific consumer provider performance, consumer satisfaction, and consumer and family member participation and involvement measures”; substituted “information about revenues, costs, services, and individuals receiving services” for “revenue, cost, service, and consumer information” in clause (vii); and in subsection D, substituted “developmental” for “mental retardation” in the introductory language, and substituted “and revenue data and information, and aggregate and individual data and information about individuals receiving services” in (ii).

§ 37.2-609. Exemption from taxation.

The exercise of the powers granted by this chapter shall be in all respects for the benefit of persons in the authority’s service area and for the promotion of their safety, health, welfare, convenience, and prosperity. As the operation and maintenance of any behavioral health project that the authority is authorized to undertake will constitute the performance of an essential governmental function, the authority shall not be required to pay any taxes or assessments upon any behavioral health project acquired or constructed by it or on the revenues generated by its operation.

History. 1995, c. 693, § 15.1-1683; 1997, c. 587, § 37.1-249; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “persons” for “individuals” in the first sentence.

§ 37.2-610. Transfer of facilities and assets.

The governing body of the city or county that established the authority is authorized to transfer to the authority the operation and maintenance of suitable facilities that are now or may be hereafter owned by the city or county on the terms and conditions that it may prescribe; but this section shall not be construed as authorizing the authority to maintain and operate such facilities until the operation of them has been transferred by the governing body of the city or county that established it.

History. 1995, c. 693, § 15.1-1684; 1996, c. 861; 1997, c. 587, § 37.1-250; 1998, c. 680; 2005, c. 716.

§ 37.2-611. Local appropriations; allocation of funds by Department; reduction of funds.

The city or county that established the authority is authorized to make appropriations and to provide funds for the operation of the authority and to further its purposes. Such appropriations for the authority shall be subject to the requirements that are applicable to community services boards, as set forth in § 37.2-509 . The Department shall allocate available state-controlled funds to behavioral health authorities for disbursement in accordance with the provisions that are applicable to community services boards, as set forth in § 37.2-509 , and shall notify the governing body of the city or county that established the authority before implementing any reduction of state-controlled funds.

History. 1995, c. 693, § 15.1-1685; 1996, c. 861; 1997, c. 587, § 37.1-251; 1998, c. 680; 2005, c. 716.

§ 37.2-612. Liability for expenses of services.

Individuals receiving services shall be liable for the expenses of services provided by a behavioral health authority in the same manner that they are liable to community services boards, as set forth in § 37.2-511 .

History. 1995, c. 693, § 15.1-1682; 1996, c. 861; 1997, cc. 587, 743, § 37.1-248; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “Individuals receiving services” for “Consumers” at the beginning of the section.

§ 37.2-613. Proceedings for dissolution.

When the board of directors of a behavioral health authority determines that the need for the authority no longer exists, then, upon a petition by the board to the circuit court of the appropriate city or county, after giving 90 days’ notice to the city or county and upon the production of satisfactory evidence in support of the petition and a detailed dissolution plan, the court may enter an order declaring that the need for the authority in that city or county no longer exists and approving a plan for the winding up of the authority’s business, the payment or assumption of its obligations, and the transfer of its assets. In order for it to be approved by the court, the court must find that this plan describes specifically how the city or county that established the authority will fulfill the same duties and responsibilities required for community services boards under Chapter 5 (§ 37.2-500 et seq.) and how the city or county will ensure continuity of care for individuals who are receiving services from the authority.

History. 1995, c. 693, § 15.1-1686; 1996, c. 861; 1997, c. 587, § 37.1-252; 1998, c. 680; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “consumers” in the last sentence.

§ 37.2-614. When powers and duties cease to exist.

If the court shall enter an order, as provided in § 37.2-613 , that the need for a behavioral health authority no longer exists, then, except for the winding up of its affairs in accordance with the plan approved by the court, the authority’s authorities, powers, and duties to transact business or to function shall cease to exist as of that date set forth in the order of the court.

History. 1995, c. 693, § 15.1-1687; 1997, c. 587, § 37.1-253; 1998, c. 680; 2005, c. 716.

§ 37.2-615. Authority to enter into joint agreements.

  1. A behavioral health authority may enter into joint agreements, pursuant to subsection 4 of § 37.2-605 , with one or more behavioral health authorities or community services boards to provide needed treatment, habilitation, or support services for individuals with specialized and complex service needs and associated managerial, operational, and administrative services and support and to promote clinical, programmatic, or administrative effectiveness and efficiency. Services may be provided under a joint agreement by one or more behavioral health authorities or community services boards or an administrator or management body established or contracted through a joint agreement.
  2. Participation in a joint agreement shall be voluntary and at the discretion of the behavioral health authority. No behavioral health authority shall be required to enter into a joint agreement pursuant to this section as a condition for the receipt of funds.
  3. No joint agreement shall relieve a behavioral health authority of any obligation or responsibility imposed upon it by law, but performance under the terms of a joint agreement may be offered in satisfaction of the obligation or responsibility of the authority.
  4. The behavioral health authority’s participation in a joint agreement shall be described in the performance contract negotiated by the authority and the Department pursuant to § 37.2-608 . The behavioral health authority shall provide a copy of a joint agreement to the governing body of the city or county that established the authority for its review and comment at least 30 days before executing the agreement.
  5. A joint agreement shall state or describe:
    1. The term or duration of the joint agreement, which shall be for at least one year but may be extended annually pursuant to provisions in the joint agreement;
    2. The purpose or purposes of the joint agreement;
    3. The behavioral health authorities or community services boards participating in the joint agreement;
    4. The treatment, habilitation, or support services and associated managerial and administrative services and support to be provided through the joint agreement;
    5. The manner in which the joint agreement will be administered and any necessary actions by the participants will be coordinated;
    6. The manner in which the joint agreement will be financed, including the proportional share to be provided by each participating behavioral health authority or community services board, and the budget, which shall be incorporated as part of the joint agreement, will be established and administered;
    7. The manner by which state general funds, fee revenues, and other funds for the operation of the joint agreement will be received and disbursed by the participating behavioral health authorities or community services boards;
    8. The manner by which activities conducted under the joint agreement will be monitored, managed, reported, and evaluated;
    9. The permissible method or methods to be employed in accomplishing the partial or complete termination of the joint agreement and for disposing of any property acquired under the joint agreement upon such partial or complete termination; and
    10. Any other matters that are necessary and proper for the effective operation of the joint agreement.
  6. The joint agreement, in addition to the items enumerated in subsection E, may contain the following items.
    1. The joint agreement may provide for an administrator or management body that shall be responsible for administering activities conducted under the joint agreement. The organization, term, powers and duties of any administrator or management body shall be specified in the joint agreement. This administrator or management body may be given authority through the joint agreement to employ staff and obtain services provided under the joint agreement though contracts on behalf of the behavioral health authorities or community services boards that have entered into the joint agreement. This administrator or management body shall defend or compromise, as appropriate, all claims, suits, actions, or proceedings arising from its performance under this joint agreement and shall obtain and maintain insurance sufficient for this purpose.
    2. The joint agreement may specify the manner of acquiring, holding, and disposing of real and personal property required for or used in activities conducted under the joint agreement.
    3. The joint agreement may describe how issues of liability will be handled and the types, amounts, and limits of any liability insurance, including whether such coverage will be obtained through the Department of Treasury’s Division of Risk Management program pursuant to § 2.2-1839 or otherwise.
  7. Any behavioral health authority entering into a joint agreement pursuant to this section may provide funds or property, personnel, or services to the administrator or management body responsible for administering activities conducted under this joint agreement that may be within its legal powers to sell, lease, give, or otherwise supply.
  8. The behavioral health authorities or community services boards entering into a joint agreement pursuant to this section may create an administrator or management body to provide treatment, habilitation or support services on behalf of the participating community services boards or behavioral health authorities subject to the following conditions.
    1. The administrator or management body created pursuant to this subsection shall operate under contract with the participating community services boards or behavioral health authorities, and this contract shall be exempt from the requirements of the Virginia Public Procurement Act, (§ 2.2-4300 et seq.).
    2. The administrator or management body created pursuant to this subsection shall be subject to all statutory and regulatory requirements that apply to behavioral health authorities, including procurement, employment, Virginia Freedom of Information Act, disclosure and confidentiality of individual service and administrative records, data collection and reporting, and all other aspects of their business and services.
    3. The administrator or management body created pursuant to this subsection shall have the authority to receive funds from the participating community services boards or behavioral health authorities; public and private sources such as foundations, gifts and grants; and public and private reimbursement from private insurers and the Department of Medical Assistance Services; but the administrator or management body shall not be authorized to receive funds directly from the Department.
    4. The administrator or management body created pursuant to this subsection shall defend or compromise, as appropriate, all claims, suits, actions, or proceedings arising from its performance under this joint agreement and shall obtain and maintain insurance sufficient for this purpose.

History. 2006, c. 656; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “consumers” in the first sentence of subsection A and “individual service and administrative records” for “consumer and administrative records” in subdivision H 2.

Chapter 7. State Facilities.

Article 1. General Provisions.

§ 37.2-700. Construction of state facilities; razing buildings.

  1. The Commissioner, subject to the approval of the Board and the Governor, shall determine the necessity for and select the site of any new state facility and any land to be taken or purchased by the Commonwealth for the purposes of any new or existing state facility. The Commissioner shall have charge of the construction of any new building at any state facility, shall determine the design of the building, and may employ architects and other experts or hold competitions for plans and designs for this purpose. If any land or property is taken or purchased by the Board, title shall be taken in the name of the Commonwealth.
  2. If any building standing on property under the supervision and control of the Department is in such a state of dilapidation or disrepair that it is, in the opinion of the Commissioner, dangerous to individuals receiving services, employees of the Department, or other persons frequenting that property, the Commissioner may, with the approval of the Board and the Governor, cause the building to be torn down or razed. For this purpose, the Commissioner may contract with any person on the terms that he deems expedient and may sell or otherwise dispose of the materials composing the building.

History. Code 1950, §§ 37-34.1, 37-34.2; 1950, p. 901; 1952, c. 480; 1968, c. 477, §§ 37.1-11, 37.1-12; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers” in the first sentence of subsection B.

Law Review.

For article on state constitutions and the environment, see 58 Va. L. Rev. 193 (1972).

§ 37.2-701. Examination of properties; certain property not to be declared surplus.

The Commissioner is hereby authorized to examine the condition of the state facilities operated by the Department based upon the practices and methods employed by the Department in the care and treatment of individuals admitted to any state facility. No property that is being used for the care and treatment of individuals receiving services or that is reasonably related to the present or future needs of the Department for care and treatment of individuals receiving services shall be declared surplus.

History. Code 1950, § 37-34.2:2; 1958, c. 556; 1968, c. 477, § 37.1-13; 1976, c. 671; 1978, c. 770; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “persons” in the first sentence and “individual receiving services” for “consumers” and “individuals receiving services” for “consumers” in the second sentence.

§ 37.2-702. Separate state facilities for elderly individuals; free-standing state facilities authorized.

The Department shall establish and operate a separate geriatric unit within each state facility that serves significant numbers of elderly individuals. Each unit shall provide care and treatment for those individuals and shall be separated in a reasonable manner from the rest of the state facility.

The Board may, giving full consideration to the needs and resources available, authorize the establishment of free-standing state facilities for elderly individuals receiving services.

History. 1974, c. 402, § 37.1-24.2; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals” for “persons” in the second sentence of the first paragraph and “elderly individuals receiving services” for “geriatric consumers” at the end of the second paragraph.

§ 37.2-703. Commissioner to prescribe system of records, accounts, and reports; access to records, accounts, and reports.

The Commissioner shall prescribe and cause to be established and maintained at all state facilities:

  1. A uniform, proper, and approved system of keeping the records and accounts and making reports of money received and disbursed; and
  2. An efficient system of keeping records concerning the individuals admitted to or receiving services in each state facility.The Board, the Commissioner, and their duly authorized agents shall at all times have access to such records, accounts, and reports required to be kept under the provisions of this title.

History. Code 1950, §§ 37-45, 37-46; 1950, p. 902; 1968, c. 477, § 37.1-27; 1976, c. 671; 1980, c. 582; 1984, c. 734; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “the individuals admitted to or receiving services in” for “the consumers admitted to or residing in” in subdivision (b).

§ 37.2-704. Commissioner authorized to receive and expend social security and other federal payments for individuals receiving services in state facilities.

The Commissioner, under any provision of federal law and regulation and with the approval of the Governor, may be appointed or function as the agent to whom payments may be made on behalf of any beneficiary in state facilities. These payments shall be expended for the use and benefit of the individuals receiving services to whom they would otherwise be payable, and any residue resulting from such payments shall be set aside in a special fund to the credit of the individual on whose account the payment is made. The charges provided for by law for the care of the individual receiving services shall be defrayed from such payments. The provisions of subsection C of § 37.2-705 shall apply to any payments received under this section.

History. Code 1950, § 37-48.1; 1954, c. 412; 1958, c. 446; 1968, c. 477, § 37.1-28; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers” and “individual” for “consumer” in the second sentence, and “individual receiving services” for “consumer” in the third sentence.

§ 37.2-705. Private funds provided for individuals receiving services.

  1. The Commissioner is hereby authorized to provide for the deposit with the director or other proper officer of any state facility of any money given or provided for the purpose of supplying extra comforts, conveniences, or services to any individual in a state facility and any money otherwise received and held from, for, or on behalf of any individual in a state facility.
  2. All funds so provided or received shall be deposited to the credit of the state facility in a special fund in a bank or banks designated by the Commissioner and shall be disbursed as may be required by the respective donors or, in the absence of such requirement, as directed by the director.
  3. The director of each state facility shall furnish to the Commissioner annually a statement showing the amounts of funds received and deposited, the amounts expended, and the amounts remaining in such special funds at the end of the year. The Commissioner shall have authority to invest so much of the remaining funds as he may deem proper in United States government bonds or other securities authorized by law for the investment of fiduciary funds. The interest from these investments may be expended as a part of a welfare fund at each state facility.
  4. If any individual receiving services for whose benefit any such fund has been or shall be provided has departed or shall depart from any state facility, leaving any unexpended balance in such fund, and the director, in the exercise of reasonable diligence, has been or shall be unable to find the person or persons entitled to such unexpended balance, the Commissioner may, after the lapse of three years from the date of such departure, authorize the use of the balance for the benefit of all or any of the individuals then in the state facility.

History. Code 1950, §§ 37-47 to 37-50; 1950, p. 902; 1968, c. 477, §§ 37.1-29 to 37.1-32; 1972, c. 639; 1976, c. 671; 1980, c. 582; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual” for “consumer” near the middle, and “individual in a state facility” for “consumer” at the end, of subsection A; and substituted “If any individual receiving services for whose” for “If any consumer for whose” at the beginning, and “individuals” for “consumers” near the end, of subsection D.

§ 37.2-706. Disposal of unclaimed personal property of certain individuals in state facilities.

If any individual receiving services in a state facility dies, is released, is discharged, or escapes and leaves any article of personal property, including bonds, money, and any intangible assets, in the custody of a state facility, the director of the state facility may, after notification in person, by telephone, or by registered mail to the individual, or the known next-of-kin or personal representative of the individual and after the lapse of three years from the date of the death, release, discharge, or escape, if no claim has been made:

  1. Sell the personal property at public or private sale and deposit the net proceeds in the welfare fund of the state facility;
  2. Retain and issue for use of individuals receiving services articles of clothing suitable for continued use; or
  3. Order destruction or other disposal of personal care articles, articles of clothing, and other belongings that are not suitable by reason of their nature or condition for sale or use by others, including personal and private papers, writings, drawings, or photographs that would compromise the privacy or confidentiality of any person who may be the author, creator, or subject of them.

History. Code 1950, § 37-230.1; 1960, c. 387; 1968, c. 477, § 37.1-33; 1972, c. 639; 1976, c. 671; 1996, cc. 196, 853; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “If any individual receiving services in a state facility” for “If any consumer in a state facility” at the beginning, and “to the individual, or the known next-of-kin or personal representative of the individual and after” for “to the consumer, known next-of-kin, or personal representative of the consumer and after” near the middle, in the introductory paragraph; and substituted “individuals receiving services” for “current consumers” in subdivision 2.

§ 37.2-707. Employment and qualifications of directors of state facilities.

The Commissioner shall employ a director for each state facility who shall be skilled in facility management and administration and who shall meet requirements that may be determined by the Commissioner. However, the director need not be a physician.

Any director of a state facility employed or reemployed by the Commissioner after July 1, 2002, may be employed as a classified employee or under a contract that specifies the terms and conditions of employment, including compensation, benefits, duties and responsibilities, performance standards, evaluation criteria, and contract termination and renewal provisions. The length of employment contracts shall be two years, with provisions for annual renewals thereafter based on the performance of the incumbent. Any director of a state facility employed by the Commissioner before July 1, 1999, may elect to continue his current employment status subject to the provisions of the Virginia Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2, or he may choose to be employed under a contract. Any director of a state facility employed under an employment contract shall be exempt from the Virginia Personnel Act, yet he shall remain subject to the provisions of the State Grievance Procedure (§ 2.2-3000 et seq.). Personnel actions under this exemption shall be taken without regard to race, sex, sexual orientation, gender identity, color, national origin, religion, age, disability, or political affiliation.

Each director shall be responsible to the Commissioner or his designee for the safe, efficient, and effective operation of his state facility. Each director shall take any actions consistent with law necessary to ensure that his facility complies with all applicable federal and state statutes, regulations, policies, and agreements. The Commissioner shall evaluate the performance of each director of a state facility at least annually.

Whenever any act required by law to be performed by a director employed hereunder constitutes the practice of medicine, as defined in § 54.1-2900 , and the director is not a licensed physician, the act shall be performed by a licensed physician designated by the director.

History. 1978, c. 213, § 37.1-42.2; 1980, c. 582; 1999, c. 576; 2000, cc. 565, 610; 2002, cc. 271, 572; 2005, c. 716; 2020, c. 1137.

Cross references.

As to the exemption of certain officers and employees from the Virginia Personnel Act, see § 2.2-2905 .

The 2020 amendments.

The 2020 amendment by c. 1137, inserted “sexual orientation, gender identity” in the last sentence of the second paragraph.

§ 37.2-708. Salaries of directors and other employees of state facilities.

The directors and other employees of state facilities shall each annually receive such salaries as shall be fixed from time to time in the appropriation act, and, when they occupy buildings on the grounds or belonging to their state facility, they shall pay the rent that was fixed in accordance with law.

History. Code 1950, § 14-22; 1964, c. 386, § 14.1-16; 1972, c. 639; 1998, c. 872, § 37.1-42.3; 2005, c. 716.

§ 37.2-709. State facility reporting requirements.

Each director of a state facility shall notify the Director of the Commonwealth’s designated protection and advocacy system, established pursuant to § 51.5-39.13 , in writing within 48 hours of critical incidents or deaths of individuals receiving services in the state facility.

History. 1978, c. 213, § 37.1-42.2; 1980, c. 582; 1999, c. 576; 2000, cc. 565, 610; 2002, cc. 271, 572; 2005, c. 716; 2012, cc. 476, 507, 847; 2013, c. 571.

Editor’s note.

Acts 2012, c. 847, cl. 3, as amended by Acts 2013, c. 571, cl. 2, provides: “That the provisions of this act amending §§ 2.2-510 , 37.2-304 , and 37.2-709 of the Code of Virginia shall be effective on January 1, 2014.”

Acts 2012, c. 847, cl. 4 provides: “That the Director of the Virginia Office for Protection and Advocacy shall, together with the Secretary of Health and Human Resources or his designee, develop a plan for implementation of the provisions of this act and shall report on such plan to the Governor and the General Assembly no later than December 1, 2013.”

Acts 2012, c. 847, cl. 5 provides: “That any regulations adopted by the Board for Protection and Advocacy being abolished by the first enactment of this act that are in effect before January 1, 2014, are hereby repealed as of that date. The Registrar of Regulations shall take appropriate administrative action to effect the repeal of the regulations in the Virginia Administrative Code.”

Acts 2013, c. 571, cl. 3 provides: “That the provisions of this act amending §§ 2.2-2905 , 2.2-3705.3 , 37.2-304 , and 37.2-709 of the Code of Virginia shall become effective January 1, 2014.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers.”

The 2012 amendment by c. 847, effective January 1, 2014, substituted “established pursuant to § 51.5-39.13 ” for “pursuant to § 51.5-39.12.” For effective date, see Editor’s note.

The 2013 amendments.

The 2013 amendment by c. 571, effective January 1, 2014, substituted “Commonwealth’s designated protection and advocacy system” for “Virginia Office for Protection and Advocacy.”

§ 37.2-709.1. State facility reporting requirements; critical incidents involving individuals receiving services.

  1. In each case in which an individual receiving services in a state hospital or state training center is involved in a critical incident, the director of the state facility, or his designee, shall notify the individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 regarding the critical incident, any injury to the individual resulting from the critical incident, and any actions taken to address the factors leading to the critical incident and injuries to the individual resulting from the critical incident.
  2. To the extent authorized by federal law, notice to an individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 shall be made by telephone within 24 hours of the critical incident unless the individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 has requested an alternate means or timeframe for notification. However, if the director, or his designee, is unable to contact the individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 by telephone within 24 hours of the critical incident, or as otherwise requested, the director, or his designee, shall notify the individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 of the critical incident, any injury to the individual resulting from the critical incident, and any actions taken to address the factors leading to the critical incident and injuries to the individual resulting from the critical incident, in writing by registered mail to the last known address of the individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400.
  3. In cases in which the director of a state facility, or his designee, is unable to identify an individual’s authorized representative or person identified pursuant to subdivision A 11 of § 37.2-400 or to obtain the telephone number or last known address of such person despite all reasonable efforts to do so, the provisions of this section shall not apply.
  4. For the purposes of this section, “critical incident” shall be defined as serious bodily injury or loss of consciousness requiring medical treatment.

History. 2012, c. 138.

Editor’s note.

At the direction of the Virginia Code Commission, the references to “consumer” within this section have been changed to “individual.” Acts 2012, cc. 476 and 507, replaced the definition of “Consumer” with “Individual receiving services” or “Individual” in the definitions for this title as set out in § 37.2-100 .

§ 37.2-710. State facility reporting requirements; Virginia Patient Level Data system.

State facilities shall report such data about each individual receiving services and financial data as may be required to the Virginia Patient Level Data system in accordance with Chapter 7.2 (§ 32.1-276.2 et seq.) of Title 32.1.

History. 1985, c. 87, § 37.1-98.2; 1999, c. 764; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “data about each individual receiving services” for “patient-level data.”

§ 37.2-711. Exchange of information.

The Department and state facilities may exchange specific information about individuals who are receiving or who have received services with community services boards or behavioral health authorities to monitor the delivery, outcome, and effectiveness of services; however, no publicly available report or information produced or generated by them shall reveal the identity of any individual who is receiving or who has received services. Publicly available information shall be designed to prevent persons from being able to gain access to combinations of characteristic data elements about individuals who are receiving or who have received services that reasonably could be expected to reveal the identity of any individual. In order to collect unduplicated information, the Department, subject to all regulations adopted by the Board or by agencies of the United States government that govern confidentiality of information about individuals who are receiving or who have received services, may require that the individuals disclose or furnish their social security numbers.

History. 1985, c. 87, § 37.1-98.2; 1999, c. 764; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and rewrote the section.

§ 37.2-712. Collection and dissemination of information concerning religious preferences and affiliations.

  1. Notwithstanding any provision of law to the contrary, any state facility may collect and disseminate information concerning the religious preferences and affiliations of individuals receiving services, provided that no individual may be required to indicate his religious preference or affiliation and that no dissemination of the information shall be made except to categories of persons as to whom the individual or his guardian or other legally authorized representative or other fiduciary has given his authorization that dissemination may be made.
  2. No authorization given pursuant to this section shall be construed to allow any state facility to disseminate to federal government authorities information concerning the religious preferences and affiliations of individuals receiving services for the purpose of compiling a list, registry, or database of individuals based on religious affiliation, national origin, or ethnicity, unless such dissemination is specifically required by state or federal law.

History. 1977, c. 506, § 37.1-84.1:1; 2005, c. 716; 2012, cc. 476, 507; 2019, c. 774.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “its consumers” once and “individual” for “consumer” twice.

The 2019 amendments.

The 2019 amendment by c. 774 inserted the subsection A designation and added subsection B.

§ 37.2-713. Residence of individuals in state facilities and school-age children in state facilities generally.

For purposes of eligibility for and receipt of social services and public assistance, each individual receiving services in a state facility shall be deemed a resident of the county or city in which he resided at the time of his admission to the state facility, and not of the county or city in which the state facility is located. The Department shall be entitled to receive annually from the Board of Education and the school division where the individual resided at the time of his admission a sum equal to the required local expenditure per pupil, as set forth in the appropriation act, and an additional payment for special education, as applicable, for support of the individual’s education. This amount shall be paid by the Board of Education, and the Board shall then deduct that payment from the amount payable by the Board of Education from the basic school aid fund to the school division.

History. Code 1950, §§ 37-95, 37-191; 1950, p. 912; 1968, c. 477, § 37.1-96; 1974, c. 366; 1975, c. 568; 1976, c. 680; 1986, c. 154; 1987, c. 413; 2005, c. 716; 2010, cc. 386, 629; 2012, cc. 476, 507.

Editor’s note.

Acts 2010, cc. 386 and 629, cl. 4 provides: “That the estimate of population provided by the Weldon Cooper Center for Public Service at the University of Virginia be used as the basis for apportionment and distribution of sales tax revenues to public school divisions beginning July 1, 2012.”

The 2010 amendments.

The 2010 amendments by cc. 386 and 629 are identical, and deleted the second sentence, which read: “Each person between the ages of two and 21 in the population of any state facility whom the Department determines could benefit from a program of education or training shall be included in the census taken as provided in § 22.1-281” and substituted “resided at the time of his admission” for “is included in the census.”

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services” for “consumer,” “individual” for “person,” and “individual’s” for “person’s” throughout the section.

§ 37.2-714. Children born in state facilities.

Any child born in a state facility shall be deemed a resident of the county or city in which the mother resided at the time of her admission. The child shall be removed from the state facility as soon after birth as the health and well-being of the child permit and shall be delivered to his other parent or other member of his family. If he is unable to effect the child’s removal as herein provided, the director of the state facility shall cause the filing of a petition in the juvenile and domestic relations district court of the county or city in which the child is present, requesting adjudication of the care and custody of the child under the provisions of § 16.1-278.3. If the mother has received services in a state facility continuously for 10 months, the Department of Social Services shall have financial responsibility for the care of the child, and the custody of the child shall be determined in accordance with the provisions of § 16.1-278.3. The judge of such court shall take appropriate action to effect prompt removal of the child from the state facility.

History. Code 1950, § 37-96; 1950, p. 912; 1958, c. 386; 1964, c. 299; 1968, c. 477, § 37.1-97; 1972, c. 639; 1974, cc. 44, 45; 1976, c. 671; 1980, c. 582; 1991, c. 534; 2005, c. 716; 2012, cc. 476, 507; 2020, c. 900.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “If the mother has received services” for “If the mother has been a consumer” at the beginning of the fourth sentence.

The 2020 amendments.

The 2020 amendment by c. 900, substituted “other parent” for “father” in the second sentence.

Article 2. Expenses of Care, Treatment or Training, and Maintenance.

§ 37.2-715. Who liable for expenses; amount.

Any person who has been or who may be admitted to any state facility or who is the subject of counseling or receives treatment from the staff of a state facility shall be deemed to be an individual receiving services for the purposes of this article.

The income and estate of an individual receiving services shall be liable for the expenses of his care, treatment or training, and maintenance in a state facility. Any person responsible for holding, managing, or controlling the income and estate of the individual receiving services shall apply the income and estate toward the expenses of the individual’s care, treatment or training, and maintenance.

Any person responsible for the support of an individual receiving services pursuant to § 20-61 shall be liable for the expenses of his care, treatment or training, and maintenance in a state facility. Any such person shall no longer be financially liable, however, when a cumulative total of 1,826 days of (i) care and treatment or training for the individual in a state facility, (ii) utilization by the individual of services or facilities under the jurisdiction or supervision of any community services board or behavioral health authority, or (iii) a combination of (i) and (ii) has passed and payment for or a written agreement to pay the charges for 1,826 days of care and services has been made. Not less than three hours of service per day shall be required to include one day in the cumulative total of 1,826 days of utilization of services under the jurisdiction or supervision of a community services board or behavioral health authority. In order to claim this exemption, the person legally liable for the individual shall produce evidence sufficient to prove eligibility for it.

Such expenses shall not exceed the average cost for the particular type of service rendered and shall be determined no less frequently than annually by the Department in accordance with generally accepted accounting principles applicable to the health care industry. In no event shall recovery be permitted for amounts more than five years past due. A certificate of the Commissioner or his designee shall be prima facie evidence of the actual charges for the particular type of service rendered.

History. Code 1950, § 37-125.1; 1950, p. 917; 1952, c. 492; 1956, c. 493; 1960, c. 386; 1962, c. 80; 1968, c. 477, § 37.1-105; 1972, c. 342; 1974, c. 667; 1982, c. 50; 1988, c. 713; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “an individual receiving services” for “a consumer,” “individual” for “consumer,” and “individual’s” for “consumer’s” throughout the section.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, §§ 4, 15, 31.

CASE NOTES

A mother, after her husband’s death, has the duty to support her incompetent son and is the person legally liable for his care and maintenance under former version of this section. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99, 1972 Va. LEXIS 280 (1972) (decided under prior law).

The estate of an incompetent mother is liable for the care and maintenance of her adult incompetent son in a state mental hospital. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99, 1972 Va. LEXIS 280 (1972) (decided under prior law).

Charges not collectible only from income. —

There is no provision in a former version of this section which limits the collection of maintenance charges for a state mental patient to income of the person liable therefor. Commonwealth v. Shepard, 212 Va. 843 , 188 S.E.2d 99, 1972 Va. LEXIS 280 (1972) (decided under prior law).

Liability of accused for expenses of care. —

A person is liable for the expenses of his care, treatment, and maintenance when confined to a state hospital pursuant to this title, even though he previously had been confined to the facility pursuant to former § 19.2-169 as a person charged with crime. Commonwealth, Dep't of Mental Health & Mental Retardation v. Jenkins, 224 Va. 456 , 297 S.E.2d 692, 1982 Va. LEXIS 315 (1982) (decided under prior law).

Authority to recover certain incremental arrearages. —

A former version of this section clearly gives authority to recover incremental arrearages accruing during a preceding five-year term as the result of periodic redetermination of the cost of patient care. Commonwealth v. Sharrett, 218 Va. 684 , 240 S.E.2d 522, 1978 Va. LEXIS 136 (1978) (decided under prior law).

No liability for expenses under former law. —

Formerly it was the policy of the State to take care of insane persons without expense to them. Brown's Comm. v. Western State Hosp., 110 Va. 321 , 66 S.E. 48 , 1909 Va. LEXIS 146 (1909); Commonwealth v. Mason, 177 Va. 684 , 15 S.E.2d 114, 1941 Va. LEXIS 252 (1941) (decided under prior law).

Prior to the enactment of this article (referring to Chapter 3, Article 6 of former Title 37) where a veteran, a citizen of Virginia, was committed to a clinic created under arrangement between the Southwestern State Hospital authorities and the United States Veterans’ Administration, there could be no legal hospitalization charges against him or his estate. Commonwealth v. Mason, 177 Va. 684 , 15 S.E.2d 114, 1941 Va. LEXIS 252 (1941) (decided under prior law).

§ 37.2-716. Behavioral Health and Developmental Services Revenue Fund.

All funds collected by the Department pursuant to this article shall be paid into a special fund of the state treasury that shall be known and referred to as the Behavioral Health and Developmental Services Revenue Fund.

This fund shall be appropriated and used for the operation of the Department and its state facilities for research and training. Unexpended funds in the Behavioral Health and Developmental Services Revenue Fund at the close of any fiscal year shall be retained in the fund and be available for expenditure in ensuing years as provided herein.

History. Code 1950, § 37-125.2; 1950, p. 917; 1968, c. 477, § 37.1-106; 1970, c. 758; 1976, c. 671; 2005, c. 716; 2009, cc. 813, 840.

Editor’s note.

Acts 2009, cc. 813 and 840, cl. 4 provides: “That, as of the effective date of this act, the Behavioral Health and Developmental Trust and Revenue Funds created pursuant to § 37.2-716 of the Code of Virginia shall be deemed the successor in interest to the Mental Health, Mental Retardation and Substance Abuse Services Trust and Revenue Funds.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” twice.

§ 37.2-717. Department to investigate financial ability to pay expenses; assessments and contracts by Department.

  1. The Department shall investigate and determine which individuals receiving services or parents, guardians, conservators, trustees, or other persons legally responsible for individuals receiving services are financially able to pay the expenses of the care, treatment or training, and maintenance, and the Department shall notify these individuals or their parents, guardians, conservators, trustees, or other legally responsible persons of the expenses of care, treatment or training, and maintenance and, in general, of the provisions of this article.
  2. The Department may assess or contract with any individual receiving services or the parent, guardian, conservator, trustee, or other person liable for his support and maintenance to recover care, treatment or training, and maintenance expenses. In arriving at the amount to be paid, the Department shall have due regard for the financial condition and estate of the individual, his present and future needs, and the present and future needs of his lawful dependents. Whenever it is deemed necessary to protect him or his dependents, the Department may assess or agree to accept a monthly sum for the individual’s care, treatment or training, and maintenance that is less than the actual per diem cost, provided that the estate of the individual other than income shall not be depleted below the sum of $500. Nothing contained in this title shall be construed as making any such contract permanently binding upon the Department or prohibiting it from periodically reevaluating the actual per diem cost of care, treatment or training, and maintenance and the financial condition and estate of any individual receiving services, his present and future needs, and the present and future needs of his lawful dependents and entering into a new agreement with the individual or the parent, guardian, conservator, trustee, or other person liable for his support and maintenance, increasing or decreasing the sum to be paid for the individual’s care, treatment or training, and maintenance.
  3. All contracts made by and between the Department and any person acting in a fiduciary capacity for any individual receiving services adjudicated to be incapacitated under the provisions of Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of Title 64.2 and all assessments made by the Department upon that individual or his fiduciaries, providing for payment of the expenses of such individual in any state facility, shall be subject to the approval of any circuit court having jurisdiction over the incapacitated individual’s estate or for the county or city in which he resides or from which he was admitted to the state facility.

History. Code 1950, §§ 37-125.4, 37-125.5; 1950, p. 917; 1956, Ex. Sess., c. 14; 1960, c. 386; 1962, c. 80; 1968, c. 477, §§ 37.1-108, 37.1-109; 1971, Ex. Sess., c. 257; 1976, c. 671; 1997, cc. 801, 921; 2005, c. 716; 2012, cc. 476, 507.

Editor’s note.

At the direction of the Virginia Code Commission, the reference to “Article 1 (§ 37.2-1000 et seq.) of Chapter 10” was changed to “Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of Title 64.2” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services” for “consumers,” “individual” for “consumer,” and “individual’s” for “consumer’s” throughout the section.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 10.

CASE NOTES

Authority to invade the corpus of an incompetent’s estate above the statutory minimum. Commonwealth v. Sharrett, 218 Va. 684 , 240 S.E.2d 522, 1978 Va. LEXIS 136 (1978) (decided under prior law).

But no authority to give blanket prior approval of future assessments of costs. Commonwealth v. Sharrett, 218 Va. 684 , 240 S.E.2d 522, 1978 Va. LEXIS 136 (1978) (decided under prior law).

Modification of agreements. —

The Department of Mental Health and Mental Retardation (now Department of Behavioral Health and Developmental Services) has the power to modify agreements prospectively under certain circumstances and to modify its agreements retroactively. Commonwealth, Dep't of Mental Health & Mental Retardation v. Sheriff of Nottoway County, 221 Va. 306 , 269 S.E.2d 815, 1980 Va. LEXIS 249 (1980) (decided under prior law).

§ 37.2-718. Order to compel payment of expenses.

  1. When any individual receiving services or his guardian, conservator, trustee, or other person liable for his expenses fails to pay those expenses and it appears from investigation that the individual, his guardian, conservator, trustee, or other person liable for his support is able or has sufficient estate to pay the expenses, the Department shall petition the appropriate court having jurisdiction over the estate of the individual or the court for the county or city in which the individual resides or from which he was admitted to a state facility for an order to compel payment of the expenses by the person liable therefor. In any case in which a person liable for the support of the individual is being proceeded against, the petition shall be directed to the appropriate court of the county or city in which the person liable for the support of the individual resides.
  2. The individual receiving services and his estate shall first be liable for the payment of his expenses and thereafter, the person liable for the support of the individual. Such person shall be the father, mother, husband, wife, or child of the individual who has attained the age of majority. Multiple persons shall be jointly and severally liable. The Department shall collect part or all of the expenses from the several sources as appears proper under the circumstances and may proceed against all sources, except that the principal or income or both from a trust created for the benefit of the individual shall be liable for payment only as provided in Article 5 (§ 64.2-742 et seq.) of the Uniform Trust Code. In evaluating the circumstances, the Department may consider any events related to the admission of the individual for treatment or training that have affected the person liable, such as the infliction of serious injury by the individual on the person who is liable. The proceedings for the collection of expenses shall conform to the procedure for collection of debts due the Commonwealth.
  3. Notice of any hearing on the petition of the Department for an order to compel payment of expenses shall be served at least 15 days prior to the hearing and in the manner provided for the service of civil process on the individual receiving services and, if there is one, on his guardian, conservator, or trustee, on the other person legally responsible for the individual’s support, or on the person against whom the proceedings are instituted.
  4. At the hearing, the court shall hear the allegations and proofs of the parties and shall by order require full or partial payment of maintenance by the liable parties, if they have sufficient ability, having due regard for the financial condition and estate of the individual receiving services or any other person liable for his expenses, his present and future needs, and the present and future needs of his lawful dependents, if the proceeding is to charge the individual or any other person liable with such expenses.
  5. Upon application of any interested party and upon like notice and procedure, the court may at any time modify an order to compel payment of expenses. If the application is made by any party other than the Department, the notice shall be served on the Commissioner.
  6. Any party aggrieved by an order or by the judgment of the court may appeal therefrom in the manner provided by law.
  7. Any order or judgment rendered by the court hereunder shall have the same force and effect and shall be enforceable in the same manner and form as any judgment recovered in favor of the Commonwealth.

History. Code 1950, §§ 37-125.6, 37-125.8 to 37-125.12; 1950, p. 918; 1962, c. 80; 1968, c. 477, §§ 37.1-110 to 37.1-115; 1972, cc. 382, 590; 1976, c. 671; 1978, c. 482; 1979, c. 669; 1982, c. 50; 1987, c. 137; 1990, c. 927; 1997, c. 801; 2005, cc. 716, 935; 2012, cc. 476, 507.

Editor’s note.

Acts 2005, c. 935, effective July 1, 2006, amended former § 37.1-110, from which this section was derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment by c. 935 has been given effect in this section as set out above. The 2005 amendment by c. 935 substituted “Article 5 (§ 55-545.01 et seq.) of the Uniform Trust Code” for “§ 55-19” in the fourth sentence of subsection B.

At the direction of the Virginia Code Commission, the reference to “Article 5 (§ 55-545.01 et seq.) of the Uniform Trust Code” was changed to “Article 5 (§ 64.2-742 et seq.) of the Uniform Trust Code” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services” for “consumer” near the beginning of the first sentences of subsections A and B, and in subsection D; substituted “individual” for “consumer” throughout the section; and “individual’s” for “consumer’s” near the end of subsection C.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 4.

§ 37.2-719. Statement forms to be completed by the person liable for support of an individual receiving services.

The Commissioner may prescribe statement forms that shall be completed by those persons liable under § 37.2-715 for the support of the individual receiving services. The statement shall be sworn to by the person and returned to the Commissioner within 30 days from the time the statement was mailed to the person. Should the person fail to return the properly completed statement to the Commissioner within 30 days, the Commissioner shall send another statement by registered mail. If the statement is not then returned properly completed within 30 days, the person to whom it was sent by registered mail shall be assessed $5 for each week or part of each week in excess of the 30-day period that the statement is overdue. The Department shall collect these assessments in the same manner as other sums due for the care, treatment or training, and maintenance of individuals receiving services from the persons whose duty it was to complete each statement. When collected, these assessments shall be paid into the same fund into which other collections are paid under this article.

A statement of liability imposed by this section shall be placed in a prominent place, in boldface type, upon each statement form.

History. Code 1950, § 37-125.15; 1952, c. 492; 1956, c. 493; 1958, c. 472; 1962, c. 80; 1968, c. 477, § 37.1-118; 1976, c. 671; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services” for “consumer” at the end of the first sentence and “individuals receiving services” for “consumers” near the middle of the fifth sentence.

§ 37.2-720. When collection of expenses not required.

This article shall not be held or construed to require the Department to collect the expenses of the care, treatment or training, and maintenance of any indigent individual receiving services from that individual or from any person liable for him when investigation discloses that the indigent individual or person liable for his support is without financial means or that such payment would work a hardship on the individual or his family. Neither shall it be the duty or obligation of the Department to institute any proceedings provided for in this article to effect collection where investigation discloses that proceedings would be without effect or would work a hardship on the individual receiving services or the person liable for his support.

History. Code 1950, § 37-125.13; 1968, c. 477, § 37.1-116; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual receiving services” for “consumer,” “individual” for “person” and “individual” for “consumer” throughout the section.

Law Review.

For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

§ 37.2-721. Liability of estate of the individual receiving services.

Upon the death of any individual who is receiving or who has received services, his estate shall be liable only for the charges remaining unpaid and not more than five years past due and the unsatisfied portion of any judgment rendered by a court in a proceeding under this article. Upon the death of any individual who is receiving or who has received services, the provisions of § 37.2-717 , which prohibit depleting the individual’s estate below $500, shall after funeral expenses have no further application, and such sum may be applied to the charges of the Department remaining unpaid or may be applied to the unsatisfied portion of any judgment.

Upon the death of any individual who is receiving or who has received services in the event amounts remain unpaid for his care, treatment or training, and maintenance, the Department, having reason to believe that the individual died possessed of real or personal property from which reimbursement may be had, shall prepare and acknowledge, as deeds are acknowledged, a notice showing the name of the individual and the actual per diem cost of maintenance due and shall file the notice within four months of the date of the individual’s death in the office of the clerk of the court in which deeds are admitted to record in the county or city in which the real or personal property is located. The clerk of court shall record this notice as a lien is recorded, indexing it in the names of the individual and the Department. The filing of this notice shall create a lien against the estate, both real and personal, of the deceased individual prior to all other claims of the same class except prior liens. No such claim shall be enforced against any real estate of the deceased individual while such real estate is occupied by the surviving spouse of the individual or while such real estate is occupied by any dependent child of the individual.

History. Code 1950, § 37-125.14; 1952, c. 492; 1954, c. 445; 1968, c. 477, § 37.1-117; 1972, c. 383; 1976, c. 671; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual who is receiving or who has received services” for “consumer or former consumer,” “individual’s” for “consumer’s” and “individual” for “consumer” throughout the section.

Subtitle III. Admissions and Dispositions.

Chapter 8. Emergency Custody and Voluntary and Involuntary Civil Admissions.

Article 1. General Provisions.

§ 37.2-800. Applicability of chapter.

For the purposes of this chapter, whenever the term mental illness appears, it shall include substance abuse. Whenever the term responsible person appears, it shall include a family member as that term is defined in § 37.2-100 , a community services board or behavioral health authority, any treating physician of the person, or a law-enforcement officer. Whenever the term community services board or board appears, it shall include behavioral health authority.

History. 1968, c. 477, § 37.1-63; 1976, c. 671; 2005, c. 716; 2008, cc. 850, 870.

The 2008 amendments.

The 2008 amendments by cc. 850 and 870 are identical, and added the last two sentences.

Law Review.

For note, see “Sheltering Psychiatric Patients from the DeShaney Storm: A Proposed Analysis for Determining Affirmative Duties to Voluntary Patients,” 70 Wash & Lee L. Rev. 725 (2013).

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 32 Juvenile and Domestic Relations Courts; Family Courts; Small Claims Court; Commissioners in Chancery: Local Rules of Court. § 32.02 Proceedings in Juvenile and Domestic Relations Courts. Friend.

Michie’s Jurisprudence.

For related discussion, see 4C M.J. Constitutional Law, § 142.

§ 37.2-801. Admission procedures; forms.

  1. Any person alleged to have a mental illness to a degree that warrants treatment in a facility may be admitted to a facility by compliance with one of the following admission procedures:
    1. Voluntary admission;
    2. Admission of incapacitated persons pursuant to § 37.2-805.1 ; or
    3. Involuntary admission by the procedure described in §§ 37.2-809 through 37.2-820 .
  2. The Office of the Executive Secretary of the Supreme Court of Virginia shall prepare the petitions, orders, and such other legal forms as may be required in procedures for custody, detention, and involuntary admission pursuant to Articles 4 (§ 37.2-808 et seq.) and 5 (§ 37.2-814 et seq.) of Chapter 8, and shall distribute such forms to the clerks of the general district courts and juvenile and domestic relations district courts of the Commonwealth. The Department shall prepare the preadmission screening report, examination, and such other clinical forms as may be required in proceedings for custody, detention, and admission pursuant to § 37.2-805 , and Articles 4 (§ 37.2-808 et seq.) and 5 (§ 37.2-814 et seq.) of Chapter 8, and shall distribute such forms to community services boards, mental health care providers, and directors of state facilities.

History. Code 1950, §§ 37-61.1, 37-67, 37-121; 1950, pp. 903, 916; 1958, c. 154; 1964, c. 640; 1968, c. 477, § 37.1-64; 1970, c. 673; 1972, c. 639; 1976, c. 671; 1980, c. 582; 2005, c. 716; 2009, cc. 211, 268, 708.

Cross references.

As to jurisdiction of Juvenile and Domestic Relations District Courts generally, see § 16.1-241.

The 2009 amendments.

The 2009 amendments by cc. 211 and 268 are identical, and deleted “by the procedure described in § 37.2-805 , or” from the end in subdivision A 1; added present subdivision A 2; and redesignated former subdivision A 2 as subdivision A 3.

The 2009 amendment by c. 708, in subsection B, substituted “Office of the Executive Secretary of the Supreme Court of Virginia shall prepare the petitions, orders and such other legal” for “Board shall prescribe and the Department shall prepare the such,” inserted “custody, detention, and involuntary” following “in procedures for,” substituted “pursuant to Article 4 (§ 37.2-808 et seq.) and 5 (§ 37.2-814 et seq.) of Chapter 8, and shall distribute such forms” for “These forms, which shall be the legal forms used in admissions, shall be approved by the Attorney General and distributed by the Department,” deleted “and to the directors of the state facilities” following “courts of the Commonwealth”; and added the present last sentence.

§ 37.2-802. Interpreters in admission or certification proceedings.

  1. In any proceeding pursuant to § 37.2-806 or §§ 37.2-809 through 37.2-820 in which a person who is deaf is alleged to have intellectual disability or mental illness, an interpreter for the person shall be appointed by the district court judge or special justice before whom the proceeding is pending from a list of qualified interpreters provided by the Department for the Deaf and Hard-of-Hearing. The interpreter shall be compensated as provided for in § 37.2-804 .
  2. In any proceeding pursuant to § 37.2-806 or §§ 37.2-809 through 37.2-820 in which a non-English-speaking person is alleged to have intellectual disability or mental illness or is a witness in such proceeding, an interpreter for the person shall be appointed by the district court judge or special justice, or in the case of §§ 37.2-809 through 37.2-813 a magistrate, before whom the proceeding is pending. Failure to appoint an interpreter when an interpreter is not reasonably available or when the person’s level of English fluency cannot be determined shall not be a basis to dismiss the petition or void the order entered at the proceeding. The compensation for the interpreter shall be fixed by the court in accordance with the guidelines set by the Judicial Council of Virginia and shall be paid out of the state treasury.

History. 1976, c. 671, § 37.1-67.5; 1979, c. 204; 2004, c. 243, § 37.1-67.5:01; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “intellectual disability” for “mental retardation” in subsection A and in the first sentence of subsection B.

§ 37.2-803. Special justices to perform duties of judge.

The chief judge of each judicial circuit may appoint one or more special justices, for the purpose of performing the duties required of a judge by this chapter, Chapter 11 (§ 37.2-1100 et seq.), and §§ 16.1-69.28, 16.1-335 through 16.1-348, 19.2-169.6 , 19.2-174.1 , 19.2-182.9 , 53.1-40.1 , 53.1-40.2 , 53.1-40.9 , and 53.1-133.04 . Each special justice shall be a person licensed to practice law in the Commonwealth or a retired or substitute judge in good standing and shall have all the powers and jurisdiction conferred upon a judge. The special justice shall serve under the supervision and at the pleasure of the chief judge of the judicial circuit for a period of up to six years. The special justice may be reappointed and may serve additional periods of up to six years, at the pleasure of the chief judge. Within six months of appointment, each special justice appointed on or after January 1, 1996, shall complete a minimum training program prescribed by the Executive Secretary of the Supreme Court. Special justices shall collect the fees prescribed in this chapter for their service and shall retain those fees, unless the governing body of the county or city in which the services are performed provides for the payment of an annual salary for the services, in which case the fees shall be collected and paid into the treasury of that county or city.

History. Code 1950, § 37-61.2; 1952, c. 700; 1968, c. 477, § 37.1-88; 1974, c. 111; 1976, c. 671; 1995, c. 844; 2005, c. 716; 2007, cc. 500, 897; 2009, c. 608; 2010, cc. 340, 406; 2019, c. 809.

Cross references.

As to definition of “special justices” generally, see § 37.2-100 . As to payment of fees and expenses for special justices, see § 53.1-40.8 .

The 2007 amendments.

The 2007 amendments by cc. 500 and 897 are identical, and substituted “16.1-335 through 16.1-348” for “16.1-339” in the first sentence, inserted “or a retired or substitute judge in good standing” in the second sentence, inserted “for a period of up to six years” at the end of the third sentence and inserted the fourth sentence.

The 2009 amendments.

The 2009 amendment by c. 608 substituted “of the judicial circuit” for “making the appointment” in the third sentence.

The 2010 amendments.

The 2010 amendments by cc. 340 and 406 are identical, and deleted “19.2-177.1” following “19.2-174.1” in the first sentence.

The 2019 amendments.

The 2019 amendment by c. 809 inserted “and 53.1-133.04 ”; and made stylistic changes.

OPINIONS OF THE ATTORNEY GENERAL

Availability of special justice when temporary detention order expires. —

For purposes of § 37.2-809 , court is “closed” when the General District Court with jurisdiction is not open, and not based on the availability of a special justice. See opinion of Attorney General to The Honorable Michael W. Taylor, Sheriff, Pittsylvania County, 17-025, 2018 Va. AG LEXIS 8 (7/6/2018).

Representation of individuals in commitment hearings. —

A special justice may represent individuals in commitment hearings under § 37.1-67.3 [see now § 37.2-814 ], held in the judicial circuit in which the special justice serves. See opinion of Attorney General to The Honorable William G. Barkley, Judge, Albemarle General District Court, 02-063, 2002 Va. AG LEXIS 148 (8/21/02) (decided under prior law).

§ 37.2-804. Fees and expenses.

  1. Any special justice, retired judge sitting by designation pursuant to § 16.1-69.35, or any district court substitute judge who presides over hearings pursuant to the provisions of §§ 37.2-809 through 37.2-820 , Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, or § 19.2-169.6 shall receive a fee of $86.25 for each hearing thereunder plus his necessary mileage, parking, tolls, and postage, and $43.25 for each certification hearing and each order under Chapter 11 (§ 37.2-1100 et seq.) ruling on competency or treatment plus his necessary mileage, parking, tolls, and postage.
  2. Any physician, psychologist or other mental health professional, or any interpreter, appointed pursuant to § 37.2-802 for persons who are deaf, who is not regularly employed by the Commonwealth and is required to serve as a witness or as an interpreter in any proceeding under this chapter or § 19.2-169.6 shall receive a fee of $75 and his necessary expenses for each commitment hearing for involuntary admission in which he serves and $43.25 and necessary expenses for each certification hearing in which he serves.
  3. Other witnesses regularly summoned before a judge or special justice under the provisions of this chapter shall receive the compensation for their attendance and mileage that is allowed witnesses summoned to testify before grand juries.
  4. Every attorney appointed under § 37.2-806 or §§ 37.2-809 through 37.2-820 shall receive a fee of $75 and his necessary expenses for each hearing thereunder and $43.25 and his necessary expenses for each certification hearing and each proceeding under Chapter 11 (§ 37.2-1100 et seq.).
  5. Except as hereinafter provided, all expenses incurred, including the fees, attendance, and mileage aforesaid, shall be paid by the Commonwealth. When any such fees, costs, and expenses, incurred in connection with an examination or hearing for an admission pursuant to § 37.2-806 or §§ 37.2-809 through 37.2-820 , to carry out the provisions of this chapter or in connection with a proceeding under Chapter 11 (§ 37.2-1100 et seq.) or § 19.2-169.6 , are paid by the Commonwealth, they shall be recoverable by the Commonwealth from the person who is the subject of the examination, hearing, or proceeding or from his estate. Collection or recovery may be undertaken by the Department. When the fees, costs, and expenses are collected or recovered by the Department, they shall be refunded to the Commonwealth. No fees or costs shall be recovered, however, from the person who is the subject of the examination or hearing or his estate when no good cause for his admission exists or when the recovery would create an undue financial hardship.

History. Code 1950, § 37-75; 1950, pp. 906, 1596; 1954, c. 194; 1956, c. 445; 1958, c. 346; 1962, c. 20; 1964, c. 640; 1968, c. 477, § 37.1-89; 1970, c. 673; 1975, c. 197; 1976, cc. 374, 459, 671; 1977, c. 674; 1979, c. 204; 1982, c. 454; 1989, c. 591; 1991, c. 86; 1995, c. 844; 1996, c. 893; 1997, c. 921; 1998, c. 455; 2005, c. 716; 2007, cc. 500, 897; 2009, c. 266; 2010, cc. 340, 406.

Cross references.

As to fees and expenses for hearing on medical or mental health treatment of prisoners incapable of giving consent, see § 53.1-133.04 .

Editor’s note.

Acts 2009, c. 266, cl. 2 provides: “That any costs associated with complying with the provisions of this act shall be absorbed within the funds appropriated by the General Assembly for Involuntary Mental Commitments within the Judicial Department.”

The 2007 amendments.

The 2007 amendments by cc. 500 and 897 are nearly identical and, in subsection A, inserted “retired judge sitting by designation pursuant to § 16.1-69.35” following “justice” and “or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1” following “37.2-820”; and substituted “hearing thereunder” for “commitment hearing for involuntary admission” in subsections A and D.

The 2009 amendments.

The 2009 amendment by c. 266, in subsection A, substituted “plus his necessary mileage, parking, tolls, and postage” for “and his necessary mileage” twice.

The 2010 amendments.

The 2010 amendments by cc. 340 and 406 are identical, and inserted “§ 19.2-169.6 ” and made minor stylistic changes in subsection A, subsection B, and subsection E.

Research References.

Virginia Forms (Matthew Bender). No. 9-2020 Involuntary Admission Hearing Invoice.

§ 37.2-804.1. Use of electronic communication.

  1. Petitions and orders for emergency custody and temporary detention pursuant to this chapter may be filed, issued, served, or executed by electronic means, with or without the use of two-way electronic video and audio communication, and returned in the same manner with the same force, effect, and authority as an original document. All signatures thereon shall be treated as original signatures.
  2. Any judge or special justice may conduct proceedings pursuant to this chapter using any two-way electronic video and audio communication system to provide for the appearance of any parties and witnesses. Any two-way electronic video and audio communication system used to conduct a proceeding shall meet the standards set forth in subsection B of § 19.2-3.1 . When a witness whose testimony would be helpful to the conduct of the proceeding is not able to be physically present, his testimony may be received using a telephonic communication system.

History. 2005, cc. 51, 716.

Editor’s note.

Acts 2005, c. 51 enacted former § 37.1-67.7, from which this section is derived. Pursuant to Acts 2005, c. 716, cl. 5 and § 30-152, Acts 2005, c. 51 has been given effect in this section as set out above. See also §§ 37.2-913 and 37.2-1109 .

§ 37.2-804.2. Disclosure of records.

Any health care provider, as defined in § 32.1-127.1:03 , or other provider who has provided or is currently providing services to a person who is the subject of proceedings pursuant to this chapter shall, upon request, disclose to a magistrate, the court, the person’s attorney, the person’s guardian ad litem, the examiner identified to perform an examination pursuant to § 37.2-815 , the community services board or its designee performing any evaluation, preadmission screening, or monitoring duties pursuant to this chapter, or a law-enforcement officer any information that is necessary and appropriate for the performance of his duties pursuant to this chapter. Any health care provider, as defined in § 32.1-127.1:03 , or other provider who has provided or is currently evaluating or providing services to a person who is the subject of proceedings pursuant to this chapter shall disclose information that may be necessary for the treatment of such person to any other health care provider or other provider evaluating or providing services to or monitoring the treatment of the person. Health records disclosed to a law-enforcement officer shall be limited to information necessary to protect the officer, the person, or the public from physical injury or to address the health care needs of the person. Information disclosed to a law-enforcement officer shall not be used for any other purpose, disclosed to others, or retained.

Any health care provider providing services to a person who is the subject of proceedings under this chapter shall (i) inform the person that his family member or personal representative, including any agent named in an advance directive executed in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.), will be notified of information that is directly relevant to such individual’s involvement with the person’s health care, which may include the person’s location and general condition, in accordance with subdivision D 34 of § 32.1-127.1:03 , and (ii) make a reasonable effort to so notify the person’s family member or personal representative, unless the provider has actual knowledge that the family member or personal representative is currently prohibited by court order from contacting the person. No health care provider shall be required to notify a person’s family member or personal representative pursuant to this section if the health care provider has actual knowledge that such notice has been provided.

Any health care provider disclosing records pursuant to this section shall be immune from civil liability for any harm resulting from the disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.), as amended, unless the person or provider disclosing such records intended the harm or acted in bad faith.

History. 2008, cc. 782, 850, 870; 2009, cc. 606, 651; 2016, cc. 569, 693.

The 2009 amendments.

The 2009 amendments by cc. 606 and 651 are nearly identical and added the next-to-last paragraph.

The 2016 amendments.

The 2016 amendments by cc. 569 and 693 are identical, and in the second paragraph, substituted “shall (i) inform the person that his” for “may notify the person’s,” inserted “including any agent named in an advance directive executed in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.), will be notified,” “and (ii) make a reasonable effort to so notify the person’s family member or personal representative,” and added the last sentence.

Article 2. Voluntary Admission.

§ 37.2-805. Voluntary admission.

Any state facility shall admit any person requesting admission who has been (i) screened by the community services board or behavioral health authority that serves the county or city where the person resides or, if impractical, where the person is located, (ii) examined by a physician on the staff of the state facility, and (iii) deemed by the board or authority and the state facility physician to be in need of treatment, training, or habilitation in a state facility. Upon motion of the treating physician, a family member or personal representative of the person, or the community services board serving the county or city where the facility is located, the county or city where the person resides, or the county or city where the person receives treatment, a hearing shall be held prior to the release date of any person who has been the subject of a temporary detention order and voluntarily admitted himself in accordance with subsection B of § 37.2-814 to determine whether such person should be ordered to mandatory outpatient treatment pursuant to subsection D of § 37.2-817 upon his release if such person, on at least two previous occasions within 36 months preceding the date of the hearing, has been (a) the subject of a temporary detention order and voluntarily admitted himself in accordance with subsection B of § 37.2-814 or (b) involuntarily admitted pursuant to § 37.2-817 . A district court judge or special justice shall hold the hearing within 72 hours after receiving the motion for a mandatory outpatient treatment order; however, if the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held by the close of business on the next day that is not a Saturday, Sunday, or legal holiday.

History. Code 1950, § 37-113; 1950, p. 915; 1964, c. 640; 1968, c. 477, § 37.1-65; 1970, c. 46; 1972, cc. 639, 823; 1976, c. 671; 1980, c. 582; 1998, c. 446; 2005, c. 716; 2012, c. 300; 2013, c. 179.

The 2012 amendments.

The 2012 amendment by c. 300 added the last two sentences at the end of the section.

The 2013 amendments.

The 2013 amendment by c. 179 substituted “county or city” for “city or county” in clause (i) of the first sentence and in the next-to-last sentence, substituted “serving the county or city” for “serving the area” and inserted “the county or city where the person resides, or the county or city where the person receives treatment” following “facility is located.”

§ 37.2-805.1. Admission of incapacitated persons pursuant to advance directives or by guardians.

  1. An agent for a person who has been determined to be incapable of making an informed decision may consent to the person’s admission to a facility for no more than 10 calendar days if (i) prior to admission, a physician on the staff of or designated by the proposed admitting facility examines the person and states, in writing, that the person (a) has a mental illness, (b) is incapable of making an informed decision, as defined in § 54.1-2982 , regarding admission, and (c) is in need of treatment in a facility; (ii) the proposed admitting facility is willing to admit the person; and (iii) the person has executed an advance directive in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.) authorizing his agent to consent to his admission to a facility and, if the person protests the admission, he has included in his advance directive specific authorization for his agent to make health care decisions even in the event of his protest as provided in § 54.1-2986.2 . In addition, for admission to a state facility, the person shall first be screened by the community services board that serves the city or county where the person resides or, if impractical, where the person is located.
  2. A guardian who has been appointed for an incapacitated person pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 may consent to admission of that person to a facility for no more than 10 calendar days if (i) prior to admission, a physician on the staff of or designated by the proposed admitting facility examines the person and states, in writing, that the person (a) has a mental illness, (b) is incapable of making an informed decision, as defined in § 54.1-2982 , regarding admission, and (c) is in need of treatment in a facility; (ii) the proposed admitting facility is willing to admit the person; and (iii) the guardianship order specifically authorizes the guardian to consent to the admission of such person to a facility, pursuant to § 64.2-2009 . In addition, for admission to a state facility, the person shall first be screened by the community services board that serves the city or county where the person resides or, if impractical, where the person is located.
  3. A person admitted to a facility pursuant to this section shall be discharged no later than 10 calendar days after admission unless, within that time, the person’s continued admission is authorized under other provisions of law.

History. 2009, cc. 211, 268.

Editor’s note.

At the direction of the Virginia Code Commission, the reference to “Chapter 10 (§ 37.2-1000 et seq.)” was changed to “Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2” and the reference to “37.2-1009” was changed to “64.2-2009” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

Research References.

Virginia Forms (Matthew Bender). No. 6-719 Order Appointing Guardian and Conservator, et seq.; No. 15-108 Advance Medical Directive, et seq.; No. 16-1913 Advance Medical Directive, et seq.

Article 3. Admission to Training Centers.

§ 37.2-806. Judicial certification of eligibility for admission of persons with intellectual disability.

  1. Whenever a person alleged to have intellectual disability is not capable of requesting admission to a training center pursuant to § 37.2-805 , a parent or guardian of the person or another responsible person may initiate a proceeding to certify the person’s eligibility for admission pursuant to this section.
  2. Prior to initiating the proceeding, the parent or guardian or other responsible person seeking the person’s admission shall first obtain (i) a preadmission screening report that recommends admission to a training center from the community services board or behavioral health authority that serves the city or county where the person who is alleged to have intellectual disability resides and (ii) the approval of the training center to which it is proposed that the person be admitted. The Board shall adopt regulations establishing the procedure and standards for the issuance of such approval. These regulations may include provision for the observation and evaluation of the person in a training center for a period not to exceed 48 hours. No person alleged to have intellectual disability who is the subject of a proceeding under this section shall be detained on that account pending the hearing except for observation and evaluation pursuant to the provisions of this subsection.
  3. Upon the filing of a petition in any city or county alleging that the person has intellectual disability, is in need of training or habilitation, and has been approved for admission pursuant to subsection B, a proceeding to certify the person’s eligibility for admission to the training center may be commenced. The petition shall be filed with any district court or special justice. A copy of the petition shall be personally served on the person named in the petition, his attorney, and his guardian or conservator. Prior to any hearing under this section, the judge or special justice shall appoint an attorney to represent the person. However, the person shall not be precluded from employing counsel of his choosing and at his expense.
  4. The person who is the subject of the hearing shall be allowed sufficient opportunity to prepare his defense, obtain independent evaluations and expert opinion at his own expense, and summons other witnesses. He shall be present at any hearing held under this section, unless his attorney waives his right to be present and the judge or special justice is satisfied by a clear showing and after personal observation that the person’s attendance would subject him to substantial risk of physical or emotional injury or would be so disruptive as to prevent the hearing from taking place.
  5. Notwithstanding the above, the judge or special justice shall summons either a physician or a clinical psychologist who is licensed in Virginia and is qualified in the assessment of persons with intellectual disability or a person designated by the local community services board or behavioral health authority who meets the qualifications established by the Board. The physician, clinical psychologist, or community services board or behavioral health authority designee may be the one who assessed the person pursuant to subsection B. The judge or special justice also shall summons other witnesses when so requested by the person or his attorney. The physician, clinical psychologist, or community services board or behavioral health authority designee shall certify that he has personally assessed the person and has probable cause to believe that the person (i) does or does not have intellectual disability, (ii) is or is not eligible for a less restrictive service, and (iii) is or is not in need of training or habilitation in a training center. The judge or special justice may accept written certification of a finding of a physician, clinical psychologist, or community services board or behavioral health authority designee, provided such assessment has been personally made within the preceding 30 days and there is no objection to the acceptance of the written certification by the person or his attorney.
  6. If the judge or special justice, having observed the person and having obtained the necessary positive certification and other relevant evidence, specifically finds that (i) the person is not capable of requesting his own admission, (ii) the training center has approved the proposed admission pursuant to subsection B, (iii) there is no less restrictive alternative to training center admission, consistent with the best interests of the person who is the subject of the proceeding, and (iv) the person has intellectual disability and is in need of training or habilitation in a training center, the judge or special justice shall by written order certify that the person is eligible for admission to a training center.
  7. Certification of eligibility for admission hereunder shall not be construed as a judicial commitment for involuntary admission of the person but shall authorize the parent or guardian or other responsible person to admit the person to a training center and shall authorize the training center to accept the person.

History. 1976, c. 493, § 37.1-65.1; 1979, c. 204; 1980, c. 582; 1984, c. 425; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “intellectual disability” for “mental retardation” throughout the section; substituted “intellectual disability, is in need of training or habilitation, and has been approved for admission pursuant to subsection B” for “mental retardation, is in need of training, treatment, or habilitation, and has been approved for admission pursuant to subsection B of this section” in the first sentence of subsection C; substituted “training or habilitation” for “training, treatment, or habilitation” near the end of clause (iii) of subsection E and in clause (iv) of subsection F; and made minor stylistic changes.

Research References.

Virginia Forms (Matthew Bender). No. 9-2028 Order for Treatment of Incompetent Defendant—Another Form.

§ 37.2-807. Emergency or respite care admissions to training centers.

The Board may adopt regulations to provide for emergency and respite care admissions to training centers. A respite care or emergency admission made pursuant to such regulation shall not be considered an admission under § 37.2-806 and shall not require judicial certification of eligibility for admission. No individual shall be admitted to a training center under an emergency or respite care admission for more than 21 consecutive days or 75 days in a calendar year.

History. 1979, c. 204, § 37.1-65.2; 2005, c. 716.

Article 4. Emergency Custody and Involuntary Temporary Detention.

§ 37.2-808. Emergency custody; issuance and execution of order.

  1. Any magistrate shall issue, upon the sworn petition of any responsible person, treating physician, or upon his own motion, or a court may issue pursuant to § 19.2-271.6 , an emergency custody order when he has probable cause to believe that any 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. Any emergency custody 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.When considering whether there is probable cause to issue an emergency custody order, the magistrate may, in addition to the petition, or the court may pursuant to § 19.2-271.6 , consider (1) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (2) any past actions of the person, (3) any past mental health treatment of the person, (4) any relevant hearsay evidence, (5) any medical records available, (6) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (7) any other information available that the magistrate or the court considers relevant to the determination of whether probable cause exists to issue an emergency custody order.
  2. Any person for whom an emergency custody order is issued shall be taken into custody and transported to a convenient location to be evaluated to determine whether the person meets the criteria for temporary detention pursuant to § 37.2-809 and to assess the need for hospitalization or treatment. The evaluation shall be made by a person designated by the community services board who is skilled in the diagnosis and treatment of mental illness and who has completed a certification program approved by the Department.
  3. The magistrate or court issuing an emergency custody order shall specify the primary law-enforcement agency and jurisdiction to execute the emergency custody order and provide transportation. However, the magistrate or court shall consider any request to authorize transportation by an alternative transportation provider in accordance with this section, whenever an alternative transportation provider is identified to the magistrate or court, which may be a person, facility, or agency, including a family member or friend of the person who is the subject of the order, a representative of the community services board, or other transportation provider with personnel trained to provide transportation in a safe manner, upon determining, following consideration of information provided by the petitioner; the community services board or its designee; the local law-enforcement agency, if any; the person’s treating physician, if any; or other persons who are available and have knowledge of the person, and, when the magistrate or court deems appropriate, the proposed alternative transportation provider, either in person or via two-way electronic video and audio or telephone communication system, that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. When transportation is ordered to be provided by an alternative transportation provider, the magistrate or court shall order the specified primary law-enforcement agency to execute the order, to take the person into custody, and to transfer custody of the person to the alternative transportation provider identified in the order. In such cases, a copy of the emergency custody order shall accompany the person being transported pursuant to this section at all times and shall be delivered by the alternative transportation provider to the community services board or its designee responsible for conducting the evaluation. The community services board or its designee conducting the evaluation shall return a copy of the emergency custody order to the court designated by the magistrate or the court that issued the emergency custody order as soon as is practicable. Delivery of an order to a law-enforcement officer or alternative transportation provider and return of an order to the court may be accomplished electronically or by facsimile.Transportation under this section shall include transportation to a medical facility as may be necessary to obtain emergency medical evaluation or treatment that shall be conducted immediately in accordance with state and federal law. Transportation under this section shall include transportation to a medical facility for a medical evaluation if a physician at the hospital in which the person subject to the emergency custody order may be detained requires a medical evaluation prior to admission.
  4. In specifying the primary law-enforcement agency and jurisdiction for purposes of this section, the magistrate or court shall order the primary law-enforcement agency from the jurisdiction served by the community services board that designated the person to perform the evaluation required in subsection B to execute the order and, in cases in which transportation is ordered to be provided by the primary law-enforcement agency, provide transportation. If the community services board serves more than one jurisdiction, the magistrate or court shall designate the primary law-enforcement agency from the particular jurisdiction within the community services board’s service area where the person who is the subject of the emergency custody order was taken into custody or, if the person has not yet been taken into custody, the primary law-enforcement agency from the jurisdiction where the person is presently located to execute the order and provide transportation.
  5. The law-enforcement agency or alternative transportation provider providing transportation pursuant to this section may transfer custody of the person to the facility or location to which the person is transported for the evaluation required in subsection B, G, or H if the facility or location (i) is licensed to provide the level of security necessary to protect both the person and others from harm, (ii) is actually capable of providing the level of security necessary to protect the person and others from harm, and (iii) in cases in which transportation is provided by a law-enforcement agency, has entered into an agreement or memorandum of understanding with the law-enforcement agency setting forth the terms and conditions under which it will accept a transfer of custody, provided, however, that the facility or location may not require the law-enforcement agency to pay any fees or costs for the transfer of custody.
  6. A law-enforcement officer may lawfully go or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of executing an emergency custody order pursuant to this section.
  7. A law-enforcement officer who, based upon his observation or the reliable reports of others, has probable cause to believe that a person meets the criteria for emergency custody as stated in this section may take that person into custody and transport that person to an appropriate location to assess the need for hospitalization or treatment without prior authorization. A law-enforcement officer who takes a person into custody pursuant to this subsection or subsection H may lawfully go or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of obtaining the assessment. Such evaluation shall be conducted immediately. The period of custody shall not exceed eight hours from the time the law-enforcement officer takes the person into custody.
  8. A law-enforcement officer who is transporting a person who has voluntarily consented to be transported to a facility for the purpose of assessment or evaluation and who is beyond the territorial limits of the county, city, or town in which he serves may take such person into custody and transport him to an appropriate location to assess the need for hospitalization or treatment without prior authorization when the law-enforcement officer determines (i) that the person has revoked consent to be transported to a facility for the purpose of assessment or evaluation, and (ii) based upon his observations, that probable cause exists to believe that the person meets the criteria for emergency custody as stated in this section. The period of custody shall not exceed eight hours from the time the law-enforcement officer takes the person into custody.
  9. Nothing herein shall preclude a law-enforcement officer or alternative transportation provider from obtaining emergency medical treatment or further medical evaluation at any time for a person in his custody as provided in this section.
  10. A representative of the primary law-enforcement agency specified to execute an emergency custody order or a representative of the law-enforcement agency employing a law-enforcement officer who takes a person into custody pursuant to subsection G or H shall notify the community services board responsible for conducting the evaluation required in subsection B, G, or H as soon as practicable after execution of the emergency custody order or after the person has been taken into custody pursuant to subsection G or H.
  11. The person shall remain in custody until (i) a temporary detention order is issued in accordance with § 37.2-809 , (ii) an order for temporary detention for observation, testing, or treatment is entered in accordance with § 37.2-1104 , ending law enforcement custody, (iii) the person is released, or (iv) the emergency custody order expires. An emergency custody order shall be valid for a period not to exceed eight hours from the time of execution.
  12. Nothing in this section shall preclude the issuance of an order for temporary detention for testing, observation, or treatment pursuant to § 37.2-1104 for a person who is also the subject of an emergency custody order issued pursuant to this section. In any case in which an order for temporary detention for testing, observation, or treatment is issued for a person who is also the subject of an emergency custody order, the person may be detained by a hospital emergency room or other appropriate facility for testing, observation, and treatment for a period not to exceed 24 hours, unless extended by the court as part of an order pursuant to § 37.2-1101 , in accordance with subsection C of § 37.2-1104 . Upon completion of testing, observation, or treatment pursuant to § 37.2-1104 , the hospital emergency room or other appropriate facility in which the person is detained shall notify the nearest community services board, and the designee of the community services board shall, as soon as is practicable and prior to the expiration of the order for temporary detention issued pursuant to § 37.2-1104, conduct an evaluation of the person to determine if he meets the criteria for temporary detention pursuant to § 37.2-809 .
  13. Any person taken into emergency custody pursuant to this section shall be given a written summary of the emergency custody procedures and the statutory protections associated with those procedures.
  14. If an emergency custody order is not executed within eight hours of its issuance, the order shall be void and shall be returned unexecuted to the office of the clerk of the issuing court or, if such office is not open, to any magistrate serving the jurisdiction of the issuing court.
  15. In addition to the eight-hour period of emergency custody set forth in subsection G, H, or K, if the individual is detained in a state facility pursuant to subsection E of § 37.2-809 , the state facility and an employee or designee of the community services board as defined in § 37.2-809 may, for an additional four hours, continue to attempt to identify an alternative facility that is able and willing to provide temporary detention and appropriate care to the individual.
  16. Payments shall be made pursuant to § 37.2-804 to licensed health care providers for medical screening and assessment services provided to persons with mental illnesses while in emergency custody.
  17. No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

History. 1995, c. 844, § 37.1-67.01; 1996, c. 893; 1998, c. 611; 2004, c. 737; 2005, c. 716; 2007, c. 7; 2008, cc. 202, 551, 691, 775, 779, 782, 784, 793, 850, 870; 2009, cc. 21, 112, 383, 455, 555, 607, 697, 838; 2010, cc. 778, 825; 2011, c. 249; 2013, c. 371; 2014, cc. 691, 761; 2015, cc. 297, 308, 659; 2018, c. 570; 2020, cc. 1233, 1267; 2021, Sp. Sess. I, cc. 523, 540.

Cross references.

As to this section’s applicability to minors, see § 16.1-340.

As to review of continuation of confinement hearings, procedures and reports for persons found not guilty by reason of insanity, see § 19.2-182.5 .

Editor’s note.

Acts 2009, cc. 383 and 607, cl. 2 provides: “That the provisions of this act are declarative of existing law.”

Acts 2014, c. 691, cl. 3 provides: “That the provisions of this act adding subsection M to § 16.1-340 and subsection N to § 37.2-808 [now subsection O] of the Code of Virginia shall expire on June 30, 2018.” Subsection O expired, however, Acts 2018, c. 570 enacted an identical subsection O.

Acts 2014, c. 691, cl. 4 provides: “That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities.”

Acts 2014, c. 691, cl. 5, and c. 761, cl. 2 provides: “That the Governor’s Task Force on Improving Mental Health Services and Crisis Response created on December 10, 2013, by Executive Order 68 shall identify and examine issues related to the use of law enforcement in the involuntary admission process. The task force shall consider options to reduce the amount of resources needed to detain individuals during the emergency custody order period, including the amount of time spent providing transportation throughout the admission process. Such options shall include developing crisis stabilization units in all regions of the Commonwealth and contracting for retired officers to provide needed transportation. The task force shall report its findings and recommendations to the Governor and the General Assembly by October 1, 2014.”

Acts 2020, cc. 1233 and 1267, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services shall convene a work group to include representatives from the Virginia College of Emergency Physicians, the Virginia Hospital and Healthcare Association, the Virginia Sheriff’s Association, and the Office of the Executive Secretary of the Supreme Court of Virginia to develop standard policies and procedures regarding medical temporary detention orders. The work group shall complete its work no later than December 1, 2020.”

Acts 2021, Sp. Sess. I, cc. 523 and 540, cl. 2 provides: “That the Office of the Executive Secretary of the Supreme Court of Virginia shall collect the following data and report such data annually to the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by December 1, 2021, and December 1, 2022: (i) the number of cases in which a defendant introduces evidence concerning his mental condition pursuant to § 19.2-271.6 of the Code of Virginia, as created by this act; (ii) the number of cases in which such evidence is introduced and a jury or court finds that a defendant did not have the intent required for the offense charged due to a mental illness as defined in § 19.2-271.6 of the Code of Virginia, as created by this act, an intellectual or developmental disability, or autism spectrum disorder; (iii) the number of cases in which the court issues an emergency custody order pursuant to § 37.2-808 of the Code of Virginia, as amended by this act, after a jury or the court finds that a defendant did not have the intent required for the offense charged due to a mental illness as defined in § 19.2-271.6 of the Code of Virginia, as created by this act, an intellectual or developmental disability, or autism spectrum disorder; and (iv) if an emergency custody order is issued in such case, the number of defendants for whom no subsequent temporary detention order is issued and who are released, the number of defendants for whom a subsequent temporary detention order is issued, and the number of defendants who are subsequently involuntarily admitted.”

Acts 2021, Sp. Sess. I, cc. 523 and 540, cl. 3 provides: “That the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the Twenty-First Century (the Joint Subcommittee) shall study, consider, and provide recommendations regarding the relevant standard of danger to self or others that may be appropriately applied to persons found not guilty under this act in the issuance of emergency custody orders, involuntary temporary detention orders, or the ordering of other mandatory mental health treatments in accordance with Article 4 ( § 37.2-808 et seq.) or Article 5 ( § 37.2-814 et seq.) of Chapter 8 of Title 37.2 of the Code of Virginia. The Joint Subcommittee shall report its findings, conclusions, and recommendations to the Chairmen of the Senate Committee on the Judiciary and the House Committee for Courts of Justice by December 1, 2021.”

The 2007 amendments.

The 2007 amendment by c. 7 substituted “treatment that shall be conducted immediately in accordance with state and federal law” for “treatment. This evaluation or treatment shall be conducted immediately in accordance with state and federal law” in the second sentence and added the last sentence of subsection C.

The 2008 amendments.

The 2008 amendments by cc. 202 and 775 are identical, and inserted present subsection E, and redesignated former subsections E through I as subsections F through J.

The 2008 amendments by cc. 551 and 691 are identical, and deleted “within his judicial district” preceding the clause (i) designation in subsection A; and substituted “magistrate serving the jurisdiction of the issuing court” for “magistrate thereof” at the end of subsection I [now J].

The 2008 amendment by c. 779, in subsection A, substituted clause (i) for former clauses (i) and (ii), which read: “(i) has mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself” and redesignated the remaining clauses accordingly.

The 2008 amendment by c. 782 added the last two sentences in subsection A.

The 2008 amendment by c. 784, in subsection H [now subsection I], deleted “or” preceding “until the person is released” and substituted “or until the emergency custody order expires” for “but in no event shall the period of custody exceed four hours” in the first sentence; and added the second through the fifth sentences.

The 2008 amendment by c. 793 inserted the second paragraph in subsection A.

The 2008 amendments by cc. 850 and 870 are identical, and in subsection A, substituted “shall” for “may” and inserted “treating physician” in the introductory language of the first sentence and substituted clause (i) for former clauses (i) and (ii), which read: “(i) has mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself,” redesignated former clauses (iii) and (iv) accordingly, and added the last two sentences; inserted the second paragraph in subsection A; in subsection B, inserted “to determine whether the person meets the criteria for temporary detention pursuant to § 37.2-809 and” in the first sentence; deleted “or behavioral health authority” following “community services board” in subsections B and D; in subsection H [now I], deleted “or” preceding “until the person is released” and substituted “or until the emergency custody order expires” for “but in no event shall the period of custody exceed four hours” in the first sentence and added the last four sentences; and added subsection J [now K].

The 2009 amendments.

The 2009 amendments by c. 21, effective February 23, 2009, and c. 838, effective April 8, 2009, are identical and added the last three sentences in subsection G; and substituted “the magistrate shall extend the emergency custody order” for “an emergency custody order may be renewed” in the third sentence of subsection I (now J).

The 2009 amendments by cc. 112 and 697 are identical, and added the second through sixth sentences in the first paragraph of subsection C; in the first sentence of subsection D, substituted “In specifying the primary law-enforcement agency and jurisdiction for purposes of this section, the” for “The” and inserted “in cases in which transportation is ordered to be provided by the primary law enforcement agency”; inserted “or alternative transportation provider” in subsections E and H; and inserted “in cases in which transportation is provided by a law-enforcement agency” at the beginning of clause (iii) in subsection E.

The 2009 amendments by cc. 383 and 607 are identical, and substituted “subsection B, G, or H” for “subsection B or G” in subsection E; inserted the next-to-last sentence in subsection G; added present subsection H and redesignated former subsections H through K as subsections I through L.

The 2009 amendments by cc. 455 and 555 are identical, and inserted “except that an emergency custody order for a minor pursuant to § 16.1-340 shall only be issued if the minor meets the criteria for involuntary commitment set forth in § 16.1-345” at the end of clause (iii) in subsection A.

The 2010 amendments.

The 2010 amendments by cc. 778 and 825 are identical, and deleted “except that an emergency custody order for a minor pursuant to § 16.1-340 shall only be issued if the minor meets the criteria for involuntary commitment set forth in § 16.1-345” following “hospitalization or treatment” in subsection A.

The 2011 amendments.

The 2011 amendment by c. 249 substituted “six hours” for “four hours” in subsection K.

The 2013 amendments.

The 2013 amendment by c. 371, in subsection C, inserted “but there is no substantial likelihood that the person will cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information,” substituted “shall consider any request to” for “may,” and inserted “in accordance with this section, whenever an alternative transportation provider is identified to the magistrate, which may be a person, facility, or agency” in the second sentence.

The 2014 amendments.

The 2014 amendment by c. 691 in subsections G, H, and K substituted “eight” for “four”; deleted the last two sentences in subsection G, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall issue an order extending the period of emergency custody one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 or (ii) a medical evaluation of the person to be completed if necessary”; deleted the last two sentences in subsection H, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall issue an order extending the period of emergency custody one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (a) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 , or (b) a medical evaluation of the person to be completed if necessary”; deleted the last three sentences in subsection K, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall extend the emergency custody order one time for a second period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 or (ii) a medical evaluation of the person to be completed if necessary. Any family member, as defined in § 37.2-100 , employee or designee of the local community services board as defined in § 37.2-809 , treating physician, or law-enforcement officer may request the two-hour extension”; added subsections J, L, and N, and redesignated the remaining subsections accordingly; and in subsection M substituted “eight” for “six.” As to the expiration of subsection N, see Editor’s note.

The 2014 amendment by c. 761 in subsections G, H, and K substituted “eight” for “four”; in subsection G deleted the last two sentences, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall issue an order extending the period of emergency custody one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 or (ii) a medical evaluation of the person to be completed if necessary”; in subsection H deleted the last two sentences, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall issue an order extending the period of emergency custody one time for an additional period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (a) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 , or (b) a medical evaluation of the person to be completed if necessary”; in subsection K deleted the last three sentences, which read “However, upon a finding by a magistrate that good cause exists to grant an extension, the magistrate shall extend the emergency custody order one time for a second period not to exceed two hours. Good cause for an extension includes the need for additional time to allow (i) the community services board to identify a suitable facility in which the person can be temporarily detained pursuant to § 37.2-809 or (ii) a medical evaluation of the person to be completed if necessary. Any family member, as defined in § 37.2-100 , employee or designee of the local community services board as defined in § 37.2-809 , treating physician, or law-enforcement officer may request the two-hour extension”; added subsections J and L and redesignated the remaining subsections accordingly; and in subsection M substituted “eight” for “six.”

The 2015 amendments.

The 2015 amendments by cc. 297 and 308 are identical, and in the second sentence in subsection C, deleted “in cases in which the emergency custody order is based upon a finding that the person who is the subject of the order 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, suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs but there is no substantial likelihood that the person will cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information,” following “However” and added subsection P. Subsection P was subsequently redesignated as subsection Q at the direction of the Virginia Code Commission.

The 2015 amendment by c. 659 added subsection L and redesignated former subsections L through O as subsections M through P.

The 2018 amendments.

The 2018 amendment by c. 570 added subsection O.

The 2020 amendments.

The 2020 amendment by cc. 1233 and 1267 are identical, and in subsection K, inserted clause (i) designator preceding “a temporary detention order,” inserted “in accordance with § 37.2-809 ” following “issued,” deleted “until” following “§ 37.2-809 ,” added clause (ii) designator, clause (iii), and clause (iv) designator.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, cc. 523 and 540, effective July 1, 2021, are identical, and in subsection A, inserted “or a court may issue pursuant to § 19.2-271.6 ” in the first paragraph and “or the court may pursuant to § 19.2-271.6 ” in the second paragraph; in subsections C and N, inserted “or court” following “magistrate” throughout; and inserted “or the court that issued the emergency custody order” in the next-to-last sentence in subsection C.

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

Research References.

Virginia Forms (Matthew Bender). No. 9-1908 Emergency Custody Order; No. 9-2002 Petition for Involuntary Admission for Treatment.

CASE NOTES

Civil rights actions. —

Where officers detained a detainee for further evaluation on the recommendation of a mental health evaluator who believed that the detainee might be psychotic, and the evaluator’s request for a temporary detention order was granted, the evaluator was entitled to qualified immunity as to the detainee’s Fourth Amendment unreasonable seizure claim because the unlawfulness, if any, of the evaluator’s conduct was not clearly established at the time he recommended the detainee’s seizure. Raub v. Campbell, 785 F.3d 876, 2015 U.S. App. LEXIS 7101 (4th Cir.), cert. denied, 577 U.S. 985, 136 S. Ct. 503, 193 L. Ed. 2d 396, 2015 U.S. LEXIS 7250 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Execution of emergency custody and temporary detention orders and transportation of patients. —

The General Assembly intends city and county police departments, and sheriffs’ offices in counties without police departments, that perform primary law-enforcement functions to execute emergency custody orders and provide transportation for emergency medical evaluation or treatment. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04) (but see 2009 amendments to this section as to transportation).

Law-enforcement personnel are authorized to enter a residence and take a person into custody to execute an emergency custody order if the abode is the residence of the subject of the order and there is reason to believe that the subject is within the residence at the time of entry. If the abode is the residence of a third party, then law enforcement must obtain a search warrant before entering. See opinion of Attorney General to The Honorable Robert P. Mosier, Fauquier County Sheriff, 21-058, 2021 Va. AG LEXIS (12/30/21).

Transportation pursuant to temporary detention order. —

Sheriff is not authorized under subsection O of § 37.2-808 to delay transportation of an individual following the issuance of a temporary detention order when the community services board and the designated state facility continue to search for an alternative facility. Rather, the sheriff should commence transportation to the designated state facility without delay, but if an alternative facility is identified during the period of transport, transportation should be provided to that facility instead. See opinion of Attorney General to Honorable Steve A. Hutcherson, Sheriff, Campbell County, 19-004, (10/25/19).

Magistrate to specify primary law-enforcement agency of the jurisdiction. —

When a magistrate orders a law-enforcement agency to execute an order subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons, the magistrate should specify the police department of the town as the “primary law-enforcement agency of the jurisdiction” when a town is served by its own police department. If the town is not served by its own police department, the sheriff’s office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

Primary law-enforcement agency. —

In jurisdictions served by police departments, the police department rather than the sheriff is the “primary law-enforcement agency” to execute both emergency custody under § 37.2-808 and temporary detention orders under § 37.2-810 and to provide transportation pursuant to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

The term “jurisdiction” in former § 37.1-67.01 and former § 37.1-67.1(C) [now see § 37.2-810 ] refers to the locality or political subdivision served by the law-enforcement agency. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04).

Jurisdiction encompasses any locality or political subdivision, so that if a town has organized its own police department, that department, rather than the surrounding county’s sheriff’s office or police department is the primary law-enforcement agency. If the town does not have its own police department, then the responsibility for the orders and accompanying transportation falls to the county police department if there is one, and to the sheriff’s office if there is not. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

Statute not preempted by federal law. —

The federal Emergency Medical Treatment Act does not preempt or conflict with the statute; instead, the federal act complements the statute by providing a court with the authority to place an individual at any hospital with emergency room departments that execute Medicare provider agreements and, therefore, organizations affected by the federal act and the statute must develop annual written agreements with community services boards to reach satisfactory arrangements for the provision of qualified examiners to perform evaluation services. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, 01-063, (6/28/01) (decided under prior law).

§ 37.2-809. Involuntary temporary detention; issuance and execution of order.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 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 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 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 shall be detained in a state facility for the treatment of individuals 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 shall remain in the custody of law enforcement until the person is either detained within a secure facility or 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. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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 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.
  13. 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 .

History. 1974, c. 351, § 37.1-67.1; 1975, cc. 237, 433; 1976, c. 671, § 37.1-67.4; 1980, c. 582; 1981, cc. 233, 463; 1982, c. 435; 1986, cc. 134, 478, 629; 1987, c. 96; 1988, c. 98; 1989, c. 716; 1990, cc. 429, 728; 1991, c. 159; 1992, c. 566; 1995, c. 844; 1996, cc. 343, 893; 1998, cc. 37, 594, 611; 2004, c. 737; 2005, c. 716; 2007, c. 526; 2008, cc. 331, 551, 691, 728, 779, 782, 793, 828, 850, 870; 2009, cc. 455, 555; 2010, cc. 340, 406, 778, 825; 2013, cc. 87, 321; 2014, cc. 499, 538, 675, 691, 761, 773; 2016, cc. 569, 693; 2020, c. 945.

Cross references.

As to this section’s applicability to minors, see § 16.1-340.

As to review of continuation of confinement hearings, procedures and reports for persons found not guilty by reason of insanity, see § 19.2-182.5 .

As to transportation of person subject to involuntary temporary custody, see § 37.2-829 .

Editor’s note.

Acts 2014, c. 691, cl. 4, and c. 773, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities.”

Acts 2014, c. 691, cl. 5, and 761, cl. 2 provides: “That the Governor’s Task Force on Improving Mental Health Services and Crisis Response created on December 10, 2013, by Executive Order 68 shall identify and examine issues related to the use of law enforcement in the involuntary admission process. The task force shall consider options to reduce the amount of resources needed to detain individuals during the emergency custody order period, including the amount of time spent providing transportation throughout the admission process. Such options shall include developing crisis stabilization units in all regions of the Commonwealth and contracting for retired officers to provide needed transportation. The task force shall report its findings and recommendations to the Governor and the General Assembly by October 1, 2014.”

Acts 2015, c. 742, cl. 1 provides: “The Commissioner of Behavioral Health and Developmental Services (the Commissioner) shall, in conjunction with relevant stakeholders including the Virginia Association of Community Services Boards, the National Alliance on Mental Illness — Virginia, the Psychiatric Society of Virginia, the Virginia College of Emergency Physicians, the Virginia Hospital and Healthcare Association, the Virginia Academy of Clinical Psychologists, the Medical Society of Virginia, and the University of Virginia Institute for Law, Psychiatry, and Public Policy, review the current practice of conducting emergency evaluations for individuals subject to involuntary civil admission. Such review shall identify community services boards and catchment areas where significant delays in responding to emergency evaluations are occurring or have occurred in recent years. Further, the Commissioner shall develop a comprehensive plan to authorize psychiatrists and emergency physicians to evaluate individuals for involuntary civil admission where appropriate to expedite emergency evaluations. The review and comprehensive plan including recommendations shall be completed by November 15, 2015, and reported to the Governor and the Joint Subcommittee Studying Mental Health Services in the Commonwealth in the 21st Century, the House Committee on Health, Welfare and Institutions, and the Senate Committee on Education and Health.”

Acts 2020, cc. 918 and 919, cl. 1 provides: “That the Commissioner of Behavioral Health and Developmental Services shall establish a work group to (i) review the current process for conducting evaluations of persons who are subject to emergency custody orders to determine whether they meet the criteria for temporary detention, including any challenges or barriers to timely completion of such evaluations and factors giving rise to delays in completion of such evaluations, and (ii) develop a comprehensive plan to expand the individuals who may conduct effective evaluations of persons who are subject to emergency custody orders to determine whether they meet the criteria for temporary detention. The work group shall consider other states’ experiences in expanding the individuals who may conduct evaluations of persons subject to emergency custody orders. Such comprehensive plan shall include specific recommendations for legislative or budget actions necessary to implement the plan. The work group shall include representatives of the Virginia Association of Community Services Boards, the National Alliance on Mental Illness — Virginia, the Virginia Organization of Consumers Asserting Leadership (VOCAL), the Psychiatric Society of Virginia, the Virginia College of Emergency Physicians, the Medical Society of Virginia, and such other stakeholders as the Commissioner may deem appropriate. The work group shall report its findings and conclusions and the comprehensive plan to the Governor and the Chairmen of the House Committee on Health, Welfare and Institutions, the Senate Committee on Education and Health, and the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century by December 1, 2020.”

The 2007 amendments.

The 2007 amendment by c. 526 added the last sentence in subsection B.

The 2008 amendments.

The 2008 amendment by c. 331, in subsection B, substituted “magistrate shall issue” for “magistrate may issue” and inserted “treating physician” following “any responsible person” near the beginning of the first sentence.

The 2008 amendments by cc. 551 and 691 are identical, and substituted “magistrate serving the jurisdiction of the issuing court” for “magistrate thereof” at the end of the first sentence in subsection H [now I].

The 2008 amendment by c. 728 inserted “and shall remain in the custody of law enforcement until the person is either detained within a secure facility or custody has been accepted by the appropriate personnel designated by the facility identified in the temporary detention order” at the end of subsection D [now subsection E].

The 2008 amendment by c. 779, in subsection B, substituted clause (i) for former clauses (i) and (ii), which read: “(i) has mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself”; redesignated former clauses (iii) and (iv) accordingly.

The 2008 amendment by c. 782 added the last two sentences in subsection B.

The 2008 amendment by c. 793 inserted subsection C and redesignated the remaining subsections accordingly.

The 2008 amendment by c. 828 added subsection J, which was subsequently redesignated as subsection K by the Virginia Code Commission.

The 2008 amendments by cc. 850 and 870 are identical, and deleted “or behavioral health authority” in the first and second paragraphs of subsection A and in subsection J; rewrote subsection B; added subsection C and redesignated the remaining subsections accordingly; substituted “evaluation pursuant to subsection B” for “in person evaluation” in D; in subsection H, inserted “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” and “close of business on the” in the first sentence, and added the last sentence; and added subsection K, which was subsequently redesignated as subsection L by the Virginia Code Commission.

The 2009 amendments.

The 2009 amendments by cc. 455 and 555 are identical, and inserted “except that a temporary detention order for a minor pursuant to § 16.1-340 shall only be issued if the minor meets the criteria for involuntary commitment set forth in § 16.1-345” at the end of clause (iii) in subsection B.

The 2010 amendments.

The 2010 amendments by cc. 340 and 406 are identical, and substituted “inmates” for “defendants” in the fourth sentence of subsection E.

The 2010 amendments by cc. 778 and 825 are identical, and deleted “except that a temporary detention order for a minor pursuant to § 16.1-340 shall only be issued if the minor meets the criteria for involuntary commitment set forth in § 16.1-345” following “hospitalization or treatment” in subsection B.

The 2013 amendments.

The 2013 amendments by cc. 87 and 321 are identical, and substituted “The Executive Secretary of the Supreme Court of Virginia” for “The chief judge of each general district court” at the beginning of subsection J, and made minor stylistic changes in subsections K and L.

The 2014 amendments.

The 2014 amendments by cc. 499 and 538 are identical and, in subsection H, substituted “72” for “48” throughout the subsection, inserted “or day on which the court is lawfully closed” twice, and made related changes.

The 2014 amendment by c. 675, in subsection E, added the second and third sentence, in the fourth sentence substituted “initial facility of temporary detention” for “facility” and added the language beginning “however,” and in the sentence beginning “Except as provided” substituted “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” for “the initial facility identified in the temporary detention order.”

The 2014 amendment by c. 691 in subsection E inserted “in accordance with the provisions of § 37.2-809.1 ,” deleted the second sentence, which read “The facility of temporary detention shall be one that has been approved pursuant to the regulations of the Board”; and added the third and last sentences; and in subsection H substituted “72” for “48” throughout the subsection, inserted “or day on which the court is lawfully closed” twice, and made stylistic changes.

The 2014 amendment by c. 761, in subsection E added the last sentence.

The 2014 amendment by c. 773, in subsection E, inserted “in accordance with the provisions of § 37.2-809.1 ” in the first sentence, deleted the former second sentence, which read “The facility of temporary detention shall be one that has been approved pursuant to regulations of the Board.” and added the sentence which begins “Subject to the provisions of § 37.2-809.1 .”

The 2016 amendments.

The 2016 amendments by cc. 569 and 693 are almost identical, and in subsection B, inserted “if available, (a) information provided by the person who initiated emergency custody and (b)” and deleted “if available” following “licensed in Virginia”; rewrote subsection L, which read “The employee or designee of the community services board who is conducting the evaluation pursuant to this section shall, if he recommends that the person should not be subject to a temporary detention order, inform the petitioner and an onsite treating physician of his recommendation”; and added subsection M.

The 2020 amendments.

The 2020 amendment by c. 945, in subsection B, inserted “or clinical social worker” following “clinical psychologist” in the introductory wording in the first sentence; in subsection C, inserted “or clinical social worker” following “psychologist” in clause (i) and made stylistic changes.

Research References.

Virginia Forms (Matthew Bender). No. 6-744 Civil Mental Emergency Custody Order, et seq.; No. 9-2017 Temporary Detention Order (Juvenile) — Magistrate.

CASE NOTES

Commitment of insanity acquittees and of other persons compared. —

Virginia’s scheme for the commitment of insanity acquittees is different in a number of respects from its scheme for the commitment of persons other than insanity acquittees. A person other than an insanity acquittee may be committed only if the fact finder determines that there is clear and convincing evidence that the person is insane and dangerous; he is given the right to a jury trial at the precommitment stage; he is automatically released after 180 days and if the State wishes to confine him for a longer period, it must initiate a fresh commitment proceeding every 180 days; and, finally, before the 180-day period has run, he has an unlimited right to seek release. Harris v. Ballone, 681 F.2d 225, 1982 U.S. App. LEXIS 18529 (4th Cir. 1982) (decided under prior law).

Civil rights. —

Where an arrestee was detained for a mental health evaluation after the arrestee was arrested by police officers, the officers and a psychotherapist were not entitled to qualified immunity as to the Fourth Amendment claims, because the court was without enough information to determine what the officers and psychotherapist knew at the time of the arrest, the arrestee alleged that the officers acted on almost no information, and there was no allegation of any emergency situation. Raub v. Bowen, 960 F. Supp. 2d 602, 2013 U.S. Dist. LEXIS 109122 (E.D. Va. 2013), dismissed, 3 F. Supp. 3d 526, 2014 U.S. Dist. LEXIS 26258 (E.D. Va. 2014).

Where an arrestee was detained for a mental health evaluation after the arrestee was arrested by police officers, the arrestee’s First Amendment claim survived because the causation element could be inferred from the arrestee’s allegation that the only knowledge that the officers and a psychotherapist had at the time of arrest concerned the arrestee’s political views. Raub v. Bowen, 960 F. Supp. 2d 602, 2013 U.S. Dist. LEXIS 109122 (E.D. Va. 2013), dismissed, 3 F. Supp. 3d 526, 2014 U.S. Dist. LEXIS 26258 (E.D. Va. 2014).

Where officers detained a detainee for further evaluation on the recommendation of a mental health evaluator who believed that the detainee might be psychotic, and the evaluator’s request for a temporary detention order was granted, the evaluator was entitled to qualified immunity as to the detainee’s Fourth Amendment unreasonable seizure claim because the unlawfulness, if any, of the evaluator’s conduct was not clearly established at the time he recommended the detainee’s seizure. Raub v. Campbell, 785 F.3d 876, 2015 U.S. App. LEXIS 7101 (4th Cir.), cert. denied, 577 U.S. 985, 136 S. Ct. 503, 193 L. Ed. 2d 396, 2015 U.S. LEXIS 7250 (2015).

OPINIONS OF THE ATTORNEY GENERAL

”Day on which the court is lawfully closed.” —

For purposes of § 37.2-809 , court is “closed” when the General District Court with jurisdiction is not open, and not based on the availability of a special justice. See opinion of Attorney General to The Honorable Michael W. Taylor, Sheriff, Pittsylvania County, 17-025, 2018 Va. AG LEXIS 8 (7/6/2018).

Expiration of 72-hour limit. —

If the 72-hour limit on detaining an individual pursuant to a temporary detention order, ends on a day when the general district court is open, but ends at a time when the court has already closed for that day, the individual may not be detained until the close of business on the next day the court is open. See opinion of Attorney General to The Honorable Michael W. Taylor, Sheriff, Pittsylvania County, 17-025, 2018 Va. AG LEXIS 8 (7/6/2018).

A law-enforcement officer may not detain an individual in a medical hospital after the 72-hour limit for a temporary detention order expires, when the individual is receiving ongoing treatment at that facility and has not yet been transferred to the designated mental health facility because he has not been “medically cleared.” See opinion of Attorney General to The Honorable Michael W. Taylor, Sheriff, Pittsylvania County, 17-025, 2018 Va. AG LEXIS 8 (7/6/2018).

Custody of patient after delivery to medical facility. —

A sheriff discharges his duty when he transports an individual to a hospital pursuant to an order of temporary detention, and he is not required to remain for the screening process, unless the temporary detention order includes a specific requirement to transport the person to such other medical facility as may be necessary to obtain emergency medical evaluation or treatment prior to placement of the individual; in such situations, the custody of the individual remains with the sheriff until the individual is delivered to the temporary detention facility. See opinion of Attorney General to The Honorable Robert J. Deeds, Sheriff for Williamsburg-James City County, 01-114, 2002 Va. AG LEXIS 27 (3/29/02) (decided under prior law).

Options of judge when a temporarily detained patient cannot safely be brought for a public civil commitment hearing within statutory time parameters: first, a judge may continue the hearing beyond the prescribed 48-hour time frame when such continuance serves to protect the due process or statutorily created rights of the patient; second, a judge may order the hearing closed for good cause upon motion of the patient or his attorney and conduct the hearing in the holding or seclusion room; third, in extreme situations, a judge may hold the hearing in the public hearing room outside the patient’s presence, after a finding of good cause to do so for the patient’s benefit, trusting that the patient’s interests will be adequately represented by his attorney and others appearing on his behalf; and, finally, a judge may hold the hearing within the requisite time period and within the “presence” of the patient and the public, yet still address important safety concerns by using video conferencing procedures where available. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103, 2003 Va. AG LEXIS 55 (12/18/03) (decided under prior law).

Execution of emergency custody and temporary detention orders and transportation of patients. —

The General Assembly intends city and county police departments, and sheriffs’ offices in counties without police departments, that perform primary law-enforcement functions to execute emergency custody orders and provide transportation for emergency medical evaluation or treatment. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04).

Transportation pursuant to temporary detention order. —

Sheriff is not authorized under subsection O of § 37.2-808 to delay transportation of an individual following the issuance of a temporary detention order when the community services board and the designated state facility continue to search for an alternative facility. Rather, the sheriff should commence transportation to the designated state facility without delay, but if an alternative facility is identified during the period of transport, transportation should be provided to that facility instead. See opinion of Attorney General to Honorable Steve A. Hutcherson, Sheriff, Campbell County, 19-004, (10/25/19).

Jurisdiction of special justices. —

Special justices serving the city of Norfolk have concurrent jurisdiction with special justices serving the city of Virginia Beach to conduct hearings under § 37.2-820 only for persons detained in Virginia Beach for whom subject matter and in personam jurisdiction have been obtained by the Norfolk special justices from a temporary detention order issued under this section. Further, special justices serving Virginia Beach have jurisdiction to conduct commitment hearings for all persons located in Virginia Beach, including persons detained in Virginia Beach under a temporary detention order issued in another jurisdiction. See opinion of Attorney General to Judith Dockery, Esq., Special Justice, City of Virginia Beach, 08-014, 2008 Va. AG LEXIS 9 (4/1/08).

§ 37.2-809.1. Facility of temporary detention.

  1. 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.
  2. 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.
  3. The facility of temporary detention designated in accordance with this section shall be one that has been approved pursuant to regulations of the Board.

History. 2014, cc. 691, 773; 2015, cc. 121, 309.

Editor’s note.

Acts 2014, c. 691, cl. 4, and c. 773, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services shall submit an annual report on or before June 30 of each year on the implementation of this act to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees. The report shall include the number of notifications of individuals in need of facility services by the community services boards, the number of alternative facilities contacted by community services boards and state facilities, the number of temporary detentions provided by state facilities and alternative facilities, the length of stay in state facilities and alternative facilities, and the cost of the detentions in state facilities and alternative facilities.”

The 2015 amendments.

The 2015 amendments by cc. 121 and 309 are identical, and in subsection B, substituted “released from custody” for “released from the custody of the community services board” in the second sentence

OPINIONS OF THE ATTORNEY GENERAL

Transportation pursuant to temporary detention order. —

Sheriff is not authorized under subsection O of § 37.2-808 to delay transportation of an individual following the issuance of a temporary detention order when the community services board and the designated state facility continue to search for an alternative facility. Rather, the sheriff should commence transportation to the designated state facility without delay, but if an alternative facility is identified during the period of transport, transportation should be provided to that facility instead. See opinion of Attorney General to Honorable Steve A. Hutcherson, Sheriff, Campbell County, 19-004, (10/25/19).

§ 37.2-810. Transportation of person in the temporary detention process.

  1. In specifying the primary law-enforcement agency and jurisdiction for purposes of this section, the magistrate shall specify in the temporary detention order the law-enforcement agency of the jurisdiction in which the person resides, or any other willing law-enforcement agency that has agreed to provide transportation, to execute the order and, in cases in which transportation is ordered to be provided by the primary law-enforcement agency, provide transportation. However, if the nearest boundary of the jurisdiction in which the person resides is more than 50 miles from the nearest boundary of the jurisdiction in which the person is located, the law-enforcement agency of the jurisdiction in which the person is located shall execute the order and provide transportation.
  2. The magistrate issuing the temporary detention order shall specify the law-enforcement agency to execute the order and provide transportation. However, the magistrate shall consider any request to authorize transportation by an alternative transportation provider in accordance with this section, whenever an alternative transportation provider is identified to the magistrate, which may be a person, facility, or agency, including a family member or friend of the person who is the subject of the temporary detention order, a representative of the community services board, or other transportation provider with personnel trained to provide transportation in a safe manner upon determining, following consideration of information provided by the petitioner; the community services board or its designee; the local law-enforcement agency, if any; the person’s treating physician, if any; or other persons who are available and have knowledge of the person, and, when the magistrate deems appropriate, the proposed alternative transportation provider, either in person or via two-way electronic video and audio or telephone communication system, that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. When transportation is ordered to be provided by an alternative transportation provider, the magistrate shall order the specified law-enforcement agency to execute the order, to take the person into custody, and to transfer custody of the person to the alternative transportation provider identified in the order.In such cases, a copy of the temporary detention order shall accompany the person being transported pursuant to this section at all times and shall be delivered by the alternative transportation provider to the temporary detention facility. The temporary detention facility shall return a copy of the temporary detention order to the court designated by the magistrate as soon as is practicable. Delivery of an order to a law-enforcement officer or alternative transportation provider and return of an order to the court may be accomplished electronically or by facsimile.The order may include transportation of the person to such other medical facility as may be necessary to obtain further medical evaluation or treatment prior to placement as required by a physician at the admitting temporary detention facility. Nothing herein shall preclude a law-enforcement officer or alternative transportation provider from obtaining emergency medical treatment or further medical evaluation at any time for a person in his custody as provided in this section. Such medical evaluation or treatment shall be conducted immediately in accordance with state and federal law.
  3. If an alternative transportation provider providing transportation of a person who is the subject of a temporary detention order becomes unable to continue providing transportation of the person at any time after taking custody of the person, the primary law-enforcement agency for the jurisdiction in which the alternative transportation provider is located at the time he becomes unable to continue providing transportation shall take custody of the person and shall transport the person to the facility of temporary detention. In such cases, a copy of the temporary detention order shall accompany the person being transported and shall be delivered to and returned by the temporary detention facility in accordance with the provisions of subsection B.
  4. In cases in which an alternative facility of temporary detention is identified and the law-enforcement agency or alternative transportation provider identified to provide transportation in accordance with subsection B continues to have custody of the person, the local law-enforcement agency or alternative transportation provider shall transport the person to the alternative facility of temporary detention identified by the employee or designee of the community services board. In cases in which an alternative facility of temporary detention is identified and custody of the person has been transferred from the law-enforcement agency or alternative transportation provider that provided transportation in accordance with subsection B to the initial facility of temporary detention, the employee or designee of the community services board shall request, and a magistrate may enter an order specifying, an alternative transportation provider or, if no alternative transportation provider is available, willing, and able to provide transportation in a safe manner, the local law-enforcement agency for the jurisdiction in which the person resides or, if the nearest boundary of the jurisdiction in which the person resides is more than 50 miles from the nearest boundary of the jurisdiction in which the person is located, the law-enforcement agency of the jurisdiction in which the person is located, to provide transportation.
  5. The magistrate may change the transportation provider specified in a temporary detention order at any time prior to the initiation of transportation of a person who is the subject of a temporary detention order pursuant to this section. If the designated transportation provider is changed by the magistrate at any time after the temporary detention order has been executed but prior to the initiation of transportation, the transportation provider having custody of the person shall transfer custody of the person to the transportation provider subsequently specified to provide transportation. For the purposes of this subsection, “transportation provider” includes both a law-enforcement agency and an alternative transportation provider.
  6. A law-enforcement officer may lawfully go to or be sent beyond the territorial limits of the county, city, or town in which he serves to any point in the Commonwealth for the purpose of executing any temporary detention order pursuant to this section. Law-enforcement agencies may enter into agreements to facilitate the execution of temporary detention orders and provide transportation.
  7. No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

History. 1974, c. 351, § 37.1-67.1; 1975, cc. 237, 433; 1976, c. 671; 1980, c. 582; 1981, c. 463; 1986, cc. 478, 629; 1987, c. 96; 1988, c. 98; 1989, c. 716; 1990, cc. 429, 728; 1991, c. 159; 1992, c. 566; 1995, c. 844; 1996, cc. 343, 893; 1998, cc. 37, 594, 611; 2004, c. 737; 2005, c. 716; 2007, c. 7; 2009, cc. 112, 697; 2013, c. 371; 2014, cc. 317, 675; 2015, cc. 297, 308; 2020, cc. 879, 880.

The 2007 amendments.

The 2007 amendment by c. 7, in subsection A, substituted “further medical evaluation or treatment prior to placement as required by a physician at the admitting temporary detention facility” for “emergency medical evaluation or treatment prior to placement” in the fourth sentence and substituted “Such medical evaluation” for “Such evaluation” at the beginning of the last sentence.

The 2009 amendments.

The 2009 amendments by cc. 112 and 697 are nearly identical, and divided former subsection A into present subsection A and the last paragraph of subsection B; rewrote the former first two sentences in subsection A; in subsection B, added the present first paragraph and inserted “or alternative transportation provider” in the next-to-last sentence of the last paragraph; and redesignated former subsection B as subsection C.

The 2013 amendments.

The 2013 amendment by c. 371, in subsection B, in the second sentence, inserted the language beginning “in cases in which the temporary detention” and ending “other relevant information,” substituted “shall consider any request to” for “may,” and inserted “in accordance with this section, whenever an alternative transportation provider is identified to the magistrate, which may be a person, facility, or agency.”

The 2014 amendments.

The 2014 amendment by c. 317 in subsection A inserted “or any other willing law-enforcement agency that has agreed to provide transportation”; and deleted “primary” preceding “law-enforcement” in the third sentence of subsection B.

The 2014 amendment by c. 675 added subsection C, and redesignated former subsection C as present D.

The 2015 amendments.

The 2015 amendments by cc. 297 and 308 are identical, and and in the second sentence in subsection B, deleted “in cases in which the temporary detention order is based upon a finding that the person who is the subject of the order 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, suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs but there is no substantial likelihood that the person will cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information,” following “However” and added subsection E.

The 2020 amendments.

The 2020 amendments by cc. 879 and 880 are identical, and inserted subsections C and E and redesignated accordingly and in subsection D, last sentence, substituted “custody of the person” for “custody of the individual.”

OPINIONS OF THE ATTORNEY GENERAL

Execution of emergency custody and temporary detention orders and transportation of patients. —

The General Assembly intends city and county police departments, and sheriffs’ offices in counties without police departments, that perform primary law-enforcement functions to execute emergency custody orders and provide transportation for emergency medical evaluation or treatment. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04) (but see 2009 amendments to this section as to transportation).

Transportation pursuant to temporary detention order. —

Sheriff is not authorized under subsection O of § 37.2-808 to delay transportation of an individual following the issuance of a temporary detention order when the community services board and the designated state facility continue to search for an alternative facility. Rather, the sheriff should commence transportation to the designated state facility without delay, but if an alternative facility is identified during the period of transport, transportation should be provided to that facility instead. See opinion of Attorney General to Honorable Steve A. Hutcherson, Sheriff, Campbell County, 19-004, (10/25/19).

Magistrate to specify primary law-enforcement agency of the jurisdiction. —

When a magistrate orders a law-enforcement agency to execute an order subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons, the magistrate should specify the police department of the town as the “primary law-enforcement agency of the jurisdiction” when a town is served by its own police department. If the town is not served by its own police department, the sheriff’s office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

In jurisdictions served by police departments, the police department rather than the sheriff is the “primary law-enforcement agency” to execute both emergency custody under § 37.2-808 and temporary detention orders under § 37.2-810 and to provide transportation pursuant to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

Custody of patient after delivery to medical facility. —

A sheriff discharges his duty when he transports an individual to a hospital pursuant to an order of temporary detention, and he is not required to remain for the screening process, unless the temporary detention order includes a specific requirement to transport the person to such other medical facility as may be necessary to obtain emergency medical evaluation or treatment prior to placement of the individual; in such situations, the custody of the individual remains with the sheriff until the individual is delivered to the temporary detention facility. See opinion of Attorney General to The Honorable Robert J. Deeds, Sheriff for Williamsburg-James City County, 01-114, 2002 Va. AG LEXIS 27 (3/29/02) (decided under prior law).

The term “jurisdiction” in § 37.1-67.01 [now see § 37.2-808 ] and subsection C of former § 37.1-67.1 [now this section] refers to the locality or political subdivision served by the law-enforcement agency. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04).

Jurisdiction encompasses any locality or political subdivision, so that if a town has organized its own police department, that department, rather than the surrounding county’s sheriff’s office or police department is the primary law-enforcement agency. If the town does not have its own police department, then the responsibility for the orders and accompanying transportation falls to the county police department if there is one, and to the sheriff’s office if there is not. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, (10/21/11).

§ 37.2-811. Emergency treatment of inmates in the custody of local correctional facilities.

  1. In any case in which temporary detention is ordered pursuant to § 37.2-809 upon petition of a person having custody of an inmate in accordance with subdivision A 2 of § 19.2-169.6 , the magistrate executing the temporary detention order shall place the person in a hospital designated by the Commissioner as appropriate for treatment and evaluation of persons under a criminal charge or, if such facility is not available, the inmate shall be detained in a local correctional facility or other place of confinement for persons charged with criminal offenses and shall be transferred to such hospital as soon as possible thereafter.
  2. The hearing shall be held, upon notice to the attorney for the inmate, either (i) before the court having jurisdiction over the inmate’s case or (ii) before a district court judge or special justice in accordance with the provisions of § 37.2-820 , in which case the inmate shall be represented by counsel as specified in § 37.2-814 .

History. 1974, c. 351, § 37.1-67.1; 1975, cc. 237, 433; 1976, c. 671; 1980, c. 582; 1981, c. 463; 1986, cc. 478, 629; 1987, c. 96; 1988, c. 98; 1989, c. 716; 1990, cc. 429, 728; 1991, c. 159; 1992, c. 566; 1995, c. 844; 1996, cc. 343, 893; 1998, cc. 37, 594, 611; 2004, c. 737; 2005, c. 716; 2010, cc. 340, 406.

The 2010 amendments.

The 2010 amendments by cc. 340 and 406 are identical, and substituted “inmate” for “defendant” throughout, substituted “local correctional facility” for “jail” in subsection A, and made minor stylistic changes.

OPINIONS OF THE ATTORNEY GENERAL

Statute not preempted by federal law. —

The federal Emergency Medical Treatment Act does not preempt or conflict with the statute; instead, the federal act complements the statute by providing a court with the authority to place an individual at any hospital with emergency room departments that execute Medicare provider agreements and, therefore, organizations affected by the federal act and the statute must develop annual written agreements with community services boards to reach satisfactory arrangements for the provision of qualified examiners to perform evaluation services. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, 01-063, (6/28/01).

Execution of emergency custody and temporary detention orders and transportation of patients. —

The General Assembly intends city and county police departments, and sheriffs’ offices in counties without police departments, that perform primary law-enforcement functions to execute emergency custody orders and provide transportation for emergency medical evaluation or treatment. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04).

§ 37.2-812. Repealed by Acts 2010, cc. 778 and 825, cl. 2.

Editor’s note.

Former § 37.2-812 , concerning temporary detention and involuntary admission of minors, was derived from Acts 1974, c. 351, § 37.1-67.1; 1975, cc. 237, 433; 1976, c. 671; 1980, c. 582; 1981, c. 463; 1986, cc. 478, 629; 1987, c. 96; 1988, c. 98; 1989, c. 716; 1990, cc. 429, 728; 1991, c. 159; 1992, c. 566; 1995, c. 844; 1996, cc. 343, 893; 1998, cc. 37, 594, 611; 2004, c. 737; 2005, c. 716.

§ 37.2-813. Release of person prior to commitment hearing for involuntary admission.

Prior to a hearing as authorized in §§ 37.2-814 through 37.2-819 , the district court judge or special justice may release the person on his personal recognizance or bond set by the district court judge or special justice if it appears from all evidence readily available that the person does not meet the commitment criteria specified in subsection D of § 37.2-817 . The director of any facility in which the person is detained may release the person prior to a hearing as authorized in §§ 37.2-814 through 37.2-819 if it appears, based on an evaluation conducted by the psychiatrist or clinical psychologist treating the person, that the person would not meet the commitment criteria specified in subsection D of § 37.2-817 if released.

History. 1974, c. 351, § 37.1-67.1; 1975, cc. 237, 433; 1976, c. 671; 1980, c. 582; 1981, c. 463; 1986, cc. 478, 629; 1987, c. 96; 1988, c. 98; 1989, c. 716; 1990, cc. 429, 728; 1991, c. 159; 1992, c. 566; 1995, c. 844; 1996, cc. 343, 893; 1998, cc. 37, 594, 611; 2004, c. 737; 2005, c. 716; 2008, cc. 779, 850, 870; 2010, cc. 778, 825.

The 2008 amendments.

The 2008 amendments by cc. 779, 850 and 870 are identical, and substituted “does not meet the commitment criteria specified in subsection C of § 37.2-817 ” for “will not pose an imminent danger to himself or others” in the first sentence; and substituted “meet the commitment criteria specified in subsection C of § 37.2-817 or § 16.1-345” for “present an imminent danger to himself or others” in the last sentence.

The 2010 amendments.

The 2010 amendments by cc. 778 and 825 are identical, and deleted “or § 16.1-341” following “through 37.2-819 ” twice, deleted the second sentence, which read: “In the case of a minor, the juvenile and domestic relations district court judge may release the minor to his parent,” and deleted “or § 16.1-345” following “of § 37.2-817 .”

OPINIONS OF THE ATTORNEY GENERAL

Execution of emergency custody and temporary detention orders and transportation of patients. —

The General Assembly intends city and county police departments, and sheriffs’ offices in counties without police departments, that perform primary law-enforcement functions to execute emergency custody orders and provide transportation for emergency medical evaluation or treatment. See opinion of Attorney General to The Honorable Dale Muterspaugh, Sheriff for Alleghany County, 04-45, (7/15/04).

Article 5. Involuntary Admissions.

§ 37.2-814. Commitment hearing for involuntary admission; written explanation; right to counsel; rights of petitioner.

  1. The commitment hearing for involuntary admission shall be held after a sufficient period of time has passed 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 be held within 72 hours of the execution of the temporary detention order as provided for in § 37.2-809 ; however, 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.
  2. At the commencement of the commitment hearing, the district court judge or special justice shall inform the person whose involuntary admission is being sought of his right to apply for voluntary admission for inpatient treatment as provided for in § 37.2-805 and shall afford the person an opportunity for voluntary admission. The district court judge or special justice shall advise the person whose involuntary admission is being sought that if the person chooses to be voluntarily admitted pursuant to § 37.2-805 , such person will be prohibited from possessing, purchasing, or transporting a firearm pursuant to § 18.2-308.1:3 . The judge or special justice shall ascertain if the person is then willing and capable of seeking voluntary admission for inpatient treatment. In determining whether a person is capable of consenting to voluntary admission, the judge or special justice may consider evidence regarding the person’s past compliance or noncompliance with treatment. If the judge or special justice finds that the person is capable and willingly accepts voluntary admission for inpatient treatment, the judge or special justice shall require him to accept voluntary admission for a minimum period of treatment not to exceed 72 hours. After such minimum period of treatment, the person shall give the facility 48 hours’ notice prior to leaving the facility. During this notice period, the person shall not be discharged except as provided in § 37.2-837 , 37.2-838 , or 37.2-840 . The person shall be subject to the transportation provisions as provided in § 37.2-829 and the requirement for preadmission screening by a community services board as provided in § 37.2-805.
  3. If a person is incapable of accepting or unwilling to accept voluntary admission and treatment, the judge or special justice shall inform the person of his right to a commitment hearing and right to counsel. The judge or special justice shall ascertain if the person whose admission is sought is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent him. However, if the person requests an opportunity to employ counsel, the judge or special justice shall give him a reasonable opportunity to employ counsel at his own expense.
  4. A written explanation of the involuntary admission process and the statutory protections associated with the process shall be given to the person, and its contents shall be explained by an attorney prior to the commitment hearing. The written explanation shall describe, at a minimum, the person’s rights to (i) retain private counsel or be represented by a court-appointed attorney, (ii) present any defenses including independent evaluation and expert testimony or the testimony of other witnesses, (iii) be present during the hearing and testify, (iv) appeal any order for involuntary admission to the circuit court, and (v) have a jury trial on appeal. The judge or special justice shall ascertain whether the person whose involuntary admission is sought has been given the written explanation required herein.
  5. To the extent possible, during or before the commitment hearing, the attorney for the person whose involuntary admission is sought shall interview his client, the petitioner, the examiner described in § 37.2-815 , the community services board staff, and any other material witnesses. He also shall examine all relevant diagnostic and other reports, present evidence and witnesses, if any, on his client’s behalf, and otherwise actively represent his client in the proceedings. A health care provider shall disclose or make available all such reports, treatment information, and records concerning his client to the attorney, upon request. The role of the attorney shall be to represent the wishes of his client, to the extent possible.
  6. The petitioner shall be given adequate notice of the place, date, and time of the commitment hearing. The petitioner shall be entitled to retain counsel at his own expense, to be present during the hearing, and to testify and present evidence. The petitioner shall be encouraged but shall not be required to testify at the hearing, and the person whose involuntary admission is sought shall not be released solely on the basis of the petitioner’s failure to attend or testify during the hearing.

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, c. 716; 2008, cc. 751, 788, 850, 870; 2009, c. 647; 2014, cc. 499, 538, 691.

Cross references.

As to health records which are excluded from the provisions of the Virginia Freedom of Information Act, see § 2.2-3705.5 .

As to review of continuation of confinement hearings, procedures and reports for persons found not guilty by reason of insanity, see § 19.2-182.5 .

The 2008 amendments.

The 2008 amendments by cc. 751 and 788 are nearly identical, and inserted the present second sentence in subsection B.

The 2008 amendments by cc. 850 and 870 are identical, and in subsection A, inserted “after a sufficient period of time has passed 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 be held,” near the beginning and inserted “close of business on the” near the end; in subsection B, substituted “for inpatient treatment” for “and treatment” three times, substituted “facility” for “hospital” twice, and deleted “or behavioral health authority” once in subsection B and once in subsection E.

The 2009 amendments.

The 2009 amendment by c. 647 added the fourth sentence in subsection B.

The 2014 amendments.

The 2014 amendments by cc. 499, 538, and 691 are identical and, in subsection A, substituted “72” for “48” twice; and in subsection B inserted “or transporting” in the second sentence and made related changes.

Research References.

Virginia Forms (Matthew Bender). No. 9-2001 Involuntary Commitment Process — Written Explanation; No. 9-2028 Order for Treatment of Incompetent Defendant — Another Form.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 3.

CASE NOTES

Editor’s note.

The cases annotated below were decided under prior law.

This section requires the presence of the person to be committed at the civil hearing. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

As does federal Constitution. —

Even if Virginia law permitted the commitment hearing to be conducted without the presence of the person whose commitment is sought, the federal Constitution would require the presence of the person whose involuntary commitment is sought prior to an order of hospitalization being entered. The most elementary notions of due process require that an individual be permitted to be heard, and to hear the evidence adduced against him, before actions are taken by the State which substantially deprive him of his liberty. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

There is no exception to the commitment procedure when the person to be committed is a state prisoner. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

Transfer from a prison to a mental institution clearly implicates a liberty interest within the meaning of U.S. Const., Amend. XIV. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

Since transfer of a state prison inmate from a prison to a mental institution is conditioned on proof of the prisoner’s need for treatment, state law provides a “liberty” interest sufficient to require a due process hearing under such circumstances. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

Placement in a mental institution constitutes a serious deprivation of liberty, and that deprivation is substantial even for a person already confined in a penal institution. Evans v. Paderick, 443 F. Supp. 583, 1977 U.S. Dist. LEXIS 12927 (E.D. Va. 1977).

Custody lawful where forms drafted to comply with section. —

The director of Central State Hospital lawfully accepted custody of and detained the plaintiff, where the forms comprising the record of the plaintiff’s civil commitment proceeding, at which he was found so seriously mentally ill as to be unable to care for himself, and at which alternatives to involuntary admission were found unsuitable, were drafted by the Virginia Department of Behavioral Health and Developmental Services to comply with this section. Kenny v. Warden, Richmond City Jail, 476 F. Supp. 197, 1979 U.S. Dist. LEXIS 10234 (E.D. Va. 1979).

Plaintiff’s confinement for one week in a state hospital following lawful civil commitment proceedings was not violative of the Due Process Clause. Kenny v. Warden, Richmond City Jail, 476 F. Supp. 197, 1979 U.S. Dist. LEXIS 10234 (E.D. Va. 1979).

OPINIONS OF THE ATTORNEY GENERAL

Expiration of 72-hour limit. —

A law-enforcement officer may not detain an individual in a medical hospital after the 72-hour limit for a temporary detention order expires, when the individual is receiving ongoing treatment at that facility and has not yet been transferred to the designated mental health facility because he has not been “medically cleared.” See opinion of Attorney General to The Honorable Michael W. Taylor, Sheriff, Pittsylvania County, 17-025, 2018 Va. AG LEXIS 8 (7/6/2018).

Representation of individuals by special justice authorized. —

A special justice appointed pursuant to § 37.1-88 [see now § 37.2-803 ] may represent individuals in commitment hearings held in the judicial circuit in which the special justice serves. See opinion of Attorney General to The Honorable William G. Barkley, Judge, Albemarle General District Court, 02-063, 2002 Va. AG LEXIS 148 (8/21/02).

Options of judge when a temporarily detained patient cannot safely be brought for a public civil commitment hearing within statutory time parameters: first, a judge may continue the hearing beyond the prescribed 48-hour time frame when such continuance serves to protect the due process or statutorily created rights of the patient; second, a judge may order the hearing closed for good cause upon motion of the patient or his attorney and conduct the hearing in the holding or seclusion room; third, in extreme situations, a judge may hold the hearing in the public hearing room outside the patient’s presence, after a finding of good cause to do so for the patient’s benefit, trusting that the patient’s interests will be adequately represented by his attorney and others appearing on his behalf; and, finally, a judge may hold the hearing within the requisite time period and within the “presence” of the patient and the public, yet still address important safety concerns by using video conferencing procedures where available. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103, 2003 Va. AG LEXIS 55 (12/18/03).

A retired judge may conduct civil commitment hearings when he has been recalled to duty by the Chief Justice of the Supreme Court of Virginia or he has been designated to hear and dispose of an action by a chief district judge. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103, 2003 Va. AG LEXIS 55 (12/18/03).

Prescreening report. —

A community services board petitioner in a civil involuntary commitment proceeding may also prepare the prescreening report required of the board by subsection H for the civil commitment hearing. See opinion of Attorney General to Mr. Gregory S. Hancock, Special Justice, 29th Judicial Circuit, 05-025, 2005 Va. AG LEXIS 22 (6/9/05).

§ 37.2-815. Commitment hearing for involuntary admission; examination required.

  1. Notwithstanding § 37.2-814 , the district court judge or special justice shall require an examination of the person who is the subject of the hearing by a psychiatrist or a psychologist who is licensed in Virginia by the Board of Medicine or the Board of Psychology and is qualified in the diagnosis of mental illness or, if such a psychiatrist or psychologist is not available, a mental health professional who (i) is licensed in Virginia through the Department of Health Professions as a clinical social worker, professional counselor, marriage and family therapist, psychiatric nurse practitioner, or clinical nurse specialist, (ii) is qualified in the assessment of mental illness, and (iii) has completed a certification program approved by the Department. The examiner chosen shall be able to provide an independent clinical evaluation of the person and recommendations for his placement, care, and treatment. The examiner shall (a) not be related by blood or marriage to the person, (b) not be responsible for treating the person, (c) have no financial interest in the admission or treatment of the person, (d) have no investment interest in the facility detaining or admitting the person under this chapter, and (e) except for employees of state hospitals, the U.S. Department of Veterans Affairs, and community service boards, not be employed by the facility. For purposes of this section, the term “investment interest” shall be as defined in § 37.2-809 .
  2. The examination conducted pursuant to this section shall be a comprehensive evaluation of the person conducted in-person or, if that is not practicable, by two-way electronic video and audio communication system as authorized in § 37.2-804.1 . Translation or interpreter services shall be provided during the evaluation where necessary. The examination shall consist of (i) a clinical assessment that includes a mental status examination; determination of current use of psychotropic and other medications; a medical and psychiatric history; a substance use, abuse, or dependency determination; and a determination of the likelihood that, as a result of mental illness, the person will, in the near future, suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs; (ii) a substance abuse screening, when indicated; (iii) a risk assessment that includes an evaluation of the likelihood that, as a result of mental illness, the person will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any; (iv) an assessment of the person’s capacity to consent to treatment, including his ability to maintain and communicate choice, understand relevant information, and comprehend the situation and its consequences; (v) a review of the temporary detention facility’s records for the person, including the treating physician’s evaluation, any collateral information, reports of any laboratory or toxicology tests conducted, and all admission forms and nurses’ notes; (vi) a discussion of treatment preferences expressed by the person or contained in a document provided by the person in support of recovery; (vii) an assessment of whether the person meets the criteria for an order authorizing discharge to mandatory outpatient treatment following a period of inpatient treatment pursuant to subsection C1 of § 37.2-817 ; (viii) an assessment of alternatives to involuntary inpatient treatment; and (ix) recommendations for the placement, care, and treatment of the person.
  3. All such examinations shall be conducted in private. The judge or special justice shall summons the examiner who shall certify that he has personally examined the person and state whether he has probable cause to believe that the person (i) has a mental illness and there is 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, and (ii) requires involuntary inpatient treatment. The judge or special justice shall not render any decision on the petition until the examiner has presented his report. The examiner may report orally at the hearing, but he shall provide a written report of his examination prior to the hearing. The examiner’s written certification may be accepted into evidence unless objected to by the person or his attorney, in which case the examiner shall attend in person or by electronic communication. When the examiner attends the hearing in person or by electronic communication, the examiner shall not be excluded from the hearing pursuant to an order of sequestration of witnesses.

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, c. 716; 2007, c. 400; 2008, cc. 779, 850, 870; 2009, cc. 21, 132, 838; 2010, cc. 330, 461.

The 2007 amendments.

The 2007 amendment by c. 400 inserted “community service boards, and behavioral health authorities,” and made a related change in the third sentence in the first paragraph.

The 2008 amendments.

The 2008 amendment by c. 779, in subsection C, inserted “state whether he” following “examined the person and” and substituted the present provisions of clause (i) for “does or does not present an imminent danger to himself or others as a result of mental illness or is or is not so seriously mentally ill as to be substantially unable to care for himself.”

The 2008 amendments by cc. 850 and 870 are identical, added the subsection designations, and in subsection A, substituted “a mental health professional” for “any mental health professional,” deleted “is” preceding clause (i), substituted “is licensed in Virginia through the Department of Health Professions as a clinical social worker, professional counselor, psychiatric nurse practitioner, or clinical nurse specialist” for “licensed in Virginia through the Department of Health Professions and” in clause (i), substituted “is qualified in the assessment of mental illness, and” for “qualified in the diagnosis of mental illness” in clause (ii), added clause (iii), rewrote the present third sentence, and deleted “and behavioral health authorities” at the end of the next-to-last sentence; inserted subsection B; and rewrote subsection C and made minor stylistic changes.

The 2009 amendments.

The 2009 amendments by c. 21, effective February 23, 2009, and c. 838, effective April 8, 2009, are identical and added the last sentence in subsection C.

The 2009 amendment by c. 132 inserted “marriage and family therapist” following “professional counselor” in clause (i) in the first sentence of subsection A.

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are identical, and inserted present clause B (vii) and redesignated former clauses B (vii) and (viii) as clauses B (viii) and (ix).

Law Review.

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

Research References.

Virginia Forms (Matthew Bender). No. 9-2003 Order of Appointment of Examiner.

§ 37.2-816. Commitment hearing for involuntary admission; preadmission screening report.

The district court judge or special justice shall require a preadmission screening report from the community services board that serves the county or city where the person resides or, if impractical, where the person is located. The report shall be admitted as evidence of the facts stated therein and shall state (i) whether the person has a mental illness and whether 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) whether the person is in need of involuntary inpatient treatment, (iii) whether there is no less restrictive alternative to inpatient treatment, and (iv) the recommendations for that person’s placement, care, and treatment including, where appropriate, recommendations for mandatory outpatient treatment. The board shall provide the preadmission screening report to the court prior to the hearing, and the report shall be admitted into evidence and made part of the record of the case. In the case of a person who has been sentenced and committed to the Department of Corrections and who has been examined by a psychiatrist or clinical psychologist, the judge or special justice may proceed to adjudicate whether the person has mental illness and should be involuntarily admitted without requesting a preadmission screening report from the community services board.

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, c. 716; 2008, cc. 779, 850, 870; 2009, cc. 21, 838.

The 2008 amendments.

The 2008 amendment by c. 779 substituted the existing provisions of clause (i) for “whether the person presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill that he is substantially unable to care for himself.”

The 2008 amendments by cc. 850 and 870 are identical, and rewrote the section.

The 2009 amendments.

The 2009 amendments by c. 21, effective February 23, 2009, and c. 838, effective April 8, 2009, are identical and substituted “admitted” for “admissible” near the beginning in the second sentence and added “and the report shall be admitted into evidence and made part of the record of the case” at the end of the next-to-last sentence.

Law Review.

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

§ 37.2-817. (Effective until July 1, 2022) Involuntary admission and mandatory outpatient treatment orders.

  1. The district court judge or special justice shall render a decision on the petition for involuntary admission after the appointed examiner has presented the report required by § 37.2-815 , and after the community services board that serves the county or city where the person resides or, if impractical, where the person is located has presented a preadmission screening report with recommendations for that person’s placement, care, and treatment pursuant to § 37.2-816 . These reports, if not contested, may constitute sufficient evidence upon which the district court judge or special justice may base his decision. The examiner, if not physically present at the hearing, and the treating physician at the facility of temporary detention shall be available whenever possible for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1 .
  2. Any employee or designee of the local community services board, as defined in § 37.2-809 , representing the community services board that prepared the preadmission screening report shall attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1 . Where a hearing is held outside of the service area of the community services board that prepared the preadmission screening report, and it is not practicable for a representative of the board to attend or participate in the hearing, arrangements shall be made by the board for an employee or designee of the board serving the area in which the hearing is held to attend or participate on behalf of the board that prepared the preadmission screening report. The employee or designee of the local community services board, as defined in § 37.2-809 , representing the community services board that prepared the preadmission screening report or attending or participating on behalf of the board that prepared the preadmission screening report shall not be excluded from the hearing pursuant to an order of sequestration of witnesses. The community services board that prepared the preadmission screening report shall remain responsible for the person subject to the hearing and, prior to the hearing, shall send the preadmission screening report through certified mail, personal delivery, facsimile with return receipt acknowledged, or other electronic means to the community services board attending the hearing. Where a community services board attends the hearing on behalf of the community services board that prepared the preadmission screening report, the attending community services board shall inform the community services board that prepared the preadmission screening report of the disposition of the matter upon the conclusion of the hearing. In addition, the attending community services board shall transmit the disposition through certified mail, personal delivery, facsimile with return receipt acknowledged, or other electronic means.At least 12 hours prior to the hearing, the court shall provide to the community services board that prepared the preadmission screening report the time and location of the hearing. If the representative of the community services board will be present by telephonic means, the court shall provide the telephone number to the board.
  3. After observing the person and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any examiner’s certification, (v) any health records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, including whether the person recently has been found unrestorably incompetent to stand trial after a hearing held pursuant to subsection E of § 19.2-169.1 , if the judge or special justice finds by clear and convincing evidence that (a) the person has a mental illness and there is a substantial likelihood that, as a result of mental illness, the person will, in the near future, (1) 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 (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and (b) all available less restrictive treatment alternatives to involuntary inpatient treatment, pursuant to subsection D, that would offer an opportunity for the improvement of the person’s condition have been investigated and determined to be inappropriate, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to a facility for a period of treatment not to exceed 30 days from the date of the court order. Such involuntary admission shall be to a facility designated by the community services board that serves the county or city in which the person was examined as provided in § 37.2-816 . If the community services board does not designate a facility at the commitment hearing, the person shall be involuntarily admitted to a facility designated by the Commissioner. Upon the expiration of an order for involuntary admission, the person shall be released unless he is involuntarily admitted by further petition and order of a court, which shall be for a period not to exceed 180 days from the date of the subsequent court order, or such person makes application for treatment on a voluntary basis as provided for in § 37.2-805 or is ordered to mandatory outpatient treatment pursuant to subsection D. Upon motion of the treating physician, a family member or personal representative of the person, or the community services board serving the county or city where the facility is located, the county or city where the person resides, or the county or city where the person receives treatment, a hearing shall be held prior to the release date of any involuntarily admitted person to determine whether such person should be ordered to mandatory outpatient treatment pursuant to subsection D upon his release if such person, on at least two previous occasions within 36 months preceding the date of the hearing, has been (A) involuntarily admitted pursuant to this section or (B) the subject of a temporary detention order and voluntarily admitted himself in accordance with subsection B of § 37.2-814 . A district court judge or special justice shall hold the hearing within 72 hours after receiving the motion for a mandatory outpatient treatment order; however, if the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held by the close of business on the next day that is not a Saturday, Sunday, or legal holiday.
  4. After observing the person and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any examiner’s certification, (v) any health records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, if the judge or special justice finds by clear and convincing evidence that (a) the person 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, (1) 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 (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs; (b) less restrictive alternatives to involuntary inpatient treatment that would offer an opportunity for improvement of his condition have been investigated and are determined to be appropriate; (c) the person has agreed to abide by his treatment plan and has the ability to do so; and (d) the ordered treatment will be delivered on an outpatient basis by the community services board or designated provider to the person, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to mandatory outpatient treatment. Less restrictive alternatives shall not be determined to be appropriate unless the services are actually available in the community.
  5. Mandatory outpatient treatment may include day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to Chapter 11 (§ 37.2-1100 et seq.), or other appropriate course of treatment as may be necessary to meet the needs of the person. Mandatory outpatient treatment shall not include the use of restraints or physical force of any kind in the provision of the medication. The community services board that serves the county or city in which the person resides shall recommend a specific course of treatment and programs for the provision of mandatory outpatient treatment. The duration of mandatory outpatient treatment shall be determined by the court based on recommendations of the community services board, but shall not exceed 90 days. Upon expiration of an order for mandatory outpatient treatment, the person shall be released from the requirements of the order unless the order is continued in accordance with § 37.2-817.4 .
  6. Any order for mandatory outpatient treatment entered pursuant to subsection D shall include an initial mandatory outpatient treatment plan developed by the community services board that completed the preadmission screening report. The plan shall, at a minimum, (i) identify the specific services to be provided, (ii) identify the provider who has agreed to provide each service, (iii) describe the arrangements made for the initial in-person appointment or contact with each service provider, and (iv) include any other relevant information that may be available regarding the mandatory outpatient treatment ordered. The order shall require the community services board to monitor the implementation of the mandatory outpatient treatment plan and report any material noncompliance to the court.
  7. No later than five days, excluding Saturdays, Sundays, or legal holidays, after an order for mandatory outpatient treatment has been entered pursuant to subsection D, the community services board where the person resides that is responsible for monitoring compliance with the order shall file a comprehensive mandatory outpatient treatment plan. The comprehensive mandatory outpatient treatment plan shall (i) identify the specific type, amount, duration, and frequency of each service to be provided to the person, (ii) identify the provider that has agreed to provide each service included in the plan, (iii) certify that the services are the most appropriate and least restrictive treatment available for the person, (iv) certify that each provider has complied and continues to comply with applicable provisions of the Department’s licensing regulations, (v) be developed with the fullest possible involvement and participation of the person and his family, with the person’s consent, and reflect his preferences to the greatest extent possible to support his recovery and self-determination, (vi) specify the particular conditions with which the person shall be required to comply, and (vii) describe how the community services board shall monitor the person’s compliance with the plan and report any material noncompliance with the plan. The community services board shall submit the comprehensive mandatory outpatient treatment plan to the court for approval. Upon approval by the court, the comprehensive mandatory outpatient treatment plan shall be filed with the court and incorporated into the order of mandatory outpatient treatment. Any subsequent substantive modifications to the plan shall be filed with the court for review and attached to any order for mandatory outpatient treatment.
  8. If the community services board responsible for developing the comprehensive mandatory outpatient treatment plan determines that the services necessary for the treatment of the person’s mental illness are not available or cannot be provided to the person in accordance with the order for mandatory outpatient treatment, it shall notify the court within five business days of the entry of the order for mandatory outpatient treatment. Within two business days of receiving such notice, the judge or special justice, after notice to the person, the person’s attorney, and the community services board responsible for developing the comprehensive mandatory outpatient treatment plan shall hold a hearing pursuant to § 37.2-817.2 .
  9. Upon entry of any order for mandatory outpatient treatment entered pursuant to subsection D, the clerk of the court shall provide a copy of the order to the person who is the subject of the order, to his attorney, and to the community services board required to monitor compliance with the plan. The community services board shall acknowledge receipt of the order to the clerk of the court on a form established by the Office of the Executive Secretary of the Supreme Court and provided by the court for this purpose within five business days.
  10. The court may transfer jurisdiction of the case to the district court where the person resides at any time after the entry of the mandatory outpatient treatment order. The community services board responsible for monitoring compliance with the mandatory outpatient treatment plan or discharge plan shall remain responsible for monitoring the person’s compliance with the plan until the community services board serving the locality to which jurisdiction of the case has been transferred acknowledges the transfer and receipt of the order to the clerk of the court on a form established by the Office of the Executive Secretary of the Supreme Court and provided by the court for this purpose. The community services board serving the locality to which jurisdiction of the case has been transferred shall acknowledge the transfer and receipt of the order within five business days.
  11. Any 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.

C1. In the order for involuntary admission, the judge or special justice may authorize the treating physician to discharge the person to mandatory outpatient treatment under a discharge plan developed pursuant to subsection C2, if the judge or special justice further finds by clear and convincing evidence that (i) the person has a history of lack of compliance with treatment for mental illness that at least twice within the past 36 months has resulted in the person being subject to an order for involuntary admission pursuant to subsection C; (ii) in view of the person’s treatment history and current behavior, the person is in need of mandatory outpatient treatment following inpatient treatment in order to prevent a relapse or deterioration that would be likely to result in the person meeting the criteria for involuntary inpatient treatment; (iii) as a result of mental illness, the person is unlikely to voluntarily participate in outpatient treatment unless the court enters an order authorizing discharge to mandatory outpatient treatment following inpatient treatment; and (iv) the person is likely to benefit from mandatory outpatient treatment. The duration of mandatory outpatient treatment shall be determined by the court based on recommendations of the community services board, but shall not exceed 90 days. Upon expiration of the order for mandatory outpatient treatment, the person shall be released unless the order is continued in accordance with § 37.2-817.4 .

C2. Prior to discharging the person to mandatory outpatient treatment under a discharge plan as authorized pursuant to subsection C1, the treating physician shall determine, based upon his professional judgment, that (i) the person (a) in view of the person’s treatment history and current behavior, no longer needs inpatient hospitalization, (b) requires mandatory outpatient treatment at the time of discharge to prevent relapse or deterioration of his condition that would likely result in his meeting the criteria for involuntary inpatient treatment, and (c) has agreed to abide by his discharge plan and has the ability to do so; and (ii) the ordered treatment will be delivered on an outpatient basis by the community services board or designated provider to the person. Prior to discharging a person to mandatory outpatient treatment under a discharge plan who has not executed an advance directive, the treating physician or his designee shall give to the person a written explanation of the procedures for executing an advance directive in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.) and an advance directive form, which may be the form set forth in § 54.1-2984 . In no event shall the treating physician discharge a person to mandatory outpatient treatment under a discharge plan as authorized pursuant to subsection C1 if the person meets the criteria for involuntary commitment set forth in subsection C. The discharge plan developed by the treating physician and facility staff in conjunction with the community services board and the person shall serve as and shall contain all the components of the comprehensive mandatory outpatient treatment plan set forth in subsection G, and no initial mandatory outpatient treatment plan set forth in subsection F shall be required. The discharge plan shall be submitted to the court for approval and, upon approval by the court, shall be filed and incorporated into the order entered pursuant to subsection C1. The discharge plan shall be provided to the person by the community services board at the time of the person’s discharge from the inpatient facility. The community services board where the person resides upon discharge shall monitor the person’s compliance with the discharge plan and report any material noncompliance to the court in accordance with § 37.2-817.1 .

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, cc. 458, 716; 2008, cc. 779, 780, 782, 793, 850, 870; 2009, cc. 21, 838; 2010, cc. 330, 461; 2012, cc. 300, 451, 501; 2013, c. 179; 2014, cc. 499, 538; 2016, c. 688.

Section set out twice.

The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 37.2-817 .

Editor’s note.

Acts 2005, c. 458, amended former § 37.1-67.3, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment by c. 458 has been given effect in this section as set out above by substituting “by clear and convincing evidence” for “specifically” in the first sentence of subsections B and C.

The 2008 amendments.

The 2008 amendment by c. 779, in subsections B and C, rewrote clause (i) which read: “the person presents an imminent danger to himself or others as a result of mental illness or has been proven to be so seriously mentally ill as to be substantially unable to care for himself.”

The 2008 amendment by c. 780 added subsection B and redesignated the remaining subsections accordingly; deleted “or behavioral health authority” following “the community services board” throughout the section; in subsection A, substituted “presented the report required by § 37.2-815 , and after the community services board” for “presented his report, orally or in writing, pursuant to § 37.2-815 , and after the community services board or behavioral health authority” and deleted “orally or in writing” following “screening report” in the first sentence and added the last sentence; in subsection C, deleted “and obtaining the necessary positive certification” following “observing the person,” substituted the present provisions of clause (ii) for “alternatives to involuntary inpatient treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to involuntary inpatient treatment, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to a facility for a period of treatment not to exceed 180 days from the date of the court order,” and rewrote the last sentence; in subsection D, deleted “obtaining the necessary positive certification and” following “observing the person and” and in clause (ii), inserted “that would offer an opportunity for improvement of the person’s condition” near the beginning and substituted “are determined to be appropriate, and (iii)” for “are deemed suitable, (iii)” at the end; in clause (iii), substituted “has sufficient capacity to” for “has the degree of competency necessary to” at the beginning of sub-clause (a), in sub-clause (b), substituted “has expressed” for “expresses” at the beginning and substituted “has agreed” for “agrees” near the middle, and inserted “and understand and adhere to conditions and requirements of the treatment and services” in sub-clause (c); and rewrote clause (iv); and in subsection E, inserted “Mandatory” at the beginning of the paragraph; and made minor stylistic changes.

The 2008 amendment by c. 782 added subsection D [now subsection K].

The 2008 amendment by c. 793 substituted clauses (i) through (vii) for “any other relevant evidence that may have been offered” and redesignated remaining subclauses accordingly, in subsections B and C.

The 2008 amendments by cc. 850 and 870 are identical, and added subsection B and subsections F through K and rewrote the section to incorporate amendments by other 2008 acts.

The 2009 amendments.

The 2009 amendments by c. 21, effective February 23, 2009, and c. 838, effective April 8, 2009, are identical and in subsection B, in the first sentence, substituted “Any employee or designee” for “An employee or a designee” and inserted “representing the community services board” and added the present third sentence.

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are identical, and added subsections C1 and C2; inserted “entered pursuant to subsection D” in the first sentence of subsection F; in subsection G, substituted “subsection D” for “this section” in the first sentence, inserted “and his family, with the person’s consent” in clause (v) of the second sentence; inserted “entered pursuant to subsection D” in the first sentence of subsection I; and inserted “or discharge plan” in the second sentence of subsection J.

The 2012 amendments.

The 2012 amendment by c. 300 added the last two sentences in subsection C; and deleted “of this section” following “subsection C1” in the first sentence of subsection C2.

The 2012 amendment by c. 451 inserted “including whether the person recently has been found unrestorably incompetent to stand trial after a hearing held pursuant to subsection E of § 19.2-169.1 ” following clause (vii) in subsection C; and deleted “of this section” following “subsection C1” in the first sentence of subsection C2.

The 2012 amendment by c. 501, in subsection C1, deleted “not to exceed the length of such order” following “mandatory outpatient treatment” near the beginning in the first sentence and added the last sentence; in subsection C2, in the first sentence, deleted “of this section” following “subsection C1,” redesignated former clause (1) as clause (i), and substituted “and (c) has agreed to abide by his discharge plan and has the ability to do so; and (ii) the ordered treatment will” for “(c) has sufficient capacity to understand the stipulations of his treatment, (d) has expressed an interest in living in the community and has agreed to abide by his discharge plan, (e) is deemed to have the capacity to comply with the discharge plan and understand and adhere to conditions and requirements of the treatment and services and (f) the ordered treatment can” and “designated provider to the person” for “designated provider; and (2) at the time of discharge, services are actually available in the community and providers of services have actually agreed to deliver the services”; in subsection D, substituted “(c) the person has agreed to abide by his treatment plan and has the ability to do so; and (d) the ordered treatment will be delivered” for “and (c) the person (A) has sufficient capacity to understand the stipulations of his treatment, (B) has expressed an interest in living in the community and has agreed to abide by his treatment plan, and (C) is deemed to have the capacity to comply with the treatment plan and understand and adhere to conditions and requirements of the treatment and services; and (d) the ordered treatment can be delivered,” inserted “to the person” following “designated provider” and deleted “and providers of the services have actually agreed to deliver the services” from the end; and inserted the present second sentence in subsection E.

The 2013 amendments.

The 2013 amendment by c. 179, in subsection C, substituted “county or city” for “city or county” in the second sentence and in the next-to-last sentence, substituted “serving the county or city” for “serving the area” and inserted “the county or city where the person resides, or the county or city where the person receives treatment” following “facility is located”; and substituted “county or city” for “city or county” in the third sentence of subsection E.

The 2014 amendments.

The 2014 amendments by cc. 499 and 538 are identical and, in subsection I, inserted “within five business days”; and in subsection J added the last sentence.

The 2016 amendments.

The 2016 amendment by c. 688 inserted the second sentence in subsection C2.

Law Review.

For note, “Law and Morality ‘Unspeakable Justice’: The Oswaldo Martinez Case and the Failure of the Legal System to Adequately Provide for Incompetent Defendants,” see 48 Wm. & Mary L. Rev. 2075 (2007).

CASE NOTES

Civil rights. —

Where an arrestee was detained for a mental health evaluation after the arrestee was arrested by police officers, the arrestee’s civil rights claims against a social worker failed because only in conclusory fashion did the arrestee allege that the social worker lacked probable cause. Raub v. Bowen, 960 F. Supp. 2d 602, 2013 U.S. Dist. LEXIS 109122 (E.D. Va. 2013), dismissed, 3 F. Supp. 3d 526, 2014 U.S. Dist. LEXIS 26258 (E.D. Va. 2014).

Plaintiff’s confinement for one week in a state hospital following lawful civil commitment proceedings was not violative of the Due Process Clause. Kenny v. Warden, Richmond City Jail, 476 F. Supp. 197, 1979 U.S. Dist. LEXIS 10234 (E.D. Va. 1979) (decided under prior law).

Criteria used in de novo appeal. —

In a de novo appeal of a general district court or special justice’s determination that a person meets the requirements for involuntary commitment, the circuit court is required by § 37.2-821 to evaluate the evidence for commitment as of the date of the circuit court hearing of the de novo appeal, using the criteria of subsection C of § 37.2-817 . This conclusion is supported by § 16.1-113. Paugh v. Henrico Area Mental Health & Developmental Servs., 286 Va. 85 , 743 S.E.2d 277, 2013 Va. LEXIS 77 (2013) (pursuant to the legislative summary the 2020 amendments to § 37.2-821 by Acts 2020, c. 1175 were in response to this decision).

Criteria used in de novo appeal. —

In a de novo appeal of a general district court or special justice’s determination that a person meets the requirements for involuntary commitment, the circuit court is required by § 37.2-821 to evaluate the evidence for commitment as of the date of the circuit court hearing of the de novo appeal, using the criteria of subsection C of § 37.2-817 . This conclusion is supported by § 16.1-113. Paugh v. Henrico Area Mental Health & Developmental Servs., 286 Va. 85 , 743 S.E.2d 277, 2013 Va. LEXIS 77 (2013) (pursuant to the legislative summary the 2020 amendments to § 37.2-821 by Acts 2020, c. 1175 were in response to this decision).

§ 37.2-817. (Effective July 1, 2022) Involuntary admission and mandatory outpatient treatment orders.

  1. The district court judge or special justice shall render a decision on the petition for involuntary admission after the appointed examiner has presented the report required by § 37.2-815 , and after the community services board that serves the county or city where the person resides or, if impractical, where the person is located has presented a preadmission screening report with recommendations for that person’s placement, care, and treatment pursuant to § 37.2-816 . These reports, if not contested, may constitute sufficient evidence upon which the district court judge or special justice may base his decision. The examiner, if not physically present at the hearing, and the treating physician at the facility of temporary detention shall be available whenever possible for questioning during the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1 .
  2. Any employee or designee of the local community services board, as defined in § 37.2-809 , representing the community services board that prepared the preadmission screening report shall attend the hearing in person or, if physical attendance is not practicable, shall participate in the hearing through a two-way electronic video and audio or telephonic communication system as authorized in § 37.2-804.1 . Where a hearing is held outside of the service area of the community services board that prepared the preadmission screening report, and it is not practicable for a representative of the community services board that prepared the preadmission screening report to attend or participate in the hearing, arrangements shall be made by the community services board that prepared the preadmission screening report for an employee or designee of the community services board serving the area in which the hearing is held to attend or participate on behalf of the community services board that prepared the preadmission screening report. The employee or designee of the local community services board, as defined in § 37.2-809 , representing the community services board that prepared the preadmission screening report or attending or participating on behalf of the community services board that prepared the preadmission screening report shall not be excluded from the hearing pursuant to an order of sequestration of witnesses. The community services board that prepared the preadmission screening report shall remain responsible for the person subject to the hearing and, prior to the hearing, shall send the preadmission screening report through certified mail, personal delivery, facsimile with return receipt acknowledged, or other electronic means with documented acknowledgment of receipt to the community services board attending the hearing. Where a community services board attends the hearing on behalf of the community services board that prepared the preadmission screening report, the attending community services board shall inform the community services board that prepared the preadmission screening report of the disposition of the matter upon the conclusion of the hearing. In addition, the attending community services board shall transmit the disposition through certified mail, personal delivery, facsimile with return receipt acknowledged, or other electronic means with documented acknowledgment of receipt.At least 12 hours prior to the hearing, the court shall provide to the community services board that prepared the preadmission screening report the time and location of the hearing. If the representative of the community services board that prepared the preadmission screening report will be present by telephonic means, the court shall provide the telephone number to the community services board. If a representative of a community services board will be attending the hearing on behalf of the community services board that prepared the preadmission screening report, the community services board that prepared the preadmission screening report shall promptly communicate the time and location of the hearing and, if the representative of the community services board attending on behalf of the community services board that prepared the preadmission screening report will be present by telephonic means, the telephone number to the attending community services board.
  3. After observing the person and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any examiner’s certification, (v) any health records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, including whether the person recently has been found unrestorably incompetent to stand trial after a hearing held pursuant to subsection E of § 19.2-169.1 , if the judge or special justice finds by clear and convincing evidence that (a) the person has a mental illness and there is a substantial likelihood that, as a result of mental illness, the person will, in the near future, (1) 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 (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and (b) all available less restrictive treatment alternatives to involuntary inpatient treatment, pursuant to subsection D, that would offer an opportunity for the improvement of the person’s condition have been investigated and determined to be inappropriate, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to a facility for a period of treatment not to exceed 30 days from the date of the court order. Such involuntary admission shall be to a facility designated by the community services board that serves the county or city in which the person was examined as provided in § 37.2-816 . If the community services board does not designate a facility at the commitment hearing, the person shall be involuntarily admitted to a facility designated by the Commissioner. Upon the expiration of an order for involuntary admission, the person shall be released unless (A) he is involuntarily admitted by further petition and order of a court, which shall be for a period not to exceed 180 days from the date of the subsequent court order, (B) he makes application for treatment on a voluntary basis as provided for in § 37.2-805 , or (C) he is ordered to mandatory outpatient treatment following a period of inpatient treatment. At any time prior to the discharge of a person who has been involuntarily admitted pursuant to this subsection, the person, the person’s treating physician, a family member or personal representative of the person, or the community services board serving the county or city where the facility is located, the county or city where the person resides, or the county or city where the person will receive treatment following discharge may file a motion with the court for a hearing to determine whether such person should be ordered to mandatory outpatient treatment following a period of inpatient treatment pursuant to subsection C1 or D upon discharge if such person, on at least two previous occasions within 36 months preceding the date of the hearing, has been (I) involuntarily admitted pursuant to this section or (II) the subject of a temporary detention order and voluntarily admitted himself in accordance with subsection B of § 37.2-814 , except that such 36-month period shall not include any time during which the person was receiving inpatient psychiatric treatment or was incarcerated, as established by evidence admitted at the hearing. A district court judge or special justice shall hold the hearing within 72 hours after receiving the motion for a hearing to determine whether the person should be ordered to mandatory outpatient treatment following a period of involuntary inpatient treatment; however, if the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held by the close of business on the next day that is not a Saturday, Sunday, or legal holiday. The district court judge or special justice may enter an order for a period of mandatory outpatient treatment following a period of involuntary inpatient treatment upon finding that the person meets the criteria set forth in subsection C1.
  4. After observing the person and considering (i) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any examiner’s certification, (v) any health records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, if the judge or special justice finds by clear and convincing evidence that (a) the person 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, (1) 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 (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs; (b) less restrictive alternatives to involuntary inpatient treatment that would offer an opportunity for improvement of his condition have been investigated and are determined to be appropriate, as reflected in the initial outpatient treatment plan prepared in accordance with subsection F; (c) the person has the ability to adhere to the mandatory outpatient treatment plan; and (d) the ordered treatment will be delivered on an outpatient basis by the community services board or designated provider to the person, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to mandatory outpatient treatment. Less restrictive alternatives shall not be determined to be appropriate unless the services are actually available in the community. The duration of mandatory outpatient treatment shall be determined by the court based on recommendations of the community services board but shall not exceed 180 days; in prescribing the terms of the order, including its length, the judge or special justice shall consider the impact on the person’s opportunities and obligations, including education and employment. Upon expiration of an order for mandatory outpatient treatment, the person shall be released from the requirements of the order unless the order is continued in accordance with § 37.2-817.4 .
  5. Mandatory outpatient treatment may include day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to Chapter 11 (§ 37.2-1100 et seq.), or other appropriate course of treatment as may be necessary to meet the needs of the person. Mandatory outpatient treatment shall not include the use of restraints or physical force of any kind in the provision of the medication. The community services board that serves the county or city in which the person resides shall recommend a specific course of treatment and programs for the provision of mandatory outpatient treatment.
  6. Any order for mandatory outpatient treatment entered pursuant to subsection D shall include an initial mandatory outpatient treatment plan developed by the community services board that completed the preadmission screening report. The plan shall, at a minimum, (i) identify the specific services to be provided, (ii) identify the provider who has agreed to provide each service, (iii) describe the arrangements made for the initial in-person appointment or contact with each service provider, and (iv) include any other relevant information that may be available regarding the mandatory outpatient treatment ordered. The order shall require the community services board to monitor the implementation of the mandatory outpatient treatment plan and the person’s progress and adherence to the initial mandatory outpatient treatment plan.
  7. Prior to discharging a person to mandatory outpatient treatment in accordance with an order for mandatory outpatient treatment following a period of involuntary inpatient treatment entered pursuant to subsection C1 or no later than five days, excluding Saturdays, Sundays, or legal holidays, after an order for mandatory outpatient treatment has been entered pursuant to subsection D, the community services board where the person resides that is responsible for monitoring the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan shall file a comprehensive mandatory outpatient treatment plan. The comprehensive mandatory outpatient treatment plan shall (i) identify the specific type, amount, duration, and frequency of each service to be provided to the person; (ii) identify the provider that has agreed to provide each service included in the plan; (iii) certify that the services are the most appropriate and least restrictive treatment available for the person; (iv) certify that each provider has complied and continues to comply with applicable provisions of the Department’s licensing regulations; (v) be developed with the fullest possible involvement and participation of the person and his family, with the person’s consent, and reflect his preferences to the greatest extent possible to support his recovery and self-determination, including incorporating any preexisting crisis plan or advance directive of the person; (vi) specify the particular conditions to which the person shall be required to adhere; and (vii) describe (a) how the community services board shall monitor the person’s progress and adherence to the plan and (b) any conditions, including scheduled meetings or continued adherence to medication, necessary for mandatory outpatient treatment to be appropriate for the person. The community services board shall submit the comprehensive mandatory outpatient treatment plan to the court for approval. Upon approval by the court, the comprehensive mandatory outpatient treatment plan shall be filed with the court and incorporated into the order of mandatory outpatient treatment entered pursuant to subsection C1 or D, as appropriate. A copy of the comprehensive mandatory outpatient treatment plan shall be provided to the person by the community services board upon approval of the comprehensive mandatory outpatient treatment plan by the court.
  8. If the community services board responsible for developing a comprehensive mandatory outpatient treatment plan pursuant to subsection C1 or D determines that the services necessary for the treatment of the person’s mental illness are not available or cannot be provided to the person in accordance with the order for mandatory outpatient treatment, it shall petition the court for rescission of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment in accordance with the provisions of § 37.2-817.2 .
  9. Upon entry of any order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection C1 or mandatory outpatient treatment entered pursuant to subsection D, the clerk of the court shall provide a copy of the order to the person who is the subject of the order, to his attorney, and to the community services board required to monitor the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan. The community services board shall acknowledge receipt of the order to the clerk of the court on a form established by the Office of the Executive Secretary of the Supreme Court and provided by the court for this purpose within five business days.
  10. The court may transfer jurisdiction of the case to the district court where the person resides at any time after the entry of the mandatory outpatient treatment order. The community services board responsible for monitoring the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan shall remain responsible for monitoring the person’s progress and adherence to the plan until the community services board serving the locality to which jurisdiction of the case has been transferred acknowledges the transfer and receipt of the order to the clerk of the court on a form established by the Office of the Executive Secretary of the Supreme Court and provided by the court for this purpose. The community services board serving the locality to which jurisdiction of the case has been transferred shall acknowledge the transfer and receipt of the order within five business days.
  11. Any 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.

C1. In an order for involuntary admission pursuant to subsection C, the judge or special justice may also order that, upon discharge from inpatient treatment, the person adhere to a comprehensive mandatory outpatient treatment plan, if the judge or special justice further finds by clear and convincing evidence that (i) the person has a history of lack of adherence to treatment for mental illness that has, at least twice within the past 36 months, resulted in the person being subject to an order for involuntary admission pursuant to subsection C or being subject to a temporary detention order and then voluntarily admitting himself in accordance with subsection B of § 37.2-814 , except that such 36-month period shall not include any time during which the person was receiving inpatient psychiatric treatment or was incarcerated, as established by evidence admitted at the hearing; (ii) in view of the person’s treatment history and current behavior, the person is in need of mandatory outpatient treatment following inpatient treatment in order to prevent a relapse or deterioration that would be likely to result in the person meeting the criteria for involuntary inpatient treatment; (iii) the person has the ability to adhere to the comprehensive mandatory outpatient treatment plan; and (iv) the person is likely to benefit from mandatory outpatient treatment. The duration of the period of inpatient treatment shall be determined by the court and the maximum period of inpatient treatment shall not exceed 30 days. The duration of mandatory outpatient treatment shall be determined by the court based on recommendations of the community services board and the maximum period of mandatory outpatient treatment shall not exceed 180 days; in prescribing the terms of the order, including its length, the judge or special justice shall consider the impact on the person’s opportunities and obligations, including education and employment. The period of mandatory outpatient treatment shall begin upon discharge of the person from involuntary inpatient treatment, either upon expiration of the 30-day period or pursuant to § 37.2-837 or 37.2-838 . The treating physician and facility staff shall develop the comprehensive mandatory outpatient treatment plan in conjunction with the community services board and the person. The comprehensive mandatory outpatient treatment plan shall include all of the components described in, and shall be filed with the court and incorporated into, the order for mandatory outpatient treatment following a period of involuntary inpatient treatment in accordance with subsection G. The community services board where the person resides upon discharge shall monitor the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan. Upon expiration of the order for mandatory outpatient treatment following a period of involuntary inpatient treatment, the person shall be released unless the order is continued in accordance with § 37.2-817.4 .

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, cc. 458, 716; 2008, cc. 779, 780, 782, 793, 850, 870; 2009, cc. 21, 838; 2010, cc. 330, 461; 2012, cc. 300, 451, 501; 2013, c. 179; 2014, cc. 499, 538; 2016, c. 688; 2021, Sp. Sess. I, c. 221.

Section set out twice.

The section above is effective July 1, 2022. For the version of this section effective until July 1, 2022, see the preceding section, also numbered § 37.2-817 .

Editor’s note.

Acts 2021, Sp. Sess., c. 221, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2022.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 221, effective July 1, 2022, rewrote the section.

§ 37.2-817.1. (Effective until July 1, 2022) Monitoring mandatory outpatient treatment; petition for hearing.

  1. The community services board where the person resides shall monitor the person’s compliance with the mandatory outpatient treatment plan or discharge plan ordered by the court pursuant to § 37.2-817 . Monitoring compliance shall include (i) contacting the service providers to determine if the person is complying with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment and (ii) notifying the court of the person’s material noncompliance with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment. Providers of services identified in the plan shall report any material noncompliance to the community services board.
  2. If the community services board determines that the person materially failed to comply with the order, it shall petition the court for a review of the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment as provided in § 37.2-817.2 . The community services board shall petition the court for a review of the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment within three days of making that determination, or within 24 hours if the person is being detained under a temporary detention order, and shall recommend an appropriate disposition. Copies of the petition shall be sent to the person and the person’s attorney.
  3. If the community services board determines that the person is not materially complying with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment or for any other reason, and there is a substantial likelihood that, as a result of the person’s mental illness that the person will, in the near future, (i) 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 (ii) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, it shall immediately request that the magistrate issue an emergency custody order pursuant to § 37.2-808 or a temporary detention order pursuant to § 37.2-809 .

History. 2008, cc. 850, 870; 2010, cc. 330, 461.

Section set out twice.

The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 37.2-817.1 .

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are identical, and in subsection A, inserted “or discharge plan” in the first sentence and twice inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in the second sentence.

§ 37.2-817.1. (Effective July 1, 2022) Monitoring mandatory outpatient treatment.

  1. As used in this section, “material nonadherence” means deviation from a comprehensive mandatory outpatient treatment plan by a person who is subject to an order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection C1 of § 37.2-817 or an order for mandatory outpatient treatment pursuant to subsection D of § 37.2-817 that it is likely to lead to the person’s relapse or deterioration and for which the person cannot provide a reasonable explanation.
  2. The community services board where the person resides shall monitor the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan prepared in accordance with § 37.2-817 . Such monitoring shall include (i) contacting or making documented efforts to contact the person regarding the comprehensive mandatory outpatient treatment plan and any support necessary for the person to adhere to the comprehensive mandatory outpatient treatment plan, (ii) contacting the service providers to determine if the person is adhering to the comprehensive mandatory outpatient treatment plan and, in the event of material nonadherence, if the person fails or refuses to cooperate with efforts of the community services board or providers of services identified in the comprehensive mandatory outpatient treatment plan to address the factors leading to the person’s material nonadherence, petitioning for a review hearing pursuant to § 37.2-817 .2. Service providers identified in the comprehensive mandatory outpatient treatment plan shall report any material nonadherence and any material changes in the person’s condition to the community services board. Any finding of material nonadherence shall be based upon a totality of the circumstances.
  3. The community services board responsible for monitoring the person’s progress and adherence to the comprehensive mandatory outpatient treatment plan shall report monthly, in writing, to the court regarding the person’s and the community services board’s compliance with the provisions of the comprehensive mandatory outpatient treatment plan. If the community services board determines that the deterioration of the condition or behavior of a person who is subject to an order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection C1 of § 37.2-817 or a mandatory outpatient treatment order pursuant to subsection D of § 37.2-817 is such that there is a substantial likelihood that, as a result of the person’s mental illness, the person will, in the near future, (i) 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 (ii) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, it shall immediately request that the magistrate issue an emergency custody order pursuant to § 37.2-808 or a temporary detention order pursuant to § 37.2-809 . Entry of an emergency custody order, temporary detention order, or involuntary inpatient treatment order shall suspend but not rescind an existing order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection C1 of § 37.2-817 or a mandatory outpatient treatment order pursuant to subsection D of § 37.2-817 .

History. 2008, cc. 850, 870; 2010, cc. 330, 461; 2021, Sp. Sess. I, c. 221.

Section set out twice.

The section above is effective July 1, 2022. For the version of this section effective until July 1, 2022, see the preceding section, also numbered § 37.2-817.1 .

Editor’s note.

Acts 2021, Sp. Sess., c. 221, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2022.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 221, effective July 1, 2022, rewrote section.

§ 37.2-817.2. (Effective until July 1, 2022) Court review of mandatory outpatient treatment plan or discharge plan.

  1. The district court judge or special justice shall hold a hearing within five days after receiving the petition for review of the mandatory outpatient treatment plan or discharge plan; however, if the fifth day is a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the hearing shall be held by 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. If the person is being detained under a temporary detention order, the hearing shall be scheduled within the same time frame provided for a commitment hearing under § 37.2-814 . The clerk shall provide notice of the hearing to the person, the community services board, all treatment providers listed in the comprehensive mandatory outpatient treatment order or discharge plan, and the original petitioner for the person’s involuntary treatment. If the person is not represented by counsel, the court shall appoint an attorney to represent the person in this hearing and any subsequent hearings under §§ 37.2-817.3 and 37.2-817.4 , giving consideration to appointing the attorney who represented the person at the proceeding that resulted in the issuance of the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment. The same judge or special justice that presided over the hearing resulting in the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment need not preside at the noncompliance hearing or any subsequent hearings. The community services board shall offer to arrange the person’s transportation to the hearing if the person is not detained and has no other source of transportation.
  2. If requested by the person, the community services board, a treatment provider listed in the comprehensive mandatory outpatient treatment plan or discharge plan, or the original petitioner for the person’s involuntary treatment, the court shall appoint an examiner in accordance with § 37.2-815 who shall personally examine the person and certify to the court whether or not he has probable cause to believe that the person meets the criteria for involuntary inpatient admission or mandatory outpatient treatment as specified in subsections C, C1, C2, and D of § 37.2-817 . The examination shall include all applicable requirements of § 37.2-815 . The certification of the examiner may be admitted into evidence without the appearance of the examiner at the hearing if not objected to by the person or his attorney. If the person is not detained in an inpatient facility, the community services board shall arrange for the person to be examined at a convenient location and time. The community services board shall offer to arrange for the person’s transportation to the examination, if the person has no other source of transportation and resides within the service area or an adjacent service area of the community services board. If the person refuses or fails to appear, the community services board shall notify the court, or a magistrate if the court is not available, and the court or magistrate shall issue a mandatory examination order and capias directing the primary law-enforcement agency in the jurisdiction where the person resides to transport the person to the examination. The person shall remain in custody until a temporary detention order is issued or until the person is released, but in no event shall the period exceed eight hours.
  3. If the person fails to appear for the hearing, the court shall, after consideration of any evidence from the person, from the community services board, or from any treatment provider identified in the mandatory outpatient treatment plan or discharge plan regarding why the person failed to appear at the hearing, either (i) reschedule the hearing pursuant to subsection A, (ii) issue an emergency custody order pursuant to § 37.2-808 , or (iii) issue a temporary detention order pursuant to § 37.2-809 .
  4. After hearing the evidence regarding the person’s material noncompliance with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment and the person’s current condition, and any other relevant information referenced in subsection C of § 37.2-817 , the judge or special justice shall make one of the following dispositions:
    1. Upon finding by clear and convincing evidence that the person meets the criteria for involuntary admission and treatment specified in subsection C of § 37.2-817 , the judge or special justice shall order the person’s involuntary admission to a facility designated by the community services board for a period of treatment not to exceed 30 days;
    2. Upon finding that the person continues to meet the criteria for mandatory outpatient treatment specified in subsection C1, C2, or D of § 37.2-817, and that a continued period of mandatory outpatient treatment appears warranted, the judge or special justice shall renew the order for mandatory outpatient treatment, making any necessary modifications that are acceptable to the community services board or treatment provider responsible for the person’s treatment. In determining the appropriateness of outpatient treatment, the court may consider the person’s material noncompliance with the previous mandatory treatment order; or
    3. Upon finding that neither of the above dispositions is appropriate, the judge or special justice shall rescind the order for mandatory outpatient treatment or order authorizing discharge to mandatory outpatient treatment following inpatient treatment.Upon entry of an order for involuntary inpatient admission, transportation shall be provided in accordance with § 37.2-829 .

History. 2008, cc. 850, 870; 2009, cc. 112, 697; 2010, cc. 330, 461; 2014, cc. 691, 761.

Section set out twice.

The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 37.2-817.2 .

Editor’s note.

Acts 2014, c. 761, cl. 2 provides: “That the Governor’s Task Force on Improving Mental Health Services and Crisis Response created on December 10, 2013, by Executive Order 68 shall identify and examine issues related to the use of law enforcement in the involuntary admission process. The task force shall consider options to reduce the amount of resources needed to detain individuals during the emergency custody order period, including the amount of time spent providing transportation throughout the admission process. Such options shall include developing crisis stabilization units in all regions of the Commonwealth and contracting for retired officers to provide needed transportation. The task force shall report its findings and recommendations to the Governor and the General Assembly by October 1, 2014.”

The 2009 amendments.

The 2009 amendments by cc. 112 and 697 are identical and deleted “or 37.2-830 ” at the end of the last paragraph.

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are nearly identical, and in subsection A, inserted “or discharge plan” in the first and third sentences, and inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in the fourth and fifth sentences; in subsection B, inserted “or discharge plan” and “C1, C2” in the first sentence; inserted “or discharge plan” in subsection C; inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in the introductory language of subsection D; inserted “C1, C2, or” in subdivision D 2; and inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in subdivision D 3. Subdivision D 2 is set out in the form above at the direction of the Virginia Code Commission.

The 2014 amendments.

The 2014 amendment by c. 691, in subsection A, inserted “or day on which the court is lawfully closed” twice, and made stylistic changes; and in subsection B substituted “eight” for “four” in the last sentence.

The 2014 amendment by c. 761, in subsection B, substituted “eight” for “four” in the last sentence.

§ 37.2-817.2. (Effective July 1, 2022) Court review of mandatory outpatient treatment plan.

  1. The district court judge or special justice shall hold a hearing within five days after receiving the petition for review of the comprehensive mandatory outpatient treatment plan; however, if the fifth day is a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the hearing shall be held by 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 clerk shall provide notice of the hearing to the person, the community services board, all treatment providers listed in the comprehensive mandatory outpatient treatment order or discharge plan, and the original petitioner for the person’s involuntary treatment. If the person is not represented by counsel, the court shall appoint an attorney to represent the person in this hearing and any subsequent hearing under this section or § 37.2-817.4 , giving consideration to appointing the attorney who represented the person at the proceeding that resulted in the issuance of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment. The same judge or special justice that presided over the hearing resulting in the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment need not preside at the nonadherence hearing or any subsequent hearings. The community services board shall offer to arrange the person’s transportation to the hearing if the person is not detained and has no other source of transportation.Any of the following may petition the court for a hearing pursuant to this subsection: (i) the person who is subject to the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment; (ii) the community services board responsible for monitoring the person’s progress and adherence to the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment; (iii) a treatment provider designated in the comprehensive mandatory outpatient treatment plan; (iv) the person who originally filed the petition that resulted in the entry of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment; (v) any health care agent designated in the advance directive of the person who is the subject of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment; or (vi) if the person who is the subject of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment has been determined to be incapable of making an informed decision, the person’s guardian or other person authorized to make health care decisions for the person pursuant to § 54.1-2986 .A petition filed pursuant to this subsection may request that the court do any of the following:
    1. Enforce a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment and require the person who is the subject of the order to adhere to the comprehensive mandatory outpatient treatment plan, in the case of material nonadherence, as defined in § 37.2-817.1 ;
    2. Modify a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment or a comprehensive mandatory outpatient treatment plan due to a change in circumstances, including changes in the condition, behavior, living arrangement, or access to services of the person who is the subject to the order; or
    3. Rescind a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment.A person who is the subject of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment shall not (i) file a petition for rescission of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment unless at least 30 days have elapsed from the date on which the order was entered or (ii) file a petition for rescission of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment more than one time during any 90-day period.
  2. If requested in a petition filed pursuant to subsection A or on the court’s own motion, the court may appoint an examiner in accordance with § 37.2-815 who shall personally examine the person on or before the date of the review, as directed by the court, and certify to the court whether or not he has probable cause to believe that the person meets the criteria for mandatory outpatient treatment as specified in subsection C1 or D of § 37.2-817 , as may be applicable. The examination shall include all applicable requirements of § 37.2-815 . The certification of the examiner may be admitted into evidence without the appearance of the examiner at the hearing if not objected to by the person or his attorney. If the person is not incarcerated or receiving treatment in an inpatient facility, the community services board shall arrange for the person to be examined at a convenient location and time. The community services board shall offer to arrange for the person’s transportation to the examination if the person has no other source of transportation and resides within the service area or an adjacent service area of the community services board. If the person refuses or fails to appear, the community services board shall notify the court, or a magistrate if the court is not available, and the court or magistrate shall issue a mandatory examination order and capias directing the primary law-enforcement agency in the jurisdiction where the person resides to transport the person to the examination. The person shall remain in custody until a temporary detention order is issued or until the person is released, but in no event shall the period exceed eight hours.
  3. If the person fails to appear for the hearing, the court may, after consideration of any evidence regarding why the person failed to appear at the hearing, (i) dismiss the petition, (ii) issue an emergency custody order pursuant to § 37.2-808 , or (iii) reschedule the hearing pursuant to subsection A and issue a subpoena for the person’s appearance at the hearing and enter an order for mandatory examination, to be conducted prior to the hearing and in accordance with subsection B.
  4. After observing the person and considering (i) the recommendations of any treating or examining physician or psychologist licensed to practice in the Commonwealth, if available; (ii) the person’s adherence to the comprehensive mandatory outpatient treatment plan; (iii) any past mental health treatment of the person; (iv) any examiner’s certification; (v) any health records available; (vi) any report from the community services board; and (vii) any other relevant evidence that may have been admitted at the hearing, the judge or special justice shall make one of the following dispositions:
    1. In a hearing on any petition seeking enforcement of a mandatory outpatient treatment order, upon finding that continuing mandatory outpatient treatment is warranted, the court shall direct the person to fully comply with the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment and may make any modifications to such order or the comprehensive mandatory outpatient treatment plan that are acceptable to the community services board or treatment provider responsible for the person’s treatment. In determining the appropriateness of the outpatient treatment specified in such order and the comprehensive mandatory outpatient treatment plan, the court may consider the person’s material nonadherence to the existing mandatory treatment order.
    2. In a hearing on any petition seeking modification of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment, upon a finding that (i) one or more modifications of the order would benefit the person and help prevent relapse or deterioration of the person’s condition, (ii) the community services board and the treatment provider responsible for the person’s treatment are able to provide services consistent with such modification, and (iii) the person is able to adhere to the modified comprehensive mandatory outpatient treatment plan, the court may order such modification of the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment or the comprehensive mandatory outpatient treatment plan as the court finds appropriate.
    3. In a hearing on any petition filed to enforce, modify, or rescind a mandatory outpatient treatment order, upon finding that mandatory outpatient treatment is no longer appropriate, the court may rescind the order.
  5. The judge or special justice may schedule periodic status hearings for the purpose of obtaining information regarding the person’s progress while the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment remains in effect. The clerk shall provide notice of the hearing to the person who is the subject of the order and the community services board responsible for monitoring the person’s condition and adherence to the plan. The person shall have the right to be represented by counsel at the hearing, and if the person does not have counsel the court shall appoint an attorney to represent the person. However, status hearings may be held without counsel present by mutual consent of the parties. The community services board shall offer to arrange the person’s transportation to the hearing if the person is not detained and has no other source of transportation. During a status hearing, the treatment plan may be amended upon mutual agreement of the parties. Contested matters shall not be decided during a status hearing, nor shall any decision regarding enforcement, rescission, or renewal of the order be entered.

History. 2008, cc. 850, 870; 2009, cc. 112, 697; 2010, cc. 330, 461; 2014, cc. 691, 761; 2021, Sp. Sess. I, c. 221.

Section set out twice.

The section above is effective July 1, 2022. For the version of this section effective until July 1, 2022, see the preceding section, also numbered § 37.2-817.2 .

Editor’s note.

Acts 2021, Sp. Sess., c. 221, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2022.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 221, effective July 1, 2022, rewrote the section.

§ 37.2-817.3. (Repealed effective July 1, 2022) Rescission of mandatory outpatient treatment order.

  1. If the community services board determines at any time prior to the expiration of the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment that the person has complied with the order and no longer meets the criteria for involuntary treatment, or that continued mandatory outpatient treatment is no longer necessary for any other reason, it shall file a petition to rescind the order with the court that entered the order or to which venue has been transferred. If the court agrees with the community services board’s determination, the court shall rescind the order. Otherwise, the court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 37.2-817.2 .
  2. At any time after 30 days from entry of the mandatory outpatient treatment order or from the discharge of the person from involuntary inpatient treatment pursuant to an order authorizing discharge to mandatory outpatient treatment following inpatient treatment, the person may petition the court to rescind the order on the grounds that he no longer meets the criteria for mandatory outpatient treatment as specified in subsection C1 or D of § 37.2-817 . The court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 37.2-817 .2. The community services board required to monitor the person’s compliance with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment shall provide a preadmission screening report as required in § 37.2-816 . After observing the person, and considering the person’s current condition, any material noncompliance with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment on the part of the person, and any other relevant evidence referred to in subsection C of § 37.2-817, shall make one of the dispositions specified in subsection D of § 37.2-817.2 . The person may not file a petition to rescind the order more than once during a 90-day period.

History. 2008, cc. 850, 870; 2010, cc. 330, 461.

Section repealed effective July 1, 2022.—

This section is repealed effective July 1, 2022, by Acts 2021, Sp. Sess. I, c. 221, cl. 2.

Editor’s note.

Acts 2021, Sp. Sess., c. 221, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2022.”

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are identical, and inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in the first sentence of subsection A; and in subsection B, inserted “or from the discharge of the person from involuntary inpatient treatment pursuant to an order authorizing discharge to mandatory outpatient treatment following inpatient treatment,” and “C1 or” in the first sentence, and inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in the third and fourth sentences.

Research References.

Virginia Forms (Matthew Bender). No. 9-2011 Petition for Rescission of Mandatory Outpatient Treatment Order, et seq.

§ 37.2-817.4. (Effective until July 1, 2022) Continuation of mandatory outpatient treatment order.

  1. At any time within 30 days prior to the expiration of a mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment, the community services board that is required to monitor the person’s compliance with the order, the treating physician, or other responsible person may petition the court to continue the order for a period not to exceed 180 days.
  2. If the person who is the subject of the order and the monitoring community services board, if it did not initiate the petition, join the petition, the court shall grant the petition and enter an appropriate order without further hearing. If either the person or the monitoring community services board does not join the petition, the court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 37.2-817.2 .
  3. Upon receipt of the petition, the court shall appoint an examiner who shall personally examine the person pursuant to subsection B of § 37.2-815 . The community services board required to monitor the person’s compliance with the mandatory outpatient treatment order or order authorizing discharge to mandatory outpatient treatment following inpatient treatment shall provide a preadmission screening report as required in § 37.2-816 .
  4. If, after observing the person, reviewing the preadmission screening report and considering the appointed examiner’s certification and any other relevant evidence, including any relevant evidence referenced in subsection D of § 37.2-817 , the court shall make one of the dispositions specified in subsection D of § 37.2-817 .2. If the court finds that a continued period of mandatory outpatient treatment is warranted, it may continue the order for a period not to exceed 180 days. Any order of mandatory outpatient treatment that is in effect at the time a petition for continuation of the order is filed shall remain in effect until the disposition of the hearing.

History. 2008, cc. 850, 870; 2010, cc. 330, 461.

Section set out twice.

The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 37.2-817.4 .

The 2010 amendments.

The 2010 amendments by cc. 330 and 461 are identical, and inserted “or order authorizing discharge to mandatory outpatient treatment following inpatient treatment” in subsections A and C.

Research References.

Virginia Forms (Matthew Bender). No. 9-2008 Petition to Continue Mandatory Outpatient Treatment Order, et seq.

§ 37.2-817.4. (Effective July 1, 2022) Continuation of mandatory outpatient treatment order.

  1. At any time within 30 days prior to the expiration of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment, any person or entity that may file a petition for review of a mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection A of § 37.2-817.2 may petition the court to continue the order for a period not to exceed 180 days.
  2. If the person who is the subject of the order and the monitoring community services board, if it did not initiate the petition, join the petition, the court shall grant the petition and enter an appropriate order without further hearing. If either the person or the monitoring community services board does not join the petition, the court shall schedule a hearing and provide notice of the hearing in accordance with subsection A of § 37.2-817.2 .
  3. Upon receipt of a contested petition for continuation, the court shall appoint an examiner who shall personally examine the person pursuant to subsection B of § 37.2-817 .2. The community services board required to monitor the person’s adherence to the mandatory outpatient treatment order or order for mandatory outpatient treatment following a period of involuntary inpatient treatment shall provide a report addressing whether the person continues to meet the criteria for being subject to a mandatory outpatient treatment order pursuant to subsection D of § 37.2-817 or order for mandatory outpatient treatment following a period of involuntary inpatient treatment pursuant to subsection C1 of § 37.2-817 , as may be appropriate.
  4. If, after observing the person, reviewing the report of the community services board provided pursuant to subsection C and considering the appointed examiner’s certification and any other relevant evidence submitted at the hearing, the court finds that the person continues to meet the criteria for mandatory outpatient treatment pursuant to subsection C1 or D of § 37.2-817 , it may continue the order for a period not to exceed 180 days; in prescribing the terms of the order, including its length, the judge or special justice shall consider the impact on the person’s opportunities and obligations, including education and employment. Any order of mandatory outpatient treatment that is in effect at the time a petition for continuation of the order is filed shall remain in effect until the disposition of the hearing.

History. 2008, cc. 850, 870; 2010, cc. 330, 461; 2021, Sp. Sess. I, c. 221.

Section set out twice.

The section above is effective July 1, 2022. For the version of this section effective until July 1, 2022, see the preceding section, also numbered § 37.2-817.4 .

Editor’s note.

Acts 2021, Sp. Sess., c. 221, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2022.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 221, effective July 1, 2022, rewrote subsections A, C, and D.

§ 37.2-818. Commitment hearing for involuntary admission; recordings and records.

  1. The district court judge or special justice shall make or cause to be made a tape or other audio recording of any hearings held under this chapter, with no more than one hearing recorded per tape, and shall submit the recording to the clerk of the district court in the locality in which the hearing is held to be retained in a confidential file. The person who was the subject of the hearing shall be entitled, upon request, to obtain a copy of the tape or other audio recording of such hearing. These recordings shall be retained for at least three years from the date of the commitment hearing.
  2. Except as provided in this section and § 37.2-819 , the court shall keep its copies of recordings made pursuant to this section, relevant medical records, reports, and court documents pertaining to the hearings provided for in this chapter confidential. The person who is the subject of the hearing may, in writing, waive the confidentiality provided herein. In the absence of such waiver, access to the dispositional order only may be provided upon court order. Any person seeking access to the dispositional order may file a written motion setting forth why such access is needed. The court may issue an order to disclose the dispositional order if it finds that such disclosure is in the best interest of the person who is the subject of the hearing or of the public. The Executive Secretary of the Supreme Court and anyone acting on his behalf shall be provided access to the court’s records upon request. Such recordings, records, reports, and documents shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
  3. After entering an order for involuntary admission or mandatory outpatient treatment, the judge or special justice shall order that copies of the relevant records of the person be released to (i) the facility in which he is placed, (ii) the community services board of the jurisdiction where the person resides, (iii) any treatment providers identified in a treatment plan incorporated into any mandatory outpatient treatment order, and (iv) any other treatment providers or entities.

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, c. 716; 2008, cc. 806, 850, 870.

Cross references.

As to health records which are excluded from the provisions of the Virginia Freedom of Information Act, see § 2.2-3705.5 .

The 2008 amendments.

The 2008 amendment by c. 806 substituted “every commitment hearing, with no more than one hearing recorded per tape” for “the commitment hearing” in the first sentence of subsection A.

The 2008 amendments by cc. 850 and 870 are identical, and rewrote the section.

Research References.

Virginia Forms (Matthew Bender). No. 9-2010 Waiver of Confidentiality — Involuntary Commitment, et seq.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 5.1.

CASE NOTES

Custody lawful where forms drafted to comply with section. —

The director of Central State Hospital lawfully accepted custody of and detained the plaintiff, where the forms comprising the record of the plaintiff’s civil commitment proceeding, at which he was found so seriously mentally ill as to be unable to care for himself, and at which alternatives to involuntary admission were found unsuitable, were drafted by the Virginia Department of Behavioral Health and Developmental Services to comply with this section. Kenny v. Warden, Richmond City Jail, 476 F. Supp. 197, 1979 U.S. Dist. LEXIS 10234 (E.D. Va. 1979) (decided under prior law).

§ 37.2-819. Order of involuntary admission or mandatory outpatient treatment forwarded to CCRE; certain voluntary admissions forwarded to CCRE; firearm background check.

  1. The order from a commitment hearing issued pursuant to this chapter for involuntary admission or mandatory outpatient treatment and the certification of any person who has been the subject of a temporary detention order pursuant to § 37.2-809 and who, after being advised by the judge or special justice that he will be prohibited from possessing a firearm pursuant to § 18.2-308.1:3 , subsequently agreed to voluntary admission pursuant to § 37.2-805 shall be filed by the judge or special justice with the clerk of the district court for the county or city where the hearing took place as soon as practicable but no later than the close of business on the next business day following the completion of the hearing.
  2. Upon receipt of any order from a commitment hearing issued pursuant to this chapter for involuntary admission to a facility, the clerk of court shall, as soon as practicable but not later than the close of business on the next following business day, certify and forward to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of the order. Upon receipt of any order from a commitment hearing issued pursuant to this chapter for mandatory outpatient treatment, the clerk of court shall, prior to the close of that business day, certify and forward to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of the order.
  3. The clerk of court shall also, as soon as practicable but no later than the close of business on the next following business day, forward upon receipt to the Central Criminal Records Exchange, on a form provided by the Exchange, certification of any person who has been the subject of a temporary detention order pursuant to § 37.2-809 , and who, after being advised by the judge or special justice that he will be prohibited from possessing a firearm pursuant to § 18.2-308.1:3 , subsequently agreed to voluntary admission pursuant to § 37.2-805 .
  4. Except as provided in subdivision A 1 of § 19.2-389 , the copy of the forms and orders sent to the Central Criminal Records Exchange pursuant to subsection B, and the forms and certifications sent to the Central Criminal Records Exchange regarding voluntary admission pursuant to subsection C, shall be kept confidential in a separate file and used only to determine a person’s eligibility to possess, purchase, or transfer a firearm. No medical records shall be forwarded to the Central Criminal Records Exchange with any form, order, or certification required by subsection B or C. The Department of State Police shall forward only a person’s eligibility to possess, purchase, or transfer a firearm to the National Instant Criminal Background Check System.

History. 1976, c. 671, § 37.1-67.3; 1979, c. 426; 1980, cc. 166, 582; 1982, c. 471; 1984, c. 277; 1985, c. 261; 1986, cc. 349, 609; 1988, c. 225; 1989, c. 716; 1990, cc. 59, 60, 728, 798; 1991, c. 636; 1992, c. 752; 1994, cc. 736, 907; 1995, cc. 489, 668, 844; 1996, cc. 343, 893; 1997, cc. 558, 921; 1998, c. 446; 2001, cc. 478, 479, 507, 658, 837; 2004, cc. 66, 1014; 2005, c. 716; 2008, cc. 751, 788; 2009, cc. 21, 838; 2014, cc. 336, 374; 2015, c. 540.

The 2008 amendments.

The 2008 amendments by cc. 751 and 788 are identical, and designated the existing provisions of this section as subsection A and added subsections B and C; and rewrote subsection A.

The 2009 amendments.

The 2009 amendments by c. 21, effective February 23, 2009, and c. 838, effective April 8, 2009, rewrote subsection A; and substituted “shall also, as soon as practicable but no later than the close of business on the next following business day” for “shall also, prior to the close of that business day” in subsection B.

The 2014 amendments.

The 2014 amendments by cc. 336 and 374 are identical, and added subsection A and redesignated the remaining subsections accordingly, and made related and stylistic changes.

The 2015 amendments.

The 2015 amendment by c. 540 substituted “Except as provided in subdivision A 1 of § 19.2-389 , the” for “The” at the beginning of subsection D.

OPINIONS OF THE ATTORNEY GENERAL

State Police may provide mental health information to FBI to determine a person’s eligibility to possess, purchase, or transfer a firearm. —

The Department of State Police has the authority to provide certain mental health information maintained in the Central Criminal Records Exchange to the Federal Bureau of Investigation, so long as it is (i) kept confidential; and (ii) used only to determine a person’s eligibility to possess, purchase or transfer a firearm. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 01-062, (4/4/02) (decided under prior law).

§ 37.2-820. Place of hearing.

The hearing provided for pursuant to §§ 37.2-814 through 37.2-819 may be conducted by the district court judge or a special justice at the convenient facility or other place open to the public provided for in § 37.2-809 , if he deems it advisable, even though the facility or place is located in a county or city other than his own. In conducting such hearings in a county or city other than his own, the judge or special justice shall have all of the authority and power that he would have in his own county or city. A district court judge or special justice of the county or city in which the facility or place is located may conduct the hearing provided for in §§ 37.2-814 through 37.2-819 .

History. 1976, c. 671, § 37.1-67.4; 1981, c. 233; 1982, c. 435; 1986, c. 134; 1995, c. 844; 2005, c. 716.

OPINIONS OF THE ATTORNEY GENERAL

Jurisdiction of special justices. —

Special justices serving the city of Norfolk have concurrent jurisdiction with special justices serving the city of Virginia Beach to conduct hearings under this section only for persons detained in Virginia Beach for whom subject matter and in personam jurisdiction have been obtained by the Norfolk special justices from a temporary detention order issued under § 37.2-809 . Further, special justices serving Virginia Beach have jurisdiction to conduct commitment hearings for all persons located in Virginia Beach, including persons detained in Virginia Beach under a temporary detention order issued in another jurisdiction. See opinion of Attorney General to Judith Dockery, Esq., Special Justice, City of Virginia Beach, 08-014, 2008 Va. AG LEXIS 9 (4/1/08).

§ 37.2-821. Appeal of involuntary admission or certification order.

  1. Any person involuntarily admitted to an inpatient facility or ordered to mandatory outpatient treatment pursuant to §§ 37.2-814 through 37.2-819 or certified as eligible for admission pursuant to § 37.2-806 shall have the right to appeal the order to the circuit court in the jurisdiction where he was involuntarily admitted or ordered to mandatory outpatient treatment or certified or where the facility to which he was admitted is located. Choice of venue shall rest with such person. The court may transfer the case upon a finding that the other forum is more convenient. The clerk of the court from which an appeal is taken shall immediately transmit the record to the clerk of the appellate court. The clerk of the circuit court shall provide written notification of the appeal to the petitioner in the case in accordance with procedures set forth in § 16.1-112. No appeal bond or writ tax shall be required, and the appeal shall proceed without the payment of costs or other fees. Costs may be recovered as provided for in § 37.2-804 .
  2. An appeal shall be filed within 10 days from the date of the order and shall be given priority over all other pending matters before the court and heard as soon as possible, notwithstanding § 19.2-241 regarding the time within which the court shall set criminal cases for trial. A petition for or the pendency of an appeal shall not suspend any order unless so ordered by a judge or special justice; however, a person may be released after a petition for or during the pendency of an appeal pursuant to § 37.2-837 or 37.2-838 . If the person is released during the pendency of an appeal, the appeal shall be in accordance with the provisions set forth in §§ 37.2-844 and 37.2-846 .
  3. The appeal shall be heard de novo in accordance with the provisions set forth in §§ 37.2-802 , 37.2-804 , 37.2-804.1 , 37.2-804.2 , and 37.2-805 and (i) § 37.2-806 or (ii) §§ 37.2-814 through 37.2-819 , except that the court in its discretion may rely upon the evaluation report in the commitment hearing from which the appeal is taken instead of requiring a new evaluation pursuant to § 37.2-815 . Any order of the circuit court shall not extend the period of involuntary admission or mandatory outpatient treatment set forth in the order appealed from.
  4. An order continuing the involuntary admission shall be entered only if the criteria in § 37.2-817 are met at the time the appeal is heard.
  5. Upon a finding by the court that the appellant no longer meets the criteria for involuntary admission or mandatory outpatient treatment, the court shall not dismiss the Commonwealth’s petition but shall reverse the order of the district court.
  6. The person so admitted or certified shall be entitled to trial by jury. Seven persons from a panel of 13 shall constitute a jury.
  7. If the person is not represented by counsel, the judge shall appoint an attorney to represent him. Counsel so appointed shall be paid a fee of $75 and his necessary expenses. The order of the court from which the appeal is taken shall be defended by the attorney for the Commonwealth.

History. 1977, c. 355, § 37.1-67.6; 1979, c. 204; 1980, c. 176; 1985, c. 106; 1990, c. 274; 2005, c. 716; 2006, c. 486; 2008, cc. 850, 870; 2010, cc. 544, 591; 2020, cc. 298, 1175.

The 2006 amendments.

The 2006 amendment by c. 486 inserted the subsection designations and the second sentence in subsection B.

The 2008 amendments.

The 2008 amendments by cc. 850 and 870 are identical, and in subsection A, inserted “to an inpatient facility or ordered to mandatory outpatient treatment” and “or ordered to mandatory outpatient treatment” in the first sentence.

The 2010 amendments.

The 2010 amendments by cc. 544 and 591 are identical, and in subsection A, substituted “such person” for “the party noting the appeal” in the second sentence and “10 days” for “30 days” in the fourth sentence and inserted the present fifth sentence; and in subsection B, in the first sentence, substituted “§§ 37.2-802 , 37.2-804 , 37.2-804.1 , 37.2-804.2 , and 37.2-805 , and (i) § 37.2-806 or” for “§ 37.2-806 or this article” and added clause (ii), deleted the former second sentence and inserted the present second sentence.

The 2020 amendments.

The 2020 amendment by c. 298, in subsection A, deleted the fourth and fifth sentences, added the first paragraph of subsection B and redesignated the former paragraphs of subsection B as new subsections C, D and F; and redesignated former subsection C as subsection G.

The 2020 amendment by c. 1175, inserted subsection E.

CASE NOTES

Patient to be evaluated as of date of circuit court hearing. —

In a de novo appeal of a general district court or special justice’s determination that a person meets the requirements for involuntary commitment, the circuit court is required by § 37.2-821 to evaluate the evidence for commitment as of the date of the circuit court hearing of the de novo appeal, using the criteria of subsection C of § 37.2-817 . This conclusion is supported by § 16.1-113. Paugh v. Henrico Area Mental Health & Developmental Servs., 286 Va. 85 , 743 S.E.2d 277, 2013 Va. LEXIS 77 (2013) (pursuant to the legislative summary the 2020 amendments to this section by Acts 2020, c. 1175 were in response to this decision).

OPINIONS OF THE ATTORNEY GENERAL

Appeal to Supreme Court. —

A person aggrieved by a decision of the circuit court on appeal from a commitment hearing may petition for appeal to the Virginia Supreme Court under the general appeal provisions of Title 8.01. A circuit court judge has no affirmative duty to inform the individual committed of the right to such an appeal. When an individual chooses to appeal a civil commitment order to the Supreme Court, a circuit court judge must appoint an attorney for the individual if he does not have privately retained counsel. See opinion of Attorney General to The Honorable Lon E. Farris, Judge, Thirty-First Judicial Circuit of Virginia, 04-091, 2006 Va. AG LEXIS 54 (4/28/06).

§ 37.2-822. Treatment of person admitted while appeal is pending.

Whenever the director of any facility reasonably believes that treatment is necessary to protect the life, health, or safety of a person, treatment may be given during the period allowed for any appeal unless prohibited by order of a circuit court in the county or city wherein the appeal is pending.

History. Code 1950, §§ 37-71.2, 37-204.1; 1964, c. 322; 1968, c. 477, § 37.1-85; 1972, c. 639; 2005, c. 716.

§ 37.2-823. Examination of admission papers by director; examination of persons admitted.

  1. Upon the receipt of any order for admission of any person, the director of the facility shall immediately examine the admission papers and, if they are found to be in substantial compliance with the law, he shall forthwith admit the person to the facility.
  2. Any person presented for admission to a facility shall be examined within 24 hours after arrival by one or more of the physicians on the facility’s staff. If the examination reveals that there is sufficient cause to believe that the person has mental illness, he shall be retained at the facility; but if the examination reveals insufficient cause, the person shall be returned to the locality in which the petition was initiated or in which the person resides.
  3. The Board shall adopt regulations to institute preadmission screening to prevent inappropriate admissions to state facilities.

History. Code 1950, §§ 37-86.2, 37-90; 1950, pp. 908, 910; 1968, c. 477, §§ 37.1-68, 37.1-70; 1970, c. 673; 1972, c. 639; 1976, c. 671; 1980, c. 582; 2005, c. 716.

Law Review.

For note on the Virginia procedure for commitment and release of persons acquitted by reason of insanity, see 11 Wm. & Mary L. Rev. 185 (1969).

For note on the constitutional perspective of involuntary civil commitment, see 30 Wash. & Lee L. Rev. 646 (1973).

CASE NOTES

Custody lawful where forms drafted to comply with § 37.1-67.3 [now § 37.2-814 ]. —

The director of Central State Hospital lawfully accepted custody of and detained the plaintiff, where the forms comprising the record of the plaintiff’s civil commitment proceeding, at which he was found so seriously mentally ill as to be unable to care for himself, and at which alternatives to involuntary admission were found unsuitable, were drafted by the Virginia Department of Behavioral Health and Developmental Services to comply with § 37.1-67.3.Kenny v. Warden, Richmond City Jail, 476 F. Supp. 197, 1979 U.S. Dist. LEXIS 10234 (E.D. Va. 1979) (decided under prior law).

§ 37.2-824. Periodic review of all persons for purposes of retention.

The director of a state facility shall conduct a review of the progress of each person admitted to the facility at intervals of 30, 60, and 90 days after admission of the person, and every six months thereafter to determine whether the person should be retained at the state facility. A record shall be kept of the findings of each review in the state facility’s file on the person.

History. 1974, c. 66, § 37.1-84.2; 1976, c. 671; 2005, c. 716.

§ 37.2-825. Admission raises no presumption of legal incapacity.

The admission of any person to a facility shall not, of itself, create a presumption of legal incapacity.

History. 1968, c. 477, § 37.1-87; 1997, c. 801; 2005, c. 716.

§ 37.2-826. Disposition of nonresidents.

If it appears that the person examined has a mental illness and is not a resident of the Commonwealth, the same proceedings shall be had with regard to him as if he were a resident of the Commonwealth, and, if he is admitted to a state facility under these proceedings, a statement of the fact of his nonresidence and of the place of his domicile or residence or from where he came, as far as known, shall accompany any petition respecting him. The Commissioner shall, as soon as practicable, cause him to be returned to his family or friends, if known, or the proper authorities of the state or country from which he came, if ascertained and such return is deemed expedient by the Commissioner.

History. Code 1950, § 37-91; 1950, p. 910; 1968, c. 477, § 37.1-91; 1976, c. 671; 2005, c. 716.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 4.

CASE NOTES

No bond is required as to a nonresident insane person. Watkins v. Hall, 161 Va. 924 , 172 S.E. 445 , 1934 Va. LEXIS 314 (1934) (applying a former section in a case involving a nonresident insane person who had been confined in a private sanitarium).

§ 37.2-827. Repealed by Acts 2021, Sp. Sess. I, c. 244, cl. 1, effective July 1, 2021.

Editor’s note.

Former § 37.2-827 , pertaining to the admission of aliens to state facilities, derived from Code 1950, § 27-91.1; 1950, § 37-91.1; 1950, p. 911; 1968, c. 477, § 37.1-92; 2005, c. 716.

§ 37.2-828. Receiving and maintaining federal prisoners in state facilities.

The Commissioner is authorized to enter into a contract with the United States, through the Director of the United States Bureau of Prisons or other authorized agent of the United States, for the reception, maintenance, care, and observation in state facilities, or in those designated by the Commissioner for the purpose, of any persons charged with a crime in the courts of the United States sitting in Virginia and committed by the courts to the state facilities for those purposes. All persons so admitted shall remain subject to the jurisdiction of the court by whom they were committed, and they may be returned to that court at any time for hearing or trial.

Any such contract shall require that the United States remit to the State Treasurer for each prisoner admitted specified per diem or other payments, or both, with such payments fixed by the contract.

The director of any state facility to which a prisoner of the United States is admitted shall observe the person and, as soon as possible, report in writing to the court by which he is certified or committed as to his mental condition or other matters as the court may direct.

No contract made pursuant to this section shall obligate the Commonwealth or the Commissioner to receive a federal prisoner into any state facility in which all available beds are needed for persons otherwise admitted, or in any other case where, in the opinion of the director, the admission of the prisoner would interfere with the care and treatment of other persons admitted or with the proper administration of the state facility.

History. Code 1950, § 37-98; 1950, p. 913; 1968, c. 477, § 37.1-95; 1972, c. 639; 1980, c. 582; 2005, c. 716.

Article 6. Transportation of Admitted Persons; Detention by Sheriff; Escape; Transfers.

§ 37.2-829. Transportation of person in civil admission process.

When a person has volunteered for admission pursuant to § 37.2-814 or been ordered to be admitted to a facility under §§ 37.2-815 through 37.2-821 , the judge or special justice shall determine after consideration of information provided by the person’s treating mental health professional and any involved community services board or behavioral health authority staff regarding the person’s dangerousness, whether transportation shall be provided by the sheriff or may be provided by an alternative transportation provider, including a family member or friend of the person, a representative of the community services board, a representative of the facility at which the person was detained pursuant to a temporary detention order, or other alternative transportation provider with personnel trained to provide transportation in a safe manner. If the judge or special justice determines that transportation may be provided by an alternative transportation provider, the judge or special justice may consult with the proposed alternative transportation provider either in person or via two-way electronic video and audio or telephone communication system to determine whether the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner. If the judge or special justice finds that the proposed alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the judge or special justice may order transportation by the proposed alternative transportation provider. In all other cases, the judge or special justice shall order transportation by the sheriff of the jurisdiction where the person is a resident unless the sheriff’s office of that jurisdiction is located more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place. In cases where the sheriff of the jurisdiction of which the person is a resident is more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place, it shall be the responsibility of the sheriff of the latter jurisdiction to transport the person.

If the judge or special justice determines that the person requires transportation by the sheriff, the person may be delivered to the care of the sheriff, as specified in this section, who shall transport the person to the proper facility. In no event shall transport commence later than six hours after notification to the sheriff or alternative transportation provider of the judge’s or special justice’s order.

If any state hospital has become too crowded to admit any such person, the Commissioner shall give notice of the fact to all community services boards and shall designate the facility to which sheriffs or alternative transportation providers shall transport such persons.

If an alternative transportation provider providing transportation of a person becomes unable to continue providing transportation of the person at any time after taking custody of the person, the primary law-enforcement agency for the jurisdiction in which the alternative transportation provider is located at the time he becomes unable to continue providing transportation shall take custody of the person and shall transport the person to the proper facility.

No person who provides alternative transportation pursuant to this section shall be liable to the person being transported for any civil damages for ordinary negligence in acts or omissions that result from providing such alternative transportation.

History. Code 1950, §§ 37-71, 37-79, 37-116; 1950, pp. 904, 907; 1964, c. 640; 1968, c. 477, § 37.1-71; 1970, c. 673; 1971, Ex. Sess., c. 155; 1972, c. 639; 1976, c. 671; 1980, c. 582; 1987, c. 719; 1989, cc. 334, 534; 1990, c. 94; 1992, c. 419; 1995, c. 844; 1996, c. 184; 2003, c. 151; 2004, c. 737; 2005, c. 716; 2009, cc. 112, 697; 2015, cc. 297, 308; 2020, cc. 879, 880.

The 2009 amendments.

The 2009 amendments by cc. 112 and 697 are identical and rewrote the section.

The 2015 amendments.

The 2015 amendments by cc. 297 and 308 are identical, and added the last paragraph.

The 2020 amendments.

The 2020 amendments by cc. 879 and 880 are identical, and inserted the penultimate paragraph.

Law Review.

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

OPINIONS OF THE ATTORNEY GENERAL

The 100-road-mile qualification in this section, applicable to sheriffs transporting persons certified for involuntarily admission to a hospital, applies also to magistrates directing the transportation of persons under emergency custody orders or temporary detention orders. See opinion of Attorney General to The Honorable Lenny Millholland, Sheriff for the City of Winchester, 03-084, 2003 Va. AG LEXIS 45 (10/10/03) (decided under former § 37.1-71).

§ 37.2-830. Repealed by Acts 2009, cc. 112 and 697, cl. 2.

Cross references.

Former § 37.2-830 , pertaining to custody of person ordered to be admitted for purpose of transportation, derived from Code 1950, § 37-79; 1950, p. 907; 1964, c. 640; 1968, c. 477, § 37.1-72; 1976, c. 671; 1995, c. 844; 2005, c. 716.

§ 37.2-831. Detention in jail after order of admission.

It shall be unlawful for any sheriff, sergeant, or other officer to use any jail or other place of confinement for criminals as a place of detention for any person in his custody for transportation to a facility in accordance with this chapter, unless the person’s detention therein, for a period not to exceed 24 hours, is specifically authorized by the judge or special justice who ordered the admission, except that such authority shall not be given by any judge or special justice for the Counties of Augusta, Arlington, and Fairfax and the Cities of Alexandria, Fairfax, Falls Church, Waynesboro, and Staunton.

History. Code 1950, § 37-78; 1950, p. 907; 1964, c. 640; 1968, c. 477, § 37.1-73; 1971, Ex. Sess., c. 155; 1972, c. 751; 1976, c. 671; 1979, c. 707; 2005, c. 716.

§ 37.2-832. Persons with mental illness not to be confined in cells with criminals.

In no case shall any sheriff or jailer confine any person with mental illness in a cell or room with prisoners charged with or convicted of crimes.

History. Code 1950, § 37-81; 1950, p. 908; 1968, c. 477, § 37.1-74; 1971, Ex. Sess., c. 155; 2005, c. 716.

§ 37.2-833. Escape, sickness, death, or discharge of a person ordered to be involuntarily admitted while in custody; warrant for person escaping.

If any person who has been ordered to be involuntarily admitted to a facility escapes, becomes too sick to travel, dies, or is discharged by due process of law while in the custody of a sheriff or other person, the sheriff or other person shall immediately notify the facility of that fact. If any person in the custody of a sheriff or other person pursuant to the provisions of this chapter escapes, the sheriff or other person having that person in custody shall immediately secure a warrant from any officer authorized to issue warrants charging the individual with escape from lawful custody, directing his apprehension, and stating what disposition shall be made of the person upon arrest.

History. Code 1950, § 37-85; 1950, p. 908; 1954, c. 668; 1968, c. 477, § 37.1-75; 1971, Ex. Sess., c. 155; 2005, c. 716.

Michie’s Jurisprudence.

For related discussion, see 7A M.J. Escape, § 1.

§ 37.2-834. Arrest of certain persons involuntarily admitted.

If a person involuntarily admitted to a facility escapes, the director may forthwith issue a warrant directed to any officer authorized to make arrests, who shall arrest the person and carry him back to the facility or to an appropriate state facility that is in close proximity to the jurisdictions served by the arresting officer. The officer to whom the warrant is directed may execute the same in any part of the Commonwealth.

History. Code 1950, § 37-97; 1950, p. 39; 1968, c. 477, § 37.1-76; 1972, c. 639; 1976, c. 671; 1981, c. 242; 2005, c. 716.

§ 37.2-835. Arrest without warrant.

Any officer authorized to make arrests is authorized to make an arrest under a warrant issued under the provisions of § 37.2-833 or 37.2-834 , without having the warrant in his possession, provided the warrant has been issued and the arresting officer has been advised of the issuance of the warrant by printed message or any form of wire or wireless communication containing the name of the person wanted, directing the disposition to be made of the person when apprehended, and stating the basis of the issuance of the warrant.

History. Code 1950, § 37-97.1; 1954, c. 668; 1968, c. 477, § 37.1-77; 2005, c. 716.

§ 37.2-836. Employees to accompany persons admitted voluntarily to facilities.

When application is made to the director of a facility for admission pursuant to § 37.2-805 , he may send an employee from the facility to accompany the person to the facility. If for any reason it is impracticable for an employee to do so, then the director may appoint some suitable person for the purpose, or may request the sheriff of the county or city in which the person resides to convey him to the facility. The sheriff or other person appointed for the purpose shall receive only his necessary expenses for conveying any person admitted to the facility. Expenses authorized herein shall be paid by the Department.

History. Code 1950, § 37-87; 1950, p. 909; 1968, c. 477, § 37.1-78; 1971, Ex. Sess., c. 155; 1972, c. 639; 1976, c. 671; 1980, c. 582; 2005, c. 716.

Article 7. Discharge and Transfers.

§ 37.2-837. Discharge from state hospitals or training centers, conditional release, and trial or home visits for individuals.

  1. Except for an individual receiving services in a state hospital who is held upon an order of a court for a criminal proceeding, the director of a state hospital or training center may discharge, after the preparation of a discharge plan:
    1. Any individual in a state hospital who, in his judgment, (a) is recovered, (b) does not have a mental illness, or (c) is impaired or not recovered but whose discharge will not be detrimental to the public welfare or injurious to the individual;
    2. Any individual in a state hospital who is not a proper case for treatment within the purview of this chapter; or
    3. Any individual in a training center who chooses to be discharged or, if the individual lacks the mental capacity to choose, whose legally authorized representative chooses for him to be discharged. Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no individual at a training center who is enrolled in Medicaid shall be discharged if the individual or his legally authorized representative on his behalf chooses to continue receiving services in a training center.For all individuals discharged, the discharge plan shall be formulated in accordance with the provisions of § 37.2-505 by the community services board or behavioral health authority that serves the city or county where the individual resided prior to admission or by the board or authority that serves the city or county where the individual or his legally authorized representative on his behalf chooses to reside immediately following the discharge. The discharge plan shall be contained in a uniform discharge document developed by the Department and used by all state hospitals, training centers, and community services boards or behavioral health authorities, and shall identify (i) the services, including mental health, developmental, substance abuse, social, educational, medical, employment, housing, legal, advocacy, transportation, and other services that the individual will require upon discharge into the community and (ii) the public or private agencies that have agreed to provide these services. If the individual will be housed in an assisted living facility, as defined in § 63.2-100 , the discharge plan shall identify the facility, document its appropriateness for housing and capacity to care for the individual, contain evidence of the facility’s agreement to admit and care for the individual, and describe how the community services board or behavioral health authority will monitor the individual’s care in the facility. Prior to discharging an individual pursuant to subdivision A 1 or 2 who has not executed an advance directive, the director of a state hospital or his designee shall give to the individual a written explanation of the procedures for executing an advance directive in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.) and an advance directive form, which may be the form set forth in § 54.1-2984 .
  2. The director may grant a trial or home visit to an individual receiving services in accordance with regulations adopted by the Board. The state facility granting a trial or home visit to an individual shall not be liable for his expenses during the period of that visit. Such liability shall devolve upon the relative, conservator, person to whose care the individual is entrusted while on the trial or home visit, or the appropriate local department of social services of the county or city in which the individual resided at the time of admission pursuant to regulations adopted by the State Board of Social Services.
  3. Any individual who is discharged pursuant to subdivision A 2 shall, if necessary for his welfare, be received and cared for by the appropriate local department of social services. The provision of public assistance or social services to the individual shall be the responsibility of the appropriate local department of social services as determined by regulations adopted by the State Board of Social Services. Expenses incurred for the provision of public assistance to the individual who is receiving 24-hour care while in an assisted living facility licensed pursuant to Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2 shall be the responsibility of the appropriate local department of social services of the county or city in which the individual resided at the time of admission.

History. Code 1950, § 37-94; 1950, p. 912; 1968, c. 477, § 37.1-98; 1972, c. 639; 1976, c. 671; 1977, c. 189; 1980, c. 582; 1985, c. 87; 1986, cc. 256, 309; 1993, cc. 957, 993; 1998, c. 680; 2002, cc. 62, 557, 747; 2005, c. 716; 2008, c. 263; 2012, cc. 476, 507; 2016, c. 688.

Cross references.

As to social services and public assistance provided to patients discharged from state hospitals and training centers by local social services boards, see § 63.2-1602 .

Editor’s note.

Acts 1993, cc. 957 and 993, which amended this section, provide in cl. 4: “That the provisions of this act shall be implemented to the extent funds are appropriated therefor.” See Acts 1993, c. 994, item 381 B, which relates to the extent funds have been appropriated for Acts 1993, cc. 957 and 993.

The 2008 amendments.

The 2008 amendment by c. 263 inserted “and shall identify” and clauses (i) and (ii) to the second sentence in the last paragraph in subsection A.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “Except for an individual receiving services in a state hospital who is” for “Except for a state hospital consumer” at the beginning of subsection A; substituted “individual” for “consumer” throughout the section; substituted “mental health, developmental, substance abuse” for “mental health, mental retardation, substance abuse” in clause (i), and “individual’s” for “consumer’s” near the end of the concluding paragraph of subsection A; and substituted “an individual receiving services” for “a consumer” in the first sentence, and “an individual” for “a consumer” in the second sentence of subsection B.

The 2016 amendments.

The 2016 amendment by c. 688, in subdivision 3, added “Prior to discharging an individual pursuant to subdivision A 1 or 2 who has not executed an advance directive, the director of a state hospital or his designee shall give to the individual a written explanation of the procedures for executing an advance directive in accordance with the Health Care Decisions Act (§ 54.1-2984 et seq.) and an advance directive form, which may be the form set forth in § 54.1-2984 .”

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, §§ 5, 8.

§ 37.2-838. Discharge of individuals from a licensed hospital.

The person in charge of a licensed hospital may discharge any individual involuntarily admitted who is recovered or, if not recovered, whose discharge will not be detrimental to the public welfare or injurious to the individual, or who meets other criteria as specified in § 37.2-837 . Prior to discharging any individual who has not executed an advance directive, the person in charge of a licensed hospital or his designee shall give to the individual a written explanation of the procedures for executing an advance directive in accordance with the Health Care Decisions Act (§ 54.1-2981 et seq.) and an advance directive form, which may be the form set forth in § 54.1-2984 . The person in charge of the licensed hospital may refuse to discharge any individual involuntarily admitted, if, in his judgment, the discharge will be detrimental to the public welfare or injurious to the individual. The person in charge of a licensed hospital may grant a trial or home visit to an individual in accordance with regulations adopted by the Board.

History. 1968, c. 477, § 37.1-99; 1976, c. 671; 1980, cc. 582, 583; 2005, c. 716; 2012, cc. 476, 507; 2016, c. 688.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual” for “consumer” throughout the section, and “an individual” for “a consumer” in the third sentence.

The 2016 amendments.

The 2016 amendment by c. 688 added the second sentence.

§ 37.2-839. Exchange of information between community services boards or behavioral health authorities and state facilities.

Community services boards or behavioral health authorities and state facilities may, when the individual has refused authorization, exchange the information required to prepare and implement a comprehensive individualized treatment plan, including a discharge plan as specified in subsection A of § 37.2-837 . This section shall apply to all individuals receiving services from community services boards, behavioral health authorities, and state facilities.

When an individual who is deemed suitable for discharge pursuant to subsection A of § 37.2-837 or his guardian or conservator refuses to authorize the release of information that is required to formulate and implement a discharge plan as specified in subsection A of § 37.2-837 , then the community services board or behavioral health authority may release without authorization to those service providers and human service agencies identified in the discharge plan only the information needed to secure those services specified in the plan.

The release of any other information about an individual receiving services to any agency or person not affiliated directly or by contract with community services boards, behavioral health authorities, or state facilities shall be subject to all regulations adopted by the Board or by agencies of the United States government that govern confidentiality of patient information.

History. 1985, c. 87, § 37.1-98.2; 1999, c. 764; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individuals receiving services from” for “consumers of” in the second sentence of the first paragraph, “When an individual” for “When a consumer” at the beginning of the second paragraph, and “information about an individual receiving services to any agency or person” for “consumer information to any agency or individual” near the beginning of the third paragraph.

§ 37.2-840. Transfer of individuals receiving services.

  1. The Commissioner may order the transfer of an individual receiving services from one state hospital to another or from one training center to another. When so transferred, in accordance with appropriate admission, certification, or involuntary admission criteria as provided in this chapter, the individual is hereby declared to be lawfully admitted to the state facility to which he is transferred.
  2. If the guardian, conservator, or relative of an individual receiving services in a licensed hospital refuses or is otherwise unable to provide properly for his care and treatment, the person in charge of the licensed hospital may:
    1. Apply to the Commissioner for the transfer of the individual to a state hospital, or
    2. Apply to the Director of the United States Veterans Affairs Medical Center for the transfer of the individual to the center.Upon the transfer, the state hospital or Veterans Affairs Medical Center may admit the individual under the authority of the admission or order applicable to the licensed hospital from which the individual was transferred. The transfer shall not alter any right of an individual under the provisions of Chapter 8 (§ 37.2-800 et seq.) of Title 37.2 nor shall the transfer divest a judge or special justice before whom a hearing or request therefor is pending of jurisdiction to conduct a hearing. Prior to accepting the transfer of any individual from a licensed hospital, the Commissioner shall receive from that hospital a report that indicates that the individual is in need of further hospitalization. Upon admission of an individual to a state hospital pursuant to this section, the director of the state hospital shall notify the community services board or behavioral health authority that serves the city or county where the admitted individual resides of the individual’s name and local address and of the location of the state hospital to which the individual has been admitted, provided that the individual or his guardian has authorized the release of the information.
  3. Whenever an individual is admitted by a state hospital or training center, the Commissioner, upon a recommendation by the community services board or behavioral health authority serving the individual’s county or city of residence prior to his admission to the hospital or training center, may order the transfer of the individual to any other hospital, training center, or Veterans Affairs hospital, center, or other facility or installation. Such other hospital, training center, or Veterans Affairs hospital, center, or other facility or installation may admit the individual under the authority of the admission or order applicable to the hospital or training center from which the individual was transferred. The transfer shall not alter any right of the individual under the provisions of this chapter nor shall the transfer divest a judge or special justice before whom a hearing or request therefor is pending of jurisdiction to conduct such hearing.

History. Code 1950, §§ 37-7, 37-126.1; 1950, pp. 900, 918; 1968, c. 477, §§ 37.1-48, 37.1-86, 37.1-99; 1970, c. 673, § 37.1-78.1; 1976, c. 671; 1980, cc. 582, 583; 1984, c. 174; 1986, c. 349; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “an individual receiving services” for “a consumer” in subsection A and in the introductory paragraph of subsection B; substituted “the individual” for “a consumer” in subsection A; and substituted “individual” for “consumer,” “an individual” for “a consumer,” “an individual” for “a person,” “individual” for “person,” “individual’s” for “person’s” throughout subsections B and C.

§ 37.2-841. Admission of veteran to, or transfer to or from, a Veterans Affairs hospital, center, or other facility or installation.

Whenever it appears that a person with mental illness is a veteran eligible for treatment in a Veterans’ Affairs hospital, center, or other facility or installation, the district court judge or special justice may, upon receipt of a certificate of eligibility from that hospital, center, or other facility or installation, order the person to that hospital, center, or other facility or installation, regardless of whether the person resides in Virginia. Any veteran who has been or is in a state hospital and is eligible for treatment in a Veterans Affairs hospital, center, or other facility or installation may be transferred to a Veterans Affairs hospital, center, or other facility or installation with the written consent of its manager. Any veteran admitted to a Veterans Affairs hospital, center, or other facility or installation, if he resided in Virginia prior to his admission and meets the criteria for admission to a state hospital, may be transferred to a state hospital with the written authorization of the Commissioner.

History. Code 1950, § 37-73; 1950, p. 905; 1968, c. 477, § 37.1-93; 2005, c. 716.

CASE NOTES

As to jurisdiction of federal and state courts over writs of habeas corpus for release of veterans committed by state courts to Veterans’ Administration facility, see Hall v. Verdel, 40 F. Supp. 941, 1941 U.S. Dist. LEXIS 2814 (D. Va. 1941) (decided under prior law).

§ 37.2-842. Veterans admitted or transferred to Veterans Affairs hospital, center, or other facility or installation subject to rules; power and authority of medical officer in charge.

Every veteran, after admission to a Veterans Affairs hospital, center, or other facility or installation, either upon initial admission or transfer, shall be subject to the regulations of the Veterans Affairs hospital, center, or other facility or installation, and the medical officer in charge of the Veterans Affairs hospital, center, or other facility or installation to which the veteran is admitted or transferred is vested with the same powers authorized by law to be exercised by the director of a state hospital with reference to retention, custody, trial or home visit, and discharge of the veteran so admitted or transferred.

History. Code 1950, § 37-74; 1950, p. 905; 1968, c. 477, § 37.1-94; 1972, c. 639; 2005, c. 716.

§ 37.2-843. Providing drugs or medicines for certain individuals discharged from state facilities.

When any individual is discharged from a state facility and he or the person liable for his care and treatment is financially unable to pay for or otherwise access drugs or medicines that are prescribed for him by a member of the medical staff of the state facility in order to mitigate or prevent a recurrence of the condition for which he has received care and treatment in the state facility, the Department or the community services board or behavioral health authority serving the individual’s county or city of residence may, from funds appropriated to the Department for that purpose, provide the individual with such drugs and medicines, which shall be dispensed only in accordance with law.

History. Code 1950, § 37-92.1; 1958, c. 158; 1968, c. 477, § 37.1-101; 1986, c. 349; 2005, c. 716; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “individual” for “consumer” twice, and “individual’s” for “consumer’s.”

Article 8. Testing Legality of Detention.

§ 37.2-844. Habeas corpus as means.

  1. Any person held in custody because of his mental illness may by petition for a writ of habeas corpus have the question of the legality of his detention determined by a court of competent jurisdiction. Upon the petition, after notice to the authorities of the facility or other institution in which the person is confined, the court shall determine in a courtroom of the county or city or in some other convenient public place in that county or city, whether the person has a mental illness and whether he should be detained.
  2. Any proceeding to challenge the continued secure inpatient treatment of a person held in custody as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of this title shall be conducted in accordance with § 37.2-910 .

History. Code 1950, §§ 37-122, 37-123; 1950, p. 916; 1968, c. 477, § 37.1-103; 1976, c. 671; 2003, cc. 989, 1018; 2005, c. 716.

Cross references.

As to habeas corpus generally, see §§ 8.01-654 through 8.01-668 .

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Virginia Forms (Matthew Bender). No. 6-1301 Petition for Writ of Habeas Corpus to Test Legality of Detention; No. 6-1302 Petition for Writ of Habeas Corpus Filed by Prisoner.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Habeas Corpus, §§ 1, 16.

CASE NOTES

Filing of petition. —

Petitioner did not violate any statute by filing his petition for writ of habeas corpus in the state supreme court; no showing was made that he was required to file the petition in the trial court in a case where he sought to challenge the effectiveness of his counsel for failing to timely file trial transcripts that resulted in the dismissal of his appeal of the trial court’s finding that he was a sexually violent predator subject to involuntary civil commitment. Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab., 271 Va. 4 , 624 S.E.2d 453, 2006 Va. LEXIS 12 (2006).

When commitment void. —

It is not the purpose of this article (Article 5 of Chapter 3 of former Title 37, containing sections similar to those comprising this article) to require a showing by the petitioner that he is not feebleminded in order for him to obtain a discharge, when he is illegally restrained under a void commitment. Robinson v. Winstead, 189 Va. 100 , 52 S.E.2d 118, 1949 Va. LEXIS 153 (1949) (decided under former Title 37).

Burden of proving eligibility for release. —

Both in habeas corpus proceedings and other statutory proceedings for the release of a person committed to a mental institution after his acquittal of a criminal offense on the ground of insanity, the burden of proving eligibility for release rests on the petitioner. Blalock v. Markley, 207 Va. 1003 , 154 S.E.2d 158, 1967 Va. LEXIS 169 (1967) (decided under former Title 37).

As to jurisdiction of federal and state courts over writs of habeas corpus for release of veterans committed by state court to Veterans’ Administration facility, see Hall v. Verdel, 40 F. Supp. 941, 1941 U.S. Dist. LEXIS 2814 (D. Va. 1941) (decided under former Title 37).

§ 37.2-845. Procedure when person confined in facility or other institution.

  1. If the person referenced in § 37.2-844 is held in custody and actually confined in any facility or other institution, he may file his petition in the circuit court of the county or the city in which the facility or other institution is located or in the circuit court of the county or the city adjoining the county or city in which the facility or other institution is located.
  2. Any proceeding to challenge the continued secure inpatient treatment of any person held in custody as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to § 19.2-169.3 .

History. Code 1950, § 37-123; 1950, p. 916; 1968, c. 477, § 37.1-104; 1976, c. 671; 2003, cc. 989, 1018; 2005, c. 716.

CASE NOTES

Filing of petition. —

Petitioner did not violate any statute by filing his petition for writ of habeas corpus in the state supreme court; no showing was made that he was required to file the petition in the trial court in a case where he sought to challenge the effectiveness of his counsel for failing to timely file trial transcripts that resulted in the dismissal of his appeal of the trial court’s finding that he was a sexually violent predator subject to involuntary civil commitment. Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab., 271 Va. 4 , 624 S.E.2d 453, 2006 Va. LEXIS 12 (2006).

§ 37.2-846. Procedure when person not confined in facility or other institution.

  1. In all cases, other than those provided for in § 37.2-845 , the person may file his petition in the circuit court of the county or the city in which he resides or in which he was found to have a mental illness or in which an order was entered authorizing his continued involuntary inpatient treatment, pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of this title.
  2. Any proceeding to challenge the continued secure inpatient treatment of any person held in custody as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to § 19.2-169.3 .

History. Code 1950, § 37-124; 1950, p. 916; 1968, c. 477, § 37.1-104.1; 1976, c. 671; 2003, cc. 989, 1018; 2005, c. 716.

CASE NOTES

Filing of petition. —

Petitioner did not violate any statute by filing his petition for writ of habeas corpus in the state supreme court; no showing was made that he was required to file the petition in the trial court in a case where he sought to challenge the effectiveness of his counsel for failing to timely file trial transcripts that resulted in the dismissal of his appeal of the trial court’s finding that he was a sexually violent predator subject to involuntary civil commitment. Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab., 271 Va. 4 , 624 S.E.2d 453, 2006 Va. LEXIS 12 (2006).

§ 37.2-847. Duty of attorney for Commonwealth.

In any case to test the legality of the detention of a person pursuant to this article, whether by habeas corpus or otherwise, the attorney for the Commonwealth of the county or city in which the hearing is held shall, on request of the director of the facility or other institution having or claiming custody of the person, represent the Commonwealth in opposition to any such petition, appeal, or procedure for the discharge of the person from custody.

History. Code 1950, § 37-125; 1950, p. 916; 1968, c. 477, § 37.1-104.2; 1972, c. 639; 2005, c. 716.

Chapter 9. Civil Commitment of Sexually Violent Predators.

§ 37.2-900. Definitions.

As used in this chapter, unless the context requires a different meaning:

“Commissioner” means the Commissioner of Behavioral Health and Developmental Services.

“Defendant” means any person charged with a sexually violent offense who is deemed to be an unrestorably incompetent defendant pursuant to § 19.2-169.3 and is referred for commitment review pursuant to this chapter.

“Department” means the Department of Behavioral Health and Developmental Services.

“Director” means the Director of the Department of Corrections.

“Mental abnormality” or “personality disorder” means a congenital or acquired condition that affects a person’s emotional or volitional capacity and renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others.

“Respondent” means the person who is subject of a petition filed under this chapter.

“Sexually violent offense” means a felony under (i) former § 18-54, former § 18.1-44, subdivision A 5 of § 18.2-31 , § 18.2-61 , 18.2-67.1 , or 18.2-67.2 ; (ii) § 18.2-48 (ii), 18.2-48 (iii), 18.2-63 , 18.2-64.1 , or 18.2-67.3 ; (iii) subdivision A 1 of § 18.2-31 where the abduction was committed with intent to defile the victim; (iv) § 18.2-32 when the killing was in the commission of, or attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration; (v) the laws of the Commonwealth for a forcible sexual offense committed prior to July 1, 1981, where the criminal behavior is set forth in § 18.2-67.1 or 18.2-67.2 , or is set forth in § 18.2-67.3 ; or (vi) conspiracy to commit or attempt to commit any of the above offenses.

“Sexually violent predator” means any person who (i) has been convicted of a sexually violent offense, or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3 ; and (ii) because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.

History. 1999, cc. 946, 985, § 37.1-70.1; 2001, c. 776; 2003, cc. 989, 1018; 2005, cc. 716, 914; 2006, cc. 863, 914; 2007, c. 876; 2009, cc. 740, 813, 840.

Cross references.

As to exclusion of records of the Commitment Review Committee concerning assessments of individuals subject to commitment as sexually violent predators from the provisions of the Virginia Freedom of Information Act, see §§ 2.2-3705.2 .

As to availability of court ordered psychiatric reports of criminal defendants, see § 19.2-301 .

Editor’s note.

At the direction of the Virginia Code Commission, substituted “subdivision A 5 of § 18.2-31 ” for “subdivision 5 of § 18.2-31 ” and “subdivision A 1 of § 18.2-31” for “subdivision 1 of § 18.2-31” in the definition of “Sexually violent offense” to conform to changes by Acts 2019, cc. 717 and 835.

Acts 2005, c. 914, amended former § 37.1-70.1, from which this section is derived. Pursuant to Acts 2005, c. 716, cl. 5 and § 30-152, Acts 2005, c. 914 has been given effect in this section as set out above. The 2005 amendment by c. 914, in the definition of “Sexually violent offense,” substituted “(ii) a conviction under § 18.2-67.3 where the complaining witness is less than 13 years of age; or (iii)” for “or subdivision A 1 of § 18.2-67.3 or (ii),” substituted “is set forth in” for “subdivision A 1 of” and added “where the complaining witness is less than 13 years of age” at the end of the paragraph.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 402 W, effective for the biennium ending June 30, 2022, provides: “W.1. Notwithstanding any other provision of law, upon the declaration by the Governor of a state of emergency pursuant to § 44-146.17 of the Code of Virginia in response to a communicable disease of public health threat as defined in § 44-146.16 of the Code of Virginia, the Director shall, during the duration of the declared emergency, have the authority to (i) discharge from incarceration or (ii) place into a lower level of supervision, including probation supervision, home electronic incarceration, or other forms of community corrections, any prisoner committed to the Department who has less than one year of his sentence remaining to be served prior to his scheduled release if the Director determines that (a) any such discharge or placement during the declared emergency will assist in maintaining the health, safety, and welfare of any prisoner discharged or placed or the prisoners remaining in state correctional facilities and (b) any such discharge or placement is compatible with the interests of society and public safety.

“2. The provisions of this section shall not apply to a prisoner convicted of a Class 1 felony or a sexually violent offense as defined in § 37.2-900 of the Code of Virginia.

“3. The Director shall develop procedures for implementing the provisions of this section which shall include provisions addressing reentry planning in accordance with § 53.1-32.2 of the Code of Virginia. To the extent practicable, the Director shall comply with all provisions of the Virginia Code relating to providing notice of a prisoner’s discharge; however, any failure to comply with such notice provisions shall not affect the Director’s authority to discharge a prisoner pursuant to this section.

“4. The provisions of this section shall expire on July 1, 2021.”

The 2006 amendments.

The 2006 amendments by cc. 863 and 914 are identical and, effective January 1, 2007, substituted “this chapter” for “§ 37.2-905 ” at the end of the paragraph defining “Defendant”; and in the paragraph defining “Sexually violent offense,” substituted “§ 18.2-48 (ii), 18.2-48 (iii), 18.2-63 , 18.2-64.1 , or 18.2-67.3 ” for “§ 18.2-67.3 where the complaining witness is less than 13 years of age; or” at the end of clause (ii), deleted “where the complaining witness is less than 13 years of age” at the end of clause (iii), and added clause (iv).

The 2007 amendments.

The 2007 amendment by c. 876 inserted the definitions for “Commissioner,” “Department,” and “Respondent”; and rewrote the paragraph defining “sexually violent offense,” inserting items (iii) and (iv).

The 2009 amendments.

The 2009 amendment by c. 740 made a punctuation change in the last paragraph.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in the paragraphs defining “Commissioner” and “Department.”

Law Review.

For 2006 survey article, “Criminal Law and Procedure,” see 41 U. Rich. L. Rev. 83 (2006).

For comment, “The $62 Million Question: Is Virginia’s New Center to House Sexually Violent Predators Money Well Spent?,” see 42 U. Rich. L. Rev. 1301 (2007).

For article, “Taking Pedophilia Seriously,” see 72 Wash & Lee L. Rev. 75 (2015).

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Virginia Forms (Matthew Bender). No. 9-2028 Order for Treatment of Incompetent Defendant—Another Form.

Michie’s Jurisprudence.

For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 3.

CASE NOTES

Constitutionality. —

Virginia’s Sexually Violent Predators Act (SVPA) [see now § 37.2-900 et seq.], was affirmed because: (1) there were proper procedures and evidentiary safeguards; (2) the SVPA satisfied the requirement that there be a finding of dangerousness either to one’s self or to others; and (3) proof of dangerousness and lack of control was linked to the condition of the person. Furthermore, the SVPA was a non-punitive, civil commitment statute and as such did not violate the guarantees against double jeopardy or ex post facto lawmaking. Shivaee v. Commonwealth, 270 Va. 112 , 613 S.E.2d 570, 2005 Va. LEXIS 68, cert. denied, 546 U.S. 1005, 126 S. Ct. 626, 163 L. Ed. 2d 509, 2005 U.S. LEXIS 8260 (2005) (decided under former Title 37.1).

The Civil Commitment of Sexually Violent Predators Act, § 37.2-900 et seq., does not offend minimal standards of due process because an uncounseled decision by a prisoner to refuse to cooperate with the Commonwealth’s expert during the § 37.2-904 mental health examination will not serve as an absolute bar to his right to present expert evidence during the prisoner’s commitment trial and dispositional hearing. Rather, in cases where the Commonwealth seeks to prohibit a prisoner from presenting such evidence, the court will have the discretion to allow or bar such evidence based upon its inquiry into the circumstances under which the prisoner made a decision at the time of the examination and whether the prisoner remains steadfast in the refusal to cooperate. Hood v. Commonwealth, 280 Va. 526 , 701 S.E.2d 421, 2010 Va. LEXIS 269 (2010).

Constitutional right to avoid confinement. —

Petitioner was entitled to have effective assistance of counsel to represent his during his proceedings in which he attempted to avoid involuntary civil commitment as a sexually violent predator since he had a substantial liberty interest in avoiding such confinement; accordingly, his habeas corpus petition was granted to allow for his belated appeal of the finding that he was a sexually violent predator in a case where his appeal of that finding was dismissed because his counsel did not file petitioner’s trial transcripts on time. Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab., 271 Va. 4 , 624 S.E.2d 453, 2006 Va. LEXIS 12 (2006).

Applies only to prisoners currently incarcerated for sexually violent offense. —

Trial court erred in finding that the prisoner could be civilly committed pursuant to the Sexually Violent Predators Act, as the prisoner had already completed his sentence for a rape conviction and was only being held pursuant to convictions that were not for sexually violent offenses; since the clear and unambiguous language of the Act, especially §§ 37.1-70.4 and 37.1-70.5 [see now §§ 37.2-903 and 37.2-904 ], required that he be currently held for a sexually violent offense in order to be civilly committed. Townes v. Commonwealth, 269 Va. 234 , 609 S.E.2d 1, 2005 Va. LEXIS 30 (2005) (decided under prior law).

Judgment classifying defendant as sexually violent predator and civilly committing him under Civil Commitment of Sexually Violent Predators Act was affirmed because he failed to show gross negligence or willful misconduct regarding inclusion in database of prisoners incarcerated for sexually violent offense. Although defendant was not serving an active sentence for his attempted sodomy conviction when he was included in the database of prisoners incarcerated for sexually violent offenses, he unquestionably was serving an active sentence of eight years at the time for his abduction conviction. Harris v. Commonwealth, 279 Va. 123 , 688 S.E.2d 279, 2010 Va. LEXIS 15 (2010).

“Mental abnormality or personality disorder.” —

In a case in which the Commonwealth appealed a trial court’s dismissal of its petition for the civil commitment of respondent as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent Predators Act, the Commonwealth unsuccessfully argued that the trial court erred as a matter of law because in stating that respondent had a mental abnormality or personality disorder, the trial court had necessarily found that he was likely to engage in sexually violent offenses. Considering the trial court’s statements as a whole, it was clear that in stating that respondent had a mental abnormality or personality disorder, the trial court was not using those terms as dispositive of whether that disorder made him likely to engage in sexually violent acts; the trial court treated those two findings as distinct considerations, and that was consistent with the analysis the Supreme Court of Virginia had applied in other cases. Commonwealth v. Squire, 278 Va. 746 , 685 S.E.2d 631, 2009 Va. LEXIS 107 (2009).

Interstate transfers. —

Because defendant had been adjudicated a sexually violent predator under the Sexually Violent Predators Act, § 37.2-900 et seq., defendant did not qualify for transfer under the Interstate Compact for the Supervision of Adult Offenders, § 53.1-176.1 , et seq. Commonwealth v. Blaxton, 283 Va. 518 , 722 S.E.2d 247, 2012 Va. LEXIS 42 (2012).

Burden of proof. —

In proceedings under the Sexually Violent Predators Act, § 37.2-900 et seq., it is not necessary for an expert to state with specificity that the defendant will likely engage in sexually violent acts in the future. Rather, the determination of whether the defendant is likely to engage in sexually violent acts as defined in § 37.2-900 by clear and convincing evidence is an issue of fact to be determined by the court or jury upon consideration of the whole record. DeMille v. Commonwealth, 283 Va. 316 , 720 S.E.2d 69, 2012 Va. LEXIS 13 (2012).

Evidence supported sexually violent predator finding. —

Evidence defendant may have abused young boys as many as 100 times and evidence that defendant’s personality disorder might prevent defendant from seeking treatment supported a sexually violent predator finding. Commonwealth v. Miller, 273 Va. 540 , 643 S.E.2d 208, 2007 Va. LEXIS 46 (2007).

Circuit court erred when it excluded juvenile records in a sexually violent predator proceeding under the Sexually Violent Predators Act (SVPA), § 37.2-900 et seq., because the 1996 amendment to § 16.1-306, providing retention of juvenile records for certain offenses, came into effect before the inmate’s 29th birthday, the date on which the right to record destruction would otherwise have vested. Thus, the inmate did not have a due process right under the Fourteenth Amendment to the U.S. Constitution to have his juvenile records destroyed and considered inadmissible in the SVPA proceedings. Commonwealth v. Garrett, 276 Va. 590 , 667 S.E.2d 739, 2008 Va. LEXIS 116 (2008).

Defendant’s commitment to the Department of Mental Health, Mental Retardation and Substance Abuse Services [now the Department of Behavioral Health and Substance Abuse Services] after it was found that he met the definition of a sexually violent predator under the Sexually Violent Predators Act, was appropriate because a psychologist’s opinions were not speculative and unreliable as a matter of law. The psychologist did not base his opinion on the inference that defendant committed the offense dismissed by nolle prosequi; his opinions that defendant suffered from pedophilia and from a personality disorder, as well as his opinion that defendant was a sexually violent predator, were supported by defendant’s prior convictions for sexual offenses against children and by trial evidence. Boyce v. Commonwealth, 279 Va. 644 , 691 S.E.2d 782, 2010 Va. LEXIS 46 (2010).

Circuit court’s finding that defendant was a sexually violent predator in need of treatment in a secure facility was supported by clear and convincing evidence. While neither psychologist was able to opine that the sexual offenses the offender was likely to commit in the future would be sexually violent acts as defined in § 37.2-900 , they were clear that the random, brutal nature of the rape defendant committed and other elements of his history were significant factors in their determination that the likelihood that he would reoffend was higher than the actuarial data suggested. DeMille v. Commonwealth, 283 Va. 316 , 720 S.E.2d 69, 2012 Va. LEXIS 13 (2012).

Evidence does not support sexually violent predator finding. —

In a case in which the Commonwealth appealed a trial court’s dismissal of its petition for the civil commitment of respondent as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent Predators Act, the Commonwealth unsuccessfully challenged the trial court’s finding, arguing that the exhibits and uncontradicted testimony of two experts left the trial court with the only reasonable conclusion that defendant was a sexually violent predator. The opinion of experts was not dispositive, and, as shown by the record, respondent had no incidents of a sexual nature for almost 10 years, since 1999, whether he was in the community or incarcerated; that evidence suggested that his actions were, as a matter of fact, not consistent with the statistical predictors of re-offending and stood in contrast to the experts’ opinions on the likelihood of him committing future violent sexual acts. Commonwealth v. Squire, 278 Va. 746 , 685 S.E.2d 631, 2009 Va. LEXIS 107 (2009).

Sexually violent predator has diminished liberty interests. —

Sexually violent predator’s (SVP) liberty interest is a diminished one when compared to the liberty interests under review in capital cases and other criminal proceedings; a defendant in a criminal case was presumed innocent, but respondents had already been found, by clear and convincing evidence, to be “sexually violent predators,” and their onerous terms of release limited an SVP’s liberty and thus, diminish the liberty interest at issue. Harvey v. Commonwealth, 297 Va. 403 , 829 S.E.2d 534, 2019 Va. LEXIS 106 (2019).

Collateral estoppel. —

In a case in which defendant was found to be a sexually violent predator, acquittal of defendant on a rape charge in an earlier criminal case was not a finding that defendant did not engage in the attack on that victim; the finding that defendant did not rape that victim was not an actual and necessary part of disposition of that criminal case. Ellison v. Commonwealth, 273 Va. 254 , 639 S.E.2d 209, 2007 Va. LEXIS 15 (2007).

CIRCUIT COURT OPINIONS

Jurisdiction. —

Civil commitment statutes encompassed in § 37.2-900 et seq., gave the courts of Virginia subject matter to proceed with the petition for civil commitment. Commonwealth v. Duncan, 95 Va. Cir. 547, 2008 Va. Cir. LEXIS 312 (Chesapeake Dec. 4, 2008).

Applies only to prisoners currently incarcerated for sexually violent offense. —

Since, upon revocation of a prisoner’s parole the remaining six months of a weapon’s charge would be served first under § 53.1-159 , and he was then required to serve the remaining time on each of his sentences that he had not physically served, he was actively serving a sentence for purposes of the Sexually Violent Predator Act. Commonwealth v. Demille, 78 Va. Cir. 137, 2009 Va. Cir. LEXIS 9 (Fairfax County Feb. 18, 2009), aff'd, 283 Va. 316 , 720 S.E.2d 69, 2012 Va. LEXIS 13 (2012).

Applies to prisoner reincarcerated on a nonsexual offense. —

A prisoner who was reincarcerated on a nonsexual offense, but was ordered to served out a suspended rape sentence was properly retested and referred for civil commitment assessment under the Civil Commitment of Sexually Violent Predators Act, §§ 37.2-900 and 37.2-920 , although an earlier RRASOR score did not qualify the prisoner for review, because the prisoner qualified based on a score on the new Static-99 and the prisoner’s reincarceration led him to be eligible once again for review and assessment. Commonwealth v. Squire, 77 Va. Cir. 86, 2008 Va. Cir. LEXIS 277 (Greensville County Sept. 4, 2008), aff'd, 278 Va. 746 , 685 S.E.2d 631, 2009 Va. LEXIS 107 (2009).

Commitment procedures. —

Any possible civil commitment under the Sexually Violent Predators Act, §§ 37.1-70.1 to 37.1-70.19 [now § 37.2-900 et seq.], of defendant who pled guilty to forcible sodomy would not flow directly from his nolo contendere plea but, rather, from a separate civil proceeding. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

Burden of proof. —

Where the Virginia Attorney General failed to show by clear and convincing evidence that an inmate was likely to commit sexually violent acts in the future because of his mental abnormality or personality disorder, but merely offered evidence to support the proposition that, because of the inmate’s antisocial personality disorder, he was impulsive in his actions and decision making, such evidence was insufficient to satisfy the explicit requirements of this section; thus, the Attorney General’s petition to have the inmate civilly committed was denied. Kilgore ex rel. Commonwealth v. Hurst, 64 Va. Cir. 376, 2004 Va. Cir. LEXIS 178 (Norfolk Apr. 20, 2004) (decided under prior law).

Although eligibility for civil commitment under the Sexually Violent Predators Act, §§ 37.1-70.1 to 37.1-70.19 [now § 37.2-900 et seq.], is triggered by conviction of a “sexually violent crime,” civil commitment can be imposed only after testing, evaluation, a probable cause hearing, and a jury trial. No one can be civilly committed as a “sexually violent predator” unless the Commonwealth meets its burden of proof on a multitude of factors. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

In a case in which the Commonwealth sought to have defendant determined to be a sexually violent predator and, as such, subjected to civil commitment with the Virginia Department of Corrections pursuant to § 37.2-900 et seq., the two psychologists who examined defendant were qualified to examine him and to render their opinions as to whether he was a sexually violent predator according to the requirements of § 37.2-907 ; the uncontroverted evidence presented by both expert witnesses was that defendant had mental abnormality of Paraphilia Not Otherwise Specified (non-consent) as well as Antisocial Personality Disorder; and his conviction for aggravated sexual battery was a sexually violent offense within the meaning of § 37.2-900 , the Commonwealth had proven by clear and convincing evidence that defendant was convicted of a sexually violent offense and, due to a mental abnormality or personality disorder, he would find it difficult to control his predatory behavior, making him likely to engage in sexually violent acts in the future as defined by § 37.2-900 . Commonwealth v. Saylor, 75 Va. Cir. 281, 2008 Va. Cir. LEXIS 243 (Charlottesville June 26, 2008).

Admissibility of expert witness testimony. —

Expert’s opinion was admissible in a report at a proceeding to civilly commit defendant as a sexually violent predator because the expert had an adequate factual foundation to make the determination that defendant suffered from the mental abnormality of pedophilia. Further, the expert’s determination with respect to the risk that defendant would find it difficult to control defendant’s predatory behavior, which made defendant likely to engage in sexually violent acts, was proper. Commonwealth v. Reed, 89 Va. Cir. 1, 2014 Va. Cir. LEXIS 136 (Augusta County Feb. 26, 2014).

No duty to inform client of commitment process. —

Attorney had no constitutional or professional duty to inform her client about the civil commitment process under the Sexually Violent Predators Act, §§ 37.1-70.1 to 37.1-70.19 [now see § 37.2-900 et seq.]; therefore, her failure to do so did not fall below the standard of care for a criminal defense attorney representing her client in a forcible sodomy case. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

§ 37.2-900.1. Office of Sexually Violent Predator Services.

There is hereby established within the Department of Behavioral Health and Developmental Services, the Office of Sexually Violent Predator Services for the purpose of administering the duties of the Department under this chapter.

History. 2006, cc. 681, 914; 2009, cc. 813, 840.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse.”

§ 37.2-901. Civil proceeding; rights of respondents; discovery.

In hearings and trials held pursuant to this chapter, respondents shall have the following rights:

  1. To receive adequate notice of the proceeding.
  2. To be represented by counsel.
  3. To remain silent or to testify.
  4. To be present during the hearing or trial.
  5. To present evidence and to cross-examine witnesses.
  6. To view and copy all petitions and reports in the court file.In no event shall a respondent be permitted, as a part of any proceedings under this chapter, to raise challenges to the validity of his prior criminal or institutional convictions, charges, or sentences, or the computation of his term of confinement.In no event shall a respondent be permitted to raise defenses or objections based on defects in the institution of proceedings under this chapter unless such defenses or objections have been raised in a written motion to dismiss, stating the legal and factual grounds therefor, filed with the court at least 14 days before the hearing or trial.All proceedings conducted hereunder are civil proceedings. However, no discovery shall be allowed prior to the probable cause hearing. After the probable cause hearing, no discovery other than that provided in this section shall be allowed without prior leave of the court. Counsel for the respondent and any expert employed or appointed pursuant to this chapter may possess and copy the victim impact statement or presentence or postsentence report. In no event shall the respondent be permitted to retain or copy a victim impact statement or presentence or postsentence report.

History. 1999, cc. 946, 985, § 37.1-70.2; 2001, c. 776; 2003, cc. 989, 1018; 2005, cc. 716, 914; 2007, c. 876; 2009, c. 740; 2011, cc. 446, 448.

Cross references.

As to exclusion of records of the Commitment Review Committee concerning assessments of individuals subject to commitment as sexually violent predators from the provisions of the Virginia Freedom of Information Act, see §§ 2.2-3705.2 . As to availability of court ordered psychiatric reports of criminal defendants, see § 19.2-301 .

Editor’s note.

Acts 2005, c. 915, amended former § 37.1-70.2, from which this section is derived. Pursuant to § 30-152 and Acts 2005, c. 716, cl. 5, the 2005 amendment by c. 914, has been given effect in the section as set out above by substituting “criminal or institutional convictions or sentences” for “criminal sentences or institutional convictions” in the second paragraph.

The 2007 amendments.

The 2007 amendment by c. 876 in the first paragraph following subdivision 6, inserted “charges,” and added “or the computation of his term of confinement” to the end.

The 2009 amendments.

The 2009 amendment by c. 740 substituted “respondents” for “prisoners or defendants” and “respondent” for “prisoner or defendant” throughout; and added third and fifth paragraphs.

The 2011 amendments.

The 2011 amendments by cc. 446 and 448 are identical, and deleted the former next-to-last paragraph, which read: “In the event the respondent refuses to cooperate with the mental health examination required under § 37.2-904 , the court may admit evidence of such refusal and may bar the respondent from introducing his own expert psychiatric or psychological evidence.”

CASE NOTES

Constitutionality. —

Virginia’s Sexually Violent Predators Act (SVPA) [see now § 37.2-900 et seq.], was affirmed because: (1) there were proper procedures and evidentiary safeguards; (2) the SVPA satisfied the requirement that there be a finding of dangerousness either to one’s self or to others; and (3) proof of dangerousness and lack of control was linked to the condition of the person. Furthermore, the SVPA was a non-punitive, civil commitment statute and as such did not violate the guarantees against double jeopardy or ex post facto lawmaking. Shivaee v. Commonwealth, 270 Va. 112 , 613 S.E.2d 570, 2005 Va. LEXIS 68, cert. denied, 546 U.S. 1005, 126 S. Ct. 626, 163 L. Ed. 2d 509, 2005 U.S. LEXIS 8260 (2005) (decided under former Title 37.1).

In a proceeding under the Civil Commitment of Sexually Violent Predators Act, § 37.2-900 et seq., a prisoner was denied procedural due process when he was barred from presenting expert testimony because the restrictions imposed by §§ 37.2-901 and 37.2-907 were discretionary and subsection A of § 37.2-907 did not mandate that the prisoner be prohibited from presenting any expert evidence based on the prisoner’s failure to cooperate with a mental health examination as required by § 37.2-904 where the prisoner did not have the opportunity to consult with counsel before deciding whether to cooperate with the mental health examination. Hood v. Commonwealth, 280 Va. 526 , 701 S.E.2d 421, 2010 Va. LEXIS 269 (2010).

Due process does not require appointment of defense expert. —

Due Process Clause does not require the State to provide a sexually violent predator (SVP) with an expert; the SVP possesses a recognized but diminished liberty interest, the expert who issues the report is not selected by the entity responsible for prosecuting SVP cases but rather by the Department of Behavioral Health and Developmental Services, and the SVP is afforded other due process protections, such as the right to counsel. Harvey v. Commonwealth, 297 Va. 403 , 829 S.E.2d 534, 2019 Va. LEXIS 106 (2019).

Sex offender subject to supervision by the Commonwealth. —

Sex offender was subject to supervision by the Commonwealth of Virginia because the offender was found to be a sexually violent predator under the Virginia Civil Commitment of Sexually Violent Predators Act, § 37.2-900 et seq. — which was a civil, not a criminal, statutory scheme. Commonwealth v. Amerson, 281 Va. 414 , 706 S.E.2d 879, 2011 Va. LEXIS 54 (2011).

CIRCUIT COURT OPINIONS

Constitutionality. —

Although eligibility for civil commitment under the Sexually Violent Predators Act, §§ 37.1-70.1 to 37.1-70.19 [now § 37.2-900 et seq.], is triggered by conviction of a “sexually violent crime,” civil commitment can be imposed only after testing, evaluation, a probable cause hearing, and a jury trial. No one can be civilly committed as a “sexually violent predator” unless the Commonwealth meets its burden of proof on a multitude of factors. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

No duty to inform client of commitment process. —

Attorney had no constitutional or professional duty to inform her client about the civil commitment process under the Sexually Violent Predators Act, §§ 37.1-70.1 to 37.1-70.19 [now see § 37.2-900 et seq.]; therefore, her failure to do so did not fall below the standard of care for a criminal defense attorney representing her client in a forcible sodomy case. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

§ 37.2-902. Commitment Review Committee; membership.

  1. The Director shall establish a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners and defendants for the purposes of this chapter. The CRC shall be under the supervision of the Department of Corrections. Members of the CRC and any licensed psychiatrists or licensed clinical psychologists providing examinations under subsection B of § 37.2-904 shall be immune from personal liability while acting within the scope of their duties except for gross negligence or intentional misconduct.
  2. The CRC shall consist of seven members to be appointed as follows: (i) three full-time employees of the Department of Corrections, appointed by the Director; (ii) three full-time employees of the Department, appointed by the Commissioner, at least one of whom shall be a psychiatrist or psychologist licensed to practice in the Commonwealth who is skilled in the diagnosis and risk assessment of sex offenders and knowledgeable about the treatment of sex offenders; and (iii) one assistant or deputy attorney general, appointed by the Attorney General. Initial appointments by the Director and the Commissioner shall be for te