The first known legal test of the Mental Health Reform Act alleges that Virginia is failing to meet its expectations.

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

More and more people needed acute mental health treatment, staff left for better paying jobs or because they feared the coronavirus and public hospitals were filling up dangerously, leading the state to deny new admissions to five of eight adult facilities.

Representatives of private hospitals and public providers disagree on who is to blame for the crisis, as pandemic-era challenges ripple through healthcare systems. Experts and lawmakers agree that the number of public psychiatric beds — which dwarfs that of other states — is a sign that Virginia has underinvested in community services and has too few providers.

Meanwhile, patients have to go somewhere.

Many – like Giles County’s daughter – have languished in cramped and chaotic emergency departments under police surveillance, sometimes for days, delaying treatment and diverting officers from other duties, according to law enforcement and hospital officials.

The seven-page lawsuit filed in Giles County Circuit Court on Feb. 28 says the state Department of Behavioral Health and Developmental Services and the only state-run children’s psychiatric hospital, the Commonwealth Center for Children and Adolescents in Staunton, have a model of “not having or refusing to admit, detain and process” minors subject to remand orders.

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

The lawsuit is not seeking financial damages, but is asking the court to order DBHDS to follow state law and declare DBHDS’s failure or refusal to admit to assess or treat the girl unlawful.

“Our goal is to make sure children who need mental health treatment get it and get it in a timely manner,” county attorney Richard L. Chidester said in an interview Wednesday. “Everyone involved in the process would say that’s their goal too… I sympathize with the position they’re in, but someone has to bring this to a head.”

The state hospital system’s share of patients sentenced to care has fallen from around 1 in 10 in 2014, when the ‘bed of last resort’ law came into effect, to 1 in 4, the data shows. reports analyzed by Heather Zelle, Associate Director of Mental Health Policy Research at the University of Virginia’s Institute for Law, Psychiatry, and Public Policy.

The law’s thorny effects have sparked debates — and efforts for change — at the Statehouse for years, including by the bill’s author, Sen. Creigh Deeds (D-Bath), who still carries the scars of the attack that led to reform. .

Him and Del. Rob Bell (R-Charlottesville) sponsored bills this session that would have prompted private behavioral health providers to admit the same number of court-ordered admissions they accepted before the law took effect , but an intensive lobbying effort brought down the bill, The Acts said.

Private hospitals still admit the most involuntary court order patients, but mental health advocates say the law allows them to avoid the most difficult cases, knowing that a public hospital will have to accept violent and agitated patients.

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

Deeds fought to make the state hospital system a safety net for those in need, among other reforms, after a clinician failed to get treatment for his 24-year-old son before the clock expired on a court order and Austin “Gus” Deeds was discharged from the hospital while still in crisis. He attacked his father and shot himself to death hours later .

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

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

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

The lawsuit does not say why a magistrate ordered the Giles County girl into psychiatric treatment at 2 a.m. on February 21. She was then staying in a residential treatment center.

Chesterfield County Police took her to Chippenham Hospital, for evaluation and, according to the order, were then supposed to ‘take her to the Commonwealth Center for treatment’. But the Commonwealth Center “claimed it had no beds available and refused to accept” the patient, the lawsuit says.

She was held in the emergency room at Chippenham Hospital for the duration of the order: 96 hours, according to court documents. The worker at the child’s foster home in Giles County learned three days after the order was issued that a Commonwealth Center bed would likely be available after 8 a.m. the next day, according to reports. court documents. By then, however, the time she could be detained under the order had passed.

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

The Commonwealth Center has 48 beds, but only has enough staff to safely operate 18 beds, its manager, Bamford, said in an interview earlier this year. Most patients are between the ages of 12 and 14 and are often denied admission to a private facility due to aggressive behavior, she said.

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

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

Before the bed of last resort legislation, patients stayed an average of 20 to 30 days. The average length of stay has since dropped from a week to 10 days, said DBHDS spokeswoman Lauren Cunningham.

The Commonwealth Center should have 5 licensed practical nurses; he does not have it. It is budgeted for 20 direct care registered nurses; he has 10, she said.

Prevent the girl from being hospitalized in a public mental institution situation endangered the public, according to the lawsuit. The girl has previously assaulted staff and residents at the Chesterfield facility where she was staying and the facility has now refused to continue her care, Chidester said. She is receiving mental health treatment elsewhere, he said, declining to say where.

On March 3, Chesterfield County Police Chief Jeffrey S. Katz posted a photo on Facebook showing at least eight police cruisers parked outside Chippenham Hospital, each depicting a person in mental health crisis under his guard.

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

Chesterfield County police declined to comment on the Giles County case, but Brad Badgerow, the department’s mental health liaison, said officers were operating as “glorified babysitters” while an emergency clinician was looking for a bed.

“Some people sleep all the time. Some people are so restless they get amplified all the time,” he said. “They don’t get the same level of treatment sitting in an emergency department as if they were in a mental ward where they should be.”