General Assembly>Division of Legislative Services>Publications>Session Summaries>2004>Institutions for the Mentally Ill; Mental Health Generally


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Institutions for the Mentally Ill; Mental Health Generally

Passed

P HB494

Adult guardianship and conservatorship. Extends the authority to petition the circuit court to name a standby guardian or conservator or both for an incapacitated person to the child or children of an incapacitated person. Under present law, the statute only provides for the appointment of a standby guardian or conservator upon the petition of a parent or legal guardian for an incapacitated child.
Patron - Kilgore

P HB589

Emergency custody and temporary detention orders; transportation. Provides parameters for specifying the law-enforcement agency and jurisdiction to execute emergency custody orders or temporary detention orders and provide transportation of the subjects of such orders. In the case of emergency custody orders, the magistrate must specify the primary law-enforcement agency from the jurisdiction served by the community services board that designated the person to perform the evaluation to execute the order and provide transportation; however, if the community services board serves more than one jurisdiction, 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 is not yet in custody, the primary law-enforcement agency from the jurisdiction where the person is presently located. In the case of temporary detention orders, the magistrate must specify in the order the law-enforcement agency of the jurisdiction in which the person resides to execute the order and 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. The bill authorizes law-enforcement agencies to enter into agreements to facilitate the execution of temporary detention orders and provide transportation. For both the emergency custody orders and the temporary detention orders, the evaluation or treatment must be conducted immediately in accordance with state and federal law.
Patron - Janis

P HB745

Licensure conditions for certain methadone clinics; emergency. Prohibits the granting of an initial license to a provider of treatment for persons with opiate addiction through the use of the controlled substance, methadone, or other opioid replacements, if such provider is to be located within a one-half mile of a public or private day care center or public or private K-12 school, except when such service is provided by a hospital licensed by the Board of Health or the Commissioner of the Department of Mental Health, Mental retardation or Substance Abuse Services or owned or operated by an agency of the Commonwealth. Upon receiving a notice of a proposal for or an application to obtain initial licensure from a provider of treatment for persons with opiate addiction through the use of the controlled substance, methadone, or other opioid replacements, the Commissioner must, within 15 days of such receipt, notify the local governing body of and the community services board serving the jurisdiction in which the facility is to be located of such proposal or application and its proposed location. The local governing body and the community services board must submit comments to the Commissioner on the proposal or application within 30 days of the date of the notice. The local governing body must notify the Commissioner of compliance with the location restrictions and any relevant local ordinances. No applicant for a license to provide treatment for persons with opiate addiction through the use of methadone or other opioid replacements that has obtained a certificate of occupancy in accordance with the law and regulations in effect on January 1, 2004, will be required to comply with this law. No existing licensed provider will be required to comply with these provisions in any city or county in which it is currently providing treatment. Further, the location restriction will not apply to the jurisdictions located in Planning District 8, i.e., Northern Virginia. A second enactment clause provides that: the Commissioner must not grant or issue any initial license for a methadone clinic after the date of the enactment of this provision, unless the provider is in compliance with this act.
Patron - Ware, O.

P HB876

Disclosure of mental health information. Adds to the law in Title 37.1 relating to disclosure of mental health information various technical amendments to clarify (i) who may submit a bill to a third party payor; (ii) that the information on the patient must include his address and date of birth; (iii) that patient consent or authorization is required for disclosure of mental health information; and (iv) that patient consent or authorization must be in writing and must be dated and signed and must also comply with the requirements for authorization of disclosure set out in subsection G of § 32.1-127.1:03. Subsection G of § 31.2-127.1:03 requires the name of the patient, the provider and the identity of the person to whom disclosure may be made, and the nature of the information to be disclosed. This bill also sets out a procedure by which a patient may receive a review by an objective physician or clinical psychologist of whether the patient may receive a copy of a third party payors' information in those instances where the treating physician or clinical psychologist has advised the third party payor that the information would be reasonably likely to endanger the life or physical safety of the patient or another person or contains a reference to another person that would be reasonably likely to cause substantial harm to the referenced person. The standard for limiting disclosure to the patient who is the subject of the record is changed from "might adversely affect the patient's health" to "would be reasonably likely to endanger the life or physical safety of the patient or another person, or that such record makes reference to a person other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person."
Patron - O'Bannon

P HB878

Access to health records for guardians ad litem and attorneys representing minors and certain adults in court proceedings. Ensures compliance with federal regulations concerning protected health information promulgated pursuant to the Health Insurance Portability and Accountability Act while providing access to health records and information for guardians ad litem and attorneys representing minors in juvenile and domestic court proceedings, proceedings to authorize treatment for patients incapable of providing consent to treatment, persons who are subject to petitions for involuntary commitment, and respondents who are the subjects of petitions to appoint guardians and/or conservators.
Patron - O'Bannon

P HB984

Conservators and guardians. Modifies definitions of "conservator" and "guardian" to include any local or regional tax-exempt charitable organization that is established to provide conservatorial or guardian services to incapacitated persons. The tax-exempt charitable organization cannot be a provider of direct services to the incapacitated person. Currently, in addition to persons appointed by the court, local or regional programs designated by the Department for the Aging may serve as "public" conservators and guardians.
Patron - Reese

P HB1103

Conservatorship. Eliminates the authority of a conservator for an incapacitated person to seek a divorce without prior court authorization. Guardians of incapacitated persons are prohibited from seeking a change in a person's marital status without prior court approval. This bill is identical to SB 19.
Patron - Moran

P HB1237

Sexually violent predators; civil commitment. The bill requires state and local courts, clerks and agencies to provide the Commitment Review Committee with information that it requests. The prisoner must remain in secure custody pending the circuit court hearing and the date for the circuit court hearing is extended to 60 days after filing the petition from the current 30 days. The bill also provides for a minimum 30-day continuance if less than full commitment is ordered, during which time alternatives to full commitment shall be developed. The bill allows presentence and postsentence reports and victim impact statements to be used in the civil commitment process.
Patron - Griffith

P SB19

Conservatorship. Eliminates the authority of a conservator for an incapacitated person to seek a divorce without prior court authorization. Guardians of incapacitated persons are prohibited from seeking a change in a person's marital status without prior court approval. This bill is identical to HB 1103.
Patron - Puller

P SB24

Interpreters in mental commitment proceedings. Requires a judge or magistrate to appoint an interpreter for a non-English-speaking person who is the subject of or a witness in a mental commitment proceeding. Failure to appoint an interpreter when one is not reasonably available or when the person's level of English fluency cannot be determined is not a basis for dismissing the petition or voiding the order. The interpreter's compensation is paid out of the state treasury.
Patron - Marsh

P SB25

Temporary detention orders. Corrects an incorrect cross reference to appeals of temporary detention orders.
Patron - Marsh

P SB212

Inspector General for Mental Health, Mental Retardation and Substance Abuse Services. Moves the powers and duties that are currently attributed to the Office of Inspector General to the powers and duties of the Inspector General and clarifies that the Inspector General can access information related to the delivery of services to consumers operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services or served by providers outside of the state facility system, including the licensed mental health treatment units in state correctional facilities. However, the Inspector General is not given access to privileged peer review information of the providers, except privileged information relating to consumers from state facilities and the mental health treatment units in state correctional facilities. The Code Commission reviewed the legislation in the course of its revision of Title 37.1. While it recognizes the need for clarifying amendments to be made, the Code Commission takes no position on the substantive changes made. The bill also contains technical amendments.
Patron - Edwards

P SB556

Placement of committed persons and notice to community. Requires the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, prior to the siting of a new facility or the designation of an existing facility to be operated for the control, care and treatment of persons convicted of a sexually violent offense who have been referred for civil commitment, to notify the state elected officials for and the local governing body of the jurisdiction of the proposed location, designation or expansion of the facility. Upon receiving the notice, the local governing body of the jurisdiction of the proposed site or where the existing facility is located may publish a descriptive notice concerning the proposed site in a newspaper of general circulation in the jurisdiction. The Commissioner must also establish an advisory committee relating to any such facility that must consist of state and local elected officials and community organizations serving the jurisdiction in which the facility is proposed to be or is located. Upon request, the members of the advisory committee will be notified whenever the Department increases the number of beds in the relevant facility.
Patron - Marsh

P SB607

Licensure conditions for certain methadone clinics; emergency. Prohibits the granting of an initial license to a provider of treatment for persons with opiate addiction through the use of the controlled substance, methadone, or other opioid replacements, if such provider is to be located within a one-half mile of a public or private day care center or public or private K-12 school, except when such service is provided by a hospital licensed by the Board of Health or the Commissioner of the Department of Mental Health, Mental retardation or Substance Abuse Services or owned or operated by an agency of the Commonwealth. Upon receiving a notice of a proposal for or an application to obtain initial licensure from a provider of treatment for persons with opiate addiction through the use of the controlled substance, methadone, or other opioid replacements, the Commissioner must, within 15 days of such receipt, notify the local governing body of and the community services board serving the jurisdiction in which the facility is to be located of such proposal or application and its proposed location. The local governing body and the community services board must submit comments to the Commissioner on the proposal or application within 30 days of the date of the notice. The local governing body must notify the Commissioner of compliance with the location restrictions and any relevant local ordinances. No applicant for a license to provide treatment for persons with opiate addiction through the use of methadone or other opioid replacements that has obtained a certificate of occupancy in accordance with the law and regulations in effect on January 1, 2004, will be required to comply with this law. No existing licensed provider will be required to comply with these provisions in any city or county in which it is currently providing treatment. Further, the location restriction will not apply to the jurisdictions located in Planning District 8, i.e., Northern Virginia. A second enactment clause provides that: the Commissioner must not grant or issue any initial license for a methadone clinic after the date of the enactment of this provision, unless the provider is in compliance with this act.
Patron - Wampler

P SJ81

Offenders with mental illness or substance abuse disorders. Encourages the Department of Mental Health, Mental Retardation and Substance Abuse Services to provide nonfinancial assistance in developing demonstration projects designed to divert individuals with mental illness, substance abuse, and co-occurring disorders from jail or secure detention. The Department is requested to incorporate information within its web-based Internet site about such programs and continue the activities of its Forensic Work Group.
Patron - Mims

P SJ88

Offenders with mental illness and substance abuse disorders. Encourages the Department of Corrections and the Department of Juvenile Justice to include an evaluation and reporting component in any new mental health or substance abuse treatment initiative that is established for offenders in their custody.
Patron - Martin

Failed

F HB304

Licensure conditions for certain methadone clinics; emergency. Prohibits the granting of an initial license to a facility for the provision of detoxification, treatment or rehabilitation of drug addicts through the use of the controlled substance, methadone, or other such controlled substances, if such facility is to be located within a one-half mile of a public or private K-12 school. In addition, the Commissioner is required to notify the local governing body of the jurisdiction in which such facility is to be located within 15 days of receiving notice of a proposal or an application to obtain initial licensure for methadone clinics. The local governing body may submit comments on the proposal or application that may include its compliance with this provision and applicable local ordinances. Existing clinics, i.e., licensed and operating in accordance with the law and regulations in effect on January 1, 2004, are grandfathered. Three enactment clauses provide that: (i) the Board of Mental Health, Mental Retardation and Substance Abuse Services must promulgate emergency regulations; and (ii) the Commissioner must not grant or issue any initial license for a methadone clinic after the date of the enactment of this provision, unless the facility is in compliance with these provisions, notwithstanding any regulations to the contrary. This bill is incorporated into HB 745.
Patron - Fralin

F HB308

End-of-life-care decisions; guardians and agents of incapacitated persons. Provides that the court in an appointment hearing shall not deem a person suitable as guardian or conservator if the court determines that such person has a material interest in the death of the respondent. Upon court appointment, the guardian or conservator must certify in writing that he has no material interest in the death of the incapacitated person. The bill provides that no agent, guardian or other person can make the decision to withhold or withdraw artificially administered hydration or nutrition unless expressly granted such authority in an advance medical directive or other written document executed by the patient while the patient was capable of making an informed decision on such matters. The bill requires the delegation of such authority through an advance directive to be specific to the withdrawal or withholding of hydration or nutrition in order to be effective in that regard. Absence of express written delegation of authority shall give rise to the presumption of the incapacitated person's desire not to have artificially administered hydration or nutrition withheld or withdrawn. The bill prohibits health care facilities from conditioning the provision of services on the execution or existence of an advance medical directive authorizing the withholding or withdrawal of artificially administered hydration or nutrition.
Patron - Marshall, R.G.

F HB579

Emergency custody and temporary detention orders; transportation. Requires magistrates who issue either an emergency custody or temporary detention order for a person with serious mental illness to direct the transportation of that person by a single law-enforcement officer from a specified agency and jurisdiction or multiple law-enforcement officers from specified agencies and jurisdictions. This bill is incorporated into HB 589.
Patron - Hamilton

F HB588

Transportation under emergency custody and temporary detention orders. Clarifies that the transportation responsibility falls upon the law-enforcement agency in whose jurisdiction the evaluation was performed when a possibly mentally ill person is taken into custody pursuant to an emergency custody order or temporary detention order. This bill is incorporated into HB 589.
Patron - Janis

F HB738

Community services boards. Repeals language that prohibits a majority of community services board members from being elected or appointed officials, and repeals language that prohibits a locality from being represented by more than two elected or appointed officials on a Community Services Board.
Patron - Dudley

F HB813

Congregate housing services program for frail elderly individuals. Directs the Department of Social Services to establish a four-year pilot congregate housing services program for frail elderly individuals. The Department is authorized to enter into contracts with qualified service providers to establish such congregate housing facilities. The Department, in consultation with the Virginia Housing Development Authority, shall develop criteria for the selection of pilot areas, which shall include an assessment of the qualified service provider's proposal for the congregate housing facility and the area's plan for community involvement, including, but not limited to, the involvement of the local department of social services and the area agency on aging. The Department shall submit to the House Committee on Health, Welfare and Institutions and the Senate Committee on Rehabilitation and Social Services a report outlining the plan for the congregate housing services for frail elderly individuals by November 1, 2004, and operationalize the plan by March 1, 2005. The qualified service provider shall specify the type and priorities of the supportive services it will provide during the term of the contract and such services shall be related to the needs and characteristics of the residents. The qualified service provider shall establish a fee schedule for each supportive service and residents shall contribute financially toward the services, according to their ability to pay based on their income. Any fees charged shall not exceed the cost of providing the services. The Department shall determine an individual's eligibility for the congregate housing services program and the services subsidy, i.e., the sum necessary to provide supportive services to an eligible participant in excess of that individual's ability to pay for services, to be paid by the Department. The Department shall evaluate and report on the impact and effectiveness of the congregate housing services program for frail elderly individuals.
Patron - Eisenberg

F HB1458

Employee background checks in mental health, mental retardation and substance abuse services programs. Permits providers of mental health, mental retardation and substance abuse services to hire for compensated employment a person who has been convicted of a crime not involving a violent felony, who has had his civil rights and voting rights restored by the Governor, provided 30 years have elapsed following the conviction.
Patron - Cline

F SB93

Background checks at adult substance abuse treatment facilities. Permits the hiring of any applicant to provide adult substance abuse treatment in an adult substance abuse treatment facility, regardless of any conviction, if the hiring provider or employer determines that such criminal behavior was substantially related to the applicant's use of substances and the person has been successfully rehabilitated and is not a risk to consumers based on his criminal history background and substance use, abuse or addiction history. To be eligible, the applicant must have completed all prison or jail terms, must not be under probation or parole supervision, must not have pending charges in any locality, and must have paid all fines, restitution, and court costs for any prior convictions. Applicant means any person who is a (i) licensed substance abuse treatment practitioner; (ii) certified substance abuse counselor; (iii) certified substance abuse counseling assistant; (iv) licensed clinical social worker; (v) licensed professional counselor; (vi) licensed clinical psychologist; (vii) licensed registered nurse; or (viii) licensed physician. "Certified substance abuse counselor" will include any applicant who has been approved to obtain the supervision required for certification, and "certified substance abuse counseling assistant" will include any applicant who is actively pursuing the hours of experience required for certification as a substance abuse counseling assistant. Upon discovering that an applicant who is regulated by a health regulatory board has been convicted of any offenses listed in the criminal records check law, the provider must report the conviction to the appropriate health regulatory board. These provisions expire on July 1, 2007.
Patron - Devolites

F SB134

Notice of proposals or initial applications for methadone clinics required. Requires the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services to notify the local governing body of and the community services board serving the jurisdiction in which a methadone clinic is proposed within 15 days of receiving notice of a proposal or an application to obtain initial licensure to operate such facility. Local governing bodies and community services boards must submit to the Commissioner comments on the proposals or applications within 30 days from the date of the notice, including its compliance with relevant local ordinances.
Patron - Edwards

F SB312

Licensure conditions for certain methadone clinics. Prohibits the granting of an initial license to a facility for the provision of detoxification, treatment or rehabilitation of drug addicts through the use of the controlled substance, methadone, or other such controlled substances, if such facility is to be located within one-half mile of a public or private K-12 school. In addition, the Commissioner is required to notify the local governing body of the jurisdiction in which such facility is to be located within 15 days of receiving notice of a proposal or an application to obtain initial licensure for methadone clinics. The local governing body may submit comments on the proposal or application that may include its compliance with this provision and applicable local ordinances. Existing clinics, i.e., licensed and operating in accordance with the law and regulations in effect on January 1, 2004, are grandfathered. Three enactment clauses provide that: (i) the Board of Mental Health, Mental Retardation and Substance Abuse Services must promulgate emergency regulations; and (ii) the Commissioner must not grant or issue any initial license for a methadone clinic after the date of the enactment of this provision, unless the facility is in compliance with these provisions, notwithstanding any regulations to the contrary. This bill is incorporated into SB 607.
Patron - Bell

F SB604

Emergency custody and temporary detention orders; transportation. Requires magistrates who issue emergency custody or temporary detention orders for persons with serious mental illness to specify the law-enforcement agency and jurisdiction that shall execute such orders and provide transportation. The bill gives direction to the magistrate on choosing the responsible law-enforcement agency and jurisdiction. Finally, when a law-enforcement agency is required to transport persons to obtain emergency medical evaluation or treatment, such evaluation or treatment shall be conducted immediately.
Patron - Bolling

Carried Over

C HB578

Temporary detention petitions. Requires the Supreme Court of Virginia to prescribe and publish rules governing the procedure for a sworn petition requesting a magistrate to issue an order of temporary detention. The Supreme Court must consider permitting the magistrate at his discretion to receive oral petitions by teleconference and written petitions filed by electronically transmitted facsimile process, provided there is reasonable proof of the petitioner's identity.
Patron - Hamilton

C HB961

Guardianship or conservatorship for individuals with mental retardation. Grants the court the discretion to elect not to appoint a guardian ad litem to represent the interests of the respondent in a guardianship or conservatorship proceeding only when (i) the respondent is 18 years of age or older and has a diagnosis of mental retardation; (ii) the respondent is the child of the petitioner; (iii) the petitioner has been the person primarily responsible for the care of the respondent for at least five years immediately preceding the filing of a petition; (iv) the petitioner provides the court with an independent evaluation report of the respondent performed by a licensed professional skilled in the diagnosis, care and treatment of individuals with mental retardation which shall document, to the best information and belief of its signatory, whether the respondent is an incapacitated person who needs a guardian, a conservator, or both; and (v) the respondent has not notified the court verbally or in writing that he desires the appointment of a guardian ad litem. If at any time subsequent to the filing of a petition the respondent notifies the court verbally or in writing that he desires the appointment of a guardian ad litem, the court must appoint a guardian ad litem immediately.
Patron - Barlow

C SB507

Judicial authorization of treatment and detention. Removes the court's authority to order the withholding or withdrawal of a specific treatment or course of treatment for a mental or physical disorder when an adult patient is either incapable of making an informed decision on his own behalf or is incapable of communicating an informed decision due to a physical or mental disorder. Authority to order a specific treatment or a course of treatment is retained for the allegedly incapable adult person when the proposed action is in the best interest of the person. This provision also strikes the authority for "any person" to file a request for a court to order the withholding or withdrawal of treatment for an adult person who is incapable of making or communicating informed consent. For individuals incapable of making or communicating informed consent who are hospital patients at the time of the petition for treatment, this provision requires "complete accordance with the Health Care Decisions Act . . . and the delineated authorization of consent as set forth in § 54.1-2986, with all prudent effort made to obtain such informed consent from an individual or individuals in order of priority who are legally authorized to give consent."
Patron - Mims

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