Amid a crisis at state mental hospitals, calls for private providers to step up

“When you hear that private hospitals have contributed to what’s happening, that’s generally the reason — that they haven’t taken as many TDOs and ECOs as they used to,” said Del. Mark Sickles, D-Fairfax, the chair of the House Health, Welfare and Institutions Committee. And as involuntary admissions have declined at private facilities, state hospitals say they’ve struggled to keep up not just with a growing number of patients, but a higher proportion of patients with more severe symptoms or complex medical needs.

Julian Walker, vice president of communications for the Virginia Hospital and Healthcare Association, said its members still accept the majority of involuntary admissions across the state regardless of changes in proportion.

“Even with the share declining, we are still taking thousands and thousands more TDOs than the state hospitals,” he said, citing internal data from the hospital association. At the same time, the association says private facilities are accepting a steady increase in voluntary psychiatric patients, even while facing the same workforce challenges as the public sector. 

But with the pause in admissions now stretching into its second week, advocates and law enforcement officials say vulnerable patients are at increasing risk of being released from custody before they can receive mental health treatment. And the crisis, many say, can be traced back to Virginia’s overreliance on state-run facilities to treat involuntary admissions.

“Every other state in the nation relies exclusively on their private hospitals to provide TDO care,” said Anna Mendez, executive director of the Charlottesville-based nonprofit Partner for Mental Health. “Virginia is an outlier in that so much of short-term, acute care is now happening in our state system.” 

‘Unintended consequences’

There’s broad consensus that the shift first began in 2014, when legislators passed what’s commonly referred to as the state’s “bed of last resort” law. Sponsored by Sen. Creigh Deeds, D-Bath, after his own son killed himself and seriously injured Deeds during a mental health crisis, the legislation requires Virginia’s psychiatric hospitals to admit patients after an eight-hour period if a bed can’t be found at another facility — including private hospitals with behavioral health units. 

The law was designed to prevent what happened to Deeds’ son, Gus, who was released from a local emergency room and back to his father’s home before an inpatient psychiatric bed could be found.

The legislation was passed with the best of intentions, Sickles said, and it’s difficult to estimate how many patients have avoided “streeting” and instead received care through one of the state’s facilities as a result. But in the seven years since the law passed, it’s also led to what both he and Mendez described as “unintended consequences.” One of the largest has been the reduction in involuntary admissions at private hospitals, which experts say is one of the primary reasons for the crisis currently facing state-run facilities.

“What it may have done is inadvertently encourage or allow private hospitals to deny TDOs that they would have otherwise accepted,” Mendez said. Over time, that’s led not only to more patients at state hospitals, but what Angela Harvell, the deputy commissioner of facility services for DBHDS, described as growing concerns over the “acuity” of patients. 

That includes people with more severe mental health symptoms, but also those with co-occurring clinical conditions. While incident reporting at state-run hospitals is notoriously poor, there’s at least anecdotal evidence that patient needs are growing. One recent watchdog report, for example, found that fatalities increased at state mental hospitals throughout the pandemic. But investigators found the majority of deaths were due to reasons other than COVID-19 — something that could be attributed to a growing share of medically complex patients.  

With the state system to fall back on, there’s concern that private hospitals might be inappropriately denying admissions, pushing patients with more severe psychiatric symptoms or co-occurring conditions into publicly funded hospitals. But “it’s been hard for us to wrap our brains around,” Mendez said, largely due to the lack of available data.

According to Heather Zelle, the associate director of mental health policy research for the University of Virginia’s Institute of Law, Psychiatry, & Public Policy, there’s no uniform reporting on the reasons for denials at private hospitals or how their psychiatric beds are being used. Most of the information that is available comes from patient pre-screening forms completed by local community service boards, which are responsible for finding an inpatient bed once a TDO is issued.

A 2020 report from the Department of Behavioral Health and Developmental Services found that local responders call an average of 25 to 30 private hospitals before referring a patient to a state facility. And another study found that some of the most commonly documented reasons for refusal seem to validate advocates’ suspicions, including patient acuity (“specifically historically or current aggression,” the agency wrote) and co-occurring diagnoses such as developmental disabilities or medical conditions. 

Many private hospitals are also struggling to find behavioral health providers, and Walker said facilities have valid reasons for turning down patients. Those can include bed and staffing shortfalls on their own psychiatric units, or safety concerns for existing patients and employees.

“Let’s say hypothetically I’ve got eight people admitted and the state says, ‘We’ve got a patient we can’t accept,’” he said. “Well, if those eight patients are not disorderly, and the patient the state wants to be admitted is someone who’s prone to violent outbursts, prone to verbal outbursts and has a documented history of attacking staff — well, the facility being asked to do the admitting has to consider the availability of bed space and how that person might impact the healing of other patients.”

Both Mendez and Zelle, though, said private hospitals in the vast majority of other states are finding ways to accommodate complex cases. And with limited data, it’s difficult to know whether the private sector is truly facing the same restraints when it comes to staffing and available bed space. 

Both are calling for more accountability, which Zelle said could include facility-specific numbers on available beds, staffing levels and the length of patient stays — as well as the volume of both voluntary and involuntary inpatient admissions. She’d also like to see more reporting from private emergency rooms on where psychiatric patients are ultimately admitted in cases when they do go on to receive inpatient care.

Mendez said she’d like to see even more specificity, including the rationale for refusals and any subsequent admissions after a patient is denied.

“If you’re turning down someone for care with the argument being that you don’t have the resources to provide it, but then an hour later you admit a voluntary patient — well, that would kind of make us say, ‘Huh, what’s going on here?’ she said. “Especially if there wasn’t a previous discharge to make room for that person.”

‘This trend just can’t continue the way it’s going’

For officials on the front lines of the crisis, the debate boils down to human rights. Even before DBHDS halted admissions at several state facilities, there were reports of patients whose detention orders ran out before they could find a bed, said John Jones, executive director of the Virginia Sheriff’s Association. And when people in crisis are admitted to already overcrowded and understaffed hospitals, experts say it raises serious doubts on how effectively their needs are being met.

“It’s very difficult to provide the care that would stabilize these patients, which means they’re just there against their will, not progressing in their treatment,” Land told lawmakers at a Friday committee meeting.

It’s clear that Virginia’s chronic underfunding of mental health services has also played a significant role. Frontline staff at state hospitals generally make a starting salary of $11 an hour, a fraction of the market rate. Land said the low wages, combined with “dangerously” high census levels, have created a cycle of burnout and exhaustion. 

At any given time over the last year, virtually every one of the state’s nine hospitals has been nearing or exceeding patient capacity. At one point, the statewide census was at 112 percent, though DBHDS facilities — even with no employee vacancies —  are staffed and budgeted with the assumption that 90 percent of beds will be full at any one time.

“Nobody in this environment is going to take $11 an hour and come into a facility where they’re going to be mandated double shifts every day,” Land said. And solving some of the challenges facing state hospitals will require a serious investment. DBHDS is requesting nearly $200 million in federal aid just for “high-priority” solutions, including $75 million to increase wages for frontline staff.

But private hospitals are also requesting federal funding, raising questions from some lawmakers and advocates. Earlier this month, the hospital association sent a letter to Land and state Health Secretary Dr. Daniel Carey, citing “one health system” that could potentially open 58 new psychiatric beds to relieve pressure on the state. 

Walker would not say which system made the offer. But according to the letter, it would be contingent on receiving $8.5 million “to secure adequate staffing.”

“This isn’t even a new offer,” Walker said. “We’re just coming off a pandemic where staffing challenges have been very pronounced, and unfortunately we’re still experiencing that environment.” Some lawmakers have also endorsed the approach, recommending the state dedicate public funding to open beds in private hospitals or “incentivize” them to accept more challenging patients.

How much — if any — federal aid will go to the facilities is still an open question. Virginia already allocates state funding to private hospitals through Local Inpatient Purchase of Services, or LIPOS, contracts, which pay providers for short-term inpatient stays. In the fiscal year that ended last June, Virginia allocated nearly $10 million for the contracts. More funding was available, but DBHDS says there’s been a sharp decrease in interest from private facilities.

According to Walker, there’s concern that the contracts don’t give hospitals the flexibility to turn down challenging patients. Harvell, the deputy commissioner for DBHDS, said that’s been a sticking point across several discussions, including potential pilot projects to divert more cases from state facilities.

“We have received some proposals, however for those that do not support the target populations we need assistance with, we have asked that they be reconsidered,” she wrote in an email last week. 

As state hospitals continue to struggle, advocates have questioned whether the refusal to admit certain psychiatric patients by some private facilities violates the Emergency Medical Treatment and Labor Act, a federal law requiring hospitals to stabilize and care for any patient who comes through their emergency rooms. Land raised the same point at last week’s committee meeting, sparking a sentiment rarely voiced by Virginia lawmakers — taking a hard-line approach toward health systems.

“The private hospitals have reduced the number of admissions they’re willing to take under TDOs every single year,” said Del. Rob Bell, R-Albemarle. “We as a state have COPN protection they say is necessary to provide services. You’ve got the EMTALA law you mentioned  — I don’t know if that would enable you to have some leverage. The state expanded Medicaid, and again, that was at the request of the hospitals.

“Is there no leverage the state has?” Bell continued. “To say, with all of the things you’ve asked for and received, you have to at least take what you used to take?”

Sickles, who also serves as vice chairman of the House Appropriations Committee, said the General Assembly would prefer to incentivize private facilities to accept more patients. But he wouldn’t speculate on whether lawmakers would consider a mandate if funding didn’t spur a dramatic rise in admissions.

“I hope it doesn’t come to that,” he said. “But we’ve got to definitely step up the private sector’s involvement. This trend just can’t continue the way it’s going.”