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    Document Summary
    - Report Published -

    House Document No. 31
    PUBLICATION YEAR 2005

    Document Title
    Revision of Title 37.1 of the Code of Virginia

    Author
    Virginia Code Commission

    Enabling Authority
    30-152

    Executive Summary
    INTRODUCTION

    In May 2003, the Virginia Code Commission undertook the revision of Title 37.1 of the Code of Virginia. Title 37.1 (Institutions for the Mentally Ill; Mental Health Generally) is the legal authority for the Department of Mental Health, Mental Retardation and Substance Abuse Services ("Department") under the Secretariat of Health and Human Resources, as well as the Office of the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services. Title 37.1 is also the legal authority for community services boards and behavioral health authorities.

    The Code Commission has prepared the proposed Title 37.2 (Mental Health, Mental Retardation, and Substance Abuse Services) for introduction at the 2005 Session of the General Assembly. This title was last revised in 1968. During the past 37 years, much has happened to affect laws governing mental health, mental retardation, and substance abuse programs and services. The primary purpose of the Title 37.1 revision is to reorganize the laws in a logical manner and improve their structure and clarity. Additionally, certain substantive changes are made, many of which reflect current practices, delete eliminated programs, or conform provisions to other statutes and regulations. These changes include:

    1. Adding revised definitions for mental illness, mental retardation and substance abuse;
    2. Merging the provisions related to substance abuse services that were added to Title 37.1 in 1976 into the State Mental Health, Mental Retardation and Substance Abuse Services Board ("Board"), Department, licensing, admissions, and community services chapters to eliminate redundancies and improve clarity;
    3. Repealing archaic provisions relating to treatment centers for children, persons not confined in state hospitals, and judicial certification of eligibility for admission to state hospitals of persons in a coma, and the obsolete Interstate Compact on the Extradition of Persons of Unsound Minds;
    4. Bringing uniformity where possible to the community services board (CSB) and behavioral health authority (BHA) sections and amending them to reflect current practice; and
    5. Removing the concept of "prescription teams," whose duties revert back to the community services boards and behavioral health authorities that have historically performed these duties.

    These changes were required to resolve confusion caused by conflicting provisions and to remove or update archaic references. These substantive changes are explained in further detail in the chapter-by-chapter summary below.

    ORGANIZATION OF TITLE 37.2

    The proposed Title 37.2 is divided into four subtitles. Subtitle I contains general provisions applicable to the entire title. The title-wide definitions are included as general provisions. Subtitle II deals with mental health, mental retardation, and substance abuse services. A newly created chapter within Subtitle II consolidates sections related to state facilities that were previously scattered throughout Title 37.1. Subtitle III contains chapters related to admissions and dispositions. Subtitle IV contains guardianship, conservatorship, and judicial authorization of treatment provisions.

    Current 37.1-207 and 37.1-207.1, relating to the Substance Abuse Services Council are relocated to Title 2.2 (Administration of Government) as part of the title revision. This executive branch advisory council coordinates the Commonwealth's public and private efforts to control substance abuse and it is more appropriately placed in this general government title.

    Two current chapters are not carried forward as part of Title 37.2 and will be repealed: Chapter 3 (Persons Not Confined to State Hospitals) and Chapter 7 (Extradition of Persons of Unsound Minds). Both chapters are obsolete.

    SELECTED CHANGES IN TITLE 37.2

    CHANGES MADE REPEATEDLY THROUGHOUT TITLE 37.2

    • The Code Commission recommends the use of the term "adopt regulations" in this title revision. The term "adopt regulations" means the process by which regulations are put into effect and includes the promulgation, revision or amendment, and formal acceptance of a regulation by an agency that has exercised its regulation-making authority in accordance with law. In its revisions of Title 2.1, Title 9, and Title 63.1, the Code Commission adopted the use of this term instead of "promulgate" because it is more widely used.
    • The terms "client," "patient" and "resident" are replaced by "consumer" or "person."
    • In the Code Commission's Title 1 revision, "includes" includes "but not limited to."
    • "Private institution" and "system of facilities" are deleted and "licensed hospital" is substituted for "private hospital." Please note that "state hospitals" are facilities operated by the Department for persons with mental illness and "training centers" are facilities operated by the Department for persons with mental retardation. In the current Title 37.1, "state hospital" is sometimes used to refer to "training centers" as well as "state hospitals." The various terms used to denote different types of facilities have been applied consistently in the revised title. Appended to this executive summary as Attachment A is a listing of the facility terminology used in the title revision.
    • Each section in the title revision is followed by a drafting note that describes the change made, if any. If a drafting note states "no change," the section contains no changes other than renumbering and updated cross-references. If a drafting note states "technical changes only," the section contains a change in the text of the section, even if it is only a change in punctuation; however, such changes are not meant to be a substantive change in the law. If a section contains a substantive change in the law, the drafting note describes the change.

    SUBSTANTIVE CHANGES AND OTHER SELECTED TOPICS FOUND IN TITLE 37.2

    Subtitle I--General Provisions

    Chapter 1--Definitions

    Section 37.2-100 is a title-wide definition section that gathers definitions that are currently scattered throughout the title. Definitions that have been deleted as archaic or unnecessary are "alcoholic," "client," "director," "drug addict," "judge," "legal resident," "patient or resident," "private institution," "property" and "system of facilities." Revised definitions are "mental illness," "mental retardation," and "substance abuse." The "mental retardation" definition is from 19.2-264.3:1.2. The definitions for "mental illness" and "substance abuse" were developed by the Department and reviewed by affected system stakeholders. Certain definitions applicable solely to particular programs that do not have title-wide applications remain in those program chapters.

    Chapter 2--State Mental Health, Mental Retardation and Substance Abuse Services Board

    Chapter 2 consolidates sections relating to the Board and updates language relative to its creation and membership to conform to the legislative guidelines issued by the Joint Rules Committee. A provision permitting the Board to authorize mental health clinics is deleted as obsolete. The mental health clinics were replaced by the community services boards and behavioral health authorities. The provision relating to the Board establishing family planning clinics in state hospitals is deleted as obsolete.

    Chapter 3--Department of Mental Health, Mental Retardation and Substance Abuse Services

    The Commissioner's oath and bonding provision is deleted as unnecessary because the oath provision is already covered in 49-1. According to the Department, all state employees, including the Commissioner, are covered by a performance bond up to $ 500,000. Many of the provisions of current Chapter 11 of Title 37.1 related to substance abuse services are incorporated into this chapter. Substance abuse services were merged into Title 37.1 in 1976, when the Division of Drug Abuse Control (DDAC) and the Health Department's Bureau of Alcohol Studies and Rehabilitation (BASR) were transferred to the Department and the Department was given responsibility for all substance abuse programs. In reviewing Chapter 11, it appeared that many provisions could be reorganized into the Department chapter in particular. The Comprehensive State Plan for Mental Health, Mental Retardation, and Substance Abuse Services, the provisions related to system restructuring, and the Mental Health, Mental Retardation, and Substance Abuse Trust Fund are brought together in Chapter 3 as separate articles.

    Chapter 4--Protection of Consumers

    Chapter 4 is a new chapter, entitled "Protection of Consumers," that compiles sections pertaining to human rights, licensing, the Office of the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services, penal provisions, and disclosure of patient information to third party payors. Under licensing, a provision is deleted relating to the certification of targeted case management services that facilitated Medicaid billing. Since such services are now licensed, the provision is obsolete. A provision in the sanctions section that permits the Commissioner to inform other public agencies of licensing and human rights violations of licensees is made a mandatory duty. The Code Commission reviewed SB 212 (2004) that made clarifying amendments to the Inspector General provisions in the course of its revision of Title 37.1.

    Subtitle II--Mental Health, Mental Retardation, and Substance Abuse Services

    Chapter 5--Community Services Boards

    Chapter 6--Behavioral Health Authorities

    Public community mental health, mental retardation, and substance abuse services are provided in Virginia by CSBs and BHAs. The three types of CSBs are operating CSBs, administrative policy CSBs, and policy-advisory CSBs with local government departments. The proposed definition of "community services board" includes the three types of boards so that later references can be consolidated. BHAs are authorized in three localities (Chesterfield, Richmond, and Virginia Beach); currently, only one exists in Richmond. Chapters 5 and 6 make numerous clarifying changes to the CSB and BHA provisions including:

    • CSB or BHA employees or employees or board members of organizations receiving funding from a CSB shall not be appointed a member of that CSB or BHA.
    • Auditing data is removed as an auditing requirement since it is a highly specialized function not normally performed by Certified Public Accountants as part of their audits.
    • Reviewing and evaluation functions of the CSB and BHA are amended to reflect current practice.
    • The requirement that the Department approve the salary ranges of the senior management staff is removed as this is not being done and is probably not appropriate.
    • Language related to "prescription team" is deleted; however, those duties revert back to the CSBs and BHAs that have historically performed the duties.
    • The date for local government approval of the performance contract is moved from September 15 to September 30.
    • The penalty for failure to substantially comply with the performance contract between a CSB or BHA and the Department is clarified to include a reduction of funds.
    • The bed target language in the performance contract section is revised to reflect current practice.
    • The provisions regarding allocation of funds to CSBs and BHAs are revised substantially to reflect current practice.

    Chapter 7--State Facilities

    Sections related to state facilities, previously scattered throughout Title 37.1, are consolidated now in new Chapter 7. The chapter includes two articles relating to general provisions and expenses of care, treatment or training, and maintenance. The section regarding billing and prohibiting the retention of nonresidents to the exclusion of residents is deleted. The billing provision is redundant and the retention provision is deleted for liability, public safety, and medical reasons.

    Subtitle III--Admissions and Dispositions

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

    Chapter 8 significantly reorders the provisions related to emergency custody and voluntary and involuntary civil admissions. It brings together in an article called general provisions sections related to process, interpreters, special justices, and fees. A provision on judicial certification of eligibility for admission to state hospitals of persons in a coma is deleted as archaic. The Department states this provision has not been utilized in more than 20 years and admission of these persons to a state hospital where active treatment occurs is not appropriate. Current sections related to emergency custody, temporary detention, and involuntary admission are streamlined. The criteria for emergency custody, temporary detention, and involuntary admission are made consistent, and the current sections are divided and reordered into more comprehensible sections. In the event an involuntarily admitted person escapes from a state facility, a warrantless arrest may be made through any form of wire or wireless communication, rather than the more archaic "telegram, radio or teletype." All references to the federal Veterans' Administration have been updated to the Department of Veterans Affairs. According to Katie Robinson from the National Conference of Commissioners on Uniform State Laws (NCCUSL), the Uniform Act for the Extradition of Persons of Unsound Minds was promulgated in 1916 and adopted in 11 states. NCCUSL declared the act obsolete in 1954, and this revision deletes it.

    Chapter 9--Civil Commitment of Sexually Violent Predators.

    The provisions relating to the civil commitment of sexually violent predators (SVPs) became effective April 3, 2003. "Hospitalization," "secure confinement," and similar terms are changed to "secure inpatient treatment" or "involuntary secure inpatient treatment" to reflect provisions in Chapter 8 while recognizing the unique nature of the state facility that treats SVPs, the Virginia Center for Behavioral Rehabilitation (VCBR). The VCBR is not a hospital within the title-wide definition of state hospital; it is an "other institution." This change was recommended by the Department.

    Subtitle IV--Guardianship, Conservatorship, and Judicial Authorization of Treatment

    Chapter 10--Guardianship and Conservatorship

    The Virginia adult guardianship law underwent significant revision from 1988-1998. SB 408 was introduced in the 1996 General Assembly. The bill was carried over until 1997, enacted in 1997, and became effective January 1, 1998. This chapter contains technical changes only.

    Chapter 11--Judicial Authorization of Treatment

    One current section, 37.1-134.21, is broken down into eight sections. The chapter contains technical changes only.

    Sections Relocated from Title 37.1 to Other Titles

    Current 37.1-207 and 37.1-207.1, relating to the Substance Abuse Services Council are relocated to Title 2.2 (Administration of Government) as part of the title revision. This executive branch advisory council coordinates the Commonwealth's public and private efforts to control substance abuse and it is more appropriately placed in this general government title.