If a Virginia judge orders someone involuntarily committed but does not name a specific facility, can the sheriff hold the person at the emergency department past six hours while a bed is found?

Subject

The six-hour transport rule under Code § 37.2-829, and what happens when a commitment order does not name a specific facility.

Plain-English summary

Sheriff Smith of Augusta County asked the AG a question that comes up daily in rural Virginia. Someone is in a hospital emergency room under a temporary detention order. A special justice holds the commitment hearing in the ER, finds the person meets the involuntary commitment criteria, and signs the commitment order, but instead of naming a specific facility, the order says the person should go to "a facility deemed appropriate by the Department of Behavioral Health." The sheriff has been ordered to transport, but no destination has been specified. Meanwhile, the clock is running on a statutory transport deadline. Can the sheriff just wait at the ER until a bed opens up?

AG Jason Miyares said no. Code § 37.2-829 contains a hard, no-exceptions rule: "[i]n 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." The statute uses "no event" and "shall," which the AG read as foreclosing any waiting period. If the commitment order leaves the destination open, that is a problem the Commissioner of the Department of Behavioral Health and Developmental Services has to solve, not a problem the sheriff can solve by waiting.

Practically, that means the Commissioner has to designate a specific facility quickly enough that the sheriff can begin transport within the six-hour window. The opinion notes that, while the General Assembly "likely intended" a specific facility to be named in the order at the time of the hearing, "the law does not expressly prohibit" a general designation to "a facility deemed appropriate" to be determined by the Commissioner. The duty to designate quickly enough then falls on the Commissioner.

The AG also confirmed that once the sheriff completes the transport, the sheriff's duty under § 37.2-829 is discharged.

What this means for you

If you are a Virginia sheriff or deputy facing this situation

Under the opinion, the six-hour clock in § 37.2-829 is binding: transport must commence "no later than six hours after notification" of the order, and the opinion reads that "in no event" language as requiring no further interpretation. If the order does not name a specific facility, the opinion places the obligation on the Commissioner of DBHDS to designate one in time for you to begin transport within the six hours. Once you complete the transport, the opinion concludes your duty under § 37.2-829 is discharged.

If you are a special justice or judge signing commitment orders

The opinion states that, while the General Assembly "likely intended" a specific facility to be identified in the order at the time of the hearing, "the law does not expressly prohibit" a general designation to "a facility deemed appropriate" to be determined by the Commissioner. Where you make a general designation, the opinion's holding is that the Commissioner must then designate a specific facility quickly enough to allow transport to begin within six hours.

If you are a community services board director or screening clinician

The opinion describes the designation logic in § 37.2-817(C): the involuntary admission is to a facility designated by the community services board that performed the preadmission screening evaluation, and if the board does not designate a facility at the hearing, the Commissioner of DBHDS designates one. The opinion restates this framework rather than imposing new duties on the board.

If you are an attorney representing a person in civil commitment

The opinion holds that transport must commence within six hours of notification of the commitment order, and that an unspecified facility is the Commissioner's obligation to resolve, not a basis for the sheriff to hold the person past six hours. It does not address what remedies a person held past that window may have.

Common questions

Q: When does the six-hour clock start?
A: From "notification to the sheriff or alternative transportation provider of the judge's or special justice's order." That is when the sheriff is told the order has been signed and they must transport.

Q: What if the Commissioner does not designate a facility within six hours?
A: The opinion gives the legal answer (the Commissioner must designate quickly enough to permit transport to begin within six hours) but does not address what happens, or what the sheriff should do, if the Commissioner fails to designate in time.

Q: Does the six-hour rule apply to alternative transportation providers?
A: Yes. The statute says "sheriff or alternative transportation provider," and the opinion applies the six-hour rule to both.

Q: Can the sheriff take the person to any facility, or only the designated one?
A: The opinion describes the sheriff's duty as transporting the person to the commitment facility designated in the order, whether designated by the community services board or by the Commissioner.

Q: What does the sheriff do once transport is complete?
A: The opinion states that once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty under § 37.2-829.

Background and statutory framework

Virginia's civil commitment process under Title 37.2 runs through several stages, ending in a commitment hearing at which a judge or special justice decides whether the person meets the criteria for involuntary admission. As the opinion describes it, when the criteria are met the judge or special justice must order the person admitted involuntarily to a facility for treatment not to exceed thirty days under § 37.2-817.

Section 37.2-817(C) lays out the facility-designation logic. The involuntary admission is to a facility designated by the community services board that performed the preadmission screening evaluation; if the board does not designate a facility at the hearing, the Commissioner of DBHDS designates one. The opinion notes that, although the General Assembly "likely intended" a specific facility to be identified in the order at the time of the hearing, "the law does not expressly prohibit" a general designation to a facility to be determined by the Commissioner.

Section 37.2-829 governs transport. The opinion reads the "[i]n no event shall transport commence later than six hours after notification" language as clear and requiring no statutory interpretation, citing Winston v. City of Richmond for the proposition that clear statutory language requires none. When the order leaves the facility to the Commissioner's later designation, the Commissioner must designate in time for transport to begin within the six hours.

Citations and references

Statutes:

• Va. Code Ann. § 37.2-817 (involuntary admission)
• Va. Code Ann. § 37.2-829 (transportation)
• Va. Code Ann. § 37.2-823 (admission upon order)
• 42 U.S.C. § 1395dd (EMTALA)

Cases:

• Winston v. City of Richmond, 196 Va. 403 (1954) (clear statutory language requires no interpretation)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-048-Smith-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 19, 2023

The Honorable Donald L. Smith
Sheriff, Augusta County
Post Office Box 860
Verona, Virginia 24482

Dear Sheriff Smith:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding a sheriff's authority to delay transportation of an individual who has been ordered to be admitted involuntarily to a facility and transported to such facility by the sheriff. You specifically ask, in the event a facility of commitment has not been identified, whether a sheriff may delay transportation beyond six hours after receiving notification of the order of involuntary admission ("commitment order").

Response

It is my opinion that transport of an individual subject to a commitment order must commence no later than six hours after notification to the sheriff or alternative transportation provider of the judge's or special justice's order. If a facility of commitment is not identified in the commitment order, the Commissioner of the Department of Behavioral Health and Developmental Services must designate a facility in sufficient time to permit a sheriff or alternative transportation provider to commence transport within six hours of notification of the order. Further, once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty.

Background

You state that individuals subject to temporary detention orders often remain in emergency departments because the facility specified for temporary detention does not have any available beds. As a result, commitment hearings for these individuals frequently are held while the person is in the emergency department. You relate that there are times when the special justice, upon finding that an individual meets the commitment criteria for inpatient hospitalization, broadly designates as the facility for commitment a "facility deemed appropriate by the Department of Behavioral Health" instead of naming a specific facility in the commitment order. You question, for cases where the order directs the sheriff to transport the individual to the commitment facility, whether you can maintain custody of the individual longer than six hours if more time is needed to locate a commitment facility with an available bed.

Applicable Law and Discussion

As this Office previously has expressed, "[t]he primary purpose of the civil commitment process is to protect the public and the person from harm as a result of the person's mental illness." When a commitment hearing is held, if the judge or special justice finds that the commitment criteria are met, the judge or special justice must order that the person be admitted involuntarily to a facility for a period of treatment not to exceed thirty days. Pursuant to Virginia Code § 37.2-817(C), the involuntary admission shall be to a facility designated by the community services board that provided the preadmission screening evaluation. If, however, 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 of the Department of Behavioral Health and Developmental Services.

You state that in your jurisdiction, in situations where the community services board does not designate a facility of commitment at the hearing, the special justices will designate "a facility deemed appropriate by the Department of Behavioral Health." Although the General Assembly likely intended that a specific facility of commitment be identified in the order at the time of the commitment hearing and entry of the order, the law does not expressly prohibit a judge or special justice from making a general designation to a facility to be determined by the Commissioner of the Department of Behavioral Health and Developmental Services.

Once a person has been ordered to be admitted to a facility under Code § 37.2-817, the judge or special justice must determine whether transportation shall be provided by the sheriff or by an alternative transportation provider. If the judge or special justice finds that transportation may be provided by an alternative transportation provider and the alternative provider is available, willing, 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.

Regardless of whether transportation is ordered to be provided by the sheriff or an alternative transportation provider, Code § 37.2-829 states that "[i]n 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." The clear language of this statute requires no statutory interpretation. Section 37.2-829 requires the sheriff or alternative transportation provider to commence transport of any person ordered to be admitted involuntarily to a facility within six hours of notification of such order. Consequently, if a commitment order specifies that the commitment facility is a facility designated by the Commissioner, the Commissioner must designate a facility within six hours of the sheriff or alternative transportation provider receiving notification of the order to enable the sheriff or alternative transportation provider to begin transportation in accordance with the statute. Once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty under § 37.2-829.

Conclusion

For the reasons stated above, it is my opinion that a sheriff or alternative transportation provider ordered to provide transportation of a person subject to a commitment order must commence transport no later than six hours after receiving notification of the order. If a facility of commitment is not identified in the commitment order, the Commissioner of the Department of Behavioral Health and Developmental Services must designate a facility in sufficient time to permit a sheriff or alternative transportation provider to commence transport within six hours of notification of the order. Once transport to the commitment facility is completed, the sheriff or alternative transportation provider discharges his duty.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General