BILL ANALYSIS Ó AB 918 Page 1 Date of Hearing: April 7, 2015 ASSEMBLY COMMITTEE ON HEALTH Mark Stone Rob Bonta, Chair AB 918 Mark Stone - As Amended April 6, 2015 SUBJECT: Health and care facilities: seclusion and behavioral restraints. SUMMARY: Requires specified community facilities to report to the appropriate and designated agency each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints. Specifically, this bill: 1)Requires the following types of facilities to report each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints: a) Intermediate care facilities (ICF); b) Intermediate care facilities/developmentally disabled-nursing (ICF-DDN); c) Intermediate care facilities for the developmentally disabled (ICF-DD); AB 918 Page 2 d) Intermediate care facilities/developmentally disabled-habilitative (ICF-DDH); e) Group homes; f) Adult residential facilities; and, g) Mental health rehabilitation centers. 2)Requires the Secretary of the California Health and Human Services Agency (CHHSA), or his or her designee, to establish on or before January 1, 2017, a system of mandatory, consistent, timely and publically accessible data collection regarding the use of seclusion and behavioral restraints. 3)Requires data collected to include the following information: a) The number of deaths that occur while persons are in seclusion or behavioral restraints or where it is reasonable to assume that a death was proximately related to the use of seclusions or behavioral restraints; b) The number of serious injuries sustained by persons while in seclusion or subject to behavioral restraints; c) The number of serious injuries sustained by staff, that occur during the use of seclusion or behavioral restraints; d) The number of incidents of seclusion; AB 918 Page 3 e) The number of incidents of use of behavioral restraints; f) The duration of time spent per incident in seclusion; g) The duration of time spent per incident subject to behavioral restraints; and, h) The number of times an involuntary emergency medication is used to control behavior, as defined by the Department of State Hospitals. EXISTING LAW: 1)Requires the following types of facilities to report each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints: a) Psychiatric units of general acute care hospitals; b) Acute psychiatric hospitals; c) Psychiatric health facilities; d) Crisis stabilization units; e) Community treatment facilities; AB 918 Page 4 f) Group homes; g) Skilled nursing facilities (SNFs); h) ICFs; i) Community care facilities; and, j) Mental health rehabilitation centers. 2)Does not require the above entities to fulfill the above reporting requirements if adequate resources are not available. 3)Defines "ICF" as a health facility that provides inpatient care to ambulatory or nonambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. 4)Defines "ICF-DDN" as a facility with a capacity of four to 15 beds that provides 24-hour personal care, developmental services, and nursing supervision for persons with developmental disabilities who have intermittent recurring needs for skilled nursing care but have been certified by a physician and surgeon as not requiring continuous skilled nursing care. The facility shall serve medically fragile persons with developmental disabilities or who demonstrate significant developmental delay that may lead to a developmental disability if not treated. AB 918 Page 5 5)Defines "ICF-DD" as a facility that provides 24-hour personal care, habilitation, developmental, and supportive health services to persons with developmental disabilities whose primary need is for developmental services and who have a recurring but intermittent need for skilled nursing services. 6)Defines "ICF-DDH" as a facility with a capacity of four to 15 beds that provides 24-hour personal care, habilitation, developmental, and supportive health services to 15 or fewer persons with developmental disabilities who have intermittent recurring needs for nursing services, but have been certified by a physician and surgeon as not requiring availability of continuous skilled nursing care. 7)Defines "group home" as a residential facility that provides 24-hour care and supervision to children, delivered at least in part by staff employed by the licensee in a structured environment. Limits the care and supervision provided by a group home to be nonmedical, except as otherwise permitted by law. 8)Defines "residential facility" as any family home, group care facility, or similar facility determined by the director, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual. FISCAL EFFECT: None. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, while existing AB 918 Page 6 law protects individuals with developmental disorders in developmental centers (DCs) from unreported use of seclusions and restraint, the populations in these facilities are changing. State facilities are beginning to close and more people are living in community facilities. The author states that this move can be heralded as an important and beneficial move for those with developmental disabilities, but it also leaves them vulnerable to the use of seclusion and behavioral restraint as tactics to control behavior. The author also states that the Legislature has made findings and declarations indicating that the use of seclusions and restraints is not a treatment nor does it positively change behavior. When the state first implemented reporting and publishing requirements, most individuals were living in DCs. However, now California is moving individuals to community facilities, where no such requirement exists. According to the author, California must protect these vulnerable individuals, give consumers more information when choosing a facility, and allow the government and the designated protection and advocacy agency, Disability Rights California (DRC), the ability to compare the use of seclusion and restraint across facilities. 2)BACKGROUND. a) Lanterman Act. The Department of Developmental Services (DDS) is responsible under the Lanterman Developmental Disabilities Services Act of 1969 (Lanterman Act) for ensuring that approximately 280,000 individuals with developmental disabilities receive the services and support they require to lead more independent and productive lives and to make choices and decisions about their lives. The Lanterman Act defines a developmental disability as a "substantial disability" that starts before age 18 and is expected to continue indefinitely. The developmental disabilities for which an individual may be eligible to receive services under the Lanterman Act include: cerebral palsy;, AB 918 Page 7 epilepsy; autism, intellectual disabilities; and, other conditions closely related to intellectual disabilities that require similar treatment (such as a traumatic brain injury). b) DCs. California provides services and support to individuals with developmental disabilities in two ways. The vast majorities of people live in their families' homes or other community settings and receive state-funded services that are coordinated by one of 21 non-profit corporations known as regional centers (RCs). More than 99% of DDS consumers receive services in this way under the Community Services Program. These consumers live with their parents or other relatives, in their own houses or apartments, or in residential facilities or group homes designed to meet their needs. A smaller number of individuals, or less than 1% of the DDS caseload, live in three state-operated DCs and one state-operated community facility. DDS operates three DCs: Fairview (Orange County); Porterville (Tulare County); and, Sonoma (Sonoma County). Among other services, Porterville also provides secure treatment services. A fourth DC, Lanterman, transitioned its last resident into community living on December 23, 2014. Services at all facilities involve the provision of active treatment through residential and day programs on a 24-hour basis, including appropriate medical and dental care, health maintenance activities, and assistance with activities of daily living, training, education, and employment. c) Population Transitions. During a period of recent budget deficits, the Legislature enacted numerous DDS budget reductions and cost savings measures to yield General Fund savings. The 2012-13 budget imposed a moratorium on admissions to DCs except for individuals involved in the criminal justice system, and consumers in an acute crisis needing short-term stabilization. The high costs to maintain and staff these facilities, coupled with an emphasis on transitioning individuals back into their community, have led to the closure and/or restructuring of AB 918 Page 8 many DCs. The moratorium on DC admission as well as the need for the availability of services in the community have led to a shift in spending from the DCs to the community services programs. The 2015-16 budget reflects this change, as the budget for DCs has decreased and the Community Services budget has increased. 3)SUPPORT. DRC, the sponsors of the bill, write that current law requires state and non-public facilities to collect and publicly report the use of seclusion and behavioral restraints. When the law was enacted, the Department of State Hospitals and DDS immediately implemented their data collection and public data reporting. This requirement was not implemented for non-public facilities. Therefore, there is no publicly accessible data regarding the use of these interventions in most of the facilities where they are used. The sponsor goes on to state that the populations served in state facilities has changed. Residents in DCs are moving from large state facilities and into smaller community facilities. Family members and advocates are concerned about the unknown and unreported use of behavioral restraint and seclusion; dangerous practices that often result in serious injuries, even death. The concern continues to grow as individuals with behavioral challenges migrate from DCs where there is public reporting and accountability to isolated community settings where there is no public accountability regarding as to the use of seclusion and behavioral restraint. People with disabilities should live in the community with appropriate services and supports; and there should be appropriate oversight of community facilities that use dangerous restraint and seclusion practices. The National Association of Social Workers (NASW) writes that through previous legislation, the state has attempted to reduce or eliminate the use of seclusion or behavior restraints at state facilities. Efforts have also been made to make the data on the use of seclusion and restraints available to the public. Currently, these laws do not apply to community facilities. NASW argues this bill will require information AB 918 Page 9 about deaths or serious injury available to the protection and advocacy agency designated by the Governor. Deaths or serious injury cannot go unnoticed. Those with the most expertise in protecting this vulnerable population should have access to information that could prevent additional tragedies. 4)PREVIOUS LEGISLATION. SB 130 (Chesbro), Chapter 750, Statutes of 2003, made a number of changes to state law regarding the use of seclusion and restraints in a variety of residential facilities, including psychiatric hospitals, DCs, skilled nursing facilities and foster care group homes. REGISTERED SUPPORT / OPPOSITION: Support Disability Rights California (sponsor) California Long-Term Care Ombudsman Association National Association of Social Workers, California Chapter The Alliance Supporting People with Intellectual and Developmental Disabilities Opposition None on file. AB 918 Page 10 Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097