BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 918
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|AUTHOR: |Mark Stone |
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|VERSION: |June 25, 2015 |
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|HEARING DATE: |July 1, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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SUBJECT : Seclusion and restraint: developmental services:
health facilities.
SUMMARY : Requires all regional center vendors that provide residential
services or supported living services, and all long-term health
care facilities, serving developmentally disabled persons, to
report each death or serious injury related to the use of
seclusion or physical or chemical restraint, to Disability
Rights California, and requires the Department of Developmental
Services to publish quarterly on its Internet Web site the
number of incidents of physical restraint or chemical restraint
segregated by individual regional center vendor and long-term
health care facility.
Existing law:
1)Establishes the Lanterman Developmental Disabilities Services
Act, which sets forth the rights of individuals with
developmental disabilities in California and the
responsibilities of the state to provide services and
supports.
2)Establishes the Department of Developmental Services (DDS),
through which the state provides services and supports to
individuals with developmental disabilities.
3)States the intent of the Legislature that persons with
developmental disabilities have rights, including a right to
be free from harm, including unnecessary physical restraint,
or isolation, excessive medication, abuse or neglect, among
other enumerated rights.
4)Licenses and regulates various health care facilities through
the Department of Public Health, including general acute care
AB 918 (Mark Stone) Page 2 of ?
hospitals, acute psychiatric hospitals, skilled nursing
facilities, congregate living health facilities, and various
types of intermediate care facilities, among other types of
health care facilities.
5)Licenses and regulates community care facilities through the
Department of Social Services to provide 24-hour non-medical
care to children and adults with developmental disabilities.
6)Requires the Department of State Hospitals and DDS to take
steps to establish a system of mandatory, consistent, timely,
and publicly accessible data collection regarding the use of
seclusion and behavioral restraints in state hospitals and in
facilities operated by DDS (developmental centers). Requires
the data collected to be made publicly available on the
Internet, and to include specified information, including the
number of incidents of use of seclusion or behavioral
restraints, the number of deaths, and the number serious
injuries.
7)Requires the secretary of the Health and Human Services Agency
to establish a system of data collection regarding the use of
seclusion and behavioral restraints in the following
facilities: psychiatric units of general acute care hospitals,
acute psychiatric hospitals, psychiatric health facilities,
crisis stabilization units, community treatment facilities,
group homes, skilled nursing facilities, intermediate care
facilities, community care facilities, and mental health
rehabilitation centers. Requires this information to be made
publicly available on the Internet.
8)Requires the Governor to designate, pursuant to federal law, a
private nonprofit corporation for the protection and advocacy
of the rights of persons with disabilities, and permits this
protection and advocacy agency, among other things, to
investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the
protection and advocacy agency or if the agency determines
there is probably cause to believe abuse or neglect occurred.
In California, the designated agency is called Disability
Rights California, formerly known as Protection and Advocacy,
Inc.
This bill:
1)Requires all regional center vendors that provide residential
AB 918 (Mark Stone) Page 3 of ?
services or supported living services, and all long-term
health care facilities, to report each death or serious injury
of a person occurring during, or related to, the use of
seclusion, physical restraint, or chemical restraint, or any
combination thereof, to the designated protection and advocacy
agency (Disability Rights California) no later than the close
of the business day following the death or serious injury.
Requires this report to include the encrypted identifier of
the person involved, and the name, street address, and
telephone number of the facility.
2)Requires DDS to ensure the consistent, timely, and public
reporting of data it receives from regional centers pursuant
to specified regulations requiring vendors to report special
incidents regarding the use of physical restraint, chemical
restraint, or both, by all regional center vendors who provide
residential services or supported living services, and by
long-term health care facilities serving individuals with
developmental disabilities.
3)Requires DDS to publish quarterly on its Internet Web site all
of the following data, segregated by individual regional
center vendor that provides residential services or supported
living services and each individual long-term health care
facility that serves persons with developmental disabilities:
a) The number of incidents of physical restraint;
and,
b) The number of incidents of chemical restraint.
4)Defines "physical restraint," for purposes of this bill, by
cross-referencing to an existing definition, which describes
an intervention used when a person presents an immediate
danger to self or to others, while excluding restraints used
for medical purposes, such as securing an intravenous needle.
5)Defines "chemical restraint," for purposes of this bill, as a
drug used to control behavior and that is used in a manner not
required to treat the patient's medical conditions.
6)Defines "seclusion," for purposes of this bill, by cross
referencing to an existing definition, which defines it as the
involuntary confinement of a person alone in a room or an area
from which the person is physically prevented from leaving.
AB 918 (Mark Stone) Page 4 of ?
7)Defines "long-term health care facility," for purposes of this
bill, as any of the following: skilled nursing facility (SNF),
intermediate care facility (ICF), ICF/developmentally
disabled, ICF/developmentally disabled-habilitative,
ICF/developmentally disabled-nursing, congregate living health
facility, ICF/developmentally disabled-continuous nursing,
pediatric day health and respite care facility, or an acute
psychiatric hospital.
8)Makes legislative findings and declarations, including that
one of the best methods to achieve the goal of a reduction in
the use of restraint is to ensure consistent data collection
and analysis and public access to this data, and that it is
the intent of the Legislature to ensure that data regarding
the use of restraint in community residential and other
long-term care facilities is publicly available as a means of
ensuring quality services to individuals with developmental
disabilities.
FISCAL
EFFECT : According to the Assembly Appropriations Committee,
this bill will have minor and absorbable costs to DDS, assuming
facilities comply with reporting requirements. If facilities
don't comply, there could be cost pressure to enforce the
reporting requirements or to provide additional education and
training. Any cost pressure for enforcement or provider
education would depend on the robustness of the activities.
PRIOR
VOTES :
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|Assembly Floor: |77 - 0 |
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|Assembly Appropriations Committee: |17 - 0 |
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|Assembly Health Committee: |18 - 0 |
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COMMENTS :
1)Author's statement. According to the author, while existing
law requires reporting the use of seclusion and restraints on
individuals with developmental disorders in developmental
centers, no such requirement exists for community facilities.
AB 918 (Mark Stone) Page 5 of ?
State facilities are beginning to close and more people are
moving to, and living in, community facilities. This
transition is an important and beneficial move for those with
developmental disabilities, but because of the lack of a
reporting requirement for community facilities, it also leaves
these individuals vulnerable to the use of seclusion and
behavioral restraint as tactics to control behavior. The use
of seclusion and restraint is not a treatment, nor does it
positively change behavior. When the state first implemented
reporting and publishing requirements, most individuals were
living in developmental centers. However, now California is
moving individuals to community facilities, where no such
requirement exists. We must protect these vulnerable
individuals, give consumers more information when choosing a
facility, and allow the state and the Protection and Advocacy
Agency the ability to compare the use of seclusion and
restraint across both types of facilities.
2)Background on services for the developmental disabled.
Established in statute in 1969, California's Lanterman
Developmental Disabilities Act provides an entitlement to
services for individuals who are diagnosed with developmental
disabilities. A developmental disability is defined as a
disability that originates before an individual attains 18
years of age, is expected to continue indefinitely, and
constitutes a substantial disability for that individual. It
includes intellectual disabilities, cerebral palsy, epilepsy,
and autism spectrum disorders, among others. According to DDS,
California provides services and supports to the 280,000
individuals with developmental disabilities in two ways: the
vast majority 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. Alternatively, a small number of individuals
live in three state-operated developmental centers and one
state-operated community facility. The number of consumers in
the community served by regional centers is expected to
increase from 279,453 in the current fiscal year to 289,931 in
2015-16. The number of individuals living in state-operated
residential facilities is expected to be 996 by the end of the
2015-16 fiscal year. The remaining three developmental centers
(in Sonoma, Fairview and Porterville) will continue to serve
fewer individuals as the state continues to move forward with
a developmental center closure plan with the goal of limiting
the role of the state in directly operating facilities and
AB 918 (Mark Stone) Page 6 of ?
serving more developmentally disabled individuals in the
community.
3)Special incident reports. Under existing regulations, all
regional center vendors and long-term health care facilities
are required to make certain "special incident reports" to the
regional center, including any suspected abuse/exploitation,
including physical and/or chemical restraint. These reports
are required to include certain information, including a
description of the incident, who was involved, information on
the alleged perpetrator, and any action taken by the vendor. A
special incident report is required to be submitted by
telephone or electronic email to the regional center
immediately, but not more than 24 hours after learning of the
occurrence of the special incident. A written report is then
required within 48 hours after the occurrence, if the
immediate report did not include a written report. The
regulations require that even when a vendor or licensed
facility is required to make a similar incident report to
their respective licensing agencies, such as DPH or DSS, the
vendor is still required to make a simultaneous report to the
regional center. Regional centers, in turn, are required to
submit reports to DDS of any special incident within two
working days following receipt of the incident report from the
vendor or facility. All special incident reports from regional
centers are required to be transmitted to DDS utilizing DDS'
electronic data reporting system.
The following chart of special incident reports from all types
of facilities and vendors was provided by DDS for the two most
recent years for which they have complete data:
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| Special Incidents Report: Alleged |
| Physical and Chemical Restraints, |
| 2012-2013 |
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-----------------------------------------
| | | | | |
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|Community | 2012 | 2013 |
|Facilities | | |
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AB 918 (Mark Stone) Page 7 of ?
|-------------+------+------+------+------|
|Community |# of |# w/ |# of |# w/ |
|Facility |incide|injuri|incide|injuri|
|Type |nts |es |nts |es |
|-------------+------+------+------+------|
|CCF (1-3 | 6| 3| 3| 0|
|beds) | | | | |
|-------------+------+------+------+------|
|CCF (4-6 | 35| 4| 48| 0|
|beds) | | | | |
|-------------+------+------+------+------|
|CCF (7-15 | 0| 0| 1| 0|
|beds) | | | | |
|-------------+------+------+------+------|
|CCF (16-49 | 1| 0| 0| 0|
|beds) | | | | |
|-------------+------+------+------+------|
|Certified | 1| 0| 1| 0|
|Foster Home | | | | |
|Children | | | | |
|-------------+------+------+------+------|
|Community | 0| 0| 1| 0|
|Treatment | | | | |
|Facility | | | | |
|-------------+------+------+------+------|
|Family Home | 0| 0| 3| 0|
|Agency | | | | |
|Adults | | | | |
|-------------+------+------+------+------|
|ICF/DD | 0| 0| 0| 0|
|-------------+------+------+------+------|
|ICF/DD-H | 1| 0| 1| 0|
|(4-6 beds) | | | | |
|-------------+------+------+------+------|
|ICF/DD-H | 0| 0| 0| 0|
|(7-15 beds) | | | | |
|-------------+------+------+------+------|
|ICF/DD-N | 2| 0| 3| 0|
|(4-6 beds) | | | | |
|-------------+------+------+------+------|
|Licensed | 3| 0| 3| 0|
|Foster Home | | | | |
|Children | | | | |
-----------------------------------------
|Psychiatric | 1| 0| 1| 0|
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|Treatment | | | | |
|Center | | | | |
-----------------------------------------
|Total | 50| 7| 65| 0|
|-------------+------+------+------+------|
| | | | | |
-----------------------------------------
-----------------------------------------
|Other | 2012 | 2013 |
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-----------------------------------------
|Incident |# of |# w/ |# of |# w/ |
|Location or |incide|injuri|incide|injuri|
|Reporting |nts |es |nts |es |
|Facility | | | | |
-----------------------------------------
|Acute | 1| 0| 1| 0|
|Hospital | | | | |
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|Child's Day | 3| 0| 11| 0|
|Care/Interven| | | | |
|tion | | | | |
|Facility | | | | |
-----------------------------------------
|Camp | 0| 0| 1| 0|
-----------------------------------------
|Community | 6| 0| 11| 0|
|Setting | | | | |
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|Day Program | 14| 0| 28| 2|
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|Home of | 10| 0| 11| 0|
|Family/Parent| | | | |
|/ Guardian | | | | |
-----------------------------------------
|Independent | 0| 0| 1| 0|
|Living | | | | |
|Arrangement | | | | |
-----------------------------------------
|In Transit | 9| 1| 2| 0|
-----------------------------------------
|Job Site | 0| 0| 2| 0|
-----------------------------------------
|Other | 0| 0| 2| 0|
-----------------------------------------
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|Out of Home | 0| 0| 1| 0|
|Respite | | | | |
-----------------------------------------
|Out of State | 0| 0| 0| 0|
|Resident | | | | |
-----------------------------------------
|Public | 4| 0| 3| 0|
|School | | | | |
-----------------------------------------
|Skilled | 2| 0| 2| 0|
|Nursing | | | | |
|Facility | | | | |
-----------------------------------------
|Subacute or | 0| 0| 1| 0|
|Pediatric | | | | |
|Subacute | | | | |
-----------------------------------------
|Supported | 4| 1| 20| 1|
|Living | | | | |
|Arrangement | | | | |
-----------------------------------------
|Total | 53| 2| 97| 3|
-----------------------------------------
| | | | | |
|-------------+------+------+------+------|
|Total | 103| 9| 162|3 |
|Community | | | | |
|Facilities | | | | |
|and Other | | | | |
|Indicents | | | | |
-----------------------------------------
4)Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate Human
Services Committee.
5)Prior legislation. SB 1687 (Conway, Chapter 178, Statutes of
2014) recast statutory rights that already existed in the
Lanterman Developmental Disability Services Act as the
"Persons with Developmental Disabilities Bill of Rights," and
added to those rights the right to a prompt investigation of
any alleged abuse.
SB 130 (Chesbro, Chapter 750, Statutes of 2003), made a number
of changes to law regarding the use of seclusion and
AB 918 (Mark Stone) Page 10 of ?
restraints in a variety of residential facilities, including
psychiatric hospitals, developmental centers, SNFs, and foster
care group homes. Among its provisions were requirements for
periodic administrative review and data collection, submission
and distribution of seclusion and restraint frequency and
outcomes, and public dissemination of data.
6)Support. This bill is sponsored by Disability Rights
California (DRC), which states 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,
but the requirement for non-public facilities was not
implemented. Therefore, DRC states that there is no publicly
accessible data regarding the use of these interventions in
most of the facilities where they are used. Additionally, DRC
states that while each death or serious injury related to the
use of seclusion or behavioral restraint in state operated
facilities is required to be reported to DRC, community
facilities are not required to report these interventions or
any resulting injuries or deaths to DRC. DRC states that
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 Alliance
Supporting People with Intellectual and Developmental
Disabilities states in support that if more people are aware
of and watching out for vulnerable people the result will be
greater protection and an ability to investigate, stop or
prevent such incidents. The National Association of Social
Workers states in support that using behavioral and seclusion
restraint has significant risks for all individuals, and that
by increasing transparency, this bill will help reduce the use
of restraint with this population. The California Association
of Psychiatric Technicians states in support that with no
public data available, family members and advocates have no
way to know about the frequency and appropriateness of
seclusion and restraint use on their loved ones.
7)Data on use of restraint in community facilities should
already be public. Existing law requires data collection, and
public reporting of this data, related to the use of seclusion
and behavioral restraints when it occurs in state operated
facilities such as state hospitals and developmental centers,
and the author and sponsor note that this law is being
AB 918 (Mark Stone) Page 11 of ?
complied with. However, existing law also requires the
Secretary of Health and Human Services Agency to establish a
similar data collection and public reporting system for the
use of these interventions in the various types of community
facilities, such as ICFs, CCFs, and group homes. It is this
latter requirement that the author and sponsor assert is not
being complied with, as this information is not readily
accessible on a state website anywhere. This bill addresses
this lack of compliance with state law, in part, by moving
this requirement into the body of law establishing the
Lanterman Act, as opposed to the current placement of the
requirement in the licensing provisions of health facilities,
and by linking the data to the special incident reports that
are reported to the regional centers and then provided to DDS.
Additionally, this bill specifically places the responsibility
for this reporting system with DDS.
SUPPORT AND OPPOSITION :
Support: Disability Rights California (sponsor)
Alliance Supporting People with Intellectual and
Developmental Disabilities
California Association of Psychiatric Technicians
California Chapter of the National Association of
Social Workers
State Council on Developmental Disabilities
Oppose: None received
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