BILL ANALYSIS Ó SENATE COMMITTEE ON HUMAN SERVICES Senator McGuire, Chair 2015 - 2016 Regular Bill No: AB 918 ----------------------------------------------------------------- |Author: |Mark Stone | ----------------------------------------------------------------- |----------+-----------------------+-----------+-----------------| |Version: |June 25, 2015 |Hearing | July 14, 2015 | | | |Date: | | |----------+-----------------------+-----------+-----------------| |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Mareva Brown | |: | | ----------------------------------------------------------------- Subject: Developmental services: reporting: seclusion and restraint SUMMARY This bill requires the Department of Developmental Services (DDS) to make public existing information that it receives from regional centers on the use of physical and chemical restraints by publishing the information on its Internet Web site. It also requires regional center vendors that provide supported living services, residential care, long-term health care, or acute psychiatric care to report each death or serious injury of a person related to the use of seclusion or physical or chemical restraint to the protection and advocacy agency designated by the state. ABSTRACT Existing law: 1) Creates the Lanterman Developmental Disabilities Services Act, which establishes that California is responsible for providing an array of services and supports sufficiently complete to meet the needs and choices of each person with developmental disabilities, regardless of age or degree of disability, and at each stage of life and to support their integration into the mainstream life of the community. (WIC 4500, et al) AB 918 (Mark Stone) Page 2 of ? 2) Establishes the jurisdiction of DDS over state-run institutions for developmentally disabled residents, known as Developmental Centers, and sets forth responsibilities for caring for and monitoring the residents in its care. (WIC 4440 et seq.) 3) Establishes a system of nonprofit regional centers, overseen by DDS, to provide fixed points of contact in the community for all persons with developmental disabilities and their families, to coordinate services and supports best suited to them throughout their lifetime. (WIC 4620) 4) Establishes an Individual Program Plan (IPP) and defines that planning process as the vehicle to ensure that services and supports are customized to meet the needs of consumers who are served by regional centers. (WIC 4512) 5) Requires a regional center to secure services and supports that meet the needs of the consumer, as determined in the IPP, and to give highest preference to those which would allow minors with developmental disabilities to live with their families, adult persons with developmental disabilities to live as independently as possible in the community, and that allow all consumers to interact with persons without disabilities in positive, meaningful ways. (WIC 4648) 6) Establishes within state institutions, including the state's Developmental Centers, the requirement for training in order to reduce the use of seclusion and behavioral restraints and identifies a number of best practices for staff to prevent incidents of seclusion and behavioral restraints. (HSC 1180, et seq.) 7) Requires the state departments of State Hospitals and Developmental Services to establish a system of mandatory, consistent, timely and publicly accessible data collection regarding the use of seclusion and behavioral restraints, as defined, and requires the departments to make the information public on the Internet. Requires that data made public include the number of deaths, serious injuries sustained by individuals or staff, the number of incidents and other information relating the to the use of behavioral restraints. (HSC 1180.2 (d)) AB 918 (Mark Stone) Page 3 of ? 8) Requires state-run Developmental Centers to report each death or serious injury of a person occurring during, ore related to the use of seclusion or behavioral restraints to the state's designated protection and advocacy agency using the encrypted identifier of the consumer involved and the name, street address and telephone number of the facility. (HSC 1180.2 (e)) 9) Requires, through regulation, Special Incident Reporting (SIR) by regional center vendors and long-term health care facilities with residents who are regional center consumers, within 48 hours of any reportable incident, including use of physical and/or chemical restraints. (CCR title 17 §54327) This bill: 1) Makes a series of uncodified Legislative findings and declarations, including that the President's New Freedom Commission on Mental Health finds the use of behavioral restraint and seclusion can cause serious injury or death, that California's tracking of these incidents is not publicly reported for community facilities serving individuals with developmental disabilities, and that the Legislature intends that data regarding the use of restraint in specified community facilities is publicly available to ensure quality services and a reduction in the use of restraint. 2) Adds two new sections, WIC 4436.5 under the section outlining the Department's administrative duties, and WIC 4659.2, within statute establishing the responsibility of regional centers, and defines the following terms: a. "Physical restraint" means any behavioral or mechanical restraint, as defined. b. "Chemical restraint" means a drug that is used to control behavior and that is used in a manner not AB 918 (Mark Stone) Page 4 of ? required to treat the patient's medical conditions. c. "Long-term health care facility" means a facility, as defined in Section 1418 of the Health and Safety Code. d. "Acute psychiatric hospital" means a facility defined Health and Safety Code Section 1250(b), including an institution for mental disease. e. "Seclusion," for purposes of the regional center responsibility code, means involuntary confinement of a person alone in a room or an area, as defined. 3) Requires DDS to ensure the consistent, timely, and public reporting of data it receives from regional centers, as defined in regulation, related to the use of physical restraint, chemical restraint, or both, by all regional center vendors who provide residential services, supported living services, and by long-term health care facilities and acute psychiatric hospitals serving individuals with developmental disabilities. 4) Requires DDS to publish quarterly on its Internet Web site the number of incidents of physical and chemical restraint, segregated by individual regional center vendor that provides residential services or supported living services and each individual long-term health care facility and acute psychiatric hospital that serves persons with developmental disabilities. 5) Requires regional center vendors that provide residential services or supported living services, long-term health care facilities, and acute psychiatric hospitals 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 protection and advocacy agency identified by the state no AB 918 (Mark Stone) Page 5 of ? later than the close of the business day following the death or serious injury. The report shall include the encrypted identifier of the person involved, and the name, street address, and telephone number of the facility. FISCAL IMPACT According to an Assembly Appropriations Committee analysis, this bill will incur approximately $200,000 (Licensing and Certification special fund/GF) in one-time regulatory and system development costs to establish regulations detailing the forms and reporting requirements, data collection and analysis protocols, a database, training and educational materials, and a consumer-facing website. Additionally, the bill likely will incur ongoing minor costs to maintain the data once infrastructure is established, 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. BACKGROUND AND DISCUSSION Purpose of the bill: According to the author, this bill seeks to close an oversight gap as consumers move from the state's Developmental Centers, which are required to publicly report incidents of restraint, to community facilities. The bill requires information about the use physical and chemical restraints be reported on the DDS web site quarterly and requires any death or serious injury resulting from a seclusion or physical or chemical restraint to the protection and advocacy agency designated by the state, which is Disability Rights California. The author states that with more and more people moving into community facilities, there needs to be the same oversight to reduce the use of seclusion and behavioral restraints as in the Developmental Centers. The Lanterman Act AB 918 (Mark Stone) Page 6 of ? The Lanterman Developmental Disabilities Services Act establishes an entitlement to services and supports for Californians with developmental disabilities who are living in their communities. A developmental disability is one that originates before the age of 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability. The state's 21 nonprofit regional centers vary considerably in size and organization, from Redwood Coast Regional Center, which serves approximately 3,300 consumers, to Inland Regional Center, with a caseload of nearly 29,000. The mean is around 12,000 consumers. Services are developed locally and regional centers "vendorize" providers to deliver services in local catchment areas. Regional centers provide diagnosis and assessment of eligibility and help plan, access, coordinate and monitor the services and supports that are needed because of an individual's developmental disability. Services for consumers are determined through an individual program plan (IPP). Developmental Centers The institutional population in California has decreased dramatically since the 1960s, from a high of 13,400 people in eight institutions in 1968 to the current population of 1,077. Closure of Lanterman Developmental Center was completed at the end of 2014. In May, the state moved to close Sonoma Developmental Center by the end of 2018, prompted by the federal government's decision to revoke funding for half of the center's population. The census at the remaining facilities, which originally were designed to serve between 2,500 and 3,500 clients each is now below 400. As of July 1, 2015, Sonoma's census was 393, Fairview had 271 residents and Porterville had 362. Canyon Springs, a smaller state-run facility, had 51 residents. In the last 12 months, the population of developmental centers has dropped by 173, from 1,250 residents to the current census of 1,077. Seclusion and restraint reporting in state facilities DDS and the Department of State Hospitals both are required by statute to establish a system of mandatory, consistent, timely, and publicly accessible data about the use of seclusion and behavioral restraints. AB 918 (Mark Stone) Page 7 of ? Both departments are required to develop a mechanism for making the information publicly available on the Internet and to report 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 seclusion or behavioral restraints. Additionally, both departments must report the number of serious injuries sustained by consumers and by staff while in seclusion or subject to behavioral restraints, as well as the number of incidents of seclusion and restraints and the duration of time spent in each control situation. In addition to public reporting, each facility is required to report each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints. This report shall be made to the agency designated in subdivision (i) of Section 4900 of the Welfare and Institutions Code no later than the close of the business day following the death or injury. The report shall include the encrypted identifier of the person involved, and the name, street address, and telephone number of the facility. Community settings Approximately 290,000 children and adults with developmental disabilities are served in community-based programs and supported by state- and federally funded services that are coordinated by the local, nonprofit regional centers, according to March 2015 data from DDS. About 77 percent of all consumers and 97 percent of child consumers live in the home of a parent or guardian or in their own home, according to 2015 DDS data. About 26,500 people live in community care facilities, often called group homes, another 7,300 live in Intermediate Care Facilities, designed for individuals with health care needs as well as a variety of other settings, including a small number in mental health facilities. Special Incident Reports Community settings are not subject to the same public reporting requirements as the state institutions. Residential facilities are required to file "Special Incident Reports" or SIRs to their vendoring regional centers, and to the regional center with responsibility for the consumer, if it is different. Per AB 918 (Mark Stone) Page 8 of ? regulation, the SIR must be sent to the regional center(s) within 48 hours of the incident and regional centers must then report the incidents to DDS within two working days. According to DDS, there were 135 SIRs reported for use of restraints statewide in 2014 from facilities that housed a total of 35,318 regional center consumers. Of those SIRs, 26 were from psychiatric treatment centers - or one in five reports - which housed a total of 100 consumers. Specifically, the incidents stemmed from just two psychiatric facilities which reported multiple incidences of intramuscular injections of medication used for consumers experiencing extreme behavioral issues as well as other reports for physical restraints or physical and chemical restraints together. Another 61 SIRs were reported for restraints within four- to six-bed community care facilities, which housed a total of 20,291 residents in 2014. Nineteen were within community care facilities with between one and three beds, which housed 730 individuals. Thirteen were within small Intermediate Care Facilities for the Developmentally Disabled / Habilitation (ICF/DD/H), which are homes typically used for individiuals with high behavioral treatment needs and which housed 4,021 regional center consumers in 2014. According to DDS, the regional centers reported no deaths as a result of chemical or physical restraints in 2012 or 2013. Although the SIRs are required to be reported to DDS, and are monitored by the Department, they are not required to be reported publicly. Related legislation: SB 130 (Chesbro, Chapter 750, Statutes of 2003) established oversight of the use of seclusion and restraints in a variety of residential facilities, including psychiatric hospitals, DCs, skilled nursing facilities and foster care group homes. COMMENTS As the state has moved to de-institutionalize its consumers in the developmental disabilities services system, some advocates have expressed concern that the scrutiny imposed over incidents at the Developmental Centers does not carry into community facilities. This bill increases the transparency around AB 918 (Mark Stone) Page 9 of ? seclusion and restraint incidents in community facilities in two ways: 1. It requires DDS to post on its website the SIRs information that it already collects but does not currently disseminate publicly. Since the SIR reports do not require information to be reported on seclusion information, that data is not being required in this bill. 2. It requires that community facilities in which a seclusion or restraint incident results in the death or serious injury to a consumer, to report that information to the state's designated protection and advocacy agency. This reporting requirement exists currently in the Developmental Centers, but does not exist in the community. This bill includes acute psychiatric facilities in the list of facilities that are required to report restraints to regional centers and death and serious injury involving seclusion or restraint to the protection and advocacy agency. The author and sponsor said the facilities already are required to report SIRs to the regional centers if they are caring for a regional center client. However, it is possible that the language could expand the requirement to report in the case of psychiatric hospital that is serving a regional center client that is not being funded through the regional center, such as a private insurer. To clarify that the bill only intends to include those entities that are currently required to report SIRs, staff recommends the following clarifying amendments: SECTION 2 4436.5. (a) (3) "Long-term health care facility" means a facility, as defined in Section 1418 of the Health and SafetyCode. Code, that is required to report to a regional center pursuant to Section 54327 of Title 17 of the California Code of Regulations. (4) "Acute psychiatric hospital" means afacilityfacility, as defined in subdivision (b) of Section 1250 of the Health and Safety Code, including an institution for mentaldisease.disease, that is a regional center vendor. (5) "Regional center vendor," means an agency, individual, or AB 918 (Mark Stone) Page 10 of ? service provider that a regional center has approved to provide vendored or contracted services or supports pursuant to subparagraph (3) of subdivision (a) of Section 4648. SECTION 3. 4659.2. (a) (4) "Long-term health care facility" means a facility, as defined in Section 1418 of the Health and SafetyCode. Code, that is required to report to a regional center pursuant to Section 54327 of Title 17 of the California Code of Regulations. (5) "Acute psychiatric hospital" means afacilityfacility, as defined in subdivision (b) of Section 1250 of the Health and Safety Code, including an institution for mentaldisease.disease, that is a regional center vendor. (6) "Regional center vendor," means an agency, individual, or service provider that a regional center has approved to provide vendored or contracted services or supports pursuant to subparagraph (3) of subdivision (a) of Section 4648. PRIOR VOTES ----------------------------------------------------------------- |Assembly Floor: |77 - | | |0 | |-----------------------------------------------------------+-----| |Assembly Appropriations Committee: |17 - | | |0 | |-----------------------------------------------------------+-----| |Assembly Health Committee: |18 - | | |0 | | | | ----------------------------------------------------------------- POSITIONS Support: Disability Rights California (Sponsor) Alliance Supporting People with Intellectual and AB 918 (Mark Stone) Page 11 of ? Developmental Disabilities California Association of Psychiatric Technicians National Association of Social Workers, California Chapter State Council on Developmental Disabilities Oppose: Department of Finance -- END --