BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 918
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|Author: |Mark Stone |
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|Version: |June 25, 2015 |Hearing | July 14, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Mareva Brown |
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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)
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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))
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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
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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
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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
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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.
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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
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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
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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 Safety
Code . 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 a facility facility, as
defined in subdivision (b) of Section 1250 of the Health and
Safety Code, including an institution for mental disease.
disease, that is a regional center vendor.
(5) "Regional center vendor," means an agency, individual, or
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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 Safety
Code . 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 a facility facility, as
defined in subdivision (b) of Section 1250 of the Health and
Safety Code, including an institution for mental disease.
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
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|Assembly Floor: |77 - |
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|Assembly Appropriations Committee: |17 - |
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|Assembly Health Committee: |18 - |
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POSITIONS
Support:
Disability Rights California (Sponsor)
Alliance Supporting People with Intellectual and
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Developmental Disabilities
California Association of Psychiatric Technicians
National Association of Social Workers, California Chapter
State Council on Developmental Disabilities
Oppose:
Department of Finance
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