BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 918    
           --------------------------------------------------------------- 
          |AUTHOR:        |Mark Stone                                     |
          |---------------+-----------------------------------------------|
          |VERSION:       |June 25, 2015                                  |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |HEARING DATE:  |July 1, 2015   |               |               |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |CONSULTANT:    |Vince Marchand                                 |
           --------------------------------------------------------------- 
          
           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  :  
          
           ----------------------------------------------------------------- 
          |Assembly Floor:                     |77 - 0                      |
          |------------------------------------+----------------------------|
          |Assembly Appropriations Committee:  |17 - 0                      |
          |------------------------------------+----------------------------|
          |Assembly Health Committee:          |18 - 0                      |
          |                                    |                            |
           ----------------------------------------------------------------- 
           
          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:

          
               ----------------------------------------- 
              |    Special Incidents Report: Alleged    |
              |    Physical and Chemical Restraints,    |
              |                2012-2013                |
               ----------------------------------------- 
               ----------------------------------------- 
              |             |      |      |      |      |
               ----------------------------------------- 
               ----------------------------------------- 
              |Community    |    2012     |    2013     |
              |Facilities   |             |             |
               ----------------------------------------- 








          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|








          AB 918 (Mark Stone)                                Page 8 of ?
          
          
              |Treatment    |      |      |      |      |
              |Center       |      |      |      |      |
               ----------------------------------------- 
              |Total        |    50|     7|    65|     0|
              |-------------+------+------+------+------|
              |             |      |      |      |      |
               ----------------------------------------- 
               ----------------------------------------- 
              |Other        |    2012     |    2013     |
               ----------------------------------------- 
               ----------------------------------------- 
              |Incident     |# of  |# w/  |# of  |# w/  |
              |Location or  |incide|injuri|incide|injuri|
              |Reporting    |nts   |es    |nts   |es    |
              |Facility     |      |      |      |      |
               ----------------------------------------- 
              |Acute        |     1|     0|     1|     0|
              |Hospital     |      |      |      |      |
               ----------------------------------------- 
              |Child's Day  |     3|     0|    11|     0|
              |Care/Interven|      |      |      |      |
              |tion         |      |      |      |      |
              |Facility     |      |      |      |      |
               ----------------------------------------- 
              |Camp         |     0|     0|     1|     0|
               ----------------------------------------- 
              |Community    |     6|     0|    11|     0|
              |Setting      |      |      |      |      |
               ----------------------------------------- 
              |Day Program  |    14|     0|    28|     2|
               ----------------------------------------- 
              |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|
               ----------------------------------------- 








          AB 918 (Mark Stone)                                Page 9 of ?
          
          
              |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

                                      -- END --