BILL ANALYSIS                                                                                                                                                                                                    



          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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