BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 918|
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THIRD READING
Bill No: AB 918
Author: Mark Stone (D)
Amended: 7/16/15 in Senate
Vote: 21
SENATE HEALTH COMMITTEE: 8-0, 7/8/15
AYES: Hernandez, Nguyen, Hall, Monning, Nielsen, Pan, Roth,
Wolk
NO VOTE RECORDED: Mitchell
SENATE HUMAN SERVICES COMMITTEE: 5-0, 7/14/15
AYES: McGuire, Berryhill, Hancock, Liu, Nguyen
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 6/2/15 - See last page for vote
SUBJECT: Seclusion and restraint: developmental services:
health facilities
SOURCE: Disability Rights California
DIGEST: This bill 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.
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ANALYSIS:
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)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.
5)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.
6)Requires the Governor to designate, pursuant to federal law, a
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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
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
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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.
7)Defines "long-term health care facility," for purposes of this
bill, as any of the following facilities that are required to
report to a regional center pursuant to specified regulations:
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 that is a
regional center vendor.
8)Defines "regional center vendor" as an agency, individual, or
service provider that a regional center has approved to
provide vendored or contracted services or supports, pursuant
to specified provisions of existing law.
9)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.
Comments
Author's statement. According to the author, while existing law
requires reporting the use of seclusion and restraints on
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individuals with developmental disorders in developmental
centers, no such requirement exists for community facilities.
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.
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
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closure plan with the goal of limiting the role of the state in
directly operating facilities and serving more developmentally
disabled individuals in the community.
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.
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 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
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/18/15)
Disability Rights California (source)
Alliance Supporting People with Intellectual and Developmental
Disabilities
California Association of Psychiatric Technicians
California Chapter of the National Association of Social Workers
California Long Term Care Ombudsman Association
State Council on Developmental Disabilities
OPPOSITION: (Verified8/18/15)
Department of Finance
ARGUMENTS IN 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
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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.
ARGUMENTS IN OPPOSITION: The Department of Finance (DOF) states
in opposition that this bill is unnecessary and may not be
achievable within existing resources. According to DOF,
community providers are currently required to report specified
information, including the use of restraints, to state agencies
as well as regional centers and this information is currently
available to the protection and advocacy agency upon request.
While DOF states that the costs to post existing information
online is likely minor, it is unclear that DDS can absorb the
additional costs to meet the posting timeline requirements, and
that there will likely be cost pressures for regional centers to
also provide information separately to the protection and
advocacy agency.
ASSEMBLY FLOOR: 77-0, 6/2/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth,
Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk,
Williams, Wood, Atkins
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NO VOTE RECORDED: Chávez, Grove, Quirk
Prepared by:Vince Marchand / HEALTH /
8/19/15 20:54:15
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