BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 918
          Author:   Mark Stone (D), et al.        
          Amended:  8/26/15 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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          Senate Floor Amendments of 8/26/15 made a technical change, and  
          added a co-author.

          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  







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            publicly available on the Internet.

          6)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  
            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,







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             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.

          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







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          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.  
            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  







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            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  
            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.



          4)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  







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            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.




          FISCAL EFFECT:                Appropriation:      No   Fiscal  
          Com.:    Yes   Local:         No




          SUPPORT:   (Verified8/27/15)


          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:   (Verified8/27/15)


          Department of Finance


          ARGUMENTS IN SUPPORT:     This bill is sponsored by Disability  
          Rights California (DRC), which states that current law requires  







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          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.


          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.







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          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
          NO VOTE RECORDED:  Chávez, Grove, Quirk

          Prepared by:Vince Marchand / HEALTH / 
          8/27/15 14:16:20


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