BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 918| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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. AB 918 Page 2 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 AB 918 Page 3 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, AB 918 Page 4 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 AB 918 Page 5 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 AB 918 Page 6 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 AB 918 Page 7 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 AB 918 Page 8 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. AB 918 Page 9 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 **** END ****