Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California Health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Under existing law, the Lanterman Developmental Disabilities Services Act, the State Department of Developmental Services contracts with regional centers to provide services and supports to individuals with developmental disabilities. Existing law requires all vendors and long-term health care facilities, as defined, to report special incidents to a regional center, including, among other things, incidents of physical and chemical restraint. Existing law requires a regional center that receives information from a special incident report regarding the use of physical or chemical restraint, to report that information to the department, as specified.

This bill would require the department to ensure the consistent, timely, and public reporting of data it receives from regional centers and other specified facilities regarding the use of physical or chemical restraint and to publish that information on its Internet Web site.

This bill would also require regional center vendors that provide residential services or supported living services, long-term health care facilities, as defined, and acute psychiatric hospitals, as defined, to report each death or serious injury of a person occurring during, or related to, the use of seclusion, physical restraint, or chemical restraint, as specified.

This bill would make related findings and declarations.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California Health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Under existing law, the Lanterman Developmental Disabilities Services Act, the State Department of Developmental Services contracts with regional centers to provide services and supports to individuals with developmental disabilities. Existing law requires all vendors and long-term health care facilities, as defined, to report special incidents to a regional center, including, among other things, incidents of physical and chemical restraint. Existing law requires a regional center that receives information from a special incident report regarding the use of physical or chemical restraint, to report that information to the department, as specified.

This bill would require the department to ensure the consistent, timely, and public reporting of data it receives from regional centers and other specified facilities regarding the use of physical or chemical restraint and to publish that information on its Internet Web site.

This bill would also require regional center vendors that provide residential services or supported living services, long-term health care facilities, as defined, and acute psychiatric hospitals, as defined, to report each death or serious injury of a person occurring during, or related to, the use of seclusion, physical restraint, or chemical restraint, as specified.

This bill would make related findings and declarations.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California Health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Under existing law, the Lanterman Developmental Disabilities Services Act, the State Department of Developmental Services contracts with regional centers to provide services and supports to individuals with developmental disabilities. Existing law requires all vendors and long-term health care facilities, as defined, to report special incidents to a regional center, including, among other things, incidents of physical and chemical restraint. Existing law requires a regional center that receives information from a special incident report regarding the use of physical or chemical restraint, to report that information to the department, as specified.

This bill would require the department to ensure the consistent, timely, and public reporting of data it receives from regional centers and other specified facilities regarding the use of physical or chemical restraint and to publish that information on its Internet Web site.

This bill would also require regional center vendors that provide residential services or supported living services, long-term health care facilities, as defined, and acute psychiatric hospitals, as defined, to report each death or serious injury of a person occurring during, or related to, the use of seclusion, physical restraint, or chemical restraint, as specified.

This bill would make related findings and declarations.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California Health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Under existing law, the Lanterman Developmental Disabilities Services Act, the State Department of Developmental Services contracts with regional centers to provide services and supports to individuals with developmental disabilities. Existing law requires all vendors and long-term health care facilities, as defined, to report special incidents to a regional center, including, among other things, incidents of physical and chemical restraint. Existing law requires a regional center that receives information from a special incident report regarding the use of physical or chemical restraint, to report that information to the department, as specified.

This bill would require the department to ensure the consistent, timely, and public reporting of data it receives from regional centers and other specified facilities regarding the use of physical or chemical restraint and to publish that information on its Internet Web site.

This bill would also require regional center vendors that provide residential services or supported living services, long-term health care facilities, as defined, and acute psychiatric hospitals hospitals, as defined, to report each death or serious injury of a person occurring during, or related to, the use of seclusion, physical restraint, or chemical restraint, as specified.

This bill would make related findings and declarations.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California health Health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Under existing law, the Lanterman Developmental Disabilities Services Act, the State Department of Developmental Services contracts with regional centers to provide services and supports to individuals with developmental disabilities. Existing law requires all vendors and long-term health care facilities, as defined, to report special incidents to a regional center, including, among other things, incidents of physical or and chemical restraint, or both. Existing law requires a regional center that receives information from a special incident report regarding the use of physical or chemical restraint, or both, to report that information to the department, as specified.

This bill would require the department to ensure the consistent, timely, and public reporting of data it receives from regional centers and other specified facilities regarding the use of physical or chemical restraint and to publish that information on its Internet Web site.

This bill would also require regional center vendors that provide residential services or supported living services and services, long-term health care facilities 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, as specified.

This bill would make related findings and declarations.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires specified entities within the California health and Human Services Agency 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 operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

Existing law requires the Secretary of California Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires the secretary specified entities within the California health and Human Services Agency 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 all facilities. state hospitals operated by the State Department of State Hospitals, facilities operated by the State Department of Developmental Services, and other specified facilities that utilize seclusion or behavioral restraints.

The bill would require these facilities require, on or before January 1, 2017, the secretary 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 additional facilities, including adult residential facilities, that utilize seclusion or behavioral restraints. The bill would require these facilities to report to the protection and advocacy agency designated by the Governor each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints.

Existing law requires the Secretary of Health and Human Services to develop technical assistance and training programs to support the efforts of community care facilities, group homes, skilled nursing facilities, intermediate care facilities, and mental health rehabilitation centers, among others, to reduce or eliminate the use of seclusion and behavioral restraints in these facilities. Existing law requires the secretary 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 all facilities.

The bill would require these facilities to report to the protection and advocacy agency designated by the Governor each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 918

Author:(Mark Stone)

As Amended Ver:August 26, 2015

Majority vote

Original Committee Reference: HEALTH

SUMMARY: Requires the Secretary of California Health and Human Services to establish a system of mandatory, consistent, timely, and publicly accessible data collection related to data on seclusion and restraint in community facilities serving aged and developmentally disabled persons, as specified. Requires the Department of Developmental Services (DDS) to publish on its Web page the number of incidents of physical and chemical restraint in community facilities, as specified. Requires community facilities to report every death or serious injury of a person in seclusion or in physical or chemical restraint no later than the close of business day following the death or serious injury.

The Senate amendments define "regional center vendor" as an agency, individual, or service provider that a regional center has approved to provide vendored or contracted services; specify that acute psychiatric hospitals must also meet the requirements of this bill, and; clarify that institutions for mental diseases that are regional center vendors meet the definition of an acute psychiatric hospital.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: According to the author, while existing law protects individuals with developmental disorders in developmental centers (DCs) from unreported use of seclusions and restraint, the populations in these facilities are changing. State facilities are beginning to close and more people are living in community facilities. The author states that this move can be heralded as an important and beneficial move for those with developmental disabilities, but it also leaves them vulnerable to the use of seclusion and behavioral restraint as tactics to control behavior.

The author also states that the Legislature has made findings and declarations indicating that the use of seclusions and restraints is not a treatment nor does it positively change behavior. When the state first implemented reporting and publishing requirements, most individuals were living in DCs. However, now California is moving individuals to community facilities, where no such requirement exists. According to the author, California must protect these vulnerable individuals, give consumers more information when choosing a facility, and allow the government and the designated protection and advocacy agency, Disability Rights California (DRC), the ability to compare the use of seclusion and restraint across facilities.

1. DCs. California provides services and support to individuals with developmental disabilities in two ways. The vast majorities 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. More than 99% of DDS consumers receive services in this way under the Community Services Program. A smaller number of individuals, or less than 1% of the DDS caseload, live in three state-operated DCs and one state-operated community facility. DDS operates three DCs: Fairview (Orange County); Porterville (Tulare County); and, Sonoma (Sonoma County). Among other services, Porterville also provides secure treatment services. A fourth DC, Lanterman, transitioned its last resident into community living on December 23, 2014. Services at all facilities involve the provision of active treatment through residential and day programs on a 24-hour basis, including appropriate medical and dental care, health maintenance activities, and assistance with activities of daily living, training, education, and employment.

2. Population Transitions. During a period of recent budget deficits, the Legislature enacted numerous DDS budget reductions and cost savings measures to yield General Fund savings. The 2012-13 budget imposed a moratorium on admissions to DCs except for individuals involved in the criminal justice system, and consumers in an acute crisis needing short-term stabilization. The high costs to maintain and staff these facilities, coupled with an emphasis on transitioning individuals back into their community, have led to the closure and/or restructuring of many DCs. The moratorium on DC admission as well as the need for the availability of services in the community have led to a shift in spending from the DCs to the community services programs. The 2015-16 Budget reflects this change, as the budget for DCs has decreased and the Community Services budget has increased.

DRC, the sponsors of the bill, write in support of this bill that residents in DCs are moving from large state facilities and into smaller community facilities. Family members and advocates are concerned about the unknown and unreported use of behavioral restraint and seclusion; dangerous practices that often result in serious injuries, even death. The concern continues to grow as individuals with behavioral challenges migrate from DCs where there is public reporting and accountability to isolated community settings where there is no public accountability regarding as to the use of seclusion and behavioral restraint. 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 National Association of Social Workers (NASW) writes that through previous legislation, the state has attempted to reduce or eliminate the use of seclusion or behavior restraints at state facilities. Efforts have also been made to make the data on the use of seclusion and restraints available to the public. Currently, these laws do not apply to community facilities. NASW argues this bill will require information about deaths or serious injury available to the protection and advocacy agency designated by the Governor.

There is no known opposition to this bill.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097 FN: 0001864

 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.

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 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:

1. The number of incidents of physical restraint; and,

2. 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

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 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 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: (Verified 8/27/15)

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: (Verified 8/27/15)

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 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

NO VOTE RECORDED: Chávez, Grove, Quirk

Prepared by: Vince Marchand / HEALTH /

8/27/15 14:16:20

**** END ****

 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.

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 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:

1. The number of incidents of physical restraint; and,

2. 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

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.

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 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 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: (Verified 8/18/15)

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: (Verified 8/18/15)

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 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

NO VOTE RECORDED: Chávez, Grove, Quirk

Prepared by: Vince Marchand / HEALTH /

8/19/15 20:54:15

**** END ****

SENATE COMMITTEE ON HUMAN SERVICES

Senator McGuire, Chair

2015 - 2016 Regular

Bill No: AB 918

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)

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))

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:

   1. “Physical restraint” means any behavioral or mechanical restraint, as defined.

   2. “Chemical restraint” means a drug that is used to control behavior and that is used in a manner not required to treat the patient’s medical conditions.

   3. “Long-term health care facility” means a facility, as defined in Section 1418 of the Health and Safety Code.

   4. “Acute psychiatric hospital” means a facility defined Health and Safety Code Section 1250(b), including an institution for mental disease.

   5. “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 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

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.

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 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 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 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

POSITIONS

Support:

Disability Rights California (Sponsor)

Alliance Supporting People with Intellectual and Developmental Disabilities

California Association of Psychiatric Technicians

National Association of Social Workers, California Chapter

State Council on Developmental Disabilities

Oppose:

Department of Finance

-- END --

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: AB 918

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 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 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:

1. The number of incidents of physical restraint; and,

2. 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: 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:

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. 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 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:

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 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 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 --

ASSEMBLY THIRD READING

ATR Bill Id:AB 918

Author:(Mark Stone)

As Amended Ver:May 28, 2015

Majority vote

SUMMARY: Requires the Secretary of California Health and Human Services to establish a system of mandatory, consistent, timely, and publicly accessible data collection related to data on seclusion and restraint in community facilities serving aged and developmentally disabled persons, as specified. Requires the Department of Developmental Services (DDS) to publish on its Web page the number of incidents of physical and chemical restraint in community facilities, as specified. Requires community facilities to report every death or serious injury of a person in seclusion or in physical or chemical restraint no later than the close of business day following the death or serious injury.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill would 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.

COMMENTS: According to the author, while existing law protects individuals with developmental disorders in developmental centers (DCs) from unreported use of seclusions and restraint, the populations in these facilities are changing. State facilities are beginning to close and more people are living in community facilities. The author states that this move can be heralded as an important and beneficial move for those with developmental disabilities, but it also leaves them vulnerable to the use of seclusion and behavioral restraint as tactics to control behavior.

The author also states that the Legislature has made findings and declarations indicating that the use of seclusions and restraints is not a treatment nor does it positively change behavior. When the state first implemented reporting and publishing requirements, most individuals were living in DCs. However, now California is moving individuals to community facilities, where no such requirement exists. According to the author, California must protect these vulnerable individuals, give consumers more information when choosing a facility, and allow the government and the designated protection and advocacy agency, Disability Rights California (DRC), the ability to compare the use of seclusion and restraint across facilities.

1. DCs. California provides services and support to individuals with developmental disabilities in two ways. The vast majorities 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. More than 99% of DDS consumers receive services in this way under the Community Services Program. A smaller number of individuals, or less than 1% of the DDS caseload, live in three state-operated DCs and one state-operated community facility. DDS operates three DCs: Fairview (Orange County); Porterville (Tulare County); and, Sonoma (Sonoma County). Among other services, Porterville also provides secure treatment services. A fourth DC, Lanterman, transitioned its last resident into community living on December 23, 2014. Services at all facilities involve the provision of active treatment through residential and day programs on a 24-hour basis, including appropriate medical and dental care, health maintenance activities, and assistance with activities of daily living, training, education, and employment.

2. Population Transitions. During a period of recent budget deficits, the Legislature enacted numerous DDS budget reductions and cost savings measures to yield General Fund savings. The 2012-13 budget imposed a moratorium on admissions to DCs except for individuals involved in the criminal justice system, and consumers in an acute crisis needing short-term stabilization. The high costs to maintain and staff these facilities, coupled with an emphasis on transitioning individuals back into their community, have led to the closure and/or restructuring of many DCs. The moratorium on DC admission as well as the need for the availability of services in the community have led to a shift in spending from the DCs to the community services programs. The 2015-16 budget reflects this change, as the budget for DCs has decreased and the Community Services budget has increased.

DRC, the sponsors of the bill, write in support of the bill that residents in DCs are moving from large state facilities and into smaller community facilities. Family members and advocates are concerned about the unknown and unreported use of behavioral restraint and seclusion; dangerous practices that often result in serious injuries, even death. The concern continues to grow as individuals with behavioral challenges migrate from DCs where there is public reporting and accountability to isolated community settings where there is no public accountability regarding as to the use of seclusion and behavioral restraint. 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 National Association of Social Workers (NASW) writes that through previous legislation, the state has attempted to reduce or eliminate the use of seclusion or behavior restraints at state facilities. Efforts have also been made to make the data on the use of seclusion and restraints available to the public. Currently, these laws do not apply to community facilities. NASW argues this bill will require information about deaths or serious injury available to the protection and advocacy agency designated by the Governor.

There is no known opposition to this bill.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097 FN: 0000850

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 918

Author:(Mark Stone) – As Amended Ver:April 6, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill:

1. Applies existing data reporting requirements related to the use of seclusion or restraints, which currently apply to state institutions, to a number of licensed community facility types serving primarily elderly or developmentally disabled individuals.

2. Requires the Secretary of Health and Human Services to take steps to establish a system of mandatory, consistent, timely, and publicly accessible data collection related to this data.

3. Requires facilities to report specified data about deaths or serious injuries related to seclusion or restraints to the designated protection and advocacy agency (currently Disability Rights California (DRC)).

FISCAL EFFECT:

1. 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.

2. Ongoing costs to maintain this data once infrastructure is established will likely be minor, 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.

COMMENTS:

1. Purpose. This bill updates reporting requirements regarding the use of seclusion and restraints of persons cared for in licensed facilities, to recognize that most people with developmental disabilities now live in community settings instead of state Developmental Centers. The author indicates the bill will have a twofold impact: data transparency itself has been shown to reduce the use of seclusion and restraints, and the data can also be used to compare facilities and identify facilities where it is more commonly used. This bill is sponsored by DRC.

2. Staff Comments. This bill could benefit from technical and clarifying amendments. The bill does not clearly mandate data be provided by facilities to the Secretary or his or her designee, but only suggests the system established by the Secretary be mandatory. The bill also requires the Secretary to "take steps" to establish a system, whereas it appears the intent is clearly to establish a system. Finally, the bill refers to "publicly accessible data collection," but it is the data itself, not its collection, that will be of use to the public. These provisions could all be clarified. In addition, if the intent is to mirror or build on an existing reporting system, this could be made more explicit.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 7, 2015

ASSEMBLY COMMITTEE ON HEALTH

Mark Stone Rob Bonta, Chair

ABPCA Bill Id:AB 918

Author:Mark Stone – As Amended Ver:April 6, 2015

SUBJECT: Health and care facilities: seclusion and behavioral restraints.

SUMMARY: Requires specified community facilities to report to the appropriate and designated agency each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints. Specifically, this bill:

1. Requires the following types of facilities to report each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints:

   1. Intermediate care facilities (ICF);

   2. Intermediate care facilities/developmentally disabled-nursing (ICF-DDN);

   3. Intermediate care facilities for the developmentally disabled (ICF-DD);

   4. Intermediate care facilities/developmentally disabled-habilitative (ICF-DDH);

   5. Group homes;

   6. Adult residential facilities; and,

   7. Mental health rehabilitation centers.

2. Requires the Secretary of the California Health and Human Services Agency (CHHSA), or his or her designee, to establish on or before January 1, 2017, a system of mandatory, consistent, timely and publically accessible data collection regarding the use of seclusion and behavioral restraints.

3. Requires data collected to include the following information:

   1. 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 seclusions or behavioral restraints;

   2. The number of serious injuries sustained by persons while in seclusion or subject to behavioral restraints;

   3. The number of serious injuries sustained by staff, that occur during the use of seclusion or behavioral restraints;

   4. The number of incidents of seclusion;

   5. The number of incidents of use of behavioral restraints;

   6. The duration of time spent per incident in seclusion;

   7. The duration of time spent per incident subject to behavioral restraints; and,

   8. The number of times an involuntary emergency medication is used to control behavior, as defined by the Department of State Hospitals.

EXISTING LAW:

1. Requires the following types of facilities to report each death or serious injury of a person occurring during, or related to, the use of seclusion or behavioral restraints:

   1. Psychiatric units of general acute care hospitals;

   2. Acute psychiatric hospitals;

   3. Psychiatric health facilities;

   4. Crisis stabilization units;

   5. Community treatment facilities;

   6. Group homes;

   7. Skilled nursing facilities (SNFs);

   8. ICFs;

   9. Community care facilities; and,

   10. Mental health rehabilitation centers.

2. Does not require the above entities to fulfill the above reporting requirements if adequate resources are not available.

3. Defines “ICF” as a health facility that provides inpatient care to ambulatory or nonambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care.

4. Defines “ICF-DDN” as a facility with a capacity of four to 15 beds that provides 24-hour personal care, developmental services, and nursing supervision for persons with developmental disabilities who have intermittent recurring needs for skilled nursing care but have been certified by a physician and surgeon as not requiring continuous skilled nursing care. The facility shall serve medically fragile persons with developmental disabilities or who demonstrate significant developmental delay that may lead to a developmental disability if not treated.

5. Defines “ICF-DD” as a facility that provides 24-hour personal care, habilitation, developmental, and supportive health services to persons with developmental disabilities whose primary need is for developmental services and who have a recurring but intermittent need for skilled nursing services.

6. Defines “ICF-DDH” as a facility with a capacity of four to 15 beds that provides 24-hour personal care, habilitation, developmental, and supportive health services to 15 or fewer persons with developmental disabilities who have intermittent recurring needs for nursing services, but have been certified by a physician and surgeon as not requiring availability of continuous skilled nursing care.

7. Defines “group home” as a residential facility that provides 24-hour care and supervision to children, delivered at least in part by staff employed by the licensee in a structured environment. Limits the care and supervision provided by a group home to be nonmedical, except as otherwise permitted by law.

8. Defines “residential facility” as any family home, group care facility, or similar facility determined by the director, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.

FISCAL EFFECT: None.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, while existing law protects individuals with developmental disorders in developmental centers (DCs) from unreported use of seclusions and restraint, the populations in these facilities are changing. State facilities are beginning to close and more people are living in community facilities. The author states that this move can be heralded as an important and beneficial move for those with developmental disabilities, but it also leaves them vulnerable to the use of seclusion and behavioral restraint as tactics to control behavior.

The author also states that the Legislature has made findings and declarations indicating that the use of seclusions and restraints is not a treatment nor does it positively change behavior. When the state first implemented reporting and publishing requirements, most individuals were living in DCs. However, now California is moving individuals to community facilities, where no such requirement exists. According to the author, California must protect these vulnerable individuals, give consumers more information when choosing a facility, and allow the government and the designated protection and advocacy agency, Disability Rights California (DRC), the ability to compare the use of seclusion and restraint across facilities.

2. BACKGROUND.

1. Lanterman Act. The Department of Developmental Services (DDS) is responsible under the Lanterman Developmental Disabilities Services Act of 1969 (Lanterman Act) for ensuring that approximately 280,000 individuals with developmental disabilities receive the services and support they require to lead more independent and productive lives and to make choices and decisions about their lives.

The Lanterman Act defines a developmental disability as a “substantial disability” that starts before age 18 and is expected to continue indefinitely. The developmental disabilities for which an individual may be eligible to receive services under the Lanterman Act include: cerebral palsy;, epilepsy; autism, intellectual disabilities; and, other conditions closely related to intellectual disabilities that require similar treatment (such as a traumatic brain injury).

2. DCs. California provides services and support to individuals with developmental disabilities in two ways. The vast majorities 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 (RCs). More than 99% of DDS consumers receive services in this way under the Community Services Program. These consumers live with their parents or other relatives, in their own houses or apartments, or in residential facilities or group homes designed to meet their needs. A smaller number of individuals, or less than 1% of the DDS caseload, live in three state-operated DCs and one state-operated community facility. DDS operates three DCs: Fairview (Orange County); Porterville (Tulare County); and, Sonoma (Sonoma County). Among other services, Porterville also provides secure treatment services. A fourth DC, Lanterman, transitioned its last resident into community living on December 23, 2014. Services at all facilities involve the provision of active treatment through residential and day programs on a 24-hour basis, including appropriate medical and dental care, health maintenance activities, and assistance with activities of daily living, training, education, and employment.

3. Population Transitions. During a period of recent budget deficits, the Legislature enacted numerous DDS budget reductions and cost savings measures to yield General Fund savings. The 2012-13 budget imposed a moratorium on admissions to DCs except for individuals involved in the criminal justice system, and consumers in an acute crisis needing short-term stabilization. The high costs to maintain and staff these facilities, coupled with an emphasis on transitioning individuals back into their community, have led to the closure and/or restructuring of many DCs. The moratorium on DC admission as well as the need for the availability of services in the community have led to a shift in spending from the DCs to the community services programs. The 2015-16 budget reflects this change, as the budget for DCs has decreased and the Community Services budget has increased.
   
   

1. SUPPORT. DRC, the sponsors of the bill, write 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. This requirement was not implemented for non-public facilities. Therefore, there is no publicly accessible data regarding the use of these interventions in most of the facilities where they are used. The sponsor goes on to state that the populations served in state facilities has changed. Residents in DCs are moving from large state facilities and into smaller community facilities. Family members and advocates are concerned about the unknown and unreported use of behavioral restraint and seclusion; dangerous practices that often result in serious injuries, even death. The concern continues to grow as individuals with behavioral challenges migrate from DCs where there is public reporting and accountability to isolated community settings where there is no public accountability regarding as to the use of seclusion and behavioral restraint. 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 National Association of Social Workers (NASW) writes that through previous legislation, the state has attempted to reduce or eliminate the use of seclusion or behavior restraints at state facilities. Efforts have also been made to make the data on the use of seclusion and restraints available to the public. Currently, these laws do not apply to community facilities. NASW argues this bill will require information about deaths or serious injury available to the protection and advocacy agency designated by the Governor. Deaths or serious injury cannot go unnoticed. Those with the most expertise in protecting this vulnerable population should have access to information that could prevent additional tragedies.

4. PREVIOUS LEGISLATION. SB 130 (Chesbro), Chapter 750, Statutes of 2003, made a number of changes to state law regarding the use of seclusion and restraints in a variety of residential facilities, including psychiatric hospitals, DCs, skilled nursing facilities and foster care group homes.

REGISTERED SUPPORT / OPPOSITION:

Support

Disability Rights California (sponsor)

California Long-Term Care Ombudsman Association

National Association of Social Workers, California Chapter

The Alliance Supporting People with Intellectual and Developmental Disabilities

Opposition

None on file.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097