BILL ANALYSIS
AB 142
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 142 (Hayashi) - As Amended: April 13, 2009
PROPOSED CONSENT
SUBJECT : AUTOMATIC EXTERNAL DEFIBRILLATORS (AEDs): HEALTH
STUDIOS
KEY ISSUE : SHOULD CURRENT LAW, WHICH REQUIRES THAT EVERY HEALTH
STUDIO MAINTAINS AED-TRAINED PERSONNEL ON SITE DURING ALL OF ITS
NORMAL OPERATING HOURS IN CASE OF AN EMERGENCY, BE ALTERED TO
ACCOMMODATE CERTAIN 24-HOUR CLUBS THAT ARE NOT STAFFED DURING
ALL OF THEIR HOURS SO LONG AS THEY COMPLY WITH OTHER NEW
ALTERNATIVE SAFETY REQUIREMENTS DESIGNED TO PROTECT MEMBERS IN
THESE UNSTAFFED OR MINIMALLY STAFFED EXERCISE FACILITIES?
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill addresses the continuing effort of policymakers in
California to encourage the proliferation and use of automated
external defibrillators (AEDs) in easily accessible locations,
including hotels and health facilities. AEDs are portable
medical devices used to administer an electric shock through the
chest wall to the heart after an individual suffers cardiac
arrest. They are generally considered "fail safe," and there
has reportedly been no known successful lawsuit brought against
an individual for the use or misuse of these devices. This
Committee has, with the help of the American Heart Association,
the Consumer Attorneys of California, and other interested
parties, helped fashion several measures over the years to spur
the availability and use of AEDs. For example, in 2002, the
Committee approved AB 2041 (Ch. 718 of 2002) by then-
Assemblyman Vargas which, among other things, broadened the
current immunity for the use or purchase of an AED and
substantially relaxed the requirement that building owners and
others who acquire AEDs ensure that expected AED users complete
an accepted CPR and AED course as a condition of immunizing the
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building owners from liability arising from the use of the AED.
In 2005, the Committee also approved AB 1507 (Ch. 431 of 2005)
by then-Assemblymember Pavley which required all health studios,
as defined, to acquire, maintain, and train personnel in the use
of AEDs, for a five-year sunset period beginning July 7, 2007
and ending in 2012. This bill seeks to make an amendment to
that provision by exempting those health studios, as "24-hour
card-key health clubs" that do not maintain on-site personnel
for all of their hours of operation, from the now standard
requirement that they maintain AED-trained personnel on the
premises at all times in case of an emergency. Following
extensive "good faith" discussions between Committee counsel,
Consumer Attorney representatives and the sponsor, the bill was
recently amended to ensure these unstaffed 24-hour card-key
clubs comply with new alternative safety requirements. Although
such unstaffed studios would not have to maintain AED-trained
personnel during the times that the studio is not staffed, they
would have to meet the following other requirements: 1) inform
members, at the time they enter into the health studio contract,
that there will not always be an employee on the premises, 2)
provide those using the studio with a device that, when
activated by the user, contacts emergency services and requires
users to keep the device with them at all times when using the
studio, 3) provide live video surveillance during the hours the
studio is unstaffed but is in use, and 4) require that all
employees working on the premises complete a CPR and AED course
within 30 days of commencing work. The bill is sponsored by the
International Health, Racquet, and Sportsclub Association and
with the latest amendments the Consumer Attorneys are neutral on
the measure.
SUMMARY : Seeks to create a specified exemption in the law
pertaining to the use of automated external defibrillators
(AEDs) for those health studios generally known as "24-hour
card-key clubs" that do not maintain personnel on site for all
of the hours during which they are available for use by the
public. Specifically, this bill :
1)Exempts health studios that are unstaffed during some of the
hours during which they are available for use by the public,
from the requirement that they maintain AED-trained personnel
on site at all times, so long as they comply with different
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safety requirements.
2)Requires exempted health studios to inform members, at the
time they enter into the health studio contract, that there
will not always be an employee on the premises.
3)Requires exempted health studios to provide those using the
studio with a device that, when activated by the user,
contacts emergency services and to require users to keep the
device with them at all times when using the studio.
4)Requires exempted health studios to provide live video
surveillance during the hours the studio is unstaffed but is
in use.
5)Defines "live video surveillance" as live monitoring via video
technology by an actual person that allows the person to make
a reasonable determination from observance of an incident that
either emergency medical or law enforcement responders should
be notified immediately, and the person has the ability to
make that notification requesting the response.
6)Requires exempted health studios to require that all employees
working on the premises complete a CPR and AED course within
30 days of commencing work.
EXISTING LAW :
1)Provides immunity from civil liability to any person who
completes a designated CPR course and who, in good faith,
renders emergency CPR at the scene of an emergency, without
the expectation of receiving compensation for providing the
emergency care. (Civil Code section 1714.2.)
2)Exempts from civil liability any local agency, entity of state
or local government, or other public or private organization
which sponsors, authorizes, supports, finances, or supervises
the training of citizens in CPR. (Health & Safety Code
section 1799.100.)
3)Provides immunity from liability for certain trained persons
who in good faith and without compensation use an AED in
rendering emergency care or treatment at the scene of an
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emergency. This qualified immunity does not apply in the case
of personal injury or wrongful death resulting from the AED
operator's gross negligence or willful or wanton misconduct.
Nor does it apply to the manufacturer, designer, developer,
distributor, installer, or supplier of an AED or
defibrillator. (Civil Code section 1714.21 and Health &
Safety Code section 1797.196.)
4)Substantially relaxed the requirement that building owners and
others who acquire AEDs must ensure that expected AED users
complete an accepted CPR and AED course as a condition of
immunizing that building owner from any liability arising from
the use of the acquired AED. Maintained the requirement that
any immunities from civil liabilities in this context would
not apply in cases of gross negligence or willful or wanton
misconduct. (Health & Safety Code section 1797.196.)
5)For a five-year period beginning July 7, 2007, requires a
health studio, as defined, to acquire, maintain, and train
personnel in the use of AEDs, as specified. Requires health
studios to maintain AED-trained personnel on site during all
of their normal operating hours. (Health & Safety Code
section 104113.)
COMMENTS : This bill, as recently amended, seeks to maintain the
requirement that all health studios have an AED on the premises
while not requiring those "24-hour key-card clubs" that do not
maintain personnel on-site for all of the hours during which
they are available for public use to have AED-trained personnel
on site during unstaffed hours so long as new alternative safety
requirements are met. As newly-amended, 24-hour key-card clubs
will meet AED requirements if: 1) exempted health studios
inform members, at the time they enter into the health studio
contract, that there will not always be an employee on the
premises; 2) exempted health studios provide those using the
studio with a device that, when activated by the user, contacts
emergency services and require users to keep the device with
them at all times when using the studio; 3) exempted health
studios provide live video surveillance during the hours the
studio is unstaffed but is in use. The "live video
surveillance" required under the bill means live monitoring via
video technology by an actual person that allows the person to
make a reasonable determination from observance of an incident
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that either emergency medical or law enforcement responders
should be notified immediately, and the person has the ability
to make that notification requesting the response. So-called
"24-hour card-key" health studios are becoming more popular, and
cater to clientele who prefer to work out alone or at odd hours,
but it is cost-prohibitive for such clubs to maintain personnel
during all of their hours.
AEDs in general. An AED is a medical device used to administer
an electric shock through the chest wall to the heart after
someone suffers cardiac arrest. Built-in computers assess the
patient's heart rhythm, determine whether the person is in
cardiac arrest, and signal whether to administer the shock.
Audible cues guide the user through the process. Portable AEDs
are available upon a prescription from a medical authority.
Their general cost is between $1,500 and $2,000 according to the
American Heart Association (AHA).
AEDs can save lives . According to the American Heart
Association (AHA), cardiac arrest is a life-or-death situation,
and the patient has very little chance of survival without
defibrillation. However, the window of opportunity for saving
lives through defibrillation is very small, being only 10-13
minutes even if CPR is administered correctly. According to the
AHA, in cases of sudden cardiac arrest, CPR is merely a
maintenance tool, and defibrillation must take place to "shock"
the patient's heart into a proper working rhythm. Thus, the
public would be better served, and lives could be saved, if
businesses and offices across California are encouraged to have
AEDs on-site.
Apparent lack of risk of accidental misuse, according to the
American Heart Association . According to the AHA, AEDs contain
microcomputers to accurately identify sudden cardiac arrests and
make extensive use of audible prompting and signals to provide
operators with clear and concise instruction, making their use
uncomplicated, intuitive, and nearly foolproof. Safeguards are
built in to protect both operator and victim and to ensure that
the AED will only deliver a shock if, in fact, the device
affirmatively determines that a victim is in sudden cardiac
arrest. Further, the device does not allow for manual
overrides, in the event a panicked operator tries to administer
the shock even when the device finds that the victim is not in
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cardiac arrest.
AED availability . According to staff research, the move in the
last few years to increase the number of AEDs available to first
responder units such as police and fire, as well as in
high-traffic areas, such as airports and casinos, has been met
with overwhelming community support. A survey of worldwide news
sources indicates that AEDs have been responsible for many saved
lives after cardiac arrest incidents and that AEDs are in such
high demand that schools and local communities have taken to
outside fundraising to purchase the equipment.
Across the United States there has been a major push for wide
spread access to AEDs, especially where children are concerned.
A high school student in New York State had a heart attack after
competing in a wrestling match. A bystander trained in both CPR
and AED use came to his aid and attempted CPR but did not get a
response. She then called for the AED, which are mandated by
New York Law in every school, and was able to bring the young
man back. As of January 22, 2006, in New York, everyone who is
trained in CPR will also have to be trained to use AEDs as well.
In Georgia, one neighborhood raised funds to purchase an AED
after a boy was struck by a baseball while playing and could not
be resuscitated. Local fire departments in Georgia are pushing
for communities to pool funds and purchase the units for
neighborhood use.
The AEDs have been used successfully in such places as
California's Ontario Airport, and Connecticut's Foxwoods Casino.
According to a Foxwoods' security director, the casino has 15
AEDs on the property and has used them more than 40 times in the
last four years, and more than 300 security personnel and
emergency medical technicians at the casino are trained to use
the machines. In the Minneapolis Airport, passengers waiting
for flights can receive basic training on how to use the machine
in about 5 minutes. The passengers are trained by firefighters
at stations in the airport and the program is funded by
Medtronic which makes AEDs. The goal of all these programs is
to make AEDs as familiar as fire extinguishers and as readily
available to the general public. The FDA has even approved of
their over-the-counter purchase without a prescription.
No known lawsuits against users of AEDs . A search of the Lexis
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Nexis database continues to reveal no news articles, or
successful federal or state cases, suing for liability against
users of AEDs. Committee staff research indicates that these
devices are virtually "fail-safe" and easy enough for a child to
use (although this is not generally recommended). No negative
reaction has been found regarding the use of the AEDs, or any
suit filed against someone using the AEDs. This is most likely
due to the design programming that will not allow the user to
administer an electric shock needlessly, therefore creating
little chance of user-error in administering the AED. The only
possible negative comment was that, hypothetically speaking,
someone with a living will/Do Not Resuscitate (DNR) order may be
in public and suffer a cardiac episode. A bystander, unable to
know the person has a DNR, or what his/her specific medical
wishes are, may administer the AED against his/her wishes.
The importance of maintaining AED- and CPR-trained staff on
site . About 340,000 Americans die each year from sudden cardiac
arrest, and some of these deaths occur in fitness clubs. If
fitness professionals use AEDs within the first minute of
cardiac arrest, they can increase the victim's survival rate by
up to 90%. The American Heart Association (AHA) estimates that
at least 20,000 lives could be saved each year by the prompt use
of AEDs. (Amy Florence Fischbach, "AED Response," November 1,
2006, Fitness Business Pro Magazine.) Obviously, if there is no
staff or even another client on hand to administer the AED shock
to a client, the client cannot benefit from the machine. A
victim's chances of survival drop 7-10% for every minute without
defibrillation, which indicates that the first moments after an
attack are critical, and that use of an emergency 911-contact
device, which a heart attack victim may not even be able to
activate, is insufficient protection for the victim without a
staff member on hand to administer the AED.
Richard Lazar, an expert on AED laws and legislation from Risk
Insights in Portland, Oregon, states that training employees in
AED use and making them aware of the location of the machine is
just as important as having the AED itself. (Fischbach, "AED
Response.") One health club company, Town Sports International,
saved six lives in 18 months by having AEDs in all of its 141
clubs and also training its employees to respond in an
emergency.
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The AHA recommends that AED users be trained in both use of the
AED and in CPR, because "Early CPR is an integral part of
providing lifesaving aid to people suffering sudden cardiac
arrest. CPR helps to circulate oxygen-rich blood to the brain.
After the AED is attached and delivers a shock, the typical AED
will prompt the operator to continue CPR while the device
continues to analyze the victim." Therefore, although the
author of this bill emphasizes the simplicity of using an AED,
it is important that the AED user also be trained in CPR. It is
thus preferable that a trained staff member be present at all
times to administer care (instead of relying on the possibility
of another studio user, who may or may not be present and may or
may not be trained in CPR or AED use). Furthermore, the AHA
states, "It's also important for operators to receive formal
training on the AED model they will use so that they become
familiar with the device and are able to successfully operate it
in an emergency. Training also teaches the operator how to
avoid potentially hazardous situations."
Training employees in AED use is neither expensive nor time
consuming . The AHA's website states that a training course in
AED and CPR lasts only 4 hours. As of 2006, the cost per
employee was $37. Even nonprofit clubs such as the YMCA in
Mission Viejo have installed AEDs and require training for their
employees. (Fischbach.) AB 142 would require such training for
all health studio employees.
AB 142 furthers the intent of current AED laws . The current AED
laws further the legislative intent to encourage life-saving use
of AEDs in public places such as health studios, where
individuals may suffer heart attacks while physically exerting
themselves. The current law requires that health studio
employees receive AED training in order to be prepared to assist
studio users in the event of a heart attack. Moreover, current
law requires that studios maintain trained personnel at all
operating hours in order to assist studio users, recognizing
that without trained staff, studio users may not receive
life-saving care. AB 142 addresses this concern through a
requirement that unstaffed studios provide live video
surveillance in order to be able to respond in an emergency when
staff are not present.
Video surveillance . Live video surveillance of unstaffed health
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studios, as this bill requires, would appear to provide some
measure of safety in the absence of AED-trained personnel even
if the emergency contact device is ineffective. The emergency
contact device may be ineffective because: (a) members may
decide not to wear devices that may be cumbersome during
exercise, (b) the devices could be lost or taken home by members
and therefore not available when needed, and (c) since the
devices could result in police arriving rather than EMS
personnel they may not provide medical attention in the event of
a medical emergency.
An article by a health studio insurance expert suggests that
live video surveillance can provide better protection to members
working out in unstaffed clubs, and not just in the event of
cardiac arrest. ("Is Anybody Home? How to Suit-Proof Your
24-Hour 'Key Club,'" Ken Reinig, October 1, 2005,
www.clubsolutionsmagazine.com .) Such video surveillance could
encourage members to exercise more caution when exercising
(since they know they can be seen), could provide protection to
members working out alone from being physically attacked in any
way, and could prevent situations where a person is injured on
equipment or in some other way and is not discovered until the
next day. Through use of video surveillance, health studio
franchisees that cannot afford to staff their facilities 24
hours per day would still be providing some important potential
protection to members in the event of an emergency.
PRIOR LEGISLATION : AB 2130 (Hayashi) of 2008, would have
exempted health studios that do not maintain personnel on the
premises from the requirements of maintaining personnel trained
in AED at all times on site. This bill would have required, as
a condition of that exemption, that such studios have a
telephone on premises; as well as signs that (a) warn of the
potential health and safety risks of exercising alone, (b)
provide instructions in CPR and AED use, and (c) indicate the
location of all AEDs on the premises. The bill died in the
Senate Judiciary Committee.
AB 2083 (Vargas) of 2006, Ch. 85 of 2006, extends the sunset
date for another five years on the operative provisions of
existing law which provide immunity from civil damages for
persons or entities that acquire automatic external
defibrillators (AEDs) and comply with maintenance, testing, and
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training requirements.
AB 1507 (Pavley) of 2005, Ch. 431 of 2005, for a five-year
period beginning July 7, 2007, requires a health studio, as
defined, to acquire, maintain, and train personnel in the use of
automatic external defibrillators, as specified.
AB 2041 (Vargas) of 2002, Ch. 718 of 2002, broadened the current
immunity for the use or purchase of an AED in an effort to
encourage their purchase and use, repealed the CPR and AED use
training requirement for a Good Samaritan user of an AED in
rendering emergency care, and substantially relaxed the
requirement that building owners and others who acquire AEDs
ensure that expected AED users complete an accepted CPR and AED
course as a condition of immunizing the building owners from
liability arising from the use of the AED.
SB 911 (Figueroa) of 1999, Ch. 163 of 1999, provided for
qualified immunity to "Good Samaritans" who voluntarily apply
AEDs at the scene of an emergency to try to save heart victim's
lives, so long as those persons had training in the use of an
AED.
REGISTERED SUPPORT/OPPOSITION :
Support
International Health, Racquet, and Sportsclub Association
(sponsor)
American Federation of State, County and Municipal Employees
Opposition
None on file
Analysis Prepared by : Drew Liebert and Rachel Anderson / JUD. /
(916) 319-2334