BILL ANALYSIS                                                                                                                                                                                                    �



                                                                  AB 633
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          Date of Hearing:  May 7, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                     AB 633 (Salas) - As Amended:  April 17, 2013
           
                               As Proposed to be Amended
           
          SUBJECT  :  Emergency medical services:  EMPLOYER POLICIES

           Key issueS  :  

          1)SHould EMPLOYERS GENERALLY BE PROHIBITED FROM ADOPTING  
            POLICIES THAT PROHIBIT THEIR EMPLOYEES FROM VOLUNTARILY  
            PROVIDING EMERGENCY MEDICAL SERVICES IN RESPONSE TO A MEDICAL  
            EMERGENCY?

          2)SHOULD THE BILL'S GENERAL PROHIBITION AGAINST SUCH POLICIES  
            ADDITIONALLY NOT APPLY TO SPECIFIED HEALTH FACILITIES IN  
            ADDITION TO THOSE FACILITIES ALREADY LISTED IN THE BILL IF  
            THERE IS A "DO NOT RESUSCITATE" OR A SPECIFIED "PHYSICIAN  
            ORDERS FOR LIFE SUSTAINING TREATMENT" FORM OR A SPECIFIED  
            ADVANCE HEALTH CARE DIRECTIVE IN EFFECT FOR THE PERSON UPON  
            WHOM THE RESUSCITATION WOULD OTHERWISE BE PERFORMED?  

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      synopsis

          According to the author, this measure is in response to a recent  
          well-publicized incident at a retirement community in  
          Bakersfield.  According to media reports, this past February an  
          87-year-old resident of the Glenwood Gardens retirement  
          community collapsed in the dining room of the facility.  Media  
          reports showed that a 911 call revealed that an employee of the  
          facility indicated that she would not perform CPR on the woman  
          due to a facility policy that prevented employees from  
          performing life-saving procedures.  The woman subsequently  
          passed away before emergency services personnel could arrive.   
          According to news reports, the facility director later issued a  
          written statement asserting that the incident resulted from a  
          "complete misunderstanding" of the facility's practice with  
          regards to emergency medical care for its residents.  Regardless  
          of the precise facts of that particularly tragedy, this measure  








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          seeks to ensure that in the future employers generally will not  
          adopt or enforce any such policies that prohibit an employee  
          from voluntarily providing emergency medical services in  
          response to a medical emergency.  In response to concerns that  
          some facilities which typically have patients that often may not  
          wish to be resuscitated, the measure was amended to clarify that  
          this general prohibition against such policies will not apply to  
          any of the following facilities, if there is a "do not  
          resuscitate" or a specified "Physician Orders for Life  
          Sustaining Treatment" form or a specified advance health care  
          directive in effect for the person upon whom the resuscitation  
          would otherwise be performed: (1) A long-term health care  
          facility, as defined;(2) A community care facility, as defined;  
          (3) A residential care facility for the elderly, as defined; or  
          (4) An adult day health care center, as defined.  The bill  
          unanimously passed the Assembly Labor Committee by a vote of  
          7-0, and it is supported by the California Advocates for Nursing  
          Home Reform and the California Professional Firefighters.  It  
          remains opposed by the California Hospital Association, which  
          among other concerns states that hospitals and other places  
          where medical care is usually offered have a multitude of  
          skilled individuals whose job it is to render emergency medical  
          care and assistance, that there are specific protocols for doing  
          so in those environments, and that all such facilities therefore  
          should be exempt from the legislation.  Amendments are  
          recommended in the analysis to address this concern and make  
          another clarification.   

           SUMMARY  :  Prohibits, with specified exceptions, an employer from  
          adopting or enforcing a policy that prohibits an employee from  
          voluntarily providing emergency medical services in response to  
          a medical emergency.  Specifically,  this bill  :  

          1)An employer shall not adopt or enforce a policy prohibiting an  
            employee from voluntarily providing emergency medical  
            services, including, but not limited to, cardiopulmonary  
            resuscitation, in response to a medical emergency.

          2)States that this general prohibition on such policies does not  
            apply to any of the following facilities, if there is a "do  
            not resuscitate" or a specified "Physician Orders for Life  
            Sustaining Treatment" form or a specified advance health care  
            directive in effect for the person upon whom the resuscitation  
            would otherwise be performed: (1) A long-term health care  
            facility, as defined;(2) A community care facility, as  








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            defined; (3) A residential care facility for the elderly, as  
            defined; or (4) An adult day health care center, as defined.

           EXISTING LAW  : 

          1)Provides that no person who in good faith, and not for  
            compensation, renders emergency medical or nonmedical care or  
            assistance at the scene of an emergency shall be liable for  
            civil damages resulting from any act or omission other than an  
            act or omission constituting gross negligence or willful or  
            wanton misconduct.  (Health & Safety Code Section 1799.102.)

          2)Defines "'wanton' or 'reckless' misconduct" as conduct by a  
            person who may have no intent to cause harm, but who  
            intentionally performs an act so unreasonable and dangerous  
            that he or she knows or should know it is highly probable that  
            harm will result.  (City of Santa Barbara v. Superior Court,  
            41 Cal.4th 747, 753 (2007).)

          3)Defines "gross negligence" as an "exercise of so slight a  
            degree of care as to justify the belief there was indifference  
            to the interest and welfare of others."  (46 Cal. Jur. 3d  
            Negligence 100.) 

          4)Provides, under various provisions, various types of qualified  
            immunity to professionals who render emergency care outside of  
            the scope of their employment.  

           COMMENTS  :  According to the author, this measure is in response  
          to a recent well-publicized incident at a retirement community  
          in Bakersfield.  According to media reports, in February of this  
          year an 87-year-old resident of the Glenwood Gardens retirement  
          community collapsed in the dining room of the facility.  Media  
          reports showed that a 911 call revealed that an employee of the  
          facility indicated that she would not perform CPR on the woman  
          due to a facility policy that prevented employees from  
          performing life-saving procedures.  The woman subsequently  
          passed away before emergency services personnel could arrive.   
          According to news reports, the facility director later issued a  
          written statement asserting that the incident resulted from a  
          "complete misunderstanding" of the facility's practice with  
          regards to emergency medical care for its residents.

          Existing state law (referred to generally as "Good Samaritan"  
          law) generally provides that no person who in good faith, and  








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          not for compensation, renders emergency medical or nonmedical  
          care or assistance at the scene of an emergency shall be liable  
          for civil damages resulting from any act or omission other than  
          an act or omission constituting gross negligence or willful or  
          wanton misconduct.  Existing law also contains other specific  
          liability provisions related to medical, law enforcement, and  
          emergency personnel, and others. 

          According to the author, CPR is a series of life saving actions  
          that improve the chance of survival following cardiac arrest.   
          According to the American Heart Association, there are  
          approximately 360,000 out-of-hospital cardiac arrests in the  
          United States each year, accounting for 15 percent of all  
          deaths.  On average, bystander CPR is provided in only  
          approximately one fourth of all out-of-hospital events in the  
          United States despite public education campaigns and promotion  
          of CPR as a best practice. 

          The author states that the question of whether employers have  
          policies that prevent employees from performing CPR is unclear,  
          which may cause confusion among Californians.  The author argues  
          that existing employer policies preventing employees from  
          performing CPR generally should be against public policy.  He  
          contends that such employer policies may discourage employees  
          from performing CPR due to fear of being disciplined or fired. 

           ARGUMENTS IN SUPPORT  :  The California Professional Firefighters  
          (CPF), state council of the International Association of Fire  
          Fighters, writes in support of the measure that:

               On average, CPR is provided in approximately one in  
               four of all out-of-hospital events by a bystander.  
               However, some may refuse to give CPR for fear of being  
               sued for any wrong-doing?  AB 633 would protect "Good  
               Samaritans" who are only trying to do the right thing?
           
          ARGUMENTS IN OPPOSITION  :  The California Hospital Association  
          (CHA) opposes this bill unless amended.  CHA states that the  
          Good Samaritan provision of existing law exempts "emergency  
          departments and other places where medical care is usually  
          offered" from the definition of a "scene of an emergency."  CHA  
          states that this is in recognition that hospitals and other  
          places where medical care is usually offered have a multitude of  
          skilled individuals whose job it is to render emergency medical  
          care and assistance, and that there are specific protocols for  








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          doing so in those environments. CHA states that the bill would  
          prohibit hospitals and other employers licensed to provide  
          medical care from implementing such appropriate policies.  

           Suggested Committee Amendments:  
           
          1)To be consistent with existing case law (See, e.g.,  Sav-On  
            Drug Stores, Inc. v. Superior Court  (2004) 34 Cal 4th 319;  
             Application Group v. Hunter Group  (1998) 61 Cal. App. 4th 881)  
            and to ensure that employers have neither formal policies nor  
            practices prohibiting an employee from voluntarily providing  
            emergency medical services in response to a medical emergency,  
            the Committee may wish to amend the bill with this minor  
            clarification as follows:
           
             On page 2, line 4, after "policy" insert:  or practice  

          2)In order to at least partially address the concern raised by  
            the California Hospital Association above that the Good  
            Samaritan provision of existing law already exempts "emergency  
            departments and other places where medical care is usually  
            offered," the Committee may wish to amend the bill to include  
            specified health care facilities in the bill's existing list  
            of facilities which typically have patients that often may not  
            wish to be resuscitated if there is a "do not resuscitate" or  
            a specified "Physician Orders for Life Sustaining Treatment"  
            form or a specified advance health care directive in effect  
            for the person upon whom the resuscitation would otherwise be  
            performed, as follows:

            On page 2, line 26, after "1570.7" insert a new line which  
          reads:

            (5) A health facility licensed under Health and Safety Code  
          section 1250.
           
          PENDING RELATED LEGISLATION  :  AB 259 (Logue) provides that it is  
          unlawful for a long-term health care facility, a community care  
          facility, an adult day health care center, or residential care  
          facility for the elderly to have a policy that prohibits an  
          employee from administering CPR.  AB 259 was also amended to  
          include language related to "do not resuscitate" orders or  
          advanced health care directives that mirrors the language  
          contained in this bill.  That measure passed the Assembly Health  
          Committee unanimously, and it is now pending in the Assembly  








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          Appropriations Committee.  Thus this bill appears to be broader  
          than AB 259 in that it applies to all employers other than those  
          specifically exempted. 

           PRIOR RELATED LEGISLATION  :  This Committee unanimously approved  
          AB 83 of 2009 (Ch. 77, Stats. 2009, Feuer) which encourages Good  
          Samaritans to continue to step forward and help others in  
          danger.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Advocates for Nursing Home Reform
          California Professional Firefighters

           Opposition 
           
          California Hospital Association (oppose unless amended)

           Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334