BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 633
AUTHOR: Salas
AMENDED: June 10, 2013
HEARING DATE: June 19, 2013
CONSULTANT: Marchand
SUBJECT : Emergency medical services: civil liability.
SUMMARY : Prohibits an employer from adopting or enforcing a
policy prohibiting an employee from voluntarily providing
emergency medical services, including CPR, except when a person
has a do-not-resuscitate order or has otherwise expressed the
desire to forego medical intervention in a legally recognized
way. Extends liability immunity to employees who render
emergency care voluntarily while on the job. Exempts employers
from liability if an employee voluntarily providers emergency
care.
Existing law: Provides immunity from civil liability to any
person who, in good faith, and not for compensation, renders
emergency medical or non-medical care at the scene of an
emergency (known generally as "Good Samaritan" laws). Specifies
that the "scene of an emergency" does not include emergency
departments and other places where medical care is usually
offered.
This bill:
1.Prohibits an employer from adopting or enforcing a policy
prohibiting an employee from voluntarily providing emergency
medical services (EMS), including, but not limited to,
cardiopulmonary resuscitation (CPR), in response to a medical
emergency, except as follows:
a. Permits an employer to adopt and enforce a
policy authorizing employees trained in EMS to provide
those service, and prohibiting other employees from
providing those services if a trained employee is
available during business hours;
b. Permits an employer to adopt and enforce a
policy prohibiting an employee from performing EMS,
including CPR, on a person who has expressed the
desire to forego resuscitation or other medical
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interventions through any legally recognized means,
including, but not limited to, a do-not-resuscitate
order, a Physical Orders for Life Sustaining Treatment
form, an advanced health care directive, or a legally
recognized healthcare decision-maker.
2.Specifies that provisions of existing law providing immunity
from liability to persons who, in good faith and not for
compensation, render EMS at the scene of an emergency, applies
to employees who voluntarily provide EMS despite providing
those services during the performance of activities for which
he or she is compensated.
3.Exempts an employer from liability for any civil damages or
criminal or administrative discipline or penalties resulting
from an act or omission of an employee who voluntarily
provides emergency medical services, including but not limited
to, CPR.
4.Exempts an employer from liability for any civil damages or
criminal or administrative discipline or penalties resulting
from an employee's violation of an employer's policy adopted
pursuant to this bill authorizing trained employees to provide
EMS and prohibiting other employees from providing those
services if a trained employee is available.
FISCAL EFFECT : This bill is keyed non-fiscal.
PRIOR VOTES :
Assembly Labor and Employment:7- 0
Assembly Judiciary: 10- 0
Assembly Floor: 67- 1
COMMENTS :
1.Author's statement. Whether employers have policies that
prevent employees from performing CPR is unclear, which may
cause confusion among Californians. Any existing employer
policies preventing employees from performing CPR should be
against public policy, and such employer policies may
discourage employees from performing CPR due to fear of being
disciplined or fired. CPR is a series of life saving actions
that improve the chance of survival following cardiac arrest.
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. This bill protects employees who choose to
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save a life without fear of losing their job.
2.Incident in Bakersfield. This legislation, at least in part,
was introduced in response to a widely publicized incident in
Bakersfield in early March of this year, in which an
87-year-old woman died following cardiac arrest. A
seven-minute 911 call revealed that a staff member of the
independent living center where the woman was a resident
declined requests from the 911 operator to perform CPR, or to
find someone else to perform CPR. While the staff member
initially self-identified herself as a nurse, it was later
revealed that she was the resident services director.
Initially, the company that owned the independent living
center said that the staff member was following company policy
by waiting for first responders rather than administering
medical care herself. However, the company later released a
statement that "the incident resulted from a complete
misunderstanding of our practice with regard to emergency
medical care for our residents," and the company stated it
would provide a company-wide review of its emergency medical
policies. The family of the resident also released a
statement saying that it was their "mother and grandmother's
wish to die naturally without any kind of life prolonging
intervention," and did not blame the independent living
center.
3.Do not resuscitate orders. This bill permits an employer to
adopt and enforce a policy prohibiting an employee from
performing EMS, including CPR, on a person who has expressed
the desire to forego resuscitation or other medical
interventions through any legally recognized means, including
specified legal forms. According to the California Emergency
Medical Services Authority (EMSA), patients have near-absolute
authority to refuse resuscitation. All local emergency
medical services agencies are required to have a policy that
recognizes and accommodates a patient's wish to limit
pre-hospital treatment, which should apply to patients in
long-term care facilities, during transport between
facilities, and in patient's homes. There are three
instruments used to ensure standard implementation: the
EMSA/California Medical Association Pre-hospital Do Not
Resuscitate (DNR) Form; the EMSA approved Physician Orders for
Life Sustaining Treatment (POLST) Form; and a standard DNR
medallion or bracelet attached to the patient. In addition to
those three statewide standards, local EMS agencies may also
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approve other documents, including but not limited to a
physician's order in a patient's chart or Advanced Health Care
Directives.
4.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Judiciary Committee.
5.Related legislation. AB 259 (Logue) creates a misdemeanor
penalty for a long-term health care facility, community care
facility, adult day health care center, or residential care
facility for the elderly, to have a policy that prohibits any
employee from administering CPR unless there is a "do not
resuscitate" order or other similar instruction. AB 259 is
currently pending in Senate Health Committee; however,
Assembly member Logue is now a co-author of this bill, and his
staff indicates that they do not intend to move AB 259 at this
time.
6.Support. The Civil Justice Association of California (CJAC)
supports this bill, stating that it would encourage "good
Samaritans" to provide assistance in emergencies by limiting
their liability and the liability of their employers. CJAC
states that this bill is the result of careful crafting so as
to encourage the provision of aid but not create new liability
against businesses that either professionally provide
medical/emergency treatment or train specified employees to
render assistance. The California Professional Firefighters
state in support that CPR is provided in approximately one in
four of all out-of-hospital events by a bystander, but that
some may refuse to give CPR for fear of being sued for any
wrong-doing. The California Assisted Living Association
(CALA), states in support that this bill will allow an
employer to honor "do not resuscitate" orders. Additionally,
CALA states that recent amendments will allow employers who
employ CPR trained staff to restrict the provision of CPR to
those employees only. CMA states in support that CPR saves
lives, and that CMA supports its use, but that in some
circumstances employers should be able to have and enforce a
policy, such as in a facility that has staff on hand that are
trained in proper response techniques. CMA states that it has
worked with the author to clarify these circumstances in the
current version of the bill.
7.Restricting EMS to trained employees? Recent amendments to
this bill, responding to the concerns of a number of
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organizations representing facilities with trained medical
personnel on staff, permit an employer to adopt and enforce a
policy prohibiting employees who are not trained and
authorized from providing emergency services and CPR if a
trained and authorized employee is available during business
hours. While the intent of this provision is to ensure that
in health care settings where there are trained medical
personnel available, that one of these trained employees is
providing the emergency care, the Committee may wish to
consider whether this language is broader than necessary and
could inappropriately discourage people from rendering
assistance. Specifically, it is unclear what "available
during business hours" means. Does this mean a trained
employee simply has to be on duty, even if the individual is
not immediately available at the scene of the emergency?
Would employees who are not trained and authorized be required
- or might they believe they are required - under such a
policy to wait while the trained individual is located? To
ensure that this bill is not permitting policies that
unnecessarily restrict employees from rendering emergency care
when no one else is available, the author may wish to consider
limiting this provision to when a trained and authorized
employee is not immediately available, and to clarify that any
available employee is permitted to provide emergency medical
services if a trained and authorized employee is not
immediately available or is otherwise not able or not willing
to provide emergency services.
8.Technical amendment. On page 2, line 19, the bill should read
" Physician " Orders for Life Sustaining Treatment, not
" Physical ."
SUPPORT AND OPPOSITION :
Support: American College of Emergency Physicians
California Advocates for Nursing Home Reform
California Assisted Living Association
California Fire Chiefs Association
California Medical Association
California Professional Firefighters
California Rescue Paramedic Association
Civil Justice Association of California
Clinica Sierra Vista
Hall Ambulance Service Incorporated
Oppose: None received
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