BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2013-2014 Regular Session AB 939 (Melendez) As Amended June 18, 2013 Hearing Date: July 2, 2013 Fiscal: No Urgency: No RD SUBJECT Pupil and School Personnel Health: Automatic External Defibrillators DESCRIPTION This bill would provide qualified immunity for a school district and its employees who use, attempt to use, or do not use an automatic external defibrillator (AED) to render emergency care or treatment. This bill would also state that it is the intent of the Legislature to encourage all public schools to acquire and maintain at least one AED and allow schools to solicit and receive nonstate funds for that purpose. This bill would encourage schools that decide to acquire and maintain an AED, or to continue to use and maintain an existing AED, to comply with certain requirements relating to the placement of the AED and ensuring its availability for use at all school-sponsored athletic events, as defined. BACKGROUND According the American College of Emergency Physicians (ACEP) website, if a person suffers a sudden cardiac arrest, chances of survival decrease by 7 to 10 percent for each minute that passes without defibrillation. A victim's best chance for survival is when there is revival within four minutes. Small portable medical devices called automatic external defibrillators (AEDs) can be 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. Moreover, audible cues guide the user (more) AB 939 (Melendez) Page 2 of ? through the process. However, AEDs are less successful when the victim has been in cardiac arrest for more than a few minutes, especially if cardiopulmonary resuscitation (CPR) is not also provided. In 1999, the Legislature passed and the Governor signed SB 911 (Figueroa, Ch. 163, Stats. 1999) which created a qualified immunity from civil liability for trained persons who use AEDs in good faith and without compensation when rendering emergency care or treatment at the scene of an emergency. The bill also provided for immunity from liability for persons or entities that acquire an AED, provided that the person or entity has complied with specified maintenance, training, and notice requirements. The immunity does not apply in cases of personal injury or wrongful death resulting from gross negligence or willful or wanton misconduct. AB 2041 (Vargas, Ch. 718, Stats. 2002) expanded this immunity by relaxing the requirement that building owners must ensure that expected AED users complete training as a condition of immunity. AB 2041 was enacted with a five-year sunset which was extended another five years to January 1, 2013 by AB 2083 (Vargas, Ch. 85, Stats. 2006). Most recently, in the last legislative session, SB 1436 (Lowenthal, Ch. 71, Stats. 2012) was enacted to delete the sunset, thereby extending the operation of those provisions indefinitely. Additionally, in 2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005) amended the above provisions to specify that, if an AED is placed in a public or private K-12 school, the school principal must annually provide school administrators and staff with a brochure describing the proper use of an AED, post similar information next to the AED, and designate trained employees to be available to respond to an emergency that may involve the use of an AED during normal operating hours. Also of particular relevance to this bill, in 2011, another bill, SB 63 (Price, 2011) would have enacted into law provisions that were similar to this bill, except that SB 63 explicitly required certain actions on the part of any school that decided to acquire and maintain an AED. That bill was held on suspense in the Senate Appropriations Committee. This bill would state the intent of the Legislature to encourage all public schools acquire and maintain at least one AED, encourage schools that decide to acquire and maintain an AED to comply with certain requirements, and also provide a qualified immunity from liability for a school district and its employees, AB 939 (Melendez) Page 3 of ? as specified. CHANGES TO EXISTING LAW Existing law provides for immunity from liability for any person who, in good faith and not for compensation, renders emergency care using an AED at the scene of an emergency. (Civ. Code Sec. 1714.21(b).) Existing law provides that any person who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency is not liable for any civil damages resulting from any acts or omissions in rendering the emergency care. (Civ. Code Sec. 1714.21(b).) Existing law provides that a person or entity that acquires an AED for emergency use is not liable for any civil damages resulting from any acts or omissions when the AED is used to render emergency care provided that the person or entity complied with the maintenance, training, and notice requirements specified in the Health and Safety Code and described in more detail below. (Civ. Code Sec. 1714.21(d).) Existing law provides that the qualified immunity described above does not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who uses the AED to render emergency care. (Civ. Code Sec. 1714.21(f).) Existing law provides that any person or entity that acquires an AED is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care if that person or entity does all of the following: Complies with all regulations governing the placement of an AED. Ensures all of the following: o the AED is maintained and regularly tested, as specified; o the AED is checked for readiness after each use and at least once every 30 days if it has not been used in the preceding 30 days. Records of these checks must be maintained; o that any person who renders emergency care using the AED activates the emergency medical services system as soon as possible, and reports any use of the AED to the local EMS agency; AB 939 (Melendez) Page 4 of ? o for every AED unit acquired up to five units, at least one employee per unit must complete a training course in cardiopulmonary resuscitation and AED use. After the first five AED units are acquired, for each additional five units acquired, one employee shall be trained beginning with the first unit acquired. Acquirers of AEDs shall have trained employees who should be available to respond to an emergency that may involve the use of an AED during normal operating hours; o there is a written plan describing the procedures to be followed in the event of an emergency that may involve using an AED; and o if an AED is placed in a public or private K-12 school, the principal must annually provide school administrators and staff with a brochure describing the proper use of an AED, post similar information next to the AED, and designate trained employees to be available to respond to an emergency that may involve the use of an AED during normal operating hours. Any person or entity that supplies an AED shall: o notify an agent of the local EMS agency of the existence, location, and type of AED acquired; and o provide the AED acquirer with information regarding the AED's use, installation, operation, training, and maintenance. (Health & Saf. Code Sec. 1797.196(b).) This bill would provide that if an employee of a school district who uses, attempts to use, or does not use an AED consistent with the requirements of this bill, as specified, to render emergency care or treatment, the school district is not liable for civil damages resulting from the act or omission in rendering the emergency care or treatment, including the use or nonuse of an AED, except as specified. This bill would provide that an employee of a school district who complies with the existing law provisions described above in rendering emergency care or treatment through the use, attempted use, or nonuse of an AED at the scene of an emergency shall not be liable for any civil damages resulting from any act or omission in rendering the emergency care or treatment. This bill would provide that the above immunity does not apply in the case of personal injury or wrongful death that results from gross negligence or willful or wanton misconduct on the part of the person who uses, or maliciously fails to use an AED to render emergency care or treatment. AB 939 (Melendez) Page 5 of ? This bill would delete an existing provision of the Health and Safety Code relating to the duties of a principal if an AED is placed in a public or private K-12 school, and instead require that the principal: notify, at least annually, all school employees of the location of all AED units on the campus; and designate only school employees who volunteer to be designated as AED volunteers to respond to an emergency that may involve the use of an AED. This bill would specify that it does not alter existing requirements with respect to the use of AEDs by persons rendering emergency care. This bill would provide that it is the intent of the Legislature to encourage all public schools to acquire and maintain at least one AED. This bill would permit public schools to solicit and receive nonstate funds to acquire and maintain an AED. Those funds shall only be used to acquire and maintain an AED and to provide training to school employees regarding AED use. This bill would provide that if a public school decides to acquire and maintain an AED, or continue to use and maintain an existing AED, it may, and is encouraged to: place an AED in a centralized location on campus for the purpose of preventing deaths resulting from sudden cardiac arrests among pupils, faculty, and visitors; and have the AED available for use at a school-sponsored athletic event. The AED placed in a centralized location on campus may serve as the AED for the purpose of this provision. This bill would define a "school sponsored athletic event" for these purposes. COMMENT 1. Stated need for the bill According to the author: The majority of California's children spend around 14,000 hours away from their parents and under the supervision of the state while they receive an education at California's K-12 public schools. While under this supervision, parents should AB 939 (Melendez) Page 6 of ? be confident that their children are protected. According to the American Heart Association, sudden cardiac arrest kills over 300,000 people a year and is the leading cause of death in the United States. [M]any of these 300,000 deaths could have been saved with the use of an AED. (American Heart Association - Circulation http://circ.ahajournals.org.) This bill would state the intent of the Legislature to encourage all public schools to acquire and maintain at least one AED. The bill would authorize a public school to solicit and receive non-state funds to acquire and maintain an AED. If a public school decides to acquire and maintain an AED, or continue to use and maintain an existing AED, the bill would authorize and encourage the school to comply with specified requirements. The bill would provide that the school district and employees of the school district are not liable for civil damages resulting from certain uses, attempted uses, or non-uses of an AED, except as provided. The bill would delete the requirement on a public or private K-12 school principal to ensure that certain school employees annually receive approved brochures describing the proper use of an AED and that similar information be posted next to every AED. The bill would recast the remaining requirements, identified above, on a public or private K-12 school principal relating to AEDs in the Education Code but instead require that a principle principal designate only school employees who volunteer to be designated as AED volunteers to respond to an emergency that may involve the use of an AED. 2. Existing law ambiguities in relation to public school As noted in the Background, there have been numerous bills over the last decade encouraging and regulating the use and maintenance of AEDs by person and entities. Those provisions also provide for qualified immunities for persons rendering emergency care by way of an AED unit and entities that make those units available. Also, in 2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005) was enacted to specify the notification and staffing requirements that must be met when a public or private K-12 school voluntarily installs an AED on school grounds and seeks to allow immunity from civil liability resulting from any acts or omissions in using the AED's use to render emergency care. Nonetheless, the author contends that "[e]xisting law does not clearly protect school districts from any civil damages if an AB 939 (Melendez) Page 7 of ? AED is used in good faith, on campuses, making schools reluctant to obtain an AED because of the threat of unaffordable lawsuits. The law is ambiguous when it comes to who is protected from civil liabilities if an AED is used. Current law states, 'In order to ensure public safety, any person or entity that acquires an AED is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care under subdivision (b) of Section 1714.21 of the Civil Code.' The ambiguity of 'entity' leaves schools reluctant to obtain an AED in fear of not being protected. Existing law also does not authorize and encourage schools to solicit and receive non-state funds to acquire and maintain an AED." In support of this bill, the Los Angeles County Office of Education writes that "[w]hile children are at school they should be protected from this [sudden cardiac arrest] epidemic, but schools are reluctant to acquire an AED due to existing law. Existing law does not clearly protect school districts from any civil damages if an AED is used in good faith on campuses, making schools reluctant to obtain an AED because of the threat of unaffordable lawsuits." Similarly, the Association of California School Administrators (ASCA) writes that "[m]ost school districts are self-insured. As a result, the self-insurance companies have advised school districts not to purchase or accept AEDs for fear of ability. A number of school sites in the state have been offered AEDs free of charge, only be advised not to accept the device. Currently, individuals receive Good Samaritan protection from the use of an AED; however, it has been unclear whether school districts are covered within this same protection." This bill seeks to remedy any ambiguity and reduce the hesitation of schools to obtain AEDs by enacting specific language encouraging all public schools to acquire and maintain at least one AED and providing both the schools and the employees who render the emergency care qualified immunity from liability, as specified. In a joint letter of support, the Emergency Medical Services Administrators Association and the Emergency Medical Directors Association of California detail how children can and have become victims of sudden cardiac arrest, listing at least 10 instances in the state between 2001 and April of this year, wherein children between the ages of 14 and 17 died or suffered severe brain damage as a result of severe cardiac arrest where there was no AED unit available. They also note six instances AB 939 (Melendez) Page 8 of ? in which the lives of five students (ages 13 through 18) and one faculty member (aged 34 years old) were saved through the use of an AED unit while suffering from cardiac arrest. 3. This bill appears consistent with prior efforts to encourage emergency, life-saving, assistance by way of qualified immunities for trained Good Samaritans This bill would attempt to provide the clarity that proponents of this bill feel is missing under existing law by specifically providing that an employee of a school district who complies with certain existing law provisions in rendering emergency care or treatment through the use, attempted use, or nonuse of an AED at the scene of an emergency shall not be liable for any civil damages resulting from any act or omission in rendering the emergency care or treatment. The bill would also provide that if an employee of a school district who uses, attempts to use, or does not use an AED consistent with the requirements of this bill, as specified, to render emergency care or treatment, the school district is not liable for civil damages resulting from the act or omission in rendering the emergency care or treatment, including the use or nonuse of an AED, except in the case of personal injury or wrongful death that results from gross negligence or willful or wanton misconduct on the part of the person who uses, or maliciously fails to use an AED to render emergency care or treatment. As a general rule, California law provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. (Civ. Code Sec. 1714(a).) Although immunity provisions are rarely preferable because they, by their nature, prevent an injured party from seeking a particular type of recovery, the Legislature has in limited scenarios approved measured immunity from liability (as opposed to blanket immunities) to promote other policy goals that could benefit the public. Proponents of this bill write in strong support of the fact that AEDs can save lives-and in many cases, they can save the lives of children, as noted in Comment 2 above. In support of the bill, the Contra Costa County of Board of Supervisors writes that: AB 939 (Melendez) Page 9 of ? According to the American Heart Association, sudden cardiac arrest kills over 300,000 people a year and is the leading cause of death in the United States. Medical experts opine that the key to survival is a timely initiation of a "chain of survival," including cardio-pulmonary resuscitation (CPR) and the use of an AED. If CPR along with AED is administered within 4 to 8 minutes from the time a victim collapses, the chances of survival are greatly improved. While it is not always physical possible for EMS first-responders to be at the side of a student, faculty or visitor on a school campus within 4 to 8 minutes, having an AED on campus and available to trained non-medical personnel prior to EMS arrival will help save lives and prevent brain damages and disability. Thus, in light of the general disfavoring of immunity provisions, the question necessarily becomes whether the proposed immunity provisions would appropriately balance the public policy of saving lives where there is a reasonable method of providing assistance against the ability for an injured person to seek recourse for injuries sustained as a result of the administration of an AED. Staff notes that this type of qualified immunity is not without precedent under California law. Most obviously, and as acknowledged above, existing law already provides for qualified immunity in the context of AEDs, whereby this state encourages the provision of emergency care with a reduced risk of civil liability, in order to avoid preventable deaths. (See Civ. Code Sec. 1714.21.) Moreover, earlier this year, this Committee heard and approved SB 669 (Huff), which sought to promote a wider use of epinephrine auto injectors (commonly referred to as epi-pens) to persons suffering anaphylactic shock due to an allergic reaction, which can quickly lead to death without treatment. To do so, that bill would have, among other things, provided immunity to any trained lay person who administers, in good faith, and without compensation, epinephrine auto injectors to another person in emergency situations. As amended in this Committee, that bill now mirrors the AED statutes to make the limited liability inapplicable where there was gross negligence or willful or wanton misconduct by the person rendering the emergency care. Similarly, AB 635 (Ammiano) was recently passed out of this Committee to expand the provision of naloxone, an opioid antagonist, to persons believed to be experiencing a drug overdose. AB 635 would grant a qualified immunity to licensed health care providers who issues such prescriptions or standing orders, as well as to unlicensed, but trained, individuals who AB 939 (Melendez) Page 10 of ? administer the naloxone, in good faith, and without compensation, in emergencies to a person they believe are experience a drug overdose. Staff notes that this bill, consistent with existing AED statutes and the bill described above, prohibits the application of any immunity to a school district in the case of personal injury or wrongful death that results from gross negligence or willful or wanton misconduct on the part of the person who uses, or maliciously fails to use an AED to render emergency care or treatment. While this bill does not explicitly contain the training provisions of the current AED statutes or the recent bills approved by this Committee, it does so by cross referencing existing statutes that require the person to be trained. Of note, those provisions likewise limit the immunity where there is any gross negligence or willful or wanton misconduct on the part of the person who renders emergency care or treatment by the use of an AED. (See Civ. Code Sec. 1714.21(b), (f).) Furthermore, insofar as proper maintenance has been a critical component to prior AED bills approved by this Committee, this bill only would apply to schools that decide to acquire and maintain an AED system. As such, the qualified immunity provisions above appear to help foster the use of AED units in public schools to help reduce the number of unnecessary deaths and other severe effects of sudden cardiac arrest in a reasonable and measured fashion, contingent upon the volunteering employee receiving training, proper maintenance of the AED unit by the school, and absence of gross negligence or willful or wanton misconduct. 4. Opposition's concerns The California Federation of Teachers write in opposition that they are "particularly concerned that educators are being asked to provide health treatment that is far beyond their scope of education, training and general job responsibilities." They also state a fear that employees will be pressured into volunteering. In response, the author argues that, "[a]ccording to the Centers for Disease Control, there are approximately 1,000 deaths per day that are caused by sudden cardiac arrest. Having twenty percent of America's population spending at least part of their day on a school property it is important to ensure they are safe from this preventable death. AB 939 is that effort to help AB 939 (Melendez) Page 11 of ? ensure the public's safety. AB 939 encourages all schools to have and maintain an automatic external defibrillator. This legislation imposes no requirements or pressures to any individuals to using an AED. Its intent is to allow just one more lifesaving option to whoever may be trying to save a life." 5. Amendments taken in Senate Committee on Education The author agreed in the Senate Committee on Education to take the following amendment to add "employees" to a provision authorizing and encouraging schools to place an AED in a centralized location on campus for the purpose of preventing deaths resulting from sudden cardiac arrests among pupils, faculty, and visitors: Author's amendment : On page 2, line 15, after "faculty" add "employees" The author also agreed in that committee to take the following amendments to delete the bill's weaker requirements for principals and reinstate the existing requirements in the Health and Safety Code that school principals take specific action when an AED is placed in a school, while amending that provision to reflect that the principal shall only designate trained only employees who volunteer to be designated as an AED volunteer. The amendments would also state the intent of the Legislature that the employees not be required to pay for the cost of any training that may be required on the proper use of an AED. Author's amendments : 1. On page 3, strike lines 25-31 inclusive 2. On page 5, between lines 6-7, insert: "(5) When an AED is placed in a public or private K-12 school, the principal shall ensure that the school administrators and staff annually receive a brochure, approved as to content and style by the American Heart Association or the American Red Cross, that describes the proper use of an AED. The principal shall also ensure that similar information is posted next to every AED. The principal shall, at least annually, notify school employees as to the location of all AED units on the campus. The principal shall designate the trained only employees who volunteer to be designated as AED volunteers who shall be available to respond to an AB 939 (Melendez) Page 12 of ? emergency that may involve the use of an AED during normal operating hours. As used in this paragraph, "normal operating hours" means during the hours of classroom instruction and any school-sponsored activity occurring on school grounds. It is the intent of the Legislature that school employees shall not be required to pay for the cost of any training that may be required on the proper use of an AED." Support : Association of California School Administrators; California Association of Joint Powers Authorities; California Medical Association; California State Council of Emergency Nurses Association; California State Parent Teacher Association; Contra Costa County Board of Supervisors; Emergency Medical Services Administrators Association; Emergency Medical Directors Association of California, Inc.; Los Angeles County Office of Education; Paramedics Plus; one individual Opposition : California Federation of Teachers HISTORY Source : Author Related Pending Legislation : AB 635 (Ammiano), See Comment 3. This bill is currently on the Senate Floor. SB 669 (Huff), See Comment 3. This bill is set for hearing in the Assembly Committee on Business, Professions & Community Development on July 2, 2013. Prior Legislation : SB 1436 (Lowenthal, Ch. 71, Stats. 2012), See Background. SB 63 (Price, 2011), See Background. AB 2083 (Vargas, Ch. 85, Stats. 2006), See Background. AB 254 (Nakanishi, Ch. 111, Stats. 2005), See Background. AB 2041 (Vargas, Ch. 718, Stats. 2002), See Background. SB 911 (Figueroa, Ch. 163 Stats. 1999), See Background. AB 939 (Melendez) Page 13 of ? Prior Vote : Senate Education Committee (Ayes 9, Noes 0) Assembly Floor (Ayes 76, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) Assembly Education Committee (Ayes 5, Noes 0) **************