BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 2217 (Melendez)
          As Amended May 6, 2014
          Hearing Date: June 24, 2014
          Fiscal: No
          Urgency: No
          RD


                                        SUBJECT
                                           
            Pupil and personnel health: automated 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.  

                                      BACKGROUND 

          According to the American College of Emergency Physicians (ACEP)  
          Web site, 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 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  
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          (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 under  
          submission on the Senate Appropriations Committee's suspense  
          file.  

          Last year, AB 939 (Melendez, 2013) would have stated the intent  
          of the Legislature to encourage all public schools toi acquire  
          and maintain at least one AED, encouraged schools that decide to  
          acquire and maintain an AED to comply with certain requirements,  
          and also provided a qualified immunity from liability for a  
          school district and its employees.  That bill was approved by  
          this Committee and held under submission on the Senate  
          Appropriations Committee's suspense file. 

          While narrower than AB 939, this bill would similarly state the  
                                                                      



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          intent of the Legislature to encourage all public schools to  
          acquire and maintain at least one AED and provide a qualified  
          immunity from liability for a school district and its employees,  
          as specified. 

          This bill was heard by the Senate Education Committee on June  
          18, 2014, and passed out on a vote of 7-0. 

                                CHANGES TO EXISTING LAW
           
           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 specified notice  
          requirements.  (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  
               Emergency Services agency;
                                                                      



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             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, consistent with the requirements of this bill, uses,  
          attempts to use, or does not use an AED 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 existing law  
          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 if an employee of a school district  
          complies with existing requirements in rendering emergency care  
          or treatment through the use, attempted use, or nonuse of an AED  
          at the scene of an emergency, the employee shall not be liable  
          for any civil damages resulting from any act or omission in the  
          rendering of the emergency care or treatment.  
                                                                      



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           This bill  would reiterate 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, attempts to use, or maliciously  
          fails to use an AED to render emergency care or treatment.

           This bill  would provide that if a public school or school  
          district complies with the existing requirements of Civil Code  
          Sec. 1714.21, above, the public school or school district shall  
          be covered by that section, and shall not be liable for any  
          civil damages resulting from any act or omission in the  
          rendering of the emergency care or treatment.

           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 specify that it does not alter existing  
          requirements with respect to the use of AEDs by persons  
          rendering emergency care. 

           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.

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author:

            California children spend many hours away from their parents  
            and under the supervision of the state while they receive an  
            education in California's K-12 public schools. While under  
            this supervision, parents should 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. 5,760 of these deaths are  
            children under the age of 18. 
            Unfortunately, many schools are reluctant to acquire AEDs  
            because existing law does not clearly protect school districts  
            from civil damages if an AED is used in good faith.
                                                                      



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            AB 2217 provides school districts and their employees with  
            protection from lawsuits if an AED is used on campus to try  
            and save a life. This will encourage the acquisition of AEDs  
            in public schools and improve the safety of our state's  
            children.

          2.    Similar bill heard last session  

          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. The resulting  
          provisions provide for qualified immunities for persons  
          rendering emergency care by way of an AED unit and for entities  
          that make those units available.  With respect to schools, 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 to allow immunity from civil liability  
          resulting from any acts or omissions in using the AED to render  
          emergency care. 

          Specifically, 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.  (Civ. Code Sec.  
          1714.21(d).)  Under that provision, the qualified immunity does  
          not apply in the case of personal injury or wrongful death which  
          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).)

          Nonetheless, the author contends that many schools remain  
          reluctant to acquire AEDs because existing law does not clearly  
          protect school districts from civil damages if an AED is used in  
          good faith.  The apparent lack of clarity appears based upon  
          uncertainty as to what is "a person or entity" that qualifies  
          for limited liability under the existing provision described  
          above (i.e., is a school district an "entity" for the purposes  
          of the Civil Code).  Thus, in order to achieve the stated  
          purpose of encouraging all public schools to acquire and  
          maintain at least one AED, this bill seeks to address any lack  
          of clarity as to whether schools that acquire, maintain and use  
          an AED have qualified immunity.  Notably, this bill is  
                                                                      



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          essentially a narrower version of AB 939 (Melendez, 2013) which  
          contained similar qualified immunity language that was approved  
          by this Committee before the bill was held under submission in  
          the Senate Appropriations Committee. 

          That being said, the bill provides for essentially the same  
          qualified immunity as AB 939, in a slightly different way.   
          Accordingly, this bill would provide that an employee of a  
          school district shall not be liable for any civil damages  
          resulting from any act or omission in the rendering of emergency  
          care or treatment through the use, attempted use, or nonuse of  
          an AED at the scene of an emergency, if the employee complies  
          with existing requirements under Civil Code Sec. 1714.21 above  
          (i.e. requiring that the employee have rendered the care in  
          compliance with specified maintenance, training, and notice  
          requirements under the Health and Safety Code.)  In doing so,  
          and consistent with other similar qualified immunity provisions  
          under existing law, this bill would also state that the immunity  
          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, attempts to use, or maliciously  
          fails to use an AED to render emergency care or treatment.

          Additionally, this bill was most recently amended to provide  
          that if a public school or school district complies with the  
          existing requirements of Civil Code Section 1714.21, above, the  
          public school or school district shall be covered by that  
          section, and shall not be liable for any civil damages resulting  
          from any act or omission in the rendering of the emergency care  
          or treatment.  Staff notes that in doing so, the bill does not  
          expressly apply the bill's gross negligence and willful or  
          wanton misconduct exceptions to this provision.  While the gross  
          negligence and willful or wanton misconduct exceptions could  
          still apply given the cross-reference to the Civil Code section  
          which contains the same exceptions, confusion could arise based  
          on the express language of the bill.  

          To avoid any such further lack of clarity, the following  
          amendment is suggested to ensure that the bill's gross  
          negligence and the willful or wanton misconduct exceptions apply  
          to the school and school districts as well:

             Suggested amendment  :

            On page 2, at the start of line 17, insert "Except as provided  
            in subdivision (e)"
                                                                      



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            On page 2, line 24 strike "Subdivision (c)" and insert  
            "Subdivisions (c) and (d)" 


           Support  :  American Heart Association/American Stroke Association  
          (AHA/ASA); Association of California School Administrators  
          (ACSA); California Association of Joint Powers Authorities  
          (CAJPA); California State Council of Emergency Nurses  
          Association; California State PTA; Civil Justice Association of  
          California; Contra Costa County; Emergency Medical Services  
          Administrators Association (EMSAAC); Emergency Medical Directors  
          Association of California, Inc.; Napa County Board of  
          Supervisors; Olivia's Heart Project; Superintendent of the  
          Murrieta Valley Unified School District

           Opposition  :  None Known 



                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  SB 1266 (Huff, 2014) would require  
          school districts, county offices of education, and charter  
          schools to provide emergency epinephrine auto-injectors to  
          trained personnel who, consistent with existing law, may use the  
          auto-injectors to provide emergency medical aid to persons  
          suffering from an anaphylactic reaction, as specified. The bill  
          would also require that each employee who volunteers be provided  
          defense and indemnification by the school district, county  
          office of education, or charter school for any and all civil  
          liability, as specified.   

           Prior Legislation  :

          AB 635 (Ammiano, Ch. 707, Stats. 2013) expanded the provision of  
          naloxone, an opioid antagonist, to persons believed to be  
          experiencing a drug overdose and granted  specified qualified  
          immunities to licensed health care providers who issues such  
          prescriptions or standing orders, as well as to unlicensed, but  
          trained, individuals who administer the naloxone. 

          SB 669 (Huff), among other things, authorized a trained  
          pre-hospital emergency medical care person, first responder, or  
                                                                      



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          lay rescuer to obtain and use epinephrine auto-injectors to  
          render emergency care to another person, pursuant to specified  
          requirements, and granted such individuals limited liability, as  
          specified.  

          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.

           Prior Vote  :

          Senate Education Committee (Ayes 7, Noes 0)
          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Education Committee (Ayes 7, Noes 0)

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