BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1266 (Huff)
As Amended April 21, 2014
Hearing Date: April 29, 2014
Fiscal: Yes
Urgency: No
RD
SUBJECT
Pupil Health: Epinephrine Auto-Injectors
DESCRIPTION
Existing law authorizes every public and private school to
voluntarily determine whether to make emergency epinephrine
available at its school and allows trained personnel to
volunteer to use epinephrine auto-injectors to provide emergency
medical aid to persons suffering from anaphylactic reaction, as
specified.
This bill would make the existing provisions mandatory by
requiring public schools to have a trained volunteer to
administer epinephrine auto-injectors in emergencies and would
require that each employee who volunteers is provided defense
and indemnification by the school district, county office of
education, or charter school for any and all civil liability, as
specified. Additionally, the bill would:
mandate certain reporting by the school nurse or designated
employee, and by the school district, county office of
education, or charter school, after each school year;
add new training requirements;
specify that the Superintendent must review the minimum
training standards for the administration of epinephrine
auto-injectors every five years; and
authorize funding, as specified.
BACKGROUND
An epinephrine auto-injector is a disposable medical drug
delivery device that delivers a single measured dose of
(more)
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epinephrine, most frequently for the treatment of acute allergic
reactions to avoid or treat the onset of anaphylactic shock.
Anaphylactic shock can quickly result in death if untreated.
Epinephrine auto-injectors can be obtained by prescription only,
and California law does not authorize non-physicians to
administer an epinephrine auto-injector to another person,
except in limited circumstances.
In recent years, California law has been amended to, among other
things, permit school districts or county offices of education
to provide emergency epinephrine auto-injectors to trained
personnel, and to permit trained personnel to utilize the
auto-injectors to provide emergency medical aid to persons
suffering from an anaphylactic reaction, as it is not uncommon
for children to come into contact with specific allergens (such
as bee stings) or accidentally ingest foods they are allergic to
at school. (AB 559 (Wiggins, Ch. 458, Stats. 2001).)
This bill would require, as opposed to simply authorize, 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 anaphylactic reaction. Each public school would
be required to designate one or more school personnel on a
voluntary basis to receive the requisite training for these
purposes, while each private school would retain their current
authority to voluntarily determine whether or not to make
emergency epinephrine auto-injectors and trained personnel
available at its school. This 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.
This bill was previously heard by the Senate Education Committee
and the Senate Health Committee on April 2 and April 24, 2014,
respectively.
CHANGES TO EXISTING LAW
Existing law , the Government Tort Claims Act, specifies rules of
civil liability that apply to public entities and public
employees in California. (Gov. Code Sec. 810 et seq.)
Existing law , in relevant part, permits a school district or
county office of education to provide emergency epinephrine
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auto-injectors to trained personnel, and permits trained
personnel to utilize those epinephrine auto-injectors to provide
emergency medical aid to persons suffering from an anaphylactic
reaction. Existing law prohibits any school district or county
office of education choosing to exercise this authority from
receiving funds specifically for these purposes. (Ed. Code Sec.
49414(a).)
Existing law , in relevant part, authorizes each public and
private elementary and secondary school in the state to
voluntarily determine, as specified, whether or not to make
emergency epinephrine auto-injectors and trained personnel
available at its school. (Ed. Code Sec. 49414(c).)
Existing law permits each public and private school to designate
one or more personnel on a voluntary basis to receive initial
and annual refresher training, based on specified standards,
regarding the storage and emergency use of an epinephrine
auto-injector from the school nurse or other qualified person
designated by the school district physician, the medical
director of the local health department, or the local emergency
medical services director. Existing law prohibits any school
choosing to exercise this authority from receiving state funds
for these purposes. (Ed. Code Sec. 49414(d).)
Existing law permits a school nurse, or if the school does not
have a school nurse, a person who has received training, as
specified, to do the following:
obtain from the school district physician, the medical
director of the local health department, or the local
emergency medical services director a prescription for
epinephrine auto-injectors; and
immediately administer an epinephrine auto-injector to a
person exhibiting potentially life-threatening symptoms of
anaphylaxis at school or a school activity when a physician is
not immediately available. (Ed. Code Sec. 49414(f).)
Existing law requires the Superintendent of Public Instruction
to establish minimum standards of training for the
administration of epinephrine auto-injectors that satisfy the
minimum statutory training requirements, as specified. Existing
law requires that the Superintendent consult with specified
organizations and providers with expertise in administering
epinephrine auto-injectors and administering medication in a
school environment. (Ed. Code Sec. 49414(e)(1).) Existing law
also provides minimum training requirements and standards, as
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specified. (Ed. Code Sec. 49414(e)(2).)
Existing law authorizes a school district, county office of
education, or charter school, in the absence of a credentialed
school nurse or other licensed nurse onsite at the school, to
participate in a program, as specified, to allow non-medical
school personnel to administer anti-seizure medication to a
pupil with epilepsy in an emergency, after receiving certain
training. (Ed. Code Sec. 49414.7.)
Existing law provides that if a school district, county office
of education, or charter school elects to participate pursuant
to this section, the school district, county office of
education, or charter school shall ensure that each employee who
volunteers will be provided defense and indemnification by the
school district, county office of education, or charter school
for any and all civil liability, in accordance with, but not
limited to, that provided under the Government Tort Claims Act.
This information shall be reduced to writing, provided to the
volunteer, and retained in the volunteer's personnel file. (Ed.
Code Sec. 49414.7(i).)
This bill would instead require school districts, county offices
of education, and charter schools to provide emergency
epinephrine auto-injectors to trained personnel. Each public
school would be required to designate one or more personnel on a
voluntary basis to receive the required training, as specified,
and would be required to designate and have trained at least one
person for certain purposes. Each private elementary and
secondary school in the state would retain the existing
authority to determine whether or not to make emergency
epinephrine auto-injectors available at its school.
This bill would require a school nurse, or if the school does
not have nurse or one is not onsite or available, a school
administrator or his or her designee who has received the
requisite training, to obtain from the local educational agency
physician or other specified persons a prescription for
epinephrine auto-injectors, and specify that the prescription
must at a minimum include one adult and one junior epinephrine
auto-injector. This bill would also authorize the prescription
to be filled by local or mail order pharmacies or epinephrine
auto-injector manufacturers.
This bill would require a school district, county office of
education, or charter school to ensure that each employee who
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volunteers under this bill is provided defense and
indemnification by the school district, county office of
education, or charter school for any and all civil liability, in
accordance with, but not limited to, that provided under the
Government Tort Claims Act. This bill would require this
information to be reduced to writing, provided to the volunteer,
and retained in the volunteer's personnel file.
This bill would specify that the Superintendent must review the
minimum standards of training required for the administration of
epinephrine auto-injectors every five years. This bill would
add to the existing training requirements that training shall
include instruction on how to determine whether to use an adult
or junior epinephrine auto-injector. The bill would also
require that the training be consistent with specified
guidelines by the federal Centers for Disease Control.
This bill would require that, no later than 30 days after the
last day of each school year, the school nurse or designated
employee shall report any incident of epinephrine auto-injector
use to the school district, county office of education, or
chartering authority on a form developed by the department.
This bill would require that the school district, county office
of education, or chartering authority report any incident of
epinephrine auto-injector use to the department on the form
developed by the department. This bill would also require the
department to annually publish the results of the submitted
forms on its Internet Web site, without violating state and
federal privacy laws.
This bill would authorize state funding for certain purposes for
which state funding was previously prohibited and would further
allow a public school to accept gifts, grants, and donations
from any source for the support of the public school carrying
out the provisions of this bill, including but not limited to,
the acceptance of epinephrine auto-injectors from a manufacturer
or wholesaler.
This bill would make other related and technical changes.
COMMENT
1. Stated need for this bill
According to the author,
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Approximately 6 million children under the age of 18 suffer
from life threatening allergies. That is one in every 13
children - or [two] in every classroom. Approximately 25
percent of first time allergic reactions that require
epinephrine happen at school. Because they have no knowledge
of this, they do not have the necessary lifesaving medication
on hand. Also, children with known allergies are being sent
to school without epinephrine for several reasons including
cost, non-understanding of the severity of the allergy by
parents, the prohibitive nature of the school process for
leaving medication.
Anaphylaxis is a potentially lethal allergic reaction. It can
happen when a person is stung by a bee, ingests food such as
shellfish or nuts, or maybe even just comes in contact with
something as simple as latex. Epinephrine is the first line of
treatment for someone who is experiencing anaphylaxis. It can
be easily administered and has very little side-effect.
Reactions can be so severe, even fatal, without prompt use of
epinephrine.
Current law requires prescription for epinephrine be made to a
specific student in order for the medication to be stored at
schools so it can be used in case of a anaphylactic reaction
during school hours. Current California law also allows
schools to stock epinephrine, but has not required it.
SB 1266 will require extra epinephrine injectors be prescribed
as a "standing order" so epinephrine can be on hand in all
public schools in the event of an severe allergic reaction.
SB 1266 will allow volunteers to be trained for identifying
anaphylaxis and administering the necessary medication,
epinephrine. It will also provide defense and indemnification
for those volunteering to administer (this language came from
existing law as provided under [Ed. Code Sec.] 49414.7 (i)).
The sponsor of this bill, Food Allergy Research & Education
(FARE), adds, "[e]pinephrine is the only medication that can
arrest the symptoms of a severe reaction." FARE cites a study
in a medical journal (Pediatrics) that "showed that 24 percent
of epinephrine use in a school district was on those without a
previous diagnosis of food allergy. Many children may not know
they are allergic and do not have prescribed epinephrine.
Precious minutes can be lost waiting for emergency responders.
There are no counter-indications to administering epinephrine,
but delaying its use may have catastrophic results."
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2. Indemnification and defense for volunteers
All private and public schools in this state are authorized
under existing California law to voluntarily determine whether
or not to make epinephrine available at their schools. This
bill would not modify this existing authorization for private
schools but would require all public schools to designate one or
more volunteer school personnel to train and use epinephrine
auto-injectors to provide emergency medical aid to persons
suffering from anaphylactic reaction, as specified.
As noted by the California School Nurses Organization, "[t]his
bill will serve to protect those children who are not known to
have allergies by providing a safety mechanism-the epinephrine
auto-injectors (epi-pens) which will protect them from any
severe reaction. Many school children fall prey to undiagnosed
allergies and those with asthma or poorly controlled asthma are
at a higher risk of allergic reactions."
Another supporter of the bill, the CA, Allergy Support &
Anaphylaxis Prevention argues that even though California law
authorizes school districts to have stock epinephrine in
schools, "very few have actually taken advantage of implementing
this."
As a practical matter, however, the success of this bill depends
on a teacher or other school employee volunteering to be
designated for this purpose. Recognizing that employees may
hesitate to volunteer out of fear of personal liability, this
bill would require that a school district, county office of
education, or charter school ensure 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. The bill would also require that this
information be reduced to writing, provided to the volunteer,
and retained in the volunteer's personnel file.
Staff notes that this language is modeled upon an existing
provision of the Education Code which provides authorization for
schools to allow nonmedical employees to administer medical
assistance to pupils with epilepsy suffering from seizures.
(See Ed. Code Sec. 49414.7(i).) The language would appear to
preserve any recourse that the students and their families might
have under existing law for injuries suffered as a result of the
administration of the epinephrine auto-injector, while still
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affording adequate protection from the costs of litigation and
any liability for damages thereof to volunteering employees who
attempt to render life-saving emergency care in accordance with
their training.
3. Opposition concerns
Staff notes three organizations, the California Teachers
Association (CTA), California Federation of Teachers, and the
California School Employees Association (CSEA), that have
submitted letters of opposition to the prior versions of this
bill. The CSEA took a position of oppose unless amended, and
specifically noted in their letter that their concerns regarding
liability protection would be addressed with the indemnification
language that the author subsequently amended into the bill.
Additionally, CSEA argued that the bill needed to (1) make clear
that the designated employees be volunteers, (2) clarify who
will be paying for the epinephrine auto-injectors, and (3)
include an appropriation or some funding mechanism to pay for
itself.
CTA's letter raised concerns that: (1) reactions to epinephrine
could go beyond the scope of training provided to school
personnel; (2) probationary or temporary and/or classified
employees could be "highly encouraged" to volunteer against
their will; and (3) this bill creates a "one size fits all
statute" by individuals without necessary medical and
pharmaceutical expertise to take into account potential
unintended consequences.
The California Federation of Teachers argued that a mandate
requiring all schools to have this device, where they are
already authorized to do so, is unnecessary and costly. They
also had liability related concerns and argued that schools
should be employing a full time nurse to be responsible for
administering all medications to students that need it. With
respect to the liability concerns, Committee staff notes that
the letter was submitted prior to the addition of the
indemnification and defense language to this bill. Staff also
notes that significant amendments were taken in the Health
Committee, which appear to have addressed some of the other
non-liability related concerns. (See Comment 4 below.)
4. Author's amendments
This bill was approved by the Senate Health Committee on April
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24, 2014. Due to procedural timing constraints, the author
committed to taking the following amendments in this Committee
to:
ensure that the required training includes standards and
procedures for the restocking of epinephrine auto-injectors;
ensure that the required documentation include information as
to when the medication was restocked;
clarify that the school nurse or school administrator would be
responsible to be trained, obtain, and administer an
epinephrine auto-injector if no school personnel are willing
to volunteer;
clarify that if the school does not have a school nurse, or if
the school nurse is not onsite or available, a school
administrator is responsible for obtaining the requisite
epinephrine auto-injectors and strike any references to the
volunteering designee with respect to this particular
responsibility;
ensure any references to designated employees also reflect
that the designee is a volunteer; and
make other technical and clarifying changes.
Support : American Academy of Allergy, Asthma and Immunology
(AAAI); American Red Cross; Asthma and Allergy Foundation of
America (AAFA); Bay Area Allergy Advisory Board; Bay Area Food
Allergy 5k Walk/Run in Memory of BJ HOM; California Advocates
for people with Food Allergies (CAFA); California Allergy
Support & Anaphylaxis Prevention (CAASAP); California Chapter of
the American College of Emergency Physicians (California ACEP);
California Society of Allergy, Asthma and Immunology (CSAAI);
California School Nurses Organization (CSNO); Food Allergy and
Anaphylaxis Connection Team (FAACT); Food Allergy Support of
Sacramento (FASS); Kids with Food Allergies (KFA); Natalie
Giorgi Sunshine Foundation; Northern California Allergy & Asthma
Advocates (NCAAA);
Nut Free Wok; Orange County Taxpayers Association; San Diego
Food Allergy Support Group; San Francisco Bay Area Food Allergy
Network; Sanofi; South Orange County Food Allergy Network; San
Clemente Food Allergy Support Group; Stanford Food Allergy &
Food Sensitivity Center Community Council; Sutter Medical Group;
numerous individuals
Opposition : California Federation of Teachers; California
School Employees Association (oppose unless amended); California
Teachers Association
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HISTORY
Source : Food Allergy Research and Education
Related Pending Legislation : None Known
Prior Legislation :
SB 669 (Huff, Ch. 725, Stats. 2013), among other things,
authorized a trained pre-hospital emergency medical care person,
first responder, or lay rescuer to obtain and use epinephrine
auto-injectors to render emergency care to another person,
pursuant to specified requirements, and granted them limited
liability, as specified.
SB 161 (Huff, Ch. 560, Stats. 2011) authorized a school
district, county office of education, or charter school to
participate in a program to provide nonmedical school employees
with voluntary emergency medical training to provide, in the
absence of a credentialed school nurse or other licensed nurse
onsite at the school or charter school, emergency medical
assistance to pupils with epilepsy suffering from seizures, in
accordance with specified guidelines. SB 161 also provided each
employee who volunteers under the bill with defense and
indemnification by the school district, county office of
education, or charter school, for any and all civil liability,
as specified.
AB 559 (Wiggins, Ch. 458, Stats. 2001), See Background.
AB 1791 (Wiggins, 1999) was similar to AB 559, above, but was
ultimately vetoed by the Governor.
Prior Vote :
Senate Health Committee (Ayes 9, Noes 0)
Senate Education Committee (Ayes 7, Noes 0)
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