BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1386 (Low)
          Version: June 13, 2016
          Hearing Date: June 21, 2016
          Fiscal: Yes
          Urgency: No
          RD   


                                        SUBJECT
                                           
                 Emergency medical care:  epinephrine auto-injectors

                                      DESCRIPTION  

          This bill would allow "authorized entities," as defined to  
          include both private and government entities, to obtain  
          epinephrine auto-injectors for the use of any one of their  
          employees, volunteers, or agents, who is a lay rescuer, as  
          specified, to render emergency care to another person. This bill  
          would further ensure, however, that the failure of an authorized  
          entity to possess or administer an epinephrine auto-injector  
          shall not result in civil liability. Additionally, this bill  
          would apply an existing qualified immunity for physicians and  
          surgeons who write prescriptions for epinephrine auto-injectors  
          for use in schools to physicians and surgeons who write  
          prescriptions to prehospital medical care persons, laypersons,  
          or for use of qualifying employees, volunteers, or agents of  
          authorized entities.  Lastly, this bill would also authorize  
          pharmacies to furnish prescriptions to authorized entities for  
          these purposes, as specified, and would otherwise revise  
          existing requirements and standards under the Health and Safety  
          Code relating to the administration of epinephrine  
          auto-injectors by Good Samaritans in emergencies. 

                                      BACKGROUND  

          An epinephrine auto-injector is a disposable medical drug  
          delivery device that delivers a single measured dose of  
          epinephrine, most frequently for the treatment of acute allergic  
          reactions to avoid or treat the onset of anaphylactic shock.   








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          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.   

          Over the years, California law has been amended to 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.  (See  
          AB 559 (Wiggins, Ch. 458, Stats. 2001); see also SB 1266 (Huff,  
          Ch. 321, Stats. 2014), which was subsequently enacted to  
          require, as opposed to simply authorize, school districts,  
          county offices of education, and charter schools to provide  
          emergency epinephrine auto-injectors to voluntary, trained  
          personnel who, consistent with existing law, may use the  
          auto-injectors to provide emergency medical aid to persons  
          suffering from an anaphylactic reaction.)  

          More recently, in 2013, California law was expanded to also  
          permit certain Good Samaritans (specifically, prehospital  
          emergency medical care persons or lay rescuers), to obtain and  
          administer epinephrine auto-injectors to provide emergency  
          medical aid to persons suffering from anaphylactic shock. (SB  
          669 (Huff, Ch. 725, Stats. 2013).)  In doing so, the legislation  
          granted such individuals, acting in good faith and not for  
          compensation, immunity for any civil damages resulting from any  
          acts or omissions in administering the auto-injector to a person  
          who appears to be experiencing anaphylaxis at the scene of an  
          emergency, as long as the person did not act with gross  
          negligence or willful or wanton misconduct and otherwise  
          complies with certain requirements and standards, including  
          training requirements.  

          Of import to this bill, just this last year, SB 738 (Huff, Ch.  
          132, Stats. 2015) was brought to address an issue of concern for  
          doctors who are needed to write these prescriptions so that  
          schools may obtain and stock epinephrine auto-injectors as  
          required by these bills.  The proponents of SB 738 reported that  
          schools were having difficulty obtaining epinephrine  
          auto-injectors because doctors were declining to write those  







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          prescriptions out of fear of both professional disciplinary  
          action and both civil and criminal liability from any resulting  
          acts or omissions in relation to the administration of the  
          prescribed auto-injector in an emergency.  While these types of  
          Good Samaritan laws have largely stopped short (intentionally  
          so) of providing immunity to individuals for negligent acts or  
          omissions in the performance of their professional duties, it  
          has also become clear that doctors, in their ordinary practice  
          of medicine, do not and cannot prescribe medication to third  
          persons.  Accordingly, SB 738 was enacted to grant any physician  
          or surgeon issuing a prescription or order for these purposes  
          immunity from any potential civil or criminal liability or from  
          professional disciplinary action, unless the physician and  
          surgeon's issuance constitutes gross negligence or willful or  
          malicious conduct.

          This bill would now add authorization for other "authorized  
          entities" to obtain epinephrine auto-injectors so that any  
          employees, volunteers, or agents of the entity who otherwise  
          meet the existing definition of "lay rescuer" could render  
          emergency care to a person who appears to be suffering from  
          anaphylaxis in accordance with existing law for lay rescuers.  
          This bill would extend the existing qualified immunity for  
          physicians and surgeons to physicians and surgeons who write  
          prescriptions to prehospital medical care persons, laypersons,  
          or for use of qualifying employees, volunteers, or agents of  
          authorized entities, in accordance with specified law.    
                                CHANGES TO EXISTING LAW
           
           1.Existing law  requires school districts, county offices of  
            education, and charter schools to provide emergency  
            epinephrine auto-injectors to school nurses or trained  
            personnel who have volunteered, as specified, and provides  
            that school nurses or trained personnel may use epinephrine  
            auto-injectors to provide emergency medical aid to persons  
            suffering, or reasonably believed to be suffering, from an  
            anaphylactic reaction.  (Ed. Code Sec. 49414(a).)  Existing  
            law provides for the defense and indemnification of any  
            employees who volunteer under this law, from any and all civil  
            liability, in accordance with, but not limited to, the  
            Government Tort Claims Act, as specified.  (Ed. Code Sec.  
            49414(j).)   

             Existing law  provides that an authorizing physician and  
            surgeon shall not be subject to professional review, be liable  







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            in a civil action, or be subject to criminal prosecution for  
            the issuance of a prescription or order, for the above  
            purposes, unless the physician and surgeon's issuance of the  
            prescription or order constitutes gross negligence or willful  
            or malicious conduct.  (Ed. Code Sec. 49414(g)(4).) 
             
            Existing law  provides that any prehospital emergency medical  
            care person or lay rescuer who administers an epinephrine  
            auto-injector, in good faith and not for compensation, to  
            another person who appears to be experiencing anaphylaxis at  
            the scene of an emergency situation is not liable for any  
            civil damages resulting from his or her acts or omissions in  
            administering the epinephrine auto-injector, if that person  
            has complied with the requirements and standards of Section  
            1797.197a of Health and Safety Code, below.  This protection  
            from civil liability does not apply in a case of personal  
            injury or wrongful death that results from the gross  
            negligence or willful or wanton misconduct of the person who  
            renders emergency care treatment by the use of an epinephrine  
            auto-injector.  (Civ. Code Sec. 1714.23(b), (c).)  

             This bill  would add to the Civil Code that an authorized  
            entity shall not be liable for any civil damages resulting  
            from any act or omission other than an act or omission  
            constituting gross negligence or willful or wanton misconduct  
            connected to the administration of an epinephrine  
            auto-injector by any one of its employees, volunteers, or  
            agents, who is a lay rescuer as defined under existing law.   
            This bill would further provide that the failure of an  
            authorized entity to possess or administer an epinephrine  
            auto-injector shall not result in civil liability.
             
            This bill  would provide the proposed qualified immunity for  
            authorized entities, and the existing qualified immunity for  
            prehospital emergency medical care person or lay rescuers,  
            shall not affect any other immunity or defense available under  
            law.

             This bill  would add that an authorizing physician and surgeon  
            is not subject to professional review, liable in a civil  
            action, or subject to criminal prosecution for the issuance of  
            a prescription or order pursuant to this section, unless the  
            issuance of the prescription or order constitutes gross  
            negligence or willful or malicious conduct. 








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           2.Existing law  , Section 1797.197a of the Health and Safety Code,  
            requires the Emergency Medical Services authority (EMSA) to  
            establish and approve the authorized training providers and  
            minimum standards for training and the use and administration  
            of epinephrine auto-injectors, as specified. The minimum  
            training and requirements must include, among other things:
                 techniques for recognizing circumstances, signs, and  
               symptoms of anaphylaxis;
                 standards and procedures for proper storage and  
               emergency use of epinephrine auto-injectors; and 
                 specified emergency follow up procedures (e.g., calling  
               9-1-1).  (Health & Saf. Code Sec. 1797.197a(c).) 

             Existing law   authorizes a prehospital emergency medical care  
            person or lay rescuer to use an epinephrine auto-injector to  
            render emergency care to another person if specified  
            requirements are met.  The requirements include, among other  
            things, that: 
                 the auto-injector is legally obtained by prescription  
               from an authorized health care provider, as specified; 
                 the auto-injector is used on another, with the express  
               or implied consent of that person, for the purpose of  
               treating anaphylaxis; 
                 the person using the auto-injector has successfully  
               completed a training course, as specified and has current  
               certification of training issued by the training provider;  
               and 
                 the auto-injectors obtained by prehospital emergency  
               medical care personnel from a pharmacy, as authorized by  
               law, are used only when functioning outside the course of  
               the person's occupational duties, or as a volunteer.   
               (Health & Saf. Code Sec. 1797.197a(b).) 

             Existing law  permits an authorized health care provider to  
            issue a prescription for an epinephrine auto-injector to a  
            prehospital emergency medical care person or lay rescuer for  
            the purpose of rendering emergency care to another person,  
            upon presentation of current certification demonstrating that  
            person is trained and qualified to administer an epinephrine  
            auto-injector, as specified.  (Health & Saf. Code Sec.  
            1797.197a(b)(1).)

             This bill  would, instead, authorize a prehospital medical care  
            person or lay rescuer to use an epinephrine auto-injector to  
            render emergency care to another person if, among other  







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            things, the epinephrine auto-injector is legally obtained by  
            prescription from an authorized health care provider or from  
            an authorized entity that acquired the epinephrine  
            auto-injector, as specified, below. 

             This bill  would permit an authorized health care provider to  
            issue a prescription for an epinephrine auto-injector to a  
            prehospital emergency medical care person or a lay rescuer for  
            the purpose of rendering emergency care to another person upon  
            presentation of a current epinephrine auto-injector  
            certification card issued by the EMSA demonstrating that the  
            person is trained and qualified to administer an epinephrine  
            auto-injector, as specified.

             This bill  would similarly permit an authorized health care  
            provider to issue a prescription for an epinephrine  
            auto-injector to an authorized entity if the authorized entity  
            submits evidence it employs at least one person, or utilizes  
            at least one volunteer or agent, who is trained and has a  
            current epinephrine auto-injector certification card issued by  
            the EMSA demonstrating that the person is qualified to  
            administer an epinephrine auto-injector, as specified.

             This bill  would require a participating authorized entity to:
                 create and maintain on its premises an operations plan  
               that includes, among other things: 
               o      the names of the designated employees or agents who  
                 have completed the required training program, and who are  
                 authorized to administer the auto-injector; and
               o      how and when the auto-injector will be inspected for  
                 an expiration date; and
                 submit to the EMSA, as specified, a report of each  
               incident that involves the use of an epinephrine  
               auto-injector, not more than 30 days after each use. The  
               EMSA must, in turn, annually publish a report that  
               summarizes all such reports.
             
            This bill  would define "authorized entity" to mean any  
            for-profit, nonprofit, or government entity or organization  
            that employs at least one person or utilizes at least one  
            volunteer or agent that has voluntarily completed a training  
            course, as required. 

           1.Existing law  authorizes a pharmacy, notwithstanding any other  
            provision of law, to furnish epinephrine auto-injectors to a  







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            school district, county office of education, or charter school  
            pursuant to specified law, if:
                 the auto-injectors are furnished exclusively for use at  
               a school district site or county office of education; and
                 a physician and surgeon provides a written order that  
               specifies the quantity of auto-injectors to be furnished.   
               (Bus. & Prof. Code Sec. 4119.2(a).) 
             
            Existing law  requires a school district, county office of  
            education, or charter school to keep certain records of  
            epinephrine auto-injectors furnished pursuant to the law,  
            above, and makes the entities responsible for monitoring the  
            supply of auto-injectors and ensuring the destruction of  
            expired auto-injectors. (Bus. & Prof. Code Sec. 4119.2(b).) 

             Existing law  authorizes a pharmacy, notwithstanding any other  
            law, to dispense epinephrine auto-injectors to a prehospital  
            emergency medical care person or lay rescuer for the purpose  
            of rendering emergency care, in accordance with Section  
            1797.197a, above, if:
                 A physician and surgeon provides a written order that  
               specifies the quantity of auto-injectors to be dispensed by  
               a prehospital emergency medical care person or lay rescuer,  
               as specified. The prescription may be issued only upon  
               presentation of a current certificate demonstrating that  
               the person is trained and qualified, as specified, to  
               administer an auto-injector to another person in an  
               emergency.  The prescription must state certain information  
               and a new prescription is required for any additional  
               auto-injectors. 
                 The pharmacy must label each auto-injector dispensed  
               with certain information, including the designations  
               "Section 1797.197a Responder" and "First Aid Purposes  
               Only."  (Bus. & Prof. Code Sec. 4119.3(a).)  

             Existing law  requires a prehospital emergency medical care  
            person or lay person receiving epinephrine auto-injectors  
            pursuant to the above to make and maintain certain records, as  
            specified, including as to the circumstances and manner of  
            destruction of any auto-injectors.  (Bus. & Prof. Code Sec.  
            4119.3(b).) 

             Existing law  specifies that the epinephrine auto-injectors  
            dispensed to prehospital emergency medical care persons or lay  
            rescuers pursuant to the above, may be used only for the  







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            purpose, and under the circumstances, described in Section  
            1797.197a of the Health and Safety Code. (Bus. & Prof. Code  
            Sec. 4119.3(c).) 

             This bill  would authorize a pharmacy, notwithstanding any  
            other law, to furnish epinephrine auto-injectors to an  
            "authorized entity" if: 
                 the auto-injectors are furnished exclusively for use by,  
               or in connection with, an authorized entity; and 
                 an authorized health care provider provides a  
               prescription that specifies the quantity of auto-injectors  
               to be furnished.  The pharmacy must label each  
               auto-injector dispensed with certain information, such as:  
               the name of the person or entity to whom the prescription  
               was issued, and the designations "Section 1797.197a  
               Responder" and "First Aid Purposes Only." 

             This bill  would require that the authorized entity maintain  
            certain records of epinephrine auto-injectors furnished to  
            them in accordance with the above, and would provide that the  
            authorized entity shall be responsible for monitoring the  
            supply and the destruction of expired epinephrine  
            auto-injectors. 

             This bill  would specify that the epinephrine auto-injector  
            dispensed to authorized entities pursuant to the above, may be  
            used only for the purpose, and under the circumstances,  
            described in Section 1797.197a of the Health and Safety Code.

           1.Existing law  provides that an "epinephrine auto-injector"  
            means a disposable drug delivery system with a  
            spring-activated concealed needle that is designed for  
            emergency administration of epinephrine to provide rapid,  
            convenient first aid for persons suffering from anaphylaxis.   
            (Civ. Code Sec. 1714.23(a)(2); Health & Saf. Code Sec.  
            1797.197a(a)(1)(2), Educ. Code Sec. 49414(b)(3).) 

             This bill  would, instead, define "epinephrine auto-injector"  
            to mean a disposable delivery device designed for the  
            automatic injection of a premeasured dose of epinephrine into  
            the human body to prevent or treat a life-threatening allergic  
            reaction. 

             This bill  would make other technical and non-substantive  
            changes. 







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                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            Allergies to food, insect stings and other substances that can  
            cause anaphylaxis are increasing.  There are approximately  
            90,000 emergency room visits and an estimated 1,500 deaths a  
            year from anaphylaxis in the United States.  This legislation  
            would allow for greater access of epinephrine auto-injectors  
            at locations where individuals could come into contact with  
            allergens known to cause anaphylaxis in those with allergies.   
            While existing law allows individuals who have been trained in  
            recognition of symptoms of allergic reactions and anaphylaxis  
            to administer epinephrine auto-injectors to others in an  
            emergency and provides liability protection for these  
            individuals, current law does not allow the business, group or  
            entity that the individual is employed by or associated with  
            to obtain a prescription for an epinephrine auto-injector or  
            to have liability protection if the epinephrine auto-injector  
            is used on the entities premises.

          2.   Q  ualified immunity for authorized entities  

          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  
          limited immunity from liability (as opposed to blanket  
          immunities) to promote other policy goals that could benefit the  
          public.  Along these lines, this Legislature has on multiple  
          occasions, enacted legislation that encourages the use of life  
          saving medications or medical interventions (such as automatic  
          external defibrillators (AEDs), epinephrine auto-injectors  
          (epi-pens), and opioid antagonists) in order to avoid  
          preventable deaths by limiting the liability of "Good  
          Samaritans," as long as certain minimal requirements are met.   







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          In most of those scenarios, however, 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 by the person who renders the care.  (See Civ. Code  
          Sec. 1714.21.)  

          With respect to epi-pens, specifically, as noted in the  
          Background, California law already encourages the use of this  
          life-saving medication to avoid preventable deaths in both  
          schools and in the general public.  Recognizing that public  
          employees (in particular, school nurses) already enjoy liability  
          protections under the Government Tort Claims Act, existing law  
          requires that schools provide defense and indemnification to  
          employees who volunteer for training to administer epi-pens in  
          emergency situations from any and all civil liability, in  
          accordance with, but not limited to, that Act.  (See Ed. Code  
          Sec 49414.)  Separately, the Civil Code provides certain Good  
          Samaritans-namely, prehospital emergency care persons and lay  
          persons, as defined-acting in good faith and not for  
          compensation, qualified immunity from civil damages for any of  
          their acts or omissions in administering the epi-pen to a person  
          who appears to be suffering from anaphylaxis at the scene of  
          emergency, if the person complies with certain requirements and  
                                                  standards, including training requirements. As mentioned above,  
          this immunity is, however, qualified (i.e., limited), insofar as  
          it does not apply to protect the person from civil damages in  
          any personal injury or wrongful death case involving gross  
          negligence or willful or wanton misconduct in rendering  
          emergency care treatment by use of the auto-injector.  

          This bill would now add similar protection from civil liability  
          for authorized entities that choose to obtain epinephrine for  
          use by their employees, volunteers, or agents, who otherwise  
          meet the existing definition of "lay rescuer" to render  
          emergency care to a person who appears to be suffering from  
          anaphylaxis in accordance with existing law requirements for lay  
          rescuers.  In other words, these individuals would otherwise  
          have to be trained and comply with any other standards of  
          requirements that would apply to other lay rescuers in order to  
          be subject to the existing qualified immunity when administering  
          an epi-pen to render emergency medical care to a person who  
          appears to be suffering from anaphylaxis.  Notably, for these  
          purposes, authorized entities include not only nonprofit or for  
          profit private entities or organizations, but also government  
          entities or organizations.  Presumably, government entities are  







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          already significantly protected from liability under the  
          Government Tort Claims Act.  To the extent that this bill  
          creates any new liability protections, however, for nonprofit  
          and for profit entities that obtain epi-pens for such emergency  
          use, or even for government entities, that immunity is also  
          qualified and would not apply where there has been gross  
          negligence or willful or wanton misconduct in connection with  
          the administration of the epi-pen. 

          In support, sponsor Mylan cites that nearly 6 million or 8  
          percent of children in the U.S. have food  
          allergies-approximately 1 in 13.  Food allergens account for 30  
          percent of fatal cases of anaphylaxis, of which there are  
          approximately 1,500, annually.  Mylan writes that "California  
          has made great strides to address this issue, but more can be  
          done to ensure that the state is better prepared in the event  
          that children or adults experience an anaphylactic reaction for  
          the first time or in a public location.  Schools were a very  
          important first step in addressing anaphylaxis.  This  
          legislation will build upon California's current school access  
          law and expand access to this critical medication.  This  
          legislation would expand access to allow colleges and  
          universities, churches, summer camps, sports arenas,  
          restaurants, recreational parks and other places where children  
          and adults could come into contact with potentially  
          life-threatening allergens to stock epinephrine auto-injectors  
          and allow trained personnel to administer them in emergencies."   
          Staff notes, in the years since passing legislation encouraging  
          the stocking and application of epi-pens for emergency use by  
          both schools and trained individuals, the Committee has not  
          received direct reports or anecdotes of any harm that has  
          resulted from the availability and application of the medication  
          by school volunteers, lay rescuers, or prehospital emergency  
          care persons.   

          3.   Suggested amendments to further clarify and narrow the  
          qualified immunity  

          As discussed above, this bill ensures that an authorized entity  
          is not rendered immune from any acts or omissions of its  
          employees, volunteers, or agents that constitute gross  
          negligence or willful or wanton misconduct connected to the  
          administration of the auto-injector.  Staff notes, however, that  
          the bill's qualified immunity for authorized entities should  
          also be made contingent upon meeting the statutory requirements  







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          imposed on these authorized entities under the Health and Safety  
          Code.  Specifically, this bill would revise Section 1797.197a of  
          the Health and Safety Code to require an authorized entity that  
          possesses and makes available epinephrine auto-injectors to  
          create and maintain, on its premises, a specified operations  
          plan that includes, for example: where and how the auto-injector  
          will be stored; the names of the designated employees or agents  
          who have completed the required training program under existing  
          law, and who are authorized to administer the injector; and how  
          and when the auto-injector will be inspected for an expiration  
          date. Furthermore, under that section, the entity would also  
          have to submit a report of each incident that involves the use  
          of an epinephrine auto-injector to the state Emergency Medical  
          Services authority.  And, notably, this particular statute  
          (again, as to be amended by the bill) recognizes that the entity  
          must submit evidence that it employs at least one person, or  
          utilizes at least one volunteer or agent, who is trained and has  
          a current epinephrine auto-injector certification card issued by  
          the authority demonstrating that the person is qualified to  
          administer an epinephrine auto-injector, as specified, in order  
          to receive a prescription from a physician. 

          Accordingly, the author has agreed to the following amendment to  
          ensure that the entity has complied with its duties under the  
          Health and Safety Code as a threshold matter, in order to enjoy  
          any immunity for any negligent acts or omissions of its  
          qualifying employees, volunteers, or agents in connection to  
          their administration of the auto-injector: 

             Suggested amendment: 
             
            On page 5, line 7, add to the end of the sentence: ", if the  
            entity has complied with all applicable requirements of  
            Section 1797.197a of the Health and Safety Code." 

          Additionally, because the proposed civil immunity for authorized  
          entities would expressly disallow application of that immunity  
          where there has been gross negligence or willful or wanton  
          misconduct on part of the entity's employee, volunteer or agent  
          in the administration of an epinephrine auto-injector, to avoid  
          confusion the author has also agreed to the following technical  
          amendment to limit the application of the current exception for  
          gross negligence or willful or wanton misconduct to the  
          provision providing immunity for prehospital emergency care  
          persons and lay persons.







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             Technical amendment  : 

            On page 5, line 12, amend subdivision (c) of Section 1714.23  
            of the Civil Code to read: "The protection specified in  
             paragraph (1)  of subdivision (b) shall not apply in a case of  
            personal injury or wrongful death that results from the gross  
            negligence or willful or wanton misconduct of the person who  
            renders emergency care treatment by the use of an epinephrine  
            auto-injector." 

          4.    Qualified immunity for physicians
           
          As recently amended by the author, in part due to opposition  
          concerns, this bill seeks to provide immunity for doctors who  
          write a prescription for epinephrine auto-injectors to an  
          authorized entity, or to a lay person or prehospital emergency  
          medical care person, for purposes of rendering emergency care to  
          another person who appears to be suffering from anaphylaxis.   
          With respect to the doctors who are relied upon to write the  
          prescription or orders for the medication or medical device,  
          similar liability protection has been provided in both the AED  
          and opioid antagonist context.  Most recently, it was also  
          applied in the epi-pen context, but only insofar as the  
          prescription was for a school.   As discussed in the Background,  
          just last year, SB 738 (Huff, Ch. 132, Stats. 2015) added a  
          similar provision in law for physicians and surgeons who issue  
          prescriptions or orders for epi-pens to schools, in furtherance  
          of existing California law that requires schools to provide  
          emergency epinephrine auto-injectors to trained personnel who  
          may use the auto-injectors to provide emergency medical aid to  
          persons suffering from anaphylactic reaction.  That provision  
          was based, in part, upon those provisions already in place with  
          respect to AEDs and naloxone.

          For example, existing law provides physicians who are involved  
          with the placement of an AED protection against any civil  
          liability for any civil damages resulting from any acts or  
          omissions of a person who renders emergency care using that AED,  
          if that physician, person, or entity has complied with existing  
          law requirements.  That law also provides that any limited  
          liability protection 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 renders  
          emergency care or treatment by the use of an AED. (See Civ. Code  







          AB 1386 (Low)
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          Sec. 1714.21.)  Separately, in 2013, AB 635 (Ammiano, Ch. 707,  
          Stats. 2013) was enacted to provide that a licensed health care  
          provider who acts with reasonable care shall not be subject to  
          professional review, found liable in a civil action, or be  
          subject to criminal prosecution for issuing a prescription or  
          standing order for an opioid antagonist to a person at risk of  
          an opioid-related overdose or to a family member, friend, or  
          other person in a position to assist a person at risk of an  
          opioid-related overdose, as specified.  (See Civ. Code Sec.  
          1714.22.)  

          This bill, modeled upon last year's SB 738, would expand the  
          existing physicians' immunity in the epi-pen context to ensure  
          that an authorizing physician and surgeon will also not be  
          subject to professional review, liable in a civil action, or  
          subject to criminal prosecution for the issuance of a  
          prescription or order to a prehospital emergency medical care  
          person, lay person, or authorized entity, as specified, unless  
          the issuance constitutes gross negligence or willful or  
          malicious conduct.  In doing so, the bill would not only be  
          consistent with SB 738, but it would arguably further the  
          original intent of SB 669 (Huff, Ch. 725, Stats. 2013) to ensure  
          that trained personnel and Good Samaritans, acting in good faith  
          and not for compensation, have epi-pens available for the  
          emergency treatment of individuals suffering from anaphylactic  
          shock, in order to avoid preventable deaths. 

          Additionally, the author has agreed to the following amendment  
          to further ensure that the physician and surgeon has prescribed  
          the epi-pen in accordance with the Health and Safety Code,  
          which, under this bill, would authorize providers to issue a  
          prescription to a prehospital emergency medical care person, lay  
          rescuer, or authorized entity, upon the presentation of a  
          specified certification card demonstrating that the person or  
          the entity's employee, agent, or volunteer is trained and  
          qualified to administer an epinephrine auto-injector in  
          accordance with specified law.  (Emphasis added.)

              Suggested amendment 

             On page 5, line 23, strike "pursuant to this section" and  
            insert "and in accordance with Section 1797.197a of the Health  
            and Safety Code"  

          5.   Other clarifying amendments  







          AB 1386 (Low)
          Page 15 of ? 


          This bill permits pharmacies to furnish epinephrine  
          auto-injectors to authorized entities for the purpose of  
          rendering emergency care in accordance with specified Health and  
          Safety Code standards, as long as: (1) a physician and surgeon  
          provides a prescription that specifies the quantity of  
          epinephrine auto-injectors to be furnished; and (2) the  
          epinephrine auto-injectors are furnished exclusively for use by,  
          or in connection with, an authorized entity.  Staff notes,  
          however, that in a parallel statute authorizing a pharmacy to  
          dispense an epinephrine auto-injector to lay rescuers and  
          prehospital emergency medical persons, existing law additionally  
          specifies that the physician and surgeon may issue the  
          underlying prescription only upon presentation of a current  
          certificate demonstrating that the person is trained and  
          qualified under Section 1797.197a of the Health and Safety Code  
          to administer an epinephrine auto-injector to another person in  
          an emergency situation.  (See Bus. & Prof. Code Sec. 4119.3.) By  
          way of another example, under existing law, the epi-pen must not  
          only specify that the dispensed epinephrine auto-injector is for  
          "First Aid Purposes Only" and that the named recipient is a  
          "Section 1797.197a Responder"(which this bill would similarly  
          require), but also, a new prescription must be written for any  
          additional epinephrine auto-injectors required (which this bill  
          does not expressly require).  The following amendments will add  
          further consistency between the existing provisions governing  
          pharmacies that dispense epi-pens to a prehospital medical care  
          person or lay person and the bill's correlating provision for  
          authorized entities.

             Suggested amendments: 
             
            On page 3, lines 10-11, after "the quantity of epinephrine  
            auto-injectors to be furnished" insert "to an authorized  
            entity described in subdivision (a) of Section 1797.197a of  
            the Health and Safety Code.  A new prescription shall be  
            written for any additional epinephrine auto-injectors  
            required."

            On page 3, lines 3-6, amend proposed Section 4119.4 of the  
            Business and Professions Code to read:  "Notwithstanding any  
            other law, a pharmacy may furnish epinephrine auto-injectors  
            to an authorized entity  , as defined by Section 1979.197a of  
            the Health and Safety Code,   for the purpose of rendering  
            emergency care in accordance with Section 1797.197a of the  







          AB 1386 (Low)
          Page 16 of ? 

            Health and Safety Code  , if both of the following are met:"

          6.   Removal of opposition  

          Staff notes that the organizations previously registered in  
          opposition to this bill have since removed their opposition  
          based on the June 13, 2016, version of the bill, which added a  
          qualified immunity for physicians.  Those groups, the Allergy &  
          Asthma Network, California Society of Allergy, Asthma and  
          Immunology, and Food Allergy Research & Education, are now in  
          support of the bill.   


           Support  :  Allergy & Asthma Network; Allergy Station @ SacENT;  
          American Latex Allergy Association; American Red Cross;  
          California Society of Allergy, Asthma and Immunology; California  
          Chapter of the American College of Emergency Physicians;  
          California Retailers Association; Food Allergy Research &  
          Education; SF Bay Area Food Allergy Network; two individuals

           Opposition  :  None Known 
                                        HISTORY
           
           Source  :  Mylan

           Related Pending Legislation  :

          AB 1748 (Mayes, 2016) would, among other things, authorize  
          school nurses or, if the school does not have a school nurse, a  
          person who has received training regarding opioid antagonists,  
          as specified, to immediately administer the medication under  
          certain circumstances.  The bill would provide for various  
          immunities, as specified.   

          AB 1719 (Rodriguez, 2016) would provide for various immunities  
          relating to the instruction of students in compression-only CPR  
          or use of an AED.   

           Prior Legislation  :

          SB 738 (Huff, Ch. 132, Stats. 2015) See Background. 

          SB 1266 (Huff, Ch. 321, Stats. 2014) See Background. 

          SB 669 (Huff, Ch. 725, Stats. 2013) See Background.







          AB 1386 (Low)
          Page 17 of ? 


          SB 635 (Ammiano, Ch. 707, Stats. 2013) See Comment 2. 

          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 an onsite credentialed school nurse or other licensed  
          nurse, emergency medical assistance to pupils with epilepsy  
          suffering from seizures, in accordance with specified  
          guidelines.  SB 161 provided volunteers 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.

           Prior Vote  :

          Senate Health Committee (Ayes 7, Noes 0)
          Assembly Floor (Ayes 78, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 9, Noes 0)
          Assembly Business and Professions Committee (Ayes 14, Noes 0)
          Assembly Rules Committee (Ayes 10, Noes 0)

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