BILL ANALYSIS Ó
AB 1639
Page 1
Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1639
(Maienschein) - As Amended March 29, 2016
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: PUPIL HEALTH: SUDDEN CARDIAC ARREST PREVENTION ACT
KEY ISSUE: SHOULD ATHLETIC DIRECTORS, COACHES, AND ATHLETIC
TRAINERS BE REQUIRED TO IMMEDIATELY REMOVE A PUPIL WHO PASSES
OUT OR FAINTS WHILE PARTICIPATING IN A SCHOOL-SPONSORED ATHLETIC
ACTIVITY FROM THE ACTIVITY, AND PROHIBIT THE PUPIL FROM
RETURNING TO THE ACTIVITY, UNTIL CLEARED BY A MEDICAL
PROFESSIONAL?
SYNOPSIS
According to the author, "Sudden Cardiac Arrest (SCA) has
emerged as a leading cause of death among people under age 25.
According to the American Heart Association, SCA affects nearly
10,000 youth per year." The author's office also states that 72
percent of those who have suffered SCA experienced prior
symptoms but did not recognize them as warning signs. The
sponsor of this bill, the Eric Paredes Save a Life Foundation,
seeks to make more people aware of these warning signs, in the
hopes that it will provide the opportunity to prevent fatal
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cardiac events. California has existing laws that regulate
athletic activities and requirements for coaches, including
limits on the number of football full-contact practices and
requirements for coaches to attend a coaching education program.
The safety protocols established by this bill are similar to
safety protocols for concussions in interscholastic sports,
which were established following increasing awareness of the
dangers of head injuries. For the reasons discussed in the
analysis, the author has reasonably agreed to remove the
immunity provision from the bill. The author also proposes a
clarifying amendment to specify which medical providers are able
to provide clearance to a student's return to play. This
non-controversial bill is supported by numerous heart health
advocacy organizations, as well as diverse groups such as the
Association of California School Administrators; California
School Nurses Organization; California State PTA; and the
Consumer Attorneys of California. It has no known opposition.
SUMMARY: Seeks to provide additional information, training, and
emergency intervention protocols at schools in order to reduce
the risk of sudden cardiac arrest (SCA) among students.
Specifically, this bill, in its provisions most relevant to this
Committee:
1)Requires the California Department of Education (Department)
to post on its Internet Web site guidelines, videos, and an
information sheet on SCA symptoms and warning signs, and other
relevant materials to inform and educate pupils and parents,
and to train coaches about the nature and warning signs of
sudden cardiac arrest, including the risks associated with
continuing to play or practice after experiencing fainting or
seizures during exercise, unexplained shortness of breath,
chest pains, dizziness, racing heart rate, or extreme fatigue.
2)Requires that a pupil who passes out or faints while
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participating in or immediately following an athletic
activity, or who is known to have passed out or fainted while
participating in or immediately following an athletic
activity, shall be removed from participation at that time by
the athletic director, coach, or athletic trainer.
3)Provides that a pupil who exhibits any of the other symptoms
of sudden cardiac arrest, described in 1), above, during an
athletic activity, may be removed from participation by an
athletic trainer, if the athletic trainer reasonably believes
that the symptoms are cardiac related.
4)Requires, in the absence of an athletic trainer, any coach who
observes any of the symptoms of sudden cardiac arrest to
notify the parent or guardian of the pupil so that the parent
or guardian can determine what treatment, if any, the pupil
should seek.
5)Prohibits a pupil who is removed from play pursuant to 2) or
3), above, from participating in an athletic activity until
the pupil is evaluated and cleared to return to participate in
writing by a licensed health care provider.
6)Requires a coach of an athletic activity to complete the
sudden cardiac arrest training course and to retake the
training course every two years thereafter.
7)Provides that a coach of an athletic activity shall not be
eligible to coach an athletic activity until the coach
completes the training course required in 6), above.
8)Provides that, on and after July 1, 2019, a coach who violates
the training requirements in 6), above is subject to
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suspension from coaching any athletic activity until
completion of the required training.
9)Defines two relevant terms:
a) "Athletic activity" (defined to include interscholastic
athletics; an athletic contest or competition, other than
interscholastic athletics, that is sponsored by a school,
including cheerleading and club-sponsored sports
activities; noncompetitive cheerleading that is sponsored
by a school; practices, interscholastic practices, and
scrimmages for all of the activities listed above).
b) "School" (a public school, including a charter school,
or private school that elects to conduct athletic
activities).
1)Makes this article operative on July 1, 2017.
EXISTING LAW:
1)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. (Civil Code Section 1714
(a).)
2)Requires a school district, charter school, or private school
that elects to offer an athletic program, to comply with both
of the following:
a) Immediately remove an athlete who is suspected of
sustaining a concussion or head injury in an athletic
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activity from the athletic activity for the remainder of
the day and do the following:
i) Not allow the athlete to return to the athletic
activity until he or she is evaluated by a "licensed
health care provider" (defined as a "licensed health care
provider who is trained in the management of concussions
and is acting within the scope of his or her practice").
ii) Not allow the athlete to return to the athletic
activity until he or she receives written clearance to
return to the athletic activity from a licensed health
care provider.
iii) Ensure that any athlete who sustained a concussion
or a head injury also complete a graduated return-to-play
protocol of no less than seven days in duration under the
supervision of a licensed health care provider.
b) On a yearly basis, require a concussion and head injury
information sheet to be signed and returned by the athlete
and the athlete's parent or guardian before the athlete
initiates practice or competition. (Education Code Section
49475. All further statutory references are to this code,
unless otherwise indicated.)
3)Requires a school district, county office of education, or
charter school to ensure that each employee who volunteers to
be trained and to provide emergency medical assistance with an
epinephrine auto-injector (epi-pen) and to provide the
volunteer with legal defense and indemnification for any and
all civil liability associated with use of the device.
(Section 49414 (j).)
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4)Requires that a school district, county office of education,
or charter school which elects to allow employees who
volunteer to be trained and provide emergency medical
assistance with epilepsy anti-seizure medication, to provide
the volunteer with legal defense and indemnification for any
and all civil liability associated with use of the medication.
(Section 49414.7 (i).)
5)Provides that an employee of a school district who volunteers
to be trained and renders emergency care or treatment through
the use, attempted use, or nonuse of an automated external
defibrillator (AED) at the scene of an emergency is not liable
for any civil damages resulting from any act or omission in
the rendering of the emergency care or treatment. (Section
49417 (b).)
6)Provides that if a public school or school district complies
with the requirements for training and installation of an AED
on its premises, the public school or school district shall
not be liable for any civil damages resulting from any act or
omission in the rendering of the emergency care or treatment
with the AED. (Section 49417 (c).)
7)Exempts from the provisions of 5), and 6), above, any case in
which personal injury or wrongful death 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. (Section 49417
(d).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author, "Sudden Cardiac Arrest (SCA)
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has emerged as a leading cause of death among people under age
25. According to the American Heart Association, SCA affects
nearly 10,000 youth per year." The author's office also states
that 72 percent of those who have suffered SCA experienced prior
symptoms but did not recognize them as warning signs. The
sponsor of this bill, the Eric Paredes Save a Life Foundation,
seeks to make more people aware of these warning signs, in the
hopes that it will provide the opportunity to prevent fatal
cardiac events.
Eric Paredes, for whom the sponsor organization was named, was a
young athlete who died from a sudden cardiac arrest while at
home. Eric's parents hope to use the story of their son's death,
and those of other young athletes, to bring attention to heart
screening and possible warning signs they say could save the
lives of other children. The Foundation has worked extensively
to produce and distribute information on SCA, and to promote
training videos for coaches.
Existing Safety Standards for Risky Athletic Activities and
Penalties for Noncompliance. California has existing laws that
regulate athletic activities and requirements for coaches,
including limits on the number of football full-contact
practices and requirements for coaches to attend a coaching
education program. The safety protocols established by this
bill are similar to safety protocols for concussions in
interscholastic sports, which were established following
increasing awareness of the dangers of head injuries. Current
law requires the removal of "an athlete who is suspected of
sustaining a concussion or head injury in an athletic activity
from the athletic activity for the remainder of the day."
(Section 49475.) It also requires the school district, charter
school, or private school to do the following: not allow the
athlete to return to the athletic activity until he or she is
evaluated by a "licensed health care provider" (defined as a
"licensed health care provider who is trained in the management
of concussions and is acting within the scope of his or her
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practice"); not allow the athlete to return to the athletic
activity until he or she receives written clearance to return to
the athletic activity from a licensed health care provider;
ensure that any athlete who sustained a concussion or a head
injury also complete a graduated return-to-play protocol of no
less than seven days in duration under the supervision of a
licensed health care provider. (Ibid.) There is no penalty on
coaches (or other school personnel) for non-compliance and no
immunity for school personnel who act (or do not act) pursuant
to the law.
The CIF, working with a panel of medical professionals,
established policies related to SCA which went into effect in
2015. These policies cover most students playing
interscholastic sports, including 1,600 schools with 1.8 million
students. CIF added SCA information to their existing training
requirements for coaches. The CIF also added protocols similar
to those in this bill. They include removal from athletic
activity after a pupil passes out or faints during or right
after activity, with a medical clearance required to return to
activity. Similarly, pupils must be cleared if they are held
out for exhibiting signs or symptoms associated with SCA. The
policy requires a pupil and his or her parent or guardian to
receive and sign a Sudden Cardiac Information sheet each year.
Given that the CIF implemented coaching training rules and a
protocol for SCA in 2015, many of the informational and care
guidelines in this bill already apply to the great majority of
student athletes. However, the CIF rules do not apply to the
other (non-CIF) activities covered by this bill: athletic
contests or competitions, other than interscholastic athletics,
that is sponsored by a school, including cheerleading and
club-sponsored sports activities; noncompetitive cheerleading
that is sponsored by a school.
As originally in print, this bill contained sanctions for
coaches who did not follow the guidelines for removal of a
student and allowing such a student to return to play. As
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recently amended (in the Assembly Education Committee), those
penalties were removed from the bill. According to that
Committee's analysis:
The CIF protocol on SCA does not contain sanctions.
According to the CIF, coaches are employees of the school
district, not the CIF. Existing law for concussions also
do not contain sanctions. While current law on coaches
speaks of the need for coaches to be trained in safety,
including cardiopulmonary resuscitation requirements, it is
silent on punishments for noncompliance in any area.
Immunity Provisions for Volunteers who Provide Emergency Medical
Care in Schools. Existing state law provides qualified immunity
to school personnel who volunteer to be trained to administer
emergency medical assistance in some circumstances. It also
requires the employers of these volunteers - a school district,
county office of education, or charter school -to provide them
with legal defense and indemnification for any and all civil
liability associated with providing emergency medical care. For
example, school personnel who agree to be trained to use an
epinephrine auto-injector (Section 49414 (j)); epilepsy
anti-seizure medication (Section 49414.7 (i)); or an automated
external defibrillator (AED) (Section 49417 (b)) have immunity
from civil liability for the administration of emergency medical
assistance, as well as the right to defense by the employer; and
the right to indemnification. The only exceptions (which makes
the immunity "qualified") are cases in which personal injury or
wrongful death results from gross negligence or willful or
wanton misconduct on the part of the person who uses, attempts
to use, or maliciously fails to render emergency care or
treatment.
The rationale for these provisions in the Education Code is
presumably to encourage volunteers, who otherwise would have no
duty to be trained or to provide emergency medical care, to do
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so. This is similar to the rationale in the Civil Code for
providing immunity to persons who are trained to administer CPR.
Such immunity is intended to "encourage citizens to participate
in emergency medical services training programs and to render
emergency medical services to fellow citizens" (Civil Code
Section 1714.2 (a).)
The same rationale does not apply to the provisions of this
bill, which require coaches (as well as athletic directors and
athletic trainers) to intervene when a student-athlete shows
symptoms of SCA. However, as explained below, such provisions
are unnecessary and superfluous, at least for coaches, athletic
directors, and athletic trainers who are public employees,
because those employees are already immune for discretionary
decisions (such as whether or not to remove an athlete from
competition). Therefore, it does not seem reasonable or
necessary to provide them with additional express immunity for
doing (or not doing) so.
General Governmental Immunity for Coaches (and Other Public
Employees). In general, a civil action against a public
employee is not possible when the damages are caused by an act
or omission of the employee while exercising the discretion
vested in the employee. (Government Code Section 820.2.) In
fact, "public employees are immune for their discretionary acts,
even those which constitute breaches of actionable duty, unless
a statute otherwise provides. ? This ? can only be achieved by a
clear indication of legislative intent that statutory immunity
is withheld or withdrawn in the particular case" [Citation
deleted]. (Conn v. Western Placer Unified School Dist. (2010)
186 Cal.App.4th 1163, 1179.) An employee is required to
"indemnify the public entity" only in instances where the
employee acted outside the scope of his employment or "acted
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with actual fraud, corruption, or malice." (Connelly v. State
(1970) 3 Cal.App.3d 744, 750 [84 Cal.Rptr. 257].) A
discretionary act is one that calls for the exercise of judgment
(i.e., discretion), weighing of evidence and consideration of
advantages and disadvantages of making a decision or taking
action, such as a board's decision whether or not a worker is
permanently disabled and therefore unable to return to work
(Masters v. San Bernardino County Employees Retirement Assn.
(1995) 32 Cal.App.4th 30, 46-47); or a social service worker's
investigation regarding the suitability of prospective adoptive
parents (Ronald S. v. County of San Diego (1993) 16 Cal. App.
4th 887, 897).
The type of decisions that would have to be made under the
provisions of this bill - whether the pupil passed out or
fainted during or immediately after an athletic activity;
whether the pupil exhibits any symptoms of SCA during an
athletic activity; whether the symptoms are cardiac related;
whether to notify the parent or guardian - involve judgment
calls that are typical of those made by school personnel,
especially coaches. They are also very similar to the
discretionary decisions that are made regarding student athletes
who obtain concussions. A court would almost certainly consider
them to be "discretionary act" for purposes of the immunity
provisions in Government Code Section 820.2. Therefore,
additional express immunity is not necessary for athletic
directors, coaches, or athletic trainers.
Duty of Care - Coaches Engaged in Coaching. While a school
athletic coach has a duty of care to a student-athlete, "because
a significant part of an instructor's or coach's role is to
challenge or 'push' a student or athlete to advance his or her
skill level and to undertake more difficult tasks, and because
the fulfillment of such a role could be improperly chilled by
too stringent a standard of potential legal liability," coaches
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can engage in somewhat more risky behavior without breaching
that duty. (Kahn v. East Side Union High School Dist. (2003) 31
Cal. 4th 990, 996.) "A sports instructor may be found to have
breached a duty of care to a student or athlete only if the
instructor intentionally injures the student or engages in
conduct that is reckless in the sense that it is "totally
outside the range of the ordinary activity" [citation omitted]
involved in teaching or coaching the sport." (Ibid.)
But naturally, this special permissive standard for athletic
coaches, allowing them to push students to engage in what would
otherwise be dangerous activities only applies when they are -
as the Kahn court observed - "involved in teaching or coaching
the sport." If a coach were also an English teacher, he or she
is held to the same standard of care as other teachers when
teaching. The status of a coach would not allow the teacher to
encourage students to engage in inherently risky behavior in the
classroom under the guise of "pushing" students to undertake
more difficult tasks by advancing their skill level. The same
is also true of a coach acting as a coach, but engaging in
activities other than encouraging students to advance their
skills, such as observing whether or not a student athlete
exhibits the signs and symptoms of SCA, or whether or not the
student fainted during or immediately after an athletic
activity. In those cases, the coach would have a regular duty
of care, rather than the relaxed version of that duty.
This bill does not seek to address the role of the coach while
pushing a student-athlete to take chances and try new activities
or risky maneuvers to develop the athlete's skills. Rather,
this bill requires coaches to get training and to pull an
athlete out of the game or practice if he or she passes out,
faints, or shows signs of cardiac arrest. Therefore, the coach
would have a regular duty of care towards the student. Any
coach who did not remove a pupil from competition after the
pupil passed out or showed signs of cardiac arrest would likely
be deemed reckless or grossly negligent by a judge or jury,
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regardless of the provisions of this bill.
Author's Amendments to Address Committee's Concerns Regarding
Immunity Provision. Unlike state law regarding school
responsibilities to comply with the concussion protocol, this
bill, as currently in print, includes an immunity provision
providing that a "coach shall not be exposed to civil liability
for his or her action or inaction" in compliance with the bill,
"unless the coach is found to have acted in a grossly negligent
manner." For a number of reasons, this immunity provision is
unnecessary and unreasonable. First, it is inconsistent with
other state laws that provide immunity to school personnel whose
job descriptions do not require them to engage in emergency
medical assistance, but who volunteer to be trained to
administer such assistance in some circumstances. The same
rationale does not apply to the provisions of this bill, which
require coaches (as well as athletic directors and athletic
trainers) to intervene when a student-athlete shows symptoms of
SCA. Second, such immunity is unnecessary and superfluous, at
least for coaches, athletic directors, and athletic trainers who
are public employees, because those employees are already immune
for discretionary decisions (such as whether or not to remove an
athlete from competition). Third, schools and school personnel
have complete immunity for activities held off campus. For all
of the above reasons, the author has reasonably agreed to remove
the immunity provision in 33487 (b) from the bill.
Medical Professionals Authorized to Clear Athlete for Return to
Play. Like Section 49475 (regarding athletes who are suspected
of sustaining a concussion or head injury in an athletic
activity) on which this bill appears to be modeled, this bill
uses the term "licensed health care provider" in describing the
medical professional who is required to examine the pupil before
he or she can be allowed to return to the athletic activity.
However, unlike Section 49475, this bill does not define that
term. In order to clarify who is required to perform the
medical evaluation, the author proposes the following amendment:
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On Page 4, at line 9: delete "appropriate medical professional"
and insert the following:
a physician and surgeon, or a nurse practitioner or
physician assistant practicing in accordance with
standardized procedures or protocols developed and approved
by the supervising physician and surgeon and the nurse
practitioner or physician assistant.
ARGUMENTS IN SUPPORT: Supporters consider this bill a first
effort in preventing future deaths through information and risk
assessment. One supporter, Heartfelt Cardiac Projects, states:
This bill is an inaugural step in educating youth, parents
and coaches about the potential warning signs and risk
factors of sudden cardiac arrest and about the cardiac
chain of survival that could save a life.
REGISTERED SUPPORT / OPPOSITION:
Support
Eric Paredes Save a Life Foundation (sponsor)
American Academy of Pediatrics, California
American Heart Association/American Stroke Association
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Association of California School Administrators
California School Nurses Organization
California State PTA
Children's Cardiology of the Bay Area, inc.
Children's Cardiomyopathy Foundation
Consumer Attorneys of California
Heartfelt Cardiac Projects
Los Angeles Unified School District
Mike Whitmarsh Memorial Foundation
No More Broken Hearts
Olivia's Heart Project
San Diego City Councilmember Chris Cate
San Diego City Councilmember Mark Kersey
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San Diego County Supervisor Ron Roberts
Saving Hearts Foundation
SDSU Circle K
Sequoia Union High School District
Sudden Cardiac Arrest Association
Travis R. Roy Sudden Cardiac Arrest Fund
VIA Heart Project
Numerous individuals
Opposition
None on file
Concerns - request for amendment
California Academy of Physician Assistants
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Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334