BILL ANALYSIS Ó AB 1748 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1748 (Mayes) - As Amended April 14, 2016 As Proposed to be Amended SUBJECT: PUPIL HEALTH: OPIOID ANTAGONIST: LIABILITY KEY ISSUES: 1)SHOULD A PHYSICIAN WHO ISSUES A PRESCRIPTION FOR AN OPIOID ANTAGONIST TO A SCHOOL DISTRICT, COUNTY OFFICE OF EDUCATION, OR CHARTER SCHOOL IN ACCORDANCE WITH THE PROVISIONS OF EXISTING LAW BE GIVEN QUALIFIED IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY FOR NEGLIGENCE, BUT NOT GROSS NEGLIGENCE OR WILLFUL OR MALICIOUS MISCONDUCT, IN CONNECTION WITH THE ISSUANCE OF THE PRESCRIPTION? 2)SHOULD A VOLUNTEER TRAINED BY THE SCHOOL WHO ACTS WITH REASONABLE CARE IN ADMINISTERING AN OPIOID ANTAGONIST IN AN EMERGENCY TO PREVENT THE POSSIBLE DRUG OVERDOSE OF ANOTHER PERSON BE GIVEN QUALIFIED IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY? SYNOPSIS AB 1748 Page 2 In response to a growing epidemic of opioid-related overdoses, this bill seeks to authorize schools to obtain and stock a supply of the prescription-only drug naloxone (or other so-called opioid antagonists) which can reverse the effects of an overdose and save the life of the person experiencing an overdose. This bill would require public schools to provide naloxone or another opioid antagonist to trained personnel who have volunteered to provide emergency medical aid to persons suffering, or reasonably believed to be suffering, from an opioid overdose. As proposed to be amended, the bill also would authorize school nurses and other trained volunteers to administer naloxone or another opioid antagonist in emergency overdose situations, and would provide qualified immunity for prescribing and administering an opioid antagonist, as specified. The bill also sets forth various procedures for tracking the use of such auto-injectors in such school emergencies, and it requires public schools to ensure 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. Finally, the bill would also authorize a public school to accept gifts, grants, and donations from any source for the support of the public school carrying out these provisions. The author has proposed a number of amendments to the bill to address the concerns of the California School Employees Association (CSEA) regarding workability and liability issues for their members, many of whom serve as trained volunteers to provide emergency care in other situations. At the time of this analysis, it is believed that CSEA has removed its opposition with the author's commitment to take the proposed amendments discussed in this analysis. Keen observers of the Legislature will recognized that lawmakers have enacted a number of bills in recent years authorizing lay people and trained volunteers in schools to voluntarily render medical aid in specific emergency situations, such as AB 1748 Page 3 administering cardiopulmonary resuscitation (CPR), an automated external defibrillator (AED), an epinephrine auto-injector (epi-pen), naloxone hydrocholoride (or other opioid antagonist), and emergency antiseizure medication to students with epilepsy (Diastat), among other things. The California Teachers Association opposes this bill because it is apparently concerned about a growing trend towards enacting new laws that make teachers and other school employees increasingly responsible for administering emergency medical care to students, even if nominally done on a "volunteer" basis after receiving basic training. They contend that the health and safety of children are best met through the services of credentialed school nurses, and that "there is absolutely no reason for education employees, other than trained school nurses, to be recruited to administer medications." This bill previously passed the Assembly Education by a 7-0 vote. SUMMARY: Provides qualified immunity to a physician who issues a prescription for an opioid antagonist to a school district, county office of education, or charter school, and to a trained volunteer at the school who administers it to a person experiencing an overdose. Specifically, this bill, among other things: 1)Authorizes a pharmacy to furnish naloxone or another opioid antagonist to a school district, county office of education (COE), or charter school if both of the following are true: (a) the naloxone or another opioid antagonist is furnished exclusively for use at a school district schoolsite, COE schoolsite, or charter school; and (b) a physician and surgeon provides a written order that specifies the quantity of naloxone or other opioid antagonist to be furnished. 2)Authorizes school districts, COEs and charter schools to provide emergency naloxone or another opioid antagonist to school nurses or trained personnel for the purpose of AB 1748 Page 4 providing emergency medical aid to persons suffering, or reasonably believed to be suffering, from an opioid overdose. Requires the school district, COE, or charter school to provide the required training at no cost to the volunteer and during the volunteer's regular working hours if it chooses to exercise this authority. 3)Defines the following terms: a) "Authorizing physician and surgeon" may include, but is not limited to, a physician and surgeon employed by, or contracting with, a local educational agency, a medical director of the local health department, or a local emergency medical services director. b) "Volunteer" or "trained personnel" means an employee who has volunteered to administer naloxone or another opioid antagonist to a person if the person is suffering, or reasonably believed to be suffering, from an opioid overdose, has been designated by a school, and has received specified training. 4)Authorizes each public and private elementary and secondary school to designate one or more volunteers to receive initial and annual refresher training regarding the storage and emergency use of naloxone from the school nurse or other qualified person designated by an authorizing physician and surgeon. Requires the school district, COE, or charter school to provide the required training at no cost to the volunteer and during the volunteer's regular working hours if it chooses to exercise this authority. 5)Clarifies that no benefit shall be granted to or withheld from any individual based on his or her offer to volunteer and there shall be no retaliation against any individual for rescinding his or her offer to volunteer, including after AB 1748 Page 5 receiving training. 6)Requires the Superintendent of Public Instruction (SPI) to establish minimum standards of training for the administration of naloxone or another opioid antagonist and to review the minimum standards of training every five years, or sooner as deemed necessary by the SPI. Requires the SPI to consult with organizations and providers with expertise in administering naloxone and administering medication in a school environment. 7)Requires the training to include, among other things: (a) techniques for recognizing symptoms of an opioid overdose; (b) standards and procedures for the storage, restocking, and emergency use of naloxone; and (c) written materials covering the information required in the training. 8)Requires the Department of Education to include, on its Internet Web site, a clearinghouse for best practices in training nonmedical personnel to administer an emergency opioid antagonist medication to pupils. Further requires the training to specify basic emergency follow-up procedures, including, but not limited to, a requirement for the school or charter school administrator or, if the administrator is not available, another school staff member to call the emergency 911 telephone number and to contact the pupil's parent or guardian. Clarifies that the requirement for the school or charter school administrator or other school staff member to call the emergency 911 telephone number shall not require a pupil to be transported to an emergency room. 9)Requires any school district, COE, or charter school electing to utilize naloxone for emergency aid to distribute a notice at least once per school year to all staff containing the following information: AB 1748 Page 6 a) A description of the volunteer request stating that the request is for volunteers to be trained to administer naloxone or another opioid antagonist to a person if the person is suffering, or reasonably believed to be suffering, from an opioid overdose; and, b) A description of the training that the volunteer will receive. c) The right of an employee to rescind his or her offer to volunteer. d) A statement that no benefit will be granted to or withheld from any individual based on his or her offer to volunteer and there will be no retaliation against any individual for rescinding his or her offer to volunteer, including after receiving the training. 10)Requires a qualified supervisor of health at a school district, COE, or charter school electing to utilize naloxone or another opioid antagonist for emergency aid to do the following: a) Obtain from an authorizing physician and surgeon a prescription for each school for naloxone or another opioid antagonist. b) Be responsible for stocking the naloxone or another opioid antagonist and restocking it if it is used. 11)Provides that a school nurse or, if the school does not have a school nurse or the school nurse is not onsite or available, a volunteer may administer naloxone or another opioid antagonist to a person exhibiting potentially life-threatening symptoms of an opioid overdose at school or a school activity when a physician is not immediately available. Clarifies that a volunteer may only administer naloxone or another opioid AB 1748 Page 7 antagonist by nasal spray. 12)Provides that an authorizing physician and surgeon shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for the issuance of a prescription or order pursuant to this bill, unless the physician and surgeon's issuance of the prescription or order constitutes gross negligence or willful or malicious conduct. 13)Requires a school district, COE, or charter school electing to utilize naloxone or another opioid antagonist for emergency aid to ensure that each employee who volunteers under this section will be provided defense and indemnification by the school district, COE, or charter school for any and all civil liability, in accordance with, but not limited to, that provided in Division 3.6 (commencing with Section 810) of Title 1 of the Government Code. Further requires this information to be reduced to writing, provided to the volunteer, and retained in the volunteer's personnel file. 14)Provides, notwithstanding any other law, that a person trained as required under this act, who administers naloxone hydrochloride or another opioid antagonist, in good faith and not for compensation, to a person who appears to be experiencing an opioid overdose shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for his or her acts or omissions in administering the naloxone hydrochloride or another opioid antagonist. Provides, however, that this protection shall not apply in a case of gross negligence or willful or wanton misconduct of the person who renders emergency care treatment by the use of naloxone hydrochloride or another opioid antagonist. AB 1748 Page 8 15)Clarifies that any public employee who volunteers to administer naloxone or another opioid antagonist under this act is not providing emergency medical care "for compensation," notwithstanding the fact that he or she is a paid public employee. 16)Authorizes a state agency, the department, or a public school to accept gifts, grants, and donations from any source for the support of the public school carrying out this act, including, but not limited to, the acceptance of naloxone hydrochloride or another opioid antagonist from a manufacturer or wholesaler. EXISTING LAW: 1)Under the Government Tort Claims Act, establishes that except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. (Government Code Section 820.2.) 2)Provides that no person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall 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. (Health and Safety Code Section 1799.102.) 3)Provides that a licensed health care provider who is authorized by law to prescribe an opioid antagonist may, if acting with reasonable care, prescribe and subsequently dispense or distribute an opioid antagonist to a person at risk of an opioid-related overdose or to a family member, AB 1748 Page 9 friend, or other person in a position to assist a person at risk of an opioid-related overdose. (Civil Code Section 1714.22 (b).) 4)Provides that a licensed health care provider who is authorized by law to prescribe an opioid antagonist may issue standing orders for the distribution or the administration of 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. (Civil Code Section 1714.22 (c).) 5)Provides that a licensed health care provider who acts with reasonable care shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for issuing a prescription or order pursuant to these provisions. (Civil Code Section 1714.22 (e).) 6)Provides that notwithstanding any other law, a person who possesses or distributes an opioid antagonist pursuant to a prescription or standing order shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for this possession or distribution. Further provides that a person not otherwise licensed to administer an opioid antagonist, but trained as required and who acts with reasonable care in administering an opioid antagonist, in good faith and not for compensation, to a person who is experiencing or is suspected of experiencing an overdose shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for this administration. (Civil Code Section 1714.22 (f).) 7)Establishes a similar program to have public schools provide emergency epinephrine auto-injectors to trained personnel who AB 1748 Page 10 have volunteered to provide emergency medical aid to persons suffering, or reasonably believed to be suffering, from an anaphylactic reaction. (Education Code Section 49414, Business & Professions Code Section 4119.2.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: In response to a growing epidemic of opioid-related overdoses, this bill seeks to authorize schools to obtain and stock a supply of the prescription-only drug naloxone (or other so-called opioid antagonists) which can reverse the effects of an overdose and save the life of the person experiencing an overdose. The bill also would authorize school nurses and other trained volunteers to administer naloxone or another opioid antagonist in emergency overdose situations, and would provide qualified immunity for prescribing and administering an opioid antagonist, as specified. Among other things, the bill would also require the Superintendent of Public Instruction (SPI) to establish minimum standards for training, in consultation with appropriate organizations having expertise in administering naloxone. According to the author: Naloxone (sold under the brand name Narcan) is a medication that can block the effects of opioid overdoses. In November 2015, the FDA approved an easy-to-use variant, administered by nasal spray, and in January 2016 at the Clinton Health Matters Summit, the manufacturer offered two free doses of Narcan nasal spray to every high school in the United States. Unfortunately, current California law does not provide the authority for schools to accept, stock, or administer opioid overdose antidotes. Recognizing the life-saving promise of the medication, other states have already passed legislation providing AB 1748 Page 11 this authority, including Illinois, New York, Oklahoma, and Rhode Island. Closely paralleling existing statutes, AB 1748 provides schools with the authority to stock opioid antagonists like naloxone, and grants school nurses and other trained, volunteer employees the authority to administer it. It also provides certain exemptions from liability for individuals acting in good faith. AB 1748 will directly address the growing epidemic of opioid abuse, potentially saving the lives of young Californians. Background on opioid overdose epidemic. According to the author, data show that drug overdoses are now the leading cause of injury death in the United States, even surpassing motor vehicle crash deaths. According to the Centers for Disease Control and Prevention (CDC), nearly half a million people died from drug overdoses from 2000 to 2014, and the majority of drug overdose deaths involve an opioid, including prescription pain relievers and heroin. The most common prescription drugs involved in overdose deaths include methadone, oxycodone (OxyContin) and hydrocodone (Vicodin). More recently, fentanyl, a pain reliever that is 50 to 100 times more potent than morphine, has been found in prescription painkiller Norco or what individuals thought was Norco, killing 10 people in the Sacramento area within a two week period. Overdose is a growing problem even among school-age youth. The 2014 National Survey on Drug Use and Health reported an estimated 0.7 percent of adolescents aged 12 to 17 (approximately 168,000 adolescents) had a pain reliever use disorder in 2014, while 18,000 adolescents, representing 0.1 percent of those in the same age group, had a heroin use disorder in 2014. The survey also showed that 50.5% of people who misused prescription painkillers obtained them from a friend or relative, and not through a personal prescription. AB 1748 Page 12 Background on properties of naloxone, a common opioid antagonist. Opioid antagonists are a group of drugs routinely used in hospitals and in pre-hospital settings (i.e. by paramedics in the field) on patients who are suspected to be overdosing on opioids such as heroin, methadone, or oxycodone. The most common type of opioid antagonist is known as naloxone hydrochloride (or its brand name "Narcan"), and is approved by the federal Food and Drug Administration for the treatment of an opioid overdose. (Hereafter, this analysis will use the term "naloxone" interchangeably with the term "opioid antagonist.") Opioid overdoses are characterized by central nervous system and respiratory depression, leading to coma and death. Naloxone, like other opioid antagonists, has the ability to counteract depression of the central nervous and respiratory system caused by an opioid overdose. Naloxone is administered by a syringe or an auto-injector into a large muscle or given under the skin, and was recently approved by the FDA in a nasal spray form. Naloxone takes effect after around two minutes, with effects lasting around 45 minutes, potentially saving the person's life. A New York Times article published August 21, 2005 ("The Shot That Saves ") noted: If given early enough, naloxone can prevent damage to the brain caused by lack of oxygen and leave the victim unharmed. According to research ? at least 75 percent of overdose deaths involve multiple drugs, usually mixtures of heroin and other depressants like alcohol. Removing the opioid from the mix with naloxone is often enough to revive victims. Naloxone itself is virtually harmless. Its most common side effects are withdrawal symptoms like nausea, shakiness and agitation in those who are physically AB 1748 Page 13 dependent on opioids. While uncomfortable, these symptoms are not dangerous. Rarely, seizures can occur, but this risk is far lower than the risk to those who are not treated. The drug has no effect on those who haven't taken opioids. Naloxone can reverse the effects of an opioid overdose very quickly. Naloxone is effective for 20 to 90 minutes, during which time emergency services should be sought for the patient. When injected into an overdose victim whose heart is still beating, "it's virtually 100% effective," said Wilson Compton, deputy director at the National Institute on Drug Abuse. Role of trained volunteers in preventing opioid overdoses in schools. According to the California School Nurses Organization, the ratio of school nurse to student in 2014-15 was 1 to 3,048, with just a total of 2,391 nurses for the 6.2 million students in the state. As noted by the Assembly Education Committee, without a nurse located at each schoolsite, there have been several recent laws that have authorized employee volunteers, after receiving training, to administer particular forms of immediate medical aid to students in varying degrees of distress (e.g., an epi-pen in response to an anaphylactic reaction; an automated external defibrillator (AED) in response to an episode of cardiac arrest). Like those examples, this bill seeks to authorize volunteers, as defined, to administer naloxone or another opioid antagonist to persons who may be experiencing an opioid overdose. Here, the trained volunteer is only permitted to administer the naloxone if the school does not have a school nurse, or if the school nurse is not onsite or available at the time the naloxone needs to be administered to a person exhibiting potentially life-threatening symptoms of an opioid overdose. Under this bill, a "volunteer" is defined as someone who is an employee who: (1) has volunteered to administer naloxone to a AB 1748 Page 14 person experiencing an overdose; (2) is designated by the school; and (3) had received specified training from the school. This bill requires the Superintendent of Public Instruction to develop minimum standards for training volunteers, with the training to be provided by a school nurse or other qualified person designated by an authorizing physician and surgeon. The bill requires the training to cover techniques for recognizing symptoms of an opioid overdose; standards and procedures for storage, restocking, and emergency use of naloxone; emergency follow-up procedures; and the importance of instruction and certification in cardiopulmonary resuscitation. Volunteers' roles and responsibilities: Proposed author's amendments. The author has proposed to amend the bill in this Committee to further clarify the role of volunteers within the new statutory framework to enable emergency naloxone treatment in school emergencies. Recent amendments made in Education Committee allow a volunteer to rescind his or her offer to act as a volunteer at any time, including after having received the training. As proposed to be amended, the bill would establish protections against retaliation for not volunteering or rescinding an offer to volunteer. Specifically, the proposed amendment establishes in the Education Code that no benefit shall be granted to or withheld from any individual based on his or her offer to volunteer, and there shall be no retaliation against any individual for rescinding his or her offer to volunteer, including after receiving training. In addition, the author proposes an amendment to require an existing annual notice to inform all staff of a volunteer's right to rescind his or her agreement to be a volunteer, and to contain a statement describing the above anti-retaliation protections. Proposed amendments also would delete language requiring volunteers "to initiate emergency medical services or other appropriate medical follow-up," and instead expand the required training materials to include directions for administrators or other persons to call emergency 911 and the pupil's family when there is an emergency. AB 1748 Page 15 Finally, as proposed to be amended, recent language allowing volunteers to administer naloxone or other opioid antagonist in the form the volunteer is most comfortable with (i.e. syringe, auto-injector or nasal spray) is deleted and replaced with language specifying that volunteers may only administer naloxone or another opioid antagonist by nasal spray, and not in any other form. These proposed amendments are intended to address various concerns raised by the California School Employee Association (CSEA) about the rights and responsibilities of their members, who often feel pressured to serve as trained volunteers to provide emergency care despite not having medical judgment or training. Funding concerns: Proposed author's amendments. In order to address CSEA concerns that the bill should ensure funding for the training and costs of the medication, lest the financial burden fall upon school employees, the author proposes to amend the bill to state that the school district, COE, or charter school shall provide the required training at no cost to the volunteer and during the volunteer's regular working hours, if it chooses to establish a trained volunteer program for naloxone administration. Volunteer immunity from liability: Proposed author's amendments. In recent years this Committee has heard, and the Legislature has enacted, bills seeking an express immunity from liability for lay people (or off-duty professionals) who voluntarily render medical aid in a specific emergency situation, such as administering cardiopulmonary resuscitation (CPR) or applying an automated external defibrillator (AED), among other voluntary actions. Under existing common law tort rules, however, a person who voluntarily comes to the aid of another person suffering a medical emergency would be immune from liability so long as that person acted in a reasonably prudent manner under the circumstances. In addition, in 2009, California adopted a so-called "Good Samaritan" statute, Heath & Safety Code Section AB 1748 Page 16 1799.102, which grants qualified immunity to any person who renders medical or non-medical aid in an emergency, so long as that person acts in good faith and not for compensation, and so long as that person's conduct is not grossly negligent or willful or wanton. As currently in print, however, this bill provides far more immunity from liability to a trained volunteer who administers naloxone than is appropriate, and far more than the Good Samaritan statute or other similar laws provide. (See, e.g., Civil Code Section 1714.23, subd. (b) and (c), providing immunity from liability for persons administering an epinephrine auto-injector in an anaphylaxis emergency situation.) In fact, this bill provides near complete immunity to a trained volunteer because there is no exception made even when that person's actions constitute gross negligence or willful or wanton misconduct. In order to address this apparent oversight, the author proposes to amend the bill to revise the immunity from liability provisions for trained volunteers so that it closely reflects the same standard that applies in the epinephrine auto-injector statute, Civil Code Section 1714.23, the same statute that, according to the author, this bill is closely modeled after. Accordingly, the proposed amendment requires the person administering the naloxone emergency care to be acting in good faith and not for compensation, and does not provide immunity to conduct constituting gross negligence or willful or wanton misconduct. The proposed amendment, at the request of CSEA, also includes clarifying language about the meaning of the term "not for compensation." It clarifies that a public employee shall, for purposes of determining immunity from liability, be considered to be administering emergency naloxone care "not for compensation" notwithstanding the fact that the person is a paid AB 1748 Page 17 public employee compensated for performing his or her ordinary job duties. Because a trained volunteer in the naloxone program described here is indeed volunteering to be trained and to assume this responsibility-and is not receiving any compensation for this volunteer task-it is entirely appropriate to clarify that they act "not for compensation" when they administer emergency naloxone or another opioid antagonist care in an overdose situation. The Committee believes this is true even if a trained volunteer were to receive reimbursement for ordinary travel costs associated with, for example, attending a naloxone training-especially in light of other proposed amendments that require the school or school district to provide the required training at no cost to the volunteer and during the volunteer's regular working hours. These amendments appear below for illustrative purposes: On page 7, delete lines 33 to 39, and insert: (k) (1) Notwithstanding any other law, a person trained as required under subdivision (d), who administers naloxone hydrochloride or another opioid antagonist, in good faith and not for compensation, to a person who appears to be experiencing an opioid overdose shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for his or her acts or omissions in administering the naloxone hydrochloride or another opioid antagonist. (2) The protection specified in paragraph (1) shall not apply in a case of gross negligence or willful or wanton misconduct of the person who renders emergency care treatment by the use of naloxone hydrochloride or another opioid antagonist. AB 1748 Page 18 (3) Any public employee who volunteers to administer naloxone or another opioid antagonist pursuant to subdivision (d) is not providing emergency medical care "for compensation," notwithstanding the fact that he or she is a paid public employee. Indemnification and defense for volunteers. This bill would authorize public schools, COEs, and charter schools to provide emergency naloxone or another opioid antagonist to trained personnel who have volunteered to provide emergency medical aid to persons suffering, or reasonably believed to be suffering, from an opioid overdose. Private schools may voluntarily determine whether or not to make available naloxone or other opioid antagonists and personnel trained in administering it. Accordingly, this bill would require that a school district, COE, or charter school ensure that each employee who volunteers to administer naloxone be provided defense and indemnification by the school district, COE, or charter school for any and all civil liability. This language is modeled upon an existing provision of the Education Code that provides authorization for schools to allow nonmedical employees to administer medical assistance to pupils with epilepsy suffering from seizures. (See Education Code Section 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 naloxone or other opioid antagonist, while still 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. Immunity for doctors and school nurses. The bill authorizes public schools, COEs, and charter schools to provide emergency naloxone or another opioid antagonist to school nurses (in addition to trained volunteers) for the purpose of providing AB 1748 Page 19 emergency medical aid to persons suffering, or reasonably believed to be suffering, from an opioid overdose. Unlike school employees serving as trained volunteers in this case, school nurses are professionally trained and compensated for the specific purpose of rendering medical care, in both emergency and non-emergency settings. As such they are held to a higher standard of care and entitled to less immunity for their negligent actions. In the performance of his or her professional duties, a nurse is required to exercise ordinary or reasonable care to see that no unnecessary harm comes to his or her patient. (Ybarra v Spangard (1944) 25 Cal2d 486; Oldis v La Societe Francaise De Bienfaisance Mutuelle (1955) 130 Cal App2d 461.) Accordingly, school nurses do not receive the immunity from liability specified in subdivision (k) of this bill. It should be noted, however, that because school nurses are public employees, they are covered under the Government Tort Claims Act, which establishes that, except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. (Gov. Code Section 820.2.) With respect to doctors, this bill does provide a special immunity not for the act of administering naloxone treatment, but for prescribing the drug or issuing a standing order to furnish some amount of the drug to a school or school district. Specifically, the bill provides that an authorizing physician and surgeon shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for the issuance of a prescription or order pursuant to this bill, unless the physician and surgeon's issuance of the prescription or order constitutes gross negligence or willful or malicious conduct. This reflects existing immunity provisions already extended to doctors for prescribing naloxone that was enacted by AB 635 (Ammiano) Chap. 707, Stats. 2013, which at the AB 1748 Page 20 time was approved to encourage more doctors to prescribe the drug or issue standing orders for its increased distribution. (See Civil Code Sec. 1714.22 (e).) ARGUMENTS IN SUPPORT: The Drug Policy Alliance supports this bill, writing: As drug overdose is now the leading cause of accidental death in California and the United States, with opioids being the leading cause--all appropriate steps must be taken to make the antidote to opioid overdose as widely available as possible. Naloxone hydrochloride is a safe, low-cost generic medication first approved by the FDA in 1971. It has been extensively researched and widely used for four decades by physicians and other healthcare providers responding to an overdose. Naloxone is nonnarcotic, does not produce intoxication, and has no potential for addiction or abuse. It is easy to administer, either by injection or intra-nasally via a nasal-spray atomizer. It has no effect if administered to someone who is not overdosing on opioids. Public health experts agree that increasing access to naloxone is a key strategy in preventing drug overdose deaths. The American Medical Association, the White House Office of National Drug Control Policy, the US Department of Justice, and the Director of the National Institutes of Drug Abuse, among others, have called for expanded access to naloxone. California law currently provides for administration of naloxone by laypersons that meet specified training AB 1748 Page 21 standards under Civil Code 1714.22. However, there is no explicit statutory authority for schools to accept, stock, or administer opioid overdose antidotes. For these reasons, Drug Policy Alliance supports AB 1748. ARGUMENTS IN OPPOSITION: The California Teachers Association opposes this bill because it is apparently concerned about a growing trend towards enacting new laws that make teachers and other school employees increasingly responsible for administering emergency medical care to students, even if nominally done on a "volunteer" basis after receiving basic training. As mentioned above, the Legislature has enacted a number of bills in recent years authorizing lay people, and particularly trained volunteers in schools, to voluntarily render medical aid in specific emergency situations, such as administering cardiopulmonary resuscitation (CPR), an automated external defibrillator (AED), an epinephrine auto-injector (epi-pen), naloxone hydrocholoride (or other opioid antagonist), and emergency antiseizure medication to students with epilepsy (Diastat), among other things. CTA states: Our teachers have long standing organizational policy, written and adopted by CTA elected leaders stating "CTA believes the health and safety of children are best met through the services of a credentialed school nurse" and "certificated instructional staff shall not be required to perform these services." Given the flexibility to local education agencies under the Local Control Funding Formula, there is absolutely no reason for education employees, other than trained school nurses, to be recruited to administer medications. In many school settings, probationary and temporary educators, along with classified employees, are "asked" to be a trained volunteer. Their failure to agree to volunteer impacts their contract status. While we are AB 1748 Page 22 extremely sympathetic to every occurrence during the school day resulting in medical intervention, there is no language in the measure prohibiting school administrators from unduly influencing and/or pressuring non-medically trained school employees to volunteer to be trained to respond in this kind of medical emergency. As discussed earlier, the author has proposed amendments to establish protections for school employees against retaliation for not volunteering or rescinding an offer to volunteer to administrate naloxone within the framework proposed by this bill. It is not known whether this amendment, which was taken to address concerns raised by CSEA, is also sufficient to address CTA's particular concerns as expressed in the second paragraph of their letter above. Prior Legislation: SB 1266 (Huff), Chap. 321, Stats. 2014, required school districts, COEs, and charter schools to provide emergency epinephrine auto-injectors to school nurses or trained personnel who have volunteered, as specified. Among other things, this bill also authorized school nurses or trained personnel to use the epinephrine auto-injectors to provide emergency medical aid to persons suffering, or reasonably believed to be suffering, from an anaphylactic reaction. AB 635 (Ammiano), Chap. 707, Stats. 2013, revised certain provisions from the current pilot program authorizing prescription of opioid antagonists for treatment of drug overdose and limiting civil and criminal liability, expanded these provisions statewide, and removed the 2016 sunset date for the pilot program. Among other things, this bill permitted a licensed health care provider who is authorized by law to prescribe an opioid antagonist, if acting with reasonable care, to prescribe and subsequently dispense or distribute an opioid antagonist to a person at risk of an opioid-related overdose or a family member, friend, or other person in a position to assist AB 1748 Page 23 the person at risk, and limited the professional and civil liability of licensed health care providers and persons who possess or distribute opioid antagonists, as specified. SB 1438 (Pavley), Chap. 491, Stats. 2014, required the development of training and other standards for the administration of naloxone by emergency medical technicians and other pre-hospital emergency care personnel. SB 669 (Huff), Chap. 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), Chap. 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. REGISTERED SUPPORT / OPPOSITION: Support Drug Policy Alliance AB 1748 Page 24 California School Nurses Organization (support if amended) Opposition (to previous version) California School Employees Association Opposition California Teachers Association Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334