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
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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
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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
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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
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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:
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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
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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.
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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,
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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(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
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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
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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
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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
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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
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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
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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