BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 738|
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THIRD READING
Bill No: SB 738
Author: Huff (R)
Amended: 5/13/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/5/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Pupil health: epinephrine auto-injectors:
liability limitation
SOURCE: California Society for Allergy, Asthma and Immunology
DIGEST: This 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 existing law
(which requires public schools to obtain a prescription for
epinephrine auto-injectors from an authorizing physician and
surgeon, as defined, for use in emergencies) unless the
physician and surgeon's issuance of the prescription or order
constitutes gross negligence or willful or malicious conduct.
ANALYSIS:
Existing law:
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1)Requires school districts, county offices of education, and
charter schools to provide emergency epinephrine
auto-injectors to school nurses or trained personnel who have
volunteered, as specified, and provides that school nurses or
trained personnel may use epinephrine auto-injectors to
provide emergency medical aid to persons suffering, or
reasonably believed to be suffering, from an anaphylactic
reaction. Authorizes private elementary and secondary school
in the state to voluntarily determine whether or not to make
emergency epinephrine auto-injectors and trained personnel
available at its school.
2)Provides that each public and private elementary and secondary
school in the state may designate one or more volunteers to
receive initial and annual refresher training, based on
specified standards, regarding the storage and emergency use
of an epinephrine auto-injector from the school nurse or other
qualified person designated by an authorizing physician and
surgeon.
3)Requires, in relevant part, that a qualified supervisor of
health at a school district, county office of education, or
charter school to obtain from an authorizing physician and
surgeon a prescription for each school for epinephrine
auto-injectors that, at a minimum, includes, for elementary
schools, one regular epinephrine auto-injector and one junior
epinephrine auto-injector, and for junior high schools, middle
schools, and high schools, if there are no pupils who require
a junior epinephrine auto-injector, one regular epinephrine
auto-injector. Provides that if a school district, county
office of education, or charter school does not have a
qualified supervisor of health, an administrator at the school
district, county office of education, or charter school shall
carry out the above duties.
This 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 existing law
above, unless the physician and surgeon's issuance of the
prescription or order constitutes gross negligence or willful or
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malicious conduct.
Background
An epinephrine auto-injector is a disposable medical drug
delivery device that delivers a single measured dose of
epinephrine, most frequently for the treatment of acute allergic
reactions to avoid or treat the onset of anaphylactic shock.
Anaphylactic shock can quickly result in death if untreated.
Epinephrine auto-injectors can be obtained by prescription only,
and California law does not authorize non-physicians to
administer an epinephrine auto-injector to another person,
except in limited circumstances.
In recent years, California law has been amended to, among other
things, permit school districts or county offices of education
to provide emergency epinephrine auto-injectors to trained
personnel, and to permit trained personnel to utilize the
auto-injectors to provide emergency medical aid to persons
suffering from an anaphylactic reaction, as it is not uncommon
for children to come into contact with specific allergens (such
as bee stings) or accidentally ingest foods they are allergic to
at school. (AB 559, Wiggins, Chapter 458, Statutes of 2001.)
Last year, SB 1266 (Huff, Chapter 321, Statutes of 2014) was
enacted to require, as opposed to simply authorize, school
districts, county offices of education, and charter schools to
provide emergency epinephrine auto-injectors to trained
personnel who, consistent with existing law, may use the
auto-injectors to provide emergency medical aid to persons
suffering from an anaphylactic reaction. Under that bill, each
public school is required to designate one or more school
personnel on a voluntary basis to receive the requisite training
for these purposes. In recognition that employees might
otherwise hesitate to volunteer out of fear of personal
liability, SB 1266 also required that a school district, county
office of education, or charter school 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.
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This bill now seeks to address an issue of concern to the
doctors who are needed to write these prescriptions so that
schools may obtain and stock epi-pens for the above purposes.
Specifically, this bill provides a physician or surgeon issuing
a prescription or order for these purposes with immunity from
any potential civil or criminal liability or from professional
disciplinary action, unless the physician and surgeon's issuance
of the prescription or order constitutes gross negligence or
willful or malicious conduct.
Comment
As stated by the author:
Last year, the Legislature unanimously passed and the Governor
signed SB 1266 [Huff, Chapter 321, Statutes of 2014] requiring
extra epinephrine auto injectors be prescribed as a "standing
order" ensuring the lifesaving medication can be on hand in
public schools when there is a school nurse or volunteer who
is trained to administer. Epinephrine is the first line of
treatment for someone who is experiencing anaphylaxis (a
potentially lethal allergic reaction). It is easily
administered and has very little side-effect.
Once SB 1266 took effect, many physicians began raising
questions about issuing the prescription, citing liability
concerns. Unlike normal prescriptions made out to a specific
individual who physicians have a patient relationship with, a
"standing order" for epinephrine will be made out generically
so the school can keep it on hand. Physicians have stated
having liability coverage in the code (similar to what they
have for Automated External Defibrillator (AED) and opioid
antagonists) will help ease their concern.
The author reports that recent data from the California School
Nurse Organization shows that many schools who are trying to
implement SB 1266 are having difficulty doing so because they
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cannot obtain the necessary prescription.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/13/15)
California Society for Allergy, Asthma and Immunology (source)
Advocacy Council of the American College of Allergy, Asthma and
Immunology
American Academy of Allergy Asthma & Immunology
American College of Allergy, Asthma and Immunology
Association of Regional Center Agencies
California Chapter of the American College of Emergency
Physicians
Civil Justice Association of California
Los Angeles Unified School District
Two individuals
OPPOSITION: (Verified5/13/15)
None received
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
5/13/15 17:26:24
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