BILL ANALYSIS Ó
SB 738
Page 1
Date of Hearing: June 23, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 738(Huff) - As Amended May 13, 2015
SENATE VOTE: 36-0
NOTE: This bill is double referred, and if it passes this
Committee, it will be referred to the Assembly Judiciary
Committee.
SUBJECT: Pupil health: epinephrine auto-injectors: liability
limitation.
SUMMARY: Provides that an authorizing physician and surgeon
will not be subject to professional review, liable in a civil
action or be the subject of criminal prosecution for issuing a
prescription or order, as specified, for an epinephrine
auto-injector (EAI), unless the physician or surgeon's issuance
constitutes gross negligence or willful or malicious conduct.
EXISTING LAW:
1)Authorizes a pharmacy to furnish an EAI to a school district,
county office of education (COE), or charter school, as
specified, if the following conditions are met: (Business and
Professions Code (BPC) Section 4119.2(a))
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a) The EAIs are furnished exclusively for use at a school
site, as specified; and,
b) A physician and surgeon provides a written order that
specifies the quantity of EAIs to be furnished.
2)Requires the records regarding the acquisition and disposition
of EAIs to be maintained by the school district, COE, or
charter school for a period of three years from the date the
records were created and requires the school district, COE, or
charter school to be responsible for monitoring the supply of
EAIs and ensuring the destruction of expired EAIs. (BPC
Section 4119.2(b))
3)Establishes the responsibilities of the Medical Board of
California (MBC) which include: the enforcement of the
disciplinary and criminal provisions of the Medical Practice
Act (Act); the administration and hearing of disciplinary
actions; carrying out disciplinary actions appropriate to
findings made by a panel or an administrative law judge (ALJ);
suspending, revoking, or otherwise limiting certificates after
the conclusion of disciplinary actions; and reviewing the
quality of medical practice carried out by physician and
surgeon certificate holders under the MBC's jurisdiction.
(BPC Section 2004 (a)-(e))
4)Requires school districts, COEs, and charter schools to
provide emergency EAIs to school nurses or trained personnel
who have volunteered, as specified, and authorizes school
nurses or trained personnel to use EAIs to provide emergency
medical aid to persons suffering, or reasonably believed to be
suffering, from an anaphylactic reaction. (Education Code
(EDC) Section 49414 (a))
5)Permits each private elementary and secondary school in the
state to voluntarily determine whether or not to make EAIs and
trained personnel available at its school, as specified. (EDC
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Section 49414(c))
6)Permits each public and private elementary and secondary
school in the state to designate one or more volunteers to
receive initial and annual refresher training, based on
specified standards, regarding the storage and emergency use
of an EAI from the school nurse or other qualified person
designated by an authorizing physician and surgeon. (EDC
Section 49414(d))
7)Requires the Superintendent to review the minimum standards of
training for the administration of EAIs, every five years or
sooner, as determined by the Superintendent. (EDC 49414(e)(1))
THIS BILL:
8)States that an authorized physician and surgeon is not subject
to professional review, liable in a civil action, or subject
to criminal prosecution for the issuance of a prescription or
order, as specified, for an EAI unless the physician and
surgeon's issuance of the prescription or order constitutes
gross negligence or willful or malicious conduct.
9)Updates the name of the Stanford Allergy Center to reflect its
current name, the Sean N. Parker Center for Allergy Research.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS:
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Purpose. This bill is sponsored by the California Society for
Allergy, Asthma and Immunology . According to the author, "My
office has been informed that this medication was recently used
in the San Marcos School District and potentially saved a
child's life. This policy is important and is working. We
need this last part of the equation to make sure this policy is
workable to its full extent and for all schools, not just for
schools who have been lucky enough to find a physician willing
to go out on a limb. This is a narrowly focused bill in an
attempt to make getting prescriptions easier for school nurses
and is consistent with current law for similar situations.
Without the prescription, this important health policy cannot
work."
Background. An EAI is used for the emergency treatment of
severe allergic reactions, including anaphylaxis, to insect
bites or stings, medicines, foods, or other substances. It is
also used to treat anaphylaxis caused by unknown substances or
triggered by exercise.
As a result of SB 1266 (Huff), Chapter 321, Statutes of 2014, it
is now required that school districts, COEs, and charter schools
provide emergency EAIs to school nurses or trained personnel who
have volunteered, and those school nurses or trained personnel
may use the EAIs to provide emergency medical aid to persons
suffering, or reasonably believed to be suffering, from an
anaphylactic reaction. BPC Section 4119.2 permits a pharmacy to
furnish EAIs to a school district, COE or charter school, as
specified in the EDC, as long as the following conditions are
met: 1) the EAI is furnished exclusively for use at the school
site, and 2) a physician and surgeon provides a written order
that specifies the quantity of EAIs to be furnished.
In addition to establishing the processes and procedures for the
program, SB 1266 also provided specified liability protections
for the employees who volunteer under the program by requiring
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the school district, COE or charter school to provide defense
and indemnification by for any and all civil liability, as
specified. This bill would also provide liability protection to
a physician and surgeon by exempting them from professional
review for the issuance of a prescription or order for an EAI
unless the prescription or order constituted gross negligence or
willful or malicious misconduct.
In 2013, AB 635 (Ammiano), Chapter 707, Statutes of 2013,
provided similar protections from civil liability or from
professional review for licensed health care providers who issue
prescriptions or standing orders, as specified, for naloxone
hydrochloride, which is an opioid antagonist used to treat
opioid overdose.
Medical Board. The MBC is the regulatory entity responsible for
regulating physician and surgeons and a number of other allied
health professionals. The jurisdiction of the MBC includes
issuing licenses and certificates, the administration and
hearing of disciplinary actions, and carrying out disciplinary
actions as determined by the appropriate panel or ALJ including
suspending, revoking, or otherwise limiting certificates after
the conclusion of disciplinary actions. According to the
author, since the enactment of SB 1266, many physicians have
begun to raise questions about liability concerns with respect
to issuing a generic prescription for the purposes of providing
EAIs to school sites. This bill will exempt a physician and
surgeon from both professional review by the MBC and civil
liability for the issuance of a prescription or order for EAIs
in school settings as required by the EDC, unless the physician
and surgeon's order constitutes gross negligence or willful or
malicious conduct.
Current Related Legislation. AB 1386 (Low), of 2015, permits a
pharmacy to furnish EAIs to an authorized agency, as specified,
if the EAIs are furnished exclusively for use at or in
connection with an authorized entity, an authorized health care
provider provides a prescription, and the records are maintained
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by the authorized agency for three years. This bill also
contains specified immunity provisions. STATUS: This bill is
pending in the Assembly Business and Professions Committee.
Prior Related Legislation. SB 1266 (Huff), Chapter 321,
Statutes of 2014, requires school districts, COEs, and charter
schools to provide emergency EAIs to school nurses or trained
personnel who have volunteered, and authorizes school nurses or
trained personnel to use EAIs to provide emergency medical aid
to persons suffering, or reasonably believed to be suffering,
from an anaphylactic reaction.
SB 669 (Huff), Chapter 725, Statutes of 2013, permitted a
prehospital emergency medical care person, first responder, or
lay rescuer to obtain and use an EAI in emergency situations
with certification of training, as specified.
AB 635 (Ammiano), Chapter 707, Statutes of 2013, revised
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.
AB 559 (Wiggins), Chapter 458, Statutes of 2001, allowed school
districts or COEs to provide emergency EAIs to trained
personnel, and permitted trained personnel to utilize EAIs to
provide emergency medical aid to persons suffering from an
anaphylactic reaction.
ARGUMENTS IN SUPPORT:
The American College of Allergy, Asthma and Immunology (ACAAI)
and the Advocacy Council (Council) of the Colleges writes in
support, "[the] ACAAI and the Council firmly believe in the
concept of making undesignated [EAIs] available to appropriately
trained school personnel."
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The California Chapter of the American College of Emergency
Physicians writes in support, "[this bill] will provide
physicians the necessary liability protections to fully
implement current law. It is similar to what is already in law
for other medication and medical devices; applying liability
protection to [EAIs] makes sense."
The Medical Board of California writes in support, "this bill
will help school districts obtain standing order prescriptions
so they can benefit from SB 1266 from last year. These standing
order prescriptions will allow the schools to obtain the [EAIs]
which will provide emergency medical aid to students suffering
from anaphylactic reactions."
ARGUMENTS IN OPPOSITION:
None on file.
REGISTERED SUPPORT:
California Society for Allergy, Asthma and Immunology (sponsor)
American Academy of Allergy, Asthma, and Immunology
American College of Allery, Asthma, and Immunology
Association of Regional Center Agencies
California Chapter of the American College of Emergency
Physicians
California School Nurses Organization
Civil Justice Association of California
Los Angeles Unified School District
Medical Board of California
Sanofi
Santa Clara County Office of Education
4 individuals
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REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Elissa Silva / B. & P. / (916)
319-3301