BILL ANALYSIS
AB 1369
Page 1
Date of Hearing: April 29, 2003
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Lois Wolk, Chair
AB 1369 (Pavley) - As Amended: April 21, 2003
SUBJECT : Automatic External Defibrillators: Required Presence
in Residential Care Facilities for the Elderly.
SUMMARY : Requires residential care facilities for the elderly
(RCFEs) with more than 60 beds to purchase automatic external
defibrillators (AEDs) and train their staff in its use.
Specifically, this bill :
1)Imposes this requirement effective January 1, 2005.
2)Provides that the training of RCFE personnel and use of AEDs
must meet any minimum standards established by the Emergency
Medical Services Authority.
3)Consistent with existing statutes regarding individuals or
entities who acquire AEDs, requires all RCFEs to comply with
all regulations governing the placement of an AED, and to
ensure all of the following:
a) The AED is maintained and regularly tested according to
operation and maintenance guidelines.
b) The AED is checked for readiness after each use or at
least once every 30 days, whichever is sooner.
c) Records are maintained documenting that the AED is
checked for readiness as required.
d) Any person who renders emergency care or treatment on a
person in cardiac arrest by using an AED activates the
emergency medical services system as soon as possible, and
reports any use of the AED to the licensed physician and
the local EMS agency.
e) At least one employee per AED unit in the RCFE completes
a training course in CPR and AED use that complies with
regulations adopted by the Emergency Medical Services
Authority and the standards of the American Heart
Association or the Red Cross.
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f) The RCFE has trained employees who should be available
to respond to an emergency that may involve the use of an
AED unit during normal operating hours.
g) There is a written plan that describes the procedures to
be followed in the event of an emergency that may involve
the use of an AED, including a requirement that the RCFE
immediately notify 911 and trained office personnel at the
start of AED procedures.
EXISTING LAW :
1)Provides that the Department of Social Services is responsible
for issuing licenses to RCFEs. No person may operate or
maintain a RCFE without a current valid license or special
permit.
2)Defines RCFE as a housing arrangement chosen voluntarily by
persons 60 years of age or over, or their authorized
representative, where varying levels and intensities of "care
and supervision," protective supervision, or personal care are
provided, based upon their varying needs. "Care and
supervision" is defined to mean that the facility assumes
responsibility for, or provides ongoing "assistance" with
activities of daily living without which the resident's
physical health, mental health, safety or welfare would be
endangered. Assistance includes assistance with taking
medications, money management, or personal care.
3)Defines automatic external defibrillator as a light-weight,
portable device used to administer an electric shock through
the chest wall to the heart. Built-in computers assess the
patient's heart rhythm, determine whether defibrillation is
needed and if so, administer the shock. Audible and/or visual
prompts guide the use through the process.
4)Provides protection from civil liability for good samaritans
who, in good faith and not for compensation, render emergency
care or treatment by the use of an AED at the scene of an
emergency. Additionally, a person or entity that provides CPR
and AED training to a person who renders such emergency care
in good faith and not for compensation is also immune from
liability for any civil damages resulting from any acts or
omissions of the person rendering the emergency care.
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5)By regulation, authorizes, but does not require, RCFEs to
maintain and operate an AED if all of the following
requirements are met:
a) The licensee notifies DSS in writing that an AED is in
the facility and will be used in accordance with all
applicable federal and state requirements.
b) The licensee maintains at the facility a training manual
from an American Heart Association or American Red
Cross-recognized AED training class; a copy of the required
physician's prescription for the AED; a log of checks of
operation of the AED; a copy of a valid AED operator's
certificate for any employees authorized by the licensee to
operate the AED; and a log of quarterly proficiency
demonstrations for each holder of an AED operator's
certificate.
6)By regulation, requires RCFEs operating AEDs to observe DNRs,
Advance Directives, and Requests to Forego Resuscitative
Measures
7)Prohibits individuals who require health services for or have
a health condition including but not limited to the following
from being admitted into or retained in RCFEs: stage 3 and 4
dermal ulcers, gastrostomy care, use of liquid oxygen,
naso-gastric tubes, staph infection or other serious
infection, tracheostomies, or those who depend on other to
perform all activities of daily living for them. Limits the
types of health care assistance that RCFEs may provide to:
administration of oxygen, catheter care, colostomy/ileostomy
care; contractures; diabetes; enemas; incontinence; injection,
intermittent positive pressure breathing machine, stage 1 and
2 dermal ulcers, and wound care. The types of health care
assistance that may be provided for such conditions is further
regulated.
FISCAL EFFECT : Unknown.
COMMENTS : According to the author, "[a]t least 450,000 cases of
unexpected cardiac arrest occur annually in the United States,
and the majority of these cases occur in places other than
hospitals. Studies have shown that when defibrillators are used
immediately on cardiac arrest victims, the survival rate is
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almost 100 percent. But because traditional emergency medical
services take 8 to 15 minutes to respond, the overall survival
rates for cardiac arrest victims in most U.S. communities are
only 5 to 10 percent." The author further notes that "[d]espite
the proven success of quick defibrillation, and the availability
of . . . AEDs that can be easily placed in a variety of
locations and used by non-medical personnel, facilities that
house and care for senior citizens oftentimes do not have AEDs
on the facilities' premises."
This bill therefore mandates that large RCFEs (with a bed
capacity exceeding 60 persons) maintain and operate AEDs. As
part of this requirement, training of personnel must be
consistent with any minimum standards established by the
Emergency Medical Services Authority, RCFEs must ensure that the
AED is maintained and regularly tested, periodically checked for
readiness, and records of those checks are maintained.
Additionally, at least one employee per AED unit in the RCFE is
required to complete a training course in CPR and AED use that
complies with regulations adopted by the Emergency Medical
Services Authority and the standards of the American Heart
Association or the Red Cross. Furthermore, the RCFE would be
required to have trained employees who "should be" available to
respond to an emergency that may involve the use of an AED unit
during normal operating hours.
Although state regulations do permit RCFEs to maintain and
operate AEDs, it appears few currently do so. This bill would
turn the permissive regulation into a mandate for the larger
RCFEs.
According to the author, the approximate cost of an AED is
$3,000. Additionally, standard CPR training by the American Red
Cross, which includes training on AED use, costs $45 per case.
The author comments that "this cost . . . is negligible when
compared with the cost the state and the counties incur when
having to care for patients that sustain major medical injuries
and disabilities as a result of tardy resuscitation." The
actual cost to the RCFE is unknown, depending on the number of
staff that must be trained and how often such training must be
repeated.
Application to Large RCFEs . By definition, the residents of
RCFEs are over 60 years of age, and typically frail in some
manner. Although no statistics were provided, it would not be
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beyond reason to assume that the percentage of residents in
RCFEs who may require an AED is greater than the percentage of
individuals in the general population who might require such
medical assistance. That said, the bill limits its application
to RCFEs with a bed capacity exceeding 60 persons -
approximately 10% of the RCFEs in the state. It does not appear
that other laws and regulations governing RCFEs draw a line
between large and small RCFEs in setting rules, requirements,
and obligations. Presumably, the line was drawn in this case so
that if the costs of this mandate are passed on to the
residents, the additional burden would be less significant than
if there were only a handful of residents to share the cost.
The bill as introduced applied to skilled nursing facilities
with a capacity exceeding 60, and to senior centers in addition
to the larger RCFEs. However, to lessen the fiscal implications
on the general fund, the bill was amended to limit its
applicability to RCFEs, which are not funded by state dollars.
Liability for negligent incorrect use or failure to use AED . As
a method to encourage individuals to assist those in cardiac
arrest, the Legislature passed SB 911 (Figueroa), Chapter 163,
Statutes of 1999, which provides immunity from civil liability
to individuals who in good faith, and not for compensation,
render emergency care or treatment by the use of an AED at the
scene of an emergency. Similarly, immunity is provided for the
person or entity who provides CPR and AED training to the
individual who rendered the emergency care, as well as the
person or entity who acquired the AED, and a physician or other
person who is involved with the placement and location of the
AED. The immunity does not attach for damages resulting from
the gross negligence or willful or wanton misconduct of the
person who renders emergency care.
More and more, AEDs are available in airports and myriad other
public places. The growing accessibility of AEDs is
attributable, in large part, to the knowledge that a good
samaritan seeking to help a person in need will not be subject
to civil liability for negligence on their part. These good
samaritan provisions would not apply to RCFEs, however, because
although the employees are likely rendering the emergency care
"in good faith," they are not doing so "without compensation," a
requirement for the immunity to attach. However, according to
the American Red Cross, advances in AED technology have made the
devices practically foolproof. AEDs "use embedded computer
chips to analyze the rhythms instantly and accurately, making it
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possible for non-medical professionals to administer [this] . .
. vital service without risking an accidental shock."
This necessarily leads to the question of whether RCFEs that are
required by this legislation to have and use AEDs should also be
given similar immunity from liability. Simply put, the answer
to this question may come down to whether RCFEs are more like
hospitals (which have no such immunity) or airports (which do).
The Committee may therefore wish to explore with the author
whether it might be appropriate to extend the good samaritan
immunity to RCFEs.
Availability of Trained Staff . As noted above, this bill would
require RCFEs to have trained employees who should be available
to respond to an emergency that may involve the use of an AED
unit during normal operating hours. The normal operating hours
for RCFEs are 24 hours a day. This requirement likely means,
therefore, that there needs to be trained personnel available on
every shift - at least one per AED - who could respond in case
of an emergency.
Technical amendment needed . The bill purports to provide that
RCFEs are subject to the measure's requirements "pursuant to
subdivisions (a) to (e), inclusive, and (g) of Section 1797.196"
of the Health and Safety Code. Several of those provisions,
however, do not apply. It appears that the proper reference
would be limited to paragraphs (1) and (2) of subdivision (b) of
that section.
Arguments in Support . The American Red Cross of California
supports this measure, arguing that "AB 1369 would provide a
vulnerable population with access to these easy-to-use
life-saving devices. AB 1369 will save lives." The California
Professional Firefighters agree, noting that "AB 1369 would
enhance the likelihood of a cardiac arrest victim's survival by
making AEDs readily available." MedTronic Physio-Control, a
leading maker of AEDs, also supports the bill. MedTronic notes
that "almost anyone can learn to operate an AED with a few hours
of training - no medical background is needed. . . .AEDs are
designed to help people with minimal training safely use them in
tense, emergency situations. They have numerous built-in
safeguards and are designed to deliver a shock only if the AED
detects that one is necessary. . . .[W]e estimate that
approximately 27,000 Californians die from sudden cardiac arrest
each year. Wide use of defibrillators could save as many as
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6,000 lives in California each year. AB 1369 makes progress in
achieving that goal."
Arguments in Opposition . The California Assisted Living
Association (CALA) opposes this legislation, raising concerns
about the exposure to liability for the "non-use of the device
in an emergency; improper use of the device resulting in injury
or death; the successful use of the device on a resident with a
'do not resuscitate' (DNR) order. . . .This bill will likely
increase our liability insurance costs, which has skyrocketed in
the past two years." CALA also raises concerns that this bill
would be interpreted to require RCFEs to respond to a cardiac
emergency by using an AED even if the resident had a DNR order.
Finally, CALA comments that the cost of the AED unit, plus the
costs of training "would be prohibitive to many RCFEs.
Combining the increased liability insurance costs and the
purchase and training required by this measure creates a major
burden for RCFEs that must provide care and housing to frail and
elderly residents having special care needs. To avoid cutting
services and remain financially viable, RCFEs will be forced to
pass on these additional encumbrances to consumers."
REGISTERED SUPPORT / OPPOSITION :
Support
California Senior Legislature (Sponsor)
American Red Cross of California
California Medical Association
California Professional Firefighters
Federation of Retired Union Members of Santa Clara and San
Benito
Medtronic Physio-Control
Opposition
California Assisted Living Association
Analysis Prepared by : Donna S. Hershkowitz / HUM. S. / (916)
319-2089