BILL ANALYSIS
SENATE HEALTH AND HUMAN SERVICES
COMMITTEE ANALYSIS
Senator Deborah V. Ortiz, Chair
BILL NO: AB 1369
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AUTHOR: Pavley
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AMENDED: June 12, 2003
HEARING DATE: June 18, 2003
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FISCAL: Judiciary / Appropriations
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CONSULTANT:
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Vazquez / sl
SUBJECT
Residential care facilities for the elderly: automatic
external defibrillators
SUMMARY
This bill 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.
ABSTRACT
Existing law:
1.Provides that the Department of Social Services is
responsible for issuing licenses to RCFEs. No person may
operate or maintain an 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
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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
lightweight, 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 cardiopulmonary resuscitation (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.
5.Authorizes, by regulation, but does not require, RCFEs to
maintain and operate an AED if all of the following
requirements are met:
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.
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.
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1.Requires at least one employee per AED unit in the RCFE
to complete a training course in CPR and AED use that
complies with regulations adopted by the Emergency
Medical Services Authority (EMSA) and the standards of
the American Heart Association or the Red Cross.
2.Requires the RCFE 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.
3.Requires, by regulation, RCFEs operating AEDs to observe
a do-not-resuscitate (DNR) order, advance directives, and
requests to forego resuscitative measures.
4.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.
This bill:
1.Requires, commencing January 1, 2005, every RCFE with a
licensed bed capacity that exceeds 60 persons to
purchase, and train personnel in the use of, an AED
consistent with current state law, as outlined under (2)
and (3) below.
2.Provides that the training of RCFE personnel and use of
AEDs must meet any minimum standards established by EMSA.
3.Provides that all RCFEs must comply with all regulations
governing the placement of an AED, to ensure that the AED
is maintained and regularly tested according to operation
and maintenance guidelines, to ensure that the AED is
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checked for readiness after each use or at least once
every 30 days, whichever is sooner, and to have a written
plan that describes the procedures to be followed in the
event of an emergency that may involve the use of an AED.
4.Stipulates that (a) an employee of an RCFE who uses an
AED to render emergency care or treatment, or (b) the
members of the board of directors of the facility may not
be held liable for civil damages resulting from acts or
omissions in rendering the emergency care or treatment of
a resident by use of an AED, except in the case of
personal injury or wrongful death that results from gross
negligence or willful or wanton misconduct.
5.Clarifies that the requirement to render emergency
treatment by use of an AED does not authorize its use
contrary to a request to forego resuscitative measures,
an advance directive, or a DNR.
6.Provides that if a resident executes a request to forego
resuscitative measures, an advance directive, or a DNR,
the resident shall indicate separately, in writing, if he
or she does not want facility employees to use an AED if
he or she needs emergency care or treatment.
FISCAL IMPACT
According to the Assembly Committee on Appropriations, the
costs of the measure to RCFEs are unknown. RCFEs are
privately funded, which makes estimation of the costs of
purchasing and training related to AEDs difficult to
determine. AEDs cost between $1,500 and $3,000 each and
training by the American Red Cross is approximately $45 per
participant. It is not known how many facilities covered
by this bill already have AEDs, however, it is expected
that approximately 600 RCFEs with 60 beds or more will
qualify for inclusion under this mandate.
Due to the fact that RCFEs are funded through monthly
private payments from individuals and because the
Department of Social Services (DSS) already has regulations
governing the use of AEDs in RCFE, this bill does not have
an impact on state or local government costs.
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BACKGROUND AND DISCUSSION
Background
According to the author, "At 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 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 despite 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 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 EMSA. RCFEs must
ensure that the AED is maintained and regularly tested,
periodically checked for readiness, and that 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 EMSA and the standards of the
American Heart Association or the Red Cross. Furthermore,
the RCFE is 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.
The author states that AEDs should become increasingly
available in care facilities for the elderly, making RCFEs
an important starting point given the average age and
health status of seniors residing in these facilities. The
American Heart Association reports that 84% of cardiac
arrest victims are age 65 or older. If large facilities
that care for seniors were to have AEDs on site, seniors
would benefit from the availability of this technology.
Liability exemptions
Although state regulations do permit RCFEs to maintain and
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operate AEDs, it appears that few currently do so. This
bill would turn the permissive regulation into a mandate
for the larger RCFEs. In addition to imposing this
mandate, this bill extends the liability protections to
employees and members of boards of directors of facilities,
similar to that recently enacted in "good samaritan"
provisions that exist for those who render aid "in good
faith" and "not for compensation" (please see "Related
legislation" below). The immunity from liability does not
exist to the extent that the injury or death that resulted
was due to gross negligence or willful or wanton
misconduct.
Anticipated costs to RCFEs
According to the author, the approximate cost of an AED is
between $1,500 and $3,000. Additionally, standard CPR
training by the American Red Cross, which includes training
on AED use, costs $45 per person. 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 delayed 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 readministered.
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.
Honoring of DNRs
The author has included language in the most recent
amendments intended to reconcile the use of AEDs and
existing DNRs and advance directives. The bill now
requires that a separate, written "opt-out" form be used
for residents who have DNRs or other advance directives and
who do not wish for an AED to be used if emergency care or
treatment is needed.
Generally, a DNR order tells medical professionals not to
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perform CPR. This means that doctors, nurses, and
emergency medical personnel will not attempt emergency CPR
if the patient's breathing or heartbeat stops. DNR orders
may be written for patients in a hospital, nursing home, or
residential facility, as well as for patients at home.
Hospital DNR orders tell the medical staff not to revive
the patient if cardiac arrest occurs. If the patient is in
a nursing home or at home, the DNR order tells the staff
and emergency medical personnel not to perform emergency
resuscitation and not to transfer the patient to a hospital
for CPR.
Further conditions may be added governing the use of DNRs
and advance directives (e.g. effective if the patient is
terminally ill and the use of life-sustaining procedures
would serve only to artificially delay the moment of
death). Advance health care directives may or may not
include provisions regarding defibrillation.
The opposition states that over 50% of residents in RCFEs
have DNRs in place, complicating administration of how DNR
and AED administration are reconciled.
Arguments in support
The American Red Cross of California states that AB 1369
would provide a vulnerable population with access to
easy-to-use, life-saving devices. 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 and that no
medical background is needed. AEDs are designed to help
people with minimal training to 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. MedTronic estimates
that approximately 27,000 Californians die from sudden
cardiac arrest each year. Wide use of defibrillators could
save as many as 6,000 lives in California each year.
Arguments in opposition
The California Assisted Living Association (CALA) opposes
this legislation, stating that this mandate is
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inappropriate in a setting where there is a concentration
of people who have indicated that they do not want to be
resuscitated. "AB 1369 exposes RCFEs to additional
liability and will increase costs to residents?This
additional exposure will likely increase liability
insurance premiums, which have skyrocketed in the past two
years. All of this impacts the affordability of assisted
living services." CALA also argues that implementation in
their settings is complicated, and that the requirement for
AEDs in other settings was removed from the bill because
the potential limited benefit did not outweigh the
financial cost to the state, i.e. Medi-Cal reimbursement.
"Since RCFEs do not receive Medi-Cal funding, providers and
residents will bear the costs of this mandate."
Pilot project. In addition, CALA have suggested that the
measure be narrowed to instead authorize a pilot project,
in which AED placement in a lower number of RCFEs could be
tested for implementation successes, challenges, and
questions. The form and scope of a pilot has not been
developed.
Related legislation
SB 911 (Figueroa, Chapter 163, Statutes of 1999) 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.
AB 2041 (Vargas, Chapter 718, Statutes of 2002) deletes the
requirement that a person administering an AED complete a
basic CPR or AED course in order to receive immunity. The
bill would further provide immunity from civil liability to
a person or entity that acquires an AED for emergency use
and renders emergency care, if that person or entity is in
compliance with specified requirements.
AB 1145 (Shirley Horton), currently under consideration by
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the Senate Committee on Governmental Organization, would
require the Department of General Services to apply for
specified federal funds for the purchase of automated
external defibrillators to be located within state-owned
and leased buildings. It would require the Department of
General Services, in consultation with the Emergency
Medical Services Authority, the American Red Cross, and the
American Heart Association to develop and adopt policies
and procedures relative to the placement and use of
automated external defibrillators in state-owned and leased
buildings and ensure that training is consistent with
specified requirements.
Suggested amendments
CALA has proposed the following two amendments related to
the DNR provision (page 3, lines 21-25 of the June 12
amended version):
1.Additional language is needed to explicitly authorize
AED-trained RCFE personnel to withhold the use of an AED
notwithstanding any California law to the contrary with
respect to the honoring of DNR orders.
2.Provide an opt-out or waiver of AED use for patients who
have not completed an advance health care directive or
DNR order.
The author has agreed to take amendments to reach
clarification on these two points.
Pending amendments in Judiciary Committee
Facility-wide liability. The author intends to work with
the Judiciary Committee to further address the issue of
liability exemption in the bill, allowing for facility-wide
protection. It is the author's intent to achieve an
agreement on amendments that provide for liability
exemption while retaining requirements for adequate
training of staff and oversight of implementation by RCFEs.
Amendments in this area will be deferred to the Judiciary
Committee.
Issues for consideration for the Committee
The Committee may wish to consider the following issues
that have arisen in discussions with the author and
stakeholders on this measure:
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1.Details on implementation and need for regulations.
The author and Committee, with the input of stakeholders,
may wish to consider amendments that will assist in the
definition of implementation, such as providing that the
list of those patients who opt-out of AED use be posted
in the facility or perhaps packaged with the actual AED,
allowing for easier reference. An additional provision
may also govern how DNR or advance directives that
include instructions that either permit or preclude the
use of an AED can be translated into a separate file for
easier reference and use by staff.
The process of presenting opt-out forms to residents
(e.g. at the time of signing an admission agreement) and
the regularity of updating them (e.g. on an annual or
biennial basis) can also be considered for further
development in the bill. RCFEs currently maintain and
execute DNRs, therefore it may be worthy to consider a
like and parallel system to present, process, maintain,
update, and make known to staff the directive of a
patient in the use of AEDs.
2.Changing effective date of mandate.
Currently in the bill, the mandate takes effect in
January 1, 2005, one year after enactment. The author
may wish to adjust this or institute time periods for
phases of implementation in order to address the concern
that facilities will not have ample time to revise RCFE
policies and procedures in accordance with the act.
3.Using broader definition of "advance health care
directive."
DSS has suggested and the author may consider an
amendment to use the broader term of "advance health care
directive," which as a legal term, generally includes
DNRs, requests to forego certain measures, living wills,
and durable power of attorney. The following amendment
will achieve this (starting at page 3, line 21):
"(2) If a resident executes an advance health care
directive, including, but not limited to, a request to
forego resuscitative measures, an advance directive, or a
do-not-resuscitate order?"
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PRIOR ACTIONS
Assembly Floor: 53 - 22 Pass
Assembly Appropriations: 19 - 2 Do Pass
Assembly Human Services: 5 - 0 Do Pass As Amended
POSITIONS
Support: California Senior Legislature (Sponsor)
American Heart Association
American Red Cross of California
California Medical Association
California Professional Firefighters
Congress of California Seniors
Emergency Medical Services Administrator's
Association
of California
Federation of Retired Union Members of
Santa Clara and San Benito Counties
Medtronic Physio-Control
Three Individuals
Oppose: California Association of Homes and Services for
the Aging
California Assisted Living Association
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