BILL ANALYSIS
AB 1647
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1647 (Hayashi) - As Amended: April 7, 2010
As Proposed to Be Amended
SUBJECT : ATHLETICS: SCHOOLS: LIABILITY FOR AUTOMATED EXTERNAL
DEFIBRILLATORS (AEDs)
KEY ISSUE : SHOULD A SCHOOL DISTRICT THAT IS REQUIRED TO ACQUIRE
AND MAKE AVAILABLE AN AUTOMATED EXTERNAL DEFIBRILLATOR (AED)
DURING SCHOOL-SPONSORED ATHLETIC ACTIVITIES HAVE THE SAME
CONDITIONAL IMMUNITY FROM CIVIL LIABILITY THAT IS GRANTED TO
OTHER ENTITIES UNDER EXISTING LAW?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, the Catastrophic Athletic Injury
Prevention Act of 2010, would, among other things, establish
automated external defibrillator (AED) requirements and
liability standards for schools offering sports programs, set
return-to-play guidelines for athletes who suffer a concussion,
and provide title protection for athletic trainers. Sponsored
by the California Athletic Trainers Association, the measure is
generally intended to help protect school athletes from death
and serious injuries caused by concussions, sudden cardiac
arrest, or heat illness. Of greatest concern to this Committee
are provisions pertaining to immunity from liability associated
with use of automated external defibrillators-a subject
previously considered by this Committee several times.
In order to avoid creating any unintentional double standard of
AED-related liability that would apply only to schools, the
author has proposed to amend the bill to make clear that a
school district that is required to acquire and make available
an AED during school-sponsored athletic activities shall have
the same conditional immunity from civil liability that is
already granted to other entities under existing law.
Furthermore, the proposed amendments clarify that the same
standards that now apply for all persons who render emergency
care using an AED will apply to employees of a school district
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who render emergency care using an AED at school athletic
events, as provided. Therefore, as proposed to be amended, this
bill does not change in any substantive way the conditional
immunity from civil liability that is currently granted to
persons and entities that acquire or use AEDs under existing
law. This bill was previously passed by the Business &
Professions Committee on a 9-0 vote, has numerous Republican and
Democratic co-authors, has no known opposition, and is supported
by the American Red Cross and dozens of individual athletic
trainers and parents of children engaged in school athletic
activities.
SUMMARY : Establishes automated external defibrillator (AED)
requirements and liability standards for schools offering sports
programs, sets return-to-play guidelines for athletes who suffer
a concussion, and establishes a title act for athletic trainers,
among other things. Specifically, this bill :
1)Commencing July 1, 2014, requires a school district, if it
elects to offer any interscholastic athletic programs, to
comply with all of the following provisions:
a) Requires the governing board of the school district to
acquire an AED for pupils, instructors, spectators, and
other individuals in attendance at extracurricular athletic
competitions under the jurisdiction of, or sponsored or
controlled by, the district or the authorities of any
school of the district;
b) Requires the governing board of the school district that
an AED is available to trained personnel during all
athletic activities under the jurisdiction of, or sponsored
or controlled by, the district or the authorities of any
school of the district;
c) Provides that any high school athlete suspected of
sustaining a concussion or head injury in a
school-sponsored athletic activity shall be immediately
removed from the activity and not be permitted to return to
the activity until he or she is evaluated by a licensed
physician and surgeon, osteopathic physician and surgeon,
or athletic trainer (AT) trained in the management of
concussions. Further providers that if the athlete is
evaluated by a licensed physician and surgeon or an
osteopathic physician and surgeon, that athlete shall not
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be permitted to return to the activity until he or she
receives written clearance to return to the activity from
that licensed physician and surgeon or osteopathic
physician and surgeon;
d) Requires the governing board of the school district to
ensure that there is a written emergency action plan
available that describes the procedures to be followed in
the event of any emergency that occurs in connection with
an athletic activity.
2)Provides that, commencing July 1, 2014, the following apply:
a) In order to ensure public safety, a school district that
acquires an AED is not liable for any civil damages
resulting from any acts or omissions in the rendering of
the emergency care under subdivision (b) of Section 1714.21
of the Civil Code, if that school district has complied
with subdivision (b) of Section 1797.196 of the Health and
Safety Code.
b) An employee of a school district, who in good faith
renders emergency care or treatment by the use of an AED at
the scene of an emergency, is not liable for any civil
damages resulting from any acts or omissions in rendering
the emergency care. This protection does not apply in any
case of personal injury or wrongful death that results from
the gross negligence or willful or wanton misconduct of an
employee of a school district who renders emergency care or
treatment by the use of an AED.
3)Prohibits a person from holding himself or herself out to be
an athletic trainer (AT) unless the person has done any of the
following:
a) Graduated from a college or university after completing
an athletic training education program accredited by the
Commission on Accreditation of Athletic Training Education,
or its predecessors or successors;
b) Completed requirements for certification by the Board of
Certification, Inc., prior to January 1, 2004; or,
c) Been certified by the Board of Certification.
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4)Restricts an AT's athletic training activities to those
activities authorized pursuant to protocols developed for that
AT by a physician and surgeon licensed by the Medical Board of
California, or an osteopathic physician and surgeon licensed
by the Osteopathic Medical Board of California.
5)Declares an unfair business practice, as specified, for any
person to use the title of "athletic trainer" or "certified
athletic trainer" or any other term, such as "licensed,"
"registered," or "ATC," that implies or suggests that the
person is certified as an AT, if the person does not meet the
requirements above and engages in AT activities, as specified.
6)Requires the State Department of Education to adopt a
heat-acclimatization program established by the National
Athletic Trainers' Association or other similarly recognized
organization, and make this program available to school
districts through its Internet Web site or other means.
7)Makes legislative findings and declarations about deaths and
injuries sustained by student athletes in California.
EXISTING LAW :
1)Provides that any person who, in good faith and not for
compensation, renders emergency care or treatment by the use
of an AED at the scene of an emergency is not liable for any
civil damages resulting from any acts or omissions in
rendering the emergency care. (Civil Code Section
1714.21(b).)
2)Provides that a person or entity that acquires an AED for
emergency use is not liable for any civil damages resulting
from any acts or omissions in the rendering of the emergency
care by use of an AED, if that person or entity has complied
with subdivision (b) of Section 1797.196 of the Health and
Safety Code. (Civil Code Section 1714.21(d).)
3)Provides that the above protections do not apply in the case
of personal injury or wrongful death that results from the
gross negligence or willful or wanton misconduct of the person
who renders emergency care or treatment by the use of an AED.
(Civil Code Section 1714.21(f).)
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4)Provides that, in order to ensure public safety, any person or
entity that acquires an AED is not liable for any civil
damages resulting from any acts or omissions in the rendering
of the emergency care under subdivision (b) of Section 1714.21
of the Civil Code, if that person or entity does all of the
following:
a) Complies with all regulations governing the placement of
an AED.
b) Ensures all of the following:
i) That the AED is maintained and regularly tested
according to the operation and maintenance guidelines set
forth by the manufacturer, the American Heart
Association, and the American Red Cross, and according to
any applicable rules and regulations set forth by the
governmental authority under the federal Food and Drug
Administration and any other applicable state and federal
authority.
ii) That the AED is checked for readiness after each use
and at least once every 30 days if the AED has not been
used in the preceding 30 days, and that records of these
checks are maintained.
iii) That 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 to the local EMS agency.
iv) For every AED unit acquired up to five units, no
less than one employee per AED unit shall complete a
training course in cardiopulmonary resuscitation and AED
use that complies with the regulations adopted by the
Emergency Medical Service Authority and the standards of
the American Heart Association or the American Red Cross.
After the first five AED units are acquired, for each
additional five AED units acquired, one employee shall be
trained beginning with the first AED unit acquired.
Acquirers of AED units shall have trained employees who
should be available to respond to an emergency that may
involve the use of an AED unit during normal operating
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hours.
v) That a written plan describes the procedures to be
followed in the event of an emergency that may involve
the use of an AED, to ensure compliance with these
requirements. Requires the written plan to include, at
minimum, immediate notification of 911 and trained office
personnel at the start of AED procedures.
c) Requires that when an AED is placed in a building, the
building owner shall ensure that tenants annually receive a
brochure, approved as to content and style by the American
Heart Association or American Red Cross, which describes
the proper use of an AED, and also ensure that similar
information is posted next to any installed AED.
d) Requires that when an AED is placed in a building, no
less than once a year, the building owner shall notify the
tenants as to the location of AED units in the building.
e) Requires that if the AED is placed in a public or
private K-12 school, the principal shall ensure that the
school administrators and staff annually receive a
brochure, approved as to contents and style by the American
Heart Association or the American Red Cross, describing the
proper use of an AED, and that similar information is
posted next to every AED. Further requires the principal,
at least annually, to notify school employees as to the
location of all AED units on the campus, and to designate
the trained employees who shall be available to respond to
an emergency that may involve the use of an AED during
periods of classroom instruction and during any
school-sponsored activity occurring on school grounds.
(Health and Safety Code Section 1797.196(b).)
5)Pursuant to the Business and Professions Code, provides for
the regulation of various professions and vocations, including
those of athlete agents.
6)Grants the State Department of Education certain authority
over interscholastic athletics, including the authority to
state that the policies of school districts, of associations
or consortia of school districts, and of the California
Interscholastic Federation, concerning interscholastic
athletics, are in compliance with both state and federal law.
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(Education Code Sections 33350 to 33354.)
7)Authorizes school districts to provide specified medical
services in connection with athletic events that are under the
jurisdiction of, or sponsored or controlled by, school
districts. These services include medical or hospital
insurance for pupils injured while participating in athletic
activities, and ambulance service for pupils, instructors,
spectators, and other individuals in attendance at athletic
activities. (Education Code Sections 49470 to 49474.)
COMMENTS : This non-controversial bill, the Catastrophic
Athletic Injury Prevention Act of 2010, would, among other
things, establish automated external defibrillator (AED)
requirements and liability standards for schools offering sports
programs, set return-to-play guidelines for athletes who suffer
a concussion, and establish a title act for athletic trainers.
This bill is sponsored by the California Athletic Trainers
Association (CATA), which states it represents 2,200 members of
the athletic training profession who are health care
professionals that specialize in the provision of physical
medicine and rehabilitation services. In support of the bill,
CATA writes:
Brain injury, heat illness and sudden cardiac arrest
are just a few of the serious conditions suffered by
young athletes on the playing field, and athletic
trainers are educated to manage such catastrophic
injuries. More than just stereotypical ankle tapers,
athletic trainers are physical medicine specialists
who provide prevention, recognition, clinical
assessment, treatment, rehabilitation and recondition
of such injuries and illnesses sustained during
activity.
Currently, only 42% of high schools nationwide have
access to athletic training services. California is
one of only three states without a system of checks
and balances to regulate the athletic training
profession, meaning anyone ban label himself or
herself an athletic trainer without holding the proper
credentials.
Limited Immunity from Civil Liability Associated with Use of
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AEDs . This bill passed the Business & Professions Committee by
a 9-0 vote and was subsequently double-referred to the Judiciary
Committee. Of greatest concern to this Committee are the
provisions contained in Section 4 of the bill, pertaining to
immunity from liability associated with use of automated
external defibrillators-a topic previously considered by this
Committee several times.
Background on AEDs . An AED is a medical device which is used to
administer an electric shock through the chest wall to the heart
after someone suffers cardiac arrest. Built-in computers assess
the patient's heart rhythm, determine whether the person is in
cardiac arrest, and signal whether to administer the shock.
Audible cues guide the user through the process. Portable AEDs
are available upon a prescription from a medical authority.
Their cost generally ranges from $1,500 to $3,000, and are
becoming more widely offered for sale in retail stores.
According to the American Heart Association (AHA), AEDs contain
microcomputers to accurately identify sudden cardiac arrests and
make extensive use of audible prompting and signals to provide
operators with clear and concise instruction, making their use
uncomplicated, intuitive, and nearly foolproof. Safeguards are
built in to protect both operator and victim and to ensure that
the AED will only deliver a shock if, in fact, the device
affirmatively determines that a victim is in sudden cardiac
arrest. Further, the device does not allow for manual
overrides, in the event a panicked operator tries to administer
the shock even when the device finds that the victim is not in
cardiac arrest.
Also according to AHA, cardiac arrest is a life-or-death
situation, and the patient has very little chance of survival
without defibrillation. However, the window of opportunity for
saving lives through defibrillation is very small, being only
10-13 minutes even if CPR is administered correctly. In cases
of sudden cardiac arrest, CPR is merely a maintenance tool, and
defibrillation must take place to "shock" the patient's heart
into a proper working rhythm. Thus, the public would be better
served, and lives could be saved, if schools, businesses, and
public facilities across California are better encouraged to
have AEDs available in emergency situations.
No known lawsuits against users of AEDs . A search of the Lexis
Nexis database continues to reveal no news articles, or
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successful federal or state cases, suing for liability against
users of AEDs. Committee staff research indicates that these
devices are virtually "fail-safe" and easy enough for a child to
use (although this is not generally recommended). No negative
reaction has been found regarding the use of the AEDs, or any
suit filed against someone using the AEDs. This is most likely
due to the design programming that will not allow the user to
administer an electric shock needlessly, therefore creating
little chance of user-error in administering the AED.
For these reasons, because the Legislature has expressed its
support for greater availability and use of AEDs in schools,
particularly during student athletic activities, it is only
appropriate to clarify that school districts and their employees
should have the same conditional immunity from liability for
acquisition and use of AEDs that other entities and persons
already enjoy under existing law.
Author's Amendments Apply Existing Conditional Immunity for AED
Use to Schools . This Committee has assisted in fashioning
several measures over the years to help spur greater
availability of AEDs by providing specified immunity to persons
or entities that acquire and use AEDs. For example, in 2002,
the Committee approved AB 2041 (Ch. 718 of 2002) by then-
Assemblyman Vargas which, among other things, broadened the
current immunity for the use or purchase of an AED and
substantially relaxed the requirement that building owners and
others who acquire AEDs ensure that expected AED users complete
an accepted training course as a condition of immunizing the
building owners from liability arising from use of the AED. In
2006, the Committee approved AB 2083 (Ch. 85 of 2006), also by
Asm. Vargas, that extended by five years the sunset date on
provisions that grant conditional immunity from civil damages to
persons or entities that acquire AEDs and comply with
maintenance, testing, and training requirements. The broad
immunity from civil liability that now exists represents past
collaboration between the Legislature, the Consumer Attorneys of
California, the American Heart Association, and other
stakeholders.
As proposed to be amended, this bill does not change in any
substantive way the conditional immunity from civil liability
that is currently granted to persons and entities that acquire
or use AEDs under existing Civil Code Section 1714.21 or Health
and Safety Code Section 1797.196. In order to avoid creating
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any unintentional double standard of AED-related liability that
would apply only to schools, the author has proposed to amend
the bill to make clear that a school district that is required
to acquire and make available an AED during school-sponsored
athletic activities will have the same conditional immunity from
civil liability that is already granted to other entities under
existing law. Furthermore, the proposed amendments clarify that
the same standards that now apply for all persons who render
emergency care using an AED will apply to employees of a school
district who render emergency care using an AED at school
athletic events, as provided.
ARGUMENTS IN SUPPORT : A number of certified athletic trainers
have written in support of the bill, in many cases expressing
the view that this bill would potentially save the lives of
young student athletes by ensuring the availability of AEDs at
school athletic events. They contend:
Roughly one sudden cardiac death occurs every three days
nationwide in organized youth sports, resulting in the
tragic loss of 3,000 to 7,000 school-aged children. In
young athletes, sudden cardiac arrest (SCA) almost always
occurs without warning (i.e. no prior symptoms) and is
extremely difficult to predict. AB 1637 would ensure that
an automated external defibrillator (AED) is available and
readily accessible during all athletic practices and games.
According to the American Heart Association, rapid
application of an AED can increase SCA survival rates up to
70%. Although mandated in many other public places, AEDs
are not yet required in schools. (T)he one-time cost of
approximately $1500 for an AED is nothing compared to the
preventable death of a single child.
Pending Related Legislation . AB 1646 (Hayashi) of 2010 would
expand existing coaching requirements to include training that
includes a basic understanding of the signs, symptoms, and
appropriate emergency action steps regarding potentially
catastrophic injuries, including, but not limited to, head and
neck injuries, concussions, second impact syndrome, asthma
attacks, heatstroke, and sudden cardiac arrest. This bill was
passed by the Assembly Education Committee, and is now in the
Appropriations Committee.
SB 1281 (Padilla) of 2010 would repeal Section 1797.196 of the
Health and Safety Code, which establishes minimum training and
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other standards for the use of AEDs, and requires persons or
entities that acquire the AEDs to comply with maintenance,
testing, and training requirements as a condition for immunity
from civil damages resulting from any acts or omissions in the
rendering of emergency care using an AED. This bill is
currently in Senate Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
California Athletic Trainers' Association (CATA) (sponsor)
California Brain Injury Association
American Red Cross, California Chapters
Over 150 letters from individuals, including athletic trainers
and parents of children active in sports
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334