BILL ANALYSIS �
AB 939
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 939 (Melendez) - As Amended: April 29, 2013
As Proposed to be Amended
SUBJECT : STUDENT and SCHOOL EMPLOYEE SAFETY: AED ENCOURAGEMENT
KEY ISSUES :
1)SHOULD THE LEGISLATURE Encourage all public schools to acquire
and maintain an automatic external defibrillator (AED) TO
PROTECT STUDENT AND SCHOOL EMPLOYEE SAFETY?
2)SHOULD SEVERAL CLARIFYING AMENDMENTS BE MADE BY THE COMMITTEE,
AS SUGGESTED IN THE ANLAYSIS, TO ADDRESS REASONABLE DRAFTING
CONCERNS EXPRESSED BY VARIOUS ORGANIZATIONS REPRESENTING
SCHOOL EMPLOYEES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill follows what has now become a long tradition by the
California Legislature of providing immunity from civil damages
to entities and their personnel who act as Good Samaritans to
try to save other's lives, under reasonable parameters. In this
instance the measure seeks to encourage all public schools to
acquire and maintain these life-saving devices. An AED is a
medical device 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. According to the author, the majority of
California's children spend around 14,000 hours away from their
parents and under the supervision of the state while they
receive an education at California's K-12 public schools. And
sadly, some young people have been dying during school
activities, especially athletic events, due to the absence of
AEDs - often due to school district concerns about potential
AB 939
Page 2
liability.
The bill is intended to provide certainty to school districts
and their employees that if an AED is used during a school
related activity they will normally be protected from a possible
lawsuit if they have the courage to try to assist others in
distress through the use of an AED. Further, this bill permits
a school to receive non-state funds to remove any financial
barriers the school may face in acquiring and maintaining an AED
and training their employees in the use of an AED. This bill
recently was unanimously approved by the Assembly Education
Committee. While the measure currently faces opposition from
several labor organizations, it is believed and hoped -- given
the laudable objective of this legislation to save lives -- that
the concerns outlined by those organizations will potentially be
addressed by the suggested clarifying Committee amendments
described at the conclusion of this analysis.
SUMMARY : Encourages all public schools to acquire and maintain
an automatic external defibrillator (AED) and provides immunity
from civil damages to the school district resulting from civil
damages resulting from the use of an AED. Specifically, this
bill , among other things:
1)States the intent of the Legislature to encourage all public
schools to acquire and maintain at least one automatic
external defibrillator (AED).
2)Permits a public school to solicit and receive non-state funds
to acquire and maintain an AED, and provides that these funds
shall only be used to acquire and maintain an AED and to
provide training to school employees regarding use of an AED.
3)Provides that if a public school decides to acquire and
maintain an AED, or continue to use and maintain an existing
AED, the school is encouraged to do all of the following: (1)
Place an AED in a centralized location on campus for the
purpose of preventing deaths resulting from sudden cardiac
arrests among pupils, faculty, and visitors; (2) Have the AED
available for use at all school-sponsored athletic events, and
states that the AED placed in a centralized location on campus
may serve as the AED that is available for use at
school-sponsored athletic events that occur at the school
campus; (3) Maintain appropriate records demonstrating the AED
is properly checked for readiness and is properly maintained;
AB 939
Page 3
(4) Prepare a written medical emergency preparedness plan that
describes the procedures to be followed in the event of a
medical emergency that may involve the use of an AED; (5)
Require all school employees expected to administer an AED in
an emergency to complete a training course in cardiopulmonary
resuscitation and AED use that complies with the regulations
adopted by the Emergency Medical Services Authority and the
standards of the American Heart Association or the American
Red Cross.
4)Provides that if an employee of a school district uses,
attempts to use, or does not use an AED consistent with the
requirements of this section, to render emergency care or
treatment, the school district is not liable for civil damages
resulting from any act or omission in rendering the emergency
care or treatment, including the use or nonuse of an AED,
except in the case of personal injury or wrongful death that
results from gross negligence or willful or wanton misconduct
on the part of the person who uses, attempts to use, or
maliciously fails to use an AED to render emergency care or
treatment.
5)Defines a "school-sponsored athletic event" to mean a
school-sponsored extracurricular athletic activity which
includes practice for and competition in an interscholastic
athletic sporting event held at any location, including a
nonpublic school facility.
6)Provides that when an AED is placed in a public or private
K-12 school, the principal shall do all of the following: (1)
Ensure that all school administrators and staff annually
receive a brochure, approved as to content and style by the
American Heart Association or the American Red Cross, that
describes the proper use of an AED. The principal shall also
ensure that similar information is posted next to every AED;
(2) Notify, at least annually, all school employees of the
location of all AED units on the campus; and (3) Designate the
trained employees who shall be available to respond to an
emergency that may involve the use of an AED during normal
operating hours. As used in this paragraph, "normal operating
hours" means during the hours of classroom instruction and any
school-sponsored activity occurring on school grounds.
EXISTING LAW :
AB 939
Page 4
1)Provides immunity from civil liability resulting from the acts
or omissions in the rendering of emergency care through the
use of an AED so long as specified conditions are met.
(Health and Safety Code Section 1797.196.)
2)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).)
COMMENTS : This bill recently was unanimously approved by the
Assembly Education Committee. While the measure currently faces
opposition from several labor organizations, it is believed and
hoped -- given the laudable objective of this legislation to
save lives, especially those of young people -- that the
concerns outlined by those organizations regarding the current
version of the bill will potentially be addressed by the
suggested clarifying Committee amendments which will be
described at the conclusion of this analysis (see Suggested
Committee Amendments" section below.)
Background : According to the author, the majority of
California's children spend around 14,000 hours away from their
parents and under the supervision of the state while they
receive an education at California's K-12 public schools. While
under this supervision, parents should be confident that their
children's health is protected.
According to the American Heart Association, sudden cardiac
arrest kills over 300,000 people a year and is the leading cause
of death in the United States. Medical experts opine that the
key to survival is timely initiation of a "chain of survival",
including CPR and the use of an AED. Trained non-medical
personnel can use these simplified electronic machines to treat
a person in cardiac arrest. The AED device guides the user
through the process by audible or visual prompts without
requiring any discretion or judgment. The American Heart
Association notes that at least 20,000 lives could be saved
annually by prompt use of AEDs. Ultimately, with broad
deployment of AEDs among trained responders, as many as 50,000
deaths due to sudden cardiac arrest - including school children
and school personnel -- could be prevented each year.
AB 939
Page 5
The Legislature's Continuing Efforts to Encourage the
Proliferation of AEDs to Save Lives : This bill follows what has
now become a long tradition by the California Legislature (see
"Prior Related Legislation Section" below) of providing immunity
from civil damages to entities and their personnel who act as
Good Samaritans to try to save other's lives, under reasonable
parameters. In this instance the measure seeks to encourage all
public schools to acquire and maintain these life-saving
devices. The bill is intended to provide certainty to school
districts and their employees if an AED is used on campus that
they will normally be protected from a possible lawsuit if they
have the courage to try to assist others in distress through the
use of an AED. Further, this bill permits a school to receive
non-state funds to remove any financial barriers the school may
face in acquiring and maintaining an AED and training their
employees in the use of an AED.
AEDs In General : An AED is a medical device 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 general cost is between $1,500 and $2,000 according to the
American Heart Association (AHA).
Apparent Lack Of Risk of Accidental Misuse, According To The
American Heart Association : According to the 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.
AED Availability : According to staff research, the move in the
last few years to increase the number of AEDs available to first
responder units such as police and fire, as well as in
high-traffic areas, such as airports and casinos, has been met
AB 939
Page 6
with overwhelming community support. A survey of worldwide news
sources indicates that AEDs have been responsible for many saved
lives after cardiac arrest incidents and that AEDs are in such
high demand that schools and local communities have taken to
outside fundraising to purchase the equipment.
Across the United States there has been a major push for wide
spread access to AEDs, especially where children are concerned.
A high school student in New York State had a heart attack after
competing in a wrestling match. A bystander trained in both CPR
and AED use came to his aid and attempted CPR but did not get a
response. She then called for the AED, which are mandated by
New York Law in every school, and was able to bring the young
man back.
The AEDs have been used successfully in such places as
California's Ontario Airport, and Connecticut's Foxwoods Casino.
According to a Foxwoods' security director, the casino has 15
AEDs on the property and has used them more than 40 times in the
last four years, and more than 300 security personnel and
emergency medical technicians at the casino are trained to use
the machines. In the Minneapolis Airport, passengers waiting
for flights can receive basic training on how to use the machine
in about 5 minutes. The passengers are trained by firefighters
at stations in the airport and the program is funded by
Medtronic which makes AEDs. The goal of all these programs is
to make AEDs as familiar as fire extinguishers and as readily
available to the general public. The FDA has even approved of
their over-the-counter purchase without a prescription.
No Known Lawsuits Against Users of AEDs : A search of the Lexis
Nexis database continues to reveal no news articles, or
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. The only
possible negative comment was that, hypothetically speaking,
someone with a living will/Do Not Resuscitate (DNR) order may be
in public and suffer a cardiac episode. A bystander, unable to
know the person has a DNR, or what his/her specific medical
AB 939
Page 7
wishes are, may administer the AED against his/her wishes.
ARGUMENTS IN SUPPORT : The Emergency Medical Services
Administrators Association writes in support of the measure,
noting that in many instances throughout California, it is not
physically possible for EMS first-responders to be at the side
of a student, faculty member, or visitor on the school campus
within 4 to 8 minutes of collapse -- the time typically needed
to save lives. They note that most people may think a young
person could not possibly be a cardiac arrest victim.
Unfortunately, this very situation occurs more often than many
think. For example, the organization notes of the following
recent events involving young people or school employees whose
lives were actually saved by the availability and proximity of
AED's:
Male, aged 13, December 14, 2010, Rincon middle school,
Escondido, cardiac arrest while attending school, bystander
CPR, school use of AED - outcome: survived.
Junior high school student, December 1, 2010, Lexington
junior high school, Cypress, cardiac arrest while attending
school, AED brought to the scene by Cypress police
officer-- outcome, survived.
Male, age 34, coach/faculty, July 2007, Marina high
school, Huntington Beach, cardiac arrest while coaching
baseball, bystander CPR and school AED used - outcome:
survived.
Sadly, the organization also highlighted a painfully long list
of young people and school employees who passed away from
cardiac arrest without the availability and proximity of AED's.
The Association of California School Administrators also writes
in support, noting:
Most school districts are self-insured. As a result,
the self-insurance companies have advised school
districts not to purchase or accept AEDs for fear of
liability. A number of school sites in the state have
been offered AEDs free of charge, only to be advised
not to accept the device. Currently, individuals
receive Good Samaritan protection from the use of an
AED; however, it has been unclear whether school
districts are covered with this same protection.
AB 939
Page 8
School sites are one of the busiest public buildings
in a community. They are utilized by students and
adults during the day, evening, and throughout the
entire year. Tragically, over 300,000 people die every
year from sudden cardiac death and many deaths occur
on school sites. Many heart diseases are undetected
until an autopsy. Even participating in school P.E.
has resulted in blunt trauma and heat stroke causing a
heart to go out of rhythm and sudden death. No one
wants to believe an otherwise healthy child could
collapse at school and die, but it happens and it
isn't uncommon.
AEDs have evolved to a point of being extremely simple
to use. They are located at airports, on airplanes,
shopping malls, grocery stores, gas stations, athletic
stadiums, concert halls, etc. Why shouldn't they be on
every school site where our most precious resource,
our children, spend a significant amount of time each
day?
ARGUMENTS IN OPPOSITION : As noted above, several labor
organizations, including CSEA, AFSCME, CFT, and Laborers' Local
777, have written the Committee in opposition similarly
expressing three principal concerns about the current version of
the legislation:
1) An Apparent Lack Of Adequate Liability Protection For
School Personnel If They Choose To Be Good Samaritans: As
noted in the letter by the CSEA, the labor organizations
are concerned that the current version of the bill
"provides liability protection for school districts, but
does not provide the same liability protection for school
employees." They accurately note in this regard that the
prior introductory version of the bill expressly provided
that an employee of the school district who rendered
emergency care would not be liable for civil damages
resulting from their use of an AED, whereas the current
version of the bill continues to expressly protect (on page
3, lines 16-22) school districts for any AED use or nonuse
by their personnel. This concern thus appears reasonable,
and it can and should be addressed in the measure to bring
appropriate comfort to these organizations and their
employees if they choose to be Good Samaritans they will be
protected from liability. As will be noted below in a
AB 939
Page 9
discussion of possible committee amendments to the bill,
another current provision in law noted above at page 2,
namely Health and Safety Code Section 1797.196, already
makes clear that all Good Samaritans who provide urgency
care through the use of an AED who meet reasonable
specified conditions are already immune from liability.
Because the current version of the bill does not culminate
this protection, it would indeed be available to school
personnel should they become Good Samaritans even though
the current version of the bill does not reflect this fact.
However to bring the most clarity to this point, and
hopefully to alleviate this current concern of these labor
organizations, the analysis will recommend a committee
amendment in this regard below.
2) The Concern That The Measure Currently Allows Districts
To Designate Specific Employees They Expect To Administer
An AED, And Mandate Those Designated Employees To Go
Through Specific Training: The labor organizations who are
currently opposed to the measure also express concern about
the provision in the bill that requires a school principal
to "designate the trained employees who shall be available
to respond to an emergency that may involve the use of an
AED." (In the bill page 4, lines 3-7.) CSEA and the other
organizations note that "we believe it must be clear that
employees are allowed to volunteer for this medical
function and not just be designated to do so by school
administrators." Interestingly and understandably, this
concerns appears to have arisen by the fact that this
provision was not in the current version of this
legislation. As it turns out, however, this particular
provision actually already appears to be current law
(currently contained in Section 1797.196 of the Health and
Safety Code). It was merely relocated in the current
version of the bill in an understandable effort to bring
together into one logical area all of the related AED
provisions pertaining to schools. Thus the labor
organizations' concerns in this regard appear to be with
current law, and happily they also appear to be easily
potentially addressed in this measure by another suggested
committee amendment that would modify existing law simply
to clarify that school principals may only designate school
personnel who volunteer to receive such AED training to be
voluntarily designated to assist in such emergencies.
AB 939
Page 10
3) The Concern That The Measure Currently Appears To
Require The Employee Designated By The Principal To Respond
To Emergencies That May Involve The Use Of An AED To Pay
For Any Training Associated With Using An AED: Current
law, contained in the health and safety code provision
noted above, is ambiguous as to who should pay for any AED
training needed for those school personnel designated as
first responders in medical emergencies. This concern also
could be addressed by a committee amendment, noted below
that makes clear in current law that any such helpful
training shall not be paid for by school personnel. It is
also worth noting in this regard however, that AED's have
become so simple to use, as noted above (now containing
audible cues that easily guide any user, including
children, through the process), that such training is often
considered a necessary.
Suggested Committee Amendments :
Committee Amendment 1: To make crystal clear and address the
concern of the opponents that school personnel as well as the
school district is immune from liability when the personnel are
Good Samaritans, the Committee may wish to amend the bill as
follows :
On page 3, line 22, after the period insert:
However no employee of a school district that
complies with Civil Code section 1714.21and
renders emergency care through the use of an AED
at the scene of an emergency shall not be liable
for any civil damages resulting from any acts or
omissions in rendering the emergency care.
Incidentally, it should be noted in this regard that the fact
that Civil Code section 1714.21 excludes health and safety
professionals who are compensated for their emergency services
manifestly does not apply to this situation, where a school
employee is not compensated for his or her emergency services
skills, but rather for his or her educational or other skills.
Committee Amendment 2: To make crystal clear and address the
concerns of the opponents, in order that the measure makes clear
school principals may not require specific employees to
administer an AED and pay for any training associated with
AB 939
Page 11
volunteering to administer AEDs, the Committee may wish to amend
the bill so existing law is modified as follows :
On page 4, delete lines 3 through 7 and insert:
Offer any school personnel who may wish to
volunteer to be designated as school AED
volunteers open to assisting in the event of an
emergency that may involve the use of an AED.
PRIOR RELATED LEGISLATION : SB 127 (Calderon) of 2010, Ch. 500
of 2010, clarified that Section 104113 of the Health and Safety
Code requires all health studios to ensure that a trained staff
member proficient in the use of an AED is available during
staffed operating hours.
AB 142 (Hayashi) was introduced in 2009. That measure sought to
establish requirements for 24 hour clubs that allow access
during unstaffed hours. That bill was held in the Senate
Judiciary committee. .
AB 1312 (Swanson) was also introduced in 2009. That measure
sought to extend the sunset in the existing law governing health
studios, and to extend the requirements to golf courses and
amusement parks. That measure was vetoed by the Governor. .
AB 2130 (Hayashi) of 2008, would have exempted health studios
that do not maintain personnel on the premises from the
requirements of maintaining personnel trained in AED at all
times on site. The bill would have required, as a condition of
that exemption, that such studios have a telephone on premises;
as well as signs that (a) warn of the potential health and
safety risks of exercising alone, (b) provide instructions in
CPR and AED use, and (c) indicate the location of all AEDs on
the premises. The bill died in the Senate Judiciary Committee.
AB 2083 (Vargas) of 2006, Ch. 85 of 2006, extends the sunset
date for another five years on the operative provisions of
existing law which provide immunity from civil damages for
persons or entities that acquire automatic external
defibrillators (AEDs) and comply with maintenance, testing, and
training requirements.
AB 1507 (Pavley) of 2005, Ch. 431 of 2005, for a five-year
AB 939
Page 12
period beginning July 7, 2007, requires a health studio, as
defined, to acquire, maintain, and train personnel in the use of
automatic external defibrillators, as specified.
AB 2041 (Vargas) of 2002, Ch. 718 of 2002, broadened the current
immunity for the use or purchase of an AED in an effort to
encourage their purchase and use, repealed the CPR and AED use
training requirement for a Good Samaritan user of an AED in
rendering emergency care, and substantially relaxed the
requirement that building owners and others who acquire AEDs
ensure that expected AED users complete an accepted CPR and AED
course as a condition of immunizing the building owners from
liability arising from the use of the AED.
SB 911 (Figueroa) of 1999, Ch. 163 of 1999, provided for
qualified immunity to "Good Samaritans" who voluntarily apply
AEDs at the scene of an emergency to try to save heart victim's
lives, so long as those persons had training in the use of an
AED.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association (CMA)
California State Parent Teachers Association
Emergency Nurses Association
Emergency Medical Services Administrators Association
Paramedics Plus
Association of California School Administrators
Opposition
California School Employees Association (CSEAA)
American Federation of State, County and Municipal Employees
(AFSCME)
California Federation of Teachers (CFT)
Laborers' Local 777
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334