BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 939 (Melendez)
As Amended June 18, 2013
Hearing Date: July 2, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Pupil and School Personnel Health: Automatic External
Defibrillators
DESCRIPTION
This bill would provide qualified immunity for a school district
and its employees who use, attempt to use, or do not use an
automatic external defibrillator (AED) to render emergency care
or treatment. This bill would also state that it is the intent
of the Legislature to encourage all public schools to acquire
and maintain at least one AED and allow schools to solicit and
receive nonstate funds for that purpose. This bill would
encourage schools that decide to acquire and maintain an AED, or
to continue to use and maintain an existing AED, to comply with
certain requirements relating to the placement of the AED and
ensuring its availability for use at all school-sponsored
athletic events, as defined.
BACKGROUND
According the American College of Emergency Physicians (ACEP)
website, if a person suffers a sudden cardiac arrest, chances of
survival decrease by 7 to 10 percent for each minute that passes
without defibrillation. A victim's best chance for survival is
when there is revival within four minutes. Small portable
medical devices called automatic external defibrillators (AEDs)
can be 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. Moreover, audible cues guide the user
(more)
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through the process. However, AEDs are less successful when the
victim has been in cardiac arrest for more than a few minutes,
especially if cardiopulmonary resuscitation (CPR) is not also
provided.
In 1999, the Legislature passed and the Governor signed SB 911
(Figueroa, Ch. 163, Stats. 1999) which created a qualified
immunity from civil liability for trained persons who use AEDs
in good faith and without compensation when rendering emergency
care or treatment at the scene of an emergency. The bill also
provided for immunity from liability for persons or entities
that acquire an AED, provided that the person or entity has
complied with specified maintenance, training, and notice
requirements. The immunity does not apply in cases of personal
injury or wrongful death resulting from gross negligence or
willful or wanton misconduct. AB 2041 (Vargas, Ch. 718, Stats.
2002) expanded this immunity by relaxing the requirement that
building owners must ensure that expected AED users complete
training as a condition of immunity. AB 2041 was enacted with a
five-year sunset which was extended another five years to
January 1, 2013 by AB 2083 (Vargas, Ch. 85, Stats. 2006). Most
recently, in the last legislative session, SB 1436 (Lowenthal,
Ch. 71, Stats. 2012) was enacted to delete the sunset, thereby
extending the operation of those provisions indefinitely.
Additionally, in 2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005)
amended the above provisions to specify that, if an AED is
placed in a public or private K-12 school, the school principal
must annually provide school administrators and staff with a
brochure describing the proper use of an AED, post similar
information next to the AED, and designate trained employees to
be available to respond to an emergency that may involve the use
of an AED during normal operating hours.
Also of particular relevance to this bill, in 2011, another
bill, SB 63 (Price, 2011) would have enacted into law provisions
that were similar to this bill, except that SB 63 explicitly
required certain actions on the part of any school that decided
to acquire and maintain an AED. That bill was held on suspense
in the Senate Appropriations Committee.
This bill would state the intent of the Legislature to encourage
all public schools acquire and maintain at least one AED,
encourage schools that decide to acquire and maintain an AED to
comply with certain requirements, and also provide a qualified
immunity from liability for a school district and its employees,
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as specified.
CHANGES TO EXISTING LAW
Existing law provides for immunity from liability for any person
who, in good faith and not for compensation, renders emergency
care using an AED at the scene of an emergency. (Civ. Code Sec.
1714.21(b).)
Existing law 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. (Civ. Code Sec. 1714.21(b).)
Existing law 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 when the AED is used to
render emergency care provided that the person or entity
complied with the maintenance, training, and notice requirements
specified in the Health and Safety Code and described in more
detail below. (Civ. Code Sec. 1714.21(d).)
Existing law provides that the qualified immunity described
above does 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 uses the AED to render
emergency care. (Civ. Code Sec. 1714.21(f).)
Existing law provides that 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 if that
person or entity does all of the following:
Complies with all regulations governing the placement of an
AED.
Ensures all of the following:
o the AED is maintained and regularly tested, as
specified;
o the AED is checked for readiness after each use and at
least once every 30 days if it has not been used in the
preceding 30 days. Records of these checks must be
maintained;
o that any person who renders emergency care using the AED
activates the emergency medical services system as soon as
possible, and reports any use of the AED to the local EMS
agency;
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o for every AED unit acquired up to five units, at least
one employee per unit must complete a training course in
cardiopulmonary resuscitation and AED use. After the first
five AED units are acquired, for each additional five units
acquired, one employee shall be trained beginning with the
first unit acquired. Acquirers of AEDs shall have trained
employees who should be available to respond to an
emergency that may involve the use of an AED during normal
operating hours;
o there is a written plan describing the procedures to be
followed in the event of an emergency that may involve
using an AED; and
o if an AED is placed in a public or private K-12 school,
the principal must annually provide school administrators
and staff with a brochure describing the proper use of an
AED, post similar information next to the AED, and
designate trained employees to be available to respond to
an emergency that may involve the use of an AED during
normal operating hours.
Any person or entity that supplies an AED shall:
o notify an agent of the local EMS agency of the
existence, location, and type of AED acquired; and
o provide the AED acquirer with information regarding the
AED's use, installation, operation, training, and
maintenance. (Health & Saf. Code Sec. 1797.196(b).)
This bill would provide that if an employee of a school district
who uses, attempts to use, or does not use an AED consistent
with the requirements of this bill, as specified, to render
emergency care or treatment, the school district is not liable
for civil damages resulting from the act or omission in
rendering the emergency care or treatment, including the use or
nonuse of an AED, except as specified. This bill would provide
that an employee of a school district who complies with the
existing law provisions described above in rendering emergency
care or treatment through the use, attempted use, or nonuse of
an AED at the scene of an emergency shall not be liable for any
civil damages resulting from any act or omission in rendering
the emergency care or treatment.
This bill would provide that the above immunity does not apply
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, or maliciously fails to use an AED
to render emergency care or treatment.
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This bill would delete an existing provision of the Health and
Safety Code relating to the duties of a principal if an AED is
placed in a public or private K-12 school, and instead require
that the principal:
notify, at least annually, all school employees of the
location of all AED units on the campus; and
designate only school employees who volunteer to be designated
as AED volunteers to respond to an emergency that may involve
the use of an AED.
This bill would specify that it does not alter existing
requirements with respect to the use of AEDs by persons
rendering emergency care.
This bill would provide that it is the intent of the Legislature
to encourage all public schools to acquire and maintain at least
one AED.
This bill would permit public schools to solicit and receive
nonstate funds to acquire and maintain an AED. Those funds
shall only be used to acquire and maintain an AED and to provide
training to school employees regarding AED use.
This bill would provide that if a public school decides to
acquire and maintain an AED, or continue to use and maintain an
existing AED, it may, and is encouraged to:
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; and
have the AED available for use at a school-sponsored athletic
event. The AED placed in a centralized location on campus may
serve as the AED for the purpose of this provision.
This bill would define a "school sponsored athletic event" for
these purposes.
COMMENT
1. Stated need for the bill
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
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be confident that their children are 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. [M]any of these 300,000 deaths could
have been saved with the use of an AED. (American Heart
Association - Circulation http://circ.ahajournals.org.)
This bill would state the intent of the Legislature to
encourage all public schools to acquire and maintain at least
one AED. The bill would authorize a public school to solicit
and receive non-state funds to acquire and maintain an AED. If
a public school decides to acquire and maintain an AED, or
continue to use and maintain an existing AED, the bill would
authorize and encourage the school to comply with specified
requirements. The bill would provide that the school district
and employees of the school district are not liable for civil
damages resulting from certain uses, attempted uses, or
non-uses of an AED, except as provided. The bill would delete
the requirement on a public or private K-12 school principal
to ensure that certain school employees annually receive
approved brochures describing the proper use of an AED and
that similar information be posted next to every AED. The
bill would recast the remaining requirements, identified
above, on a public or private K-12 school principal relating
to AEDs in the Education Code but instead require that a
principle principal designate only school employees who
volunteer to be designated as AED volunteers to respond to an
emergency that may involve the use of an AED.
2. Existing law ambiguities in relation to public school
As noted in the Background, there have been numerous bills over
the last decade encouraging and regulating the use and
maintenance of AEDs by person and entities. Those provisions
also provide for qualified immunities for persons rendering
emergency care by way of an AED unit and entities that make
those units available. Also, in 2005, AB 254 (Nakanishi, Ch.
111, Stats. 2005) was enacted to specify the notification and
staffing requirements that must be met when a public or private
K-12 school voluntarily installs an AED on school grounds and
seeks to allow immunity from civil liability resulting from any
acts or omissions in using the AED's use to render emergency
care.
Nonetheless, the author contends that "[e]xisting law does not
clearly protect school districts from any civil damages if an
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AED is used in good faith, on campuses, making schools reluctant
to obtain an AED because of the threat of unaffordable lawsuits.
The law is ambiguous when it comes to who is protected from
civil liabilities if an AED is used. Current law states, '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.' The ambiguity of 'entity' leaves schools reluctant to
obtain an AED in fear of not being protected. Existing law also
does not authorize and encourage schools to solicit and receive
non-state funds to acquire and maintain an AED."
In support of this bill, the Los Angeles County Office of
Education writes that "[w]hile children are at school they
should be protected from this [sudden cardiac arrest] epidemic,
but schools are reluctant to acquire an AED due to existing law.
Existing law does not clearly protect school districts from any
civil damages if an AED is used in good faith on campuses,
making schools reluctant to obtain an AED because of the threat
of unaffordable lawsuits." Similarly, the Association of
California School Administrators (ASCA) writes that "[m]ost
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 ability. A number of school
sites in the state have been offered AEDs free of charge, only
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 within this same protection."
This bill seeks to remedy any ambiguity and reduce the
hesitation of schools to obtain AEDs by enacting specific
language encouraging all public schools to acquire and maintain
at least one AED and providing both the schools and the
employees who render the emergency care qualified immunity from
liability, as specified.
In a joint letter of support, the Emergency Medical Services
Administrators Association and the Emergency Medical Directors
Association of California detail how children can and have
become victims of sudden cardiac arrest, listing at least 10
instances in the state between 2001 and April of this year,
wherein children between the ages of 14 and 17 died or suffered
severe brain damage as a result of severe cardiac arrest where
there was no AED unit available. They also note six instances
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in which the lives of five students (ages 13 through 18) and one
faculty member (aged 34 years old) were saved through the use of
an AED unit while suffering from cardiac arrest.
3. This bill appears consistent with prior efforts to
encourage emergency, life-saving, assistance by way of
qualified immunities for trained Good Samaritans
This bill would attempt to provide the clarity that proponents
of this bill feel is missing under existing law by specifically
providing that an employee of a school district who complies
with certain existing law provisions in rendering emergency care
or treatment through the use, attempted use, or nonuse of an AED
at the scene of an emergency shall not be liable for any civil
damages resulting from any act or omission in rendering the
emergency care or treatment. The bill would also provide that
if an employee of a school district who uses, attempts to use,
or does not use an AED consistent with the requirements of this
bill, as specified, to render emergency care or treatment, the
school district is not liable for civil damages resulting from
the 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, or maliciously fails to use an AED to
render emergency care or treatment.
As a general rule, California law provides that everyone is
responsible, not only for the result of his or her willful acts,
but also for an injury occasioned to another by his or her want
of ordinary care or skill in the management of his or her
property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. (Civ. Code Sec. 1714(a).) Although immunity
provisions are rarely preferable because they, by their nature,
prevent an injured party from seeking a particular type of
recovery, the Legislature has in limited scenarios approved
measured immunity from liability (as opposed to blanket
immunities) to promote other policy goals that could benefit the
public.
Proponents of this bill write in strong support of the fact that
AEDs can save lives-and in many cases, they can save the lives
of children, as noted in Comment 2 above. In support of the
bill, the Contra Costa County of Board of Supervisors writes
that:
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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 a timely initiation of a "chain of
survival," including cardio-pulmonary resuscitation (CPR) and
the use of an AED. If CPR along with AED is administered
within 4 to 8 minutes from the time a victim collapses, the
chances of survival are greatly improved. While it is not
always physical possible for EMS first-responders to be at the
side of a student, faculty or visitor on a school campus
within 4 to 8 minutes, having an AED on campus and available
to trained non-medical personnel prior to EMS arrival will
help save lives and prevent brain damages and disability.
Thus, in light of the general disfavoring of immunity
provisions, the question necessarily becomes whether the
proposed immunity provisions would appropriately balance the
public policy of saving lives where there is a reasonable method
of providing assistance against the ability for an injured
person to seek recourse for injuries sustained as a result of
the administration of an AED. Staff notes that this type of
qualified immunity is not without precedent under California
law. Most obviously, and as acknowledged above, existing law
already provides for qualified immunity in the context of AEDs,
whereby this state encourages the provision of emergency care
with a reduced risk of civil liability, in order to avoid
preventable deaths. (See Civ. Code Sec. 1714.21.)
Moreover, earlier this year, this Committee heard and approved
SB 669 (Huff), which sought to promote a wider use of
epinephrine auto injectors (commonly referred to as epi-pens) to
persons suffering anaphylactic shock due to an allergic
reaction, which can quickly lead to death without treatment. To
do so, that bill would have, among other things, provided
immunity to any trained lay person who administers, in good
faith, and without compensation, epinephrine auto injectors to
another person in emergency situations. As amended in this
Committee, that bill now mirrors the AED statutes to make the
limited liability inapplicable where there was gross negligence
or willful or wanton misconduct by the person rendering the
emergency care. Similarly, AB 635 (Ammiano) was recently passed
out of this Committee to expand the provision of naloxone, an
opioid antagonist, to persons believed to be experiencing a drug
overdose. AB 635 would grant a qualified immunity to licensed
health care providers who issues such prescriptions or standing
orders, as well as to unlicensed, but trained, individuals who
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administer the naloxone, in good faith, and without
compensation, in emergencies to a person they believe are
experience a drug overdose.
Staff notes that this bill, consistent with existing AED
statutes and the bill described above, prohibits the application
of any immunity to a school district 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,
or maliciously fails to use an AED to render emergency care or
treatment. While this bill does not explicitly contain the
training provisions of the current AED statutes or the recent
bills approved by this Committee, it does so by cross
referencing existing statutes that require the person to be
trained. Of note, those provisions likewise limit the immunity
where there is any gross negligence or willful or wanton
misconduct on the part of the person who renders emergency care
or treatment by the use of an AED. (See Civ. Code Sec.
1714.21(b), (f).) Furthermore, insofar as proper maintenance
has been a critical component to prior AED bills approved by
this Committee, this bill only would apply to schools that
decide to acquire and maintain an AED system.
As such, the qualified immunity provisions above appear to help
foster the use of AED units in public schools to help reduce the
number of unnecessary deaths and other severe effects of sudden
cardiac arrest in a reasonable and measured fashion, contingent
upon the volunteering employee receiving training, proper
maintenance of the AED unit by the school, and absence of gross
negligence or willful or wanton misconduct.
4. Opposition's concerns
The California Federation of Teachers write in opposition that
they are "particularly concerned that educators are being asked
to provide health treatment that is far beyond their scope of
education, training and general job responsibilities." They
also state a fear that employees will be pressured into
volunteering.
In response, the author argues that, "[a]ccording to the Centers
for Disease Control, there are approximately 1,000 deaths per
day that are caused by sudden cardiac arrest. Having twenty
percent of America's population spending at least part of their
day on a school property it is important to ensure they are safe
from this preventable death. AB 939 is that effort to help
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ensure the public's safety. AB 939 encourages all schools to
have and maintain an automatic external defibrillator. This
legislation imposes no requirements or pressures to any
individuals to using an AED. Its intent is to allow just one
more lifesaving option to whoever may be trying to save a life."
5. Amendments taken in Senate Committee on Education
The author agreed in the Senate Committee on Education to take
the following amendment to add "employees" to a provision
authorizing and encouraging schools to 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:
Author's amendment :
On page 2, line 15, after "faculty" add "employees"
The author also agreed in that committee to take the following
amendments to delete the bill's weaker requirements for
principals and reinstate the existing requirements in the Health
and Safety Code that school principals take specific action when
an AED is placed in a school, while amending that provision to
reflect that the principal shall only designate trained only
employees who volunteer to be designated as an AED volunteer.
The amendments would also state the intent of the Legislature
that the employees not be required to pay for the cost of any
training that may be required on the proper use of an AED.
Author's amendments :
1. On page 3, strike lines 25-31 inclusive
2. On page 5, between lines 6-7, insert: "(5) When an 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 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. The principal shall, at least
annually, notify school employees as to the location of all
AED units on the campus. The principal shall designate the
trained only employees who volunteer to be designated as
AED volunteers who shall be available to respond to an
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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. It is the intent of the Legislature that
school employees shall not be required to pay for the cost
of any training that may be required on the proper use of
an AED."
Support : Association of California School Administrators;
California Association of Joint Powers Authorities; California
Medical Association; California State Council of Emergency
Nurses Association; California State Parent Teacher Association;
Contra Costa County Board of Supervisors; Emergency Medical
Services Administrators Association; Emergency Medical Directors
Association of California, Inc.; Los Angeles County Office of
Education; Paramedics Plus; one individual
Opposition : California Federation of Teachers
HISTORY
Source : Author
Related Pending Legislation :
AB 635 (Ammiano), See Comment 3. This bill is currently on the
Senate Floor.
SB 669 (Huff), See Comment 3. This bill is set for hearing in
the Assembly Committee on Business, Professions & Community
Development on July 2, 2013.
Prior Legislation :
SB 1436 (Lowenthal, Ch. 71, Stats. 2012), See Background.
SB 63 (Price, 2011), See Background.
AB 2083 (Vargas, Ch. 85, Stats. 2006), See Background.
AB 254 (Nakanishi, Ch. 111, Stats. 2005), See Background.
AB 2041 (Vargas, Ch. 718, Stats. 2002), See Background.
SB 911 (Figueroa, Ch. 163 Stats. 1999), See Background.
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Prior Vote :
Senate Education Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Education Committee (Ayes 5, Noes 0)
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