Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED), to notify an agent of the local emergency medical services agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from any acts or omissions in the rendering of emergency care, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the preceding 30 days. Existing law also provides that a person or entity that provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain occupied structures that are not owned or operated by any local government entity and are constructed on or after January 1, 2017, to have an AED on the premises. The bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that acquires an AED for emergency care from liability for civil damages resulting from any acts or omissions in the rendering of emergency care if certain requirements have been met. The bill would make these provisions operative on January 1, 2017.

Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED), to notify an agent of the local emergency medical services agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from any acts or omissions in the rendering of emergency care, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the preceding 30 days. Existing law also provides that a person or entity that provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain occupied structures that are not owned or operated by any local government entity and are constructed on or after January 1, 2017, to have an AED on the premises. The bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that acquires an AED for emergency care from liability for civil damages resulting from any acts or omissions in the rendering of emergency care if certain requirements have been met. The bill would make these provisions operative on January 1, 2017.

Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED), to notify an agent of the local emergency medical services agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, any acts or omissions in the rendering of emergency care, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the preceding 30 days. Existing law also provides that a person or entity that provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain occupied structures that are not owned or operated by any local government entity and are constructed on or after January 1, 2017, to have an AED on the premises. The bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that supplies acquires an AED for emergency care from liability for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, as specified. any acts or omissions in the rendering of emergency care if certain requirements have been met. The bill would make these provisions operative on January 1, 2017.

Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED), to notify an agent of the local emergency medical services agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the preceding 30 days. Existing law also provides that a person or entity that provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain occupied structures that are not owned or operated by any local government entity and are constructed on or after January 1, 2016, 1, 2017, to have an AED on the premises. This The bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that supplies an AED from liability for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, as specified. The bill would make these provisions operative on January 1, 2017.

Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED) (AED), to notify an agent of the local EMS emergency medical services agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the proceeding preceding 30 days. Existing law also provides that a person or entity who that provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain structures that are not owned or operated by the state or any local government entity and are constructed on or after January 1, 2016, to have an AED on the premises. This bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that supplies an AED from liability for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, as specified.

Existing law requires any person or entity that supplies an AED, which means an automated or automatic external defibrillator (AED) to notify an agent of the local EMS agency of the existence, location, and type of AED acquired and to provide the acquirer of the AED with all information governing the use, installation, operation, training, and maintenance of the AED. Existing law provides that any person or entity that acquires an AED is not liable for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, except as provided, if certain conditions are met, including, but not limited to, that the AED is checked for readiness after each use and at least every 30 days if the AED has not been used in the proceeding 30 days. Existing law also provides that a person or entity who provides AED training to a person who renders emergency care is not liable for any civil damages, as specified.

This bill would require certain structures that are not owned or operated by the state or any local government entity and are constructed on or after January 1, 2016, to have an AED on the premises. This bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that supplies an AED from liability for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, as specified.

 UNFINISHED BUSINESS  

Bill No: SB 287

Author: Hueso (D)

Amended: 7/16/15

Vote: 21

SENATE HEALTH COMMITTEE: 9-0, 4/15/15

AYES: Hernandez, Nguyen, Hall, Mitchell, Monning, Nielsen, Pan, Roth, Wolk

SENATE JUDICIARY COMMITTEE: 4-2, 5/12/15

AYES: Jackson, Hertzberg, Leno, Monning

NOES: Moorlach, Anderson

NO VOTE RECORDED: Wieckowski

SENATE FLOOR: 28-3, 5/26/15

AYES: Allen, Beall, Block, Cannella, De León, Galgiani, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Nguyen, Pan, Pavley, Roth, Runner, Stone, Wolk

NOES: Anderson, Moorlach, Morrell

NO VOTE RECORDED: Bates, Berryhill, Fuller, Gaines, Hall, Nielsen, Vidak, Wieckowski

ASSEMBLY FLOOR: 75-1, 8/27/15 - See last page for vote

SUBJECT: Automated external defibrillators

SOURCE: Author

DIGEST: This bill requires certain buildings with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2017, to have an automated external defibrillator (AED) on the premises.

Assembly Amendments 1) delay the operative date of this bill to January 1, 2017; 2) clarify that the provisions of the bill apply only to occupied buildings and not to structures that are vacant or under construction or renovation; 3) remove storage buildings and high-hazard buildings, and exempt licensed health facilities, as specified, from the requirements of this bill; 4) delete the state-owned or -operated exemption from the bill; and 5) conform the qualifications for immunity from civil liability to those qualifications in existing law.

ANALYSIS:

Existing law:

1. Classifies, in the California Code of Regulations, all buildings and structures as to use and occupancy, and requires a room or space that is intended to be occupied at different times for different purposes to comply with all of the requirements that are applicable to each of the purposes for which the room or space will be occupied.

2. Provides, in the Civil Code, immunity from civil liability for the acts or omissions of 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.

3. Provides, in the Civil Code, immunity from civil liability for any acts or omissions in the rendering of emergency care by the use of an AED for a person or entity that acquires an AED for emergency use, if that person or entity has complied with certain specified requirements in the Health and Safety Code.

4. Provides, in the Health and Safety Code, immunity from civil liability for a person or entity that acquires an AED for any acts or omissions in the rendering of emergency care if that person or entity meets various requirements, including:

1. Ensures that the AED is checked for readiness after each use and at least once every 30 days;

2. Ensures that any person who renders emergency care or treatment by using an AED activates the emergency medical services (EMS) system as soon as possible and reports the use to the licensed physician and to the local EMS agency;

3. Ensures that for every AED unit acquired up to five units, no less than one employee per AED unit, and one employee for every additional five units, complete a training course in cardiopulmonary resuscitation (CPR) and AED use, as specified.

4. Ensure that tenants in a building where an AED is placed receive a brochure describing the proper use of an AED and are notified once a year of the location of AEDs.

This bill:

1. Requires the following occupied structures that are constructed on or after January 1, 2017, to have an AED on the premises subject to the existing requirements listed in the Health and Safety Code related to training and maintenance:

1. Assembly buildings, as defined, with an occupancy of greater than 300;

2. Business buildings, educational buildings, factory buildings, institutional buildings, and mercantile buildings, as each of these buildings are defined, and if they have occupancies of 200 or more; and

3. Residential buildings with occupancy of 200 or more, excluding single-family and multi-family dwelling units.

2. Provides immunity from civil liability for a person or entity that acquires an AED pursuant to this bill, as specified in existing provisions of law that condition immunity on meeting certain requirements related to training and maintenance of the AEDs.

3. Excludes structures owned or operated by any local government entity, storage buildings, as defined, high-hazard buildings, as defined, and health facilities, as specified, from the provisions of this bill.

Comments

1. Author’s statement. According to the author, “an estimated 350,000 individuals in the United States will suffer this year from a Sudden Cardiac Arrest (SCA). For every minute an individual goes without receiving defibrillation from an AED, an individual’s chances of surviving from SCA go down by 10 percent. Brain death and permanent death start to occur 4-6 minutes after someone experiences cardiac arrest. The use of an AED in a timely manner can increase an individual’s probability of survival by 70 percent. By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be located within 4 minutes of an AED, substantially increasing their chance of survival. In my district, the City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals.”

2. According to the American Heart Association (AHA), an AED is a lightweight, portable device that delivers an electric shock through the chest to the heart. The shock can stop an irregular rhythm and allow a normal rhythm to resume in a heart in SCA. SCA is an abrupt loss of heart function. If it is not treated within minutes, it quickly leads to death. The AED has a built-in computer which assesses the patient’s heart rhythm, determines whether the person is in cardiac arrest, and signals whether to administer the shock. Audible cues guide the user through the process.

According to the AHA, each year in the U.S., there are approximately 359,400 EMS-assessed cardiac arrests outside of a hospital setting and on average, less than 10% of victims survive. Early defibrillation, along with CPR, is the only way to restore the victim’s heart rhythm to normal in a lot of cases of cardiac arrest. For every minute that passes without CPR and defibrillation, however, the chances of survival decrease by 7 to 10%. The 2013 Update of AHA’s Heart Disease and Stroke Statistics shows that 23% of out-of-hospital cardiac arrests are “shockable” arrhythmias, or those that respond to a shock from an AED, making AEDs in public places highly valuable. Yet, AHA states there are not enough AEDs and persons trained in using them and performing CPR to provide this life-saving treatment, resulting in lost opportunities to save more lives. Communities with comprehensive AED programs that include CPR and AED training for rescuers have achieved survival rates of nearly 40% for cardiac arrest victims. AHA states on its Web site that it supports placing AEDs in targeted public areas such as sports arenas, gated communities, office complexes, doctor’s offices, and shopping malls. When AEDs are placed in the community or a business or facility, AHA strongly encourages that they be part of a defibrillation program which includes notification to the local EMS office when an AED is acquired, that a licensed physician or medical authority provides medical oversight to ensure quality control, and that persons responsible for using the AED are trained in CPR and how to use an AED.

3. California Code of Regulations. In California’s Building Standards Code, Part 2, Chapter 3, buildings and structures are classified with respect to use and occupancy in each of the groups as follows:

1. Defines Assembly Group A occupancy as including, among others, the use of a building or structure, or portion thereof, for the gathering of persons for purposes such as civic, social, or religious functions; recreation, food, or drink consumption or motion picture and television production sound stages, approved production facilities and production locations.

2. Defines Business Group B occupancy as including, among others, the use of a building or structure, or portion thereof, for office, professional, or service-type transactions, including storage of records and accounts.

3. Defines Educational Group E occupancy as including, among others, the use of a building or structure, or portion thereof, by more than six persons at any one time for educational purposes through the 12th grade, except a residence used as a home school for the children who normally reside at the residence.

4. Defines Factory Industrial Group F occupancy as including, among others, the use of a building or structure, or portion thereof, for assembling, disassembling, fabricating, finishing, manufacturing, packaging, repair or processing operations that are not classified as a Group H hazardous or Group S storage occupancy.

5. Defines High-hazard Group H occupancy as including, among others, the use of a building or structure, or portion thereof, that involves the manufacturing processing, generation or storage of materials that constitute a physical or health hazard in quantities in excess of those allowed in control areas, as further defined.

6. Defines Institutional Group I occupancy as including, among others, the use of a building or structure, or portion thereof, in which care or supervision is provided to persons who are or are not capable of self-preservation without physical assistance or in which persons are detained for penal or correctional purposes or in which the liberty of the occupants is restricted.

7. Defines Mercantile Group M occupancy as including, among others, the use of a building or structure, or portion thereof, for the display and sale of merchandise and involves stocks of goods, wares or merchandise incidental to such purposes and accessible to the public.

8. Defines Residential Group R occupancy as including, among others, the use of a building or structure, or portion thereof, for sleeping purposes when not classified as Group I occupancy or when not regulated by the California Residential Code.

9. Defines Storage Group S occupancy as including, among others, the use of a building or structure, or portion thereof, for storage that is not classified as a hazardous occupancy.

2. Verdugo v. Target. On August 31, 2008, Mary Ann Verdugo was shopping at a large Target store in Pico Rivera with her mother and brother when she suffered a SCA and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store.

The Verdugo family filed a lawsuit alleging Target breached the duty of care that it owed to its business customers, including Mary Ann, by failing to have an AED for use in a medical emergency. After moving the case from the Los Angeles County Superior Court to the federal district court, the federal district court dismissed the case after concluding Target had no duty to acquire and make available an AED for the use of its customers. The plaintiffs appealed to the Ninth Circuit Court of Appeals, at which point the panel turned to the California Supreme Court “as better positioned to address [this] major question of California tort law than this court.” The California Supreme Court construed the Ninth Circuit Court of Appeals’ question as “whether, under California law, the common law duty of reasonable care that defendant Target Corporation owes to its business customers includes an obligation to obtain and make available on its business premises an [AED] for use in a medical emergency.” On June 23, 2014, the California Supreme Court answered the question by ruling that, “[U]nder California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” On October 28, 2014, the Ninth Circuit Court of Appeals, following the guidance of the California Supreme Court, affirmed the federal district court’s ruling that Target had no common law duty to provide an AED in its stores.

Judge Pregerson, a panelist of the Ninth Circuit Court of Appeals, in a separate opinion, wrote:

“The California Supreme Court has spoken. This decision holds that ‘under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.’ And so, in this diversity case, that holding controls. But that decision troubles me. Therefore, I write separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency. Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life-saving AEDs available.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, likely minor annual state costs, related to the purchase, installation, and maintenance of AEDs and training on their use. These costs would be from the General Fund and various special funds and would depend on the number of applicable state buildings constructed each year. At the state level, this bill mainly impacts the Department of General Services (DGS), the Department of Corrections and Rehabilitation, the University of California, and the California State University. According to DGS, the cost of an AED unit is about $2,000. In addition, DGS provides training on AED operations through a contract costing $5,000 annually. Pending legislation would reduce training requirements, however.

DGS notes that best practice is to have one AED on each floor, or if a building is single-story, to have an AED within one-minute walk of where any emergency could occur within the building. While meeting these practices would increase costs, this bill does not contain such requirements.

SUPPORT: (Verified 8/28/15)

American Heart Association

American Medical Response

American Stroke Association

California Business Properties Association

California Professional Firefighters

California State Firefighters Association

City of Rancho Mirage

Madaffer Enterprises

Paramedics Plus

San Diego City Firefighters Local 145

San Diego Project Heart Beat

San Ysidro Health Center

Sudden Cardiac Arrest Foundation

OPPOSITION: (Verified 8/28/15)

None received

ARGUMENTS IN SUPPORT: The California Professional Firefighters supports this bill, stating that when an AED is used to treat cardiac arrest, it serves as a life-saving device given that cardiac arrest is a sudden condition that can be fatal if not treated within a few minutes. Paramedics Plus, Alameda’s 911 EMS ambulance provider, also supports this bill, stating that AEDs are inexpensive, easy to use, and save lives. Paramedics Plus states that having access to an AED in a timely manner can increase an individual’s probability of a heart attack by as much as 70%. Paramedics Plus also suggests an amendment to this bill which would coordinate the location of each AED in 911 EMS dispatch centers. By identifying the location of AEDs, Paramedics Plus believes response times will be cut in emergencies thus saving even more lives. The Sudden Cardiac Arrest Foundation supports this bill by stating that by requiring the deployment of AEDs as part of an emergency response plan, there will be a more effective and efficient emergency response system in California commercial properties.

ASSEMBLY FLOOR: 75-1, 8/27/15

AYES: Achadjian, Alejo, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen

NO VOTE RECORDED: Burke, Frazier, Harper, Obernolte

Prepared by: Juan Reyes / HEALTH /

8/28/15 17:11:17

**** END ****

SENATE THIRD READING

STR Bill Id:SB 287

Author:(Hueso)

As Amended Ver:July 16, 2015

Majority vote

SENATE VOTE: 28-3

SUMMARY: Requires certain occupied buildings, with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2017, to have an automated external defibrillator (AED) on the premises. Specifically, this bill:

1. Requires the following structures, that are constructed on or after January 1, 2017, as defined in the California Building Standards Code, to have an AED on the premises subject to the existing requirements listed in the Health and Safety Code (HSC) relating to maintenance, training, and use:

   1. Assembly buildings, as defined, with an occupancy of greater than 300;

   2. Business buildings, educational buildings, factory buildings, institutional buildings, and mercantile buildings, as each of these buildings are defined, and if they have occupancies of 200 or more; and,

   3. Residential buildings, as defined, with occupancy of 200 or more, excluding single-family and multi-family dwelling units.

2. Exempts from civil liability a person or entity that acquires an AED for emergency care pursuant to these provisions, as specified, in existing provisions of existing law that condition immunity on meeting certain requirements related to maintenance, training, and use of an AED, as specified.

3. Excludes structures owned or operated by any local entity, licensed health facilities, and buildings that are vacant or under construction or renovation from the provisions of this bill.

FISCAL EFFECT: According to the Assembly Appropriations Committee, likely minor annual state costs, related to the purchase, installation, and maintenance of AEDs and training on their use. These costs would be from the General Fund and various special funds and would depend on the number of applicable state buildings constructed each year. At the state level, this bill would mainly impact the Department of General Services (DGS), the Department of Corrections and Rehabilitation, the University of California, and the California State University. According to DGS, the cost of an AED unit is about $2,000. In addition, DGS provides training on AED operations through a contract costing $5,000 annually. Pending legislation would reduce training requirements, however.

DGS notes that best practice is to have one AED on each floor, or if a building is single-story, to have an AED within one-minute walk of where any emergency could occur within the building. While meeting these practices would increase costs, this bill does not contain such requirements.

COMMENTS:

Purpose. This bill is sponsored by the author. According to the author, "An estimated 350,000 individuals in the United States will suffer this year from a Sudden Cardiac Arrest (SCA). For every minute an individual goes without receiving defibrillation from an AED, an individual's chances of surviving from SCA go down by 10%. Brain death and permanent death start to occur 4-6 minutes after someone experiences cardiac arrest. The use of an AED in a timely manner can increase an individual's probability of survival by 70%. By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be within 4 minutes of an AED, substantially increasing their chance of survival. In my district, the City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals."

AEDs. An AED is a lightweight, battery-operated portable device that checks the heart rhythm and can deliver an electric shock through the chest to the heart to try to restore a normal heart rhythm. AEDs are used to treat SCA. An SCA is a condition in which the heart suddenly and unexpectedly stops beating, which stops blood flowing to the brain and other vital organs. According to the American Heart Association (AHA) most SCAs result from ventricular fibrillation ("v-fib"). This is a rapid and unsynchronized heart rhythm starting in the heart's lower pumping chambers, or the ventricles, which is a type of arrhythmia. The heart must be defibrillated quickly, because a victim's chance of surviving drops by 10% for every minute a normal heartbeat is not restored. According to the National Heart, Lung, and Blood Institute of the National Institutes of Health (NHLBI), 95% of people who have SCA die from it within minutes.

A built-in computer in the AED checks a victim's heart rhythm through adhesive electrodes, and calculates whether defibrillation is needed. If defibrillation is needed, a recorded voice instructs the rescuer to press the shock button on the AED. This shock momentarily stuns the heart and stops all activity, giving the heart the chance to resume beating effectively. Instructions guide the user through the process, and the device prompts the user to let them know if and when they should send a shock to the heart. AEDs advise a shock only for ventricular fibrillation or another life-threatening condition relating to the heart. According to the NHLBI, "… learning how to use an AED and taking a CPR course are helpful. However, if trained personnel aren't available, untrained people can also use an AED to help save someone's life."

According to the AHA, AEDs are safe to use by anyone who's been trained to use them, and studies have shown that 90% of the time AEDs are able to detect a rhythm that should be defibrillated, and 95% of the time, AEDs are able to recommend not shocking when the computer shows defibrillation is not indicated. According to the NHLBI, AEDs are "… safe to use. There are no reports of AEDs harming bystanders or users. Also, there are no reports of AEDs delivering inappropriate shocks." According to the AHA, most AEDs are estimated to cost $1,500 to $2,000.

Building Classifications. The California Building Standards Code (CBSC) classifies buildings and structures by use and occupancy, and requires a room or space that is intended to be occupied at different times for different purposes to comply with all of the requirements that are applicable to each of the purposes for which the room or space will be occupied. This bill would require specified private and state structures, as defined in the CBSC, to have AEDs on premises. These structures include the following:

1. Assembly Group A buildings with an occupancy of greater than 300 used for the gathering of persons (e.g., theaters, banquet halls, restaurants, bars, libraries, museums).

2. Business Group B buildings with occupancy of 200 or more used for office, professional, or service-type transactions (e.g. banks, salons, professional services offices).

3. Educational Group E buildings with occupancy of 200 or more used by more than six persons at any one time for educational purposes through the 12th grade.

4. Factory Industrial Group F buildings with an occupancy of 200 or more used for assembling, fabricating, finishing, manufacturing, packaging, repair or processing operations.

5. Institutional Group I buildings with an occupancy of 200 or more in which care or supervision is provided to persons who are or are not capable of self-preservation without assistance or in which persons are detained (e.g. hospitals, jails, prisons, nursing homes).

6. Mercantile Group M buildings with occupancy of 200 or more used for the display and sale of merchandise (e.g. department stores, markets, retail stores).

7. Residential Group R buildings with an occupancy of 200 or more used for sleeping purposes when not regulated by the California Residential Code (e.g. hotels, assisted living facilities).

Other AED programs. In 2013, Oregon passed a law that required owners of a place of public assembly, defined as a single building that has 50,000 square feet or more of indoor floor space and where the public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation, or where business activities are conducted and at least 50 individuals congregate on a normal business day, to have on the premises at least one AED.

In 2008, the City of San Diego passed an ordinance, which this bill is modeled after, in part, requiring the placement of AEDs in all newly constructed buildings in the same occupancy groups with the same occupant loads as specified in this bill. This ordinance also required AEDs to be located in a place to optimally achieve a three minute response time to the person in need of emergency care, and placed other requirements on building owners relating to the maintenance, recordkeeping, training, and use of the AED, as specified. According to San Diego's Project Heart Beat, the city's Public Access Defibrillation/CPR Program, over 123 lives have been saved as a result of the program.

Analysis Prepared by: Eunie Linden / B. & P. / (916) 319-3301 FN: 0001442

Date of Hearing: August 19, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

SBPCA Bill Id:SB 287

Author:(Hueso) – As Amended Ver:July 16, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires specified new buildings to have an automated external defibrillator (AED) on the premises. Specifically this bill:

1. Requires the following buildings, except local government buildings and licensed health care facilities, constructed on or after January 1, 2017, to have an AED in compliance with existing statutory requirements for such devices:

   1. Assembly buildings, as defined by the California Building Standards Code (BSC), with occupancies of greater than 300.
      
      

   2. Business buildings, educational buildings, factory buildings, institutional buildings, and mercantile buildings, as each of these building types are also defined in the BSC, with occupancies of 200 or more.
      
      

   3. Residential buildings, as defined, with occupancy of 200 or more, excluding single-family and multi-family dwelling units.

2. Stipulates that an entity acquiring an AED pursuant to (1) shall not be liable for civil damages related to use of the AED.

FISCAL EFFECT:

Likely minor annual state costs, related to the purchase, installation, and maintenance of AEDs and training on their use. These costs would be from the General Fund and various special funds and would depend on the number of applicable state buildings constructed each year. At the state level, the bill would mainly impact the Department of General Services (DGS), the Department of Corrections and Rehabilitation, the University of California, and the California State University. According to DGS, the cost of an AED unit is about $2,000. In addition, DGS provides training on AED operations through a contract costing $5,000 annually. Pending legislation would reduce training requirements, however. (See Related Legislation.)

DGS notes that best practice is to have one AED on each floor, or if a building is single-story, to have an AED within one-minute walk of where any emergency could occur within the building. While meeting these practices would increase costs, this bill does not contain such requirements.

COMMENTS:

1. Background. An AED is a medical device that is used to administer an electric shock to a person who has suffered cardiac arrest. Built-in computers in an AED 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 of using the AED.

Legislation enacted in 1999 encouraged the installation and use of AEDs in commercial buildings by providing qualified immunity to commercial property owners who installed AEDs in their buildings. That legislation (SB 911, Figueroa) put in place a number of requirements for property owners who installed AEDs and Good Samaritans who use them in order to obtain qualified immunity for civil liability associated with the installation or use of the AED.

2. Purpose. This bill seeks to impose similar requirements on newly constructed private and public buildings with occupancy of 200 or more. Although state law provides extensive regulation of the installation of AEDs in business properties, the state Supreme Court has held that it was appropriate under these circumstances to leave to the Legislature the policy decision whether a business should be required to acquire and make available an AED for the protection of its patrons. By requiring the installation of AEDs on newly constructed buildings with an occupancy of 200 or more, and providing qualified immunity for the person who acquires an AED for installation on the premises, this bill seeks to increase the supply and availability of AEDs.

3. Related Legislation. SB 658 (Hill), pending in the Assembly, expands the immunity provisions in existing law for use of an AED and reflects current AED technology by removing, as a condition of immunity, the requirement that a person or entity acquiring AEDs comply with specified maintenance, training, and notice requirements. SB 658 requires that a person or entity acquiring an AED need only meet certain minimal maintenance and notice requirements, and repeals training requirements from existing law.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: July 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 287

Author:(Hueso) – As Amended Ver:July 8, 2015

As Proposed to be Amended

SENATE VOTE: 28-3

SUBJECT: Automated external defibrillators (AEDs)

KEY ISSUES:

1. SHOULD BUILDINGS constructed after january 1, 2017 WITH OCCUPANCY of 200 or more be required to Have An automated external defibrillator, or AED, installed on the premises?

2. Should a person who acquires an AED for installation in such a building be given qualified immunity for acquiring the AED?

SYNOPSIS

An automated external defibrillator, or AED, is a medical device that is used to administer an electric shock to the heart of a person who has suffered cardiac arrest through the person’s chest wall. Built-in computers in an AED 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 of using the AED. In 1999, in an effort to encourage the installation and use of AEDs in commercial buildings, the Legislature provided qualified immunity to commercial property owners who installed AEDs in their buildings. That legislation (SB 911 (Figueroa), Ch. 163, Stats. of 1999) put in place a number of requirements for property owners who installed AEDs and Good Samaritans who use them in order to obtain qualified immunity for civil liability associated with the installation or use of the AED. This bill seeks to impose similar requirements on newly constructed private and public buildings with occupancy of 200 or more. Although state law provides extensive regulation of the installation of AEDs in business properties, the California Supreme Court has held that it was appropriate under these circumstances to leave to the legislature the policy decision whether a business should be required to acquire and make available an AED for the protection of its patrons. By requiring the installation of AEDs on newly constructed buildings with an occupancy of 200 or more, and providing qualified immunity for the person who acquires an AED for installation on the premises, this bill seeks to increase the supply and availability of AEDs. This bill, which recently passed the Assembly Business and Professions Committee by a vote of 14-0, is supported by emergency medical care providers and, because of recent amendments, the California Business Property Owners Association. It has no opposition.

SUMMARY: Requires certain structures, whether owned or operated by the state or any local government entity, that are constructed on or after January 1, 2017 to have an AED on the premises and exempts a person or entity acquiring the AED from liability for civil damages resulting from certain use, attempted use, or nonuse of an AED. Specifically, this bill:

1. Requires various structures with an occupancy of 200 or more to have an automated external defibrillator (AED) on the premises, specifically the following:

1. Assembly Group A buildings (those used for the gathering of persons for purposes such as civic, social, or religious functions with an occupancy of greater than 300, such as banquet halls, auditoriums and theaters).

2. Business Group B buildings (those used for office, professional, or service-type transactions, including storage of records and accounts with an occupancy of 200 or more, such as banks, salons, professional services offices, some colleges).

3. Educational Group E buildings (schools) with an occupancy of 200 or more;

4. Factory Industrial Group F buildings (used for assembling, disassembling, fabricating, finishing, manufacturing, packaging, repair or processing) with an occupancy of 200 or more, including a building or structure, or portion thereof that are not classified as a Group H hazardous or Group S storage occupancy.

5. High-hazard Group H buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, that involves the manufacturing processing, generation or storage of materials that constitute a physical or health hazard in quantities in excess of those allowed in control areas, as further defined.

6. Institutional Group I buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, in which care or supervision is provided to persons who are or are not capable of self-preservation without physical assistance or in which persons are detained for penal or correctional purposes or in which the liberty of the occupants is restricted (e.g. custodial care facilities, hospitals, jails, prisons, nursing homes).

7. Mercantile Group M buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for the display and sale of merchandise and involving stocks of goods, wares or merchandise incidental to such purposes and accessible to the public (e.g. department stores, markets, retail stores).

8. Residential Group R buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for sleeping purposes when not classified as Group I occupancy or when not regulated by the California Residential Code (e.g. boarding houses, hotels, assisted living facilities, social rehabilitation facilities, group homes).

9. Storage Group S buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for storage that is not classified as a hazardous occupancy. The bill specifically exempts parking garages.

2. Provides qualified immunity from any civil damages to a person or entity that supplies an AED pursuant to this section.

3. Excludes single-family and multi-family dwelling units, parking garages, and structures owned or operated by the state or any local government entity from the above requirements.

4. Has delayed implementation, taking effect as of January 1, 2017.

EXISTING LAW:

1. 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 has complied with specified maintenance, training, and notice requirements of Health and Safety Code Section 1797.196. All statutory references are to the California Health and Safety Code, unless otherwise indicated. (Civil Code Sec. 1714.21(d).)

2. Provides that any person or entity responsible for the site where the AED is located, is not liable for any civil damages resulting from any acts or omissions by the person who uses the AED to render emergency care provided that the physician, person, or entity has complied with applicable requirements of Section 1797.196. (Civil Code Section 1714.21(e).)

3. Provides that the qualified immunities described above do not apply in the case of personal injury or wrongful death which results from the gross negligence or willful or wanton misconduct of the person who uses the AED to render emergency care. (Civil Code Section 1714.21(f).)

4. 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 complies with all regulations governing the placement of an AED and ensures each of the following:

1. 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;

2. 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, and records of these checks are maintained;

3. Any person who renders emergency care using the AED activates the emergency medical services (EMS) system as soon as possible, and reports any use of the AED to the local EMS agency;

4. For every AED unit acquired up to five units, at least one employee per unit must complete a training course in cardiopulmonary resuscitation (CPR) and AED use and after the first five AED units are acquired, for each additional five units acquired, one employee is 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; and

5. There is a written plan describing the procedures to be followed in the event of an emergency that may involve using an AED. (Section 1797.196(b).)

5. Requires the following, where applicable:

1. If the AED is placed in a building, building owners must annually provide tenants with a brochure describing the proper use of an AED, and also ensure that similar information is posted next to any installed AED;

2. If the AED is placed in a building, building owners must notify tenants as to the location of AED units in the building at least once a year; and

3. 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. (Section 1797.196(b).)

6. Provides that the qualified immunities do not apply in the case of personal injury or wrongful death which results from the gross negligence or willful or wanton misconduct of the person who uses the AED to render emergency care. (Section 1797.196(e).)

7. Requires that the person or entity supplying an AED must: (a) notify an agent of the local EMS agency of the existence, location, and type of AED acquired; and (b) provide the AED acquirer with information regarding the AED’s use, installation, operation, training, and maintenance. (Section 1797.196(c).)

8. Provides that nothing in the above sections (Health and Safety Code Section 1797.196 or Civil Code Section 1714.21) may be construed to require a building owner or a building manager to acquire and install an AED in any building. (Section 1797.196(f).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: An automated external defibrillator, or AED, is a medical device that is used to administer an electric shock to the heart of a person who has suffered cardiac arrest through the person’s chest wall. Built-in computers in an AED 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 of using the AED.

In 1999, in an effort to encourage the installation and use of AEDs in commercial buildings, the Legislature provided qualified immunity to commercial property owners who installed AEDs in their buildings. That legislation (SB 911 (Figueroa), Ch. 163, Stats. of 1999) put in place a number of requirements for property owners who installed AEDs and Good Samaritans who use them in order to obtain qualified immunity for civil liability associated with the installation or use of the AED. This Committee’s analysis of SB 911 summarized the “training and maintenance requirements for qualified immunity,” as follows:

For AED operators: For the qualified immunity to apply, SB 911 would require the good samaritan operator to have completed a basic CPR and AED use course within the preceding 12 months that complies with regulations adopted by the Emergency Medical Services Authority (EMSA) and the standards adopted by the American Heart Association or the American Red Cross for CPR and AED use. Current EMSA regulations call for a training class of not less than four hours covering, among other topics: (1) the proper use, maintenance, and periodic inspection of the AED; (2) the importance of CPR and defibrillation; (3) assessment of an unconscious patient to determine if cardiac arrest has occurred and the appropriateness of using the AED; and (4) information as to defibrillator safety precautions and training in determining if further usage is necessary.

For businesses having AEDs on site: In order to qualify for the bill's immunity protections, a business acquiring an AED must satisfy all of the following conditions: (1) comply with all regulations governing the training, use, and placement of an AED; (2) notify the local EMS agency of the existence, location and type of AED acquired; (3) ensure all of the following: (i) that expected AED users annually complete the required training for AED operators to qualify for the immunity; (ii) that the defibrillator is maintained and tested according to the manufacturer's operational guidelines; (iii) that the owner conduct a readiness check after each usage, and at least once every 30 days if the AED has not been used in the preceding 30 days, and to keep records of such checks; (iv) that the emergency medical services system is activated as soon as possible when an operator uses an AED, and that usage is reported to the local EMS agency and the authorizing medical authority; and, (v) that a licensed physician is involved in developing a program to ensure compliance with the regulations and the requirements for training, notification and maintenance.

Case Law Regarding the Duty of Businesses to Their Customers – AED Installation. In Rotolo v. San Jose Sports and Entertainment (2007) 151 Cal.App.4th 307, a lawsuit was brought by the parents of a 17-year-old who experienced sudden cardiac arrest and collapsed on the ice while participating in a hockey tournament game on the south rink at Logitech Ice. Two event bystanders, mothers of other participants in the event, responded to the medical emergency. While they provided CPR to the teen, 911 was called to report the incident to the appropriate emergency responders. Sometime prior to this incident one or more AED’s had been acquired and installed at the Logitech Ice facility. "Respondents had placed one AED on the wall in the area near the penalty box of the south rink where the teenager had collapsed. No one was aware that an AED was installed and available for use close to the south rink. Neither one of the referees officiating the game was aware of the AED. Both [the mothers who performed CPR on Rotolo] had been trained and certified in the use of AED’s. However, no one informed them that there was an AED nearby." The teenager did not survive. (Id. at pp. 316-317.)

In that case, the Superior Court ruled in favor of the defendants, holding that the Legislature had occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AEDs, which reflected legislative policy to encourage the availability of AEDs by providing immunity from liability for those who acquired the devices, when they were used in an attempt to save a life.

Those who do install AED’s in their buildings will not be liable for damages resulting from the rendering of emergency care with an AED, so long as certain requirements are met, including maintenance, testing, posting and notice. [Citations omitted.] The notice that is required is specifically limited to tenants of the building where the AED is located. [Citations omitted.] The only other notice requirement set forth in these statutes is that the person or entity that supplies an AED must notify the local emergency services agency of its location. [Citations omitted.] Nothing in these statutes requires that a building owner or manager give notice to particular members of the public expected to use the building. Furthermore, we believe the imposition of such duties that are not clearly outlined in the statutes would tend to discourage, rather than to encourage, the voluntary acquisition of AED’s, and would thus defeat the underlying legislative purpose of promoting the widespread use of these devices. (Rotolo v. San Jose Sports and Entertainment, supra, at p. 314.)

The court also held that, under the common law, the duty of care of a landlord (based on the special relationship to tenants and invitees) had never been extended to impose an affirmative duty like the parents sought to impose: to give notice to prospective invitees about the existence and location of a medical device. (Id. at pp. 314-315.)

Most recently, in 2014, at the request of the Ninth Circuit, the California Supreme Court addressed the following certified question: whether, under California law, the common law duty of reasonable care that the defendant retailer owed to its business customers included an obligation to obtain and make available on its business premises an AED for use in a medical emergency. Notably, that case, Verdugo v. Target Corporation (2014) 59 Cal.4th 312, overruled Rotolo to the extent that the case, in dicta, stated broadly that the legislature has occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AEDs. (Id. at p. 334.)

In Verdugo, the lawsuit arose after a customer at Target suffered sudden cardiac arrest and collapsed while shopping at a Target department store in Pico Rivera, California. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store and in the meantime, she died. Target did not have an AED in its store. The deceased’s mother and brother filed the underlying lawsuit against Target, maintaining that Target breached the duty of care that it owed to Verdugo, a business customer, by failing to have on hand within its department store an AED for use in a medical emergency.

There, the California Supreme Court held that the existing state statutes on AEDs cannot properly be interpreted to preclude a court from determining whether a business’s common law duty to exercise reasonable care with regard to the health and safety of its customers includes, either in general or in particular circumstances, an obligation to acquire and make available an AED for use in a medical emergency. (Verdugo v. Target Corporation, supra, at p. 321.) In light of the extent of the burden that would be imposed by a requirement to acquire and make available an AED and in the absence of any showing of heightened foreseeability of sudden cardiac arrest or of an increased risk of death, the Supreme Court held it was appropriate under these circumstances to leave to the legislature the policy decision whether a business should be required to acquire and make available an AED for the protection of its patrons. (Id. at p. 341.)

Qualified Immunity for Good Samaritans. In 2009, the Legislature amended Section 1799.102 to provide that persons who provide emergency care or assistance, whether medical or non-medical, shall not be liable for damages caused by their acts or omissions while rendering emergency care, so long as their conduct does not constitute "gross negligence" or "willful or wanton misconduct." (AB 83 (Feuer), Chap. 77, Stats. 2009.) AB 83 was the Legislature’s response to a decision by the California Supreme Court, Van Horn v. Watson (2008) 45 Cal.4th 322. In the Van Horn case, Lisa Torti pulled her friend and co-worker, Alexandra Van Horn, from a crashed vehicle in Los Angeles, fearing the vehicle was about to catch fire or even explode. Tragically, in doing so, Torti may have worsened Van Horn's injuries. Van Horn later sued the driver, who in turn sued Torti for exacerbating Van Horn's injuries. The Court held that the state's "Good Samaritan" statute, when read as part of the overall statutory scheme, only provided immunity to persons with respect to medical care at the scene of an emergency and did not apply to "non-medical" emergency assistance, such as pulling a person from a potentially exploding automobile or a burning building.

AB 83 clarified the general Good Samaritan statute (Section 1799.102), which provides immunity to all rescuers who render emergency care at the scene of an emergency, so that immunity applied as long as the care was rendered “in good faith and not for compensation,” regardless of whether the care is found to be of a medical or non-medical nature. However, AB 83 appropriately clarified that such broad immunity is unavailable to rescuers who engage in grossly negligent or willful or wanton misconduct. The limited or “qualified” immunity adopted by AB 83 is a compromise meant to encourage altruistic behavior, but still protect the public from grossly negligent or deliberately harmful behavior.

Immunity Provision in this Bill. In order to encourage the installation of AEDs on newly constructed business premises, this bill includes the following immunity provision:

A person or entity that supplies an AED pursuant to this section shall not be liable for any civil damages pursuant to Section 1797.196 of this code and Section 1714.21 of the Civil Code.

Meanwhile, Civil Code Section 1714.21 provides immunity from civil liability for persons who “acquire” AEDs for installation in existing private buildings. It provides that:

A person or entity that acquires an AED for emergency use pursuant to this section 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)(1).)

The immunity provisions should be identical, or at least very similar, for newly constructed and existing commercial buildings. But the immunity provision in this bill is not similar to the provision regarding existing construction that is in current law. For example, this bill does not require the person who acquires the AED, as a condition of obtaining immunity, to comply with various notice and training requirements set forth in Health and Safety Code Section 1797.196, including for example, the following:

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 hours. (Health and Safety Code Section 1797.196(a)(2)(D).)

Because of the current wording of the immunity provision, none of the requirements of the Civil Code Section are conditions of the immunity provided in this bill. Furthermore, as currently in print, this bill provides immunity to a “supplier” of an AED. The Legislature does not consider it appropriate to grant immunity from civil liability to the “supplier” of an AED. As Civil Code Section 1714.21(g) provides, “Nothing in this section shall relieve a manufacturer, designer, developer, distributor, installer, or supplier of an AED or defibrillator of any liability under any applicable statute or rule of law.” The author indicates that it is his intent to only provide immunity from liability to persons who “acquire” and AED. Therefore, in order to clarify that the same standards apply, the author has agreed to the following clarifying amendment, making the immunity provision virtually identical to Civil Code Section 1714.21(d)(1):

A person or entity that supplies acquires an AED for emergency use pursuant to this section shall not be 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 pursuant to Section 1797.196 of this code and Section 1714.21 of the Civil Code. 

Local Ordinances. Of note, in December 2008, the San Diego City Council voted unanimously to require defibrillators in all new buildings with more than three stories or more than 10,000 square feet; in places of assembly with capacity for more than 300 people; and in educational facilities with 200 or more students. That legislation reportedly “covers practically all new commercial buildings; medical, dental, and outpatient clinics; hotels; motels; restaurants; schools; theaters; churches; and warehouses.” The municipal building code requires new buildings to be prewired during construction for dedicated wall mounts for AED systems with self-testing alarms, similar to requirements for installations of sprinkler systems and fire alarms. Also under that code, building owners are required to register their AED equipment with the fire rescue department, test it annually, and notify the fire department each time the device is used. (Madaffer, For Safety’s Sake, Occupational Health & Safety (Feb. 2009) <http://ohsonline.com/Articles/2009/02/01/For-Safety-Sake.aspx> [as of May 6, 2015]; see also San Diego Municipal Code, Chapter 14, Article 5, Division 39: Automated External Defibrillators, Secs. 145.3901 - 145.3935, <http://docs.sandiego.gov/municode/MuniCodeChapter14/Ch14Art05Division39.pdf> [as of May 6, 2015].)

Recent Amendments Remove Opposition. The bill was recently amended in the Assembly Business and Professions Committee to exempt storage, high-hazard buildings, use occupancy classifications, and licensed healthcare facilities from requirements of the bill, and to become operative on January 1, 2017. The purpose of exempting those building classifications, according to the analysis of this bill by the Business and Professions Committee, was because they “tend to be more associated with industrial uses, rather than the types of public places in which the bill seeks to increase the availability of AEDs” or, in the case of licensed health care facilities which “already employ the use of AEDs and other similar lifesaving devices, the author may wish to explicitly exempt these facilities from the requirements of this bill."

As a result of the recent amendments, the California Business Properties Association (CBPA), which formerly opposed the bill, now supports SB 287. According to the CBPA:

SB 287 (Hueso) which would require installation of Automatic External Defibrillators (AED) in certain new commercial buildings after January 1, 2017. We appreciate recent amendments to the bill which have addressed concerns regarding policy and operational issues.

Because of the life-saving potential of AEDs and their proven efficacy, our industry has been working to increase accessibility of these devices in public places where cardiac arrest may be a significant risk. Many of our members currently have them installed in their buildings.

However, SB 287 will require installation of AED’s in certain commercial buildings with max occupancies of 200 or more that are constructed and occupied on or after January 1, 2017. This will ensure that more employees, tenants, and guests will have access to these devices when needed.

Pending Similar Legislation. SB 658 (Hill) expands the immunity provisions in existing law for use of an AED by removing, as a condition of immunity, the requirement that a person or entity acquiring AEDs comply with specified maintenance, training, and notice requirements and requires that a person or entity acquiring an AED need only meet certain minimal maintenance and notice requirements, and would repeal training requirements from existing law. SB 658 passed this Committee and, as of the date of this analysis, is pending on the Assembly Floor.

Prior Similar Legislation. SB 911 (Figueroa, Ch. 163, Stats. 1999) 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.

AB 1507 (Pavley, Ch. 431, Stats. 2005) required health studios to acquire, maintain, and train personnel in the use of AEDs. AB 1507 specifically applied most of existing law to health studios but made the acquisition of AEDs mandatory rather than voluntary until July 1, 2012.

SB 127 (Calderon, Ch. 500, Stats. 2010) extended the health studios’ AED mandate.

SB 1436 (Lowenthal, Ch. 71, Stats. 2012) deleted the sunset, thereby indefinitely extending the requirement for health studios to acquire, maintain, and train personnel in the use of AEDs.

REGISTERED SUPPORT / OPPOSITION:

Support

American Heart Association

American Medical Response

American Stroke Association

California Business Properties Association

California Professional Firefighters

California State Firefighters Association

Paramedics Plus

San Diego Project Heart Beat

San Ysidro Health Center

San Diego City Firefighters Local 145

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: July 7, 2015

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Susan Bonilla, Chair

SBPCA Bill Id:SB 287

Author:(Hueso) – As Amended Ver:June 23, 2015

SENATE VOTE: 28-3

NOTE: This bill is double-referred, and if passed by this Committee, it will be referred to the Assembly Judiciary Committee.

SUBJECT: Automated external defibrillators (AEDs).

SUMMARY: Requires certain buildings, with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2016, to have an automated external defibrillator (AED) on the premises.

EXISTING LAW:

1. Exempts from civil liability 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. (Civil Code (CIV) Section 1714.21)

2. Exempts from civil liability a person or entity that provides CPR and AED training to a person who renders emergency care pursuant to 1). (CIV Section 1714.21(c))

3. Exempts from civil liability a person or entity that acquires an AED for emergency use pursuant to these provisions if that person or entity has complied with the requirements in the Health and Safety Code (HSC) pertaining to maintenance, training, and use relating to AEDs, as specified. (CIV Section 1714.21(d))

4. Exempts from civil liability a physician who is involved with the placement of an AED and any person or entity responsible for the site where an AED is located if that physician, person, or entity has complied with the requirements in the HSC pertaining to maintenance, training, and use relating to AEDs, as specified, that apply to that physician, person, or entity. (CIV Section 1714.21(e))

5. Provides that these protections do not apply in the case of personal injury or wrongful death that result from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED. (CIV Section 1714.21(f))

6. Provides that nothing in these provisions shall relieve a manufacturer, designer, developer, distributor, installer, or supplier of an AED or defibrillator of any liability under any applicable statute or rule of law. (CIV Section 1714.21(g))

7. Authorizes the Emergency Medical Services Authority (Authority) to establish minimum standards for the training and use of AEDs. (Health and Safety Code (HSC) Section 1797.190)

8. To ensure public safety, exempts from civil liability any person or entity that acquires an AED if that person or entity does all of the following:

   1. Complies with all regulations governing the placement of an AED. (HSC Section 1797.196(b)(1))

   2. Ensures all of the following:

      1. The AED is maintained and regularly tested according to the operation and maintenance guidelines set forth by the manufacturer, the American Heart Association (AHA), 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;

      2. 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 requires records of these checks to be maintained;

      3. 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;

      4. For every AED unit acquired up to five units, no less than one employee per AED unit complete a training course in cardiopulmonary resuscitation (CPR) and AED use that complies with the regulations adopted by the Authority and the standards of the AHA or the American Red Cross, and require an additional employee trained for each additional five AED units acquired, as specified. Requires those with AEDs 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; and

      5. There is a written plan that describes the procedures to be followed in the event of an emergency that may involve the use of an AED, to ensure compliance with the requirements of provisions, and requires the plan to include immediate notification of 911 and trained office personnel at the start of AED procedures. (HSC Section 1797.196(b)(2))

   3. When an AED is placed in a building, requires building owners to:

      1. 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 that similar information is posted next to any installed AED; and

      2. Notify their tenants at least annually as to the location of AED units in the building. (HSC Section 17971.196(b)(3),(4))

   4. When an AED is placed in a public or private K–12 school, requires the principal to:

      1. 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, and that similar information is posted next to every AED;

      2. Notify school employees at least annually as to 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 specified. (HSC Section 1797.196(b)(5))

9. Requires any person or entity that supplies an AED to do all of the following: (HSC Section 17971.196(c))

   1. Notify an agent of the local Emergency Medical Services agency of the existence, location, and type of AED acquired. (HSC Section 17971.196(c)(1))

   2. Provide to the acquirer of the AED all information governing the use, installation, operation, training, and maintenance of the AED. (HSC Section 17971.196(c)(2))

10. Provides that a violation of this provision is not subject to a misdemeanor, as specified. (HSC Section 17971.196(d))

11. Provides that these protections do not apply in the case of personal injury or wrongful death that result from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED. (HSC Section 17971.196(e))

12. Provides that nothing in these provisions or Section 1714.21 of the CIV may be construed to require a building owner or a building manager to acquire and have installed an AED in any building. (HSC Section 17971.196(f))

THIS BILL:

1. Requires the following structures that are constructed on or after January 1, 2016, as defined in the California Building Standards Code, to have an AED on the premises subject to the existing requirements listed in the HSC relating to maintenance, training, and use:
   
   

   1. Assembly buildings, as defined, with an occupancy of greater than 300;
      
      

   2. Business buildings, educational buildings, factory buildings, high-hazard buildings, institutional buildings, mercantile buildings, and storage buildings, excluding parking garages, as each of these buildings are defined, and if they have occupancies of 200 or more; and,
      
      

   3. Residential buildings, as defined, with occupancy of 200 or more, excluding single-family and multi-family dwelling units.
      
      

2. Exempts from civil liability a person or entity that supplies an AED pursuant to these provisions, as specified in existing provisions of the CIV and the HSC that condition immunity on meeting certain requirements related to maintenance, training, and use of an AED, as specified.
   
   

3. Excludes structures owned or operated by any local entity from the provisions of this bill.
   
   

FISCAL EFFECT: Unknown. This bill is keyed "fiscal" by the Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the author. According to the author, "An estimated 350,000 individuals in the United States will suffer this year from a Sudden Cardiac Arrest (SCA). For every minute an individual goes without receiving defibrillation from an AED, an individual's chances of surviving from SCA go down by 10%. Brain death and permanent death start to occur 4-6 minutes after someone experiences cardiac arrest. The use of an AED in a timely manner can increase an individual's probability of survival by 70%. By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be within 4 minutes of an AED, substantially increasing their chance of survival. In my district, the City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals."

AEDs. An AED is a lightweight, battery-operated portable device that checks the heart rhythm and can deliver an electric shock through the chest to the heart to try to restore a normal heart rhythm. AEDs are used to treat SCA. An SCA is a condition in which the heart suddenly and unexpectedly stops beating, which stops blood flowing to the brain and other vital organs. According to the AHA most SCAs result from ventricular fibrillation ("v-fib"). This is a rapid and unsynchronized heart rhythm starting in the heart's lower pumping chambers, or the ventricles, which is a type of arrhythmia. The heart must be defibrillated quickly, because a victim's chance of surviving drops by 10 percent for every minute a normal heartbeat is not restored. According to the National Heart, Lung, and Blood Institute of the National Institutes of Health (NHLBI), 95% of people who have SCA die from it within minutes.

A built-in computer in the AED checks a victim's heart rhythm through adhesive electrodes, and calculates whether defibrillation is needed. If defibrillation is needed, a recorded voice instructs the rescuer to press the shock button on the AED. This shock momentarily stuns the heart and stops all activity, giving the heart the chance to resume beating effectively. Instructions guide the user through the process, and the device prompts the user to let them know if and when they should send a shock to the heart. AEDs advise a shock only for ventricular fibrillation or another life-threatening condition relating to the heart. According to the NHLBI, "…learning how to use an AED and taking a CPR course are helpful. However, if trained personnel aren't available, untrained people can also use an AED to help save someone's life."

According to the AHA, AEDs are safe to use by anyone who's been trained to use them, and studies have shown that 90 percent of the time AEDs are able to detect a rhythm that should be defibrillated, and 95 percent of the time, AEDs are able to recommend not shocking when the computer shows defibrillation is not indicated. According to the NHLBI, AEDs are "…safe to use. There are no reports of AEDs harming bystanders or users. Also, there are no reports of AEDs delivering inappropriate shocks." According to the AHA, most AEDs are estimated to cost $1,500 to $2,000.

Building Classifications. The California Building Standards Code classifies buildings and structures by use and occupancy, and requires a room or space that is intended to be occupied at different times for different purposes to comply with all of the requirements that are applicable to each of the purposes for which the room or space will be occupied. This bill would require specified private and state structures, as defined in the California Building Standards Code, to have AEDs on premises. These structures include the following:

1. Assembly Group A buildings with an occupancy of greater than 300, including a building or structure, or portion thereof, used for the gathering of persons for purposes such as civic, social, or religious functions; recreation, food, or drink consumption or motion picture and television production sound stages, approved production facilities and production locations (e.g., theaters, banquet halls, restaurants, bars, libraries, museums).
   
   
   

2. Business Group B buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for office, professional, or service-type transactions, including storage of records and accounts (e.g. banks, salons, professional services offices, some colleges).
   
   
   

3. Educational Group E buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used by more than six persons at any one time for educational purposes through the 12th grade, except a residence used as a home school for the children who normally reside at the residence, or specified day care facilities.
   
   
   

4. Factory Industrial Group F buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for assembling, disassembling, fabricating, finishing, manufacturing, packaging, repair or processing operations that are not classified as a Group H hazardous or Group S storage occupancy.
   
   
   

5. High-hazard Group H buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, that involves the manufacturing processing, generation or storage of materials that constitute a physical or health hazard in quantities in excess of those allowed in control areas, as further defined.
   
   
   

6. Institutional Group I buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, in which care or supervision is provided to persons who are or are not capable of self-preservation without physical assistance or in which persons are detained for penal or correctional purposes or in which the liberty of the occupants is restricted (e.g. custodial care facilities, hospitals, jails, prisons, nursing homes).
   
   
   

7. Mercantile Group M buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for the display and sale of merchandise and involving stocks of goods, wares or merchandise incidental to such purposes and accessible to the public (e.g. department stores, markets, retail stores).
   
   
   

8. Residential Group R buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for sleeping purposes when not classified as Group I occupancy or when not regulated by the California Residential Code (e.g. boarding houses, hotels, assisted living facilities, social rehabilitation facilities, group homes).
   
   
   

9. Storage Group S buildings with an occupancy of 200 or more, including a building or structure, or portion thereof, used for storage that is not classified as a hazardous occupancy. The bill specifically exempts parking garages.

Other AED programs. In 2013, Oregon passed a law that required owners of a place of public assembly, defined as a single building that has 50,000 square feet or more of indoor floor space and where the public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation, or where business activities are conducted and at least 50 individuals congregate on a normal business day, to have on the premises at least one AED.

In 2008, the City of San Diego passed an ordinance, which this bill is modeled after, in part, requiring the placement of AEDs in all newly constructed buildings in the same occupancy groups with the same occupant loads as specified in this bill. This ordinance also required AEDs to be located in a place to optimally achieve a three minute response time to the person in need of emergency care, and placed other requirements on building owners relating to the maintenance, recordkeeping, training, and use of the AED, as specified. According to the San Diego Project Heart Beat, the City's Public Access Defibrillation/CPR Program managed by the San Diego Fire-Rescue Department operated jointly with Rural/Metro Ambulance, over 123 lives have been saved as a result of the program.

Current Related Legislation. SB 658 (Hill), revises the maintenance, training, and use requirements for placement of AEDs in commercial buildings and K-12 schools that are conditions for obtaining qualified immunity from civil liability for the selection, installation, placement, and use of AEDs in those facilities. STATUS: This bill is pending on the Assembly Floor.

AB 2217 (Melendez) Chapter 812, Statutes of 2014, authorized a public school to solicit and receive nonstate funds to acquire and maintain an AED; provided that the employees of the school district are not liable for civil damages resulting from certain uses, attempted uses, or nonuses of an AED, except as provided; and provided that a public school or school district that complies with certain requirements related to an AED is not liable for any civil damages resulting from any act or omission in the rendering of the emergency care or treatment, except as specified.

Prior Related Legislation. SB 1436 (Lowenthal), Chapter 71, Statutes of 2012, removed the sunset date for civil immunity in connection with the use of AEDs, thereby making that immunity permanent.

SB 1281 (Padilla) of 2010, would have repealed provisions relating to the maintenance, training, and use of AEDs. NOTE: This bill was held in the Senate Judiciary Committee.

SB 127 (Calderon) Chapter 500, Statutes of 2010, removed the July 1, 2012 sunset date for existing requirements that every health studio acquires and maintains an AED and trains personnel in its use, thereby extending these requirements indefinitely.

SB 63 (Price) of 2011, would have authorized a public high school to solicit and receive nonstate funds to acquire and maintain an AED, and require a public high school that acquired an AED, or continued to use an AED, to comply with specified requirements. NOTE: This bill was held in the Senate Appropriations Committee.

AB 1312 (Swanson) of 2009, would have made existing requirements for health studios to purchase, maintain, and train staff in the use of automatic external defibrillators applicable to amusement parks and golf courses, and revised the sunset date on this requirement from July 1, 2012 to July 1, 2014. NOTE: This bill was vetoed by Governor Schwarzenegger due to the lack of a "…compelling need to extend the 2012 sunset date at this time, especially when a reasonable exemption for a particular type of business model was sought and rejected."

AB 2083 (Vargas) Chapter 85, Statutes of 2006, extended the sunset date from 2008 to 2013 on the operative provisions of existing law which provide immunity from civil damages for persons or entities that acquire AEDs and comply with maintenance, testing, and training requirements.

AB 1507 (Pavley) Chapter 431, Statutes of 2005, required all health studios in the state to have AEDs available with properly trained personnel until July 1, 2012.

AB 1145 (Shirley Horton) Chapter 5, Statutes of 2004, required 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, as specified.

AB 2041 (Vargas) Chapter 718, Statutes of 2002, expanded the immunity protections for the use or purchase of an AED, and included a sunset date of 2008.

SB 911 (Figueroa), Chapter 163, Statutes of 1999, created qualified immunity from civil liability for trained persons who use in good faith and without compensation an AED in rendering emergency care or treatment at the scene of an emergency.

ARGUMENTS IN SUPPORT:

According to the California Professional Firefighters, "When lives are on the line, every second counts. And, when an AED is used to treat cardiac arrest, it serves as a life-saving device given that cardiac arrest is a sudden condition that can be fatal if not treated within a few minutes. Because [this bill] would enhance the likelihood of a cardiac arrest victim's survival by making AEDs readily available in these instances, we urge your support for SB 287."

According to the American Heart Association (AHA) and the American Stroke Association, "Every year there are over 300,000 out-of-hospital cardiac arrests in the United States. Sadly, only 10 percent of victims who suffer a cardiac arrest outside of a hospital setting survive, largle in part because many victims do not receive timely CPR or AED application. We support placing AEDs in targeted public areas such as sports arenas, gated communities, office complexes, doctor's offices, shopping malls and other public venues. When AEDs are placed in the community or a business or facility, the AHA strongly encourages that they be part of a public access to defibrillation program."

According to the Sudden Cardiac Arrest Foundation, "The likelihood of survival from SCA decreases by about 10 percent each minute from the time of collapse until the time of treatment with a defibrillator. If the victim is not treated with a defibrillator within 10 minutes of collapse, survival is unlikely. Unfortunately, even the best emergency medical services typically cannot arrive at the scene of an emergency within 10 minutes of collapse….AEDs are safe, effective, and designed for use by laypersons. They provide simple audio and visual instructions. They automatically diagnose potentially life-threatening heart rhythms. If an AED detects a problem that may respond positively to an electric shock, it permits a shock to be delivered to restore a normal heart rhythm. Given these facts and the fact that AEDs are increasing affordable…[,b]y requiring AED deployment as part of an emergency response plan, we can secure a more effective and efficient emergency response system in California commercial properties."

ARGUMENTS IN OPPOSITION:

The California Business Properties Association, Commercial Real Estate Development Association, International Council of Shopping Centers, and the Building Owners and Managers Association of California, all write in opposition, "Because of the life-saving potential of AEDs and their proven efficacy, we too encourage accessibility of these devices in places where cardiac arrest may be a significant risk. Many of our members currently have them installed in their buildings today. As such we have support reform of the statute that would remove outdated requirements which have become barriers to installation. This year, those reform provisions are contained in SB 658 (Hill)….Therefore, mandating installation of AEDs while ignoring this reform will put property owners and tenants in an untenable position where they may be forced to install a device but physically cannot comply with the training requirements required by statute. Additionally, SB 287 requires mandatory installation on private property only as it exempts buildings owned by state and local entities. Building code traditionally applies equally to all structured based on occupancy regardless of ownership. Such a parsing of ownership for these purposes would set a bad precedent. People in public buildings should have the same protections as people in private buildings."

POLICY ISSUES:

The author may wish to exempt storage and high-hazard building and use occupancy classifications from this bill. While the 200 person or more occupancy would still apply, those building classifications tend to be more associated with industrial uses, rather than the types of public places in which the bill seeks to increase the availability of AEDs. In addition, because licensed health care facilities already employ the use of AEDs and other similar lifesaving devices, the author may wish to explicitly exempt these facilities from the requirements of this bill.

The author may also wish to consider delaying the operative date of this bill to ensure that property owners have sufficient time to prepare to meet the requirements of this bill, and that local jurisdictions that seek to make conforming changes to local ordinances have ample time to do so. In addition, while the bill only requires that these provisions apply to newly constructed buildings, the author may wish to clarify that these provision do not apply to unoccupied buildings.

AMENDMENT(S):

1. On page 2, strike lines 21-22 and lines 29-30 from the bill, to exempt Group H high-hazard buildings and storage buildings.
   
   
   

2. On page 3, strike lines 7-9 and insert former subdivision (c) and new provisions as follows:

3. This chapter does not apply to the following:

1. A structure or subdivision in subdivision (a) that is owned or operated by any local government entity.

2. A facility licensed pursuant to subdivision (a), (b), (c), or (f) of Section 1250."

3. Vacant or unoccupied buildings or buildings under construction or renovation.

3. This chapter shall become operative on January 1, 2017.

REGISTERED SUPPORT:

American Heart Association

American Medical Response

American Stroke Association

California Professional Firefighters

California State Firefighters' Association

Madaffer Enterprises, Inc.

Paramedics Plus

San Diego Fire Fighters Local 145

San Ysidro Health Center

Sudden Cardiac Arrest Foundation

REGISTERED OPPOSITION:

California Business Properties Association

Building Owners and Managers Association of California

Commercial Real Estate Development Association, NAIOP of California

International Council of Shopping Centers

Analysis Prepared by: Eunie Linden / B. & P. / (916) 319-3301

 THIRD READING  

Bill No: SB 287

Author: Hueso (D)

Introduced: 2/19/15

Vote: 21

SENATE HEALTH COMMITTEE: 9-0, 4/15/15

AYES: Hernandez, Nguyen, Hall, Mitchell, Monning, Nielsen, Pan, Roth, Wolk

SENATE JUDICIARY COMMITTEE: 4-2, 5/12/15

AYES: Jackson, Hertzberg, Leno, Monning

NOES: Moorlach, Anderson

NO VOTE RECORDED: Wieckowski

SUBJECT: Automated external defibrillators

SOURCE: Author

DIGEST: This bill requires certain buildings with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2016, to have an automated external defibrillator (AED) on the premises.

ANALYSIS:

Existing law:

1. Classifies, in the California Code of Regulations, all buildings and structures as to use and occupancy, and requires a room or space that is intended to be occupied at different times for different purposes to comply with all of the requirements that are applicable to each of the purposes for which the room or space will be occupied.

2. Provides, in the Civil Code, immunity from civil liability for the acts or omissions of 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.

3. Provides, in the Civil Code, immunity from civil liability for any acts or omissions in the rendering of emergency care by the use of an AED for a person or entity that acquires an AED for emergency use, if that person or entity has complied with certain specified requirements in the Health and Safety Code.

4. Provides, in the Health and Safety Code, immunity from civil liability for a person or entity that acquires an AED for any acts or omissions in the rendering of emergency care if that person or entity meets various requirements, including:

   1. Ensures that the AED is checked for readiness after each use and at least once every 30 days;

   2. Ensures that any person who renders emergency care or treatment by using an AED activates the emergency medical services system as soon as possible and reports the use to the licensed physician and to the local EMS agency;

   3. Ensures that for every AED unit acquired up to five units, no less than one employee per AED unit, and one employee for every additional five units, complete a training course in cardiopulmonary resuscitation (CPR) and AED use, as specified.

   4. Ensure that tenants in a building where an AED is placed receive a brochure describing the proper use of an AED and are notified once a year of the location of AEDs.

This bill:

1. Requires the following structures that are constructed on or after January 1, 2016, to have an AED on the premises subject to the existing requirements listed in the Health and Safety Code related to training and maintenance:

1. Assembly buildings, as defined, with an occupancy of greater than 300;

2. Business buildings, educational buildings, factory buildings, high-hazard buildings, institutional buildings, mercantile buildings, and storage buildings, as each of these buildings are defined, and if they have occupancies of 200 or more; and

3. Residential buildings with occupancy of 200 or more, excluding single-family and multi-family dwelling units.

2. Provides immunity from civil liability for a person or entity that supplies an AED pursuant to this bill, as specified in existing provisions of law that condition immunity on meeting certain requirements related to training and maintenance of the AEDs.

3. Excludes structures owned or operated by the state or any local entity from the provisions of this bill.

Comments

1. Author’s statement. According to the author, “an estimated 350,000 individuals in the United States will suffer this year from a Sudden Cardiac Arrest (SCA). For every minute an individual goes without receiving defibrillation from an AED, an individual’s chances of surviving from SCA go down by 10 percent. Brain death and permanent death start to occur 4-6 minutes after someone experiences cardiac arrest. The use of an AED in a timely manner can increase an individual’s probability of survival by 70 percent. By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be located within 4 minutes of an AED, substantially increasing their chance of survival. In my district, the City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals.”

2. According to the American Heart Association (AHA), an AED is a lightweight, portable device that delivers an electric shock through the chest to the heart. The shock can stop an irregular rhythm and allow a normal rhythm to resume in a heart in SCA. SCA is an abrupt loss of heart function. If it is not treated within minutes, it quickly leads to death. The AED has a built-in computer which assesses the patient’s heart rhythm, determines whether the person is in cardiac arrest, and signals whether to administer the shock. Audible cues guide the user through the process.

According to the AHA, each year in the U.S., there are approximately 359,400 Emergency Medical Services (EMS)-assessed cardiac arrests outside of a hospital setting and on average, less than 10% of victims survive. Early defibrillation, along with CPR, is the only way to restore the victim’s heart rhythm to normal in a lot of cases of cardiac arrest. For every minute that passes without CPR and defibrillation, however, the chances of survival decrease by 7 to 10%. The 2013 Update of AHA’s Heart Disease and Stroke Statistics shows that 23% of out-of-hospital cardiac arrests are “shockable” arrhythmias, or those that respond to a shock from an AED, making AEDs in public places highly valuable. Yet, AHA states there are not enough AEDs and persons trained in using them and performing CPR to provide this life-saving treatment, resulting in lost opportunities to save more lives. Communities with comprehensive AED programs that include CPR and AED training for rescuers have achieved survival rates of nearly 40% for cardiac arrest victims. AHA states on its Web site that it supports placing AEDs in targeted public areas such as sports arenas, gated communities, office complexes, doctor’s offices, and shopping malls. When AEDs are placed in the community or a business or facility, AHA strongly encourages that they be part of a defibrillation program which includes notification to the local EMS office when an AED is acquired, that a licensed physician or medical authority provides medical oversight to ensure quality control, and that persons responsible for using the AED are trained in CPR and how to use an AED.

3. California Code of Regulations. In California’s Building Standards Code, Part 2, Chapter 3, buildings and structures are classified with respect to use and occupancy in each of the groups as follows:

1. Defines Assembly Group A occupancy as including, among others, the use of a building or structure, or portion thereof, for the gathering of persons for purposes such as civic, social, or religious functions; recreation, food, or drink consumption or motion picture and television production sound stages, approved production facilities and production locations.

2. Defines Business Group B occupancy as including, among others, the use of a building or structure, or portion thereof, for office, professional, or service-type transactions, including storage of records and accounts.

3. Defines Educational Group E occupancy as including, among others, the use of a building or structure, or portion thereof, by more than six persons at any one time for educational purposes through the 12th grade, except a residence used as a home school for the children who normally reside at the residence.

4. Defines Factory Industrial Group F occupancy as including, among others, the use of a building or structure, or portion thereof, for assembling, disassembling, fabricating, finishing, manufacturing, packaging, repair or processing operations that are not classified as a Group H hazardous or Group S storage occupancy.

5. Defines High-hazard Group H occupancy as including, among others, the use of a building or structure, or portion thereof, that involves the manufacturing processing, generation or storage of materials that constitute a physical or health hazard in quantities in excess of those allowed in control areas, as further defined.

6. Defines Institutional Group I occupancy as including, among others, the use of a building or structure, or portion thereof, in which care or supervision is provided to persons who are or are not capable of self-preservation without physical assistance or in which persons are detained for penal or correctional purposes or in which the liberty of the occupants is restricted.

7. Defines Mercantile Group M occupancy as including, among others, the use of a building or structure, or portion thereof, for the display and sale of merchandise and involves stocks of goods, wares or merchandise incidental to such purposes and accessible to the public.

8. Defines Residential Group R occupancy as including, among others, the use of a building or structure, or portion thereof, for sleeping purposes when not classified as Group I occupancy or when not regulated by the California Residential Code.

9. Defines Storage Group S occupancy as including, among others, the use of a building or structure, or portion thereof, for storage that is not classified as a hazardous occupancy.

4. Verdugo v. Target. On August 31, 2008, Mary Ann Verdugo was shopping at a large Target store in Pico Rivera with her mother and brother when she suffered a SCA and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store.

The Verdugo family filed a lawsuit alleging Target breached the duty of care that it owed to its business customers, including Mary Ann, by failing to have an AED for use in a medical emergency. After moving the case from the Los Angeles County Superior Court to the federal district court, the federal district court dismissed the case after concluding Target had no duty to acquire and make available an AED for the use of its customers. The plaintiffs appealed to the Ninth Circuit Court of Appeals, at which point the panel turned to the California Supreme Court “as better positioned to address [this] major question of California tort law than this court.” The California Supreme Court construed the Ninth Circuit Court of Appeals’ question as “whether, under California law, the common law duty of reasonable care that defendant Target Corporation owes to its business customers includes an obligation to obtain and make available on its business premises an [AED] for use in a medical emergency.” On June 23, 2014, the California Supreme Court answered the question by ruling that, “[U]nder California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” On October 28, 2014, the Ninth Circuit Court of Appeals, following the guidance of the California Supreme Court, affirmed the federal district court’s ruling that Target had no common law duty to provide an AED in its stores.

Judge Pregerson, a panelist of the Ninth Circuit Court of Appeals, in a separate opinion, wrote:

“The California Supreme Court has spoken. This decision holds that ‘under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.’ And so, in this diversity case, that holding controls. But that decision troubles me. Therefore, I write separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency. Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life-saving AEDs available.”

5. Other jurisdictions. In November 2008, the San Diego City Council passed legislation with requirements nearly identical to the provisions of this bill. Over the last six years, the Oregon State Legislature has passed several pieces of legislation relating to AEDs. In 2009, Oregon passed legislation requiring certain places of public assembly, defined as a facility of 50,000 square feet or more and at least 50 individuals congregated on a normal business day, to have AEDs. In 2010, Oregon also passed a law requiring each school campus in a school district, private school campus and public charter school campus to have at least one AED on premises. Community colleges and public universities are also required to have at least one AED on the campus in Oregon.

Related Legislation

SB 658 (Hill), as amended April 27, 2015, repeals and revises various requirements relating to persons or entities who acquire AEDs and makes the civil liability immunity in existing law for persons or entities who acquire an AED no longer conditional upon meeting specified requirements.

Prior Legislation

SB 1436 (Lowenthal, Chapter 71, Statutes of 2012), removed the sunset date, thereby making permanent, the existing protections that provide immunity from civil damages in connection with the use of AEDs.

SB 127 (Calderon, Chapter 500, Statutes of 2010) removed the July 1, 2012 sunset date for existing requirements that every health studio acquires and maintains an AED and trains personnel in its use thereby extending these requirements indefinitely.

SB 63 (Price, 2011) would have stated the intent of the Legislature that all public high schools acquire and maintain at least one AED and would have require schools that decide to acquire and maintain an AED, or to continue to use and maintain an existing AED, to comply with specified requirements. SB 63 was held in the Senate Appropriations Committee.

AB 2083 (Vargas, Chapter 85, Statutes of 2006) extended the sunset date from 2008 to 2013 on the operative provisions of existing law which provide immunity from civil damages for persons or entities that acquire AEDs and comply with maintenance, testing, and training requirements.

AB 1507 (Pavley, Chapter 431, Statutes of 2005) required all health studios in the state to have AEDs available with properly trained personnel until July 1, 2012.

AB 2041 (Vargas, Chapter 718, Statutes of 2002) expanded the immunity protections for the use or purchase of an AED, and included a sunset date of 2008.

SB 911 (Figueroa, Chapter 163, Statutes of 1999) created qualified immunity from civil liability for trained persons who use in good faith and without compensation an AED in rendering emergency care or treatment at the scene of an emergency.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 5/14/15)

American Medical Response

California Professional Firefighters

California State Firefighters’ Association

Madaffer Enterprises, Inc.

Paramedics Plus

San Diego City Fire Fighters Local 145

San Ysidro Health Center

Sudden Cardiac Arrest Foundation

OPPOSITION: (Verified 5/14/15)

Building Owners and Managers Association of California

California Business Property Association

Commercial Real Estate Development Association, NAIOP of California

International Council of Shopping Centers

ARGUMENTS IN SUPPORT: The California Professional Firefighters supports this bill, stating that when an AED is used to treat cardiac arrest, it serves as a life-saving device given that cardiac arrest is a sudden condition that can be fatal if not treated within a few minutes. Paramedics Plus, Alameda’s 911 EMS ambulance provider, also supports this bill, stating that AEDs are inexpensive, easy to use, and save lives. Paramedics Plus states that having access to an AED in a timely manner can increase an individual’s probability of a heart attack by as much as 70%. Paramedics Plus also suggests an amendment to this bill which would coordinate the location of each AED in 911 EMS dispatch centers. By identifying the location of AEDs, Paramedics Plus believes response times will be cut in emergencies thus saving even more lives. The Sudden Cardiac Arrest Foundation supports this bill by stating that by requiring the deployment of AEDs as part of an emergency response plan, there will be a more effective and efficient emergency response system in California commercial properties.

ARGUMENTS IN OPPOSITION: The California Business Properties Association, Building Owners and Managers Association of California, Commercial Real Estate Development Association, and International Council of Shopping Centers all oppose this bill, stating that advancements in technology in the use of AEDs has made the existing standards for training and testing obsolete. These opponents note that SB 648 (Hill, 2015) proposes to reform these outdated requirements that have become barriers to installation. Opponents state that mandating installation before this reform has been enacted will put property owners and tenants in an untenable position where they may be forced to install a device but physically cannot comply with the training requirements required by statute. Opponents also state that building code has traditionally applied equally to all structures based on occupancy, regardless of ownership.

Prepared by: Juan Reyes / HEALTH /

5/15/15 15:24:27

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SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 287 (Author:Hueso)

Version: February 19, 2015

Hearing Date: May 12, 2015

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Automated external defibrillators (AEDs)

DESCRIPTION

Existing law provides a qualified immunity for a person or entity that acquires an AED for emergency use if they comply with certain maintenance, training, and notice requirements and do not otherwise act with gross negligence or willful or wanton misconduct. Existing law also requires, if the AED is placed in a building, the building owner must:

• ensure 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; and

• notify tenants as to the location of AED units in the building at least once a year.

This bill would require certain structures with occupancy of 200 or more that are not owned or operated by the state or any local government entity and are constructed on or after January 1, 2016, to have an AED on the premises. The bill would also exempt single and multi-family dwellings and parking garages. This bill would require a person or entity that supplies an AED to comply with specified existing law regarding AEDs, and would exempt a person or entity that supplies an AED from liability for civil damages resulting from uses or non-uses of an AED, if the person or entity complies with existing requirements.

BACKGROUND

According to 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 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. Most recently, SB 1436 (Lowenthal, Ch. 71, Stats. 2012) was enacted to delete the sunset, thereby extending the operation of those provisions indefinitely.

While California law has generally left the decision of whether or not to provide an AED in a building up to the building owner, in 2005, AB 1507 (Pavley, Ch. 431, Stats. 2005) was enacted to require health studios to acquire, maintain, and train personnel in the use of AEDs. AB 1507 specifically applied most of existing law to health studios but made the acquisition of AEDs mandatory rather than voluntary until July 1, 2012. Then, in 2010, SB 127 (Calderon, Ch. 500, Stats. 2010) was enacted to extend the health studios’ AED mandate indefinitely, but changed the requirement that trained personnel be available to respond to an emergency during normal operating hours to instead require that they be available during “staffed” operating hours. That bill also provided that a health studio that allows its members access to its facilities when employees trained in the use of AEDs are not present, waives the following: (1) existing law’s exemption from liability for civil damages, as specified; and (2) the affirmative defense of primary assumption of the risk, whether express or implied, as to a claim arising out of the absence of trained staff.

Of note, in December 2008, the San Diego City Council voted unanimously to require defibrillators in all new buildings with more than three stories or more than 10,000 square feet; in places of assembly with capacity for more than 300 people; and in educational facilities with 200 or more students. That legislation reportedly “covers practically all new commercial buildings; medical, dental, and outpatient clinics; hotels; motels; restaurants; schools; theaters; churches; and warehouses.” The municipal building code requires new buildings to be prewired during construction for dedicated wall mounts for AED systems with self-testing alarms, similar to requirements for installations of sprinkler systems and fire alarms. Also under that code, building owners are required to register their AED equipment with the fire rescue department, test it annually, and notify the fire department each time the device is used. (Madaffer, For Safety’s Sake, Occupational Health & Safety (Feb. 2009) <http://ohsonline.com/Articles/2009/02/01/For-Safety-Sake.aspx> [as of May 6, 2015]; see also San Diego Municipal Code, Chapter 14, Article 5, Division 39: Automated External Defibrillators, Secs. 145.3901 - 145.3935, <http://docs.sandiego.gov/municode/MuniCodeChapter14/Ch14Art05Division39.pdf> [as of May 6, 2015].)

This bill would now generally require certain structures with occupancy of 200 or more that are not owned or operated by the state or any local government entity and are constructed on or after January 1, 2016, to have an AED on the premises, as specified.

CHANGES TO EXISTING LAW

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 has complied with specified maintenance, training, and notice requirements of Health and Safety Code Section 1797.196. (Civ. Code Sec. 1714.21(d).)

Existing law provides, in relevant part, that any person or entity responsible for the site where the AED is located, is not liable for any civil damages resulting from any acts or omissions by the person who uses the AED to render emergency care provided that the physician, person, or entity has complied with applicable requirements of Health and Safety Code Section 1797.196. (Civ. Code Sec. 1714.21(e).)

Existing law provides that the qualified immunities described above do not apply in the case of personal injury or wrongful death which 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, Section 1797.196 of the Health and Safety Code, sets forth various maintenance, training, and notice requirements that must be met in order for the above statutory immunity provisions to apply to a person or entity acquiring an AED. Specifically, 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:

1. Complies with all regulations governing the placement of an AED;

2. Ensures each of the following:

• 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;

• that 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, and records of these checks are maintained;

• that any person who renders emergency care using the AED activates the emergency medical services (EMS) system as soon as possible, and reports any use of the AED to the local EMS agency;

• that for every AED unit acquired up to five units, at least one employee per unit must complete a training course in cardiopulmonary resuscitation (CPR) and AED use and after the first five AED units are acquired, for each additional five units acquired, one employee is 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; and

• that there is a written plan describing the procedures to be followed in the event of an emergency that may involve using an AED.

3. Complies with the following, where applicable:

• if the AED is placed in a building, building owners must annually provide tenants with a brochure describing the proper use of an AED, and also ensure that similar information is posted next to any installed AED;

• if the AED is placed in a building, building owners must notify tenants as to the location of AED units in the building at least once a year; and

• 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. (Health & Saf. Code Sec. 1797.196(b).)
  
  

Existing law provides that the above qualified immunities do not apply in the case of personal injury or wrongful death which results from the gross negligence or willful or wanton misconduct of the person who uses the AED to render emergency care. (Health & Saf. Code Sec. 1797.196(e).)

Existing law additionally requires, if supplying an AED, that the person or entity must (1) notify an agent of the local EMS agency of the existence, location, and type of AED acquired; and (2) provide the AED acquirer with information regarding the AED’s use, installation, operation, training, and maintenance. (Health & Saf. Code Sec. 1797.196(c).)

Existing law specifies that nothing in the above sections (Health and Safety Code Section 1797.196 or Civil Code Section 1714.21) may be construed to require a building owner or a building manager to acquire and install an AED in any building. (Health & Saf. Code Sec. 1797.196(f).)

This bill would require certain buildings with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2016, to have an automated external defibrillator (AED) on the premises, subject to the above requirements of the Health and Safety Code. Specifically, the bill would apply to:

• assembly buildings with an occupancy of greater than 300;

• business buildings with an occupancy of 200 or more;

• educational buildings with an occupancy of 200 or more;

• factory buildings with an occupancy of 200 or more;

• high hazard buildings with an occupancy of 200 or more;

• institutional buildings with an occupancy of 200 or more;

• mercantile buildings with an occupancy of 200 or more;

• residential buildings with an occupancy of 200 or more, excluding single-family and multi-family dwelling units; and

• storage buildings with an occupancy of 200 or more, excluding parking garages.

This bill would exempt a structure owned or operated by the state or any local government entity.

This bill would provide that a person or entity that supplies an AED as required shall not be liable for any civil damages pursuant to the existing law above.

COMMENT

1. Stated need for the bill

As stated by the author:

According to the American Heart Association, brain death and permanent death start to occur 4-6 minutes after someone experiences cardiac arrest. Nationally, the average [e]mergency medical response time is between 8-12 minutes, which is often too late. By having AED devices in large, public places, more individuals will be within 4 minutes of an AED, and will have a significantly higher chance of surviving.

This bill would require newly constructed buildings with occupancy of 200 or more to have an AED device. This exempts single and multi-family dwellings and parking garages. In addition, buildings classified as an Assembly building under the building code will have a 300 person requirement. The bill exempts public buildings. [ . . . ]

By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be within 4 minutes of an AED, substantially increasing their chance of survival. The City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals.

The Sudden Cardiac Arrest Foundation (SCAF) writes in support that “[a]bout 326,000 people suffer SCA outside hospitals each year in the U.S. On average, only 10 percent of victims survive. Yet when bystanders provide CPR and use AEDs before EMS arrives, survival rates increases to 40 percent.” SCAF adds that given that “AEDs are safe, effective, and designed for use by laypersons” and “the fact that AEDs are increasingly affordable, we believe that requiring AEDs to be installed in newly constructed buildings will certainly support the health and occupational safety codes in California. By requiring AED deployment as part of an emergency response plan, we can serve a more effective and efficient emergency response system in California commercial properties. “

Also in support, the American Medical Response (AMR) writes that “[t]he need for this bill could not be clearer. Having AEDs on site and available for use when someone suffers a Sudden Cardiac Arrest is proven to help save lives.”

2. Bill would expand the availability of AEDs to save lives while extending existing immunity protections to good actors who comply with certain safeguards

This bill would require newly constructed buildings built on or after January 1, 2016, generally with occupancy of 200 or more, to have an AED on the premises. The bill would also exempt single and multi-family dwellings and parking garages, as well as public buildings. In creating a statutory duty for these newly constructed buildings to provide AEDs on the premises, the bill would also extend existing qualified immunity provisions to a person or entity that supplies an AED pursuant to the bill. Currently, California law provides a qualified immunity to any person or entity that acquires an AED for emergency use if they comply with certain maintenance, training, and notice requirements and do not otherwise act with gross negligence or willful or wanton misconduct. Existing law also requires, if the AED is placed in a building, the building owner must:

• ensure 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; and

• notify tenants as to the location of AED units in the building at least once a year.

Under this bill, if a person or entity that supplies an AED complies with those existing requirements, that person or entity would not be liable for civil damages resulting from uses or non-uses of an AED absent gross negligence or willful or wanton misconduct. In other words, consistent with existing law, a person or entity that acquires an AED and fails to comply with the statutory maintenance, training, and notice requirements cannot obtain the protections of limited liability. As a result, this bill would promote the public policy of protecting public health and safety, and continue to incentivize persons or entities that place these AEDs in their buildings to ensure certain safeguards (that require the AED be successfully placed, properly maintained, and anticipated users be properly trained) are met. By requiring placement and compliance with those safeguards, this bill would arguably increase the likelihood that an AED will be available, in working order at the time of an emergency, and that a person is present who is familiar with the machine and efficiently able to administer proper care, including CPR.

3. Case law on the liabilities of persons or entities supplying AEDs under existing law

While there do not appear to be many lawsuits that have arisen out of the use or non-use of an AED, Committee staff is aware of two cases regarding AEDs in California. In the first, Rotolo v. San Jose Sports and Entertainment (2007) 151 Cal.App.4th 307, a lawsuit was brought by the parents of a 17-year-old who experienced sudden cardiac arrest and collapsed on the ice while participating in a hockey tournament game on the south rink at Logitech Ice. Two event bystanders, mothers of other participants in the event, responded to the medical emergency. One held a nursing degree and was licensed in California; the other had completed a “First Responder” course and a “Nurse’s Aid” course. While they provided CPR to the teen, 911 was called to report the incident to the appropriate emergency responders. As described by the court, sometime prior to this incident one or more AED’s had been acquired and installed at the Logitech Ice facility. Respondents had placed one AED on the wall in the area near the penalty box of the south rink where the teenager had collapsed. As described in that case, “[r]espondents had not informed the tournament participants, the coaches, the officials, or the spectators of the existence and location of the AED’s. No one was aware that an AED was installed and available for use close to the south rink. Neither one of the referees officiating the game was aware of the AED. Both [the mothers who performed CPR on Rotolo] had been trained and certified in the use of AED’s. However, no one informed them that there was an AED nearby.” The teenager did not survive. (Id. at 316-317.)

In that case, the Superior Court ruled in favor of the defendants, holding that the Legislature had occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AEDs, which reflected legislative policy to encourage the availability of AEDs by providing immunity from liability for those who acquired the devices, when they were used in an attempt to save a life.

Those who do install AED’s in their buildings will not be liable for damages resulting from the rendering of emergency care with an AED, so long as certain requirements are met, including maintenance, testing, posting and notice. [Citations omitted.] The notice that is required is specifically limited to tenants of the building where the AED is located. [Citations omitted.] The only other notice requirement set forth in these statutes is that the person or entity that supplies an AED must notify the local emergency services agency of its location. [Citations omitted.] Nothing in these statutes requires that a building owner or manager give notice to particular members of the public expected to use the building. Furthermore, we believe the imposition of such duties that are not clearly outlined in the statutes would tend to discourage, rather than to encourage, the voluntary acquisition of AED’s, and would thus defeat the underlying legislative purpose of promoting the widespread use of these devices. (Id. at 314.)

The court also held that, under the common law, the duty of care of a landlord (based on the special relationship to tenants and invitees) had never been extended to impose an affirmative duty such as the parents sought to impose, to give notice to prospective invitees of the existence and location of a medical device. (Id. at 314-315.)

Most recently, in 2014, at the request of the Ninth Circuit, the California Supreme Court addressed the following certified question: whether, under California law, the common law duty of reasonable care that the defendant retailer owed to its business customers included an obligation to obtain and make available on its business premises an AED for use in a medical emergency. Notably, that case, Verdugo v. Target Corporation (2014) 59 Cal.4th 312, overruled Rotolo to the extent that the case, in dicta, stated broadly that the legislature has occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AEDs. (Id. at 334.)

In Target, the lawsuit arose after a customer at Target suffered sudden cardiac arrest and collapsed while shopping at a Target department store in Pico Rivera, California. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store. After the incident, the deceased’s mother and brother filed the underlying lawsuit against Target, maintaining that Target breached the duty of care that it owed to Verdugo, a business customer, by failing to have on hand within its department store an AED for use in a medical emergency.

There, the California Supreme Court held that the existing state statutes on AEDs cannot properly be interpreted to preclude a court from determining whether a business’s common law duty to exercise reasonable care with regard to the health and safety of its customers includes, either in general or in particular circumstances, an obligation to acquire and make available an AED for use in a medical emergency. (Id. at 321.) The AED statutes, when viewed as a whole, the court held, do not fully “occupy the field” and thereby implicitly preclude California courts from determining whether, under California common law, a retailer’s common law duty of reasonable care to its patrons includes an obligation to acquire and make available an AED for use in a medical emergency. (Id. at 334.) In light of the extent of the burden that would be imposed by a requirement to acquire and make available an AED and in the absence of any showing of heightened foreseeability of sudden cardiac arrest or of an increased risk of death, the Supreme Court held it was appropriate under these circumstances to leave to the legislature the policy decision whether a business should be required to acquire and make available an AED for the protection of its patrons. (Id. at 341.)

This bill would appear to make that very policy decision, while still providing some limited liability protections for persons or entities placing these AEDs in their buildings, as long as they comply with the maintenance, training, and notice safeguards of existing law and do not act with gross negligence or willful or wanton misconduct.

4. Opposition concerns

A coalition of the California Business Properties Association, Building Owners and Managers Association of California, Commercial Real Estate Development Association, NAIOP of California, and International Council of Shopping Centers writes in opposition stating that the better approach to increasing the availability of AEDs is to reform the “outdated” training, maintenance and notice requirements under existing law—which SB 658 (Hill, 2015), also set for hearing in this Committee—would do.

The opposition believes that these outdated statutes have become barriers to installation and that “mandating installation of AEDs while ignoring this reform will put property owners and tenants in an untenable position where they may be forced to install a device but physically cannot comply with the training requirements required by statute.” Opponents also assert that the building code has traditionally applied equally to all structures based on occupancy, regardless of ownership—whereas this bill exempts public buildings.

Support: American Medical Response; California Professional Firefighters; California State Firefighters’ Association; Paramedics Plus; San Diego City Fire Fighters Local 145; San Ysidro Health Center; and Sudden Cardiac Arrest Foundation

Opposition: California Business Properties Association; Building Owners and Managers Association of California; Commercial Real Estate Development Association, NAIOP of California; and International Council of Shopping Centers

HISTORY

Source: Author

Related Pending Legislation: SB 658 (Hill) would expand the existing AED immunity provisions by removing as a condition of immunity, the requirement that a person or entity acquiring AEDs comply with specified maintenance, training, and notice requirements. SB 658 would separately require that a person or entity acquiring an AED need only meet certain minimal maintenance and notice requirements, and would repeal training requirements from existing law. This bill is also set for hearing in this Committee on May 12, 2015.

Prior Legislation:

SB 1436 (Lowenthal, Ch. 71, Stats. 2012) See Background.

SB 1281 (Padilla, 2010) See Background.

SB 127 (Calderon, Ch. 500, Stats. 2010) See Background.

AB 2083 (Vargas, Ch. 85, Stats. 2006) See Background.

AB 2041 (Vargas, Ch. 718, Stats. 2002) See Background.

SB 911 (Figueroa, Ch. 163 Stats. 1999) See Background.

Prior Vote: Senate Health Committee (Ayes 9, Noes 0)

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SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 287

SUBJECT: Automated external defibrillators (AEDs)

SUMMARY:

Requires certain buildings with capacities of 200 persons or greater, as specified, constructed on or after January 1, 2016, to have an automated external defibrillator (AED) on the premises.

Existing law:

1. Classifies, in the California Code of Regulations (Regulations), all buildings and structures as to use and occupancy, and requires a room or space that is intended to be occupied at different times for different purposes to comply with all of the requirements that are applicable to each of the purposes for which the room or space will be occupied.

2. Provides, in the Civil Code, immunity from civil liability for the acts or omissions of 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.

3. Provides, in the Civil Code, immunity from civil liability for any acts or omissions in the rendering of emergency care by the use of an AED for a person or entity that acquires an AED for emergency use, if that person or entity has complied with certain specified requirements in the Health and Safety Code.

4. Provides, in the Health and Safety Code, immunity from civil liability for a person or entity that acquires an AED for any acts or omissions in the rendering of emergency care if that person or entity meets various requirements, including:

1. Ensures that the AED is checked for readiness after each use and at least once every 30 days;

2. Ensures that any person who renders emergency care or treatment by using an AED activates the emergency medical services system as soon as possible and reports the use to the licensed physician and to the local EMS agency;

3. Ensures that for every AED unit acquired up to five units, no less than one employee per AED unit, and one employee for every additional five units, complete a training course in cardiopulmonary resuscitation (CPR) and AED use, as specified.

4. Ensure that tenants in a building where an AED is placed receive a brochure describing the proper use of an AED and are notified once a year of the location of AEDs.

This bill:

1. Requires the following structures that are constructed on or after January 1, 2016, to have an AED on the premises subject to the existing requirements listed in the Health and Safety Code related to training and maintenance:

1. Assembly buildings, as defined, with an occupancy of greater than 300;

2. Business buildings, educational buildings, factory buildings, high-hazard buildings, institutional buildings, mercantile buildings, and storage buildings, as each of these buildings are defined, and if they have occupancies of 200 or more; and,

3. Residential buildings with occupancy of 200 or more, excluding single-family and multi-family dwelling units.

2. Provides immunity from civil liability for a person or entity that supplies an AED pursuant to this bill, as specified in existing provisions of law that condition immunity on meeting certain requirements related to training and maintenance of the AEDs.

3. Excludes structures owned or operated by the state or any local entity from the provisions of this bill.

FISCAL EFFECT:

This bill has been keyed non-fiscal.

COMMENTS:

1. Author’s statement. According to the author, an estimated 350,000 individuals in the United States will suffer this year from a Sudden Cardiac Arrest (SCA). For every minute an individual goes without receiving defibrillation from an AED, an individual’s chances of surviving from SCA go down by 10 percent. Brain death and permanent death start to occur 4–6 minutes after someone experiences cardiac arrest. The use of an AED in a timely manner can increase an individual’s probability of survival by 70 percent. By requiring AED devices in newly constructed buildings with large occupancies, we can ensure that more individuals will be located within 4 minutes of an AED, substantially increasing their chance of survival. In my district, the City of San Diego has implemented a similar ordinance, and has supported Project Heartbeat, which provides AEDs and has saved 123 individuals.

2. Background. According to the American Heart Association (AHA), an AED is a lightweight, portable device that delivers an electric shock through the chest to the heart. The shock can stop an irregular rhythm and allow a normal rhythm to resume in a heart in sudden cardiac arrest. Sudden cardiac arrest is an abrupt loss of heart function. If it is not treated within minutes, it quickly leads to death. The AED has a built-in computer which assesses the patient's heart rhythm, determines whether the person is in cardiac arrest, and signals whether to administer the shock. Audible cues guide the user through the process.

According to the AHA, each year in the U.S., there are approximately 359,400 Emergency Medical Services (EMS)-assessed cardiac arrests outside of a hospital setting and on average, less than 10 percent of victims survive. Early defibrillation, along with CPR, is the only way to restore the victim’s heart rhythm to normal in a lot of cases of cardiac arrest. For every minute that passes without CPR and defibrillation, however, the chances of survival decrease by 7 to 10 percent. The 2013 Update of AHA’s Heart Disease and Stroke Statistics shows that 23 percent of out-of-hospital cardiac arrests are "shockable" arrhythmias, or those that respond to a shock from an AED, making AEDs in public places highly valuable. Yet, AHA states there are not enough AEDs and persons trained in using them and performing CPR to provide this life-saving treatment, resulting in lost opportunities to save more lives. Communities with comprehensive AED programs that include CPR and AED training for rescuers have achieved survival rates of nearly 40 percent for cardiac arrest victims. AHA states on its website that it supports placing AEDs in targeted public areas such as sports arenas, gated communities, office complexes, doctor’s offices, and shopping malls. When AEDs are placed in the community or a business or facility, AHA strongly encourages that they be part of a defibrillation program which includes notification to the local EMS office when an AED is acquired, that a licensed physician or medical authority provides medical oversight to ensure quality control, and that persons responsible for using the AED are trained in CPR and how to use an AED.

3. California Code of Regulations Building Classification. In California’s Building Standards Code, Part 2, Chapter 3, buildings and structures are classified with respect to use and occupancy in each of the groups as follows:

1. Defines Assembly Group A occupancy as including, among others, the use of a building or structure, or portion thereof, for the gathering of persons for purposes such as civic, social, or religious functions; recreation, food, or drink consumption or motion picture and television production sound stages, approved production facilities and production locations.

2. Defines Business Group B occupancy as including, among others, the use of a building or structure, or portion thereof, for office, professional, or service-type transactions, including storage of records and accounts.

3. Defines Educational Group E occupancy as including, among others, the use of a building or structure, or portion thereof, by more than six persons at any one time for educational purposes through the 12th grade, except a residence used as a home school for the children who normally reside at the residence.

4. Defines Factory Industrial Group F occupancy as including, among others, the use of a building or structure, or portion thereof, for assembling, disassembling, fabricating, finishing, manufacturing, packaging, repair or processing operations that are not classified as a Group H hazardous or Group S storage occupancy.

5. Defines High-hazard Group H occupancy as including, among others, the use of a building or structure, or portion thereof, that involves the manufacturing processing, generation or storage of materials that constitute a physical or health hazard in quantities in excess of those allowed in control areas, as further defined.

6. Defines Institutional Group I occupancy as including, among others, the use of a building or structure, or portion thereof, in which care or supervision is provided to persons who are or are not capable of self-preservation without physical assistance or in which persons are detained for penal or correctional purposes or in which the liberty of the occupants is restricted.

7. Defines Mercantile Group M occupancy as including, among others, the use of a building or structure, or portion thereof, for the display and sale of merchandise and involves stocks of goods, wares or merchandise incidental to such purposes and accessible to the public.

8. Defines Residential Group R occupancy as including, among others, the use of a building or structure, or portion thereof, for sleeping purposes when not classified as Group I occupancy or when not regulated by the California Residential Code.

9. Defines Storage Group S occupancy as including, among others, the use of a building or structure, or portion thereof, for storage that is not classified as a hazardous occupancy.

4. Verdugo v. Target. On August 31, 2008, Mary Ann Verdugo was shopping at a large Target store in Pico Rivera with her mother and brother when she suffered a sudden cardiac arrest and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store.

The Verdugo family filed a lawsuit alleging Target breached the duty of care that it owed to its business customers, including Mary Ann, by failing to have an AED for use in a medical emergency. After moving the case from the Los Angeles County Superior Court to the federal district court, the federal district court dismissed the case after concluding Target had no duty to acquire and make available an AED for the use of its customers. The plaintiffs appealed to the Ninth Circuit Court of Appeals, at which point the panel turned to the California Supreme Court “as better positioned to address [this] major question of California tort law than this court.” The California Supreme Court construed the Ninth Circuit Court of Appeals’ question as “whether, under California law, the common law duty of reasonable care that defendant Target Corporation owes to its business customers includes an obligation to obtain and make available on its business premises an [AED] for use in a medical emergency.” On June 23, 2014, the California Supreme Court answered the question by ruling that, “[U]nder California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” On October 28, 2014, the Ninth Circuit Court of Appeals, following the guidance of the California Supreme Court, affirmed the federal district court’s ruling that Target had no common law duty to provide an AED in its stores.

Judge Pregerson, a panelist of the Ninth Circuit Court of Appeals, in a separate opinion, wrote:

“The California Supreme Court has spoken. This decision holds that ‘under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.’ And so, in this diversity case, that holding controls. But that decision troubles me. Therefore, I write separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency. Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life-saving AEDs available.”

5. Other jurisdictions. In November 2008, the San Diego City Council passed legislation with requirements nearly identical to the provisions of this bill. Over the last six years, the Oregon State Legislature has passed several pieces of legislation relating to AEDs. In 2009, Oregon passed legislation requiring certain places of public assembly, defined as a facility of 50,000 square feet or more and at least 50 individuals congregated on a normal business day, to have automated external defibrillators. In 2010, Oregon also passed a law requiring each school campus in a school district, private school campus and public charter school campus to have at least one AED on premises. Community colleges and public universities are also required to have at least one AED on the campus in Oregon.

6. Double referral. This bill is double referred. Should it pass out of this committee, it will be referred to the Senate Judiciary Committee.

7. Related legislation. SB 658 (Hill), repeals various requirements relating to persons or entities who acquire automated external defibrillators (AEDs), including requirements that employees complete training and that the AEDs be checked every 30 days, and makes the civil liability immunity in existing law for persons or entities who acquire an AED no longer conditional upon meeting specified requirements. This bill was heard in this committee on April 8, 2015 and passed 9-0. This bill is pending in the Senate Judiciary Committee.

8. Prior legislation. SB 1436 (Lowenthal), Chapter 71, Statutes of 2012, removed the sunset date, thereby making permanent, the existing protections that provide immunity from civil damages in connection with the use of AEDs.

SB 127 (Calderon), Chapter 500, Statutes of 2010, removed the July 1, 2012 sunset date for existing requirements that every health studio acquires and maintains an AED and trains personnel in its use thereby extending these requirements indefinitely.

SB 63 (Price), of 2011, would have stated the intent of the Legislature that all public high schools acquire and maintain at least one AED and would require schools that decide to acquire and maintain an AED, or to continue to use and maintain an existing AED, to comply with specified requirements. SB 63 was held in the Senate Appropriations Committee.

AB 2083 (Vargas), Chapter 85, Statutes of 2006, extended the sunset date from 2008 to 2013 on the operative provisions of existing law which provide immunity from civil damages for persons or entities that acquire AEDs and comply with maintenance, testing, and training requirements.

AB 1507 (Pavley), Chapter 431, Statutes of 2005, required all health studios in the state to have automatic external defibrillators (AEDs) available with properly trained personnel until July 1, 2012.

AB 2041 (Vargas), Chapter 718, Statutes of 2002, expanded the immunity protections for the use or purchase of an AED, and included a sunset date of 2008.

SB 911 (Figueroa), Chapter 163, Statutes of 1999, created qualified immunity from civil liability for trained persons who use in good faith and without compensation an AED in rendering emergency care or treatment at the scene of an emergency.

9. Support. The California Professional Firefighters supports this bill, stating that when an AED is used to treat cardiac arrest, it serves as a life-saving device given that cardiac arrest is a sudden condition that can be fatal if not treated within a few minutes. Paramedics Plus, Alameda’s 911 EMS ambulance provider, also supports this bill, stating that AEDs are inexpensive, easy to use, and save lives. Paramedics Plus states that having access to an AED in a timely manner can increase an individual’s probability of a heart attack by as much as 70 percent. Paramedics Plus also suggests an amendment to the bill which would coordinate the location of each AED in 911 EMS dispatch centers. By identifying the location of AEDs, Paramedics Plus believes response times will be cut in emergencies thus saving even more lives. The Sudden Cardiac Arrest Foundation supports this bill by stating that by requiring the deployment of AEDs as part of an emergency response plan, there will be a more effective and efficient emergency response system in California commercial properties.

10. Opposition. The California Business Properties Association, Building Owners and Managers Association of California, Commercial Real Estate Development Association, and International Council of Shopping Centers all oppose this bill, stating that advancements in technology in the use of AEDs has made the existing standards for training and testing obsolete. These opponents note that SB 648 (Hill), which passed this committee on April 8, 2015, proposes to reform these outdated requirements that have become barriers to installation. Opponents state that mandating installation before this reform has been enacted will put property owners and tenants in an untenable position where they may be forced to install a device but physically cannot comply with the training requirements required by statute. Opponents also state that building code has traditionally applied equally to all structures based on occupancy, regardless of ownership.

SUPPORT AND OPPOSITION:

Support: California Professional Firefighters

Paramedics Plus

Sudden Cardiac Arrest Foundation

Oppose: California Business Properties Association

Building Owners and Managers Association of California

Commercial Real Estate Development Association, NAIOP of California

International Council of Shopping Centers

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