BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Joseph L. Dunn, Chair
                             2005-2006 Regular Session


            AB 1507                                                A
            Assembly Member Pavley                                 B
            As Amended July 11, 2005
            Hearing Date: July 12, 2005                            1
            Health and Safety Code                                 5
            GWW:rm                                                 0
                                                                   7

                                           
                                      SUBJECT
                                           
             Automatic External Defibrillators: Mandatory Placement in  
                                  Health Studios 

                                           
                                    DESCRIPTION  

            This bill would, for a five-year period beginning July 1,  
            2007, require a health studio, as defined, to acquire,  
            maintain, and train personnel in the use of automatic  
            external defibrillators (AEDs), as specified.  Employees of  
            the health studio, the facility's board of directors and  
            the facility itself would be immunized from civil liability  
            for injuries resulting from the rendering of emergency care  
            with an AED, except for injury or death that results from  
            gross negligence or willful or wanton misconduct in the  
            use, attempted use, or nonuse of the AED.  A facility's  
            immunity would be further conditioned upon the facility  
            complying with specified maintenance, training, and  
            staffing requirements.  (This immunity would track the  
            immunity provided by existing law to building owners who  
            voluntarily install AEDs in their buildings.)  

             
            As amended by anticipated author's amendments, after July  
            1, 2012, health studios opting to continue making available  
            AEDs installed pursuant to AB 1507's mandate, would  
            continue to be conditionally immunized from civil liability  









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            for injuries resulting from use or non-use of the AED so  
            long as they complied with the specified maintenance,  
            training, and staffing requirements. 

            The bill would define a "health studio" as any facility  
            permitting the use of its facilities and equipment, or  
            access thereto, to individuals or groups for physical  
            exercise, body building, reducing, figure development,  
            fitness training, or any other such purpose, on a  
            membership basis.  The bill would not apply to any hotel or  
            similar business that offers fitness facilities to its  
            registered guests for a fee or as part of the hotel  
            charges. 

            (This analysis reflects author's amendments to be offered  
            in committee.)
                                           
                                     BACKGROUND  

            AB 1507 was heard by this committee on June 28 and failed  
            passage 3 - 2.  Since then, the author has agreed to accept  
            a five-year sunset of the mandate for health studios to  
            install AEDs in their facilities.  Two other amendments are  
            necessary, however, to restore language omitted or changed  
            unilaterally by Legislative Counsel's office in the July 11  
            amendments.  (See Comment 1.)   

            An AED is a small, lightweight medical device used to  
            assess a person's heart rhythm and, if necessary,  
            administer an electric shock through the chest wall to  
            restore a normal heart rhythm in victims of sudden cardiac  
            arrest.  Built-in computers assess the patient's heart  
            rhythm, determine whether the person is in cardiac arrest,  
            and signal whether to administer the shock.  Audible cues  
            guide the user through the process.  Portable AEDs are  
            available upon a prescription from a medical authority.   
            Their general cost is about $2,500 to $3,000 per unit.  

            AEDs are said to be "fool-proof," but some AEDs have been  
            recalled recently by the manufacturer.  (AED's by Access  










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            CardioSystems recalled due to serious issues in  
            performance.  November 9, 2004, EMSNetwork News.)  In  
            addition, AED malfunctions have been reported, with most  
            malfunctions attributable to a weak or discharged battery.

            According the American College of Emergency Physicians  
            (ACEP) website, if a person suffers a sudden cardiac  
            arrest, chances of survival decrease by 7 to 10 percent for  
            each minute that passes without defibrillation.  A victim's  
            best chance for survival is when there is revival within  
            four minutes.  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.    

            The ACEP supports increased public access to AEDs as part  
            of a comprehensive emergency response plan that is  
            coordinated with community medical services systems and  
            with appropriate training.  The National Center for Early  
            Defibrillation adds that attention to maintenance and the  
            development of procedures to enable quick access to the AED  
            are also necessary

            In 1999, the Legislature enacted SB 911 (Figueroa) to  
            provide a 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.  The qualified  
            immunity would also extend to those businesses that  
            purchased the device, the medical authority that prescribed  
            the device, and the agency that trained the person in the  
            AED use, provided that specified training and maintenance  
            requirements were met.  The immunities do not apply in  
            cases of personal injury resulting from gross negligence of  
            willful or wanton misconduct.  SB 911 was enacted to a  
            five-year sunset to allow assessment of the impact of its  
            provisions.  

            In 2002, the Legislature enacted AB 2041 (Vargas), Chapter  
            718, Statutes of 2002, to modify the conditions for  










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            immunizing the AED user and purchasing business.  It  
            eliminated the CPR and AED-use training requirements for  
            users and relaxed the facility's training and staffing  
            requirements.  AB 2041 was enacted with a five-year sunset  
            to allow an assessment of its broader immunity provisions.   
              

            This bill would specifically apply most of the AB 2041  
            provisions to health studios, and would make their  
            acquisition mandatory rather than voluntary.   It, too,  
            would have a five-year sunset to gauge the impact of the  
            law.  

                               CHANGES TO EXISTING LAW
             
             Existing law  , Civil Code Section 1714.21, immunizes from  
            civil liability:
            1) Any person who, in good faith and not for compensation  
              renders emergency treatment by the use of an automated  
              external defibrillator (AED) at the scene of an  
              emergency.  
            2)A person or entity (e.g., a building owner) that provides  
              CPR and AED training to a person who renders emergency  
              care pursuant to (1) above.  (However, CPR and AED  
              training is not required for the Good Samaritan user's  
              immunity.)  
            3)   A person or entity that acquires an AED for emergency  
              use if the person or entity has complied with specified  
              training and staffing requirements, as set forth in  
              subdivision (b) of Section 1797.196 of the Health and  
              Safety Code.

            The immunity does not apply in cases of gross negligence or  
            willful or wanton misconduct.  
             
            Existing law  , scheduled for sunset on January 1, 2008,  
            provides any person or entity that acquires an AED with an  
            immunity from liability for its use by any person rendering  
            emergency care under Civil Code Section 1714.21, if the  
            person or entity ensures all of the following:










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            a)   That the AED is regularly maintained and regularly  
              tested according to the operation and maintenance  
              guidelines set forth by the manufacturer;
            b)That the AED is checked for readiness after each use and  
              at least once every 30 days if the AED has not been used  
              in the preceding 30 days.  Records of these periodic  
              checks are also required;
            c)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 any use of the  
              AED to the licensed physician and to the local Emergency  
              Medical Services (EMS) agency; 
            d)  That for every AED unit acquired up to five units, no  
              less than one employee per AED unit shall complete a CPR  
              training course that complies with specified standards.   
              After five units, at least one employee shall be trained  
              for every extra five AEDs installed;
            e)   That 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 business hours; 
            f)    That building owners prepare a written plan  
              describing the procedures to be followed in the event of  
              an emergency requiring the use of an AED.  The plan shall  
              require the user to immediately notify "911" and trained  
              office personnel at the start of AED procedures; and   
            g)   That building owners ensure that tenants receive an  
              American Heart Association or American Red Cross approved  
              brochure describing the proper use of an AED, that  
              similar information is posted next to any installed AED  
              unit, and that tenants are notified of AED locations no  
              less than once a year.
            (Health and Safety Code Section 1797.196.) 
             
            This bill  would, for a five-year period beginning July 1,  
            2012, require a health studio, as defined, to acquire,  
            maintain, and train personnel in the use of automatic  
            external defibrillators.   On July 1, 2012, the acquisition  
            mandate would expire, but the conditional liability  
            protections would remain in place for those health studios  










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            electing to continue the installation of the AEDs.    

             The bill  would confer a conditional immunity upon employees  
            of the health studio, the board of directors of the  
            facility and the facility itself, from civil liability for  
            injuries resulting from the rendering of emergency care  
            with an AED.  The immunity would not apply for acts of  
            gross negligence or willful or wanton misconduct in the  
            use, attempted use, or malicious nonuse of an AED.  

             The  bill would confer upon the health studio that  
            conditional immunity from civil liability arising out of  
            any act or omission in the rendering of emergency care with  
            the AED (by any person) if the health studio complies with  
            specified conditions [listed as a) thru f) above].           


             Existing law  requires, and  this bill  would require, as a  
            condition of immunity for the facility, that "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."  

             This bill  would further provide that health studio  
            acquirers of AED units may need to train additional  
            employees to assure that a trained employee is available at  
            all times.  

                                       COMMENT
             
             1.Author's amendments needed to avoid potential new  
              opposition to two changes in July 11 amendments

               a)    Change "shall" to "should be" 
             
                 Existing law requires as a condition of immunity for  
                 the facility that "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."  In order to  










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                 encourage the voluntary placement of AEDs in office  
                 buildings by building owners who feared potential  
                 liability if they did not comply with strict staffing  
                 requirements, the Legislature softened the standard  
                 usage of "shall" to "should be" for the five-year  
                 trial period of AB 2041.  It is unknown if that softer  
                 standard has indeed encouraged more building owners to  
                 install AEDs voluntarily.       

                 AB 1507 intends to replicate that standard for health  
                 studios installing AEDs.  However, the July 11  
                 amendments would require instead that trained  
                 employees shall be available to respond.      

                 The author may offer an amendment to change "shall" to  
                 "should be."

               b)    Should health studios have a choice of keeping the  
                 installed AEDs after July 1, 2012, or should they be  
                 given the option                    
                    
                 The five-year sunset language submitted to Legislative  
                 Counsel's office provided health studios with the  
                 option on or after July 1, 2012 to uninstall or  
                 continue the installation of any AEDs installed  
                 pursuant to the mandate of this bill.  If the health  
                 studios decided to continue with the installations,  
                 the conditional immunity provisions would still apply.
                 The July 11 amendments prepared by Counsel, however,  
                 omitted the option language and instead provide for  
                 mandatory maintenance and training requirements after  
                 July 1, 2012.

                 Consistent with the language submitted to Legislative  
                 Counsel, committee staff believes that the author will  
                 be offering an amendment to make continued maintenance  
                 of AEDs after July 1, 2012 at the option of the health  
                 studio, and not mandatory.  
                      
            2.  Stated need for bill










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               The author writes:

                 Strenuous physical activity is common in health clubs  
                 and may trigger a SCA (Sudden Cardiac Arrest). ? Sixty  
                 percent of all SCA victims experience a heart  
                 Arrhythmia for which the Automated External  
                 Defibrillator (AED) is designed to correct.   
                 Therefore, the placement of AED's in health clubs will  
                 save SCA victims lives by reducing the time between  
                 the SCA victim's collapse and the first defibrillation  
                 shock.  AED's have been proven to be effective if  
                 applied quickly.  In addition to saving a SCA victim's  
                 life, they can help to reduce neurological impairment  
                 resulting from prolonged oxygen deprivation. ?   

              She adds:

                    Health Clubs are in the business of providing a  
                 service to their members.  Included in that service  
                 should be the assurance that if a member has a sudden  
                 cardiac arrest the health club would have an AED on  
                 site.  Health Clubs should take every and all  
                 precautions to ensure that their members are safe at  
                 all times while in the facility.

               She concludes:

                    Currently, there is no requirement that health club  
                 facilities install AED's in their facilities, although  
                 there are some clubs that are voluntarily doing so.   
                 This bill will ensure all facilities have AED's on  
                 site and that their staff is trained in their use.  

            3.  The potential benefit of AED placement in health studios 

              Sudden cardiac arrest (SCA) often occurs in active,  
              outwardly healthy people. Indeed, strenuous exercise has  
              been shown to be a trigger for SCA.  One supporter, The  
              National Center for Early Defibrillation, asserts that  










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              the risk of SCA during exercise is significantly higher  
              than at times of no exertion.

              Thus, the placement of AED units in a health studio where  
              fit and less-than-fit members are strenuously exercising  
              to sweat off pounds and inches, they hope, seems  
              eminently logical.  Proponents assert that AB 1507 would  
              enact good public policy by requiring AEDs in health  
              clubs where strenuous activity leading to sudden cardiac  
              arrest is certainly foreseeable.    

              Proponents also note that SCA strikes more than 250,000  
              people each year in the United States.  Of this number,  
              only 7% survive.  Proponents also point out that 60% of  
              SCA victims experience heart arrhythmias (Ventricular  
              Fibrillation) that are "shockable" with an AED, and that  
              the purpose of the electrical shock provided by an AED is  
              to restore the SCA victim's heart to a normal rhythm.   
              One proponent, the American Heart Association (AHA),  
              asserts that cardiac arrest is a life-or-death situation,  
              and the patient has very little chance of survival  
              without defibrillation.  

              According to the HeartSave program, emergency medical  
              services (EMS) can have response times of anywhere from 8  
              to 30 minutes.  This is too late for almost all SCA  
              victims.  Survival rates from ventricular fibrillation  
              can exceed 90% if defibrillation occurs in the first 1-2  
              minutes.  However, the chances of survival decline by 10%  
              per minute for every minute thereafter.   

              Proponents thus assert that AEDs can save lives,  
              particularly in the confines of a health studio where  
              trained health studio employees should be available to  
              respond to a SCA emergency.  In case they are not  
              available, studies have shown that AEDs are capable of  
              being operated by non-trained individuals.  
                    
              Proponents assert that having AEDs installed in health  
              studios would significantly add to the victim's chances  










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              of surviving a sudden cardiac arrest.          
                  
            4.  Revised narrower definition of "health studio"

               The July 11 amendments define" health studio" to mean  
              "any facility permitting the use of its facilities and  
              equipment, or access thereto, to individuals or groups on  
              a membership basis, for physical exercise, body building,  
              reducing, figure development, fitness training, or any  
              other such purpose.  Health studio does not include any  
              hotel or similar business that offers fitness facilities  
              to its registered guests for a fee or as part of the  
              hotel charges."   

              According to the author's office, she intends this bill  
              to apply to the fitness centers and health studios that  
              provide fitness services and facilities to its membership  
              cliental.  The bill is not intended to apply to, for  
              example, 
              a) hotel or resort gyms and spas that offer hotel guests  
              day passes to hotel fitness facilities for a fee or as  
              part of the hotel charges; b) facilities such as the Elks  
              Lodge that rent space to aerobics or tai chi instructors  
              to teach a class; or c) other private or public building  
              owners that rent their facilities for recreational use by  
              a third-party organization (such as the city or local  
              high school renting out its tennis courts for use by a  
              private tennis club).  The original reference to Civil  
              Code Section 1812.81 could have been interpreted to apply  
              AB 1507 to those situations.  The July 11 amendments  
              narrow AB 1507's scope accordingly.   
             
             5.  Health studios may need to train additional employees to  
              meet staffing requirements

              One condition for the immunity under existing law and  
              this bill is that the facility "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."










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              That standard was a compromise standard enacted in AB  
              2041 (Vargas) in 2002 to encourage building owners to  
              voluntarily install AEDs in public and private buildings.  
               On the one hand, sound public policy argued for  
              requiring all building employees and potential AED users  
              to be trained, not only to avoid mistakes but to improve  
              proficiency.  Proponents reported that there was a  
              situation where an AED was available, but a child died  
              because there was no one trained to retrieve and use the  
              device.  Most individuals can reportedly be trained to  
              use an AED in four hours or less.

              On the other hand, if the training standards are made too  
              onerous or expensive for building owners, they may refuse  
              to install AEDs voluntarily or may install the bare  
              minimum if required by law to install them.  As the  
              compromise, AB 2041 repealed the requirement for all  
              expected employee users to be trained and instead enacted  
              a sliding scale training requirement.  For up to five  
              installed AEDs, the builder owner shall train "no less  
              than one employee per AED unit" in cardiopulmonary  
              resuscitation and AED use.  If more than five AEDs are  
              installed, the builder owner is required to train a  
              minimum of one additional employee for each five  
              additional AEDs installed.   (The AB 2041 compromise also  
              repealed the requirement that any Good Samaritan user of  
              the AED had to be trained in AED use and CPR - thus  
              further broadening the conditional immunity.)    
              Thus, the AB 2041 compromise recognizes that the  
              impracticality of requiring every potential employee user  
              be trained in AED use, but also establishes a seemingly  
              appropriate minimum level of trained employees and  
              requires the builder owner to have trained employees  
              capable of responding to an emergency during normal  
              operating hours.   

              This bill is intended to adopt the same compromise as the  
              Vargas bill, but also would further provide that health  
              studios "may need to train additional employees to assure  










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              that a trained employee is available at all times."  

              This additional language was added to recognize the fact  
              that health studios have normal operating hours that are  
              quite extended.  In fact, some operate 24 hours a day.   
              Thus, to remove any implication that bare compliance with  
              the training standards (one trained employee for each AED  
              installed up to five) would be sufficient in every case,  
              AB 1507 makes the express declaration that health studios  
                                                             may need to train additional employees to qualify for the  
              conditional immunity.  (Thus, if a health club only  
              installs one AED but is open 24 hours a day, the training  
              of a single employee would not suffice for the immunity.)  
                

              As noted in Comment 1, an amendment is needed to conform  
              this bill to the Vargas compromise standard.

            6.  AEDs are not the cure-all, in and of itself
               
              Notwithstanding the wish of human nature for the AED to  
              be the answer for all sudden cardiac arrest situations,  
              the National Association of School Nurses cautions that  
              while early defibrillation is an important element in the  
              survival of a cardiac victim, defibrillation must be  
              combined with other elements such as early access to EMS,  
              early CPR and early access to Advanced Cardiac Care.   

              As noted in the background information, the American  
              College of Emergency Physicians supports increased public  
              access to AEDs that is coordinated with community medical  
              services systems and with appropriate training.  Existing  
              law and AB 1507 is consistent with that position.  (See  
              proposed Section 104113(e)(2)(C), (D), and (E) on page 3,  
              beginning line 13.) 
             
             7.  Consumer attorneys and health clubs are neutral

              Representatives from the Consumer Attorneys of California  
              and the International Health, Racquet, and Sportsclub  










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              Association (IHRSA) participated in the drafting in AB  
              1507.  Both organizations are "neutral" on the bill as  
              amended. 
             
             8.  Very small chance of misuse or misapplication, asserts  
              Heart Association

              According to the American Heart Association, AEDs contain  
              microcomputers to accurately identify sudden cardiac  
              arrests and make extensive use of audible prompting and  
              signals to provide operators with clear and concise  
              instruction, making their use uncomplicated, intuitive,  
              and nearly foolproof.  AHA's website states that "an AED  
              will almost never decide to shock an adult victim when  
              the victim is in non-VF (ventricular fibrillation:  
              irregular heart rhythm).  AEDs 'miss' fine (sic) VF only  
              about 5% of the time.  The internal computer uses complex  
              analysis algorithms to determine whether to shock?. The  
              AED will make the correct 'shock' decision more than 95  
              of 100 times and a correct 'no shock indicated' decision  
              in more than 98 of 100 times.  This level of accuracy is  
              greater than the accuracy of emergency professionals." 

              AHA also reports that the device does not allow for  
              manual overrides, in the event a panicked operator tries  
              to administer the shock even when the device finds that  
              the victim is not in cardiac arrest.  
             
              Intentional misuse would not be covered by the qualified  
              immunity. 

            9.  Minor variation allowed in maintenance and testing  
              requirement
               
              Existing law, the Vargas bill, requires the AED to be  
              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, as well as according to any  
              applicable rules set by a state or federal authority.










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              This bill would relieve a health studio from having to  
              maintain and test the AED unit according to the standards  
              of both the American Heart Association  and  the American  
              Red Cross, in addition to following the guidelines of the  
              manufacturer and applicable rules of any applicable state  
              or federal authority.  While the guidelines of both  
              organizations are currently identical, in the unlikely  
              future event of a conflict between the two standards, the  
              health studio obviously cannot comply with both.  This  
              change corrects that problem.

                           
            Support:  American Heart Association; American Red Cross of  
                      CA;  California Fire Chiefs Association;  
                      California State Firefighters Association;  
                      California State Alliance of YMCAs; Emergency  
                      Medical Services Administrators' Association of  
                      CA; Fire Districts Association of CA; League of  
                      California Cities; National Center for Early  
                      Defibrillation; Philip Medical Systems; Santa  
                      Clara County Fire Chiefs' Association; Sudden  
                      Cardiac Arrest Survivor Network; University of  
                      Pittsburgh School of Medicine Professor Mossesso;  
                      numerous SCA survivors

            Opposition:None Known

                                           
                                      HISTORY
             
            Source:Author

            Related Pending Legislation:  AB 254 (Nakasnishi) would  
                                  establish specific rules for  
                                  immunizing the school and its  
                                  employees for any injury resulting  
                                  from the use of an AED voluntarily  
                                  installed in a private or public K -  
                                  12 school.  AB 254 was approved by  










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                                  this committee 
                                  6 - 0.    

             Prior Legislation:  SB 911 (Figueroa), Chapter 163, Stats.  
                          1999, established the "Good Samaritan" law  
                          for acquisition and use of AED's in  
                          emergencies, and provided a 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.  
                        
                           AB 2041 (Vargas), Chapter 718, Stats. 2002,  
                          extended the "Good Samaritan" law by  
                          broadening the immunity for the use or  
                          purchase of an AED, established more flexible  
                          training and staffing standards for builder  
                          owners that install AEDs, and required owners  
                          to notify building tenants of AED locations  
                          and to provide a brochure as to its use.  

            Prior Vote:Assembly Floor (45 - 30)
                      Assembly Judiciary Committee (6 - 3)

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