12/01/11
Automatic External Defibrillators Required at Certain Park District Facilities

Esther Joy Schwartz , Theodore W. Pannkoke, Stellato & Schwartz, Ltd., Chicago, IL

It is a dramatic moment in countless movies and TV shows: the patient goes into cardiac arrest, and the ER team or paramedics grab the defibrillator paddles and bark, "Charging! 3, 2, 1! Clear!" But it is also often a tragic scenario in real life, as the National Conference of State Legislatures summarizes:

Each year, more than 250,000 Americans die from sudden cardiac arrest. According to medical experts, the key to survival is timely initiation of a "chain of survival", including CPR (cardiopulmonary resuscitation).  Because of recent technological advances a portable lifesaving device, called an "automated external defibrillator" or "AED" has recently become an important medical tool.  Trained non-medical personnel can use these simplified electronic machines to treat a person in cardiac arrest. The AED device "guides the user through the process by audible or visual prompts without requiring any discretion or judgment." The American Heart Association notes that at least 20,000 lives could be saved annually by prompt use of AEDs. Ultimately, with broad deployment of AEDs among trained responders, as many as 50,000 deaths due to sudden cardiac arrest could be prevented each year. 

All 50 states now have laws or regulations that require or encourage the placement of automated external defibrillators in locations like physical fitness centers, schools, and other places of public assembly.

In Illinois, two statutes specifically cover AEDs: the Physical Fitness Facility Medical Emergency Preparedness Act and its regulations, and the Automated External Defibrillator Act. This article discusses what park district facilities are and are not required to have AEDs as well as touching upon what AED oversight and training is required.

The Physical Fitness Facility Medical Emergency Preparedness Act and its regulations do require AEDs at certain indoor and outdoor park district facilities. The PFFMEP requires AEDs at any indoor facility that:

• is owned or operated by the park district; and
• focuses on cardiovascular exertion and relatively continuous physical exercise; and
• has at least one park district employee directly supervising the physical activity; and
• annually serves 100 or more individuals who actively engage in physical exercise.

In addition, AEDs are required at any other indoor facility that:

• is owned or operated by the park district; and
• provides services or facilities focusing on cardiovascular exertion or competitive activities involving skill, chance, or endurance.

A non-exclusive list of indoor facilities under the Act and its regulations includes: swimming pools, stadiums, athletic fields, football stadiums, soccer fields, baseball diamonds, track and field facilities, tennis courts, basketball courts, volleyball courts, aerobics studios, dance studios, boxing gyms, martial arts or self-defense studios, wrestling gyms, weight-lifting facilities, treadmill or stationary bicycle facilities, velodromes, racquetball courts, gymnastics facilities, or similar facilities.

With regard to outdoor facilities, the PFFMEP requires AEDs at any outdoor facility that:

• is owned or operated by a park district that is not organized under the Park District Code, the Chicago Park District Act, or the Metro-East Park and Recreation District Act; and
• focuses on cardiovascular exertion and relatively continuous physical exercise; and
• has at least one park district employee directly supervising the physical activity; and
• annually serves 100 or more individuals who engage in physical exercise.

Moreover, AEDs are required at any other outdoor facility that:

• is owned or operated by a park district that is not organized under the Park District Code, the Chicago Park District Act, or the Metro-East Park and Recreation District Act; and
• provides services or facilities focusing on cardiovascular exertion or competitive activities involving skill, chance, or endurance.

A non-exclusive list of outdoor facilities under the Act and its regulations includes: swimming pools, athletic fields, football stadiums, soccer fields, baseball diamonds, track and field facilities, tennis courts, basketball courts, volleyball courts, golf courses, or similar facilities.

The Physical Fitness Facility Medical Emergency Preparedness Act and its regulations do not require AEDs at the following indoor and outdoor park district facilities:

• any outdoor facility that is owned or operated by park districts that are organized under the Park District Code, the Chicago Park District Act, or the Metro-East Park and Recreation District Act; or
• any facility that annually serves fewer than 100 individuals who engage in physical exercise; or
• any facility that does not employ anyone to provide instruction, training, coaching, refereeing, judging, or assistance to its users; or
• any facility during any activity or program that is privately organized and supervised by someone who is not a park district employee.

The Physical Fitness Facility Medical Emergency Preparedness Act and its regulations set forth certain requirements for the acquisition of AEDs. AEDs must have several highly-technical capabilities to be eligible for acquisition, but for present purposes, their approval by the United States Food and Drug Administration is a necessary start.

Once a park district acquires an AED, it must notify the local emergency communications or vehicle dispatch center of the device's type and location.

For indoor facilities, if there is more than one facility on the same floor of a building, one AED can cover multiple facilities so long as it is located no more than 300 feet from each facility, and access to the AED is unimpeded from each facility.

At outdoor facilities, the AED must be housed in a building within 300 feet of the facility. At the same time, these outdoor facilities only need to have an AED and a trained AED user on site and available during activities or events that the park district sponsors and that park district employees are supervising.

The AED must be mobile and accessible at all times. The park district has to take reasonable measures to ensure that the AED is maintained and tested according to the manufacturer's guidelines. The park district must keep a copy of the maintenance and testing manual with the AED at the facility. If the AED becomes inoperable, it has to be replaced within 30 days.

Every park district physical fitness facility that is required to have an AED on-site must train its staff in CPR and the use of an AED. To be a trained AED user, the person has to complete an accredited course in CPR that includes an AED component, for example, from the American Red Cross or the American Heart Association. The training must be renewed every two years. Every facility that is required to have an AED on-site also has to ensure that there is always a trained AED user on staff during normal business hours. That includes training enough staff and supervisors as AED users so that there are no gaps in scheduling coverage. Each staff member must be trained in where the AED is located. Moreover, the facility has to take reasonable measures to ensure that only trained AED users operate the AED. At the same time, untrained people are not prohibited from using the AED in a medical emergency.

Finally, each facility must also have a written plan for responding to medical emergencies that occur while the facility is open to the public, and that plan has to include the use of AEDs. Each staff member must be trained in the requirements of that medical emergency plan. The facility has to file its plan with the Department of Public Health.

The Physical Fitness Facility Medical Emergency Preparedness Act and its regulations observe that they are violated by various failures:

• to comply with the Act; or
• to adopt or implement a proper medical emergency plan; or
• to have the required numbers of AEDs on the premises; or
• to have appropriate numbers of trained AED users and applicable supervisors on staff and to avoid lapses in scheduling coverage.

Currently, Illinois' published law reports do not appear to include any cases of AED-related liability. Going forward, a park district's three key considerations are (1) to acquire appropriately eligible AEDs for facilities where they are required, (2) to reasonably maintain and test them, and (3) to ensure that there is always at least one properly trained AED user on-staff and on-site.

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There used to be a requirement that if there was no such building, then the person responsible for supervising the event or activity had to ensure that an AED is available during that event or activity, but that requirement was repealed earlier this year.

Esther Joy Schwartz is a named partner at Stellato Schwartz. She has practiced law since 1981. She concentrates her practice in the areas of insurance coverage, bad faith, and other insurance-related services. Esther has handled insurance related disputes and bad faith litigation throughout the country and briefed and argued over 250 appeals in state and federal courts of appeal. She is directly responsible for many leading decisions in tort immunity, civil rights, and premises liability. Esther was named to the "Top 50 Female Illinois Super Lawyers" by Illinois Super Lawyers® in 2010.  Since 2006, Esther has been selected each year by Leading Lawyers® Network as a "Leading Lawyer" in insurance coverage and appeals.  Esther achieved an AV® Preeminent rating from Martindale-Hubbell. She is a frequent lecturer on insurance coverage law.

Theodore W. Pannkoke, admitted to practice in 2000, is a senior member of the firm's Appellate Practice Group.  His practice is primarily directed to complex motions, post-trial proceedings, and appeals, and he enjoys a busy practice in the state and federal trial and appellate courts in Illinois.  He has drafted and/or argued over 100 motions and/or appeals for nonprofit, private, and public entities, including school districts, park districts, and police departments.