BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 352
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          Date of Hearing:    April 16, 2013

                        ASSEMBLY COMMITTEE ON HUMAN SERVICES
                                  Mark Stone, Chair
                  AB 352 (Hall) - As Introduced:  February 13, 2013
           
          SUBJECT  :  Licensed Foster Care

           SUMMARY  :  Prohibits smoking in licensed residential foster care  
          facilities.  Specifically,  this bill  :  

          1)Amends the Community Care Facilities Act (CCFA) to require  
            persons licensed to provide foster care services to provide a  
            smoke-free environment in the home in which the foster youth  
            resides, including garages and bathrooms, and motor vehicles  
            used to transport the foster youth. 

           EXISTING LAW  

          1)Establishes the California Community Care Facilities Act  
            (CCFA) to provide a comprehensive statewide service system of  
            quality community care for people who have a mental illness, a  
            developmental or physical disability, and children and adults  
            who require care or services by a facility or organization.

          2)Defines a "Community care facility" (CCF), under the Health  
            and Safety (H&S) Code as a facility, place, or building  
            maintained and operated to provide nonmedical residential  
            care, day treatment, adult day care, or foster family agency  
            services for children, adults, or children and adults,  
            including, but not limited to, the physically handicapped,  
            mentally impaired, incompetent persons, and abused or  
            neglected children.

          3)Defines and requires for licensure, under the CCFA, the  
            following facilities to serve youth in foster care:

             a)   Foster Family Agency (FFA), which recruits, certifies  
               and trains foster parents and oversees certified family  
               homes for the temporary placement of children in foster  
               care; 

             b)   Certified Family Home (CFH), which is a family residence  
               certified by a FFA as meeting CCFA licensing requirements  
               to serve as a temporary placement for children in foster  








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               care;

             c)   Foster Family Home (FFH), which provides 24-hour care  
               for six or fewer foster children and is owned, leased or  
               rented and is the residence of a foster parent; and

             d)   Small Family Home (SHA), which provides 24-hour care for  
               six or fewer foster children who have mental disorders or  
               developmental or physical disabilities and require special  
               care and supervision. 

          3)Defines, under the Welfare and Institutions (W&I) Code a  
            "specialized foster care home" (SFCH) as any CFH, FFH or SHA  
            where they provide specialized in-home health care to foster  
            children, but limits their capacity to no more than two  
            children, as specified.
          4)Defines, under the W&I Code a group home as a nondetention  
            privately operated residential home, organized and operated on  
            a nonprofit basis only, of any capacity.

          5)Authorizes DSS to license facilities or organizations that  
            provide services under the jurisdiction of the CCFA,  
            including:

             a)   Residential facilities, as defined;

             b)   Adult day programs;

             c)   Therapeutic day services facilities;

             d)   Foster family agencies and homes;

             e)   Social rehabilitation facilities;

             f)   Community treatment facilities;

             g)   Full-service adoption agencies;

             h)   Noncustodial adoption agencies;

             i)   Transitional shelter care facilities; and

             j)   Transitional housing placement providers for foster  
               youth.









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          1)Provides for the exemption of certain types of facilities,  
            including:

             a)   Health facilities;

             b)   Juvenile facilities and juvenile halls;

             c)   Child day care facilities as defined by the California  
               Child Day Care Facility Act;

             d)   School and college residential facilities;

             e)   Any facility that provides room and board as long as it  
               does not require an element of care;

             f)   Any drug or alcohol recovery or treatment facility;

             g)   Relative caregiver homes for children as supervised by a  
               county welfare or probation department;

             h)   Any supported living arrangement for individuals with  
               developmental disabilities;

             i)   Any family home agency, family home, or family teaching  
               home, as defined, and vendored with the California  
               Department of Developmental Services;

             j)   Housing where support services are arranged by the  
               resident(s) but not provided for or contracted by the owner  
               of the housing facility; and

             aa)  Other similar facilities as deemed by the Director of  
               DSS.

          2)Provides that any person who violates the CCFA shall be guilty  
            of a misdemeanor and, upon conviction, shall be fined no more  
            than $1,000, imprisoned in county jail for up to one year, or  
            both.

           FISCAL EFFECT  :  Unknown

           BACKGROUND  :

           Child Welfare Services
           The purpose of California's Child Welfare Services (CWS) system  








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          is to provide for the protection and the health and safety of  
          children.  Within this purpose, the desired outcome is to  
          reunite children with their biological parents, when  
          appropriate, in order to help preserve and strengthen families.   
          However, if reunification with the biological family is not  
          appropriate, children are placed in the best environment  
          possible, whether that is with a relative, through adoption, or  
          with a guardian, such as a nonrelative extended family member  
          (NREFM).

          In the case of children who are at risk of abuse, neglect or  
          abandonment, county juvenile courts hold legal jurisdiction, and  
          children are served by CWS through the appointment of a social  
          worker.  Through this system, there are multiple stages where  
          the custody of the child or their placement are evaluated,  
          reviewed and determined by the judicial system, in consultation  
          with the child's social worker, to help provide the best  
          possible services to the child. 

          At the time a child is identified as needing child welfare  
          services and is in the temporary custody of a social worker, the  
          social worker is required to identify whether there is a  
          relative or guardian to whom a child may be released, unless the  
          social worker believes that the child would be at risk of abuse,  
          neglect or abandonment if placed with that relative or guardian.  
           (W&I Code Sections 306 and 309) 

          The Welfare and Institutions Code also lays out the conditions  
          under which a court may deem a child a dependent or ward of the  
          court, including when the parent has been incarcerated or  
          institutionalized and is unable to arrange for care for the  
          child, such as placement with a known relative.  If the child is  
          deemed a dependent or ward of the court, the court may maintain  
          the child in his or her home, remove the child from the home but  
          with the goal of reunifying the child with his or her family, or  
          identify another form of permanent placement.  Unless the child  
          is unable to be placed with the parent, the court is required to  
          give preference to a relative of the child in order to preserve  
          the child's association with his or her family.  

          Associated with the placement process, the assigned social  
          worker shall develop a case plan for the child, which outlines  
          the placement for the child, sets forth services necessary for  
          the child, and outlines the provision of reunification services,  
          if necessary and appropriate.








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          Current smoke-free requirements in foster care  
          Although not specifically stated in statute, the California Code  
          of Regulations (CCR) prohibits smoking in the home and on the  
          grounds of the home.  It should be noted that in addition to not  
          existing in current statute, this prohibition also does not  
          apply to FFHs and CFHs overseen by FFAs. 

          In its establishment of smoke-free regulations, DSS cites a 2006  
          report by the Surgeon General of the United States "The Health  
          Consequences of Involuntary Exposure to Tobacco Smoke" as  
          grounds for the prohibition.  Written as the second edition of  
          the report previously published in 1986, it updated the evidence  
          of the harmful effects of involuntary exposure to tobacco smoke.  


          The report found that exposure to secondhand smoke:

                 is harmful and hazardous to the health of the general  
               public and particularly dangerous to children;

                 increases the risk of serious respiratory problems in  
               children, such as a greater number and severity of asthma  
               attacks and lower respiratory tract infections, and  
               increases the risk for middle ear infections;

                 is a known human carcinogen (cancer-causing agent); and

                 causes lung cancer and coronary heart disease in  
               nonsmoking adults

          It specifically went on further to demonstrate that efforts to  
          accommodate for smoking and smoke-free areas are ineffective in  
          combating the consequences of exposure to secondhand smoke:

               Research reviewed in this report indicates that smoke-free  
               policies are the most economic and effective approach for  
               providing protection from exposure to secondhand smoke.   
               But do they provide the greatest health impact?  Separating  
               smokers and nonsmokers in the same airspace is not  
               effective, nor is air cleaning or a greater exchange of  
               indoor with outdoor air.  Additionally, having separately  








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               ventilated areas for smoking may not offer a satisfactory  
               solution to reducing workplace exposures.  Policies  
               prohibiting smoking in the workplace have multiple  
               benefits.  Besides reducing exposure of nonsmokers to  
               secondhand smoke, these policies reduce tobacco use by  
               smokers and change public attitudes about tobacco use from  
               acceptable to unacceptable.

           COMMENTS  :

          It is clear from numerous reports and scientific research that  
          smoking and exposure to secondhand smoke presents significant  
          health risks to people, and is particularly dangerous to  
          children.  However, the current reality is that, although  
          undesirable, people still make the conscious choice to smoke.   
          This includes some who can and do become licensed foster  
          parents, who are gracious and caring enough to open their home  
          to serve as a foster family home for a child who has been  
          removed from the custody of his or her parents due to abuse or  
          neglect. 

          The author references a 2011 report titled "Smoke-free Foster  
          Care:  Policy Options and the Duty to Protect" in providing  
          background and the foundation to universally prohibit smoking in  
          foster family homes.  This report documents the reasons and need  
          to prohibit smoking in foster family homes, listing various data  
          and past reports that document the importance of maintaining a  
          smoke-free environment for foster youth due to their heightened  
          status as being at-risk and more likely to suffer from health  
          ailments.

          The report also goes on to make findings that establishing  
          smoke-free policies for foster homes do not inhibit the  
          recruitment or retention of foster families.  Specifically, it  
          states:

               Moreover, despite the concern that implementing these  
               policies would impair recruitment or reduce the number of  
               foster homes available, foster care managers and social  
               services administrators in states with these policies  
               reported no drop in the number of foster parents  
               attributable to the smoke-free policies since they took  
               effect.  Three out of the fifteen state managers surveyed  
               claim their state recruitment numbers vary, but none  
               reported a causal link to the smoke-free foster care  








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               policy.

          However, in further review of this report, it cites a survey  
          conducted of licensed foster care homes and relative provider  
          care homes in the state of Michigan as the basis for these  
          findings.  Additionally, the survey found that more than 21% of  
          respondents who smoked replied that they would not be a foster  
          parent if they were not allowed to smoke around children, and  
          seven percent of relative care providers stated the same.  This  
          is a cause for concern in correlation to the number of foster  
          homes, relative caregiver or otherwise, available for placement  
          when compared to the number of children in foster care in  
          California.

          As of January 1, 2013, there were approximately 56,495 children  
          in foster care, according to the California Welfare Dynamic  
          Report System, a statewide child welfare database operated in  
          collaboration by DSS and the University of California at  
          Berkeley.  This number far outweighs the availability of  
          licensed foster care homes in the state.  According to DSS, as  
          of January 1, 2013, there were 7,007 licensed foster care homes  
          with a capacity to serve 15,731 foster youth. 

          These numbers demonstrate that, although the state has  
          significantly reduced its foster care population over the past  
          12 years, it still leaves much progress to be made in  
          identifying and maintaining home-based placements that can  
          provide family-like environments for our foster youth. 

          This measure raises an important policy decision that serves to  
          protect the health of some of the state's most vulnerable  
          children.  Should all foster care homes be required to provide a  
          smoke-free environment, even if it may negatively impact the  
          recruitment and retention of relative caregivers and foster  
          parents? 

           RECOMMENDED AMENDMENTS

           In order to balance the need to recruit and retain foster family  
          parents with the importance of providing a healthy and safe  
          placement for foster youth, this measure should be amended to  
          ensure that a smoke-free environment is provided.  Although  
          undesirable, the alternative, and potential unintended  
          consequence, is that the state may experience increased  
          difficulty when recruiting and retaining foster parents,  








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          especially relative caregivers and NREFMs. With respect to the  
          state's policy of placing a foster youth with a relative or  
          NREFM, rather than a foster or group home placement, this  
          measure should be amended to permit smoking, although  
          undesirable, in the homes of relative and NREFM caregivers so as  
          not to disincentivize their willingness to be a placement for  
          foster youth.

          Additionally, to accommodate existing smoking prohibitions  
          enumerated in regulations, this measure should be amended to  
          codify those regulations, while providing clearer restrictions  
          on when and where licensed foster parents of FFHs and CFHs may  
          smoke. 

          Specifically, staff recommends amending the bill to read:

               1530.7.  (a) Group homes and small family homes licensed  
               pursuant to this chapter   Persons licensed pursuant to this  
               chapter to provide residential foster care to a child  shall  
               maintain a smoke-free environment in the  facility and on  
               the grounds of the facility.

               (b) No person licensed pursuant to this chapter to provide  
               residential care in a foster family home or a certified  
               family home may smoke in the home or in the physical  
               presence of the foster youth. This subdivision shall not  
               apply to homes of relative and nonrelative extended family  
               relative caregivers.

               (c) No person licensed pursuant to this chapter to provide  
               residential foster care shall smoke   home in which the child  
               resides, including the garage and bathrooms, and  in all  
               motor vehicles used to transport the child.

           DOUBLE REFERRAL  .  This bill has been double-referred.  Should  
          this bill pass out of this committee, it will be referred to the  
          Assembly Governmental Organization Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Black Health Network

           Opposition 








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          None on file
           
          Analysis Prepared by  :    Chris Reefe / HUM. S. / (916) 319-2089