BILL ANALYSIS �
AB 352
Page 1
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
AB 352
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None on file
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089