BILL ANALYSIS                                                                                                                                                                                                    






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                          Senator Leland Y. Yee, Chair


          BILL NO:       AB 352                                       
          A
          AUTHOR:        Hall                                         
          B
          VERSION:       April 23, 2013                              
          HEARING DATE:  June 11, 2013                                
          3
          FISCAL:        Yes                                          
          5
                                                                      
          2
          CONSULTANT:    Mareva Brown                                

                                        

                                     SUBJECT
                                         
                      Foster care: smoke-free environment

                                     SUMMARY  

          This bill requires that group homes and small family homes  
          that provide residential foster care to a child to maintain  
          a smoke-free environment. Additionally, this bill prohibits  
          a person licensed to provide residential care in a foster  
          family home or certified family home from smoking in the  
          home or in the physical presence of the foster youth. The  
          bill prohibits a person licensed pursuant to these  
          provisions from smoking in any motor   vehicle used to  
          transport the child. 

                                     ABSTRACT  

           Existing law  : 

             1)   Establishes that the state, through the Department  
               of Social Services (DSS) and county welfare  
               departments, supports a public system of statewide  
               child welfare services, as specified. (WIC 16500) 


                                                         Continued---




          STAFF ANALYSIS OF SENATE BILL 352 (Hall)                
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             2)   Establishes within California's juvenile court the  
               jurisdiction to remove children from their parents or  
               guardians and vests the court with the responsibility  
               to provide care, treatment, and guidance consistent  
               with their best interest and the best interest of the  
               public. (WIC 300 et seq.) (WIC 202 (b))

             3)   Establishes licensure requirements for persons who  
               wish to become residential caregivers. (HSC 1520 et  
               seq.)

             4)   Establishes regulations for homes licensed to care  
               for foster children in small family homes, certified  
               family homes and group homes. (HSC 1530 et seq.)

             5)   Establishes in California a smoke-free workplace  
               law which prohibits the smoking of tobacco products in  
               an enclosed space at a place of employment. (LAB  
               6404.5)

             6)   Excludes private homes from this prohibition on  
               smoking, with the exception of private residences  
               licensed as family day care homes, during the hours of  
               operation as family day care homes and in those areas  
               where children are present. (LAB 6404.5 (d) (11) )

             7)   Prohibits a person from smoking a pipe, cigar, or  
               cigarette in a motor vehicle, whether in motion or at  
               rest, in which there is a minor. (HSC 118948 (a)) 

           This bill  : 

             1)   Requires group homes and small foster homes  
               licensed by the state to maintain a smoke-free  
               environment. 

             2)   Prohibits a caregiver who is licensed to provide  
               residential care in a foster family home or certified  
               family home from smoking in the home or from smoking  
               in the physical presence of the foster youth. 

             3)   Exempts the homes of relative and nonrelative  
               extended family member (NREFM) caregivers from the  
               smoking prohibition.






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             4)   Prohibits a person licensed as a caregiver in  
               residential foster care from smoking in any motor  
               vehicle used to transport the child. 


                                  FISCAL IMPACT  

          An Assembly Appropriations Committee analysis reported that  
          any costs associated with this legislation should be minor  
          and absorbable within existing resources, and that any  
          local government costs would not be state-reimbursable  
          because the mandate only involves the definition of a crime  
          or penalty for conviction of a crime.


                            BACKGROUND AND DISCUSSION  

           Purpose of the bill
           
          The author states that California has a responsibility to  
          protect foster children and to ensure that they reside in  
          safe and healthy environments. California currently spends  
          approximately one billion dollars every year for board,  
          care and services for foster children, the author further  
          states. Numerous studies have documented the prevalence of  
          chronic medical conditions among foster youth. Further,  
          children are particularly vulnerable to the effects of  
          secondhand smoke because they are still developing  
          physically, have higher breathing rates than adults and  
          have little control over their indoor environments,  
          according to the author. Children exposed to high doses of  
          secondhand smoke run the greatest relative risk of  
          experiencing damaging health effects including asthma,  
          bronchitis, pneumonia and inner ear infections. 

          The author states that when foster children reside in an  
          environment where their health is compromised by exposure  
          to secondhand smoke, the state's health care costs for  
          tobacco-related medical conditions almost certainly rise.  
          The state of California has a legal obligation to protect  
          the well-being of foster children. AB 352 will ensure that  
          foster children, already one of the most vulnerable  
          populations in our state, enjoy a safe and healthy  
          environment to live and thrive.






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          The author also states that establishing a smoke-free  
          policy would not reduce the number of available foster  
          parents. He writes that, despite concern that implementing  
          these policies would impair recruitment or reduce the  
          number of foster homes available, foster care managers and  
          social service 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. 

           California youth in foster care 
           
          Approximately 56,500 children were in foster care as of  
          January 1, 2013, according to data compiled and reported by  
          the Center for Social Services Research at UC Berkeley.  In  
          California, DSS oversees a county-administered child  
          welfare services system, which responded to approximately  
          40,000 reports of abuse, neglect or exploitation in 2012.  
          According to DSS, nearly one in three foster children lives  
          in Los Angeles County.  

          Federal and state law require that children be placed in  
          the least-restrictive environment possible and that  
          preference be given first to non-custodial parents, then  
          relatives and then non-relative extended family members  
          (NREFMs) before placing a child in the licensed or  
          certified foster home, or in group care. State law  
          specifies that the homes of relatives and NREFMs must  
          adhere to the same health and safety licensing standards  
          that are required of licensed or certified foster homes.  
          (WIC 309 (d))

           Chronic health conditions among foster youth

           According to a policy statement issued in November 2012 by  
          the American Academy of Pediatrics (AAP), foster children  
          face medical and mental health challenges at significantly  
          higher rates than other children, often as a consequence of  
          the circumstances that led to their removal from their home  
          and sometimes exacerbated by their experiences in foster  










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          care.<1> 


          The AAP noted that health issues include developmental  
          delays, emotional adjustment problems, chronic medical  
          problems, birth defects, substance abuse, and pregnancy. In  
          the foster care population, more than 60 percent of youth  
          will have mental health problems during their lifetime; 30  
          percent to 40 percent of adolescents are coping with mental  
          health issues, including posttraumatic stress disorder; and  
          more than one-third of older adolescents have a chronic  
          illness or disability, according to the policy statement.

           

          Secondhand smoke 
           
          Cigarettes are responsible for one in five deaths in the  
          United States annually, according to a report issued by the  
          U.S. Attorney General in 2010.<2> The report, the latest of  
          nearly three dozen issued by the Surgeon General since its  
          first smoking report in 1964, identifies the ill effects of  
          smoking and of secondhand smoke on the country's adults and  
          children. It notes that hundreds of thousands of children  
          suffer from respiratory infections because of exposure to  
          secondhand smoke. A 2007 Surgeon General's report found  
          that children are far more exposed to secondhand smoke than  
          adults. Nearly 60 percent of U.S. children between 3 and 11  
          years, or almost 22 million children, are exposed to  
          secondhand smoke annually.<3>

          As a result of this research, a growing number of U.S.  
          workplaces and other public places are now smoke-free.  
          Today, according to the Surgeon General, the one indoor  
          space where adults, and above all children, are most  
          -------------------------
          <1>  
          http://pediatrics.aappublications.org/content/130/6/1170.ful 
          l.pdf%20html#ref-3

          <2>  
          http://www.surgeongeneral.gov/library/reports/tobaccosmoke/e 
          xecutivesummary.pdf
          <3>  
          http://www.surgeongeneral.gov/library/reports/smokeexposure/ 
          fullreport.pdf




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          exposed to secondhand smoke is the home. One in five  
          children is exposed to smoke in their homes.

             Children who are exposed to secondhand smoke are  
             at an increased risk for sudden infant death  
             syndrome, lower respiratory infections, middle ear  
             disease, more severe asthma, respiratory symptoms,  
             and slowed lung growth. The California  
             Environmental Protection Agency recently estimated  
             that 430 infants die from sudden infant death  
             syndrome in the United States every year as a  
             result of secondhand smoke exposure. The same  
             agency also estimated that secondhand smoke  
             exposure is responsible for 202,300 asthma  
             episodes and 790,000 doctor appointments for U.S.  
             children with ear infections annually. Children  
             whose parents smoke and who grow up in homes where  
             smoking is allowed are also more likely to become  
             smokers themselves.  (U.S. Department of Health  
             and Human Services. "Children and Secondhand Smoke  
             Exposure. Excerpts from The Health Consequences of  
             Involuntary Exposure to Tobacco Smoke: A Report of  
             the Surgeon General" 2007)
           
          In March 2011, the Public Health Law Center in published a  
          report, "Smoke-free Foster Care: Policy Options and the  
          Duty to Protect," which noted that foster children are  
          uniquely vulnerable to health problems. The high prevalence  
          of chronic medical, developmental and mental health  
          problems that precede placement into foster care prompted  
          the American Academy of Pediatrics to classify foster  
          children as a category of children with special health  
          needs. Nearly 40 percent of children placed in foster care  
          have been born prematurely and/or with low birth weight,  
          according to the report. 

          The report's authors concluded:

               When close to half of the US population is  
               covered by local and state laws prohibiting  
               smoking in workplaces, bars and restaurants, more  
               than 30 states still allow foster parents to  
               expose foster children - a uniquely vulnerable  
               population - to the hazards of tobacco smoke. The  
               state, as the legal guardian of foster children,  





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               has a legal and moral obligation to act in their  
               best interests.

           
          Other states 
           
          Eighteen states, including Illinois, Colorado, Alaska,  
          Pennsylvania and Texas, have prohibited smoking in foster  
          and group homes, according to the Public Health Law Center  
          report. In most of those cases, states prohibited smoking  
          within the residence or facility and in associated  
          vehicles, but did not restrict smoking outside within range  
          of the home. Just five of the states also restricted  
          outdoor smoking near the home or facility.

          In 2011, the Hennepin County (Minnesota) departments of  
          Human Services and Public Health conducted a survey of 16  
          states that had prohibited smoking in foster homes. Some  
          states additionally prohibited smoking in vehicles while  
          foster children were being transported. The surveyors were  
          interested in whether the smoking ban had lowered the  
          number of people who were willing to become foster parents,  
          a concern they wrote that had been echoed in a number of  
          states who implemented the ban.

          When asked if the numbers of foster parents recruited had  
          dropped since the smoking ban took effect, 12 of the 16  
          states told surveyors that the numbers of foster parents  
          had not declined and the remaining four said their declines  
          had nothing to do with the smoking ban. 

               Prohibiting smoking in foster care homes did not  
               appear to impair recruitment of foster parents.  
               States with policies prohibiting smoking in  
               public places predating the foster care policy  
               found this to be supportive of their efforts.<4>

           Related legislation
           
          SB 7, Oropeza (Chapter 425, Statutes of 2007) made it  
          illegal to smoke while operating a moving vehicle with a  
          -------------------------
          <4> "Effects of Other States' Smoking Prohibitions on Child  
          Foster Care,"  a report prepared by Human Services and  
          Public Health Department, Hennepin County, Minn. February  
          9, 2011




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          minor inside.

                                   PRIOR VOTES
           
          Assembly Floor                51 - 19
          Assembly Appropriations       12 -   5
          Assembly Governmental Organization12 -   0
          Assembly Human Services         5 -   2

                                     COMMENTS

             
          1.This language restricts the smoking prohibition to group  
            homes and small family homes, however this licensing  
            statute includes other types of residential placements,  
            including crisis nurseries. Staff recommends expanding  
            the language to encompass other related residential  
            placements.

          2.Concerns have been raised about the practical application  
            of requiring a facility to prevent smoking around the  
            child while not on the premises. Staff recommends this  
            language be modified to clarify that a licensed  
            residential care facility must prohibit smoking in the  
            facility. Additionally, concerns have been raised that a  
            ban on smoking could deter an individual from becoming a  
            foster parent. Staff recommends clarifying that in the  
            cases where a foster child is living in a home with a  
            foster parent, the parent is permitted to smoke outside  
            as long as the child is not present.

          3.Federal law prevents states from having disparate  
            licensure standards for licensed and non-licensed homes  
            in order to receive federal funding. Specifically, 45 CFR  
            1355.20 defines a foster family home in the following  
            way: "Foster family homes that are approved must be held  
            to the same standards as foster family homes that are  
            licensed. Anything less than full licensure or approval  
            is insufficient for meeting Title IV-E eligibility  
            requirements."

            California statute distinguishes between licensing  
            requirements for foster homes and homes for relatives or  
            non-related extended family members (NREFMs), yet it  
            requires that they meet "the same standards set forth in  





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            the regulations for the licensing of foster family homes  
            which prescribe standards of safety and sanitation for  
            the physical plant and standards for basic personal care,  
            supervision, and services provided by the caregiver."   
            (WIC 362.7, WIC 309 (d)). 

            Given the mandate to maintain the same standards of care  
            for children in foster care, whether they reside with a  
            family member, non-related extended family member or in a  
            licensed or certified foster home, staff suggests  
            striking the exemption for relative and nonrelative  
            extended family member caregivers. 

          4.Concerns have been raised about the practicality of  
            preventing a foster child from riding in any vehicle in  
            which a licensee has smoked. Staff recommends clarifying  
            this to mean that any vehicle used to regularly transport  
            a child would be a smoke-free vehicle.

            Therefore, staff suggests amending this bill as follows: 

          WIC 1530.7.

           (a) Group homes  ,   and   foster family agencies,  small family  
          homes  , transitional housing placement providers and crisis  
          nurseries  licensed pursuant to this chapter shall maintain  
          a smoke-free environment  in the facility  .

          (b) No person licensed  or certified  pursuant to this  
          chapter to provide residential care in a foster family home  
          or certified family home may smoke,  or permit any person to  
          smoke inside the facility and, when the child is present,  
          on the outdoor grounds of the facility  .  This subdivision  
          shall not apply to homes of relative and nonrelative  
          extended family member caregivers.
           
            (c) No person licensed pursuant to this chapter to provide  
          residential foster care shall smoke in any motor vehicle  
           regularly  used to transport the child.




                                    POSITIONS  






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          Support:       Advancement Project
                         American Cancer Society Cancer Action  
                    Network
                         California Black Health Network
                         National Association of Social Workers -  
          California Chapter

          Oppose:   None on file

                                   -- END --