BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 217
AUTHOR: Carter
AMENDED: April 7, 2011
HEARING DATE: June 6, 2012
CONSULTANT: Marchand
SUBJECT : Workplace smoking prohibition: long-term health care
facilities.
SUMMARY : Restricts smoking in long-term health care facilities
by only allowing smoking in a designated patient smoking area
that is outdoors and in an area that reasonably prevents smoke
from entering the facility or patient rooms.
Existing law:
1.Prohibits an employer from knowingly or intentionally
permitting the smoking of tobacco products in an enclosed
space at a place of employment.
2.Exempts certain places of employment from the prohibition on
smoking tobacco products in an enclosed space, including the
following:
a. Up to 50 percent of the area of a hotel or motel lobby,
depending on the size of the lobby;
b. Meeting and banquet rooms in hotels or motels, except
when food and beverage functions are taking place or when
being used for an exhibit;
c. Retail or wholesale tobacco shops and private smokers'
lounges, as defined;
d. Warehouse facilities, as defined;
e. Medical research or treatment sites, if smoking is part
of the research and treatment;
f. Patient smoking areas in long-term health care
facilities;
g. Break rooms designated for smoking by an employer; and
h. Employers with five or fewer employees, subject to
specified requirements.
3.Establishes a $100 fine for the first violation, a $200 fine
for the second violation, and a $500 fine for the third and
subsequent violations of the above provisions.
4.Requires enforcement of the smoking prohibition by local law
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enforcement agencies. Requires an investigation by the
Division of Occupational Safety and Health in the case that an
employer has been found guilty of three or more violations.
5.Defines a long term care health facility to be one of the
following:
a. Skilled nursing facility;
b. Intermediate care facility;
c. Intermediate care facility/developmentally disabled;
d. Intermediate care facility/developmentally disabled
habilitative;
e. Intermediate care facility/developmentally
disabled-nursing;
f. Congregate living health facility;
g. Nursing facility;
h. Intermediate care facility/developmentally
disabled-continuous nursing; or
i. Pediatric day health and respite care facility.
This bill:
1.Narrows an exemption in current law that authorizes smoking in
patient smoking areas in long-term health care facilities to
only have the exemption apply where all of the following
conditions are met:
a. The patient smoking area is not located in a patient's
room;
b. The patient smoking area is located outdoors, in a
courtyard or patio, or other outdoor space that can be
monitored by facility staff; and
c. The patient smoking area is located in an area that
reasonably prevents smoke from entering the facility or
patient rooms.
2.Specifies that a long-term health care facility is not
prohibited from continuing or implementing a smoke-free policy
inside and outside the facility.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, minor enforcement costs to the Occupational Safety
and Health Administration (local enforcement costs are not state
reimbursable).
PRIOR VOTES :
Assembly Labor and Employment:5- 1
Assembly Appropriations: 12- 5
Assembly Floor: 50- 26
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COMMENTS :
1.Author's statement. According to the author, today's
scientific studies and reports have proven that secondhand
tobacco smoke kills. Most patients in long-term health care
facilities are there because they have medical needs that
require special attention from physicians, nurses,
occupational therapists, physical therapists, skilled medical
staff and others on a long-term basis. Since 2006, the
Surgeon General's Summary has reported that "there is no safe
level of exposure to tobacco smoke." Being confined and forced
to inhale 70 cancer-causing chemicals inside long-term care
facilities is not conducive to a healthy or healing
environment. The author states that this bill will prohibit
smoking inside long-term care facilities to protect
non-smoking patients, non-facility workers, and all visitors,
including children from 7,000 harmful chemicals found in
secondhand tobacco smoke. The author states that according to
the Centers for Disease Control and Prevention, during 2000 to
2004, smoking was estimated to be responsible for $193 billion
in annual health-related economic losses in the United States.
The author argues that this bill will save our state
millions, perhaps billions, of dollars but most importantly
save lives of Californians.
2.Federal regulations on patients' rights. In their letter
opposing this bill unless it is amended, the California
Association of Health Facilities (CAHF) argues that federal
law does not allow a facility to prohibit a patient from
smoking, unless that facility has gone through specified steps
to become a completely non-smoking facility, and even then
must allow existing patients who smoke to continue to do so.
The federal regulation in question requires residents of
long-term care facilities to have "a right to a dignified
existence, self-determination, and communication with and
access to persons and services inside and outside the
facility." Federal regulations also require patients of these
facilities to "make choices about aspects of his or her life
in the facility that are significant to the resident."
The federal Centers for Medicare and Medicaid Services, in its
State Operations Manual providing interpretive guidelines to
these regulations, provide some specific direction regarding
smoking in long-term care facilities. For example, this manual
includes the following statement: "If a facility changes its
policy to prohibit smoking, it must allow current residents
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who smoke to continue smoking in an area that maintains the
quality of life for these residents. Weather permitting, this
may be an outside area." However, the Technical Assistance
Legal Center, a project of Public Health Law & Policy and the
Public Health Institute, in a memorandum on smoke-free
policies for long-term care facilities, pointed out that in
City of San Jose v. Department of Health Services, 66 Cal.
App. 4th 35 (1998), a California court reviewing this
guideline concluded that because the regulation itself did not
mention smoking, the interpretive guideline went beyond what
the regulation itself required and therefore was not binding.
3.Comparison to other states. According to the American Lung
Association, in a comparison between California and the other
25 states plus the District of Columbia that have a
comprehensive smoke-free workplace law, 15 other states plus
the District of Columbia do not have the exemption for
long-term health facilities. The 15 states where smoking is
prohibited in long-term health facilities include Arizona,
Oregon, and Washington.
4.Double referral. This bill is double referred. Should it pass
out of this Committee, it will be referred to the Senate
Committee on Labor and Industrial Relations.
5.Related legislation. SB 575 (DeSaulnier) would eliminate most
of the exemptions in the workplace smoking prohibition,
including the exemption for patient smoking areas in long-term
health care facilities. SB 575 was held in Assembly
Governmental Organization Committee without recommendation.
AB 1278 (Hill) would extend the current ban on tobacco use in
workplaces, including hospitals, to include the entire
hospital campus. AB 1278 is currently pending in this
committee.
6.Prior legislation. AB 1467 (DeSaulnier) of 2007, would have
eliminated most of the exemptions in the workplace smoking
prohibition, but did not propose to eliminate the exemption
for patient smoking areas in long-term health care facilities.
AB 1467 was vetoed by Governor Schwarzenegger.
AB 2067 (Oropeza), Chapter 736, Statutes of 2006, prohibited
smoking in covered parking lots, and adds to the definition of
"enclosed spaces" lobbies, lounges, waiting areas, elevators,
stairwells and restrooms that are a structural part of the
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building, thereby prohibiting smoking in those areas.
AB 13 (T. Friedman), Chapter 310, Statutes of 1994, prohibited
employers from knowingly or intentionally permitting, or any
person from engaging in, the smoking of tobacco products in
enclosed places of employment, with specific exemptions.
7.Support. Breathe California writes in support that tobacco is
the single greatest cause of disease and premature death in
America today and, according to the Surgeon General, is
responsible for more than 435,000 deaths annually. Supporters
contend secondhand smoke is a known human carcinogen, and a
smoke-free environment helps create a safer, healthier
workplace and living environment. The California Chapter of
the American College of Emergency Physicians writes AB 217
protects non-smoking workers and patients who are chronically
or terminally ill and who work or reside inside long-term
health care facilities by removing exposure to secondhand
tobacco smoke. The California Medical Association writes that
this measure offers important protections for those residents
and workers who do not wish to be exposed to harmful smoke.
Atlantic Memorial Healthcare Center, a 97-bed skilled nursing
facility in Long Beach, in support that it has implemented a
smoke-free policy for more than a year, states that it knows
too well about the deadly effects of secondhand smoke, and
that the response and support from patients, family members,
staff, doctors and the community regarding its smoke-free
policy has been tremendously positive.
8.Oppose unless amended. CAHF is opposed to AB 217 unless it is
amended, expressing concern that it would place skilled
nursing facilities in the position of violating residents'
rights during certain weather conditions such as extreme heat
or cold. CAHF states that "smoking can help maintain a sense
of stability while residents transition to life in a long-term
health care facility." CAHF writes that smoking is also a
source of comfort in many residents' lives and that federal
regulations recognize smoking as personal comfort items.
CAHF writes that, under federal law, a resident has the right
of self-determination regardless of his or her residence in a
long-term care facility. A resident's autonomy and
self-determination are entitled to respect. CAHF further
argues that federal law does not permit facilities or the
state from deterring and/or undermining residents' ability to
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make autonomous decisions.
CAHF is requesting the measure be amended to allow an indoor
smoking area to be established temporarily, during inclement
weather, to accommodate the needs of smoking residents indoors
rather than risking their health by making them use an outdoor
area during inclement weather conditions.
SUPPORT AND OPPOSITION :
Support: Atlantic Memorial Healthcare Center
Breathe California
California Chapter of the American College of
Emergency Physicians
California Medical Association
Coalition for a Tobacco Free San Bernardino County
El Sol Neighborhood Educational Center
Evemore Church
Health & Wellness Center, Crafton Hills College
Kaiser Permanente
Libreria del Pueblo, Inc.
Southland Care Center
United States Hispanic Women Grocers
Valor Youth Foundation
Five individuals
Oppose:California Association of Health Facilities (unless
amended)
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