BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 27, 2012 2011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 217
Author: Carter
As Introduced/Amended: April 7, 2011
SUBJECT
Workplace smoking prohibition: long-term health care facilities
KEY ISSUE
Should smoking of tobacco products in patient smoking areas at
long-term health care facilities be allowed only if certain
criteria are met - including that the smoking area is located
outdoors to prevent smoke from entering the facility?
PURPOSE
To restrict smoking in long-term health care facilities by only
allowing it in a designated patient smoking area that is
outdoors, as specified.
ANALYSIS
Existing law prohibits employers from knowingly or intentionally
permitting the smoking of tobacco products in an enclosed space
at a place of employment. Existing law exempts certain places
of employment from the prohibition on smoking tobacco products
in an enclosed space, including the following, among others:
� Hotel or motel lobbies that meet certain size
requirements;
� Meeting and banquet rooms in hotels or motels, except
when food or beverage functions are taking place or when
being used for an exhibit;
� Retail or wholesale tobacco shops and private smokers'
lounges, as defined;
� Warehouse facilities, as defined;
� Gaming clubs, bars and taverns;
� Medical research or treatment sites, if smoking is
integral to the research and treatment being conducted;
� Patient smoking areas in long-term health care
facilities;
� Break rooms designated for smoking by an employer; and
� Employers with five or fewer employees, subject to
specified requirements.
Under existing law , any violation of the smoking prohibition
results in an infraction punishable by a fine of $100 for a
first violation, $200 for a second violation within one year,
and $500 for a third and for each subsequent violation within
one year. Enforcement of the smoking prohibition is carried out
by local law enforcement agencies, unless an employer has been
found guilty of three or more violations which require an
investigation by the Division of Occupational Safety and Health
(Cal/OSHA). (Labor Code �6404.5)
Existing law (Health & Safety Code �1418) defines a long-term
health care facility as 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 would provide that a patient smoking area in a
long-term health care facility is not exempt from the smoking
prohibition unless certain conditions are met.
Hearing Date: June 27, 2012 AB 217
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Senate Committee on Labor and Industrial Relations
Specifically, the bill would:
1. Provide that smoking in patient smoking areas in these
health care facilities is only allowed if 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, 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. Specify that a long-term health care facility is not
prohibited from continuing or implementing a smoke-free
policy inside and outside the facility.
COMMENTS
1. Background and Need for this bill?
Current law generally prohibits smoking in places of
employment; however, the law contains a number of exemptions.
Since 1994, when the first bill to prohibit smoking tobacco in
enclosed spaces was passed, the research and evidence arguing
that secondhand smoke has a significant negative impact on a
person's health has grown considerably. Both the U.S.
Department of Health and Human Services (DHH) and the Center
for Disease Control (CDC) have released studies stating that
there is no safe level of environmental tobacco smoke, and
that it has immediate adverse effects on the cardiovascular
system in adults. Studies have also shown that conventional
air cleaning systems cannot remove the smaller particles or
gases associated with environmental tobacco smoke. Study
after study has concluded that establishing smoke-free
workplaces is the most effective way to ensure that secondhand
smoke exposure does not occur in the workplace.
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Senate Committee on Labor and Industrial Relations
According to the United States Surgeon General Regina M.
Benjamin, "Evidence shows that smoking rates decline when
states implement comprehensive tobacco-control programs, and
the longer the investment, the greater and faster the impact.
For example, California is home to the longest-running state
tobacco-control program in the country. Lung cancer incidence
has been declining four times faster in that state than in the
rest of the nation. California has the potential to become
the first state in which lung cancer is no longer the leading
cause of cancer death. ("Exposure to Tobacco Smoke Causes
Immediate Damage: A Report of the Surgeon General," Public
Health Reports, March-April 2011, Volume 126)
The author believes that more needs to be done to protect the
most vulnerable from exposure to over 7,000 harmful chemicals
found in tobacco smoke. In an effort to eliminate secondhand
tobacco smoke exposure to protect non-smoking workers and
patients, this bill would 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.
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 �41 C.F.R �483.15(b)(1)]
specifies that a facility must care for its residents in a
manner and in an environment that promotes maintenance or
enhancement of each resident's quality of life. This
regulation further states that residents have the right to:
1. Choose activities, schedules, and health care
consistent with his or her interests, assessments, and
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Senate Committee on Labor and Industrial Relations
plans for care;
2. Interact with members of the community both inside
and outside the facility; and
3. Make choices about aspects of his/her life in the
facility that are significant to the resident.
The federal regulation further states that "A resident has
the right to - reside and receive
services in the facility with reasonable accommodation of
individual needs and preferences,
except when the health or safety of the individual or other
residents would be endangered."
3. Committee Staff Comment:
Considering this federal regulation and the resident's rights
to "make choices about aspects of his/her life in the
facility," the author may wish to address situations where
outdoor smoking could be dangerous to the resident due to
inclement weather conditions. Committee staff is aware of
continuing conversations between the author and the opposition
aimed at addressing this concern.
4. Bullets on the health impacts of secondhand smoke:
According to the U.S. Department of Health and
Human Services, secondhand smoke exposure can cause
harmful health effects that include heart disease, heart
attacks, lung cancer, asthma and chronic respiratory
problems, among others.
The U.S. Environmental Protection Agency
classifies secondhand smoke as a Class "A" human
carcinogen (cancer causing agent), the same class as
asbestos. The California Air Resources Board has
declared secondhand smoke to be a toxic air contaminant,
in the same category as diesel exhaust.
According to the California Department of Public
Health, nonsmokers who are frequently exposed to high
levels of secondhand smoke increase their risk of
developing heart disease by 25-30%, and lung cancer by
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Senate Committee on Labor and Industrial Relations
20-30%.
The U.S. Surgeon General has concluded that there
is no risk-free level of exposure to secondhand smoke,
ventilation cannot eliminate exposure of nonsmokers to
secondhand smoke, and establishing smoke-free
environments is the only proven way to prevent exposure.
(The Health Consequences of Involuntary Exposure to
Tobacco Smoke: A Report of the Surgeon General, 2006)
On June 22, 2009, President Obama signed the
Family Smoking Prevention and Tobacco Control Act giving
the U.S. Food & Drug Administration (FDA) authority over
tobacco products. Among other things, this Act bans
tobacco advertising within a thousand feet of schools
and playgrounds; forces companies to more clearly and
publicly acknowledge the harmful and deadly effects of
the products they sell; and allows the scientists at the
FDA to take other common-sense steps to reduce the
harmful effects of smoking.
5. Proponent Arguments :
According to the author, today's scientific studies and
reports have proven that secondhand tobacco smoke kills.
Since 2006, the Surgeon General's Summary has reported that
"there is no safe level of exposure to tobacco smoke." The
author contends that being confined and forced to inhale 70
cancer-causing chemicals inside long-term care facilities is
not conducive to a healthy or healing environment. Proponents
argue 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.
According to the author, this bill follows 16 states that,
according to the American Lung Association - Tobacco Policy
Project, already prohibit smoking inside long-term health care
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Senate Committee on Labor and Industrial Relations
facilities: AZ, DC, DE, MA, MD, ME, MI, MT, NE, NJ, NM, OR,
SD, UT, VT, and WA. The author believes that this bill will
save our state millions, perhaps billions, of dollars but most
importantly save lives of Californians.
6. Oppose Unless Amended :
The California Association of Health Facilities (CAHF) opposes
this measure 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. According to CAHF, "smoking can
help maintain a sense of stability while residents transition
to life in a long-term health care facility," and argue that,
under federal law, a resident has the right of
self-determination regardless of his or her residence in a
long-term care facility. CAHF further argues that federal law
does not permit facilities or the state from deterring and/or
undermining residents' ability to 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.
7. Double Referral :
This bill was previously heard and passed by the Senate Health
Committee on a 7-2 vote.
8. Prior Legislation :
AB 1278 (Hill) of 2011: Currently in Senate Appropriations
Committee
AB 1278 would extend the current ban on tobacco use in
workplaces, including hospitals, to include the entire
hospital campus. AB 1278 would also require general acute
care hospitals
to post specified signs and train employees on the smoking
policy.
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Senate Committee on Labor and Industrial Relations
SB 575 (DeSaulnier) of 2011: Held in Assembly Governmental
Organizations Committee
SB 575 would expand the prohibition on smoking in the
workplace by including an owner-operated business, unless
otherwise exempted. SB 575 would also eliminate most of the
specified exemption in law that currently permits smoking in
certain environments, including eliminating the exemption for
patient smoking areas in long-term health care facilities.
AB 1467 (DeSaulnier) of 2007: Vetoed by the Governor
AB 1467 (similar to SB 575) would have removed the exemptions
that permit smoking in specified bars, warehouses, hotel
lobbies, employee break rooms, and meeting and banquet rooms.
The bill would also have prohibited smoking in specified
owner-operated businesses regardless of whether or not they
have employees.
AB 2067 (Oropeza) of 2006: Chapter 736, Statutes of 2006
AB 2067 prohibits 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 building, thereby prohibiting smoking
in those areas.
AB 13 (Friedman) of 1994: Chapter 310, Statutes of 1994
AB 13 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.
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
Evermore Church, City of Riverside
Health & Wellness Center, Crafton Hills College
Kaiser Permanente
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Senate Committee on Labor and Industrial Relations
Libreria Del Pueblo Inc.
Southland Care Center, Norwalk
United States Hispanic Women Grocers Association
Valor Youth Foundation
5-individuals
OPPOSITION
California Association of Health Facilities (Oppose Unless
Amended)
Hearing Date: June 27, 2012 AB 217
Consultant: Alma Perez Page 9
Senate Committee on Labor and Industrial Relations