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.
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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.
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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,
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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
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<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
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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
STAFF ANALYSIS OF SENATE BILL 352 (Hall)
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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
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