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PUBLIC HEALTH POLICY CHANGE
Addressing Health Disparities: Smoke-Free Policies for Public Housing
Public Health Policy Change Webinar Series
• Providing substantive public health policy knowledge and legal research in an interactive format
• Covering public health policy topics surrounding Tobacco, Obesity Prevention, School and Worksite Wellness, and more
• Two Tuesdays a month, usually from 12:00 p.m.-1:30 p.m. (CST)
• Visit http://publichealthlawcenter.org/ for information about past and upcoming webinars
The legal information and assistance provided in this webinar does not constitute legal advice or legal representation.
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Today’s Presenters • Warren Ortland; Staff Attorney, Public Health Law Center
• Matthew Moore; Staff Attorney, ChangeLab Solutions
• Rachel Riley; Senior Environmental Trainer, Office of Healthy Homes and Lead Hazard Control (OHHLHC), U.S. Department of Housing and Urban Development
• Gail Livingston; Director of Operations and Property Management, Boston Housing Authority
Today’s Webinar • Introduction (Warren Ortland)
• Legal Topics for Public Housing (Matthew Moore)
• HUD and Smoke-Free Housing (Rachel Riley)
• The Boston Housing Authority Experience (Gail Livingston)
• Q&A (moderated by Warren Ortland)
The Tobacco Control Legal Consortium
The Legal Network for Tobacco Control: A national network of attorneys and legal centers
dedicated to advancing tobacco control policy.
Tobacco Free Living: Legal and Policy approaches to Smokefree Multi-Unit Housing Matthew Moore, JD, MPH
Staff Attorney July, 2012
Photo: http://www.sxc.hu
ChangeLab Solutions
ChangeLab Solutions
We partner with state and local leaders to improve health in all communities, especially the underserved.
We do this by researching legal and policy questions, drafting policy language, and training community leaders to put these
ideas to work.
Photo: http://www.sxc.hu
Questions Why does smokefree housing
matter?
How are smokefree policies legal?
What is a housing provider’s
potential liability without a smokefree policy?
How to adopt a smokefree
policy?
Photo: http://www.sxc.hu
• Lung Cancer
• Emphysema
• Heart Disease
• Stroke
• Asthma
• COPD
The Debate is Over
There is no risk-free level of exposure to
secondhand smoke
The Debate is Over
Tobacco Smoke and Physics
SidePak Monitor
Air Speed Monitor
Air Speed Monitor
Neil Kelpeis Ph.D
Photo: www.diylife.com
Photo: www.mhinteriors.blogspot.com
Photo: www.mhinteriors.blogspot.com
Photo: http://www.sxc.hu
Photo: http://www.sxc.hu
Photo: http://www.usconstitution.net
Is there a right to smoke?
Smoking is not a legally
protected right
Therefore, housing providers
can legally create smokefree policies in: Common Areas Units Any other part of a property
that they own or control
Photo: http://www.usconstitution.net
Photo: http://www.usconstitution.net
What about a tenant’s right to privacy?
There is a fundamental right to privacy, but
The right to privacy does not include smoking
Photo: www.treehugger.com
Discrimination against smokers?
Smokefree policies in multi-unit housing do not violate civil rights laws
Smokers are not a protected
class and smoking is not a protected activity
Photo: www.treehugger.com
Photo: http://www.sxc.hu
A housing provider’s potential liability?
Could be legally responsible for
drifting smoke
Possible legal claims: Violation of the implied
covenant of quiet enjoyment Constructive eviction Negligence Violation of the implied
warranty of habitability
Photo: http://www.sxc.hu
Photo: http://www.sxc.hu
How do disability laws factor in?
Tenants with disabilities may
have special rights
If a tenant’s disability is made worse by secondhand smoke…
Then the tenant may be entitled to a reasonable accommodation
Photo: http://www.sxc.hu
Photo: http://www.garveyproducts.com
Adopting a smokefree policy
Housing providers may prohibit
smoking in: Indoor and outdoor common
areas Individual units Balconies and patios (exclusive
use areas of a unit)
Photo: http://www.garveyproducts.com
Photo: http://www.sxc.hu
Smokefree common areas (enclosed and
unenclosed)
To implement: Give reasonable notice Post No-Smoking signs Designate any outdoor
smoking area(s)
Photo: http://www.sxc.hu
Photo: http://www.sxc.hu
Smokefree Units Can make some or all units
smokefree Can also restrict smoking on
balconies or patios, called “exclusive use” areas of a unit
Photo: http://www.sxc.hu
Additional Considerations
Photos: http://www.sxc.hu
Photo: http://www.sxc.hu
Implementing a smokefree unit policy
New leases: include a smokefree
provision
Existing leases: If the tenant consents, amend
the lease
If the tenant does not consent, wait until the lease expires
Photo: http://www.sxc.hu
Photo: http://www.fredericksburgva.gov
Local Laws
Local governments may pass
laws to prohibit smoking in: Indoor and outdoor common
areas Individual units Balconies and patios
Important to keep up to date
Photo: http://www.fredericksburgva.gov
Disclosure
Legally required by some state and/or local governments Example: CA Civil Code Section 1947.5(b)
Must disclose where
smoking is prohibited
Disclosure goes in all new leases
Photo: http://www.sxc.hu Photo: http://www.sxc.hu
Summary
Housing providers and local governments have the legal authority to prohibit smoking
Smokefree policies define where people can smoke, not whether people smoke
Smokefree policies protect housing providers against potential liability
Smokefree policies can be implemented just like any other new rule or lease term
Photo: http://www.sxc.hu
Disclaimers
The information provided in this presentation is for informational purposes only, and does not constitute legal advice. ChangeLab Solutions does not enter into attorney-client relationships.
Disclaimers
The information provided in this presentation is for informational purposes only, and does not constitute legal advice. ChangeLab Solutions does not enter into attorney-client relationships. The primary purpose of this presentation is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation. ChangeLab Solutions incorporates objective non-partisan analysis, study, and research in all our work.
www.changelabsolutions.org
Fact Sheets
Model Policies
Policy Checklists
Legal Memos
This presentation cannot be copied or reproduced without permission. © 2012 ChangeLab Solutions
ChangeLab Solutions
Overview of HUD’s Promotion of Smoke-Free Housing Policies in Federally Assisted
Housing
Rachel M. Riley Rachel.M.Riley@hud.gov
202-402-7690
HUD Office of Healthy Homes and Lead Hazard Control
46
Importance to HUD of reducing
exposure to secondhand smoke in federally assisted housing
HUD’s actions to date HUD’s implementation strategy
47
Overview of Presentation
Importance to HUD
Consistency with HUD strategic plans ◦ Department Goal to “Utilize HUD assistance
to improve health outcomes” ◦ Increasing amount of SF multifamily housing is
also an objective in HUD’s Healthy Homes Strategic Plan
48
Importance to HUD, contd.
Vulnerability of Residents in federally-assisted housing ◦ Low income, many live below poverty line ◦ Higher percentages of vulnerable groups ◦ In poorer health than general population: Higher rates of cardiovascular disease, asthma and
other respiratory illness, diabetes and mental illness
49
HUD’s Response to Date
Publication of Notices by 2 HUD Program Offices ◦ Office of Public and Indian Housing First notice issued July, 2009 Current PIH-2012-25-no expiration date, published
May 30, 2012
◦ Office of Housing Similar notice for subsidized private owners in 2010
50
HUD’s Response
Common themes in notices: ◦ Creation of SF housing is strongly encouraged,
but not mandatory (no plans to go there) ◦ No safe exposure level to SHS ◦ Smoke migrates between units in MF housing;
SF policies are the only effective way to prevent exposure ◦ Smokers are not prohibited from living in SF
buildings ◦ SF policies reduce cost of maintenance
51
HUD’s Response
Common themes, contd. ◦ SF policies reduce fire risk ◦ Owners/managers have discretion to apply
this policy to some or all of their units and decide how to structure policies ◦ Importance of helping residents access
smoking cessation resources
52
HUD’s Response
Office of Healthy Homes has coordinated with PIH to draft a Federal Register notice asking for input on SF policies in MF housing
HUD wants to identify best practices for implementation ◦ Resident engagement ◦ Strategic partnering ◦ Policy enforcement
Notice is currently under OMB Review 53
Smoke-Free Housing Toolkits
Worked with federal and private partners for long time to develop and clear the toolkits
CDC, EPA, American Lung Association, American Academy of Pediatrics helped develop guidance
Toolkits released on 6/19/12 at press event
Posted at www.hud.gov/lead under “In Focus”
54
Workshop on Smoke-Free MF Housing CDC, American Lung Association working
with HUD on 1-day workshop on SF MF housing
Held as ancillary meeting on 8/14/12 before National Tobacco Control Conference in Kansas City, MO
Register at: http://www.lung.org/associations/states/mi
nnesota/events-programs/smoke-free-multi-unit.html
55
Grantee Implementation Area Housing Authority American Lung Association of Upper Mid-West
Northern MN, SD & ND - 8 tribal reservations - Little Earth and Mille Lac in Minneapolis, Leech Lake, White Earth and Mille Lac in Northern MN, Oglala Sioux/Pine Ridge in SD Standing Rock and Cheyenne River Sioux Reservations on the SD/ND border.
Oglala Sioux Tribe HA Indian Health Service HA
Bureau of Indian Affairs HA Cheyenne River Sioux Tribe HA Standing Rock Sioux Tribe HA
Little Earth of United Tribes of MN, White Earth HA Leech Lake HA
Mille Lacs Band of Ojibwe. Sinai Health System IL - Chicago Westside Chicago HA University of Massachusetts, Lowell
MA - Lowell and North Canal Lowell HA Coalition for A Better Acre
Eastern Virginia Medical School
VA - Norfolk Norfolk Redevelopment and HA
New York Academy of Medicine
NY - East Harlem New York City HA
Michigan Dept. of Community & Public Health
MI - Ingham County (Lansing) Lansing Housing Commission
Minnesota Department of Health
MN - Anoka, Dakota, Carver and Ramsey counties, City of Minneapolis City of Bloomington, Edina & Richfield
Metropolitan HRA (Anoka, Ramsey & Carver)
Dakota County CDA Minneapolis PHA Bloomington HRA Richfield HRA
Boston Medical Center MA - Boston Boston HA
HUD Asthma Grantees, location and PHA partners
Other Implementation Plans
Develop and formalize partnerships Identifying and distributing guidance for
implementation Establish clear goals for adoption by HUD
program participants
57
PUBLIC HEALTH POLICY CHANGE
Implementing Non-Smoking Housing at the Boston Housing Authority
The legal information and assistance provided in this webinar does not constitute legal advice or legal representation.
The Road to Non-Smoking Housing
The legal information and assistance provided in this webinar does not constitute legal advice or legal representation.
BHA Background
•12,000 units in many building types • 26,000 residents
• Family and Elderly/Disabled Units
Resident Profile
• Average household income $12,000 • 47% English, 38% Spanish as primary language at home • 38% Hispanic, 26% Black (Non-H), 19% White (Non-H), 16% Asian, 1% other
Resident Health • 33% self-rated fair to poor health compared to 10%
non-public housing residents • 2x asthma rates of non-subsidized housing in Boston • Significantly higher rates of diabetes, obesity, high
blood pressure than non-public housing residents • 19% smoker in household compared to 14% citywide • Health stats worse for Blacks and Latinos—64% of
BHA population
Why Non-Smoking Housing?
• The BHA has a decade-long history of participation in Healthy Homes initiatives.
• Existing Policies
• Public Conversations
• Internal Incentives
Existing Policies
•City Workplace Ordinance •BHA Smoke-Free Workplace Policy
Public Conversation
•Participation in Boston Public Health Commission Non-Smoking Housing Initiative •Political Support •Policy Summit
Shifting the Mindset at the BHA
•Healthy Housing Studies •Increasing Transfer Requests •Surveys
Non-Smoking Policy Survey • A. No one in my household smokes, and I support a smoke-free policy in my development.
• B. I or another member of my household smokes, but I (we) would be willing and able to comply with a smoke-free policy at our development.
• C. A smoke-free policy would be a serious issue for my household. These are the reasons:
Survey Results • Mailed 10,230; Responded 2723 • Response Rate 26.6%
• Non-Smoker Support: 79.1%
• Smoker Support: 10.9%
• Smoker/Non-Smoker Don’t Support: 10.0%
Non-Smoking Policy
• Annual Plan with robust Public Process
• HUD approved July 2011
Proposed Policy
• Smoke-Free, not Smoker-Free • Smoking prohibited by residents and their guests in all units, hallways, common areas and within a small perimeter outside the building
• Lease Enforcement/Fees
Process and Timeline • Ongoing Staff Trainings
• Ongoing Resident Community Meetings
• Resident Support Activities
• New Lease Addendum: Fall, 2011 • Policy Effective: Fall, 2012
Staff Training: Why Non-Smoking Housing?
There is no safe level of secondhand smoke exposure. Period. Health effects:
•lung infections •ear problems •SIDS •asthma •lung cancer (20-30% increase) •coronary heart disease (25-30% increase)
Some groups may be more susceptible
Why? The other ‘costs’ of smoking
•Increased costs of maintenance and vacancy rehab •Increased risk of fire from smoking
Resident Meetings: Why Non-Smoking Housing?
According to the Surgeon General, there is no safe level of secondhand smoke exposure; and, Smoke travels between units through air ducts, cracks in the walls and floors, elevator shafts, and electrical lines; and, Ventilation systems and engineering fixes do not eliminate secondhand smoke; so, Eliminating indoor smoking in multiunit housing is the only way to completely protect people from exposure
Resident Support and Cessation Services
The Boston Public Health Commission provides staff: a Tobacco Cessation Specialist to offer Boston public housing residents free non-smoking groups, on-site, with nicotine patches to help them quit smoking.
Lessons Learned • Collect data • Engage residents; what do they want?
• Engage health partners and other allies
• Ensure political support
Ongoing Issues • Individual rights concerns
• More regulation for low-income families
• Other quality of life issues that are more important to
residents (drugs, crime, etc.)
• Challenges of enforcement
• Reasonable Accommodation
Housing Ancillary Sessions at NCTOH • Smoke-Free Multi-Housing 2.0: Leveraging Our Successes and
Strategizing Next Steps – August 14; 3 – 6 pm; focus on emerging issues – medical marijuana, electronic cigarettes, and transitional housing http://www.123contactform.com/form-344285/Advanced-Smoke-Free-Housing-Ancillary-Session
• Smoke-free Multi-Unit Housing: A Focus on Affordable Housing, American Lung Association Ancillary Meeting – August 14; 8:30 am – 4:30 pm http://www.lung.org/associations/states/minnesota/eventse28090programs/smoke-free-multi-unit.html
Housing Break-out Sessions at NCTOH • All I Need is the Air That I Breathe: Smoke-Free Multi-Unit
Housing – Wednesday, August 15th; 3:00 – 4:15 pm; Rm 2202 • Dr. Valerie Yerger – Working in an Urban Community • William Tilburg, JD – Policy Options for Smoke-free Housing • Matthew Moore, JD, MPH – Ordinances to Reduce Secondhand Smoke in
Housing
• Leaving No Tenant Exposed: Creating Smoke-Free Public Housing – Thursday, August 16; 2:00 – 3:15 pm; Rm 3501D • Sarah Mayberry – Breathe Easy Coalition of Maine • Tina Pettingill – Breathe Easy Coalition of Maine • Carissa Larsen – Association for Nonsmokers – Minnesota • Diane Laughter – Health In Sight, LLC for the Oregon Smokefree Housing
Project
Housing Resources National Programs
• Live Smoke Free; CPPW Mentoring Grant; full range of services; 9-part webinar series www.mnsmokefreehousing.org
• Tobacco Control Legal Consortium; legal focus; multiple smoke-free housing publications www.tclconline.org
Q&A Session
• Type Questions in WebEx Chat Box • Moderator Will Direct Questions to Speakers
Questions after today’s presentation? Email us at:
publichealthlawcenter@wmitchell.edu
Next Webinar in the Series
The Promise and Potential Pitfalls in Promoting Outcome-Based Incentives with Worksite Wellness Initiatives.
Tuesday, July 17, 12:00 p.m. – 1:30 p.m. (CST) Visit www.publichealthlawcenter.org for more information
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