This policy is intended to be a model for a state regulation to create smoke-free Nursing Homes. This model regulation would provide for smoke-free environments indoors, but would provide for indoor designated smoking areas only for current residents of nursing homes who are smokers. This policy allows for "grandfathering" of existing residents who are smokers, with the ultimate goal of having a smoke-free facility indoors. The policy allows for designated smoking areas outdoors. This model regulation can also be easily adapted for use as state legislation or as a policy for an individual Nursing Home facility.
Sec. 1000. Title
This regulation shall be known as the Smoke-Free Nursing Homes Regulation.
Sec. 1001. Authority
This regulation is hereby adopted by the [insert State Health Department or other entity] pursuant to the authority conferred upon the [insert State Health Department or other entity] by the [insert appropriate state law citation].
MSec. 1002. Jurisdiction and Administration
This regulation shall have effect throughout [insert name of State]. The [insert State Health Department or other entity] shall have responsibility for administering and enforcing this regulation, including all amendments hereafter adopted unless otherwise specifically stated.
Sec. 1003. Findings and Purpose
The [insert State Health Department or other entity] hereby finds that:
The U.S. Surgeon General, National Research Council, and National Academy of Sciences report that environmental tobacco smoke causes lung cancer and poses an increased risk of heart disease in adult nonsmokers. These agencies, as well as the National Institute for Occupational Safety and Health (NIOSH), have also found that separating smokers and nonsmokers within the same air space may reduce, but does not eliminate, a nonsmoker’s exposure to environmental tobacco smoke. Further, the U.S. Environmental Protection Agency and the National Institute for Environmental Health Sciences have concluded that environmental tobacco smoke is a Group A Carcinogen – a category reserved for known cancer-causing agents in humans.
Of the over 416,000 smoking-related deaths annually in the U.S., over 94% are to persons aged 50 and over, while over 70% are to persons aged 65 and over. All the major causes of death among the elderly (cancer, heart disease, and stroke) are associated with smoking or environmental tobacco smoke. Recent research also indicates that smoking is related to a number of health problems and diseases that are generally associated with aging, including hearing loss, dementia, and Alzheimer’s.
The United States Fire Administration has determined -- based on data from the National Fire Incident Reporting System, the National Fire Protection Association (NFPA), the National Center for Health Statistics and State Fire Marshall's Offices -- that by far the leading cause of residential fires that result in fatalities in older adults is smoking, and that the older adult population represents the highest fire risk group in the United States with a risk of more than twice the national average. The NFPA reports that the risk of fire injury and death increases with age -- persons 75 and over are three times as likely to die in a fire as are younger adults, and persons 85 and over are four times as likely to die as younger adults. Reports from these agencies document that residential fires include fires in Nursing Homes caused by resident and/or employee smoking.
Accordingly, [insert State Health Department or other entity] finds and declares that the purposes of this regulation are 1) to protect the public health and welfare by prohibiting smoking in the enclosed areas that make up Nursing Homes and regulating smoking on the outdoor grounds of Nursing Homes; and 2) to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
Sec. 1004. Definitions
A. The following words and phrases, whenever used in this regulation, shall be construed as defined in this section:
1. "Nursing Home" is defined by [insert state]'s Medicaid regulations or other statutory law, such as the Public Health Code. [If your state has a definition for Nursing Homes, use that definition.] Generally, "Nursing Home" means a place that provides 24-hour services, including room and board, to residents who require nursing care or personal care due to their mental or physical condition.
2. "Employee" means any person who is employed by the Nursing Home in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.3. "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, functioning as a Nursing Home, who employs the services of one or more individual persons.
4. "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageways) which extend from the floor to the ceiling.
5. "Resident" means an occupant and user of the Nursing Home.
6. "Place of Employment" means any enclosed area under the control of a public or private Nursing Home which employees normally frequent during the course of employment, including, but not limited to, work areas, resident rooms, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a Nursing Home.
7. "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or in any form.
Sec. 1005. Operation and Maintenance of Smoke-Free Nursing Homes
A. It shall be the responsibility of the employer to provide a smoke-free place of employment for all employees and a smoke-free residential setting for all residents of Nursing Homes.
B. REGULATION OF SMOKING INDOORS:
1. Smoking shall be prohibited in all enclosed areas of Nursing Homes. This includes, but is not limited to, common work areas, resident rooms, hallways, stairs, lobby and reception areas, cafeterias, lounges, elevators, restrooms, motor vehicles owned or leased by the Nursing Home, and any other enclosed areas.
2. If there are current residents of a Nursing Home who were both a) residents of the given Nursing Home and b) current smokers prior to the adoption date of this smoking regulation, these residents shall be designated as "grandfathered residents."
3. Notwithstanding any other provision of this regulation to the contrary, smoking shall be prohibited in all enclosed areas of Nursing Homes except for an indoor designated smoking area for use solely and exclusively by "grandfathered residents." The indoor designated smoking area shall be separately enclosed and separately ventilated such that tobacco smoke does not enter any other indoor enclosed areas through windows, doors, ventilation systems, or by any other means.
4. If and when there are no "grandfathered residents" at a given Nursing Home, there shall be no indoor designated smoking area at the Nursing Home.
5. Only "grandfathered residents" shall be allowed to utilize the indoor designated smoking area. If it is determined that a "grandfathered resident" needs supervision in order to utilize the designated smoking area, employees shall be given the choice whether they wish to supervise the "grandfathered resident" and thereby be exposed to secondhand smoke. Employees shall be given the right to refuse to accompany a "grandfathered resident" to and in the indoor designated smoking area.
6. Notwithstanding any other provision of this regulation to the contrary, if there are "grandfathered residents" living in the Nursing Home, the Nursing Home may establish specific times during which smoking may occur in the designated smoking area. Further, if, after conducting an individual assessment, the Nursing Home determines that smoking by a resident poses a danger to him/herself or others, the Nursing Home may confiscate any and all smoking items and paraphernalia from the resident and make it available for use by the resident only at specific times and/or under the supervision of Nursing Home staff.
C. REGULATION OF SMOKING OUTDOORS:
2. Residents may be allowed to utilize the outdoor designated smoking area. If a resident needs supervision in order to utilize the outdoor designated smoking area, employees shall be given the choice whether they wish to supervise a resident and thereby be exposed to secondhand smoke. Employees shall be given the right to refuse to accompany a resident to and in the outdoor designated smoking area.
D. The smoking policy of the Nursing Home shall be communicated by the employer to all current employees and residents at least three (3) weeks prior to its effective date, and at the time of employment for all other employees, and prior to admission and/or prior to the signing of an admission agreement or contract for any new resident.
E. The employer shall supply a written copy of the smoking policy upon request to any existing or prospective employee or resident.
Sec. 1006. Posting of Signs
A. "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted at every entrance to the Nursing Home by the employer.
B. The employer shall remove all ashtrays and other smoking paraphernalia from any area where smoking is prohibited by this regulation.
Sec. 1007. Enforcement
The [insert State Health Department or other entity] shall be responsible for enforcing this regulation.
Sec. 1008. Nonretaliation
The employer shall not discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or resident because such employee, applicant, or resident exercises any right to a smoke-free environment afforded by this regulation.
Sec. 1009. Other Applicable Laws
This regulation shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
Sec. 1010. Severability
If any provision, clause, sentence, or paragraph of this regulation or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this regulation which can be given effect without the invalid provision or application, and to this end the provisions of this regulation are declared to be severable.
Sec. 1011. Effective Date
This regulation shall be effective ninety (90) days from and after the date of its adoption.
Model regulation prepared in March, 2003 by The Center for Social Gerontology, Inc., Ann Arbor, Michigan. http://www.tcsg.org