PUBLIC HEALTH POLICY CHANGE

Addressing Health Disparities: Smoke-Free Policies for Public Housing

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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