This policy is intended to be a model for a state regulation to regulate smoking in Assisted Living Facilities. This model regulation would require smoke-free environments inside Assisted Living Facilities, but would allow for indoor designated smoking areas for use by current and future residents of Assisted Living Facilities who are smokers. This policy also 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 Assisted Living Facility.

Sec. 1000. Title

This regulation shall be titled the Regulation of Smoking in Assisted Living Facilities.

Sec. 1001. Authority

This regulation is hereby adopted by [insert State Health Department or other entity] pursuant to the authority conferred upon local health departments by the [insert appropriate state law citation].

Sec. 1002. Jurisdiction and Administration

This policy shall have effect throughout [insert name of State]. The [insert State Health Department or other entity] shall have responsibility for administering and enforcing this policy, 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 Assisted Living Facilities caused by resident and/or employee smoking.

Accordingly, [insert State Health Department or other entity] finds and declares that the purposes of this policy are 1) to protect the public health and welfare by prohibiting smoking in the enclosed areas that make up Assisted Living Facilities and regulating smoking on the outdoor grounds of Assisted Living Facilities; 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 policy, shall be construed as defined in this section:

1. "Assisted Living Facility" is a long term care alternative for older people who generally need more assistance than is available in a retirement community, but who do not require the intensive medical and nursing care that is provided in a nursing home. Residents of Assisted Living Facilities may need assistance with activities of daily living (ADLs) such as eating, bathing, dressing, housekeeping, and assistance with medications, but they generally do not require constant care. [If your state has a definition for Assisted Living Facilities, the use that definition.]

2. "Employee" means any person who is employed by the Assisted Living Facility 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 an Assisted Living Facility, 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 Assisted Living Facility.

6. "Place of Employment" means any enclosed area under the control of a public or private Assisted Living Facility which employees normally frequent during the course of employment, including, but not limited to, work areas, 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 an Assisted Living Facility.

7. "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant, or other related substance or product.

Sec. 1005. Regulation of Smoking

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 Assisted Living Facilities.

B. REGULATION OF SMOKING INDOORS:

1. Smoking shall be prohibited in all enclosed areas of Assisted Living Facilities. This includes, but is not limited to, all common areas, nursing home facility rooms, individual apartments (excluding "smoking" apartments), hallways, stairs, lobby and reception areas, cafeterias, lounges, elevators, restrooms, motor vehicles owned or leased by the Assisted Living Facility, and any other enclosed areas.

2. Notwithstanding any other provision of this regulation to the contrary, residents shall be allowed to smoke in individual apartments which are designated as "smoking" apartments.

3. Individual apartments shall be designated as "smoke-free" or "smoking." "Smoking" apartments shall be situated such that smoke does not enter "smoke-free" apartments or other smoke-free enclosed areas through windows, doors, pipes, ventilation systems, or by any other means. Individual "smoking" apartments shall also be separated physically from "smoke-free" apartments by using enclosures, ventilation, smoking wings and/or smoking floors. Smoking shall remain prohibited in all common areas, nursing home facility rooms, individual apartments (excluding "smoking" apartments), hallways, stairs, lobby and reception areas, cafeterias, lounges, elevators, restrooms, motor vehicles owned or leased by the Assisted Living Facility, and any other enclosed areas.

C. REGULATION OF SMOKING OUTDOORS:

1. Notwithstanding the above prohibition on smoking in enclosed areas, Assisted Living Facilities shall also prohibit smoking in all outdoor areas, except that an Assisted Living Facility may -- but is not required to -- provide an outdoor designated smoking area(s) that is on the grounds of the Assisted Living Facility. If provided, the outdoor designated smoking area shall be physically accessible, protected from the elements, and located a reasonable distance outside of the Assisted Living Facility to ensure that tobacco smoke does not enter the enclosed areas through entrances, windows, ventilation systems or any other means, and, further, that tobacco smoke does not enter the patio or porch areas of individual apartments.

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 the outdoor designated smoking area.

D. The smoking policy of the Assisted Living Facility 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 Assisted Living Facility by the employer.

B. Employer shall remove all ashtrays and other smoking paraphernalia from any area where smoking is prohibited by this policy.

Sec. 1007. Enforcement

The [insert State Health Department or other entity] shall be responsible for enforcing this policy. The Regulation of Smoking in Assisted Living Facilities shall also be incorporated by reference into the admissions contract that the resident signs upon admission into the Assisted Living Facility.

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 policy.

Sec. 1009. Other Applicable Laws

This policy 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 policy 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