Governor Jerry Brown Vetoes Smoking Ban inside California Nursing Homes

Mahatma Gandhi, humanitarian and civil rights leader (1869–1948), in the public domain. (Photo credit: Unknown author via Wikimedia Commons, 1940s)

Governor Jerry Brown rejects bill prohibiting deadly secondhand smoke inside California long-term health care facilities

“A nation’s greatness is measured by how it treats its weakest members,” said the great and compassionate political leader Mahatma Gandhi. Unfortunately, California’s chief executive, Governor Jerry Brown (D), has a disappointing record, as California’s immediate past attorney general and current governor, regarding the treatment of some of our weakest members—our frail, vulnerable, and aging parents and grandparents suffering in nursing homes.

On September 27, 2012, Governor Jerry Brown vetoed Assembly Bill 217, which would have prohibited smoking inside nursing homes and other long-term health care facilities in California and “eliminate[d] dangerous secondhand tobacco smoke exposure to protect non-smoking workers, non-facility workers and patients.” Introduced by Assemblymember Wilmer Amina Carter (D-Rialto), AB 217 would also have “eliminate[d] the unique fire risk due to oxygen tanks, flammable chemicals or other combustible items found in long-term health care facilities.” The bill, however, would have permitted smoking outside in designated patient smoking areas where smoke cannot enter a facility or patient rooms.

AB 217 would have prohibited smoking inside long-term health care facilities and eliminated the unique fire and explosion risks by closing one of the bizarre loopholes in California’s otherwise strict smoke-free laws, which ban smoking inside almost all enclosed public places, including workplaces, restaurants, and bars. California’s landmark anti-smoking law, Assembly Bill 13, enacted as California Labor Code § 6404.5, exempts and allows smoking inside a small number of enclosed places of employment, including, for example, private smoking lounges and tobacco shops. But although Labor Code § 6404.5 understandably allows individuals inside private smoking lounges to expose themselves and other like-minded smokers to the toxic and deadly chemicals in tobacco smoke, the statewide smoke-free law unbelievably allows patients to smoke inside nursing homes and other long-term health care facilities.

California’s definitions of “long-term health care facility” and “health facility” show the absurdity of Governor Brown’s desire to continue to exempt long-term health care facilities and permit patients to smoke inside these facilities with other disabled, elderly, and medically fragile patients. According to California Health and Safety Code § 1418, a “long-term health care facility” includes, but is not limited to, the following:

• Nursing homes

• Intermediate care facilities for patients with developmental disabilities

• Congregate living health facilities, which are residential homes providing inpatient medical supervision and skilled nursing care for a maximum of 12 patients that “is generally less intense than that provided in general acute care hospitals but more intense than that provided in skilled nursing facilities” (See California Health and Safety Code § 1250(i).)

• Pediatric day health and respite care facilities for “medically fragile children 21 years of age or younger” (See California Health and Safety Code § 1760.2.)

• Distinct parts of acute care hospitals and acute psychiatric hospitals that provide the services in skilled nursing facilities, intermediate care facilities, or pediatric day health and respite care facilities (See California Health and Safety Code § 1418(c).)

In addition, California Health and Safety Code § 1250 states that a “health facility,” which includes the long-term health care facilities listed above, “means any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation. . . .”

But the U.S. surgeon general has made it clear that the deadly health effects of involuntary exposure to tobacco smoke are not compatible with California’s definition of a “long-term health care facility” and with the prevention and treatment of human illness. In the U.S. Department of Health and Human Services’ 2006 The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General, Surgeon General Richard Carmona, 22 national experts, and 40 peer reviewers and scientists made the following conclusive findings:

• “Many millions of Americans, both children and adults, are still exposed to secondhand smoke in their homes and workplaces despite substantial progress in tobacco control.”

• “Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke.”

• “Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, and more severe asthma.”

• “Smoking by parents causes respiratory symptoms and slows lung growth in their children.”

• “Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.”

• “The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke.”

• “Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke.”

• “Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke.”

The California Senate and Assembly voted last month to eliminate the obviously ridiculous exemption in California’s smoke-free law allowing smoking and the deadly health effects of secondhand smoke inside nursing homes, intermediate care facilities, and pediatric day health and respite care facilities. On August 20, 2012, the California Senate overwhelmingly passed Assemblymember Carter’s AB 217 on a 29–8 vote. On August 22, 2012, the California Assembly passed the bill on a 52–26 vote.

Governor Brown, however, refused to sign the bill. In his September 27, 2012 veto letter to the members of the California Assembly, Governor Brown said, “While health and safety considerations must prevail, to the extent that a resident’s preferences can be accommodated, they should.” Despite Brown’s statement about health and safety considerations, such as dangerous secondhand smoke and the fire and explosion risks, he said that allowing elderly residents to smoke inside nursing homes and other long-term health care facilities “sounds reasonable to me.”

Governor Brown’s veto of AB 217 and his belief that the deadly health effects of secondhand smoke exposure are compatible with California’s definitions of “long-term health care facility” and “health facility” lead to some questions:

• Why does Governor Brown think it is “reasonable” for non-smoking patients, visitors, and employees inside long-term health care facilities, who have chosen to avoid, according to the U.S. surgeon general, “the single greatest avoidable cause of disease and death,” not to have the same civil rights and protections under California’s smoke-free laws that others enjoy inside almost all enclosed public places?

• Why does Governor Brown think it is “reasonable” for California’s ban on smoking inside almost all enclosed public places not to apply to long-term health care facilities for disabled, elderly, and medically fragile patients?

• And why does Governor Brown think that the deadly health effects of secondhand smoke exposure are compatible with California’s definition of a “long-term health care facility,” even after the U.S. surgeon general’s 2006 The Health Consequences of Involuntary Exposure to Tobacco Smoke?

Although Governor Brown’s veto of AB 217, his disregard of the evidence-based conclusions in the U.S. surgeon general’s report, and his continuing disregard of the rights of the weak, vulnerable, and elderly in nursing homes are disturbing, Elder Abuse Exposed.com is not surprised. Jerry Brown’s record on fighting for the rights of neglected and abused nursing home residents is embarrassing. California Department of Justice (DOJ) data shows that when he was California attorney general (2007–2011), Jerry Brown undermined and nullified budget increases to his DOJ’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA). Despite increased funding to BMFEA, “civil and criminal elder abuse prosecutions fell about one-third,” according to California Watch’s August 21, 2010 “Prosecutions of Elder Abuse Cases Decline under Jerry Brown.” As attorney general, Brown dismissed many criminal elder abuse cases that elder abuse experts and nursing home advocacy groups said Brown should have prosecuted to deter further abuse.

At the same time, Jerry Brown also sharply reduced the number of surprise inspections at abusive nursing homes by a team of medical professionals from the BMFEA’s Operation Guardians program. These unannounced inspections, says the DOJ, “help protect and improve the quality of care for California’s elder and dependent adult residents residing in California’s 1,340 skilled nursing facilities” and “identif[y] instances of abuse or neglect for further investigation and possible criminal or civil prosecution by the Bureau of Medi-Cal Fraud and Elder Abuse.” According to the DOJ, Jerry Brown’s predecessor as attorney general, Bill Lockyer (D), who established the Operation Guardians program in 2000 and was a much tougher prosecutor of elder abuse than Brown, was responsible for more than 90 Operation Guardians surprise inspections in just 2006 alone. In contrast, under Jerry Brown, there were only three Operation Guardians inspections at California nursing homes in 2010.

As California’s immediate past attorney general and current governor, Jerry Brown has continued to exemplify what Dr. Kathryn Locatell, DOJ’s medical consultant and elder abuse expert for BMFEA’s Operation Guardians program, said about discrimination against the elderly in an interview for the December 21, 2011 “Gone without a Case: Suspicious Elder Deaths Rarely Investigated,” by ProPublica, Frontline, and NPR. “We’re where child abuse was 30 years ago,” said Dr. Locatell. “I think it’s ageism—I think it boils down to that one word. We don’t value old people. We don’t want to think about ourselves getting old.”

Compassionate Californians, such as Bill Lockyer, who do value old people and treat our weakest members with respect and dignity must send a strong message to Governor Brown (contact) and Attorney General Kamala Harris (D) (contact). We must tell them that we will not tolerate California government’s turning its back on some of our weakest members. We must tell them that it is a public disgrace to betray members of what journalist Tom Brokaw called the “Greatest Generation,” our vulnerable and aging parents and grandparents who emerged from the depths of the Great Depression and then selflessly and heroically saved the world from the tyranny of the Nazis during World War II. And we must tell them that if we do not speak out on behalf of our weakest members, then who will speak for us when we are weak and vulnerable?

Pastor Martin Niemöller, German anti-Nazi theologian, Lutheran pastor, and prisoner in Sachsenhausen and Dachau concentration camps from 1937 to 1945 said:

First they came for the socialists, and I didn’t speak out because I wasn’t a socialist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I was not a Jew. Then they came for me, and there was no one left to speak for me.

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What do you think? Do you think it is “reasonable,” as Governor Brown does, to allow smoking and the deadly health effects of secondhand smoke inside California nursing homes, intermediate care facilities, and pediatric day health and respite care facilities? Please share your thoughts below this article!

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