Smoke Free Public Housing – HUD Proposed Rule, November 17, 2015
On November 17, 2015, HUD published a proposed rule in the Federal Register that would require all public housing agencies (PHAs) that administer public housing to implement a smoke-free policy. The rule proposes that no later than 18 months from the effective date of the final rule, each PHA must implement a policy prohibiting lit tobacco products in all living units, indoor common areas in public housing, and in PHA administrative office buildings. The smoke-free policy must also extend to all outdoor areas up to 25 feet from the housing and administrative office buildings.
The comment due date for the proposed rule is January 19, 2016.
The proposed rule would apply to all public housing, other than dwelling units in mixed-finance buildings. For example, projects developed under the Rental Assistance Demonstration (RAD) program that mix public housing and Low-Income Housing Tax Credits (LIHTC) would not be subject to the rule. PHAs may, but would not be required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (e.g., near a playground), or, alternatively, make their entire grounds smoke free.
PHAs would also be required to document their smoke-free policies in their PHA plans, a process that requires resident engagement and public meetings. The prohibition on lit tobacco would also be included in a tenant’s lease, which may be done either through an amendment process or as tenants renew their leases annually.
Background
HUD guidance already exists on many of the topics covered by the smoke-free policy proposed to be required by the new rule. Hundreds of PHAs have already voluntarily implemented smoke-free policies, and the infrastructure already exists for the enforcement of lease violations.
Over 700,000 units would be affected by this rule (including over 500,000 units inhabited by elderly households or households with a non-elderly person with disabilities), and their non-smoking residents would have the potential to experience health benefits from a reduction of exposure to secondhand smoke (SHS).
The U.S. Surgeon General estimates that exposure to secondhand tobacco smoke is responsible for the death of 41,000 adult non-smokers in the United States each year from lung cancer and heart disease. (By way of comparison, approximately 33,580 persons died from auto accidents in the United States in 2014). The Surgeon General has concluded that there is no risk-free level of exposure to SHS, and that eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke.
An estimated 58 million Americans remain exposed to SHS, including 15 million children ages 3 to 11. The home is the primary source of exposure for children. Individuals living in multiunit housing can be exposed to SHS even if no one smokes in their households. Surveys of multiunit housing residents indicate that 26 to 64 percent of residents reported SHS incursions into their units from external sources, such as hallways or adjacent units. 65 to 90 percent of the residents experiencing such incursions were bothered by them.
The Surgeon General concluded in 2006 that separating smokers and nonsmokers, building ventilation, and cleaning the air cannot eliminate exposure to SHS; that can only be accomplished by eliminating smoking from indoor spaces.
The Financial Cost of Smoking
Beyond the higher healthcare expense, tobacco smoking can have profound financial impacts on PHAs and owners of other multiunit properties. According to the U.S. Fire Administration, smoking is the leading cause of fire deaths in multiunit properties.
Smoking is also associated with higher maintenance costs for landlords of multiunit housing, due to additional cleaning, painting, and repair of damaged items at unit turnover. A survey of public and subsidized housing managers found that the additional cost of rehabilitating the units of smokers averaged $1,250 to $2,955 per unit, depending on the intensity of smoking. Researchers from the Centers for Disease Control (CDC) estimate that a nationwide smoke-free public housing policy would result in an estimated annual cost savings of $152.91 million, including $42.99 million in reduced renovation costs and $15.92 million in averted fire losses.
Moving to Smoke-Free Public Housing Units
Over 500 PHAs have already implemented smoke-free policies in at least one of their buildings. The greatest concentration of these PHAs is in the Northeast, West, and Northwest. This proposed rule would cover all types of lit tobacco products, including, but not limited to cigarettes, cigars, and pipes. The prohibition does not specifically cover waterpipe tobacco smoking (hookahs). However, since such smoking does produce SHS that contains harmful toxins, HUD may include a prohibition on this in the final rule.
The proposal also does not include electronic nicotine delivery systems such as electronic cigarettes (“e-cigs”), but these also may be prohibited in the final rule.
HUD’s proposal does not prohibit individual PHA residents from smoking. PHAs should continue leasing to persons who smoke, but may prohibit smoking in public housing and administrative offices.
It will likely be some time before HUD issues a final rule on this issue, but PHAs should begin preparing to make public properties nonsmoking. There is little doubt that this rule will become final; it is just a question of when.