Document Category:
State: California
Subject Matter: UPDATE ON PROP 65 LEGAL ISSUE CA
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UPDATE ON PROP 65 LEGAL ISSUE

Important Information Regarding How To Opt Into The Legal Action Brought By the Attorney General To Resolve Issues of Non-Compliance with Proposition 65

This notice is for CAHF members, Aging Services of California members, and others that have not already joined the settlement of the Attorney General’s lawsuit over second-hand smoke exposures. If you already are a party to the settlement, please disregard this Alert.

You are receiving these instructions because you have expressed interest in participating in a group settlement of a law suit that the California Attorney General filed on March 26, 2010. The lawsuit alleges violations of California Health and Safety Code section 25249.6, commonly known as "Proposition 65," based on the failure to post warnings about exposures to cigarette smoke at skilled nursing facilities in California. The name of the lawsuit is People v. Alliance Nursing & Rehabilitation Center et al., Alameda County Superior Court, No. RG-10506390. A copy of the Attorney General’s complaint is available on our website, at:

www.cahfdownload.com/cahf/legis/ComplaintMarch26.pdf

The lawsuit addresses issues raised in the "60-Day Notices of Intent to Sue" under Proposition 65 that one or more of your skilled nursing facilities received from attorney Reuben Yeroushalmi of the Consumer Advocacy Group ("CAG"). The proposed settlement offers an approach to resolving the Proposition 65 compliance issues CAG identified in its notices by entering into a Consent Judgment with the California Attorney General’s Office.

The Court has approved the settlement terms for the law suit. The initial phase ("Phase 1") of the litigation focused on facilities who received a "60-Day Notice of Intent to Sue" from attorney Reuben Yeroushalmi of the Consumer Advocacy Group ("CAG"). Now that Phase 1 is being finalized, additional skilled nursing facilities that allow smoking on their premises and that did not participate in Phase 1 of the settlement may opt-in during a limited "Phase 2" period.

CAHF is helping coordinate these efforts, working under tight timelines to help facilities (see July 16 and July 30 deadlines below).

Process for Opting Into the Action

Skilled nursing facilities or their parent organizations that allow smoking on the facility’s premises (inside or outside), may opt into this legal action by submitting requested information (see form below) directly to CAHF on or before July 16, 2010. By opting in, you agree to comply with the terms of the Consent Judgment or potentially to be subject to contempt sanctions.

Settlement Terms

The Consent Judgment has been approved by the Court. It is available at the following link (http://www.cahfdownload.com/cahf/legis/ConsentJudgment.pdf), and includes the following terms for the opt-in defendants ("Phase 2" defendants):

(1) POSTING SIGNS: Whether your facility allows smoking indoors and/or outdoors, the facility is required to post warning signs. The AG has developed language for two warning signs: one to be posted in the lobby or entrance to the facility if smoking is permitted indoors ("Facility Wide Warning") and a different sign to be posted in all entrances to the facility’s designated smoking areas whether indoors or outdoors ("Designated Smoking Area Warning"). Signs must be approximately 8.5 x 11 and have the exact content, form, color, and print style as required in the Consent Judgment. Instructions for where the signs are to be located in the facility are included in the terms of the Consent Judgment.

(2) PAYMENT: Each facility is required to make a settlement payment in an amount of $750 per facility for facilities that have not received a notice from CAG and $1,000 for facilities that received a notice from CAG. The payment required to be made under this Consent Judgment may not be claimed or included in the facility’s Medi-Cal or Medicare cost reports.

(3) FACILITY ASSESSMENT: Each facility is required to use its best efforts to prevent the exposure of non-smoking residents and staff to second-hand smoke. Within approximately 30 days after the final approval of this opt-in defendants by the court, each facility will need to assess what they can do to minimize such exposures, and submit a declaration to the AG that describes what they have done (a form has been developed by the Attorney General and will be made available at a later date which you can use to provide the required information). Examples of measures a facility may take are keeping windows and doors that face designated smoking areas closed, relocating non-smoking patients to rooms away from the designated smoking areas if they request, and installing fans or air filters in rooms or common areas near the designated smoking area.

July 16 DEADLINE: By July 16, if you are choosing to opt-in to this legal action, you must provide the following information to Nancy Reagan (nreagan@cahf.org) at CAHF (see Corporate Entity Information Form below):

(1) Name and Address of the appropriate corporate entity to be named in the action (i.e, the licensee)

(2) Name, Address, and telephone of the facility or facilities to be included in the law suit

(3) Name, Address, telephone and e-mail address of the designated person to receive notices under the consent judgment.

July 30 DEADLINE: Once the Attorney General receives your facility information, you will be sent a signature page for the Consent Judgment and will be required to return the signed original to Trish Gerkin at the Attorney General’s Office by July 30, 2010.

IMPORTANT: The Phase 2 Opt-In process is available to all skilled nursing facilities that allow smoking, whether or not you are a member or a non-member of CAHF or Aging Services of California.

If you would like any additional information, please contact Nancy Reagan (p. 916-441-6400 ext 213 or nreagan@cahf.org).


Document Author: California Legislature
Firm/Company: California Legislature
Document Date: January 1, 1970
Search Tags: smoking CAHF AG CA
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