Findings and Recommendations - Staff Report
Committee Accepted
December 14, 1999

Residential Lead Abatement
Findings and Recommendations

Introduction

Residential Lead Abatement

The Legislative Program Review and Investigations Committee voted to undertake a study of "Residential Lead Abatement" in March 1999. The focus of the study is on Connecticut’s laws, regulations, and programs designed to reduce lead poisoning in children. Under Connecticut law, property owners are liable for abatement of toxic levels of lead-based paint if a child under age six resides in the home. In addition, if a child has been identified with an elevated blood lead level (BLL), stricter requirements ensue.

Program review committee staff believes the cornerstone of the state’s policy should be the prevention of lead poisoning. Although the Department of Public Health (DPH), as well as local health departments, has carried out several prevention initiatives, the major focus of Connecticut’s lead law is on identifying children who have blood lead levels equal to or greater than 20 micrograms (mcg) of lead per deciliter (dL) of blood. When such a level is identified, the local health department is authorized to inspect the child’s residence and, if lead hazards are found, order the property owner to abate the lead. The effect of this focus is that thousands of property owners face considerable financial risk if a child under the age of six has a blood lead level that requires an environmental inspection of the residential unit.

Recognizing the current limitations of lead abatement efforts, a number of strategies are recommended in this report for increasing prevention activities so fewer children will experience elevated blood lead levels. However, committee staff finds strong and clear regulatory action is still needed when prevention efforts are unsuccessful and a child has a high blood lead level. First, DPH must collect information concerning the nature and degree of lead in the housing stock to adequately carry out its public health and safety mission. The department needs this information to oversee and adequately assess the strength of its regulatory policy.

Second, committee staff also finds the department’s information systems are fragmented and contain too many discrepancies to support adequate program management. DPH needs to coordinate its information systems and ensure the validity of the data. The department must also strengthen its oversight of local health departments’ enforcement of abatement orders and ensure epidemiological investigations to identify lead sources are being performed.

Report organization. This report is divided into four sections. The first section recommends strategies to increase prevention activities. Section II compares childhood lead programs in selected other states with Connecticut’s program. The third section summarizes the major federal law governing lead activities and describes a recently approved regulation that overhauls lead management and abatement activities in federally owned and assisted housing. The last section contains staff recommendations on Connecticut’s law and regulation of lead poisoning prevention and abatement.

Section I

Background

The harmful effects of lead hazards on children have been recognized for many years. Since lead was banned in paint, gasoline, and food cans in the late 1970s, legislation at both the federal and state level has been aimed at pre-1978 housing as the major cause of lead poisoning among children today. The most common sources of exposure today are soil contaminated with lead and lead-based paint that has deteriorated into paint chips and lead dust. Lead- contaminated dust can come from lead-based paint that is chipping, flaking or deteriorated or when such paint is scraped, sanded, or disturbed during home improvement projects. Lead-contaminated dust can also be tracked into a home from exterior sources such as lead-contaminated soil as well as porches or stairs painted with lead-based paint. Children under the age of six are the focus of the legislation, since they are most vulnerable to the effects of lead.

Connecticut established a Childhood Lead Poisoning and Prevention Program (CLPPP) in 1987. Although the Department of Public Health has carried out several prevention initiatives, the major focus of Connecticut’s lead law is on identifying children who are already lead-poisoned, inspecting their residences, and if lead hazards are found, requiring property owners to abate any lead considered harmful to the child. This focus, as noted in the staff briefing, has not been particularly successful in Connecticut -- especially when the high number of lead abatement orders issued to property owners are compared to the low number of actual abatements occurring -- because it is a costly and difficult law to enforce.

Prevention

Program review committee staff believes the cornerstone of the childhood lead program should be the prevention of lead poisoning. As noted in the staff briefing, "Residential Lead Abatement", and later in Section III of this report, the federal government has also shifted its policy focus towards lead poisoning prevention through the passage of landmark legislation and the recent approval of comprehensive requirements in regulation form. The intent of the staff recommendations presented in this section is to provide a number of strategies for increasing prevention activities, thus lowering the number of children with elevated blood lead levels. To accomplish this, the committee staff finds the Department of Public Health needs to:

Education. Educating groups about the reasons lead hazards are dangerous to children and how to reduce their exposure to lead is a major activity of the state’s lead program. Education and outreach efforts focus on four critical groups: 1) families; 2) health care professionals; 3) local health departments; and 4) home remodelers. Education and outreach is conducted directly by DPH staff, local health districts, and the Hartford and Yale Regional Lead Treatment Centers. Outreach and education for these groups vary. Generally:

The committee staff finds DPH has conducted several successful outreach initiatives over the past year. These include holding quarterly lead conferences with local health departments, health professionals, and invited child advocates; publishing and distributing a Lead Newsletter; distributing a "Comprehensive Guide to Prevention and Treatment"; and providing local health departments with a packet of form letters to send to parents and landlords to ensure consistency among towns. In addition, several local health departments have had educational initiatives on lead awareness. Since the educational materials produced are very useful to a wide variety of parties, program review committee staff believes DPH should provide wider access to this valuable information.

Furthermore, Connecticut General Statute §19a-11b requires the commissioner of DPH to institute an educational and publicity program informing the general public, teachers, social workers and other human services personnel, owners of residential property, and health personnel of the danger, frequency and sources of lead poisoning and the methods of preventing such poisoning. To date, most DPH education efforts have been targeted to select groups rather than the public at large. Therefore, program review committee staff recommends:

Program review committee staff finds Connecticut is the only New England state besides Maine without a comprehensive web site devoted to the topic of lead poisoning. A web site would widely disseminate Connecticut-specific information to many different groups and promote a greater awareness of the harmful effects of lead hazards on children. In addition, a web site could provide the names of persons within DPH or local health departments to contact for additional information on the state’s lead laws, regulations, and guidelines. The site would also offer a conduit to the department to receive data from local agencies on the impact of lead poisoning on the population.

Finally, homeowners need to be provided with better information on the availability of state or local financing to manage and/or abate lead from their properties. Information should include the availability of financing, the name of the state or local agencies administering the programs and their phone numbers, and general eligibility criteria.

Notification of landlords. Under C.G.S. §19a-110(d) any child that had a lead screening test with results equal to or greater than 10 mcg/dL must be reported to the commissioner of the public health and the local director of health in the town where the child resides. The statute further requires the local health director to provide information concerning the dangers of lead poisoning, precautions used to reduce risk, and state policy regarding lead abatement to the parent or guardian of a reported child.

Program review committee staff believes the provision of this information is critical in educating parents on steps they need to take to minimize their child’s exposure to lead hazards. Landlords would also benefit greatly from similar educational materials when a child of a tenant has a BLL equal to or greater than 10 mcg/dL. If notification were provided to landlords of tenants with elevated BLLs, it would allow the landlord to take measures that might prevent a child’s blood lead level from rising, and, therefore, preclude more extensive lead abatement requirements. Therefore, committee staff recommends:

While this recommendation requires property owners be notified, it does not require any action be taken. The intent of this recommendation is to provide property owners with an opportunity to reduce a child’s exposure to lead hazards through simple preventative measures, thereby reducing the possibility of a child’s BLL from rising and then triggering the resultant costly and restrictive order of lead hazard reduction.

Definition of Lead Poisoning

Program review committee staff finds there is a significant amount of confusion surrounding the concept of "lead poisoned." Prior to 1991, the Centers for Disease Control (CDC) considered any child with a blood lead level equal to or greater than 25 mcg/dL to have lead poisoning. After 1991, CDC moved away from a specific definition of lead-poisoning to the term "level of concern" for individuals with a blood lead level equal to or greater than 10 mcg/dL. While this broadened the concept of lead danger, it has resulted in an imprecise determination of lead poisoning.

The issue is further complicated by the fact the Department of Public Health’s Childhood Lead Prevention Program recently issued guidelines that define lead poisoning as "a venous blood lead level equal to or greater than 10 mcg/dL." Meanwhile, the regulations define an elevated blood level as 20 mcg/dL; while the statutes do not include a definition of lead poisoning.

The statutes call for the state to follow CDC guidelines for assessment of the risk of lead poisoning, screening, and treatment and follow-up care for individuals with lead poisoning, but the law does not define a blood lead level for lead poisoning. Under CDC guidelines (shown in Table I-1), different blood lead levels require different responses from state and local health departments. However, committee staff finds Connecticut law does not provide a clear explanation.

Connecticut General Statute §19a-111 requires DPH to follow guidelines issued by the CDC. Based on CDC’s 1997 guidelines, committee staff finds the statute needs to be revised to be consistent with current CDC guidelines. Therefore, the program review committee staff recommends:

This recommendation requires DPH to explain terms that are commonly used, but are not defined in statute or regulation and, therefore, can be misconstrued. In addition, as shown in Table I-1, CDC recommends an environmental investigation at blood lead levels of 20 mcg/dL or greater, or two tests at least three months apart of 15-19 mcg/dL. Thus, the recommendation revises the statute so the level at which an epidemiological investigation is required, which includes an environmental investigation, is consistent with CDC guidelines.

Lead Screening

The Centers for Disease Control issues the primary federal recommendations on screening young children for lead poisoning. The most current screening guidlelines were published in November 1997 in a document called "Screening Young Children for Lead Poisoning: Guidance for State and Local Public Health Officials". In its guidelines, CDC recognizes lead exposure is highly variable around the country, with some children at considerable risk and others at very low risk. Studies have shown children living in older housing or who are poor are at higher risk of elevated blood lead levels and need to be screened. If their blood lead levels are elevated, appropriate interventions should be taken. Not all of the children living where risk for lead exposure has been demonstrated to be extremely low need to be screened, thus saving valuable resources.

To determine which children should be screeened, CDC recommends state and local health departments assess local data on lead risks and develop a lead screening plan. The CDC document provides detailed guidance for state and local health departments in establishing their state lead screening plans, including advice on assessing lead risks, engaging affected constituents in the process of developing recommendations, and communicating screening recommendations clearly. Table I-2 shows the major factors that should be considered in selecting a screening recommendation.

For states in the process of collecting information and developing plans, CDC provides an "interim policy" for use by state health departments. If states do not adopt CDC’s interim policy or develop their own plan, CDC recommends continuation of its 1991 recommendation of universal screening for all children ages 6 to 72 months. If the interim policy is adopted, CDC cautions it should only be used as a short-term measure until a plan based on local data can be adopted.

Basic interim recommendation. CDC’s interim policy recommends child health-care providers use a blood lead test to screen all children at ages 1 and 2, and children 36-72 months of age who have not previously been screened, if children meet one of the following criteria:

CDC’s 1997 screening policy sought to better identify poisoned children by devising screening recommendations based on risk factors. Program review committee staff believes the state needs to identify high-risk geographic areas or populations and develop a targeted lead screening program. Therefore, committee staff recommends:

The goal of screening is to identify children who need individual interventions to reduce their blood lead levels. Connecticut’s screening data indicate the highest incidence of lead poisoning is concentrated in urban areas, with five towns (Bridgeport, Hartford, New Haven, Waterbury, and New Britain) accounting for 76 percent of the children identified with lead levels equal to or greater than 20 mcg/dL. A targeted screening policy would center efforts in areas where they are most needed.

Reimbursement for blood lead testing. Program review committee staff finds the vast majority of lead screens are analyzed by the state public health laboratory within DPH. Table I-3 compares the number of lead screens analyzed by the state laboratory and private laboratories for FY 97 and FY 98. According to the Department of Public Health, the cost to the state lab is $18 per test. The total FY 98 cost was nearly $1 million.

The state laboratory analyzes all lead screens free of charge, even though most children are covered by either the Medicaid program, the state HUSKY program, or private insurance. Connecticut should seek third-party reimbursement for services that are a covered benefit by an individual’s health plan. Connecticut General Statute §38a-535 requires mandatory coverage for preventive pediatric care and committee staff believes lead screening tests would be covered under this provision.

In addition, C.G.S. §19a-26 authorizes the commissioner of public health to establish a schedule of fees directly related to operating costs or fair market value for such laboratory services. The statute forbids the commissioner of DPH from charging local directors of health and local law enforcement agencies for laboratory services and gives the commissioner the discretion to waive charges for others if, in the determination of the commissioner, public health requires such services be furnished without charge. Given that the potential source of revenue for the state is almost $1 million per year if insurers were charged for lead screening tests, program review committee staff recommends:

As state resources become more and more scarce, it is critical other funding sources be identified and cost containment become a critical feature of the system.

Essential Maintenance Practices

As noted in the staff briefing report, the National Conference of State Legislatures (NCSL) drafted a model lead law, based on recommendations of a national task force established under Title X of the federal Housing and Community Development Act of 1992. The model law calls for the establishment of "essential maintenance practices" (EMPs) for rental property owners. The maintenance practices are a set of "benchmark standards" that identify the steps rental property owners need to take to control lead hazards. For well-maintained properties, which are considered low risk, a set of EMPs would apply. They are aimed at keeping paint intact and are considered low cost. As noted in Section III, the recommendation is included in the new HUD regulation as one of the seven evaluation and hazard reduction strategies for federally owned or assisted properties.

Although program review committee staff believes the HUD regulation will drive much of lead hazard control since all federal housing programs will be affected, the establishment of voluntary standards in Connecticut will help property owners reduce tenant’s risk for lead poisoning and provide rental property owners with guidance on how to ensure their properties are lead-safe. Although the employment of essential maintenance practices is strictly voluntary, committee staff recommends:

An emerging consensus over practical, cost-effective measures to protect children from lead hazards in their homes further emphasizes the importance of responsible property management and the need for enforceable housing quality standards. As an added incentive for rental property owners, program review committee staff is recommending owners that implement essential maintenance practices or abate lead from their properties be eligible for a tax credit.

Massachusetts and Rhode Island both offer tax credits as an incentive to manage or abate lead in residential housing. In Massachusetts, the tax credit is up to $1,500 for the actual cost of covering or removing lead and $500 for implementing interim controls, which are similar to essential maintenance practices. Committee staff obtained data regarding the Massachusetts program. For the 1995 tax year, the last year of available data, the Massachusetts program cost about $2.8 million in tax revenue. Committee staff estimates the costs would be similar in Connecticut, based on the following assumptions:

Committee staff believes a tax credit program is good public policy. Use of credits is a relatively inexpensive way to encourage rental property owners to manage or remove lead in their rental units. As cited in the briefing report, other assistance programs have spent millions of dollars to abate fewer than 1,000 units in Connecticut. This provides another way to financially support lead prevention and abatement efforts.

Financial Assistance

Currently there are few programs available to assist property owners who are under an order to abate lead from housing and/or soil. As noted in the staff briefing, the Department of Economic and Community Development (DECD) had directed a 1995 HUD grant to five municipalities. As of November 3, 1999, only 421 units had received clearance out of a total goal of 700 units projected in the department’s initial grant application. HUD has extended the grant time frame for the third time -- to June 2000 -- to allow the state more time to expend the grant dollars. In addition, DECD also submitted another grant application to HUD in May 1999 for $4 million to conduct lead hazard control in 342 privately owned dwelling units. However, HUD announced the awards in October ,and DECD was not selected.

As described in the staff briefing report, DECD administers the Hazardous Materials program, which is funded with state bond money. The program has been operated as a consumer-oriented loan/grant program for property owners who have been issued orders by local health departments to abate lead or remove asbestos from residential dwellings units. It provides financial assistance to property owners for lead abatement activities. The department contracted with the Community Renewal Team of Hartford for $2.5 million to administer the state’s Hazardous Materials Program in June 1999. Demand for assistance was high, with 100 individuals already on the waiting list for program funding.

Thus, with the lack of HUD funding and limited state funding for lead abatement, competition among property owners for financial assistance will be fierce. Program review committee staff recognize that rental property owners who have implemented Essential Maintenance Practices and have obtained a valid certification from a lead inspector may still be at risk of a lead order. A child may be lead-poisoned elsewhere, but if the child’s blood lead level is 20 mcg/dL or above, the regulations requires abatement of defective paint, lead-based paint friction surfaces, and moveable parts of windows in the child’s dwelling. Program review committee staff believes rental property owners who have voluntarily implemented Essential Maintenance Practices should be given an extra level of protection by receiving priority funding for lead abatement, if they do receive an abatement order. Therefore, committee staff recommends:

The financial incentives recommended by program review committee staff encourage prevention activities be implemented by rental property owners, but add focus by financially assisting property owners who abate the lead in rental units. The intent is to create lead-safe environments that minimize children’s exposures.

Section II

Other States

As part of this study, program review committee staff examined lead programs in other state to compare their laws, regulations, and policies with those in Connecticut. Most states have certain key components that are an integral part of their lead programs. Those key components generally deal with the following areas: condition of housing stock; lead screening and reporting results; types of interventions; abatement requirements and enforcement orders; and financial resources. These basic program elements can be found in some form in every state’s lead program.

Information was gathered via phone surveys and reviews of applicable statutes and regulations. All New England states were selected to be part of the analysis, as well as Maryland because it operates an innovative program considered a model at the national level.

Comparative Findings

Beyond the key components, several general themes among state lead prevention programs emerged:

In addition, all states acknowledged the financial ability of property owners to comply with the law has been spotty. Therefore, orders may linger, or properties may be abandoned. As a result, many states have recently begun to revise their programs by creating financial incentives for property owners and focusing on increasing primary prevention activities, as has been recommended in this report, to reduce children’s exposure to lead hazards. This generally requires focusing on identifying and correcting only lead hazards (not all lead-based paint) and promoting the concept of a lead-safe environment. This section provides a comparative analysis of the states selected for review.

Housing stock. In order to understand the extent of the problems in abating lead from housing and the associated costs, Table II-1 shows the number of housing units built prior to 1950 in each state -- the category of housing considered most dangerous. Connecticut’s pre-1950 housing units number nearly 500,000 or almost 35 percent of the housing stock. The portion of the United State’s housing stock built before 1950 is 27 percent.

Housing stock targeted. Most state’s lead laws target housing built before 1978 when lead-based paint was banned from use in the United States. Table II-2 identifies the property year targeted by each state’s law. As the table shows, all New England states target housing built prior to 1978. Maryland law focuses only on pre-1950 properties, when it is assumed almost all paint contained high contents of lead.

Lead screening. Screening children under six years of age is considered critical in detecting a child’s exposure to lead, since most of the signs of lead poisoning are not obvious. Screening is conducted by using a capillary (fingerstick) or venous blood test. Committee staff examined state screening policies to determine if any states statutorily mandate the screening of children for lead poisoning. Table II-3 shows each state’s screening policy.

In addition, it is important to note Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program mandates all Medicaid children be screened at ages one and two regardless of state policy. Four states maintain a policy similar to Medicaid by mandating lead screening at particular ages. Rhode Island and Massachusetts have the most comprehensive policies, screening children through ages six and four respectively. Maryland’s policy differs slightly in that it pertains only to those children entering child-care facilities and does not include children who would be cared for at home.

Reportable blood lead levels. Some states mandate lead screening test results be reported to the state public health department, while others only require reporting if lead in the blood exceeds a specific level. Requiring all test results be reported provides a state with better planning information regarding the extent and geographic location of lead screening, as well as the incidence and prevalence rates of elevated blood lead levels within the population targeted. Table II-4 shows reportable BLLs for each state examined.

All but two of the states examined by program review committee staff mandate reporting of lead screening tests. Maine only requires reporting if blood lead levels are at or above 20mcg/dL and Vermont for levels at or above 10 mcg/dL. Connecticut passed legislation that requires all results be tracked as of October 1, 1998; previously only levels at or above 10 mcg/dL were reportable.

Intervention. The Centers for Disease Control recommend various actions be taken at specific blood lead levels. These actions include: 1) education and nutritional counseling; 2) case management; 3) environment inspections of a child’s residence; and 4) medical evaluations. Table II-5 compares the blood lead level at which each state requires a response, including the minimum blood lead level that triggers an environmental inspection (i.e., the dwelling of a child is inspected to determine if lead-based paint hazards are present).

Education and nutritional counseling. The provision of education and nutrition information on ways to reduce children’s exposure to lead hazards is an important step in preventing children’s blood lead levels from rising. If action can be taken early, less expensive methods can be used to reduce exposure. Almost all states surveyed, except Maine and New Hampshire, require education and nutrition information be provided to the parents or guardians of children with BLLs equal to or greater than 10 mcg/dL.

Case management. Case management is defined to mean coordination, provision, and oversight of the services to the family that are necessary to ensure lead-poisoned children achieve a reduction in blood lead levels. Four of the seven states surveyed require case management services be provided to children with BLLs equal to or greater than 15 mcg/dL. Connecticut, Maine, and New Hampshire do not require case management until a child’s BLL reaches 20 mcg/dL or more.

Environmental inspections. The CDC recommends an environmental inspection of a child’s residence if a child has a BLL equal to or greater than 20 mcg/dL or two tests within 3 consecutive months equal to or greater than 15 mcg/dL. The environmental inspection is "triggered" by a BLL at or above 20 mcg/dL in five of the states surveyed, except for Massachusetts and Maryland. In Massachusetts, an environmental inspection is conducted if a child’s BLL is equal to or greater than 20 mcg/dL, however, the property owner can refuse admittance. A BLL at or above 25 mcg/dl results in the ability of the State Department of Health to obtain a warrant to inspect the child’s dwelling. In Maryland inspections are conducted if a child has a BLL equal to or greater than 20 mcg/dL or after two consecutive BLL’s at or above 15 mcg/dL.

Management and abatement of lead. Table II-6 outlines each state’s policy on whether interim controls are allowed in dwellings where a lead poisoned child resides and identifies the types of surfaces requiring abatement. Interim controls are generally defined as interim measures used to control urgent lead hazards immediately and reduce exposures. For example, an interim control would be to install metal inserts in window wells, rather than replacing the entire window. Connecticut and Maine do not allow interim controls in instances where an abatement order is issued (although Connecticut’s proposed regulations would allow their use).

Committee staff examined the lead policy of each state in terms of whether the law requires a property be fully abated or allows abatement of lead hazards only. Most states surveyed allow property owners to abate only lead hazards. Massachusetts is the only state examined by committee staff that requires property owners to eliminate all lead-based paint found on the property, whether or not such paint is directly hazardous to the occupants. As shown in the table, all states, except Massachusetts, require loose and friction surfaces be abated. Vermont’s lead law is preventative and mandates essential maintenance practices be conducted on all rental properties and child care facilities to prevent lead exposure. The methods include visual inspections, installing window well inserts, specialized cleaning, and stabilizing paint—in many ways, similar to ongoing interim controls.

Enforcement of orders. A variety of methods are used to enforce compliance with lead orders issued to property owners. Rhode Island and Maine use their state attorney general to bring contempt orders against noncompliant owners. Connecticut and Massachusetts rely upon both state and local court processes in enforcing compliance. Maryland, meanwhile, leaves the enforcement to the local health board. Vermont’s law is strictly voluntary. It seeks a collegial, collaborative approach, and although the State Department of Health has the statutory authority to issue health orders for correction of lead hazards, none have ever been issued.

Programs and financial resources. Almost all states have programs that financially assist property owners to manage and/or abate lead from their properties. Three states offer tax credits of some sort to property owners:

Table II-7 shows the type of financial assistance available by state, and Table II-8 outlines the average loan amount issued by selected states (those that had information). Statewide loan and grant assistance is available from every state.

Medicaid Reimbursement

Program review committee staff also examined national survey data to determine the number of states that receive Medicaid reimbursement for specific responses provided to a child with an elevated blood lead level. Supplemental information regarding Medicaid reimbursement was obtained from a survey conducted by the Alliance to End Childhood Lead Poisoning and the National Center for Lead-Safe Housing. In addition, representatives from Rhode Island, as well as the regional Health Care Financing Administration, visited Connecticut to discuss their recently approved Medicaid waiver that allows window replacement in dwellings occupied by a child who is lead poisoned.

Studies have shown children who are Medicaid recipients are at a high risk for elevated blood lead levels. Medicaid’s EPSDT program requires all Medicaid children be screened at ages one and two for lead poisoning, regardless of a state’s lead screening policy. In addition, children over the age of 24 months, up to 72 months, who have not been screened previously should also be screened. Several states have established a mechanism for the Medicaid program to reimburse for case management services and environmental investigations if a child has an elevated blood lead level. By classifying these services as a Medicaid benefit, states have been able to receive matching assistance from the federal government.

Case management. As noted above, case management is defined as the coordination, provision, and oversight of services to a family that are necessary to ensure lead-poisoned children achieve a reduction in blood lead levels. According to the survey conducted by the Alliance to End Childhood Lead Poisoning, 20 of the 51 state programs (and the District of Columbia) responding have a process in place for Medicaid reimbursement for case management. Five of the 20 states that responded positively, however, indicated they had not yet received any Medicaid reimbursement. Table II-9 identifies the states that receive case management reimbursement. Reimbursement ranged from $25 per visit in Wisconsin to $70 per visit in Michigan.

Environmental investigations. The majority of states (35 of the 49 respondents to the survey question) use 20 mcg/dL as the blood lead level that triggers an environmental investigation. Of these, 13 also provide the service for a persistent or repeated level at 15 mcg/dL. A smaller number of states conduct environmental investigations at lower levels – nine states at 15 mcg/dL, and two between 10 and 15 mcg/dL.

Several states indicated on the alliance’s survey that they receive Medicaid reimbursement for the environmental investigation. Of the 51 programs that replied, 22 states have established a mechanism for the Medicaid program to reimburse for environmental investigations to determine the source of lead exposure for a lead-poisoned child. Table II-10 outlines which states receive Medicaid funding for environmental inspections. As shown, Connecticut (as well as Maine, Massachusetts, and New Hampshire) does not receive Medicaid funding for inspection-related costs.

Table II-11 shows the amount reimbursed by Medicaid for an environmental inspection. The reimbursement amount ranges from less than $50 to over $300. The amount of Medicaid reimbursement for the majority of states is between $100 and $199.

It is important to note the Health Care Financing Administration (HCFA), in a letter to all state Medicaid directors dated October 22, 1999, clarifies under what circumstances an environmental investigation may be covered under Medicaid. First, a child must have an elevated blood lead level. In addition, the scope of the investigation is limited. HCFA only reimburses for a health professional’s time and activities during an on-site investigation of a child’s primary residence. Medicaid funds are not available for the testing of environmental substances such as water, paint, or soil.

Waiver for window replacement. Finally, Rhode Island received approval for a Medicaid waiver that would provide Medicaid coverage for window replacement in a unit where a child was a Medicaid recipient and had a blood lead level equal to or greater than 20 mcg/dL. Windows are not a medical service traditionally covered by Medicaid. The waiver was approved by the federal Health Care Financing Administration in December 1998. During its first year, Rhode Island anticipates spending an average of $1,830 per unit and providing window replacements in 200 to 300 units. Total spending is estimated at $366,000 to $549,000.

Landlords and homeowners would not initially be required to contribute financially for the new windows. However, after the state arranges to have the windows replaced, a lien would be placed on the property for the same amount as the cost of the work. The property owner would pay off the lien over time or wait until the property is sold.

Program review committee staff believes receiving Medicaid reimbursement for case management activities, environment investigations, or submitting a Medicaid waiver for window replacement are complicated areas that need further exploration, including how a program would need to be designed to receive HCFA approval. In addition, Connecticut already operates a state program for window replacement under its Energy Conservation Loan Program. However, program review committee staff believes the possibility of obtaining additional revenues should be pursued. Therefore, committee staff recommends:

Section III

Federal Lead-Based Paint Law and Regulation

The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X of the Housing and Community Development Act) detailed in Section II of the staff briefing report, "Residential Lead Abatement," initiated major changes in the federal lead law. Prior federal policy encouraged full abatement of lead-based paint regardless of its condition or location, in federally owned or subsidized housing. With the passage of Title X, the policy focus shifted from full abatement to property maintenance and provided for resources to be focused only on lead-based paint hazards. Under Title X, intact lead-based paint on most surfaces is not considered a hazard until it has deteriorated, thus requiring it be monitored and maintained. Title X emphasizes identification and control of lead hazards in federally assisted or owned housing and notification to occupants of the existence of known lead hazards.

Although Title X was passed in 1992, it has taken seven years for HUD to publish a final regulation, which completely overhauls lead-safety requirements covering federal housing assistance and community development programs. The new regulation -- "Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance" – was adopted in September 1999. It consolidates all of the department’s lead-based paint regulations in one part of the Code of Federal Regulations and becomes effective in September 2000.

HUD Regulation

The purpose of the HUD regulation is to protect young children from lead-based paint hazards in housing financially assisted by the federal government or being sold by the government. HUD cites the latest scientific research, as well as practical experience in its grant programs and CDC guidelines, along with recommendations of a national task force, in establishing the final rule.

The regulation will be a major force driving lead hazard reduction in federally owned and assisted housing over the next several years. It strengthens the federal government’s commitment to primary prevention -- reducing children’s exposure to lead hazards before they are poisoned -- by requiring lead hazards be addressed in housing supported by U.S. government dollars. Accomplishment of the requirements in the rule will have a dramatic impact on lowering children’s risk of lead poisoning, since most of the housing affected by the rule is targeted to low- and moderate-income renters and usually located in urban areas. Studies have shown low-income children, those who receive public assistance, and those that live in urban areas are at high risk for lead poisoning.

Estimated benefits and costs. As with all federal regulations, HUD was required to estimate the impact in terms of costs and benefits. The regulation will protect more than two million children from lead exposure during its first five years. In addition, HUD estimates the value of total benefits in the first five years at $2.65 billion with a cost of only $564 million. Estimated benefits are derived from assumptions about increased lifetime earnings, savings from medical care, and special education costs. It is estimated about 2.8 million U.S. housing units will be affected by the regulation during its first five years. The average cost to implement the regulation, according to HUD, is estimated at approximately $200 per unit ($564 million divided by 2.8 million units).

Types of housing affected. The regulation applies only to housing built before 1978, the year lead-based paint was banned by the U.S. government, and covers all federal HUD housing and community development programs from Section 8 to public housing. Table III-1 identifies the types of housing covered and excluded under the regulation.

Regulatory requirements. HUD identifies four basic principles embodied by the new regulation. First, regardless of the lead hazard reduction methods used, clearance is required. (Clearance includes visual inspection and scientific testing of settled dust for lead). Second, ongoing lead-based paint maintenance practices are obligatory in rental housing whenever HUD has a continuing relationship with the property. Third, to ensure the controls are still intact and effective over time, reevaluation is required whenever a risk assessment and interim controls are required and there is a continuing HUD subsidy or ownership of rental housing. Fourth, whenever a child is identified with a blood lead level that calls for an environmental assessment and intervention, special procedures are required in programs with a continuing subsidy or HUD ownership of rental housing.

At a minimum, the regulation mandates:

Lead reduction and abatement strategies. The scope of the lead hazard reduction activities, their estimated cost of implementation, and their lasting effectiveness fall along a continuum under the rule. Four factors determine the extent of the requirements:

Specifically, there are seven evaluation and hazard reduction strategies for HUD housing programs. All except the first two require the use of certified lead-based paint professionals for risk assessments, inspections, and abatement. In addition, clearance examinations, which must be performed for all methods listed below, must be done by a person who did not perform the hazard control work and who is certified to perform lead-based paint inspections, risk assessments or clearance examinations in the state. The strategies, in order from least to most stringent, are:

The specific requirements by housing type are provided in Appendix A, and a glossary of terms used in the rule is provided in Appendix B.

Housing receiving high amounts of federal financial assistance has the most stringent requirements under the rule. This housing requires risk assessments and interim controls be performed if lead-based paint hazards are identified. If this is required, the property owner has several options. They may:

Finally, if the regulation requires abatement of lead-based paint (such as in public housing), a lead-based paint inspection is not required if all paint is assumed to be lead-based and is abated.

Relocation of residents. By regulation, occupants do not always have to be relocated out of their dwelling unit during lead hazard control work. Many jobs may be performed without relocation if the work area is contained so dust generated by the work does not migrate to the rest of the living area during the work, cleanup, and clearance. However, the regulation states occupants should never be permitted to enter a room or hallway while work is underway and it is generally safer to relocate occupants until the work has been completed.

Elevated blood lead level. There are special regulatory protections for a lead-poisoned child. A risk assessment of the child’s dwelling must be completed within 15 days after the owner is notified of the presence of a lead-poisoned child by a health department. If lead-based paint hazards are identified, corrective action must be taken within 30 days of the assessment. The regulation does not define at what blood lead level a child is lead-poisoned, but instead identifies an "environmental intervention blood lead level." The environmental intervention level is defined as when a child less than six years of age has a blood lead level of 20 mcg/dL or greater for a single test, or 15-19 mcg/dL in two tests taken at least three months apart.

Other Actions Required Under Title X

Title X also requires the U.S. Environmental Protection Agency and HUD to take other important actions. A full explanation was provided in the staff briefing and can be summarized as follows:

Summary

Title X, in conjunction with the new HUD regulation, clearly makes the federal government the leader in preventing childhood lead poisoning by linking the reduction and/or elimination of lead hazards to the receipt of federal financial assistance for housing programs. The focus of the regulation is on requiring identification and correction of lead hazards before children become lead poisoned. In addition, federal policy targets housing programs that assist low- to moderate-income families whose children are at greatest risk for lead poisoning.

The regulation will have a major impact on the private rental housing market, since a rental property owner will likely comply with the requirements for all units, rather than only target those subsidized by federal dollars (such as in tenant-based Section 8 housing). The recommendations made in this report will further enhance federal policy by applying similar safeguards to areas not covered by federal law.

Section IV

State Law and Regulation

A major policy issue at both the federal and state level is how to protect children from lead hazards while ensuring an adequate supply of moderate- and low-income housing. Lead abatement requirements can place significant financial burdens upon owners that can result in the abandonment of property. Committee staff recognizes thousands of property owners face sizable financial risk if a child under the age of six has a blood lead level that requires an environmental inspection. For this reason, program review committee staff recommended in Section I that the state advocate and increase prevention activities so children are identified early, and low-cost strategies can be used to manage lead hazards.

However, committee staff also finds a targeted, coherent, and comprehensive regulatory program is needed to reverse the dangers of lead poisioning in children. Strong and clear regulatory action is necessary when prevention efforts are unsuccessful and a child has a high blood lead level. Local health departments must have the authority to order property owners to manage and abate lead hazards to ensure children under the age of six are protected from continued exposure. This also requires the state to collect information concerning the nature and degree of lead in the housing stock to adequately carry out its public health and safety mission.

Current Law

Regulations for the lead program became effective September 1992. Together with C.G.S. §19a-110 through §19a-111e, they define Connecticut’s lead policy. Under Connecticut law, property owners are liable for abatement of defective interior and exterior surfaces that contain toxic levels of lead and are in a residential dwelling where children under the age of six reside or may reside. The regulations do not require a child to be diagnosed with an elevated blood lead level in order for them to be applicable. However, if a child has been identified with an elevated blood lead level, then stricter requirements ensue.

Reasons for inspections. In most cases, an epidemiological investigation by a local health department and an environmental investigation by either the local health department or a code official is triggered by a report of a child’s elevated blood lead level equal to or greater than 20 mcg/dL. It is important to note 20 mcg/dL is the state-mandated blood lead level, which then requires local health departments or code enforcement officials to conduct an inspection. A town’s municipal ordinance or building code may have stricter requirements with lower thresholds. In addition, inspections can occur in rental properties as a result of a complaint by a tenant or at unit turnover. Inspections data are kept by DPH, but the data do not include the reasons for inspections.

Abatement requirements. Figure IV-1 shows lead abatement requirements under the most common scenario (i.e., a child has a high lead level). As depicted in the figure, if a child is tested and his or her blood lead level is under 20 mcg/dL or the child is six years old or older, the results must be reported to the state Department of Public Health with no further action required. However, if the blood lead level is 20 mcg/dL or greater and the child is under the age of six, then the law requires an epidemiological investigation and an inspection of the child’s residence. The inspection includes testing representative samples of walls, floors, windows, exterior surfaces, and soil for lead content. If no lead is found, no action is required by the property owner, but the local health department will try to determine other sources of lead exposure.

Under current regulations, if lead is found, the local code enforcement agency must issue an order to the property owner to correct all defective lead-based surfaces requiring abatement and all soil areas identified as a source or potential source for elevated blood levels. The regulations require an owner who has been issued an order to carry out all of the following:

In addition, if the building is a multi-family unit, the inspector must determine if any other children under the age of six live in the building, identify the units, and conduct an inspection. If no lead is found in those units, no further action is required by the property owner. However, if lead is found in any of those units, regardless of the blood lead level of the child, the property owner must abate all defective lead-based surfaces in the units, lead-based exterior surfaces, and common area surfaces.

Proposed regulations. In 1996, the Department of Public Health formed a broad-based group to review the regulations and recommend revisions. Based on the group’s recommendations, the department drafted a proposal to amend the existing regulations and presented them to the Public Health Committee at a public hearing. The proposal was subsequently revised by DPH and submitted to the Legislative Regulation Review Committee.

The committee rejected the proposed regulations without prejudice in June 1998 and directed DPH to meet with the groups that had expressed opposition. Revisions were made by DPH based on those discussions. Subsequently, the program review committee voted to undertake a study of residential lead abatement. As a result, the department decided not to resubmit regulatory changes to the Legislative Regulation Review Committee until the committee study was completed.

The most significant changes between the existing and proposed regulations are shown in Table IV-1. A noteworthy difference between the current and proposed regulations is the establishment of a third paint classification – "deteriorated fair" paint. Under the current regulation, only two classifications exist, and if paint is classified as "defective," abatement is required. Under the proposed regulation, paint classified in "deteriorated fair" condition can be repaired rather than abated, which is a less costly alternative.

The proposed regulations also give discretion to directors of local health departments to permit intact chewable surfaces (such as window sills, baseboards, and trim) to be placed in a lead management plan rather than abated. Finally, the requirements on whether a family must be relocated during abatement are somewhat vague under the current statutes (i.e., if abatement will not be completed in a reasonable time frame). The proposed regulations require the local health director explicitly permit occupancy, but set out conditions that must be met before such permission is allowed.

In discussions with DPH and at the program review committee’s October 1999 public hearing for this study, the Connecticut Property Owners Association presented testimony regarding its opposition to the proposed regulations. (See Appendix C for a list of all of their concerns with the proposed regulations.) Concerns of the association included:

According to a memo issued by the Office of Legislative Research in 1996,

Under the new HUD regulations, when deteriorated lead-based paint is found in a child’s residence, the presumption is that it is a lead hazard and a potential source of poisoning. Furthermore, no states surveyed by program review committee staff conduct isotopic analysis; those states, like Connecticut, presume if a child has an elevated blood lead level, deteriorated paint is the source or potential source of the elevated level and must be managed or abated.

Based on the opinion of CDC, the new HUD regulation, and other states’ lead programs, program review committee staff does not recommend isotopic analysis be performed on a child with an elevated blood lead level. However, committee staff is concerned epidemiological investigations, as required under the law when a child has a blood lead level equal to or greater than 20 mcg/dL, are not being done by all local health departments. In response to questions raised at the committee’s public hearing in October, the state DPH indicated 28 percent of the 94 local health departments recently audited did not conduct epidemiological investigations. During information-gathering interviews, committee staff was told anecdotally that most local health departments focus on the environmental aspects of the dwelling and do not perform the epidemiological investigation.

Management Information Systems

To properly carry out its public health and safety responsibilities, the state must be able to identify and track the location and level of lead poisoning found in residences. The state must also combine this information with the known impact on children to adequately assess the strength of its regulatory policy. Both precise regulations and detailed information are necessary to build and maintain a successful and dynamic state lead prevention program.

As noted in the staff briefing report, the lead prevention program maintains two methods for tracking childhood lead poisoning cases. First, the surveillance unit of the program maintains the lead surveillance system (LSS) as part of the Childhood Lead Poisoning Prevention Program. The system contains information on children under the age of six who have been tested for elevated blood lead levels. However, committee staff finds there are several limitations to the database. These include:

Another unit in the department, the Lead Management Unit (LEMU) receives and compiles the statutorily required quarterly lead reports from local health departments and districts. These reports track lead inspection and abatement activities within each local health department or district. Currently, the LSS and the database maintained by LEMU are separate and distinct. The database used by DPH for tracking lead inspection and abatement activities within each local health department or district is also limited. Program review committee staff finds:

DPH has recognized the limitations of its databases and hired a consultant to evaluate the LSS. The consultant’s report was issued in September 1999. Overall, the report found the database was inadequate, inflexible, and did not meet the needs of the department. As noted by the consultant, the system is used, or should be used, to provide statistical data regarding the geographic distribution and variance over time of high blood lead levels, monitor local health departments to ensure they are doing proper follow-up of cases, that educational materials are being disseminated, and that statutory requirements and timelines are being met. The consultant’s report identified three things a system should do:

It concluded the LSS in its current form is inadequate in supporting the missions of public health. Program review committee staff cited similar shortcomings with the department’s databases in the staff briefing report and concur with the consultant’s findings. Committee staff, therefore, recommends:

Committee staff finds there is also no system for DPH to routinely collect, aggregate, and compare the results of epidemiological investigations performed by local health departments. Although the Department of Public Health recently issued a 10-page "model" epidemiological form to the 108 health departments/districts in the state, its use is optional, and no information has to be reported. Thus, for those local health departments that are performing epidemiological investigations, the depth and breadth of the investigation varies among departments. Therefore,committee staff recommends:

Information collected during the epidemiological investigation is important because it contains child-specific information. It ensures local health departments are thorough in their investigation, particularly if there are multiple sources of exposure. In addition, this information could be used by DPH for planning purposes to improve the lead program by understanding what is occurring in the community, for better target-screening, or for public education campaigns.

Both these new systems should be integrated into the department’s web site that was recommended in Section I. The web site could provide the electronic conduit for the management of data from local sources as well as provide for the distribution of forms necessary to collect the data.

Regulatory Program

The department began its efforts in 1996 to achieve broad consensus on a new set of regulations that more clearly define its lead program. As noted earlier, achieving consensus has been difficult, and the new regulations have yet to be adopted. Program review committee staff believes several regulatory changes are necessary to more clearly define the program. These changes, however, must be considered in conjunction with improved data collection and program information. The regulatory changes, along with improvements in data collection and analysis, will provide the state with a targeted cost-effective program that is fair to all parties and protects the public’s health and well being.

Privately contracted lead inspections. Connecticut General Statutes §19a-111b(3) requires any person that detects a toxic level of lead to report such findings to the commissioner. As noted above, the proposed regulations require lead inspectors privately hired by a property owner to notify the local health department/district if they are hired by a property owner to conduct an inspection. Committee staff finds this requirement creates a disincentive for property owners to voluntarily inspect their properties for lead hazards. In addition, the requirement leaves too much discretion to local health departments/districts to decide whether or not to request a lead report and creates too much potential variation among the 108 departments/districts. Therefore, program review committee staff recommends:

Program review committee staff believes if a property owner voluntarily hires a lead inspector to inspect his/her property for the presence of lead-based paint, it should remain a private transaction. However it is important to note, both Title X and state law requires disclosure of known LBP hazards upon sale or lease of residential property. Thus, if a property owner sells or rents the property, he/she would still be required to disclose known lead hazards to the potential buyer or tenant.

Relocation. Current regulations state local health departments/districts may permit occupancy in a dwelling during abatement if occupancy would not threaten the health and well-being of the occupants. The proposed regulations require residents to be relocated during abatement unless the local health director specifically permits occupancy, which must be stated in the abatement plan. Criteria to permit occupancy must include: abatement of limited scope; access to work area adequately restricted; and lead dust contained.

Committee staff supports this provision of the regulation. It protects a child with an elevated blood lead level by specifically requiring the local health director to use established criteria to determine if continued occupancy is safe during abatement. This provision does not preclude families from being allowed to remain in their units; it only requires an active decision by the local health department.

Committee staff finds the Department of Public Health does not collect information on:

As noted earlier, a successful regulatory program must be supported by a comprehensive database. Improvements in the department’s management information system addressed in this section along with information on relocation of families are important factors for DPH’s lead program. A key role should be played by DPH in this area to ensure application of the regulation is uniform among local health departments.

Intact LBP surfaces. Current regulations require all lead-based chewable surfaces, moveable part of windows, and surfaces that rub against moveable parts of windows be abated, when a child has a BLL of 20 mcg/dL or greater, even if the paint is intact. Under the proposed regulations, discretion is given to directors of local health departments to permit intact chewable surfaces (such as window sills, baseboards, and trim) to be placed in a lead management plan, rather than abated, if no teeth marks are evident. HUD’s new regulation considers a chewable surface a lead-based paint hazard only if there is evidence a child under the age of six has chewed on the painted surface or there are signs of paint abrasion or damage.

Committee staff believes the proposal gives too much discretion to local health departments to determine whether chewable surfaces need to be managed or abated. In addition, implementation of this requirement would vary from town to town and would make compliance difficult. If a child does not exhibit mouthing behavior (i.e., young children tend to chew surfaces and put their fingers in their mouths), regulations should not require unnecessary treatments of intact lead-based paint on chewable surfaces. Therefore, committee staff recommends:

A more important factor, according to the results of research over the last 10 years cited by HUD, is the finding that lead in house dust is the most common pathway of childhood lead exposure. The measurement of the statistical relationship between levels of lead in house dust and lead in the blood of children is significant. It is important, therefore, that resources be placed where they will have the greatest impact, such as identifying and reducing lead dust where it exists.

Summary

Given HUD regulations, CDC guidance, and other states’ lead laws, program review committee staff believes targeted prevention should be the focus of Connecticut’s efforts. However, if that strategy fails, the state needs a precise and comprehensive regulatory program to protect children with elevated blood lead levels from lead hazards. As recommended earlier, allowing property owners to institute essential maintenance practices and providing notification to landlords on lead hazards before a child’s blood lead level reaches an actionable level could go a long way in preventing lead poisoning. However, if prevention fails, property owners need to address lead hazards to lessen a child’s exposure, and the state needs to impose the appropriate regulatory remedies.

 Appendix A

Appendix B

Glossary of Terms - HUD Regulation

Abatement – any set of measures designed to permanently eliminate lead-based paint or lead-based paint hazards. Abatement includes: (1) the removal of lead-based paint (LBP) and dust-lead hazards, the permanent enclosure or encapsulation of LBP, the replacement of components or fixtures painted with LBP, and the removal or permanent covering of soil-lead hazards; and (2) all preparation, cleanup, disposal, and post abatement clearance testing activities associated with such measures.

Clearance examination – an activity conducted following LBP hazard reduction activities to determine that the hazard reduction activities are complete and no soil-lead hazards or settled dust-lead hazards exist in the dwelling unit or worksite. The clearance process includes a visual assessment and collection and analysis of environmental samples.

Environmental intervention blood lead level – a confirmed concentration of lead in whole blood equal to or greater than 20 mcg/dL for a single test or 15-19 mcg/dL in two tests taken at least 3 months apart.

Evaluation – a risk assessment, a lead hazard screen, a LBP inspection, paint testing, or a combination of these to determine the presence of LBP hazards or LBP.

Hazard reduction – measures designed to reduce or eliminate human exposure to LBP hazards through methods including interim controls or abatement or a combination of the two.

Interim controls – a set of measures designed to reduce temporarily human exposure or likely exposure to LBP hazards. Interim controls include but are not limited to repairs, painting, temporary containment, specialized cleaning, clearance, ongoing LBP maintenance activities, and the establishment and operation of management and resident education programs.

Lead-based Paint Hazard – any condition that causes exposure to lead from dust-lead hazards, soil-lead hazards, or LBP that is deteriorated or present in chewable surfaces, friction surfaces, or impact surfaces, and that would result in adverse human health effects.

Lead-based Paint Inspection – a surface-by-surface investigation to determine the presence of LBP and the provision of a report explaining the results of investigation.

Lead Hazard Screen – a limited risk assessment activity that involves paint testing and dust sampling analysis, and soil sampling and analysis.

Paint Stabilization – repairing any physical defect in the substrate of a painted surface that is causing paint deterioration, removing loose paint and other material from the surface to be treated, and applying a new protective coating or paint.

Risk Assessment - (1) an on-site investigation to determine the existence, nature, severity, and location of LBP hazards; and (2) the provision of a report by an individual or firm conducting a risk assessment explaining the results of the investigation and options for reducing LBP hazards.

Soil-lead Hazards – bare soil on residential property that contains lead equal to or exceeding levels promulgated by the U.S. Environmental Protection Agency pursuant to section 403 of the Toxic Substances Control Act or, if such levels are not in effect, the following levels: 400 mcg/mg in play areas; and 2000 mcg/mg in other areas with bare soil that total more than 9 square feet per residential property.

Standard Treatments – a series of hazard reduction measures designed to reduce all LBP hazards in a dwelling unit without the benefit of a risk assessment or other evaluation.

Visual Assessment – looking for, as applicable: (1) deteriorated paint; (2) visible surface dust, debris, and residue as part of a risk assessment or clearance examination; or (3) the completion or failure of a hazard reduction measure.

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