Thursday, January 1, 2015
Bill language for the initial wave of new lead paint law
AN ACT: relative to preventing the lead poisoning of children
Section 1. Amend RSA 130-A, by adding the following new section RSA 130-A:19, entitled "Lead-Based Paint Essential Maintenance Practices Task Force", as follows:
I. There is established a lead-based paint essential maintenance practices task force, the purpose of which shall be to examine the development of a program establishing essential maintenance practices to be used in pre-1978 rental housing and pre-1978 buildings containing child care to reduce exposures to lead from lead-based paints.
II. The members of the task force shall be as follows:
(a) The commissioner of the department of health and human services, or designee.
(b) A representative of the New Hampshire Housing Finance Authority.
(c) A municipal public health official, appointed by the governor.
(d) A landlord with experience owning and renting pre-1978 rental housing, appointed by the governor.
(e) An owner of a child care facility, appointed by the governor.
(f) A representative of the Granite State Property Managers Association.
(g) A representative of the New Hampshire Building Officials Association.
(h) A representative of the New Hampshire Pediatric Society.
(i) A representative of New Hampshire Legal Assistance.
(j) A representative from a child advocacy organization, appointed by the governor.
(k) A representative of Housing Action New Hampshire.
(l) One member of the senate, appointed by the senate president.
(m)One member of the house of representatives, appointed by the speaker of the house of representatives.
(n) One designee of the governor.
III. The task force is charged with determining whether to adopt an essential maintenance practices program uniquely suited to New Hampshire to prevent lead poisoning in pre-1978 rental housing and pre-1978 buildings containing child care, and the elements of such a program. In reaching its determinations, the task force shall assess:
(a) Essential maintenance practice programs in other jurisdictions;
(b) Coordination of an essential maintenance practices program with existing public health laws and regulations concerning lead, to maximize efficiency;
(c) Incentives and other mechanisms to encourage compliance with essential maintenance practices, including but not limited to issues concerning limitations on liability for compliance and liability for non-compliance; and
(d) Such additional issues as may be identified by the task force.
IV. The governor shall appoint one member to serve as the chairperson. The chairperson shall call the first meeting of the task force within 45 days of the effective date of this section. The task force shall meet at least monthly at a date, time and place designated by the chairperson. Eight persons shall constitute a quorum for the transaction of business. Legislative members of the task force shall receive mileage at the legislative rate when attending to the duties of the task force.
V. The task force shall report its findings and recommendations to the senate president, the speaker of the house of representatives, the senate clerk, the house clerk, and the governor on or before November 1, 2015.
Section 2. Amend RSA 540-A:3, “Certain Specific Acts Prohibited”, by adding the following new paragraph:
VIII. No landlord of pre-1978 rental housing shall fail to comply with applicable public health laws and regulations concerning lead.
Section 3. Amend RSA 540-A:4, VII as follows:
Upon a showing of a violation of RSA 540-A:2 or RSA 540-A:3
, I, II, or III, the court shall grant such relief as is
necessary to protect the rights of the parties. Such relief may include:
Section 4. Amend RSA 540-A:4, IX(d) as follows:
The provisions of subparagraph (a) shall not apply to any violation of 540-A:3, V-a, V-b, or V-c, or RSA 540-A:3, VIII.
Section 5. Amend RSA 170-E:12, “License or Permit Suspension, Revocation, or Denial” by adding the following new paragraph:
XIV. Fails to comply with applicable public health laws and regulations concerning lead.
Section 6. Amend RSA 170-E:35, “License or Permit Suspension, Revocation, or Denial” by adding the following new paragraph:
XVI. Fails to comply with applicable public health laws and regulations concerning lead.
Section 7. Amend RSA 130-A:18, “Civil Suits” , as follows:
Owners of pre-1978 rental housing and childcare facilities shall take reasonable care to prevent exposure to, and the creation of, lead hazards. Notwithstanding any provision of law to the contrary, the mere presence of a lead base substance shall not constitute negligence on the part of an owner of any dwelling. To establish negligence on the part of an owner, the plaintiff in a civil suit shall demonstrate actual injury caused by the lead based substance. Evidence of actions taken or not taken by the owner of a pre-1978 rental property or childcare facility in compliance with applicable public health laws and regulations concerning lead may be admissible evidence of reasonable care or negligence. Evidence of a tenant’s disturbance of painted surfaces containing lead paint also shall be admissible evidence. In addition, the mere presence of a lead base substance in a dwelling shall not by itself violate any warranty of habitability.
Section 8. Amend RSA 130-A:6-a, “Property Owner Notification”, as follows:
I. The department shall
efforts to notify in writing the owner or registered agent of an owner of a
dwelling or dwelling unit where the child resides if a lead level s of 6
5 to 9.9 micrograms per deciliter are
is found in the child’s blood and,
where the data are deemed reliable by the department, if lead at a level less
than 5 micrograms per deciliter is found in the child’s blood. Such
notice to the property owner shall specify that it is neither a finding that a
lead exposure hazard exists in the property nor is it an order for lead hazard
reduction. Such notice shall include
information about the health hazards of lead poisoning; standards for identifying
and eliminating lead hazards; and the federal Renovation, Repair, and Painting program.
II. Eviction of a tenant based on the presence in the dwelling or dwelling unit of a child with a blood level of
65 to 9.9 micrograms
per deciliter, or a lower blood lead level in cases in which the department provided
notice pursuant to part I of this section, shall be unlawful. There
shall be a rebuttable presumption that any eviction action, instituted by the
owner within 6 months of receipt of the notice sent by the department pursuant
to paragraph I, is based on the child's elevated blood lead level; provided
that this shall not be construed to alter any cause for eviction under RSA
540:2. If a court finds that an eviction is based on the child's elevated blood
lead level, it shall deny the eviction and award damages to the tenant pursuant
to RSA 540:14,II. However, if an owner in response to the notice from the
department discovers a lead exposure hazard in the dwelling or dwelling unit,
the owner may proceed with relocation of the tenants, provided that the owner
meets the requirements of RSA 130-A:8-a, I or II.
Section 9. Amend RSA 130-A, by adding a new section RSA 130-A:6-c, entitled “Parent Notification”, as follows:
The department shall send materials to the parents of any child with a blood lead level of 5 micrograms per deciliter or higher, and to the parents of any child reliably determined by the department to have a detectable blood lead level less than 5 micrograms per deciliter, to inform them of the health hazards of childhood lead poisoning and how best to identify and address lead hazards. Such materials shall inform parents who are tenants of the need to work with the property owner and not engage in renovation, repair or painting activities themselves. Such materials shall inform parents who own and occupy the house in which the child resides of resources for identifying and eliminating lead hazards, including the Renovation, Repair and Painting program.
Section 10. Amend RSA 676:13, entitled “Building Permits Restricted”, by adding the following new paragraph.
V. The building inspector shall not issue any building permit for any proposed renovation or remodeling of a pre-1978 building that may involve the disturbance of painted surface, unless such disturbance constitutes minor repair and maintenance within the meaning of the federal Renovation, Repair and Painting program, absent a statement by the contractor certifying that the contractor has a current, up-to-date certification under the Renovation, Repair and Painting program and will follow the standards of such program. This prohibition shall not apply if the contractor certifies that the surface or surfaces to be disturbed do not contain lead paint. When such renovation or remodeling activities are proposed to be undertaken by the property owner, and not by a contractor, the building inspector shall not issue a building permit absent the applicant’s execution of a form prepared by the department of health and human services providing information about lead paint, including how to test for its presence, the hazards of lead poisoning, and the use of safe renovation and remodeling practices that prevent exposures to lead poisoning.
Section 11. Amend RSA 130-A, by adding a new section RSA 130-A:6-d, entitled “Lead Screening”, as follows:
I. Using data provided to the department pursuant to RSA 130-A:3, the department shall annually determine the percentage of children six years of age or younger who are being screened with blood lead level tests in accordance with the department’s guidelines and shall annually report such data to the legislature.
II. There shall be established a lead screening commission to assess existing screening rates in relation to the department’s screening guidelines, and to assess the actions needed, including but not limited to legislation and rule-making, to achieve screening rates consistent with such guidelines. Such commission shall include representatives of the department, the NH Housing Finance Authority, two municipal health officials with knowledge and experience in childhood lead poisoning prevention, and two representatives of the pediatric medical community.
III. If by 2017 fewer than 85 percent of one-year-olds and two-year-olds in the following categories of children are receiving blood lead level tests, the department shall adopt rules to require that all health care providers who provide primary medical care to young children shall ensure that their patients in such categories are screened according to the department’s screening guidelines:
(a) children who live in high-risk communities designated by the department;
(b) children who are in Medicaid;
(c) children who are receiving WIC benefits;
(d) children who are enrolled in Head Start.
IV. All health care providers who provide primary medical care shall ensure that parents and guardians of children six years of age or younger are advised of the availability and advisability of screening and testing their children for lead in accordance with the department’s screening guidelines. No health care provider shall be liable for not performing a screening or confirmation test for blood lead level when a parent or guardian has been informed of the availability and advisability of screening and has refused to consent or has failed to follow through in response to a referral for a screening or confirmation test.