Flint, MI was only the initial shock wave. The real tsunami of lead paint, lead related hazards, litigation, and accountability for HUD associated programs is just about to begin. If you receive, partake, score, manage, or own a HUD oriented program property, I strongly suggest that you familiarize yourself with the contents of this article, and find qualified knowledgeable assistance if needed. The only silly question is the one you don’t ask!
I could start by running through the many crazy real life data points, such as the fact that 1:53 children are recently determined to be lead poisoned. Stats like these from the Center for Disease and Control (CDC) will be sure to expand your sensitivity to the reality of lead poisoning and older (pre-1978) real estate! Instead, I am sharing three major HUD changes (2-regulatory changes and 1-HUD notice to REAC inspectors & owners).
First, the Department of Housing and Urban Development (HUD) implemented two recent regulatory changes, and one recent HUD guidance notice to REAC inspectors and federal assisted property owners.
On September 1, 2016 HUD published in the federal register its proposed amendments to its 24 CFR part 35 regulations. Most importantly, this includes a change in definition and level of what is to be considered an elevated blood Lead level, aka lead poisoned child. If such a case exists changes have been made to what you are required to do, who to notify, what time frames to address, and possible requirements to now assess all other units in accordance.
Secondly, HUD issued Notice H2016-10 to REAC inspectors, as well as owners and managers of project based rental assisted properties. Notice H2016-10 now requires REAC inspectors to ask 5 basic questions, as well as request and collect copies of all previously regulated lead based paint compliance documentation. REAC inspectors will now be required to ask the following:
- Do you have a Lead-based paint Inspection Report? If yes, they will ask for a copy. IF Not they will check “NO.”
- Do you have Lead-based Paint Free Certification? If yes, they will ask for a copy. If no they will then ask…
- Do you have a Lead Hazard Control Plan or Lead-based Paint Management Plan? IF Not they will check “NO.”
- Has the property completed its two-year (biennial) lead Risk Assessment reevaluations conducted since the initial Risk Assessment was conducted? If yes, the REAC inspector must ask to see all biennial lead reevaluation reports. If you cannot produce all the reports, the REAC inspector is instructed to check “NO”.
- Do you have your required Lead Based Paint Disclosure form for leases not exempted? If yes, the REAC inspector will ask for a copy.
With most changes there is both good news and bad news. The good news (for at least 2017-2018) is although all the REAC inspectors will be required to ask the questions and collect copies of all lead required data, it will not be affecting your REAC score YET! The bad news is CDC’s “reference value” for a child of lead poisoning concern is to be incorporated into HUD’s lead safe housing regulation. This means that they have modified the definition of an elevated blood lead, aka lead poisoned child, to half of its previous value of 10ug/dl to 5ug/dl, which is based on the census data that 1:53 kids will have blood lead levels that exceed this level.
So what does this all really mean? It means you should really consider very seriously how well you are properly lead poisoning insured, and even more so, what it would take to get compliant, ASAPractical. Why? Because even though any previous noncompliance concerns will not impact REAC scores, your compliance or lack thereof will be federally recorded and noted. Simultaneously, the risk and probability of a child who resides or recently resided in your property being blood lead tested above 5ug/dl is now much more likely! The unfortunate reality is a blood lead level could easily rise above 5ug/dl from an abundance of community sources, toys in mouth, religious, and country of origin products as well as the grandparents, brothers, sisters, aunts, cousins, daycare, and many, many other locations that the child could “temporarily” visit. Additional accessible sources, coupled with amendments to regulations and department of health policies, will require an investigation of the child’s residence regardless of actual source of lead. Some states have also already adopted 5ug/dl as their blood lead level of concern.
The above really means that although the short term risk of a poor REAC score is not likely, the reality of having a child with an elevated blood lead level on your property is not. If you fail to comply with the recording of government documentation, it will create the ideal situation for a plaintiff initiated lead poisoning litigation case. It will be substantially more challenging to defend and in most cases substantial more expensive and stressful. This is especially true if ANY lead based paint or lead based paint hazards (lead dust, lead soil, lead water) are identified in or on your property!
According to HUD, depending on the age of which your property was originally built, there is a certain percent that lead paint exists somewhere on your property. See table below.
To summarize, check your lead poisoning litigation insurance coverage, gather your lead based paint reports, certifications, hazard control plans, and disclosures. Use these to assess your compliance level (or connect with subject expert to Assist). 80/20 rule – Promptly address the easy items that may be identified as deficient, and the heavy lifts that cannot be accomplished in the short term. Then, incorporate documentation and work practices into the properties multiyear plan! I strongly suggest that if you have no lead coverage or have very high deductibles address immediately!
Lee E Wasserman
25 year affordable housing environmental expert- acknowledge in 2012 HUD Guidelines for the Evaluation and Control of Lead Based Paint and Lead Hazards
800-783-0567, Questions are always free and government subsidized housing programs and environmental concerns is what we know and do best!