“Working with our partners, including Baltimore City and the Green & Healthy Homes Initiative, Maryland has made significant gains to protect our children, particularly those who live in older rental housing. But a significant number of lead poisoning cases in Maryland are linked to newer rental housing. The change in Maryland’s lead law will allow us to prevent more children from suffering the effects of lead poisoning. We cannot, and will not, let up in our work to eliminate childhood lead poisoning in our state.”- Robert M. Summers, Secretary, Maryland Department of the Environment
The Maryland Department of the Environment’s (MDE) Lead Poisoning Prevention Program coordinates statewide efforts to reduce childhood lead poisoning including assuring compliance with Maryland’s Reduction of Lead Risk in Housing Act. The statute and associated regulations (Environmental Article 6-8) require owners of rental properties built before 1978 to annually register their properties with the Maryland Department of the Environment, comply with a lead paint risk reduction standard, and distribute tenant educational information (a Notice of Tenant’s Rights brochure, a lead education pamphlet about protecting one’s family from lead in the home, and a copy of the current lead inspection certificate for the property).
The law, as originally passed in 1994, was intended to make housing units safer for children and help prevent childhood lead poisoning. It was also intended to help rental property owners and managers avoid costly lead poisoning litigation by complying with registration requirements and specific lead hazard reduction and inspection certification procedures.
A legal challenge to the tort protection clauses resulted in the removal of the implementation of those liability protection provisions from the law in 2011.The law was modified in 2012 to include rental properties constructed prior to 1978 (whereas the original law was only mandatory for pre-1950 rental units and had been optional for 1950-1978 constructed units), a change motivated by a significant percentage of new childhood lead-poisoning cases in Maryland that were linked to homes built after 1949.
Registration and Risk Reduction Requirements
Owners of residential rental properties built before 1978 must register their properties annually with the Maryland Department of the Environment. They can complete registration online or via a paper form, and registration fees are $30 per unit. Registration is specific to ownership of a property and must match exactly what is on record with the Maryland Department of Assessments and Taxation. A change in ownership, including adding owners or changing to a corporation, requires a new registration and new tracking number.
Rental properties covered by the law must be free of chipping, peeling paint and lead contaminated dust. To qualify for registration, owners must hire a certified contractor to address any defective paint and have an accredited lead paint inspector verify compliance before any change in occupancy. Inspectors issue a lead paint risk reduction certificate for each dwelling unit that passes the inspection.
Whenever a tenant notifies an owner that there is defective paint or there is a child with an elevated blood lead level, the owner has 30 days to conduct modified risk reduction measures and pass lead inspection certification. The rental property owner is responsible for temporarily relocating the family to a lead-safe or lead-free dwelling while the original dwelling undergoes risk reduction measures.
Litigation Implications of the Law
The widespread and routine application of lead exclusions in general liability insurance policies covering rental units helped motivate the enactment of the lead law in 1994. The statute added provisions to the Maryland Insurance Code, which limited the circumstances under which these exclusions would be effective. The law limited tort damages when the property owner satisfied certain housing unit registration requirements and after the unit passed lead dust tests or underwent a set of risk reduction measures. It also offered the owner the option of making a “qualified offer” (a payment to provide compensation in the form of relocation and medical benefits to the child and his or her legal guardian) in lieu of litigation when a child developed an elevated blood lead level in a compliant property.
In 2011, the Court of Appeals of Maryland issued an opinion in Jackson v. Dackman Company that found the limited liability section of the law is unconstitutional. The court ruled that the possible remedies contained in the law were not adequate compensation for the potential harm to an injured child from lead poisoning. The court also found it was unreasonable for the law not to offer a child the ability to bring suit for his/her injuries after the child reaches the age of majority. The court ruled that the remaining provisions in the law could continue to be enforced.
Implementation of Strong Public and Private Enforcement
A key component in Maryland’s substantial decline in childhood lead poisoning has been its strong public enforcement of the Maryland Reduction of Lead Risk in Housing Act coupled with local enforcement coordination and private enforcement actions by non-profit agencies and pro se tenants.
MDE files 500 to 800 violation notices annually, and a team of four to five people from the state’s attorney general’s office is responsible for enforcing actions against non-compliant owners.
Another highly effective best practice has been MDE’s policy of pursuing enforcement against a rental property owner’s entire non-complaint housing portfolio once enforcement actions have been initiated against any one of the owner’s properties. Local housing code enforcement and landlord licensing officials at the city and county level also help coordinate enforcement by referring non-compliant properties in their jurisdictions to MDE for enforcement of the registration and risk reduction requirements.
To increase the law’s effectiveness, private enforcement through family advocate attorney representation from the Green & Healthy Homes Initiative and other non-profit legal services providers is utilized statewide to assist tenants in obtaining risk reduction certification of their units, temporary relocation during lead hazard remediation and the use of lead certified contractors. The passage of legislation to support the law’s implementation through private enforcement and the development of lead poisoning prevention resources include:
- Permitting tenants to establish court ordered rent escrow accounts until lead hazards are remediated in their rental unit;
- Denial of District Court rent court access for the collection of rent for non-compliant property owners until their property is brought into compliance;
- Requiring that non-compliant rental property owners pay up to $2,500 in relocation benefits to assist tenants in permanently moving to a new, lead certified home; and
- Creation of a lead preference for Housing Choice Vouchers that provides vouchers to permanently relocate families with lead poisoned children who reside in hazardous housing to lead certified housing.
Other Responsibilities of the Lead Poisoning Prevention Program
The Maryland Department of the Environment assures compliance with mandatory requirements for registration and lead risk reduction in rental units built before 1978; maintains a statewide listing of registered and inspected units; and provides a blood lead surveillance database of children tested in Maryland.
The Maryland Department of Health and Mental Hygiene oversees blood lead testing initiatives in the state. All children living in at-risk areas for lead poisoning or receiving medical assistance must be screened for lead poisoning at 12 and 24 months of age, with children between 24 months and six years old in these at-risk areas required to be screened if the child has not previously tested or if documentation cannot be verified. Maryland recently adopted universal blood lead testing for children under age 6 for a period of three years in order to better measure actual blood lead testing rates in Maryland and to assess the accuracy of the methodologies utilized in Maryland’s previous targeted testing plan.
The Maryland Department of the Environment’s Lead Poisoning Prevention Program is also responsible for:
- Overseeing case management follow-up by local health departments for children with elevated blood levels;
- Certifying and enforcing performance standards for inspectors, risk assessors, and abatement contractors;
- Performing environmental investigations for lead-poisoned children; and
- In cooperation with the Maryland Department of Health and Mental Hygiene, providing oversight for community education to parents, tenants, rental property owners, homeowners, and healthcare providers to enhance their role in lead poisoning prevention.
Since the Maryland Reduction of Lead Risk in Housing Act’s enactment, the rate of high blood lead levels has declined by 98 percent in Maryland. In 1993, 14,564 children (23.9 percent) of the 60,912 children under 6 who were tested had blood lead levels of 10 µg/dl or higher. By 2015, that rate had declined to 377 children of the 110,217 children 0-72 months tested (0.3 percent) for blood lead in Maryland. The declines in percent of children with blood lead levels equal to or greater than 10 µg/dL and between 5-9 µg/dL in 2014 compared to 2013 were 4.6 percent and 10.8 percent, respectively.
In 2013, there were approximately 28,000 affected rental properties that met the risk reduction standard. With the law’s expansion to include all pre-1978 rental properties the number of properties treated and receiving risk reduction inspection certification more than doubled to over 57,603 properties in 2014.
In August, 2017, the Health Impact Project, a collaboration between the Robert Wood Johnson Foundation (RWJF) and Pew Charitable Trusts released: Ten Policies to Prevent and Respond to Childhood Lead Exposure. The Trust for America’s Health (TFAH), National Center for Healthy Housing (NCHH), Urban Institute, Altarum Institute, Child Trends and many researchers and partners contributed to the report. TFAH and NCHH worked with Pew, RWJF and local advocates and officials to put together the above case study about lead poisoning and prevention initiatives.
The case study does not attempt to capture everything a location is doing on lead, but aims to highlight some of the important work.