“No Amount of Lead in Our Children’s Bloodstream is Safe”: City Council Votes to Strengthen Lead Poisoning Law
The New York City council voted unanimously in March to reinforce and strengthen the existing New York City childhood lead poisoning law by expanding testing when a child tests positive for lead poisoning and bolstering the communication between the concerned departments to ensure thorough inspection and elimination of lead-based hazards.
Soon to be a family of three, Donovan Bisbee moved into his new apartment in Washington Ave., Hudson Heights, with his wife in March 2020. The excitement to be a parent for the first time and spending time with his family made the lockdown easier for Bisbee. However, in the months that followed, his excitement turned to fury and distress, when he discovered his home was packed with lead in every doorway and window frame.
Despite the efforts of banning lead paint for residential use in 1960 and passing several legislations over the decades, lead paint in New York City apartments remains a problem that puts the city’s youngest residents in harm’s way. Lead poisoning, which affected over 2000 New York City children in 2020, can severely affect mental and physical development.
The New York City Council is trying to change that. On March 18, the City Council voted to strengthen the current lead laws to protect children from potential lead poisoning in New York City homes by expanding the required inspections when a child tests positive for elevated lead levels in the blood and better the communication between the Department of Health and Mental Hygiene (DOHMH) and the Department of Housing Preservation and Development (HPD). In 2019, the Comptroller’s Office released a comprehensive investigative report that found that the thousands of blood lead test reports collected by DOHMH were not proactively used by HPD to inspect lead exposure hotspots. This data solely remained with DOHMH and HPD relied only on complaint-driven inspections. The absence of communication, according to the Comptroller’s report, reflects the weak interagency strategy to eliminate lead paint hazards to protect children and create a safer environment.
The bill was first introduced to the City Council in 2018 by Margaret Chin, a representative for District 1 in lower Manhattan, who talked about the detrimental impact of lead exposure, which can lead to behavioral problems, slow growth and learning disabilities among young children. Chin also highlighted the irreversible damage lead can cause in pregnant women.
Lead, a toxic metal, is predominantly present in pre-war buildings in New York City since lead-based paint was used to paint the dwellings constructed before World War II. Furthermore, lead can be found in old toys, soil, and drinking water, while the most common cause of lead poisoning, according to the New York State Department of Health, is dust and chips from old paint. These layers peel, crack and expose threat to young children who crawl and come in contact with the fallen dust flakes and chipped lead-based paint, which then easily enter their digestive tract because of hand-to-mouth activity. DOHMH states that these young children tend to absorb lead at higher rates as compared to older children, putting them at a greater risk to lead exposure. The Centers for Disease Control and Prevention highlights that lead can result in permanent neurological damage in a child along with organ failure, cognitive impairment, behavioral disorders and death in extreme cases. To prevent lead exposure in children, the city has strengthened its laws, regulations and policies and redefined “unsafe lead paint condition” from a lead concentration threshold of 1.0 milligrams per square centimeter to 0.5 milligrams per square centimeter.
“Even though the federal government and the city sets an allowable lead level in a person’s bloodstream, no amount of lead in our children’s bloodstream is safe. These two Bills will strengthen our City’s effort to make sure our homes are clean, secure and free of harmful toxins,” she Chin during the first city council meeting in 2018.
The New York City Council wrote in a release about the new law that “despite the ban of lead paint in 1960 in New York City, New Yorkers are still being tested positive for lead levels from lead paint used in dwellings.” The city has seen a progressive decline in childhood lead poisoning levels between 2015 and 2019, especially under the Childhood Lead Poisoning Prevention Act of 2004 that requires a mandatory inspection by landlords of apartments where children under the age of six years reside. However, in 2018 alone, almost 4,000 children in New York City had blood tests that were positive for elevated lead levels.
The Childhood Lead Poisoning Prevention Act “set a goal for the city to eliminate lead in all of our residential buildings by 2010. Well, that has yet to happen,” Chin said at the 2018 city council meeting, adding that of the 1.45 million pre-1960 apartment units in New York City, only 45,000 of these units have rid the dwellings of potentially hazardous lead.
Seeking to improve the rules around lead with every law, the City Council has passed 14 lead-related legislations in 2019 and 2020. The bill aims to strengthen the communication between DOHMH and HPD to ensure a thorough inspection and elimination of lead sources, educate tenants through a comprehensive tenant notification system that immediately alerts the residents in case of lead exposure in the building, and better the inspection process related to lead-based paint and lead dust hazards. Under the bill, which takes effect a year after passage, if inspectors discover lead in the common areas of a building, DOHMH is required to create a pamphlet that explains to New York City residents the hazards that lead-based paint can cause, and make the information available in building lobbies and on their website. The landlord is to place these pamphlets on every floor of the building too. The pamphlet will include phone numbers that tenants can call to request details about lead poisoning screenings, diagnosis and treatment, along with information on unsafe lead-based paint work practices. The pamphlet will also describe the building owners’ responsibilities to remediate all lead-based paint risks along with conducting an annual inspection of dwellings where a child under the age of six resides.
What happens if a screening shows that an apartment has lead paint? The bill requires DOHMH to post a notice in the lobby of the building if a lead hazard has been discovered in the common area and on every floor of the dwelling.
The bill also aims to ensure no resident is exposed to harmful dust or debris during building construction or renovation and allow the Buildings Department to issue work stop orders in cases where unsafe lead work practices have been identified. To expedite the process, the bill would require the Buildings Department to inspect complaints alleging the violation of lead-safe practices within 24 hours of receiving the complaint as well as take dust wipes to determine whether any construction dust is lead-contaminated, and refer these wipes to DOHMH for analysis.
While New York has demonstrated great strides over the years in reducing lead poisoning in children, the efficacy of the lead poisoning prevention program may be adversely affected by budget modifications as a result of the COVID-19 pandemic, according to Matthew Chachère, a staff attorney at Northern Manhattan Improvement Corporation and Counsel to the New York City Coalition to End Lead Poisoning. A pioneer in housing law in New York City for over 25 years, Chachère was among the advocates who drafted Local Law 1 (Childhood Lead Poisoning Prevention Act of 2004). In his letter to the city, he said the “consequence of ‘stay at home orders’ and school closures is children are spending significantly more time indoors in unsafe housing and thus higher exposure to lead-based paint hazards. In addition, the ability of landlords to perform ongoing self-inspections for lead hazards, and for the Department of Housing Prevention and Development, and DOHMH to do statutorily- mandated inspections in response to tenant complaints or reports of children with elevated blood lead levels (EBLL) has been severely curtailed.”
Bisbee experienced a similar situation.
It began with dialing 311 to make a complaint about heat and water outages. An inspector came to Bisbee’s home on March 5 of this year to check for hot water issues. Bisbee noticed he had tools for lead inspection as well and requested if a lead inspection could be conducted, and the inspector complied.
“When we had moved in, sometime in April [2020], someone from the Department of Housing came and said that they had been requested to come test for lead-based paint. But the information they had was from the previous tenant. So, clearly, the previous tenant had some issue with lead-based paint,” said Bisbee.
Upon inspection with an X-ray fluorescence analyzer (XRF), an instrument that emits X-rays into the paint and detects the measurement of lead amount in it, lead was discovered in every doorway in Bisbee’s home, including the closet doorways and window frames.
“I think it is a total of eight sources of lead-based paint in the apartment,” said Bisbee, adding that Fairline Management, which owns his building, have not conducted any inspection since the family moved into the apartment. “We’ve been here for over a year. On the yearly safety notification we all have to fill out, we marked that there’s a child under six in the apartment, but no one has come through to do the inspection.”
According to the bill, it’s the responsibility of the tenant to provide their landlord with a written response by February 15 each year that indicated whether a child under the age of six lives in the apartment. If a tenant for any reason fails to tell the owner, and the owner has no knowledge as to whether a child resides in the dwelling, they, upon reasonable time and notice between February 16 and March 1 of that year can inspect the tenant’s building to ascertain the residency of a child. If the owner is unable to gain any access to make this determination, they are required to notify DOHMH.
Chachère, who worked closely with Chin in the drafting of the bill, understood that in order to make the law more effective, every detail would need to be explicitly highlighted to achieve the goal of zero lead poisoning cases in children in New York City, which the Local Law 1 of 2004 failed to accomplish.
“Part of it is, there were aspects of the law where the city did a much better job of enforcing. But there were other chunks of the law they never enforced at all. For example, one of the key aspects of the law is the building owners inspect their own dwellings at least once a year and more often as needed. Most landlords know how to deal with it, it’s the bad ones that don’t,” he said.
In addition, the bill requires DOHMH to notify the residents of a building when a lead hazard is identified and that it intends to inspect it and refer to appropriate medical providers if any tenant requests blood lead screening, testing, diagnosing or treatment. If a parent or a guardian is unable to obtain a lead test because the child is uninsured or the insurance does not cover blood lead screening, DOHMH is to arrange a screening for such cases too.
Chachère noted a confusing loophole in the lease agreement between a tenant and their landlord which may have exacerbated the number of lead-positive cases across the city. Under the New York law, the lease requires the landlord to attest whether they have conducted the necessary lead dust clearance test inspection in the building. The lease also consists of a federal form asking the landlord to mark either “Yes” or “No” of any prior knowledge of lead in the building.
“One of these statements cannot be true. You either did the work or you did not,” said Chachère.
Bisbee lives in a pre-war building, which means the building was built before World War II and used lead-based paint. However, his apartment has square archways as opposed to the curved archways typical of pre-war buildings, so he assumes that the landlord renovated the apartment at some point and wonders why the lead issue didn’t come up earlier.
“My lease says ‘(landlord) have no records or knowledge of any lead-based paint hazards in the apartment’,’’ said Bisbee who feels like it can’t be true because of the renovations taken inside his home.
When the Department of Housing found lead in Bisbee’s home, they sent a letter detailing all of the violations to him and his landlord along with the Department of Building. The landlord was given 10 days from the time they received the letter to initiate the necessary repairs, which include eliminating all lead sources in the doorways and windows frames by scraping them and repainting using lead-less paint. The letter was received on March 12 and Bisbee said he has tried contacting the landlord multiple times by email and phone but has been unsuccessful.
“Getting in contact with the property management company is almost impossible. You call a number and it dumps you to an automated system where the voice mailbox is full or they are not accepting messages. I’ve called them probably 20 times over the course of a year on this lease,” Bisbee said, adding that he has little hope that his landlord will remediate the lead situation in his home.
A parent to a 10-month-old baby, Bisbee and his wife were shocked when they discovered several lead sources in their apartment.
“At first we were flabbergasted. We freaked out. We were worried and pretty angry. It wasn’t just about being crappy landlords and trying to save a buck on heat and hot water. Beyond that, there is a legal obligation that they’ve either skirted or they straight up lied and they probably won’t face consequences,” said Bisbee who plans to get his baby tested for blood lead level.
Bisbee is particularly worried about the potential lead poisoning in his infant daughter, especially because there were instances of licking and chewing of paint.
“It felt like a punch to the gut because this has been the only place, we’ve been for almost eleven months,” said Bisbee who shares his concern of how stay-at-home order may have exacerbated the situation. “This is where we have had to live. It means [the baby] has been never more than four or five feet away from a really serious lead hazard,” he said.
“The impact of lead poisoning is essentially permanent. Once you’ve been lead poisoned, whatever damage occurred from that exposure is not going to be undone. Unfortunately, in most jurisdictions, in most of New York states, we wait till kids poison before we say ‘Oh maybe we should do something,’’’ said Chachère.
In 2019, Howard Zucker, Commissioner of Health for New York State, addressed changes to the New York State Public Health Law and Regulations for Childhood Lead Exposure in a letter to health care providers. The letter mandates health care providers to routinely test all children for lead at one year and again at two years of age. Further, if any child’s blood level was equal to or greater than 5 micrograms of lead per deciliter of blood, medical intervention and lead eradication should be initiated.
“Studies show that no amount of lead exposure is safe for children. Even low levels of lead in blood have been shown to affect a variety of adverse health effects including reduced growth indicators; delayed puberty; lowered intelligence quotient; and hyperactivity, attention, behavior, and learning problems,” Zucker wrote, adding that children under 6 years old are more likely to be exposed to lead than any other age group, as their normal behaviors result in them breathing in or swallowing dust from old lead paint that gets on floors, window sills, and hands, and can be found in soil, toys, and other consumer products. “New York has more pre-1950 housing containing lead paint than any other state in the nation. In fact, lead paint has been found in approximately 43 per cent of all of New York’s dwellings,” the letter said.
Angelica Supansic, a pediatrician at Lighthouse Pediatrics in Manhattan, sends out approximately 500 blood level tests a year out of which typically 10 results in elevated blood levels. “My cases have not been astronomical,” said Supansic, whose most cases fall just above New York City’s legal limit. Once the blood is sent to the lab for testing, any result that is elevated gets reported to the Department of Health.
“The general rule is, as long as it’s under 10 µg/dL, you don’t need to intervene and take medical action but you need to keep following it to make sure it starts trending down,” said Supansic, who advises the parents of her patients to let their landlords know in cases of elevated lead levels in their child in order to find the source and eliminate it.
“99 per cent of the time, the second a parent identifies the source and eliminates that, the lead levels beautifully start dropping pretty rapidly,” she said.
While the symptoms range from headaches, vomiting, and nausea, as a pediatrician, Supansic keeps an eye out for any signs of developmental delay in children exposed to lead. This ranges from gross-motor observation in children under the age of 9 months, like their crawling, walking and running pattern. This is followed by observing a child’s fine motor skills under the age of 15 months, which includes how they use their hands, how they pass objects back and forth, how a child scribbles and how efficiently can they use a spoon and a fork at the age of 18 months. Supansic also observes a child’s speech efficiency along with their social interactions: do they laugh, do they smile, do they make any eye contact, and how do they engage with others?
“You look at all these aspects and ensure they are on track. And if the kids are falling behind in any of those, you weigh in a couple of things but lead is always on the deferential just because it can be harmful to development,” said Supansic.
Chachère, who is in the process of introducing five more bills related to childhood lead poisoning, believes that this legislation alone won’t solve all issues related to lead exposure.
“We are not done yet. If I could wave a magic wand and say ‘eliminate all the lead-based paint in the all-housing stock in New York City,’ then we wouldn’t have a problem anymore,” he said.
