By Timothy B. Wheeler, The Baltimore Sun
8:09 PM EST, March 6, 2012
With efforts to reduce lead poisoning among children at a crossroads, Maryland lawmakers are wrestling with proposals to expand state regulation of home sales, rentals and repairs to reduce youngsters' exposure to the toxic metal.
But the biggest question facing legislators might be how — or whether — to help landlords facing a flurry of lead-paint poisoning lawsuits from former tenants.
The number of young children reported poisoned by lead in Maryland has dropped 98 percent since the mid-1990s. Still, more than 500 youngsters statewide turned up with harmful levels in their blood in 2010, risking lifelong learning, behavior and other health problems.
Eight bills have been introduced in the General Assembly dealing with the contentious issue, which pits owners of rental housing against children's health advocates because most older homes contain lead-based paint. A house committee will hear six of the measures Wednesday.
"This is the most lead legislation put in in the last 20 years," said Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning. She said state action is needed now because of growing evidence that infants and toddlers can suffer lasting health effects from exposure to lead at levels below the current federal threshold.
Most of the state's poisoned children live in Baltimore, where tens of thousands of homes were built before the city barred the use of lead paint in 1950. It wasn't prohibited elsewhere until 1978.
The decline in lead poisoning cases is credited to a 1994 state law requiring landlords with pre-1950 rental housing to take care of peeling, flaking or chipping paint and have each unit inspected before a new tenant with children moves in.
Several of the bills would expand state regulation to previously unregulated rental homes, to owner-occupied home sales and even to renovations. Officials note that a growing share of the poisonings in Maryland occur in settings beyond the reach of current laws and rules.
Some of the measures would:
•Require lead-painted windows to be replaced in any home where a child has been found to have elevated levels of the toxic metal in the blood. The law now allows for repainting or covering lead-painted surfaces.
•Expand state regulation of rental housing to cover all units built before 1978, when lead paint was banned beyond Baltimore. That would add up to 318,000 units statewide to the 123,477 now overseen by the Maryland Department of the Environment.
•Require a test for lead dust when a home built before 1978 is sold, or whenever more than minor home renovations are performed. Homebuyers now must ask for a lead-dust test, and federal regulations on home repairs require contractors only to make a visual check.
Two of the more hotly contested bills would help landlords deal with lawsuits filed by former tenants. Property owners say they are on the verge of boarding up rental units after a recent Court of Appeals ruling lifted a long-standing cap on damages for poisoning victims.
In October, the state's highest court threw out a provision of the 1994 lead-paint law that shielded property owners from legal judgments if they repaired their rental units as required. The appellate judges declared that capping landlords' payments at $17,000 per injured tenant effectively prevented poisoned children from getting their day in court to seek compensation for the harm lead poisoning did to their education and employment prospects.
Landlords in Baltimore contend they could be driven out of business by judgments, which in some cases exceeded $1 million per plaintiff. Property owners say they are unable to get insurance for lead-poisoning claims and warn that they will stop renting, depriving low-income families of affordable housing and increasing the blight of abandoned dwellings in Baltimore.
"If some resolution is not effected by the legislature, then people will have to assess what they're going to do: Are they going to board up their properties or take a chance?" said Alan Chantker, head of a real estate investment firm.
Health advocates counter that landlords have made such threats before.
"Let them put [tenants] on the street rather than poison them," said Del. Samuel I. "Sandy" Rosenberg, a Baltimore Democrat.
Del. Maggie L. McIntosh, a Baltimore Democrat who heads the House Environmental Matters Committee, submitted a bill that would create a self-insurance pool for landlords facing such lawsuits. It would set up a state-supervised compensation fund that would pay up to $200,000 on new lead poisoning claims filed after July 1, 2013.
Approved claims would be paid with fees paid into the fund by owners of rental housing built before 1978. Fees would range from $500 per unit for a landlord out of compliance with the law to $50 per unit for those deemed "lead-safe" under the state's repair and cleanup requirements. Owners of units certified free of lead would pay nothing.
The Housing Authority of Baltimore City also could participate in the self-insurance fund, McIntosh said. The agency has said that it lacks the money or insurance to pay millions of dollars in judgments and settlements to former tenants who allege that they were poisoned by lead in public housing.
But Norton objects that public funds would be used to launch the compensation fund — about $246,000 in the first year, according to legislative analysts — at a time when there isn't enough money for prevention.
Some suburban landlords also object. Lesa Hoover of the Washington-area Apartment and Office Building Association said that some of her members already have insurance and suggested that the fund might encourage more lawsuits.
Ben Frederick III, president of the Property Owners Association of Greater Baltimore, called the idea of a compensation fund "terrific" but said: "We need to slow down the abusive lawsuits."
A measure proposed by Dels. Nathaniel T. Oaks and Doyle L. Niemann, Democrats from Baltimore City and Prince George's County, respectively, would make it harder to win a lawsuit against a landlord who is in compliance with the state's lead-paint law. Under the bill, a court would presume that a child's lead poisoning did not occur in a state-regulated rental unit unless there was "clear and convincing" evidence to the contrary.
Niemann, an assistant state's attorney, called it "reasonable" to raise the standard of proof for lawsuits against property owners in the state's lead-paint program.
"You bring a child [into court] who clearly has problems, it's a very emotional sort of case,'' he said. "And then you've got the 'evil landlord.' ... It's easy for juries to side emotionally with the child."
Donald Gifford, a University of Maryland law professor who led a task force that crafted the state's 1994 lead-paint law, said he also believes that such a legal shift might be warranted, given the evidence that poisoning cases have declined since landlords began making state-mandated repairs.
But lawyers who represent children poisoned by lead decry the proposed change. Saul E. Kerpelman, who says his Baltimore law firm has 300 to 400 lead lawsuits pending, called it "a ridiculously high standard of proof," which he said would be unfair to his clients.
"If [landlords] are obeying the law, they've already fixed their houses, they're safe," Kerpelman said. He contends that state laws are not tight enough and that children still can be poisoned in a rental home deemed to be in compliance.
State lawmakers are tackling lead poisoning as the federal approach to the long-standing problem is taking contradictory tacks.
The federal Centers for Disease Control and Prevention will decide this year whether to reduce by 50 percent its threshold for diagnosing lead poisoning in young children. An advisory panel said research indicates that there is no level of lead exposure that does not pose a risk to a young child's health.
The federal change would add 200,000 children to the 250,000 considered at-risk at the current exposure threshold. In Maryland, that level would have added 3,500 children to the 500 considered poisoned by lead in 2010, according to state figures.
Meanwhile, Congress has trimmed this year's funding for the CDC's lead poisoning prevention program from more than $29 million to $2 million.
Maryland got $600,000 this year from the CDC, $350,000 of which went to the Baltimore Health Department to follow poisoned children and to educate parents and property owners. Loss of the funding would "severely impair" the city's ability to help poisoned children, said Dr. Oxiris Barbot, the city's health commissioner, in a statement.
"In a really sad way, it's one way to make the problem go away," said Rebecca Morley, executive director of the National Center for Healthy Housing in Columbia. "Stop looking for it — just at the time we're recognizing the scope of the problem is much bigger than previously thought."
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