10-144 Chapter 292 STATE OF MAINE RULES RELATING TO THE LEAD POISONING CONTROL ACT DEPARTMENT OF HEALTH & HUMAN SERVICES MAINE CENTER FOR DISEASE CONTROL & PREVENTION DIVISION OF ENVIRONMENTAL HEALTH 11 STATE HOUSE STATION AUGUSTA, MAINE 04333 Last Amended: October 20, 2012 Appropriation # 013 10A 2220 03 HHLP-F2011 10-144 Chapter 292 page ii 10-144 Chapter 292 Environmental and Occupational Health Program Division of Environmental Health Maine Center for Disease Control and Prevention Department of Health and Human Services STATE OF MAINE RULES RELATING TO THE LEAD POISONING CONTROL ACT SUMMARY STATEMENT These rules clarify requirements of the Lead Poisoning Control Act. Specifically, these rules:      Identify properties that are subject to environmental lead investigations, state the responsibilities of licensed lead inspectors and risk assessors when conducting environmental lead investigations, and describe the information, including abatement orders, that shall be provided to owners and occupants as a result of these investigations. Establish the requirements for substitute dwellings used to relocate families living in rental units at the time an environmental lead hazard is identified. Clarify the requirements for screening by health care providers and the blood lead testing program. Identify the requirements for approving health care providers, WIC and Head Start facilities to use in office blood lead testing devices and to report those results electronically to the Department. Clarify requirements for blood lead testing at the Maine Health and Environmental Testing Laboratory. BASIS STATEMENT These rules are established to protect public health by administering Maine’s Lead Poisoning Control Act. AUTHORITY 22 M.R.S., Chapter 252, §1315-A EFFECTIVE DATE The effective date of these regulations is November 24, 1993. They were last amended September 2012 Non-Discrimination Notice In accordance with Title VI of the Civil Rights Act of 1964, as amended by the civil Rights Restoration Act of 1991 (42 U.S.C. 1981, 2000e et seq.) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), the Age Discrimination Act of 1975, as amended (42 U.S.C. 6101 et seq.), Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), and Title IX of the Education Amendments of 1972, the Maine Department of Human Services does not discriminate on the basis of sex, color, national origin, disability or age in admission or access to or treatment or employment in its programs and activities. 10-144 Chapter 292 page iii TABLE OF CONTENTS SECTION 1: APPLICABILITY...............................................................................................................1 SECTION 2: VALIDITY OF LOCAL ORDINANCES..........................................................................2 SECTION 3: DEFINITIONS....................................................................................................................3 SECTION 4: ENVIRONMENTAL LEAD INVESTIGATIONS............................................................7 A. General Provisions.................................................................................................................7 B. Residential Dwellings Subject to Environmental Lead Investigations...............................7 C. Scope of Environmental Investigations.................................................................................8 D. Notice of Environmental Lead Hazards................................................................................8 E. Report to Owner and Order to Abate...................................................................................9 F. Landlord Requirements When Child Occupants are Present...........................................10 SECTION 5: SCREENING AND BLOOD LEAD TESTING REQUIREMENTS.............................11 A. General Provisions................................................................................................................11 B. Screening by Health Care Providers...................................................................................11 C. Laboratory Testing...............................................................................................................11 D. In-Office Blood Lead Testing...............................................................................................11 E. Violation................................................................................................................................13 10-144 Chapter 292 SECTION 1. page 1 APPLICABILITY This Rule applies to all:  Residential dwellings and child-occupied facilities in the State of Maine, and the owners of such properties;  All HeadStart Facilities;  All health care providers and health care facilities;  All clinics that dispense benefits of the Women, Infant and Children Special Supplemental Food Program of the Federal Child Nutrition Act of 1966. 10-144 Chapter 292 SECTION 2. page 2 VALIDITY OF LOCAL ORDINANCES Nothing in these Rules shall be construed to prevent any municipality or political subdivision from enacting or enforcing an ordinance which establishes a system of lead poisoning control that provides the same or higher standards than those provided in these regulations. 10-144 Chapter 292 SECTION 3. A. page 3 DEFINITIONS Abatement or Lead Abatement. "Abatement" or “Lead Abatement” means any measure or set of measures designed to permanently eliminate lead hazards. "Abatement" includes, but is not limited to: (1) The removal of lead-based paint and lead-contaminated dust, the permanent enclosure or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures and the removal or covering of lead-contaminated soil; and (2) All preparation, cleanup and post-abatement clearance testing activities associated with such measures. "Abatement" does not include renovation and remodeling as defined in The Department of Environmental Protection, Lead Management Regulations, 06-096 CMR Ch. 424. For purposes of this definition, "permanently" means for at least 20 years. B. Blood Lead Analysis. “Blood lead analysis” refers to the determination of the amount of lead found in the blood as determined by an analytical laboratory or a CLIA waived blood lead testing device C. Blood Lead Draw. “Blood lead draw” refers to the drawing of blood from a patient through a capillary or vein to determine lead levels. D. Blood Lead Testing. “Blood lead testing” includes the processing, analyzing and reporting of child blood lead samples. E. Child. "Child" means a person or persons up to 6 years of age. F. Child-occupied facility. "Child-occupied facility" means a building or portion of a building visited regularly by the same child, up to 6 years of age, on at least 2 different days within any week, provided that each day's visit lasts at least 3 hours, the combined weekly visit lasts at least 6 hours, and the combined annual visits last at least 60 hours. G. CLIA. “CLIA” means the Clinical Laboratory Improvements Amendments, administered by the U.S. Centers for Medicare and Medicaid Services. H. Department. "Department" means the Department of Health and Human Services, Environmental & Occupational Health Program. I. Environmental Lead Hazard. “Environmental Lead Hazard” is synonymous with the term “Lead Hazard” J. Environmental Lead Investigation. "Environmental lead investigation" means a detailed and extensive investigation to determine the probable cause of a persistent elevated blood lead level or confirmed case of lead poisoning in a child. K. Head Start Facility. “Head Start Facility” means 10-144 Chapter 292 page 4 L. Health Care Facility. “Health Care Facility” means a facility, institution or entity licensed pursuant to Maine Statute, Title 22, that offers health care to persons in Maine, including a home health care provider, hospice program and a pharmacy licensed pursuant to Maine Statute, Title 32. For the purposes of this section, “health care facility” does not include a state mental health institute, the Elizabeth Levinson Center, the Aroostook Residential Center or Freeport Towne Square. M. Health Care Program. “Health care program” refers to a program that provides services to children up to six years of age, and that provides guidance supporting well child care (such as but not limited to HeadStart and clinics that dispense benefits of the Women, Infants and Children (WIC) Special Supplemental Food Program of the federal Child Nutrition Act of 1966) N. Health Care Provider. “Health Care Provider” means a person licensed by this State to provide or otherwise lawfully providing health care or a partnership or corporation made up of those persons or an officer, employee, agent or contractor of that person acting in the course and scope of employment, agency or contract related to or supportive of the provision of health care to individuals. O. In-Office. “In-Office”, for the purpose of blood lead testing, means a location where a patient can have his or her blood drawn, analyzed and receive testing results during the same scheduled visit, so that any necessary confirmation testing can be ordered at this time, to avoid potential transportation related barriers to blood lead testing. P. Interim Controls. “Interim controls” means a set of measures designed to temporarily reduce exposure to lead-based paint hazards, including specialized cleaning, repairs, maintenance, painting, temporary containment, ongoing monitoring of lead-based paint hazards or potential hazards, and the establishment and operation of management and resident education programs. Q. Lead-based paint. "Lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or more than 0.5% by weight. R. Lead-contaminated dust. “Lead-contaminated dust” means surface dust that contains a concentration of lead equal to or exceeding 40 ug/ft2 on floors, 250 ug/ft2 on interior window sills, or 400 ug/ft2 on window troughs, based on wipe samples, and no higher than levels defined in the Department of Environmental Protection rules cited in Section 3(A) above. S. Lead-contaminated soil. “Lead-contaminated soil” means soil that contains an amount of lead that is equal to or exceeding 375 ppm in bare soil in play areas, or is equal to or exceeding 1,000 ppm in bare soil in building perimeter areas other than play areas, and no higher than levels defined in the Department of Environmental Protection rules cited in Section 3(A) above. T. Lead-contaminated water. “Lead-contaminated water” means water containing equal to or exceeding 15 ug/L (ppb) lead and no higher than levels defined in the Department of Environmental Protection rules cited in Section 3(A) above. U. Lead hazard. "Lead hazard" means any condition that may cause exposure to lead from leadcontaminated dust, lead-contaminated soil, lead-contaminated water or lead-based paint that is in poor condition as defined in the Department of Environmental Protection rules cited in Section 3(A) above. Lead-based paint in fair condition will be considered a lead hazard when affected by children’s teeth marks on chewable surfaces, or when friction or impact surfaces show signs of abrasion or impact and lead dust levels from the nearest horizontal surface are greater than or equal to the standard for lead-contaminated dust. 10-144 Chapter 292 page 5 V. Lead inspector. "Lead inspector" means a person licensed by the Maine Department of Environmental Protection to perform lead inspections. W. Lead poisoned or lead poisoning. "Lead poisoned" or "lead poisoning" means a blood lead intervention level, confirmed by a venous sample analysis, which is of 15 micrograms per deciliter (µg/dl) or greater. For purposes of these rules, the term does not refer to either a clinical or epidemiological determination of lead poisoning. X. Lead-safe. "Lead-safe" means a residential dwelling unit or child-occupied facility that contains no lead hazards. Note: Please note that proper building maintenance must be performed in order to remain lead-safe. Buildings with chipping or flaking lead- based paint do not meet the criteria of lead-safe. Y. Occupant. "Occupant" means a person who either resides in or regularly uses a dwelling, or child-occupied facility 6 or more hours per week. Z. Owner. "Owner" means any person who individually, jointly or in common with others: (1) is the chief executive officer of the municipality, school administrative unit or state agency that controls the use of publicly owned property; (2) is the mortgagee who has taken actual possession in accordance with applicable law. A mortgagee who has not taken actual possession is not the owner; or (3) is characterized by the following: (a) has legal title to any residential dwelling unit; (b) has charge, care or control of any premises as owner or agent of the owner and has authority to expend money for compliance with the state sanitary code or as an executor, an administrator, a trustee or a guardian of the estate or the holder of legal title; (c) is a real estate property manager or other entity that has the authority to fund capital or major property rehabilitation on the owner's behalf; (d) is an estate or trust of which the premises is a part or the grantor or beneficiary of an estate or trust; or (e) is the association of unit owners of a condominium or cooperative, which is considered as owner solely with respect to common areas and exterior surfaces and fixtures of that condominium or cooperative. AA. Paint. "Paint" means any substance applied to a surface as a coating, including, but not limited to, household paints, varnishes and stains. BB. Persistent elevated blood lead level. "Persistent elevated blood lead level" means a blood lead level of 10-14 µg/dl with two consecutive tests, at least 60 days apart, in a child up to 6 years of age. 10-144 Chapter 292 page 6 CC. Person. "Person" means any individual, firm, corporation, association, partnership, the state, or any political subdivision of the state. DD. Premises. "Premises" means a plotted lot or part of a plotted lot, an unplotted lot or parcel of land, including developed and undeveloped land and any structure that exists on the land, if children use the lot, parcel or structure. EE. Previous residence. “Previous residence” means any residential dwelling occupied by a child prior to the primary residence, within 3 months of the identification of the child’s persistent elevated blood lead level or confirmed case of lead poisoning. FF. Primary residence. "Primary residence" means the residential dwelling in which the child resided at the time a persistent elevated blood lead level or a confirmed case of lead poisoning is identified. GG. Residential dwelling. "Residential dwelling" means a structure, including common areas and appurtenant structures such as porches and stoops, which is used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons, including children's homes as defined in 22 M.R.S.A. §8101. HH. Secondary premises. "Secondary premises" means any residential dwellings and/or child occupied facilities in which a child up to 6 years of age lives, visits, or is at 6 or more hours per week. II. Single-Family Residence. "Single-family residence" means a residential dwelling consisting of only one dwelling unit. JJ. State lead investigator. "State lead investigator" means a lead investigator who is currently licensed by the Department of Environmental Protection as a lead inspector or risk assessor, and is employed or authorized by the Department to conduct environmental lead investigations. KK. Substitute dwelling unit. “Substitute dwelling unit” means a dwelling unit of like or similar accommodation and in like or similar location that is lead safe, to which a family with a lead poisoned child may be moved to prevent further lead exposure of the child. 10-144 Chapter 292 SECTION 4. A. page 7 ENVIRONMENTAL LEAD INVESTIGATIONS General Provisions The Lead Poisoning Control Act, 22 M.S.R. Chapter 252, specifies conditions under which the Department may perform an environmental lead inspection. Pursuant to the Act, the Department must, except in the case of an owner-occupied single-family residence, inspect any dwelling unit within the dwelling, when a lead poisoned child is found. These Rules clarify which dwellings, premises or facilities are to be inspected, and under which circumstances inspections are required, when a lead poisoned child is identified. B. Residential Dwellings Subject to Environmental Lead Investigations (1) Except in the case of an owner occupied, single family residence, a residential dwelling shall be subject to an environmental lead investigation by a state lead investigator whenever any of the following circumstances exist: (a) The primary residential dwelling or dwelling unit has a child with a confirmed case of lead poisoning. (b) There are reasonable grounds to suspect lead is either in or upon exposed surfaces in other premises. The term "other premises" includes, but not by way of limitation: (i) Secondary premises when a child's blood lead level remains elevated and no other potential sources were identified in the child's primary residence, or the child visits such secondary premises for at least 6 hours per week. (ii) Previous residences when no other potential sources were identified in the primary or secondary residences, if the parent or guardian has reported the previous residence to have paint in poor condition. (iii) New residence. In the event a child with a persistent elevated blood lead level or confirmed lead poisoning moves or temporarily relocates to a new residential dwelling, such new premises may be subject to an environmental lead investigation under the following circumstances: If (1) there is not clear evidence of a drop in the child’s blood lead level and/or (2) there are reasonable grounds to suspect that there are leadbased substances in or upon the exposed surfaces of any dwelling unit or child occupied facility. (iv) Other residential dwellings in multi-unit buildings. Whenever lead hazards are found in any residential dwelling within a multi-unit building, a State lead investigator shall conduct a lead inspection of all other multi-bedroom units and single-bedroom child-occupied units within 30 days. In the event an environmental lead hazard is identified at such a dwelling unit, the Department shall order such environmental lead hazard(s) to be abated. 10-144 Chapter 292 (c) C. page 8 The Department shall have the discretion to conduct an environmental lead investigation at the primary residence of a child with a persistent elevated blood lead level. (2) The Lead Poisoning Control Act authorizes the Department, at its discretion, to inspect an owner-occupied single-family residence whenever a lead-poisoned child has been identified as residing in or receiving care in that residence. (3) The Department, upon presenting the appropriate credentials to the owner or occupant, or a representative of either, is authorized to inspect any dwelling unit or child-occupied facility at reasonable times, for the purpose of ascertaining the presence of lead-based substances. The authorized Department representative may remove samples or objects necessary for laboratory analysis. Inspections may occur only when there are reasonable grounds to suspect that there are lead-based substances in, or upon, the exposed surfaces of any dwelling unit or child-occupied facility, upon the request of either the owner or the occupant with whom children reside, or when a case of lead poisoning has been reported. Scope of Environmental Investigations. Any residential dwelling or child occupied facility confirmed case of lead poisoning is subject to an environmental lead investigation. The Department may gather relevant information pertaining to the environmental lead investigation, including, but not by way of limitation, the following: (1) Number of units in the building; (2) Number of units rented or leased to families with children up to 6 years of age; (3) Names and telephone numbers of adult occupants of all dwelling units in a multi-unit building; (4) Age and history of the building, including any renovation in both residential dwelling units and common areas; and (5) The collection of samples of paint, soil, dust, or water as is appropriate. NOTE: 22 M.R.S. Chapter 252 §1320-A, requires the Department to conduct an investigation of any residential dwelling, other than an owner-occupied single-family residence within 30 days, if (1) a case of lead poisoning has been identified in any dwelling unit within the residential dwelling, or (2) lead based substances have been identified in any dwelling unit within the dwelling. D. Notice of Environmental Lead Hazards (1) Prior to leaving a rented or leased residential dwelling or child-occupied facility in which an environmental lead hazard has been identified, the state lead investigator shall post in a conspicuous place or places a "notice" of the existence of the environmental lead hazards. This notice may not be removed until the Department demonstrates that the identified lead hazard(s) no longer exist. In multi-unit buildings, this posting shall be positioned in a common area for all building residents to view. This notice shall remain 10-144 Chapter 292 page 9 on the residential dwelling or premise until the Department removes it, or authorizes the owner to remove it. (2) E. Advisory to Owner and Occupant. In the case of a rental unit, "a residential lead-based paint advisory" shall also be mailed to the owner and the occupant, along with the inspection report. Other residents in a multifamily building will be mailed an advisory notice if requested. The advisory must contain the following information: (a) Harmful effects of lead on children, pregnant women, and pets. (b) Prohibition on abatement of lead hazards by other than licensed individuals. (c) Summary of paint removal methods and precautions to be taken during removal. (d) Prohibition of renting the residential dwelling(s) that has been posted and the abatement of lead hazards has been ordered. Report to Owner and Order to Abate (1) Notice to Owner. The Department shall send a copy of the environmental lead investigation report to the owner of the residential dwelling premises, residential childcare facility or child-occupied facility. The report shall be sent by certified mail, return receipt requested. (2) Order to Abate. The Department shall order the owner to abate the environmental lead hazards identified in the environmental lead investigation report within thirty (30) days of receipt of notice. If the lead-based hazards cannot be removed, replaced or securely and permanently covered within 30 days, the owner, or abatement contractor, may request an extension for a reasonable period of time. The request must be made in writing to the Maine Childhood Lead Poisoning Prevention Program, and must state the work completed to date, the reason why the remaining work cannot be completed in 30 days, and an outline of an expected completion date. The Department may grant an extension to complete the abatement activity within a reasonable period of time. NOTE: In the event that the owner does not abate the residential dwelling or premises within the established time frame, or after a specified period of extension, the Manager of the MCLPPP, or authorized representative, may refer the violation to the Office of the Attorney General for legal action. (3) In the case of an owner-occupied, single family residence, the Department may, in its discretion, provide such technical assistance and guidance to the property owner as it determines appropriate to achieve a lead-safe environment in the residential dwelling unit. The Department may provide such technical assistance and guidance, in its discretion, either in lieu of, or in coordination with an enforcement action by the Department. 10-144 Chapter 292 page 10 NOTE: If the owner does not make sufficient progress within a reasonable time period to protect the lead-poisoned child, or other children, from further exposure, the Department may issue an Order to Abate and pursue with an enforcement action. F. Landlord requirements when child occupants are present (1) The owner may not evict an occupying family with children when a dwelling is determined by the Department to contain lead hazards. (2) Until the owner complies with the ordered abatement of the lead hazards in the childoccupied dwelling unit, the owner shall relocate the occupying family to a substitute dwelling unit. The owner shall be responsible for the costs of the relocation, including, but not limited to: (a) Moving expenses and (b) Any use and occupancy charges in excess of the normal monthly rent paid to the owner including security deposit and last month’s rent, if required, cost of establishing utilities at the substitute dwelling unit, utility usage charges at the vacated unit until the unit is cleared for re-occupancy, and the difference in the cost of rent between the unit containing the lead hazards and the substitute dwelling unit if the cost of the substitute unit is greater. (3) The Department may, on a case-by-case basis, waive the requirement to relocate the occupying family to a substitute dwelling unit if the Department determines that interim controls sufficiently protects the residents of the unit until full abatement of the lead hazards is achieved. (4) A vacant or vacated dwelling that has been posted for lead hazards and ordered abated may not be rented prior to the completion of the required abatement activities. 10-144 Chapter 292 page 11 SECTION 5. SCREENING AND BLOOD LEAD TEST REQUIREMENTS A. B. General Provisions (1) All health care providers must advise parents of the availability and advisability of screening their children for lead poisoning. A health care program that receives funds from the State of Maine and has a child health component must provide screening of children for lead poisoning, in accordance with rules adopted by the Department. The blood level screening and testing must be performed in accordance with this Section. (2) The Department may approve facilities to perform in office blood lead testing to reduce the barrier of blood lead testing when the patient need to travel to an offsite location (22 M.S.R.A. Chapter 252 §1319-D). The following describes the conditions under which in-office blood lead testing will be approved, including the requirements for electronic data reporting. Screening by Health Care Providers For the purposes of 22 M.S.R.A. Chapter 252 §1317-C(1), except as otherwise provided by these Rules, all health care providers shall advise parents of the availability and advisability of screening their children for lead poisoning. A health care program that receives funds from the State and has a child health component shall provide screening of children for lead poisoning, in accordance with these Rules. Screening in this context is defined as use of the “lead poisoning risk assessment tool” as described in 22 M.S.R.A. Chapter 252 §1317-D(1) and appropriate follow up should blood lead testing be appropriate. C. Laboratory Testing: Except as hereinafter provided by these Rules, a blood sample taken from a child, by a health care provider or laboratory to test for blood lead levels should be sent to the State of Maine Health and Environmental Testing Laboratory for analysis. This requirement includes all venous draw blood lead and all capillary blood lead draws, D. In-Office Blood Lead Testing (1) The Department may approve In-Office blood lead testing in locations where the patient can have a blood sample drawn, analyzed and receive the results of the analysis all during the same office visit. (2) CLIA waived in-office lead analyzing devices are the only blood lead analyzers approved for this purpose. Health care providers will be responsible for purchasing their own devices and supplies and maintaining the analyzer in compliance with the manufacturers’ instructions. (3) Electronic Reporting Requirements (a) All in-office blood lead test results (whether elevated or not) on children prior to their sixth birthday shall be reported to the Department within 48 hours. If blood lead results are elevated or require confirmation, venous blood lead testing through the State of Maine Health and Environmental Testing Laboratory is required. 10-144 Chapter 292 page 12 (b) In-office blood lead test results will be reported to the Department using a blood lead module through the ImmPact2 immunization registry. If ImmPact2 does not have lead reporting capability, the Department will make available either an alternate secure web based or email form or fax based form until such time as ImmPact2 has blood lead reporting capability. (c) Approval of facilities for in-office blood lead testing (i) (ii) Health care providers, Head Start facilities, and clinics that dispense benefits of the Women, Infants and Children Special Supplemental Food Program of the federal Child Nutrition Act of 1966, must be approved by the Department before a CLIA waived in office lead analyzing device, can be used. Approval will occur every two years on the same timeline as paying the two year CLIA Waiver certificate fee. Approval will be based on meeting the intent of the legislation which is to address barriers to blood lead testing based on a patient having to travel to an offsite location to have blood drawn. Approval will depend on:  Current use of the ImmPact2 Immunization Registry;  Submission of a short description of the protocol for a patient whose blood lead is being tested during a single visit and the reporting of that data to the Department. Head Start facilities and clinics that dispense benefits of the Women, Infants and Children Special Supplemental Food Program of the Federal Child Nutrition Act of 1966, are required to describe the protocol for electronic submission of data to both the Department and the provider.  A copy of the CLIA waiver certificate. Denial and review a. If an application is denied, the Department will report the reasons for the denial and any deficiencies identified can be corrected and the facility can reapply. b. Reasons for denial may include: 1. Need for the patient to leave the health care providers offices to have blood drawn and reported to the patient. 2. Lack of access to draw blood and report results to the patient within a single visit. 3. Lack of access to ImmPact2 for the purpose of reporting blood lead results to the Department. 4. Lack of CLIA waiver certificate. 10-144 Chapter 292 5. E. page 13 Not reporting blood lead test results (evaluated upon 2 year review). Violation In addition to any other penalties provided by Title 22 M.R.S., Chapter 252, any person who violates these rules is subject to a fine not to exceed $500, or imprisonment not to exceed six months, or both, in accordance with the provisions of 22 M.R.S. §1325. Each violation of these rules shall be considered a separate violation. EFFECTIVE DATE: November 24, 1993 EFFECTIVE DATE (ELECTRONIC CONVERSION): May 5, 1996 AMENDED: January 19, 2004 - filing 2004-16 October 20, 2012 – filing 2012-287