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  • By Lee E. Wasserman, LEW Corporation

Lead poisoning and your regulatory responsibilities

As a 25-year, nationally respected subject expert, I strongly believe that my predictions of the future of Lead Poisoning claims and liabilities has a very strong probability of playing out as detailed below. For years you and your property have had a series of regulatory responsibilities with your pre-1978 portfolio of residential properties that have not achieved Lead-Based Paint Free Certification. These existing lead paint regulations will now be coupled with some NEW notices & regulations from HUD that are in motion and gaining national momentum! The below recent HUD changes and other Governmental Lead Paint & Lead Hazard regulatory requirements are potentially going to collide with one another. These local regulatory responsibilities will most likely become the universal catalyst to identify a substantial number of children with Elevated Blood Lead Levels. This increased identification of children with Lead Poisoning will most likely create a corresponding increase in the number of families filing lawsuits for lead poisoning. If litigation or claims related to Lead Poisoning increase, my instinct tells me that insurance providers will pass on costs to the insured and lenders will take steps to protect their risk taking practices. Here are the details: 1) 2012 CDC Advisory board recommends 5ug/dl as the “Reference Value” 2) Flint MI – Lead in water fiasco 3) HUD issued Notice H2016-10 for REAC Inspectors. 4) HUD issued Amendment to 24 CFR Part 35 – 5ug/dl & Elevated Blood Lead investigation. 5) CDC issued 5-year advisory panel’s most recent report. 6) Gov. Chris Christie, signed mandatory lead in water testing in schools, ($10,000,000 issued). 7) Gov. Chris Christie, signed law lowering NJ Elevated Blood Lead level to 5ug/dl. 8) Lawyer( discussed low-income properties, stating that they are good targets for lead poisoning litigation. 9) NYC Housing Authority, accused of falsifying Lead testing data for over two decades (20yrs)( 10) August 10, 2017 HUD issued Notice PIH 2017-13 (OHHLHC 2017-1), which details responsibilities of what a HUD federally subsidized housing program must do to comply with a child with a 5ug/dl or greater. 11) NJ DOH issues amended regulation NJAC 8:51 (09/18/2017) effectively immediately. NJAC 8:51 detailed what the NJ Department of Health programs must do once a child with a 5ug/dl or greater is identified. I have observed the following: • CDC lowered the level of what is considered an Elevated Blood Lead level (Lead Poisoned) and calls it a Reference Value (0.5ug/dl). NYC DOH and other programs begin to advise parents of levels >5ug/dl via written letter to occupants only. • Flint, MI enters into Lead Poisoning Litigation for failure to properly manage the city’s potable water and potentially poisons hundreds of its residents. • During this time, the HUD Office of Healthy Homes and Lead Hazard Control submits to Office of Management and Budget a request for changes to 24 CFR Part 35-HUD’s Lead Safe Housing Rule. HUD issues Notice H2016-10 advising all HUD REAC inspectors to begin to request proof of Lead regulation(s). • In early 2017, OMB publishes HUD’s OHHLHC 24 CFR Part 35 changes. • New Jersey Gov. C. Christie, under the pressure of Flint, signed law and appropriated $10,000,000 to all NJ schools for lead in water testing. • On 2/06/2017 Gov. Christie signed a law to lower the Blood Lead level of intervention in NJ from a previous single venial blood lead level of 15ug/dl or greater; or two back-to-back blood lead levels of >10ug/dl. • As 5ug/dl is considered an Elevated Blood Lead Level, coupled with the total accessibility worldwide to inhale or ingest such low levels of Lead, the numbers of poisoned kids is going up and related litigation claims will most likely be increasing. • Per CDC, 1:53 children <6yrs of age will be identified with a blood lead level of 5ug/dl and greater. With this kind of increase in potential elevated Blood Lead levels, I have to believe, Lead Poisoning cases will increase, which will have an impact on the insurance companies claims/losses, whereby insurance underwriters will have to adjust in some way their insurance practices (increase premiums, increase deductibles, don’t write/cover). Once insurance companies modify their risk factors and fee schedules, lenders will most likely follow suit. If you have lead paint in or on your property or you do not know, NOW is a good time to evaluate, to catch up on regulatory compliance, and to make sure you are properly insured! The answer is hiring a very knowledgeable and competent consultant who can assess the risk areas, regulatory compliance, and offer a simple solution to rectify or eliminate the areas of lead poisoning risk. Lee E. Wasserman is president of LEW Corporation – National Lead subject expert 1-800-783-0567.

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