By Van de Putte H.B. No. 7
74R1298 KLL-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the identification of children suffering from lead
1-3 poisoning and to control measures for lead contamination; providing
1-4 civil penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle D, Title 2, Health and Safety Code, is
1-7 amended by adding Chapter 88 to read as follows:
1-8 CHAPTER 88. CHILDHOOD LEAD POISONING PREVENTION
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 88.001. SHORT TITLE. This chapter may be cited as the
1-11 Childhood Lead Poisoning Prevention Act.
1-12 Sec. 88.002. DEFINITIONS. In this chapter:
1-13 (1) "Authorized agent" means an employee of the
1-14 department appointed by the commissioner to enforce this chapter.
1-15 (2) "Child care" includes a school, preschool,
1-16 kindergarten, nursery school, or other similar activity that
1-17 provides care or instruction for young children.
1-18 (3) "Child care facility" means a public place or a
1-19 residence in which a person furnishes child care.
1-20 (4) "Health authority" means a physician appointed as
1-21 such under Chapter 121.
1-22 (5) "Health professional" means an individual whose:
1-23 (A) vocation or profession is directly or
1-24 indirectly related to the maintenance of health in another
2-1 individual; and
2-2 (B) duties require a specified amount of formal
2-3 education and may require a special examination, certificate or
2-4 license, or membership in a regional or national association.
2-5 (6) "Lead" includes metallic lead and lead-containing
2-6 materials.
2-7 (7) "Lead poisoning" means the presence of blood lead
2-8 concentrations known to be associated with mental and physical
2-9 disorders due to absorption, ingestion, or inhalation of lead as
2-10 specified in the most recent criteria issued by the United States
2-11 Department of Health and Human Services, United States Public
2-12 Health Service, Centers for Disease Control of the United States
2-13 Public Health Service, or other national public health organization
2-14 specified by board rule.
2-15 (8) "Local health department" means a department
2-16 created under Chapter 121.
2-17 (9) "Other benefit" means a benefit, other than a
2-18 benefit under this chapter, to which an individual is entitled for
2-19 payment of the costs of services and includes:
2-20 (A) benefits available under:
2-21 (i) an insurance policy, group health
2-22 plan, or prepaid medical care plan;
2-23 (ii) Title XVIII of the Social Security
2-24 Act (42 U.S.C. Section 1395 et seq.);
2-25 (iii) Title XIX of the Social Security Act
2-26 (42 U.S.C. Section 1396 et seq.);
2-27 (iv) the Veterans Administration;
3-1 (v) the Civilian Health and Medical
3-2 Program of the Uniformed Services; and
3-3 (vi) workers' compensation or any other
3-4 compulsory employers insurance program;
3-5 (B) benefits available under a public program
3-6 created by federal or state law or by ordinance or rule of a
3-7 municipality or political subdivision of the state, excluding
3-8 benefits created by the establishment of a municipal or county
3-9 hospital, a joint municipal-county hospital, a county hospital
3-10 authority, a hospital district, or the facilities of a publicly
3-11 supported medical school; or
3-12 (C) benefits resulting from a cause of action
3-13 for health care expenses, or a settlement or judgment based on the
3-14 cause of action, if the expenses are related to the need for
3-15 services provided under this chapter.
3-16 (10) "Owner" means a person who, alone, jointly, or
3-17 severally with others, has title to any residence or residential
3-18 unit, regardless of actual possession of the residence or unit, or
3-19 has charge, care, or control of a residence or residential unit as
3-20 owner or agent of the owner, or as executor, administrator,
3-21 trustee, or guardian of the estate of the owner. The term does not
3-22 include a bank, lending institution, mortgage company, or mortgagee
3-23 unless the mortgagee takes actual physical possession under
3-24 applicable law.
3-25 (11) "Physician" means a person licensed to practice
3-26 medicine by the Texas State Board of Medical Examiners.
3-27 (12) "Provider" means a person who, through a grant or
4-1 contract with the department or through other means approved by
4-2 board rule, furnishes program services under Subchapter C that are
4-3 purchased by the department for the purposes of this chapter.
4-4 (13) "Public health district" means a district created
4-5 under Chapter 121.
4-6 (14) "Public health region" means a geographic area of
4-7 the state designated by the board for the provision of public
4-8 health services under Chapter 121.
4-9 (15) "Public health services" has the meaning given
4-10 that term by Chapter 12.
4-11 (16) "Public place" means all or any portion of an
4-12 area, building or other structure, or conveyance that is not used
4-13 for private residential purposes, regardless of ownership.
4-14 (17) "Regional director" means a physician appointed
4-15 by the board as the chief administrative officer of a public health
4-16 region under Chapter 121.
4-17 (18) "Residence" means a building or structure, or a
4-18 portion of a building or structure, that is occupied in whole or in
4-19 part as the private home, dwelling, or sleeping place of one or
4-20 more individuals, and includes a residence that serves as a private
4-21 child care facility.
4-22 (19) "Screening test" means a rapid analytical
4-23 laboratory procedure for determining the need for further
4-24 diagnostic evaluation.
4-25 Sec. 88.003. CONFIDENTIALITY. (a) Except as specifically
4-26 authorized by this chapter, reports, records, and information
4-27 furnished to a health authority, a regional director, or the
5-1 department that relate to cases or suspected cases of childhood
5-2 lead poisoning are confidential and may be used only for the
5-3 purposes of this chapter.
5-4 (b) Reports, records, and information relating to cases or
5-5 suspected cases of childhood lead poisoning are not public
5-6 information under Chapter 552, Government Code, and may not be
5-7 released or made public on subpoena or otherwise except as provided
5-8 by this chapter.
5-9 (c) Medical, epidemiologic, or toxicologic information may
5-10 be released:
5-11 (1) for statistical purposes if released in a manner
5-12 that prevents the identification of any person;
5-13 (2) with the consent of each person identified in the
5-14 information;
5-15 (3) to medical personnel, appropriate state agencies,
5-16 health authorities, regional directors, and public officers of
5-17 counties and municipalities as necessary to comply with this
5-18 chapter and related rules relating to the:
5-19 (A) identification, diagnosis, and treatment of
5-20 children with lead poisoning and their families;
5-21 (B) testing of appropriate public places,
5-22 residences, and child care facilities for lead contamination; and
5-23 (C) remediation of public places, residences,
5-24 and child care facilities with lead contamination;
5-25 (4) to appropriate federal agencies, such as the
5-26 Centers for Disease Control of the United States Public Health
5-27 Service, except that the information must be limited to the
6-1 information requested by the agency; or
6-2 (5) to medical personnel to the extent necessary in a
6-3 medical emergency to protect the health or life of the child
6-4 identified in the information.
6-5 (d) The commissioner, a regional director or other
6-6 department employee, a health authority or employee of a public
6-7 health district, a health authority or employee of a county or
6-8 municipal health department, or a public official of a county or
6-9 municipality may not be examined in a civil, criminal, special, or
6-10 other proceeding as to the existence or contents of pertinent
6-11 records of, or reports or information about, a child identified,
6-12 examined, or treated for lead poisoning by the department, a public
6-13 health district, a local health department, or a health authority
6-14 without the consent of the child's parents, managing conservator,
6-15 guardian, or other person authorized by law to give consent.
6-16 Sec. 88.004. CONTRACTS; AGREEMENTS. The department may
6-17 enter into contracts or agreements as necessary to implement this
6-18 chapter. The contracts or agreements may provide for payment by
6-19 the state for materials, equipment, services, and space rental.
6-20 Sec. 88.005. FUNDS. Subject to any limitations or
6-21 conditions prescribed by the legislature, the board and the
6-22 department may seek, receive, and spend appropriations, fees,
6-23 grants, or donations to carry out the purposes of this chapter,
6-24 including:
6-25 (1) the prevention of childhood lead poisoning;
6-26 (2) the identification, investigation, or treatment of
6-27 cases or suspected cases of childhood lead poisoning; and
7-1 (3) the inspection of public places, residences, and
7-2 child care facilities suspected or known to be contaminated by lead
7-3 and to be the cause or suspected cause of childhood lead poisoning.
7-4 Sec. 88.006. LIMITATION ON LIABILITY. An individual
7-5 performing duties in compliance with orders or instructions of the
7-6 department or a health authority issued under this chapter is not
7-7 liable for the death of or injury to an individual or for damage to
7-8 property, except in a case of wilful misconduct or gross
7-9 negligence.
7-10 Sec. 88.007. COOPERATION OF GOVERNMENTAL ENTITIES. Any
7-11 governmental entity capable of assisting the department in carrying
7-12 out this chapter may cooperate with the department and furnish its
7-13 expertise, services, and facilities.
7-14 Sec. 88.008. PUBLIC EDUCATION. The department may institute
7-15 a public education effort to inform the public of the dangers,
7-16 frequency, and sources of lead contamination that lead to childhood
7-17 lead poisoning and of the methods of preventing childhood lead
7-18 poisoning. The education effort may target persons in areas of
7-19 significant exposure to sources of lead poisoning, including
7-20 parents, teachers, social workers, other human services personnel,
7-21 owners of residential property, and health care personnel.
7-22 Sec. 88.009. RESEARCH AND DEVELOPMENT; APPROVAL OF NEW
7-23 METHODS TO ABATE LEAD. (a) The department may investigate,
7-24 develop, field test, and approve new methods of removing, covering,
7-25 or otherwise abating paint, plaster, or other materials that
7-26 contain dangerous levels of lead to encourage and facilitate the
7-27 remediation of residences with greater efficiency, safety, and
8-1 economy.
8-2 (b) The department may consult with the appropriate state
8-3 and federal agencies before field testing or approving new methods
8-4 of lead abatement to ensure that the methods are consistent with
8-5 laws and regulations that address the occupational safety and
8-6 health of workers in lead abatement operations.
8-7 (c) The department may contract with persons to support
8-8 research and development of the new methods.
8-9 Sec. 88.010. DELEGATION. (a) The board by rule may
8-10 delegate a power or duty imposed on the commissioner by this
8-11 chapter to a designee of the board, including the power or duty to
8-12 order or to render a final administrative decision.
8-13 (b) A health authority may, unless otherwise restricted by
8-14 law, delegate a power or duty imposed on the health authority to an
8-15 employee of the local health department, the local health unit, or
8-16 the public health district in which the health authority serves. A
8-17 power or duty imposed on the health authority that requires
8-18 independent medical judgment must be delegated in accordance with
8-19 Chapter 121 and only to a properly qualified physician while the
8-20 health authority is absent or incapacitated.
8-21 Sec. 88.011. RULES. (a) The board may adopt substantive
8-22 and procedural rules necessary to implement this chapter.
8-23 (b) Substantive rules adopted by the board shall impose
8-24 obligations, rights, and remedies for residence owners and
8-25 occupants that are substantively the same as any federal
8-26 regulations relating to lead contamination.
8-27 (Sections 88.012-88.020 reserved for expansion
9-1 SUBCHAPTER B. REPORTS OF CHILDHOOD LEAD POISONING
9-2 Sec. 88.021. REPORTABLE HEALTH CONDITIONS. (a) Early
9-3 childhood lead poisoning is a reportable health condition.
9-4 (b) The board by rule may designate:
9-5 (1) blood lead concentrations in children that must be
9-6 reported; and
9-7 (2) the ages of children for whom the reporting
9-8 requirements apply.
9-9 (c) The board may adopt rules that establish a registry of
9-10 children with lead poisoning.
9-11 Sec. 88.022. PERSONS REQUIRED TO REPORT. (a) A person
9-12 required to report early childhood lead poisoning shall report to
9-13 the department in the manner specified by board rule. Except as
9-14 provided by this section, a person required by this section to
9-15 report must make the report immediately after the person gains
9-16 knowledge of the case or suspected case of childhood lead
9-17 poisoning.
9-18 (b) A physician shall report a case or suspected case of
9-19 childhood lead poisoning after the physician's first examination of
9-20 a child for whom reporting is required by board rule.
9-21 (c) A person in charge of an independent clinical
9-22 laboratory, a hospital or clinic laboratory, or other facility in
9-23 which a laboratory examination of a specimen derived from the human
9-24 body yields evidence of childhood lead poisoning shall report the
9-25 findings to the department as required by board rule.
9-26 (d) If a report is not made as required by Subsection (b) or
9-27 (c), the following persons shall report a case or suspected case of
10-1 childhood lead poisoning and all information known concerning the
10-2 child:
10-3 (1) the administrator of a hospital licensed under
10-4 Chapter 241;
10-5 (2) a professional registered nurse;
10-6 (3) an administrator or director of a public or
10-7 private child care facility;
10-8 (4) an administrator of a home health agency;
10-9 (5) an administrator or health official of a public or
10-10 private institution of higher education;
10-11 (6) a superintendent, manager, or health official of a
10-12 public or private camp, home, or institution;
10-13 (7) a parent, managing conservator, guardian, or
10-14 residence owner; and
10-15 (8) a health professional.
10-16 Sec. 88.023. REPORTING PROCEDURES. (a) The board shall
10-17 prescribe the form and method of reporting under this chapter,
10-18 including a report in writing, by telephone, or by electronic data
10-19 transmission.
10-20 (b) Board rules may require the reports to contain any
10-21 information relating to a case that is necessary for the purposes
10-22 of this chapter, including:
10-23 (1) the child's name, address, age, sex, and race;
10-24 (2) the child's blood lead concentration;
10-25 (3) the procedure used to determine the child's blood
10-26 lead concentration; and
10-27 (4) the name of the attending physician.
11-1 (c) The commissioner may authorize an alternate routing of
11-2 information in particular cases if the commissioner determines that
11-3 the customary reporting procedure would cause the information to be
11-4 unduly delayed.
11-5 Sec. 88.024. REPORTS OF HOSPITALIZATION; DEATH. (a) A
11-6 physician who attends a child during the child's hospitalization
11-7 shall immediately notify the department if the physician knows or
11-8 suspects that the child has lead poisoning and the physician
11-9 believes the lead poisoning resulted from the child's exposure to a
11-10 dangerous level of environmental lead that may be a threat to the
11-11 public health.
11-12 (b) A physician who attends a child during the child's last
11-13 illness shall immediately notify the department if the physician:
11-14 (1) knows or suspects that the child died of lead
11-15 poisoning; and
11-16 (2) believes the lead poisoning resulted from the
11-17 child's exposure to a dangerous level of environmental lead that
11-18 may be a threat to the public health.
11-19 (c) An attending physician, health authority, or regional
11-20 director, with the consent of the child's survivors, may request an
11-21 autopsy if the physician, health authority, or regional director
11-22 needs further information concerning the cause of death in order to
11-23 protect the public health. The health authority or regional
11-24 director may order the autopsy to determine the cause of death if
11-25 the child's survivors do not consent to the autopsy. The autopsy
11-26 results shall be reported to the department.
11-27 (d) A justice of the peace acting as coroner or a medical
12-1 examiner in the course of an inquest under Chapter 49, Code of
12-2 Criminal Procedure, who finds that a child's cause of death was
12-3 lead poisoning that resulted from exposure to a dangerous level of
12-4 environmental lead that the justice of the peace or medical
12-5 examiner believes may be a threat to the public health shall
12-6 immediately notify the health authority or the regional medical
12-7 director in the jurisdiction in which the finding is made.
12-8 (Sections 88.025-88.040 reserved for expansion
12-9 SUBCHAPTER C. CHILDHOOD LEAD SCREENING
12-10 PROGRAM SERVICES
12-11 Sec. 88.041. COORDINATION OF PROGRAM SERVICES. (a) A child
12-12 who meets the medical criteria specified by board rule may be
12-13 referred to the department's case management program for guidance
12-14 in applying for assistance provided through department programs,
12-15 the medical assistance program (Title XIX of the Social Security
12-16 Act), or other public programs.
12-17 (b) A case manager in the department shall refer a child
12-18 whose family is eligible to the medical assistance program. The
12-19 family must apply for benefits from the medical assistance program
12-20 before receiving program services provided under this chapter.
12-21 Sec. 88.042. PROGRAM SERVICES. (a) Within the limits of
12-22 funds available for this purpose and in cooperation with the
12-23 child's physician, the department may provide services directly or
12-24 through approved providers to a child who meets the eligibility
12-25 criteria specified by board rule on confirmation of a child's
12-26 positive screening test for lead poisoning.
12-27 (b) The board may adopt rules specifying the type, amount,
13-1 and duration of program services to be offered. The services may
13-2 include:
13-3 (1) one or more lead screening tests for an eligible
13-4 child and, if necessary or advisable, for other children living in
13-5 the same residence as the eligible child, attending the same child
13-6 care facility as the eligible child, or occupying for an extended
13-7 period the same public place in which the eligible child lives as
13-8 specified by board rule;
13-9 (2) a diagnostic test for lead poisoning for an
13-10 eligible child and other children in the same residence, child care
13-11 facility, or public place as the eligible child as specified by
13-12 this chapter and board rule; and
13-13 (3) environmental testing of residences, child care
13-14 facilities, and public places known to be associated with children
13-15 with lead poisoning.
13-16 (c) The board may adopt other rules, including rules:
13-17 (1) to establish the criteria for eligibility for
13-18 services, including the medical and financial criteria;
13-19 (2) to establish procedures necessary to determine the
13-20 medical, financial, and other eligibility of a child or the child's
13-21 family;
13-22 (3) for applying for program services and the
13-23 processing of applications;
13-24 (4) to provide services based on a sliding scale of
13-25 financial eligibility and to impose and collect fees for program
13-26 services;
13-27 (5) for the denial, modification, suspension, and
14-1 revocation of an individual's approval to receive services; and
14-2 (6) for approving providers to furnish program
14-3 services, with priority given to publicly supported health care
14-4 providers.
14-5 (d) The department may select providers according to the
14-6 criteria specified by board rule.
14-7 (e) The department may charge fees for the provision of
14-8 services and may require an approved provider to charge fees for
14-9 services provided under this chapter. The board by rule may:
14-10 (1) establish a range of fees that the department or
14-11 an approved provider may charge for services furnished under this
14-12 chapter;
14-13 (2) prescribe the disposition of fees collected by a
14-14 provider for services funded by the department; and
14-15 (3) require the department and a provider to provide
14-16 program services regardless of an otherwise eligible individual's
14-17 ability to pay all or part of the cost of the services.
14-18 Sec. 88.043. CONSENT. Except as otherwise provided by this
14-19 chapter, the department may not furnish program services or
14-20 authorize a provider to furnish program services without the
14-21 consent of an eligible child's parent, managing conservator, or
14-22 guardian, or another person who under the law of another state or a
14-23 court order may give consent for the child.
14-24 Sec. 88.044. DENIAL, MODIFICATION, SUSPENSION, AND
14-25 REVOCATION OF APPROVAL TO PROVIDE SERVICES. (a) After notice and
14-26 an opportunity for a fair hearing, the department may deny the
14-27 approval or modify, suspend, or revoke the approval of a person to
15-1 provide services under this subchapter.
15-2 (b) The department shall give notice and conduct the hearing
15-3 in accordance with the board's informal hearing rules.
15-4 (c) Subchapters C through H, Chapter 2001, Government Code,
15-5 and Section 2001.901, Government Code, do not apply to the notice
15-6 and hearing required by this section.
15-7 (d) This section does not apply to the revocation of
15-8 provider approval if the department restricts program services to
15-9 conform to budgetary limitations that require the board to
15-10 establish service priorities.
15-11 Sec. 88.045. FINANCIAL ELIGIBILITY FOR PROGRAM SERVICES;
15-12 OTHER BENEFITS. (a) An individual is not eligible to receive the
15-13 services authorized by this subchapter at no cost or reduced cost
15-14 to the extent that the individual or the parent, managing
15-15 conservator, or other person with a legal obligation to support the
15-16 individual is eligible for some other benefit that would pay for
15-17 all or part of the services.
15-18 (b) The department may waive ineligibility under Subsection
15-19 (a) if the department finds that:
15-20 (1) good cause for the waiver is shown; and
15-21 (2) enforcement of the requirement would tend to
15-22 defeat the purpose of this chapter or disrupt the administration or
15-23 prevent the provision of services to an otherwise eligible
15-24 recipient.
15-25 (c) When an application for services is filed or at any time
15-26 that an individual is eligible for or receiving services, the
15-27 applicant or recipient shall inform the department of any other
16-1 benefit to which the applicant, recipient, or person with a legal
16-2 obligation to support the applicant or recipient may be entitled.
16-3 (d) The board by rule shall provide criteria for actions
16-4 taken under this section.
16-5 Sec. 88.046. DENIAL, MODIFICATION, SUSPENSION, AND
16-6 REVOCATION OF ELIGIBILITY TO RECEIVE SERVICES. (a) After notice
16-7 to the child's parent, managing conservator, guardian, or other
16-8 person who is legally obligated to support the child and an
16-9 opportunity for a fair hearing, the department may deny, modify,
16-10 suspend, or revoke the determination of a child's eligibility to
16-11 receive services at no cost or at reduced cost under this
16-12 subchapter.
16-13 (b) Notice shall be given and a hearing conducted in
16-14 accordance with the board's informal hearing rules.
16-15 (c) Subchapters C through H, Chapter 2001, Government Code,
16-16 and Section 2001.901, Government Code, do not apply to the notice
16-17 and hearing required by this section.
16-18 (d) This section does not apply to a revocation of
16-19 eligibility if the department restricts program services to conform
16-20 to budgetary limitations that require the board to establish
16-21 service priorities.
16-22 Sec. 88.047. REIMBURSEMENT. (a) The board may require a
16-23 child's parent, managing conservator, guardian, or other person who
16-24 is legally obligated to support the child to pay or reimburse the
16-25 department or an approved provider, as appropriate, for all or part
16-26 of the cost of the services provided.
16-27 (b) The recipient or parent, managing conservator, or other
17-1 person with a legal obligation to support a child who has received
17-2 the services from the department that are covered by some other
17-3 benefit shall, when the other benefit is received, reimburse the
17-4 department for the cost of services provided.
17-5 Sec. 88.048. RECOVERY OF COSTS. (a) The department is
17-6 entitled to recover an expenditure for services provided under this
17-7 chapter from:
17-8 (1) a person who does not pay a fee for services
17-9 assessed by the department or an approved provider;
17-10 (2) a person who does not reimburse the department or
17-11 an approved provider as required by this subchapter; or
17-12 (3) a third party with a legal obligation to pay other
17-13 benefits and who has notice of the department's or provider's
17-14 interests in the other benefits.
17-15 (b) This section creates a separate and distinct cause of
17-16 action, and the commissioner may request the attorney general to
17-17 bring suit in the appropriate court of Travis County on behalf of
17-18 the department.
17-19 (c) In a judgment in favor of the department, the court may
17-20 award attorney's fees, court costs, and interest accruing from the
17-21 date on which the department provides the service to the date on
17-22 which the department is reimbursed.
17-23 (d) The board by rule shall provide criteria for actions
17-24 taken under this section.
17-25 (Sections 88.049-88.070 reserved for expansion
17-26 SUBCHAPTER D. INSPECTIONS AND INVESTIGATIONS
17-27 Sec. 88.071. INVESTIGATIONS. (a) The department may
18-1 investigate the causes of childhood lead poisoning, the sources of
18-2 lead contamination, and methods to prevent poisoning and
18-3 environmental contamination.
18-4 (b) The department may require special investigations of
18-5 specified cases of childhood lead poisoning to evaluate the status
18-6 in this state of lead contamination in public buildings and private
18-7 residences. Each health authority shall provide information on
18-8 request according to the department's written instructions.
18-9 (c) The department may investigate the existence of
18-10 childhood lead poisoning in the state to determine the nature and
18-11 extent of the condition and to formulate and evaluate the control
18-12 measures used to protect the public health.
18-13 (d) A person shall provide records, including physician and
18-14 hospital patient records, or make those records available to
18-15 authorized agents for inspection and shall provide other
18-16 information to the department on request according to the
18-17 department's written instructions.
18-18 Sec. 88.072. WITNESSES; DOCUMENTS. (a) For the purpose of
18-19 an investigation under Section 88.071, the department may
18-20 administer oaths, summon witnesses, and compel the attendance of a
18-21 witness or the production of a document, including a physician or
18-22 hospital patient record. The department may request the assistance
18-23 of a county or district court to compel the attendance of a
18-24 summoned witness or the production of a requested document at a
18-25 hearing.
18-26 (b) A witness or deponent who is not a party and who is
18-27 subpoenaed or otherwise compelled to appear at a hearing or
19-1 proceeding under this section conducted outside the witness's or
19-2 deponent's county of residence is entitled to a travel and per diem
19-3 allowance in an amount set by board rule, but not to exceed the
19-4 travel and per diem allowance authorized for state employees
19-5 traveling in this state on official business.
19-6 Sec. 88.073. SAMPLES. (a) A person authorized to conduct
19-7 an investigation under this subchapter may take samples of
19-8 materials present on the premises, including air, water, soil,
19-9 paint, plaster, other building materials and household goods.
19-10 (b) A person who takes a sample under this section shall
19-11 offer a corresponding sample to the person in control of the
19-12 premises for independent analysis.
19-13 (c) A person who takes a sample under this section may
19-14 reimburse or offer to reimburse the owner for the materials taken.
19-15 The reimbursement may not exceed the actual monetary loss to the
19-16 owner.
19-17 (d) Lead content of samples taken by inspectors and
19-18 investigators, and the samples given to the person in control of
19-19 the premises, must be determined as specified by board rule.
19-20 Sec. 88.074. INSPECTION. The commissioner, the
19-21 commissioner's designee, a health authority, or a health
19-22 authority's designee may enter at reasonable times and inspect
19-23 within reasonable limits a public place in the performance of that
19-24 person's duty to prevent or control childhood lead poisoning in
19-25 this state by enforcing this chapter or board rules adopted under
19-26 this chapter.
19-27 Sec. 88.075. RIGHT OF ENTRY. For an investigation or
20-1 inspection, the commissioner, the commissioner's designee, a health
20-2 authority, or the health authority's designee has the right of
20-3 entry on land or in a building, vehicle, watercraft, or aircraft
20-4 and the right of access to an individual or object that is in
20-5 detention or restriction instituted under state or federal law by
20-6 the commissioner or a health authority or instituted voluntarily on
20-7 instructions of a private physician.
20-8 Sec. 88.076. INSPECTIONS AND INVESTIGATIONS OF RESIDENCE.
20-9 (a) If the commissioner or a health authority receives information
20-10 about a case of childhood lead poisoning reported under Subchapter
20-11 B, detected under Subchapter C, or identified by other means, the
20-12 commissioner or health authority may order an inspection and
20-13 investigation of the residence in which the child lives or has
20-14 recently lived or the child care facility which the child attends
20-15 or has recently attended if the adult occupants of the residence
20-16 consent to the inspection and investigation.
20-17 (b) If the occupants of the residence do not consent, the
20-18 commissioner, the commissioner's designee, or a health authority
20-19 may apply to a magistrate of a court of competent jurisdiction for
20-20 a health officer's search warrant under Article 18.05, Code of
20-21 Criminal Procedure, to authorize the inspection or investigation of
20-22 the residence and its contents for the purpose of determining the
20-23 sources of lead contamination that gave rise to the case of
20-24 childhood lead poisoning.
20-25 (c) Inspectors must immediately report the results of the
20-26 inspection and investigation to the commissioner and health
20-27 authority.
21-1 Sec. 88.077. PROBABLE CAUSE. For purposes of Section
21-2 88.076, the showing of evidence of probable cause required to
21-3 obtain a health officer's warrant under Article 18.05(b), Code of
21-4 Criminal Procedure, may be met by showing that a child with a
21-5 confirmed case of lead poisoning lives or recently lived in the
21-6 residence or attends or recently attended the child care facility.
21-7 Sec. 88.078. LEAD CONTAMINATION; NOTICE. If the level of
21-8 lead contamination in a residence, child care facility, or public
21-9 place is sufficient to cause childhood lead poisoning, the
21-10 commissioner or the health authority shall immediately notify the
21-11 owner of the building or structure, all affected tenants, all
21-12 mortgagees and lienholders of record, and the code enforcement
21-13 officers of the jurisdiction in which the residence, child care
21-14 facility, or public place is located.
21-15 Sec. 88.079. ADDITIONAL TESTING OF CHILDREN. (a) When a
21-16 level of lead contamination specified by board rule is found in a
21-17 residence, child care facility, or public place, the commissioner,
21-18 or the health authority with the concurrence of the commissioner,
21-19 may order the screening for lead poisoning of all children younger
21-20 than six years of age, and other children if the commissioner
21-21 considers it advisable, who live or have recently lived in the
21-22 residence, who attend or have recently attended the child care
21-23 facility, or who routinely occupy or occupied the public place.
21-24 (b) If sufficient resources are available, the department or
21-25 an approved provider, in conjunction with the attending physicians,
21-26 may assist in the screening by providing direct screening services
21-27 to the affected children as a program service under Subchapter C.
22-1 (c) All cases or suspected cases of lead poisoning
22-2 identified under this section shall be reported to the child's
22-3 attending physician and the department.
22-4 Sec. 88.080. QUARANTINE. (a) In addition to the notices
22-5 required by Section 88.078, if the commissioner, or a health
22-6 authority with the concurrence of the commissioner, has reasonable
22-7 cause to believe that a residence, child care facility, or public
22-8 place routinely occupied by children who belong to a class for whom
22-9 reporting or screening is required or authorized by Subchapter B or
22-10 C is or may be contaminated with dangerous concentrations of lead,
22-11 the commissioner, or the health authority with the concurrence of
22-12 the commissioner, may place the residence, child care facility, or
22-13 public place in quarantine for the period necessary for a medical
22-14 examination or technical analysis of samples taken from the
22-15 property to determine if the property is contaminated. The
22-16 commissioner or health authority may post a quarantine notice on
22-17 the residence, child care facility, or public place stating there
22-18 are possible dangerous levels of lead contamination.
22-19 (b) The department or health authority shall send notice of
22-20 the quarantine notice by registered or certified mail to the person
22-21 who owns or controls the residence, child care facility, or public
22-22 place.
22-23 (c) The department or health authority shall remove the
22-24 quarantine notice and return control of the residence, child care
22-25 facility, or public place to the person who owns or controls it if
22-26 the property is found not to be contaminated with a dangerous level
22-27 of lead. After a thorough inspection and investigation, if the
23-1 residence, child care facility, or public place is found to be
23-2 contaminated with a dangerous level of lead, the commissioner, or a
23-3 health authority with the concurrence of the commissioner, by
23-4 written order may require the owner of the property to impose lead
23-5 abatement measures to decontaminate the residence, child care
23-6 facility, or public place.
23-7 (d) The commissioner or health authority shall order the
23-8 removal of the quarantine notice and return control of the property
23-9 to the owner if the lead abatement measures are completed and the
23-10 work product meets the standards set by board rule. If the lead
23-11 abatement measures are ineffective or if there is not a technically
23-12 feasible abatement measure available for use, the department or
23-13 health authority may continue the quarantine and order the person
23-14 who owns the residence, child care facility, or public place:
23-15 (1) if the property is suitable for use only by
23-16 children who are in a class specified by board rule, to destroy the
23-17 property, other than land, in a manner that decontaminates the
23-18 property to prevent the spread of contamination;
23-19 (2) if the property is land, to securely fence the
23-20 perimeter of the land or any part of the land that is contaminated
23-21 to prevent entry by children who are in a class specified by board
23-22 rule; or
23-23 (3) to securely seal off a contaminated structure or
23-24 other property on land to prevent entry into the contaminated area
23-25 by children in a class specified by board rule until the quarantine
23-26 is removed by the board or health authority.
23-27 (e) The commissioner or health authority may petition the
24-1 county or district court of the county in which the property is
24-2 located for orders necessary to protect the public health if:
24-3 (1) a person fails or refuses to comply with the
24-4 orders of the commissioner or health authority as required by this
24-5 section; and
24-6 (2) the commissioner or health authority has reason to
24-7 believe that the property is or may be contaminated with lead to
24-8 the extent that it presents an immediate threat to the public
24-9 health.
24-10 (f) After the filing of a petition, the court may grant a
24-11 temporary restraining order or a mandatory or prohibitory temporary
24-12 or permanent injunction for the health and safety of the public.
24-13 (g) The person who owns property shall pay all expenses of
24-14 implementing lead abatement measures, court costs, storage, and
24-15 other justifiable expenses. The court may require the person who
24-16 owns the property to execute a bond in an amount set by the court
24-17 to ensure the performance of any lead abatement measures,
24-18 restoration, or destruction ordered by the court. If the property
24-19 is an object, the bond may not exceed the value of the object in
24-20 its noncontaminated state. The bond shall be returned to the
24-21 person when the department or health authority informs the court
24-22 that the property is no longer contaminated or that the property
24-23 has been destroyed.
24-24 (h) If the court finds that the property is not
24-25 contaminated, it shall order the department or health authority to:
24-26 (1) remove the quarantine;
24-27 (2) if the property is an object, remove the
25-1 quarantine tags; and
25-2 (3) release the property to the person who owns or
25-3 controls it.
25-4 (i) The department or health authority, as appropriate,
25-5 shall charge the owner of the property for the cost of any
25-6 abatement measures performed by the department's or health
25-7 authority's employees. The department shall deposit the payments
25-8 received to the credit of the general revenue fund to be used for
25-9 the administration of this chapter. A health authority shall
25-10 distribute payments received to each county, municipality, or other
25-11 jurisdiction in an amount proportional to the jurisdiction's
25-12 contribution to the quarantine and control expense.
25-13 (j) In this section, "property" means:
25-14 (1) an object;
25-15 (2) a parcel of land; or
25-16 (3) a structure or other property on a parcel of land.
25-17 (Sections 88.081-88.100 reserved for expansion
25-18 SUBCHAPTER E. CONTROL MEASURES FOR RESIDENTIAL LEAD
25-19 CONTAMINANTS; EMERGENCY LEAD CONTAMINATION
25-20 AREAS
25-21 Sec. 88.101. DEFINITION. In this subchapter, "residence,"
25-22 as defined by Section 88.002, includes the soil surrounding the
25-23 residence and attached or adjacent garages, sheds, barns, and other
25-24 outbuildings.
25-25 Sec. 88.102. CHILDREN COVERED. This subchapter covers
25-26 children who are younger than six years of age.
25-27 Sec. 88.103. OWNER'S DUTY TO ABATE LEAD CONTAMINATION OF
26-1 RESIDENCE. (a) On the order of the commissioner or a health
26-2 authority, the owner of a residence that the commissioner finds to
26-3 be contaminated with dangerous levels of lead shall remove or cover
26-4 the lead to make it inaccessible to children if:
26-5 (1) a child who is at significant risk of lead
26-6 poisoning or repoisoning occupies or will occupy the residence for
26-7 at least a period of time specified by board rule; or
26-8 (2) a child of any age who has demonstrated pica or
26-9 whose cognitive development is delayed or retarded resides in or
26-10 will reside in the residence.
26-11 (b) If a residence that is contaminated with dangerous
26-12 levels of lead undergoes a change of ownership and as a result of
26-13 the change of ownership a child will become a resident, the new
26-14 owner shall remove or cover the lead to make it inaccessible to
26-15 children as required by this section and board rules.
26-16 Sec. 88.104. LETTER OF COMPLIANCE. When the residence meets
26-17 the remediation standards specified by board rule, the owner may
26-18 obtain a letter of compliance from a lead inspector licensed by the
26-19 department, or if the department does not license those inspectors,
26-20 an inspector with the training and experience in residential lead
26-21 inspection specified by board rule.
26-22 Sec. 88.105. OCCUPANCY PROHIBITED. Except as specified by
26-23 board rule, a child may not occupy a residence or a residential
26-24 unit contaminated with dangerous levels of lead until remediation
26-25 is complete and an inspector has issued a letter of compliance to
26-26 the owner.
26-27 Sec. 88.106. APPLICATION OF SUBCHAPTER. Regardless of
27-1 whether a residence has been inspected under Subchapter D, the
27-2 provisions of this subchapter apply:
27-3 (1) to the owner of a residence if:
27-4 (A) a child lives in the residence; or
27-5 (B) a child occupies the residence for the
27-6 purpose of receiving child care; and
27-7 (2) to the owner of a residence when a residence
27-8 undergoes a change of ownership and as a result of that change of
27-9 ownership:
27-10 (A) a child will live in the residence; or
27-11 (B) a child will occupy the residence for the
27-12 purpose of receiving child care.
27-13 Sec. 88.107. NOTICE TO PROSPECTIVE PURCHASER OR TENANT OF
27-14 RESIDENCE. (a) An owner of a residence shall inform a prospective
27-15 purchaser or tenant of the residence about any notifications and
27-16 other information the owner has received from any governmental
27-17 representative or private testing laboratory about the presence of
27-18 dangerous levels of lead contamination in or around the residence.
27-19 (b) If an owner has information described by Subsection (a)
27-20 about the presence of dangerous levels of lead contamination in or
27-21 around the residence, the owner shall inform the prospective
27-22 purchaser or tenant of the residence about the availability of
27-23 inspections for lead contamination. After notice, if the
27-24 prospective purchaser or tenant chooses to have an inspection made,
27-25 the owner shall give the prospective purchaser or tenant at least
27-26 10 days to have an inspection performed. The cost of the
27-27 inspection is the responsibility of the prospective purchaser or
28-1 tenant.
28-2 (c) If the owner of the residence has given the prospective
28-3 purchaser or tenant the required notice of the existence of lead
28-4 contamination and the availability of inspections for lead
28-5 contamination, the owner must obtain the signature of the purchaser
28-6 or tenant, when or at any time before the sale is closed or the
28-7 lease or rental agreement is fully executed, on a document
28-8 acknowledging that the purchaser or tenant has been given notice of
28-9 the lead contamination in or around the residence and the
28-10 availability of inspections for lead contamination.
28-11 (d) An owner is liable for damages caused by the owner's
28-12 failure to give notice as required by this section.
28-13 (e) A real estate broker or real estate agent who represents
28-14 the owner in the sale, lease, or rental of the residence may act as
28-15 agent for the owner to fulfill the requirements of this section.
28-16 (f) If the owner has failed to inform the broker or agent of
28-17 the lead contamination or has concealed the contamination, the
28-18 broker or agent is not liable for failure to give notice of lead
28-19 contamination unless a reasonable, prudent broker or agent, in the
28-20 use of ordinary care under the same or similar circumstances, would
28-21 have known or should have known about the lead contamination.
28-22 (g) The board shall adopt rules necessary to carry out this
28-23 section.
28-24 Sec. 88.108. EMERGENCY LEAD POISONING AREAS. (a) On the
28-25 basis of high rates of childhood lead poisoning, the commissioner
28-26 or one or more health authorities may designate emergency lead
28-27 poisoning areas.
29-1 (b) A health authority may designate an emergency lead
29-2 poisoning area only:
29-3 (1) within the geographic boundaries under the health
29-4 authority's jurisdiction; and
29-5 (2) after the health authority, with the concurrence
29-6 of the commissioner, provides notice to and consults the governing
29-7 body of each county and municipality with jurisdiction over the
29-8 territory in the affected area.
29-9 (c) After consulting with other appropriate state and
29-10 federal agencies, the board may adopt rules specifying criteria and
29-11 priorities for the designation of emergency lead poisoning areas.
29-12 (d) In an emergency lead poisoning area, the commissioner or
29-13 one or more health authorities with the concurrence of the
29-14 commissioner may order the inspection and investigation of the
29-15 exteriors of certain buildings, the interiors of certain residences
29-16 and schools, and all soil on residential premises and in parks,
29-17 vacant lots, school grounds, and playgrounds.
29-18 (e) In a designated emergency lead poisoning area, in
29-19 addition to covering, removal, and other abatement activities
29-20 required by Section 88.103, paint, plaster, soil, and other
29-21 accessible materials contaminated with dangerous levels of lead and
29-22 located in residential premises must be removed, adequately
29-23 covered, or otherwise made inaccessible to children as specified by
29-24 board rule.
29-25 (f) Before beginning the removal, covering, or other
29-26 abatement of paint, plaster, soil, or other material, the owner or
29-27 a lead abatement worker must notify the department, the occupants
30-1 of the residence, the health authority of the jurisdiction in which
30-2 the residence is located, and any other persons specified by board
30-3 rules. The rules must also specify the form of and information
30-4 required in the notice.
30-5 (g) The lead abatement procedures shall be carried out in
30-6 accordance with board rules to ensure the safety of the occupants.
30-7 Sec. 88.109. INJUNCTION; CIVIL PENALTY. (a) If it appears
30-8 that a person has violated or is violating Section 88.103 or 88.107
30-9 or a rule adopted by the board to implement those sections, the
30-10 attorney general or a municipal, county, or district attorney, as
30-11 appropriate, at the request of the commissioner or of a health
30-12 authority in whose jurisdiction the violation has occurred or is
30-13 occurring, may bring a civil suit for:
30-14 (1) injunctive relief to restrain the person from
30-15 continuing the violation or threat of violation;
30-16 (2) the assessment and recovery of a civil penalty for
30-17 a violation or continuing violation; or
30-18 (3) both injunctive relief and a civil penalty.
30-19 (b) The district court may grant injunctive relief, a civil
30-20 penalty, or both, as warranted by the facts. The injunctive relief
30-21 may include any prohibitory or mandatory injunction warranted by
30-22 the facts, including a temporary restraining order, temporary
30-23 injunction, or permanent injunction.
30-24 (c) The penalty may not exceed $1,000 a day for each
30-25 violation. Each day of a continuing violation is a separate
30-26 violation for the purpose of penalty assessment.
30-27 (d) In determining the amount of the penalty, the court
31-1 shall consider:
31-2 (1) the person's previous history of violations;
31-3 (2) the seriousness of the violation;
31-4 (3) any threat to the health, safety, or rights of the
31-5 public posed by the violations;
31-6 (4) the demonstrated good faith of the person charged;
31-7 and
31-8 (5) any other matters that justice may require.
31-9 (e) The department is an indispensable party in a suit
31-10 brought by a district, county, or municipal attorney under this
31-11 chapter.
31-12 (f) Venue for a suit brought under this section is in the
31-13 county in which the violation occurred, the county in which the
31-14 defendant resides, or Travis County.
31-15 (g) A civil penalty recovered in a suit brought by the
31-16 attorney general under this chapter shall be deposited in the state
31-17 treasury to the credit of the general revenue fund. A civil
31-18 penalty recovered in a suit brought by a district, county, or
31-19 municipal attorney under this chapter shall be divided equally
31-20 between the state and the county or municipality that first brought
31-21 the suit.
31-22 (h) The commissioner, the attorney general, or a district,
31-23 county, or municipal attorney may each recover reasonable expenses
31-24 incurred in obtaining injunctive relief or civil penalties under
31-25 this section, including investigative costs, court costs,
31-26 reasonable attorney's fees, witness fees, and deposition expenses.
31-27 The expenses recovered by the commissioner are for the
32-1 administration and enforcement of this chapter.
32-2 SECTION 2. This Act takes effect September 1, 1995, except
32-3 that Subchapters C and E, Chapter 88, Health and Safety Code, as
32-4 added by this Act, take effect January 1, 1996.
32-5 SECTION 3. The importance of this legislation and the
32-6 crowded condition of the calendars in both houses create an
32-7 emergency and an imperative public necessity that the
32-8 constitutional rule requiring bills to be read on three several
32-9 days in each house be suspended, and this rule is hereby suspended.