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.