With the stroke of a pen, city officials and legal aid attorneys are now one court hearing from ending a two-year legal battle over how the city Health Department protects lead-poisoned local children.
City Corporation Counsel Patricia King and New Haven Legal Assistance Association (NHLAA) staff attorney Amy Marx stood side by side on the ground floor of City Hall Monday for that celebratory legal rapprochement and news conference.
The city’s top attorney and the local legal aid housing lawyer gathered with Mayor Justin Elicker, city Health Director Maritza Bond, NHLAA Director of Litigation Shelley White, and other top city officials to sign a newly finalized 86-page proposed settlement in the case Nyriel Smith v. City of New Haven.
The proposed settlement, which can be read in full here, now heads to city housing court for a “fairness hearing” and final decision by a state Superior Court judge before the terms of the agreement go into effect.
“It was a very time-consuming and painstaking effort, but we were all on the same page in terms of what our best interests were, which is to protect the health of this city’s children,” King said at Monday’s presser.
“This is an opportunity for us to set the tone that any level of lead is a risk to the children that we serve,” added Bond.
“This settlement represents a most important new day,” concluded Marx. “A legally enforceable commitment by the city to change the policies and practices of its Health Department. The agreement not only solves prior deficiencies, but it charts a process and procedure for lead abatement that can be a role model for others in the state and the nation.”
The upbeat tone and mutual accord of the news conference marked just how far this often acrimonious case has come in two years.
In May 2019, legal aid attorneys first sued former Mayor Toni Harp’s administration for neglecting hundreds of lead-poisoned local children by not enforcing lead paint inspection and hazard abatement standards as spelled out by city law.
The original class-action lawsuit alleged — and Harp health department officials admitted in state housing court — that the city violated city law when the local health department stopped mandating lead paint inspections and issuing lead paint abatement orders when children tested at blood lead levels between 5 and 20 micrograms per deciliter (?g/dL). Lead exposure in young children can lead to lifelong behavioral and cognitive impairments.
The class-action suit offered manifold examples of state judges siding against the city in how it enforced its lead laws. The suit also inspired alders to clarify and strengthen the city lead poisoning ordinance. And it provided a campaign critique for now-Mayor Justin Elicker when he successfully challenged Harp for the office in 2019. Since Elicker took office, this case appears to have sparked an overhaul in how the city Health Department handles child lead poisoning cases.
While the COVID-19 pandemic and the associated grinding to a halt of court cases across the state led to continuance after continuance after continuance as negotiations dragged on, Monday’s news conference settlement signing revealed that the two sides remained on largely the same page when it came to putting to bed this class-action suit.
“I think that the biggest change here is a determination to make sure that what is in the law actually happens,” Marx said about the proposed settlement. With the previous administration, whenever legal aid attorneys and their clients sought to discuss how the lead paint inspection and enforcement program could work better, “the city’s initial response was: There’s nothing wrong with the system. Nothing’s broken. Everything works.’”
“The most critical piece is we could actually sit down and discuss which pieces of the program are actually working” and which need to be changed to work better.
With this settlement, “we have an agreement on what we should. We have in writing what the agreement is. The court is going to be monitoring [the city’s compliance with the agreement]. And, most importantly, there’s going to be transparency,” with the Health Department sharing its lead poisoning-related files with legal aid twice a month for the duration of the agreement.
City Health Director Bond said Monday that the city has already made great strides in addressing many of the concerns raised over the course of this case.
The city now has six full-time lead paint hazard inspectors, a HUD acting program manager to process lead abatement applications, a program coordinator, a lead outreach worker to focus on community education about the hazards of child lead poisoning, and a hefty chunk remaining of a $5.6 million federal grant received by the Harp administration to support lead hazard abatement.
She said that since November 2018, the city has “closed” 239 cases involving children under 6 who had a blood lead level equal to or greater than 5 micrograms per deciliter (?g/dL). The city has 158 such lead-poisoning cases still open.
31-Step Process Detailed
The proposed settlement defines the class of plaintiffs covered by the agreement as all children living in New Haven who were under the age of 6 as of Nov. 1, 2018, and who have or had elevated blood lead levels equal to or greater than 5 ?g/dL.
The group covered by the proposed settlement does include children living in Section 8 housing, but it explicitly does not include children living in housing owned by the city’s public housing authority, Elm City Communities/Housing Authority of New Haven (HANH). The public housing authority has its own parallel, federally mandated lead inspection and abatement procedures. (See below for more information on how the housing authority recently received a $3.7 million federal grant to inspect and abate lead paint hazards at its properties.)
At the center of the proposed settlement is a 31-step process that the city Health Department must follow upon learning that a child under the age of 6 has tested as having an elevated blood lead level above 5 ?g/dL.
Some of those mandatory responses include:
• Within two working days of learning that a local child under the age of 6 has tested at or above 5 ?g/dL, the city Health Department must open an individual, electronic and/or paper case file for that class member. Each file must contain a checklist with date entries for action taken and copies of all written communications.
• The Health Department must mail a written notice to the parents or guardians of that class member that includes educational material “setting forth the dangers of lead poisoning, precautions to take in order to reduce the risk of lead poisoning, interim controls to put in place in order to reduce exposure to lead hazards, information about potential eligibility for services for the class member, information on follow-up blood lead testing, and an explanation of the legally required epidemiological investigation process.”
• The Health Department must then make “reasonable efforts” to gain entry into the child’s home to conduct an epidemiological investigation. If the city is unsuccessful in contacting the child’s parents or guardians by telephone or written communication, then the Health Department must make at least two home visits to attempt to reach them in person. And if they’re still not able to gain consent from the parent/guardian, “the Health Department may seek an administrative search warrant for a court-ordered entry within 10 working days after the unsuccessful attempt to reach” the parents or guardians.
• Within five working days of learning of a child with an elevated blood lead level, the Health Department must initiate an epidemiological investigation that consists of a “comprehensive lead inspection” and an “epidemiological interview.” The inspection is to identify lead-based paint surfaces and hazards in the interior and exterior of the dwelling unit and common areas. “This includes XRF testing and laboratory analysis of dust, water, and soil.” The interview then seeks to identify all potential lead exposures and factors that may cause a child to have an elevated blood lead level. Such an investigation must be completed within 30 working days of the city’s receipt of an actionable blood lead level.
• Within 10 working days of the comprehensive lead inspection, the Health Department must then send letters to other parents and guardians who reside in the same building as the child who tested as having an elevated blood lead level, letting them know about the presence of lead paint hazards on site.
• If the city finds out that the child who has tested as having an elevated blood lead level lives in a housing authority-owned property, then the city may issue a written referral that the housing authority conduct an epidemiological investigation within 15 days. Same goes for if the child lives in Section 8-subsidized housing.
• Within two days of completing the epidemiological investigation, the Health Department must complete and submit a lead inspection and testing summary form to the state Department of Public Health commissioner, the property owners, and the child’s parents/guardians.
• If chipping or flaking lead paint is found on site, if movable parts of windows and surfaces that rub against movable parts of windows are found to contain lead, and/or if chewable surfaces are found to contain lead, then the Health Department must issue a lead abatement order to the property owner to abate all lead hazards within 30 working days of receipt of the laboratory report of an actionable blood level. The Health Department may issue a six-month extension to the property owner to complete abatement if the owner certifies in writing that the property is vacant and that there will be no reoccupancy without full remediation.
• The order must instruct the property owner to post a notice at each entrance to the premises and each entrance to each dwelling unit in which lead hazards were identified within two working days of receipt of the order.
• The Health Department must ensure that the property owner submits a written lead abatement plan within 15 working days after the lead abatement has been ordered. That plan must identify the location of the lead-based hazards and describe how all such lead-based hazards will be abated.
• The Health Department must ensure that lead abatement is initiated by the property owner within 45 business days after the lead abatement has been ordered and “that the property owner will diligently pursue and complete such lead abatement for any dwelling unit or premises for which abatement has been ordered.”
• Upon completion of abatement and prior to reoccupancy, the Health Department shall reinspect the abated area to ensure that the lead abatement plan has been followed. Within two days after completion of reinspection, the Health Department shall issue a post-abatement inspection report to the property owner and the parents/guardians.
• Upon verification that abatement has been property completed, the issuance of the post-abatement report, and the submission of a written management plan, the Health Department shall issue and file with the City Clerk’s office a release of the order to abate lead hazards.
If a property owner fails to comply with a lead abatement order or fails to “diligently pursue compliance with a lead abatement order,” they shall be prohibited from renting the dwelling unit to a new tenant until the city Health Director finds that acceptable repairs have been made.
And in terms of monitoring the city’s compliance with the terms of the settlement, starting Aug. 1, the city must provide the plaintiff’s counsel with bi-monthly updates on open and closed lead hazard cases for class members covered by the agreement.
Housing Authority Lands $3.7M Lead Cleanup Grant
In a separate but related development, the federal department of Housing and Urban Development (HUD) announced last Thursday that it will be awarding New Haven’s public housing authority with $3.7 million to clean up lead hazards in housing authority-owned properties.
In a phone interview with the Independent Monday afternoon, Elm City Communities/HANH Executive Director Shenae Draughn said that these federal funds will be used to abate roughly 150 units of public housing in the so-called Scattered Site homes.
Those are single-family, two-family, three-family, and four-family homes owned by the New Haven housing authority that are located all across the city, including on Eastern Street, Chamberlain Street, Quinnipiac Avenue, Kingswood Drive, County Street, and Central Avenue.
“We had recognized the need to remediate lead in our apartments, and we have been diligently moving through our portfolio to do so,” Draughn said. She said the Scattered Site single-family and duplex homes require a “larger capital need” than larger apartment complexes for lead abatement. “This grant will help us plug that gap to remediate those homes.”
She said the housing authority plans to issue requests for proposals soon to hire contractors to do that lead paint hazard abatement work at Scattered Site homes across the city. The actual remediation work itself should start sometime in the next three months.