The Lead Paint Paper Trail: Documents You Need to Avoid Noncompliance

November 12, 2020

Get the lead out before your next MOR.

 

When it comes to compliance with HUD rules, you can do everything right, but if you don’t have the paperwork to prove it, you’ll pay a price. And paperwork is a heavy burden when it comes to complying with HUD’s Lead Safe Housing Rule.

Government enforcement officials take lead paint issues seriously. HUD, the U.S. Environmental Protection Agency (EPA), and the Centers for Disease Control and Prevention (CDC) recently ended an outreach campaign highlighting the hazards of lead poisoning and how to minimize risks of lead exposure. Last year, the EPA designated the reduction of childhood lead exposures as a high priority, and agencies are taking action to promote compliance with lead-safe work practices, and lead paint disclosure to tenants, to protect children from harmful exposure to lead that continues to be found in paint in older buildings.

In recent news, the federal monitor overseeing the New York City Housing Authority (NYCHA) said more children are at risk from the lead paint in New York City public housing than previously known. A federal monitor had been appointed to oversee NYCHA as part of a settlement agreement with the prosecutors for the Southern District of New York after they filed a case accusing NYCHA of falsely claiming to be adhering to lead paint protocols and other hazardous conditions during inspections. In 2018, NYCHA identified 3,000 apartments where lead paint might put children at risk. Now, after additional testing using x-ray fluorescence analysis, it has determined the actual number is three times greater, at 9,000 apartments.

With performance-based contract administrators (PBCAs) and HUD field offices having resumed Management and Occupancy Reviews (MORs) for operators of project-based Section 8 and other developments in areas where state or local laws don’t restrict them, you should expect to be required to provide documentation to demonstrate your compliance with the Lead Safe Housing Rule. We’ll discuss HUD’s requirements with regard to lead-based paint for all project-based sites and review the documentation required to demonstrate compliance with the Lead Safe Housing Rule during your MOR.

Requirements for All Project-Based Sites

Unless it has been removed by a professional lead abatement contractor or during normal renovation or painting, most housing that was built before 1978 has some painted surfaces with layers of old lead-based paint underneath. Because exposure to even small amounts of lead can be permanently harmful to health, federal, state, and local governments have put in place a number of laws and regulations you must abide by.

Here’s a summary of these requirements for HUD project-based programs (including only Section 8, Section 236, Rent Supplement, Indian Housing Block Grant, Shelter Plus Care Section 202, and Supportive Housing for Persons with Disabilities). Note that state and local laws supplement HUD requirements, so be sure you know what these laws require as well. For all project-based properties not certified lead-free, the owner or manager must:

Distribute pamphlet. Provide the pamphlet “Protect Your Family from Lead in Your Home” (available at https://www.epa.gov/lead/protect-your-family-lead-your-home-real-estate-disclosure) to a member of each new household moving in. The January 2020 version of the pamphlet includes the new dust-lead hazard standards that became effective Jan. 6, 2020. You don’t have to discard the older version document. In order to ensure that the updated information is provided, you should provide a supplement if using prior versions (available at https://www.epa.gov/sites/production/files/2020-01/documents/pyf_new_2-pg_supplement_for_older_pyf_jan_2020.pdf).

Disclose known lead information. Follow disclosure rules when leasing units. Owners must disclose known information on lead-based paint or lead-based paint hazards before leases take effect. And leases must include a specific warning statement about lead-based paint.

Give notice to residents. Give a notice to residents of hazard reduction work and the results of evaluations (like paint testing, inspections, and risk assessments) and clearance exams. You may post the notice in a central common area and/or distribute it to each occupied dwelling unit affected. Residents must be notified within 15 days of receipt by the owner, of the scope and results of lead hazard control work, including the results of clearance examinations, in accordance with the HUD Lead Safe Housing Rule.

Perform ongoing lead-based paint maintenance. Conduct ongoing lead-based paint maintenance and reevaluation as part of your regular building operations (unless you have a certification that there is no lead-based paint at the site or that it has all been removed). If you identify any new lead-based paint hazards, you must control or remove them. The goal of your regular maintenance is to identify any areas of deteriorated paint on interior and exterior surfaces that must be stabilized or restabilized.

Respond to notifications of children with high lead levels in their blood. A blood lead level of 5 micrograms per deciliter (µg/dl) or higher, is considered an Elevated Blood Lead Level (EBLL). Owners must take action if a child under age 6 in federally assisted housing built before 1978 has an EBLL. Once an owner has been notified of a verified EBLL, the following steps are required:

  • Immediately verify the EBLL report.
  • Ensure a certified assessor performs an environmental investigation in the apartment within 15 days of the verified report.
  • Notify the resident and other building residents of the results of the environmental investigation within 15 days of receiving the results.
  • If the environmental investigation identified lead-based paint hazards, the PHA or owner must make all necessary repairs within 30 days. To protect the resident from further exposure to lead hazards in housing while the work is being done, the household may have to move out of the apartment temporarily.
  • Once the repairs are complete, the apartment must be tested and certified to be lead-safe. The owner will provide a “clearance examination report” that explains what was done and ask the resident to report any deteriorated paint or other problems with the work areas.

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Demonstrating Compliance During the MOR

Under HUD regulations in 24 CFR Part 35, all multifamily housing owners or management agents must have records of a lead-based paint evaluation (lead-based paint inspection or lead risk assessment), and completed lead-based paint hazard reduction. Regardless of the date of the testing and hazard control, the housing owner or management agent must maintain copies of these records and disclose them to residents according to HUD’s Lead Disclosure regulations in 24 CFR Part 35, Subpart A.

During an MOR, you’ll be required to provide documentation to demonstrate your compliance with the Lead Safe Housing Rule. Below are examples of documents that you should maintain onsite and have available for review:

Lead-free sites. Expect to be able to produce the certified lead-based paint inspector’s documentation of the status of lead hazards. In order to be considered “lead free,” you must obtain an official certification from a certified lead-based paint inspector (as certified by the state or EPA). An owner’s self-certification that the property is lead free is not sufficient proof that the property is free of lead hazards.

Not all certified lead-based paint consultants provide a Lead-Based Paint Free certificate. If this is the case, HUD guidelines suggest report language for inspections where no-lead based paint was identified. The following language in a report would be enough to determine that the site is lead-based paint free:

The results of this inspection indicate that no lead in amounts greater than or equal to 1.0 mg/cm2 in paint was found on any building components, using the inspection protocol in chapter 7 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing (current Revision as of the date of the inspection).

Section 202/811 supportive housing. If your site is classified as elderly or disabled supportive housing, lead-based paint requirements apply only if a child under the age of 6 lives in a unit. The MOR reviewer will ask if you have any children under the age of 6 in residence.

If you have a child under age 6 residing at your site, the regulations apply to the dwelling unit in which the child resides, any common areas servicing such dwelling unit, and exterior painted surfaces associated with such dwelling unit or common areas.

Sites built before Jan. 1, 1978, that were identified as containing lead or lead hazards. If your site receives an average of more than $5,000 per unit annually in project-based assistance, the reviewer will ask you to produce:

  • The initial risk assessment completed by a certified risk assessor and documentation that the required hazard reduction activities and subsequent clearance examination were completed, if applicable.
  • The property’s Lead Hazard Control Plan and documentation that ongoing lead-based paint maintenance activities are being performed in accordance with the plan (interim controls, visual inspections, maintenance, tenant notifications, etc.).
  • Copies of the lead reevaluation reports completed by a certified inspector or risk assessor every two years since the initial risk assessment was conducted.
  • Notifications provided to tenants regarding the above actions, if applicable.
  • Documentation relating to special actions taken when a child under 6 is reported to have high blood levels, if applicable.

If your site receives an average of $5,000 or less per unit annually in project-based assistance, the reviewer will ask that you produce:

  • The initial visual assessment, the results of the assessment, and paint stabilization activities completed to eliminate lead hazards, if applicable.
  • The property’s Lead Hazard Control Plan and documentation that ongoing lead-based paint maintenance activities are being performed in accordance with the plan (interim controls, visual inspections, maintenance, tenant notifications, etc.).
  • Copies of the lead reevaluation reports completed by a certified inspector or risk assessor every two years since the initial risk assessment was conducted.
  • Notifications provided to tenants regarding the above actions, if applicable.
  • Documentation relating to special actions taken when a child under 6 is reported to have high blood levels, if applicable.

Comply with disclosure requirements. If the lead-based paint requirements apply to your site, the reviewer will confirm that the tenant file contains:

  • An acknowledgement form or copy of the pamphlet signed and dated by the tenant certifying that the “Protect Your Family from Lead in Your Home” pamphlet was given to the household at move-in.
  • An attachment to the lease that includes a lead warning statement and confirms that the owner is in compliance with the lead-based paint notification requirements.

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