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BTLG Table of Contents > Childhood Lead Poisoning Prevention Fee > Chapter 5 > entire chapter

Childhood Lead Poisoning Prevention Fee

Health and Safety Code

Division 103. Disease Prevention and Health Promotion
Part 5. Environmental and Occupational Epidemiology

Chapter 5. Childhood Lead Poisoning Prevention

105275. Title. This chapter shall be known, and may be cited as, the Childhood Lead Poisoning Prevention Act of 1991.

Regulatory fee not tax.—The Childhood Lead Poisoning Prevention Act of 1991 (H&S Code Section 105275 et seq.), as written, imposes bona fide regulatory fees and not taxes requiring a two-thirds vote of the Legislature under Proposition 13 (California Constitution, Article XIII A, section 3). The Legislature had approved the Act with a simple majority vote. Sinclair Paint Company v. State Board of Equalization, (1997) 15 Cal.4th 866.

Regulatory fee is not an unconstitutional tax if there is a reasonable basis in the record for the manner in which the fee was allocated.—Plaintiff, a gasoline company, challenged the California Childhood Lead Poisoning Prevention (CLPP) fees it paid, arguing that the tax was unconstitutional since it was not proportional to the gasoline industry's responsibility for environmental lead contamination. The court disagreed, holding that a regulatory fee was not an unconstitutional tax under Cal. Cost. XIII A, if there was a reasonable basis in the record for the manner in which the fee was allocated among those responsible for paying it. The court found that the fee, as applied to Equilon, was constitutional since there was a reasonable basis for the Department of Public Health to allocate the CLPP fees based on the gasoline industry's responsibility for contaminating the environment with the lead. Since the Legislature specifically focused on exposure rather than poisoning when it enacted the Childhood Lead Poisoning Prevention Act (Health and Safety Code §105275 et. seq.), the purpose of the Act is to address environmental lead contamination that results in childhood lead exposure, and not just causes of childhood lead poisoning. Equilon Enterprises LLC v. State Board of Equalization, (2010) 189 Cal.App.4th 865.

105280. Definitions. For purposes of this chapter, the following definitions apply:

(a) "Appropriate case management" means health care referrals, environmental assessments, and educational activities, performed by the appropriate person, professional, or entity, necessary to reduce a child's exposure to lead and the consequences of the exposure, as determined by the United States Centers for Disease Control and Prevention, or as determined by the department pursuant to Section 105300.

(b) "Lead poisoning" means the disease present when the concentration of lead in whole venous, arterial, or cord blood reaches or exceeds levels constituting a health risk, as specified in the most recent United States Centers for Disease Control and Prevention guidelines for lead poisoning as determined by the department, or when the concentration of lead in whole venous, arterial, or cord blood reaches or exceeds levels constituting a health risk as determined by the department pursuant to Section 105300.

(c) "Department" means the State Department of Public Health.

(d) "Health assessment" has the same meaning as prescribed in Section 6800 of Title 17 of the California Code of Regulations.

(e) "Screen" means the medical procedure by which the concentration of lead in whole blood is measured.

(f) "Health care" means the identification, through evaluation and screening, if indicated, of lead poisoning, as well as any followup medical treatment necessary to reduce the elevated blood lead levels.

(g) "Environmental lead contamination" means the persistent presence of lead in the environment, in quantifiable amounts, that results in ongoing and chronic exposure to children.

105285. Standard of care. (a) It is the goal of the state that all children at risk of lead exposure receive blood lead screening tests.

(b) (1) The department shall adopt regulations establishing a standard of care, at least as stringent as the most recent federal Centers for Disease Control and Prevention screening guidelines, whereby all children are evaluated for risk of lead poisoning by health care providers during each child's periodic health assessment. The regulations shall meet the goals of subdivision (a) and shall include the determination of risk factors for whether a child is "at risk."

(2) When determining the risk factors, the department shall consider the most significant environmental risk factors, including, but not limited to, all of the following:

(A) A child’s time spent in a home, school, or building built before 1978.

(B) A child’s proximity to a former lead or steel smelter or an industrial facility that historically emitted or currently emits lead.

(C) A child’s proximity to a freeway or heavily traveled roadway.

(D) Other potential risk factors for lead exposure, and known sources of lead contamination.

(E) A child’s residency in or visit to a foreign country.

(F) A child’s residency in a high-risk ZIP Code.

(G) A child who has a sibling or playmate with lead poisoning.

(H) The likelihood of a child placing nonfood items in the mouth.

(I) A child’s proximity to current or former lead-producing facilities.

(J) The likelihood of a child using food, medicine, or dishes from other countries.

(3) By July 1, 2019, the regulations on the specified factors in subparagraphs (A) to (D), inclusive, of paragraph (2) shall be developed in consultation with medical experts, environmental experts, appropriate professional organizations, the public, and others as determined by the department.

(c) The standard of care shall require a child who is determined to be "at risk" for lead poisoning, according to the regulations adopted pursuant to subdivision (b), to be screened.

(d) The standard of care shall provide that a child shall not be screened pursuant to this chapter if the parent or guardian of the child refuses to consent to the screening.

(e) The standard of care shall provide that health care providers are responsible only for evaluation of all children, for screening of children determined to be at risk, and for medically necessary followup services.

(f) The fee imposed by Section 105310 shall not be used to fund blood lead screening under this section.

History—Stats. 2018, Ch. 690 (SB 1041), in effect January 1, 2019, substituted "It is the goal" sentence in subdivision (a) for subdivision (b), added "meet the goals of subdivision (a) and shall" after "The regulations shall" in second sentence of subdivision (b), relettered reference to subdivision "(b)" from subdivision "(a)" in subdivision (c), and relettered former subdivisions (b) through (e) as (c) through (f), respectively. Stats. 2020, Ch. 216 (AbB 2276), in effect January 1, 2021, reformatted subdivision (b) to number paragraphs (1), (2), and (3) and letter subparagraphs (A) through (D) and added subparagraphs (E) through (J), added "all of the following:" after "but not limited to," in paragraph (2), substituted "A child’s" for ", a child’s" in subparagraphs (A) and (B), substituted "A child’s" for ", other" in subparagraph (C), added "Other" in subparagraph (D), and added "on the specified…of paragraph (2)" after "the regulations" in paragraph (3) of subdivision (b).

105286. Health care information. (a) The department shall notify health care providers who perform periodic health assessments for children about, and those health care providers shall inform parents and guardians about, all of the following:

(1) The risks and effects of childhood lead exposure.

(2) The requirement that children enrolled in Medi-Cal receive blood lead screening tests as set forth in the department's standard of care policies, promulgated regulations, and published guidelines, in accordance with Section 105285.

(3) The requirement that children not enrolled in Medi-Cal who are at high risk of lead exposure receive blood lead screening tests as set forth in the department's standard of care policies, promulgated regulations, and published guidelines, in accordance with Section 105285.

(b) To implement the requirements of subdivision (a), the department may use channels of communication, including, but not limited to, publications that serve the health care provider community, such as newsletters developed by either the Medical Board of California, other licensing organizations or associations, or local organizations and jurisdictions.

History—Added by Stats. 2018, Ch. 690 (SB 1041), in effect January 1, 2019.

105290. Case management. When a child is identified with lead poisoning, the department shall ensure appropriate case management. The department may contract with any public or private entity, including local agencies, to conduct the case management.

105291. Investigation services. In addition to any other providers determined to be eligible by the department to provide environmental investigation services as a part of case management services under this chapter, a qualified certified industrial hygienist or other qualified professional who is certified by the department as an inspector/assessor shall be eligible to provide those services and those services shall be funded under the Childhood Lead Poisoning Prevention Program pursuant to this chapter.

105295. Case management: biennial report. (a) (1) The department shall collect and analyze all information necessary to effectively monitor appropriate case management efforts. The department shall prepare a biennial report describing the effectiveness of appropriate case management efforts. This report shall be made available to local health departments and the general public.

(2) The department shall prominently post the report prepared pursuant to this subdivision on the department's Internet Web site consistent with the requirements of subdivision (c) of Section 124125.

(b) The report prepared pursuant to subdivision (a) shall include all of the following information listed for each county:

(1) The total number of children tested for lead poisoning.

(2) The results of blood lead testing by ranges of lead levels.

(3) The number of children, by blood lead level range, who were referred for case management and environmental services and who received the following services:

(A) Home visit.

(B) Environmental investigation.

(C) Family education and provision of educational materials, nutrition assessment, and nutrition education.

(4) (A) The identified sources of lead exposure for those children having lead poisoning.

(B) The report shall indicate whether the sources of lead exposure identified in, on, or around a residence or location associated with a child with lead poisoning have been removed, remediated, or abated.

(c) The report shall also include, but not be limited to, all of the following:

(1) The number of enrolled children in Medi-Cal, identified by county and year of age, who received blood lead screening tests and who have not received these tests.

(2) The number of children not enrolled in Medi-Cal, identified by county, and year of age, who have received blood lead screening tests.

(3) Publicly releasable data and information that the department compiles, identifies, and analyzes in accordance with subdivision (b) of Section 124125.

(d) The department shall collaborate with the State Department of Health Care Services to collect and analyze information identified under subdivision (c) that pertains to children enrolled in Medi-Cal.

(e) When preparing the report required by subdivision (b), the department may use the information that the department receives through its existing case management efforts, including, but not limited to, the data in biennial reports provided to the department from local health departments.

(f) The department shall provide the data collected and the report prepared pursuant to this section to the Healthy Communities Data and Indicators Project (HCI) standardized set of statistical measures for use in any tools developed by HCI that are used for planning healthy communities and evaluating the impact of plans, projects, policies, and environmental changes on community health.

(g) All uses and disclosure of data made pursuant to this section shall comply with all applicable state and federal laws for the protection of the privacy and security of data, including, but not limited to, subdivision (g) of Section 124130 and the Information Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code).

History—Stats. 2018, Ch. 690 (SB 1041), in effect January 1, 2019, added the subdivision and paragraph numbers "(a)(1)" to existing language, and added the balance of the Section.

105300. Regulatory authority of departments. Notwithstanding Section 124130, the department shall have broad regulatory authority to fully implement and effectuate the purposes of this chapter. The authority shall include, but is not limited to, the following:

(a) The development of protocols to be utilized in screening and the procedures for changing those protocols when more accurate or efficient technologies become available.

(b) The designation of laboratories which are qualified to analyze whole blood specimens for concentrations of lead and the monitoring of those laboratories for accuracy.

(c) The development of reporting procedures by laboratories.

(d) The reimbursement for state-sponsored services related to screening and appropriate case management.

(e) The establishment of lower concentrations of lead in whole blood than those specified by the United States Centers for Disease Control for the purpose of determining the existence of lead poisoning.

(f) The establishment of lower acceptable levels of the concentration of lead in whole blood than those specified by the United States Centers for Disease Control for the purpose of determining the need to provide appropriate case management for lead poisoning.

(g) The development of appropriate case management protocols.

(h) The notification to the child's parent or guardian of the results of blood lead testing and environmental assessment.

(i) The establishment of a periodicity schedule for evaluation for childhood lead poisoning.

History—Stats. 2018, Ch. 690 (SB 1041), in effect January 1, 2019, added "The" at beginning of sentence, and substituted "reimbursement" for "Reimbursement" in subdivision (d), added "The" at beginning of sentence, substituted "establishment" for "Establishment", and substituted "States" for "State" in subdivision (e), added "The" at beginning of sentence, and substituted "establishment" for "Establishment" in subdivision (f), added "The" at beginning of sentence, and substituted "development" for "Development" in subdivision (g), added "The" at beginning of sentence, and substituted "notification" for "Notification" in subdivision (h).

105305. Program funding. The program implemented pursuant to this chapter shall be fully supported from the fees collected pursuant to Section 105310. Notwithstanding the scope of activity mandated by this chapter, in no event shall this chapter be interpreted to require services necessitating expenditures in any fiscal year in excess of the fees, and earnings therefrom, collected pursuant to Section 105310. This chapter shall be implemented only to the extent fee revenues pursuant to Section 105310 are available for expenditure for purposes of this chapter.

105310. Fees; establishment; collection; adjustment; exemptions; deposit. (a) There is hereby imposed a fee on manufacturers and other persons formerly, presently, or both formerly and presently engaged in the stream of commerce of lead or products containing lead, or who are otherwise responsible for identifiable sources of lead that have significantly contributed historically, currently contribute, or both have significantly contributed historically and contribute currently to environmental lead contamination.

(b) The department shall, by regulation, establish specific fees to be assessed on manufacturers and other parties formerly, presently, or both formerly and presently engaged in the stream of commerce of lead or products containing lead, or who are otherwise responsible for identifiable sources of lead that, as determined by the department, have significantly contributed historically, currently contribute, or both have significantly contributed historically and contribute currently to environmental lead contamination.

To the maximum extent practicable, the fees shall be assessed on the basis of the following criteria:

(1) A person's past and present responsibility for environmental lead contamination.

(2) A person's "market share" responsibility for environmental lead contamination.

This section shall not apply to, and no fee shall be assessed upon, any retailer of lead or products containing lead.

(c) The fee shall be assessed and collected annually by the State Board of Equalization. The annual fee assessment in subdivision (a) shall be adjusted by the department to reflect both of the following:

(1) The increase in the annual average of the California Consumer Price Index, as recorded by the California Department of Industrial Relations, for the most recent year available.

(2) The increase or decrease in the number of children in California who are receiving services pursuant to this chapter.

This adjustment of fees shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(d) (1) A fee shall not be assessed upon a person if that person can demonstrate, as determined by the department, that his or her industry did not contribute in any manner, as described in this section, to environmental lead contamination.

(2) A fee shall not be assessed upon a party if that party demonstrates, as determined by the department, that the lead, or the product containing lead, with which it is currently, or was historically, associated does not currently, or did not historically, result in quantifiably persistent environmental lead contamination.

(e) The fee imposed pursuant to this section shall be administered and collected by the State Board of Equalization in accordance with Part 22 (commencing with Section 43001) of Division 2 of the Revenue and Taxation Code. The fees shall be deposited in the Childhood Lead Poisoning Prevention Fund, which is hereby created in the State Treasury. Moneys in the fund shall be expended for the purposes of this chapter, including the State Board of Equalization's costs of collection and administration of fees, upon appropriation by the Legislature. All interest earned on the moneys that have been deposited into the Childhood Lead Poisoning Prevention Fund shall be retained in that fund.

(f) The fees collected pursuant to this section and the earnings therefrom shall be used solely for the purposes of implementing this chapter. The department shall not collect fees pursuant to this section in excess of the amount reasonably anticipated by the department to fully implement this chapter. The department shall not spend more than it collects from the fees and the earnings in implementing this chapter. In no fiscal year shall the department collect more than sixteen million dollars ($16,000,000) in fees, as adjusted for inflation pursuant to subdivision (b).

(g) It is the intent of the Legislature, in subsequent legislation, to appropriate and deposit into the Childhood Lead Poisoning Prevention Fund the sum of one hundred twenty-eight thousand dollars ($128,000) from the General Fund on July 1, 1992, to the Controller for allocation as loans as follows:

(1) Seventy-eight thousand dollars ($78,000) to the department, for the purposes of adopting regulations to establish the fee schedule authorized by this section. The State Board of Equalization shall repay the amount of this appropriation, on or before June 30, 1993, with interest at the pooled money investment rate, from fees collected pursuant to this section.

(2) Fifty thousand dollars ($50,000) to the State Board of Equalization, for the purposes of implementing this section. The State Board of Equalization shall repay the amount of this appropriation on or before June 30, 1993, with interest at the pooled money investment rate, from fees collected pursuant to this section.

(h) Regulations adopted for fee assessment and collection pursuant to this section shall be exempt from review by the Office of Administrative Law.

Regulatory fee not tax.—The Childhood Lead Poisoning Prevention Act of 1991 (H&S Code Section 105275 et seq.), as written, imposes bona fide regulatory fees and not taxes requiring a two-thirds vote of the Legislature under Proposition 13 (California Constitution, Article XIII A, section 3). The Legislature had approved the Act with a simple majority vote. Sinclair Paint Company v. State Board of Equalization, (1997) 15 Cal.4th 866.