Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Disability advocates know all too well the disastrous effect early exposure to toxic lead levels can have on young children. Childhood exposure to lead results in permanent brain damage and can severely affect a child’s physical, cognitive, and behavioral development.  Children exposed to lead are more susceptible to developing learning disabilities, such as Attention Deficit Hyperactive Disorders (“ADHD”), as well as suffering from speech and language problems, developmental delays, and lowered IQs.  See, “Protecting Our Children from Lead.  The Success of New York’s Efforts to Prevent Childhood Lead Poisoning”, pp. 2, 3 New York State Department of Health, May 25, 2001. (Available at www.health.state.ny.us/nysdoh/lead/index.htm).  See also data from the Centers for Disease Control on lead poisoning at www.cdc.gov.

As horrendous as the effects of lead poisoning are for these children and their families, proof of high lead levels can sometimes be crucial evidence in convincing an Administrative Law Judge (ALJ) that there is a basis for the child’s problems. Several decisions in children’s SSI cases illustrate the connection between lead poisoning and childhood disability. In a recent federal court decision, the adolescent claimant had suffered from lead poisoning since she was two years old.  The Magistrate Judge granted her motion for judgment on the pleadings after finding that she had met the mental retardation listing, section 112.05F, due to her “marked limitation in age-appropriate cognitive and communicative function” as well as “a significantly subaverage general intellectual functioning with deficits in adaptive functioning.”  Pimentel v. Barnhart, 2006 WL 2012015 at *12 (S.D.N.Y. July 19, 2006).

In a case from the U.S. District Court for the Northern District of New York, the ten-year-old claimant suffered from ADHD as a result of lead exposure.  The District Judge determined that the claimant’s ADHD impairment met all of the specified criteria of Listing 112.11, which consisted of marked “inattention, impulsiveness, and hyperactivity.” Stover v. Comm’r of Soc. Sec., 2008 WL 4283421 at *5 (N.D.N.Y. Sept. 16, 2008).

Advocates should be vigilant when reading medical records for some evidence that a child had suffered lead poisoning at some point. Often, this evidence provides some objective basis for claims of ADHD, low IQs, and behavioral impairments, that an ALJ may otherwise tend to dismiss or ignore.

All too often, however, the records in childhood SSI claims lack any evidence of testing for lead poisoning. That may change in the future thanks to newly implemented Medicaid regulations.  In an effort to address the large number of childhood lead poisoning cases in New York State, Governor Paterson has directed Medicaid to begin reimbursing physicians and clinics for “point-of-care” blood lead testing of pregnant women and children under the age of six, effective September 1, 2009.  This new policy is the next step in addressing the leading environmental poison of children in New York State.

“Point-of-Care” testing allows for immediate test results available in approximately three minutes.  Although there is no “safe” blood lead level, any blood lead level of 10 µg/dL is considered to be a level of concern.  If the “Point-of-Care” test shows a blood lead level of 8 µg/dL or higher another method of testing will be performed at a clinical laboratory that holds a NYS permit in toxicology-blood lead.

According to the newly implemented regulation at 10 NYCRR Subpart 67-1, local health units will take a variety of actions to follow-up depending upon the severity of the child’s blood lead level.  These actions include follow-up testing, risk reduction education, diagnostic evaluation, environmental management, case management and medical treatment.  In pregnant women with elevated blood lead levels, prenatal health care providers are required to provide risk reduction counseling or refer the women to an occupational health clinic for individual guidance.  Chelation therapy is used for children with extremely elevated blood lead levels as an immediate health intervention.  Though chelation removes lead from the blood, lead does still remain in the body and permanent damage is still likely. http://www.merck.com/mmhe/sec24/ch297/ch297i.html?qt=chelation&alt=sh#sec24-ch297-ch297i-387.

“Point-of-Care” testing is actually a form of “secondary prevention,” namely a step that is taken to identify children that have already been poisoned and then look for lead hazards in their environment.  This initiative follows action taken earlier this year after Governor Paterson, citing fiscal concerns, vetoed comprehensive lead poisoning “primary prevention” legislation that, after years of effort, had finally passed both the Senate and Assembly nearly unanimously last year.  Under the “primary prevention” approach, efforts are made to find and eliminate lead-paint hazards before a child has been determined to have an elevated blood lead level.

In May, Governor Paterson issued an Executive Order creating an “Inter Agency Task Force” that will attempt to coordinate the lead poisoning prevention activities of several state agencies including the Department of Health, the Department of State (which is responsible for building code enforcement), and the Division of Housing and Community Renewal.  Further, in the current state budget, the Governor made permanent a program for increased primary prevention efforts that had previously been simply a pilot program.  That program, called the “Childhood Lead Poisoning Primary Prevention Program,” targets lead poisoning prevention activities, such as building inspections in high-risk communities.  With this increased focus on primary prevention activities, funding was increased in the 2009-10 Executive Budget by $2.5 million, amounting to a total of $15.6 million for all lead poisoning programs over the last three years.

In 2007, nearly 3,600 children under of the age of six in New York outside of New York City were diagnosed with lead poisoning.  That number is in addition to pending cases in which children had been previously diagnosed.  Advocates for the prevention of lead poisoning estimate that the actual number of children poisoned by lead is closer to 10,000 or 15,000 cases annually since not all children are tested for lead poisoning.  In addition, since the damage caused by lead poisoning is permanent and will affect the child for his or her entire life, the cumulative social costs created by the failure to eliminate lead poisoning is literally billions of dollars annually in lost earnings, lost taxes, increased special education and SSI costs, and increased expenditures in the juvenile justice system.

Since children are most likely to be poisoned by lead through exposure to hazards from lead-paint in their homes, advocates should make sure to determine whether there is a record of any early childhood exposure to lead-paint that may have contributed to the disabilities under review.  That would be especially important if the child had lived in, or now resides in, one of the “high-risk” zip codes identified by the state. (A list of those zip codes is available at: http://tinyurl.com/lead-zips, at page 8).  Additionally, advocates should consider advising any clients with children, especially young children, living in those areas to have their homes inspected for lead-paint hazards by contacting their local health department or local municipal building inspection agencies.  As part of the state’s “primary prevention” plan for eliminating lead poisoning there is now increased availability of inspections in these high risk areas.

With respect to the state’s new “secondary prevention” effort, the ease and availability of obtaining ”Point-of-Care” testing is likely to increase the levels of testing for lead poisoning across the state. Prior to this policy, Medicaid only provided reimbursement for lead testing conducted at permitted clinical laboratories.  Once this policy goes into effect, Medicaid will begin direct reimbursement, which will be expanded to include Physician Office Laboratories that hold appropriate CLIA certification and clinics that operate Limited Service Laboratories registered for blood lead analysis.  Direct reimbursement by Medicaid for onsite testing will allow for more routine blood lead testing of children and pregnant women.  This practice is vital to ensure early identification and to prevent further exposure.

Other steps have been taken as well.  Pursuant to Public Health Law § 1370-a, health care providers are required to timely report all blood lead test results to the NYSDOH in order to maintain a statewide registry of blood lead levels in children.  Recent legislation included in this year’s budget is directed at linking the statewide immunization registry and the statewide registry of children’s blood lead levels in order to promote lead testing of children by providers and improve NYSDOH’s ability to examine testing rates.

In combination with the Governor’s Inter-Agency Task Force, the Childhood Lead Poisoning Primary Prevention Program, and the improvements made to the state immunization registry, the “Point of Care” onsite testing program is an important step toward reducing lead poisoning in the state.

Thanks to summer law intern Stephanie Scalzo for her research and writing of this article, and to Empire Justice Center’s Mike Hanley for his comments and additions.