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Childhood Lead Poisoning Prevention Fee

Health and Safety Code

CHAPTER 5 CHILDHOOD LEAD POISONING PREVENTION


Childhood Lead Poisoning Prevention Fee

Health and Safety Code Provisions

DIVISION 103. DISEASE PREVENTION AND HEALTH PROMOTION

[Added by Stats, 1995, Ch. 415, effective January 1, 1996.]

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 & 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, 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 blood reaches or exceeds levels constituting a health risk, as specified in the most recent United States Centers for Disease Control guidelines for lead poisoning as determined by the department, or when the concentration of lead in whole venous 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 Health Services.

(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 venous 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) After July 1, 1992, but on or before July 1, 1993, the department shall adopt regulations establishing a standard of care, at least as stringent as the most recent United States Centers for Disease Control screening guidelines, whereby all children shall be evaluated for risk of lead poisoning by health care providers during each child's periodic health assessment. The regulations shall be developed in consultation with medical experts, environmental experts, appropriate professional organizations, and the public, as determined by the department.

(b) The standard of care shall provide that, upon evaluation, those children determined to be "at risk" for lead poisoning, according to the regulations adopted pursuant to subdivision (a), shall be screened.

(c) The standard of care shall provide that no child shall be screened pursuant to this article if the parent or guardian of the child refuses to consent to the screening.

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

(e) The standard of care established pursuant to this section shall not become operative before April 1, 1993.

105290. Case management. On or after April 1, 1993, in those instances in which 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.

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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. 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 deartments and the general public.

105300. Regulatory authority of deartments. 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) Reimbursement for state-sponsored services related to screening and appropriate case management.

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

(f) 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) Development of appropriate case management protocols.

(h) 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.

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.

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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, which have significantly contributed historically, currently contribute, or both have significantly contributed historically and contribute currently to environmental lead contamination.

(b) After July 1, 1992, but on or before January 1, 1993, 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 which, 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 first payment of these fees shall be due on or before April 1, 1993. 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 Consumers 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 article.

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) No fee shall 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) No fee shall 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 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 which 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.

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