NYC DOE Faces Potential $10 Million Lawsuit Over Lead-Poisoned Child

New York City’s Department of Education is facing a potential lawsuit over lead paint poisoning in classrooms discovered after Mayor Bill de Blasio’s sweeping inspection and remediation program last year.

The notice of claim filed last week seeks $10 million in damages on behalf of a toddler whose mother says she was poisoned by deteriorating lead paint while attending a 3-K program in Bushwick in 2018 and 2019.

It says the family only learned of the problem because of a mixup between the school system and the Department of Health.

The legal action follows a period of increased scrutiny over lead paint in schools, touched off by a WNYC investigation that found widespread contamination in four city school buildings.

Click here to listen to reporter Christopher Werth discuss this story with Jami Floyd on WNYC:

The DOE did a citywide inspection and carried out remediation work in 1,800 classrooms last summer—over 20% of the rooms it inspected. They also implemented broad new inspection protocols that became legal requirements under a series of new laws passed by the City Council. 

But several public-health advocates and elected officials said the facts behind the toddler’s legal claim reveal a number of remaining gaps in the city’s lead-protections laws—including whether city agencies are adhering to the spirit of recent reforms, and why the DOE remains in charge of conducting its own inspections.

“Violation of Rules and Regulations”

According to the claim, the girl’s mother, Cynthia Velasco enrolled her daughter in the 3K program at the Bushwick United Learning Center at 200 Central Avenue in 2018. 

The school occupies a squat, three-story brick building in north Brooklyn and is operated by a community-based organization — one of many that have been instrumental in helping Mayor de Blasio quickly ramp up universal 3K and pre-K programs over the last six years, among his signature achievements. 

Velasco declined an interview request, but medical records in the notice of claim show her daughter repeatedly tested with elevated levels of lead in her blood over the course of the school year.

Lead is a neurotoxin that is particularly harmful to young children. Even at relatively low levels, it can cause brain damage, reduced IQ, hyperactivity and other behavioral problems. 

In New York City, any child who tests above 5 micrograms of lead per deciliter of blood is immediately referred to the Department of Health and Mental Hygiene, which conducts an investigation to look for the source of exposure, including inside homes and daycares. 

Velasco’s daughter eventually tested at more than four times the city’s action level.

According to Velasco’s attorney, Reuven Frankel, the Health Department’s inquiry ultimately led to a grandparent’s apartment in Queens — where lead paint was also found — and to the child’s school. But only by accident, because the Department of Health is usually barred from testing for lead paint in buildings under the DOE’s supervision.

Nevertheless, on September 6th, 2019 — the day after the fall semester got underway — a health inspector named Eric Leung walked through the doors at Bushwick United, wrongly believing it was a privately run daycare. A copy of his inspection report shows he found dozens of areas of “chipping/peeling paint” inside a number of classrooms. Further testing showed 14 paint surfaces were positive for lead. 

According to Leung’s notes, he informed school officials of his findings, advised teachers to “keep all children away from areas with lead based paint,” and filed his inspection report with the code “VRR” or “Violation of Rules and Regulations,” which typically results in an order from the city’s health commissioner to conduct abatement work.

But then the Health Department realized it was never supposed to have inspected Bushwick United in the first place. Five days later, a supervisor added a handwritten amendment to Leung’s report that read, “DOE liaison confirmed that this facility is under DOE jurisdiction.” The violations were then dropped.

“This is highly unusual activity,” said Frankel, whose firm has represented hundreds of families in lead poisoning cases since the 1980s. “They didn’t realize it was a DOE operation, so they did go in and they found the lead. And they just shelved it.”

Velasco claims neither the Health Department nor anyone else notified her of the lead-paint hazards found in her child’s classroom. There is no existing requirement to notify individual parents about lead-paint hazards found in schools and daycares.

“This is a great example of why the Department of Education shouldn't be monitoring itself and why it has to be very clear that the Department of Health is going to identify and see to it that if you have a child with an elevated blood-lead level, and you found the source of exposure, that you're going to follow through to make sure it's remediated,” Frankel said. “There's no reason why the Department of Education should be more protected than any landlord.”

But the DOE tells a different story. 

It claims Bushwick United’s lead-paint violations were reversed only because the Health Department was mistakenly using a new, stricter standard — passed by the City Council last year in a nearly unanimous vote — that lowered the city’s threshold for how much lead needs to be in an old painted surface before it can be officially considered lead paint. The DOE said it interprets the law as only applying to children’s homes, not their classrooms.

“Upon further review during their investigation, the Health Department determined this early childhood site meets the City’s safety standard for lead-based paint and out of an abundance of caution DOE abated the space,” said DOE spokesperson Miranda Barbot in a written statement to WNYC/Gothamist.

“Schools do not present a principal (sic) risk of exposure, and there is no way to definitively determine the source,” she said.  

The DOE’s interpretation of the new legal standard for lead paint has raised concerns within the City Council and surprised public-health advocates who said it doesn’t match what the law was intended to do.

“It’s news to me that this doesn’t apply to schools,” said City Council Member Mark Levine, chair of the health committee. “This absolutely should apply to schools. If the bill is ambiguous, then I would certainly support a legislative fix.”

City Council spokesperson Jennifer Fermino said, “The Council is aware of the issue and is looking into it.” Council staff members met on Thursday to discuss the loophole..

Both the DOE and the Health Department have long maintained that lead-paint hazards in school buildings don’t play a significant role in childhood lead exposure in the city. Lead paint in the home has proven to be the most common source in cases of children with elevated lead levels. But public-health experts say it’s unclear just how much exposure occurs inside schools, or how frequently health inspectors have had to turn their attention to paint conditions inside a child’s classroom. 

City Council Member Mark Treyger, chair of the education committee, said he would refer Velasco’s case to the city’s Department of Investigation and to the District Attorney’s office. 

“We need accountability,” he said. “We need to know how this happened and how to make sure this never happens again.”

Citywide Hazards

By the start of the school year last fall—just as the Health Department was inspecting Bushwick United’s facility in Brooklyn—Schools Chancellor Richard Carranza announced the DOE had tested and stabilized deteriorated lead paint in all of its applicable classrooms serving children under six years of age. It also committed to conducting inspections three times a year and to make the results publicly available, changes that are now required by law.

And yet, Bushwick United’s facility at 200 Central Avenue does not appear in lead-inspection data the DOE has publicly released thus far. Neither do the four other school buildings listed on the organization’s website that were constructed prior to 1985.

WNYC/Gothamist made several attempts to contact Bushwick United and its executive director, Jose Gonzalez. The school is run by a housing development fund corporation that currently operates over half a dozen daycare and preschool facilities in Brooklyn.

A review of Bushwick United’s past financial statements show it’s received roughly $9 million to $11 million annually in city contracts and grants to provide educational services. Records from 2018 show the city leases the building at 200 Central Avenue directly from the landlord, but the DOE said the site only came under its jurisdiction in July of last year.

Neither the DOE nor the Department of Health responded to follow-up questions. 

“It Must Be Changed”

Council Member Treyger, a Democrat who represents a district in South Brooklyn, said Velasco’s experience is a “painful reminder of the disconnect in city policy” that allows the DOE to use school custodians and other maintenance staff to conduct its own inspections for deteriorating paint.

“For whatever reason, the mayor has created a structure that tells the Health Department that their work ends at the schoolhouse gate, when in fact schools don't really have public-health experts to do this critical and vital work,” said Treyger. “This is not by accident. It is my view that this disconnect is by design to shield the city from accountability and from transparency, and it must be changed.”

He said the City Council had sought to craft new legislation last year that would have handed responsibility for lead-paint inspections in schools over to the Health Department, but council members were told they did not have the authority to do so.. 

“We appealed to the mayor, directly to his office, to just do this by executive order,” said Treyger. “They refused.”

Mayor de Blasio’s office did not respond to a request for comment.