Certificate of Service RE: Memorandum in Opposition to Petitions for Writs of Certiorari

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IN THE UNITED STATES DISTRICT/COURT U S oistrictcourT ^ "FOR THE NORTHERN DISTRICT OF [TEXAS 1 district or rt-XAS_ _ _________I L J I P r\DALLAS DIVISION

LOIS THOMPSON on behalf of 
and as next friend to TAYLOR 
KEONDRA DIXON, ZACHERY X. 
WILLIAMS, CALVIN A. THOMPSON, 
and PRENTISS LAVELL MULLINS 

Plaintiffs,
and

F  I
j  i. e  r

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0 a

PEOPLE UNITED FOR A BETTER 
OAKLAND, et al.,Plaintiff-intervenors,
v.
BURTON RAIFORD 
a n d
THE UNITED STATES OF AMERICA

D e f e n d a n t s .

* CIVIL ACTION NO.
* 3:92-CV-1539—R
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SETTLEMENT AGREEMENT
This Settlement Agreement is made by and on behalf of 

Lois Thompson, on behalf of and as next friend to Taylor Keondra 
Dixon, Zachery X. Williams, Calvin A. Thompson and Prentiss 
Lave11 Mullins; People United for a Better Oakland; Denver Action 
for a Better Community; New York City Coalition to End Lead 
Poisoning; Robin Gourley on behalf of and as next friend to Bryan 
Alan Gourley, Wesley Kyle Gourley, Bridget Michelle Gourley,
Linda Danielle Gourley, and Betsey Irene Gourley; Tearrah 
Roberson on behalf of and as next friend to Juan Wilkins; and 
Mary Marie Roberson on behalf of and as next friend to Ashard 
Moore, Jason Rollins, Ashea Roberson, and Nasheika Roberson, 
Plaintiffs herein; and defendant, Donna Shalala, Secretary,
United States Department of Health and Human Services, in the 
above-entitled action by and through the parties' undersigned



(-

attorneys.
WHEREAS, the parties agree that childhood lead poisoning is 

a serious health problem facing children in America today. The 
parties further agree that the continuation of a cohesive program 
to address the problem of childhood lead poisoning is desirable.

WHEREAS, the parties agree that HHS, through the Health Care 
Financing Administration ("HCFA"), defines appropriate blood lead 
level assessment by reference to various current sources of 
medical expertise, including, most importantly, the periodic 
statements of the Public Health Service's Centers for Disease 
Control and Prevention ("CDC") on "Preventing Lead Poisoning in 

Young Children."
WHEREAS, the parties believe that the majority of Medicaid- 

eligible children are at high risk for lead poisoning.
It is hereby agreed, by and between the parties, appearing 

through their undersigned attorneys, that this action is settled 

on the following terms:
1, in accordance with Federal Rules of Civil Procedure 

23(a) and (b)(2), the parties agree that this action shall 
proceed as a nationwide class action effective as of the date of 
notice to the class, defined as "all Medicaid-eligible children 
under age 72 months who are eligible to receive Early and Period­
ic Screening, Diagnosis, and Treatment ("EPSDT") program servic­
es." The term "Medicaid-eligible" means an individual who has 
been determined under the authority of a state Medicaid agency as 
eligible to receive medical assistance under Title XIX of the

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o

Social Security Act, 42 U.S.C. § 1396, and who remains so eligi­

ble.
2. HHS agrees to revise the instructional and interpretive 

guidance concerning lead toxicity screening of Medicaid-eligible 
children contained in the "State Medicaid Manual" in accordance 
with the terms of this Settlement Agreement. Any subsequent 
letters or guidance to the states shall be in accordance with the 
revised State Medicaid Manual.

3. HHS, through HCFA's "State Medicaid Manual," will inform 
the states that the erythrocyte protoporphyrin ("EP") test is not 
to be considered an acceptable test for screening Medicaid 
eligible children for lead poisoning, regardless of the child's 
risk level. Under the revised policy, HCFA will now require the 
use of the blood lead test as the only acceptable laboratory 
screening test for performing blood lead level assessments. In 
requiring use of only the blood lead test for lead screening, 
HCFA's revised policy will place the responsibility on the 
individual states to reach adequate laboratory capacity to 
perform blood lead testing for all Medicaid—eligible children.

4. HHS, through HCFA's "State Medicaid Manual," will inform

the states that:
Lead Toxicity Screening. —  All children ages 6 months to 72 

months are considered at risk and must be screened for lead 
poisoning. Each State establishes its own periodicity schedule 
after consultation with medical organizations involved in child 
health. These periodicity schedules and any other associated

3



office visits must be used as an opportunity for anticipatory 
guidance and risk assessment for lead poisoning.

a. Risk Assessment. All children from 6 to 72 months of 
age are considered at risk and must be screened. Beginning at 
six months of age and at each visit thereafter, the provider must 
discuss with the child's parent or guardian childhood lead 
poisoning interventions and assess the child's risk for exposure. 
Ask the following types of questions at a minimum.
• Does your child live in or regularly visit an old house 
built before 1960? Was your child's day care
center/preschool/babysitter's home built before 1960? Does the 
house have peeling or chipping paint?
• Does your child live in a house built before 1960 with 
recent, ongoing or planned renovation?
• Have any of your children or their playmates had lead 
poisoning?
• Does your child frequently come in contact with an adult who 
works with lead? Examples are construction, welding, pottery, or 
other trades practiced in your community?
• Does your child live near a lead smelter, battery recycling 
plant, or other industry likely to release lead such as (give 
examples in your community)?
• Do you give your child any home or folk remedies which may 
contain lead?
• Does your child live near a heavily travelled major highway 
where soil and dust may be contaminated with lead?
• Does your home's plumbing have lead pipes or copper with 
lead solder joints?
Ask any additional questions that may be specific to situations 
which exist in a particular community.

b. Determining Risk. Risk is determined from the response 
to the questions which your State requires for verbal risk

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assessment.
• If the answers to all questions are negative, a child is 
considered low risk for high doses of lead exposure, but must 
receive blood lead screening by blood lead tests at 12 months and

24 months of age.
• If the answer to any question is positive, a child is 
considered high risk for high doses of lead exposure. A blood 
lead test must be obtained at the time a child is determined to 

be high risk.
Subsequent verbal risk assessments may change a child's risk 

category. If as a result of a verbal risk assessment or other 
information conveyed during a screening visit a previously low 
risk child is recategorized as high risk, that child must be 

given a blood lead test.
c. Screening Rlood Lead Tests.--The term screening blood 

lead tests refers to blood lead.tests for children who have not 
previously been tested for lead with the blood lead test or who 
have been previously tested and found not to have an elevated 
blood lead level. If a child is determined by the verbal risk 

assessment to be at:
(1) Low Risk.—  A screening blood lead test is re­

quired at 12 months of age and a second blood lead test at 24 

months of age.
(2) High Risk.—  A blood lead test is required when a 

child is identified as being high risk, beginning at six months 
of age. If the initial blood lead test results are less than (<)

5



<

10 micrograms per deciliter (ug/dL), a screening blood lead test 
is reguired at every visit prescribed in the States' EPSDT 
periodicity schedule through 72 months of age, unless the child 
has received a blood lead test within the last six months of the

periodic visit.
A blood lead test result equal to or greater than (>) 10 

ug/dL obtained by capillary specimen (fingerstick) must be
confirmed using a venous blood sample.

If a child between the ages of 24 months and 72 months has
not received a screening blood lead test, then that child must 
receive it immediately, regardless of being determined at low or

high risk.
d. Diagnosis. Treatment and Follow-up.— If a child is 

found to have blood lead levels equal to or greater than (>) 10
ug/dL, providers are to use their professional judgment, with 
reference to CDC guidelines covering patient management and 
treatment, including follow up blood lead tests and initiating 
investigations to the source of lead, where indicated. Determin­
ing the source of lead may be reimbursable by Medicaid.

e. coordination with other Agencies. Coordination with 
WIC, Head Start, and other private and public resources enables 
elimination of duplicate testing and ensures comprehensive 
diagnosis and treatment. Also, public health agencies' Childhood 
Lead Poisoning Prevention Programs may be available. These 
agencies may have the authority and ability to investigate a 
lead-poisoned child's environment and to require remediation.

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5. Nothing in this Settlement Agreement alters HCFA's 
policy concerning the extent to which investigations to determine 
the source of lead are reimbursable by Medicaid.

6. HHS, through HCFA, agrees to publish the revision as a 
State Medicaid Manual transmittal not more than thirty (30) days 
from the date this Settlement Agreement is approved by the Court 
with an effective date not more than ninety (90) days from the 
date this Settlement Agreement is approved by the Court.

7. HHS retains the right to alter the terms of its guidance 
to the states to respond to changes in pertinent legislation or 
implementing regulations, or to significant new scientific 
information and/or developments regarding childhood lead poison­
ing screening and treatment. In the event HHS makes any such 
alterations within one year of this Court's approval of the 
settlement agreement, plaintiffs and plaintiff—intervenors retain 
the right to re-institute this civil action challenging the 
legality of HHS' actions by filing a supplemental complaint. 
Defendant Donna Shalala, Secretary of HHS, retains the right to 
present any and all defenses to such an action.

In the event any such alterations are made after that date, 
plaintiffs and plaintiff-intervenors retain the right to insti­
tute a new civil action challenging the legality of HHS' actions, 
and defendant retains the right to present any and all defenses 

to such an action.
8. The parties agree that United States Centers for Disease 

Control and Prevention ("CDC") is an appropriate body to look to

7



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for guidance in the development of a childhood lead poisoning 
prevention program, and that the CDC's October 1991 statement 
entitled Preventing Lead Poisoning in Young Children ("CDC 
Statement") with respect to the proper protocol for pediatric 
lead testing is an important source of available medical knowl­
edge regarding pediatric lead screening, testing, and treatment.

9. Defendant shall make available to plaintiffs and/or 
plaintiff-intervenors any non-privileged information in her 
possession on the efforts of state Medicaid programs to implement 
blood lead level testing under the EPSDT program. This informa­
tion shall be made available to plaintiffs and plaintiff-interve­
nors within a reasonable time after a written reguest for such
information is received by defendant.

10. The parties agree that notice to the class of this
Settlement Agreement, as defined in paragraph 1 above, will be 
provided through the publication and distribution of notice of 
this Settlement Agreement to the following organizations that 
represent low—income children on Medicaid and other health 
related issues, not to exceed fourteen (14) such organizations:

1) National Clearinghouse for Legal Services
2) National Health Law Program
3) National Housing Law Project
4) National Center for Youth Law
5) Children's Defense Fund
6) Alliance to End Childhood Lead Poisoning
7) ABA Center on Children and Law

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8) Trial Lawyers for Public Justice
9) Lawyers Committee for Civil Rights Under Law
10) Puerto Rican Legal Defense and Education Fund
11) Mexican American Legal Defense and Education Fund
12) Environmental Defense Fund
13) Sierra Club Legal Defense Fund
14) Natural Resources Defense Council

The cost of this notice is to be borne by defendant Department of 
Health and Human Services.

11. Neither this Settlement Agreement nor any negotiations 
q]~ proceedings xn connection herewxth shall be construed/ of 
fered, received as, or deemed to be evidence of an admission on 
the part of defendant Donna Shalala, HHS, HCFA or any of their 
employees, of any breach, liability or wrongdoing whatever, 
whether as alleged in the litigation or otherwise.

12. The obligations of this Settlement Agreement are 
subject to approval by the Court. Upon execution of the Settle­
ment Agreement by the parties, the parties will file a joint 
motion for approval of the Settlement Agreement and approval of 
notice to the class with the Court and dismissal of the case on 
the terms of the agreed order attached to this Settlement Agree 

ment.
13. Attorney's fees
Defendant shall pay the following listed amounts to the 

entities representing plaintiffs and plaintiffs—intervenors for 
attorney's fees, litigation expenses, and costs:

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A. NAACP Legal Defense and Educational Fund, Inc. = $26,316,
B. National Health Law Project, Inc. = $8,553,
C. Bronx Legal Services = $10,526,
D. Edward B. Cloutraan, III = $3,947,
E. Michael M. Daniel, P.C. = $40,658.

The payments shall be full satisfaction of all claims for 
attorney's fees, litigation expenses, and costs incurred through 
the Court approval of the settlement agreement.

The payments shall be made within 30 days of the Court's 
approval of the settlement agreement.

14. The parties agree that this Settlement Agreement shall 
be effective once it has been signed on behalf of all the parties 
and approved by the Court.

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Agreed to in form and substance.
Michael M. Daniel, P.C.

By: /ffiXMAtiub. O&QbjXth
LAURA/B.' beshara
MICHAEL M. DANIEL 
Attorneys for plaintiffs
NAACP Legal Defense and Educational Fund, Inc.

•s- Date

Date

By: _________ ____________
BILL LANN LEE 
KIRSTEN D. LEVINGSTON
National Health Law Program

By: _______ _________
JANE PERKINS
Bronx Legal Services

B y : _______________________
LUCY BILLINGS 
MARIE-ELENA RUFFO
Attorneys for Plaintiff-Intervenors

UNITED STATES DEPARTMENT OF JUSTICE Date

By: ________ ______ _________
SHEILA LIEBER 
ALINA S. KOFSKY 
STEVEN H . HARTMANN 

Attorneys for Defendant USA

11



,_lUG 6 ’ 93  9 : 5 3  FRQ(; MPlftCP L . A .
08/05/93 14:10

P A G E . 0 0 3

Agreed to in form and substance: 
Michael M. Daniel, P-C.

LAURA B. BESHAk T  
MICHAEL M. DANIEL
Attorneys for plaintiffs
SAXOP Legal Pefeaee and Educational Fund, Inc.

By:BibKIRSTEN D- LEVXNc/uTON 
National Health Law Program

By: _JANE PERKIN8
Bronx Legal Services

By: -—BOCY BILLINGS 
marie-elena Ruffo
Attorneys for Plaintiff-Intervenors

UNITED STATES DEPARTMENT OF JUSTICE

■ & M &

Data

—--t-- *— Date

Date

Date

--- - Date

By* ' SHEILA LlEBElT
ALINA S. KOFSKY 
STEVEN H. HARTMANN 

Attorneys for Defendant USA

11



o

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

LOIS THOMPSON on behalf of 
and as next friend to TAYLOR 
KEONDRA DIXON, ZACHERY X. 
WILLIAMS, CALVIN A. THOMPSON, 
and PRENTISS LAVELL MULLINS

Plaintiffs,
and
PEOPLE UNITED FOR A BETTER 
OAKLAND, et al.,Plaintiff-intervenors,
v.BURTON RAIFORD

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★
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★
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CIVIL ACTION NO• 
3:92—CV—1539—R

THE UNITED STATES OF AMERICA 
Defendants.

ftCREED ORDER

The Court finds and orders that:
1. The requirements of Fed. R. Civ. P. 23(a) and (b)(2) are 

met. A nationwide class is certified as follows: All Medicaid-
eligible children under age 72 months who are eligible to receive 
Early and Periodic Screening, Diagnosis, and Treatment ("EPSDT") 
program services. The term ..Medicaid-eligible'' means an individ­
ual who has been determined under the authority of a state 
Medicaid agency as eligible to receive medical assistance under 
the Title XIX of the Social Security Act, 42 U.S.C. S 1396, and 

who remains so eligible.
2. The terms of the settlement agreement are fair to the 

members of the class.
3. The class has been adequately represented in the negoti­

ation which resulted in the settlement agreement.

1



(

4. Class notice has been adequately provided through the 
publication and distribution of notice of this Settlement Agree­
ment to the following organizations that represent low-income 
children on Medicaid and other health-related issues:

1) National Clearinghouse for Legal Services
2) National Health Law Program
3) National Housing Law Project
4) National Center for Youth Law
5) Children's Defense Fund
6) Alliance to End Childhood Lead Poisoning
7) ABA Center on Children and Law
8) Trial Lawyers for Public Justice
9) Lawyers Committee for Civil Rights Under Law
10) Puerto Rican Legal Defense and Education Fund
11) Mexican American Legal Defense and Education Fund
12) Environmental Defense Fund
13) Sierra Club Legal Defense Fund
14) Natural Resources Defense Council
5. This action against defendant United States of America

and Secretary of the Department of Health and Human Services, 
Donna Shalala, is an action seeking solely injunctive and declar­

atory relief.
6. Upon an independent review of all the pleadings and the 

agreement of the parties, the Settlement Agreement is found to be 
fair, adequate and reasonable, and pursuant to Rule 23(e) of the 
Federal Rules of Civil Procedure, the same is approved.

2



7 . Except as provided in paragraph 7 of the Settlement 
Agreement, the case against the federal defendants is dismissed

with prejudice.
IT IS SO ORDERED.

------ UNITED STATES DISTRICT JUDGEDate

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AGREED TO IN FORM AND SUBSTANCE:
Michael M. Daniel, P.C.

By: UJ\0.
laura' b V beshara
MICHAEL M. DANIEL 
Attorneys for plaintiffs
NAACP Legal Defense and Educational Fund, Inc.

By: ^
BILL LANN LEE 0
KIRSTEN D. LEVINGSTON
National Health Law Program

Date

Date

. Date

By: ____________ _________
JANE PERKINS
Bronx Legal Services - Date

B y : ______ _____________ ____LUCY BILLINGS 
MARIE-ELENA RUFFO
Attorneys for Plaintiff-Intervenors

UNITED STATES DEPARTMENT OF JUSTICE Date

By: _____ ______ ___________-SHEILA LIEBER 
ALINA S. KOFSKY 
STEVEN H. HARTMANN Attorneys for Defendant USA

4



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f o r m a n d s u b s t a n c e  *a g r e e d  t o  in

Michael M. Daniel,

LAURA B. BESHARA 
MICHAEL M. DANIEL
Attorneys for plaintiffs
NAACP Legal Dufensa and Educational Fund, Inc.

Dote

Date

By* ---------------------
b i l l  l ANNKIRSTEN D. LEVINGSTON 
National Health Law Program Date

j^E-TEBiuHS ' H i 3
Bronx Legal Services Date

BY! / jlmin-i'Mi-
LUCY BILL^gT" 
mar i e-elena ruffo
Attorneyn lor plal ntil 1 -Intorvnnorn

u n i t e d  s t a t e s d e p a r t m e n t  o f j u s t i c e Date

By t SHEILA LIEBEK 
ALINA 8. KOFSKY STEVEN H. HARTMANN 

Attorneys for Defendant

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Agreed t° in *«■* “ d EUb»tan0<5' 
Michael H. Daniel, r.C.

LAUBTe TBESHARA 
MICHAEL M. DANIEL

D a t e

Attorneys for plainfci lnCl
HAACP heg.l Defense and .duoatlonal

S b ^ f s ^ S v ii’GsToH

Date

national Health ha„ Program

HAHiBi i*""
Attorneys lot Plalntiff-m— e

u n i t e d s p a t e s d e p a k t m e h t  or j u s t i c e

~SHEI1a T1E6ER’

$K5«i. ™mTnl USAAttorneys (or Defendant USA

Date

D a t e

Date

11



Agreed to in form and substance: 
Michael M. Daniel# P-C.

LAURA B . BEfcJWARA 
MICIIAEL M. DANIEL
Attorneys for plaintiffs
HAACP Legal Dofenao and Educational Fund, ino

Date

Date

By: ._______________—BILL LANN LEE KIRSTEN D. LEVING8TON
National Health Law Program Date

By: ______ __________JANE PERKINS
Bronx Legal Services

LUCY BILLINGS
S

MARIE-ELENA r d f f o 
Attorneys for Plaintiff-intervenes

UNITED STATES DEPARTMENT OF JUSTICE

Ai^vrro. til*

Date

By* SHEILA LIEBER
ALINA S. KOFSKY 
STEVEN H, HARTMANN Attorneys for Defendant USA

11

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Agreed to In form and substance: 
Michael M. Daniel, p.c.

By: _ _
LAURA. B. BE8HARA ----“ — ____ -________.
MICHAEL M. DANIEL Date
Attorneys for plaintiffs
NAACP Legal Defense and Educational Fund, me.

Date
By:
BILL LANK USE -------
K i r s t e n d . l e v i n g s t o n

0Q/'?!3?atioftamealth Law Program' • » -ALokyVwJ i

Date
By:
JANE PERKINS ~
• Jl :o<; .*
Bronx Legal Services•«'!» ti! » ---

Date
By:
LUCY- BILLINGS '— ~
MARIE-ELENA RUFF?) ' 'i! !| i
Attorneys for Rlaintiff-mtervenors 

UNITED STATES DEPARTMENT OF :JTJSTICE • r

J Jali na s . k o f s k y 
... „ STEVEN H. HARTMANN
' •' Attorneys for Defendant USA

1. '
I >.

11

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