Complaint

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HEY § big, J 
M oa 

GLE SF ig 

JOEL R. REYNOLD: 
] i 

JACQUELINE WARREN 
DEC 2 6 1990) 

NATURAL RESOURCES DEFENSE COUNCIL TT “is 

617 S. Olive Street, Suite 1210 Sys 

Los Angeles, CA 90014 PRIGINAL Ll 

(213) 892-1500 ILE D 

JANE PERKINS DEC 2 ¢ 

NATIONAL HEALTH LAW PROGRAM 199%... 

2639 S. La Cienega Blvd. RicHARp 
Los Angeles, CA 90034 a ee gl 

(213) 204-6010 A OF CABGrmg 

STEPHEN RONFELDT 

SUSAN SPELLETICH 

LEGAL AID SOCIETY OF ALAMEDA COUNTY 

1440 Broadway, Suite 700 
Oakland, CA 94612 
(415) 451-9261 

BILL LANN LEE 

KEVIN S. REED 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, IRC. 

315 W. 9th Street, Suite 208 

Los Angeles, CA 90015 

ESE "8 90 3620 ° 
MARK D. ROSENBAUM 

ACLU FOUNDATION OF SOUTHERN CALIFORNIA 

633 South Shatto Place 

Los Angeles, CA 90005 

{213) 487-1720 

ERY 

Attorneys for Plaintiffs 

(Additional counsel on following page) 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

ERIKA MATTHEWS AND JALISA MATTHEWS, 

by their guardian ad litem Lisa 

Matthews, and PEOPLE UNITED FOR A 

BETTER OAKLAND, On Behalf of 

  

Themselves and All Others Similarly Civ. No. 

Situated, : 
CLASS ACTION 

Plaintiffs, 

Vv. COMPLAINT 

KENNETH KIZER, Director, California 

Department of Health Services, 

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Defendant. ) 

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COMPLAINT 

  

 



  

  

  

      

EDWARD M. CHEN 

ACLU FOUNDATION OF NORTHERN CALIFORNIA 

1663 Mission Street, Suite 460 
San Francisco, CA 94103 
(415) 621-2493 

Attorneys for Plaintiffs 

COMPLAINT 

  

 



  

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x. INTRODUCTIO). 

2. This action for declaratory and injunctive relief 

  

challenges the failure of the California Department of Health 

Services and its Director Kenneth Kizer ("Department") to comply 

with mandatory federal Medicaid statutes and guidelines that 

require the Department to detect and treat lead blood poisoning in 

poor children. 

2. Lead poisoning is one of the most serious and 

widespread environmental diseases affecting children in the United 

States. Over three million children -- one in six -- have levels 

of lead in their blood high enough to cause significant impairment 

to their neurologic development. Experts estimate that over 67% 

of black inner-city children and almost 17% of all urban children 

in the United States have been contaminated by excessive levels of 

lead. According to the Department in 1989, 50,000 children : 

annually could be found tc have toxic blood lead levels if all 

children at risk in California were screened. 

3% These staggering levels of contamination are due to the 

pervasive use of lead products in our society, in lead-based paint 

and gasoline, leaded drinking-water pipes, printing inks and 

pigments used in toys, fertilizers, and lead-soldered food cans. 

Lead enters the body through the mouth or nose and, once there, is 

a powerful toxin with long-term harmful effects. Lead's effects 

may include decreased intelligence, loss of short-term memory, 

underachievement in reading and spelling, impairment of visual- 

motor functioning, impotence, sterility, spontaneous abortion, 

anemia, convulsions, hypertension, kidney disease, and cancer. 

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COMPLAINT 

  

 



  

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Children and fetuses are especially vulnera. .e to these effects 

because their neurologic systems are developing. 

4. Because early lead toxicity is reversible, and patients 

may be asymptomatic or only vaguely symptomatic, monitoring of 

lead blood levels is critical. Measuring blood-lead content is 

generally considered by experts to be the most accurate and 

reliable measure of the level of exposure to lead. Once detected, 

lead poisoning and related health defects can often be treated 

and, in many cases, measures can be undertaken to detect and 

eliminate the source of exposure. 

5. The federal Medicaid Act ("Act") imposes a mandatory 

duty upon the Department to ensure that blood lead levels are 

measured in poor children and to provide necessary treatment. 

Specifically, the Act requires the Department to include in its 

Medicaid program early and periodic screening, diagnosis and 

treatment ("EPSDT") for eligible children under age 21, see 42 

U.S.C. §§ 1396a(a) (43), d(a) (4) (B), and 1396d(r), including lead 

blood level assessments. 42 U.S.C. § 1396d(r). The Department is 

also required to provide treatment for the effects of lead 

poisoning discovered during the screen. 42 U.S.C. § 1396d(r). 

6. The Department's Medicaid program, known as "Medi- 

Cal," provides EPSDT screens through the Child Health and 

Disability Prevention Program ("CHDP/EPSDT Program"). Cal. Welf. 

& Inst. Code § 14132(v). That program, however, fails to provide 

for or require lead blood assessments and treatment, in violation 

of 42 U.S.C. §§ 1396a(a) (43), 1396d(a) (4) (B), and 1396d(r). 

Accordingly, the Department has violated and continues to violate 

its mandatory statutory duty to implement and administer the 

COMPLAINT 

  

 



  

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sions of the Medicaid CHDP/EPSDT Prog. .m consistent with the prot 

Act cited above. 

II. JURISDICTION AND VENUE 
  

7. This is a civil action authorized by 42 U.S.C. § 1983 

to redress the deprivation under color of state law of rights, 

privileges, and immunities guaranteed by the Constitution of the 

United States or by acts of Congress. This Court has jurisdiction 

pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). 

8. This Court also has jurisdiction over plaintiffs’ 

action for declaratory relief pursuant to 28 U.S.C. § 2201 and 

Fed. R. Civ. P. 57. Injunctive relief is authorized by 28 U.S.C. 

§ 2202, 42 U.S.C. § 1983, and Fed.  R. Civ. P. 65. 

9. The defendant named herein resides in, maintains 

offices in, or is responsible for enforcing the laws relevant to 

this litigation in the Northern District of California. 

III. PLAINTIFFS 
  

10. Plaintiff Erika Matthews, who is two years old, and her 

sister and plaintiff Jalisa Matthews, who is one year old, are 

African-American California residents eligible for Medi-Cal 

services. Plaintiffs Erika and Jalisa Matthews are entitled and 

have attempted to obtain lead-blood assessments and, if necessary, 

treatment through the CHDP/EPSDT Program but have been denied. . 

either an assessment or treatment because of the Department's: 

failure to implement the Medicaid Act as described herein. They 

appear in this action through their mother and guardian ad litem 

Lisa Matthews. 

11. Plaintiff People United for a Better Oakland ("PUEBLO") 

is an unincorporated association comprised of low-income, minority 

COMPLAINT 

  

 



  

    

individuals who _re concerned about health _ ~oblems in California, 

particularly the hazards of high lead exposure in children. 

Approximately 90 percent of PUEBLO's members and their children 

are Medi-Cal recipients, many of whom are eligible for CHDP/EPSDT 

screens. PUEBLO's members and their children have attempted to 

obtain, but have been denied, lead-blood assessments and/or 

treatment through the Department's CHDP/EPSDT Program. 

IV. DEFENDANT 
  

12. Defendant Kenneth Kizer is the Director of the 

california Department of Health Services ("Department"), the state 

agency responsible for administration of the Medi-Cal program. 

Defendant Kizer's duties include supervision and control of the 

Medi-Cal program, including the CHDP/EPSDT Program, so as to 

secure full compliance with the governing laws. Under Defendant 

Kizer's supervision, the Department has failed to implement a lead 

blood assessment and treatment program for Medi-Cal eligible 

children in violation of 42 U.S.C. §§ 1396a(a) (43), 

1396d(a) (4) (B), and 1396d(r). Defendant Kizer is sued in his 

official capacity. 

IV. CLASS ACTION ALLEGATIONS 
  

13. Plaintiffs PUEBLO and Matthews bring this action on 

their own behalves and, pursuant to Fed. R. Civ. P. 23(a) and 

23(b) (2), on behalf of a class of all similarly situated children 

in California who are or will be eligible for lead blood screening 

and treatment of related health conditions through the Medi-Cal 

CHDP/EPSDT Program but who have been denied such screening and/or 

treatment because of the Department's failure to include mandatory 

LL] 

COMPLAINT    



lead blood assec ments and necessary treatm t as part of the 

  

2 || CHDP/EPSDT Program. 

3 14. The requirements of Fed. R. Civ. P. 23 are met in that 

4 | the class is so numerous that joining all members is 

< 5 | impracticable. All the members of the class share common issues 

: hy An 

Th a 6ll of 1aw and fact, in that Plaintiffs are or will be eligible to 

"WW 
Vv 71 receive lead blood screening and/or treatment for lead blood 

8 | toxicity through the Medi-Cal CHDP/EPSDT Program but cannot obtain 

9 || such services because of the Department's illegal operation of 

10 || such Program. The claims of the named Plaintiffs PUEBLO and 

11 || Matthews are typical of the claims of the class they represent, 

12 | and Plaintiffs will fairly and adequately protect the interests of 

13 | the class they represent. Named plaintiffs have no interest 

14 || antagonistic to or in conflict with the interests of the class. 

15| Plaintiffs are represented by experienced counsel who will 

16 | adequately represent the interests of the class. 

17 15. Defendant has acted and refused to act and continues to 

X. 18 | do so on grounds generally applicable to the class that Plaintiffs 

Wal 19 || represent, thereby rendering appropriate injunctive and 

bo 20 || declaratory relief for the class as a whole. 

21 Vv. FACTUAL ALLEGATIONS 
  

22 16. In 1965, Congress enacted Title XIX of the Social 

23 || Security Act, 42 U.S.C. §§ 1396-1396s, establishing a cooperative - 

x 54 | federal-state medical assistance program designed to provide 

25 || necessary medical services to certain low income people. Commonly 

26 | known as "Medicaid," the program is administered by the states, 

  27 | subject to mandatory federal statutory and administrative 

28 | guidelines. The federal requirements contained in the Medicaid     
COMPLAINT 

 



  

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Act are binding un the states through the 1 ‘visions of the Act 

jtself and under the Supremacy Clause of the United States 

Constitution. 

17. The State of California has elected to participate in 

the Medicaid program and has established the California Medical 

Assistance Program, commonly called "Medi-Cal," which provides 

medical services to low income persons through, inter alia, 
  

reimbursement of health care providers for such services. 

18. Consistent with federal requirements, Medi-Cal must 

provide certain mandatory health care services to eligible low- 

income people. Among these mandatory services are "early and 

periodic screening, diagnostic, and treatment [EPSDT] services . 

. . for individuals who are eligible under the [state Medicaid] 

plan and are under the age of 21." 42 U.8.C. §:13964(a)(4)(B). 

These EPSDT services are required by law to include fC 

services . . .-which-shall at a minimum include laboratory tests \ 
brim —— tina — 

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(including lead blood level assessment appropriate for age and 

risk factors) . . . ." 42 U.S.C. § 1396d(r)(1). Screening ~~ 

etvices must be provided at iodic— "at such other 

intervals, indicated as medically necessary . . . ." Id. To 

  

guarantee that screening services will be readily accessible to 

eligible children, Congress has prohibited state Medicaid agencies 

from imposing prior authorization requirements as a precondition 

to the provision of EPSDT screening services under Medicaid. 

omnibus Budget Reconciliation Act of 1989 (H.R. 3299): Report of 

the House Budget Committee (Explanation of the Energy and Commerce 

and Ways and Means Committees Affecting Medicare-Medicaid 

/1/     COMPLAINT 

  

 



  

\¢* 

\ [aA 
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sdicare & Medicaid 
Programs) (Sept. 0, 1989), as reprinted by 

  

Guide (CCH), Extra Edition No. 596 at 399 (Oct. 5, 1989). 
  

19. EPSDT services must also include "necessary health 

care, diagnostic services, treatment and other measures . . . to 

correct or ameliorate defects and physical and mental illnesses 

and conditions discovered by the screening services, whether or 

not such services are covered under the State [Medicaid] plan." 

42 U.S.C. § 1396d(r) (5). 

20. The Health Care Financing Administration ("HCFA") of 

the United States Department of Health and Human Services is the 

federal agency charged with administering the Medicaid program. 

HCFA requires states to adhere to the guidelines contained in the 

State Medicaid Manual. The State Medicaid Manual requires that 
  

  

the states 

[s]creen all Medicaid eligible children ages 1-5 for 

lead poisoning. . . . Children with lead poisoning 

require diagnosis and treatment which includes 

periodic reevaluation and environmental evaluation to 

identify the sources of lead. 

HCFA, State Medicaid Manual § 5123.2D (July 1990) (Transmittal No. 
  

4). 

21. In California, lead blood assessments are not a 

mandatory part of the CHDP/EPSDT screening provided. State 

statute and regulation only require that testing for lead 

poisoning occur "where appropriate," Cal. Health & Safety Code § 

321.2; 17 Cal. Code Reg. § 6846 (b) (8), notwithstanding mandatory 

federal requirements for children under age six. 

22. On information and belief, the Department does not 

cover or otherwise reimburse health care providers for the costs 

of interperiodic screens for lead blood poisoning as part of the 

COMPLAINT 

  

 



      

J(4), CHDP/EPSDT Prog. .n, 17 Cal. Code Reg. §§ 6t (e), 

notwithstanding the foregoing federal requirements. 

23. On information and belief, the Department requires 

prior authorization for some lead blood assessments. Billing 

instructions to providers participating in the CHDP/EPSDT Program 

are contained in the PM 160 Instruction Form, effective April 

1990, which states that lead blood assessments "should be done if 

health history warrants or prior approval received from State." 

24. On information and belief, the Department limits 

treatment services to those covered by the state plan "subject to 

any applicable Medi-Cal program limitations," 17 Cal. Code Reg. § 

6852, notwithstanding federal requirements that treatment be 

provided whether or not such services are covered by the state's 

Medicaid plan. 

FIRST CLAIM FOR RELIEF 

(Medicaid Act Violations) 
  

25. Paragraphs 1 though 24 are realleged and incorporated 

herein by reference. 

26. The Medicaid Act requires that Medi-Cal eligible 

children receive lead blood assessments as part of periodic and 

interperiodic EPSDT screens. Such screening services cannot be 

subjected to prior authorization requirements. The Act further 

requires that Medi-Cal eligible children obtain necessary medical 

treatment for conditions caused by elevated blood levels 

identified as a result of an EPSDT screen. 

27. In violation of the Medicaid Act, 42 U.S.C. 8§8§ 

1396a(a) (43), 1396a(d) (4) (B), and 1396d(r), implementing 

regulations, 42 C.F.R. 441.56 et sed., and guidelines, HCFA State 

10. 

COMPLAINT 

  

 



    

Medicaid Manual _ 2352.3D (July 1990), the :fendant is failing to 
  

ensure that Medi-Cal eligible children receive lead blood 

assessments and treatment as part of the EPSDT program. 

28. By violating the Act and guidelines, the defendant has 

denied and will deny to plaintiff class the rights, privileges, 

and immunities secured by the laws of the United States. 

29. The above-mentioned violations of the Medicaid Act and 

implementing guidelines have caused and will cause plaintiff class 

to suffer irreparable injury in that they have been and will be 

denied necessary and prompt EPSDT lead blood assessment, 

screening, and follow-up treatment. 

30. Plaintiffs have no adequate remedy at law to prevent 

the continuing wrong and irreparable injury caused by the 

defendant's policies. 

SECOND CIAIM FOR RELIEF 

(Violation of 42 U.S.C. § 1983) 
  

31. Paragraphs 1 through 30 are realleged and incorporated 

herein by reference. 

32. Section 1983 of 42 U.S.C. provides that: 

[e]very person who, under color of any 

statute, ordinance, regulation, custom, or 

usage of any State . . . subjects, or causes 

to be subjected, any citizen of the United 

States or other person within the 

jurisdiction thereof to the deprivation of 

any rights, privileges, or immunities 

secured by the Constitution and laws, shall 

be liable to the party injured in an action 

at law, suit in equity, or other proper 

proceeding for redress. 

33. By failing properly to implement an EPSDT lead blood 

assessment and treatment program in accordance with federal 

statutes and regulations, the defendant, acting pursuant to 

COMPLAINT    



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official polici.., procedures, regulations, and customs and under 

color of law, has caused and will continue to cause plaintiffs to 

be subjected to the deprivation of their rights under the 

Constitution and laws of the United States, as described herein 

under 42 U.S.C. § 1983. 

THIRD CIAIM FOR RELIEF 

(Injunctive Relief) 
  

34. Paragraphs 1 through 33 are realleged and incorporated 

herein by reference. 

35. Unless ordered by the Court to implement lead blood 

screening and treatment which satisfies all minimum federal 

requirements, the defendant will disregard and continue to 

disregard his clear, mandatory, and ministerial legal duty to 

administer the CHDP/EPSDT Program in a manner consistent with 

applicable law. 

36. Unless ordered by the Court to implement lead blood 

screening and treatment which satisfies all minimum federal 

requirements, the defendant will continue to deprive plaintiffs of 

the rights secured to them by the Constitution and laws of the 

United States. 

37. To prevent plaintiffs from suffering further 

irreparable injury, as described in paragraph 3 hereof, for which 

they have no plain, speedy, or adequate remedy at law, the 

defendant must be enjoined to administer the CHDP/EPSDT lead blood 

screening and treatment program in a manner which satisfies all 

minimum federal statutes and guidelines. 

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COMPLAINT 

  

 



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FOURTH CLAIM FOR RELI. 
(Declaratory Relief) 
  

38. Paragraphs 1 through 37 are realleged and incorporated 

herein by reference. 

39. There is a dispute between plaintiffs and defendant 

regarding the legal duties and responsibilities of defendant under 

the aforesaid provisions of law, in that: 

(a) Plaintiffs claim and contend that the defendant's 

actions described above violate the aforesaid provisions of 

law. 

(b) Plaintiffs are informed and believe and thereupon 

allege that the defendant contends in all respects to the 

contrary. 

40. A declaration of the correct interpretation of the 

federal requirements set forth above is necessary and appropriate 

to determine the respective rights and duties hereto. 

PRAYER FOR RELIEF 
  

Wherefore, plaintiffs pray that this Court: 

1. Order that this action be maintained as a class action 

pursuant to Fed. R. Civ. P. 23 with respect to the class 

identified herein. 

2. Preliminarily and permanently enjoin defendant, his 

agents, successors, and employees from failing or refusing to 

comply with the federal statutes and guidelines outlined above. 

3. Preliminarily and permanently enjoin defendant, his 

agents, successors, and employees from failing or refusing to make 

needed EPSDT/CHDP lead blood screening and treatment immediately 

available to plaintiffs and the class they represent. 

13.   COMPLAINT 

  

 



  

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4. Decls_e that the defendant's act. omissions, policies, 

practices, and procedures in failing to provide eligible persons 

with the lead screening, diagnosis and treatment required by 42 

U.S.C. §§ 1396a(a) (43), 1396d(a) (4) (B), and 1396d(r) violate the 

Social Security Act. 

5. Retain jurisdiction over this action to ensure the 

defendant's compliance with the mandates of the federal Medicaid 

Act. 

6. Award plaintiffs their costs of suit, including out of 

pocket expenses and reasonable attorneys' fees. 

7. Award such other and further relief as this Court deems 

just and proper. 

Dated: December 20, 1990 

Respectfully submitted, 

NATURAL RESOURCES DEFENSE COUNCIL 

NATIONAL HEALTH LAW PROGRAM 

LEGAL AID SOCIETY OF ALAMEDA COUNTY 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 

ACLU FOUNDATION OF SOUTHERN CALIFORNIA 

ACLU FOUNDATION OF NORTHERN CALIFORNIA 

  

  

  

Jane Perkins 

aL Plaintiffs 

14. 

COMPLAINT