Jeffers v. Whitley Appendix to Appellants' Brief

    / / Regional Office 

{%.] Suite 208 
NAACP LEGAL DEFENSE 315 West Ninth Street 
AND EDUCATIONAL FUND, INC. Los Angeles, CA 90015 (213) 624-2405 Fax: (213) 624-0075 

  

January 9, 1991 

John Ebbot, Esd. 
Director, Legal Action of Wisconsin 
230 West Wells, Suite 800 
Milwaukee, Wisconsin 53203 

Re: Matthews v. Kizer 
  

Dear John: 

It was good to see you recently in Milwaukee, and to speak 

with you on the phone today. 

Enclosed is a copy of the complaint in Matthews v. Kizer, the 

lead poisoning testing case I mentioned in our conversation today. 

Also enclosed are copies of news reports about the suit. 

  

As we discussed, LDF and the other groups that filed the 

Matthews case are interested in working with LAW to develop and 

file a similar case in Wisconsin. In view of the possibility that 

I will move back to Milwaukee in the near future, my colleague 

here, Bill Lee, has suggested that I work on the case for LDF. I 

would be very interested in doing so, and I know that I would enjoy 

working again with you and my other friends at LAW. 

  

I look forward to the meeting we have tentatively scheduled 

for 8:30 a.m. at your office on Thursday, January 17. Please call 

me in L.A. before January 16th if we need to change the date or 

time of the meeting. 

Sincerely, 

(Hh 
Patrick O. Patterson 
Western Regional Counsel 

Enclosures 
cc w/out encl: Bill Lann lee, Esq. 

National Office Regional Office 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part Suite 1600 Suite 301 

deductible for U.S. of the National Association for the Advancement of Colored People 99 Hudson Street 1275 K Street, NW 

income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its New York, NY 10013 Washington DC 20005 
commitment to equal rights. LDF has had for over 30 years a separate (212) 219-1900 (202) 682-1300 

Board, program, staff, office and budget. Fax: (212) 226-7592 Fax: (202) 682-1312 

 



    

JOEL R. REYNOLDC 

JACQUELINE WARREN 

NATURAL RESOURCES DEFENSE COUNCIL 

617 8S. 0live Street, Suite 1210 

Los Angeles, CA 90014 

(213) 892-1500 

JANE PERKINS 

NATIONAL HEALTH LAW PROGRAM 

2639 S. La Cienega Blvd. 

Los Angeles, CA 90034 

(213) 204-6010 

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, INC. 

315 W. 9th Street, Suite 208 

Los Angeles, CA 90015 EFS 
(213) 624-2405 A 90 36 20 
MARK D. ROSENBAUM 

ACLU FOUNDATION OF SOUTHERN CALIFORNIA 

633 South Shatto Place 

Los Angeles, CA 90005 

{213) 487-1720 

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 

Situated, 

Civ. No. 

CLASS ACTION 
  

Vv. COMPLAINT 

KENNETH KIZER, Director, California 

Department of Health Services, 

Defendant. 

) 
) 
) 
) 
) 
) 
) 

Plaintiffs, ) 

) 
) 
) 
) 
) 
) 
) 
) 

  

COMPLAINT    



  

27 

28 

EDWARD M. CHEN 

ACLU FOUNDATION OF NORTHERN CALIFORNIA 

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

Attorneys for Plaintiffs 

  

    COMPLAINT 

  

 



  

27 

28     

I. INTRODUCTION 
  

1. 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 : 

ACR On could be found to 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. 

[{/ 

COMPLAINT 

  

 



  

  

  

    

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 

SF resthent ("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. $8 1396a(a){(43), 1396d4d(a) (4)(B), and 13964(r). 

Accordingly, the Department has violated and continues to violate 

its mandatory statutory duty to implement and administer the 

COMPLAINT 

  

 



  

27 

28 

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

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. 

5 

III. PLAINTIFFS 
5 

  

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

sister and plaintiff Jalisa Matthews, who 1s 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 

  

 



  

27 

28 

  

  

    

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 Lhe 

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 

bicod 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 

L1/ 

COMPLAINT 

  

 



  

  

    

lead blood asses gents and necessary treatm t as part of the 

CHDP/EPSDT Progran. 

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

the class is so numerous that joining all members is 

impracticable. All the members of the class share common issues 

of law and fact, in that Plaintiffs are or will be eligible to 

receive lead blood screening and/or treatment for lead blood 

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

such services because of the Department's illegal operation of 

such Program. The claims of the named Plaintiffs PUEBLO and 

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

and Plaintiffs will fairly and adequately protect the interests of 

the class they represent. Named plaintiffs have no interest 

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

Plaintiffs are represented by experienced counsel who will 

adequately represent the interests of the class. 

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

do So on grounds generally applicable to the class that Plaintiffs 

represent, thereby rendering appropriate injunctive and 

declaratory relief for the class as a whole. 

V. FACTUAL ALLEGATIONS 
  

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

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

federal-state medical assistance program designed to provide 

necessary medical services to certain low income people. Commonly 

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

‘subject to mandatory federal statutory and administrative 

guidelines. The federal requirements contained in the Medicaid 

COMPLAINT 

  

 



  

27 

28 

  

    

Act are binding un the states through the p visions of the Act 

itself 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.S.C. § 1396d(a) (4) (B). 

These EPSDT services are required by law to include "screening 

Services . . . which shall at a minimum include laboratory tests 

(including lead blood level assessment appropriate for age and 

risk factors) . .'. .% 42 U.S.C. . § 1396d(r)(1). Screening 

services must be provided at periodic intervals and "at such other 

intervals, indicated as medically necessary . . . ." 1d. 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 

1/1) 

COMPLAINT 

  

 



  

27 

28 

  

    

Programs) (Sept. «0, 1989), as reprinted by >dicare & Medicaid 
  

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. § 1396d4(r) (5). 

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

the United States Department of Health and Human Services 1s 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 

oF lead poisoning. . . . Children with lead poisoning 

require diagnosis and treatment which includes 

periodic reevaluation and environmental evaluation to 

jdentify the sources of lead. 

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

4). 

51. 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(Db) (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 

  

 



  

    

CHDP/EPSDT Prog. .a, 17 Cal. Code Reg. §§ 6t {4), (ee), 

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§§ 

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

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

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 CLAIM 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    



  

27 

28 

  

  

    

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 CIATM 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. 
+5 

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. 

{1 

/// 

12. 

COMPLAINT 

  

 



  

  
  

    

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 

  

 



  

  

    

4. Decla.e that the defendant's act., onissions, 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 

lo Plaintiffs 

14. 

COMPLAINT 

  

 



   .OS ANGELES TIMES 
  

® 
» 

A 

  

Lawsuit Seeks 
Tests for Lead 
in Children 
#1 Health: Action claims 

state has not complied 

with federal mandate 

requiring free blood 

checks for all low-income 

youngsters under age 6. 
  
By DAVE LESHER 
TIMES STAFF WRITER 

Saying that up to 50,000 Califor- 
nia youths may unknowingly suf- 
fer from lead poisoning, environ- 
mental and civil rights groups 
charged in a lawsuit Thursday that 
state health officials have not pro- 
vided mandatory tests for the con- 
dition on low-income children, the 
highest-risk group. 

Attorneys for the California- 
based groups said in a Los Angeles 
news conference that the suit is the 
first in the nation seeking to force 
state health officials to comply 
with a 1989 federal law that re- 
quires free blood tests for lead 
poisoning for all low-income chil- 
dren under age 6. 

The suit said lead poisoning from 
paint, smog, water pipes and ce- 
ramics is one of the most serious 
environmental diseases affecting 
America’s youth. Without treat- 
ment, it can lead to decreased 
intelligence, impaired motor func- 
tions, kidney disease and cancer, 
the suit says. 

“This is an extraordinary case in 
which the environmental health, 
poverty and civil rights concerns 
represented here all dictate one 
result—that the state of California 
cannot continue to ignore the slow 
poisoning of our children by lead 
contamination,” said Joel R. Reyn- 
olds, attorney for the Natural Re- 
sources Defense Council. 

Connie Rice, representing the 
NAACP Legal Defense and Educa- 
tional Fund, added: “As with most 
problems, minorities and the poor 
bear the brunt of this problem, and 
they are being needlessly contami- 
nated while the state twiddles its 
thumbs.” 

The class-action lawsuit was 
filed Thursday in U.S. District 
Court in San Francisco against the 
state Department of Health Ser- 
vices and its director, Kenneth 
Kizer. The plaintiffs include a pov- 
erty rights group—People United 
for a Better Oakland—and two 
children ages 1 and 2 who are said 
to be eligible for the lead testing. 

The coalition of interest groups 
joining to represent the plaintiffs 
includes the Legal Aid Society, the 
American Civil Liberties Union 
and the National Health Law Pro- 
gram as well as the NAACP and 
natural resources council. 

Please see LEAD, A39 

TEER RA SP a 

! 

  

| LOS ANGELES TIMES 
  

LEAD: Suit Asks Tests for Low-Income Children 
Continued from A3 

. A health department spokesman 
said officials have not had time to 
review the suit thoroughly. But 
based on a “cursory look,” they 
consider: themselves to be in com- 
pliance, he said. : 

\ 

Spokesman Norm Hartman said 
department officials did not believe 
they were required to test all 
children, only those for whom a 
doctor considered the test appro- 
priate. He said the department 
already is providing blood tests for 
lead if they are medically indicat- 
ed. 

But the plaintiffs contend that 
Congress added a requirement to 
Medicaid statutes two years ago 
that all low-income children under 

age 6 be tested for lead poisoning 
and that youths between 6 and 21 
be tested if they are in a high-risk 
category. 

Sara Rosenbaum, spokeswoman 
for the Children’s Defense Fund in 
Washington, said federal regula- 
tions have required those tests 
since 1967, but in 1989 testing was 
re-emphasized by Congress and 
added to federal statutes. Still, 
Rosenbaum said, less than a quar- 
ter of the eligible children nation- 
wide receive the tests. 

Nationally, health officials esti- 
mate that 3 million children—one 
in six—could be suffering from lead 
poisoning. 

For that reason, Rice said, “We 

”n 
El 

hope this suit will be a national 
model for others who seek to 
compel states to meet the desper- 
ate health care needs of their 
inner-city children.” 
None of those involved in the 

issue could name a state that was in 
compliance. The testing is con- 
sidered particularly important for | 
low-income children because they 
are more likely to live near indus- 
trial centers or freeways where 
unsafe levels of lead are common, 
said Jane Perkins, an attorney with 

. the National Health Law Program. 
Rice said studies have found 

excessive levels of lead in the blood 
of 67% of black, inner-city chil- 
dren. She said the contamination 
rate for blacks is 33% higher than 
for white children. 

Lead in the bloodstream ‘ad- 
versely. affects all people. But chil- 
dren, especially toddlers, are the 
most susceptible because of their 
developing tissue, said Dr. Ira H. 
Monoson in Santa Monica, former 
chief medical officer for 
Cal/OSHA. 

Generally, health officials con- 

~ sider lead levels of more than 15 
micrograms per deciliter of blood 
to be hazardous. 

In early stages, lead poisoning is 
treatable with calcium and vitamin 
supplements, she said. At more 
advanced stages, the condition re- 
quires painful therapy, she said. 

A state study this year on the 

  

i 

Z 
ii 

“2 
KA 2% 

5 

    

dangers of lead poisoning in chil- 
dren estimated that 2,500 youths 
may be affected. That was enough 
to cause Kizer to say, “There is 
more of a problem than people 
thought there was.” 

He added, “The biggest problem 
is the awareness, getting doctors to 
test kids.” 

Several federal agencies—in- 
cluding the departments of Hous- 
ing and Urban Development and 
Health and Human Services—are 
preparing a joint effort to address 
the problem of lead poisoning in 
children. Reports about the pro- 
gram are expected to be released 
soon. 

  

Monroe Marriage Pact 
Fetches $14,000 in Auction 

LONDON —Marilyn Monroe's 
marriage contract to American 
playwright Arthur Miller fetched 
more than $14,000 on Thursday, 
Christie's auctioneers said. 

The ketubah, a Jewish wedding 
contract dated July 1, 1956, was 
witnessed in New York by Lee 
Strasberg, founder of New York's 

Actors’ Studio. Monroe converted 
to Judaism for the marriage, Mil- 
ler’s second and her third. They 
divorced in 1961, the year before 

her death at 35. 

— Reuters 

 



   

  

LV X [4 {4 
THE NEW YORK TIMES NATI 

  

U.S. Lag Fi ound in Lead Poisoning Tests 
  

By PHILIP J. HILTS 
WASHINGTON, Dec. 21 — Only one- 

third of the poor children in the country 
are tested for lead poisoning, even 
though such testing is required by a 
1989 law, Federal officials said today. 
Advocacy groups have fought for 

years to obtain lead testing, and treat- 
ment when necessary, for the 12 mil- 
lion children who are poor and consid- 
ered eligible for Medicaid. 

“There has been a failure in most 
states to carry out their obligation to 
screen all poor children, and every 
state in the union is failing when it 
comes to following up with treatment,” 
said Sara Rosenbaum, director of the 
health division at the Children’s De- 
fense Fund in Washington. 

The situation has prompted a law- 
suit, filed on Thursday in Federal Dis- 
trict Court in San Francisco, seeking to 
force California to begin more wide- 
spread screening. 

First State to Be Sued 

This is the first lawsuit to try to fqrce 
a state to comply with a 1989 amend- 
ment to the Federal Medicaid law, 
which required all states to.test poor 
children’s blood for lead, as well as to 

  

  

‘There has been a 
failure in most 

states to screen 

all poor children.’ 
  

carry out other tests like those for vi- 
sion and overall development, said 
Jane Perkins of the National Health 
Law Program, one of several organiza- 
tions that have joined forces in the suit 
against California. The law also re- 
quires that those identified with prob- 
lems must be treated, she said. 

About 57 million homes in the United 
States have lead paint in them, and 10 
million of those have children under 7 
years old at home. Lead poisoning in 
children can cause severe nervous sys- 
tem damage that can result in poor 
performance in reading, mathematics 
and other important tests. In the worst 
cases, it can cause retardation or 
death. 

In their recent effort to assure wide- 
spread screening around the country, 

  

  

Maker Challenges Deal 

  

On U.S. Weather Radar 
The company making the Federal 

Government's new weather radar sys- 
tem has asked a review board to invali- 
date the contract, in a move the Gov- 
ernment and the company describe as 
part of intense bargaining to raise the 
price of the systems. 

The system, termed Nexrad for Next: 
Generation. Radar, uses new tech- 
nology that Government officials say 
will allow forecasters to be more accu- 
rate and see further into the future. 
The Government has agreed to buy 165 
units — 115 for the National Weather 
Service and 50 for the Department of 
Defense and the Federal Aviation Ad- 
ministration. 

But a prototype of the radar per- 
formed poorly in tests conducted last 
year by the Air Force, and the program 
has been hampered by delays and price 
increases. ; 

The manufacturer, Unisys, and the 
Government have tried to correct the 
problems, which include frequent 
power lapses and incorrect measure- 
ment of wind speed and direction.’ In 
the process the contract price has 
grown by millions of dollars, and the 
construction schedule has been moved 
back at least six months, although 
Unisys says it still expects to finish 
within a six-year timetable. j 

A Better Look at the Weather 

The system, if it works as planned, 
would be an improvement on past 
radars because it could track many 
more radar beams at the same time 
and in the process could study the 
development and movement of 
weather fronts in greater detail. The 
new radar units are part of a $1 billion 
modernization program of the National 
Weather Service. 

The contract, a copy of which was ob- 
tained through a legally enforceable 
request under the Freedom of Informa- 
tion Act, documents the negotiated 
delays and cost increases in a section 
of amendments. 

What began in 1987 as a $359 million 
contract became a $418 million con- 
tract later that year. In the last two 
years, more than $20 million has been 
added to the price for costs related to 
developing the new technology. 

The Government and Unisys are cur- 
rently negotiating further price in- 
creases, Government officials and a 
Unisys spokesman said. 

Company Files Complaint 
At the cama time aca tactic tntrv tn 

‘a development-type contract you have 

  

ing ourselves to doing work that we 
won't be paid for,” said William J. 
Beckham, a spokesman for the unit of 
the company that makes the radar sys- 
tem. 

The Goyernment has already paid 
for 10 units and is planning to pay for 
the other radar units as it goes along. 
Though the complaint asks for the 

contract to be invalidated, Mr. Beck- 
ham said the company still wants to 
construct the Government's weather 
radar system. “What we are finding in 
the course of things is that if you are in 

to make changes and there are costs in- 
volved,” Mr. Beckham said. “And who   pays the costs? That's the issue.” 

Different Interpretations 
The Government agreed that the: 

basic disagreement over the contract i 

was over costs. ; 
‘““Like most contracts, it is capable of : 

being interpreted in many ways," said 
Gray Castle, the Deputy Under Secre- 

  

Bargaining over a 
project to update 
the Weather 

Service. 
  

tary of Commerce, who oversees the 
Weather Service. ‘And the way they in- 
terpret it is that they should get more 
money." 

But he said he is confident that the 
radar system will be produced. “We 
need these radars and they need the 
business,’ he said. 

Hanging’ over the contract discus- 
sions is the poor financial health of 
Unisys, which reported a $356.8 million 
deficit in the third quarter of this year 
and did not pay a dividend to share- 
holders. 

The first radar unit was supposed to 
have been delivered to Norman, Okla., 
in October, but the Government has de- 
clined to accept delivery because of 
problems with the computer software, 

The delays are especially important 
since the Weather Service has a radar 
system that is decades behind the 
times. The antiquated equipment has 
proven unreliable and difficult to re-   pair because spare parts and workers 

Federal Medicaid officials set a goal 
for states to test a minimum of 80 per- 
cent of the Medicaid-eligible children 
within the next few years, said a Medic- 
aid official who insisted that his name 
not be used. Eventually, the goal is to 
test all poor children at least once. 

35% Get Early Screening 

Now, however, overall compliance is 
not good, the official said. Reports from 
the states show that only 35 percent of 
poor children are getting early screen- 
ing tests, including the lead poisoning 
test. 

Younger children are doing better: 
as of September, two-thirds of poor 
children under 5 around the country 
have been tested, he said, but only 13 
percent of those from 6 to 20 have been 
tested, he said. “The states are begin- 
ning to do a lot better, and have im- 
proved greatly in the past two years,” 
he added. 

Connie Rice of the NAACP Legal De- 
fense and Educational Fund, another 
party to the suit against California, 
said: “Minorities and the poor bear the 
brunt of this problem and they’re being 
needlessly contaminated while the 
state twiddles its thumbs. This prob- 
lem is not limited to California, and we 
hope this suit will be a national model 
for others who seek to compel states to 
meet the desperate health care needs 
of their children.” 

Plaintiffs in the California suit are 
two children from Long Beach, Jalisa 
Matthews, who is 1 year old, and her 
sister, Erika, 2, who were both refused 
testing by the state, said Joel R. Reyn- 
olds, a lawyer for the Natural Re- 
sources Defense Council, another 
group taking part in the suit. 

‘Slow Poisoning’ of Children 

“The State Department of Health 
Services cannot continue to ignore the 
slow poisoning of our children,” he 
said. “Congress has clearly given 
states the duty to test and treat thou- 
sands of children who may be victims 
of lead poisoning. That duty must now 
be enforced by the courts.” 

A spokesman for the state health de- 
partment, Norman S. Hartman, said, 
“We believe we are in compliance with 
the Federal standards as we see 
them.” Mr. Hartman said the state had 
been told by the Health Care Financing 
Administration’s regional office that it 
was in compliance. 

He said that screening for lead poi- 
soning was required, but that screening 
might not require tests. Instead, a doc- 
tor doing a child’s physical examina- 
tion asks questions that elicit answers 
indicating whether a child lives in a 
house that poses high risk. 

However, Medicaid officals said the 
State of California was recently sent a 
letter declaring that the state was out 
of compliance with Federal law be- 
cause it was not screening enough chil- 
dren. 

Mr. Hartman said the matter was 
confused because ‘‘we seem to be get- 
ting a red light from one department 
and and green light from another.” 

The Federal Government has begun 
a new initiative on lead poisoning, 
which will lower the threshold at which 
lead in blood is considered hazardous. 
This will increase the number of chil- 
dren officially considered at risk from 
several hundred thousand to four mil- 
lion to six million. 

“The administration now has got to 
put their money where their mouth is,” 
said Senator Harry M. Reid, Democrat 
of Nevada. “This cleanup should have 
begun 30 years ago.’”’ Mr. Reid and two 
other Democratic Senators, Bill Brad- 
ley of New Jersey and Joseph I. Lieber- 
man of Connecticut, sponsored a bill 
last year to ban more uses of lead in the 
country. The measure failed to reach 
the floor before the end of the last Con- 
gress, but the Senators said they would 
introduce it again this session. 

Use of lead paint in houses is now 
banned, but it is still used commercial- 
ly. While leaded gasoline is not permit- 
ted in most gas stations now, a billion 
gallons is still sold each year in this 
country for older automobiles, farm 
equipment and other uses, Mr. Reid 
said.