Defendant's Reply to Plaintiffs' Response to Motion to Dismiss or for Summary Judgment and Memorandum in Support

    oc ce faa 

  

CIVIL ACTION NO. CA3-92-1539-R. 
  

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, 

Vv. 

BURTON F. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human Services, 

and 

THE UNITED STATES OF AMERICA, 

Defendants. 

  

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO PLAINTIFFS' 

RESPONSE TO DEFENDANT UNITED STATES OF AMERICA'S 

MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT 

  

OF COUNSEL: STUART M. GERSON 

Assistant Attorney General 
HENRY R. GOLDBERG, 

Deputy Chief Counsel 
for Litigation 

DAVID V. PEERY, Attorney 
Office of the General Counsel 
Department of Health and 

Human Services 
Room 500, East Highrise Building 
6325 Security Boulevard 
Baltimore, MD 21207 
(410) 965-8871 

MARVIN COLLINS 

United States Attorney 
MARY ANN MOORE 

Assistant United States 
Attorney 

SHEILA LIEBER 

ALINA S. KOFSKY 

STEVEN H. HARTMANN 

Attorneys, Department of 
Justice 

Federal Programs Branch, Civil 
Division 

901 E Street, N.W., Room 1010 

Washington, D.C. 20530 
{202) 514-4523 

ATTORNEYS FOR DEFENDANT 

UNITED STATES OF AMERICA 

 



  

TABLE OF CONTENTS 
  

PAGE 

TABLE OF AUTHORITIES. vo 0s "a iv is 0 oni iio a =» = ww '&e¢. o ii 

1. INTRODUCTION tee "se iv 0 0 in" on laa aiilleilie le Taifie ou oe wi wile 'w 1 

IX.  BARCUMENT AND AUTHORITIES '@ « ‘0 oo ¢: 0 'a dd 6 a a so sao o5¢ 3 

A. The Named Plaintiffs Lack Standing To Maintain 
This Action And Their Claims Should Be Dismissed . . . 3 

B. The Medicaid Statute Does Not Require Blood 
128d MOBS iy iiv of oie son 0i % wie desin a. sivaile wo sie 8 

C. Plaintiffs Have An Adequate Bengsy Against 
The State Of Texas . . + . * Toe aa dee ee ee 11 

D. Plaintiffs' Complaint Should Be Dismissed For 
Failure To State Claim Upon Which Relief May Be 
Granted Or Alternatively, Summary Judgment Should 
Be Granted In Favor Of Federal Defendant . . . . . . . 16 

IIT. CONCLUSION ov 1s «elie nv ve gin, oil Tg gia tel glieg go ruie ws 18 

 



  

TABLE OF AUTHORITIES 
  

CASES: PAGE (S) 

Allen Vv, Wright, 4680.8. 737 (1984) ois %ei vais a "a uw laiiste wiieian 1 
  

Brown Vv. Sibley, 650 F.2d 760 (5th Clr. 1981) . « « « ¢ ss so 2 so ¢ 7 
  

Coker: v. Sullivan, 902 F.2d 82 (D.C. Cir. 1990). . +. + « «s+» +» 13, 14 
  

Council of and for the Blind, Inc. v. Regan, 
7008 F.20 1523 (D.C. Tir. 1083) «0 vv sie a oii nian wi» 14, 18 
  

County of Riverside v. Mclaughlin, 
U.S. 111 S.Ct. 1661 (1991) 7. vrs a iy edie a ai 8 
  

Harris V. McRae, 448 U.S. . 297 (1980) «ithe. sos oo » o ‘a wins un #40 oid 
  

Isquith v. Middle South Utilities, Inc., 
S47 F.2d 186 (Sth Cir. 1988) . v skis’ «ivi sis a nin fis o sini 16 
  

  

  

  

Koster v. Webb, 598 F. Supp. 1134 (E.D.N.¥Y. 1983) '. + +. v sw. v'n » « 14 

Lewis v. Hegstrom, 767 F.24 1371 (9th Cir. 1985) EE IRE VEAL ha 3 

Maine Vv. Thiboutot, 448 U.8.. 1 (1980) is vi « vie wimcnin eo ainw nin + 15 

Mitchell v. Johnston, 701 F.2d 337 (5th Cir. 1983) VIERA Cr LA Cl Gey 1. 
  

Washington Legal Foundation v. Alexander, 

778 F. SUPP. 67 (D.D.Ce A099) 2, "vy i) eins Tee ere a 2D 
  

Women's Equity Action Leaque ("WEAL)'" wv. Cavazos, 

D06 F.20 742 (DeC. CIT. F990) wis + 0s ov aa ou vo wirmin 18 
  

STATUTES AND REGULATIONS: 
  

22 U.8.C. § O00 li ly i i a WE SN we ate ae 2 

42 U.8.C. 8 1306AITI(DILBILIVY is ei i ates » wih eataifeing oh WA 

42 U.8.C. 8 A083 0 or, Le ah er ey RY Le Ne gy 1, 15 

42 U.8.C, 6 1306ALE) oir i. oan I LE se Sl i ed E20 

 



  

MISCELLANEOUS: 
  

5 Cs 

H.R. 

H.R. 

Wright & A. Miller, Federal Practice 
and Procedure § 1366 (1969) li SC Ca TE Sh 

Conf. Rep. No. 101-386, 10l1st Cong. 

1st Sess. (Nov. 21, 1989), reprinted 
in 1990 U.S.C. C.A.N. 3018, 3056 TREE RAV IL SC EE EE FV 1 

  

Rep. No. 101-247, 101st Cong., 
1st Sess. (Sept. 20, 1989), reprinted in 
1900 DS eCeC ANN. 1906 oe + os vin tn taint sn vie wie wu wwii 10 

  

- Iii - 

 



  

I. 

INTRODUCTION 
  

In response to defendant USA's argument in its Motion to Dismiss 

or in the Alternative for Summary Judgment ("Motion to Dismiss") that 

named plaintiffs have suffered no injury as a result of the new HCFA 

guidelines, and as a result, lack the requisite standing to maintain 

an action against the federal defendant, plaintiffs fail to present 

any argument -- much less evidence -- to prevent the Court from 

dismissing this action. Any injury named plaintiffs may have suffered 

under previous HCFA guidelines (which are not challenged here) should 

be remedied by the new EPSDT screening provisions which require that 

they receive the blood lead tests they seek. In fact, defendant 

Raiford has asserted that all Medicaid recipient children in Texas 

will now be receiving the blood lead test. Plaintiffs' suggestion 

that new class representatives should be chosen once named plaintiffs 

receive the blood lead test they seek has been rejected by this 

Circuit, which has clearly stated that under such circumstances 

plaintiffs' complaint should be dismissed. 

In their Response, plaintiffs have also failed to demonstrate 

that the plain language of the Medicaid statute, 42 U.S.C. § 

1396d(r) (1) (B) (iv), actually requires that one specific type of 

laboratory test, the "blood lead test," be used to assess lead levels 

in blood. It is inconceivable that Congress intended the phrase "lead 

blood level assessment" to mean the very specific "blood lead test," 

and in light of the basic structure and operation of the Medicaid 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -w- Page 1 
  

 



  

program, it would be anomalous tor Congress to tell states to use a 

specific blood test. The language of the statute, the evidence 

available to Congress at the time, and the legislative history support 

federal defendant's position that in limited instances, the EP test, a 

laboratory test which assesses blood lead levels, or the blood lead 

test is permissible under the statute. 

Plaintiffs now claim that they are no longer challenging the HCFA 

guidelines, but instead seek relief from the federal government's 

continued support, financing and encouragement to the states to use 

the EP test. Even assuming, arquendo, that the Medicaid statute   

specifically requires blood lead testing, the most appropriate avenue 

for plaintiffs to seek redress for their alleged injury would be a 

suit against the State of Texas, already a defendant, pursuant to 42 

U.S.C. § 1983. Such a lawsuit would provide a more adequate remedy 

than the sweeping mandatory injunctive relief plaintiffs seek with 

respect to the federal defendant, and would ensure that any injury 

plaintiffs suffer as a direct result of Texas' alleged failure to 

follow the Medicaid statute and administer the blood lead test is 

redressed. Plaintiffs have no right to sue the federal government 

directly under the Medicaid statute and the only statute that might 

otherwise provide them with a cause of action, the Administrative 

Procedure Act ("APA"), provides for judicial review of a federal 

agency's action only where there is no other adequate remedy in a 

court. See 5 U.S.C. § 704. As a result, the Court should dismiss 

plaintiffs' claims with respect to federal defendant. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 2 
  

 



  

Finally, plaintiffs' attempts to create alleged genuine issues of 

material fact in dispute as a way to fend off federal defendant's 

alternative motion for summary judgment should be rejected since most 

of the "facts" plaintiffs raise are not only immaterial, but also are 

intertwined with many of the legal issues. The only issues before the 

Court are issues of law -- whether the plaintiffs have standing to 

bring this action, and, if they do, whether the Medicaid statute 

requires blood lead testing only. As a result, the Court should 

reject plaintiffs' suggestion that discovery is needed, and 

accordingly, should either dismiss plaintiffs' Complaint for failure 

to state a claim, or alternatively, grant summary judgment in favor of 

federal defendant as there are no genuine issues of material fact in 

dispute. 

II. 

ARGUMENT AND AUTHORITIES 
  

A. The Named Plaintiffs Lack Standing To Maintain This Action And 
Their Claims Should Be Dismissed 
  

As the federal defendant has previously demonstrated, under the 

challenged HCFA guidelines, the four named plaintiffs should be 

considered at "high risk" of having elevated blood levels, and should 

receive the very blood lead test they seek. See Motion to Dismiss at 

24-25; HCFA guidelines at § 5123.2(c); Hiscock Declaration at § 14. 

These plaintiffs, therefore, will be aided, not injured, by the 

application of the new HCFA guidelines. As a result, plaintiffs do 

not possess the requisite standing to maintain this action against the 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -w= Page 3 
  

 



  

federal defendant, and the Court should dismiss plaintiffs' Complaint 

for lack of jurisdiction. 

Plaintiffs nevertheless insist that they have been injured since 

"(t]he named plaintiffs in this case have been subjected to the EP 

test in violation of the statute and were misdiagnosed as a result." 

Memorandum in Support of Response at 8. Plaintiffs fail to 

acknowledge, however, that the EP test was performed on the four 

plaintiff children before the new HCFA guidelines requiring blood lead 

tests for all "high risk" children went into effect. See Declaration 

of Lois Thompson attached to Plaintiffs' Motion for Temporary 

Restraining Order and Preliminary Injunction Against The U.S.A. at 1- 

3. No injury to plaintiffs can result from the proper application of 

the new HCFA guidelines. 

Plaintiffs further argue that "[t]he sequence of events in this 

case makes clear . . . that the HCFA guidelines have had no effect on 

the named plaintiffs to date . . . . [and} {a]ll of the EPSDT children 

in the State of Texas are still subject to the use of the EP test even 

after the effective date of the HCFA guidelines." Memorandum in 

Support of Response at 11. In support of these allegations, 

plaintiffs cite to defendant Raiford's answer to § 50 of plaintiffs’ 

Second Amended Complaint. Although defendant Raiford has admitted 

plaintiffs’ allegation that "[o]lnly if a child tests higher than 35 on 

the EP test is a blood lead level test administered," see Defendant 

Raiford's Answer to Plaintiffs' Second Amended Complaint at 6, 

plaintiffs conveniently overlook the latter part of the answer which 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 4 
  

 



  

states that "the EP test will be discontinued as a blood lead level 

test in November 1992." Id. In fact, defendant Raiford has asserted 

that as of October 23, 1992, the State of Texas began performing blood 

lead tests for all Texas children who are Medicaid recipients and has 

eliminated the use of the EP test altogether. See Defendant Raiford's 

Response in Opposition to Plaintiffs' Motion for Class Certification 

at 2, and Declaration of Bridget Cook at 4-5 attached as Exhibit A 

thereto. As a result, all four named plaintiffs, in accordance with 

the new HCFA guidelines, should receive the blood lead test. 

Moreover, with respect to plaintiff Taylor Dixon, plaintiffs! 

arguments once again evidence a lack of understanding of the new HCFA 

guidelines. See Memorandum in Support of Response at 8, 9. In 

accordance with the challenged guidelines, plaintiff Dixon should 

receive a verbal assessment which should determine that she is at 

"high risk" despite her 9 ug/dL blood lead level result.! Even 

assuming that the EPSDT provider took into account plaintiff Dixon's 

previous blood lead test result of 9 ug/dL, the HCFA guidelines 

provide that "[s]ubsequent verbal risk assessments can change a 

child's risk category. Any information suggesting increased lead 

exposure for previously low risk children must be followed up with a 

blood lead test." HCFA Guidelines at § 5123.2 (b) (emphasis added). 
  

  

I The blood lead test which plaintiff Dixon received on 
May 5, 1992, before the new HCFA guidelines went into effect, was 
administered at the request of her attorney and not as part of 
the routine EPSDT screening in any event. See Plaintiffs' Second 

Amended Complaint at 12 n.2. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 5 
  

 



  

As a result, plaintiffs' assertion that Taylor Dixon "will not receive 

a blood lead test even under the new HCFA guidelines," see Memorandum 

in Support of Response at 8, is simply not supported by the plain 

language of the new HCFA guidelines.’ 

Plaintiffs wrongly assert that if the named plaintiffs receive 

the blood lead test, thereby rendering the case moot, other class 

representatives may be allowed to replace them. Memorandum in Support 

of Response at 11. This is statement is simply not supported by the 

case law in this Circuit. Since plaintiffs should be receiving the 

blood lead test in accordance with the new HCFA guidelines, and the 

State of Texas administers such tests for all EPSDT children in the 

state, plaintiffs have in fact suffered no injury, and as a result 

never have had a valid claim against federal defendant. 

This is not a situation where plaintiffs once had a valid claim 

as to federal defendant but their claim subsequently became moot. In 

fact, plaintiffs' claim as to federal defendant is moot ab initio, 

even before a class has been certified by the Court, and as a result, 

plaintiffs' reliance on the cases cited in County of Riverside v. 
  

  McLaughlin, uv.S. 111 S. Ct. 1661, 1667 (1991) ‘is misplaced. 

Once the Court concludes that plaintiffs, as the proposed class 

  

2 It should also be noted that based on recent blood lead 
test results for plaintiffs Zachary Williams (7 pg/dL) and Taylor 
Dixon (9 pg/dL), see Declaration of Lois Thompson, they are not 
considered to be lead-poisoned according to the 1991 CDC J 
Statement, which recommends no follow-up or intervention 
treatment for those children with blood lead levels below 10 
ng/dL. See 1991 CDC Statement at 3 (attached as Exhibit 1 to 
Binder Declaration). 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 6 
  

 



  

representatives, lack individual standing, "the proper procedure . . 

is to dismiss the complaint, not to deny the class for inadequate 
  

representation or to allow other class representatives to step 
  

forward." Brown v. Sibley, 650 F.24 760, 771 (5th Cir. 1981) 
  

(emphasis added). As a result, contrary to plaintiffs' suggestion 

that new class representatives should be chosen once named plaintiffs 

receive the blood lead test they seek, this Circuit has clearly stated 

that plaintiffs' complaint must be dismissed. Id. 

In addition, the requested permanent injunctive relief plaintiffs 

seek would not redress any alleged harm to plaintiffs.’ In order to 

establish redressability, plaintiffs must demonstrate that "relief 

from the [alleged] injury [is] 'likely' to follow from a favorable 

decision." Allen v. Wright, 468 U.S. 737, 750 (1884). Plaintiffs 
  

claim that they seek to enjoin the federal government from supporting, 

financing and encouraging the states' use of the EP test as a 

screening device for childhood lead poisoning. Memorandum in Support 

of Response at 9-10.%* Yet the four named plaintiffs will fare no 

  

3 Since plaintiffs suddenly, and without explanation, 
withdrew their motions for preliminary injunction against 
defendant USA and defendant Raiford on December 3, 1992, see 

letter to the Court from Laura B. Beshara and Michael M. Daniel 
dated December 3, 1992, federal defendant will not address any 
issues related to the preliminary injunctive relief previously 
sought by plaintiffs. 

4 It is difficult to reconcile, much less comprehend, 
plaintiffs' contradictory assertions that "the HCFA guidelines 
are not the subject of the lawsuit," see Memorandum in Support of 
Response at 12, "that plaintiffs are challenging more than the 
HCFA guidelines," see Memorandum in Support of Response at 9, and 
that "plaintiffs are not challenging all of the 9/19/92 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -w Page 7 
  

 



better as a result of the granting of this injunctive relief. The 

injury of which they complain -- i.e., the State of Texas' alleged 

failure to perform a blood lead test and appropriate lead poisoning 

intervention -- cannot be redressed by enjoining the September 1992 

HCFA guidelines. To the contrary, those guidelines require that 

plaintiffs receive a blood lead test and appropriate intervention 

under the circumstances alleged by plaintiffs, and granting the relief 

sought by plaintiffs from defendant USA would offer them no additional 

relief. 

B. The Medicaid Statute Does Not Require Blood Lead Tests 
  

In their Response, plaintiffs incorrectly assert that the "plain 

and unambiguous language [of 42 U.S.C. § 1396d(r)(1)(B) (iv) ]" requires 

a blood lead test. Memorandum in Support of Response at 1-2. Section 

1396d(r) defines EPSDT screening services to include " (iv) laboratory 

tests (including lead blood level assessment appropriate for age and 

risk factors)." On its face, § 1396d4(r) (1) (B) (iv) clearly does not 

require a specific "blood lead test" as plaintiffs contend, and only 

speaks of "laboratory tests" in general. It is inconceivable that 

Congress intended the phrase "lead blood level assessment" to mean the 

very specific "blood lead test." Given the basic structure and 

operation of the Medicaid program, which gives states latitude in 

determining the services to be provided, it would be anomalous for 

Congress to tell states not only that children's lead levels must be 

  

guidelines" see Memorandum in Support of Response at 10. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 8 
   



  

assessed, but also to mandate use of the blood lead test in 

particular. 

Plaintiffs' attempt to demonstrate that the July 1988 HHS Report 

"The Nature and Extent of Lead Poisoning in Children in the United 

States: A Report to Congress" ("1988 HHS Report") supports the plain 

wording of the statute so as to require "blood lead tests" is baseless 

and should be rejected. Memorandum in Support of Response at 4-5. 

Nowhere does the 1988 HHS Report recommend use of the blood lead test 

as the preferred test for measuring lead levels. In fact, the only 

statement the 1988 HHS Report makes is that "[s]ince current EP tests, 

used as the initial screen, cannot accurately identify children with 

blood lead levels below 25 ug/dL, screening tests that will identify 

children with lower blood-lead levels must be developed." See 1988 
  

HHS Report at II-9 (Exhibit B to Declaration of Paul Mushak, PhD., 

attached to Brief Amici Curiae in Opposition to Defendant United   

States of America's Alternative Motions to Dismiss and for Summary 

Judgment) (emphasis added). The Report, therefore, only suggested to 

Congress that a more accurate test must be developed, but certainly 

did not suggest use of the "blood lead test" per se. Moreover, at the 

time Congress considered and passed the Omnibus Budget Reconciliation 

Act of 1989 ("OBRA 89"), the most recent pronouncement on lead 

poisoning from the CDC, issued in 1985, recommended the EP test as the 

screening test of choice. See 1988 HHS Report at 3 (relying on 1985 

CDC Statement "which identified a Pb-B [blood lead] level of 25 ug/dL 

along with an elevated erythrocyte protoporphyrin level (EP) as 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -w- page 9 
  

 



  

evidence of early toxicity."). 

Plaintiffs also fail to recognize that the EP test does detect 

levels of lead in blood. Memorandum in Support of Response at 2, 3, 

4. As federal defendant has previously demonstrated, the EP test, 

which is a "laboratory test," also assesses lead levels in blood, 

albeit indirectly, since it measures the chemical erythrocyte 

protoporphyrin whose level in blood rises when lead is present. 

Binder Declaration at q 14. 

The legislative history of OBRA 89 fails to support plaintiffs’ 

argument that the statute requires only specific "blood lead tests." 

In fact, it furnishes no guidance regarding types of blood tests or 

other methods for screening, and as a result, lends support to federal 

defendant's position that either the EP test or the blood lead test is 

permissible under the statute. The House Report simply articulated 

the eventual statutory language: "[u]nder the Committee bill, 

screening services must, at a minimum, include . . . (4) laboratory 

tests (including blood lead level assessment appropriate for age and 

risk factors) . . . ." See H.R. Rep. NO. 101-247, 101st Cong., 1st 

Sess. (Sept. 20, 1989), reprinted in 1990 U.S8.C.C.A.N. 1906, 2125,   

The Conference Report to OBRA 89, § 6403, now 42 U.S.C. § 1396d(r), 

stated that the legislation "[c]odifies the current regulations on 

minimum components of EPSDT screening and treatment, with minor 

changes . . . . [and] [p]rovides that "screenings must include blood 
  

testing when appropriate, as well as health education." H.R. Conf. 
  

Rep. No. 101-386, 101st Cong. 1st Sess. (Nov. 21, 1989), reprinted in   

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 10 
  

 



1990 U.S.C.C.A.N. 3018, 3056 (emphasis added). Any suggestion that 

Congress intended the phrase "lead blood level assessment" to mean 

solely "blood lead test" is contrary to the language of the statute, 

the evidence available to Congress, and legislative history, and 

should be rejected. 

C. Plaintiffs Have An Adequate Remedy Against The State Of Texas 
  

Plaintiffs now claim that they are no longer challenging the HCFA 

guidelines, but instead seek relief from the federal government's 

continued support, financing and encouragement to the states to use 

the EP test. Assuming, argquendo, that the Medicaid statute requires   

blood lead testing, the most appropriate avenue for plaintiffs to seek 

redress for their injury would be a suit solely against the State of 

Texas pursuant to 42 U.S.C. § 1983. Such a lawsuit would provide a 

more adequate remedy than the sweeping mandatory injunctive relief 

plaintiffs seek with respect to the federal defendant, and would 

ensure that any injury plaintiffs suffer as a direct result of Texas’ 

alleged failure to follow the Medicaid statute is redressed. 

Plaintiffs have no right to sue the federal government directly under 

the Medicaid statute and the only statute that might otherwise provide 

them with a cause of action, the Administrative Procedure Act ("APA"), 

provides for judicial review of a federal agency's action only where 

there is no other adequate remedy in a court. See 5 U.S.C. § 704. As 

a result, plaintiffs' claims with respect to federal defendant should 

be dismissed. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT == Dage 11 
   



  

Even assuming that plaintiffs obtain the relief from federal 

defendant of requiring HCFA to issue guidelines that require the 

states' use of only the blood lead test, there is no assurance that 

the State of Texas would comply with such revised HCFA guidelines.’ 

Plaintiffs themselves recognize this when they argue that "the 9/19/92 

HCFA guidelines . . . are not mandatory or otherwise binding on the 

states." Memcrandum in Support of Response at 9. Within the broad 

framework of federal requirements and oversight, the states operate 

their individual programs in accordance with state rules and criteria 

that vary widely. The day-to-day administration of state Medicaid 

programs is performed by the states, not by the federal government. 

As a result, "[a]s long as a State complies with the requirements of 

the Act, it has wide discretion in administering its local program." 

lewis v. Heqgstrom, 767 F.24 1371, 1373 (9th Cir. 1985) (citations   

omitted). As a general rule, the federal government ensures systemic 

compliance with the Medicaid statute, see generally Harris v. McRae, 
  

448 U.S. 297 (1980). Because of this relationship with the states, as 

well as the federal government's limited resources, federal defendant 

is not in a position to know whether the State of Texas is following 

its guidelines with respect to every Medicaid-eligible child. The 

relief requested against the federal defendant would fail to redress 

  

> In any event, nothing in the Medicaid statutory scheme 
requires HCFA to issue any guidelines. Cf. 42 U.S.C. § 902 
(Secretary of HHS vested authority to administer Title XIX); 49 
Fed. Reg. 35, 248-49 (Sept. 6, 1984) (Secretary of HHS delegating 
to HCFA Administrator the authority to administer Title XIX). 

  

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -w= "Page 12 
  

 



  

any alleged injuries plaintiffs claim they have suffered; however, if 

plaintiffs are correct in their view that the Medicaid statute itself 

requires use of the blood lead test, they could more appropriately and 

efficiently obtain the relief they seek from the State of Texas. 

Courts are frequently faced with cases, such as this one, in 

which a plaintiff alleges direct injury from a third party, but sues 

the government for failing either to prevent the injury or to take 

enforcement action against the third party. Just as frequently, 

courts dismiss such actions against the government when the plaintiff 

has an adequate remedy against the third party. Even if direct 

lawsuits are not a superior remedy to the broad relief requested by 

plaintiffs, judicial review is precluded because direct lawsuits are 

nevertheless an adequate remedy. 

In Coker v. Sullivan, 902 F.2d 84 (D.C. Cir. 1990), for example, 
  

homeless families and advocacy organizations sued HHS and sought an 

order requiring it to enforce state Emergency Assistance plans. HHS 

regulations required compliance with these plans and authorized 

withholding of federal payments to states that failed to comply with 

federal requirements. Noting that "if other remedies are adequate, 

federal courts will not oversee the overseer," id. at 89, the D.C. 

Circuit held that plaintiffs had an adequate remedy for alleged 

deficiencies in state plans by suing the states directly. Id. at 90. 

Indeed, in an observation equally appropriate for this case, the court 

noted: 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 13 
  

 



Actions directly against the states are not merely 
adequate; they are also more suitable avenues for 
plaintiffs to pursue the relief they seek. The 
states are the immediate cause of the injuries of 
which [plaintiffs] complain; these plaintiffs ask 
HHS not to refrain from harming them but rather to 
cure their state-created injuries. 

d. at 90 (footnote omitted). And, as the Coker court recognized, at 

least one federal court, in Koster v. Webb, 598 F. Supp. 1134 
  

(E.D.N.Y. 1983), has held that plaintiffs have a § 1983 action against 

a state to force its compliance with that state's Emergency Assistance 

plan provisions. Id. 

In Council of and for the Blind, Inc. v. Regan, 709 F.24 1521 
  

(D.C. Cir. 1983), a group of organizations and individuals maintained 

that the Office of Revenue Sharing (ORS) was not adequately monitoring 

local governments' compliance with the antidiscrimination provisions 

of the Revenue Sharing Act. The litigants sought broad-based, 

nationwide relief requiring extensive judicial supervision of the 

ORS's enforcement of discrimination claims. Id. at 1524-25. The 

court held, however, that because the Revenue Sharing Act provided an 

adequate alternative remedy against the non-complying local 

governments when the ORS failed to act, the ORS's failure to process 

administrative complaints was not subject to judicial review under the 

APA. Id. at 1531. As in the present case, the alternative remedies 

available in Council of and for the Blind were individual lawsuits 
  

directly against the entities that allegedly violated the law. The 

court explicitly held that since such lawsuits were "adequate to   

redress the discrimination allegedly encountered by appellants" it did 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 14 
   



  

not matter whether this individualized relief would provide the most 

effective remedy. Id. at 1532-1533 (emphasis in original). 

Similarly, in Women's Equity Action Leaque ("WEAL)" v. Cavazos, 
  

906 F.2d 742, 751 (D.C. Cir. 1990), plaintiffs filed suit against the 

Secretary of Education for an order requiring him to monitor and 

enforce anti-discrimination laws against educational institutions that 

received federal funding. Relying on Council of and for the Blind v. 
  

Regan, 70° F.24 1521, 1531-33 (D.C. Cir. 1983) (en banc), the court 

held that suits against individual educational institutions served as 

an adequate alternative remedy and dismissed APA claims against the 

Secretary. WEAL, 906 F.2d at 750-51.° See also Washington Legal 
  

Foundation v. Alexander, 778 F. Supp. 67, 70-72 (D.D.C. 1991). 
  

The case plaintiffs themselves cite, Mitchell v. Johnston, 701 
  

F.2d 337 (5th Cir. 1983), is precisely illustrative of this adequate 

remedy. In Mitchell, the plaintiffs alleged that Texas had deprived 
  

them of their statutorily guaranteed rights under the EPSDT progran, 

and sued the State of Texas, not the federal government, pursuant to 

42 U.S.C. § 1983. Id. at 344. The Mitchell court quoted the holding   

of Maine v. Thiboutot, 448 U.S. 1 (1980), that "suits in federal court 
  

under section 1983 are proper to secure compliance with the provisions 

  

6 Plaintiffs in both Coker and WEAL argued that individual 
suits could not provide the systematic relief that federal 
enforcement could. The D.C. Circuit rejected both claims, 
observing in Coker that "the critical injury plaintiffs allege is 
the denial of EA to eligible families, and this injury can be 
redressed without any relief against the federal government." 
Coker, 902 F.2d at 90 n.5; WEAL, 206 F.24 at 751. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 15 
  

 



  

of the Social Security Act on the part of tho partioioating states." 

14. 

Plaintiffs here may pursue their claim that the Medicaid statute 

requires use of the blood lead test through their current § 1983 suit 

against the State of Texas. If plaintiffs are correct in their view, 

this Court could grant relief as to the State of Texas, which would 

fully redress the alleged injuries asserted by plaintiffs. Thus, a 

direct action against the state is not merely an "adequate" remedy 

within the meaning of the APA, it is the superior remedy in this 

context. 

D. Plaintiffs' Complaint Should Be Dismissed For Failure To State 
Claim Upon Which Relief May Be Granted Or Alternatively, Summary 
Judgment Should Be Granted In Favor Of Federal Defendant 
  

A court has discretion, pursuant to Federal Rule of Civil 

Procedure 12 (b) (6), to consider or reject "matters outside the 

pleadings" such as affidavits, and it may or may not elect to convert 

a Rule 12(b) (6) motion into a motion for summary judgment pursuant to 

Rule 56. See Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 
  

193 n.3 (5th: Cir. 1988) (citing 5 C. Wright & A. Miller, Federal 

Practice and Procedure § 1366 (1969)). Accordingly, the Court has the 

discretion to exclude the Hiscock and Binder declarations accompanying 

federal defendant's 12(b) (6) motion and simply dismiss this suit based 

on Plaintiffs' Second Amended Complaint and the attachments thereto.’ 

  

’ In any event, federal defendant's motion to dismiss 
pursuant to Federal Rule of Civil Procedure 12(b) (1), based on 
the argument that named plaintiffs' claims should be dismissed 
with respect to defendant USA because they have not suffered any 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 16 
  

 



  

Fvsh it the Court, in its discretion. chooses to coniider the Hiscock 

and Binder declarations in deciding the legal issues before it, 

thereby converting defendant USA's motion to dismiss into a motion for 

summary judgment pursuant to Federal Rule of Civil Procedure 56, 

summary judgment should be granted in federal defendant's favor as 

there are no genuine issues of material fact, notwithstanding 

plaintiffs' allegations to the contrary, since defendant USA is 

entitled to judgment as a matter of law. 

Plaintiffs' attempts to demonstrate that there are genuine issues 

of material fact in dispute should be rejected. In fact, most of the 

"facts" plaintiffs raise are not only immaterial, but also are 

intertwined with many of the legal issues discussed supra. Moreover, 

many of the "factual" issues plaintiffs raise evidence a lack of 

understanding of the new HCFA guidelines, 9 1.1-1.3 (plaintiff Taylor 

Dixon should receive a blood lead test under the new HCFA guidelines 

based on the verbal assessment), q 1.7 (the guidelines authorize use 

of the EP test for "low risk" children only, and at the option of the 

EPSDT provider; this was clarified in the All States Letter issued on 

October 15, 1992, gee Fxhibit 3 to Hiscock Declaration), 99 4.1-4.3 

(the new HCFA guidelines specifically acknowledge in the Preamble that 

the EP test is not sensitive for blood lead levels below 25 ug/dL), 9 

5 (cost is nowhere mentioned in the HCFA guidelines as a rationale for 

  

injury and therefore lack standing to sue, does not depend on the 
Binder and Hiscock Declarations, and should not be converted into 
a motion for summary judgment. 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 17 
  

 



  

: the continued use of the EP test, And in fact. HCPA ne tated ih tts 

October 15, 1992 All States Letter that it will share in the cost of 

blood lead testing of all EPSDT children, regardless of risk level), ¢ 

10 (the new HCFA guidelines stress that blood lead testing is the 

screening test of choice); or are irrelevant since they encompass 

events that occurred before the new HCFA guidelines went into effect, 

see § 1.5 (State of Texas' failure to onbly with previous HCFA 

guidelines which was subsequently corrected in 1991). 

Plaintiffs correctly recognize that the only issues before the 

Court are issues of law -- whether the plaintiffs have standing to 

bring this action, and, if they do, whether the Medicaid statute 

requires blood lead testing only. See Response at 13. As a result, 

the Court should reject plaintiffs' suggestion that any discovery is 

needed, and accordingly, should either dismiss plaintiffs' Complaint 

for failure to state a claim, or alternatively, grant summary judgment 

in favor of federal defendant as there are no genuine issues of 

material fact in dispute. 

111. 

CONCLUSION 
  

For the foregoing reasons, and for the reasons stated in 

defendant USA's Corrected Motion to Dismiss or in the Alternative for 

Summary Judgment and Memorandum in Support, the Court should dismiss 

plaintiffs' Complaint in its entirety because plaintiffs have failed 

to demonstrate any injury and therefore lack standing to bring this 

action. Alternatively, the Court should dismiss plaintiffs' Complaint 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 18 
  

 



  

- . . i are . . : * : iin & . * oe oo in i 

a b " Vie . 4 Ear ’ ary - . Lg >t EL Dy . A Li 

v  ~ 

tor. fAL10Te to State a Srath Pursuant to Federal Rule of .Civil 

Procedure 12(b) (6) against federal defendant under the Medicaid 

statute, or because there is no genuine issue as to any material fact, 

grant summary judgment in favor of defendant USA in accordance with 

Federal Rule of Civil Procedure 56. 

Dated: December 7, 1992 Respectfully submitted, 

STUART M. GERSON 
Assistant Attorney General 

MARVIN COLLINS 

United States Attorney 

MARY ANN MOORE 

Assistant United States Attorney 
Texas Bar No. 14360400 

hf 
reson [haw 

SHEILA LIEBER 

ALINA S. KOFSKY | 0) 

  

  

  

  

= 3 EES We 

DIC mn. Hoovecumme fugit 
I 

STEVEN H. HARTMANN 
  

Attorneys, Department of Justice 
Federal Programs Branch, Civil 

Division 
901 E Street, N.W., Room 1010 
Washington, D.C. 20530 
(202) 514-4523 
(202) 616-8470 (Fax #) 

ATTORNEYS FOR DEFENDANT 

UNITED STATES OF AMERICA 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -= Page 19 
  

 



} » i a ks ht A : AE 9 

  

OF COUNSEL: 

HENRY R. GOLDBERG, Deputy Chief 
Counsel for Litigation 

DAVID V. PEERY, Attorney 

Office of the General Counsel 
Department of Health and 

Human Services 
Room 500, East Highrise Building 
6325 Security Boulevard 
Baltimore, MD 21207 
(410) 965-8871 
(410) 966-5187 (Fax #) 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -~w Page 20 
  

 



  

> 

  

CERTIFICATE OF SERVICE 

I hereby certify that on this 7th day of December, 1992, a copy 

of Defendant United States of America's Reply to Plaintiffs' Response 

to Defendant United States of America's Motion to Dismiss. or in the 

Alternative for Summary Judgment and Memorandum in Support, was served 

via first class mail, postage prepaid upon: 

Laura B. Beshara 

Michael M. Daniel 
MICHAEL M. DANIEL, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

Edwin N. Horne 
Assistant Attorney General 
Office of the Attorney General 
State of Texas 
P.O. Box 12548 

Capitol Station 
Austin, Texas 78711-2548 

Bill Lann Lee 
Kirsten D. Levingston 
NAACP Legal Defense & Educational 

Fund, Inc. 

315 West Ninth Street, Suite 308 
Los Angeles, California 90015 

  

  

ALINA S. KOFSKY [) 3 

DEFENDANT UNITED STATES OF AMERICA'S REPLY TO 

PLAINTIFFS' RESPONSE TO DEFENDANT UNITED STATES 

OF AMERICA'S MOTION TO DISMISS OR IN THE ALTERNATIVE 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT -- Page 21