Settlement Agreement

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IN THE UNITED STATES iia EE — 
FOR THE NORTHERN DISTRICT gt Gi 7 

  

ISTRIC TOF TEXAS | 

DALLAS DIVISION =b ji 

| oA 4h 

, crim, - 

LOIS THOMPSON on behalf of 

and as next friend to TAYLOR 
KEONDRA DIXON, ZACHERY X. 

WILLIAMS, CALVIN A. THOMPSON, 

and PRENTISS LAVELL MULLINS 

Plaintiffs, 
and : 

PEOPLE UNITED FOR A BETTER 

OAKLAND, et al., 
Plaintiff-intervenors, 

CIVIL ACTION NO. 

3:92~CVY~1539-R 

Vow 

BURTON RAIFORD 

and 

THE UNITED STATES OF AMERICA 

Defendants. % 
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SETTLEMENT AGREEMENT 
  

This Settlement Agreement is made by and on behalf of 

Lois Thompson, on behalf of and as next friend to Taylor Keondra 

Dixon, Zachery X. Williams, Calvin A. Thompson and Prentiss 

Lavell Mullins; People United for a Better daland; Denver Action 

for a Better Community; New York City Coalition to End Lead 

Poisoning; Robin Gourley on behalf of and as Rex friend to Bryan 

Alan Gourley, Wesley Kyle Gourley, Bridget Michelle Gourley, 

Linda Danielle Gourley, and Betsey Irene Gourley; Tearrah 

Roberson on behalf of and as next friend to Juan Wilkins; and 

Mary Marie Roberson on behalf of and as next friend to Ashard 

Moore, Jason Rollins, Ashea Roberson, and Nasheika Roberson, 

Plaintiffs herein; and defendant, Donna Shalala, Secretary, 

United States Department of Health and Human Services, in the 

above-entitled action by and through the parties’ undersigned 

 



attorneys. 

WHEREAS, the parties agree that childhood lead poisoning is 

a serious health problem facing children in America today. The 

parties further agree that the continuation of a cohesive program 

to address the problem of childhood lead poisoning is desirable. 

WHEREAS, the parties agree that HHS, through the Health Care 

Financing Administration ("HCFA"), defines appropriate blood lead 

level assessment by reference to various current sources of 

medical expertise, including, most importantly, the periodic 

statements of the Public Health Service’s Centers for Disease 

Control and Prevention ("CDC") on "Preventing Lead Poisoning in 

Young Children." | 

WHEREAS, the parties believe that the majority of Medicaid- 

eligible children are at high risk for lead poisoning. 

It is hereby agreed, by and between the parties, appearing 

through their undersigned attorneys, that this action is settled 

on the following terms: 

1. In accordance with Federal Rules of civil Procedure 

23(a) and (b)(2), the parties agree that this action shall 

proceed as a nationwide class action effective as of the date of 

notice to the class, defined as "all Medicaid-eligible children 

under age 72 months who are eligible to receive Early and Period- 

ic Screening, Diagnosis, and Treatment ("EPSDT") program servic- 

es." The term "Medicaid-eligible" means an individual who has 

been determined under the authority of a state Medicaid agency as 

eligible to receive medical assistance under Title XIX of the  



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

ble. 

2. HHS agrees to revise the instructional and interpretive 

guidance concerning lead toxicity screening of Medicaid-eligible 

children contained in the "State Medicaid Manual" in accordance 

with the terms of this Settlement Agreement. Any subsequent 

letters oF guidance to the states shall be in accordance with the 

revised State Medicaid Manual. 

3. HHS, through HCFA’s "State Medicaid Manual," will inform 

the states that the erythrocyte protoporphyrin ("EP") test is not 

to be considered an acceptable test for screening Medicaid- 

eligible children for lead poisoning, regardless of the child’s 

risk level. Under the revised policy, HCFA will now require the 

use of the blood lead test as the only acceptable laboratory 

screening test for performing blood lead level assessments. In 

requiring use of only the blood. lead test for lead screening, 

HCFA’s revised policy will place the responsibility on the 

individual states to reach adequate laboratory capacity to 

perform blood lead testing for all Medicaid-eligible children. 

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

the states that: 

Lead Toxicity Screening. —- All children ages 6 months to 72 
  

months are considered at risk and must be screened for lead 

poisoning. Each State establishes its own periodicity schedule 

after consultation with medical organizations involved in child 

health. These periodicity schedules and any other associated  



  

office visits must be used as an opportunity for anticipatory 

guidance and risk assessment for lead poisoning. 

a. Risk Assessment. All children from 6 to 72 months of 
  

age are considered at risk and must be screened. Beginning at 

six months of age and at each visit thereafter, the provider must 

discuss with the child’s parent or guardian childhood lead 

poisoning interventions and assess the child’s risk for exposure. 

Ask the following types of questions at a minimum. 

° Does your child live in or regularly visit an old house 

built before 1960? Was your child’s day care 

center /preschool/babysitter’ s home built before 19607? Does the 

house have peeling or chipping paint? 

° Does your child live in a house built before 1960 with 
recent, ongoing or planned renovation? | 

* Have any of your children or their playmates had lead 
poisoning? 

° Does your child frequently come in contact with an adult who 

works with lead? Examples are construction, welding, pottery, or 

other trades practiced in your community? 

J Does your child live near a lead smelter, battery recycling 

plant, or other industry likely to release lead such as (give 

examples in your community)? 

J Do you give your child any home or folk remedies which may 

contain lead? 

° Does your child live near a heavily travelled major highway 
where soil and dust may be contaminated with lead? 

J Does your home’s plumbing have lead pipes. or copper with 

lead solder joints? 

Ask any additional questions that may be specific to situations 
which exist in a particular community. 

b. Determining Risk. Risk is determined from the response 
  

to the questions which your State requires for verbal risk 

 



  

assessment. 

J If the answers to all questions are negative, a child is 

considered low risk for high doses of lead exposure, but must 
  

receive blood lead screening by blood lead tests at 12 months and 

24 months of age. 

° If the answer to any question is positive, a child is 

considered high risk for high doses of lead exposure. A blood 
  

lead test must be obtained at the time a child is determined to 

be high risk. 

Subsequent verbal risk assessments may change a child’s risk 

category. If as a result of a verbal risk assessment or other 

information conveyed during a screening visit a previously low 

risk child is recatsgouizen as high risk, that child must be 

given a blood lead test. 

Ca Screening Blood Lead Tests.--The term screening blood 
  

lead tests refers to blood lead. tests for children who have not 

previously been tested for lead with the blood lead test or who 

have been previously tested and found not to have an elevated 

blood lead level. If a child is determined by the verbal risk 

assessment to be at: 

  

(1) Low Risk.-- A screening blood lead test is re- 

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

months of age. 

(2) High Risk.-- A blood lead test is required when a 
  

child is identified as being high risk, beginning at six months 

of age. If the initial blood lead test results are less than (<) 

 



10 micrograms per deciliter (ug/dL), a screening blood lead test 

  

is required at every visit prescribed in the States’ EPSDT 

periodicity schedule through 72 months of age, unless the child 

has received a blood lead test within the last six months of the 

periodic visit. 

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

ug/dL obtained by capillary specimen (fingerstick) must be 

confirmed using a venous blood sample. 

If a child between the ages of 24 months and 72 months has 

not received a screening blood lead test, then that child must 

receive it immediately, regardless of being determined at low or 

high risk. 

ad. Diagnosis, Treatment and Follow-up.--If a child is 
  

found to have blood lead levels equal to or greater than (2) 10 

ug/dL, providers are to use their professional judgment, with 

reference to CDC guidelines covering patient management and 

treatment, including follow up blood lead tests and initiating 

investigations to the source of lead, where indicated. Determin- 

ing the source of lead may be reimbursable by Medicaid. 

e. Coordination with other Agencies. Coordination with 
  

WIC, Head Start, and other private and public resources enables 

elimination of duplicate testing and ensures comprehensive 

diagnosis and treatment. Also, public health agencies’ Childhood 

Lead Poisoning Prevention Programs may be available. These 

agencies may have the authority and ability to investigate a 

lead-poisoned child’s environment and to require remediation. 

 



  

5, Nothing in this Settlement Agreement alters HCFA's 

policy concerning the extent to which investigations to determine 

the source of lead are reimbursable by Medicaid. 

6. HHS, through HCFA, agrees to publish the revision as a 

State Medicaid Manual transmittal not more than thirty (30) days 
  

from the date this Settlement Agreement is approved by the Court 

with an effective date not more than ninety (90) days from the 

date this Settlement Agreement is approved by the Court. 

7. HHS retains the right to alter the terms of its guidance 

to the states to respond to changes in pertinent legislation or 

implementing regulations, or to significant new scientific 

information and/or developments regarding childhood lead poison- 

ing screening and treatment. In the event HHS makes any such 

alterations within one year of this Court’s approval of the 

settlement agreement, plaintiffs and plaintiff-intervenors retain 

the right to re-institute this civil action challenging the 

legality of HHS’ actions by filing a supplemental complaint. 

Defendant Donna Shalala, Secretary of HHS, retains the right to 

present any and all defenses to such an action. 

In the event any such alterations are made after that dike: 

plaintiffs and plaintiff-intervenors retain the right to insti- 

tute a new civil action challenging the legality of HHS’ actions, 

and defendant retains the right to present any and all defenses 

to such an action. 

8. The parties agree that United States Centers for Disease 

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

 



for guidance in the development of a childhood lead poisoning 

prevention program, and that the CDC’s October 1991 statement 

entitled Preventing Lead Poisoning in Young Children ("CDC 
  

Statement") with respect to the proper protocol for pediatric 

lead testing is an important source of available medical knowl- 

edge regarding pediatric lead screening, testing, and treatment. 

9. Defendant shall make available to plaintiffs and/or 

plaintiff-intervenors any non-privileged information in her 

possession on the efforts of state Medicaid programs to implement 

blood lead level testing under the EPSDT program. This informa- 

tion shall be made available to plaintiffs and plaintiff-interve- 

nors within a reasonable time after a written request for such 

information is received by defendant. 

10. The parties agree that notice to the class of this 

Settlement Agreement, as defined in paragraph 1 above, will be 

provided through the publication and distribution of notice of 

this Settlement Agreement to the following organizations that 

represent low-income children on Medicaid and other health- 

related issues, not to exceed fourteen (14) such organizations: 

1) National Clearinghouse for Legal Services 

2) National Health Law Program 

3) National Housing Law Project 

4) National Center for Youth Law 

5) Children’s Defense Fund 

6) Alliance to End Childhood Lead Poisoning 

7) ABA Center on Children and Law  



8) Trial Lawyers for Public Justice 

9) Lawyers Committee for Civil Rights Under Law 

10) Puerto Rican Legal Defense and Education Fund 

11) Mexican American Legal Defense and Education Fund 

12) Environmental Defense Fund 

13) Sierra Club Legal Defense Fund 

14) Natural Resources Defense Council 

The cost of this notice is to be borne by defendant Department of 

Health and Human Services. 

11. Neither this Settlement Agreement nor any negotiations 

or proceedings in connection herewith shall be construed, of- 

fered, received as, or deemed to be evidence of an admission on 

the part of defendant Donna Shalala, HHS, HCFA or any of their 

employees, of any breach, liability or wrongdoing whatever, 

whether as alleged in the litigation or otherwise. 

12. The obligations of this Settlement Agreement are 

subject to approval by the Court. Upon execution of the Settle- 

ment Agreement by the parties, the parties will file a joint 

motion for approval of the Settlement Agreement and approval of 

notice to the class with the Court and dismissal of the case on 

the terms of the agreed order attached to this Settlement Agree- 

ment. 

13. Attornevy’s fees 
  

Defendant shall pay the following listed amounts to the 

entities representing plaintiffs and plaintiffs-intervenors for 

attorney’s fees, litigation expenses, and costs:  



NAACP Legal Defense and Educational Fund, Inc. = $26,316, 

National Health Law Project, Inc. = $8,553, 

Bronx Legal Services = $10,526, 

Edward B. Cloutman, III = $3,947, 

Michael M. Daniel, P.C. = $40,658. 

The payments shall be full satisfaction of all claims for 

attorney's fees, litigation expenses, and costs incurred through 

the Court approval of the settlement agreement. 

The payments shall be made within 30 days of the Court’s 

approval of the settlement agreement. 

14. The parties agree that this Settlement Agreement shall 

be effective once it has been signed on behalf of all the parties 

and approved by the Court. 

 



Agreed to in form and substance: 

  

Michael M. Daniel, P.C. 

By: OMB. Bedhong TT. (5: OF 
LAURA B.' BESHARA Date 

MICHAEL M. DANIEL 

  

  

Attorneys for plaintiffs 

NAACP Legal Defense and Educational Fund, Inc. 
  

Date 

By: 

BILL LANN LEE 
KIRSTEN D. LEVINGSTON 

  

National Health Law Program 
  

Date 

By: 
JANE PERKINS 
  

Bronx Legal Services 
  

Date 

By: 
LUCY BILLINGS 
MARIE-ELENA RUFFO 

  

Attorneys for Plaintiff-Intervenors 

UNITED STATES DEPARTMENT OF JUSTICE 
  

Date 

By: 
  

SHEILA LIEBER 
ALINA S. KOFSKY 
STEVEN H. HARTMANN 

Attorneys for Defendant USA 

11 

 



    

AUG 
08-05-93 14:10 

FAGE .@02 

  

By! 

B '93 9353 FROM NAACP L.A. 

Agreed to in form and substance: 

Michael M. Dapiel, P.C. 

  

  

By: 
SIAC na 

LAURA B. BESHARA 
pate 

MICHAEL M. DANIEL : 

Attorneys for plaintiffs 

HAACP Legal Defense and Educational Fund, Inc. : He/3_ 
ht 4 Y a   

National Health Law Program ate 

By: _ 

JANE PERKINS 
  

  

  

fronx Legal Services . 
: 

; 
Date 

  
By: 
LUCY BILLINGS 
MARIE-ELENA RUFFO 

Attorneys for plaintiff-Intervenors 

UNITED STATES DEPARTMENT OF JUSTICE       Date 

  

SHEILA LIEBER 

" ALINA 8. KOFSKY 

STEVEN H. HARTMANN 

Attorneys for Defendant USA 

11 

 



HHLFPHC 

REN 

  

Agreed to in form and substance: 

Michael HM. Daniel, P.C. 

————
————

 

LAURA B. BESHARA 

Date 

Attorneys for plaintiffs 

NAACP Legal pefense and Educational Fund, Inc. Date 

BY! _ — _— 
BILL LANN LEE 
KIRATEN D. LEVINGSTORN 

National Health Law Program 
g - Eh 

pate 

- ets: 
JAN ERKINS 

Bronx Legal services 
Date 

By! ____. — 
rucy BILLINGS 
MARIE-ELENA RUFFO 

Attorneys for plaintiff-Int
ervenols 

UNITED STATES DEPARTMENT oF JUSTICE 

: 

Date 

¥: 
SHEILA 1,IEBER 

ALINA S. KOFBKY 

QTEVEN H. HARTMANN 

Attorneys for pefendant USA 

11 

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Agreed to in form and substance: 

Michael M. Daniel, P.C. 

By! 
LAURA B. BEBHARA 

MICHAEL M. DANIEL 

    

  

Attorneys for plaintiffs 

NAACP Legal Defense and Educational Fund, Inc. 
  

By: 
BILL LANN LEE 

KIRSTEN D. LEVINGSTON 

  
  

National Health Law Program   

  By: _ 
JANE PERKINS 

Bronx Legal Services   

By: LM Vxilhat) s 

LUCY BRILLIWGS 

MARIE-ELENA RUFFO 

  

Attorneys for Plaintiff-Intervenors 

UNITED STATES DEPARTMENT OF JUSTICE   

By: 
  

  

SHEILA LIEBER 
ALINA 8B. KOFSKY 
STEVEN H. HARTMANN 

Attorneys for Defendant USA 

FC IST CR (9: Bri 1AMILD-SonS 1HE3 +d As215333 1.  



A3FQr93 1l:b¢ 

Agreed to in form and substance: 

Michael M. Danial, p.C, 

By: 
LAURA B. BESHARA 
MICHAEL M. DANIEL 

    

  

Attorneys for pleintiffs 

NAACP Legal Defense and Edionttonal fund, Inc. 
? 

  

By: 
BILL LANN IEE . 
KIRSTEN D. LEVINGSTON 

PY VT TSP to Re Yi erste Tet mera sett mconill re) . el or IETTON IRE TRIE Th me kl tro, epee pt wi 4 08-2Nat ional Health Law Program ah Bg 
Date 

  

  

  

By: 
JANE PERKINS 
A] 
Bronx Legal Services 

1 

  

  

ais i Wu. 

By: 
Lucy BILLINGS 
MART E-ELENA RUFFO 

  
  

Attorneys for Plaintiff-Intervenors 
. Ea 

via 

UNITED STATES DEPARTMENT OF :JUSTICE I~. '. 

AEA LIEBER 4. i 
JALINA 8. ROFSKY 
STEVEN H. HARTMANN ““Attorneys for Defendant USA