Annotated Complaint
Working File
December 20, 1990

14 pages
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Case Files, Matthews v. Kizer Hardbacks. Annotated Complaint, 1990. 99d5bbb9-5c40-f011-b4cb-0022482c18b0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/32c40d9b-30c0-43a5-9378-22f78434c360/annotated-complaint. Accessed July 11, 2025.
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JOEL R. REYNOLL JACQUELINE WARREN 5 || NATURAL RESOURCES DEFENSE COUNCIL 617 S. Olive Street, Suite 1210 5) Ld 3 || Los Angeles, CA 90014 PRIGINAL (213) 892-1500 I'L ED : : JANE PERKINS DEC 2 ¢ 5 | NATIONAL HEALTH LAW PROGRAM 1990 2639 S. La Cienega Blvd. RICHARD wr « 6 Los Angeles, CA 90034 Norte uso KING. (213) 204-6010 y Fm STEPHEN RONFELDT 8 || SUSAN SPELLETICH LEGAL AID SOCIETY OF ALAMEDA COUNTY 9 1440 Broadway, Suite 700 Oakland, CA 94612 10 (415) 451-9261 11 || BILL LANN LEE KEVIN S. REED 12 || NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 315 W. 9th Street, Suite 208 13 || Los Angeles, CA 90015 jarrea tTe 90 3620 MARK D. ROSENBAUM 15 || ACLU FOUNDATION OF SOUTHERN CALIFORNIA 633 South Shatto Place 16 || Los Angeles, CA 90005 (213) 487-1720 Erp 17 Attorneys for Plaintiffs 18 (Additional counsel on following page) 19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 20 ERIKA MATTHEWS AND JALISA MATTHEWS, 21 | by their guardian ad litem Lisa Matthews, and PEOPLE UNITED FOR A 22 || BETTER OAKLAND, On Behalf of Themselves and All Others Similarly 23 || Situated, Civ. No. CLASS ACTION 24|| Plaintiffs, 2531 Ve. COMPLAINT 26 | KENNETH KIZER, Director, California Department of Health Services, 27 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 28 COMPLAINT | L_ EDWARD M. CHEN ACLU FOUNDATION OF NORTHERN CALIFORNIA 1663 Mission Street, Suite 460 San Francisco, CA 94103 (415) 621-2493 Attorneys for Plaintiffs COMPLAINT 1. _ ® 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 : annually could be found tc have toxic blood lead levels if. all children at risk in California were screened. 3. These staggering levels of contamination are due to the pervasive use of lead products in our society, in lead-based paint and gasoline, leaded drinking-water pipes, printing inks and pigments used in toys, fertilizers, and lead-soldered food cans. Lead enters the body through the mouth or nose and, once there, is a powerful toxin with long-term harmful effects. Lead's effects may include decreased intelligence, loss of short-term memory, underachievement in reading and spelling, impairment of visual- motor functioning, impotence, sterility, spontaneous abortion, anemia, convulsions, hypertension, kidney disease, and cancer. /// COMPLAINT Children and 8. are especially wiser Is to these effects 2 | because their neurologic systems are developing. 3 4, Because early lead toxicity is reversible, and patients 4 | may be asymptomatic or only vaguely symptomatic, monitoring of 5 lead blood levels is critical. Measuring blood-lead content is 6 || generally considered by experts to be the most accurate and 71 reliable measure of the level of exposure to lead. Once detected, 8 | lead poisoning and related health defects can often be treated 9 and, in many cases, measures can be undertaken to detect and 10/l eliminate the source of exposure. ir 11 5. The federal Medicaid Act ("Act") imposes a mandatory 12 || duty upon the Department to ensure that blood lead levels are 13 || measured in poor children and to provide necessary treatment. Pi 14 || Specifically, the Act requires the Department to include in its 15 || Medicaid program early and periodic screening, diagnosis and 16 || treatment ("EPSDT") for eligible children under age 21, see 42 171 U.s.Cc. §§ 1396a(a) (43), d(a) (4) (B), and 1396d(r), including lead Mire blood level assessments. 42 U.S.C. § 1396d(r). The Department is 2” f19| also required to provide treatment for the effects of lead "3 26 poisoning discovered during the screen. 42 U.S.C. § 1396d(r). 21 6. The Department's Medicaid program, known as "Medi- Wd 22|l cal," provides EPSDT screens through the Child Health and Li 23 || Disability Prevention Program ("CHDP/EPSDT Program"). Cal. Welf. 24 || & Inst. Code § 14132(v). That program, however, fails to provide Cl 25 || for or require lead blood assessments and treatment, in violation sell of 42 U.S.C. §§ 1396a(a) (43), 1396d(a) (4) (B), and 1396d(r). 27 | Accordingly, the Department has violated and continues to violate 28 || its mandatory statutory duty to implement and administer the COMPLAINT 1 || CHDP/EPSDT i consistent with the oro ions of the Medicaid 2 | Act cited above. 3 II. JURISDICTION AND VENUE 4 7. This is a civil action authorized by 42 U.S.C. § 1983 5 to redress the deprivation under color of state law of rights, rg privileges, and immunities guaranteed by the Constitution of the ak 72 United States or by acts of Congress. This Court has jurisdiction WE 8 | pursuant to 28 U.S.C. 8§8§ 1331 and 1343(3) and (4). 9 8. This Court also has jurisdiction over plaintiffs’ 10 action for declaratory relief pursuant to 28 U.S.C. § 2201 and 111 Fed. R. Civ, P. 57. Injunctive relief is authorized by 28 U.S.C. 124i § 2202, 42 U.S.C. § 1983, and Fed. R.. Civ. P. 65. 13 9. The defendant named herein resides in, maintains 14 || offices in, or is responsible for enforcing the laws relevant to 15 || this litigation in the Northern District of California. 16} TIX. PLAINTIFFS 17 10. Plaintiff Erika Matthews, who is two years old, and her 18 | sister and plaintiff Jalisa Matthews, who is one year old, are \? 19 | African-American California residents eligible for Medi-Cal LA 50 ll services. Plaintiffs Erika and Jalisa Matthews are entitled and 21 || have attempted to obtain lead-blood assessments and, if necessary, 22 || treatment through the CHDP/EPSDT Program but have been denied 53 || either an assessment or treatment because of the Department's 54 | failure to implement the Medicaid Act as described herein. They 25 || appear in this action through their mother and guardian ad litem 26 || Lisa Matthews. 27 11. Plaintiff People United for a Better Oakland ("PUEBLO") >a ll is an unincorporated association comprised of low-income, minority COMPLAINT individuals noe concerned about heatchillforions in. California, 2 || particularly the hazards of high lead exposure in children. 3 | Approximately 90 percent of PUEBLO's members and their children all are Medi-cal recipients, many of whom are eligible for CHDP/EPSDT 5 || screens. PUEBLO's members and their children have attempted to 6 | obtain, but have been denied, lead-blood assessments and/or 7 | treatment through the Department's CHDP/EPSDT Program. 8 IV. DEFENDANT 9 12. Defendant Kenneth Kizer is the Director of the vi \ A ve W JV 7 10/l california Department of Health Services ("Department"), the state 11 || agency responsible for administration of the Medi-Cal program. 12 | Defendant Kizer's duties include supervision and control of the 13 || Medi-cal program, including the CHDP/EPSDT Program, so as to 14 | secure full compliance with the governing laws. Under Defendant bY 15 || Kizer's supervision, the Department has failed to implement a lead 16 | blood assessment and treatment program for Medi-Cal eligible 17 || children in violation of 42 U.S.C. §§ 1396a(a) (43), = 2 18 | 1396d(a) (4) (B), and 1396d(r). Defendant Kizer is sued in his 19 || official capacity. 20 IV. CLASS ACTION ALLEGATIONS 21 13. Plaintiffs PUEBLO and Matthews bring this action on 22 their own behalves and, pursuant to Fed. R. Civ. P. 23(a) and NN 23 23(b) (2), on behalf of a class of all similarly situated children TARGA sal in california who are or will be eligible for lead blood screening >5 || and treatment of related health conditions through the Medi-Cal 26 | CHDP/EPSDT Program but who have been denied such screening and/or 57 || treatment because of the Department's failure to include mandatory 28) /// COMPLAINT lead blood A Li and necessary treat: as part of the CHDP/EPSDT Program. 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 Act are wall the states through the @&.icion- of the Act jtself and under the Supremacy Clause of the United States Constitution. 17. The State of California has elected to participate in the Medicaid program and has established the California Medical Assistance Program, commonly called "Medi-Cal," which provides medical services to low income persons through, inter alia, reimbursement of health care providers for such services. 18. Consistent with federal requirements, Medi-Cal must provide certain mandatory health care services to eligible low- income people. Among these mandatory services are "early and periodic screening, diagnostic, and treatment [EPSDT] services . . . for individuals who are eligible under the [state Medicaid] plan and are under the age of 21. 42 U.S.C. "8 :13964(a) (4) {(B). These EPSDT corvices are required by law to include "screening. services . . .-whiech-shall at a minimum include Yahorstory tests: (including lead blood level assessment appropriate for age and risk factors) ... . ." 42 U.S.C. § 1396d4(r) (1). Screening ~~ us SePvices must be provided at periodic intervats—and "at such other intervals, indicated as medically necessary . . . ." Id. To guarantee that screening services will be readily accessible to eligible children, Congress has prohibited state Medicaid agencies from imposing prior authorization requirements as a precondition to the provision of EPSDT screening services under Medicaid. omnibus Budget Reconciliation Act of 1989 (H.R. 3299): Report of the House Budget Committee (Explanation of the Energy and Commerce and Ways and Means Committees Affecting Medicare-Medicaid /// COMPLAINT |§7-# 21 Programs) sop: &o, 1989), as reprinted b pdicare & 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. § 1396d(r) (5). 20. The Health Care Financing Administration ("HCFA") of the United States Department of Health and Human Services is the federal agency charged with administering the Medicaid program. HCFA requires states to adhere to the guidelines contained in the State Medicaid Manual. The State Medicaid Manual requires that the states [s]creen all Medicaid eligible children ages 1-5 for lead poisoning. . . . Children with lead poisoning require diagnosis and treatment which includes periodic reevaluation and environmental evaluation to identify the sources of lead. HCFA, State Medicaid Manual § 5123.2D (July 1990) (Transmittal No. 4). 21. In California, lead blood assessments are not a mandatory part of the CHDP/EPSDT screening provided. State statute and regulation only require that testing for lead poisoning occur "where appropriate," Cal. Health & Safety Code § 321.2; 17. Cal. Code Reg. § 6846 (b) (8) / notwithstanding mandatory federal requirements for children under age six. 52. 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 1 || CHDP/EPSDT proc 17 Cal. Code Reg. 8§8§ 8 {e), 5 || notwithstanding the foregoing federal requirements. 3 23. On information and belief, the Department requires 4 | prior authorization for some lead blood assessments. Billing 5 || instructions to providers participating in the CHDP/EPSDT Program 6 are contained in the PM 160 Instruction Form, effective April 71 1990, which states that lead blood assessments "should be done if g || health history warrants or prior approval received from State." 9 24. On information and belief, the Department limits 10|| treatment services to those covered by the state plan "subject to 11 || any applicable Medi-Cal program limitations," 17 Cal. Code Reg. § 12 || 6852, notwithstanding federal requirements that treatment be 13 || provided whether or not such services are covered by the state's 14 || Medicaid plan. 15 FIRST CLAIM FOR RELIEF (Medicaid Act Violations) 16 17 25. Paragraphs 1 though 24 are realleged and incorporated 18 | herein by reference. 19 26. The Medicaid Act requires that Medi-Cal eligible ey, 20|l children receive lead blood assessments as part of periodic and 21 || interperiodic EPSDT screens. Such screening services cannot be 22 | subjected to prior authorization requirements. The Act further 23 | requires that Medi-Cal eligible children obtain necessary medical 2A 54 | treatment for conditions caused by elevated blood levels hs identified as a result of an EPSDT screen. “er rize 27. In violation of the Medicaid Act, 42 U.S.C. 8§§ iA ay 1396a(a) (43), 1396a(d) (4) (B), and 1396d(r), implementing 28 | regulations, 42 C.F.R. 441.56 et sedq., and guidelines, HCFA State 10. COMPLAINT a Medicaid variz 2352.3D (July 1990), enol zeosant 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 CIATM 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 11. COMPLAINT ! \ AMY Ive 3 27 28 official ori 8 procedures, Ww 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. 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. /// Fad 12. COMPLAINT é FOURTH CLAIM FOR _— (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 27 28 4. reer @ that the defendant's 8 omissions, policies, practices, and procedures in failing to provide eligible persons with the lead screening, diagnosis and treatment required by 42 U.S.C. §§ 1396a(a) (43), 1396d(a) (4) (B), and 1396d(r) violate the Social Security Act. 5 Retain jurisdiction over this action Lo 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. ga 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 By By Jane Perkins Ane for Plaintiffs 14. COMPLAINT