Motion for Leave to File Second Amended Complaint and Memo in Support with Certificate of Service and Conference

    a 

  —
 

U.S. DISTRICT court Kemi NORTHERN DISTRICT OF TEXAS 

FILED 
Lh 9 pita 

gla 3d 4 FY 
IN THE UNITED STATES DISTRICT CQURT 
FOR THE NORTHERN DISTRICT OF TEKAS 

DALLAS DIVISION | 

E
R
I
 

CA vss 

SEP «9 nn 
WAR. Vd 88 

Ea SEE — 
; NANCY DOHERTY CLERs g =, LLERK 

% 

  

       
! 
i 
! 

  

ta erases esr, LOIS THOMPSON on behalf of and 

as next friend to TAYLOR 
KEONDRA DIXON, ZACHERY X. 

WILLIAMS, CALVIN A. THOMPSON 

and PRENTISS LAVELL MULLINS, 

Plaintiffs 

II ce toms 

No. 3-92 CV1539-R 

Civil Action 

* 

%* 

* 

* 

* 

%* 

* 

Vv. * Class Action 
* 

BURTON F. RAIFORD, in his * 

capacity as Commissioner of * 
the Texas Department of Human * 
Services, * 

Defendant * 

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 
  

AND 

MEMORANDUM IN SUPPORT OF THE MOTION 
  

Plaintiffs move the Court for an order granting leave to 

file the SECOND AMENDED COMPLAINT, a copy of which is attached to 

this motion. Fed. R. Civ. P. 15(a). 

The purpose of the amendment is to seek relief on behalf of 

a national class of poor children against the United States as a 

party defendant. A major issue in the existing case is Texas’ use 

of the EP test as the screening device for childhood lead poison- 

ing under the federal EPSDT program. While the USA, through the 

Department of Health and Human Services (HHS) and the Health Care 

Financing Administration, has long supported the use of the EP 

test in the States’ EPSDT programs, it was widely expected that 

the USA would change its requirements in light of the October, 

1991 statement of the Centers for Disease Control on Prevention 
  

of Childhood Lead Poisoning. The CDC statement lowered the blood   

1 

 



lead level threshold at which followup and interventions are 

recommended for children from 25 micrograms per deciliter (ug/dL) 

of whole blood to 10 ug/dL. The U.S. Department of Health and 

Human Services had already stated that "This change will mean 

that blood lead measurements must be used for childhood lead 

screening instead of EP measurements." HHS, "Strategic Plan for 

the Elimination of Childhood Lead Poisoning", February, 1991 

(emphasis added). 

Instead, the US is going to continue its support for the 

States’ use of the EP test in revisions to the EPSDT guidelines 

which will take effect September 19, 1992. "States continue to 

have the option to use the EP test as the initial screening blood 

test." 

As set out in the attached Second Amended Complaint and the 

accompanying pleadings for preliminary relief against the US's 

continued support for the EP test, the US’s support for the EP 

will cause irreparable injury to the hundreds of thousands of 

poor children in this country who are dependent on the EPSDT 

program for medical attention and treatment. 

The amended complaint seeks to stop the continued illegal 

conduct of the US on behalf of a national class of children 

eligible for the federally funded and regulated EPSDT program. 

There will be no undue delay or prejudice to the existing 

State of Texas defendant. Defendant Raiford has not answered the 

First Amended Complaint. Plaintiffs’ counsel have agreed to 

extend defendant Raiford’s time to answer until September 28,  



  

First Amended Complaint. Plaintiffs’ counsel have agreed to 

extend defendant Raiford’s time to answer until September 28, 

1992. 

Justice requires the issues raised by the Second Amended 

Complaint to be litigated. The federal actions complained of have 

a direct effect on the State of Texas’ actions which are already 

before the Court. 

Respectfully submitted, 

MICHAEL M. DANIEL, P.C. 

3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9230 (telephone) 
(214) 939=9229 (fatsimile) 

By: thw \M 
Michael M. Daniel 

State Bar No. 05360500 

By: Xa B. Rebun 
Laura B. Beshara 
State Bar No. 02261750 

  

  

ATTORNEYS FOR PLAINTIFF 

CERTIFICATE OF CONFERENCE 
  

I certify that a conference was held with the attorney for 
defendant Raiford on this motion. Mr. Horne was unable to agree 
to the motion until he saw a copy of the amended complaint. 
Plaintiffs have FAXed a copy to Mr. Horne. Mr. Horne signed the 
order and FAXed a copy which is attached to proposed order 
submitted with this motion. 

(Dua B. Behar 
  

Laura B. Beshara 

 



CERTIFICATE OF SERVICE 
I certify that a true and correct copy of the above document 

was served upon counsel for defendant by FAX and by being placed 
in the U.S. Mail, first class postage prepaid, on the day 
of Sp ptomboA 

\ 

  

  

, 1992. 

(XNA. (Oho Na 

  

  

Taura B. Beshara