Plaintiffs' Statement of Undisputed Material Facts in Support of Motion for Partial Summary Judgement

    JOEL R. REYNOL4 
JACQUELINE WARNS 

NATURAL RESOURCES DEFENSE COUNCIL 

617 S. Olive 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 

SUSAN SPELLETICH 
KIM CARD 

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 
(213) 624-2405 

Attorneys for Plaintiffs 
(Additional counsel on following page) 

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 

ERIKA MATTHEWS; et al., Civ. No. C-90-3620 EFL 

Plaintiffs, CLASS ACTION 
  

vs. PLAINTIFFS’ STATEMENT 
OF UNDISPUTED MATERIAL 
FACTS IN SUPPORT OF 
MOTION FOR PARTIAL 
SUMMARY JUDGMENT 

KENNETH KIZER, 

Defendant. 

Date: June 21, 1991 
Time: 10:00 a.m. 

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MARK D. ROSE UM 

ACLU FOUNDAT OF SOUTHERN CALIFORNIA % 

633 South Shatto Place 
Los Angeles, CA 90005 
(213) 487-1720 

    
EDWARD M. CHEN 

ACLU FOUNDATION OF NORTHERN CALIFORNIA 

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

    
 



  
  
  

ruc to Local Rule 220-7, plgatiffs hereby submit 

the following statement of undisputed material facts in support 

of their motion for summary judgment: 

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

Security Act, 42 U.S.C. 8S .1396-1396u, establishing a 

cooperative federal-state medical assistance program designed 

to provide necessary medical services to poor people. Known as 

"Medicaid," the program is administered by the state and federal 

governments, subject to mandatory federal statutory and 

regulatory guidelines.’ 

Proof: Complaint § 16; Answer § 9. 

2. Federal Medicaid law requires states, including 

California, to provide a range of "mandatory" health care 

benefits to poor persons, including Early and Periodic 

Screening, Diagnostic, and Treatment (EPSDT) services to 

children under age 21. Lead blood level assessments are a 

mandatory part of the EPSDT program, 42 U.S.C. § 1396d(r)(1). 

Proof: Complaint ¥ 18; Answer § 10. 

3. At the federal level, the Medicaid program is 

implemented by the U.S. Department of Health and Human Services 

Health Care Financing Administration (HCFA). HCFA issues 

mandatory, controlling guidelines to the states through 

regulations and the State Medicaid Manual. 
  

Proof: Complaint §¥ 20; Answer § 12. 

4. The State Medicaid Manual is controlling. 
  

Proof: Range Depo., at 34-35, 46 (Exh. J); Gregory 

Depo., at 62-64 (Exh. K). 

  

 



  
  
  

5. $ State of California has | Na to participate 

in the Medicaid program and established the California Medical 

Assistance Program, commonly called "Medi-Cal." In California, 

the EPSDT Program is also referred to as the Child Health and 

Disability Prevention (CHDP) Program. 

Proof: Complaint ¢ 16; Answer §¥ 9. 

5. Defendant Kenneth Kizer is the duly appointed 

Director of the State Department of Health Services (DHS). DHS 

is the state agency responsible for administration of the Medi- 

Cal EPSDT/CHDP Program. Defendant Kizer’s duties include 

supervision and control of the Medi-Cal program so as to secure 

full compliance with the governing laws. 

Proof: Complaint ¥ 12; Answer 9g 7. 

6. During the last six months of 1990, 117 lead blood 

tests were administered to Medi-Cal eligible children aged 1- 

DS. During fiscal year 1989-90, 283 lead blood tests were 

provided to Medi-Cal eligible children under age five. 

Proof: DHS Statewide Data FY 1989-90 (Exh. E); DHS 

Statewide Data July 1990-January 1991 (Exh. F). 

y There are at least 570,000 Medi-Cal eligible 

children below the age of 5 living in California. 

Proof: DHS Medical Care Statistics 1989 (Exh. G). 

8. During fiscal year 1989-90, two lead blood tests 

were provided to two African-American children below age five 

living in Los Angeles County. 

Proof: DHS LA County Data 1989-90 (Exh. I). 

9. Los Angeles County has the greatest concentration 

  

 



  

  

  
  

of atrican-andlon residents in the Statgef California. 

Proof: DHS Medical Care Statistics 1989 (Exh. G). 

10. Defendant Kizer has stated that lead poisoning 

is the number one environmental hazard facing children in 

California today. Defendant Kizer admits that insufficient 

consideration is being given to lead poisoning during EPSDT 

evaluations. 

Proof: CHDP Info. Notice #91-6 (Exh. C). 

11. Lead is pervasive in our society -- in paint, 

gasoline, drinking-water pipes, printing inks, pigments used in 

toys, fertilizers, food cans, soil, and dirt. 

Proof: Rosen Dec. at 1 5 (Exh. A). 

12. Poor and minority children are disproportionately 

affected by lead because they are more likely to live or visit 

in older homes and homes with peeling paint, live with an adult 

who is exposed to lead, or live near industry likely to release 

lead. 

Proof: Rosen Dec. at € 5 (Exh. A); Needleman Dec. at 

¥ 3 (Exh. B). 

13. Early lead toxicity is potentially reversible. 

Proof: Rosen Dec. at § 6-7 (Exh. A); Needleman Dec. 

at § 4-7 (Exh. B). 

14. Lead exposure can cause coma, convulsions, and 

death. It can adversely affect the central nervous system, 

kidneys, reproductive system and blood system, and cause 

decreased intelligence. 

Proof: Rosen Dec. at ¥ 6-7 (Exh. A); Needleman Dec. 

  

 



  

  

  
  

at ¢ 4-7 (Exh). 

15, Children, especially young children, often 

  

exhibit no overt symptoms during the early stages of lead 

poisoning. 

Proof: Rosen Dec. at { 5 (Exh. A); Needleman Dec. at 

¥ 3 «(Exh B). 

16. A lead blood level assessment is the only 

accurate and reliable method of screening for lead exposure. 

Proof: Rosen Dec. at § 8 (Exh. A.); Needleman Dec. 

at € 7 (Exh. B); Gregory Depo., at 32, 43, 46-47 (Exh. K); Range 

Depo., at 36-37 (Exh. J). 

  

Dated: May 23, 1991 Respectfully submitted, 

Natural Resources Defense Council 
National Health Law Program 
Legal Aid Society of Alameda Co. 
NAACP Legal Defense and Educ. Fund 
ACLU Foundation of Southern California 
ACLU Foundation of Northern California 

By: Sn LATE 
3ans Perkins 
Attorneys for Plaintiffs