Notice of Filing of Corrected Exhibits to Amend Hiscock Declaration

    Nt Aull Bog 6 

  

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. Civ. A. No. CA3-92-1539-R 

BURTON PF. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human 

Services, 

and 

THE UNITED STATES OF AMERICA, 

Defendants. 

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NOTICE OF FILING OF CORRECTED EXHIBITS TO AMENDED HISCOCK DECLARZ 
  

PLEASE TAKE NOTICE that defendant United States of America 

("USA") hereby files a corrected set of Exhibits to the Amended 

Declaration of William McC. Hiscock. The Amended Hiscock Declaration 

is attached as Exhibit "A" to defendant USA's Motion to Dismiss or in 

the Alternative for Summary Judgment and In Opposition to Plaintiffs’ 

Motion for Temporary Restraining Order and Preliminary Injunction. 

The three exhibits originally filed did not correspond to the Amended 

Hiscock Declaration; the set of exhibits filed herewith are the 

correct exhibits and are correctly numbered. 

NOTICE OF FILING OF CORRECTED EXHIBITS 

TO AMENDED HISCOCK DECLARATION ww Page 1 
  

 



  

Dated: December 7, 1992 

OF COUNSEL: 

HENRY R. GOLDBERG, Deputy Chief 
Counsel for Litigation 

DAVID V. "PEERY, Altorney 

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 #) 

Respectfully submitted, 

STUART M. GERSON 

Assistant Attorney General 

MARVIN COLLINS 

United States Attorney 

MARY ANN MOORE 

Assistant United States 

Texas Bar No. 14360400 

ide 
SHEILA LIEBER / 

Attorney 

  

  Gotima. nt! BJ, 
ALINA S. KOFSKY 

Lire 
ZZ 7 

AO 
STEVEN H. HARTMANN gil 
Attorneys, Department of 

Federal Programs Branch, Civil 

Division 
901 FE Street, N.W., Room 1010 

Washington, D.C. 20530 
(202) 514-4527 

(202) 616-8470 

  

Tot 1 ( 

(Fax #) 

ATTORNEYS FOR DEFENDANT 

UNITED STATES OF AMERICA 

NOTICE OF FILING OF CORRECTED EXHIBITS 

TO AMENDED HISCOCK DECLARATION -- Page 2 
  

 



  

CERTIFICATE OF SERVICE 
  

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

of Defendant United States of America's Notice of Filing of Corrected 

Exhibits to Amended Hiscock Declaration was served on the following 

individuals listed below, via overnight mail: 

Laura B. Beshara Bill Lann Lee 
Michael M. Daniel Kirsten D. Levingston 
MICHAEL M. DANIEL, P.C. NAACP Legal Defense & Educational 

3301 Elm Street Fund, Inc. 

Dallas, Texas. 75226-1637 315 West Ninth Street, Suite 308 
Los Angeles, California 90015 

Edwin N. Horne 
Assistant Attorney General 
Office of the Attorney General 
State of Texas 

P.O. BOX 12548 

Capitel Station 
Austin, Texas 78711-2548 

  

  

STEVEN H. HARTMANK 

NOTICE OF FILING OF CORRECTED EXHIBITS 

TO AMENDED HISCOCK DECLARATION -= "Page 4 
  

 



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DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE 

HEALTH CARE FINANCING ADMINISTRATION 

WASHINGTON, D. C. 20201 

PROGRAM INSTRUCTION 
  

ACTION TRANSMITTAL 
HCFA-AT-78-59 (MMB) 

July 7, 1978 

  

TO: STATE AGENCIES ADMINISTERING MEDICAL ASSiSTANCE 

PROGRAMS 

SUBJECT: Screening, Detection, and Treatment of Undue 
Lead Absorption and Federal Financial Partici- 

pation (FFP) for the Treatment of Undue Lead 
Absorption. 

ACTION RECOMMENDED: Implement recommendations made by the Center 

for Disease Control for the detection of undue 
lead absorption in the EPSDT-eligible popula- 
tion. ; 

BACKGROUND: The Center for Disease Control, Environmental 

Health Services Division, recently released a 

publication which describes current recommenda- 
tions for screening children for undue lead 

absorption. This requires a modification in 

methods previously recommended in "A Guide to 

Administration, Diagnosis, and Treatment for 

the Early and Periodic Screening, Diagnosis 

and Treatment (EPSDT) Program under Medicaid", 
and IM-77-32, ''"New Technology Available in the 

Screening and Detection of Lead Poisoning and 

EPSDT', transmitted June 9, 1977. 

ATTACHMENTS : (1) Discussion and recommendations. 

(2) Federal Financial Participation. 
(3) Preventing Lead Poisoning in Young Chil- 

dren, Center for Disease Control, 

April 1978. 

  

EFFECTIVE: On issuance. 

INQUIRIES TO: Regional Medicaid Directors. 

ea : 
     

  

Corrected Exhibit 1 to Director, 

Amended Hiscock Declaration Medicaid Bureau 

 



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ST a me ee men CE TIEN arn X FETA IIE IEC + ma pm p STR nite LTE EE | Em AS | rg 1 TOT IT ROAM EY SRA GER PI RUSS A Co Rls A RE Sh 

s / 

Discussion 
  

This Action Transmittal was developed by the Office of Child Health 

(OCH) and the Environmental Health Services Division of the Center for 
Disease Control (CDC) to implement current technology for the detection 

of undue lead absorption in the EPSDT population. 

Problem 

All children are at risk for undue lead absorption, since all indivi- 
duals are exposed to lead daily. Large scale screening studies of chil- 

dren without symptoms have demonstrated that the number with undue lead 
absorption is greater than previously thought. While once considered a 

problem only in the inner cities of the Northeast, data from both urban 
and rural areas indicate that from 3 to 20% of children tested have undue 
lead absorption. The magnitude of the problem is greater and the con- 
sequences more severe than previously thought. 

Excessive lead exposure has serious and largely irreversible effects 
on the central nervous system (CNS). These CNS effects vary from severe 
brain damage to altered neuropsychologic behavior of considerable conse- 

quence which may be recognized by parents, teachers, and clinicians as 

attentional disorders, learning disabilities, or emotional disturbances 

which impair progress in school. Undue lead absorption also affects the 

bone marrow, impairing the formation of blood cells. Kidney damage can 

also occur. It should be noted that minor symptomology (e.g., malaise, 

anorexia, irritability) may often be attributed to some other cause or 
there may even be no overt symptoms. Only a laboratory analysis will 
determine whether the child has undue lead absorption. 

Risk 

Increased long-term institutional care and increased welfare cost 

can result from undetected childhood lead absorption. All children are 

at risk from this environmental contaminant; however, children who live in, 

or frequently visit, poorly maintained housing units constructed prior to 

the 1960's are at particularly high risk. 

Background 
  

Screening for undue lead absorption is recommended in "A Guide to 

Administration, Diagnosis, and Treatment for the Early and Periodic 

Screening, Diagnosis, and Treatment (EPSDT) Program under Medicaid". 

Since its publication there have been considerable advances in techno- 

logy and information relating to undue lead absorption. 

In the past, screening for this disease was expensive, time-consuming, 

and required extraordinary care in the collection and handling of sam- 

ples. In April 1978, the Center for Disease Control, Environmental 

Health Services Division, released a statement (copy attached) entitled 

"Preventing Lead Poisoning in Young Children'. The statement recommends 

the use of the erythrocyte protoporphyrin (EP) test for screening.  



Le — a We tetia Cetera m—. . ". es Ve a an ” — oan am — Pa arn. oj — — ————— ® —_— » -—— —— < et et Yt. © cn kA Dt 

  

The CDC statement also discusses in detail the interpretation of test 
results, and serves as a guide for providers in the management of 

children with undue lead absorption. 

Recommendations 
  

Because the EP test is a simple, cost-effective tool for screening 
all children for undue lead absorption, the Office of Child Health re 

commends the immediate implementation of routine screening utilizing 
i the EP for all children ages one through five years. An additional 

% advantage of the EP test is its use to screen for iron deficiency as 

well. 

The specimens collected should be processed by a laboratory with 

known technical competence in this analytic field. Assistance in 

identifying these laboratories can be obtained from State Health De- 

4 partments. Those childrea who exhibit abnormal EP levels (greater 
than 49 micrograms/deciliter) require diagnostic evaluation for both 

: undue lead absorption and iron deficiency (e.g., blood lead and hemo- 

globin). 

The identification of the sources of the lead affecting the child 

is required as part of the treatment for all children with undue lead 
" absorption. After these sources are identified, follow-through by 

other agencies (health department or housing authority) for housing 
rehabilitation or relocation of the family is essential. Appropriat 
interagency agreements at the State and local level, where not exte: 

should be developed (see HCFA-AT-78-2, January 13, 1978). 

Federal Financial Participation (FFP) 
  

The cost incurred for the epidemiological investigation which is 

necessary to identify the source of lead contamination for an indi- 
vidual who has been identified with undue lead absorption is reim- 

bursable at the same FFP rate as that given for necessary medical diag- 

nosis and treatment. 

 



® | o 

  

5-70-00 p. 15 

  

  

  

  

  

  

  

  

Medical 
Assistance | 

Manual 

Services and Payment in Medical Assistance Programs 

-70-00 Early and Periodic Screening, Diagnosis, and Treatment of ¢ 

Eligible Individuals Under Age 21 
  

-70-20 E. Screening (Continued) 
  

f. Vision Testing. Administer a vision screening test appropriate 

to the child's age. Consultation by ophthalmologists and 

optometrists can be of help in determining the type of tests 
to be used and the criteria for determining when a child should 

‘be referred for diagnostic examination. 

    
g. Hearing Testing. Administer a hearing screening test appropriate 

to the child's age. Consultation on suitable tests for screening 

and on methods of administering the tests should be obtained from i 

audiologists or from State health or education departments. 

    
h. Anemia Test, The most easily administered test for anemia is 

a microhematocrit determination from venous blood or a finger- ; 

stick, This should be done on all children or, if possible, ; 

a hemoglob.in concentration which will give a more accurate 

determination of anemia should be done. 

  

i. Sickle Cell Test. Check all Negro children for sickle cell trait. 
This may be done with a sickle cell preparation or a hemoglobin 

solubility test. If a child has been properly tested once for 

sickle cell disease, he does not have to be tested again. 

  

j« Tuberculin Test. Give a tuberculin test to every child-who hag 

not had one within one year. 
  

k. Urine Screening. Carry out a rapid urine screening on all 
children for the presence of sugar, albumin and bacteria. 
  

1, Lead Poisoning Screening. It is not possible to identify which 
children may have had undue exposure to lead-based paint and other 
sources of lead poisoning, except by determination of blood- lead 
levels, Therefore, all children between the ages of 1-6 should be 
periodically screened for lead poisoning. Children 6 and over should 

  

Corrected Exhibit 2 to MSA- PRG-21 

Amended Hiscock Declaration 6-28-72   
 



   

  

5-70-00 
Pe 16 

  
  

  

Medical 

Assistance 

Manual 
  

i aE
 
                

          

Part Se. Services and Payment in Medical Assistance Programs 

-70-00 Early and Periodic Screeni 

Eligible Individuals 
Under 

5-70-20 E. Screening (Continued) 

of thildhood 

when medically indicated. 

lead poisoning {s lead-based paint, 

      

Diagnosis, and Treatment of 

  

e 21 

The principal gource 

but pollution 

of the environment from such things as burning lead batteries 

and repeated exposure 

into the goil and 

lead poisoning. 

of symp 
: 

of whole blood) cases 

lead poisoning, such a 

and involvement of the 

capillary blood .sample 

laboratory facilities. 

Nutritiong- ————— 

carried out in the screening process will usually yield 

{information 
useful in a 

ticular importance 

circumference 
and hemog 

child having any 

be referred to & nutritionist
 or 

consultation. 

Immunization 
Status. 

tool in 
gtatus, 8a ma jor 

During the gcreening process, 

whether he has 
status; 1.€«» 

pertussis, tetanus, pol 

whether he ig in need of 

the child's {mmunization record should be brought to the 
| 

center OT 

to whom the child goes 

are ingested 

tomatic and asymptomatic 
(over 

are measurements 
of height, weight, 

detectable autritional 
deficiencies 

ghould 

The screening 

excellent opportunity to ascertain a child's 

of lead that get 

a child may also result in to fall-out 

i 

milliliters 

serious sequelae of 

mental retardation 

Venous OT 
can prevent the 

g mental impairment, 

central nervous 

gs may be used, 

and laboratory determinations
 

gsessing nutritional 
status. Of pa? 

head 

lobin concentration 
otf hematocrite 

p 

public health nurse for 

program presents an 

{smunigation 

preventing disease and disability. 

child's {mmunization 

against diphtheria; 

and mumps, and 

io, measles, 
: 

¥hen it is available, 

booster shots. 

jmaunizatio
n 

{mmunization
 OT updating at the gcreening 

through the facility or provider 

  
MSA-PRG-21 

6-28-72 

    

  

 



  

DEPARTMENT OF HEALTH & HUMAN SERVICES Health Care Financing Administrat uor 

  
  

6325 Security Boulevard 

Baltimore, MD 21207 

MEDICAID BUREAU 

Dear State Medicaid Director: 

The purpose of this letter is tO clarify certain aspects of the lead screening 

requirements published in the September 1992 revision of the State Medicaid 

Manual (SMM), Part 5, for the Early and Periodic Screening, Diagnostic, and 

Treatment (EPSDT) program. 

  

We consulted with the Centers for Disease Control (CDC) and other organizations 

prior to revising our instructions, and we continue to consult with CDC about 

developments in the capacity for screening and for performing blood lead tests. 

We believe that our published guidelines are consistent with the CDC statement, 

Preventing Lead Poisoning in Young Children (October, 1991). 
  

Effective September 19, 1992, States are required to screen all Medicaid eligible 

children between the ages of 6 months and 72 months of age at their next 

scheduled EPSDT screening for lead poisoning. Screening consists of both a verbal 

risk assessment and a blood lead level assessment. A child answering "yes" to ore 

or more of the risk assessment questions is determined to be at high risk, and a 

blood-lead test must be performed. A child answering "no" to all questions 1s 

determined to be at low risk, and may receive either a blood-lead test or an 

erythrocyte protoporphyrin (EP) test. We believe that most Medicaid eligible 

children will be at high risk for lead poisoning. 

We consider all children between the ages 6 through 72 months to be at risk for 

elevated blood lead levels. In the vast majority of cases, HCFA expects Medicaid 

eligible children will receive a blood lead test. Children who live in a community 

officially declared "lead free" by a State or local health authority and answer "no" to 

all risk assessment questions, do not need a blood lead level assessment. However, 

such a child must still receive a verbal risk assessment at every periodic screen to 

determine if any changes have occurred which would change the child’s risk status. 

Although our SMM instructions are only the first phase in a transition period, and 

take into account the currently available state of the art of lead screening 

technology, I am aware that concerns have been raised over the continued use of 

the EP test, even for children who are at low risk. Direct blood lead testing is the 

preferred mode of ascertaining blood lead levels for all Medicaid eligible children, 

and Federal financial participation is available for any Medicaid expenditures for 

that purpose. While the EP test is not as sensitive as tests which directly measure 

Corrected Exhibit 3 to 
Amended Hiscock Declaration 

  

 



  

¢ ® 

Page 2 - State Medicaid Director 

blood lead levels, it is easier and somewhat less expensive to perform than the 

blood-lead test. In addition, the EP test will identify most children with blood lead 

levels at or above 25 micrograms per deciliter, for whom medical interventions are 

clearly indicated. We recognize, as does CDC, that not all communities currently 

have the technology and laboratory capacity to perform blood-lead tests on all 

children, while they do have the capability of performing the EP test. We do not 

believe it appropriate to wait until a simpler and cheaper blood-lead test 1S 

available, and permit many lead poisoned children to go undetected in the interim. 

Thus, our instructions require initial blood lead testing for those children assessed 

to be at high risk. The EP test is allowed only for low risk children, although the 

blood lead test is preferred. 

I am asking the HCFA regional office staff to help you implement the revised 

policy, and to identify and work through any barriers you may encounter. 

Acknowledging that States require time to develop the needed capacities, CDC is 

currently pursuing research and development efforts to develop instrumentation and 

protocols for simpler blood-lead tests. At this time, we cannot set a firm date for 

the end of the transition period. As research and development efforts progress an: 

capacity becomes available, we will be providing further guidance which will 

culminate with the requirement for blood lead testing of all Medicaid eligible 

children, whether at high or low risk. 

I hope this letter clarifies our recent instructions on lead screening. 

Sincerely yours, 

Che 
Christine Nye 

4 Director 

CC: 

All Regional Administrators 

All Associate Regional Administrators 

Division of Medicaid