Faubus v. Aaron Brief for Appellees

    UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

ERIKA MATTHEWS, et al., 

Plaintiffs, No. C-90-3620 EFL 

vs. REQUEST FOR AMICUS 

CURIAE BRIEF 
  

  

KENNETH KIZER, 

Defendant. 

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Presently before the Court are plaintiffs’ motion for 

partial summary judgment and defendant’s cross-motion for 

summary judgment. Plaintiffs contend that the Medicaid Act, 42 

U.S.C. § 1396 et seq., and specifically, 42 U.S8.C. '§8§ 

1396 (a) (43), d(a) (4) (B), d(r), and d(r)1l(iv), properly 

construed, require the California Department of Health Services 

to conduct blood lead testing of all children eligible under the 

Act ages one to five. Plaintiffs further contend that the State 

Medicaid Manual, § 5123.2(D), supports their view that, under 
  

the Act, actual blood testing of the eligible children, ages one 

to five, is required by the California Department of Health 

Services rather than discretionary. Defendant argues that, 

  

under the Medicaid Act and the State Medicaid Manual, such blood    



    

lead testing is discretionary. 

The Court requests that the Health Care Financing 

Administration ("HCFA"), through its Office of General Counsel, 

submit an amicus curiae brief, not exceeding twenty pages, 

addressing the following questions: 

(1) On the facts of this case, does the Medicaid Act require 

blood lead level testing by the California Department of Health 

Services of all children ages one to five eligible under the 

Act? 

(2) On the facts of this case, does the State Medicaid   

Manual, § 5123.2 (D) indicate that blood lead level testing by 

the California Department of Health Services of eligible 

children ages one to five is mandatory or discretionary? 

The Court requests that HCFA, by their Office of General 

Counsel, to file a response to these questions in the form of an 

amicus curiae brief by Friday, August 2, 1991. In order to 

assist HCFA in this process, the parties shall supply HCFA, at 

its request, with copies of their filings in their respective 

motion and cross-motion for summary judgment in this case. The 

addresses and phone numbers of the parties may be found below. 

Any request for clarification of this order, by HFCA or any 

party to the action, shall be addressed promptly to the Court. 

The Clerk of the Court is ordered to send a copy of this request    



  

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to the HFCA and to all parties to the action. 

IT IS SO ORDERED. 

DATED: June=XC> 1991. i el is 

  

gr cil EUGENE F. LYNCH 
2 United States District Judge 

cc: Plaintiffs’ Counsel 
  

Joel R. Reynolds 
Jacqueline Warren 
NATURAL RESOURCES DEFENSE COUNCIL 

617 South Olive Street 
Suite 1210 
Los Angeles, California 90014 
(213) 892-1500 

Jane Perkins 
NATIONAL HEALTH LAW PROGRAM 

2639 South La Cienega Boulevard 
Los Angeles, California 90034 
(213) 204-6010 

Bill Lann Lee 
Kevin S. Reed 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

315 West Ninth Street 
Suite 208 
Los Angeles, California 90015 
(213) 624-2405 

Defendant’s Counsel 
  

Daniel E. Lungren, Attorney General of the State of 
California 
Charlton G. Holland, III, Assistant Attorney General 

Stephanie Wald, Supervising Deputy Attorney General 
Harlan E. Van Wye, Deputy Attorney General 
2101 Webster Street, 12th Floor 

Oakland California 94612-3049 
(415) 464-1173