Matthews v. Kizer Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Partial Summary Judgment

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OEL R. REYNOLDS 
ACQUELINE WARF
ATURAL RESOURCES DEFENSE COUNCIL 
17 South Olive Street 
uite 1210
os Angeles, California 90014 
213) 892-1500
ANE PERKINS
ATIONAL HEALTH LAW PROGRAM 
639 South La Cienega Boulevard 
os Angeles, California 90034 
213) 204-6010
ILL LANN LEE 
EVIN S. REED
LAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC 
15 West Ninth Street 
iuite 208
,os Angeles, California 90015 
213) 624-2405
ittorneys for Plaintiffs 
Irika Matthews, et. al.,
(Continued on next page)

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA

5RIKA MATTHEWS, et al.,
Plaintiffs,

vs.
KENNETH KIZER,

Defendant.

) CIV. NO. C-90-3620 EFL
)) CLASS ACTION
)) MEMORANDUM OF POINTS
) AND AUTHORITIES IN
) SUPPORT OF PLAINTIFFS'
) MOTION FOR PARTIAL
) SUMMARY JUDGMENT
)) Date: June 21, 1991
) Time: 10:00 a.m.

_)
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III



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MARK D. ROSENBAirM
ACLU FOUNDATIC ,F SOUTHERN CALIFORNIA 
633 South Shatro Place 
Los Angeles, California 90005 
(213) 487-1720
SUSAN SPELLETICH 
KIM CARD
LEGAL AID SOCIETY OF ALAMEDA COUNTY 
1440 Broadway 
Suite 700
Oakland, California 94612 
(415) 451-9261
EDWARD M. CHEN
ACLU FOUNDATION OF NORTHERN CALIFORNIA 
1663 Mission Street 
Suite 460
San Francisco, California 94103 
(415) 621-2493
Attorneys for Plaintiffs 
Erika Matthews, et al.,
nn
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TABLE OF CONTENTS
Page

INTRODUCTION...................................................  1
STATEMENT OF THE CASE ,......................................  2

A. California's Medicaid Program ...............  2
B. The Problem of Childhood Lead Poisoning......  3
C. Lead Blood Level Assessments Under Medi-Cal .. 5

ARGUMENT ..........   6
I. THE PLAIN MEANING OF THE MEDICAID ACT,

AUTHORITATIVELY CONSTRUED, REQUIRES BLOOD 
LEAD TESTING OF ALL ELIGIBLE CHILDREN
AGES ONE TO FIVE.................................  7

II. THE PLAIN MEANING OF THE MEDICAID ACT IS 
CONFIRMED BY THE LEGISLATIVE HISTORY OF 
THE EPSDT STATUTE, AS WELL AS BY
LONGSTANDING REGULATORY AND MEDICAL GUIDANCE ....  9

III. THE DEPARTMENT'S INTERPRETATION IS
ARBITRARY.......................................... 13

CONCLUSION................................................... 20



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TABLE OF AUTHORITIES
Cases Page

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) . . .  9
Beisler v. C.F.R., 814 F .2d 1304 (9th Cir. 1987) ......... 18
Beltran v. Myers, 701 F .2d 91 (9th Cir.) 
cert, denied sub nom. Rank v. Beltram. 462 U.S.
1134 ( 1 9 8 3 ) ..................................................2
California Department of Health Services v.
United States Department of Health and Human
Servics f 853 F.2d 634 (9th Cir. 1 9 8 8 ) ........................... 9
Citizens Action League v. Kizer, 887 F.2d 1003
(9th Cir. 1 9 8 9 ) .........................................  7, 19
Clark v. Kizer, 758 F.Supp. 572 (E.D. Cal. 1990) ......... 14
Co Petro. Mktg. Group, Inc., 680 F.2d 566
(9th Cir. 1 9 8 2 ) .............................................  18
Delaney v. E.P. A. . 898 F . 2d 687 (9th Cir. 1987 ) ...........  14
In re Oxborrow, 913 F-2d 751 (9th Cir. 1 9 9 0 ) .............  18
Markair, Inc, v. C.A.B., 744 F .2d 1383
(9th Cir. 1 9 8 4 ) .............................................  19
Mitchell v. Johnston, 701 F.2d 336 (5th Cir. 1983) . . . .  3
Oregon O.B.O, Oregon Health Services v. Bowen. 854 F.2d
346 (9th Cir. 1988 ) .........................................  14
Pacificorp v. Bonneville Power Admin.. 856 F.2d 94
(9th Cir. 1 9 8 8 ) .............................................  14
Pottgieser v. Kizer, 906 F .2d 1319 (9th Cir. 1990) . . 7, 14
Rank v. Beltran. 462 U.S. 1134 (1983)........................ 2
Schweiker v. Gray Panthers, 453 U.S. 34 ( 1 9 8 1 ) ........... 2
Stanton v. Bond. 504 F.2d 1246 (7th Cir. 1 9 7 4 ) ........... 3
United States v. 594,464 Pounds of Salmon. 871 F.2d 824
(9th Cir. 1 9 8 9 ) ................................................ 7
Vierra v. Rubin. 915 F.2d 1372 (9th Cir. 1980) . . . .  14, 19

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Statutes
42 U.S.C. S 1 3 9 6 a ............................................ 2
42 U.S.C. § 1396a (a) ................................... 2, 3, 7
42 U.S.C. § 1396d(a) ..................................... 3, 7
42 U.S.C. § 1396d(r) ................................. 1, 3. 7. 8
42 U.S.C. §§ 1396 .....................................  2, 7 , 8

Miscellaneous
135 Cong. Rec. § 13233 (October 12, 1989 1 9 8 9 ) .............  12
Explanation of the Conference Committee
Affecting Medicare-Medicaid Programs Re: 
Omnibus Budget Reconciliation Act of 
1989 (H.R. 3299), reprinted in 
Medicare & Medicaid Guide (CCH),
Extra Edition No. 603 (Dec. 15, 1 9 8 9 ) .................  12, 13
HEW, A Guide to Screening-EPSDT and Medicaid (1974 )......... 11
HEW, Guide to Administration, Diagnosis 
and Treatment for the EPSDT Program under
Medicaid (HEW 1977 )............................................ 12
HEW, Information Memorandum, "New Technology Available 
in the Screening and Detection of Lead Poisoning and 
EPSDT" (IK-77-32 (MSA)) June 9, 1977), reprinted in 
Medicare & Medicaid Guide (CCH) 1 28,505...............  11, 12
HEW, Medical Assistance Manual, S 5-70-00 (June 28,
1 9 7 2 ) .......................................................... 10
Health Care Financing Administration
State Medicaid Manual (April 1 9 8 8 ) .......................... 10
Hearing on HR 5700 Before the House 
Committee on Ways and Means, 90th
Cong., 1 Sess., Pt. 1, at 189 (1967) ...................... 10
Sutherland, 1A Statutory Construction
§ 31.06 (Sands 4th ed. 1 9 8 5 ) .................................7
Welfare of Children H.R. Doc. #54,
90th Cong., 1st Sess. (1967)............................... 9

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SUMMARY OF ARGUMENT
The Medicaid Act requires the Department of Health 

Services ("DHS") to provide "lead blood level assessment[s ]" 
to eligible children as "appropriate for age and risk 
factors," as a mandatory "laboratory test." 42 U.S.C. § 
1396d(r). Controlling federal authority contained in the 
State Medicaid Manual, California Dep't of Health Services v. 
United States Dep't of Health and Human Services, 853 F.2d 634 
(9th Cir. 1988), refines the requirement: All Medicaid 
eligible children ages 1-5 must be screened using a lead blood 
test. DHS does not comply with this law, instead requesting 
providers merely to ask unspecified questions of children.

The plain meaning of the statute and implementing 
regulations is dispositive. Citizens Action League v. Kizer, 
887 F . 2d 1003 (9th Cir. 1989 ). Requiring blood level 
assessment of all young children is consistent with 17 years 
of development of regulatory recommendations. Legislative 
history, moreover, is clear that Congress intended in 1989 to 
codify and expand regulatory authorities to make the Act more 
effective in early detection of childhood illnesses.

DHS's refusal to implement testing of all young 
children is arbitrary. Mere questioning will not reveal a 
high blood lead content; only a test will do that. DHS's 
approach cannot be squared with regulatory authority, opinions 
from the leading experts in the field, or statements by the 
DHS's own representatives. Sutherland, 1A Statutory 
Construction § 31.06 (Sands 4th ed. 1985) (and cases therein).



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INTRODUCTION
This case concerns the failure of tne California Department 

f Health Services ("DHS" or "Department") to provide lead blood 
evel assessments to Medi-Cal eligible children as required by the 
ederal Medicaid Act ("Act"). This Act was amended in 1989 to 
equire for all eligible children "lead blood level assessment 
ppropriate for age and risk factors," as a mandatory "laboratory 
est." 42 U.S.C. § 1396d(r). Federal regulatory authority -- which 
he Department admits is controlling -- further refines this testing 
irective as to young children in conformity with the statute and 
:urrent scientific knowledge to require participating providers to 
[s]creen all Medicaid eligible children ages 1-5 for lead 
>oisoning," and to conduct this screen by using a lead blood test.

The Department, however, refuses to require periodic lead 
)lood tests for eligible young children; rather, it takes the 
position that health care providers need only conduct an oral 
;xamination concerning a Medi-Cal eligible child, making no 
lifferentiation as to its special legal duty for children ages 1-5. 
[■his construction treats the specifically articulated federal 
requirements as if they had never been drafted. Furthermore, it is 
it war with undisputed medical facts: young children are especially 
vulnerable to lead, and lead poisoning, because it is asymptomatic 
Ln its early, still reversible stages, cannot be detected without a 
Dlood test.

Because the Department contends that lead blood assessments 
are not mandatory, these tests are virtually never performed in 
California. During the last six months of 1990, for example, the 
Department tested only .0002% of the eligible children below age five

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iving in the ^tate. As a result, ten of thousands of young 
hildren are needlessly placed at risk of lead poisoning each year, 
ictims of a preventable disease that state and federal officials 
iave called "the number one environmental health hazard facing 
:hildren.Hl And the tragic effects of the disease are indisputable: 
lecreased intelligence, impaired nervous system and cognitive 
ievelopment, kidney disease, anemia, sterility, convulsions, coma, 
md even death.

Under the circumstances, and in the absence of a dispute 
is to any material fact underlying the legal claims that give rise 
;o this motion, summary judgment is appropriate in this case.

STATEMENT OF THE CASE
A. California's Medicaid Program
In 1965, Congress enacted Title XIX of the Social Security 

^ct, 42 U.S.C. §S 1396 et seq., establishing a cooperative federal- 
state medical assistance program for the poor. See Beltran v. Myers, 
701 F .2d 91, 92 (9th Cir.), cert, denied sub nom. Rank v. Beltran, 
162 U.S. 1134 (1983). Commonly known as "Medicaid," each state's
standards for providing assistance must be consistent with the 
"objectives of the Act," 42 U.S.C. § 1396a(a)(17), and must meet the 
’requirements imposed by both the Act itself and by the Secretary of 
lealth and Human Services." Schweiker v. Gray Panthers. 453 U.S. 34, 
36-37 (1981). See 42 U.S.C. § 1396a.

Federal law requires states participating in the Medicaid 1

1 Declaration ("Dec.") of Dr. John F. Rosen at I 4 
(Exhibit A, hereto); CHDP Provider Information Notice #91-6 from 
Director Kenneth Kizer to CHDP Providers Re: Lead Poisoning in 
Children (March 12, 1991) (hereinafter "CHDP Provider 
Information Notice #91-6") (Exhibit C, hereto). See also Dr. 
Herbert L. Needleman Dec. at i 3 (Exhibit B, hereto).

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ram to provide recipients with certain sential" services, H.R. 
Rep. No. 213, o9th Cong., 1st Sess. 9-10, 70 (1965), including a
isease prevention program for children under age 21 called the Early 

and Periodic Screening, Diagnostic and Treatment ("EPSDT") program. 
42 U.S.C. §§ 1396a(a)(43), d(a)(4)(B), and d(r). See Mitchell v. 
Johnston, 701 F.2d 336, 340 (5th Cir. 1983); Stanton v. Bond. 504 
F.2d 1246 (7th Cir. 1974) (discussing mandatory nature of EPSDT 
benefit and specifically mentioning need for early detection and 
treatment of lead poisoning). Laboratory tests, including lead blood 
level assessments, are a required EPSDT benefit. 42 U.S.C. S 
1396d(r)(1)(iv) and, therefore, should be a component of California's 
Medicaid program.

The State of California has elected to participate in the 
Medicaid program and, to that end, has established the California 
Medical Assistance Program, known as "Medi-CalH and administered by 
DHS. Cal. Welf. & Inst. Code §S 14005.1, 14090.1, 14051. DHS calls 
its EPSDT screening program the Child Health and Disability 
Prevention ("CHDP") Program. Calf. Welf. & Inst. Code S 10721; Cal. 
Health & Safety Code SS 320 et seq.

B. The Problem of Childhood Lead Poisoning 
DHS concedes that "lead poisoning is the most significant 

environmental health problem facing California children today[.]*2 
The problem exists because lead is pervasive in our society —  in 
paint, gasoline, drinking-water pipes, printing inks, pigments used 
in toys, fertilizers, food cans, and soil. Rosen Dec. at S 5 
(Exhibit A, hereto). Poor and minority children are

CHDP Provider Information Notice #91-6 (Exhibit C,
hereto).

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isproportionate1 v affected by lead because hey are more likely to 
ive or visit older homes and homes with peeling paint, live with an 
dult who is exposed to lead, or live and play near industries likely 
o release lead. Id.. ; Needleman Dec. at 1 3 (Exhibit B, hereto).

While early lead toxicity is potentially reversible, the 
dverse affects of untreated lead exposure are wide-ranging, 
eedleman Dec. at 15 4-7; Rosen Dec. at 11 6-7. Severe lead exposure 
an cause coma, convulsions, and death. _Id. Lower levels adversely 
ffect the central nervous system, kidneys, reproductive system, and 
dood system. Ld. Even very low blood lead levels are associated 
rith decreased intelligence, stature, hearing acuity, and slowed 
teurobehavioral development. JCd. Young children are especially 
mlnerable to these effects because their neurologic systems are 
[till developing and because they tend to engage in hand-to-mouth 
>ehavior that leads to ingestion of lead. Needleman Dec. at 1 3; 
losen Dec. at 1 5.

To complicate matters, children, especially young children, 
jenerally exhibit no overt symptoms during the early stages of lead 
Doisoning. Id_. ; CHDP Provider Information Notice #91-6 (Exhibit C, 
hereto). Thus, a lead blood level assessment is the only accurate 
ind reliable method of screening for lead exposure. Needleman Dec 
it 5 7; Rosen Dec. at 1 8. See also Deposition ("Depo.") of Dr. 
4aridee Gregory at 32, 43, 46-47; Range Depo. at 36-37. As even 
Defendant Kizer has recognized, n[t]he biggest problem is the 
awareness, getting doctors to test kids. . . . You have to test for 
it."3

3 S.Roan, "High Number of Lead Poison Cases Found," L .A. 
Times, Aug. 30, 1990, A3, col. 1 (Exhibit D, hereto).

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C . Blood Level Assessments nder Medi-Cal
Almost none of the State's neeay, eligible children are 

obtaining lead blood level assessments through the Medi-Cal program. 
During fiscal year 1989-90, for example, only 283 lead blood tests 
were provided to Medi-Cal eligible children under age five/ Only 117 
tests were provided to this group of children during the last six 
months of 1990.* 5 By comparison, there were over 570,000 Medi-Cal 
eligible children below age five living in California during this 
time.6

Moreover, fully two-thirds of the Medi-Cal reimbursed lead 
level assessments tests were performed in a single county among 
Asian-American children and were given by a single provider,7 called 
an "aggressive" tester by the Department. CHDP Provider Information 
Notice #91-6 (Exhibit C, hereto). Although an estimated 67% of 
African-American inner city children, nationwide, suffer from lead 
toxicity, Rosen Dec. at 1 4, only two lead blood tests were provided 
during fiscal year 1989-90 to African-American children under age

DHS, Statewide; Fiscal Year 1989-90 Ethnicity by Age 
Group by Funding Source by Lead Test (Feb. 15, 1991) (Exhibit 
E, hereto).

5 DHS, Statewide: July 1990 thru January 1991 Ethnicity 
by Age Group by Funding Source by Lead Test (Feb. 15, 1991) 
(Exhibit F, hereto).

DHS Medical Care Statistics Section, California' s 
Medical Assistance Program Annual Statistical Report Calendar 
Year 1989, at Table 20 (Exhibit G, hereto).

7 DHS, Fiscal Year 1989-90 Provider Number by Age Group by 
Funding Source by Lead Test: County of Residence = Santa Clara 
(Feb. 15, 1991) (Exhibit H, hereto).

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five living in Los Angeles County8 -- the ">unty with the highest 
concentration oi African-Americans in the ocate.9

Defendant Kizer admits that "insufficient consideration" 
is presently being given to lead poisoning during EPSDT evaluations 
and that "essentially no routine childhood screening for lead ha[s ] 
been conducted in California since the late 1970's." CHDP Program 
Information Notice #91-6 (Exhibit C, hereto). Persons in the 
Department responsible for the EPSDT/lead assessment program concede 
they have no idea of the numbers of children who obtain lead blood 
level assessments, nor have they made any inquiry to discern the 
numbers of tested or affected children. Range Depo. at 28-33, 38 
(Exhibit J, hereto); Gregory Depo. at 23-24, 28 (Exhibit K, hereto).

DHS, Fiscal Year 1989-90 Ethnicity by Age Group Bv 
Funding Source by Lead Test: County of Residence = Los Angeles 
(Feb. 15, 1991) (Exhibit I, hereto).

9 DHS Medical Care Statistics Section, California Medical 
Assistance Program Annual Statistical Report Calendar Year 1989. at Table 29 (Exhibit G, hereto).

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I.
ARGUMENT

THE PLAIN MEANING OF THE MEDICnlD ACT. AUTHORITATIVELY
CONSTRUED, REQUIRES BLOOD LEAD TESTING OF ALL ELIGIBLE
CHILDREN AGES ONE TO FIVE.
Construction of a congressional statute or its implementing 

egulations starts with the plain meaning of the law. Pottqieser v.
Izer, 906 F.2d 1319, 1322 (9th Cir. 1990); Citizens Action League
>. Kizer, 887 F.2d 1003, 1006 (9th Cir. 1989). This plain meaning
:ontrols unless Congress has clearly expressed a contrary legislative 
ntention. United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 
125-26 (9th Cir. 1989).

Lead blood level assessment of Medicaid recipient children 
.s required by the plain terms of the Medicaid Act as recently 
imended and authoritatively construed. The EPSDT Program, which was 
:reated by 1967 amendments to Title XIX of the Social Security Act, 
'is the most important publicly-financed preventive child health 
urogram ever enacted by Congress, and the benefits that it offers are 
mparalleled." Health Care Coverage for Children: Hearing Before the 
Senate Committee on Finance, 101st Cong., 1st Sess. 24 (statement of 
Say A. Johnson, Director, Children's Defense Fund Health Division) 
(June 20, 1989) (Exhibit L, hereto). EPSDT requires mandatory, 
nedical screening for poor children to diagnose their "physical or 
nental defects" as early as possible. 42 U.S.C. S 1396d(a)(4)(B)
("EPSDT statute").

In 1989, Congress noted that the increasing numbers of poor 
children mean that the "EPSDT benefit will become even more important 
to the health status of children in this country." Report of the 
House Budget Committee on H.R. 3299 (Sept. 20, 1989), reprinted in
Medicare & Medicaid Guide (CCH), Extra Edition No. 596 (Oct. 5, 1989)



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t 398 (Exhibit hereto). Thus, it amen' d the EPSDT statute to 
dd a new definitional subsection requiring, in part, that screening 
shall at a minimum include . . . laboratory tests (including lead
blood level assessment appropriate for age and risk factors)." 42 
U.S.C. § 1396d(r)(1)(iv). That Congress specifically mentioned lead 
blood laboratory testing in the Medicaid Act as the only statutorily 
required laboratory test illustrates its importance: because, for the 
most part, Congress has chosen instead simply to list broad 
categories of services (e.g., hospital services, physician services, 
laboratory tests) rather than enumerate specific procedures by name.
Compare 42 U.S.C. S 139 6d (r ) (1) (iv) with 42 U.S.C. §S 1396 et. seq.

The Health Care Financing Administration ("HCFA") of the 
United States Department of Health and Human Services ("HHS"), which 
administers the EPSDT program, issued changes to the State Medicaid 
Manual to implement the 1989 amendments. Those changes further
defined the timing and nature of the statutory screening requirement
in light of current scientific knowledge:

Appropriate Laboratory Tests. Identify as statewide 
screening requirements, the minimum laboratory tests or 
analyses to be performed by medical providers for 
particular age or population groups.... As appropriate, 
conduct the following laboratory tests:
1. Lead Toxicity Screening. - Where age and risk factors 
indicate it is medically appropriate to perform blood level 
assessments, a blood level assessment is mandatory. Screen 
all Medicaid eligible children ages 1-5 for lead poisoning. 
Lead poisoning is defined as an elevated venous blood lead 
level (i.e., greater than or equal to 25 micrograms per 
deciliter (ug/dl) with an elevated erythrocyte 
protoporphyrin (EP) level (greater than or equal to 35 
ug/dl of whole blood). In general, use the EP test as the 
primary screening test. Perform venous blood measurements 
on children with elevated EP levels.

HCFA, State Medicaid Manual, § 5123.2(D) (incorporating revisions
contained in HCFA transmittals of April and July 1990) (emphases

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Ided) (Exhibit N hereto).
DHS itself admits that it is bounu by the Manual's terms, 

ee Range Depo. at 34-35, 46 (Exhibit J, hereto); Gregory Depo. at 
2-64 (Exhibit K, hereto). DHS also admits that the specific 
ortions of the Manual quoted above dictate how the Department must 
creen children for lead. Range Depo. at 46 ("Q.s But, I take it, 
ith respect to them [the specific provisions quoted above] as 
uidelines, you would take them as controlling the way you carried 
ut your duties; is that right? A: Yes."). The State Medicaid
anual, moreover, has been recognized by the courts as the 
uthoritative regulatory guidance on implementation of the Medicaid 
.ct' s requirements and, as such, binding on participating states 
lee, e .q ., California Department of Health Services v. United States
lepartment of Health and Human Services, 853 F . 2d 634, 640 (9th Cir 
.988) ("Even though State sets forth a reasonable argument . . . the 
interpretation of an agency charged with the administration of a 
statute is entitled to substantial deference' [citations omitted].’).

These authorities unequivocally establish the Department's 
iuty to provide lead blood level assessments, and the Department's 
failure to do so cannot be reconciled with its legal obligations 
mder the Medicaid program 
11 . the PLAIN MEANING OF THE MEDICAID ACT IS CONFIRMED BY THE

LEGISLATIVE HISTORY OF THE EPSDT STATUTE, AS WELL AS BY
LONGSTANDING REGULATORY AND MEDICAL GUIDANCE.
The federal courts have long recognized that consideration 

of legislative history is inappropriate where, as here, the statutory 
language is plain and unambiguous. See, e,q., American Tobacco Co. 
v. Patterson, 456 U.S. 63 (1982). In this case, however, the
legislative history reinforces and confirms the statute's terms.



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Indeed, the 19 8° amendment to the EPSDT st tute on mandatory lead 
level assessments codified and expanded almost two decades of 
regulatory development in the area of lead testing of young children.

Congress enacted the underlying EPSDT statute with a broad 
remedial intent to "discover, as early as possible, the ills that 
handicap our children." President Lyndon B. Johnson, Welfare of
Children, H.R. Doc. No. 54, 90th Cong., 1st Sess. 7 (1967 ).10
During hearings on the legislation, HEW Secretary John Gardner 
explained that "under our proposed amendments, all children in low- 
income or medically indigent families would be assured periodic 
screening. . . , particularly in the preschool years." Hearings on
H.R. 5700 Before the House Committee on Ways and Means, 90th Cong., 
1 Sess., Pt. 1, at 189 (1967).

Although the EPSDT statute did not specify blood lead level 
assessments, such assessments have consistently been recommended by 
federal EPSDT program regulators for 17 years before the 1989 
amendment, with the recommendations becoming generally more rigorous 
over time. In 1972, the Department of Health, Education and Welfare 
("HEW"), predecessor agency to HHS, included a discussion of the 
EPSDT program as part of the Medical Assistance Manual, the 
predecessor to the HCFA State Medicaid Manual. HEW, Medical 
Assistance Manual S 5-70-00 (June 28, 1972) (Exhibit 0, hereto). 
Under the heading "Lead Poisoning Screening," the Program Regulation 
Guide contained a specific recommendation, but not a directive, that

10 President Johnson originally proposed the EPSDT program 
as part of a comprehensive package of programs for children, 
pointing out that over 3.5 million medically-needy children 
under five did not receive help under public medical care 
programs and that over a million more children needed treatment 
under the crippled children's program.

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11 young chile1'-' should be periodically s<~ ^ned and older children
as medically indicated for a "determination of blood lead levels" in 
order "to identify which children may have had undue exposure to 
lead-based paint and other sources of lead poisoning." Jjd. at S 5- 
70-20. See also id. at 5-70-20E.4.E . The recommendation for testing 
of all young children was carried forward in subsequent editions 
until the recommendation was changed to a directive after the 1989
amendments to the EPSDT statute. u

Other regulatory or medical guidance was initially narrower 
in scope, but subsequently broadened. The American Academy of 
Pediatrics and HEW published A Guide to Screeninq-EPSDT Medicaid (HEW 
1974), which recommended repeated lead screening of all children ages 
one to three who lived or frequented older homes or were exposed to 
industrial pollution. Id.. at 188 (Exhibit Q, hereto). The Guide 
recommended two blood tests as the "methods for use in screening for 
undue lead absorption." Id. at 189.

In 1977, however, an HEW Information Memorandum amended the 
Guide to abandon a selective testing approach, recommending screening 
of all children ages one to three.11 12 After noting that excessive lead

11 See, e.q. HCFA, State Medicaid Manual S 5122.5.d (April 
1988) ("All EPSDT eligible children, ages 1-5 should be screened 
for lead toxicity, using the erythrocyte protoporphyrin (EP) 
test as the primary screening test.") (Exhibit P, hereto). HCFA 
also issued regulations to implement the EPSDT program in 1984 
which included within the screen "appropriate laboratory tests," 
42 C.F.R. § 441.56 (b) (1) (v) . This regulation has been 
interpreted by at least one court to require lead poisoning 
screening. New York City Coalition to End Lead Poisoning v. 
Koch. 524 N.Y. S .2d 314, 318-19 (S.Ct. 1987).

12 HEW, Information Memorandum, "New Technology Available 
in the Screening and Detection of Lead Poisoning and EPSDT" (1M- 
77-32(MSA)) (June 9, 1977), reprinted in Medicare & Medicaid 
Guide <CCH^ 1 28,505 (Exhibit R, hereto).

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exposure "can frJ does have serious and larr'ly irreversible effects 
on the development of the central nervous system" of younger 
children, the Information Memorandum declared that most poisoned 
children "do not have overt symptoms of the disease [which] . . . can 
only be detected by screening the child" and that, "the majority of 
the children served by the EPSDT Program are in the high risk group" 
of those who live in or near poorly maintained old housing. _Id. The 
Information Memorandum, therefore, recommended that all young 
children would be tested at least once using the then-newly developed 
and inexpensive erythrocyte protoporphyrin ("EP”) blood test.

The same year the Information Memorandum was issued, the 
Academy of Pediatrics and HEW prepared A Guide to Administration, 
Diagnosis and Treatment for the EPSDT Program under Medicaid (HEW 
1977) (Exhibit S, hereto) as a revision of the 1974 Guide. Because 
"[c]lassical symptomatic lead poisoning is generally not seen," the 
Guide to Administration recommended that all children through five 
years of age as a routine matter should receive an EP blood test for 
lead poisoning. Thus, when Congress considered the 1989 amendments, 
both the federal EPSDT regulators and the Academy of Pediatrics 
recommended blood lead level testing of all young children.

The legislative history of the 1989 amendments clearly 
indicates congressional intent generally to codify and expand the 
mandatory elements of the EPSDT program. Recognizing that "the 
benefit package has never been described in detail in the statute," 
Congress explained that "many [states] still do not provide to 
children participating in EPSDT all care and services allowable under 
federal law." 135 Cong. Rec. S 13233 (October 12, 1989) (Exhibit T, 
hereto). The House Committee Report, therefore, required that

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"screening serv’ ■'S must, at a minimum, ir ude . . . laboratory
tests (including blood lead level assessment appropriate for age and 
risk factors)." Report of the House Budget Committee on H.R. 3299 
(Sept. 20, 1989), reprinted in Medicare & Medicaid Guide (CCH^. Extra 
Edition No. 596 (Oct.. 5, 1989 ) at 398 (Exhibit M, hereto). The
Conference Committee, following the House bill, noted with approval 
that the House bill had "codified the current regulations on minimum 
components of EPSDT screening. . . with minor changes," but
"provide[d] that screening must include blood testing when 
appropriate." Explanation of the Conference Committee Affecting 
Medicare-Medicaid Programs Re: Omnibus Budget Reconciliation Act of 
1989 (H.R. 3299), reprinted in Medicare & Medicaid Guide (CCH), Extra 
Edition No. 603 (Dec. 15, 1989) at 453 (emphasis added) (Exhibit U, 
hereto).

This legislative history is fully consistent with the plain 
meaning of the law. From the inception of the EPSDT program, changes 
in requirements for health care providers have all been in the 
direction of expanding recommendations for testing so as to prevent 
or treat lead poisoning at the earliest stage feasible. As 
longstanding medical guidance makes clear, this objective can only 
be met in the area of lead poisoning in young children by using a 
blood level assessment. Any construction of statutory requirements 
to mean less than blood level testing of all Medi-Cal eligible young 
children would be contrary to two decades of regulatory development, 
capped by the 1989 Congressional amendments and authoritative 
construction of the statute contained in the State Medicaid Manual.

III. THE DEPARTMENT'S INTERPRETATION IS ARBITRARY.
DHS contends that, under the Medicaid Act, a doctor need

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only conduct a erbal screen of the chil and that lead blood 
assessments, however valuable, are simply a matter of discretion. 
Range Depo. at 47, 54-55 (Exhibit J, hereto) ("Providers are 
requested or directed to assess all children for risk of lead burden" 
but have not been given the specific questions to ask).

The Department's position is invalid because it is "not 
reasonably related to the purposes of the statute [and directives] 
it seeks to implement." Vierra v. Rubin. 915 F . 2d 1372, 1376-80 (9th 
Cir. 1980). See Pacificorp v. Bonneville Power Admin.. 856 F.2d 94, 
97 (9th Cir. 1988); cf. Oregon O.B.O. Oregon Health Services v. 
Bowen, 854 F . 2d 346, 350 (9th Cir. 1988 ). 13 Particularly in the area 
of health and human services, courts in this circuit have often 
invalidated departmental constructions of statutes and regulations 
that collide with legislative purpose. See, e.g., Vierra v. Rubin, 
915 F . 2d at 1376 & n.2 (and cases cited therein); Pottgieser v. 
Kizer, 906 F.2d 1319, 1323 (9th Cir. 1990); Delaney v. E.P.A.. 898 
F .2d 687 (9th Cir. 1987); Clark v. Kizer, 758 F.Supp. 572 (E.D. Cal. 
1990).

13 Here, deference to DHS's position is doubly unwarranted 
because neither the EPSDT statute nor the State Medicaid Manual 
delegates authority to the states to define or otherwise 
determine for themselves what constitutes a screen for Medicaid 
eligible children ages 1-5 for lead poisoning. See, e.g., 
Kenaitze Indian Tribe v. State of Alaska. 860 F.2d 312, 316 (9th 
Cir. 1988)("Most fundamentally, unlike a federal agency, the 
state is delegated no authority [by the statute] .... Deference 
is not appropriate"). While state Medicaid agencies do have 
flexibility in deciding which groups of the poor they will 
cover, 42 U.S.C. §S 1396a(a)(10), what optional services they 
will offer, 42 U.S.C. §S 1396a(a)(10) and 1396(d), and, to a 
certain extent, which income and resource eligibility standards 
they will use, 42 U.S.C. §§ 1396a(a)(10)(c) and (a)(17), no room 
is left for the possibility of fifty possibly widely divergent 
approaches to medical screens for the national problem of lead 
toxicity in young children.

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In this case, the Department's con ''ntion that a minimally 
adequate lead screening program need not _nclude lead blood level 
assessments is arbitrary on its face. First, this position is 
dangerously at odds with the nation's principal experts in the 
subject area of lead toxicology who uniformly agree that screening 
for lead poisoning in young children requires, at minimum, periodic 
determinations of blood lead levels, impossible without measurement 
of blood lead content.1* As explained by Dr. John F. Rosen, Chairman 
of the Centers for Disease Control's Advisory Committee on Childhood 
Lead Poisoning Prevention:

7. Most [lead] poisoned children ... have no 
symptoms. As a result, the vast majority of lead 
poisoning cases go undiagnosed and untreated.
Because of this and the fact that early lead 
toxicity is reversible, monitoring of blood lead 
levels of young children through periodic 
screening is absolutely essential. Once 
detected, lead poisoning and related health 
effects can often be treated and, in many cases, 
measures can be undertaken to detect and 
eliminate the source of exposure. Screening 
programs have had a tremendous impact on reducing 
the occurrence of symptomatic lead poisoning in 
the United States.
8. Measuring blood lead content is the most 
accurate and reliable method of screening for 
recent lead exposure. Blood lead level testing 
is essential to adequate lead screening programs, 
in part because an oral assessment of risk 
factors is totally unreliable to identify 
toxicity in young children. Only direct 
measurements of lead in blood can establish the 
presence or absence of recent excessive exposure.
For all children, I am not aware of any protocol 
for lead screening satisfying accepted 
professional standards that fails to include 
periodic blood lead level tests. In my opinion, 
periodic screening by blood lead measurement *

When it amended the EPSDT statute in 1989, Congress 
noted the importance of expert opinions when determining 
appropriate preventive child care. 42 U.S.C. S1396d(r) (1) (A) (i) 
requires consultation with "recognized" medical organizations).

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should ve conducted at least once ->er year for 
any c j under the age of six be se virtually 
all young children -- especially those who are 
poor -- are at risk for lead poisoning. For 
children considered to be at high risk for lead 
exposure due to positive testing results or 
environmental or other factors, blood lead 
testing should be conducted, at the very least, 
every three to six months. To do otherwise would 
be unconscionable in light of what we now know 
of the effects of lead at relatively low exposure 
levels.

losen Dec. 
Jeedleman

at 55 7-8 (emphasis added) (Exhibit A, hereto). See also 
Dec. at 5 7 (Exhibit B, hereto) ("A lead screening program

:hat failed to require such periodic lead blood testing would, in my
opinion, be both unsound and inadequate").

Second, the Chief of the California Children Services 
Branch of the Department, Dr. Maridee A. Gregory, admitted that "the 
routine type of screening that is done" in California --the mere use 
yf physician interviews -- "might not find anything because of the - 
type of screening that's being done," Gregory Depo. at 43 (Exhibit 

K, hereto), and that "blood lead is the definitive test." Id. at
46 .15

Section 
program 
childre 
level,

Ruth Range, Chief of the State's Regional Operations 
of CHDP, conceded similarly that the purpose of the EPSDT 
as it relates to exposure to lead for Medi-Cal eligible 

n is "[t]o identify any child with an elevated blood lead 
and treat and remove that lead from the environment." Range 15

15 She stated that in separate DHS studies of lead 
poisoning in young children in California communities of 
Oakland, Wilmington, and Compton, unrelated to the EPSDT 
program, blood lead level screens were automatically
administered to all children, explaining that "[w]henever you're 
assessing or truly trying to evaluate whether a child has a lead 
problem, you have to do blood lead." Id. at 46 (emphasis
added).

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epo. at 31 (Exhibit J, hereto). Range defined "elevated blood 
evel" as anytning more than 25 micrograma of lead per deciliter of 
lood, id. at 31-32, a circumstance that is discernible only with 
aboratory testing. She further testified that between 25-50 
icrograms per deciliter, a child suffering from lead poisoning 
would not be necessarily symptomatic," and below 25 would 
[p]robably not [be symptomatic], or they would be very subtle," 
efining this latter condition as ”[p]robably symptomatology that 
ould not be identified as resulting from lead." id. at 36. See
Iso id. at 37 (testifying as true for children below the age of
ive) .

Third, the Department's position that it need only ask 
nspecified questions of all eligible children and their families is 
inacceptable because it ignores entire portions of the State Medicaid 
[anual's screening requirements for young children. Under the 
>epartment's protocol, children ages one through five are "screened" 
:or lead poisoning in just the same way as children ages six and 
ibove; DHS thereby interprets the law to prescribe no different 
>rocedures for separate age classifications of eligible children 
’ursuant to DHS's construction, therefore, the screening sentence 
night as well be deleted or amended simply to read, "[s]creen all 
ledicaid eligible children." The State Medicaid Manual does neither, 
[f the directive to screen young children means anything, it must 
nean that DHS is required to make distinctions between the screening 
Eor lead poisoning for children ages 1-5 and that conducted for older 
children. Regulatory language must, of course, be construed so as 
to render no provision surplusage or redundant, and to give effect, 
if possible, to every word used. See Sutherland, 1A Statutory

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Construction S ’’1.06 (Sands 4th ed. 1985) ("It is obvious, that 
inasmuch as a regulation is a written instrument the general rules 
of interpretation apply."). See, e.q. , In re Oxborrow, 913 F . 2d 751, 
753-54 (9th Cir. 1990); Beisler v. C.F.R.. 814 F .2d 1304, 1307 (9th 
Cir. 1987); In re Co Petro. Mktq. Group, Inc., 680 F.2d 566, 569-70 
(9th Cir. 1982) .

Third, DHS' interpretation of the State Medicaid Manual 
makes no sense because it requires the term "lead poisoning" to mean 
one thing in one part of the provision and something quite different 
thereafter. Specifically, the Manual states: "Screen all Medicaid 
eligible children ages 1-5 for lead poisoning. Lead poisoning is 
defined as an elevated venous blood lead level HCFA, State 
Medicaid Manual § 5123.2(D) (Exhibit N, hereto). Application of DHS' 
policy, then, finds the term "lead poisoning" to mean a verbal 
examination when it is first used, but to mean a lead blood 
assessment when it is used immediately thereafter. This position 
simply makes no sense. Significantly, "lead poisoning," as 
deliberately defined within the Manual, is a term capable -- indeed, 
only capable —  of determination by means of blood level assessment. 
"Lead poisoning," as thus specified within the Manual, can never be 
ascertained unless a medical blood test is administered to discover 
whether there actually exists "an elevated . . . blood lead level" 
above a designated microgram per deciliter standard. Especially 
where, as DHS concedes, lead poisoning in young children may well be 
asymptomatic, no mechanism short of blood analysis for lead content 
can ever truly achieve the objective of "[s]creen[ing] ... for lead 
poisoning" as so fixed by the Manual's definition. It is certainly 
no accident, therefore, that the lead screening paragraph appears in

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the section enticed "appropriate laborator tests." To adopt a 
different definrcion of "lead poisoning," as necessarily follows from 
DHS' definition of screening when applied to young children, 
therefore, impermissibly frustrates the deliberate policy of the 
Manual. See Vierra v. Rubin. 915 F . 2d 1372, 1376-80 (9th Cir. 1980); 
Markair, Inc, v. C.A.B.. 744 F .2d 1383, 1385 (9th Cir. 1984).

Finally, DHS' view does not comport with the "minimum 
Federal requirements" articulated in a letter dated April 11, 1991 
from Charles Woffinden, Chief of the HHS Medicaid Operations Branch 
to the California CHDP Branch. (Exhibit V, hereto). In it, the HHS 
official described what he deemed compliance with the EPSDT statute 
and the cited HCFA transmittals. Although not entitled to deference, 
and even though apparently misinformed as to DHS's actual practice, 
the letter is nevertheless instructive regarding HHS' candid view of 
the "minimum Federal requirements" that "all Medi-Cal eligible 
children ages 1-5 are to be screened for elevated blood lead levels 
through the performance of an 'FEP' test."16

Under these circumstances, the Department's refusal to

16 Subsequent to this letter, counsel for the Department 
apparently had a discussion with an employee of HHS, Gregory 
Depo. at 58-59, which resulted in issuance of a second letter, 
which appears to reverse the opinion stated in the first letter 
in light of the discussion with DHS counsel. Letter from 
Charles A. Woffinden, Chief HHS Medicaid Operations Branch, to 
Michael Quinn, Research Manager CHDP (May 7, 1991) (Exhibit W, 
hereto). Although no explanation for the change in position is 
given, the letter concludes that the Department meets "minimum 
Federal requirements" even though it "does not routinely perform 
the FEP test for all children 1-5 years of age." Id. This 
letter is clearly entitled to no deference from this Court. It 
was only written for purposes of this litigation; moreover, it 
lacks the candid appraisal of the Department's lead policy that 
was reflected in HHS' earlier letter. See, e.q., Citizens 
Action League v. Kizer. 887 F.2d 1003, 1007 (9th Cir. 1989) 
(letter written for purposes for litigation entitled to no 
deference).

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1 test poor, younq children for lead poisoning is entitled to no 
deference. In -ed, as a matter of clear st. >utory interpretation, 
longstandrng medical standards, and common sense, its self- 
serving construction of its obligations under federal law must be 
rejected and summary judgment granted in favor of plaintiffs.17

CONCLUSION
For the reasons set forth above, plaintiffs respectfully 

request that this Court grant their Motion for Summary Judgment 
and enter the accompanying proposed order.

Dated: May 23_, 1991 Respectfully submitted,

Natural Resources Defense Council 
National Health Law Program 
ACLU Foundation of Southern California 
NAACP Legal Defense and Educational Fund 
Legal Aid Society of Alameda County 
ACLU Foundation of Northern California
By: Q q U  ckP

J6el R ! Reynolds *

ACLU Foundation of Southern California
BY- A s  A ̂

Bill Lann Lee ------
NAACP Legal Defense and Educational Func

b y ; Kim C a r d u -
Legal Aid Society of Alameda County

M B  ri1V‘ P ’ 56(d>? Retail Cl_erks Union Local
Cir icon--- a n  i J r • (yth
,323- (1966) i ^ t h4e77p ^ d l  ’

and ad m iss io n s  “

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