Plaintiffs' Motion for Tro and Preliminary Injunction Against the USA with Certificate of Service and Conference

    IN THE UNITED STATES DISTRICT|COURT)| 
FOR THE NORTHERN DISTRICT OF TEXAS ‘oe | 

DALLAS DIVISION NN UUNERTY, Cl ERY | 

  
LOIS THOMPSON on behalf of and * 

as next friend to TAYLOR * 
KEONDRA DIXON, ZACHERY X. * 

WILLIAMS, CALVIN A. THOMPSON * No. 3-92 CV 1539-R 
and PRENTISS LAVELL MULLINS, * 

Plaintiffs * Civil Action 
* 

V, * Class Action 
* 

BURTON F. RAIFORD, in his * 

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

Defendant * 

PLAINTIFFS’ MOTION FOR TRO AND PRELIMINARY INJUNCTION 
AGAINST THE U.S.A. 
  

Plaintiffs seek a TRO and a preliminary injunction against 

the U.S.A.’s continued support, endorsement, and financing for 

the use of a screening test for childhood lead poisoning that the 

U.S.A. knows will leave hundreds of thousands of poor, mostly 

minority children with lead poisoning undiagnosed and untreated. 

Why a TRO/preliminary injunction? 
  

The USA is about renew its participation in blatantly 

illegal conduct by the States by supporting, allowing and financ- 

ing the use of a childhood lead poisoning screening test which 

the USA knows will not detect lead poisoning in hundreds of 

thousands of poor children. The USA, through HCFA, has issued 

guidelines to take effect as of September 19, 1992 which will 

overtly support the States’ use of the EP test which the USA 

itself has found to be completely unable to detect many cases of 

lower level lead poisoning and inaccurate in its detection of 

 



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high level lead poisoning. 

The new EPSDT guidelines are the USA’s response to the 

October, 1991 statement of the Centers for Disease Control (CDC), 

Public Health Service, Preventing Lead Poisoning in Young Chil- 
  

dren. The CDC statement lowered the blood lead level threshold at 

which followup and interventions are recommended for children 

from 25 micorgrams per deciliter (ug/dL) of whole blood to 10 

ug/dL. The U.S. Department of Health and Human Services has 

stated that "This change will mean that blood lead measurements 

must be used for childhood lead screening instead of EP measure- 

ments." HHS, "Strategic Plan for the Elimination of Childhood 

Lead Poisoning", February, 1991. 

If the portions of the revised guidelines allowing the use 

of the EP test are allowed to take effect, this country’s poor 

children will be excluded from the effort to end childhood lead 

poisoning for an indefinite period. Even if plaintiffs are 

successful on the merits and obtain a final judgment for the 

relief sought, hundreds of thousands of poor, mostly minority, 

children will have endured, undetected, the irreparable effects 

of lead poisoning because of the USA’s conscious policy choice. 

While the TRO/preliminary injunction relief sought will not 

automatically bring each State into compliance with the Medicaid 

Act, it will prevent the USA from giving its knowing and overt 

‘support for the States’ illegal conduct. 

Ending childhood lead poisoning is a national priority. 

"Lead poisoning remains the most common and societally 
devastating environmental disease of young children...Poor, 

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minority children in the inner cities, who are already disadvan- 
taged by inadequate nutrition and other factors, are particularly 
vulnerable to this disease [page xi]...Children should be 
screened for elevated blood lead levels so that affected children 
will receive appropriate medical attention and environmental 
follow-up [page xii]...Furthermore, lead poisoning is entirely 
preventable. We understand the causes of lead poisoning and, most 
importantly, how to eliminate them [page xiii)" U.S. Department 
of Health and Human Services, Public Health Service, Centers for 
Disease Control, February 1991. 

Accurate screening is a necessary first step in detecting 

the disease of childhood lead poisoning. Without blood lead 

screening, lead poisoning can work its havoc on children by 

reducing learning ability, decreasing IQ, and preventing normal 

mental and physical development. At the lower levels of lead 

poisoning, these effects are unaccompanied by any symptoms other 

than those which can be found by accurate laboratory tests. 

There have been 2 different methods used for childhood lead 

poisoning screening. One was a two step method based on the 

initial administration of a test for EPs in the child’s system. 

If an elevated EP count was found, then a lead blood level test 

was administered to determine the actual level of lead in the 

child’s blood. 

The other method was to administer the lead blood level test 

as the initial screening test. 

The 1988 HHS report to Congress on childhood lead poisoning 

analyzed the reliability of the EP test and concluded that 

reliance on the EP test would result in a significant failure to 

detect toxic Pb-B levels. 

Lead blood levels in excess of 10 ug/dl are accompanied by 

adverse effects. The EP test cannot be used to detect lead blood 

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levels below 25 ug/dl. The EP result obtained by the EP test is 

not an accurate indicator of blood lead levels above 25 ug/4l. 

HHS’s EPSDT program is a federally financed program for the 

screening, diagnosis and treatment of childhood diseases for poor 

children. 

The 1989 amendments to the Medicaid Act required HHS to 

administer the EPSDT system so that each State’s EPSDT program 

included "the lead blood level assessment appropriate for age and 

risk factors." 42 U.S.C. §-1396d4(r). 

HHS continues to support and finance the use of the EP test 

by the States in their Medicaid/EPSDT programs. The current 

federal guidance recommends the use of the EP test for the 

initial lead poisoning screen. The proposed revisions admit the 

futility of using the EP test but states "States continue to have 

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

test." [HCFA "State Medicaid Manual" Section 5123.2]. 

The use of the EP test in the EPSDT program violates 42 

U.S.C. § 1396d(r). The EP test is not a lead blood level assess- 

ment but rather a measurement of EPs which may or may not be 

consistent with lead poisoning. The EP test is not a lead blood 

level assessment appropriate for age and risk. A test which does 

not even screen for lead levels less than 25 ug/dL is not appro- 

priate. 

The direct and uncontestable effect of HHS’s continued 

support for the EP test is to leave undiagnosed and untreated 

hundreds of thousands of poor, mostly minority, lead poisoned 

 



  

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children. The replacement of the EP test by the lead blood level 

test will accurately diagnose these children and start the 

immediate process of cure and prevention. 

Preliminary relief sought 

Plaintiffs seek the following preliminary relief against the 

USA: a temporary restraining order and a preliminary injunction 

enjoining the USA, through the HCFA, from supporting, allowing or 

financing the States’ use of the EP test as an appropriate 

screening test for lead poisoning and ordering defendant USA, 

through the HCFA, to require the States to use a blood lead level 

test as a screening device for childhood lead poisoning, 

The motion is based on the sworn declaration of Lois Thomp- 

son setting out the facts concerning the plaintiff children, the 

sworn declaration of Michael M. Daniel collecting the relevant 

documents or document excerpts, and plaintiffs’ memorandum of law 

in support of this motion. 

Preliminary relief bond 

Plaintiffs are children in very low-income family as are the 

other class members. There is no financial harm to defendant. 

Plaintiffs request that the Court either waive bond or set a 

nominal bond. Fed. R. Civ. P. 65(c). 

 



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Respectfully submitted, 

  

MICHAEL M. DANIEL, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 
(214) 939-9230 (telephone) 
(214) 939-9229 (facsimile) 

rs LO Die Neo J 
ichael M. Daniel 

State Bar No. 05360500 

By: (Xa B_ Bokaro, 
Latira B. Beshara 
State Bar No. 02261750 

  

  

ATTORNEYS FOR PLAINTIFF 

Certificate of Conference 
  

I certify that a conference was held with counsel for 
defendant USA on the issue of the temporary and preliminary 
relief requested and no agreement could be reached. 

una B._Benha/\o 
Laura B. Beshara 
  

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

was served upon counsel for defendants by FAX and by being, placed 
in the U.S. Mail, first class postage prepaid, on the ond day 
of yr 2 19924 

Suna RB LRwharo 

  

  

Laura B. Beshara