Matthews v. Coye Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment

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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 

455 Golden Gate Avenue, Suite 6200 
San Francisco, CA 94102-3658 
Telephone: (510) 464-1173

Attorneys for Defendant

JOEL R. REYNOLDS
JACQUELINE WARREN
NATURAL RESOURCES DEFENSE COUNCIL
617 South Olive Street, Suite 1210
Los Angeles, California 90014
Telephone: (213) 892-1500

Attorneys for Plaintiffs 
Erika Matthews, et al.

(Continued on next page)

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OCT I 7 199| 

CU&K'lf'g' f iW & 'iN G

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA

ERIKA MATTHEWS AND JALISA 
MATTHEWS, by their guardian ad litem Lisa 
Matthews, and PEOPLE UNITED FOR A 
BETTER OAKLAND,

Plaintiffs,

v.

MOLLY COYE, M.D., Director, California 
Department of Health Services,

Defendant

) No. C 90 3620 EFL
)
) STIPULATION FOR
) SETTLEMENT AND DISMISSAL
) WITHOUT PREJUDICE
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STIPULATION FOR SETTLEMENT AND
DISMISSAL WTTHOUT PREJUDICE 1.



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JANE PERKINS
MICHELLE MELDEN
NATIONAL HEALTH LAW PROGRAM
2639 South La Cienega Boulevard
Los Angeles, California 90034
Telephone: (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 
Telephone: (213) 624-2405

MARK ROSENBAUM
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
633 South Shatto Place
Los Angeles, California 90005
Telephone: (213) 487-1720

KIM CARD
LEGAL AID SOCIETY OF ALAMEDA COUNTY 
1440 Broadway 
Suite 700
Oakland, California 94612 
Telephone: (510) 451-9261

EDWARD M. CHEN
ACLU FOUNDATION OF NORTHERN CALIFORNIA 
1663 Mission Street 
Suite 460
San Francisco, California 94103 
Telephone: (415) 621-2493

Attorneys for Plaintiffs 
Erika Matthews, et al.

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STIPULATION FOR SETTLEMENT AND
DISMISSAL WITHOUT PREJUDICE



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IT IS HEREBY STIPULATED by and on behalf of ERIKA 

MATTHEWS AND JALISA MATTHEWS, by their guardian ad Idem Lisa Matthews, 

and PEOPLE UNITED FOR A BETTER OAKLAND, Plaintiffs herein, by and 

through their undersigned counsel of record, and MOLLY COYE, M.D., Director, 

California Department of Health Services, Defendant herein by and through her 

counsel of record, that:

1. The parties agree that childhood lead poisoning is one of the most 

serious health problems facing the people of the State of California today. The parties 

agree that development of a cohesive program to address the problem of childhood 

lead poisoning is essential.

2. The parties agree that the public resources available for addressing 

the childhood lead poisonine problem are better spent on a cohesive program than on 

piecemeal litigation.

3. The parties agree that United States Centers for Disease Control is 

an appropriate body to look to for guidance in the development of a childhood lead 

poisoning prevention program, and that the Center’s October 1991 statement entitled 

Preventing Lead Poisoning In Young Children with respect to the proper protocol for 

pediatric lead testing at present best reflects current medical knowledge regarding 

pediatric lead screening, testing and treatment.

4. The Department of Health Services believes it should have a 

childhood lead poisoning prevention program which reflects current scientific and 

medical technology. The Department of Health Services, therefore, agrees to publish a 

Child Health and Disability Prevention program provider information notice which is 

substantially the same protocol as and contains, at a minimum, the language included in 

the Provider Information Notice titled "Blood Lead Test as a Part of Health 

Assessment for Medi-Cal Children Ages 6 Months to 72 Months," attached hereto as 

Exhibit A and incorporated herein by reference. The effective date of the protocol will

STIPULATION FOR SETTLEMENT AND -i
DISMISSAL WITHOUT PREJUDICE



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be not more than thirty (30) days from the date of the date of dismissal in paragraph 6 

infra.

5. The Department will monitor the completeness and results of 

childhood lead screening by expanding the laboratory based reporting system to include 

all blood lead tests (not just elevated blood lead tests) for children (as defined as 

persons under the age of 15). The Department will analyze the results of testing and 

issue periodic reports of findings. The Department will consult with Plaintiffs’ counsel 

concerning the design and format of such reports.

6. Plaintiffs agree to dismiss the above-captioned lawsuit without 

prejudice immediately upon Defendant’s mailing of the Child Health and Disability 

Prevention Program provider information notice referenced in paragraph 4, above, to 

affected Medi-Cal providers.

7. Defendant will undertake a provider and client education effort 

which, at a minimum, will include:

a. Disseminating a map showing the location of lead 
smelters, battery recycling plants, and other major lead emitting industrial
sites.

b. Disseminating a list of jobs which may result in family 
members adding to children’s risk of lead poisoning.

c. Working with Centers for Disease Control and 
American Academy of Pediatrics to disseminate information regarding 
childhood lead poisoning, including a synopsis of the final Centers for 
Disease Control Guidelines to Child Health and Disability Prevention 
Program providers.

d. Development of recipient educational materials. As 
part of its efforts the Department will prepare a client educational 
brochure regarding lead poisoning for distribution to providers’ clients.

e. Disseminating information and educational materials 
to groups who are at particular nsk for lead poisoning, including the 
developmentally delayed.

8. Defendant agrees to pay Plaintiffs $62,500 for attorney fees subject 

to required administrative and legislative approvals. Defendant agrees to seek and

STIPULATION FOR SETTLEMENT AND
DISMISSAL WITHOUT PREJUDICE



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support the required approvals. If payment is not made by February 29, 1992, the 

Defendant will pay interest at the rate received on investments in the Pooled Money 

Investment Fund from the date of this agreement to the date the money is paid. 

Should payment not be made by October 31, 1992, Plaintiffs may bring an action for 

fees and costs. In connection therewith, the prevailing party shall be entitled to their 

fees and costs for bringing the enforcement action.

9. Nothing in this agreement prevents either party from taking 

appropriate action in response to scientific, medical and technological advances in the 

area of childhood lead poisoning.

IT IS SO STIPULATED:

Dated: October 16, 1991

JOEL R. REYNOLDS 
JACQUELINE WARREN 
NATURAL RESOURCES DEFENSE 
COUNCIL

JANE PERKINS
MICHELLE MELDEN
NATIONAL HEALTH LAW PROGRAM

BELL LANN LEE 
KEVIN S. REED 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

MARK ROSENBAUM
ACLU FOUNDATION OF SOUTHERN
CALIFORNIA

KIM CARD
LEGAL AID SOCIETY OF ALAMEDA 
COUNTY

EDWARD M. CHEN
ACLU FOUNDATION OF NORTHERN
CALIFORNIA

snpuuvnoN for settlement and
DISMISSAL WITHOUT PREJUDICE 5.



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Dated: October 16, 1991

[ a; \  m atthew* \  rrudth****. <**2]

D A N IEL E. LU N G R EN , A ttorney G eneral 
State of California

Deputy A ttorney G eneral

Attorneys for D efendant

,T $  SO OKDEnED 

- ; c > fi Ly n g h

i; S OlSlP'br n ,T,v;— » o J j ; /; 2 r-

OCT 1 7 1991

STIPULATION FOR SETTLEMENT AND
DISMISSAL Wm-tOUT PREJUDICE 6.



DRAFT

PROVIDER INFORMATION NOTICE 
Blood Lead Test As A Part of Health Assessment 

for Medi-Cal Children Ages 6 Months to 72 Months

In March of 1991, you received a letter from the Director of the 

Department of Health Services which, in part, stated: "Lead poisoning is the most 

significant environmental health problem facing California children today, and 

insufficient consideration is being given this potential problem during routine child 

health evaluations." The Department is acting on this concern by expanding the blood 

lead testing/screening component of the health assessment provided to Early’ and 

Periodic Screening, Diagnosis and Treatment Program ("EPSDT') eligible children.

Effective____________, all EPSDT eligible children between 6 and 72

months are to receive an evaluation for possible lead poisoning as part of each health 

assessment. The evaluation shall include, at a minimum:

1. A blood lead test (Code #15) is to be administered to all 
Early and Periodic Screening, Diagnosis, and Treatment Program eligible 
children at approximately one year of age, unless there is reason that the 
test is medically contraindicated or the test is refused by the parents.

2. Any child over one year of age, but less than 73 months, 
who has not been tested for lead poisoning is to also receive a blood lead 
test (Code #15) during the child’s next subsequent periodic health 
assessment unless there is reason that the test is medically contraindicated 
or the test is refused by the parents.

3. A series of five (5) questions, intended to identify children 
at high risk for lead poisoning, is to be directed to each child’s 
parent/guardian. The questions (see attached list) are to be asked at 
each periodic health assessment, beginning with the 6 month visit.

A child is considered low risk only if all five questions are 
answered "No." If any child is determined to be high risk from initial or

1.

EXHIBIT A



DRAFT

subsequent questioning, a blood lead test (Code #15) is to be 
administered immediately unless there is reason that the test is medically 
contraindicated or the test is refused by the parents.

4. At each subsequent periodic health assessment, if a child is 
determined to be high risk under paragraphs 1, 2, or 3 above, a blood 
test (Code #15) is to be performed, unless there is reason that the test is 
medically contraindicated or the test is refused by the parents.

5. A child is to be referred for appropriate diagnosis and/or 
treatment when the results of the blood level test exceed 15 fog/dL. A 
child whose blood lead test results are greater than 10 fxg/dL and less 
than 15 pg/dL is to be retested at intervals consistent with the October 
1991 Centers for Disease Control statement entitled Preventing Lead 
Poisoning In Young Children.

The reimbursement rates for the health assessment and the blood lead 

test are unchanged.

These changes in the testing/screening protocol are being made because 

of recent medical and scientific advances. The content of this provider information 

letter is intended to be consistent with these changes. The Centers for Disease Control 

statement recommends a second universal test at about two years of age if resources 

allow. The Department will keep you informed of further developments.

Please feel free to call your local CHDP program director if you have any

questions.

[SIGNATURE]
California Department of Health Services

2 .

EXHIBIT A



CHILDHOOD LEAD POISONING EVALUA ■ .ON QUESTIONNAIRE

The following questions are to be answered by the parents/guardians of EPSDT eligible 
children under 72 months o f age at each periodic health assessment.

1. Does your child live in or regularly visit a house or other location with peeling 
or chipping paint built before 1960? [This can include a day care center, 
preschool, school, barn, home of babysitter, relative, friend, etc.]

____  Yes No

2. Does your child live in or regularly visit a house built before 1960 with recent or 
ongoing renovation or remodeling?

______ Yes No

3. Does you child have a parent, brother, sister, housemate or playmate who is 
being treated or followed for lead poisoning [i.e., blood lead _> 10 ug/dl]?

______ Yes No

4. Does your child live with someone whose job or hobby involves exposure to lead 
[i.e., painting, soldering, automobile battery manufacturing or recycling, vehicle 
radiator repair]?

______ Yes No

5. Does your child live near an active lead smelter or battery recycling plant or 
other industry likely to release lead?

______ Yes No

[a :\m a h  b*w» \  m a tth e w *.q tn ]



DECLARATION OF SERVICE BY MAIL

Case Name: Erika Matthews, et al. v. Molly Coye
Court No.: U.SJO.C., Northern District No. C-90-3620 EFL

I declare that:

I am employed in the County of Alameda, California. I am over the age of 18 years 
and not a party to the within entitled cause; my business address is 2101 Webster Street, 
12th Floor, Oakland, California 94612-3049.

On October 16. 1991. I served the attached

STIPULATION FOR SETTLEMENT.AND DISMISSAL WITHOUT PREJUDICE

in said cause by placing a true copy thereof enclosed in a sealed envelope with postage 
thereon fully prepaid, in the United States Mail at Oakland, California, addressed as 
follows:

Joel R. Reynolds 
Jacqueline Warren 
Natural Resources Defense Council 
617 South Olive Street, Suite 1210 
Los Angeles, CA 90014

Jane Perkins 
Michelle Melden 
National Health Law Program 
2639 South La Cienega Boulevard 
Los Angeles, CA 90034

Bill Lann Lee 
Kevin S. Reed 
NAACP Legal Defense and 
Educational Fund, Inc.
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015

Mark Rosenbaum
ACLU Foundation of Southern California 
633 South Shatto Place 
Los Angeles, CA 90005

Kim Card
Legal Aid Society of Alameda County 
1440 Broadway, Suite 700 
Oakland, CA 94612

Edward M. Chen
ACLU Foundation of Northern California 
1663 Mission Street 
Suite 460
San Francisco, CA 94103

I declare under penalty of perjury that the foregoing is true and correct, and that this 
declaration was executed at Oakland, California, on October 16, 1991.

(Date)

LARRY E. JEFFERSON 
(Typed Name)