Defendant's Reponse to Motion for Interim Attorney's Fee with Cover Letter

    Office of the Attorney General 

State of Texas 

DAN MORALES 
ATTORNEY GENERAL October 8, 1993 

Via Certified Mail 

Ms. Nancy Doherty, Clerk 

United States District Court 

Northern District 

14-A-20 Earle Cabell Federal Bldg. 

1100 Commerce Street 

Dallas, Texas 75242-1003 

Re: Lois Thompson, et al. v. Burton F. Raiford 

Cause No. 3-92-CV-1539-R 

Dear Ms. Doherty: 

Enclosed for filing in the above-referenced cause of action please find the original and 
two copies of Defendant’s Response to Motion for Interim Attorney’s Fee. 

Please indicate the time and date of filing on the extra copy and return to us in the 
self-addressed, prepaid envelope enclosed for your convenience. 

By copy of this letter opposing counsel have received a true and correct copy of this 
document. 

Thank you for your consideration. 

    
Sincerely, 

SH ven 
Edwin N. Horne 

Assistant Attorney General 
(512) 463-2120 

Enclosures 

cc: All counsel of record 

m— 
X% 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 
PRINTED ON RECYCLED PAPER AN EQUAL EMPLOYMENT OPPORTUNITY EMPLOYER 

 



  

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, 

No. 3-92 CV 1539-R 

Civil Action 

Plaintiffs, 

Class Action 

Vv. 

BURTON F. RAIFORD, in his capacity 

as Commissioner of the Texas Department 
of Human Services, 

and 

THE UNITED STATES OF AMERICA, 

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Defendants. 

DEFENDANT’S RESPONSE TO MOTION FOR INTERIM ATTORNEY'S FEES 
  

COMES NOW Defendant, BURTON F. RAIFORD, in his capacity as Commissioner 

the Texas Department of Human Services, and files this, Defendant’s response 

to Plaintiffs’ motion for interim attorney’s fees and litigation costs. Defendant objects to the 

motion and, under the following authority, respectfully requests that Plaintiffs’ motion be 

DENIED. 

 



  

INTRODUCTION 
  

Plaintiffs’ seek an interim award of $42,068.25 in attorney’s fees and $305.75 in 

litigation expenses against Defendant pursuant to 42 U.S.C. § 1988 which provides: 

“... In any action or proceeding to enforce a provision of sections 1981, 

1982, 1983, 1985 and 1986 of this title,... the court, in its discretion, 

may allow the prevailing party, other than the United States, a reasonable 
attorney’s fees as part of the costs.” 

(Emphasis added) 

In order to constitute a litigant as a “prevailing party,” the party either must have 

1) enjoyed some bottom-line litigatory success or 2) her suit must have had a catalytic effect 

in bringing about the desired result. Guglietti v. Secretary of HHS, 900 F.2d 397 (1st 

Cir.1990). For the first test, a court may award fees to plaintiffs only if they succeed on a 

“significant issue in litigation which achieves some of the benefit the parties sought in 

bringing suit.” Texas State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 

789, 109 S.Ct. 1486, 1491-92, 103 L.Ed.2d 866 (1989). 

Since Plaintiffs did not win on any significant issue in the current litigation and no 

judgment was entered in their favor, the remaining issue presented here is whether Plaintiffs 

can be construed as a prevailing party under the second test--as having a catalytic effect in 

bringing about the desired result--and assert a claim for reasonable attorney’s fees. 

I. PLAINTIFFS ARE NOT A “PREVAILING PARTY” 
  

The catalyst test applies to plaintiffs who have succeeded in achieving favorable 

results because of the filing of their claim, but have not had a final judgment on the merits 

entered in their favor. Exeter-West Greenwich Regional School Dist. v. Pontarelli, 788 F.2d 

 



  

47, 50 (1st Cir. 1986). It is invoked in those cases in which Plaintiffs do not receive a 

favorable judgment, yet claim to have succeeded in bringing about a beneficial change in 

defendants’ conduct or in the conditions complained of--a change which would not have 

occurred but for the institution of the suit. Langton v. Johnston, 928 F.2d 1206 (1st 

Cir.1991) 

The critical inquiry is whether the suit prompted defendants to take action to meet 

plaintiffs’ claim. As stated by the Court in Teresa Diane P. Through Marilyn J.P. v. Alief 

Independent School Dist., 744 F.2d 484 (5th Cir. 1984): 

“... A civil rights plaintiff may not collect attorney’s fees for demanding that a 

state officer do what he would have done in any case....” 

Teresa, 744 F.2d at 487 

In this inquiry, the litigation’s “provocative role” in the calculus of relief is the sine 

qua non. Guglietti v. Secretary of HHS, 900 F.2d 397 (1st Cir.1990). If the defendant acted 

other than in response to the spur of plaintiffs’ suit, the catalyst theory does not apply. /d.. 

Moreover, the catalyst test involves not only a causality requirement but a materiality 

requirement. “The touchstone of the prevailing party inquiry must be the material alteration 

of the legal relationship of the parties...” Texas State Teachers, 489 U.S. at 792-93. 

In this case, Plaintiffs’ lawsuit did not “cause” Defendant’s actions. As will be 

detailed below, Defendant began to redress the injuries complained of in Plaintiffs’ lawsuit 

long before this case was initiated. Plaintiffs seek attorney’s fees for demanding that “a state 

officer do what he would have done in any case”-- in fact, for demanding that a state officer 

do what was already being done. 

 



Chronology 

Long before Plaintiffs filed the instant suit on July 29, 1992, Defendants had begun 

the difficult and complex task of safely implementing new technology concerning blood lead 

level testing--a part of the Texas EPSDT program. The relevant events followed accordingly: 

OCTOBER 1991 
  

The Centers for Disease Control, a part of the U.S. Department of Health and Human 

Services issued a new finding outlining the need for more sensitive blood lead level testing-- 

a test that would identify lead levels in concentrations as small as 10 ug/dl. (The CDC 

memorandum is attached hereto as Exhibit “A”) Prior to this finding, blood lead level testing 

in concentrations as small as 25 ug/dl using the erythrocyte protoporphyrin (“EP”) test was 

considered satisfactory. Detection of blood lead levels at the new, lower concentration 

would require the State’s testing laboratory to acquire new and expensive graphite furnace- 

atomic absorption analyzer. 

NOVEMBER 27, 1991 
  

The director of the Bureau of Laboratories for the Texas Department of Health requested 

funding from the Texas Department of Human Services for new testing equipment to meet 

the 10 ug/dl standard. 

DECEMBER 13, 1991 
  

The Texas Department of Human Services approved the purchase of three “graphite furnace- 

atomic absorption analyzers” to meet the new C.D.C. 10 ug/dl standard. (Memorandum 

attached hereto as Exhibit “B.”  



  

MARCH 1992 
  

The Texas Department of Human Services approves the purchase of a fourth graphite 

furnace-atomic absorption analyzer to meet a larger than expected number of eligible testing. 

(Memorandum attached hereto as Exhibit “C”) 

APRIL 1992 
  

The first graphite furnace-atomic analyzer purchased performs poorly and a corrective 

program is set in motion. (See November 23, 1992 affidavit of Bridget Cook, Texas EPSDT 

program director, attached hereto as Exhibit “D”). 

MAY 1992 
  

Purchase request and specifications for a new type of graphite furnace is issued. (affidavit 

of Bridget Cook, attached hereto as Exhibit “D”) 

MAY 27, 1992 
  

The Texas Department of Human Services revises and implements a six month plan for 

EPSDT outreach in West Dallas. The plan includes: 

1) sending a special outreach letter to all Medicaid recipients in six West Dallas zip 

codes letting them know that they appear to be “at risk”; 

2) emphasis at each interview on EPSDT;, 

3) displaying outreach posters in public places 

4) including the telephone numbers of medical transportation and scheduling clerks in 

every outreach letter; 

5) sending a special letter to each Medicaid provider regarding this special project 

6) establishing a “health fair” to provide clients with EPSDT screens. 

 



  

(See memorandum from Jerome A. Lindsay, Regional Administrator, Texas Department of 

Human Service, attached hereto as Exhibit “E”) 

JULY 1992 
  

New technical specifications for an efficient, workable blood lead level furnace are issued. 

These specifications permit only one supplier’s bid to be wholly acceptable. 

(Affidavit of Bridgett Cook, attached hereto as Exhibit “D”) 

JULY 9, 1992 
  

Letter from Donald Kelley, state Medicaid director, to Susan Finkelstein, an attorney for 

Texas Rural Legal Aid, is mailed. (See memorandum attached hereto as Exhibit “F”) 

JULY 29, 1992 
  

Plaintiffs file the instant lawsuit. 

AUGUST 1992 
  

The Texas Department of Human Services issues emergency purchase order for blood lead 

level furnace so that state purchasing laws can be complied with regarding sole vendor who 

can meet the furnace’s minimum operation and safety requirements.(See affidavit of Bridget 

Cook, attached hereto as Exhibit “D”) 

SEPTEMBER 1992 
  

HCFA revises its blood lead level testing guidelines published in the State Medicaid Manual. 

These new guidelines state, inter alia, that: 

“While HCFA wants to stress that blood lead testing is the screening 
test of choice, HCFA acknowledges that it will take some time for States 

to make a transition to blood lead testing. The erythrocyte protoporphyrin (“EP”) 
test is not sensitive for blood lead levels below 25 ug/dl. However, HCFA 

 



  

recognizes that the capacity may not exist in every community for analyzing 

blood lead for every Medicaid eligible child. State continue to have the option 

to use the EP test as the initial screening blood test. However, elevated EP tests 

must be confirmed with a blood lead test....” 

(See State Medicaid Manual, Part 5 Revised Material, attached hereto as Exhibit “G”) 

SEPTEMBER 1992 

New graphite furnace blood lead level analyzer installed. (See affidavit of Birdgett Cook, 

attached hereto as Exhibit “D”’) 

OCTOBER 1992 
  

New graphite furnace analyzer operational. (See affidavit of Bridgett Cook, attached hereto 
as 

Exhibit “D”) 

DECEMBER 11, 1992 

The Texas Department of Human Services issues new Lead Screening Changes/ Information 

in which EP test is discontinued and the new blood lead test is adopted. 

DECEMBER 15, 1992 

Letter outlining the new Lead Screening Changes/Information is mailed to all EPSDT 

Medical Screening Providers. 

FEBRUARY 1993 
  

Joint Motion for Continuance is filed. 

It is apparent from this chronology that Defendants were pursuing a timely, 

reasonable and persistent course of action towards meeting the new blood lead level 

concentration screening before Plaintiffs filed the instant case. It is apparent from the 

 



  

record that Plaintiffs’ lawsuit did not “cause” Defendant’s conduct or “materially alter” the 

legal relationships of the parties. The instant lawsuit did not cause a redress of plaintiffs’ 

injuries which would not have occurred but for the filing of the lawsuit. 

For example, Plaintiffs’ Motion asserts that the lawsuit, filed July 29, 1992, sought 

injunctive relief 1) declaring that West Dallas was a high risk area, 2) notifying all EPSDT 

eligibles that blood level assessments must be given, 3) notifying West Dallas children that 

blood screens were available, 4) re-testing children given EP test in the past, 5) ordering a 

case management system to ensure that all eligibles received blood lead level testing. 

However, two months earlier, by May 27, 1992 , these tasks had already been 

addressed by the Texas Department of Human Services in the “six month EPSDT plan for 

West Dallas” detailed above. By the time the instant lawsuit was filed, Defendant was simply 

awaiting the technical capability to safely perform the 10 ug/dl blood lead level screening. 

Another example, Plaintiffs’ motion asserts that the December 11, 1992 change in the 

Texas Department of Human Services’ Lead Screening Changes/Information was caused by 

the instant lawsuit. As detailed above, the new graphite furnaces for the 10 ug/dl blood level 

screening did not become operational until October 1992--that means that the new blood lead 

level policies were not only changed but were published within six weeks of the new 

furnaces becoming operational. It is obvious that publishing a changed policy before having 

the technical capability to achieve the changed policy would create more injuries than it 

would cure. 

Another example, Plaintiffs’ motion asserts that the instant lawsuit was filed in 

response to a letter from the State Medicaid Director via the Texas Department of Human 

Services addressed to Susan Finklestein, a Texas Rural Legal Aid lawyer. Plaintiffs assert 

that this letter confirmed the State’s policy to continue using the EP test for blood lead level 

screening. Plaintiffs’ motion erroneously alleges that in this letter “the agency stated that it 

had no plans to review its lead poisoning screening program.” 

 



  

In fact, the July 9, 1992 letter from the Texas Department of Human Services--not 

addressed to Plaintiffs--responded to an oblique request concerning blood level “poisoning.” 

Specifically, the letter stated, inter alia, 

“...Request 

The Department’s proposals, whether implemented or not, for the past five 

fiscal years concerning testing and treatment of lead blood poisoning in children in Texas. 

Response 

The Department has made no such proposals.” 

It is apparent from this extremely brief exchange that in this letter the Texas 

Department of Human Services was not responding to a request to provide a detailed 

description of the forthcoming blood lead level EPSDT screening program --which had been 

under development since November, 1991. Defendant respectfully argues that it is highly 

improbable that Plaintiffs would instigate a large class action lawsuit based substantially on 

“second-hand” correspondence that neither accurately nor directly addressed the issue so 

critical to the case. 

Defendant’s conduct in pursuing the new 10 ug/dl blood lead level screening was not 

“caused” by Plaintiffs’ lawsuit. As detailed above, the facts demonstrate that Defendant’s 

conduct in this matter was anticipatory, given the new technology, and actually preceded 

formal requirements. Plaintiffs’ lawsuit did not “materially alter” the legal relationship of the 

parties--the new testing technology was implemented as soon as safely and reasonably 

possible. 

The key to understanding this point is that the acquisition new technology is a 

process that requires time-- from awareness of the new technology to implementation. This 

process entails a reasonable regard for financing, engineering and public safety--factors 

wholly unaffected by Plaintiffs’ lawsuit. 

 



  

In this case, Plaintiffs await was not a catalyst for change in the EPSDT blood lead 

level screening test. Therefore, Plaintiffs are not a “prevailing party” and are not eligible for a 

discretionary award of reasonable attorney’s fees pursuant to 42, U.S.C. § 1988. 

As a final policy consideration, granting Plaintiffs’ motion for attorney’s fees would 

penalize instead of reward Defendant for 1)anticipating the implications of the new testing 

technology and 2) for proceeding to implement safe, new, state of the art equipment. The 

better course of action would be to promote and encourage Defendant’s conduct for all the 

new technological acquisitions yet to come. 

THE NUMBER OF HOURS ALLEGED IS UNREASONABLE 
  

Plaintiffs seek compensation for 156.5 hours of Laura Beshara’s time and 55.3 hours 

of Michael Daniel’s time in the prosecution of this case. In addition to the fact that Plaintiffs 

are not prevailing parties in this case, a review of Plaintiffs’ motion for interim attorney’s 

fees reveals that a large number of these hours were billed after the Texas EPSDT blood lead 

level testing policy had been changed and published. Importantly, there has been no 

opportunity for Defendant to examine, through discovery, any of Plaintiffs’ assertions 

concerning the number of hours asserted or the uniqueness, complexity or detail of the work 

actually performed in the prosecution of this case. 

Since Plaintiffs’ are not prevailing parties in this case, the reasonableness of the fees 

appears moot. However, in the alternative, should a discretionary award be ordered, 

Defendant requests the opportunity for discovery as outlined above. 

 



  

CONCLUSION 
  

Based on the foregoing authority, Defendant respectfully requests that Plaintiffs’ 

Motion for interim attorney’s fees be DENIED. 

Respectfully submitted, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY F. KELLER 

Deputy Attorney General for Litigation 

JORGE VEGA 

Chief, General Litigation Division 

  

Bar No. 10008000 

Assistant Attorney General 

General Litigation Division 

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2120 

(512) 320-0667 FAX 

CERTIFICATE OF SERVICE 
  

I certify that a true and correct Vey of the above document was served upon counsel 

for Plaintiffs by U.S. Mail on this Say of October, 1993. 

 



  

EXHIBIT A 

 



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SCREENING METHOD 
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  Screening should be done using @ blood lead test. 
    

| Sines erythrocyta protoporphyrin (EP) is not sensitive enough to identify more than a small 

percentage of children with blood lead levels between 10 and 25 pg/dL and misses many 

children with blood lead levels »25 pg/dL (McElvaine et al, 1801), measurement of blood lead 

lovala should replace the EP test aa the primary screening method. Unless contamination of 

capillary blood samples can be prevented, lead levels should be measured on venous SRMples. 

‘Obtaining capillary apecimens is mare feasible at many screening sites. Contamination of 

capillary specimens cbtained by finger prick can be minimized if trained personnel follow 

proper technique (ssa Appendix I far a capillary sampling protocol). Elevated blood lead results 

ohne cx capillary specimens should be considered presumptive and must be confirmed using 

venous blood, Ab the present time, Dot all laboratories will measure lead levels on capillary 

spacimsns. | : 
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some programs will 
  

  

    

with iron defislensy. 
units used to report EP results (Page 48). All EP test resulta of »35 

1, #28 pg/dL if standardized using 297 L cm-l 
ports in these units, must be 

  
  

ANTICIPATORY GUIDANCE AND ASSESSING RISE 
  

Anticipatory guidance helps prevent lead poisoning by educating parents on ways t0 

| reduce laad axposurs. 

|| Questions about housing and other factors are used to identify which children are at 

| greatest risk for high-dose lead exposure. 

| Anticipatory guidance and assessment of risk should be tailored to important sources 
| and pathways of lead exposure in the child's community. 
| 

| 
| 

  

      
Guidance on childhood lead poiscming prevention and assessment of tha risk of lead poisoning 

should be part of routine pediatric care. Anticipatory guidance is discussed in mors detail in 

Chapter 4. The guidance and risk assessment should emphasise the sources and axpasures that 

| are of greatest concern in the child's community (Chapter 8). Because lead-based paint has bean 

‘used in housing taroughout the United States, in most communities it will be necessary to focus 

lon this sourrs. 

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EXHIBIT B 

 



  

alk 3 Texas: 

Hu i Jy hd ces 
COMMISSIONER BOARD MEMBERS: 

Ron Lindsey Cassandra C. Carr 
; Chairman, Austin 

David Herndon 

December 13, 1991 Vice Chairman, Austin 

Maurice L. Barksdale 

Arlington 

Bob Geyer 
El Paso 

Charles E. Sweet, Dr.P.H. Rw 
: f ailas 

Chief, Bureau of Laboratories Vave D. Scott 

Texas Department of Health Houston 

1100 West 45th Street 

Austin, Texas 78756-3199 

Dear Dr. Sweet: 

This is in response to your letter dated November 27, 1991, in which you discussed the 

recently released guidelines for blood lead level requirements to detect with accuracy as low 

as 10 ug/dL, the new lower limit standard as per the U.S. Centers for Disease Control. We 

are in agreement with you about the need not only to meet these new standards, but to be 

able to provide proper community identification and community and individual action 

regarding lead exposure. : 

From your letter, it is our understanding that the existing equipment used in the EPSDT 

laboratory lead testing procedures is inadequate to meet the new standards, nor is their a 

way to upgrade the existing equipment to meet the new standards. Given the daily average 

output of eighty tests, and with a prospective increase in the number of daily tests due to 

increases in the number of children receiving EPSDT medical screens, you are hereby 

authorized to purchase, under our existing contract, three graphite furnace-atomic absorption 

analyzers at a quoted cost of $47,000 per unit; this, like other equipment purchased, would 

be the property of the Texas Department of Human Services but be located with the Bureau 

of Laboratories, Texas Department of Health (TDH). Reimbursement will be made to the TDH 

via the EPSDT/laboratory billings on the State of Texas Interagency Transaction Voucher. 

We appreciate your cooperation in the past several years with keeping acquisition of : 

equipment at a low level, but recognize that you will be unable to assist the EPSDT program 

in meeting federal standards on blood lead testing unless new equipment is now purchased. 

If you have any questions, please contact Sharon Boatman at 338-6932. 

Sincerely, 

tse Bvall 
Stephen R. Svadlenak 

Director 

Acute Care Services 

SRS:km John H. Winters Human Services Center ® 701 West S1st Street 

Central Office Mailing Address P.O. Box 149030 * Austin, Texas 78714-9030 

Telephone (512) 450-3011 « Call your local DHS office for assistance. 

 



  

EXHIBIT C 

 



AD 1 Te pen 
Mik 1 1 ely 

Texas Department of Health 
‘Robert Bernstein, M.D., FA.C.P. 1100 West 49th Street : Robert A. MacLean, M.D. 
Commissioner Austin, Texas 78756-3199 Deputy Commissioner 

(512) 458-7111 

March 9, 1992 

Bridget Cook 
E.P.S.D.T. Program Manager 

_ Texas Department of Human Services 

Dear Ms. Cook: 

This explains our request to increase the face value of the interagency contract 
under which this laboratory performs analyses on E.P.S.D.T. Program patients. 
There are two aspects of this need. First is the dramatic increase in workload, 
one that your office has predicted for some time and that has been apparent to 
us, but one which we nevertheless have waited on to verify that the trend is 
continuous. Please see the attached chart. 

Based on workload from September 1991 through February 1992 a projection has been 
made for the next six months. That projection on at least 6000 specimens monthly 
assures billings of at least $400,000, ninety-six percent of the annual contract 
value -¢n-the second half of testing. 

A second factor is the urgency to acquire new analyzers for detecting blood lead 
at the levels now recommended nationally. The newly required technology is 
slower, so that a battery of instruments will be needed to meet the current 
enlarged demand. 

Your consideration and timely approval for a $291,697 contract increase will be 
appreciated and are needed to avoid further backlogs in testing. 

Sincerely, 

Unasda-€. Suet 
Charles E. Sweet, Dr.P.H. 

Chief, Bureau of Laboratories 

CES:pk 

Attach.  



  

EXHIBIT D 

 



    

CL EES12 aT 0331 OFC AITY GEN-GLD COR FRAT 

SENT BY: T D mW § pA {11-23-82 ! 3:83PM : ACUTE 6 ib 512 447 0511:3 2     
IX THE UNITED STATES DISTRICT COURT 
POR THE NORTHERN DISTRICT OF TEXAS 

DALIAS DIVIgIOoX 
Th TNT Fe at tn ow RIE eT eT en SENT Ly a 

1015S THOMPSON on behalf of 

and as next friend to 
TAYLOR KEONDRA DIXON, 
ZACEBERY X. WILLIAMS, 

CALVIN A. THOMPSON and 

PRENTISS LAVELL MULLINS 
Plaintifts, 

CAUSE NO. 3»82=CV1S535«R 

Vo 

BURTON ¥. RAITORD, in his 

capacity as Commissioner of 
the Texas Department of Human 
‘Services, and THE UNITED 
STATES OF AMERICA 

AFFIDAVIT OF BRIDGET COOK 

BEFORE ME, the undersigned autherity, on this day personally 

appeared Bridget Cook, known to me te be the person whose name is 

subscribed below, and after being duly sworn by me, stated en cath 

as follows: 

"My name is Bridget Cook. I am over the age of 18; I have 

= "+" never been convicted of a felony, and I am fully competent to make 

this affidavit. I am employed by the Texas Department of Human 

Services as EPSDT Program Director and I am authorized te make this 

affidavit as its agent. 

“In December 1991, a letter was received from the Texas 
TragbrosiedgPUT) =5T le VT a = So 0s ar Ay TEMPER Bo 1 tr, UB a ZR ES tell ae a TRL 
kg Department of Health’ (ToR) ’ Bureau of Laboratories, (Contractor for 

   



15.260 "E812 4470511 OFC ATTY GEN/GLD PI LERRTT: 

48 TE 3 {11-23-32 © 3:54PM i ACUTE CARE @ 512 447 c511:in 2 

  

EPSDT Medical Screening Frogranm Laboratory Services) which 

discussed the recently ralaased C.s. Centers for Disease control 

(CDC) guidelines for blood lead levels and detecting the new lower 

limit of 10 ug/dL. The letter stated that the existing equipmant 

used for EPSDT laboratory lasad testing procedures was inadequate to 

meat the new COC standards and that there was no way to upgrade the 

existing squipment to meet these new standards. 

- . ... "pPellewing- receipt” ¢f this * information the’ Departmant 

authorized in a letter dated December 13, 1891, tha purchase of 

three graphite furnace atomic absorption analyzers at a projected 

cost of $47,000 per unit to perform blood lead level tasting 

prccedures in accordance with the new CDC standards, This was in 

the absence of any veoulation. guidelines, or directive from the 

Health Care Financing Administration mandating the adoption of 

CDC's nev statemant on blood level testing preccedures. 

Due to a subsequent _unprojected increase in laboratory 
URE i . INTE hod 

i. 3 i i hid : 

pandbtnies rer rion (number of overall EPSDT specimens received 

for testing) and TDH's simultaneous identification of the projectad 

need for a fourth graphite furnace, the Department nagotiated a 

contract amendmsnt with TDR in Mareh 1992 to assure the 

availability of funds for all four pieces of the new equipment. 

The. total contract amount was increased from $461,000 to $752,897 

effective April 1, 1982. Workload trends continued te increase and 

 



T5122 247 0311 QFC ATTY GEN/GLD : Wl U04/008 
  

  

pe 111-23=82 : 3!S54FM ! ACUTE CARE ® S12 447 C511:8 4 

  

3 

"TDR purchased one grapiite furnace atomic JAssorption 
>» ne EE 

> spectrometer with non-EPSDT/ Medicaid dollars ~ support lead 

rh
 a.
 

testing services authorized under Texas House 3ill 1621 (72nd 

Legislative Sessicn). Due to the poor experience with this first 

analyzer purchased, TDH proceeded to survey othar blood lead 

testing laboratory facilities to find vhick equipment had been used 

with praven reliability. After the survey, lt became evidsnt that 

Perkin-Elmer Graphite Furnace Systems had established success in 

remiamvs State’-level ‘Public’ Health ‘Laboratories "in New York, Florida, 

Arkansas and in CDC Laboratory facilities. Although there were 

competing systems from other vendors that appeared to have 

potential, none had proven track records as yet in any major 

laboratories. 

"Based on this information, TDH laboratory staff gave much 

time and consideration to the preparation of the bid specifications 

in tha state rsquest for purchase of the four new graphite furnaces 

in order to assure Lhe acquisition of quality equipment on behalf ... 
PT ad ail x vr

 

ot the Department. This purchase request was submitted in May 1892 

to TDH Materials Acquisition and Management Division. 

"The bids for the equipment were reviewed in July and August 

of 1992 by TDR laboratory staff. Howaver, the original purchase 

- -Teaquisition had. to -be canceled. whan it.became apparent that only 

she vendor, Perkin-Elmer, could zeet all the spacifications. 

Because certain specifications were unique to only one vendor, the 

 



2512 447 0311 OFC ATTY GEN. GLD 005/009 12/0182 13:3 

SENT BY!T D # 5 » 11-23-82 i 3'E5PW i ACUTE care (iRaTunm 512 447 C511:8 5 

  

4 

raquisition vas then required to have proprietary handling and 

‘justirieation. The purchase requisition was Tepracas sed in August 

1982 under section 3.09 - (Proprietary Purchase) of the State 

Purchasing Code. This, in turn, resulted in a formal protast from 

another vendor who nad underbid Perkin-Elmar. The protest requirad 

subsequent legal raview by TDH, who determined thers had bean no 

violation of the state purchasing coda. 

“TCH laboratory staff requested emsrgency purchase handling in an 

effert to avoid any further delays. As a result Perkin-Elmer 

received the purchase order in late August 1932, In the meantime, 

TDH began site: preparaticn which included the relocation of an 

existing laboratory section, subsequent installation of additional 

high voltage electrical circuits, cenpressed gas system with flow 

lines, and an external ventilation system to handle the fumes 

generated during this type of tlood analysis, The equipment 

arrived and was installed in late September 1992. After arrival, 

it took approximately two veeks for the service enginear to install 

and conplete | the checkout procedures cn all four instruments. 

Following this, an application specialist from Perkin-Elmer came to 

the laboratory tc verify the bleed lead procedure and provide 

hands-on training to the TDH laboratory staff. Once validatien 

procedures vere completed, TOH laboratery stags began analyzing all 

EPSDT medical screening prograz blood specimens submittad for lead 

testing on the new equipment in accerdance with the new CDC 

guidelines specifying direet blood lead level measurement down to 

 



15:37 TS512 447 0311 OFC ATTY GEX/GLD 008,008 

Lb =.5 ® 11-23-82 ; 3:88PM , AQJUTE ny nih 812 447 0S11:%3 6 

  

5 

10 ug/dL. Cse of this naw laboratory analysix procedurs is 

“applicable to all specimens received for blood lead testing con and 

after Octcbar 23, 1982. 

"The facts stated above are within my perscnal knowledge, and are 

trie and corrsct.™ 

  

Sworn toe and subscribed before nme, the undersigned authority, on 
2 A va 

this od = day of at Aon soror lr tigtics , 1992, to certify which     

witness my hand and seal of office. 

  

A aur LOR hd : . _.. Notary Public in and for 
A I rr nn i tha State of Texas 

 



  

EXHIBIT E 

 



  

» » 

MEMORANDUM 
TEXAS DEPARTMENT OF HUMAN SERVICES*REGIONAL OPERATIONS 

SUBJECT: Six Month EPSDT Outreach Plan 

TO: Jerome Lindsay 
Regional Administrator 
Arlington 012-5 

FROM: Ronald G. Black 
Associate Commissioner 

Regional Operations 
State Office E-303 

DATE: May 28, 1992 

  

Your May 27, 1992 outreach plan is approved with the following revision change to bullet 
two of item number 3. 

. A special letter will be sent out to the Dallas EPSDT medical screening 
providers regarding this special project and the need for them to complete 
a lead screen for the clients who live in or have lived in this targeted area. 
The specific instructions regarding the marking of the blood specimen, for 
special handling be the Department of Health laboratory, will be outlined in 
this letter. 

Please immediately begin hiring the two nurses and two clerical staff utilizing lapsed FY 
'82 CSS eligibility funds. | will make arrangements to cover this cost for the three months 
of FY '93. Due to the nurse shortage you may want to consider double or triple posting 
the nurse positions. If you want to consider double titling to have more flexibility, we will 
be glad to do whatever we can to work with you on this. 

ft (bed 

R&nald G. Black 

RGB:sm 

Cc: Lonnie Duke 
Linda Franco 

Bridget Cook 
Lee Van Burkleo 

 



   
  

  

WEWRORI/AANDUINL 
TEXAS DEPARTMENT OF HUMAN SERVICES 

    

SUBJECT: : 
Six Month EPSDT Outreach Plan 

TO: FROM: oo 

Ronald G. Black Jerome A. Lindsay 
Associate Commissioner Regional Administrator 
Regional Operations Arlington 012-5 
State Office E-303 

DATE: May 27, 1992 
  

Please find below our revised six month plan for EPSDT 
outreach in West Dallas. 

The targeted population will be identified by MAPPER runs of 
all medicaid recipients in the six West Dallas zip codes. In 
an effort to effectively reach this population, we plan to do 
the following: 

1. OUTREACH 

Oo Send a special outreach letter to the target group 
letting them know that they appear to be "at risk". 

o At each interview, eligibility and employment staff 
will emphasize the importance of EPSDT. 

o EPSDT Outreach Posters will be displayed in public 
places, such as area leasing offices, washaterias, etc. 

o Community leaders, schools, clubs, recreation centers, 
and churches will be contacted to encourage positive 
client response. 

2. SUPPORT SERVICES AND ASSISTANCE 

Oo On the outreach letters we will list the number of 
medical transportation and the name and telephone 
number of the two clerks if the client needs assistance 
with scheduling transportation. 

o The local Medical Transportation staff will be informed 
of this project and their cooperation with this effort 
will be enlisted. 

AN EQUAL OPPORTUNITY EMPLOVYER 

 



3. SCHEDULING ASSISTANCE AND FOLLOW-UP 

  

o Two clerks will be assigned to this project to provide 

scheduling assistance for the clients in this target 

area. When the EPSDT screens are scheduled, the clerks 

will notify the medical provider that the scheduled 

client is considered to be "at risk" and that a lead 

screening is mandatory. The clerks will remind the 

providers to mark the blood specimen "at risk." 

o A special letter will be sent out to the medicaid 

providers regarding this special project and the need 

for them to complete a lead screen for the clients who 

live in this target area. The specific instructions 

regarding the marking of the blood specimen, for 

special handling by the Department of Health 

laboratory, will be outlined in this letter. 

o The Family Health Services nurses will ensure that 

follow-up treatment is initiated within 30 days, for 

any child identified as having any medical problems. 

4, HEALTH FAIR 

o A health fair will be planned to provide clients the 

opportunity to get their EPSDT screens. The health 

fair is optional for the clients. They will also have 

the right to choose a provider of choice from the list 

of participating EPSDT medical screening providers. 

The Health Department, Dallas County Community 

Outpatient Primary Health Clinic, and individual 

providers will be invited to participate in the health 

Fair. 

In addition, we will continue to do our regular outreach. 

In order to accomplish the above, we will need two additional 

nurses and two additional clerks. If we get this additional 

staff, we believe the above plan can be carried out within the 

next six months, and that it will be effective in outreaching 

the fargeted population.       

   

further information, please let me know. 

ator ; 
CLIENT SELF-SUPPORT SERVICES 

REGIONAL OPERATIONS 

012-5RECEIVED 

  

cc: linda Franco, 

JUN 021992 

TEXAS DEPT. OF HUMAN SERVICES 
AUSTIN, TEXAS 

 



  

MEMORANDUM 
TEXAS DEPARTMENT OF HUMAN SERVICES*REGIONAL OPERATIONS 

SUBJECT: Six Month EPSDT Outreach Plan 

TO: 

FROM: 

DATE: 

Jerome Lindsay 
Regional Administrator 
Arlington 012-5 

Ronald G. Black 

Associate Commissioner 

Regional Operations 
State Office E-303 

May 20, 1992 

  

In order to effectively carry out targeted outreach and meet the plaintiff's expectations, | am asking that you 
incorporate the following additional activities and assurances into your plan: 

Individual outreach to medicaid eligible clients living in the six west Dallas zip codes. 

Offer and provision of assistance with transportation if needed. 

Provision of scheduling assistance for all clients. As discussed in the April 7, 1992 conference call, 
scheduling assistance will be required to assure that the medical screening provider knows the client 
is considered "at risk" and that a lead screening is therefore mandatory. Secondly, that the provider 
receives specific instructions to mark the patients’ blood specimen “at risk" so that the Department 
of Health laboratory can identify these specimens for special handling. Arrangements have been 
made with the lab for these specimens to be analyzed on equipment that will measure lead down 
to the sensitivity levels currently being recommended by the Centers for Disease Control. The 
necessary equipment to analyze all specimens at these levels for all EPSDT clients is on order, but 
will not be in place for several months. 

The health fair sounds like a good idea, however, clients will also have to be given the option of 
choosing a provider of choice from the list of participating EPSDT medical screening providers. 

Please fax me a response by close of business May 22, 1992 stating whether the region can fulfill these 
additional activities—along with those in your May 6, 1992 memo--by October 30, 1992. 

Ronald G. Black 

RGB:sm 

C: Lonnie Duke 

Linda Franco 

Bridget Cook 
Lee Van Burkieo 

 



   
  

  

\ inieahda Vi 
TEXAS DEPARTMENT OF HUMAN SERVICES ge 

EPSDT Outreach in West Dallas Ay 

TO: FROM: A FTE SO AM 
fi F Frets fen = 

    

SUBJECT: 

Ronald G. Black Jerome A. Lindeay 

Associate Commissioner Regional Administrator 

Regional Operations Region 05 

State Office - E-303 Arlington - 012-5 

DATE: May 6, 1992 
  

Please find below our six month plan for EPSDT outreach in 

West Dallas. 

The targeted population will be identified by MAPPER runs of 
all medicaid recipients in zip codes served by the West Dallas 

Office. 

In order to effectively reach this population we plan to do 

the following: 

* At each interview, eligibility and employment staff will 
emphasize the importance of EPSDT. 

* EPSDT Outreach Posters will be displayed in public places, 
such as area leasing offices, washaterias, etc. 

* Community leaders, schools, clubs, recreation centers, and 
churches will be contacted to encourage pesitive client 

response. 

* The Health Department, Dallas County Community Outpatient 
Primary Health Clinic, and individual providers will parti- 
cipate in a health fair. 

In addition, we will continue to do our regular outreach. 

The Family Health Services nurses will ensure that follow up 
treatment is initiated within 30 days, for any child 
identified as having any medical problems. 

AN EQUAL OPPORTUNITY EMPLOYER 

 



In order to accomplish the above, we will need two additional 

nurses and two additional clerks. If we get this additional 

staff, we : ove plan can be carried out within the 
next six months, and that it will be effective in outreaching 
the targeted population. 

  

  

  

If you need further information, please let me know. 

   
    

  

. Lindsay 
ional \Administrator 

Linda Franco 

T5 This jw Add709 75 $7orF Agprived on yyy, ? 
    

Jrerore cad no, Zhe, sels Pine OT 

Two Nniw & Lao clients, pot Ht fon clehy 

merdionel om boa tir of 1fiof?2 - I = 

Aras ipa Ces gry. 

oe 

 



  

MIE MORAND® M 
TEXAS DEPARTMENT OF HUMAN SERVICES*REGIONAL OPERATIONS 

SUBJECT: EPSDT Outreach in West Dallas 

Response Due May 6, 1992 

TO: Jerome Lindsay 
Regional Administrator 

Arlington 012-5 

FROM: Ronald G. Black 

Associate Commissioner 
Regional Operations 
State Office E-303 

DATE: April 28, 1992 

  

Please hire the additional staff required to do the West Dallas outreach. It appears that 
sufficient lapse exists in your CSS-Eligibility budget to cover this fiscal year. If additional 
funds are needed in FY 93 this will be arranged in State Office. You may want to use 
temporary employment agency staff in order to get the outreach in motion by the first part 
of May. Please do not use the same temporary staff longer than four months. 

Lonnie Duke advises that we can not spread the outreach over a one-year period. Please 
provide a six-month plan to me by May 6, 1992. Your plan needs to include how the 
targeted outreach population will be identified (e.g., current and prior medicaid recipients); 
the targeted outreach methods that will be used to assure a positive client response (letters, 

phone calls, community groups, media, etc.); and when specific portions of the population 
will be outreached (e.g., by zip code, so many per month, alphabetically, etc.). The plan 
needs to provide for completion of the follow-up diagnosis and initiation of treatment within 
30 days of the screen. In some cases, overall treatment completion might occur outside the 
six month period if the initial screening was completed toward the end of the six months. 
The plan will be part of the proposal which will go to the plaintiffs. 

Please contact Lee Van Burkleo if you have any questions. Bridget Cook is available to 
assist staff with technical questions. 

or (Fel) 
Rdnald G. Black 

RGB:pjf 

c: Bridget Cook Y-927 
Lonnie Duke W-615 

Linda Franco 012-5 

Lee Van Burkleo E-303 

 



  

EXHIBIT F 

 



Texas & 
Department 

Human®Services 
INTERIM erbsth 
COMMISSIONER BOARD MEMBERS 

Burton F. Raiford Cassandra C. Carr 

Chairman, Austin 

David Herndon 
Vice Chairman, Austin 

July 9, 1992 Bob Geyer 
El Paso 

Yava D. Scott 

Houston 
3 : 

Paula S. Gomez Susan Finkelstein Brownsville 
Attorney at Law Karen M. Heltzel 
Texas Rural Legal Aid, Inc. Dallas 
405 North St. Mary's Street, Suite 910 
San Antonio, TX 78205 

Dear Ms. Finkelstein: 

This is in response to your Open Records Act request of May 26, 
1992, regarding lead blood screening in children and receipt of 
your reimbursement of $15.70 for same. 

Request 
Studies that the Department has reviewed concerning blood lead 
levels in children in Texas. 

Response 
  

To my knowledge, the Department has not reviewed any studies 
related to your request. 

Request 
Description of the Department's arrangements with the Texas 
Department of Health (TDH) concerning blood lead testing, i.e., 
whereby TDH provides laboratory supplies to health care providers, 
conducts testing, and reports test results to health care 
providers. 

Response 

See the enclosed booklet entitled Laboratory Screening Services. 
This document is in the process of being updated to reflect changes 
since 1985. 

  

Y aie 

Request 
The Department's proposals, whether implemented or not, for the 
past five fiscal years concerning testing and treatment of lead 
blood poisoning in children in Texas. 

Response 
  

The Department has made no such proposals. 

John H. Winters Human Services Center ® 701 West 51st Street 
Central Office Mailing Address P.O. Box 149030 e Austin, Texas 78714-9030 

Telephone (512) 450-3011 « Call your local DHS office for assistance. 

% 3 Os  



  

Susan Finkelstein 
July 9, 1992 
Page 2 

Request 

For Texas and for each county in Texas, the number of lead blood 
screens performed on children for the past five fiscal years. 

Response 

We have this data available only on an aggregated state level from 
fiscal year 1990 to date. To obtain a more detailed level of data 
would involve a recipient-by-providers manual compilation and such 
a task is prohibitive for us to perform. The data (see attachment 
on Lead Blood Tests) presented are for both erythrocyte 
protoporphyrin (EP) tests and lead tests. Those with abnormal EP 
test results receive lead tests; therefore, both totals are shown 
for FY '90, FY '91, and year-to-date FY '92. 

Request 

For Texas and for each county in Texas, the number of children who 
have received follow-up treatment for lead blood poisoning. If 
possible, please include information about the type of treatment 
received. 

Response 
  

At present, the Department does not have an automated program to 
provide the information requested. 

Request 

Copies of all HCFA Form 416s prepared since the April/September 
1990 Form. 

Response   

Enclosed April 1 - September 30, 1990, and October 1, 1990 - 
September 30, 1991. 

Sincerely, 

lll. KL 
Donald L. Kelley, M.D., F.A.C. 
State Medicaid Director 

MAP     

DLK: srs 

Enclosures 

 



   

  

DEPARTMENT OF HEALTH AND HUMAN SERVICES 
HEALTH CARE FINANCING ADMINISTRATION 

Form Approved 
OMB No. 0938-0291 

  

  

ANNUAL EPSOT PARTICIPATION REPORT 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

              

Age Groups 

State TEXAS FY 1990 * Cat. 
Total <1 1-5 6-14 15-20 

CN 764,937 94,726 304,087 254,697 111,427 

1. Number of individuals eligible for EPSDT: MM 35,014 2,533 9,658 17,814 5,009 

Total 799,951 97,259 313,745 272,511 116,436 

CN 0 0 0 0 0 
2. Number of eligibles 

enrolled in continuing MN 0 0 0 0 0 

care arrangements: 
Total 0 0 0 0 0 

CN 79,773 29,774 37,850 10, 144 2,005 
3. Number of eligibles 

receiving screening WH 3,455 864 1,510 Phk 137 

services: 
Total 83,228 30,638 39,360 11,088 2,142 

4. Total number of eligibles CN 79,773 29,774 37,850 10,144 2,005 

provided child health MN 3,455 854 1,510 944 137 
screening supervision L L 

(Line 2 + Line 3): Total 83,228 30,638 39,360 11,088 2,142 

CN 10.43% 31.43% 12.45% 3.98% 1.80% 

5. PARTICIPANT RATIO 
(Line & + Lire: wy 9.87% 34.11% 15.63% 5.30% 2.74% 

Total 10.40% 31.50% 12.55% 4.07% 1.84% 

CN 96,036 41,514 42,270 10,228 2,024 

6. Total number of screening MN 3,985 1,265 1,628 954 138 
(examination) services: 

Total 100,021 42,779 43,898 11,182 2,162 

CN 12.55% 43.83% 13.90% 4.02% 1.82% 

7. SCREENING RATIO 
(Line 6 + Line 1) MN 11.38% 49.94% 16.86% 5.36% 2.76% 

Total 12.50% 43.98% 13.99% 4.10% 1.86% 

CN 34,455 - 11,252 17,555 4,704 944 
8. Number of eligibles 

referred for corrective: MN 1,539 342 691 439 67 
treatment: 

Total 35,994 11,5%4 18,248 5,143 1,011 

CN 63,798 2,339 11,582 33,744 16,133 

9. Number of eligibles 
receiving vision services: 4,892 81 61s 3,173 1,020 

Total 68,690 2,420 12,200 36,917 17,153 

oN 71,387 11 17,555 40,505 13,216 
10. Number of eligibles 

receiving preventive Wa 6,182 15 1,154 4,153 860 
dental services: 

Total 77,569 126 18,709 44,658 14,076 

CN 29,310 3,507 15,230 7,892 2,681 

11. Number of eligibles 
receiving hearing services: a 1,580 153 6% 626 122 

Total 30,890 3,640 15,929 8,518 2,803 
  

Form HCFA-416 (5-90) 
NOTE: ucx“Categorically Needy, "MN"— Medically Needy 

* April 1 - September 30, 1990 revised 06/07/91 

 



  

DEPARTMENT OF HEALTH AND HUMAN SERVICES 
Form Approved 

HEALTH CARE FINANCING ADMINISTRATION 
OMB No. 0938-0291 

ANNUAL EPSDT PARTICIPATION REPORT 

   

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

              

| Age Groups 

State _Texas FY 19.91 * Cat. 
Total <1 1-9 6-14 15-20 

CN 999,309 126,074 418,925 322,165 132,145 

1. Number of individuals 
eligible for EPSDT: MM 30,467 976 4,964 19,012 5,515 

Total 1,029,776 127,050 423,889 341,177 137,660 

CN 0 0 0 0 0 

2. Number of eligibles 

enrolled fn continuing MN 0 0 0 0 0 

care arrangements: 
Total 0 0 0 0 0 

CN 179,340 $4,240 99,265 22,003 3,832 

3. Number of eligibles 
receiving screening MN 4,476 S77 1,936 1,667 296 

services: 
Total 183,816 54,817 101,201 23,670 4,128 

4. Total number of eligibles CN 179,340 54,240 99,265 22,003 3,832 

provided child health MN 4,476 577 1,936 1,667 296 
screening supervision 

- 

(Line 2 + Line 3): Total | 183,816 54,817 101,201 23,670 4,128 

CN. 17.9% 43% 23.7% 6.83% 2.9% 

§. PARTICIPANT RATIO 
‘Line 4+ Line MN 164.7% 59.1% 39% 8.77% 5.37% 

Total 17.85% 43.15% 23.87% 6.96% 3% 

CN 335,701 167,965 140,327 23,317 4,092 

6. Total number of screening MN 5,792 | 1,066 2,762 1,686 298 
(examination) services: 

Total 341,493 169,031 143,069 25,003 4,390 

CN 33.6% 133.2% 33.5% 7.26% 3.1% 

7. SCREENING RATIO 
ire 6.¢ Line 1) MN 19% 109.2% 55.2% 8.87% 5.4% 

Total 33.2% 133% 33.75% 7.31% 3.2% 

CN 81,704 | 20,728 47,993 10,993 1,990 
8. Number of eligibles 

referred for corrective . MN 2,180 266 974 807 153 

treatment: - 

: Total 83,884 20,974 48,967 11,800 2,143 

CN 141,548 2,901 25,034 78,218 35,395 

9. Number of eligibles MN 11,245 39 679 7,978 2,549 
receiving vision services: 

Total 152,793 2,940 5,713 86,196 37,944 

CN 159,607 [7] 42,582 88,917 28,062 - 

10. Number of eligibles 
receiving preventive . MN 12,407 1 1,190 9,070 2,146 

dental services: : 
Total 172,014 47 43,772 97,987 30,208 

CN 68,016 5,060 39,375 18,246 S. 333 

11. Number of eligibles MN 2,651 72 856 1,454 269 
receiving hearing services: 

Total 70,667 5,132 40,231 19,700 5,606 
  

Form HCFA-416 (5-90) 
NOTE: "CN"-Categorically Needy, “MN"- Medically Needy 

 



  

  

LEAD BLOOD TESTS* 
  

  

  

              

Fiscal Year EP Lead Elevated Lead Level 

'90 16,520 2,413 78 

'91 25,010 4,158 70 

'92 42,731 7,696 137 

*Tests based on specimens submitted during EPSDT medical 
screenings. 

Texas Department of Human Services 
EPSDT Services, Policy and Program Development 

prepared 6/10/92 

 



  

EXHIBIT G 

 



State Medicaid Manual 
Part 5 - Early and Periodic Screening 
Diagnosis, and Treatment (EPSDT) 
HCFA Pub 45-5 
09-92 
Rev. 5 
Retrieval Title: RS5.SM5 

REVISED MATERIAL REVISED PAGES REPLACED PAGES 
  

  

Sec. 5123.2 (Cont.)5-13 ~- 5-16.1 (5 pp.) 5-13 =- 5-16 (4 pp.) 

CHANGED IMPLEMENTING INSTRUCTIONS--EFFECTIVE DATE: 09/19/92 

Section 5123.2, Screening Service Content.--Part D of this 

section, Appropriate Laboratory Tests, has been revised to update 

HCFA policies and provide guidance to States for lead toxicity 

screening through the Early and Periodic Screening, Diagnosis and 

Treatment (EPSDT) program after considering the October 1991 
statement of the Centers for Disease Control (CDC), Public Health 

Service, Preventing Lead Poisoning in Young Children. The CDC 

statement lowered the blood lead level threshold at which followup 

and iriterventions are recommended for children from 25 micrograms 

per deciliter (ug/dL) of whole blood to 10 ug/dL. 

  

  

Given the current state of the art of lead poisoning-related 

technology instrumentation and the limitations in resources 

available to States for lead poisoning prevention and treatment 

efforts, HCFA is issuing this first phase of guidance. In many 

States, the public health agency is leading the effort to 

implement the new CDC guidelines. HCFA intends to provide enough 

flexibility in the screening guidelines to allow State Medicaid 

agencies to function within the overall plan of their State health 

department. ) 

While HCFA wants to stress that blood lead testing is the 
screening test of choice, HCFA acknowledges.that it will take some 
time for States to make a transition to blood lead testing. The 
erythrocyte protoporphyrin (EP) test is not sensitive for blood 
lead levels below 25 ug/dL. However, HCFA recognizes that the 
capacity may not exist in every community for analyzing blood lead 
for every Medicaid eligible child. States continue to have the 
option to use the EP test as the initial screening blood test. 
However, elevated EP tests must be confirmed with a blood lead 
test. Additionally, while HCFA recommends venous blood lead 
tests, HCFA understands the hesitation of some practitioners to 
perform venous blood tests on small children. In these 
circumstances, a capillary specimen may be used for the initial 
blood lead test to be followed, if necessary, with a venous blood 
lead test. HCFA will consider guidelines for a next phase based 
on State or community laboratory testing capacities and any 
further revisions to CDC's statement.  



  

A change has been made to Part C, Appropriate Immunizations, by 

listing two additional immunizations which should be provided when 
medically necessary and appropriate. 

 



  

EARLY AND PERIODIC SCREENING, 

09-92 DIAGNOSTIC AND TREATMENT SERVICES 5123.2 (Cont.) 
  

o In screening for developmental assessment, the 

examiner incorporates and reviews this information in conjunction 

with other information gathered during the physical examination 

and makes an objective professional judgement whether the child 

is within the expected ranges. Review developmental progress, not 

in isolation, but as a component of overall health and well-being, 

given the child's age and culture. : 

o Developmental assessment should be culturally 

sensitive and valid. Do not dismiss or excuse improperly 

potential problems on grounds of culturally appropriate behavior. 

Do not initiate referrals improperly for factors associated with 

cultural heritage. 

o Programs should not result in a label or 

premature diagnosis of a child. Providers should report only that 

a condition was referred or that a type of diagnostic or treatment 

service is needed. Results of initial screening should not be 

accepted as conclusions and do not represent a diagnosis. 

o Refer to appropriate child development resources 

for additional assessment, diagnosis, treatment or follow-up when 

concerns or questions remain after the screening process. 

2. Assessment of Nutritional Status.--This is accomplished 

in the basic examination through: 
  

o Questions about dietary practices to identify unusual 

eating habits (such as pica or extended use of bottle feedings) 

or diets which are deficient or excessive in one or more 

nutrients. 

0 A complete physical examination including an oral 

dental examination. Pay special attention to such general features 

as pallor, apathy and irritability. 

o Accurate measurements of height and weight are among 

the most important indices of nutritional status. 

o A laboratory test to screen for iron deficiency. 

HCFA and PHS recommend that the erythrocyte protoporphyrin (EP). 

test be utilized when possible for children ages 1-5. It is a 

simple, cost effective tool for screening for iron deficiency. 

Where the EP test is not available, use hemoglobin concentration 

or hematocrit. 

o If feasible, screen children over 1 year of age for 

serum cholesterol determination, especially those with a family 

history of heart disease and/or hypertension and stroke. 

 



  

If information suggests dietary inadequacy, obesity or other 
nutritional problems, further assessment is indicated, including: 

o Family, socioeconomic or any community factors, 

Rev. 5 5 13 

 



  

EARLY AND PERIODIC SCREENING, 

5123.2 (Cont.) DIAGNOSTIC AND TREATMENT SERVICES 09-92 
  

o Determining quality and quantity of individual diets 

(e.g., dietary intake, food acceptance, meal patterns, methods of 

food preparation and preservation, and utilization of food 

assistance programs), ; 

o Further physical and laboratory examinations, and 

o Preventive, treatment and follow-up services, 

including dietary counseling and nutrition education. 

B. Comprehensive Unclothed Physical Examination: --This 

includes the following: 
  

1. Physical Growth.--Record and compare the child's height 
  

and weight with those considered normal for that age. (In the 

first year of life, head circumference measurements are 

important). Use a graphic recording sheet to chart height and 

weight over time. 

2. Unclothed Physical Inspection.--Check the general 

appearance of the child to determine overall health status. This 

process can pick up obvious physical defects, including orthopedic 

disorders, hernia, skin disease, and genital abnormalities. 

Physical inspection includes an examination of all organ systems 

such as pulmonary, cardiac, and gastrointestinal. 

  

C. Appropriate Immunizations.--Assess whether the child has 

been immunized against diphtheria, pertussis, - tetanus, polio, 

measles, rubella, mumps, Haemophilus b Conjugate (HIB) and 

hepatitis B and whether booster shots are needed. The child's 

immunization record should be available to the provider. When an 

immunization or an updating is medically necessary and 

appropriate, provide it and so inform the child's health 

supervision provider. 

  

Provide immunizations as recommended by the American Academy of 

Pediatrics (AAP) and/or local health departments. 

D. 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. Physicians providing screening/assessment 

services under the EPSDT program use their medical judgement in 

determining the applicability of the laboratory tests or analyses 

to be performed. If any laboratory tests or analyses are medically 

contraindicated at the time of screening/assessment, provide them 

when no longer medically contraindicated. As appropriate, conduct 

the following laboratory tests: 

  

1. Lead Toxicity Screening.--All children ages 6 months to 
  

 



  

  

72 months are considered at risk and must be screened for lead 

poisoning. Complete lead screening consists of both a verbal risk 

assessment and blood test(s). Each State establishes its own 

periodicity schedule after consultation with medical organizations 

involved in child health. These periodicity schedules and any 

other associated office visits must be used as an opportunity for 

anticipatory guidance and risk assessment for lead poisoning. As 

part of the nutritional assessment conducted at each periodic 

screening, an EP blood test may be done to test for iron 

deficiency. This blood test may also be used as the initial 

screening blood test for lead toxicity. 

a. Risk Assessment. All children from 6 to 72 months 

of age are considered at risk and must be screened, unless it can 

be shown that the community in which the children live does not 

have a childhood lead poisoning problem. Only an official State 

or local health authority can declare that a 

  

5-14 
Rev. 5 

 



  

EARLY AND PERIODIC SCREENING, 

09-92 DIAGNOSTIC AND TREATMENT SERVICES 5123.2 

(Cont.) 
  

geographic community, or part of a community, does not have a 

problem. However, all children moving into a "lead-free 

community" must be screened. Regardless of their risk, all 

families must be given detailed lead poisoning prevention 

counselling as part of the anticipatory guidance during the 

screening visit. : 

Beginning at six months of age and at each visit thereafter, the 

provider must discuss with the child's parent or guardian 

childhood lead poisoning interventions and assess the child's risk 

for exposure. Ask the following types of questions at a minimum. 

o Does your child live in or regularly visit an old house 

built before 19607 Was your child's day care 

center/preschool/babysitter's home built before 1960? Does the 

house have peeling or chipping paint? 

o Does your child live in a house built before 1960 with 

recent, ongoing or planned renovation or remodeling? 

o Have any of your children or their playmates had lead 

poisoning? : 

o Does your child frequently come in contact with an adult 

who works with lead? Examples are construction, welding, pottery, 

or other trades practiced in your community. 

o Does your child live near a lead smelter, battery recycling 

plant, or other industry likely to release lead such as (give 

examples in your community)? 

o Do you give your child any home or folk remedies which may 

contain lead? 

o Does your child live near a heavily travelled major highway 

where soil and dust may be contaminated with lead? 

o Does your home's plumbing have lead pipes or copper with 

lead solder joints? 

Ask any additional questions that may be specific to situatiohs 

which exist in a particular community. . 

b. Determining Risk.--Risk 1s determined from thé 

response to the questions which your State requires for verbal 

risk assessment. 

  

o If the answers to all questions are negative, a child is 

considered low risk for high doses of lead exposure, but must 
   



  

  

receive blood lead screening by EP or blood lead test at 12 months 

of age. 

o If the answer to any question is positive, a child {is 

considered high risk for high doses of lead exposure. A blood 

lead test must be obtained at the time a child is determined to 

be high risk. 

  

Subsequent verbal risk assessments can change a child's risk 

category. Any information suggesting increased lead exposure for 

previously low risk children must be followed up with a blood lead 

test. 

Rev. 5 : 5-15 

 



  

  

EARLY AND PERIODIC SCREENING, 

5123.2 (Cont.) DIAGNOSTIC AND TREATMENT SERVICES 09-92 
  

C. Screening Blood Tests.--The term screening blood 

tests refers to blood tests for children who have not previously 

been tested for lead with either the EP or blood lead test or who 

have been previously tested and found not to have an elevated EP 

or blood lead level. If a child is determined by the verbal risk 

assessment to be at: 

  

(1) Low Risk.--A screening EP test or a blood lead 

test is required at 12 months and a second EP test or a blood lead 

test at 24 months. : 

  

(2) High Risk.--A blood lead test is required when 

a child is identified as being high risk, beginning at six months 

of age. If the initial blood lead test results are less than (<) 

10 micrograms per deciliter (ug/dL), a screening EP test or blood 

lead test is required at every visit prescribed in your EPSDT 

periodicity schedule through 72 months of age. 

  

If a child between the ages of 24 months and 72 months has not 

received a screening blood test, then that child must receive it 

immediately, regardless of being determined at low or high risk. 

An elevated EP test must be confirmed with a blood lead test. A 

blood lead test result equal to or greater than (>) 10 ug/dL 

obtained by capillary specimen (fingerstick) must be confirmed 

using a venous blood sample. 

d. Diagnosis, Treatment and Follow-up.--If a child is 

found to have blood lead levels equal to or >10 ug/dL, providers 

are to use their professional judgment, with reference to CDC 

guidelines covering patient management and treatment, including 

follow up blood tests and initiating investigations to the source 

of lead, where indicated. Determining the source of lead may be 

reimbursable by Medicaid. 

  

e. Coordination With Other Agencies. Coordination with 

WIC, Head Start, and other private and public resources enables 

elimination of duplicate testing and ensure comprehensive 

diagnosis and treatment. Also, public health agencies' Childhood 

Lead Poisoning Prevention Programs may be available. These 

  

agencies may have the authority and ability to investigate a lead- 

poisoned child's environment and to require remediation. 

2. Anemia Test.--The most easily administered test for 

anemia is a microhematocrit determination from venous blood or a 

fingerstick. 

  

3. sickle Cell Test.--Diagnosis for sickle cell trait may 
  

be done with sickle cell preparation or a hemoglobin solubility 

test. If a child has been properly tested once for sickle cell 

 



  

EARLY AND PERIODIC SCREENING, 

09-92 DIAGNOSTIC AND TREATMENT SERVICES s123.2 

(Cont. 
  

(or guardians) and children is required and is designed to assist 

in understanding what to expect in terms of . the child's 

development and to provide information about the benefits of 

healthy lifestyles and practices as well as accident and disease 

prevention. 

F. Vision and Hearing Screens.--Vision and hearing services 

are subject to their own periodicity schedules (as described in 

§5140). However, where the periodicity schedules coincide with 

the schedule for screening services (defined in §5122A), you may 

include vision and hearing screens as a part of the required 

minimum screening services. 

  

1. Appropriate Vision Screen.--Administer an age- 

appropriate vision assessment. Consultation by ophthalmologists 

and optometrists can help determine the type of procedures to use 

and the criteria for determining when a child is referred for 

diagnostic examination. 

  

2. Appropriate Hearing Screen.--Administer an age- 

appropriate hearing assessment. Obtain consultation and suitable 

procedures for screening and methods of administering them from 

audiologists, or from State health or education departments. 

  

G. Dental Screening Services.--Although an oral screening may 

be part of a physical examination, it does not substitute for 

examination through direct referral to a dentist. A direct dental 

referral is required for every child in accordance with your 

periodicity schedule and at other intervals as medically 

necessary. Prior to enactment of OBRA 1989, HCFA in consultation 

with the American Dental Association, the American Academy of 

Pediatrics and the American Academy of Family Practice, among 

other organizations, required direct referral to a dentist 

beginning at age 3 or at an earlier age if determined medically 

necessary. The law as amended by OBRA 1989 requires that dental 

services (including initial direct referral to a dentist) conform 

to your periodicity schedule which must be established after 

consultation with recognized dental organizations involved in 

child health care. 

  

Especially in older children, the periodicity schedule for dental. 

examinations is not governed by the schedule for medical 

examinations. Dental examinations of older children should occur 

with greater frequency than is the case with physical 

examinations. The referral must be for an encounter with a 

dentist, or a professional dental hygienist under the supervision 

of a dentist, for diagnosis and treatment. However, where any 

screening, even as early as the neonatal examination, indicates 

that dental services are needed at an earlier age, provide the 

 



  

needed dental services. 

The requirement of a direct referral to a dentist can be met in 

settings other than a dentist's office. The necessary element is 

that the child be examined by a dentist or other dental 

professional under the supervision of a dentist. In an area where 
dentists are scarce or not easy to reach, dental examinations in 

a clinic or group setting may make the service more appealing to 

recipients while meeting the dental periodicity schedule. 4 

continuing care providers have dentists on their staff, the direct 

referral . to a dentist requirement is met. Dental 

paraprofessionals under direct supervision of a dentist may 

perform routine services when in compliance with State practice 

acts. 

Determine whether the screening provider or the agency does the 

direct referral to a dentist. You are ultimately responsible for. 

assuring that the direct referral is made and that the child gets 

to the dentist's office in a timely manner. ; bs 

Rev. 5 8-16.1 

 



  

# # 

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, 
No. 3-92 CV 1539-R 

Civil Action 

Plaintiffs, 

Class Action 

Vv. 

BURTON F. RAIFORD, in his capacity 

as Commissioner of the Texas Department 

of Human Services, 

and 

THE UNITED STATES OF AMERICA, 

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Defendants. 

ORDER DENYING PLAINTIFFS’ MOTION FOR INTERIM ATTORNEY'S FEES 
  

Before the Court is Plaintiffs’ Motion for Interim Attorney's Fees and Defendant's 

Response to Motion for Interim Attorney's Fees. After consideration, the Court is of the 

opinion that Plaintiff’s motion should be denied. 

It is therefore ordered that Plaintiffs Motion for Interim Attorney’s Fees is denied. 

SIGNED this the day of 1993. 

  

UNITED STATES DISTRICT JUDGE