Plaintiffs' Second Amended Complaint with Certificate of Service

    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 

Plaintiffs Civil Action 

VV. Class Action 

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. 

PLAINTIFFS’ SECOND AMENDED COMPLAINT 
  

1. The U.S.A. knows that hundreds of thousands of poor, 

minority children in this country have lead poisoning. Despite 

this knowledge, the U.S.A. continues to sanction, support, and 

finance, through the Medicaid-EPSDT program, a futile screening 

program for lead poisoning that is based on a useless, scientifi- 

cally and medically discredited test [Erythrocyte Protoporhin 

(EP) test]. The U.S.A.’s actions have left and will leave these 

children without treatment because the poisoning has not been and 

will not be diagnosed. The state defendant, at the instance of 

the U.S.A. and with the financial support of the U.S.A., leaves 

tens of thousands of poor, minority children with lead poisoning 

undiagnosed and untreated under his Medicaid-EPSDT program. This 

suit seeks diagnosis and treatment for these children of our 

1 

 



  

country and our state. 

2... .This Court has jurisdiction under 28 U.S5.C. $8 1331 and 

1343. This suit seeks relief for defendants’ violation of the 

Medicaid Act, 42 U.S.C. §$ 1396d{(r) pursuant to the "and laws" 

provision of 42 U.S.C. '§ 1983 and 5 U.85.C. § 702. 

Parties 

3. Plaintiff TAYLOR KEONDRA DIXON is seven months old. 

Plaintiff ZACHERY X. WILLIAMS is three and a half years old. 

Plaintiff CALVIN A. THOMPSON is three years old. Plaintiff 

PRENTISS LAVELL MULLINS is one and a half years old. All plain- 

tiffs are African-American residents of West Dallas, Texas and 

are eligible for Medicaid under the federal Medicaid Act. 

Plaintiffs are entitled to lead-blood assessments and treatment 

through the Texas EPSDT program but have been denied adequate 

testing and treatment because of the failure of TDHS and the 

U.S.A. to implement proper blood lead testing and treatment. 

Plaintiffs appear in this action through their grandmother and 

next friend, LOIS THOMPSON, an African-American resident of West 

Dallas. 

4. Defendant BURTON F. RAIFORD is the Commissioner of the 

TEXAS DEPARTMENT OF HUMAN SERVICES (TDHS), a state agency charged 

with the implementation of the Texas Medicaid program, including 

the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) 

for children under age 21, and an agency which has received 

federal funds. 

5. The UNITED STATES OF AMERICA [USA] is a defendant because 

 



  

of the actions of the U.S. Department of Health and Human Servic- 

es [HHS] and the Health Care Financing Administration [HCFA], a 

division of HHS, in the administration of the Early Periodic 

Screening, Diagnostic, and Treatment program under the Medicaid 

Act, 42. U.8.C..'S 1396d(r). 

Class Action allegations against Raiford 
  

6. Plaintiffs represent a class of all Medicaid-eligible 

children presently residing in the State of Texas. 

7. There are and have been more than several thousand 

children residents of the State of Texas who are eligible for 

Medicaid and defendant Raiford’s EPSDT program. As of 1991 there 

were at least 768,163 total Medicaid eligible children in the 

State of Texas. The class of all these persons is so numerous 

that joinder of all these persons is impractical. 

8. Plaintiffs’ allegations that defendant Raiford has 

violated the federal Medicaid Act involves questions of law and 

fact common to the class. 

9. The basic factual and legal assertions upon which 

plaintiffs’ claims are based are identical to the basic factual 

and legal assertions of the claim on behalf of the class. 

Plaintiffs’ claims are typical of the claims and defenses of the 

class. 

10. There is no conflict between the plaintiffs de the 

class. Plaintiffs seek the same injunctive relief on their own 

behalf as is sought on behalf of the class. Plaintiffs and the 

class are represented by competent counsel. Plaintiffs will 

 



adequately represent the interests of the class. 

11. Defendant Raiford’s actions and inactions which are the 

subject of the suit greatly affect the children of the State of 

Texas due to the problem of childhood lead poisoning. These are 

grounds which are generally applicable to the class thus making 

appropriate final injunctive relief with respect to the class as 

a whole. 

Class action allegations against the USA 
  

12. Plaintiffs represent a class of all Medicaid-eligible 

children presently residing in the United States of America. 

13. There are and have been more than several million 

children residents of the United States who are eligible for 

Medicaid and the USA’s EPSDT program. As of 1989 there were 10 

million total Medicaid-EPSDT eligible children in the country. 

"EPSDT is a comprehensive prevention and treatment program 

available to Medicaid-eligible persons under 21 years of age. In 

1989, of the 10 million eligible persons, more than 4 million 

received initial or periodic screening health 

examinations. ..Screening services, defined by statute, must 

include a blood lead assessment ‘where age and risk factors 

indicate it is medically appropriate.’." HHS, "Strategic Plan For 

The Elimination of Childhood Lead Poisoning", February 1991, page 

18. The class of all these persons is so numerous that joinder 

of all these persons is impractical. 

14. Plaintiffs’ allegations that the federal defendant has 

violated the federal Medicaid Act involves questions of law and  



  

» 

fact common to the class. 

15. The basic factual and legal assertions upon which 

plaintiffs’ claims are based are identical to the basic factual 

and legal assertions of the claim on behalf of the class. 

Plaintiffs’ claims are typical of the claims and defenses of the 

class. 

16. There is no conflict between the plaintiffs and the 

class. Plaintiffs seek the same injunctive relief on their own 

behalf as is sought on behalf of the class. Plaintiffs and the 

class are represented by competent counsel. Plaintiffs will 

adequately represent the interests of the class. 

17. The defendant U.S.A.’s actions and inactions which are 

the subject of the suit greatly affect the poor children of the 

United States of America due to the problem of childhood lead 

poisoning. These are grounds which are generally applicable to 

the class thus making appropriate final injunctive relief with 

respect to the class as a whole. 

Facts 

West Dallas 
  

18. The West Dallas hazardous substance emergency clean-up 

site defined by the U.S. Environmental Protection Agency includes 

ten census tracts: 43, 69, 101.01, 101.02, 102, 103, 104, 105, 

106,:107.01. 

19. The 1990 U.S. Census population of this area is: total 

population = 32,762, black population = 12,484 (38.11%), hispanic 

population = 17,278 (52.74%). Children under 5 years of age make 

 



  

up 10% of the population. 

20. The number of households with income below the poverty 

level exceeds 30% in all 10 census tracts. 

21. At least 1,000 children in West Dallas qualify for EPSDT 

screening based on household income. 

22. The federal Agency for Toxic Substances and Disease 

Registry and the EPA have declared that lead in the soil and dirt 

in West Dallas is a public health threat particularly to chil- 

dren. 

23. The City of Dallas voluntary blood lead screening 

program tested 110 children in West Dallas between July and 

December, 1991. Of those, 33 (30% of thts tested) had elevated 

blood lead levels at 10 ug/dl or higher. 

24. While the lead in the soil and the dirt is generally 

accounted for by the decades long operation of the currently 

closed RSR/Murmur lead smelter in West Dallas, there are at least 

two additional point sources for lead contamination in the West 

Dallas area. Murmur operates a battery crushing and lead product 

fabrication plant across the street from the smelter site. This 

operation is licensed to emit 500 pounds of lead into the year 

annually. Refinery Casting Co., located on S. Commerce St. in 

West Dallas emits lead into the air in violation of air quality 

standards. | 

25. There is also lead in the slag heaps and battery chips 

which have been dumped for decades on and near residential units 

in West Dallas. 

 



  

26. West Dallas is a high risk zone for childhood lead 

poisoning. There are a substantial number of children with 

elevated blood lead levels. There are known sources of lead in 

the soil, dirt and air in West Dallas. 

State of Texas 
  

27. Numerous other high risk areas for childhood lead 

poisoning exist throughout the State of Texas. Environmental 

sources and pathways of lead include lead-based paint, lead- 

contaminated dusts and soils, industrial areas as well as expo- 

sure to lead through air, water, and food. 

28. For example, other potential high risk areas in the 

State include but are not limited to: 

(1) residential areas around the former Dixie Metal lead 

smelter in Dallas, Texas, 

(2) residential areas around the lead smelter in El Paso, 

Texas, 

(3) public housing throughout the State constructed prior to 

the elimination of lead-based paint, i.e. the family housing 

projects in Gladewater, Texas have a lead-based paint problem 

that has not been eliminated. 

29. Many areas of the State of Texas are high risk zones for 

childhood lead poisoning. There are a substantial number of 

children with elevated blood lead levels throughout the state. 

There are known sources of lead in the soil, dirt and air throug- 

hout the state. 

United States 
  

 



  

30. "Although all children are at risk, poor and minority 

children are disproportionately affected. Lead exposure is at 

once a by-product of poverty and contributor to the cycle that 

perpetuates and deepens the state of being poor." The Centers for 

Disease Control (CDC), "Preventing Lead Poisoning in Young 

Children", 1991, page 12. 

31. "Childhood lead poisoning has already affected millions 

of children, and it could affect millions more. Its impact on 

children is real, however silently it damages their brains and 

limits their abilities." HHS, "Strategic Plan For The Elimination 

of Childhood Lead Poisoning", February 1991, page iii. 

32. "Today in the United States, millions of children from 

all geographic areas and socioeconomic strata have lead levels 

high enough to cause adverse health effects. Poor, minority 

children in the inner cities, who are already disadvantaged by 

inadequate nutrition and other factors, are particularly vulnera- 

ble to this disease." HHS, "Strategic Plan For The Elimination of 

Childhood Lead Poisoning", February 1991, page xi. 

"EPSDT is a comprehensive prevention and treatment program 

available to Medicaid-eligible persons under 21 years of age. In 

1989, of the 10 million eligible persons, more than 4 million 

received initial or periodic screening health 

examinations. ..Screening services, defined by statute, must 

include a blood lead assessment ‘where age and risk factors 

indicate it is medically appropriate.’...Thus many States do not 

conduct much screening or do not pay for environmental investiga- 

 



tions for poisoned children." HHS, "Strategic Plan For The 

Elimination of Childhood Lead Poisoning", February 1991, page 18. 

Lead and Health   

33. Exposure to lead causes a wide range of health problems. 

The level of lead in the blood provides an estimate of recent 

exposure and potential health effects. Levels of 10 ug/dl and 

perhaps lower in children’s blood have been associated with 

impaired learning; levels of 15 ug/dl and greater can result in a 

decrease in IQ and rate of growth. At blood lead levels as low as 

10 ug/dl in a pregnant woman, lead can affect fetal development. 

34. Children are especially sensitive to lead and many of 

its effects are observed in them at lower concentrations than in 

adults. Children exposed to lead may have impaired mental and 

physical development, decreased heme production leading to 

anemia, hearing problems, and decreased levels of Vitamin D. 

Neurologic effects can persist after exposure has ceased and 

blood lead levels have returned to normal. 

35. The increased vulnerability of children results from a 

combination of factors: (1) the increased susceptibility of the 

developing nervous system to the neurotoxic effects of lead; (2) 

an average higher rate of soil ingestion than adults; (3) the 

greater efficiency of lead absorption in the gastrointestinal 

tract of children; 4) the greater prevalence of iron or calcium 

deficiency which may exacerbate the toxic effects of lead; and 

(5) the ready transfer of lead across the placenta to the devel- 

oping fetus.  



Lois Thompson’s grandchildren 
  

36. The four grandchildren are Zachery Williams (DOB 11-17- 

88), Calvin Thompson (DOB 8-22-89), Prentiss Mullins (DOB 11-24- 

90), and Taylor Dixon (DOB 12-14-91). The children’s homes are in 

the 1800 block of Angelina St. and within the boundaries of the 

EPA West Dallas emergency removal site. Ms. Thompson resides in 

the same block at 1826 Angelina. 

Zachery Williams 

37. Zachery Williams has been receiving EPSDT screening and 

Medicaid treatment at the Carver Children’s Clinic in West Dallas 

since he was 2 months old. He was seen by the Clinic through the 

State Medicaid program on 1-31-89, 3-24-89, 5-9-89, 8-27-90, 11- 

19-90, and 11-11-91. At no time was Zachery given a blood lead 

test.l At the 8-27-90 visit he was given an EP test which showed 

a less than 35 ug/dl value. 

38. On 5-20-92 Zachary was tested by the blood lead test at 

the request of his attorneys. The result was 21 mcg/dl. No 

intervention was provided other than a re-test on 6-09-92. That 

retest sample was lost. On July 9, 1992 Ms. Thompson’s lawyers 

requested Zachery’s medical records from the Carver Clinic. The 

Clinic had Zachery back in for another blood sample on 7-14-92. 

This sample returned a blood lead level of 7 mcg/dl. Zachery’s 

records were finally released on 7-20-92. 

39. There is nothing in Zachery’s medical records to show 

that he has received any of the intervention for lead poisoning 

  

1 on 11-11-91 Zachery’s mother refused the EP test. 

10  



required by CDC. 

Calvin Thompson 

40. Calvin was seen by the Carver Children’s Clinic under 

the Medicaid program on 10-16-89, 12-15-89, 2-16-90, 6-19-90, 11~- 

26-90, and 11-11-91. Only on the 11-11-91 was Calvin given an EP 

test for blood lead level. The test returned a value of less than 

35 ug/dl. On 5-18-92 Calvin, at the request of his attorneys, was 

given a blood lead test with a 19 mcg/dl result. He was retested 

on 6-03-92 with a 14 mcg/dl result. 

41. There is nothing in Calvin’s medical record show that he 

has received any of the intervention for lead poisoning required 

by CDC. 

Prentiss Mullins 

42. Prentiss was seen by the Carver Children’s Clinic under 

the Medicaid program on 1-17-91, 5-1-91, and 10-11-91. Prentiss 

was given no tests to determine blood lead levels. 

43. Prentiss was given blood lead level tests, at the 

request of his attorneys, on 5-18-92 and 6-03-92. The tests 

showed levels of 18 mcg/dl and 14 mcg/dl. 

44. There is nothing in Prentiss’ medical records to show 

that he received any of the intervention for lead poisoning 

required by CDC. 

Taylor Dixon 

45. Taylor was six months old on 6-14-92. She was given a 

blood lead level test at her grandmother’s request when she was 

less than 5 months old on 5-05-92. The blood lead level test  



showed 9 mcg/dl. Taylor has started her life with a blood lead 

level high enough to be associated with impaired learning. 

46. There is nothing in Taylor’s medical records to show 

that she has received any of the intervention for lead poisoning 
required by CDC. 

Claim against TDHS Commissioner 
  

47. The State of Texas participates in the federal Medicaid 

program and has established the Texas Department of Human Servic- 

es (TDHS) which provides medical services to low-income persons 

through reimbursement of health care providers for such services. 

The federal requirements of the Medicaid Act, 42 vU.S.C. §S 1396- 

1396s, are binding on the State of Texas. 

48. The class members are children eligible for Medicaid. 

Many of these children, because of their age and the environmen- 
tal conditions in many areas of the State, are at risk or high 
risk of lead poisoning. 

49. Rather than comply with the Medicaid requirements of 

lead blood level assessment and treatment for the lead exposure 

discovered, defendant Raiford has deliberately and willfully 

chosen to disobey that mandate. Instead of testing for blood lead 
level, defendant uses a laboratory test to detect levels of 

Erythrocyte Protoporphin (EP).? While elevated EP levels can 

exist along with elevated blood lead levels, the Federal Centers 
  

2 The blood lead level tests given to plaintiffs were not given as part of the normal EPSDT screening but were rather an accommodation of a special request. The Carver clinic, where plaintiffs receive their EPSDT services, continues to use the EP test as its primary blood lead screening indicator. 

12  



  

for Disease Control prescribes "Screening should be done using a 

blood lead test. Since erythrocyte protoporphin (EP) is not 

sensitive enough to identify more than a small percentage of 

children with blood lead levels between 10 and 25 ug/dL and 

misses many children with blood lead levels > 25 ug/dL (McElvaine 

et al., 1991), measurement of blood lead levels should replace 

the EP test as the primary screening method." [CDC, "Preventing 

Lead Poisoning in Young Children", 1991, page 41]. 

50. Only if a child tests higher than 35 on the EP test is a 

blood lead level test administered [Donald L. Kelley, Texas State 

Medicaid Director July 9, 1992 letter, page 2]. 

51. The statute requires blood lead tests, not EP teggai3 

Defendant Raiford’s own "EPSDT Medical Screening" supplement 

agrees with this result. "Blood specimens for lead screening will 

be evaluated by direct measurement of lead concentration in the 

sample...The EP analysis will not be performed on blood lead 

elevations between 10-24 ug/dL since the EP analysis cannot 

reliably indicate physiological status of lead exposure at the 

low abnormal concentration." [EPSDT Medical Screening Supplement 

to 1991 Medicaid Provider Procedures Manual, January 1992, page 

10]. Defendant Raiford’s continued use of the EP test is inexpli- 

cable on any defensible grounds. 

52. Rather than comply with the statute’s mandate that the 

blood lead level assessment be done in accord with appropriate 

age and risk factors, defendant Raiford has willfully and delib- 

  

3 EP tests are cheaper than blood lead level tests. 

13 

 



  

erately chosen to use age as the primary factor in lead level 

assessment. 

53. The federal Health Care Financing Administration re- 

leased a report dated July 12, 1991 that reviewed defendant’s 

compliance with the risk assessment requirement of the statute. 

The report found: "The State has not established risk factors 

(other than age) to assist providers in determining whether it is 

appropriate to perform a blood lead level test. It has estab- 

lished an age factor...however, according to Section 5123.2.D.1 

of the State Medicaid Manual, States should also consider envi- 

ronmental aspects when establishing risk factors." 

54. The report recommended that "The State should require 

that high blood lead level areas be taken into consideration when 

determining risk factors and it should furnish EPSDT screening 

providers with a list of these high risk zones." 

55. Defendant Raiford’s August 29, 1991 response to the HCFA 

report stated "We agree with the finding". 

56. Defendant Raiford has still not furnished EPSDT screen- 

ing providers with a list designating West Dallas or any other 

high risk zones in the state. 

57. CDC has established a screening schedule for children at 

high risk for lead poisoning which starts at six months and 

varies throughout childhood depending on the results of the blood 

lead tests. Defendant Raiford requires only one screening for 

lead poisoning at either 6 months of age or once between the ages 

of 9 months and 20 years if not given at six months. 

14 

 



  

58. Rather than comply with the statutory mandate to provide 
treatment for lead poisoning discovered in the screening process, 
defendant Raiford ignores the accepted CDC guidelines for medical 

and public health interventions once lead poisoning is discov- 
ered. For example, the plaintiff children’s files are empty of 

any intervention other than a referral to the City of Dallas for 

a follow up. Defendant Raiford does not provide individual case 

management including nutritional and educational interventions, 
more frequent screening, environmental investigations (including 

a home inspection) and remediation for children with blood lead 

levels of 15-19 ug/dL. 

59. A substantial factor in defendant Raiford’s continued 

use of the EP test instead of the required blood lead test has 

been the USA’s continued explicit and overt support, encourage- 

ment, and payment for the EP tests. 

Claim against USA 
  

60. The USA implements the requirements of the Medicaid Act 
through regulations and non-regulatory guidelines issued to the 
states. The primary non-reqgulatory guideline is the HCFA "State 

Medicaid Manual". 

61. The current State Medicaid Manual states "In general, 
use the EP test as the primary screening. Perform venous blood 

lead measurements on children with elevated EP levels." 

62. The amendments to the State Medicaid Manual, to take 

effect on Sept. 19, 1992 continue to sanction the use of the EP 

test as the primary screening test for lead poisoning in young 

15 

 



children throughout the country. E.g. "States continue to have 

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

test.” 

63. The USA knows that the EP test is not an appropriate 

lead blood level sisesbment for any age and risk factors. The 

9/19/92 HCFA amendment acknowledges this. "The erythrocyte 

protoporphyrin (EP) test is not sensitive for blood lead levels 

below 25 ug/dL." 

64. The HHS "Strategic Plan for the Elimination of Childhood 

Lead Poisoning", 1991 states "At present it is much cheaper and 

easier to perform an EP test than a blood lead measurement; 

however, the EP test is not a useful screening test for blood 

lead levels below 25 ug/dL." [Page 40]. 

65. The HHS "Strategic Plan" correctly forecast the 1991 CDC 

actions lowering the level of blood lead which should be taken as 

a symptom of lead poisoning. "In 1991 CDC will likely issue new 

recommendations suggesting that screening programs attempt to 

identify children with blood lead levels below 25 ug/dL." HHS, 

"Strategy", 1991, page 23. 

66. The HHS "Strategic Plan" correctly stated that the CDC 

action should mean an end to the use of EP testing for childhood 

lead screening. "This change will mean that blood lead measure- 

ments must be used for childhood lead screening instead of EP 

measurements." HHS, "Strategy", 1991, page 23 (emphasis added). 

67. The class members are children eligible for Medicaid. 

All of these children, because of their age and the environmental 

16  



  

conditions in many areas of the country, are at risk of lead 

poisoning. Many of them are at a high risk for lead poisoning. A 

substantial percentage have lead poisoning. 

68. Rather than comply with the Medicaid requirements of 

lead blood level assessment and treatment for the lead exposure 

discovered, defendant USA has deliberately and willfully chosen 

to disobey that mandate. Instead of requiring the States to test 

for blood lead level, defendant USA allows, encourages, and 

provides financial assistance for the use of a laboratory test to 

detect levels of Erythrocyte Protoporphin (EP) as the primary 

screening test for childhood lead poisoning. While elevated EP 

levels can exist along with elevated blood lead levels, the 

Federal Centers for Disease Control prescribes "Screening should 

be done using a blood lead test. Since erythrocyte protoporphin 

(EP) is not sensitive enough to identify more than a small 

percentage of children with blood lead levels between 10 and 25 

ug/dL and misses many children with blood lead levels 2x 25 ug/dl 

(McElvaine et al., 1991), measurement of blood lead levels should 

replace the EP test as the primary screening method." [CDC, 

"Preventing Lead Poisoning in Young Children", 1991, page 41]. 

69. HHS’s 1988 "The Nature and Extent of Lead Poisoning in 

Children in the United States: A Report to Congress" analyzed the 

existing research on the reliability of the EP test as a screep- 

ing test for lead poisoning. "Analysis of data from the second 

National Health and Nutrition Examination Survey (NHANES II) by 

Mahaffey and Annest (1986) indicates that Pb-B levels in children 

17 

 



  

can be elevated even when EP levels are normal. Of 118 children 

with Pb-B levels above 30 ug/dl (the CDC criterion level at the 

time of of NHANES II), 47% had EP levels at or below 30 ug/dl, 

and 58% (Annest and Mahaffey, 1984) had EP levels less than the 

current EP cutoff value of 35 ug/dl (CDC, 1985)". HHS concluded 

"This means that reliance on EP level for initial screening can 

result in a significant incidence of false negatives or failures 

to detect toxic Pb-B levels." page II-9. 

70. The statute requires blood lead tests, not EP tests. 

Defendant USA’s only rationale for the continued use of the EP 

test for lead poisoning is that it is cheaper than the mandated 

blood lead level tests. 

71. Defendant USA’s continued financial and administrative 

support for the States’ use of the EP test to test for lead 

poisoning violates the Medicaid Act, 42 U.S.C. § 1396d(r)(1)(B)(- 

iv) and is a cause of the States’ violations of the statute. 

Relief sought against TDHS Commissioner 
  

72. Plaintiffs seek the following relief against Burton F. 

Raiford in his capacity as Commissioner of the Texas Department 

of Human Services: 

a. a temporary restraining order enjoining defendant from 

the use of the EP test statewide as a blood lead level screening 

procedure and requiring the defendant to use the blood lead level 

test statewide as part of the EPSDT program, 

b. a preliminary and permanent injunction requiring Mr. 

Raiford to: 

18 

 



  

(1) continue the temporary relief, 

(2) declare West Dallas a geographic area of high risk for 

children for lead poisoning and notify all EPSDT providers that 

eligible children that live and have lived in West Dallas must be 

given lead blood level assessments. 

(3) declare other geographic areas of the State of Texas 

that have a risk of lead contamination as areas of high risk for 

children for lead poisoning and notify all EPSDT providers that 

eligible children that live in those high risk areas and have 

lived in those areas must be given lead blood level assessments. 

(4) give effective notice and outreach to all EPSDT eligible 

children who live in West Dallas or other high risk areas of the 

State of Texas or have lived in West Dallas or other high risk 

areas in the state of the availability of the blood lead screen- 

ing and treatment. 

(5) re—test, using the blood lead level test, each person in 

the class for whom the EP test was given in the past, 

(6) implement a case management program to ensure that all 

children eligible for the screening receive it and that all 

necessary medical treatment is provided to the children for whom 

the screening indicates a lead poisoning related health risk. The 

screening, the schedule for screening and the treatment provided 

should all be conducted pursuant to the U.S. Department of Health 

and Human Services, Public Health Service, Centers for Disease 

Control guidelines, 

c. an award of attorney’s fees, litigation expenses and 

19 

 



  

costs, and 

d. provides any other appropriate relief. 

Relief sought against the USA 
  

73. Plaintiffs seek the following relief against the USA: 

a. a temporary restraining order and a preliminary injunc- 

tion enjoining the USA, through the HCFA, from supporting, 

allowing or financing the States’ use of the EP test as an appro- 

priate 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, 

b. a permanent injunction that: 

(1) continues the relief granted by the TRO and prelim- 

inary injunction, 

(2) enjoins the operation and effect of any regulations 

or guidelines which allow for the use of and the compensation for 

EP tests to test for lead poisoning instead of blood lead level 

tests, 

(3) orders the publication of and enforcement of 

regulations and guidelines requiring the States to use blood lead 

tests and requiring the States to retest, using blood lead tests, 

each Medicaid eligible child for whom the States have used an EP 

test instead of a blood lead test and compensating the States for 

the retests, 

c. an award of attorney’s fees, litigation expenses and 

costs, and 

d. provides any other appropriate relief. 

20 

 



  

Respectfully submitted, 

MICHAEL M. DANIEL, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9230 (telephone) 
(214) 939-9229 ( csimile) 

By: (£08 Ya 
Michael MM. Daniel 
State Bar No. 05360500 

By: COUN B RAephara_ 
Laura B. Beshara 
State Bar No. 02261750 

  

  

ATTORNEYS FOR PLAINTIFF 

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

was served upon counsel for defendant by FAX and by being placed 
in the U.S. Mail, first class postage prepaid, on the a “day 
of eptember , 1992. 

CX B. Reharg 
Ladyra B. Beshara 

  

  

  

21 

 



     



   

  

~ [@oo2 : : 3:22 : ng paw 02g . . )  . 
\ 1 \ 1 

o { oil 

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, 

[TRLA clients] 
Plaintiffs 

No. 3-92 CV 1539-R 

* 
* 

* 
% 

Civil Action 

v. Class Action 

BURTON F. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human 
Services, 

and 

THE UNITED STATES OF AMERICA, 

 
¥
 

X
X
 

% 
% 

¥ 
OF

 
XX
 

¥ 
¥ 

OX
 

¥ 
% 

Defendants. 

PLAINTIFFS’ SECOND AMENDED COMPLAINT 
  

1. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 

1343. This sult seeks relief for defendants’ violation of the 

Medicaid Act, 42 U.S.C. § 1396d(r) pursuant to the "and laws" 

provision of 42 U.S.C. § 1983 and 5 U.S.C. § 702. 

Parties 

2. Plaintiff TAYLOR KEONDRA DIXON is seven months old. 

Plaintiff ZACHERY X. WILLIAMS is three and a half years old. 

Plaintiff CALVIN A. THOMPSON will soon be three vears old. 

Plaintiff PRENTISS LAVELL MULLINS is one and a half years old. 

All plaintiffs are hfrican-averios residents of West Dallas, 

Texas and are eligible for Medicaid under the federal Medicaid 

Act. Plaintiffs are entitled to lead-blood assessments and 

treatment through the Texas EPSDT program but have been denied 

1 

 



  
  

603 a Ayo 10:23 “® » 

adequate testing and treatment because of the failure of TDHS to 

implement proper blood lead testing and treatment. Plaintiffs 

appear in this action through their grandmother and next friend, 

LOIS THOMPSON, an African-American resident of West Dallas. 

[add TRLA clients] 

3. Defendant BURTON F. RAIFORD is the Commissioner of the 

TEXAS DEPARTMENT OF HUMAN SERVICES (TDHS), a state agency charged 

with the implementation of the Texas Medicaid program, including 

the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) 

for children under age 21, and an agency which has received 

federal funds. | 

4. The UNITED STATES OF AMERICA [USA] is a defendant because 

of the actions of the U.S. Department of Health and Human Servic- 

es [HHS] and the Health Care Financing Administration [HCFA], a 

division of HHS, in the administration of the Early Periodic 

Screening, Diagnostic, and Treatment program under the Medicaid 

Act, 42 U.S.C. § 1396d(r). 

Class Action allegations against Raiford 
  

5. Plaintiffs represent a class of all Medicaid-eligible 

children presently residing in the State of Texas. 

6. There are and have been more than several thousand 

children residents of the State of Texas who are eligible for 

Medicaid and defendant’s EPSDT program. As of 1991 there were at 

least 768,163 total Medicaid eligible children in the State of 

Texas. The class of all these persons is so numerous that 

joinder of all these persons is impractical. 

 



” INI 
  08/31/92 10:24 

  

7. Plaintiffs’ allegations that defendant has violated the 

federal Medicaid Act involves questions of law and fact common to 
the class. 

8. The basic factual and legal assertions upon which 
plaintiffs’ claims are based are identical to the basic factual 
and legal assertions of the claim on behalf of the class.   Plaintiffs’ claims are typical of the claims and defenses of the 
class. 

9. There is no conflict between the Plaintiffs and the 
class. Plaintiffs seek the same injunctive relief on their own 
behalf as is sought on behalf of the class. Plaintiffs and the 
class are represented by competent counsel. Plaintiffs will 
adequately represent the interests of the class. 

10. The defendant’s actions and inactions which are the 
subject of the suit greatly affect the children of the State of 
Texas due to the problem of childhood lead poisoning. These are 
grounds which are generally applicable to the class thus making 
appropriate final injunctive relief with respect to the class as 
a whole. 

Class action allegations against the USA   

11. Plaintiffs represent a class of all Medicaid-eligible 
children presently residing in the United States of America, 

12. There are and have been more than several million 
children residents of the United States who are eligible for 
Medicaid and the USA’s EPSDT program. As of 1989 there were 10 
million total Medicaid-EPSDT eligible children in the country. 

3 

 



[41 O05 
  

08,3192 10:24 

"EPSDT is a comprehensive prevention and treatment program 

available to Medicaid-eligible persons under 21 years of age. In 

1989, of the 10 million eligible persons, more than 4 million 

received initial or periodic sCreening health 

examinations. ..Screening services, defined by statute, must 

include a blood lead assessment ‘where age and risk factors 

indicate it is medically appropriate. ’.n HHS, "Strategic Plan For 
The Elimination of Childhood Lead Poisoning", February 1991, page 

18. The class of all these persons is so numerous that joinder 
of all these persons is impractical. 

13. Plaintiffs’ allegations that the federal defendant has 

violated the federal Medicaid Act involves questions of law and 

fact common to the class, 

14. The basic factual and legal assertions upon which 

plaintiffs’ claims are based are identical to the basic factual 

and legal assertions of the claim on behalf of the class. 

Plaintiffs’ claims are typical of the claims and defenses of the 

class. 

15. There is no conflict between the plaintiffs and the 

class. Plaintiffs seek the same injunctive relief on their own 
behalf as is sought on behalf of the class. Plaintiffs and the 
class are represented by competent counsel. Plaintiffs will 
adequately represent the interests of the class, 

16. The defendant’s actions and inactions which are the 
subject of the suit greatly affect the poor children of the 
United States of America due to the problem of childhood lead    



[006 
  

08/31/92 14:25 

  

poisoning. These are grounds which are generally applicable to 
the class thus making appropriate final injunctive relief with 

respect to the class as a whole. 

Facts 

  

West Dallas 
    

17. The West Dallas hazardous substance emergency clean-up 
site defined by the U.S. Environmental Protection Agency includes 
ten census tracts: 43, 69, 101.01, 101.02, 102, 103, 104, 105, 
106, 107.01. 

18. The 1990 U.S. Census population of this area is: total 

Il population 32,762, black population = 12,484 (38.11%), hispanic 

il population 17,278 (52.74%). Children under § years of age make 
up 10% of the population. 

19. The number of households with income below the poverty 
level exceeds 30% in all 10 census tracts. 

20. At least 1,000 children in west Dallas qualify for EPSDT 
screening based on household income. 

21. The federal Agency for Toxic substances and Disease 
Registry and the EPA have declared that lead in the soil and dirt 
in West Dallas is a public health threat particularly to chil- 
dren. 

22. The City of Dallas voluntary blood lead screening 
program tested 110 children in West Dallas between July and 
December, 1991. Of those, 33 (30% of those tested) had elevated 
blood lead levels at 10 ug/dl or higher. 

23. While the lead in the soil and the dirt is generally 

5 

 



2007 
  

08/31/92 10:25 * » 

  

accounted for by the decades long operation of the currently 

closed RSR/Murmur lead smelter in West Dallas, there are at least 
two additional point sources for lead contamination in the West 
Dallas area. Murmur operates a battery crushing and lead product 
fabrication plant across the street from the smelter site. Thig 
operation is licensed to emit 500 pounds of .ead into the year 
annually. Refinery Casting Co., located on S. Commerce St. in 
West Dallas emits lead into the air in violation of air quality 
standards. 

24. There is also lead in the slag heaps and battery chips 
which have been dumped for decades on and near residential units 
in West Dallas. 

25. West Dallas is a high risk zone for childhood lead 
poisoning. There are a substantial number of children with 
elevated blood lead levels. There are known sources of lead in 
the soil, dirt and air in West Dallas. 

[facts] TRIA clients   

State of Texas 

26. Numerous other high risk areas for childhood lead 
poisoning exist throughout the State of Texas. Environmental 
Sources and pathways of lead include lead-based paint, lead- 
contaminated dusts and soils, industrial areas as well as expo- 
sure to lead through air, water, and food. 

27. For example, other potential high risk areas in the 
State include but are not limited to: 

(1) residential areas around the former Dixie Metal lead 

 



   
08-31-92 10:26 ® ol 

  

  

smelter in Dallas, Texas, 

(2) residential areas around the lead smelter in El Paso, 

Texas, 

(3) public housing throughout the State constructed prior to 

the elimination of lead-based paint, i.e. the family housing 

projects in Gladewater, Texas have a lead-based paint problem 

that has not been eliminated. 

28. Many areas of the State of Texas are high risk zones for 
childhood lead poisoning. There are a substantial number of 

children with elevated blood lead levels throughout the state. 

There are known sources of lead in the soil, dirt and air throug- 
hout the state. 

United States   

29. "Although all children are at risk, poor and minority 
children are disproportionately affected. Lead eXposure is at 
once a by-product of poverty and contributor to the cycle that 
perpetuates and deepens the state of being poor." The Centers for 
Disease Control (CDC), "Preventing Lead Poisoning in Young 
Children", 1991, page 12. 

30. "Childhood lead poisoning has already affected millions 
of children, and it could affect millions more. Its impact on 
children is real, however silently it damages their brains and 
limits their abilities. HHS, "Strategic Plan For The Elimination 
of Childhood Lead Poisoning", February 1991, page iii. 

31. "Today in the United States, millions of children from 
all geographic areas and socioeconomic strata have lead levels 

  

J [215)5)



  

@ 069 
08/31/92 10:26 “ 

  

  

high enough to cause adverse health effects. Poor, minority 

children in the inner cities, who are already disadvantaged by 

inadequate nutrition and other factors, are particularly vulnera- 

ble to this disease." HHS, "Strategic Plan For The Elimination of 

Childhood Lead Poisoning", February 1991, page xi. 

"EPSDT is a comprehensive prevention and treatment program 

available to Medicaid-eligible persons under 21 years of age. In 

1989, of the 10 million eligible persons, more than 4 million 

received initial or periodic screening health 

examinations. ..Screening services, defined by statute, must 

include a blood lead assessment ‘where age and risk factors 

indicate it is medically appropriate.’...Thus many States do not 

conduct much screening or do not pay for environmental investiga- 

tions for poisoned children." HHS, "Strategic Plan For The 

Elimination of Childhood Lead Poisoning", February 1991, page 18. 

Lead and Health 
  

32. Exposure to lead causes a wide range of health problems. 

The level of lead in the blood provides an estimate of recent 

exposure and potential health effects. Levels of 10 ug/dl and 

perhaps lower in children’s blood have been associated with 

impaired learning; levels of 15 ug/dl and greater can result in a 

decrease in IQ and rate of growth. At blood lead levels as low as 

10 ug/dl in a pregnant woman, lead can affect fetal development. 

33. Children are especially sensitive to lead and many of 

its effects are observed in them at lower concentrations than in 

adults. Children exposed to lead may have impaired mental and 

 



    

Bole 

- 08/31/92 10:27 : 

physical development, decreased heme production leading to 

anemia, hearing problems, and decreased levels of Vitamin D. 

Neurologic effects can persist after exposure has ceased and 

blood lead levels have returned to normal.   34, The increased vulnerability of children results from a 

combination of factors: (1) the increased susceptibility of the 

developing nervous system to the neurotoxic effects of lead; (2) 

an average higher rate of soil ingestion than adults; (3) the 

greater efficiency of lead absorption in the gastrointestinal 

tract of children; 4) the greater prevalence of iron or calcium 

deficiency which may exacerbate the toxic effects of lead; and 

(5) the ready transfer of lead across the placenta to the devel- 

oping fetus. 

Lois Thompson’s grandchildren 
  

35. The four grandchildren are Zachery Williams (DOB 11-17- 

88), Calvin Thompson (DOB 8-22-89), Prentiss Mullins (DOB 11-24- 

90), and Taylor Dixon (DOB 12-14-91). The children’s homes are in 

the 1800 block of Angelina St. and within the boundaries of the 

EPA West Dallas emergency removal site. Ms. Thompson resides in 

the same block at 1826 Angelina. 

Zachery Williams 

36. Zachery Williams has been receiving EPSDT screening and 

Medicaid treatment at the Carver Children’s Clinic in West Dallas 

since he was 2 months old. He was seen by the Clinic through the 

State Medicaid program on 1-31-89, 3-24-89, 5-9-89, 8-27-90, 11- 

19-90, and 11-11-91. At no time was Zachery given a blood lead 

 



_08/31,92 10:27 : 

test.! At the 8-27-90 visit he was given an EP test which showed 

a less than 35 ug/dl value. 

37. On 5-20-92 Zachary was tested by the blood lead test at 

the request of his attorneys. The result was 21 mcg/dl. No 

intervention was provided other than a re-test on 6-09-92. That 

retest sample was lost. On July 9, 1992 Ms. Thompson’s lawyers 

requested Zachery’s medical records from the Carver Clinic. The 

Clinic had Zachery back in for another blood sample on 7-14-92. 

Thie sample returned a blood lead level of 7 mcg/dl. Zachery's 

records were finally released on 7-20-92. 

38, There is nothing in Zachery’s medical records to show 

that he has received any of the intervention for lead poisoning 

required by CDC. 

Calvin Thompson 

39. Calvin was seen by the Carver Children’s Clinic under 

the Medicaid program on 10-16-89, 12-15-89, 2-16-90, 6-19-90, 11- 

26-90, and 11-11-91, Only on the 11-11-91 was Calvin given an EP 

test for blood lead level. The test returned a value of less than 

3% ug/dl. On 5-18-92 Calvin, at the request of his attorneys, was 

given a blood lead test with a 19 mcg/dl result. He was retested 

on 6-03-92 with a 14 mcg/dl result. 

40. There is nothing in Calvin’s medical record show that he 

has received any of the intervention for lead poisoning required 

by CDC. 

Prentiss Mullins 

  

1 on 11-11-91 Zachery'’s mother refused the EP test. 

10  



   

  

© 08/31/92 10:28 

  

A612 

41. Prentiss was seen by the Carver Children’s Clinic under 

the Medicaid program on 1-17-91, 5~1-91, and 10-11-91. Prentiss 

was given no tests to determine blood lead levels. 

42. Prentiss was given blood lead level tests, at the 

request of his attorneys, on 5-18-92 and 6-03-92. The tests 

showed levels of 18 mcg/dl and 14 mcg/dl. 

43. There is nothing in Prentiss’ medical records to show 

that he received any of the intervention for lead poisoning 

required by CDC. 

Taylor Dixon 

44. Taylor was six months old on 6-14-92. She was given a 

blood lead level test at her grandmother's request when she was 

less than 5 months old on 5-05-92. The blood lead level test 

showed 9 mcg/dl. Taylor has started her life with a blood lead 

level high enough to be associated with impaired learning. 

45. There is nothing in Taylor’s medical records to show 

that she has received any of the intervention for lead poisoning 

required by CDC. 

Claim against TDHS Commissioner 
  

46. The State of Texas participates in the federal Medicaid 

program and has established the Texas Department of Human Servic- 

es (TDHS) which provides medical services to low-income persons 

through reimbursement of health care providers for such services. 

The federal requirements of the Medicaid Act, 42 U.S.C. §§ 1396- 

1396s, are binding on the State of Texas. 

47. The class members are children eligible for Medicaid. 

1) 

 



  

Yi 013 tT 8s31/92 10:28 

  

Many of these children, because of their age and the environmen- 
tal conditions in any areas of the State, are at risk or high 
risk of lead poisoning. 

48. Rather than comply with the Medicaid requirements of 
lead blood level assessment and treatment for the lead exposure 
discovered, defendant Raiford has deliberately and willfully 
chosen to disobey that mandate. Instead of testing for blood lead 
level, defendant uses a laboratory test to detect levels of 
Erythrocyte Protoporphin (EP). while elevated EP levels can 
exist along with elevated blood lead levels, the Federal Centers 
for Disease Control prescribes "Screening should be done using a 
blood lead test. Since erythrocyte pProtoporphin (EP) is not 
sensitive enough to identify more than a small percentage of 
children with blood lead levels between 10 and 25 ug/dL and 
misses many children with blood lead levels > 25 ug/dL (McElvaine 
et al., 1991), measurement of blood lead levels should replace 
the EP test ag the primary screening method." ICDC, "Preventing 
Lead Poisoning in Young Children", 1991, page 41]. 

49. Only if a child tests higher than 35 on the Ep test is a 
blood lead level test administered [Donald I. Relley, Texas State 
Medicaid Director July 9, 1992 letter, page 2]. 

50. The statute requires blood lead tests, not EP tests, 3 
                  

‘ The blood lead level tests given to plaintiffs were not given as part of the normal EPSDT screening but were rather an accommodation of a special request. The Carver clinic, where plaintiffs receive their EPSDT services, continues to use the Ep test as its primary blood lead screening indicator, 
  

3 gp teste are cheaper than blood lead level tests. 

12 

 



gold 
  + 08/31/92 10:29 

  

Defendant Raiford’s own "EPSDT Medical Screening" Supplement 
agrees with this result. "Blood specimens for lead screening will 
be evaluated by direct measurement of lead concentration in the 
sample...The EP analysis will not be performed on blood lead 
elevations between 10-24 ug/dL since the EP analysis cannot 
reliably indicate physiological status of lead exposure at the 
low abnormal concentration. [EPSDT Medical Screening Supplement 
to 1991 Medicaid Provider Procedures Manual, January 1992, page 
10]. Defendant Raiford’s continued use of the EP test is inexpli- 
cable on any defensible grounds. 

51. Rather than comply with the statute’s mandate that the 
blood lead level assessment be done in accord with appropriate 
age and risk factors, defendant Raiford has willfully and delib- 
erately chosen to use age as the primary factor in lead level 
assessment. 

22. The federal Health Care Financing Administration re- 
leased a report dated July 12, 1991 that reviewed defendant’s 
compliance with the risk assessment requirement of the statute. 
The report found: "The State has not established risk factors 
(other than age) to assist providers in determining whether it is 
appropriate to perform a blood lead level test. It has estab- 
lished an age factor. ..however, according to Section 5123.2.p.1 
of the State Medicaid Manual, States should also consider envi- 
ronmental aspects when establishing fisk factors." 

53. The report recommended that "The State should require 
that high blood lead level areas be taken into consideration when 

13 

 



   + 08,3192 10:30 

  
  

[A615 
  

determining risk factors and it should furnish EPSDT screening 

providers with a list of these high risk zones." 

54. Defendant Raiford’s August 29, 1991 response to the HCFA 

report stated "We agree with the finding”. 

55. Defendant Raiford has still not furnished EPSDT screen- 

ing providers with a list designating West Dallas or any other 

high risk zones in the state. 

56. CDC has established a screening schedule for children at 

high risk for lead poisoning which starts at six months and 

varies throughout childhood depending on the results of the blood 

lead tests. Defendant Raiford requires only one screening for 

lead poisoning at either 6 months of age or once between the ages 

of 9 months and 20 years if not given at six months. 

57. Rather than comply with the statutory mandate to provide 

treatment for lead poisoning discovered in the screening process, 
defendant Raiford ignores the accepted CDC guidelines for medical 

and public health interventions once lead poisoning is discov~ 

ered. For example, the Dallas plaintiff children’s files are 

empty of any intervention other than a referral to the City of 
Dallas for a follow up. Defendant Raiford does not provide 

individual case management including nutritional and educational 
interventions, more frequent screening, environmental investiga- 

tions (including a home inspection) and remediation for children 
with blood lead levels of 15-19 ug/dL. 

58. A substantial factor in defendant Raiford’s continued 

use of the EP test instead of the required blood lead test has 

14



  

been the USA’s continued explicit and overt support, encourage- 

ment, and payment for the EP tests. 

Claim against USA 
  

59. The USA implements the requirements of the Medicaid Act 

through regulations and non-regulatory guidelines issued to the 

atates. The primary non-regulatory guideline is the HCFA "State 

Medicaid Manual". 

60. The current State Medicaid Manual states "In general, 

use the EP test as the primary screening. Perform venous blood 

lead measurements on children with elevated EP levels." 

61. The amendments to the State Medicaid Manual, to take 

effect on Sept. 19, 1992 continue to sanction the use of the EP 

test as the primary screening test for lead poisoning in young 

children throughout the country. E.g. "States continue to have 

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

test. 

62. The USA knows that the EP test is not an appropriate 

lead blood level assessment for any age and risk factors. The 

9/19/92 HCFA amendment acknowledges this. "The erythrocyte 

protoporphyrin (EP) test is not sensitive for blood lead levels 

below 25 ug/dL.® 

63. The HHS "Strategic Plan for the Elimination of Childhood 

Lead Poisoning", 1991 states "At present it is much cheaper and 

easier to perform an EP test than a blood lead measurement ; 

however, the EP test is not a useful screening test for blood 

lead levels below 25 ug/dL." [Page 40]. 

15 

A016 

 



[Ao17 
  

05-31-92 10:31 

64. The HHS "Strategic Plan" Correctly forecast the 1991 CoC 
actions lowering the level of blood lead which should he taken as   a symptom of lead poisoning. "In 1991 cpc will likely issue new 
recommendations suggesting that Screening programs attempt to 
identify children with blood lead levels below 25 ug/dL." HHS, 
"Strategy", 1991, page 23. 

65. The HHS "Strategic Plan" correctly stated that the CDC 
action should mean an end to the use of EP testing for childhood 
lead screening. "Thig change will mean that blood lead measure-~ 
ments must be used for childhood lead screening instead of EP 
measurements." HHS, "Strategy", 1991, page 23 (emphasis added). 

66. The class members are children eligible for Medicaid. 
All of these children, because of their age and the environmental 
conditions in many areas of the country, are at risk of lead 
poisoning. Many of them are at a high risk for lead poisoning. A 
substantial percentage have lead poisoning, 

67. Rather than comply with the Medicaid requirements of 
lead blood level assessment and treatment for the lead exposure 
discovered, defendant USA has deliberately and willfully chosen 
to disobey that mandate. Instead of requiring the States to test 
for blood lead level, defendant USA allows, encourages, and   
 



2015 
  

05/31-92 16:31 

be done using a blood lead test. Since erythrocyte protoporphin 
(EP) is not sensitive enough to identify more than a small 
Percentage of children with blood lead levels between 10 and 25 
ug/dL and misses many children with blood lead levels > 25 ug/dL 
(McElvaine et al., 1991), measurement of blood lead levels should 
replace the EP test as the primary Screening method." {CDC, 
"Preventing Lead Poisoning in Young Children, 1991, page 41], 

68. HHS’s 1988 "The Nature and Extent of Lead Poisoning in 
Children in the United States: A Report to Congress" analyzed the 
existing research on the reliability of the EP test as a screen= 
ing test for lead poisoning and concluded "This means that 
reliance on EP level for initial screening can result in a 
significant incidence of false negatives or failures to detect 
toxic Pb-B levels." page II-9, 

69. The statute requires blood lead tests, not EP tests. 
Defendant USA‘s only rationale for the continued use of the EP 
test for lead Poisoning is that it ig cheaper than the mandated 
blood lead level tests. 

70. Defendant USA’s continued financial and administrative 
support for the States’ use of the EP test to test for lead 
poisoning violates the Medicaid act, 42 vU.s.c. § 1396d(r) (1) (B)(- 
iv) and is a cause of the States’ violations of the statute, 

Relief sought against TDHS Commissioner 
  

    

    

71. Plaintiffs geek the following relief against Burton F, 
Raiford in his capacity as Commissioner of the Texas Department 
of Human Services:  



  

dois : 10:37 * 
® 

  

da. a temporary restraining order enjoining defendant from 
the use of the EP test statewide as a blood lead level screening 

procedure and requiring the defendant to use the blood lead level 
test statewide as part of the EPSDT program, 

b. a preliminary and permanent injunction requiring Mr. 
Raiford to: 

(1) continue the temporary relief, 

(2) declare West Dallas a geographic area of high risk for 
children for lead poisoning and notify all EPSDT providers that 
eligible children that live and have lived in West Dallas nust be 
given lead blood level asgessments. 

(3) declare other geographic areas of the State of Texas 
that have a risk of lead contamination as areas of high risk for 
children for lead poisoning and notify all EPSDT providers that 
eligible children that live in those high risk areas and have 
lived in those areas must be given lead blood level assessments. 

(4) give effective notice and outreach to all EPSDT eligible 
children who live in West Dallas or other high risk areas of the 
State of Texas or have lived in West Dallas or other high risk 
areag in the state of the availability of the blood lead screen- 
ing and treatment. 

(5) re-test, using the blood lead level test, each person in 
the class for whom the EP test was given in the past, 

(6) implement a case management program to ensure that all 
children eligible for the screening receive it and that all 
necessary medical treatment is provided to the children for whom 

18 

 



  

020 
  

10:33 % » 

the screening indicates a lead poisoning related health risk. The 
screening, the schedule for screening and the treatment provided 
should all be conducted pursuant to the U.S. Department of Health 
and Human Services, Public Health Service, Centers for Disease 
Control guidelines, 

C. an award of attorney's fees, litigation expenses and 
costs, and 

d. provides any other appropriate relief. 

Relief sought against the USA   

72. Plaintiffs seek the following relief against the Usa: 
a. a temporary restraining order and a preliminary injunc- 

tion enjoining the USA, through the HCFA, from giving effect to 
the provisions of the State Medicaid Manual revisions which allow 
the States to use the EP test as an appropriate screening test 
for lead poisoning, 

b. a permanent injunction that: 

(1) continues the relief granted by the TRO and prelim- 
inary injunction, 

(2) enjoins the operation and effect of any regulations 
Or guidelines which allow for the use of and the compensation for 
EP tests to test for lead poisoning instead of blood lead level 
tests, 

(3) orders the publication of and enforcement of 
regulations and guidelines requiring the States to use blood lead 
tests and requiring the States to retest, using blood lead tests, 
each Medicaid eligible child for whom the States have used an Ep 

19 

 



   
08,31,92 10:33 @021 

' * 
. 

[od 
» 

test instead of a blood lead test and compensating the States for 

the retests, 

€. an award of attorney's fees, litigation expenses and 

costs, and 

d. provides any other appropriate relief. 

20