Plaintiffs' Reply to Defendant's Opposition to Motion to Intervene and Declarations of Bill Lann Lee and Megan Charlop

    NORTHERN DISTRICT OF TEXAs | DEC | 0562 
cof { UNITED STATES DISTRICT COURT | 

FILED 
a a 

  | 
  

DALLAS DIVISION | NANCY DOHERTY, CLERK 

LOIS THOMPSON on behalf of and as next 
friend to TAYLOR KEONDRA DIXON, 
ZACHERY X. WILLIAMS, CALVIN A. 
THOMPSON and PRENTISS LAVELL 
MULLINS, 

Plaintiffs, 

PEOPLE UNITED FOR A BETTER 
OAKLAND, on behalf of its members; 
DENVER ACTION FOR A BETTER 
COMMUNITY, on behalf of its members; 
NEW YORK CITY COALITION TO END 
LEAD POISONING, on behalf of its 
members; ROBIN GOURLEY on behalf of 
and as next friend to BRYAN ALAN 
GOURLEY, WESLEY KYLE GOURLEY, 
BRIDGET MICHELLE GOURLEY, 
LINDA DANIELLE GOURLEY and 
BETSEY IRENE GOURLEY; TEARRAH 
ROBERSON on behalf of and as guardian 
ad litem to JUAN WILKINS; and MARY 
MARIE ROBERSON on behalf of and as 
guardian ad litem to ASHARD MOORE, 
JASON ROLLINS, ASHEA ROBERSON, 
and NASHEIKA ROBERSON, 

Proposed Plaintiff-Intervenors, 

V. 

BURTON F. RAIFORD, in his capacity as 
Commissioner of the Texas Department of 
Human Services, 

The UNITED STATES OF AMERICA, 

Defendants, 

LOUIS W. SULLIVAN, in his capacity as 
Secretary of the United States Department of 
Health and Human Services, 

Proposed Additional Defendant.     

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2 £24 APY armenia 
De 51 

CASE NO. 3-92 CV 1539-R 

Civil Action 

Class Action 

PLAINTIFFS’ REPLY TO 
DEFENDANT UNITED STATES OF 
AMERICA’S OPPOSITION TO 
MOTION TO INTERVENE AND 
DECLARATIONS OF BILL LANN 
LEE AND MEGAN CHARLOP 

 



  

Plaintiff-intervenors’ reply as follows to arguments made by the federal defendant’s 

opposition to their motion to intervene. 

1. The intervention motion should be decided first. Federal defendant argue that 

the Court should defer ruling on the motion to intervene until after ruling on federal 

defendant’s October 16, 1992 motion to dismiss and plaintiffs’ October 14, 1992 motion for 

class certification. Federal defendant anticipates that the Court will accept its arguments that 

plaintiffs have no standing to sue and/or that the decision regarding class certification will 

obviate the need to decide intervention. USA Opposition 4-7. In either case, the federal 

defendant’s position rests upon the same ambition: to line the pending motions up precisely 

so as to prevent the plaintiff-intervenors from ever having an opportunity to participate as a 

full party when vital substantive matters are being decided. 

While it is in the Court’s discretion to defer the intervention motion until other 

matters are resolved, plaintiff-intervenors urge the Court to decide intervention first because 

to do so will assist in resolving all the pending issues in the most efficient and fair manner. 

Granting intervention will, as we explain below, place all affected children who have come 

forth stating an interest in this action on equal footing before the Court. Moreover, while 

plaintiff-intervenors disagree with the federal defendant’s argument that the existing plaintiffs 

lack standing, intervention will nevertheless strengthen plaintiffs’ position on standing by 

adding additional parties plaintiff with clear standing. Intervention will also strengthen 

plaintiffs’ ability to represent the national class by adding additional class representatives from 

other states. 

2. Proposed plaintiff-intervenors have standing. It is unsettled whether a proposed 

intervenor, in addition to plaintiff, must satisfy Article III standing requirements as well as 

Fed. R. Civ. P. 24 requirements. Diamond v. Charles, 476 U.S. 54, 68-69 and n. 21 (1986). 

("We need not decide today whether a party seeking to intervene before a district court must 

satisfy not only the requirements of Rule 24 (a)(2), but also the requirements of Article III"). 

In the instant case, however, plaintiff-intervenors clearly have standing. 

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First, Medicaid-eligible, plaintiff-intervenor children, like plaintiff children, complain 

  

of an injury, namely that they are denied or threatened with the denial of statutorily-required 

mandatory blood lead testing to screen for lead poisoning, and that this injury is directly 

traceable to federal defendant’s failure to force state Medicaid programs to require such 

testing, leaving it to their discretion. Requiring state Medicaid programs to conduct 

mandatory blood lead testing would obtain relief for plaintiff-intervenors. That is enough for 

standing. See Allen v. Wright, 468 U.S. 737, 751 (1984) ("A plaintiff must allege personal 

injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed 

by the requested relief."). 

Federal defendant claims that plaintiff and plaintiff-intervenor children are not injured 

because they would all receive blood lead tests under their discretionary high-low risk verbal 

assessment scheme. To the contrary, some of the plaintiff-intervenors fall into the low risk 

category and, thus, can be tested using the "insensitive" EP test. All this assumes, of course, 

that the guardians and parents of these children will receive and understand the content of 

the verbal assessment. No one can make any such assurance. Plaintiffs and plaintiff- 

intervenors are poor people, often highly mobile, who simply may be unable intelligently to 

answer questions about the age of their housing, whom their children play with, or whether 

lead-emitting sources are nearby. They may also be unable to read the written list of 

questions proffered them in a hurried public health clinic visit. Notably, this entire risk 

assessment depends upon the provider taking the time to explain, distribute or administer, and 

review the risk assessment during the child’s check up, which lasts, on average, only thirteen 

minutes. Riley and Wissow, "Recognition of Emotional and Behavioral Problems and Family 

Violence in Pediatric Primary Care," in Mental Disorders in Primary Care (eds. Mirand, 

Hohmann, Attkisson & Larson, to be published in 1993), attached as Exhibit A to Declaration 

of Bill Lann Lee in Support of Motion to Intervene. 

Federal defendant’s own Centers for Disease Control Statement, Preventing Lead 

Poisoning in Young Children 42 (1991), confirms that common sense: "The questions are not 

a substitute for a blood lead test." (original emphasis). Drs. Rosen, Mushak, and Reigart agree. 

Rosen decl. at 119 ("Verbal questioning about a child’s possible exposure to lead cannot elicit 

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complete definitive or accurate data to indicate a child’s blood lead levels. Many patients, 

especially, Medicaid recipients, simply may not know all the answers to the verbal assessment 

questions."), 1 34 ("The CDC Statement is unequivocal that for [Medicaid-eligible children], 

a blood test must be conducted at least once by the time a child reaches 12 months and again 

by 24 months of age, even if the response to the assessment questions indicate the child is at 

‘low risk’ of lead poisoning."); Reigart decl. at 19 ("[A] series of questions cannot verify blood 

lead levels. Nor will a series of questions guarantee that a child will be appropriately 

classified as low risk. In other words, a child can answer all risk-identifying questions in the 

negative and still be poisoned"); Mushak decl. at 1 19. 

It is, in short, the denial of mandatory blood lead testing that injures and confers 

standing on plaintiffs and plaintiff-intervenors. Such a denial establishes injury in fact. 

Moreover, plaintiffs and plaintiff-intervenors are seeking to protect an interest that is 

within the zone of interests to be protected by the statute. Havens Realty Corp. v. Coleman, 

455 U.S. 363, 372-74 (1982) ("The actual or threatened injury required by Art. III may exist 

solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing™) 

(citation omitted). A useful analogy is the injury that arises under the Fair Housing Act from 

denial of housing to non-bona fide purchaser testers, see, e.g., Havens, or under the 14th 

Amendment from mere denial of consideration for a benefit invoked by a reverse 

discrimination plaintiff irrespective of whether he or she would have obtained the benefit. 

See, e.g., Regents of University of California v. Bakke, 438 U.S. 265, 280 n. 14 (1978) (Powell, 

J.) (education case) ("The constitutional element of standing is plaintiff’s demonstration of - 

any injury to himself that is likely to be redressed by favorable decision of his claim. Warth 

v. Seldin, 422 U.S. 490, 498 (1975). The trial court found such an injury, apart from failure 

to be admitted, in the University’s decision not to permit Bakke to compete for all 100 places- 

in the class, simply because of his race."). Just as the Fair Housing Act and the 14th 

Amendment contemplate injury for standing purposes arising from denial of housing to testers 

or denial of consideration on the basis of race, the EPSDT Medicaid statute contemplates 

injury arising from denial of mandatory benefits to Medicaid-eligible children. See, eg, 

Mitchell v. Johnson, 701 F.2d 337, 346-48 (5th Cir. 1983) ("Qualified recipients are entitled to 

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. . . minimum package of mandatory services under 42 U.S.C. § 1396a."). 

Federal defendant’s discussion of the denial of blood lead testing to plaintiff-intervenor 

Gourley children exposes the fallacy of its position. After arguing that they are high risk 

children who "should be receiving a verbal assessment followed by a blood test, federal 

defendant claims that, if they are not receiving such an assessment, "their injury is not 

attributable to the HCFA guideline, and is appropriately redressed by the state department 

of health, not by the federal defendant." USA Opposition 10-11. The scenario proffered by 

federal defendant, in short, is not calculated realistically to obtain relief for plaintiffs or 

plaintiffs-intervenors under the EPSDT statute. Only mandatory testing will do that. It is 

precisely the federal government’s use of a discretionary testing scheme, which permits some 

Medicaid-eligible children to go untested, that plaintiffs and plaintiff-intervenors allege as the 

injury they complain about. 

Second, at least one of the plaintiff children and some children of members of 

proposed plaintiff-intervenors PUEBLO, ABC, and NYCCELP are low risk children under 

federal defendant’s high - low risk scheme. See Plaintiffs’ Memorandum in Opposition to 

Motion to Dismiss 8-9 and declarations of Bill Lann Lee and Megan Charlop. As such, 

federal defendant would have to concede that plaintiffs and plaintiff-intervenors have 

standing. 

Third, federal defendant argues that proposed plaintiff-intervenors PUEBLO, ABC and 

NYCCELP lack associational standing because they have not shown that federal defendant’s 

actions have caused injury to their organizational purposes or the interests of their members. 

USA Opposition 11-12. The organizations are identified as groups that advocate adequate 

lead screening and are composed of Medicaid-eligible families who have been denied or 

threatened with denial of blood lead testing. Proposed complaint-in-intervention at 11 16-19 

Both their complaint and supporting memorandum as well as their amici curiae brief and 

presentation of evidence demonstrate how federal defendant’s failure to implement the 

mandatory testing required by the EPSDT Medicaid statute adversely affects the 

organizations’ purposes and their members’ interest in obtaining and safeguarding blood lead 

testing. 

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3. The criteria for intervention as of right are met. Conceding that plaintiff- 

  

intervenors’ motion was timely filed and states an interest in the subject matter of the 

litigation, federal defendant argues that disposition of the action will not, as a practical matter, 

impair or impede their ability to protect their interest, USA Opposition 14-21, and that 

existing plaintiffs adequately represent their interests. USA Opposition 21-25. While federal 

defendant argues these points at great length, they require only a brief reply. 

Plaintiff-intervenors have an interest in obtaining or safeguarding their statutory right 

to mandatory blood lead testing. An adverse disposition of this case in which a nationwide 

class action is pleaded to challenge federal defendant’s failure to require such testing would 

plainly impair or impede plaintiff-intervenors’ ability to protect that interest. While it is true 

that plaintiff-intervenors could bring litigation in their home fora challenging federal 

defendant’s conduct, no such cases have been brought. The issue has been raised and joined 

in the action before this Court, and, as a practical matter, this Court is likely to grant relief 

much more speedily than any other court could. This alone is dispositive of the issue of 

impairment and impediment because time is of the essence when testing for lead poisoning. 

The Centers for Disease Control have established a screening schedule based on the fact that 

children’s blood lead levels increase most rapidly at 6-12 months and peak at 18-24 months. 

CDC Statement 42-43; Rosen decl. 1 34. The delay-prone alternative litigation scenarios 

painted by federal defendant simply are not realistic alternatives for plaintiff-intervenors or 

the class of similarly-situated children they seek to represent. Participation in this case offers 

them their best chance for relief. 

In every respect, plaintiff-intervenors’ case for intervention fits within the rubric of 

Ceres Gulf v. Cooper, 957 F.2d 1199, 1203-1204 (5th Cir. 1992). A decision unfavorable to 

plaintiff-intervenors’ interest in this case will impede their ability to use the federal _ 

interpretation of the federal Medicaid statutory requirement for blood lead assessments. 

Without allowing plaintiff-intervenors to be heard on this issue, such a decision will allow a 

precedent to be reached on an important federal statutory issue, for those for whom the 

statute was enacted -- Medicaid-eligible children nationwide -- without their input. Ceres, 957 

F.3d at 1204. 

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Federal defendant suggests that such reasoning would allow all Medicaid-eligible 

children to intervene. It might, if all those children had as substantial contributions to make 

to developing the record as the current proposed intervenors, and those children’s intervention 

would not delay and complicate the case. Such a suggestion is indeed not likely, but even if 

it were, federal defendant would have all such intervenors file separate actions, certainly not 

a judicially economical measure for the federal court system. 

With respect to inadequacy of representation, the requirement "should be treated as 

minimal," Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972), and the burden of 

persuasion is on the opponent with all doubts to be resolved in favor of the intervenor 

"whenever there is a significant possibility that the representation may prove inadequate." 7C 

Wright, Miller & Kane, Federal Practice and Practice: Civil 2d § 1909, p. 316 (2d ed. 1986). 

"[T]here is good reason in most cases to suppose that the applicant is the best judge of the 

representation of his own interests and to be liberal in finding that one willing to bear the cost 

of separate representation may not be adequately represented by the existing parties." Id. at 

317. 

Federal defendant basically contends that plaintiff-intervenors’ interests are adequately 

represented by plaintiffs because of the identity of interests they share with plaintiffs in 

seeking to obtain and safeguard blood lead testing. This ignores the fact that some of the 

plaintiff-intervenors are "low risk" children and the fact that plaintiffs are Texas parents, 

guardians and children while plaintiffs-intervenors are advocacy groups and parents and 

children from New York, North Carolina, Colorado, and California. NYCCELP, for instance, 

has garnered a wealth of experience on lead poisoning issues as a result of years of advocacy 

and litigation. Plaintiffs-intervenors submit that their briefing and evidentiary presentation 

on federal defendant’s motions to dismiss and for summary judgment surely demonstrate how 

the identity of interests does not preclude plaintiffs-intervenors from making a distinct and 

useful contribution to the record in this case. Certainly plaintiffs do not join federal 

defendant in arguing that plaintiffs adequately represent plaintiff-intervenors’ interest for low 

risk intervention purposes. 

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4. Permissive intervention is appropriate. Conceding that Fed. R. Civ. P. 24 (b) 

"we permissive intervention is “wholly discretionary with the district court,” USA Opposition 25, 

federal defendant nevertheless contends that intervention should not be permitted because 

plaintiff-intervenors are adequately represented by plaintiffs and are unlikely to contribute 

significantly on the factual issues. We submit that plaintiff-intervenors’ contribution to 

developing the record to date as amici curiae is an adequate refutation of both points. With 

respect to the related argument that plaintiff-intervenors should be restricted to amici status, 

the desirability of strengthening standing and class representation argues for intervention as 

does the utility of continuing participation -- as opposed to an episodic amici role -- by 

plaintiffs-intervenors in this nationwide class action. 

Conclusion 

The Court should grant the motions to intervene pursuant to Fed. R. Civ. P. 24 (a) 

and (b) and the unopposed motion to join the Secretary of the U.S. Department of Health 

and Human Services as an additional defendant pursuant to Fed. R. Civ. P. 20. 

Dated: December 9, 1992 

Respectfully submitted, 

Edward B. Cloutman, III 
Texas Bar No. 04411000 
Law Office of Edward B. Cloutman, III 
3301 Elm Street 
Dallas, TX 75226 

  

  

Edward B. Cloutman, III 

Julius L. Chambers 
Alice Brown 

NAACP Legal Defense & Educational 
Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, NY 10013 ¥ 
(212) 219-1900 

  

"See USA Opposition 21 n. 16 

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  C:\DOC\THOMPSON\P-REPLY 

Bill Lann Lee 
Kirsten D. Levingston 
NAACP Legal Defense & Educational 
Fund, Inc. 7    
  

Jane Perkins 
National Health Law Program 
1815 H Street, N.W. Suite 705 
Washington, D.C. 
(202) 887- 310. Vili 2 | 

Jane Perkins 
  

Carlene NcNulty 
North State Legal Services 
114 West Corbin Street 
Hillsborough, N.C. 27278 
(919) 732-8137 

Lucy Billings 
Marie-Elena Ruffo 
Bronx Legal Services 
579 Courtlandt Avenue 
Bronx, NY 10451 
(212) [2 

  

Lucy wr J ee 

Attorneys for Plaintiff-Intervenors 
People United for a Better Oakland, et al 

 



  

DECLARATION OF BILL LANN LEE 
IN SUPPORT OF MOTION TO INTERVENE AND 

TO JOIN ADDITIONAL DEFENDANT 

I, BILL LANN LEE, being duly sworn, states: 

1. I am one of the counsel for proposed plaintiff-intervenors. In particular, I 

represent People United for a Better Oakland, Oakland, California (PUEBLO) and Action 

for a Better Community, Denver, Colorado (ABC). 1 earlier represented PUEBLO in 

Matthews v. Coye, N.D. Cal. Civ. Act. No. C-90-3620 EFT, another action concerning the 

sufficiency of screening for lead poisoning. 

2 I have knowledge of the backgrounds of members of PUEBLO and ABC. 

3 The membership of PUEBLO and ABC includes parents and guardians of both 

"low risk" and "high risk" children as those terms are used in defendant United States of 

America’s memorandum in support of its opposition to class certification. 

4. Attached hereto as Exhibit A is a true copy of Riley and Wissow, "Recognition 

of Emotional and Behavioral Problems and Family Violence in Pediatric Primary Care," in 

Mental Disorders in Primary Care (eds. Mirand, Hohmann, Attkisson & Larson, to be 

published in 1993). 

I declare under penalty of perjury that the foregoing is true and correct. 

    
Executed this 9th day of December, 1992, Los 

  

Ng 7 v 

A Lann Lee 

CADOC\THOMPSON\P-REPLY 9 

 



RECOGNITION OF EMOTIONAL AND BEHAVIORAL PROBLEMS 
AND FAMILY VIOLENCE IN PEDIATRIC PRIMARY CARE 

Anne W. Riley, Ph.D. and Lawrence S. Wissow, M.D. 

School of Hygiene and Public Health 
School of Medicine 

Johns Hoplkans University 

Chapter Prepared for 
Mental Disorders in Primary Care 

Jeanne Miranda, Ann Hohmann, Clifford Attkisson, and David Larson 
Editors : 

DRAFT 
  

      
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Recognition in Pediatric Practice 

the Conflict Tactics Scale (Straus 1979) as a measure of violence within their home, Physicians 

were then asked to predict which of their patients’ mothers would report violence. Forty percent 

of mothers reported the occurrence of abusive violence among family members within the past 

year, but physicians correctly identified only 27% of these families (Wissow, Wilson, Rater, 

Larson, Berman 1992). 

  

Somatic complaints are the most frequent office presentations of children with emotional 

or behavioral distress (Starfislc et al 1980; Gerralda and Bailey 1986). Typical problems 

include abdominal pain, fatigue, headaches, and anorexia (Nikapota 1987). In some cases the 

child's bodily symptoms are truly 'functional,’ that is, they go away when a primary psychologic 

problem js addressed. In many cases, however, treatable medical conditions may also exist, but 

their impact on the child and family has been accentuated by behavioral or emotional problems. 

The physician's task is to find the right balance between a medical and a psychosocial approach 

to the child's evaluation (Bridges and Goldberg 1983). 

One concern is that somatic complaints will be taken at face value without inquiry into 

contributing psychologic factors. Pediatric providers typically spead less than & minute in the 

average 13 minute visit inquiring about psychosocial problems and providing guidancs to the 

child and parent (NCHS 1988; Reisinger and Bires 1980). Unless providers demonstrate interest 

in psychosocial problems and provide an opportunity to discuss them, it is very unlikely that they 

‘will obtain the information necessary to accurately diagnosis psychosomatic or functional 

problems (Roter and Hall 1991). 

11 
  

(ExrBT_A | 
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[4 & , Joidd ® Col hiZ2ea E O30] 

DECLARATION OF MEGAN CHARLOP 

I, Megan Charlop, declare the following upon my own 

knowledge and under penalties of perjury: 

1. I have been Chairperson of the New York City Coalition 

to End Lead Poisoning (NYCCELP), intervenor in this action, for 

over five years, and a founding member of NYCCELP, since its 

inception approximately nine years ago. In my daily work, I 

currently see and assist approximately 100 families with young 

children who have been exposed to lead paint poisoning per month. 

The experiences of the NYCCELP membership would increase this 

number many times over. 

2 In carrying out my responsibilities as NYCCELP 

Chairperson, I regularly convene and attend the monthly NYCCELP 

meetings and the intervening meetings of NYCCELP’s committees. I 

meet with NYCCELP members at these meetings and am in regular 

contact with them in between meetings, often visiting their homes 

and families. 

3. In this capacity I am fully familiar with NYCCELP'’s 

litigation in New York, N.Y.C. Coalition to End Lead Poisoning Vv. 
  

Koch, 524 N.Y.S.2d 314, 318-19 (Sup. Ct. 1987), aff’d, 526 

N.Y.S.2d 918 (1st Dep’t 1988), Index No. 42780/85, Plaintiffs’ 

Motion for Specific Enforcement (filed May 18, 1992, argued Oct. 

19, 1992); with the organization’s membership and the members’ 

interests; and with NYCCELP‘s organizational purposes and 

interests. 

medee! tom 1 

 



   

  

20a" 394d ® » PC:51 26. EB 734 

NYCCELP’S LITIGATION IN NEW YORK 

4. Federal officials are not parties to NYCCELP’S New York 

litigation, cited above. In that litigation against New York 

State and City, NYCCELP is seeking proper, accurate blood lead 

tests under the Medicaid program, based on the federal Medicaid 

statutes. See Complaint in Intervention § 18. If this court 

interprets the federal Medicaid statutes not to require proper, 

accurate blood lead tests, that interpretation will have a 

disastrous effect on the relief NYCCELP is seeking in New York. 

That litigation, contrary to federal defendants’ assertion here, 

is therefore a reason to grant our intervention, not to deny it. 

NYCCELP’S MEMBERSHIP 

5. The Complaint in Intervention § 18 in this action 

alleges that NYCCELP’s members have been and are being threatened 

with the denial of blood lead assessments to screen for lead 

poisoning. Defendants introduce no facts to rebut that 

allegation. 

6. The facts concerning this alleged harm are that, under 

the federal Health Care Financing Administration (HCFA) 

guidelines, the parents and guardians of young Medicaid-eligible 

children throughout New York City who are NYCCELP members will 

not necessarily be provided blood lead assessments. Some of 

these families fall into HCFA's "low risk" category, and 

therefore the HCFA guidelines deny them blood lead assessments to 

screen for lead poisoning. HCFA State Medicaid Manual § 

$123.2(D) (1). These families, particularly those who live in the 

mcdec] tom 2 

 



  

   cua” 304d Eo » GL:51 26. BE 03a 

newer public housing projects, live in housing built between 1960 

and 1978, before federal law prohibited use of lead paint for 

residential use. See Declaration of Paul Mushak, Ph.D. § 12; 

Declaration of John ¥. Rosen, M.D. § 14; 16 C.F.R. pt. 1303; 

Centers for Disease Control, Statement on Preventing Lead 

Poisoning in Young Children 18 (1991). 

To Typically public housing and other leased apartments 

are painted upon unit turnover. Families who have recently moved 
Sw i ——— I ep 

g 

Hoyt 

into theif ¢iifrent residences may not have peeling or chipping 

paint in their apartments--yet. Many of these structures, as is 

also typical of low-income housing, may be deteriorating, soon to 

affect the painted surfaces, and to expose older lead paint, but 

not necessarily before the children’s next medical examination. 

NYCCELP’S ORGANIZATIONAL PURPOSES 

8. Intervenors’ Complaint ¢ 18 also alleges that HCFA'’s 

denial of blood lead assessments thwarts NYCCELF'’s organizational 

purposes. NYCCELP’s organizational purposes include educating 

and advocating for the families of Medicaid-eligible children to 

obtain proper lead poisoning screening through the Medicaid 

program. NYCCELP has been pursuing these interests for years, so 

ardently as to prosecute litigation over this issue and to obtain 

a court ruling requiring appropriate and sufficient lead 

poisoning screening under the federal Medicaid program. N.Y.C. 

Coalition to End lead Poisoning v. Koch, 524 N.Y.S.2d4 at 318-19, 

aff’d, 526 N,Y.S5.2d4 918, Index No. 42780/85, Plaintiffs’ Motion 

for Specific Enforcement (filed May 18, 1992; argued Oct. 19, 

wedocl. tom 3 

 



FOE” 30H ® 

1992). Federal defendants’ policy will thwart the pursuit of 

these interests. 

THE MEMBERS’ AND THE ORGANIZATION’S INTERESTS REGARDING THIS CASE 

9. NYCCELP’s interests in this action are unusually 

substantial. If the federal law is interpreted not to require 

proper, accurate blood lead tests under the Medicaid program, 

then this court in Texas will entirely undercut any victory by 

NYCCELP in New York. No party in Texas, unaffected by the New 

York actions, can adequately represent the New York parties who 

are so affected. 

10. Together with the intervenors from California, 

Colorado, and North Carolina, in addition to the Texas 

plaintiffs, we present a cross-section of residents from across 

the country. In this regard, NYCCELP and each intervenor 

contribute immediately and significantly to plaintiffs’ ability 

to represent a nationwide class, as they have sought to do. 

11. Of course intervenors also articulate interests 

identical to plaintiffs’ interests in establishing the blood lead 

test as the required test. Defendants emphasize this point, 

repeatedly. In-so doing, they only underscore the 

appropriateness of our intervention in this case. 

I declare under penalties of perjury that the foregoing is 

true upon my own Knowledge. 

Executed at Bronx, New York 
on December 9, 1992 

Sa CHARLOP bf 
   



CERTIFICATE OF SERVICE 

  

  

Undersigned counsel for proposed plaintiff-intervenors certifies that copies of 

Plaintiffs’ Reply to Defendant United States of America’s Opposition to Motion to Intervene 

and Declarations of Bill Lann Lee and Megan Charlop were served on counsel for the parties 

by fax and first class United States mail to: 

Michael M. Daniel, P.C. 
3301 Elm Street 
Dallas, TX 75226-1637 
Telefacsimile: (214) 939-9229 

Edwin N. Horne 
Assistant Attorney General 
General Litigation Division 
P.O. Box 12548 
Capital Station 
Austin, TX 78711-2548 
Telefacsimile: (512) 447-0511 

Alina S. Kofsky 
Sheila Lieber 
Department of Justice 
Federal Programs Branch, Civil Division 
901 E. Street, N.W. 
Washington, D.C. 20530 
Telefacsimile: (202) 616-8470 

This 9th day of December, 1992 

  

  

/ Bill Lann Lee 

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om // J Lo i 

yl f4/ 
/ 

UNITED STATES DISTRICT COURT 

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, 

Plaintiffs, 

PEOPLE UNITED FOR A BETTER 
OAKLAND, on behalf of its members; 
DENVER ACTION FOR A BETTER 
COMMUNITY, on behalf of its members; 
NEW YORK CITY COALITION TO END 
LEAD POISONING, on behalf of its 
members; ROBIN GOURLEY on behalf of 
and as next friend to BRYAN ALAN 
GOURLEY, WESLEY KYLE GOURLEY, 
BRIDGET MICHELLE GOURLEY, 
LINDA DANIELLE GOURLEY and 
BETSEY IRENE GOURLEY; TEARRAH 
ROBERSON on behalf of and as guardian 
ad litem to JUAN WILKINS; and MARY 
MARIE ROBERSON on behalf of and as 
guardian ad litem to ASHARD MOORE, 
JASON ROLLINS, ASHEA ROBERSON, 
and NASHEIKA ROBERSON, 

Proposed Plaintiff-Intervenors, 

V. 

BURTON F. RAIFORD, in his capacity as 
Commissioner of the Texas Department of 
Human Services, 

The UNITED STATES OF AMERICA, 

Defendants, 

LOUIS W. SULLIVAN, in his capacity as 
Secretary of the United States Department of 
Health and Human Services, 

Proposed Additional Defendant.   
  

C\DOC\THOMPSON\P-REPLY 

CASE NO. 3-92 CV 1539-R 

Civil Action 

Class Action 

PLAINTIFFS’ REPLY TO 
DEFENDANT UNITED STATES OF 
AMERICA’S OPPOSITION TO 
MOTION TO INTERVENE AND 
DECLARATIONS OF BILL LANN 
LEE AND MEGAN CHARLOP 

 



  

Plaintiff-intervenors’ reply as follows to arguments made by the federal defendant’s 

opposition to their motion to intervene. 

1. The intervention motion should be decided first. Federal defendant argue that 

the Court should defer ruling on the motion to intervene until after ruling on federal 

defendant’s October 16, 1992 motion to dismiss and plaintiffs’ October 14, 1992 motion for 

class certification. Federal defendant anticipates that the Court will accept its arguments that 

plaintiffs have no standing to sue and/or that the decision regarding class certification will 

obviate the need to decide intervention. USA Opposition 4-7. In either case, the federal 

defendant’s position rests upon the same ambition: to line the pending motions up precisely 

so as to prevent the plaintiff-intervenors from ever having an opportunity to participate as a 

full party when vital substantive matters are being decided. 

While it is in the Court’s discretion to defer the intervention motion until other 

matters are resolved, plaintiff-intervenors urge the Court to decide intervention first because 

to do so will assist in resolving all the pending issues in the most efficient and fair manner. 

Granting intervention will, as we explain below, place all affected children who have come 

forth stating an interest in this action on equal footing before the Court. Moreover, while 

plaintiff-intervenors disagree with the federal defendant’s argument that the existing plaintiffs 

lack standing, intervention will nevertheless strengthen plaintiffs’ position on standing by 

adding additional parties plaintiff with clear standing. Intervention will also strengthen 

plaintiffs’ ability to represent the national class by adding additional class representatives from 

other states. 

2. Proposed plaintiff-intervenors have standing. 1t is unsettled whether a proposed 

intervenor, in addition to plaintiff, must satisfy Article III standing requirements as well as 

Fed. R. Civ. P. 24 requirements. Diamond v. Charles, 476 U.S. 54, 68-69 and n. 21 (1986). 

("We need not decide today whether a party seeking to intervene before a district court must 

satisfy not only the requirements of Rule 24 (a)(2), but also the requirements of Article III"). 

In the instant case, however, plaintiff-intervenors clearly have standing. 

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First, Medicaid-eligible, plaintiff-intervenor children, like plaintiff children, complain 

of an injury, namely that they are denied or threatened with the denial of statutorily-required 

mandatory blood lead testing to screen for lead poisoning, and that this injury is directly 

traceable to federal defendant’s failure to force state Medicaid programs to require such 

testing, leaving it to their discretion. Requiring state Medicaid programs to conduct 

mandatory blood lead testing would obtain relief for plaintiff-intervenors. That is enough for 

standing. See Allen v. Wright, 468 U.S. 737, 751 (1984) ("A plaintiff must allege personal 

injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed 

by the requested relief."). 

Federal defendant claims that plaintiff and plaintiff-intervenor children are not injured 

because they would all receive blood lead tests under their discretionary high-low risk verbal 

assessment scheme. To the contrary, some of the plaintiff-intervenors fall into the low risk 

category and, thus, can be tested using the "insensitive" EP test. All this assumes, of course, 

that the guardians and parents of these children will receive and understand the content of 

the verbal assessment. No one can make any such assurance. Plaintiffs and plaintiff- 

intervenors are poor people, often highly mobile, who simply may be unable intelligently to 

answer questions about the age of their housing, whom their children play with, or whether 

lead-emitting sources are nearby. They may also be unable to read the written list of 

questions proffered them in a hurried public health clinic visit. Notably, this entire risk 

assessment depends upon the provider taking the time to explain, distribute or administer, and 

review the risk assessment during the child’s check up, which lasts, on average, only thirteen 

minutes. Riley and Wissow, "Recognition of Emotional and Behavioral Problems and Family 

Violence in Pediatric Primary Care," in Mental Disorders in Primary Care (eds. Mirand, 

Hohmann, Attkisson & Larson, to be published in 1993), attached as Exhibit A to Declaration 

of Bill Lann Lee in Support of Motion to Intervene. 

Federal defendant’s own Centers for Disease Control Statement, Preventing Lead 

Poisoning in Young Children 42 (1991), confirms that common sense: "The questions are not 

a substitute for a blood lead test." (original emphasis). Drs. Rosen, Mushak, and Reigart agree. 

Rosen decl. at 119 ("Verbal questioning about a child’s possible exposure to lead cannot elicit 

C\DOC\THOMPSON\P-REPLY 2 

 



complete definitive or accurate data to indicate a child’s blood lead levels. Many patients, 

especially, Medicaid recipients, simply may not know all the answers to the verbal assessment 

questions."), 1 34 ("The CDC Statement is unequivocal that for [Medicaid-eligible children], 

a blood test must be conducted at least once by the time a child reaches 12 months and again 

by 24 months of age, even if the response to the assessment questions indicate the child is at 

‘low risk’ of lead poisoning."); Reigart decl. at 19 ("[A] series of questions cannot verify blood 

lead levels. Nor will a series of questions guarantee that a child will be appropriately 

classified as low risk. In other words, a child can answer all risk-identifying questions in the 

negative and still be poisoned"); Mushak decl. at 1 19. 

It is, in short, the denial of mandatory blood lead testing that injures and confers 

standing on plaintiffs and plaintiff-intervenors. Such a denial establishes injury in fact. 

Moreover, plaintiffs and plaintiff-intervenors are seeking to protect an interest that is 

within the zone of interests to be protected by the statute. Havens Realty Corp. v. Coleman, 

455 U.S. 363, 372-74 (1982) ("The actual or threatened injury required by Art. III may exist 

solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing™) 

(citation omitted). A useful analogy is the injury that arises under the Fair Housing Act from 

denial of housing to non-bona fide purchaser testers, see, e.g., Havens, or under the 14th 

Amendment from mere denial of consideration for a benefit invoked by a reverse 

discrimination plaintiff irrespective of whether he or she would have obtained the benefit. 

See, e.g., Regents of University of California v. Bakke, 438 U.S. 265, 280 n. 14 (1978) (Powell, 

J.) (education case) ("The constitutional element of standing is plaintiff’s demonstration of 

any injury to himself that is likely to be redressed by favorable decision of his claim. Warth 

v. Seldin, 422 U.S. 490, 498 (1975). The trial court found such an injury, apart from failure 

to be admitted, in the University’s decision not to permit Bakke to compete for all 100 places 

in the class, simply because of his race."). Just as the Fair Housing Act and the 14th 

Amendment contemplate injury for standing purposes arising from denial of housing to testers 

or denial of consideration on the basis of race, the EPSDT Medicaid statute contemplates 

injury arising from denial of mandatory benefits to Medicaid-eligible children. See, eg, 

Mitchell v. Johnson, 701 F.2d 337, 346-48 (5th Cir. 1983) ("Qualified recipients are entitled to 

C\DOC\THOMPSON\P-REPLY 3  



  

pl » 
. . . minimum package of mandatory services under 42 U.S.C. § 1396a."). 

Federal defendant’s discussion of the denial of blood lead testing to plaintiff-intervenor 

Gourley children exposes the fallacy of its position. After arguing that they are high risk 

children who "should be receiving a verbal assessment followed by a blood test, federal 

defendant claims that, if they are not receiving such an assessment, "their injury is not 

attributable to the HCFA guideline, and is appropriately redressed by the state department 

of health, not by the federal defendant." USA Opposition 10-11. The scenario proffered by 

federal defendant, in short, is not calculated realistically to obtain relief for plaintiffs or 

plaintiffs-intervenors under the EPSDT statute. Only mandatory testing will do that. It is 

precisely the federal government’s use of a discretionary testing scheme, which permits some 

Medicaid-eligible children to go untested, that plaintiffs and plaintiff-intervenors allege as the 

injury they complain about. 

Second, at least one of the plaintiff children and some children of members of 

proposed plaintiff-intervenors PUEBLO, ABC, and NYCCELP are low risk children under 

federal defendant’s high - low risk scheme. See Plaintiffs’ Memorandum in Opposition to 

Motion to Dismiss 8-9 and declarations of Bill Lann Lee and Megan Charlop. As such, 

federal defendant would have to concede that plaintiffs and plaintiff-intervenors have 

standing. 

Third, federal defendant argues that proposed plaintiff-intervenors PUEBLO, ABC and 

NYCCELP lack associational standing because they have not shown that federal defendant’s 

actions have caused injury to their organizational purposes or the interests of their members. 

USA Opposition 11-12. The organizations are identified as groups that advocate adequate 

lead screening and are composed of Medicaid-eligible families who have been denied or 

threatened with denial of blood lead testing. Proposed complaint-in-intervention at 11 16-19. 

Both their complaint and supporting memorandum as well as their amici curiae brief and 

presentation of evidence demonstrate how federal defendant’s failure to implement the 

mandatory testing required by the EPSDT Medicaid statute adversely affects the 

organizations’ purposes and their members’ interest in obtaining and safeguarding blood lead 

testing. 

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3. The criteria for intervention as of right are met. Conceding that plaintiff- 

intervenors’ motion was timely filed and states an interest in the subject matter of the 

litigation, federal defendant argues that disposition of the action will not, as a practical matter, 

impair or impede their ability to protect their interest, USA Opposition 14-21, and that 

existing plaintiffs adequately represent their interests. USA Opposition 21-25. While federal 

defendant argues these points at great length, they require only a brief reply. 

Plaintiff-intervenors have an interest in obtaining or safeguarding their statutory right 

to mandatory blood lead testing. An adverse disposition of this case in which a nationwide 

class action is pleaded to challenge federal defendant’s failure to require such testing would 

plainly impair or impede plaintiff-intervenors’ ability to protect that interest. While it is true 

that plaintiff-intervenors could bring litigation in their home fora challenging federal 

defendant’s conduct, no such cases have been brought. The issue has been raised and joined 

in the action before this Court, and, as a practical matter, this Court is likely to grant relief 

much more speedily than any other court could. This alone is dispositive of the issue of 

impairment and impediment because time is of the essence when testing for lead poisoning. 

The Centers for Disease Control have established a screening schedule based on the fact that 

children’s blood lead levels increase most rapidly at 6-12 months and peak at 18-24 months. 

CDC Statement 42-43; Rosen decl. 1 34. The delay-prone alternative litigation scenarios 

painted by federal defendant simply are not realistic alternatives for plaintiff-intervenors or 

the class of similarly-situated children they seek to represent. Participation in this case offers 

them their best chance for relief. 

In every respect, plaintiff-intervenors’ case for intervention fits within the rubric of 

Ceres Gulf v. Cooper, 957 F.2d 1199, 1203-1204 (5th Cir. 1992). A decision unfavorable to 

plaintiff-intervenors’ interest in this case will impede their ability to use the federal 

interpretation of the federal Medicaid statutory requirement for blood lead assessments. 

Without allowing plaintiff-intervenors to be heard on this issue, such a decision will allow a 

precedent to be reached on an important federal statutory issue, for those for whom the 

statute was enacted -- Medicaid-eligible children nationwide -- without their input. Ceres, 957 

F.3d at 1204. 

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® » 
Federal defendant suggests that such reasoning would allow all Medicaid-eligible 

children to intervene. It might, if all those children had as substantial contributions to make 

to developing the record as the current proposed intervenors, and those children’s intervention 

would not delay and complicate the case. Such a suggestion is indeed not likely, but even if 

it were, federal defendant would have all such intervenors file separate actions, certainly not 

a judicially economical measure for the federal court system. 

With respect to inadequacy of representation, the requirement "should be treated as 

minimal," Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972), and the burden of 

persuasion is on the opponent with all doubts to be resolved in favor of the intervenor 

"whenever there is a significant possibility that the representation may prove inadequate." 7C 

Wright, Miller & Kane, Federal Practice and Practice: Civil 2d § 1909, p. 316 (2d ed. 1986). 

"[T]here is good reason in most cases to suppose that the applicant is the best judge of the 

representation of his own interests and to be liberal in finding that one willing to bear the cost 

of separate representation may not be adequately represented by the existing parties." Id. at 

317. 

Federal defendant basically contends that plaintiff-intervenors’ interests are adequately 

represented by plaintiffs because of the identity of interests they share with plaintiffs in 

seeking to obtain and safeguard blood lead testing. This ignores the fact that some of the 

plaintiff-intervenors are "low risk" children and the fact that plaintiffs are Texas parents, 

guardians and children while plaintiffs-intervenors are advocacy groups and parents and 

children from New York, North Carolina, Colorado, and California. NYCCELP, for instance, 

has garnered a wealth of experience on lead poisoning issues as a result of years of advocacy 

and litigation. Plaintiffs-intervenors submit that their briefing and evidentiary presentation 

on federal defendant’s motions to dismiss and for summary judgment surely demonstrate how 

the identity of interests does not preclude plaintiffs-intervenors from making a distinct and 

useful contribution to the record in this case. Certainly plaintiffs do not join federal 

defendant in arguing that plaintiffs adequately represent plaintiff-intervenors’ interest for low 

risk intervention purposes. 

C\DOC\THOMPSON\P-REPLY 6 

 



  

4. Permissive intervention is appropriate. Conceding that Fed. R. Civ. P. 24 (b) 

permissive intervention is “wholly discretionary with the district court,” USA Opposition 25, 

federal defendant nevertheless contends that intervention should not be permitted because 

plaintiff-intervenors are adequately represented by plaintiffs and are unlikely to contribute 

significantly on the factual issues. We submit that plaintiff-intervenors’ contribution to 

developing the record to date as amici curiae is an adequate refutation of both points. With 

respect to the related argument that plaintiff-intervenors should be restricted to amici status, 

the desirability of strengthening standing and class representation argues for intervention as 

does the utility of continuing participation -- as opposed to an episodic amici role -- by 

plaintiffs-intervenors in this nationwide class action. 

Conclusion 

The Court should grant the motions to intervene pursuant to Fed. R. Civ. P. 24 (a) 

and (b) and the unopposed motion to join the Secretary of the U.S. Department of Health 

and Human Services as an additional defendant pursuant to Fed. R. Civ. P. 20.” 

Dated: December 9, 1992 

Respectfully submitted, 

Edward B. Cloutman, III 
Texas Bar No. 04411000 
Law Office of Edward B. Cloutman, III 
3301 Elm Street 
Dallas, TX 75226 
(214) 939-9222 

By   
Edward B. Cloutman, III 

Julius L. Chambers 
Alice Brown 
NAACP Legal Defense & Educational 
Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 219-1900 

  

"See USA Opposition 21 n. 16 

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  C\DOC\THOMPSON\P-REPLY 

Bill Lann Lee 
Kirsten D. Levingston 
NAACP Legal Defense & Educational 
Fund, Inc. o    
  

\/ 
Bil Ligh T&&_7 7 

Jane Perkins 
National Health Law Program 
1815 H Street, N.W. Fie 705 
Washington, D.C. 
(202) 5 310. 2 | 

  

Jane Perkins 

Carlene NcNulty 
North State Legal Services 
114 West Corbin Street 
Hillsborough, N.C. 27278 
(919) 732-8137 

Lucy Billings 
Marie-Elena Ruffo 
Bronx Legal Services 
579 Courtlandt Avenue 
Bronx, NY 10451 
(212) 993-6250 

Aa *Zil 
  

Lucy be ix 4 fz v 

Attorneys for Plaintiff-Intervenors 
People United for a Better Oakland, et al 

 



  

DECLARATION OF BILL LANN LEE 
IN SUPPORT OF MOTION TO INTERVENE AND 

TO JOIN ADDITIONAL DEFENDANT 

I, BILL LANN LEE, being duly sworn, states: 

1. I am one of the counsel for proposed plaintiff-intervenors. In particular, I 

represent People United for a Better Oakland, Oakland, California (PUEBLO) and Action 

for a Better Community, Denver, Colorado (ABC). 1 earlier represented PUEBLO in 

Matthews v. Coye, N.D. Cal. Civ. Act. No. C-90-3620 EFT, another action concerning the 

sufficiency of screening for lead poisoning. 

2. I have knowledge of the backgrounds of members of PUEBLO and ABC. 

3 The membership of PUEBLO and ABC includes parents and guardians of both 

"low risk" and "high risk" children as those terms are used in defendant United States of 

America’s memorandum in support of its opposition to class certification. 

4. Attached hereto as Exhibit A is a true copy of Riley and Wissow, "Recognition 

of Emotional and Behavioral Problems and Family Violence in Pediatric Primary Care," in 

Mental Disorders in Primary Care (eds. Mirand, Hohmann, Attkisson & Larson, to be 

published in 1993). 

I declare under penalty of perjury that the foregoing is true and correct. 

    
Executed this 9th day of December, 1992, Los 

  Ad 7 7 

i Lann Lee 

C\DOC\THOMPSON\P-REPLY 9 

 



  

RECOGNITION OF EMOTIONAL AND BEHAVIORAL PROBLEMS 
AND FAMILY VIOLENCE IN PEDIATRIC PRIMARY CARE 

Anne W. Riley, Ph.D. and Lawrence S. Wissow, M.D. 

School of Hygiene and Public Health 
School of Medicine 

Johns Hopkins University 

Chapter Prepared for 
Merital Disorders in Primary Care 

Jeanne Miranda, Ann Hohmann, Clifford Attkisson, and David Larson 
Editors 

DRAFT 

  

  
  EXHIBIT—P— 

10 
  
  

C:\DOC\THOMPSON\P-REPLY 

 



  

Recognition in Pediatric Practice 

the Conflict Tactics Scale (Straus 1979) as a measure of vidleice within their home, Physicians 

were then asked to predict which of their patients’ mothers would report violence. Forty percent 

of mothers reported the occurrence of abusive violence among family members within the past 

year, but physicians correctly identified only 27% of these families (Wissow, Wilson, Roter, 

Larson, Berman 1992). 

Somatic complaints are the most frequent office presentations of children with emotional 

or behavioral distress (Starfielc et al 1980; Gerralda and Bailey 1986). Typical problems 

include abdominal pain, fatigue, headaches, and anorexia (Nikapota 1987). In some cases the 

child's bodily symptoms ate truly 'functional,’ that is, they go away when a primary psychologic 

problem js addressed. In many cases, however, treatable medical conditions may also exist, but 

their impact on the child and family has been accentuated by behavioral or emotional problems, 

The physician's task is to find the right balance between a medical and a psychosocial approach 

to the child's evaluation (Bridges and Goldberg 1983), 

One concern is that somatic complaints will be taken at face value without inquiry into 

contributing psychologic factors. Pediatric providers typically spend less than & minute in the 

average 13 minute visit inquiring about psychosocial problems and providing guidances to the 

child and parent (NCHS 1988; Reisinger and Bires 1980). Unless providers demonstrate interest 

in psychosocial problems and provide an opportunity to discuss them, it is very unlikely that they 

‘will obtain the information necessary to accurately diagnosis psychosomatic Of functional 

problems (Roter and Hall 1991). 

11 
  

CA\DOC\THOMPSON\P-REPLY 
[ExHiBT_A | 

 



   

  

J 86°" 3odd » Beis] Zh: EB 23d 

DECLARATION OF MEGAN 

  

I, Megan Charlop, declare the following upon my own 

knowledge and under penalties of perjury: 

1, I have been Chairperson of the New York City Coalition 

to End Lead Poisoning (NYCCELP), intervenor in this action, for 

over five years, and a founding member of NYCCELP, since its 

inception approximately nine years ago. In my daily work, I 

currently see and assist approximately 100 families with young 

children who have been exposed to lead paint poisoning per month. 

The experiences of the NYCCELP membership would increase this 

number many times over. 

2. In carrying out my responsibilities as NYCCELP 

Chairperson, I regularly convene and attend the monthly NYCCELP 

meetings and the intervening meetings of NYCCELP’s committees. I 

meet with NYCCELP members at these meetings and am in regular 

contact with them in between meetings, often visiting their homes 

and families. 

3. In this capacity I am fully familiar with NYCCELP'’s 

litigation in New York, N.Y.C. Coalition to End lead Poisoning v. 
  

Koch, 524 N.Y.S.2d 314, 318-19 (Sup. Ct. 1987), aff’d, 526 

N.Y.S.2d 918 (lst Dep’t 1988), Index No. 42780/85, Plaintiffs’ 

Motion for Specific Enforcement (filed May 18, 1992, argued Oct. 

19, 1992); with the organization’s membership and the members’ 

interests; and with NYCCELP‘s organizational purposes and 

interests. 

medee! tom 1 

ya 

 



   

  

waa” 35d 3 PEICY 268. 8B 330 

NYCCELP’S LITIGATION IN NEW YORK 

4. Federal officials are not parties to NYCCELP’s New York 

litigation, cited above. In that litigation against New York 

State and City, NYCCELP is seeking proper, accurate blood lead 

tests under the Medicaid program, based on the federal Medicaid 

statutes. See Complaint in Intervention § 18. If this court 

interprets the federal Medicaid statutes not to require proper, 

accurate blood lead tests, that interpretation will have a 

disastrous effect on the relief NYCCELP is seeking in New York. 

That litigation, contrary to federal defendants’ assertion here, 

ie therefore a reason to grant our intervention, not to deny it. 

NYCCELP’S MEMBERSHIP 

5. The Complaint in Intervention § 18 in this action 

alleges that NYCCELP’s members have been and are being threatened 

with the denial of blood lead assessments to screen for lead 

poisoning. Defendants introduce no facts to rebut that 

allegation. 

6. The facts concerning this alleged harm are that, under 

the federal Health Care Financing Administration (HCFA) 

guidelines, the parents and guardians of young Medicaid-eligible 

children throughout New York City who are NYCCELP members will 

not necessarily be provided blood lead assessments. Some of 

these families fall into HCFA’ s "low risk" category, and 

therefore the HCFA guidelines deny them blood lead assessments to 

screen for lead poisoning. HCFA State Medicaid Manual § 

5123.2(D) (1). These families, particularly those who live in the 

mcdec] tom 2 

13 
 



  

® gotey me. 6 naa 

newer public housing projects, live in housing built between 1960 

and 1978, before federal law prohibited use of lead paint for 

residential use. See Declaration of Paul Mushak, Ph.D. § 12; 

Declaration of John F. Rosen, M.D. § 14; 16 C.F.R. pt. 1303; 

Centers for Disease Control, Statement on Preventing Lead 
  

  

Poisoning in Young Children 18 (1991). 

y 39 Typically public housing and other leased apartments 

are painted upon unit turnover. Families who have recently moved 
pm em, va, 

pom, pf pt Pp op’ — 

into theif ¢lu¥rent residences may not have peeling or chipping 

paint in their apartments--yet. Many of these structures, as is 

also typical of low-income housing, may be deteriorating, soon to 

affect the painted surfaces, and to expose older lead paint, but 

not necessarily before the children’s next medical examination. 

NYCCELP/’S ORGANIZATIONAL PURPOS 

8. Intervenors’ Complaint q 18 also alleges that HCFA'’s 

denial of blood lead assessments thwarts NYCCELF’s organizational 

purposes. NYCCELP’s organizational purposes include educating 

and advocating for the families of Medicaid-eligible children to 

obtain proper lead poisoning screening through the Medicaid 

program. NYCCELP has been pursuing these interests for years, so 

ardently as to prosecute litigation over this issue and to obtain 

a court ruling requiring appropriate and sufficient lead 

poisoning screening under the federal Medicaid program. N.Y.C. 

Coalition to End Lead Poisoning v. Koch, 524 N.Y.8.2d at 318-19, 
  

aff’d, 526 N.Y.S.2d 918, Index No. 42780/85, Plaintiffs‘ Motion 

for Specific Enforcement (filed May 18, 1992; argued Oct. 19, 

medec], tom 3 

 



FER 306d 

1992). Federal defendants’ policy will thwart the pursuit of 

these interests. 

THE MEMBERS’ AND THE ORGANIZATION’S INTERESTS REGARDING THIS CASE 
  

9. NYCCELP’s interests in this action are unusually 

substantial, If the federal law is interpreted not to require 

proper, accurate blood lead tests under the Medicaid program, 

then this court in Texas will entirely undercut any victory by 

NYCCELP in New York. No party in Texas, unaffected by the New 

York actions, can adequately represent the New York parties who 

are so affected. 

10. Together with the intervenors from California, 

Colorado, and North Carolina, in addition to the Texas 

plaintiffs, we present a cross-section of residents from across 

the country. In this regard, NYCCELP and each intervenor 

contribute immediately and significantly to plaintiffs’ ability 

to represent a nationwide class, as they have sought to do. 

11. Of course intervenors also articulate interests 

identical to plaintiffs’ interests in establishing the blood lead 

test as the required test. Defendants emphasize this point, 

repeatedly. In-so doing, they only underscore the 

appropriateness of our intervention in this case. 

I declare under penalties of perjury that the foregoing is 

true upon my own Knowledge. 

Executed at Bronx, New York 
on December 9, 1992 I No pen (Jhaclp 

{i CHARLOP 
     



CERTIFICATE OF SERVICE 

  

  

Undersigned counsel for proposed plaintiff-intervenors certifies that copies of 

Plaintiffs’ Reply to Defendant United States of America’s Opposition to Motion to Intervene 

and Declarations of Bill Lann Lee and Megan Charlop were served on counsel for the parties 

by fax and first class United States mail to: 

Michael M. Daniel, P.C. 
3301 Elm Street 
Dallas, TX 75226-1637 
Telefacsimile: (214) 939-9229 

Edwin N. Horne 
Assistant Attorney General 
General Litigation Division 
P.O. Box 12548 
Capital Station 
Austin, TX 78711-2548 
Telefacsimile: (512) 447-0511 

Alina S. Kofsky 
Sheila Lieber 
Department of Justice 
Federal Programs Branch, Civil Division 
901 E. Street, N.W. 
Washington, D.C. 20530 
Telefacsimile: (202) 616-8470 

This 9th day of December, 1992 

  

  

[ Bill Lann Lee 

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