IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT ali' PENNSYLVlUlIA

NIGEL SCOTT, by his parent and next friend, RUTH TRIBBLE;

MAURICE STEVENS, by his parent and next friend, DONNA STEVENS;

TAMEKA STRICKLAND and by her, her son, KEVIN STRICKLAND:

LESTER LAMBERTY and by their parent and KIMBERLY LAMBERTY;

LANE LAMBERTY, :

next friend,

STEPHEN HAWKINS, MARQUIS HAWKINS, DAVID HAWKINS, AND IVORY HAWKINS,. :

by their parent and next friend, DIANE HAWKINS;

CHRISSIE DEHART, JOEY DEHART, JENNIFER DEHART, ROBERT DEHART SAMMY DEHART, WILLOW DEHART, AND PATRICK DEHART, by their parent and next friend, JO-ANNA DEHART;

ANTONIO RIVERA AND PRISCILLA :

RIVERA, by their parent and next :

friend, ANGELINA RIVERA; :

ZAVIER NEGRON AND LOUIS NEGRON, by their parent and next friend, MYRA NEGRON,

on behalf of themselves and all others similarly situated; and

PHILADELPHIA CITIZENS FOR CHILDREN AND YOUTH; :

ASPIRA OF PENNSYLVANIA; :

PENNSYLVANIA WELFARE RIGHTS ORGANIZATION;

RESIDENT ADVISORY BOARD OF PHILADELPHIA;

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C::rvIL ACTION NO.91- CV-1dZ 0 · ·

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DAVID FEINBERG, individually and in his official capacity as DEPUTY SECRETARY OF PUBLIC WELFARE FOR MEDICAL ASSISTANCE (Acting):

YVETTE JACKSON, KAY L. ARNOLD, BRUCE DARNEY, STEVEN M. EIDELMAN, GEORGE TAYLOR, NORMAN E. WITMAN, JUANITA WRIGHT, GARY E. YOH, CONSTANCE DELLMUTH, individually and in their official capacities as DEPUTY SECRETARY OF INCOME MAINTENANCE (Acting); DEPUTY SECRETARY FOR SOCIAL PROGRAMS; DEPUTY SECRETARY FOR MENTAL HEALTH :

(Acting): DEPUTY SECRETARY FOR MENTAL RETARDATION; DEPU'l'i SECRETARY FOR CHILDREN, YOUTH, AND FAMILIES; DIRECTOR OF THE BUREAU OF BLINDNESS AND VISUAL SERVICES, OFFICE OF SOCIAL PROGRAMS; DIRECTOR OF THE BUREAU OF SOCIAL SERVICES, OFFICE OF SOCIAL PROGRAMS; DIRECTOR OF THE BUREAU OF PROGRAM SUPPORT, OFFICE OF CHILDREN, YOUTH AND FAMILIES; :

CHIEF OF THE DIVISION OF CHILDREN'S: SERVICES, OFFICE OF MENTAL HEALTH:

PATRICIA A. HUGHES, individually and in her official capacity as the PUBLIC WELFARE SECRETARY'S REPRESENTATIVE FOR SOUTHEASTERN PENNSYLVANIA:

DON JOSE STOVALL, individually and in his capacity as EXECUTIVE DIRECTOR, PENNSYLVANIA COUNTY ASSISTANCE OFFICE OF THE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;

ALLAN S. NOONAN, M.D., individually: and in his official capacity as SECRETARY OF HEALTH OF THE COMMONWEALTH OF PENNSYVLANIA (Acting); DONNA WENGER, ROBERT ZIMMERMAN, :

JEANNINE PETERSON, WILLIAM KCENICH,: individually and in their official capacities as DEPUTY SECRETARY OF HEALTH FOR PLANNING AND QUALITY

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ASSURANCE; DEPUTY SECRETARY OF

HEALTH FOR PUBLIC PROGRAMS; DEPUTY :

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(TO enforce the mandatory obligation of Pennsylvania officials under Title XIX of the social Security Act of the united states aggressively and effectively to arrange for and to furnish prompt, continuous and complete preventive and

curative health care to all of pennsylvania's eligible poor and low-income working class children, which defendants have instead systematically denied to them.)

Prol.ocrne

. "Every child will start school [healthy and] ready to learn."

The National Education Goals, Goal #1, unanimously adopted by the President and the Governors of the states, February 25, 1990.

. "We look toward the day when every child, no matter what his color Dr his family's means, gets the medical care he

needs, starts school on an equal footing with his qlass- mates, seeks as much education as he can absorb' . .:.- in short, goes as far as his talents will take him."

Presidential Message to the congress I February 8, 1967, proposing children's Preventive Health Care Amendments to Title XIX.

. "Childhood hearing loss is most commonly the result of untreated or inadequately treated recurrent middle ear infection (otitis media), the most frequent childhood illness requiring medical attention. About 45 percent of children have seven or more episodes during the first three years of life. The risk is higher for the disadvantaged: All types of otitis media are more prevalent amonq. poor children, and so is the residual hearing impairment that often results." "Repeated periods of hearing loss from recurrent middle ear infections, especially when not adequately treated, interfere with the ability to process sounds and under- stand speech, delaying the development of language and

threatening the whole education process. Behavior prob- lems may also result, when the inability to hear is misun- derstood as unwillingness to pay attention or as dis- respect.

"Seeing well is not only is not only fundamental to learn- ing to read and write, but to grasping concepts of space and form, the foundation of perception and perhaps much of what we call intelligence.

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problems envisaged by congress .... EPSDT programs must be brought to the recipients t the recipients will not or- dinarily go to the programs until it is too late to ac- complish the Congressional purpose".

_ Three opinions of two u.s. circuit courts of Appeals, two cert. denied, 1975 through 1983.

. "only 22 percent of children [who are eligible, nation- ally,] received preventive health care services such -as routine physicals, immunizations and vision screening through Medicaid's [EPSDT] program. [T]he fact that so few children are receiving basic preventive care is a clear indication that the Medicaid program is not functioning as

it should."

American Academv of Pediatrics. Medicaid state Reports. FY 1989 (1991).

. In Pennsylvania, in FY 1989, only 18% of poor children received any preventive health care services.

_ American Academy of Pediatrics, Medicaid state Reports. FY 1989. PA Report at 3,

. In Pennsylvania, according to its first report required by the 1989 EPSDT Amendments II in order to assess the effec- tiveness of state EPSDT programs- in reaching eligible children," only 25% of the eligible children received any of the required screening services.

_ PA.D.P.W. report to U.s. HCFA, April 18, 1991

"In Pennsylvania, we are a family, and like any family, we

put the welfare of our children first. Protecting them from the cruelty of war. The cruelty of poverty and

violence, abuse and despair. The cruelty of drugs. It is in times like these that we must provide and care for our children more than ever. Because more than any other measure, the state of our children defines the state of our commonwealth, the state of who we are and what we stand for ... the state of our future."

Robert P. casey, Governor of Pennsylvania, state of the commonwealth Address, January 28, 199-1

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rz , parties

4. Plaintiffs are:

5. NIGEL SCOTT, 14 years old, is a 9th grade student whose

family is homeless and who currently lives in a Salvation Army

Shelter in Philadelphia. Nigel Scott last saw a doctor so long ago

that he cannot remember if he has ever seen a doctor. He knows

that he has not received any medical examination (except by a

school nurse) in more than 4 years. Nigel Scott sues by his parent

and next friend, RUTH TRIBBLE.

6. MAURICE STEVENS, is five years old and lives with his

mother, DO?A STEVENS, in the Martin Luther King Housing Project

in Philadelphia. Maurice has not had a comprehens.ive._megiC:::<il

examination, eye examination, dental examination or hearing

examination since he was three years old. Ms. Stevens was told in

the summer of 1991 by amployees of the Department of PUblic Welfare

that Maurice did not qualify for medical assistance because of her

job as a noon-time aide at the school district where she earns

$4,290 a year. Because of this erroneous determination, Ms.

Stevens has had to pay for the last two doctors' visits for

treatment for Maurice this October and November. Maurice Stevens

sues by his parent and next friend, Donna Stevens.

7. TAMEKA STRICKLAND is an eighteen year-old mother of a

four year old son, KEVIN STRICKLAND, living in Chester, Pennsyl-

vania. Both receive cash assistance and medical assistance. After

dropping out of Chester High School when she was in the 9th grade

to give birth to Kevin, Ms. Strickland now attends public schaal

through a special program where she is studying for her GED. She

has never been informed about EPSDT, even though both she -

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obtaining a health provider. In the past three to four years, when

the family moved to North Philadelphia, the children have not

received dental, visual or developmental screening, or tests for

lead paint poisoning. The children have not had any continuity of

health care. stephen Hawkins, Marquis Hawkins, David Hawkins and

IVory Hawkins sue by their parent and next friend, Diane Hawkins.

10. CHRISSIE and JOEY DEHART (10), JENNIFER DEHART (7),

ROBERT DEHART (6), SAMMY DEHART (4), WILLOW DEHART (1 1/2) and

PATRICK DEHART (1 month) live with their mother, JO-ANNA DEHART,

in public housing in Upland, Delaware County. If the children are

s Lck , Mrs. DeHart takes them to the crozier Hospital emergency

room. she has no primary health care provider. Her children have

not received medical screening for dental or vision, nor lead paint

screening. Mrs. DeHart does not believe the children have received

their immunizations. Even though the school district believes that

Chrissie is hyperactive and Joey is dyslexic, the other children

never received deVelopmental tests to determine if they were

progressing within age-appropriate ranges, even though Mrs. DeHart

believes Robert and sammy are also hyperactive. Mrs. DeHart has

never been told about EPSDT, even though she receives medical

assistance from public assistance. Defendants have never told Mrs.

DeHart about EPSDT, nor helped her to enroll with a health provider

Who would assure proper screening and continuity of medical care.

Each of the DeHart children sue by their parent and next friend,

Jo-Anna Dehart.

11. ANTONIO RIVERA (3) and PRISCILLA RIVERA (19 months)

reside with their mother, ANGELINA RIVERA, in Philadelphia. They

receive medical assistance. Ms. Rivera has never been told about

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protect the interests of the class, and counsel are experienced in

litigating class actions.

14. PHILADELPHIA CITIZENS FOR CHILDREN AND YOUTH (PCCY) a

private, non-profit corporation founded in 1980, successor organi-

zation to the children's work of the Philadelphia Health and

Welfare council which dates to the Progressive Era of the early

20th century, whose primary purpose is to improve the lives and

the life-chances of Philadelphia's children and young people

through thoughtful and informed advocacy. The organization, which

is a member agency of the united Way of Southeastern Pennsylvania,

acts as a watchdog, monitors the status of Philadelphia children

across all issue areas and undertakes specific projects in child

health, child welfare and juvenile justice. In each of these

areas, PCCY emphasizes the importance of prevention as a savings

both in human and fiscal terms. PCCY's health activities empha-

size children's preventive, primary health care: PCCY first began

working on Title XIX Early and Periodic Screening, Diagnosis and

Treatment (EPSDT) issues in the early eighties. Since 1988, PCCY

has worked at Philadelphia public schools in the first days of each

school year to enlist children in EPSDT. In 1990 PCCY published

straightforward and readable public information materials concern-

ing EPSDT and initiated a privately funded project with a com-

munity-based organization in the Germantown neighborhood of

Philadelphia to inform families of child health programs especial-

ly including EPSDT, and to assist them in securing the benefit of

these programs for their children. In 1991, PCCY has been awarded

a contract by the Health Care Financing Agency of the United states

Department of Health and Human Services to develop and publish

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144,260 Philadelphians and some 537,339 pennsylvania families. The

children of all its member families are eligible for, need, and are

entitled to children's health care under Title XIX (EPSDT) but in

very great number they do not receive any. One of the primary

purposes of the pennsylvania Welfare Rights organization for two

and a half decades has been to advocate on the behalf of public

assistance recipients and their children to ensure the development

and implementation of effective health care and services for

children. In the middle 1970's, during the period of highest

participation in Pennsylvania's EPSDT program which had been evoked

by the orders in PWRO v. shapp, C.A. No. 13-290 (E.D. Pa. 1973),

in which its Philadelphia chapter was plaintiff, the organization

conducted a neighborhood-based, door-to-door,

program to engage children in the EPSDT program.

direct contact

gives them particular alarm at the absence,

PWRO' s experience

despite statutory

mandate, of continuity of health care for poor children, regular

check-ups, immunizations, and treatment, including especially

children. who live in intensive lead pain and in high poverty

neighborhoods.

17. RESIDENT ADVISORY BOARD OF PENNSYLVANIA is a non-profit

corporation that is comprised primarily of persons who reside in

public housing throughout Philadelphia. Its primary purpose is to

improve the quality of living for low-income persons who live in

public housing. Nearly all of the public housing residents are

eligible for Medical Assistance and.their children are eligible for

and should be enrolled in the EPSDT program. Among its activities,

the Resident Advisory Board regularly disseminates information

about health programs to low-income persons and advocates for the

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visiting nurses who daily witness the lack of health care received

by children in poor and working class families.

20. THE FACULTY OF THE DEPARTMENT OF NURSING, TEMPLE UNIVER-

SITY counts twenty-five faculty members who provide nursing

education to student nurses and train health care workers. As

health care professionals, they are acutely aware of the shortage

of child health services in poor and working class communities and

the impact that the lack of services have on the health and well-

being of children in Pennsylvania.

21. PENNSYLVANIA HEALTHY MOTHERS, HEALTHY BABIES COALITION,

headquartered in Norristown, PA, is a multi-racial, geographically

representative coalition of organizations and individuals whose

mission is to reduce infant mortality and morbidity, promote

positive maternal and child health practices and to improve ser-

vices to chronically ill and disabled children. A statewide group,

the Coalition is made up of twenty-eight organizations which reach

into every county of Pennsylvania and represent provider, consumer

and advocacy groups. In addition, there are four local coalitions

based in Lancaster, Erie, NorthwestPA and Huntingdon county. The

Coalition works in concert with other formal and informal groups

throughout the state including the Healthy Start consortia in

Philadelphia and Pittsburgh, the Success by Six coalition in

Harrisburg and with other groups attentive to lead poisoning,

EPSDT, uninsured children and substance abusing pregnant and

parenting women.

22. BLACK FAMILY SERVICES, INC. is a Pennsylvania nonprofit

corporation providing information and referral services and

advocacy for black families throughout the city of Philadelphia.

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chronic problems. Concerned citizens represents parents and helps

them to obtain educational, rehabilitative and health services

necessary for children to effectively perform in the school

setting. 25. THE PHILADELPHIA FEDERATION OF TEACHERS (PFT), LOCAL NO.

3 of AMERICAN FEDERATION OF TEACHERS, is a non-profit membership

and labor organization existing under the laws of pennsylvania,

with 20,000 members, including 12,000 teachers and 500 guidance

counselors working in all 300 schools of the city of Philadelphia,

In the experience of the PFT, the ability of children to learn and

benefit from education opportunities are often undermined by health

problems when they go unattended. Many students and their parents

are unable to afford eye and dental exams, for example, and hearing

problems are often undetected until students are already in

schools. Achieving children's health is an important prerequisite

before some children can even begin the school learning process.

The PFT workS along with school nurses and other professionals

identifying problems which EPSDT, properly implemented, could

materially help alleviate. In Philadelphia, a substantial propor-

tion of school children would qualify for EPSDT services.

26. THE PHILADELPHIA ASSOCIATION OF SCHOOL ADMINISTRATORS

(PASA), LOCAL NO. 502 OF THE INTERNATIONAL BROTHERHOOD OF TEAMS-

TERS, is a non-profit membership organization existing under the

Laws of pennsylvania. PASA has 850 members, all professional

educators, including 300 principals and 150 vice principals, who

work in all of the 300 schools of the City of Philadelphia. The

professional responsibility of PASA members is to provide instruc-

tional leadership and support for teachers, students and families, 19

vania's school districts to ensure quality education is available

to children in the Commonwealth, and to create an educational

environment which maximizes the potential for the professional

development of their members and of the educational achievement of

children. To achieve this goal, children must be healthy. The

Associations sue to advance the professional interests of their

members and the interests of the students whom they serve.

29. THE ASSOCIATION FOR RETARDED CITIZENS OF PENNSYLVANIA

(ARC, PAl, founded in 1949, is a private, non-profit organization

composed of families and friends of, and individuals with, retarda-

tion and other developmental disabilities. ARC, PA has approxi-

mately 14,000 members in 54 chapters in 57 of Pennsylvania's 67

counties. A substantial part of ARC, PA's experience, attention,

and advocacy is focussed upon (1) the prevention of retardation and

developmental disabilities by timely, effective and complete child

health care and rehabilitation services by early intervention from

birth to school age, and (2) securing for children with disabili-

ties throughout childhood and youth, the timely, effective and

complete health and rehabilitation, services necessary to sustain

their fullest learning and their preparation for productive work

and citizenship as adults. Recurrent wide-spread experience and

studies demonstrate that with prompt and proper health care and

rehabilitation, as well as educational interventions, a very large

proportion of children, particularly young children from families

of low-income who have been identified as retarded ordevelopmen-

tally disabled or at-risk of disability will not incur, or will

overcome, such disabilities and will thereafter function through

their school age and adult years as nondisabled persons. ARC, PA

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mandated by the 1989 Amendment to EPSDT. In 1984, the Association

established the Parents Involved Network (PIN), a parent-operated,

family centered project which provides support, information,

advocacy and training for children and adolescents who have

emotional disorders and their families and which seeks to assist

them to secure the EPSDT services to which they are entitled.

31. THE UNITED CEREBRAL PALSY ASSOCIATION OF PHILADELPHIA

AND VICINITY (UCPA), founded in 1946, is a non-profit corporation

which provides services to children in Philadelphia, Montgomery

and Bucks counties who have cerebral palsy, spina bifida, head

injury, trauma, spinal cord injuries, and other developmental

disabilities. Over 700 of the children UCPA serves are eligible

for EPSDT. UCPA advocates for improved medical, heal th and

rehabilitation services for these children including EPSDT ser-

vices. EPSDT is especially important for children who need

physical, speech, and occupational therapy and services, as well

as assistive equipment, including communication devices, and case

management services to assist parents and their children get these

and : other needed services. These services are supposed to be

provided to eligible pennsylvania children under the 1989 EPSDT

amendments, but are not. United Cerebral Palsy of Philadelphia

operates an Early Intervention Program under P.L. 99-457 which

reaches disabled children through hospital nec-natal clinics, in

their homes and through center based activities, and provides tc

them early education and family-centered support, and seeks to

secure the EPSDT services to which the children are entitled.

32. THE AMERICAN ACADEMY OF PEDIATRICS, PENNSYLVANIA CHAP-

TER, is a non-profit organization of pediatricians with nineteen

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Agency (HCFA) concerning the severe inadequacy of provider fees for EPSDT services: on July 23, 1991 HCFA disapproved Pennsylvania's

Medical Assistance Plan and rejected its fee submissions because

of the inadequacy of Pennsylvania's fees to assure to poor children

equal access to children's health care services at least equal to

that available to children with private health insurance, as

required by the 1989 EPSDT amendments. The Pennsylvania Chapter of

the Academy conducts an Early Childhood Education Linkage Project,

serving 9,000 children who are enrolled in day care programs,

nursery schools, and Head start ce;lters by providing consultation

on health and rehabilitation services for these children, most of

whom are from low-income, EPSDT-eligible families.

33. Defendants are:

34. KAREN SNIDER, SECRETARY OF PUBLIC WELFARE OF THE COMMON-

WEALTH OF PENNSYLVANIA (Acting), Chief Officer of the Pennsylvania

Department of Public Welfare, and as such responsible for the

administration of the federally-funded Medical Assistance Program

under Title XIX of the social security Act including particularly

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

provisions here sought to be enforced. 42 U.S.C. §1396a(a) (5).

As Secretary of Public Welfare, defendant Snider is also respon-

sible for the administration of the federally-funded Public

Assistance Income and services Programs, Title IV-A of the Social

Security Act; Foster Care and Adoption Assistance Programs, Title

IV-E of the Social Security Act; and supplementary Security Income

(Disability) Programs, Title XIV of the social Security Act; each

of which are uncapped federal entitlement programs, and the

beneficiaries of all of Which, from birth to age 21, are eligible 25

MENTAL HEALTH (Acting).; for MENTAL RETARDATION ? and FOR CHILDREN,

YOUTH AND FAMILIES. NORMAN E. WITMAN, JUANITA WRIGHT , GARY E. YOH,

and CONSTANCE DELLMUTH are DIRECTORS, respectively, of the BUREAU

OF BLINDNESS AND VISUAL SERVICES, OFFICE OF SOCIAL PROGRAMS; BUREAU

OF SOCIAL SERVICES, OFFICE OF SOCIAL PROGRAMS; BUREAU OF PROGRAM

SUPPORT, OFFICE OF CHILDREN, YOUTH, and FAMILIES; and CHIEF OF THE

DIVISION OF CHILDREN'S SERVICES, OFFICE OF MENTAL HEALTH.

38. ALLAN S. NOONAN, M.D., SECRETARY OF HEALTH OF THE

COMMONWEALTH OF PENNSYLVANIA (Acting) I is the chief Officer of the

Pennsylvania Department of Health, responsible for the administra-

tion of federally-funded Maternal and child Health Program, Title V of the Social Security Act: the 100% federally-funded Special

Supplemental Food Program for Women, Infants, and Children; the

federally-funded Drug and Alcohol Program and Lead Paint Poisoning

Programs, the participants in and beneficiaries of which programs,

from birth to age 21, are in greatest number eligible for and

enti tled to EPSDT services. This Secretary and his agency,

including its sub-parts, have a federal duty to establish and

maintain effective operating coordination between their programs

and the EPSDT Program in order to ensure effective children's

health care to all eligible poor children. 42 U.S.C. §1396a(a)

(11); 42 C.F.R. §44l.61, U.S. Dept. of HHS, HCFA, State Medicaid

Manual, Pt. V, Sec. 5230 (1990). The secretary of Health is charged by state law to set standards for hospitals and other

treatment and care facilities, and for practitioners of medicine

and other healing arts including drug and alcohol treatment and for

licensing them. The Secretary of Health is also charged by state

law to prescribe standards for the conduct of medical examinations 27

dividuals with Disabilities Program (Special Education), including

the program for Early Intervention for pre-school children with

disabilities or at risk of disabilities, ages 3 through 5, and the

federally-funded Drug-Free Schools and communities Programs. The

Secretary of Education and his agency and its sub-parts have a

federal duty to establish and maintain effective operating coor-

dination between their programs and the EPSDT program in order to

ensure children's health care for all eligible poor children. 42

U.S.C. §1396a(a) (11); 42 C.F.R. §441.61, U.S. Dept. of HHS, HCFA,

State Medicaid Manual, Pt. V, Sec. 5230 (1990). The Secretary of

Education is also charged under state law with the administration

and oversight of kindergarten programs for children ages four and

five; with outreach authority to federally funded, locally operated

Head Start Programs; and with administration and oversight of

"Student Assistance programs," which operate in every one of the

500 school districts in the Commonwealth addressing drug, alcohol

and mental health problems; of school drop-out programs and of

school health programs. 20 U.S.C. §§2701 et seg., 1400 et ?, 3171 et seg., 42 U.S.C. §9831 et seg.; 71 P.S. §1038; 5-503, §6606.

42. In light of his duties and responsibilities and in light

of the obligation of state Title XIX officials to consult with and

effectively to cooperate with the Secretary of Education and to

establish and maintain effective operative coordination with the

programs under his purview on all matters touching poor children's

health care, the Secretary of Education and the deputies of the

Department of Education are necessary to effective relief in this

case and are therefore proper parties defendant.

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of Labor and Industry I responsible for administration of the

federally-funded Vocational Rehabilitation Program and, under state

law, of the Office for the Deaf and Hearing Impaired. The Secreta-

ry, his agency, and its sub-parts have a federal duty of effective

operating coordination with EPSDT to ensure an effective children's

care to all eligible poor children. 42 U.S.C. §1396a(a) (11); 42

C.F.R. §441.61: U.S. Dept. HHS, HCFA, state Medicaid Manual, Ft.

V, Sec. 5230. Their cooperation is crucial to effective relief in

this case and renders them proper parties defendant.

46. GIL SELDERS and SANDY C. DUNCAN are, respectively,

EXECUTIVE DIRECTOR OF THE OFFICE OF VOCATIONAL REHABILITATION and

DIRECTOR OF THE OFFICE FOR THE DEAF AND HEARING IMPAIRED.

1XI ?The . Law and structure of EPSDT

47. Title XIX of the Social Security Act of the united States

establishes a Medical Assistance Program (Medicaid) for the purpose

of enabling each state to furnish: "(1) Medical Assistance on behalf of families with

dependent children and of blind ... r or disabled in- dividuals whose income and resources are insufficient to meet the costs of necessary medical services, and

(2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care."

42 U.S.C. §1396

48. For all Medical Assistance Programs incl uding in

particular for children's health care (EPSDT) -- Title XIX requires

that "such assistance shall be furnished with reasonable promptness

to all eligible individuals." 42 U.S.C. §1396a(a) (8).

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52. In its 1989 and 1990 amendments to Title XIX, congress

dramatically expanded poor children's entitlement to health care

in order to correct what it found to be the deplorable state of

health of poor children in the united states. Expanded Eligibility

53. To reach the vast number of poor children who went

without medical care because their families could not afford

medical coverage, congress expanded the eligibility criteria for

the EPSDT Program. Children ages 0-5 whose family income is equal

to or less than 133% of the poverty level; children born after

september 30. 1983 (now aged 6, 7, and turning 8, and increasing

by one year of age with each passing fiscal year) whose family

income is equal to or less than 100% of the poverty level; and

children to age 21 whose family income and resources qualify them

for federal cash assistance programs, such as Aid for Families with

Dependent Children, Supplemental Security Income, Foster Care and

Adoption Assistance or for federally assisted medically needy

programs, are all now entitled to continuing and complete EPSDT

services. 42 U.S.C. §§1396a(a) (10) (A) and 1396a(1)

54. ThUS, now in Pennsylvania the eligibility standards for

the children's health care entitlement, varying by age of the

child, are as follows:

Size of Family

For Children Age 0-5, Family Income Up to 133% of Poverty Level

For Children Age 6,7,turning

8; Family Income Up to 100% of Poverty Level

For Children Age ... -21

1 2 3 4 5 6

$ 8,804 $11,810 $14,816 $17,822 $20,828 $23,834

$ 6,620 $ 8,880 $11,140 $13,400 $15,660 $17,920

$5,100 $5,300 $5,600 $6,800 $8,100 $9,100

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filing tax returns with incomes below $14,816. So are most of the

young children in some 3,163,731 families of five or more with

incomes below $20,826 (5 members) or incomes below $23,824 (6

members or more). The young children in each of those families are

EP5DT eligible because their family income is less than 133% of the

poverty level. A nearly similar large number of families who file tax returns have incomes below 1.00% of poverty level and hence

their children who are now ages 6,7, and turning 8 and, in time,

those aged up to eighteen are and will be EPSDT eligible. Internal

Revenue Service, Statistics of Income - 1986: Individual Income

Tax Returns (PUb. 1304, Rev. 7-89, 1.989).

58. When congress, in 1.967, first commissioned EPSDT it tied

eligibility exclusively to cash assistance eligibility levels.

But in its 1989 EPSDT Amendments, congress unhooked eligibility

for children's health care from cash assistance eligibility

criteria which had become very restrictive and full of com-

plexities. Instead, in 1989 congress tied children's health care

eligibility directly and simply to age and to poverty. By doing

so, congress not only intended vastly to expand the numbers of poor

and low-income working class children entitled to health care, but

intended also to substantially simplify determinations of eligibil- ity and to reduce the devastating discontinuity in children' s

health care -- created by families passing in and out of restric-

tive classes of eligibility. congress intended the expanded

eligibility to simplify the administration of children's health

care and to advance its prompt, continuous and complete provision

to poor children.

35

three months until age two t annually thereafter until age six;

biannually thereafter until age twenty, as follows:

By one month 12 months 4 years 12 years 2 months 15 months 5 years 14 years 4 months 18 months 6 years 16 years 6 months 24 months 8 years 18 years 9 months 3 years 10 years 20 years

Vision examinations are required annually beginning at age L

Dental examinations, once by age 1 and semi-annually thereafter,

with routine preventive care beginning by age 3. Pennsylvania

currently has no periodicity schedule for. hearing examinations

prior to school age, relying instead upon Pennsylvania school

Health law requirements of hearing tests at kindergarten, 1st, 2nd,

3rd, 7th and 11th grades and upon the general health screen.

62. Children are entitled to an initial screen at any time,

regardless whether that screen coincides with the periodicity

schedule established for that screen.

63. Title XIX further provides that children are entitled to

interperiodic screens, as well as whatever consequent treatment

may be necessary, whenever one is recommended by an educational,

developmental or health care professional "who comes into contact

with a child outside of the health care system (e.g. state early

intervention or organized educational programs, Head start and day

care programs, WIC or other nutritional assistance programs)".

H. Rep. No. 101-247 at 99-100; 1989 U.S. code, congo & Adm.N. at

2125-26.

37

· some very limited "case management services" (§1396d (a) (19»;

· "respiratory care services" (§1396d(a) (20»; · "community supported living arrangement services ...

"

(§1396d(a) (24»; but Pennsylvania must also furnish the following newly mandated

services: · "any other type of remedial care recognized under state

law furnished by licensed practitioners ... as defined by state law" (§1396d(a) (6», which includes, inter alia:

- speech, hearing, and language disorder-therapies - licensed addiction treatment services;

· "home health services", including personal care services (§1396d(a) (7»; "private duty nursing services" (§1396d(a) (8»;

· "physical therapy and rela.ted services" (§1396d(a) (11», including, inter alia, physical therapy, occupational therapy, speech therapy;

· "other diagnostic, screening, preventive, and rehabilita- tive services, including any medical or remedial services (provided in a facility, a home, or other setting) recom- mended by a physician ru:: other licensed practitioner within the scope of· their practice under state law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible function level" (§1396d(a) (13»;

· "case management services" (§1396d(a) (19), statutorily defined as "services which will assist [eligible] in- di viduals in gaining access to needed medical, social, educational and other services" (§1396n(g) (2»;

· "any other medical care, and any other type of remedial care recognized under state law, specified by the Secre- tary" (id at §1396d(a) (22».

66. The recent EPSDT amendments required to have been·

effective April 1, 1990, entitle every eligible child to all of

these services, whenever needed, regardless of the source of a

child's eligibility. 67. Title XIX provides that children are entitled to the

EPSDT services in the amount, duration, and scope necessary both

to meet their individual medical and rehabilitative needs and to 39

Aggressive. Effective outreach

70. with respect to children's health care (EPSDT), from its inception, and as emphatically reinforced by congress in recent

amendments, Title XIX has required the states to make aggressive

and effective outreach to eligible children and their families and

to arrange for the provision of needed treatment; that is, efforts

which actually bring children into, and maintain their participa-

tion in continuous and complete children's health care. 42U.S.C.

§§1396a{a) (8) and 1396a(a) (43).

71. "The intent of the statute," longstanding, contempora-

neous, recurrent and current construction by its federal adminis-

tering agency declares,"is to allow flexibility of process as long

as the outcome is effective and is achieved in a timely manner ... "

u.s. Dept. of ERS, HCFA, state Medicaid Manual, pt. V (EPSDT), Sec.

5121, pp. 5-7 (April 1, 1990) (emphasis supplied).

72. In the earliest federal regulatory guidance to the

states, 1973, the administering agency wrote:

"The 1967 Amendments to Title XIX of the Social Security Act added a requirement to Medicaid that was intended to direct attention to the importance of preventive health services and early detection and treatment of disease in children eligible for medical assistance ." Through this .amendment congress intended to require states to take aggressive steps to screen, diagnose and treat children with health problems. congress was concerned about the variations from state to state in the rates of children tested for handicapping conditions and health problems that could lead to chronic illness and disability. Senate and House committee reports emphasized the need for extending outreach efforts to create awareness of existing health care services, to stimUlate the use of the services available so that young people can receive medical care before health problems become chronic and

irreversible damage occurs."

u.S. Dept. of HEW, Medical Assistance Manual, Pt. 5 (EPSDT), Sec. 5-70-20 (January 28, 1973).

41

21 in order to detect health problems and to pursue those problems with the needed treatment is made unambiguously clear by the 1967 act and by the interpretive regulations and guidelines." "[AJ somewhat casual approach to EPSDT hardly conforms to the aggressive search for and early detection of child health problems envisaged by Congress. It is difficult enough to activate the average affluent adult to seek medical assistance until he is virtually laid low. It is utterly-beyond belief to expect that children of needy

parents will volunteer themselves or that their parents will voluntarily deliver them to the providers of health services for early medical screenings and diagnosis. By

the time the child is brought for treatment it may too often be on a stretcher. This is hardly the goal of . . early and periodic screening and diagnosis'. EPSDT

programs must be brought to the recipients; the recipi- ents will not ordinarily go to programs until it is too late to accomplish the congressional purpose." (emphasis supplied)

This statement of the duty was reiterated in Bond v. stanton, 655

F.2d 766, 768, and 771 (1981) cert denied, 454 U.S. 1063 (1981) and

adopted and followed by the 5th Circuit court of Appeals in

Mitchell v. Johnston, 701 F.2d 337, 346-48 (5th Cir. 1983)

75. This duty of aggressive outreach and the outcome standard

by which it is to be measured is confirmed and re-emphasized in the

1989 EPSDT amendments, which qualify all poor children for the

EPSDT benefit and expand the benefit by creating for children a

single system of complete and continuous child health care, in the

1989 originating Committee's express approval of Mitchell v.

Johnson, supra., and in the 1989 provision requiring an annual

public report from each state on its EPSDT participation rates, "in

order to assess the effectiveness of state EPSDT programs in

reaching eligible children." H.Rep. No. 101-247 at 4001 1989 U.S.

Code, cong., & Adm.N. at 2126.

76. One year after the 1989 EPSDT expansion, congress

underscored its insistence upon effective outreach by requiring 43

A Program That Works

79. The thrust of the EPSDT Program, and particularly

congress' recent amendments, is to create a stream-lined, acces-

sible system· of children's health care which effectively serves

all poor children promptly and continuously. The 1989 and 1990

amendments to Title XIX were specifically designed to force states

to eliminate barriers which congress recognized were preventing

children from successfUlly obtaining ongoing preventive and

curative health care through EPSDT. congress amended Title XIX to

recreate EPSDT as a simplified, smoothly-flowing, single and

complete system of prompt and continuous health care for poor

children.

80. congress endorsed the use of continuing care arrangements

as a means of ensuring continuous comprehensive health care. In

continuing care arrangements, a child, or an entire family, goes

to a single identified health care provider as the regular source

of the statutorily described set of continuing health care ser-

vices. This single provider can be an HMO, or a federally-

qualified health care center m;: more simply, a single pediatrician

or family medicine practitioner or a pediatric group. To qualify

as a continuing care provider, the practitioner must meet a set of

continuing obligations, explicitly defined, monitored and enforced

by the Medicaid agency, which are intended to ensure children's

ongoing involvement in a coherent system of health care. The EPSDT

Program requires states to articulate in their medical assistance

plan the elements of continuing care arrangements, to describe

monitoring and enforcement methods to assure provider compliance

with continuing care arrangements and it requires the states

45

participate in the EPSDT Program in sufficient numbers to meet the

health care needs of all poor children.

83. Congress recognized that it could not ensure adequate,

universal health coverage for poor children unless pediatricians and obstetricians and other providers were paid enough to afford to serve poor children. To remedy the problem of inadequate

provider participation, Congress created an "equal access standard"

requiring states to provide payment "sufficient to enlist enough

providers so that care and services are available under [EPSDT) at

least to the extent that such care and services are available to the general population in the geographic area." 42 U.S.C. §1396a

(a) (30) (Al (emphasis supplied). 84 . Cons istent with its finding that" if infant mortal i ty is

to be reduced and child health status improved, it is essential

that states comply fully with the payment requirements," Congress

required an annual state plan amendment on rates for pediatric, and obstetrical services, including, for children's health care,

the services of pediatricians, family practitioners, and certified pediatric nurse practitioners. (42 U.S.C. §1396-7(a». Congress

directed that if the plan amendment' s were disapproved, "the state shall immediately submit a revised [plan] amendment which meets

such requirement." 42 U.S.C. §1396r 7(a) (3) (emphasis supplied).

85. In judging the sufficiency of EPSDT fees under the new

standard, Congress made plain that the point of comparison is the

access generated by the fees schedules prevailing in private third party insurance coverage such as Blue Cross-Blue Shield and in other public insurance coverage such as Medicare. H.Rep. No. 101-

247 at 390-391; 1989 U.S. Code, congo & Adm.N. at 2116-2117.

47

EPSDT was created by congress to supply. Pa. DPW, Annual EPSDT

participation Report (HCFA Form 416) (filed April 9, 1991).

89. Pennsylvania defendants' data for federal FY 1989, the

last full year before recent amendments expanded both EPSDT

eligibility and services, showed only 18% of the eligible children

received any preventive health care service. In violation of Title

XIX, at least eighty-two percent of Pennsylvania's poor children

qot no preventive health care service. Nationally in FY 1989 22%

of the children received some preventive health care service.

American Academy of Pediatrics, Medicaid state Report. FY 1989

(1991) (HCFA Form 2082 data set).

90. Defendants' stated participation rates, low as they are,

are overstated, for their data counts as "EPSDT eliqible" only

those children already administratively enrolled in medical

assistance, omitting those many tens of thousands of children who

are eligible but not administratively enrolled because they have

not been reached or hav? erroneously been found ineligible. 91. Of Pennsylvanians administratively enrolled in medical

assistance under Title XIX, at least 54.9% are children. But ,in

FY 1989 only 22.1% of Pennsylvania's Title XIX expenditures were

for health care services to children. Children age 5 or under were

24.5% of eligible Pennsylvanians, yet only 9.2% of Pennsylvania'S

Title XIX expenditures were for their health care. Children ages

6 through 20 are 30.4% of eligible Pennsylvanians: only 12.4% of

expenditures are for their health care. American Academy of

Pediatrics. Medicaid state Report. FY 1989 at PA.l (1991).

92. By their past and continuing acts of omission and commis-

sion, and in the particular and systemic deficiencies in both their 49

Expanded Eligibility 95. As to the expanded eligibility requirements of the 1989

amendments, Pa.DPW defendants have told no one -- not beneficiar-

ies, not their own agents, not anyone -- that, beginning April 1,

1990, all poor and near-poor children age 5 and under, and all poor

children ages 6,7 and turning 8, are ipso facto entitled to the

complete and continuous health care of the EPSDT Program, based

simply upon low family income. Defendants have not -- adequately

or at all -- instructed their agents to abandon the narrow and

restrictive eligibility criteria which are no longer valid and to

apply, instead, the new, simple income-based criterion to qualify young children for their health care entitlement. In violation of

the mandatory eligibility criteria of Title XIX, Pa.DPW defendants

continue to apply criteria which grant medical coverage to children

only if they fall within one of two, narrowly defined groups, both

now obsolete: the "medically needy (green card)" or the "categor-

ically n,eedy (blue card)" programs. Pa. DPW Medical Assistance

Bulletins, dated October 15, 1990 (pp. 2-3), August 2, 1991 (pp.

4-5).

96. For young children, defendants have constructed still a

third separate program, called by defendants "Healthy Beginnings."

Far from an inviting clarity, defendants have thus engendered in

their agents in county assistance offices -- the gatekeepers of

eligibility -- conduct and confusion which deters and excludes.

Thus, for example, when families with eligible children aged 0-5

come forward to apply for the so-called Healthy Beginnings Program,

they are told: . this program is only for unmarried women:

51

Expanded Treatment Services

98. AS to the expanded EPSDT services provided by the 1989

Amendments, Pa.DPW defendants did, as 42 U.S.C. §1396d(r) (1) (A) (i)

requires, adopt the screening periodicity schedule recommended by

the American Academy of pediatrics expanding the number of screens

by 4 to 20, noting that the "increased number of exams during the

critical first few months of life, when the AAP advises it, is

extremely important to detect and to begin correction of noted

abnormalities. It But in doing so defendants also provided, in

violation of 42 U.S.C. §1.396a(a) (30) (Al and of 1396(r) itself, that

"if a child receives all 20 screens, the last four will be paid at

the MA office or clinic visit rate," a rate substantially lower

than the EPSDT screening visit rate which itself then, and still, is insufficient under the fee standard set by the 1989 amendments.

20 Pa.Bull. 2751 (May 26, 1990). These last four, discounted

screenings would occur, and under the EPSDT statute are required

to occur, from age 14 to 20, during the crucial adolescent period.

Even among the small number of adolescents currently receiving the

required screening examinations -- only 13 %. of the adolescents

eligible, according to Pa.DPW defendants' Annual EPSDT Participa-

tion . Report (filed april 9, 1991) -- some 75% of them are not

receiving needed follow-up treatment services, in violation of

Title XIX. This, for the age group of whom u.s. Surgeon General

Emeritus, C. Everett Coop, M.D. has said: "We tend to think of

adolescence as the healthiest time of life -- but the shocking fact

is in my professional lifetime, the health of every age group in

American society has improved except teenagers." C. Everett Coop,

53

defendants' error, found it contrary to the statute, and instructed them flatly: "Any health care services specified under [§1396(a). 42 U.S.C.] which are required to treat a condition detected as a

resul t of periodic or interperiodic screen must be provided whether

or not such services are covered under a state plan. states are

not permitted to exclude any follow-up services for conditions which existed prior to the time of the EPSDT screening service." HCFA Regional Medicaid Letter No. 07-91. Furthermore, HCFA in- structed Pennsylvania defendants immediately to "provide written assurances that you are meeting the requirements." Pa.DPW defen-

dants did not file such an assurance until June 24, 1991.

101. For at least 12 months after the effective date of the

expanded services requirement, Pa.DPW defendants thus wrongfully

denied, and caused EPSDT providers to deny, needed treatment

services to very many Pennsylvania children, yet defendants have

made no effort to revisit these children to determine whether the

denied treatment services are now needed and to provide them, or

to provide the additional treatment now services necessary because

the services needed were not promptly furnished.

102. Except for the periodicity schedule and the unlawful

erroneous EPSDT Services Bulletins referenced above, Pa.DPW

defendants issued no communication to EPSDT providers concerning

the expanded EPSDT services which the statute required to be

furnished beginning April 1, 1990, until August 2, 1991, sixteen

months and two days after the statute's effective date. Pa. DPW

Medical Assistance Bulletin, "EPSDT: OBRA '89", (Dated August 2,

1991). DUring this sixteen months two days, and since, the vast

majority of Pennsylvania children were denied EPSDT treatment 55

regardless of label and even though the services now covered extend

well beyond those provided in either of these traditional categor-

ies. (c) The Bulletin nowhere even alludes to the additional

children made eligible for EPSDT by the 1989 amendments, based

solely on family incomes of poverty or below or of 133%·of poverty

or below.

(d) By maintaining two inapplicable and insufficient categor- ies of covered services for children,. categories now artificial and

anachronistic, defendants impose two complex and overly narrow

enrollment processes on families and they impose two separate and

different billing systems, each exceedingly complex, on providers. These persistent misconstructions serve no purpose other than to

deter use of the EPSDT Program.

(e) Defendants' Bulletin also requires prior state approval

of some, inadequately specified treatment services without ar- ticulating the standards under which approval for particular services will be given or denied, without telling whether the

approval must be secured before the treatment is furnished· or

before payment, and without making-provision for urgently required

services, and without stating the reimbursement fees for those

services. (fl On top of the anachronistic, dual "categorically need

(blue card) "-"medically need (green card)" systems, defendants'

Bulletin superimposes still another, criss-crossing dual system:

for ? of these inadequately specified services requiring prior

state approval, "the providers must follow the Department's prior

authorization procedures as described in the provider's handbook"

57

duration, and scope of the newly mandated types of services which

are "sufficient to reasonably achieve its purpose," 42 C.F.R.

§440.230, and to accomplish "the preventive thrust of the EPSDT

benefit" as Congress in Title XIX has required, H.Rep.No.101-247

at 99,100, 1989 U.S.Code, cong., and Adm.N. at 2124,2125, and as

federal courts have held Title XIX requires, .!L.9:., Mitchell v. Johnston, 701 F.2d 337,348-351 (5th Cir. 1983); White v. Beale, 555

F.2d 1126, 1151-52 (3rd Cir. 1977). Nor have Pa.DPW defendants

engaged in the consultation required under Title XIX "with or- ganizations knowledgeable about the health, growth,. development

and nutritional status of infants, children, and youth" to inform

defendants' formulations and to assure that their standards and the

design and implementation of delivery systems are in accordance

with professional judgment and the purposes of Title XIX, as

required by 42 U.S.C. §1396a(11)(A); 42 C.F.R. §441.61; and U.S.

Dept. HHS, HCFA state Medical Manual, Pt. V (EPSDT), Sees. 5230,

5310.

105. These additional types of health care se.rvices, now

required to be furnished to Pennsylvania's poor children insofar

and as fully as each child needs them, but which remain unaddressed

by Pa.DPW defendants and almost entirely unprovided by defendants

to any poor child anywhere in Pennsylvania, include: · case management; · health education and guidance; · post-natal home visitation; · lead paint poisoning blood level assessment, correction,

amelioration, and prevention; · hearing loss, sight, and anemia correction, amelioration

and prevention; · children's mental health assessment and treatment;

59

poor Black children and about 35% of poor white children are at risk of lead toxicity. The following chart shows, for each

Pennsylvania Standard Metropolitan statistical Area (SMSA), the' federal Center for Disease Control's estimates of the number of children ages 6 months to 5 years who have seriously high lead paint blood levels, compared to the total number of EPSDT lead blood assessments (which are required to be done at every screen, 0-5, and every screen thereafter for children in high lead paint environs) provided by Pa.DPW defendants to children of all ages in each SMSA during nearly two years.

61.

Furthermore, even for the small population of children at great risk of lead poisoning who have been assessed, Pa.DPW defendants have caused only the .. finger prick" test to be used in blood level assessment -- a test accurate only at 25 mcg/dL and long since professionally recognized as insufficiently discrete to identify the lead blood levels which should trigger action. Professional opinion has long been that any blood lead in children is sig- nificant, that 10 mcg/dL is seriously debilitating, that 15 mcg/dL

is dangerously debilitating. The U.S. Center for Disease Control, on october 7, 1991 set 10 mcg\dL as the national standard for professional concern and 15 mm as the mandatory, aggressive health

care action level. Pa.DPW defendants have formulated no amount,

duration or scope requirements for EPSDT lead blood level assess-

ment, prevention or treatment or for health care or case-manage-

ment. They have not formulated, let alone distributed to providers

or to beneficiary families, any protocols on blood level assess- ment, prevention, treatment -- let alone protocols requiring in EPSDT the combination of chelation (a chemical treatment), nutritional address (high calcium diets for preVention and treat- ment) and community and family health education including the use

of minute dust removal devices which are recognized professionally as state-of-the-art prevention and treatment, each element of which

is required and the costs federally reimbursable by under Title XIX

(EPSDT).

'" (footnote to Philadelphia SMSA data) This number does not include 20,791 "finger prick" blood level tests given in 1990 (and a similar number for 1991) given by the Philadelphia Department of Health which are not paid for by EPSDT and are given in isolation from EPSDT's comprehensive examinations and treatment.

63

health agencies and organizations, in violation of 42 C.F.R. §441.61(c) and state Medicaid Manual, Sec. 5310 at 5-36 and 37

(1991), Pa.DPW defendants have not provided these crucially important and mandated children's mental health services to all eligible Delaware County children, let alone to any eligible children in the 66 remaining counties throughout Pennsylvania. Pa.DPW defendants have thus also violated the state-wideness requirement of Title XIX, 42 U.S.C. § 1396a(a) (1).

Bffective Interagency Coordination

107. Pa.DPW defendants and each and all of the other Pa.

defendants have failed even to execute on paper, let alone to carry out, the required "interagency agreements," "cooperative arrange- ments," and "coordination of operations" -- required to include both (a) interagency consultation in the formulation of standards, design and implementation of a state's EPSDT Program and (b)

effective operating coordination with and the "maximum utilization" of other agencies which are in contact with large numbers of poor

children and their families in order to accomplish their engagement

in an effective child health care system -- and are thus in violation of Title XIX, 42 U.S.C. §1396a(11) (A}; 42 C.F.R. §441.61;

U.S. Dept. HHS, HCFA, state Medicaid Manual, Pt. V (EPSDT), Sec. 5230.

108. The last and only existing Pennsylvania EPSDT interagency agreement was signed in 1974, seventeen years ago, before many very substantial federal statutory changes in EPSDT were enacted and

before the state(s) of the art in children's health care and in effectively engaging poor children in complete, continuing preven-

65

dividualized Education Plan (IEP) or in an IndividualiZed Family Services Plan (IFSP) under the federal Individuals with Dis- abilities Education Act, including its provisions for early intervention with infants and toddlers, 20 U.S.C. §1400 et seq., may be reimbursed at the 57% rate with federal Title XIX funds; this agreement further allows that the school districts themsel- ves will retain the reimbursed funds for use in the edUcation of these students.

unimplemented.

This agreement, however, has been substantially It has had a potential yield to Pennsylvania school

districts of more than $22 million annually in federal Title XIX funds: it has yielded each year less than $200,000.

110. Partial and isolated experience in Pennsylvania and

extensive experience in many places across the country shows both that thoughtful and real interagency cooperation can result in sound EPSDT standards and in the design and operation of a trimmer, more smoothly-flowing, more effectively-reaching EPSDT program and that aggressive, systematic, well-designed interagency operating Coordination can mUltiply and increase substantially the full and constant engagement of eligible poor children in EPSDT and their actual receipt of complete, continuous health care required by

statute. 111. For one example, entirely within Pa.DPW defendants span of

control, Pa.DPW defendants maintain one computer system for adult Title XIX services and, under their current, anachronistic, unlawful dual systems of child health care, also for the occasional random, sometimes emergency, medical services received by children Whom defendants have not engaged in EPSDT while pa.DPW defendants' own EPSDT contractor maintains another computer system for EPSDT.

67

do not, in fact, in coordinated or any other fashion, nor have they made any agreements or arrangements to, utilize these existing contacts and resources to "aggressively Lnf o rm , seek out and

arrange [EPSDT] services," supra at paragraph 76, for the children. 113. For example, the Special Supplemental Food Program for

Women, Infants and Children (WIC), administered by Pa. Health

Department defendants, whose eligibility criteria include children age 0-5 with family incomes below 185% of poverty is currently in frequent and continuous contact with approximately 233,333 young

Pennsylvania children. Approximately 59.5% of them have qualified for medical assistance under the pre-1989-amendment, substantially lower, categorically needy (AFDC) and medically needy eligibility standards. The greatest number of these children are not being

furnished ltllY, let alone complete, EPSDT services. Among the 40.5%

of WIC'participating children not now enrolled under Title XIX pre- 1989-amendment eligibility standards, by far the greatest number

have family incomes under 133% of poverty and are eligible for and

entitled to EPSDT services. 114. Similarly, in each of the other child intensive programs

for which defendants have responsibility or oversight, large

numbers of EPSDT eligible children are within easy reach but most

have not been engaged by defendants in EPSDT at all, let alone

fully, completely, and continuously: Head Start: 20,949 Pennsyl-

vania pre-school age Children, ages 3 through 5, from poor and low- income working families, currently in Head Start; that is, less

than 20% of the Head Start eligible children, but significantly ? than the number of children ages 3 through 5 who have received

any EPSDT screening examinations, let alone all of the periodically 69

the total program is the ... integration of the School District of

Philadelphia's School Health Program with the [EPSDT] program. In recent meetings with the pennsylvania Department of PUblic Welfare,

Department of Health, and Department of Education, the Corporation

has obtained a commitment that the State will assure that the

requirements of the (EPSDT) program are merged with those of the

state mandated School Health Program." Philadelphia Health

Management Corporation Contract Renewal proposal at 49 (1975).

That commitment was not implemented then, in Philadelphia or

anywhere in the state. Nor has it, or any other statutorily required interagency coordination, been implemented by defendants

at any time since. Nor have defendants acted, as the 1989 Amend-

ments require, to qualify pediatric nurse-practitioners, as

children's health care providers. Nor have defendants implemented

the 1989 statutory instruction to qualify "partial providers," which Congress explicitly intended be done in order to make "school

settings" an integral part of the EPSDT system (H.Rep.No. 101-247

at 400; 1989 U.S.Code, Congo .. Adm.N at 2126), an undertaking

crucial to effective EPSDT-school cooperation and coordination.

71

119. Pa. DPW defendants continue to eschew face-to-face home

visits, despite their own experience and the experience of their predecessors during the years in the middle 1970's under Order of this District court where their use of door-to-door contact in public housing and other high low-income neighborhoods resulted in one year in the largest increase in EPSDT participation rates which

Pennsylvania has ever achieved from under 50% to over 70% (now

reduced by defendants' derelictions and violations to under 25%).

And defendants continue to eschew such state-of-the-art, demon-

stratedly effective modes of aggressive, effective outreach despite the 1989 EPSDT amendments' renewed emphasis upon home visitation, e.g., U.S. Code, congo & Adm.N. at 2118-2119 and its new provisions for case-management, 42 U.S.C. §§1396d(r) (5), 1396d(a) (19), 1396n(g) (2), and for health education, 42 U.S.C. §l396d(r) (1) (B)

(v) .

120. Moreover, the content of Pa.DPW defendants' outreach -- its statement of the EPSDT services to which children are now entitled -- is, in part by reason of its violations set forth at Paragraphs 99-103 above, so entirely unspecific and general that. families who

have particular health care needs -- e.g., lead paint poisoning

amelioration: hearing services: children's mental health and

rehabilitative services -- never know that EPSDT will meet them.

121. In violation of the 1990 Amendment's "outstationing" requirements, 42 U.S.C. §1396a(a) (55), Pa.DPW defendants have yet to open a single "outstation," at any, let alone all, hospitals which serve a "disproportionate share" of children from poor and

low income working families; at any, let alone all, federally qualified health centers; or at any other site where substantial

73

services covered. The 1989 Amendments by simplifying eligibility and, for most children, basing it in income and by providing the same expanded entitlements to the very same services regardless of the source of a child's eligibility, rendered such complex distinc- tions and their complex structures obsolete, effective April 1,

1990.

123. Yet Pa.DPW defendants maintain complex, separate dual

and even on some dimensions treble, quadruple, and beyond

systems of children's health care which discourage and deter both

providers and beneficiaries from participating in EPSDT. since the 1989 amendments they have multiplied the complexities still further, all with the actual, and entirely predictable, effect of discouraging, deterring and defeating provider and beneficiary

participation. 124. To participate in EPSDT, providers and beneficiaries alike

must apply not once but twice (and even more often), once for what

defendants call "medical assistance" and again for "EPSDT". The

drop-off in participation, customary in any two-hurdle rather than

one-hurdle process, is large: Among beneficiaries some 549,000

pennsylvania children survive the first hurdle ("Medical Assis- tance)-, at most only 315,058 survive the second ("EPSDT"); and when

the third hurdle is added, "applying" for the initial screening

examination, at most only 134,558 children survive. Among

professional providers 15,000 survive the first hurdle ("Medical

Assistance"); only no more than 4,400 survive the second hurdle ("EPSDT"). And when the third hurdle is added, applying to be a

"Dispensing Physician" (able to dispense drugs and inoculations), only less than 2,220 providers survive. Among 1,930 pediatricians,

75

many never to see a doctor or a nurse-practitioner again. Some

65,000 Pennsylvanians were born in this past year to poor and low- income working families (incomes under ?33% of the poverty level) ;

at most only 40% of them have ever received in their first year

even Q!).g of the six EPSDT required screening examinations, let alone the EFSDT treatment services to which they are entitled. For another example: poor children go, episodically but in great

numbers, to hospital emergency rooms for broken arms, or even a

flu; what defendants call "medical assistance" pays the bill (very much more costly than seeing a physician who practices outside the

hospital emergency room), not EFSDT, and the child leaves, until the next "emergency," not ever engaged by Pa.DPW defendants, in continuing, complete, systematic, preventive health care as Title XIX mandates.

?27. Fa. DPW defendants persist in and proliferate such com-

plexities and discontinuities without statutory warrant. They

persist -- with no functional justification but to maintain and

multiply administrative barriers to the effective engagement of all eligible children in complete and continuous preventive health

care. The statute contemplates, and requires, a single, simpli- fied, smoothly-flowing system of child health care. Defendants'

contrary design and conduct violates their duty to engage

effectively, let alone aggressively, all poor children into effective preventive and curative care.

128. In the united States' health care system as a whole, some

25% of the total expenditures are consumed by paperwork and ad-

ministrative costs. In 199?, 12.8% of the United states' Gross

Domestic Product, or $748 billion, is health care spending; 3.2%

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well as by providers, and also incurs and imposes very large administrative costs which approximate, and perhaps even exceed,

the cost of full participation and use of systematic children's health care (EPSDT) which defendants work so hard, by omission and

commission, to deter and defeat.

129.

continuing Care Arrangements

Since the invention of EPSDT in 1967, congress and the regulatory framework have enjoined the states to establish continu- ing care arrangements, so that a poor child has'a "regular source" of health care, "someone familiar with his or her episodes of acute

illness and who has an ongoing relationship with the family ... ," 42 C.F.R. § 441.60; State Medicaid Manual, Pt. v(EPSDT}, Sec. 5240

-- a "medical home" as the American Academy of Pediatrics calls it. Donald Schiff, "The Medical Home," AAP (1989). A constant and

continuing "medical home" is recognized as good professional practice. A "family doctor" is customary in health care arrange- ments made by those who can afford health care or private health services, but is most frequently wanting for poor tamilies despite the fact that poor children and their families need such arrange- ments even more than others and that they are necessary to accomp-

lish the Congress' purpose in establishing EPSDT, systematically preventive health care for poor children.

130. In Pennsylvania, as late as September 30, 1990, only 75,190

of the 549,200 children enrolled for health care under "Medical

Assistance" have been furnished continuing care arrangements by

defendants. Virtually all of even those 75,190 have been enrolled in HMOs ("health maintenance organizations") or HIOs ("health

79

particular, is inadequate," congress acted in the 1989 EPSDT

amendments to set a new "equal access standard" which state professional fee schedules must meet. 42 U.S.C. §1396a(a) (30) (A),

H.Rep. No. 101-247 at 389-390; 1989 U.S. Code, Congo & Adm. N. at 2115-21.16. Pa. DPW defendants are in multiple and continuing

violation of the requirements of the statutory standard.

134. Pennsylvania's EPSDT fees for pediatrician, family practitioner and other professional services as well, are starkly and severely below statutory standards.

135. As the following chart shows, Pa.DPW defendants have set i

general "medical assistance" fees, let alone "EPSDT" fees, well below the levels which prevail for Blue Shield (private third party), for Medicare (public third-party), and even for Medical

Assistance in other states:

81

137. Pa. DPW' s fee for an EPSDT screening examination is

$25.00 for children under eighteen months old, $33.50 for older

children. An EPSDT screening examination is at 1east comparable

to "new patient, comprehensive service" -- an $80 Blue Shield fee,

nearly three times Pa.DPW defendants' fee. 138. On July 23, 1991, upon the objections of the Pennsyl-

vania Medical Assistance Consumer Advisory committee and American

Academy of Pediatricians, Pennsylvania Chapter, lodged September

19, 1990, the U. S. Health Care Financing Administration, after consultation with the Secretary of HHS, disapproved and rejected Pa.DPW defendants' state plan submission on pediatric and obstet-

rical fees as in violation of federal law. on that date, HCFA i

!' instructed Pa.DPW defendants, verbatim in the language of the

statute, to "immediately submit a revised amendment which meets the

requirement." 42 U.S.C.§1396r-7(a) (3). Pa.DPW defendants

submitted a revised amendment only on September 3D, 1991, and that submission is inadequate to achieve the statutorily required equal

access for EPSDT eligible children. ]_39? For nearly all of the expanded treatment services newly

mandated by the 1989 Amendments and required to have been provided

by defendants to Pennsylvania's poor children effective April 1,

1990, Pa.DPW defendants have even now established nQ fee schedule

Whatsoever, let alone a fee schedule which meets the Title XIX's

statutory standard.

140. Pa.DPW defendants' fee schedule for dental fees has not

been revised for twelve (12) years and falls severely short of the

statutory equal access standard.

83

defendants have articulated not standards for qualifying partial EPSDT providers, let alone ones which integrate school health programs and services into EPSDT, and are thus in violation of

Title XIX.

145. The 1990 amendments, with unusual congressional emphasis

and urgency, 101 stat. 1388-168 and 169 (1990), required defendants

effective July 1, 1991, to "provide for the receipt and processing

of applications for medical assistance ... (A) at locations ... other than those used for applications for ?id to families with dependent

children [AFDC] and which include facilities defined as dispropor- tionate share hospitals ... and federa.lly-qualified health centers

and (Bl using [simplified] applications other than those used

for [AFDC]." 42 U.S.C. § 1396a(a) (55) (the "outstation" require- ment). Despite the eagerness of hospitals and health centers to participate, so that they can do their part to engage all eligible

poor children in EPSDT and to accomplish complete and continuous

health care for them, Pa.DPW defendants have provided no such

outstations.

v. The states of the Art 146. There is a state-of-the-art -- or more accurately there

are stateg of the art -- on every dimension of child health care

and the design and conduct of effective children's health care

systems. The state-of-the-art comprises expanding sets of powerful, numerous and demonstratedly effective practices which

work to accomplish the purpose of the EPSDT statute; namely, to engage eligible poor children fully in continuous and complete

preventive and curative health care and rehabilitation. 85

2. the practice of Sinai Hospital, the busiest obstetri- cal hospital in Baltimore, Maryland, wherein no newborn child is discharged from the hospital or its nursery before each child is paired with a pediatrician or family practitioner with explicit professional responsibility for complete, continuing health care

for the child. The Sinai practice has resulted in 90% of the

children (about 500 a year) being up to date on immunizations, screening and treatment at the age of 2 and significantly lower use

of emergency rooms than comparable populations. Schorr, supra at 98-105.

J2.. the interagency practice in and around the Jackson-

Hinds County Comprehensive Health Center in Mississippi, wherein

family physicians, internists, pediatricians, obstetricians, nurses and surgeons work alongside nutritionists, social workers,

community organizers and outreach workers?'which operates adoles-

cent health clinics in two Jackson high schools and a junior high

school; wherein teams of health educators and outreach workers

together regularly visit children and families in their homes;

where all of the children have a continuing and regular source of care. The Jackson-Hinds practices have resulted in success in reaching infants and pre-schoolers with immunizations and anemia

screenings and treatment at significantly higher rates than others

in similar circumstances; adolescents who become pregnant get

special services, 90% receive nutrition supplements; only 5% become

pregnant again: only 9% drop out of school (compared to 50% before the program began). Schorr, supra at 93-98.

Q. the statewide Mississippi practices of inter-agency

cooperation and coordination to furnish pre-natal services and

87

citizenship. c. Everett Koop, M. D. t Hard Choices, "Listening to Teenagers" 11,5-16 (MacNeil/Lehrer Productions, 1991).

t:. since 1987 Florida has "outstationed" workers at 215

large scale, pediatric provider sites where significant numbers of families whose children are eligible but not yet fully engaged in EPSDT pass, including 94 county health centers, resulting in very significantly larger participation rates. NGA, supra at 23. In Vermont, outstationing at 63 special Supplemental Food program (WIC) 'sites has had similar results for the EPSDT participation rate. NGA, supra at 24.

g. In seventeen states, simplified, shortened application forms have been developed and adopted for both children and

pregnant women, with a consequent increase in EPSDT participation rates. Several states have used shortened, simplified forms as

mail-in applications to increase EPSDT participation rates. NGA,

supra at 24.

h. Kentucky has established a process of EPSDT application at the time of delivery wherein obstetrical and pediatric providers engage children and families in EPSDT before they leave the

hospital nursery, yielding significant increases both in EPSDT

participation rates and in continuity of health care for the child. NGA, supra at 25.

1. Eighteen states have established comprehensive case-

management services for children, many focused on such priority subsets as high-risk infants age birth to five (Md.), children ages

zero to two (Tenn.), low birth weight children (Mo.), children with mental problems (Fla.), children in foster care (Ala.), and infants and toddlers needing early intervention (Md.). NGA, supra at 65.

89

a. During 1.991. the 21.st Century League of Philadelphia

designed and implemented a citizen and volunteer professional campaign engaging many civic and community and neighborhood based

organizations in door-to-door canvassing and community mobilization to engage children and their families during several weekends and,

in several neighborhoods, across

against common, but devastating

several weeks in immunization

childhood illnesses. These

undertakings resulted in the largest number of immunizations ever

furnished to Philadelphia children in a comparable time span.

b. During the opening days of the Philadelphia schools, for several years, the Philadelphia citizens for Children and youth

stationed volunteer workers at several Philadelphia schools to talk with families about children's health care and to engage them in EPSDT, yielding significant new EPSDT participation rates.

c. During 1991. in cooperation with a neighborhood-based,

organization in the Germantown section of Philadelphia, Philadel- phia citizens for Youth has gone door-to-door in a high poverty neighborhood to talk with families and engage them in children's health care, yielding significant new EPSDT participation and the

furnishing to children of treatment services to which they have

been entitled but which they have previously not received. 151. The EPSDT statute, its legislative history and the

regulatory materials thereunder bespeak in every part a duty upon

state defendants to seek out, to identify, and thoughtfully to consider the states-of-the-art, and, in implementing every dimen-

sion of the EPSDT Program, to choose among the states-of-the-art and actually to implement a sufficient set of them in order to actually accomplish the statutory mandate, fully to furnish

91

(a) I:mmediately to provide that no new-born child eligible for EPSDT shall leave the hospital of his or her birth without an

effective, continuing health care arrangement having first been

established for that child. (b) Immediately to establish operating coordination

between and among defendants and their agents in order to identify EPSDT eligible children who are not yet being furnished complete

and continuous EPSDT services, and to aggressively reach out to these children, to arrange for them continuing care relationships, and to furnish to them the statutorily required set of complete and

continuing EPSDT services, including but not limited to: (c) Immediately, and monthly thereafter, until at least 90%

of the eligible children are participating fully in EPSDT, to identify in all of the programs under their control -- fully utilizing Pa.DPW computers and those of its agents, and the record systems of every defendant -- every child who is eligible for EPSDT

but is not yet fully engaged therein and, within one month, by home

visit to each such child and with whatever follow-up case manage-

ment services are necessary, to engage each fully in ongoing,

complete and continuous EPSDT services. (d) Immediately to formulate interagency cooperation

agreements, and, after consultation, submission to plaintiffs and

to the Court, and any prompt revision, to execute and implement

such agreements which shall provide that defendants and their agents shall go where the children are and for effective operation

coordination with EPSDT between and among, and the maximumutiliza- tion of, at least the following child intensive agencies and

programs: the schools, including school-based health care, Chapter 93

children living in intensive lead paint neighborhoods, and of children living in low-immunization neighborhoods, of children receiving any health care service but for whom there has been no

billing for immunizations, of children who have received emergency

room services, and of children whose delivery was paid for under

Title XIX.

6. Immediately to reopen any contact with any child or family since April 1, 1990 to the present which did not result in the child's qualification as eligible for EPSDT services ? which did not result in the furnishing of any needed EPSDT service sought

by child or provider -- including especially but not limited to the treatment services newly mandated by the 1989 EPSDT Amendments and

required to have been furnished effective April 1, 1990 -- for which the child may have been qualified and which may have been

medically necessary; to contact that child and his family or immediate care-taker in person, to qualify the child under the eligibility standards required by Congress as of April 1, 1990, and

to furnish to the child every service among those required by

Congress to have been furnished as of April 1, 1990 and for which

the child now has need.

7. Defendant Deputy Secretary of Public Welfare for Medicaid

Programs, with the co-operation and recommendation of the other defendants and relevant professional and consumer organizations, immediately to formulate specifications of amount, duration, and

scope which shall be sufficient to reasonably achieve EPSDT' s

statutory purpose for each EPSDT service which was optional and

unelected or unrequired before April 1, 1990, but required since then to be furnished; to reformulate amount, duration, and scope

95

· children's hearing, sight, and anemia assessment, treatment, correction, amelioration, and prevention;

· children's mental health assessment and treatment; · children's developmental assessment and treatment; · children's nutritional assessment and treatment; · drug and alcohol addiction correction, amelioration

and prevention; · speech, hearing, and language disorder therapies; · physical therapy and related services; · home health services, including personal care services; · private duty nursing services; · rehabilitative services, including

remedial services, in a facility, setting; · any other type of remedial care recognized under state

law.

any medical or a home or other

9. Immediately to formulate, upon ccneu Ltiatid cn with the

relevant professional bodies, a periodicity schedule for pre- school age hearing services, screening, examinations, assessment

and treatment. 10. To announce and to disseminate widely among the intended

beneficiaries of EPSDT and their families, currently and potential- ly participating providers, and participants and workers in EPSDT-

eligible-children-intensive programs of all defendants and their agents, plain, usable, integrated, and accurate statements of the

expanded eligibility criteria for EPSDT, and to orient and

adequately train all of their eligibility workers in the new

simplified, income-based criteria. Pa.DPW defendants shall formulate such a training plan, submit it to this Court and after prompt comment by plaintiffs and any revision, promptly implement

it. 11. To redesign its fragmented, complex, multiple systems of

children's health care and to formulate and adopt a single, simplified, integrated, smoothly-flowing system for the administra- tion and delivery of complete and continuous health care to all

97

state, and provides for actual approval or disapproval by Pa.DPW defendants or its agents within 72 hours.

12. Immediately to establish "outstations" at every dis- proportionate share hospital and federally qualified health center in Pennsylvania as well as at such other additional sites, including but not limited to, district Family Health Centers of the City of Philadelphia and their counterparts in each county and in the schools, Head Start Centers, WIC, daycare and public housing sites, where eligible children and their families are customarily or frequently present in significant number as are necessary to increase the participation rate in EPSDT to at least 90%; to SUfficiently staff all such outstations so that they yield the prompt and full engagement of all eligible children who frequent such sites into ongoing, continuous participation in EPSDT; and to develop and, after consultation with relevant professional and consumer organizations and after review by plaintiffs and any revision, to adopt and utilize at such sites, and otherwise, a

shortened, simplified EPSDT application. 13. To establish, and to monitor, and enforce, continuing care

arrangements for every EPSDT eligible child so that, each child, and to the maximum extent possible,. each family I has a familiar and constant ongoing source of high quality, continuous preventive and curative health care, Le. "a medical home. II

14. To articulate in its Tile XIX plan, and in its contracts with Health Maintenance OrganiZations and Health Insuring Organiza- tions and otherwise, the necessary elements of continUing care arrangements, as well as performance standards, monitoring criteria and the methods Pa.DPW defendants will use to secure and to enforce

99

periodic screening ex?inations, shall apply also to the last four periodic screenings for adolescents.

19. Immediately to promulgate and to implement a fee schedule for all of the services provided to EPSDT eligible children by federally qualified health centers which meets the statutory 100%

of reasonable cost standard.

20. Immediately to promulgate and to implement fee schedules for dental services, for eyeglasses and for all other EPSDT

services which meet the statutory equal access standard. 2L Immediately to establish a single, simplified process for

qualifying pediatric and family nurse practitioners to provide EPSDT services, in such fashion and with such fee provisions as will promptly expand as fully as possible the availability of pediatric and family nurse practitioners to EPSDT eligible children, especially Ln , but not limited to, nurse practitioners practicing in school settings as well as other qualified school based nurses ? and to immediately make effective provisions to inform and to recruit all potentially participating nurse prac- titioners into full participation as EPSDT providers.

22. Immediately to establish a single, simplified, and integrated system allowing for the qualification of partial EPSDT

providers and to articulate and disseminate the standards there- fore, with particular reference to the maximum utilization. and

integration into EPSDT of practitioners based in school settings, as the Congress in its 1989 Amendments to the EPSDT provisions of Title XIX expressly intended.

23. To aggressively seek out and inform pediatricians, family medical practitioners, licensed nurse practitioners, hospitals,

101