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June 4, 1975

Mary WOODRUFF, Individually and on behalf of her minor child Tina Louise Moore, et al., Plaintiffs,
Abe LAVINE, Individually and as Commissioner of the New York State Department of Social Services, et al., Defendants

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

 Plaintiffs bring this action challenging what they term the failure of New York State and City officials to implement a mandatory, comprehensive preventive health care program, known as Early and Periodic Screening and Diagnosis Treatment ("EPSDT"), for Medicaid-eligible children under twenty-one years of age. They seek a declaratory judgment that the defendants, who are State and City officials responsible for the administration of the New York State Plan for Medical Assistance, have failed to implement fully EPSDT in violation of various provisions of Title XIX of the Social Security Act, Department of Health, Education and Welfare ("HEW") regulations dealing with EPSDT, and the Fourteenth Amendment of the United States Constitution; and they request various injunctive relief.

 The individual plaintiffs are Medicaid-eligible children and their parents, who seek to represent a class of those who allegedly are being denied the benefits of a fully implemented EPSDT program, and the St. John's Day Care Center, a publicly funded organization, which sues on its own behalf and on behalf of its members who are Medicaid-eligible families. *fn1" On April 12, 1974, this court signed a class action order with the consent of the defendants, designating the class as "all Title XIX eligible children in New York State who have not received" EPSDT.

 The plaintiffs move for summary judgment upon their complaint and the defendants' answers and answers to interrogatories. The defendants, in opposing the motion, served affidavits to which plaintiffs have responded. The State and City defendants contend they are now in substantial compliance with the statutory requirements, whereas plaintiffs urge otherwise. Analysis of the applicable statute and regulations is required in order to resolve the issue.

 1. The Statutory and Regulatory Scheme.

 Title XIX of the Social Security Act, *fn2" enacted by Congress in 1965, created Medicaid, a comprehensive program of medical assistance for the needy. States are not required to participate. A state that chooses to participate in Medicaid administers its own medical assistance program *fn3" and receives federal financial assistance; *fn4" however, it is required to comply with the provisions of Title XIX. *fn5" In 1967 Congress amended Title XIX to require each participating state to include, as part of its medical assistance program:

"such early and periodic screening and diagnosis of individuals who are eligible under the [State] plan and are under the age 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary." *fn6"

 The regulations implementing EPSDT *fn7" were not promulgated until four years later, in November 1971. They require a State plan to provide:

"(i) For establishment of administrative mechanisms to identify available screening and diagnostic facilities, to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities, and to make available such services as may be included under the State plan." *fn8"

 The regulations further establish a timetable for the program by requiring the State to make EPSDT available to eligible children under the age of six by February 7, 1972, and to all eligible individuals under the age of twenty-one by July 1, 1973. *fn9"

 A major item of controversy on this motion centers about what is referred to as an "outreach program." This term appears to be official jargon for a program to publicize EPSDT in an effort to search out eligible children and to bring home to them and their parents its benefits and advantages, and thereby achieve maximum participation. In June 1972 HEW issued guidelines with respect to the implementation of the EPSDT program. *fn10" The guidelines observed Congress' intent in enacting the 1967 amendments to Title XIX "to require States to take aggressive steps to screen, diagnose and treat children with health problems." *fn11" Among other matters, the guidelines interpreted the EPSDT regulations as requiring states to have an "outreach program" to inform eligible individuals about the screening program and to encourage them to participate, *fn12" and as requiring the states to seek out and develop agreements with medical providers. *fn13" The congressional purpose to enforce the requirement of an "outreach program" was manifested by an amendment to the Social Security Act in 1972, which provided for a reduction by 1% of the federal payments to a state for its AFDC program if the state failed, after June 30, 1974, (1) to inform all AFDC-eligible families of the availability of EPSDT; (2) to provide for screening services when requested; and (3) to arrange for follow-up corrective treatment where indicated. *fn14"

 2. Jurisdiction.

 In addition to claiming that the State and City defendants have violated provisions of the Social Security Act and binding regulations promulgated thereunder, plaintiffs assert a claim under the Equal Protection Clause of the Fourteenth Amendment. They contend that only one class of children is currently receiving EPSDT services -- children under six who are enrolled in neighborhood Child Health Stations in New York City. All other eligible children are, plaintiffs contend, being denied the equal protection of the law.

 Whatever the merits of this contention, it is neither "obviously frivolous," "foreclosed by prior decisions," nor "so attenuated and unsubstantial as to be absolutely devoid of merit." *fn15" The equal protection claim is, therefore, of sufficient substance to support federal jurisdiction under 28 U.S.C., section 1343(3). Jurisdiction attaches to plaintiffs' statutory claims under the doctrine of pendent jurisdiction, since ...

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