Amicus Curiae Brief — Alexander v. Choate

lan lice - Supreme Court, US. |

) FILED

No. 83-727 MAY 24 1984

TEVAS

In the Supreme Court of the N

OCTOBER TERM, 1983

LAMAR ALEXANDER, ET AL., PETITIONERS

V.

ROSIER JENNINGS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

REX E. LEE

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

CHARLES J. COOPER

Deputy Assistant Attorney General

JOHN H. GARVEY

Assistant to the Solicitor General

BRIAN K. LANDSBERG

MICHAEL CARVIN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The United States will address the following question:

Whether a 14-day annual limit on Medicaid coverage

for inpatient hospital care has a “disparate impact” on

the handicapped if a disproportionate number of handi-

capped Medicaid-eligible hospital users require more than

14 days of such care.

(1)

Interest of

Statement

TABLE OF CONTENTS

the United States

Introduction and summary of argument

Argument:

Tennessee’s 14-day limit on inpatient hospital

care for all Medicaid recipients does not have a

disparate impact on the handicapped, and so is

consistent with Section 504 and its implementing

regulations

A. Tennessee’s plan does not have a disparate im-

pact because the relevant benefit (hospital serv-

ices) is provided equally to handicapped and

nonhandicapped alike

1.

2.

Section 504 does not dictate what kind of

benefit the State must provide

Tennessee law and the Medicaid Act con-

template that the relevant benefit (the pro-

vision of health services) may be subject to

a reasonable annual limit

B. Section 504 should not be read as requiring the

State to distribute program benefits in a way

that produces equality of results

1.

Conclusion

Appendix A

Appendix B

Appendix C

The court of appeals’ approach obliterates

the distinction between nondiscrimination

and affirmative action, requires unforeseen

subsidies, and producés new disparate im-

pacts of its own

The cases do not support the conclusion

that inequalities in result automatically

constitute a disparate impact

()

Page

10

11

13

16

21

11a

IV

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405. 11

American Public Transit Ass’n v. Lewis, 655 F. 2d

. ie acnipenieensinbnaninnis 27

Beal v. Doe, 432 U.S. 438 25

Bryan v. Koch, 627 F.2d 612 11, 27

Charleston Memorial Hospital v. Conrad, 693 F.2d

324 e..

Connecticut v. Teal, 457 U.S. 440 11

Consolidated Rail Corp. v. Darrone, No. 82-862

. ——— — 2, 12

Curtis v. Taylor, 625 F. 2d 645, modified, 648

F.2d 946 1 1 20

Doe v. Colautti, 592 F. 2d 704 . 16

Doe v. Devine, 545 F. Supp. 576, aff'd, 703 F.2d

— ad 16

Dopico v. Goldschmidt, 687 F. 2d 644 —_. 27

Georgia Association of Retarded Citizens v. Me-

Daniel, 716 F.2d 1565 27

Griggs v. Duke Power Co., 401 U.S. 424 ___-__ — 11, 28

Guardians Association v. Civil Service Commis-

sion, No. 81-431 (July 1, 1983 8, 28, 30

Jefferson v. Hackney, 406 U.S. 5535 24, 25

Lau v. Nichols, 414 U.S. 563 28, 29, 30 |

Los Angeles Dep’t of Water & Power v. Manhart,

435 U.S. 702 — uae — 25

NAACP v. Medical Center, Ine. 657 F.2d 1322 11, 27

North Haven Board of Education v. Bell, 456 U.S.

512 8 2 — 12

Schweiker v. Gray Panthers, 453 V. 8. 34 8 19

Southeastern Community College v. Davis, 442

. 2, 10, 26, 27-28, 29

Timms v. Metropolitan School District of Wabash

County, 722 F.2d 1310 - 26

Virginia Hospital Ass’n v. Kenley, 427 F. Supp.

781 — —— 20

Statutes, rule and regulations:

Education of the Handicapped Act, 20 U.S.C.

1401 et seq. 27

V

Statutes, rule and regulations Continued: Page

20 U.S.C. 1401 (16) 28

20 U.S.C. 1401 (18) 28

20 U.S.C. 1412 (1) 28

Rehabilitation Act of 1973, 29 U.S.C. 701, et seq.:

29 U.S.C. 706 (7) (B) 6, 7

e eT passim

29 U.S.C. 794a(a) (2) 18

Social Security Act, 42 U.S.C. (& Supp. V) 301

et seq.:

Tit. IV, 42 U.S.C. (& Supp. V) 601 et seg. 6

Tit. XVI, 42 U.S.C. 1381 et seq. 6

42 U.S.C. 1382c(a) (3) (a) 6, 7

Tit. XIX, 42 U.S.C. (& Supp. V) 1396 et seg. 18

42 U.S.C. 1396 (8 1901) 18

42 U.S.C. (Supp. V) 1396a (a) (10)

(§ 1902 (a) (10)) 6, 9, 18

42 U.S.C. (Supp. V) 1396 (a) (10) (C) 19

42 U.S.C. 1396a (a) (17) (8 1902 (a)

(17)) 18

42 U.S.C. 1396a(a)(19) (§ 1902 (a)

(19) ) 19

42 U.S.C. 1396a(f) 19

42 U.S.C. (Supp. V) 1396d (a 9, 18

20 U.S.C. 2701 et sea. 24

20 U.S.C. 3801 et seq. 25

42 U.S.C. 2000d-1 18

Tenn. Code Ann. § 14-23-109 (1980) 17

5 C. F. R. 900.704 (b) (3) 1

7 C. F. R. 15 (b) (4) 1-2

10 C.F.R.:

Section 4.121 (b) (4 2

Section 1040.63 (b) (4) 2

14 C. F. R. 1251. 103 (b) (5) __ 2

15 C. F. R. 8b. 4 (b) (4) 2

18 C. F. R. 1307.4 (b) (3) 2

22 C. F. R.:

Section 142.4 (b) (4) 2

Section 217.4 (b) (4) 2

—

~~.

—

V

Statutes, rule and regulations Continued: Page

28 C. F. R.:

Pt. 41 1

Section 41.4 1

Section 41.51 (b) (3) 2

Pt. 42:

Section 42.503 (b) (3) 2

29 C. F. R. 32.4 (b) (4) 2

31 C. F. R.:

Section 51.52 (b) (1) (vi) 2

Section 51.52 (b) (1) (viii) 2

32 C. F. R. 56.8 (a) (6) 2

34 C. F. R.:

Section 104.4 (b) (4) 2

Section 104.33 (a) 28

Section 104.33 (b) (1) 28

38 C. F. R. 18.404 (b) (4) 2

41 C. F. R. 101-8. 303 (d) 2

42 C. F. R.:

Pt. 430 et seq. 18

Pt. 440:

Section 440.230 (b) 19

Section 440.230 (d) 19

Section 440.240 19

43 C. F. R. 17.203 (b) (4) 2

45 C. F. R.:

Pt. 84:

Subpt. A:

Section 84.3 (j) (2) (ii) 6

Section 84.4 (b) (1) (iii) 14

Section 84.4 (b) (2) 13, 14

Section 84.4 (b) (4) 2, 14

Subpt. F.:

Section 84.52 (a) 15

Section 84.53 15

J 11— 14, 15, 16

Pt. 85 (1978) 1

Pt. 605:

Section 605.4 (b) (4) 2

VII

Statutes, rule and regulations Continued: Page

Pt. 1151:

Section 1151.17 (e) 2

Pt. 1170:

Section 1170.12 (e) eee 2

Pt. 1232:

Section 1232.4 (b) (3) 2

49 C. F. R. 27.7 (b) (4) 2

49 Fed. Reg. 1656 (1984) (to be codified at 40

C. F. R. Pt. 7) 2

Miscellaneous:

Exec. Order No. 11,914, 41 Fed. Reg. 17871

(1976) 1

Exec. Order No. 12,250, 45 Fed. Reg. 72995

Fernen . 1

35 Fed. Reg. 11595 (1970) 29

H.R. Conf. Rep. 97-208, 97th Cong., Ist Sess.

(1981) 19

La Jolla Management Corporation, Analysts of

State Medicaid Program Characteristics, 1983

00000000 20

In the Supreme Cnurt of the United States

OCTOBER TERM, 1983

No. 83-727

LAMAR ALEXANDER, ET AL., PETITIONERS

V.

ROSIER JENNINGS, Er AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States has substantial responsibility for en-

forcing Section 504 of the Rehabilitation Act of 1973 (29

U.S.C. 794) in connection with federally assisted pro-

grams and activities.“ This case concerns the interpreta-

tion of that Section and its implementing regulations,’

1In 1976 the President directed the Secretary of Health, Educa-

tion, and Welfare to “establish standards for determining who are

handicapped individuals and guidelines for determining what are

discriminatory practices, within the meaning of section 504.”

Exec. Order No. 11,914, 41 Fed. Reg. 17871 (1976). The Secretary

issued detailed regulations. 45 C.F.R. Pt. 85 (1978). In 1980 the

Secretary’s responsibility was transferred to the Attorney General

(Exec. Order No. 12,250, 45 Fed. Reg. 72995 (1980)), and the

regulations were “deemed to have been issued by the Attorney

General.” Jd. at 72997; see 28 C. F. R. Pt. 41. The regulations re-

quire each federal agency to issue its own regulations concerning

handicap discrimination in the programs and activities financially

assisted by that agency. 28 C.F.R. 41.4.

2 At least 24 federal agencies have regulations which incorporate

a “disparate impact” test. See 5 C.F.R. 900.704(b) (3) (OPM); 7

(1)

and the outcome will directly affect the actions of numer-

ous federal agencies and recipients of federal funds. For

the same reason, the United States has participated as

amicus curiae in other cases before this Court involving

Section 504. See Southeastern Community College v.

Davis, 442 U.S. 397 (1979); University of Texas v.

Camenisch, 451 U.S. 390 (1981) ; Consolidated Rail Corp.

» Darrone, No. 82-862 (Feb. 28, 1984).

STATEMENT

1. This suit was brought by Medicaid recipients from

the State of Tennessee to challenge an array of changes

proposed by the State to control its Medicaid expendi-

tures. By the time of the district court’s decision (Pet.

App. A27-A51), the only remaining issue was the validity

of Tennessee’s proposed reduction in the number of hos-

pital days covered by Medicaid from 20 to 14 per year.

Although the validity of this proposed reduction was

challenged on several grounds, the questions presented on

certiorari concern its propriety only under Section 504 of

the Rehabilitation Act.“

At trial, statistical evidence was submitted comparing

inpatient hospital use by individuals who qualify for

Medicaid benefits on the basis of blindness or disability

(deemed “handicapped” by the parties and by the court

C.F.R. 15b.4 (b) (4) (DOA); 10 C.F.R. 4.121 (b) (4) (NRC); 10

C.F.R. 1040.63(b) (4) (DOE); 14 C. F. R. 1251.103(b) (5) (NASA);

15 C. F. R. 8b.4(b) (4) (DOC); 18 C. F. R. 1307.4(b) (3) (TVA); 22

C.F.R. 142.4(b) (4) (DOS); 22 C.F.R. 217.4(b) (4) (AID/IDCA) ;

28 C. F. R. 41.51 (b) (3), 42.503(b) (3) (DOJ) ; 29 C. F. R. 32.4 (b) (4)

(DOL) ; 31 CF. R. 51.52 (b) (1) (vi), 51.55 (b) (1) (viii) (D. Treas.

(ORS) ); 32 C. F. R. 56.8 (a) (6) (DOD); 34 C. F. R. 104.4 (b) (4)

(D. Ed.) ; 38 C. F. R. 18.404 (b) (4) (VA); 49 Fed. Reg. 1656 (1984)

(to be codified at 40 C. F. . Pt. 7) (EPA); 41 C. F. R. 101-8.303(d)

(GSA); 43 C. F. R. 17.203 (b) (4) (DOI); 45 C. F. R. 84.4(b) (4)

(HHS); 45 C. F. R. 605.4 (b) (4) (NSF); 45 C. F. R. 1151.17 (e)

(NEA); 45 C. F. R. 1170.12 (e (NEH); 45 C. F. R. 1232.4 (b) (3)

(ACTION) ; 49 C. F. R. 27.7 (b) (4) (DOT).

3 Respondents argued below that the proposed reduction also

violated the Social Security Act and its implementing regulations

(Pet. App. A43-A51).

(J.A. 40)) with inpatient hospital use by individuals who

qualify for Medicaid benefits on the basis of other con-

siderations (deemed “nonhandicapped”).* The district

court found that during fiscal year 1979-1980, 341,960

persons qualified for Medicaid benefits in Tennessee. Of

these 90,668 (26.5%) were handicapped. During the

same period 51,140 Medicaid recipients used one or more

days of inpatient hospital care. Of these 16,852 (33.0%

were handicapped (Pet. App. A31-A32).° Out of the

7279 Medicaid recipients who needed more than 14 days

of hospital care, 4617 (63.4%) were handicapped (J.A.

170-172, 182-184).

Looking at those figures another way, respondents

noted that of the Medicaid recipients who used inpatient

hospital care, 92.2% of the nonhandicapped (31,626

34,288) would have been fully served by 14 days of cov-

erage, whereas only 72.6% of the handicapped (12,235 —~

16,852) would have been fully served. Thus 27.4% of

the handicapped users of this service, as opposed to 7.8%

of the nonhandicapped users, required some hospitaliza-

tion for which they would not be reimbursed if the 14-

day limit went into effect. On the basis of these statistics

respondents argued that the 14-day limit would have a

disparate impact on the handicapped, and that they had

therefore shown a prima facie violation of Section 504.

The district court rejected this argument. It held (Pet.

App. A34-A35) that the proportionately greater hospital

use by handicapped Medicaid eligibles in fiscal year 1979-

1980 was not necessarily attributable to their handicaps,

and that the 1979-1980 statistics therefore showed little

about likely future hospital use.“ In any event, the court

*The pertinent eligibility criteria for Medicaid benefits are

described at page 6, infra. For further comment on the question of

who are the “handicapped” see note 13, infra.

Thus 18.6% of all handicapped Medicaid recipients (16,852

+ 90,668) used inpatient hospital care, while 13.6% of non-

handicapped recipients (34,288 + 251,292) used this service.

The court said (Pet. App. A34 n.6):

For example, there was no attempt to show what percentage

of handicapped users required inpatient hospital treatment as

4

held that the disparity shown by respondents “[did] not

amount to discrimination” under Section 504 (Pet. App.

A40).

On appeal the Sixth Circuit vacated and remanded for

further proceedings, holding that respondents had shown

a disparate impact, and therefore established a prima

facie case (Pet. App. Al-A19). Citing medical testimony

describing the inpatient hospitalization patterns of pa-

tients with various handicaps,’ the court found to he

clearly erroneous the district court’s finding that the

disparity demonstrated for 1979-1980 might not continue

in later years (Pet. App. Al0-A12).* The court further

held that that disparity sufficed to establish a prima facie

case, stating (Pet. App. A9-A10) :

[Tjhe district court erred by confusing the prima

facie case with a decision on the ultimate outcome.

The establishment of disparate impact is not

determinative of whether the defendant is guilty of

discrimination. It merely requires the defendant to

rebut the inference of discriminatory action. * * *

[The showing of disparate impact proved a prima

facie case and required the state to explain its choice.

a result of their handicapping condition. It seems likely that

some handicaps, such as blindness, would rarely require hos-

pitalization, while others, such as mental illness, might well

require frequent hospitalization. Without some such evidence,

the court is left to speculate on what extent the existence of

handicaps in the broad sense of § 504 affects the statistical

disparity shown for the study year.

The court also pointed out (ibid.) that even in 1979-1980 only

5% of all handicapped Medicaid eligibles (27.4% x 18.6%) needed

more than 14 days of inpatient hospital care. The corresponding

figure for nonhandicapped Medicaid eligibles was 1% (7.8%

x 18.6%).

The State also admitted in its appellate brief that “the handi-

capped population of Medicaid recipients would suffer proportion-

ately more from the reduction in hospital benefits than the non-

handicapped Medicaid recipients” (see Pet. App. All n.7).

The court disagreeſd]!“ (Pet. App. A10) with the district

court’s finding that the evidence did not indicate the extent to

which the existence of handicaps affects the statistical disparity.

5

The court went on to consider the justification offered

by the State for its proposed reduction in inpatient hos-

pital coverage (Pet. App. Al2-A16). The court found

that the State “was justified in attempting to reduce its

Medicaid expenses” (Pet. App. A13). It noted, however,

that respondents—in addition to proving a prima facie

case of disparate impact—had presented an alternative

plan that might have affected the handicapped less while

still reducing the State’s expenses.’ The court held that

under these circumstances the State must rebut the prima

facie case either by “demonstrat[ing] that the alternative

method * * * will not accomplish the State’s objective of

cost-saving,” “ or by “coming forward with some sub-

stantial justification for the adoption of the plan with the

greater discriminatory impact” (Pet. App. A16)."

2.a. Section 504 of the Rehabilitation Act of 1973 (29

U.S.C. 794) provides:

No otherwise qualified handicapped individual * * *

shall, solely by reason of his handicap, be excluded

from the participation in, be denied the benefits of,

or be subjected to discrimination under any pro-

gram or activity receiving Federal financial assist-

.

A “handicapped individual” is defined as any person

who (i) has a physica! or mental impairment which sub-

As the district court indicated (Pet. App. A36 n.7), respond-

ents’ plan would have limited inpatient hospital coverage on a per-

stay basis rather than a per-year basis. The court of appeals’ char-

acterization of the plan as “limiting the total number of visits per

annum rather than the number of days“ (Pet. App. A13) is incor-

rect. Respondents proposed that a fixed number of days be allowed

for each type of hospital stay (e.g., appendectomy, coronary bypass

surgery), based on a fixed percentage (whatever was needed to

keep the total cost within the State’s budget) of the average

number of days needed for stays of that nature. See Br. in Opp. 3

n.1; J. A. 59-61, 98-107, 120-121; C.A. App. 320-829.

1% We assume that demonstrating that the alternative method

does not really have a lesser disparate impact on the handicapped

would also suffice to rebut the prima facie case.

11 Judge Merritt dissented (Pet. App. A20-A26).

6

stantially limits one or more of such person’s major life

activities, (if) has a record of such an impairment, or

(iii) is regarded as having such an impairment” (29

U.S.C. 706(7) (B)). HHS regulations implementing Sec-

tion 504 define “major life activities” as “functions such

as caring for one’s self, performing manual tasks, walk-

ing, seeing, hearing, speaking, breathing, learning, and

working” (45 C. F. R. 84.3(j) (2) (ii)).

b. Title XIX of the Social Security Act (see 42 U.S.C.

(Supp. V) 1396a(a)(10)) ties eligibility for Medicaid

benefits to eligibility for either Supplemental Security In-

come (SSI) (42 U.S.C. 1381 et seg.) or Aid to Families

with Dependent Children (AFDC) (42 U.S.C. (& Supp.

V) 601 et seg.) . It is thus essentially limited to five cate-

gories of individuals: (1) the blind; (2) the disabled;

(3) the aged (65 or older) ; (4) dependent children (gen-

erally under age 18) deprived of parental support; and

(5) caretaker-relatives of such children.“ Eligibility is

also limited by financial and other considerations, but no

one, regardless of income, is eligible for Medicaid unless

he falls into one of these five categories.

A person is “disabled” for purposes of SSI and Med-

icaid eligibility “if he is unable to engage in any substan-

tial gainful activity by reason of any medically deter-

minable physical or mental impairment which can be ex-

pected to result in death or which has lasted or can be

expected to last for a continuous period of not less than

twelve months” (42 U.S.C. 1382 (a) (3) (A)).

INTRODUCTION AND SUMMARY OF ARGUMENT

The question we address in this brief is whether Ten-

nessee’s 14-day limit on Medicaid coverage for inpatient

hospital care has a disparate impact on the handicapped *

12 The first three categories are SSI eligibles; the last two are

AFDC eligibles.

13 As we mentioned above, throughout this litigation the term

“handicapped Medicaid eligibles” has been used to describe the

blind and disabled, and “nonhandicapped Medicaid eligibles” to

describe all others. But as the statutory definitions show, while the

blind and the disabled are “handicapped” for purposes of Section

7

so as to constitute a prima facie violation of Section 504

of the Rehabilitation Act.

The petition presents as a separate antecedent question

whether “a ‘disparate impact’ or ‘effe~ts’ test [is] appro-

priate to determine a violation of § 504 of the Rehabilita-

tion Act of 1973 and regulations issued thereunder” (Pet.

i). This issue was not briefed, argued, or decided in ei-

ther the district court or the court of appeals. Our brief

in this case proceeds on the assumption that a showing of

“disparate effects” could, in a proper case, constitute a

prima facie violation of Section 504—either because Sec-

504, it does not follow that persons who qualify for Medicaid on

some other basis are not. The class of “handicapped” persons pro-

tected by Section 504 is in fact much broader than the class of

“disabled” persons eligible for Medicaid benefits. Section 504 pro-

tects people fully capable of engaging in “substantia! gainful activ-

ity” (42 U.S.C. 1382c(a) (3) (A)), who have either (i) a physical

or mentai impairment (or a record of such an impairment) which

is regarded as limiting their ability to work, or (ii) a physical or

mental impairment (or a record of such an impairment) which

substantially limits (or is regarded as limiting) some other “major

life activit{y].” 29 U.S.C. 706 (7) (B). Thus, for example, dyslexic

and hearing-impaired AFDC recipients would be “handicapped”

under Section 504, but would have been included in the class of

“nonhandicapped Medicaid eligibles” in the statistics used here.

Had they instead been included among the “handicapped Medicaid

eligibles,” the proof might have been significantly different. If

their handicaps do not require much hospital care, the percentage

of the handicapped requiring more than 14 days would have been

lower than 27.4% (since the denominator would have been larger),

and the percentage of the nonhandicapped would have been higher

than 7.8% (since the denominator would have been correspondingly

smaller) .

As a result, we think that the court of appeals’ decision (quite

apart from any legal error) rests on an erroneous factual premise—

that it is “the handicapped” as defined in the Rehabilitation Act

who are disproportionately affected by Tennessee's plan. If the

Court should disagree with our principal contention (pages 10-

30, infra), it may nonetheless wish to consider vacating the judg-

ment below and remanding to the court of appeals with instructions

to remand to the district court for further findings of fact that are

consistent with the definition of “handicapped individual” set forth

in 29 U.S.C. 706(7) (B).

tion 504 itself may encompass “disparate effects,” or

because the numerous agency regulations implementing

Section 504—which prohibit recipients from using crite-

ria that have the “purpose or effect” of discriminating

against the handicapped ""—may constitute a valid means

of implementing the open-ended statutory directive. See

Guardians Association v. Civil Service Commission, No.

81-431 (July 1, 1983).

However, we do not think that the Court needs to pass

on the validity of either of these assumptions, or to re-

visit the question that so troubled the Court in Guardians

under the parallel provisions of Title VI—the role of pur-

pose and effect in interpreting the statute and the regula-

tions. As we demonstrate below, Tennessee’s plan does

not have a disparate impact on the handicapped even if

one assumes that an “effects” test is proper. A finding of

disparate impact depends on a showing that the handi-

capped are affected unequally with respect to some rele-

vant good or benefit. In this case Tennessee has provided

the same good or benefit (hospital care up to 14 days) to

all individuals eligible for Medicaid (pages 11-12, 16-21,

infra).

Should the Court reject our principal contention, and

conclude that the facts here can constitute a showing of

disparate impact, two questions would still remain to be

decided. The first is whether such a showing is legally

sufficient to establish a prima facie case under Section

504 and its regulations. The second is whether, if it is,

the State here successfully rebutted the respondents’ show-

ing.“ We suggest that the appropriate disposition of both

of these questions would be to remand them for deter-

mination in the first instance by the lower courts, where

they have not yet been considered.

This Court has not considered whether the differences in

statutory language and legislative history between Title VI and

Section 504 would require a different result here than the Court

reached in Guardians Association v. Civil Service Commission,

No. 81-431 (July 1, 1983), on this question.

15 See page 14, infra.

16 See note 17, infra.

9

We turn then to the court of appeals’ conclusion that

the State’s proposed 14-day limit on Medicaid coverage

for inpatient hospital care would have a disparate impact

on the handicapped, and that respondents had therefore

made out a prima facie case under Section 504. This con-

clusion is erroneous.

A. Respondents’ showing of “disparate impact” is

legally insufficient because the State plan offers the same

benefit to all Medicaid eligibles, handicapped and non-

handicapped alike. The court of appeals’ conclusion that

the handicapped are affected “more harshly than others”

(Pet. App. A8) rests on the assumption that the benefit

Tennessee is conferring is not a fixed amount of health

services, but the satisfaction of health needs. That as-

sumption is incorrect.

Section 504 does not dictate what kind of benefit a re-

cipient of federal funds must provide. It simply com-

mands that the handicapped be allowed to share equally

in the benefits of a federally assisted program, whatever

those may be. What those benefits are is in the first in-

stance determined by the federal fund recipient (here the

State), which is the entity that has chosen to undertake

the program or activity of distributing those benefits.

That determination must, of course, be consistent with

the federal funding statute (here the Medicaid Act) that

subsidizes the recipient’s program or activity. Here all

the State has undertaken is to give Medicaid eligibles in-

patient hospital services up to 14 days. Such a limitation

on hospital care is fully consistent with the Medicaid Act,

which defines “medical assistance” as “payment of part

of the cost of * care and services.” 42 U.S.C.

(Supp. V) 1396d(a). Indeed the Medicaid Act includes

its own equality provision (one more specific than Section

504), which says only that “the medical assistance made

available to any individual * * * shall not be less in

amount, duration, or scope than the medical assistance

made available to any other * * * individual.” 42 U.S.C.

(Supp. V) 1396a(a) (10) (emphasis added).

B. The court of appeals appears to have thought that

Section 504, while leaving a recipient free to choose “the

10

goal of [iis] program” (Pet. App. Al2 n.8), requires

funds to be allocated so that the handicapped and non-

handicapped are equally successful in achieving that ulti-

mate goal.

1. This suggestion dissolves all distinction between

nondiscrimination and affirmative action. It may be that

a greater percentage of the handicapped require more

than 14 days of hospital care to achieve the ultimate

goal of good health. But the same would be true if the

State reverted to a 20-day limit. The only way to assure

equality in reaching the goal of good health is to allocate

more health care money per capita to the handicapped.

Section 504—an antidiscrimination (rather than an af-

firmative action) statute—does not mandate such a re-

distributive subsidy. Indeed, such a redistribution may

well have a disparate impact on other groups protected

by other antidiscrimination laws.

2. An approach requiring equality of results is un-

supported by the case law dealing with Section 504 and

cognate statutes. In Southeastern Community College v.

Davis, 442 U.S. 397 (1979), this Court made clear that

discrimination against the handicapped should be meas-

ured in the context of the “program” as defined by the

recipient of federal funds. It also held that It] he lan-

guage and structure of the Rehabilitation Act of 1973

reflect a recognition by Congress of the distinction be-

tween the evenhanded treatment of qualified handicapped

persons and affirmative efforts to overcome the disabilities

caused by handicaps. * * * Section 504 does not refer at

all to affirmative action.” 442 U.S. at 410.

ARGUMENT

TENNESSEE’S 14-DAY LIMIT ON INPATIENT HOS-

PITAL CARE FOR ALL MEDICAID RECIPIENTS

DOES NOT HAVE A DISPARATE IMPACT ON THE

HANDICAPPED, AND SO IS CONSISTENT WITH

SECTION 504 AND ITS IMPLEMENTING REGULA-

TIONS

According to the court of appeals, respondents demon-

strated that the State’s proposed 14-day limit on Medicaid

11

coverage for inpatient hospital care would have a dis-

parate impact on the handicapped, and therefore estab-

lished a prima facie case under Section 504.“ This con-

clusion is erroneous.

A. Tennessee’s Plan Does Not Have A Disparate Impact

Because The Relevant Benefit (Hospital Services) Is

Provided Equally To Handicapped And Nonhandi-

capped Alike

The court of appeals held that Tennessee’s plan was “a

facially neutral policy which affected [the] protected

group[] more harshly than others” (Pet. App. A8). But

in one obvious way the State’s plan affects everyone

equally: all Medicaid recipients are entitled to 14 days

of hospital care; none is entitled to more. The court’s

conclusion is meaningful only if one assumes that the rel-

17 Application of a disparate impact test, in cases where it is

appropriate, typically involves three steps: (1) the plaintiff must

establish that the challenged act or practice has a disproportionate

adverse effect on a protected class; (2) the defendant must then

demonstrate that the act or practice has a “manifest relationship”

to a legitimate interest; (3) “[e]ven in such a case, the plain-

tiff may prevail if he shows that the [defendant] was using the

practice as a mere pretext for discrimination.” Connecticut v. Teal,

457 U.S. 440, 447 (1982). See Albemarle Paper Co. v. Moody, 422

U.S. 405, 425 (1975) (quoting Griggs v. Duke Power Co., 401 U.S.

424, 482 (1971)(Title VII). See also NAACP v. Medical Center,

Inc., 657 F.2d 1322, 1334-1335 (3d Cir. 1981) (en banc) (Title

VI); Bryan v. Koch, 627 F.2d 612, 616-619 (2d Cir. 1980) (Title

VI).

As we show below, this case is unlike the typical disparate im-

pact case because the very existence of a disparity depends on how

one defines the benefit that respondents are deprived of. If the

benefit is properly defined as the provision of inpatient hospital

services, then the handicapped are affected in precisely the same

way as other Medicaid eligibles—under the State’s proposal, every-

one is subject to the identical 14-day limit on these services. To

require the State to justify its 14-day limitation under these cir-

cumstances is to proceed to step (2) of the inquiry before the

plaintiffs have made out a prima facie case under step (1). In the

circumstances of this case it is thus part of the plaintiffs’ initial

burden to establish that the relevant benefit is something other

than what the State maintains it is.

12

evant “good” or “benefit” “ being distributed (and as to

which a discriminatory effect is prohibited) is not the

provision of health services, but the satisfaction of health

needs.

How does one determine what is the relevant “ ” or

“benefit”? Our submission is that the answer cannot be

derived from Section 504 itself. Section 504 was not in-

tended to generate an independent substantive definition

of what is the federally subsidized good or benefit as to

which discrimination is prohibited. Rather, it is the re-

cipient—here the State—that in the first instance must

determine what benefit-distributing program or activity

it wishes to undertake. (In this case we believe that Ten-

nessee has undertaken a program of distributing, not sat-

isfaction of health needs, but hospital care.) Of course,

because the federal grant statute subsidizes the recipi-

ent’s program or activity, the recipient’s choice of bene-

fits must be consistent with that federal law. (Here Ten-

nessee’s decision to distribute, as a benefit, up to 14 days

of hospital care is fully consistent with the Medicaid

Act.) The purpose of Section 504 is simply to assure that

qualified handicapped individuals are given an equal op-

portunity to share in those benefits that the recipient has

undertaken to distribute and the federal government has

undertaken to subsidize.

18 Section 504 states that qualified handicapped individuals may

not be “excluded from the participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity

receiving Federal financial assistance” (emphasis added). As this

Court’s decision in North Haven Board of Education v. Bell, 456

U.S. 512, 520 (1982), demonstrates, one may be “subjected to dis-

crimination”—e.g., in employment—even though he does not di-

rectly benefit from federal grants, loans, or contracts.” See also

Consolidated Rail Corp. v. Darrone, No. 82-862 (Feb. 28, 1984). In

this case, however, respondents’ very claim is that the State has

not given them their proper share of the good being handed out in

a federally subsidized “benefit program.” It is therefore appro-

priate to analyze the case as raising the question whether the rele-

vant benefit is the provision of hospital — or rather the

satisfaction of health needs.

13

1. Section 504 Does Not Dictate What Kind Of Bene-

ft The State Must Provide

Like the notion of equality itself, Section 504 gen-

erates no self-contained or independent substantive rule

of conduct. It states that “[n]o otherwise qualified han-

dicapped individual * * * shall, solely by reason of his

handicap, be excluded from the participation in, be de-

nied the benefits of, or be subjected to discrimination un-

der any program or activity receiving Federal financial

assistance” (29 U.S.C. 794). Nothing in that language

deñines or even constrains the kind of “program or ac-

tivity” a recipient may conduct, or what its “benefits”

may be. It presumes that the program may be of “any”

kind the federal government is willing to assist. Once the

recipient has established a program and complied with

the requirements for federal aid, however, Section 504

commands that the handicapped be given an equal oppor-

tunity to share in its benefits, whatever they may be.

Suppose Tennessee were to decide that it wished to give

each of its citizens $100, to be spent on health care, and

the federal government decided to contribute $70 per

person for this program. Section 504 obviously requires

that the handicapped, like everyone else, receive $100; but

it would hardly be thought that the program was (prima

facie) invalid under Section 504 because $100 may buy

less “good health” for the handicapped than for the non-

handicapped. Similarly, if the State decides to offer spe-

cific health services, Section 504 simply insists that the

handicapped have equal access to those services, not that

those services produce equivalent results for the handi-

capped.

The Section 504 regulations (to which the court of ap-

peals referred (Pet. App. Al2 n.8)) are consistent with

this understanding of the role of Section 504. 45 C. F. R.

84.4(b) (2) provides that

19 The term “equality” expresses a relation—the idea that some

person or thing (X) is equal to another (Y) in some attribute

(Z). What that attribute (Z) might be is determined not by the

idea of equality but by some external system that makes it relevant.

14

(2) For purposes of this part, aids, benefits, and

services, to be equally effective, are not required to

produce the identical result or level of achievement

for handicapped and nonhandicapped persons, but

must afford handicapped persons equal opportunity

to obtain the same result, to gain the same benefit,

or to reach the same level of achievement, in the most

integrated setting appropriate to the person's

needs.

Under this section, the handicapped must be given an

“equal opportunity” to get “the same benefit” (whatever

that may be) that the State offers to others. The ex-

planatory appendix to the regulations illustrates what is

meant by such an “equal opportunity” (45 C.F.R. Pt. 84

App. A, ſ 6):

For example, a welfare office that uses the telephone

for communicating with its clients must provide al-

ternative modes of communicating with its deaf

clients.

The other provision referred to by the court of appeals

(Pet. App. A8 & n.5, Al2 n.8) was 45 C.F.R. 84.4(b) (4),

which states:

(4) A recipient may not, directly or through con-

tractual or other arrangements, utilize criteria or

methods of administration (i) that have the effect of

subjecting qualified handicapped persons to discrimi-

nation on the basis of handicap, [or] (ii) that have

the purpose or effect of defeating or substantially

impairing accomplishment of the objectives of the

recipient’s program with respect to handicapped per-

sons

20 Section 84.4 (b) (2) explains and qualifies 45 C. F. R. 84.4

(b) (1) (iii), which states that

(1) A recipient, in providing any aid, benefit, or service,

may not, directly or through contractual, licensing, or other

arrangements, on the basis of handicap:

(iii) Provide a qualified handicapped person with an aid,

benefit, or service that is not as effective as that provided to

others .

15

Clause (i) speaks of discriminatory “effect,” but like the

statute, it says nothing about the kinds of benefits whose

uneven distribution will have that result. Clause (ii)

refers to the “recipient’s program”; that program's ob-

jectives” are assumed to have been defined by the recipi-

ent outside the framework of Section 504.

Thus Section 504 leaves a recipient of federal funds

free to decide the kind of benefit it wishes to offer and

the objectives of its program. The federal grant statute

determines whether a program distributing that benefit

is entitled to a federal subsidy. And Section 504 comes

into play at the next step: whatever benefit is offered,

and has been subsidized, must be made available to the

handicapped on equal terms with the nonhandicapped.

The explanatory appendix gives the following examples:

Recipients are not required * * * to provide special-

ized services and aids to handicapped persons in

health programs. If, for example, a college infirmary

treats only simple disorders such as cuts, bruises,

and colds, its obligation to handicapped persons is to

treat such disorders for them.

45 C.F.R. Pt. 84 App. A, H 33.

One common misconception about the regulation *

is that it would require specialized hospitals and

other health care providers to treat all handicapped

persons. The regulation makes no such requirement.

Thus, a burn treatment center need not provide other

types of medical treatment to handicapped persons

unless it provides such medical services to nonhand-

icapped persons. It could not, however, refuse to

treat the burns of a deaf person because of his or

her deafness.

45 C.F.R. Pt. 84 App. A, 736. A third discusses the

regulation (45 C.F.R. 84.53) forbidding discrimination in

the treatment of drug and alcohol addicts:

21 The regulation referred to is 45 C.F.R. 84.52(a), which spe-

cifically addresses discrimination against the handicapped in the

provision of health, welfare, and other social services.

16

This provision does not mean that all hospitals and

outpatient facilities must treat drug addiction and

alcoholism. It simply means, for example, that a

cancer clinic may not refuse to treat cancer patierts

simply because they are also alcoholics.

45 C. F. R. Pt. 84 App. A, J 37.

In this case the court of appeais found it significant

that Tennessee’s plan, by limiting coverage to 14 days,

would not “afford the best cure” (Pet. App. Al2 n.8) for

some sufferers of “asthma, emphysema, chronic bron-

chitis,” and “ ‘[{d]egenerative diseases of neurology’ (id.

at All). But that is no different from saying that the

State has not chosen to pay for treatment of drug addic-

tion or aicoholism, or for major disorders in general, or

for anything other than burn treatment. Section 504 does

not require the State to treat those conditions at all. A

fortiori it does not require the State to provide more than

14 days of hospital care for them, particularly when it

does not do so for other conditions.”

2. Tennessee Law And The Medicaid Act Contem-

plate That The Relevant Benefit (The Provision

Of Healih Services) May Be Subject To A Rea-

sonable Annual Limit

The court of appeals apparently believed that Tennes-

see law and the Medicaid Act do not contemplate a bene-

fit proge m of health services subject to a flat annual

maximum. It held that it (Pet. App. Al2 n.8):

would be too simplistic an analysis to hold that all

the Medicaid program requires is a particular num-

ber of days in the hospital. Rather, it is likely that

22 Other cases dealing with claims like respondents’ have under-

stood this point. See, e.g., Doe v. Colautti, 592 F.2d 704, 707-710

(3d Cir. 1979) (state may limit the number of days it will pay for

hospitalization in a private mental institution, though it provides

unlimited yy for physical illness); Doe v. Devine, 545

F. Supp. 576, 585 (D. D.C. 1982), aff'd on other grounds, 708 F.2d

1319 (D.C. Cir. 1983) (reduction of inpatient mental health bene-

fits below the levels for physical illness)

17

the objective is to afford the best cure, therapy, or

preventative treatment that the allotted funds can

provide.'*! This is made clear by the Tennessee law

defining medical assistance as the “payment of the

cost of care, services and supplies necessary to pre-

vent, diagnose, correct or cure conditions in the per-

son.” Tenn. Code Ann. § 14-23.103(2).

Nothing in Tennessee law, however, suggests that the

State has chosen to distribute anything other than a lim-

ited amount of health services. On the contrary, Ten-

nessee law specifically empowers [t] be commissioner [of

public health] * * * by rule and regulation [to] fix the

maximum level of services as are deemed necessary to

insure that an expenditure of state funds shall not ex-

ceed the amount provided for those purposes.” Tenn.

Code Ann. § 14-23-109 (1980). Pursuant to this provi-

sion, the commissioner had previously limited coverage to

20 days for all Medicaid recipients. By the reduction at

issue in this case he proposed, pursuant to the same au-

thority, to offer needed care up to 14 days—nothing more,

nothing less.

The court of appeals also said that it “would be too

simplistic * * * to hold that all the Medicaid program

The meaning of this is somewhat obscure. Obviously, if “the

allotted funds” are limited, the State cannot pay for cures in all

cases. And curing those who can be healed in 14 days—with sub-

stantial help (14 days of care) for those who cannot—is certainly

one way of defining “the best cure * * * the allotted funds can

provide.” Another way of distributing funds might be that pro-

posed by respondents: paying a percentage of each person’s stay in

the hospital, with no limit on the number of stays. That would not

provide a cure in any case (since the percentage must be less than

100% if funds are limited), but would give the most seriously ill

(people needing more than 14 days of care) the same percentage of

their costs as the least seriously ill. The court of appeals seems to

have envisioned a third possible scheme: an annual limit on the

number of stays, but no limit on the number of days per stay

(Pet. App. Al3-Al4). This would provide cures in some cases

(patients who had not used up their allotted number of stays), but

not in all. Whether those uncured would number more than

7279 (the number of people needing more than 14 days of care) is

not apparent from the record.

18

requires is a particular number of days in the hospital”

(Pet. App. Al2 n.8). We disagree. Both Title XIX of

the Social Security Act (42 U.S.C. (& Supp. V) 1396

et seq.) and the Medicaid regulations (42 C.F.R. Pt. 430

et seg.) envision precisely that kind of limitation.“ Sec-

tion 1901 of the Act provides for grants to states “[f]or

the purpose of enabling each State, as far as practicable

under the conditions in such State, to furnish * * * med-

ical assistance” (42 U.S.C. 1396 (emphasis added) ).

“lM)edical assistance” is defined as “payment of part

or all of the cost of * * * care and services” (42 U.S.C.

(Supp. V) 1396d(a) (emphasis added)). Section 1902

of the Act requires state plans to “include reasonable

standards * * * for determining * * * the extent of med-

ical assistance under the plan“ (42 U.S.C. 1396a(a) (17)

(emphasis added) ).

Tennessee’s proposal is also consistent with the equal-

ity rule incorporated in Section 1902(a) (10) of the Med-

icaid Act. That section is far more specific than Section

504 about the kind of Medicaid benefits the blind and dis-

abled are entitled to get on equal terms with others. It

states (42 U.S.C. (Supp. V) 1396a‘a)(10) (emphasis

added) ) :

(a) A State plan for medical assistance must—

(10) provide

(B) that the medical assistance made avail-

able to any individual described in clause

(A) (=)

We note that Section 504 regulations must be consistent with

achievement of the objectives of the statute authorizing the finan-

cial assistance.” 42 U.S.C. 2000d-1; 29 U.S.C. 794a(a) (2).

25 “(C)lause (A)“ refers to

all individuals receiving aid or assistance under any plan of the

State approved under * * * part A [AFDC] or part E [Foster

Care and Adoption Assistance] of subchapter IV of this chap-

ter * or with respect to whom supplemental security in-

19

(i) shall not be less in amount, duration, or

scope than the medical assistance made available

to any other such individual * * *.

See also 42 C.F.R. 440.240. The court of appeals itself

held, somewhat quixotically, that the State’s proposal was

in “the best interests of Tennessee Medicaid recipients”

(Pet. App. Al6), and consistent with Section 1902 (a)

(19) of the Act, 42 U.S.C. 1396a(a) (19).% Finally, the

regulations implementing the Act also permit a state

agency to “place appropriate limits on a service” (42

C.F.R. 440.230(d)), so long as the service provided is

“sufficient in amount, duration, and scope to reasonably

achieve its purpose” (id. § 440.230 (b)).

come benefits are being paid under subchapter XVI [SSI] of

this chapter * * *.

Respondents claim that Tennessee has discriminated against the

blind and the disabled (a subclass of SSI recipients) by offering

them medical assistance equal “in amount, duration, [and] scope”

to that offered other Medicaid recipients (AFDC recipients and

aged SSI recipients).

26 That section provides that

(a) A State plan for medical assistance must

* * * * *

(19) provide such safeguards as may be necessary to

assure that eligibility for care and services under the plan

will be determined, and such care and services will be pro-

vided in a manner consistent with simplicity of adminis-

tration and the best interests of the recipients.

27 The Medicaid Act specifically permits a number of other cost-

cutting approaches whose effect on the blind and disabled would be

more severe than Tennessee’s proposal. One is the “Section 209 (b)

option,” which would permit a state to cover fewer of the blind and

disabled than are eligible for SSI. See Schweiker v. Gray Panthers,

453 U.S. 34, 38-39 (1981) ; 42 U.S.C. 1896a(f). The Act also makes

it possible for a state to drop the disabled entirely from the covered

group of medically (as opopsed to categorically) needy. 42 U.S.C.

(Supp. V) 1396 (a) (10) (C); H.R. Conf. Rep. 97-208, 97th Cong.,

Ist Sess. 970-971 (1981). (For a discussion of the distinction be-

tween the categorically and the medically needy, see Schweiker v.

Gray Panthers, 453 U.S. at 37.)

Other courts have concluded that similar (and even

shorter) annual limits on hospital care are consistent with

the Medicaid Act. See, e.g., Charleston Memorial Hos-

pital v. Conrad, 693 F.2d 324, 329-330 (4th Cir. 1982)

(inpatient hospital days limited to 12) ; Virginia Hospital

Ass’n v. Kenley, 427 F. Supp. 781 (E.D. Va. 1977) (in-

patient hospital days limited to 21) ; ef. Curtis v. Taylor,

625 F.2d 645, 653, modified, 648 F.2d 946 (5th Cir. 1980)

(reduction in coverage of physician visits to three per

month). Such limits are permissible, the courts have held,

so long as the “state plan will meet the medical needs of

‘most’ eligible Medicaid recipients.” Charleston Memorial

Hospital v. Conrad, 693 F.2d at 330. Here the district

court found that the state plan would fully serve 95% of

even handicapped Medicaid eligibles (Pet. App. A34 n.6).

For that reason the Health Care Financing Administra-

tion has approved Tennessee’s 14-day limit.“ Similar

annual limits are currently in effect in nine other states.”

To conclude: whether respondents have shown a prima

facie case of disparate impact depends on the nature of

the benefit Tennessee has allegedly distributed in unequal

fashion. Section 504, however, is not an independent

source of law that defines what benefit a recipient of fed-

eral funds must offer. Instead, it directs that the hand-

icapped be afforded an equal opportunity to share in

whatever benefit a recipient’s program, as subsidized by

the federal grant statute, happens to provide. Here Ten-

nessee law, in conformity with the Medicaid Act and its

regulations, has chosen to offer a limited amount of health

We have reproduced at App., infra, la-4da, a copy of the

August 25, 1981 Notice of Approval and Attachment 3.1.A.1. (The

“Subject of Amendment” in the Notice (App., infra, 2a) includes

an ellipsis. The full title of the subject is “Inpatient hospital serv-

ices other than those provided in an institution for mental diseases

or tuberculosis.” We have appended at App., infra, 5a-9a,aSep-

tember 26, 1983 Notice which makes this clear. )

2° We have reproduced at App., infra, 10a, a list of those states

and their annual limits. The source of this information is LaJolla

Management Corporation, Analysis of State Medicaid Program

Characteristics, 1988, at 47-48 (Dec. 1983).

21

services (not satisfaction of health needs) on equal terms

to all individuals eligible for Medicaid. In the distribu-

tion of that benefit there is no disparate impact on the

handicapped.

B. Section 504 Should Not Be Read As Requiring The

State To Distribute Program Benefits In A Way That

Produces Equality Of Results

One might attempt, even accepting all we have said

thus far, to defend the court of appeals’ decision on a

more sophisticated level. The court did not, after all, say

that the State had to take money allocated for hospital

care and spend it for some unrelated benefit. Instead the

court sought out the underlying purpose of hospital care

good health” (Pet. App. A22)—and required that the

handicapped be assured of the same success rate as the

nonhandicapped in achieving that purpose (Pet. App. A12

n.8). Its assumption seems to have been that Section 504

leaves a recipient free to choose the purpose of its pro-

gram, but requires that the available funds be allocated

so as to create equality of results with respect to that

ultimate or fundamental purpose.

We do not think that Section 504 can bear such a read-

ing. Section 504 was designed simply to eliminate dis-

crimination against the handicapped, not to require the

creation of subsidy (or affirmative-action) programs

which will produce equality of results for them. The

court of appeals’ approach has the effect of dissolving all

distinctions between nondiscrimination on the one hand,

and subsidy or affirmative action on the other. Section

504 should not be read to obliterate the commonly under-

stood conceptual categories against which it was enacted

and which serve to make meaningful its animating con-

cerns. Further, the court of appeals’ approach reads Sec-

tion 504 as requiring the State to engage in a significant

redistribution from the nonhandicapped to the handi-

capped, a result that should not be required in the ab-

sence of a clear indication of congressional intent. Fi-

nally, the court’s approach, by requiring the State to

apportion Medicaid funds to achieve equal results for the

handicapped and the nonhandicapped, may produce new

inequalities affecting other protected groups. These con-

sequences of the court’s approach are not supported by

the case law dealing with Section 504 and cognate stat-

utes.

1. The Court Of Appeals’ Approach Obliterates The

Distinction Between Nondiscrimination And Af-

firmative Action, Requires Unforeseen Subsidies,

And Produces New Disparate Impacts Of Its Own

a. Congress does not legislate in a vacuum. When it

enacts statutes such as Section 504, which refer to con-

cepts such as discrimination, it must be taken to refer to

conceptual categories that have some commonly under-

stood meaning. The fundamental problem with the court

of appeals’ approach is that it ascribes to Congress a re-

ductionist intention to obliterate these conceptual mean-

ings and to dissolve the distinctions that flow from them.

One common assumption—confirmed by the functioning

of our markets—is that a person who offers the same

day, it is treating everyone equally, and there is no dis-

crimination even if some people need care more than

others. Society may then decide in

greater need of hospital care should be provided with

lower-priced (or free) care, but that is thought of as

question of subsidy, not a question of how to eliminate

discrimination. In just the same way, once

decided to subsidize a limited amount of hospital care for

a group of. people, it cannot be thought to discriminate

if it leaves all of them subject to the identical limit (and

thus subject to the market for their unmet needs), ever

though some may have greater needs than others.

If one accepts the court of appeals’ hypothesis that the

underlying purpose of Tennessee’s plan is good health,

and that any benefit package giving the handicapped a

lower success rate in achieving that result has a dis-

parate impact, the real issue becomes not whether Ten-

nessee can reduce its hospital coverage from 20 to 14

days, but whether it can impose any annual limit on cov-

erage. The reason is that although the number of hand-

icapped needing further hospitalization decreases with

more coverage, the disproportion in “cures” between hand-

icapped and nonhandicapped actually increases as the

maximum stay period is lengthened (J.A. 182-183).

It would of course be possible to avoid all such “dis-

parate impacts” by providing 365 days of hospital cov-

erage. Then everyone would be offered the same benefit,

and the handicapped and nonhandicapped would have

their needs met in equal fashion. Yet even the court of

appeals agreed that “[t]he State * was justified in

attempting to reduce its Medicaid expenses” (Pet. App.

Al13). The only other possible solution that satisfies the

“purpose” identified by the court of appeals is to redis-

tribute the funds available for hospital care by giving

more per capita to the handicapped, so that equal per-

centages of the handicapped and nonhandicapped may

achieve the goal of good health. This converts Section 504

from an antidiscrimination statute into an instrument of

affirmative-action redistribution. No matter how wise or

humane this may be as a matter of social policy, it would

be unwarranted to read such a policy into the sparse

and limited language of Section 504.

For example, while 3.5 times as many handicapped as non-

handicapped Medicaid-eligible hospital users (27.4% + 7.8%) re

quire more than 14 days of hospitalization, 4.02 times as many

(169% + 4.2%) require more than 19 days. We illustrate in

App., infra, 11a, that this proposition is true for every increase in

coverage from one to 19 days. Although there are no figures to

show the relative rates of utilization for exactly 20 days, the

parties stipulated that they did “not have any information that

would indicate that patterns of patient utilization of twenty days

coverage per year differ significantly from patterns of utilization

of fifteen to nineteen (15-19) days of hospitalization per year”

(J.A. 40). The figures given in App., infra, lla, are taken from

JA. 182-183.

24

b. To read Section 504 as animated by the general un-

derlying purpose of producing equality of results might

have the untoward consequence of creating (or increas-

ing) disparate impacts (so conceived) with respect to

other groups, some themselves protected by antidiscrimi-

nation laws.

We start here with the fact that the handicapped as a

class already receive proportionately more of the State’s

Medicaid assistance—including hospital care—than do the

nonhandicapped as a class. A greater proportion of hand-

icapped than nonhandicapped persons is eligible for Med-

icaid benefits in the first place, because persons between

21 and 65 (with no dependent children) cannot qualify

for Medicaid coverage (regardless of income) unless they

are either blind or disabled. Further, of those eligible for

Medicaid, a greater proportion of the handicapped than

of the nonhandicapped receives inpatient hospital care.

See note 5, supra. Finally, of those who receive inpa-

tient hospital care, a greater proportion of handicapped

than of nonhandicapped persons uses the full 14 days of

care offered under the State’s plan. See page 3, supra,

and App., infra, IIa.

The court of appeals’ approach would require increas-

ing these disproportions. But if the State must pay still

more money per capita annually for hospital care for the

blind and disabled, it will necessarily pay less for AFDC

recipients. See page 6, supra. And if in Tennessee, as

in Texas, “the proportion of AFDC recipients who are

black or Mexican-American is higher than the proportion

of the * * * blind, or disabled welfare recipients who fall

within these minority groups” (Jefferson v. Hackney, 406

U.S. 535, 538 (1972)), respondents’ proposal might be

considered to have a “disparate impact” on those pro-

tected by Title VI.

Making results rather than benefits the focus for

identifying disparate impact would have similar conse-

quences outside the area of health care. Consider, for ex-

ample, the question of federal financial aid to elementary

and secondary schools. See, e.g., 20 U.S.C. 2701 et seg.;

25

20 U.S.C. 3801 et seg. One might say that the underly-

ing purpose of such school programs is not the provision

of educational services, but the successful achievement of

learning—measured perhaps by SAT scores. One could

then claim that such a program had a disparate impact

on the mentally handicapped if funds were not so allo-

cated as to bring their SAT scores into parity with those

of the nonhandicapped.** But a redistribution of this

sort—what in common understanding would be regarded

as affirmative action in favor of the handicapped—may

very well have a disparate impact on disadvantaged (but

nonhandicapped) minorities protected by Title VI.

Indeed, even a system of direct cash grants in equal

amounts to all individuals below a certain income level

could be suspect under Section 504, provided one defined

the purpose of the grants in sufficiently general result-

oriented terms—to promote health or learning. And since

the class protected by Section 504 is not necessarily con-

gruent with the classes protected by Titles VI and IX,

a redistribution of funds to help the handicapped better

achieve the program’s “purpose” would often create new

disparate impacts of its own.”

31 The suggestion is not fanciful. One might sensibly object that

the goal of equal SAT scores is naturally impossible for some

children to reach, and that Section 504 does not require pointless

expenditures. But in the same way the goal of good health (“the

best cure” (Pet. App. Al2 n.8)) is unattainable for some of the

physically handicapped. Yet what the court of appeals’ decision

requires is that the handicapped as a class make the same progress

toward that goal (have their medical needs met at the same rate)

as the nonhandicapped as a class.

32 As even the court of appeals acknowledged (Pet. App. A13),

the State is entitled to “a great deal of latitude in structuring the

services it provides to its citizens.” See also Beal v. Doe, 432 U.S.

438, 444 (1977) (the Medicaid Act “confers broad discretion on the

States to adopt standards for determining the extent of medical

assistance“); Jefferson v. Hackney, 406 U.S. 535 (1972). “Even a

completely neutral practice will inevitably have some disproportion-

ate impact on one group or another.. * [T]}his Court has never

held [] that discrimination must always be inferred from such

consequences.” Los Angeles Dep't of Water & Power v. Manhart,

485 U.S. 702, 711 n.20 (1978) (emphasis in original).

2. The Cases Do Not Support The Conclusion That

Inequalities In Result Automatically Constitute

A Disparate Impact

The cases decided by this Court and other courts under

Section 504 do not support the approach taken by the

court of appeals. In Southeastern Community College v.

Davis, 442 U.S. 397 (1979), the issue was not whether

the respondent got equal “benefits” from a federally as-

sisted nursing program, but whether she was “qualified”

to “participat[e] in” the program at all (29 U.S.C. 794).

In answering that question, however, this Court assumed

that it should measure discrimination in the context of

the program as the recipient of federal assistance defined

it“ (442 U.S. at 413 n.12):

Southeastern’s program, structured to train persons

who will be able to perform all normal roles of a reg-

istered nurse, represents a legitimate academic pol-

icy, and is accepted by the State.

To the argument that the respondent could benefit from

(and perhaps even be licensed after completing) a suit-

ably modified program, the Court responded (442 U.S. at

410):

The language and structure of the Rehabilitation

Act of 1973 reflect a recognition by Congress of the

distinction between the evenhanded treatment of qual-

ified handicapped persons and affirmative efforts to

overcome the disabilities caused by handicaps. * * *

* * * Section 504 does not refer at all to affirma-

tive action. * * * Congress understood accommoda-

tion of the needs of handicapped individuals may re-

quire affirmative action and knew how to provide for

it in those instances where it wished to do so.

In the cases relied upon by the court of appeals (Pet.

App. A7-A10), where a disparate impact was found, the

very benefit offered by the recipient reached the protected

See also Timms v. Metropolitan School District of Wabash

County, 722 F.2d 1310, 1318 (7th Cir. 1983) (“[Slection 504 for-

bids exclusion from programs rather than prescribing the pro-

grams’ content.“)

27

group in disproportionately small numbers.“ Those cases

therefore involved issues like that presented by archi-

tectural and transportation barriers. When a recipient

of federal education aid provides a classroom or a library

with no access ramp, it offers a benefit that—unlike Ten-

nessee’s hospital care—does not reach relatively equal

numbers of the handicapped and nonhandicapped. The

same is true when the recipient constructs a public trans-

portation system with federal money, but designs it in

a way that bars use by the handicapped.”

* In NAACP v. Medical Center, Inc., 657 F.2d 1322 (3d Cir.

1981) (en banc), the claim was that the recipient, by relocating a

hospital, had made it more difficult for the handicapped and minori-

ties to get to the facility. The court assumed, “without deciding,

that the plaintiff [had] presented a prima facie case” under Title

VI, and went on to hold that the recipient had adequately justified

whatever burden it imposed on the protected group. 657 F.2d at

1324, 1333-1337. In Bryan v. Koch, 627 F.2d 612, 616-617 (2d Cir.

1980), the claim was that New York City, by offering hospital care

only outside central Harlem, would fail to serve the black and

hispanic patients who lived there. The court concluded that the

plaintiffs had made a prima facie showing of disparate impact

under Title VI, but that the City had adequately justified its deci-

sion. 627 F.2d at 616-620.

35 See, e. g., Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982);

but cf. American Public Transit Ass'n v. Lewis, 655 F.2d 1272, 1278

(D.C. Cir. 1981).

In Georgia Association of Retarded Citizens v. McDaniel, 716

F.2d 1565 (11th Cir. 1983) (GARC), a class of mentally retarded

children raised claims under both Section 504 and the Education

of the Handicapped Act, 20 U.S.C. 1401 et seg. (EHA), challenging

the defendants’ policy of refusing to consider providing education

in excess of the traditional 180-day school year to handicapped

children. Although the court did not analyze the plaintiffs’ Section

504 claim in terms of “disparate impact,” they alleged, in essence,

that the 180-day limitation—although applied across the board to

all school children—had a disparate impact on the severely and

profoundly mentally retarded, who regressed as a result of the

three-month summer break in their training. Such children, the

plaintiffs argued, were therefore not provided an equal opportunity

to benefit from their educational programs. The Eleventh Circuit

sustained this claim.

We argued in the court of appeals (716 F.2d at 1580 n.15), and

continue to believe, that the Section 504 holding in GARC is incon-

sistent with this Court’s decision in Southeastern Community Col-

28

The point can perh*ns best be illustrated by Aesop’s

fable about the fox ana the stork. Section 504 is violated

if a recipient offers the f & and the stork an equal amount

of milk in a container only the stork can drink from.

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

But if an equal amount of milk is offered in a container

accessible to both, there is no discrimination under Sec-

tion 504 even though the fox, in order to be healthy, needs

more milk than the stork.

This Court has twice considered the issue of disparate

impact under Title VI. In Guardians Association, supra,

the use of an unvalidated written examination and a

seniority system for layoffs caused minority candidates

to be hired later and laid off sooner, so that proportion-

ately fewer blacks and Hispanics than whites enjoyed the

benefits of employment in a federally funded program.

The case thus fits comfortably into the category of sit-

uations where the very benefit being offered by a recipient

of federal funds is less accessible to the protected group

than to others.

In Lau v. Nichols, 414 U.S. 563 (1974), the Court

found that the use of English as the sole language for

instruction had the effect of denying non-English-speaking

Chinese children the benefits of public education (414

lege v. Davis, 442 U.S. 397 (1979). GARC is in any event different

from this case in one critical respect. The federal funds involved

there included monies provided under the EHA for the purpose of

providing each handicapped child with a “free appropriate public

education” (20 U.S.C. 1412(1)), a purpose that requires considera-

tion of the “unique needs” of each such child. 20 U.S.C. 1401(16)

and (18). And as we pointed out above (pages 12, 18-21, supra),

although Section 504 does not dictate the kinds of benefits a recipi-

ent may offer, such obligations may be imposed by the federal fund-

ing statute itself and the funding agency’s regulations. For that

reason the Section 504 regulations governing public education pro-

grams receiving aid from the Department of Education incorporate

requirements similar to those imposed by the EHA. See 34 C.F.R.

104.33(a) (“free appropriate public education”), 104.33(b) (1)

(“appropriate” education is one “designed to meet individual edu-

cational needs”). The Section 504 regulations governing recipients

of HHS funds for health, welfare, and other social services, by

contrast, contain no such requirement that individua! needs be

considered. 45 C.F.R. Pt. 84, Subpt. F.

U.S. at 568). The Court concluded that the federally

funded program or activity was the provision of educa-

tional services, and that access to these services was com-

pletely cut off to those who were “handicapped” by their

failure to speak English. The case thus is clearly anal-

ogous to ones where the handicapped are barred from

access to a library or school by physical barriers; it no-

where suggests that it is discrimination not to allocate

educational services in such a way as to produce equal

achievement in learning.”

36 One can conceive of the benefit being distributed in Lau as

“instruction-given-in-English” and then assert that Chinese-

speaking students were offered that benefit like everyone else. In

the same way, one can argue that a rampless library is offering,

as a service, “books-in-a-building-without-ramps,” and that that

service is available equally to all; similarly, the fox and the stork

do have equal access to the benefit of “milk-in-a-long-necked-

container if that is how one chooses to define the benefit.

The point illustrates that reductionist extensions can be made

with equal logic in both directions. Antidiscrimination legislation

can obviously be emptied of meaning if every discriminatory pol-

icy is “collapsed” into one’s definition of what is the relevant bene-

fit. But as the Court assumed in Davis, 442 U.S. at 410-411, Con-

gress in Section 504 was legislating against a background in which

there is some meaningful commonsense distinction between dis-

crimination on the one hand and affirmative action on the other.

To maintain that distinction, some generally understood distinction

between what constitutes milk and what constitutes a container

must be maintained. It is our submission that, in this case, the

“milk” is the provision of inpatient hospital services, not “good

health.” The handicapped may not be discriminated against with

respect to or barred from access to that service.

There is an additional difficulty with any suggestion that Lau

controls this case. The Court there, in defir‘ng the school district's

obligations, relied primarily on guidelines issued by the funding

agency (HEW), which required federally assisted school districts

“to rectify * * * language deficienc[ies] in order to open’ the

instruction to students who had ‘linguistic deficiencies’” (414 U.S.

at 567, quoting 35 Fed. Reg. 11595 (1970)). And it is as true

under Title VI as it is under Section 504 that [identification of

those instances where a refusal to accommodate the needs of [the

protected class] amounts to discrimination against [it] contin-

ues to be an important responsibility of HEW.” Southeastern Com-

munity College v. Davis, 442 U.S. at 413. As we have already made

clear, the concerned agency has found no such problem here.

of the State’s program benefits. Nor do they claim that

14 days of care would (like English instruction to Chi-

nese speakers; or like a library without ramps for one

in a wheeichair) be wholly ineffective for them. They

argue instead that the handicapped, because of their rela-

tively greater medical needs, will not achieve equality of

results (in terms of good health) if hospitalization is

limited to a maximum of 14 days for all. The solution

they propose is an allocation of funds that will give the

handic: pped (per capita) more than the nonhandicapped

—indeed, more than the unequal division the State al-

ready provides. This is the very kind of affirmative ac-

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Rex E. Lee

Solicitor General

Ww. BRADFORD REYNOLDS

Assistant Attorney General

PAUL M. BaTor

Deputy Solicitor General

CHARLEs J. COOPER

Deputy Assistant Attorney General

JOHN H. GARVEY

Assistant to the Solicitor General

BRIAN K. LANDSBERG

MICHAEL CARVIN

Attorneys

May 1984

la

APPENDIX A

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

TRANSMITTAL AND NOTICE OF APPROVAL OF

STATE PLAN MATERIAL

FOR: Health Care Financing Administration

Transmittal Number

AT-81-9

State

Tennessee

Program Identification

Title III

TO: Regional Administrator

Health Care Financing Administration

Department of Health and Human Services

Proposed Effective Date

Item #1. (a)—September 1, 1981

Item #1. (b)—July 1, 1981

Type of Plan Material (Check One)

J New State Plan

Amendment to be Considered as New Plan

Amendment

Complete Next 4 Blocks if This is an Amendment

(Separate transmittal for each amendment)

Federal Regulation Citation

42 CFR 440.10

Number of the Plan Section or Attachment

Attachment 3.1.A.1, Page 1

Amend item #1. (a) and (b)

Number of the Superseded Plan Section or Atachment

Attachment 3.1.A.1, Page 1

item #1

Subject of Amendment

Limitation on Amount, Duration and Scope of Medical

Care and Services Provided—Inpatient Hospital ... .

tuberculosis.

Governor’s Review (Check One)

) Governor’s Office Reported No Comment

Comments Of Governor’s Office Enclosed

I No Reply Received Within 45 Days Of Submittal

I Other, As Specified:

Signature of State Agency Official

Typed Name:

Eugene W. Towinkle, M.D.

Title:

Commissioner

Date:

July 7, 1981

Return To:

Anna D. Boswell

Medicaid Program Relations

283 Plus Park Blvd.

Nashville, Tennessee 37217

3a

For Regional Office Use Only

Date Received 7/29/81

Date Approved 8/25/81

Plan Approved—One Copy Attached

Effective date of Approved Material

Item 1(a)—September 1, 1981

Item 1(b)—July 1, 1981

Signature of Regional Official

s, Richard L. Morris

Typed Name:

Richard L. Morris

Title:

Associate Regional Administrator

Division of Program Operations

Remarks:

Attachment 3.1.A.1

Page 1

STATE PLAN UNDER TITLE XIX OF THE

SOCIAL SECURITY ACT

State

Tennessee

LIMITATION ON AMOUNT, DURATION AND

SCOPE OF MEDICAL CARE AND

SERVICES PROVIDED

1. Inpatient hospital . . . tuberculosis

(a) Limited to 14 days per fiscal year, effective Sep-

tember 1, 1981.

(b) Friday or Saturday admissions limited to emer-

gencies or surgery the same or next day.

AT-81-9

Revised 7/1/81

5a

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

TRANSMITTAL AND NOTICE OF APPROVAL OF

STATE PLAN MATERIAL

FOR: Health Care Financing Administration

TO: Regional Administrator

Health Care Financing Administration

Department of Health and Human Services

Transmittal Number

AT-83-10

State

Tennessee

Program Identification

Title XIX

Proposed Effective Date

September 1, 1983

Type of Plan Material (Check One)

Ne State Plan

Amendment To Be Considered As New Plan

Amendment

Complete Next 4 Blocks if This is an Amendment

(Separate transmittal for each amendment)

Federal Regulation Citation

42 CFR 440.10, 42 CFR 440.40

6a

Number of the Plan Section or Attachment

Attachment 3.1.B.1; Item 1

Attachment 3.1.A.1; Item 1

Attachment 3.1.A.1; Item 4.b.

Attachment 3.1.B.1; Item 4.b.

Number of the Superseded Plan Section or Attachment

Attachment 3.1.B.1; Item 1

Attachment 3.1.A.1; Item 1

Attachment 3.1.A.1; Item 4.b.

Attachment 3.1.B.1; Item 4.b.

Subject of Amendment

Inpatient Hospital Services Other Than Those Provided

in an Institution for Mental Diseases or Tuberculosis

Early and Periodic Screening and Diagnosis of Indi-

viduals Under 21 Years of Age

Governor’s Review (Check One)

Governor’s Office Reported No Comment

J Comments Of Governor’s Office Enclosed

LC] No Reply Received Within 45 Days Of Submittal

] Other, As Specified:

Signature of State Agency Official

/s/ James E. Word

Typed Name:

James E. Word

Title:

Commissioner

7a

Date:

September 20, 1983

Return To:

Sheron B. Doss

Medicaid Auxiliary Unit

283 Plus Park Blvd.

Nashville, Tennessee 37217

For Regional Office Use Only

Date Received 9/22/83

Date Approved 9/26/83

Plan Approved—One Copy Attached

Effective Date of Approved Material 9/1/83

Signature of Regional Official

/s/ Richard L. Morris

Typed Name:

Richard L. Morris

Title:

Associate Regional Administrator, Reg. IV

Remarks:

8a

Attachment 3.1.A.1

STATE PLAN UNDER TITLE XIX OF THE

State

Tennessee

SOCIAL SECURITY ACT

LIMITATION ON AMOUNT, DURATION AND

SCOPE OF MEDICAL CARE AND

SERVICES PROVIDED

1. Inpatient Hospital.. . . tuberculosis

(a) Limited to 14 days per fiscal year with the fol-

lowing exceptions:

(1) Infants with a birth weight of 3000 grams

(2)

or less may receive up to twenty (20) days

at the time of birth if identified as eligible

for EPSDT Services and are in a recognized

Neonatal Intensive Care Unit. Future hos-

pital services for such infants will be on the

same basis as other recipients.

Individuals may also receive up to twenty

(20) days if they are eligible for EPSDT

services and the Department determines,

after consultation with qualified experts,

that the following conditions are met:

(i) the individual’s condition is surgically

correctable, was present at birth and is

the result of faulty embryogenesis;

and

(ii) the proposed procedure is medically

necessary and efficacious; and

(iii) the proposed procedure is expected to

prolong life expectancy or improve the

quality of life.

(b) Friday or Saturday admissions limited to emer-

gencies or surgery the same or next day.

AT-83-10

Effective 9/1/83

September 26, 1983 Refer to:

DPO/SCOB/0M

Mr. James E. Word, Commissioner

Department of Health and Environment

344 Cordell Hull Building

Nashville, Tennessee 37219

Attn: Sheron Doss

Re: Tennessee Title XIX Plan Transmittal 83-10

Dear Commissioner Word:

We have completed our review of the above referenced

plan amendment. We are pleased to inform you that this

amendment to your Title XIX State Plan has been ap-

proved as submitted.

Sincerely,

Richard L. Morris

Associate Regional Administrator

Division of Program Operations

HCFA:DPO:SCOB:J McClain :mh :9/27/83

10a

APPENDIX B

Besides Tennessee, nine states limit the number of days

of Medicaid coverage for inpatient hospital services per

year.

State Days Per Year

Florida

Idaho

Maine

Mississippi

Georgia

West Virginia

Alabama

Oregon

South Carolina

PeaSRESESSE 8

Six other states limit the number of reimbursable days

per admission, per spell of illness, or per benefit period.

State Reimbursable Days

South Dakota 60 days/benefit period

Ohio 80 days/spell of illness

Texas 30 days/spell of illness

Maryland 20 days/spell of illness

Kentucky 14 days/admission

Oklahoma 10 days/admission (with

minimum of 20 days

between discharge and

readmission)

lla

APPENDIX C

Comparison of handicapped (H) and nonhandicapped (NH)

Medicaid-eligible hospital users requiring more inpatient

hospital care than would be provided by ceilings of under

20 days per year on Medicaid coverage

Nonhandicapped (NH) Handicapped (H)

(Total: 34,288) (Total: 16,852) % H +

Ceiling Number Percent Number Percent % NH

1 30,711 89.6 15,907 94.4 1.05

2 23,097 67.4 14,552 86.4 1.28

3 17,310 50.5 13,243 78.6 1.56

4 13,838 40.4 11,987 71.1 1.76

5 11,195 32.6 10,858 64.4 1.98

6 9,095 26.5 9,820 58.3 2.20

7 7,497 21.9 8,827 52.4 2.39

8 6,315 18.4 7,974 47.3 2.57

9 5,375 15.7 7,301 43.3 2.76

10 4,623 13.5 6,629 39.3 2.91

11 4.000 11.7 6,077 36.1 3.09

12 3.474 10.1 5,584 33.1 3.28

13 3,045 8.9 5,088 30.2 3.39

14 2,662 7.8 4.617 27.4 3.51

15 2.370 6.9 4.224 25.1 3.64

16 2.072 6.0 8,835 22.8 3.80

17 1,821 5.3 3,481 20.7 3.91

18 1,615 4.7 3,153 18.7 3.98

19 1,429 4.2 2,844 16.9 4.02

„ &. coveenwent eee orrice, 1904 421623 880