Amicus Curiae Brief — Bowen v. American Hospital Assn.

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No. 84-1529

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Petitioner,

AMERICAN HOSPITAL ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICUS CURIAE AMERICAN ACADEMY

OF PEDIATRICS IN OPPOSITION TO

A PETITION FOR WRIT OF CERTIORARI

STEPHAN E. LAWTON *

JACK N. GOODMAN

CAROL COLBORN

PIERSON, BALL & DowD

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Attorneys for Amicus Curiae

American Academy of Pediatrics

* Counsel of Record

May 24, 1985

ELE EE TT SS NS

TABLE OF CONTENTS

RI Ge EFT iccteticierntncennscncvncesssnnsenenaccenen

INTEREST OF AMICUS CURIAE ......0000.2.......

SET cihiticianteinntiniiiitetetmamtneenn

I. THE COURT OF APPEALS CORRECTLY

Il.

HELD THAT SECTION 504 OF THE REHA-

BILITATION ACT DOES NOT AUTHORIZE

FEDERAL INTERVENTION INTO MEDICAL

TREATMENT DECISIONS REGARDING

SERIOUSLY IMPAIRED NEWBORNS ...........

A. Congress Did Not Intend That Section 504

Serve As the Basis for Federal Intervention

In Medical Decisionmaking .............................

B. Petitioner’s Analysis Violates Judicial Deci-

sions Concerning the Scope of the Applica-

ae ir I winctdecencbiccenitbictingdcitiininiinitatatenens

1. A Seriously Impaired Newborn Infant Is

Not An “Otherwise Qualified” Handi-

I EE Gicclinsiitisthcitanicliecbi biti nisiptinininn

2. Petitioner’s Final Rule Would Improp-

erly Require Affirmative Action by Hos-

ATES ESL A ESA oe

THE CHILD ABUSE AMENDMENTS OF

1984 AND THE REGULATIONS PROMUL-

GATED THEREUNDER OBVIATE THE

NEED FOR REVIEW ............... seihaocintihaiiabioedlinbainas

A. The Child Abuse Amendments Represent

Congre: Belief that Medical Treatment De-

cisions Regarding Seriously Impaired New-

borns Are Best Dealt With Under Existing

ESI RPE et er nO a

B. The Child Abuse Amendments Maintain A

Careful Balance Between Protecting the

Rights of Disabled Infants and the Need to

Avoid Unreasonable Governmental Inter-

vention, Thus Rendering Review by This

8 Ee a

CUMS cccinccsenssnaienessinntemnannmeinecsencnnaiinensimininninaniaiiiiain

TABLE OF AUTHORITIES

Cases: Page

Abell v. United States, 518 F.2d 1369 (Ct. Cl.

1975), cert. denied, 429 U.S. 817 (1976) ............. 17

Alexander v. Choate, 105 S. Ct. 712 (1985) -......... passim

American Academy of Pediatrics v. Heckler, 561

F. Supp. 395 (D.D.C. 1983), appeal dismissed,

No. 83-1407 (D.C. Cir. Aug. 4, 1983) —............... passim

American Public Transit Association v. Lewis, 655

ge | 12

Apex Rosiery Co. v. Leader, 310 U.S. 469 (1940). 17

Application of United States, 407 F. Supp. 398

i TET A ee a 16

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

728 (1976) .......:... SS AIRS ee SR a 17

Community Television of Southern California v.

Gottfried, 459 U.S. 498 (1983) —..................... 6

Consolidated Rail Corp. v. Darrone, 104 S. Ct. 1248

ESSA ee a passim

Doe v. New York University, 666 F.2d 761 (2d

ENE rE PSE Se 8,11

Grove City College v. Bell, 104 S. Ct. 1211 (1984).. 16

Lewis v. United States. 663 F.2d 889 (9th Cir.

1981), cert. denied, 457 U.S. 11383 (1982) _........ 17

Sioux Tribe of Indians v. United States, 316 U.S.

RE eee 17

Soconoy Mobil Oil Co. v. United States, 287 F.2d

i cisigtlipancnetirine 17

Southeastern Community College v. Davis, 442

EER ER passim

United States v. University Hospital, State Uni-

versity of New York at Stony Brook, 729 F.2d

| ee ASA RE passim

Statutes and Regulations:

Child Abuse Amendments of 1984, Pub. L. 98-457,

Nee sesidiaebensonl passim

as senctnenneseuonans 13

an 13

ss cusnnnncannnnes 13

ee 14

NS TI oc ccccsnensisenenasiasniimesoosione 17

ili

TABLE OF AUTHORITIES—Continued

Page

Child Abuse Prevention and Treatment Act, 42

SE eS ae ae aT 13

Civil Rights Act of 1964, Tit. VI, 42 U.S.C.

EE Ee ee oor passim

Rehabilitation Act of 1973, Pub. L. 93-112, § 504,

87 Stat. 366, 29 U.S.C. § 794 .................................. passim

So he an 5

Rehabilitation Act Amendments of 1974, Pub. L.

93-516, § 111(a), 88 Stat. 1619 _.............0000.... 5

& C.F .m.. Pt. 04, Gestion GSle) ................................ 12

FA Rael NE EE 15

Rules:

a stennlintniiaiiiaiats 3

Miscellaneous:

Affidavit of Paul M. Rosenberg .......................-.......-.. 19

Affidavit of Norman B. Urmy_ .................................---- 19

Comments of the American Academy of Pediatrics

on Proposed Rule Regarding Child Abuse and

Neglect Prevention and Treatment Program and

Interim Model Guidelines for Infant Care Re

view Committees (49 Fed. Reg. 48160, 48170

(Dec. 10, 1984)) (Feb. 8, 1985) —.................-....... 3,9

119 Cong. Rec. 24,587 (1978) ..................................... 5

130 Cong. Rec. $4595 (daily ed. April 12, 1984) ie 17

130 Cong. Rec. $8952 (daily ed. June 29, 1984) __..._.. 16

130 Cong. Rec. $12392 (daily ed. Sept. 28, 1984) ...... 14

FL TR 2,15

Bf 2,15

eT 2,7

Te 3, 9, 24

OD i ie I ID oncsnecetnccccccesecccccesnccescncscsess 3,9

|, Eee passim

a sesosnctiinnsionnn 14

H.R. 5490, 98th Cong., 2d Sess. (1984) ...00.0 16

S. 2568, 98th Cong., 2d Sess. (1984) .......... sari aaa 16

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 1297, 93d Cong., 2d Sess. (1974), re-

printed in 1974 U.S. Code Cong. & Ad. News

II x ccltin-otibesbipnaiietapes thats etethlaldaelcabialapanieelaeipiteinnibiles 5-6

S. Rep. No. 246, 98th Cong., 2d Sess. (1984) re-

printed in 1984 U.S. Code Cong. & Ad. News

STS a sieneneisisiescs ehicasatsldaetanasnenitetneliaentinllndeldiatalilleanihin 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1529

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

. Petitioner,

AMERICAN HOSPITAL ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICUS CURIAE AMERICAN ACADEMY

OF PEDIATRICS IN OPPOSITION TO

A PETITION FOR WRIT OF CERTIORARI

The American Academy of Pediatrics (the “Academy”’)

submits this brief amicus curiae in support of Respond-

ents American Hospital Association, et al., in opposition

to the Petition for a Writ of Certiorari filed by Sec-

retary Margaret M. Heckler (“the Secretary”) of the

Department of Health and Human Services (“HHS”).

It is accompanied by the written consents of Petitioner

and Respondents.

INTEREST OF AMICUS CURIAE

The Academy is a non-profit organization comprised of

more than 28,000 board-certified pediatricians, the ma-

jority of whom practice medicine in hospitals which would

be affected by any decision of this Court concerning the

application of Section 504 of the Rehabilitation Act of

1973 (“Section 504’), 29 U.S.C. § 794, to medical treat-

ment of seriously ill infants. Through professional policy

papers and in educational programs of all kinds, the

Academy serves as an advocate of children and their

right to medical care. Through grants awarded by the

Department of Education, Office of Special Education and

Rehabilitative Services, the Academy has developed state

by state education programs for pediatricians to work

with school systems in furnishing education for handi-

capped children throughout the country. In addition, the

Academy’s Committee on Bioethics has coordinated edu-

cational programs concerning the bioethical dimensions

of pediatric treatment decisions involving handicapped

children, and has developed statements of bioethical prin-

ciples for Academy adoption.

The Academy has also been actively involved in judi-

cial and administrative proceedings considering the ap-

plicability of Section 504 to medical treatment decisions.

First, the Academy was the lead plaintiff in American

Academy of Pediatrics v. Heckler, 561 F. Supp. 395

(D.D.C. 1983), appeal dismissed, No. 83-1407 (D.C. Cir.

Aug. 4, 1983), which invalidated an “interim final rule”

(48 Fed. Reg. 9630 (March 7, 1983)) promulgated un-

der Section 504 concerning discrimination against handi-

capped infants. Second, the Academy presented detailed

comments to HHS in response to proposed rules (48 Fed.

Reg. 30846 (July 5, 1983)) regarding discrimination on

the basis of handicap in medical treatment of newborns.

These rules, in revised form, are the regulations at issue

in this case. 49 Fed. Reg. 1622 (Jan. 12, 1984) ."

1The Academy also played a central role in promoting a con-

sensus among members of Congress and representatives of various

medical, right-to-life and disability groups on the legislation which

was ultimately enacted as the Child Abuse Amendments of 1984,

Pub. L. 98-457, 98 Stat. 1749 et seq. Petitioner has recognized that

support by medical associations, such as the Academy, was “essen-

Since the instant case deals squarely with the issue of

whether Section 504 provides a basis for the federal gov-

ernment to investigate and intervene in individual medi-

cal treatment decisions concerning impaired newborns, the

Academy believes it is important to reiterate its concerns

on this issue for the benefit of this Court.

ARGUMENT

Review on writ of certiorari is not a matter of right

and should only be granted when there are “special and

important reasons therefor.” Sup. Ct. R. 17.1. Because

the United States Court of Appeals for the Second Cir-

cuit, after an exhaustive review of the statute and legis-

lative history of Section 504 in United States v. Univer-

sity Hospital, State University of New York at Stony

Brook, 729 F.2d 144 (2d Cir. 1984) ,? correctly held that

Section 504 does not authorize federal intervention into

medical treatment decisions in the manner contemplated

by Petitioner’s rules, there is no reason for this Court to

consider this issue.

Moreover, partially in reaction to the decisions in Uni-

versity Hospital and American Academy of Pediatrics,

Congress enacted the Child Abuse Amendments of 1984

tial to accomplishing [this] legislative compromise. .. .” 50 Fed.

Reg. 14879 (April 15, 1985). Subsequently, the Academy presented

extensive comments to HHS in response to proposed rules imple-

menting the amendments (49 Fed. Reg. 48160 (Dec. 10, 1984)).

Comments of the American Academy of Pediatrics on Proposed

Rule Regarding Child Abuse and Neglect Prevention and Treat-

ment Program and Interim Model Guidelines for Infant Care Re-

view Committees (49 Fed. Reg. 48160, 48170 (Dec. 10, 1984) ) (Feb.

8, 1985). In part due to consideration of the Academy’s comments,

these rules were substantially revised when published in final form.

50 Fed. Reg. 14878 (April 15, 1985).

2 In the decision below, American Hospital Association v. Heckler,

Nos. 84-6211, 84-6213 (2d Cir. Dec. 27, 1984) (per curiam), aff’g

by unpublished order, 585 F. Supp. 541 (S.D.N.Y. 1984), the

Court of Appeals summarily affirmed the district court’s judgment

on the basis of University Hospital.

Pub. L. 98-457, 98 Stat. 1749 et seq., thus resolving the

issue of federal-state responsibility for investigating re-

ports of inappropriate withholding of medical treatment

and obviating the need for review of this case. Peti-

tioner’s suggestion (Petition for Writ of Certiorari

(“Pet.”) at 12) that, in the absence of review by this

Court, medical treatment decisions concerning disabled

infants will be “cloaked with blanket immunity” from

scrutiny and will result in maltreatment of infants is

thus totally unfounded and fundamentally misrepresents

the state of the law as it applies to disabled infants.

Accordingly, the Petition for a Writ of Certiorari should

be denied.

I. THE COURT OF APPEALS CORRECTLY HELD

THAT SECTION 504 OF THE REHABILITATION

ACT DOES NOT AUTHORIZE FEDERAL INTER-

VENTION INTO MEDICAL TREATMENT DECI-

SIONS REGARDING SERIOUSLY IMPAIRED NEW-

BORNS

The expansive reading of Section 504 urged by Peti-

tioner is unsupported by the statute’s legislative history

and is contrary to established judicial precedent concern-

ing the scope of the discrimination prohibition in Section

504. The statute simply does not authorize federal in-

tervention in the critical care nursery in the manner

contemplated by Petitioner’s rules.

A. Congress Did Not Intend That Section 504 Serve

As the Basis for Federal Intervention In Medical

Decisionmaking

This Court has recognized that “language as broad as

that of § 504 cannot be read in isolation from its history

and purposes.” Consolidated Rail Corp. v. Darrone, 104

S. Ct. 1248, 1254 n.13 (1984). To determine the scope

of Section 504, it is necessary to examine congressional

intent. Contrary to Petitioner’s suggestion (Pet. at 18),

the legislative history of Section 504 is not “sparse” as

to Congress’ intent. In fact, the legislative history clearly

indicates that Congress was initially only concerned with

discrimination against handicapped individuals in terms

of employment. See, e.g., 119 Cong. Rec. 24,587 (1973)

(remarks of Sen. Taft on S. 1875, 93d Cong., 1st Sess.

(1973) ).* Later, this goal was expanded to remove bar-

riers to access in education, transportation, and social

services.‘ Yet contrary to Petitioner’s assertion (Pet. at

18), the expansion of the scope of the statute in no way

indicates that Congress intended Section 504 to authorize

federal regulation of medical treatment decisions. To the

extent that Congress even contemplated “health services”

as being subject to Section 504, it did so only in the

sense of requiring providers to make such services equally

available to all persons who are able to meet a particular

program’s requirements in spite of their handicap, a far

different situation than the intrusion into individual med-

ical care decisions contemplated by Petitioner’s rule. See

S. Rep. No. 1297, 93d Cong., 2d Sess. 38, reprinted in

1974 U.S. Code Cong. & Ad. News 6373, 6388-89. The

only specific reference to medicine or health services in

the legislative history is in the context of access to nurs-

ing home services:

% Accordingly, Congress originally defined the phrase “handi-

capped individual” in terms of employment:

The term “handicapped individual” means any individual who

(A) has a physical or mental disability which for such indi-

vidual constitutes or results in a substantial handicap to em-

ployment and (B) can reasonably be expected to benefit in

terms of employability from vocational rehabilitation serv-

ices. .

Section 7(6), Pub. L. No. 93-112, 87 Stat. 355.

4 As part of the Rehabilitation Act Amendments of 1974 (Pub.

L. 93-516, § 1l1l1(a), 88 Stat. 1619), Congress expanded the defi-

nition to encompass “impairments to major life activities.” Under

the 1974 amendments, a “handicapped individual” is:

any person who (i) has a physical or mental impairment which

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

activities, (ii) has a record of such an impairment, or (iii) is

regarded as having such an impairment.

Examples of handicapped individuals who may suffer

discrimination in the receipt of Federally-assisted

services but who may have been unintentionally ex-

cluded from the protection of Section 504 by the ref-

erences to enhanced employability in section 7(6)

are as follows:

admission to Federally-assisted nursing homes on the

basis of their handicap... .

Id.

Petitioner asserts that by patterning Section 504 after

Title VI of the Civil Rigrkts Act, 42 U.S.C. §§ 2000d et

seq., Congress intended that Section 504’s prohibition

against discrimination because of handicap be construed

as broadly as the prohibition of racial discrimination in

Title VI. Pet. at 19. Yet the very decisions of this

Court cited by Petitioner demonstrate that Section 504

does not constitute the sweeping prohibition of discrimi-

nation on the basis of handicap that Title VI mandates

for discrimination on the basis of race. In Alexander v.

Choate, 105 S. Ct. 712, 717 (1985), this Court wrote that

“there are reasons to pause before too quickly extend-

ing [case law interpreting Title VI] to § 504.” Similarly,

in Consolidated Rail, 104 S. Ct. at 1254 n.13, this Court

noted that there are significant distinctions between the

purposes and scope of Title VI and Section 504. Indeed,

this Court’s decisions have recognized that Section 504

does not mandate a total ban on distinctions in federally-

funded programs beiween individuals on the basis of han-

dicap. See Southeastern Community College v. Davis,

442 U.S. 397 (1979); cf. Community Television of South-

ern California v. Gottfried, 459 U.S. 498 (1983) (hold-

ing that Section 504 does not require the Federal Com-

munications Commission to alter its standard for review-

ing public television license renewal applications to in-

clude consideration of the needs of the hearing-impaired).

Moreover, Petitioner proposes an overly simplistic anal-

ogy between Title VI and Section 504. Petitioner argues

(Pet. at 19) that just as a federally assisted hospital

cannot, under Title VI, refuse to perform surgery to re-

move an intestinal obstruction in an infant solely be-

cause of his race, so too the hospital cannot, under Sec-

tion 504, refuse to perform the surgery because of the

infant’s “handicap” (e.g., Down’s Syndrome). This argu-

ment ignores the fact that whereas race is never a proper

consideration in a decision to provide medical services,

the type of “handicap” to which Petitioner refers is in-

tegrally related to, and often an essential consideration

in, a decision as to what type of medical treatment is

appropriate. See University Hospital, 729 F.2d at 156.

In fact, Petitioner concedes (Pet. at 20 n.17) that it

“may be more difficult [to apply Section 504] in such cir-

cumstances because of the interrelatedness of the medical

considerations.” See 49 Fed. Reg. 1637 (1984).°

In sum, no part of the legislative history of the Re-

habilitation Act of 1973 indicates a congressional con-

cern with individual medical decisions, much less physi-

cian and parental decisions concerning complex medical

treatment for critically ill newborns and infants. In

addressing the scope of Section 504 in the context of

disparate-impact discrimination, this Court expressly

noted that had Congress intended the statute to reach all

such claims, “we would expect some indication of that

purpose in the statute or its legislative history. Yet

there is nothing to suggest that such was Congress’ pur-

pose.” Alexander v. Choate, 105 S. Ct. at 720. The same

is true in this case. Had Congress intended Section 504

5 Petitioner nevertheless contends that the existence of difficult

cases does not justify the wholesale exclusion of medical treatment

decisions from Section 504. Pet. at 20 n.17. As will be shown in

detail below, because the Child Abuse Amendments of 1984 and the

regulations promulgated thereunder ensure that seriously ill infants

will not be deprived of medically indicated treatment, the absence of

Section 504 enforcement poses no danger to such infants. If any-

thing, the presence of the intrusive federal measures for which

Petitioner claims authority could endanger the health of these

infants. See infra pp. 138-20.

to reach medical treatment decisions, some indication of

this intent would be evident in the legislative history.

As noted by the United States Court of Appeals for the

Second Circuit, “the failure of congress [sic] to focus on

treatment decisions involving defective newborn infants

strikes a telling blow to the government’s position.” Uni-

versity Hospital, 729 F.2d at 160.°

B. Petitioner’s Section 504 Analysis Violates Judicial

Decisions Concerning the Scope of the Application

of Section 504

Case law interpreting Section 504 uniformly estab-

lishes that the statute has a limited scope. First, the

statute only prohibits discrimination against “otherwise

qualified” handicapped individuals. Second, Section 504

cannot be interpreted to impose unwarranted affirmative

action burdens on providers. Petitioner’s expansive read-

ing of Section 504 ignores both of these limitations.

1. A Seriously Impaired Newborn Infant Is Not An

“Otherwise Qualified” Handicapped Individual

This Court in Southeastern Community College v.

Davis held that an otherwise qualified individual is “one

who is able to meet all of a program’s requirements in

spite of his handicap.” 442 U.S. at 406. See also Doe v.

New York University, 666 F.2d 761, 775 (2d Cir. 1981).

The legislative and earlier regulatory history of Section

504 make clear that a health care provider may not dis-

criminate against a handicapped individual when the in-

dividual’s handicap is unrelated to the provision of med-

ical services. In the same way that a hospital is pro-

hibited from refusing to treat individuals because of their

®In American Academy of Pediatrics v. Heckler, 561 F. Supp.

395 (D.D.C. 1983), appeal dismissed, No. 83-1407 (D.C. Cir. Aug. 4,

1983), Judge Gesell also noted that while Section 504 was open to

broad interpretation, “no congressional committee or member of

the House or Senate ever even suggested that section 504 would be

used to monitor medical treatment of defective newborn infants

or establish standards for preserving a particular quality of life.”

Id. at 401 (emphasis added).

race under Title VI of the Civil Rights Act of 1964 (Pet.

17 n.13), a hospital is prohibited by Section 504 as a

general policy from refusing to treat handicapped indi-

viduals solely because of their handicap, because that does

not invoive an individual treatment decision and because

the handicap typically is entirely unrelated to the medical

treatment at issue.

The Secretary, however, improperly argues that when

a “handicap” is related to the infant’s need for treatment,

a hospital is prohibited by Section 504 from basing a

treatment decision in a particular case in any part on

the “handicap.” Pet. at 15 and n.11. The analogy to Title

VI breaks down when applied to medical decisionmaking

because the medical handicap is typically inextricably

intertwined with the treatment decision itself. See Uni-

versity Hospital, 729 F.2d at 156."

For example, in University Hospital, the child involved,

“Baby Jane Doe,” suffered from multiple birth defects,

including: myelomeningocele (commonly known as spina

bifida) ; microcephaly, an abnormally small head; hydro-

cephalus, accumulated fluid in the cranial vault; a “weak

face,” which prevented her from closing her eyes or mak-

ing a full suck with her tongue; a malformed brain stem;

upper extremity spasticity; and a thumb implanted in

her fist. 729 F.2d at 146.* Obviously, treatment of any

7 As discussed at p. 6, this Court has cautioned against being

too quick to draw analogies between Title VI and Section 504.

Alexander v. Choate, 105 S. Ct. at 717; Consolidated Rail, 104 S. Ct.

at 1254 n.13.

8 The diversity and complexity of Baby Jane Doe’s medical im-

pairments is not unique; most infants with medical problems suffer

from varied and complex medical impairments. Infants suffering

from prematurity and immaturity, particularly with extreme hy-

poxic stress at birth, and complications of intensive care, such

as chronic lung disease and compromised intestina! function, con-

stitute a large population, conservatively estimated at 30,000 live

births annually. See Comments of the American Academy of Pedi-

atrics on Proposed Rule Regarding Child Abuse and Neglect Pre-

vention and Treatment Program and Interim Model Guidelines for

of these impairments would have to be based on the in-

fant’s entire medical profile. Petitioner concedes as much

by admitting that the application of Section 504 is some-

what tortured in the context of medical treatment deci-

sions “because of the interrelatedness of the medical con-

siderations.” (Pet. at 20 n.17.) Since medical treatment

necessarily depends on the specific illness or injuries

present, any decision by a hospital not to treat one par-

ticular condition could be said to have been made “solely

on the basis of the infant’s handicap,” and thus, in the

view of Petitioner, in violation of Section 504. Con-

gress cannot be assumed to have intended such an absurd

result. Moreover, Petitioner’s analysis has no support

in the language, legislative history or case law interpret-

ing Section 504, and this reasoning was specifically

rejected by the Second Circuit. University Hospital, 729

F.2d at 156-57.

A further bar to applying Section 504 to medical treat-

ment decisions concerning disabled infants is that an in-

fant’s medical condition is constantly changinz—what the

University Hospital court termed the “fluid context of

medical treatment decisions.” 729 F.2d at 156. In pro-

grams or activities that are fixed or “static” in nature,

such as education, employment and transportation, certain

standards on handicapped availability or access to a par-

ticular program can be established, as can appropriate

modifications to accommodate the handicapped. Medical

treatment decisions, on the other hand, depend on the

changing conditions of the patient. As Judge Gesell em-

phasized in American Academy of Pediatrics v. Heckler,

“there is no customary standard of care for the treat-

ment of severely defective infants.” 561 F. Supp. at 400

(emphasis in original). Thus, an inquiry into “discrimi-

nation” in this context is meaningless when different

treatment decisions are appropriate depending on the

Infant Care Review Committees (49 Fed. Reg. 48160, 48170 (Dec.

10, 1984)) (Feb. 8, 1985).

particular infant and his or her changing medical con-

ditions. .

2. Petitioner’s Final Rule Would Improperly Re-

quire Affirmative Action by Hospitals

This Court also recognized in Southeastern Community

College v. Davis that “neither the language, purpose,

nor history of § 504 reveals an intent to impose an

affirmative-action obligation on all recipients of federal

funds.” 442 U.S. at 411. In Davis, a licensed practical

nurse contended that her denial of admission to a college

nursing program on the basis of her hearing disability

violated Section 504. As part of her argument, she

asserted that regulations implementing Section 504 re

quired that the nursing program be modified to accom-

modate her, to which this Court replied:

If these regulations were to require substantial ad-

justments in existing programs beyond those neces-

sary to eliminate discrimination against otherwise

qualified individuals, they would do more than clarify

the meaning of § 504. Instead, they would constitute

an unauthorized extension of the obligations imposed

by that statute.

Id. at 410. This Court thus distinguished the provision

of equal opportunity from affirmative action, stating that

“(t]he language and structure of the Rehabilitation Act

of 1973 reflect a recognition by Congress of the distinc-

tion between the evenhanded treatment of qualified handi-

capped persons and affirmative efforts to overcome the

disabilities caused by handicaps.” Id. (emphasis added).

This Court found that Section 504 does not impose any

requirements upon institutions to take substantive steps

outside their ordinary programs to eliminate or overcome

handicaps. Jd. at 413.

Similarly, in Doe v. New York University, 666 F.2d

761, the Second Circuit rejected the claim of a mentally

handicapped student who sought readmission to medical

school. The court found that the school was “not obli-

gated by the Act to alter, dilute or bend [its admission

standards] to admit the handicapped applicant.” 666

F.2d at 775. Petitioner’s rules—potentially requiring hos-

pitals to undertake surgery notwithstanding parental con-

sent, or resort to state courts to override parental con-

sent—clearly require hospitals to undertake extensive

affirmative action. The rules would not only obligate the

provider to “alter” or “bend” its procedures for making

medical treatment decisions, but require the provider to

undertake legal actions outside of its internal decision-

making structure. Such a total transformation of the

provider’s process of rendering health care clearly ex-

ceeds the type of modifications that are permissible under

Section 504.

This Court has also recognized that interpretation of

Section 504 must keep the statute “within manageable

bounds.” Alexander v. Choate, 105 S. Ct. at 720-21 n.20.

Section 504 cannot serve as a basis for a “burdensome. . .

mandate” on federally assisted activities or programs.

American Public Transit Association v. Lewis, 655 F.2d

1272, 1278 (D.C. Cir. 1981). Petitioner’s rules constitute

exactly the kind of burdensome and disruptive measures

that are beyond the requirements authorized by these

judicial decisions. Under Petitioner’s rules, nonmedical

teams of HHS employees, designated by HHS as “Baby

Doe Squads,” would be granted expedited access to in-

vestigate any report of suspected discriminatory treat-

ment of impaired infants. 45 C.F.R. § 84.55(e). As

noted by Judge Gesell, the intrusion of these “Baby Doe

Squads” into hospitals would impose unwarranted bur-

dens on hospitals, and would endanger the health of the

infant:

[A]ny anonymous tipster, for whatever personal mo-

tive, can trigger an investigation involving immedi-

ate inspection of hospital records and facilities and

interviewing of involved families and medical per-

sonnel. In a desperate situation where medical de-

cisions must be made on short notice by physicians,

hospital personnel and often distraught parents, the

sudden descent of “Baby Doe” squads on the scene,

monopolizing physician and nurse time and making

hospital charts and records unavailable during treat-

ment, can hardly be presumed to produce higher

quality care for the infant.

American Academy of Pediatrics v. Heckler, 561 F. Supp.

at 399 (footnote omitted). Certainly, Congress did not

intend Section 504 to authorize intervention which would

harm the very individuals it is purporting to protect

from discrimination.

II. THE CHILD ABUSE AMENDMENTS OF 1984 AND

THE REGULATIONS PROMULGATED THEREUN-

DER OBVIATE THE NEED FOR REVIEW

On October 9, 1984, Congress adopted amendments to

the Child Abuse and Treatment Act (42 U.S.C. §§ 5101

et seqg.), Pub. L. 98-457, 98 Stat. 1749 et seg. [hereinafter

the “Amendments’]. In contrast to Section 504, the

Amendments employ a grant program to build on exist-

ing state mechanisms for dealing with child abuse and

neglect, including instances of withholding of medically

indicated treatment from disabled infants with life

threatening conditions.

To receive grants for its child protective services

(“CPS”) system, a state must establish procedures for:

(1) consultation with designated individuals in hospitals;

(2) notification of cases of suspected medical neglect (in-

cluding instances of withholding of medically indicated

treatment from disabled infants with life-threatening con-

ditions) ; and (3) legal remedies, under state law, for the

CPS agency to prevent the withholding of medically indi-

cated treatment from disabled infants with life-threaten-

ing conditions. Section 122, 98 Stat. 1752-53 (amending

42 U.S.C. § 5103(b) (2) (K)). The federal role is limited

to establishing a clearinghouse for information regarding

developments in treatment and support services for dis-

abied infants, and to promulgating regulations to ensure

that states fulfill their obligations under the statute.’

As noted by Senator Hatch, a principal sponsor of the

* Sections 123(a), 124(a), 98 Stat. 1753-54.

1984 Amendments, the “legislation does not itself au-

thorize direct federal involvement in individual cases.”

130 Cong. Rec. $12392 (daily ed. Sept. 28, 1984) (letter

from Sen. Hatch to Sen. Weicker).

On December 10, 1984, the Secretary published a

Notice of Proposed Rulemaking (49 Fed. Reg. 48160)

and, following a comment pe'iod, on April 15, 1985,

issued final regulations (50 Fed. Reg. 14878) implement-

ing the 1984 Amendments. Consistent with the Amend-

ments and their legislative history, these regulations rely

on state implementation and enforcement procedures to

deal with reports of suspected or known medical neglect:

“We believe it is the clear intent of Congress that States

utilize their existing child protective services system to

carry out this new responsibility [under the Amend-

ments].” 50 Fed. Reg. 14883; see id. at 14882-84, 14887-

88.'° Petitioner admits that the procedures established by

the Child Abuse Amendments are similar to those which

it earlier required under Section 504, the authority for

which is at issue here. Pet. at 26-27 n.22.

A. The Child Abuse Amendments Represent Congress’

Belief that Medical Treatment Decisions Regarding

Seriously Impaired Newborns Are Best Dealt With

Under Existing State Mechanisms

Passage of the Child Abuse Amendments must be

viewed in the context of the developments preceding what

Petitioner has conceded was an “extraordinary effort’ to

10 Pursuant to section 124(b) of the Amendments, 98 Stat. 1754,

the Secretary also issued Model Guidelines for Health Care Pro-

viders to Establish Infant Care Review Committees to encourage

the creation of infant care review committees (ICRCs) in hospitals.

50 Fed. Reg. 14893 (April 15, 1985). The Academy strongly sup-

ports the establishment of ICRCs to provide consultation and to

ensure that sensitive treatment decisions are made in a reasoned,

informed, and caring manner. Such committees, in conjunction

with the procedures established through the state child protective

services system, ensure that when treatment is medically indicated,

the infant will receive appropriate care.

enact legislation in this most sensitive area. 50 Fed. Reg.

at 14879. Following the highly-publicized “Baby Doe”

case in Bloomington, Indiana, in the spring of 1983, HHS

promulgated an “interim final rule,” without prior notice

or opportunity for public comment, requiring hospitals

receiving federal financial assistance to post notices stat-

ing: “Discriminatory failure to feed and care for handi-

capped infants in this facility is prohibited by federal

law.” The rule also provided that anyone having knowl-

edge that a handicapped infant was being discrimina-

torily denied food or customary medical care should con-

tact a 24-hour-a-day “Handicapped Infant Hotline.”

Through the hotline anyone—a passerby, a disgruntled

employee—could report what they considered to be sus-

picious hospital behavior. See 48 Fed. Reg. 9630 (Mar. 7,

1983).

Soon after the interim rule was proposed, the Academy

and two other plaintiffs filed suit challenging the rule.

In American Academy of Pediatrics v. Heckler, Judge

Gesell struck down the rule, finding that HHS lacked a

rational factual basis for the rule and that the agency

had failed to follow required notice and comment pro-

cedures. 561 F. Supp. at 403. Judge Gesell cited nu-

merous shortcomings in the rule, including the disruptive

effect of HHS’ enforcement procedures in caring for dis-

abled newborns. /d. at 399. He also suggested that this

issue “be clarified by further congressional action.” Id.

at 402.

HHS then issued a new proposed rule and solicited

public comment. 48 Fed. Reg. 30846 (July 5, 1983) (pro-

posed rule modifying 45 C.F.R. § 84.61). While HHS

was in the process of preparing its final rule, the case

of the infant “Baby Jane Doe” again raised the question

of HHS’ authority under Section 504 to intervene in

medical treatment decisions, which led, after extensive

proceedings, to the University Hospital decision.

Thus, in the fall of 1984 when Congress adopted the

Child Abuse Amendments, it was well aware of the seri-

ous questions raised by these cases regarding the legal

authority—let alone the wisdom—of federal intervention

in medical treatment decisions. See, e.g., S. Rep. No. 246,

98th Cong., 2d Sess. 6-8 (1984), reprinted in 1984 U.S.

Code Cong. & Ad. News 2918, 2922-25; 130 Cong. Rec.

$8952 (daily ed. June 29, 1984) (:emarks of Sen. Nickles).

The Senate Report noted that “[t]he highly publicized

recent cases have catapulted the issue of withholding treat-

ment from seriously ill infants into the public arena... .”

S. Rep. No. 246, 98th Cong., 2d Sess. 6 (1984), re-

printed in 1984 U.S. Code Cong. & Ad. News 2923."

Since the same subcommittees in the Senate Labor and

Human Resources Committee and the House Education

and Labor Committee have jurisdiction over both Sec-

tion 504 and the child abuse and neglect grant program,

Congress could easily have overruled University Hospital

by expressly including coverage of medical treatment de-

cisions of disabled infants in Section 504. Instead, Con-

gress chose to assist the states in carrying out their

traditional role in the area of child abuse and neglect.”

11 Congressional recognition of judicial interpretation of Section

504 is supported by the fundamental principle of statutory con-

struction that:

Congress does not legislate in a vacuum; Congressional legis-

lation must be viewed in light of earlier legislation enacted

in connection with the same subject matter and court decisions

which have definitely determined the meaning and scope of that

earlier legislation.

Application of United States, 407 F.Supp. 398, 405 (W.D. Mo.

1976).

12In the 1984 legislative session, Congress did consider amend-

ing Section 504, primarily to overrule this Court’s decision in Grove

City College v. Bell, 104 S. Ct. 1211 (1984). See H.R. 5490, 98th

Cong., 2d Sess. (1984); S. 2568, 98th Cong., 2d Sess. (1984). Yet

nothing in the proposed amendments indicates that Congress be-

lieved Section 504 applies, or should apply, to medical treatment

decisions regarding disabled infants. None of the sponsors of the

legislation, in presenting it to the full Senate, even mentioned

disabled infants. For example, Senator Cranston, a co-sponsor of

the amendments and principal author of Section 504, stressed that

As recognized by this Court, the “failure of Congress

to alter [a statute] after it had been judicially construed,

and the enactment by Congress of legislation which im-

plicitly recognizes the judicial construction as effective, is

persuasive of legislative recognition that the judicial con-

struction be the correct one.” Apex Hosiery Co. v.

Leader, 310 U.S. 469, 488 (1940); see also Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 728, 732-33

(1975) ; Lewis v. United States, 663 F.2d 889, 891 (9th

Cir. 1981), cert. denied, 457 U.S. 1133 (1982). More-

over, the subsequent interpretation of the federal role in

medical treatment decisions concerning disabled infants

by the same congressional committees that originally en-

acted Section 504 is “virtually conclusive” as to Con-

gress’ prior intended meaning. Sioux Tribe of Indians

v. United States, 316 U.S. 317, 329 (1942); see also

Socony Mobil Oil Co. v. United States, 287 F.2d 910,

914 (Ct. Cl. 1961); accord Abell v. United States, 518

F.2d 13869 (Ct. Cl. 1975), cert. denied, 429 U.S. 817

(1976). Given Congress’ clear decision to let the Univer-

sity Hospital decision stand and adopt state-based en-

forcement procedures instead, there is no reason for this

Court to review the decision below.”

B. The Child Abuse Amendments Maintain A Careful

Balance Between Protecting the Rights of Disabled

Infants and the Need to Avoid Unreasonable Gov-

ernmental Intervention, Thus Rendering Review by

This Court Unnecessary

Unlike Section 504, in which there was no discussion

of medical treatment decisions, the Child Abuse Amend-

the statute was intended to prevent discrimination in employment

and education. 130 Cong. Rec. S4595 (daily ed. April 12, 1984)

(remarks of Sen. Cranston).

138 While it is true that the Child Abuse Amendments provide

that nothing in the statute “is intended to affect any right or

protection under Section 504 of the Rehabilitation Act of 1973,”

Section 127(a), 98 Stat. 1754, it is also true that in addressing the

issue of medical care of disabled infants, Congress chose to use

the state CPS system rather than authorizing federal iutervention

under Section 504.

ments were the product of extensive congressional nego-

tiations which ultimately resulted in a legislative com-

promise. The Secretary has repeatedly recognized (50

Fed. Reg. 14881) that “the essence of this compromise”

was based on the “careful balance” between the need to

protect the rights of disabled infants and the need to

avoid intrusive and inflammatory governmental interven-

tion in medical decisionmaking:

It is clear that the legislation represent[s] a careful

balance between the need to establish effective pro-

tection of the rights of disabled infants and the need

to avoid unreasonable governmental intervention into

the practice of medicine and parental responsibilities.

Id. at 14879 (April 15, 1985). The Secretary also stated

that the success of implementing the program to monitor

and report medical neglect depended on the need to main-

tain the broad consensus that had sponsored this impor-

tant legislation: “It was and continues to be of great

importance to the Department to preserve and advance

this consensus in order to most effectively implement this

program.” Jd. at 14879.

Congress deemed it appropriate to utilize the existing

state CPS system instead of Section 504 for several rea-

sons. First, all states have a CPS agency, whether they

receive state grant funds or not. These child abuse agen-

cies have recognized expertise in the area of child abuse

and neglect. See 50 Fed. Reg. 14878 (April 15, 1985).

Second, many state agencies have already developed re-

lationships with individuals in hospitals to report cases

of suspected child abuse and neglect. See 49 Fed. Reg.

1631 (Jan. 12, 1984). Third, the framers agreed that

procedural requirements should be based on existing state

administrative and enforcement mechanisms, rather than

creating a new system or bureaucracy of “medical ne-

glect.” The Secretary has acknowledged congressional

concern over the administrative problems of creating “a

new system and a new bureaucracy” to respond to the

health care needs of disabled infants. 50 Fed. Reg. 14881.

The Child Abuse Amendments thus represent Con-

gress’ determination after extensive debate that the ap-

propriate means to respond to the needs of disabled in-

fants is through the state CPS, not Section 504. Inquiry

by this Court into the Secretary’s authority under Sec-

tion 504 is therefore unnecessary.

Petitioner contends that, absent her rules, disabled in-

fants will receive no protection. Pet. at 26. Yet by Pe-

titioner’s own admission, the Child Abuse Amendments

and regulations promulgated thereunder, ensure the

“meaningful protection of the rights of disabled infants

to receive appropriate medical care[.]” 50 Fed. Reg.

14881. If anything, disabled infants receive greater pro-

tection from state CPS agencies since such agencies, un-

like HHS’s “Baby Doe Squads,” have the requisite ex-

perience, expertise, professional contacts with hospitals,

and enforcement mechanisms to protect the best interests

of the child. Petitioner’s implementation of a prior, simi-

lar rule was disastrous: “Baby Doe Squads” descended

on hospitals, disrupting complex medical care and di-

verting the attention of physicians and nurses caring for

the infants. In at least one case, a family withdrew

a seriously ill patient from a hospital before completion

of treatment because they believed that somehow the

hospital that was being investigated was intentionally

harming their child.'* As observed by Judge Gesell, the

sudden descent of “Baby Doe Squads” interrupting med-

ical care “can hardly be presumed to produce higher

quality care for the infant.” American Academy of

Pediatrics v. Heckler, 561 F. Supp. at 399. The Amend-

ments, on the other hand, guarantee that severely dis-

abled infants will receive appropriate medical care while

14 See, e.g., Affidavit of Norman B. Urmy (submitted as an attach-

ment to the Memorandum of Law filed by the National Association

of Children’s Hospitals and Related Institutions (NACHRI)), and

Affidavit of Paul M. Rosenberg (submitted as an attachment to the

Amicus Brief filed by the American Hospital Association, Respond-

ent in this case) in American Academy of Pediatrics v. Heckler, 561

F. Supp. 395.

avoiding unwarranted intrusion of the federal govern-

ment in medical and parental decisionmaking. Thus,

contrary to Petitioner’s suggestion (Pet. 26-27 n.22), the

Amendments effectively dispose of the need to review this

case.

CONCLUSION

For the reasons set forth herein, the Petition for a

Writ of Certiorari should be denied.

Respectfully submitted,