Amicus Curiae Brief — Bowen v. American Hospital Assn.

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No. 84-1529

In the I cesnssenerintsipnnsianimncniestonannenasiint

Supreme Court of the United States

OCTOBER TERM, 1985

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

Petitioner,

Vv.

AMERICAN HOSPITAL ASSOCIATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF DAVID G. McLONE, M.D.,

PH.D., SIEGFRIED PUESCHEL, M.P.H., M.D., PH.D.,

MARGARET MAHON, R.N., M.S.N., LAWRENCE J.

BRODEUR, J.D., IN SUPPORT OF PETITIONER,

MARGARET M. HECKLER

*DENNIS J. HORAN

Victor G. ROSENBLUM

EDWARD R. GRANT

MAURA K. QUINLAN

CLARKE D. FORSYTHE

AMERICANS UNITED FOR

LIFE

LEGAL DEFENSE FUND

343 S. Dearborn St.

No. 1804

Chicago, Illinois 60604

(312) 786-9494

Counsel for Amici

*Counsel of Record

CHAS. P. YOUNG CHICAGO

P BEST AVAILABLE COPY

TABLE OF CONTENTS

Tees sees cetecccescees

SUMMARY OF ARGUMENT ...................

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II.

Ill.

IV.

¥.

A PROHIBITION OF DISCRIMINATION IN

THE DENIAL OF MEDICALLY INDICATED,

BENEFICIAL TREATMENT TO HANDI-

CAPPED INFANTS IS WARRANTED BY

THE PLAIN STATUTORY LANGUAGE OF

TR ea a ie ed TE a a a

A. The Court of Appeals Ignored Fundamental

Principles of Statutory Construction in

Restricting the Scope of § 504 ...........

B. A Handicapped Infant Can Be An “Other-

wise Qualified Handicapped Individual”

And A Denial of Medically Indicated Treat-

ment Is A Denial of Benefits Contrary to

Dt Cire Gdu shah del asreeeke ese xa04

C. The Regulations Require Equal Treatment,

Not Affirmative Action, In the Medical Care

of Handicapped Infants.................

THE LEGISLATIVE HISTORY COMPELS A

BROAD APPLICATION OF § 504 TO PRO-

SCRIBE THE DISCRIMINATORY TREAT-

MENT OF HANDICAPPED INFANTS. .....

A. The Legislative History Establishes That

§ 504 Is A Broad, Remedial Provision.....

B. The 1974 and 1978 Amendments Emphasize

That The Rehabilitation Act Encompasses

Handicapped Infants and Medical Services.

THESE REGULATIONS ARE ENTITLED TO

DEFERENCE BECAUSE CONGRESS DELE-

GATED SUBSTANTIAL AUTHORITY TO

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TABLE OF AUTHORITIES

Cases PAGE

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

American Academy of Pediatrics v. Heckler, 594 F.Supp.

68 (DDG. WSS) .. oc ccccecesceuneunanenneee 24

American Hospital Association v. Heckler, 585 F.Supp.

541 (S.D.N.Y. 1984), aff'd, No. 84-6211 (2d Cir. Dec.

BT, IDB) . ccc ccccceeccccesu eee 5

American Maritime Ass’n v. United States, 766 F.2d 545

(D.C.Cie. 1908) .. 0 scccsnvcceenssenmen eee 23

Application of Cicero, 101 Misc.2d 699, 421 N.Y.S.2d

066 (N.Y Bup.Ce. 1970)... cccccceusesusnenee 13

Application of President and Directors of Georgetown Col-

lege, 331 F.2d 1000 (D.C.Cir.), reh’g en banc denied,

331 F.2d 1010, cert. denied, 377 U.S. 978 (1964) ... 12

Chevron, U.S.A., Inc. v. National Resources Defense

Council, Inc., 104 S.Ct. 2778 (1984).............. passim

Commissioner of Social Services v. Catherine and Phillip

Guatrone, No. N-2029 (Bronx, N.Y. Fam.Ct., May

| re 13

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

(1004)... . <.00ececceeeveunnie eee 6, 18, 28

Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053

(1978), subsequent opinion, 393 N.W.2d 836 (1979). . 12

Dickerson v. New Banner Institute, Inc., 103 S.Ct. 986

‘Cl. ) PP 26, 28

Doe v. New York University, 666 F.2d 761 (2d Cir. 1981) 7

Erlenbaugh v. United States, 409 U.S. 239 (1972)..... 26

In re Adam, 9 Fam.L.Rep. 2121 (D.C.Super.Ct.Fam.Div.

Nov. SB 19GB)... ...0050000eds anu eee 12

In re CFB, 497 S.W.2d 831 (Mo.App. 1973) ........ 13

In Re Green, 448 Pa. 338, 292 A.2d 387 (1972), after

remand, 452 Pa. 373, 307 A.2d 279 (1973)........ 13

In re McNulty, No. 9190 (Probate Ct. Essex Co., Mass.,

Bob. 16, 1976)... ...0000000c ence cue 13

ili

In re Phillip B., 92 Cal.App.3d 796, 156 Cal.Rptr. 48,

cert. denied, Bothman v. Warren B., 445 U.S. 949

(1979), Guardianship of Phillip B., 139 Cal.App.3d

Ge, memeuneer. COR (IOUS)... 2. ccc ee eeee

In re Teague, No. 104-212-81886 (Cir.Ct. Baltimore,

I ons ccc cece cccccccees

In re the Treatment and Care of Infant Doe, No. GU 8204-

004A (Monroe Co.Cir.Ct., April 12, 1982), writ of

mandamus dismissed sub nom., State ex rel. Infant Doe

v. Baker, No. 482 S 140 (Ind.Sup.Ct. May 27, 1982),

cert. denied, Doe v. Bloomington Hospital, 104 S.Ct.

es ce ces ncccccccceces

Jefferson County Pharmaceutical Assn, Inc. v. Abbott Lab-

oratories, 103 S.Ct. 1011 (1983)..................

Jehovah’s Witnesses v. King Co. Hosp., 278 F.Supp. 488

(W.D.Wash. 1967), affd per curiam, 390 U.S. 598

EE ILS

Landreth Timber Co. v. Landreth, 105 S.Ct. 2297 (1985)

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

Maine Medical Center v. Houle, No. 74-145 (Super.Ct.

Cumberland Co., Me. Feb. 14, 1974) ............

Matter of Gregory S., 85 Misc.2d 846, 380 N.Y.S.2d 620

EE LEE

Matter of Hamilton, 657 S.W.2d 425 (Tenn.App. 1983)

Matter of Jensen, 54 Or.App. 1, 633 P.2d 1302 (1981).

Mourning v. Family Publications Services, Inc., 411 U.S.

ns cus e sc cccecscece.

Muhlenberg Hosp. v. Patterson, 128 N.J.Super. 498, 320

NLRB v. Natural Gas Utility Dist., 402 U.S. 600 (1971)

North Dakota v. United States, 103 S.Ct. 1095 (1983). .

North Haven Board of Education v. Bell, 456 U.S. 512

PAGE

re 5, 6, 17,

Oscar Mayer Co. v. Evans, 441 U.S. 750 (1979) ......

People in Interest of D.L.E., 645 P.2d 271 (Colo. 1982).

Prince v. Massachusetts, 321 U.S. 158 (1944).........

Red Lion Broadcasting v. FCC, 395 U.S. 637 (1969) ..

PAGE

SeaTrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S.

PAP rn. Pierre os peepee 22

Sedima, 8.P.R.L. v. Imrex Co., 105 S.Ct. 3275 (1985).. 6,19

Smith v. Robinson, 104 S.Ct. 3457 (1984) ........... 8

Southeastern Community College v. Davis, 442 U.S. 397

Ga dt eannk 6s okt eddede takes vena tankns 8,11

Superintendent of Belchertown State School v. Saikewicz,

373 Mass. 728, 370 N.E.2d 417 (1977) ........... 13

Thorpe v. Housing Authority of the City of Durham, 393

ee INL AS 4.6 60 bowed 644004 see PRR ee eree 6

Tooahnippah (Goombi) v. Hickel, 397 U.S. 598 (1970) . 26

United States v. Freeman, 44 U.S. (3 How.) 556 (1845). 22

United States v. Stewart, 311 U.S. 60 (1940) ......... 22, 26

United States v. University Hospital, State University of

New York at Stony Brook, 575 F.Supp. 607 (E.D.N.Y.

1983), affd, 729 F.2d 144 (2d Cir. 1984).......... passim

Wisconsin v. Yoder, 406 U.S. 205 (1972)............ 12

Youngberg v. Romeo, 457 U.S. 307 (1982)........... 25, 26

Legislative History

S.Rep.No. 1297, 93d Cong., 2d Sess., reprinted in {1974}

U.S. Code Cong. & Ad. News 6373 ............. 4, 28

S.Rep.No. 890, 95th Cong. 2d Sess. (1978) ......... 22

S.Rep. No. 246, 98th Cong. Ist Sess. (1983), reprinted in

[1984] U.S. Code Cong. & Ad. News 2918........ 19

Medical Ethics: The Right to Survival (1974): Hearings

Before the Subcomm. on Health of the Senate Comm. on

Labor and Public Welfare on the Existence of the Moral

and Ethical Problems faced With the Agonizing Deci-

sions of Life and Death, 93d Cong. 2d Sess. (1974). . 18

BERG COMMER, Gee CRUE oc cc ccc cccwcccceveess 17

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118 Cong.Ree. 525-26 (1972)... 0... cee eee eee 15, 17

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118 Cong.Rec. 14244 (1972) .... 00... cece cece eee 15

118 Cong.Rec.

118 Cong. Rec.

118 Cong.Rec.

119 Cong.Rec.

PAGE

I a sient 2 8D 17

30680 (1972) ..... 2... e cece cece eee. 15

30681-82 (1972)............ cece ee. 16, 17

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92265 (1972) .... 0... ee ecw eee ee 16

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119 Cong.Rec. 24580-81 (1973) ...............eeeee 18

119 Cong.Rec. 24586-89 (1973) ................206- 18

RED GR ME GPUED 6 cc ce ctcc ce ceccccsevens 18

BED Ge BP CITED occ csc cc csccccvvccees 18

190 Comg.Ree. 30634 (1974) .... 1... cece cece eee 20

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120 Cong.Rec. 34725 (1974) .............. ce eee eee 20

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120 Cong.Rec. 35010 (1974) ...............-.00eee 20

120 Cong.Rec. 35016 (1974) ............ cee eceees 20

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Statutes and Regulations

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8 RS ee pe eee passim

S.J. Res. 118, 93d Cong., 1st Sess., 119 Cong. Rec. 24442

kee es C econ on 6aw hs ewes eee 17

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45 C.F.R. § 84, Subpart G (1977) ................. 24

45 C.F.R. Pt. 84, App. A, Subpart F, 136 (1977) ... 23, 27

ere 5

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Ce I SD oo occ ccscvccceveesevenus 24, 27

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48 Fed.Reg. 30646 (1963) ..............cceccccees 24, 27

49 Fed.Reg. 1622 (1984) (to be codified at 45 C.F.R.

i EE PSP ee ere hr Sen Free re 8, 24, 25

vii

PAGE

Other Authorities

Duff and Campbell, Moral and Ethical Dilemmas in the

Special Care Nursery, 289 N.Eng.J.Med. 885 (1973) 18

Gerry, The Civil Rights of Handicapped Infants: An

Oklahoma Experiment, 1 Issues in Law & Medicine

ip ie ede tt eek ede nk a hs sk ones 25

“Panel Told Defective Infants Are Allowed To Die,”

New York Times, June 12, 1974, p. 18, col. 3.... 18

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical and Behavioral

Research, Deciding to Forego Life-Sustaining Treat-

84 odd oc os 806405090 0000060% 0" 8, 9, 10, 18

Protection and Advocacy Agency of Hawaii v. Kapiolani

Children’s Hospital, Health and Human Services

eS ee 27

Robertson, Involuntary Euthanasia of Defective

Newborns: A Legal Analysis, 27 Stan.L.Rev. 213

Sa oii ss 5 th a ig ae wie Wladind h dle ben 13

R. Seotech, From Good Will w Civil Rights (1984) .... 14, 17

United States Commission on Civil Rights, Accom-

modating the Spectrum of Individual Abilities (Sept.

ee 5 54 0p eres eye cee a oh ees ences 10

United States Dept. of Education, National Institute

of Handicapped Research, Program Directory (1985) 21

In the

Supreme Court of the United States

OCTOBER TERM, 1985

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

‘ . etitioner,

AMERICAN HOSPITAL ASSOCIATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF DAVID G. McLONE, M.D.,

PH.D., SIEGFRIED PUESCHEL, M.P.H., M.D., PH.D.,

MARGARET MAHON, R.N., M.S.N., LAWRENCE J.

BRODEUR, J.D., IN SUPPORT OF PETITIONER,

MARGARET M. HECKLER

INTEREST OF THE AMICI

Amici have independently worked to meet the needs of

handicapped infants in their fields of law and medicine.

David McLone received his M.D. from the University of

Michigan, and his Ph.D. in neuroanatomy from Northwest-

ern University. He is currently Chairman of Pediatric

Neurosurgery, Children’s Memorial Hospita!, Chicago, and

Associate Professor of Surgery, Northwestern University

Medical School.

Siegfried Pueschel received his M.D. from the Medical

Academy, Duesseldorf, Germany, his Ph.D. in Psychology

from the University of Rhode Island, and his M.P.H. from

the Harvard School of Public Health. He is currently

Director of the Child Development Center, Rhode Island

Hospital, and Professor of Pediatrics, Brown University.

Margaret Mahon received her M.S.N. from the University

of Pennsylvania. She is currently on the faculty of the Univer-

sity of Pennsylvania, where she specializes in children with

chronic illnesses and is a Ph.D. candidate.

Lawrence J. Brodeur received his J.D. from Indiana Uni-

versity, Bloomington, Indiana. Asa Monroe County, Indiana,

Deputy Prosecuting Attorney, he was appointed Guardian Ad

Litem for Infant Doe on April 15, 1982 to pursue an appeal

from the court decision denying medical treatment.

SUMMARY OF ARGUMENT

The Secretary of Health and Human Services, pursuant to

the broad authority delegated to her by Congress under § 504 of

the Rehabilitation Act of 1973, has promulgated regulations to

prohibit the denial of beneficial medical treatment to handi-

capped newborns by hospitals receiving federal financial

assistance. The court of appeals held that these regulations,

because they affect medical decision-making, do not fall within

the purview of § 504. This result contradicts the plain lan-

guage of § 504, ignores relevant legislative and regulatory

history, distorts the reality of the medical problems faced by

handicapped infants, and frustrates the clear will of Congress

to eliminate discrimination in federally funded programs.

Contrary to the court’s holding, a handicapped infant can be

“otherwise qualified” to receive medical services for purposes

of § 504. In most cases, it can be clearly determined whether a

particular infant will benefit from treatment and whether a

denial of treatment would discriminate solely on the basis of

handicap. Since hospitals commonly seek court approval for

treatment upon infants, these regulations do not require

“affirmative action.”

The legislative history establishes that § 504 is a broad,

remedial provision, and that there is no legislative intent

contrary to these regulations. Discrimination against handi-

capped infants was not a public issue in 1973, although it is a

contemporary form of the evils against which § 504 is directed.

Moreover, in amendments to the Rehabilitation Act passed in

1978, Congress provided for the care and treatment of the same

handicapped infants covered by these regulations.

In striking down these regulations, the court failed to give

due deference to an agency charged with the administration of

astatute. The Department of Health and Human Services and

its predecessor agency have consistently applied § 504 to

prohibit discrimination by health care providers, and to ensure

appropriate levels of medical services to all handicapped indi-

viduals. Hence, HHS’ efforts to bring § 504 to bear on instances

of discrimination against handicapped infants ought to be

given great deference, and upheld.

INTRODUCTION

Section 504 of the Rehabilitation Act of 1973' enacts a simple

yet powerful principle into federal law: federal funds may not

be used to promote discrimination by a recipient of federal

assistance against an “otherwise qualified handicapped indi-

vidual.”’* Congress has directed the Secretary of the Depart-

No otherwise qualified handicapped individual in the United

States, as defined in section 706(7) of this title, 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 program or activity receiving Federal financial assistance

or under any program or activity conducted by any Executive

agency or by the United States Postal Service. The head of

each such agency shall promulgate such regulations as may be

necessary to carry out the amendments to this section made by

the Rehabilitation, Comprehensive Services, and Develop-

mental Disabilities Act of 1978. Copies of any proposed regula-

tion shall be submitted to appropriate authorizing committees

of the Congress, and such regulations may take effect no earlier

than the thirtieth day after the date on which such regulation

is so submitted to such committees.

29 U.S.C. § 794 (1982).

*Section 706(7) defines “handicapped individual”:

(7(A) Except as otherwise provided in subparagraph (B),

the term “handicapped individual” means any individual

(footnote continued on next page)

ment of Health and Human Services (HHS) to promulgate

regulations to carry out the broad, remedial purposes of § 504.

S.Rep. 93-1297, 93d Cong. 1st Sess.39-40, reprinted in [1974] U.S.

Code Cong. & Adm. News 6373, 6390-91. This Court has recog-

nized that “those charged with administering [§ 504] [have]

substantial leeway to explore areas in which discrimination

against the handicapped pose{s] particularly significant prob-

lems and to devise regulations to prohibit such discrimina-

tion.” Alexander v. Choate, 105 S.Ct. 712, 722-23 n.24 (1985).

Acting under this authority, the Secretary promulgated

regulations applying § 504 to discriminatory medical treat-

ment decisions involving handicapped infants. The regula-

tions state that health care providers receiving federal

financial assistance may not withhold treatment or nourish-

ment “solely on the basis of present or anticipated physical or

mental impairments, from handicapped infants who, in spite

(footnote continued from preceding page)

who (i) has a physical or mental disability which for such

individual constitutes or results in a substantial handicap to

employment and (ii) can reasonably be expected to benefit in

terms of employability from vocational rehabilitation serv-

ices provided pursuant to subchapters I and III of this

chapter.

(B) Subject to the second sentence of this subparagraph,

the term “handicapped individual” means, for purposes of

subchapters IV and V of this chapter, 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. For purposes of sections 793 and 794 of

this title as such sections relate to employment, such term

does not include any individual who is an alcoholic or drug

abuser whose current use of alcohol or drugs prevents such.

individual from performing the duties of the job in question

or whose employment, by reason of such current alcohol or

drug abuse, would constitute a direct threat to property or the

safety of others.

29 U.S.C. § 706(7) (1982).

of such impairments, will benefit medically from the treat-

ment or nourishment.” 45 C.F.R. § 84.55(f)(1) (1984).

The court of appeals held these regulations invalid, reason-

ing that Congress never intended for § 504 to apply to treat-

ment decisions involving handicapped infants. In so holding,

the court unduly restricted the broad, remedial scope of § 504.

The court failed to take into account the plain language of

§ 504, the expressed intent of Congress to ensure adequate

medical services for handicapped infants, the delegation of

broad authority to HEW, and the consistent regulatory history

under § 504. When these factors are properly considered, it is

clear that the court’s holding was in error and should be

reversed.*

Il.

A PROHIBITION OF DISCRIMINATION IN THE

DENIAL OF MEDICALLY INDICATED, BENEFICIAL

TREATMENT TO HANDICAPPED INFANTS IS

WARRANTED BY THE PLAIN STATUTORY

LANGUAGE OF § 504

A. The Court of Appeals Ignored Fundamental

Principles of Statutory Construction in Restricting

the Scope of § 504

In determining the scope of § 504, the proper starting point is

the language of the statute. Landreth Timber Co. v. Landreth,

105 S.Ct. 2297, 2301 (1985); North Haven Board of Education v.

Bell, 456 U.S. 512, 520 (1982). In the absence of a clearly

expressed, contrary legislative intent, the plain language of

§ 504 controls its construction. North Dakota v. United States, 103

S.Ct. 1095, 1102-03 (1983); Jefferson County Pharmaceutical Ass'n,

Inc. v. Abbott Laboratories, 103 S.Ct. 1011, 1016 (1983).

*The court of appeals did not publish its opinion, but based its

decision on United States v. University Hospital, State University of

New York at Stony Brook, 729 F.2d 144 (2d Cir. 1984). American

Hospital Association v. Heckler, No. 84-6211 (2d Cir. Dec. 27, 1984).

Accordingly, in this brief, references to the court’s opinion are

references to the opinion in University Hosyital.

As a remedial statute, § 504 must be broadly construed in

order to effectuate its purposes. Sedima, S.P.R.L. v. Imrex Co.,

105 S.Ct. 3275, 3286 (1985); Consolidated Rail Corp. v. Darrone,

104 S.Ct. 1248, 1255 (1984). As long as these regulations are

reasonably related to the purpose of the enabling legislation—

to protect handicapped persons from discrimination and the

denial of benefits in federally assisted programs—they must be

sustained. Lau v. Nichols, 414 U.S. 563, 571 (1974) (Stewart J.,

concurring); Mourning v. Family Publications Services, Inc., 411

U.S. 356, 369 (1973); Thorpe v. Housing Authority of the City of

Durham, 393 U.S. 268, 280-81 (1969).

Disregarding these fundamental principles of statutory con-

struction, the court of appeals constricted the plain language of

§ 504, both in the scope of handicapped individuals protected

and in the type of programs covered. The court failed to give

priority to the plain statutory language of § 504. Rather, the

court limited the scope of the plain language by its interpreta-

tion of the regulatory history, concluding that the regulations

at issue are “flatly at odds” with the “limited view” of the scope

of § 504 allegedly taken by the Department of Health, Educa-

tion and Welfare(HEW). 729 F.2d. at 154. As demonstrated in

Sec. IV of this brief, the court misread the regulatory history;

an accurate reading establishes that HEW and HHS have

consistently expressed a broad view of the scope of § 504. By

giving this erroneous reading of the regulatory history pri-

ority over the plain statutory language, the court failed to

adhere to the principle that the plain language controls unless

contradicted by a clearly expressed, contrary legislative intent.

North Haven, 456 U.S. at 522.

B. A Handicapped Infant Can Be An “Otherwise

Qualified Handicapped Individual” And A Denial of

Medically Indicated Treatment Is A Denial of

Benefits Contrary to § 504

By its plain language, § 504 prohibits discrimination, the

exclusion of participation, and the denial of benefits solely by

reason cf handicap, against any “otherwise qualified handi-

capped individual” in federally assisted programs. The court

of appeals held that the regulations at issue are invalid because

a handicapped infant in need of medical treatment is not

“otherwise qualified” for purposes of § 504 and because medi-

cal treatment is not an activity covered by § 504. The court

reasoned that the “otherwise qualified” criterion only applies

to “static” programs such «s employment, education and trans-

portation, and not to “fluid” programs such as medical treat-

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

Cir. 1981), the court added that the “otherwise qualified”

criterion applies “only where the individual’s handicap is

unrelated to, and thus improper to consideration of, the serv-

ices in question;” since a handicapped infant’s need for medical

services often arises from the handicapping condition, such

infants cannot be “otherwise qualified.” 729 F.2d at 156.

Finally, the court reasoned that since handicaps are often

related to the medical condition it will “rarely, if ever, be

possible to say that a particular decision [not to provide medical

treatment] was discriminatory.” Jd. at 156-57. Thus, accord-

ing to the court, the “fluidity” of medical decisionmaking, and

the relationship between the infant’s handicap and need for

medical services, create such uncertainty regarding both quali-

fication and discrimination that no case can fall within the

scope of § 504.

In so holding, the court failed to properly apply the plain

statutory language, and disregarded compelling evidence con-

trary to its own factual assumptions. The distinction between

“static” and “fluid” programs is a creation of the court of

appeals, not of Congress, and has no foundation in the plain

language or the legislative history. Cf. Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 104 S.Ct. 2778, 2792 (1984).

Similarly, there is no factual basis for the sweeping assump-

tion that all medical treatment decisions for handicapped

infants are so fluid and uncertain that it is impossible to

determine that a particular infant is qualified for medical

service or is being discriminated against in the denial of such

services. Because the court assumed that the handicap and

“the services” are always inextricably intertwined, it failed to

distinguish between an untreatable handicap and a treatable

medical condition for which an infant can be qualified.

Contrary to the court’s holding, handicapped infants do

meet the criteria for “otherwise qualified handicapped individ-

ual.” This Court has stated that “{a]n otherwise qualified

person is one who is able to meet all of a program’s require-

ments in spite of his handicap.” Southeastern Community Col-

lege v. Davis, 442 U.S. 397, 406 (1979). “{A] person who suffers

from a limiting physical or mental impairment still may

possess other abilities that permit him to meet the require-

ments of various programs.” Jd. at n.6. Moreover, “the ques-

tion of who is ‘otherwise qualified’ and what actions constitute

‘discrimination’ under the Section would seem to be two sides of

a Single coin; the ultimate question is the extent to which a

grantee is required to make reasonable modifications in its

program for the needs of the handicapped.” Alexander, 105

S.Ct. at 720 n.19.

Based on these elements, handicapped newborns who

require medical treatment can be “otherwise qualified.” The

Secretary has properly applied this criterion to the context of

handicapped infants. As the Secretary stated in her brief

below, “(ijn the context of a health care program, there are no

qualifications other than the ability, despite handicap(s), to

benefit from medical treatment. If a child’s handicapping

condition does not prevent him from benefitting from surgery

to correct other problems, he must be considered ‘otherwise

qualified.’”” Brief for the Defendant-Appellant Margaret

Heckler 19, American Hospital Association v. Heckier, No. 84-

6211 (2d Cir. Dec. 27, 1984).* See also, 49 Fed.Reg. 1636 (1984) (to

be codified at 45 C.F.R. Pt. 84).°

That a handicapped infant can be “otherwise qualified” is

demonstrated by the report of the President’s Commission for

‘Respondents contend that § 504 does not encompass children.

Based on the plain language of § 504, however, “individual” must

be taken to encompass persons “of ali ages.” Smith v. Robinson, 104

S.Ct. 3457, 3472 (1984).

*From the beginning, HHS regulations have broadly defined

“qualified” in a manner that encompasses handicapped

newborns.

(k) ‘Qualified handicapped person’ means:.. .

(footnote continued on next page)

the Study of Ethical Problems in Medicine. The Commission’s

analysis of the issue divides infant treatment cases into three

categories: (1) where treatment is available “that would clearly

benefit the infant,” (2) where “all treatment is expected to be

futile,” (3) where “the probable benefits to an infant from

different choices are quite uncertain.”* Although the court of

appeals assumed that no clear distinctions can ever be made in

the medical treatment of handicapped infants, so as to allow

the conclusion that certain decisions may be discriminatory,

729 F.2d at 157, the Commission concluded that “the three

situations need to be considered separately, since they demand

differing responses.” President’s Commission at 217. The

Commission acknowledged that surgery may leave such

infants with permanent handicaps and that “the expectation

of such handicaps” is often considered in deciding whether to

treat. However, the Commission concluded “that a very restric-

tive standard is appropriate: such permanent handicaps jus-

tify a decision not to provide life-sustaining treatment only

when they are so severe that continued treatment would not be

a net benefit to the infant.” Jd. at 218.’

The Commission’s report demonstrates that it is possible to

know with certainty whether treatment will be “beneficial”

(footnote continued from preceding page)

(4) With respect to other services, a handicapped person

who meets the essential eligibility requirements for the

receipt of such services.

45 C.F.R. § 84.3(k)(4) (1977) (emphasis added).

* President’s Commission for the Study of Ethical Problems in

Medicine and Biomedical and Behavioral Research, Deciding to

Forego Life-Sustaining Treatment 217 (1983) [President’s

Commission].

'The “benefit” is to be viewed “from the infant’s own perspec-

tive,” and excludes “consideration of the negative effects of an

impaired child’s life on other persons, including parents, siblings,

and society.” President’s Commission at 219. The Commission

specifically stated that “the handicaps of Down Syndrome... do

not justify failing to provide medically proven treatment, such as

surgical correction of a blocked intestinal tract.” /d.

and, thus, whether nontreatment would be discriminatory.®

Indeed, the Commission acknowledged that “most” cases will

fall into the “clearly beneficial” or “futile” categories, and only

a “smaller number” will raise hard questions of uncertainty.

Id. at 218, 220.

Therefore, the court erred in holding that the relationship

between the handicapping condition and the services in ques-

tion makes § 504 inapplicable to any case involving medical

treatment of handicapped infants. 729 F.2d at 156-57. The

court failed to recognize that an infant’s need for medical

services may be totally unrelated to the handicapping condi-

tion. The court also failed to distinguish between an untreat-

able handicap, and a related, but separate, medical condition

which is treatable.* In one case, there is no relation between the

handicap and the service; in the second, che relationship in no

way mitigates the infant’s ability to benefit from the service.”

In both cases, the infants are “otherwise qualified” to receive

*In this regard, the U.S. Commission on Civil Rights has noted

that “| while occasional denials of routine medical care have been

reported, a much more serious problem involves the apparent

withholding of lifesaving medical treatment for individuals,

frequently infants, solely because they are handicapped.” U.S.

Com. on Civil Rights, Accommodating the Spectrum of Individual

Abilities 35-36 (Sept. 1983). See also, In re the Treatment and Care of

Infant Doe, No. GU 8204-004A (Monroe Co.Ind.Cir.Ct., Mera.Op..,

Apr. 12, 1982), writ of mandamus dismissed sub nom. State ex rel.

Infant Doe v. Baker, No. 482 S 140 (Ind.Sup.Ct. May 27, 1982), cert.

deniea, Doe v. Bloomington Hospital, 104 S.Ct. 394 (1983).

*Respondents obscure this distinction by claiming that the

Government itself does not apply § 504 when “a certain level of

defect” is reached. Respondents’ Brief In Opposition To Petition

For Writ Of Certiorari at 29. But the “defect” which renders

§ 504 inapplicable is a medical one that renders medical treatment

not “beneficial” within the plain language of § 504, not one that is

untreated for nonmedical reasons.

‘For example, infants with Down Syndrome are sometimes

afflicted with an esophageal atresia. Although the Down Syn-

drome cannot be reversed, the atresia can be surgically corrected,

and the infant is thus “otherwise qualified” to receive the surgery.

(footnote continued on next page)

medical treatment, and a failure to provide appropriate treat-

ment is forbidden by the plain language of § 504.

Accordingly, the court of appeals erred when it held that

handicapped infants are not “otherwise qualified’ to receive

medical treatment and that the failure to provide such treat-

ment is not discriminatory. The failure to provide beneficial

medical treatment to an infant solely because of a handicap or

the expectation of future handicap meets every element of

§ 504, is reasonably related to the purposes of § 504, and is a

proper subject for regulation under that section.

C. The Regulations Require Equal Treatment, Not

Affirmative Action, In the Medical Care of

Handicapped Infants

Respondents additionally contend that these regulations are

unauthorized under Southeastern Community College v. Davis,

442 U.S. 397 (1979), because they mandate “affirmative action”

by requiring health care providers to seek court review of

parental refusal for treatment. In Davis, this Court held that

“substantial” modification of an institution’s programs

amounts to affirmative action; unless there is “substantial”

modification or “fundamental alteration,” no affirmative

action is involved. Jd. at 411-12, Alexander, 105S.Ct. at 721 n.20.

No modification, much less a substantial one, is required

by these regulations. The regulations do not specifically

require providers to treat infants in violation of parental

consent or to seek judicial review. But hospitals in many

cases already seek court orders to overrule parental refusai

for medical treatment. If a hospital would ordinarily seek a

state court order in the face of parental objection to

administer medically indicated treatment to a nonhandicap-

ped infant, to not seek such an order in the case of a

(footnote continued from preceding page!

See Brief Amicus Curiae of American Association on Mental

Deficiency, et al.

handicapped infant, because the infant is handicapped, and

to hide behind “parental responsibility,” is to discriminate.”

Historically, physicians, hospitals, and state agencies have

gone to court where parents refused medical treatment for

nonhandicapped children.” Courts have ordered treatment

for minors in numerous life-threatening situations.” In

cases where there was no immediate threat to a child’s life,

some courts have ordered treatment,’ while others have

refused to order treatment, mainly because the proposed

"This disposes of the District Court’s objection that “Univer-

sity Hospital has failed to perform the surgical procedures in

question, not because Baby Jare Doe is handicapped, but

because her parents have refused to consent to such

procedures.” University Hospital, 575 F.Supp. at 614. This

erroneously assumes that the hospital’s obligation ends with the

parent’s refusal. If the hospital would seek to override the

parental refusal of a Jehovah’s Witness to allow a blood trans-

fusion for his child, the hospital must also seek an override for

medically indicated treatment for a handicapped infant.

Parents have the ultimate responsibility until they neglect that

responsibility. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972),

Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

"For example, Jehovah’s Witnesses cannot refuse a transfu-

sion for a child, if such is needed to avoid substantial harm to

the child. Jehovah’s Witnesses v. King Co. Hosp. 278 F.Supp. 488

(W.D.Wash. 1967), aff'd per curiam, 390 U.S. 598 (1968), Applica-

tion of President and Directors of Georgetown College, 331 F.2d 1000

(D.C.Cir.), reh. en banc denied, 331 F.2d 1010, cert. denied, 377 US.

978 (1964).

'8 Matter of Hamilton, 657 S.W.2d 425 (Tenn.App. 1983) (12-

year-old girl with Ewing’s sarcoma), People In interest of D.L.E.,

645 P.2d 271 (Colo. 1982) (14 year old with gran mal epileptic

condition), Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053

(1978) (Green I), 393 N.E.2d 836 (1979) (Green IT) (leukemia).

“In Re Adam, 9 Fam.L.Rep. 2121 (D.C.Super.Ct.Fam.Div.

Nov. 22, 1982), Matter of Jensen, 54 Or.App. 1, 633 P.2d 1302

(1981) (hydrocephalus), Matter of Gregory S., 85 Misc.2d 846, 380

N.Y.S.2d 620 (1976).

treatment would not necessarily cure the medical condition.”

This is merely consistent with deference to reasonable medi-

cal decisionmaking.

Courts have also ordered treatment for handicapped chil-

dren.“* Whether courts have or have not ordered treatment

for handicapped persons, they have held that the intel-

ligence or mental capacity of the individual is irrelevant.”

The regulations at issue are entirely consistent with this

body of law. Since health care providers commonly seek

judicial review, it cannot seriously be asserted that § 504 will

“spawn” such litigation, 729 F.2d at 157, or that seeking

court intervention is “affirmative action,” since no “substan-

tial” modification will be required in what health care prov-

iders have an independent duty to do. The “burden” of

nondiscrimination does not constitute affirmative action.

'® In re CFB, 497 S.W.2d 831 (Mo.App. 1973) (psychiatric care),

In re Green, 448 Pa. 338, 292 A.2d 387 (1972), after remand, 452

Pa. 373, 307 A.2d 279 (1973).

‘© Commissioner of Social Services v. Catherine and Phillip Gua-

trone, No. N-2029 (Fam.Ct. of N.Y., Bronx, May 31, 1984) (Down

Syndrome), Jn re Phillip B., 92 Cal.App.3d 796, 156 Cal.Rptr. 48,

cert. denied, Bothman v. Warren, B., 445 U.S. 949 (1979), Guardian-

ship of Phillip B., 139 Cal.App.3d 407, 188 Cal. Rptr. 781 (1983),

Application of Cicero, 101 Misc.2d 699, 421 N.Y.S.2d 965

(N.Y.Sup.Ct. 1979), Jn Re McNulty, No. 9190 (Probate Ct. Essex

Co., Mass. Feb. 15, 1978), Maine Medical Center v. Houle, No. 74-

145 (Super.Ct. Cumberland Co., Me. Feb. 14, 1974) (treatment

ordered for multiple defects and blocked esophagus), Muhlenberg

Hosp. v. Patterson, 128 N.J.Super. 498, 320 A.2d 518 (1974), Jn re

Teague, No. 104-212-81886 (Cir.Ct. Baltimore, Md., filed Dec. 4,

1974) (spina bifida).

'' See, e.g., Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 431 (1977) (“(Tjhe

value of life under the law (has) no relation to intelligence or

social! position.”). See also, Maine Med. Center v. Houle, No. 74-145

(Super.Ct. Cumberland Co. Me. Feb. 14, 1974). “[Tjhere is no

legal precedent” for the judgment that the quality of life affects

its value. Robertson, Jnvoluntary Euthanasia of Defective

Newborns: A Legal Analysis, 27 Stan.L.Rev. 213, 237, 242 (1975).

The plain language of § 504 prohibits the failure to pro-

vide, solely by reason of handicap, medically-indicated treat-

ment to handicapped infants who can benefit from such

treatment. This plain language controls unless a clearly

expressed, contrary legislative intent exists.

III.

THE LEGISLATIVE HISTORY COMPELS A BROAD

APPLICATION OF § 504 TO PROSCRIBE THE DIS-

CRIMINATORY TREATMENT OF HANDICAPPED

INFANTS.

A. The Legislative History Establishes That § 504 Is A

Broad, Remedial Provision.

The legislative history of § 504 is nearly silent on the

narrow question of providing medical treatment to handi-

capped infants. Nevertheless, the Rehabilitation Act, as

enacted and amended, provides a wide range of research and

services for the handicapped, with a priority for “severely

handicapped” persons, including infants. Section 504, in

turn, was intended to establish a comprehensive, federal

policy prohibiting discrimination in all federally-assisted

programs.” Both indicate that handicapped infants are

among the persons covered by these laws.

The legislative proposals which became § 504 were jointly

introduced in the House and Senate, separate from the

Rehabilitation Act, in late 1971 and early 1972. Upon

introducing H.R. 12154" in December 1971, Rep. Vanik

referred to the growing number of handicapped individuals

in the United States, including the yearly birth of 100,000

babies with “defects.” In introducing 8.3044 in January

'® See generally, R. Scotch, From Good Will to Civil Rights (1984).

Entitled “A bill to amend the Civil Rights Act of 1964 in

order to prohibit discrimination on the basis of physical or

mental handicap in federally assisted programs.” 117

Cong.Rec. 45974-75 (1971).

1972,” Senator Humphrey “focused [his] attention on the

handicapped child,” and referred to the variety of handi-

capped individuals including “the 100,000 babies born with

defects each year.” 118 Cong.Rec. 525-526 (1972). He stated

that “{e|]very child—gifted, normal, and handicapped—has a

fundamental right to educational opportunity and the right

to health.” Jd.”

In September, 1972, Senator Randolph, Chairman of the

Senate Subcommittee on the Hanuicapped, introduced S.

3987, entitled the “Rehabilitation Act of 1972.” Jd. at 30680.

The bill was introduced to replace the 50 year old Vocational

Rehabilitation Act, the Smith-Fenn Act of 1920. ZId. at

* Entitled “A bill to amend the Civil Rights Act of 1964 in

order to prohibit discrimination on the basis of physical or

mental handicap in federally assisted programs.”

*“These statements by Vanik and Humphrey indicate that

handicapped infants are among the persons covered by these

bills. See also 118 Cong.Rec. 14244 (Statement of Rehabilitation

Services Administration (RSA) Commissioner Edward

Newman, including reference to infants with birth defects).

Sen. Randolph noted:

Of whom do we speak when we speak of the severely

handicapped?... Do we have many such people, or are

they few in number?... We all know of the progress that

has been in the medical profession. We know of the

improvements which have been made from the standpoint

of prenatal and postnatal care, resulting in higher rates of

survival among our multiple handicapped infants. The

changing concept of the right to treatment, the advent of

new drugs and new surgical techniques, permits lives

previously lost to be saved. But patients are often left with

physical or mental handicaps.

Once we thought the lives of such people were a loss,

that we could not return them to active levels of society

where they would be productive citizens. Now, however,

we know that that can be done. We know it has been done.

119 Cong.Rec. 10802. See also n.23 infra.

32279, 32304-305. A section 604, prohibiting “any kind of

discrimination against handicapped individuals with respect

to any program receiving Federal financial assistance,” was

included in Title VI of S. 3987. Jd. at 30681, 32265, 37302.

President Nixon vetoed the corresponding House Bill,

H.R. 8395, in October, 1972. The bill was reintroduced in the

Senate as S. 7 in January, 1973, which was approved by the

Senate in February, 1973, with the nondiscrimination provi-

sion included as § 705. 119 Cong.Rec. 5900-901, 5915 (1973).

President Nixon vetoed S. 7 on March 27, 1973.”

The Rehabilitation Act was introduced for a third time in

May, 1973. The House Bill, H.R. 8070, including the nondis-

crimination provision, § 503, passed the House in June,

1973.% 119 Cong.Reg. 18127-28.

* Appellees contend that the Presidential vetoes of 1972 and

1973, and the Congressional deletion of various programs, indi-

cate an intention that the Act not include any “medical” pro-

grams. But those presidential vetoes were based on cost,

duplication, and categorization of types of services, not on any

concern with federal oversight of medical decisionmaking. 118

Cong.Rec. 3723, 119 Cong.Rec. 9597, 24570. In addition, the veto

memoranda never referred to the nondiscrimination section.

**Immediately before the vote on the bill, Rep. Vanik noted

that H.R. 8070 incorporated his original provision against dis-

crimination. He stated that H.R. 8070 was just a small begin-

ning and urged Congress to move ahead to provide more

programs for the education of handicapped children. He sug-

gested that HEW has “impounded funds, that were designated

to help handicapped children.” He condemned the practice of

ancient Greece where “the people would take the handicapped

newborn and leave them to die of exposure on the mountain-

side,” asking whether “we are guilty of the same type of gross

neglect in this country?” 119 Cong.Rec. 18137.

The Senate debated the new Senate bill S. 1875 in July,

1973. 119 Cong.Rec. 24550.** The prohibition on discrimina-

tion was included in its final form as § 504. Jd. at 24562.

President Nixon signed the Rehabilitation Act of 1973, P.L.

93-112, into law on September 26, 1973.”

Throughout the debates of the 92nd, 93rd, and 94th Con-

gresses, the precise meaning of § 504, with exception for the

statements of Rep. Vanik and Senator Humphrey, was

almost never explained. Section 504 “was not discussed in

any of the hearings held prior to the law’s passage...” Its

language was described or quoted numerous times, without

exception, in a very straightforward and absolute manner.”

**On the same day that the Senate considered the Rehabilita-

tion Act of 1973, July 18, 1973, S.J. Resolution 118 was pro-

posed to establish a White House Conference on the

Handicapped. 119 Cong.Rec. 24442. The joint resolution pro-

posed that the federal government work with the states to

develop programs that would, among other things, “provide[]

educational, health and diagnostic services for all children

early in life so that handicapped conditions may be discovered

and treated early.” S.J.Res. 18 was passed by the Seuate on

July 18, 1973 and incorporated into Title III of the Rehabilita-

tion Act Amendments of 1974. 120 Cony.Rec. 30536, 34722

(1974).

*Throughout the debates on the House and Senate Bills

which eventually formed the Rehabilitation Act of 1973, Rep.

Vanik and Senator Humphrey emphasized repeatedly that the

nondiscrimination sections in these bills incorporated the intent

of their original bills to amend the Civil Rights Act of 1964.

118 Cong.Rec. 32310, 119 Cong.Rec. 635, 6144-45, 7114, 18137.

The remarks “of the sponsor of the language ultimately enacted

are an authoritative guide to the statute’s construction” and

should be accorded “substantial weight.” North Haven, 456 U.S.

at 526.

*Scotch, supra n.19, at 4.

*? See 117 Cong. Rec. 45945 (1971); 118 Cong.Rec. 525, 526, 8399,

8894, 11797, 16371, 30681, 30682, 30683, 32280, 32281, 32282,

32294, 37302, 32310, 35155, 35163, 35837 (1972); 119 Cong.Rec.

(footnote continued on next page)

Nevertheless, Senator Cranston, Acting Chairman of the

Senate Subcommittee on the Handicapped, said that § 504

was intended to deal “comprehensively” with discrimina-

tion. 119 Cong.Rec. 5862, 24569 (1973). This Court has noted

that § 504 was consciously patterned after the broad provi-

sions of Title VI of the Civil Rights Act of 1964. 42 U.S.C.

§ 2000(d) (1982), Alexander, 105 S.Ct. at 718 n.13, Darrone, 104

S.Ct. at 1254 n.13.

In hindsight, it is apparent that Congress had no reason to

specifically consider the medical treatment of handicapped

infants in 1973: it simply was not a prominant social issue.

The first medical article openly discussing the subject was

published after the 1973 Act was signed into law. Duff &

Campbell, Moral and Ethical Dilemmas in the Special Care

Nursery, 289 N.Eng.J.Med. 890 (Oct. 25, 1973).% Duff and

Campbell lifted the veil on “the public and professional

silence on a major social taboo.” Jd. at 894. Congress’ first

hearings on the subject in 1974 were themselves “prompted”’

by the article. “Panel Told Defective Infants Are Allowed

To Die,” New York Times, June 12, 1974, at 18, col. 3, Medical

Ethics: The Right to Survival, 1974: Hearings Before the Subcomm.

on Health of the Senate Comm. on Labor and Public Welfare on

Examination of the Moral and Ethical Problems Faced With the

Agonizing Decisions of Life and Death, 93d Cong., 2d Sess. 2

(1974). Congress again held hearings on the subject in 1983.

(footnote continued from preceding page)

65, 5862, 5873, 5880, 5915, 6145, 7114, 7136, 7153, 18127, 24562,

24569, 24571, 24580-81, 24586-589, 29628, 29633 (1973).

**“TDebates about the ethics of foregoing life-sustaining treat-

ment for newborns began to appear in professional journals in

the early 1970’s.” President’s Commission at 198 n.4 (citing

Duff and Campbell).

*This hearing was apparently merely investigative,

designed to “focus public attention on these issues.” Neither

§ 504, nor the Rehabilitation Act, was mentioned in the

hearing.

S.Rep. No. 246, 98th Cong. Ist Sess. (1983), reprinted in [1984]

U.S. Code Cong. & Adm. News 2981.”

It is the 1982 Infant Doe case which prompted the regula-

tions before this Court, as well as the Child Abuse Act

Amendments of 1984. P.L. 98-457. The 1984 Senate Report

noted that “(t]he highly publicized recent cases have cat-

apulted the issue of withholding treatment from seriously ill

newborn infants into the public arena... .” S.Rep. No. 98-

246, at 6.

The silence of the legislative history on the specific issue

of the treatment of handicapped infants does not conclude

the irquiry. Statutory interpretation is not a narrow process,

tied only to the particular facts before the legislature, but is

necessarily broader, since statutes look to the future. As this

Court recently stated: “The fact that RICO has been applied

to situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” Sedima,

105 S.Ct. at 3287. The judicial function is not to understand

the past solely in its own terms, but to apply the values that

the legislature adopted to new facts as they arise. It is for the

judiciary to identify the sorts of evils against which the

provision is directed and to apply it to their contemporary

counterparts. “{Cjongressional silence, no matter how ‘clang-

ing,’ cannot override the words of the statute.” Sedima, 105

S.Ct. at 3285 n.13. When a regulatory application of a

remedial statute falls within the broad sweep of the plain

language and implements the purpose of the statute, the

silence of the legislative history on the particular application

cannot invalidate the regulation.

* These hearings and the resulting Child Abuse Amendments

of 1984, P.L. 98-457, 98 Stat. 1749, indicate, if anything, that

the Child Abuse Amendments were intended to supplement the

regulations at issue. See Brief of Amicus Curiae Hon. Orrin G.

Hatch and Austin J. Murphy, Members of the Congress of the

United States, in Support of Petitioner.

B. The 1974 and 1978 Amendments Emphasize that The

Rehabilitation Act Encompasses Handicapped Infants

and Medical Services.

In enacting the 1974 Amendments to the Rehabilitation

Act, Congress recognized that the emphasis on employment

in the definition of “handicapped individual” in the 1973

Act, 29 U.S.C. § 706(7), conflicted with the broader intent for

§ 504, which was not to be “limited to employment” or to

“the individual’s potential benefit from vocational rehabilita-

tiow services.” 120 Cong.Rec. 30534, 35009." The Senate and

Conference Reports on the 1974 Amendments specifically

stated (1) that the amended definition of “handicapped indi-

vidual” was intended to reflect a prior broader intent in § 504

and to encompass discrimination in a broad range of services,

in addition to employment, (2) that § 504 “was enacted to

prevent discrimination” in “health services,” (3) that § 504

was expressly patterned after Title VI and Title IX, and (4)

that discrimination on the basis of handicap was analogous

to discrimination for race or sex, because “handicapped per-

sons” are discriminated against “when they are, in fact,

handicapped (this is similar to discrimination because of race

or sex) and because they are classified or labeled, correctly or

incorrectly, as handicapped ...” S.Rep. No. 93-1297, at 37-40,

120 Cong.Rec. 30534, 34725, 35010, 35016. Congress con-

sciously compared handicap discrimination to racial and

sexual discrimination. For the court of appeals to reject this

analogy “is an outright disagreement with Congress’ judg-

ment and an unconstitutional act in itself.” 729 F.2d at 163

(Winter, J., dissenting).”

“The 1974 Amendments added the first sentence of sub-

paragraph (B) to section 6(7) of the Act. P.L. 93-516, 88 Stat.

1617 (1974). See supra n.2.

* When a challenge to an agency construction of a statutory

provision, fairly conceptualized, really centers on the wis-

dom of the agency’s policy, rather than whether it is a

reasonable choice within a gap left open by Congress, the

challenge must fail. In such a case, federal judges—who

(footnote continued on next page)

The Rehabilitation Comprehensive Services, and Develop-

mental Disabilities Amendments of 1978, P.L. 95-602, 29

Stat. 2955 (1978 Amendments), amended the Rehabilitation

Act of 1973 in three relevant areas. First, a new section

provided attorney’s fees for “prevailing plaintiffs” under

§ 504. 29 U.S.C. § 794(a\b) (1982). Second, the “remedies,

procedures and rights set forth in [Title VI” were made

available to any person discriminated against under § 504.

29 U.S.C. § 794(a)(2) (1982). Both of these amendments indi-

cate that § 504 was intended to serve handicapped persons as

a full civil rights remedy, similar to Title VI, regarding race

discrimination, and to Title IX of the Education Act Amend-

ments of 1972, 20 U.S.C. § 1681 (1982), regarding sex

discrimination.

Finally, and most importantly, the 1978 Amendments

created a model demonstration program for severely handi-

capped children, aged 0-5 years. 29 U.S.C. § 796 (1982). This

is included within Title VII, governing “comprehensive serv-

ices for independent living.” Jd. Title VII authorizes grants

to assist states in providing “services for children of

preschool age.” 29 U.S.C. § 796a, 762(b)(11) (1982). The

model program™ is directed to “multiple handicapped” chil-

dren who “require a full range of health-related services.”

(footnote continued from preceding page)

have no constituency—have a duty to respect legitimate

policy choices made by those who do.

Chevron, 104 S.Ct. at 2793.

“The bill shifted the authority for the program to the

National Institute of Handicapped Research (NIHR). 29

U.S.C. §76la. The NIHR provides grants for research and

training in pediatric rehabilitation, rehabilitation and develop-

mental care of very low birth weight infants, intervention for

high risk and handicapping conditions for children up to age 3,

early intervention with risk and handicapped infants, and

parental decisionmaking in the treatment of newborns with

disabilities. U.S. Dept. of Education, NIHR, Program Directory

(1985)

124 Cong.Rec. 30308. The services include “infant and

preschool services, such as early intervention, parent train-

ing and counseling, infant stimulation, and early identifica-

tion, diagnosis and evaluation.” S.Rep. No. 890, 95th Cong.,

2d Sess. 25 (1978). It was expected that these services “would

be attached to children’s hospitals or similar facilities.” Jd. at

29.**

“Subsequent legislation declaring the intent of an earlier

statute is entitled to great weight in statutory construction.”

Red Lion Broadcasting v. FCC, 395 U.S. 637, 380-81 n.8 (1969).

“(W jhile the views of subsequent Congresses cannot override

the unmistakeable intent of the enacting one, such views are

entitled to significant weight, and particularly so when the

precise intent of the enacting Congress is obscure.” SeaTrain

Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980).*

The 1973 Act, the 1974 Amendments, and the 1978 Amend-

ments are in para materia and “are to be taken together, as if

they were one law.” United States v. Stewart, 311 U.S. 60, 64

(1940), United States v. Freeman, 44 U.S. (3 How.) 556, 564

(1845).

Since Congress specifically created a model program to

meet the individual medical needs of multiple handicapped

infants, regulations which prohibit the denial of medically

indicated treatment to such infants in federally assisted

programs are reasonably related to the enabling legislation.

As originally enacted, and as a part of the amended

Rehabilitation Act, § 504 provides statutory authority for

““The physical and developmental problems of these infants

and young children are often life-threatening to the extent that

skilled management is essential. Care for the physical develop-

ment of these children must take precedence over the develop-

ment of educational, treatment or developmental programs.”

S.Rep.No. 890, at 28. Included among these model services is

pediatric care. 29 U.S.C. § 762(b\11).

“This Court has previously given deference to the 1974

debates and Congressional Reports as an explanation of the

scope of § 504. Alexander, 105 at 722-23 n.24.

these regulations. Certainly, no clearly expressed, contrary

legislative intent exists.

IV.

THESE REGULATIONS ARE ENTITLED TO DEFER-

ENCE BECAUSE CONGRESS DELEGATED SUBSTAN-

TIAL AUTHORITY TO THE AGENCY.

This Court normally accords great deference to the inter-

pretation of the agency charged with the statute’s adminis-

tration. North Haven, 456 U.S. at 521 n.12. Where “Congress

has conferred broad discretion on an agency” to implement

the statute, a court must accept the agency’s interpretation

unless it is “manifestly unreasonable.” American Maritime

Ass’n v. United States, 766 F.2d 545, 560 (D.C.Cir. 1985). If the

statute is silent on the precise issue, the agency’s interpreta-

tion controls “unless [it is) arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, U.SA., Inc. v.

National Resources Defense Council, Inc., 104 S.Ct. 2778, 2783

(1984). Despite Congress’s delegation of substantial author-

ity to HHS, the court of appeals held that the regulations at

issue were not entitled to deference because there was no

“longstanding consistent interpretation.” 729 F.2d at 154. A

thorough understanding of the regulatory history, however,

demonstrates that the Secretary’s rulemaking has been con-

sistent in all respects relevant to the treatment of handi-

capped infants.

Since 1977, the regulations under § 504 have consistently

prohibited discrimination by health care providers. 45

C.F.R. Pt. 84 App. A, Subpart F (1977). The regulations at

issue originated in a “Notice to Health Care Providers.” 47

Fed.Reg. 26027 (1982). The Interim Final Rule, published on

March 7, 1983, did “not in any way change the substantive

obligations of health care providers” but applied the Title VI

procedural regulations to the context of medical treatment of

handicapped infants. 48 Fed.Reg. 9630 (1983). The United

States District Court for the District of Columbia struck

down the Interim Final Rule under the Administrative

Procedure Act, 15 U.S.C. 706(2)A). American Academy of

Pediatrics v. Heckler, 594 F.Supp. 69 (D.D.C. 1983). Subse-

quently, the Secretary again published proposed rules on

July 5, 1983. 48 Fed.Reg. 30846 (1983). A Final Regulation,

issued on January 12, 1984, contained two primary changes,

based upon consideration of the 17,000 comments received:

(1) The Report encouraged, but did not require, hospitals to

establish Infant Care Review Committees, (2) the Report

required the posting of signs, following Title VI guidelines,

but altered their size and location. 49 Fed.Reg. 1622 (1984)

(to be codified at 45 C.F.R. Pt. 84). Both the proposed and

final rules stipulated that “impossible or futile acts or thera-

pies” were not required and recognized the priority of reason-

able medical decision-making. 48 Fed.Reg. 30846-47, 49

Fed.Reg. 1622. The basic principles established in the 1977

regulations, and drawn from the Title VI regulations, were

applied to the treatment of handicapped newborns.

The original Notice of Intent to issue proposed rules

(NIPRM) of May 1976, 41 Fed.Reg. 20296, and the subse-

quent Notice of Proposed Rulemaking (NPRM) of July 1976,

41 Fed.Red. 29548, do not demonstrate that HEW had a

“limited view” of the scope of § 504 which excluded medical

treatment. The NIPRM concerned “{involuntarily institu-

tionalized patients) rights to receive or refuse treatment.” 41

Fed.Reg. 20297, 29559 (1976). The subsequent NPRM noted

that “|sjeveral commentators suggested that the regulation

should cover these areas and several others noted that the

“The § 504 regulations previously incorporated the Title VI

procedural regulations. 45 C.F.R. § 84, Subpart G (1977).

* Although the court of appeals viewed these changes as an

inconsistency, “|ajn initial agency interpretation is not

instantly carved in stone.” Chevron, 104 S.Ct. at 2792.

Department did not have authority to regulate in this area

under section 504.” Jd. The Department concluded:

The proposed regulation takes the same position as the

draft regulation appended to the May 17 notice; i.e.,

there are no provisions concerning adequate and appro-

priate psychiatric care or safe and humane living condi-

tions for persons institutionalized because of

handicap...The Secretary is of the opinion that to

promulgate rules on these subjects is beyond the author-

ity of section 504.

Id.

The Department’s position in that context has little in

common with the present regulations. First, regulations

requiring affirmative habilitative, psychiatric, or therapeutic

treatment are substantively different from regulations

prohibiting discrimination against handicapped infants.

The Secretary accordingly distinguished the 1977 position in

promulgating the current regulations. 49 Fed.Reg. 1636

(1984). Second, HEW could reasonably conclude that § 504

did not mandate a right to affirmative treatment of institu-

tionalized persons because, by its nature, § 504 requires equal

treatment of similarly situated handicapped and nonhandi-

capped persons. In the case of institutionalized persons, it is

difficult to identify nonhandicapped persons with whom a

comparative analysis can be made. But in the case of handi-

capped infants, a meaningful medical comparison can be

made with nonhandicapped infants regarding the provision

of beneficial treatment. See Gerry, The Civil Rights of Handi-

capped Infants: An Oklahoma ‘Experiment,’ 1 Issues in Law &

Medicine 15, 48-50 (1985).% Accordingly, HEW’s conclusion

*Evern if the situations are analogous, this Court has held

that institutionalized persons have a right to medical treatment.

Youngberg v. Romeo, 457 U.S. 307 (1982). The state “conced{ed]

that [Romeo] [had] a right to adequate food, shelter, clothing,

and medical care” and this Court concluded that Romeo had a

right to safe conditions, freedom from bodily restraint, and

(footnote continued on next page)

that §504 did not mandate affirmative habilitative or

psychiatic care for institutionalized persons is simply irrele-

vant to the issue of the authority under § 504 to proscribe

intentional discrimination in the failure to provide medi-

cally-indicated treatment to handicapped newborns. It was

erroneous, therefore, for the court of appeals to conclude that

HEW’s position established a “limited” view of § 504 that in

any sense reflects upon the present regulations.” In addi-

tion, the court of appeals failed to understand the purpose of

HEW’s conclusicn that the regulation would not “require

specialized hospitals and other health care providers to treat

all handicapped persons.” 729 F.2d at 152. By this, HEW

meant that a health service provider would not have to

provide treatment to handicapped persons if it did not pro-

vide such treatment to nonhandicapped persons, or did not

(footnote continued from preceding page)

“minimally adequate or reasonable training to ensure safety

and freedom from undue restraint.” Jd. at 315-319. This Court

held that “the Constitution only requires that the courts make

certain that professional judgment in fact was exercised. It is

not appropriate for courts to specify which of several profes-

sionally acceptable choices should have been made.” /d. at 321.

Nevertheless, it is implicit that, if Romeo had a right to ade-

quate food, shelter, clothing, medical care, etec., then “profes-

sional judgment” or “professionally acceptable choices” could

not include denying these basic rights.

“The court also concluded that these regulations were con-

tradicted by § 1395 of the Medicare Act and § 1320(c) of the

Social Security Act (PSRO), passed prior to § 504. 729 F.2d at

160. These statutes, however, are not in para materia. They

cannot be construed together because they do not concern the

same subject matter, United States v. Stewart, 311 U.S. 60, 64

(1940), or have the same purpose, Erlenbaugh v. United States, 409

U.S. 239, 245-46 (1972), and were not enacted in the same time

period, much less simultaneously. Dickerson v. New Banner

Institute, Inc., 103 S.Ct. 986, 994 (1983). They have neither

similar language, Oscar Mayer Co. v. Evans, 441 U.S. 750 (1979),

nor identical coverage, Tooahnippah (Goomli) v. Hickel, 397 US.

598, 606 (1970).

have the proper facilities, but if it provided a type of treat-

ment to nonhandicapped persons, it could not refuse such

treatment to handicapped persons. Thus, for example, the

burn center cannot “refuse to treat the burns of a deaf person

because of his or her deafness.” 45 C.F.R. Pt. 84, App. A,

Subpart F, {1 36 (1977).

In addition, although the court noted that the proposed

version of the 1977 regulations “emphasized the availability

of services,” 729 F.2d 152 (citing 41 Fed.Reg. 29567 (1976)), it

failed to note that the proposed rules equally emphasized the

“level of services.” In concluding that HHS had made a

“shift in agency policy” by promulgating the present “novel

and far-reaching regulations, the court ignored the fact that

HHS, under the Carter Administration, had taken the same

position. Pet. for Cert. at 24, 48 Fed. Reg. 30847-48 (1983). See

Protection and Advocacy Agency of Hawaii v. Kapiolani Chil-

dren’s Hospital, Health and Human Services Doc. No. 09-79-

3158 (1980).*

These regulations, like prior regulations promulgated

under § 504, are entitled to substantial deference. Alexander,

105 S.Ct. at 722 n.24. The 1974 Amendments emphasized

that the responsibility for regulations was delegated to

«All health services shall be provided to handicapped per-

sons at least to the same extent that they are provided to

nonhandicapped persons and shall be provided in such manner

as is necessary to afford handicapped persons equal opportunity

to benefit from these services.” 41 Fed.Reg. 29567 (1976).

“In Chevron, this Court upheld regulations where the legisla-

tive history was “silent on the precise issue,” 104 S.Ct. at 2792,

the agency had changed its interpretation of the statutory term,

Id., and the current administration had reversed the previous

administrative interpretation, Jd., at 2789, because the current

interpretation was consistent with the legislative policy con-

cerns and Congress had delegated substantial authority. Here,

the regulations are also consistent with policy concerns and the

current regulations emphasize a position adopted by an earlier

administration.

HEW. S.Rep. No. 1297, at 39-40.% The 1974 Amendments

“clarified the scope of §504 by making clear that those

charged with administering the Act had substantial leeway

to explore areas in which discrimination against the handi-

capped posed particularly significant problems and to devise

regulations to prohibit such discrimination.” Alexander, 105

S.Ct. at 722-23 n.24. Furthermore, the 1978 Amendments

were intended to codify the regulations enforcing § 504. Jd.,

Darrone, 104 S.Ct. at 1254-55 n.15-16.

Since Congress intended § 504 to establish a comprehen-

sive, federal policy of nondiscrimination, Congress did not

expect § 504 to be dependent on state law. Cf. North Dakota,

103 S.Ct. at 1104, Dickerson, 103 S.Ct. at 995, NLRB v. Natural

Gas Utility Dist., 402 U.S. 600, 603 (1971). Congress evidently

showed that it expected HEW to administer regulations

under § 504 with the same authority that it does so under

Title VI. Cf. Lau v. Nichols, 414 U.S. 563, 569 (1974). The

regulations at issue should likewise be accorded substantial

deference.

“ After noting that 504 was “patterned after” Title VI and

“therefore constitut/ed] the establishment of a broad govern-

mental policy against handicap discrimination,” the 1974

Senate Report stated that 504 “does not specifically require the

issuance of regulations or expressly provide for enforcement

procedures, but it is clearly mandatory in form, and such

regulations and enforcement are intended.” The language of

504 “envisions the implementation of a compliance program

which is similar to [Titles VI and IX], including promulgation

of regulations providing for investigation and review of

recipients of Federal financial assistance....” Congress

intended that 504 “be administered in such a manner that a

consistent, uniform and effective Federal approach to discrimination

against handicapped persons would result,” and gave the Secre-

tary of HEW “responsibility for coordinating the section 504

enforcement effort....” S.Rep.No. 1297, at 39-40 (emphasis

added).

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals below should be reversed.

Respectfully submitted,

*DENNIS J. HORAN

Victor G. ROSENBLUM

EDWARD R. GRANT

MAURA K. QUINLAN

CLARKE D. FORSYTHE

AMERICANS UNITED FOR

LIFE

LEGAL DEFENSE FUND

343 S. Dearborn St.

No. 1804

Chicago, Illinois 60604

(312) 786-9494

Counsel for Amic.

* Counsel of Record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.