Amicus Curiae Brief — Bowen v. American Hospital Assn.

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1985

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

AMERICAN HOSPITAL ASSOCIATION, et al.,

V.

0 \

CLERK

Supreme Court, U.S.

FILED

No. 84-1529 NOVY 4 1966

JOSEPH F. SPANIOL, JR.

States

Petitioner,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE

AMERICAN ACADEMY OF PEDIATRICS,

AMERICAN PEDIATRIC SOCIETY,

SOCIETY FOR PEDIATRIC RESEARCH,

ASSOCIATION OF MEDICAL SCHOOL

PEDIATRIC DEPARTMENT CHAIRMEN AND

WESTERN ASSOCIATION OF CHILDREN’S HOSPITALS

Of Counsel:

MICHAEL A. ROMANSKY

WENDY L. KRASNER

JOHN A. HODGES

ANNE W. HOGELAND

McDERMOTT, WILL & EMERY

1850 K Street, N.W.

Suite 500

Washington, D.C. 20006

(202) 887-8000

Attorneys for Amicus Curiae

Western Association of

Children’s Hospitals

November 4, 1985

STEPHAN E. LAWTON *

JACK N. GOODMAN

ELIZABETH B. CARDER

CAROL COLBORN

PIERSON, BALL & Dowp

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Attorneys for Amici Curiae

American Academy of

Pediatrics, et al.

* Counsel of Record

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QUESTION PRESENTED

Whether Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, permits the Department of Health and Hu-

man Services to regulate individual medical treatment de-

cisions concerning critically ill infants or to regulate

compliance with state reporting requirements, particu-

larly in the absence of a record establishing that any

improper activity by recipients of federal financial assist-

ance—those covered by the Act—has occurred?

(i)

TABLE OF CONTENTS

po OF Ee Bley yy

INTEREST OF AMICI CURIAE ..............-......------2---+----

SUMMARY OF ARGUMENT

TTT

I.

II.

III.

PETITIONER’S CONCEPT OF “DISCRIMI-

NATION” UNDER SECTION 504 FAILS TO

ACCOUNT FOR THE COMPLEXITY OF

MEDICAL CASES AND MEDICAL DECI-

.

A. Seriously Il] Infants Do Not Present Sim-

ple, Straightforward Cases

B. Medical Decision Making Does Not Involve

Isolated Treatment Decisions

REGULATING THE MEDICAL TREATMENT

OF SERIOUSLY ILL INFANTS EXCEEDS

THE SCOPE OF SECTION 504

A. A Seriously IIl Infant Is Not An “Otherwise

Qualified” Handicapped Individual

B. Medical Treatment Decisions Do Not Involve

“Discrimination” By A Federally Assisted

e

C. Petitioner's Final Rule Would Unnecessarily

Intrude Into Medical Treatment Decisions

And Improperly Require Affirmative Action

SEIS Sr

CONGRESS DID NOT INTEND THAT SEC-

TION 504 SERVE AS THE BASIS FOR FED-

ERAL INTERVENTION IN INDIVIDUAL

MEDICAL TREATMENT DECISIONS

(iii)

Page

11

14

iv

TABLE OF CONTENTS—Continued

Page

A. The Child Abuse Amendments Represent

Congress’ Belief That Medical Treatment

Decisions Regarding Seriously Ill Infants

Are Best Dealt With Under Existing State

es .-- - 5 ® enseeeteeeniameniniives 19

B. Congress’ Goal In Enacting Section 504 Was

To Increase Access To Federally Funded

Programs, Not To Intrude Into Individual

Medical Treatment Decisions ......................... 22

C. Petitioner’s Analogy To Title VI Is Inap-

ee 25

D. Petitioner’s Analogy To A Specific Statute

Prohibiting Discrimination In Medical Treat-

ment On The Basis Of Alcohol Abuse Is

111888888 —— ——̃ —„—-— 26

„ . 28

V

TABLE OF AUTHORITIES

Cases: Page

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

1975), cert. denied, 429 U.S. 817 (1976) 21

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

American Academy of Pediatrics v. Heckler, 561

F. Supp. 395 (D.D.C.), appeal dismissed, No.

83-1407 (D.C. Cir. Aug. 4, 1983) .......................... passim

American Public Transit Association v. Lewis, 655

FP 8. RI GS eee 15

Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940).. 21

Bell v. Board of Education, Akron Public Schools,

" Bs EF FF fe | 13

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

r 21

Community Television of Southern California v.

Gottfried, 459 U.S. 498 (1983) 25

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

d 22, 25

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

ANS, SR Se ae a AE EP nee eee 15

Duke v. University of Texas at El Paso, 663 F.2d

522 (5th Cir. 1981), cert. denied, 105 S. Ct. 386

117 ·*m»p˙1wx —??.. 27

Goldsboro City Board of Education v. Wayne

County Board of Education, 745 F.2d 324 (4th

. 13

Grove City College v. Bell, 104 S. Ct. 1211 (1984) 13

In re Infant Doe, No. GU 8204-004 A, slip. op.

(Monroe County Cir., Apr. 12, 1982), writ of

mandamus dismissed, sub nom. State ex rel.

Infant Doe v. Baker, No. 482 S 140 (Ind. May

27, 1982), cert. denied, 104 S. Ct. 394 (1983) 14

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

1981), cert. denied, 457 U.S. 1133 (1982) 21

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

r 21

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

e . LES a ee 21

Southeastern Community College 1 v. Davis, 442

yh RR ARI aR 9, 14-15, 25

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. University Hospital, State Uni-

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

104 ( . |) en passim

Uptagrafft v. United States, 315 F.2d 200 (4th

Cir.), cert. denied, 375 U.S. 818 (1963) -............ 28

Statutes and Regulations:

Child Abuse Amendments of 1984, Pub. L. No. 98-

OR ST SE 19

E..... 19

BS | 1!1łꝶk¼ 22

Civil Rights Act of 1964, Pub. L. No. 88-352, 78

Stat. 252, Title VI (codified at 42 U.S.C. §§ 2000d

!—E: 25

Comprehensive Alcohol Abuse and Alcoholism Pre-

vention, Treatment and Rehabilitation Act of

1974, Pub. L. No. 93-282, § 121(a), 88 Stat. 130

(codified at 42 U.S.C. § 4581 (a) ) -.......................- 28

Comprehensive Alcohol Abuse and Alcoholism Pre-

vention Treatment and Rehabilitation Act

Amendments of 1976, Pub. L. No. 94-371,

§ 11 (a), 90 Stat. 1041 (codified at 42 U.S.C.

OE ET ETAL SAID TECTIA 26, 28

Rehabilitation Act of 1973, Pub. L. No. 93-112,

§ 504, 87 Stat. 355, 29 U.S.C. 8794 passim

§ 7(6), Pub. L. No. 93-112, 87 Stat. 358 23

Rehabilitation Act Amendments of 1974, Pub. L.

No. 93-516, § 111 (a), 88 Stat. 1619 23

Social Security Act of 1965 as amended, Pub. L.

No. 89-97, 79 Stat. 291, Title XVIII (codified at

e ee eee 24

J ibccciccinccniepninnnteninisittities 16

.... 12

. 10, 11, 12-13

Legislative and Regulatory Materials:

119 Cong. Rec. 24,587 (daily ed. July 18, 1973) 23

130 Cong. Rec. 88953 (daily ed. June 29, 1984) 22

130 Cong. Rec. 88956 (daily ed. June 29, 1984) 20

vii

TABLE OF AUTHORITIES—Continued

130 Cong. Rec. 812392 (daily ed. Sept. 28, 1984)

e

50 Fed. Reg. 14878 (1985) ————————

r Eeeeeen a seran NII

S. Rep. 1297, 93d Cong., 2d Sess. (1974), reprinted

in 1974 U.S. Code Cong. & Ad. News 6373........

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

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

„ c

Miscellaneous:

Affidavit of Hubert A. Ritter, M.D. submitted by

the American Medical Association in American

Hospital Association v. Heckler, Nos. 84-6211,

e eiiseeeninnees

Arras, Toward An Ethic of Ambiguiiy, 14 Hast-

ings Center Report 25 (1984)

Brief for the United States, United States v. Uni-

versity Hospital, State University of New York

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

Avery, Neonatology: Pathophysiology and Man-

agement of the Newborn (2d ed. 1981) ................

Comments of the American Academy of Pediatrics

(Feb. 8, 1985) on Proposed Rule Regarding Child

Abuse and Neglect Prevention and Treatment

Program and interim Model Guidelines for In-

fant Care Review Committees (49 Fed. Reg.

48160 and 49 Fed. Reg. 48170 (Dec. 10, 1984) )..

Holder, Parents, Courts and Refusal of Treatment,

108 Pediatrics 615 (1988) .....................................

Pless, The Story of Baby Doe, 309 New Eng. J.

e ....

President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havioral Research, Deciding to Forego Life-

Sustaining Treatment (1983)

Stahlman, Newborn Intensive Care: Success or

Failure ?, 105 Pediatrics 162 (19843)

Sutherland, Statutory Construction (4th ed. 1984) ..

Vidyasagar, & Sarnaik, Neonatal and Pediatric In-

tensive Care (1985)

Page

22

19-20

8, 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1529

MARGARET M. HECKLER, SECRETARY OF HEALTH

AND HUMAN SERVICES,

- Petitioner,

AMERICAN HOSPITAL ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE

AMERICAN ACADEMY OF PEDIATRICS,

AMERICAN PEDIATRIC SOCIETY,

SOCIETY FOR PEDIATRIC RESEARCH,

ASSOCIATION OF MEDICAL SCHOOL

PEDIATRIC DEPARTMENT CHAIRMEN AND

WESTERN ASSOCIATION OF CHILDREN’S HOSPITALS

The American Academy of Pediatrics (the Academy“),

the American Pediatric Society, the Society for Pediatric

Research, the Association of Medical School Pediatric De-

partment Chairmen and the Western Association of Chil-

dren’s Hospitals submit this brief amici curiae in sup-

port of Respondents American Hospital Association, et al.

and in opposition to the brief filed by Secretary Margaret

M. Heckler (“the Secretary”) of the Department of

Health and Human Services {“HHS”). It is accompanied

by written consents from Petitioner and Respondents.

2

INTEREST OF AMICI CURIAE

The Academy is a non-profit organization of more than

28,000 board-certified pediatricians who are the individ-

uals most intimately involved in caring for seriously ill

infants. Most of the Academy’s members practice medi-

cine in hospitals which would be affected by any decision

of this Court concerning the application of Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, to

medical treatment of seriously ill infants. Further, the

Academy’s Committees on Children with Disabilities and

Bioethics have coordinated educational programs on medi-

cal treatment decisions involving handicapped children,

and have developed statements of bioethical principles for

Academy adoption.

The Academy has also been actively involved in judicial

and administrative proceedings considering the applica-

bility of Section 504 to medical treatment decisions. The

Academy was the lead plaintiff in American Academy of

Pediatrics v. Heckler, 561 F. Supp. 395 (D.D.C.), ap-

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

(“AAP v. Heckler’’|, which invalidated an “interim final

rule“ promulgated under Section 504 concerning discrimi-

nation against handicapped infants. Second, the Academy

commented on proposed rules regarding discrimination

on the basis of handicap in medical] treatment of infants.

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

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

11-111).

The American Pediatric Society, the Society for Pediat-

ric Research and the Association of Medical School Pedi-

atric Department Chairmen (“AMSPDC”) represent the

faculty and leadership of academic pediatric departments.

Membership in the American Pediatric Society and the

Society for Pediatric Research is conferred on the basis

1 J.A. —— refers to the Joint Appendix.

3

of scholarship, research, and contributions to pediatric

education. AMSPDC members are responsible for operat-

ing the departments of pediatrics of virtually every major

tertiary care center in which neonatal intensive care units

are located. This case arises in large degree from the

advances in pediatric care made by these physicians which

make it possible to extend the lives of many disabled and

premature infants.

The Western Association of Children’s Hospitals

(“WACH”) is a non-profit organization of nine hospitals

providing most of the tertiary and much of the primary

care to seriously ill infants in the western portion of the

United States. WACH was founded to promote recogni-

tion of the special needs and circumstances of children’s

hospitals in formulating public health care policy. Mem-

bers of WACH commented on the proposed rules which,

in revised form, are at issue in this case. Thus, WACH

and its members have a direct interest in the case cur-

rently before this Court.

SUMMARY OF ARGUMENT

Petitioner invokes Section 504 to regulate individual

medical treatment decisions involving critically ill infants.

She entirely ignores the intrinsic complexity both of the

medical conditions suffered by such infants and the medi-

cal decision making which accompanies them.

Petitioner suggests a paradigm case in which an in-

fant possesses a static disability on the one hand, and a

separate, easily treatable medical condition on the other.

In fact, most infants subject to Petitioner’s rule suffer

from myriad, interrelated medical conditions, none of

which can be characterized as static disabilities, and none

of which are easily treatable. Moreover, the infants’ medi-

cal conditions fluctuate continuously, so that the prognoses

change from moment to moment. These factors render

impossible any determination of “discrimination” under

Section 504.

1

The very language of Section 504, and the case law in-

terpreting it, demonstrate that the statute does not au-

thorize federal intervention into treatment decisions for

critically ill infants. Because there exists no “customary”

standard of medica! care applicable to all infants, it is

impossible to determine whether a particular infant is

“otherwise qualified” for a particular treatment. Second,

the medical treatment decisions Petitioner seeks to regu-

late involve no “discrimination” by a federally-funded pro-

gram or activity. Treatment decisions concerning criti-

cally ill infants are made by parents, who are not recipi-

ents of federal funds. Petitioner’s convoluted attempt to

involve hospitals in the decision-making process fails, since

Section 504 does not require a recipient of federal funds

to invoke the protections of a state child abuse program.

Moreover, Petitioner cites no evidence that hospitals are

ignoring their state reporting duties. Third, Petitioner’s

regulations constitute a burdensome and harmful intru-

sion into ongoing treatment, encouraging painful over-

treatment and jeopardizing the quality of care received

by the very infants Petitioner purports to protect.

Finally, the legislative history of Section 504 is devoid

of any indication that Congress intended the statute to

permit federal regulation of individual medical treatment

decisions. Further, when Congress ultimately did address

the issue of appropriate care for critically ill infants, it

specifically decided that such issues should be left to the

states.

5

ARGUMENT

I. PETITIONER’S CONCEPT OF “DISCRIMINATION”

UNDER SECTION 504 FAILS TO ACCOUNT FOR

THE COMPLEXITY OF MEDICAL CASES AND

MEDICAL DECISION MAKING

As pediatricians involved in the daily care of seriously

ill infants, amici are concerned that Petitioner has dra-

matically oversimplified the complex medical decision mak-

ing which she intends to regulate under Section 504. Ser-

iously ill infants typically suffer from complicated and

interrelated medical conditions, which can change day to

day, hour to hour. Medical decision making involves

evaluation of complex and fluctuating factors, and the

medical condition to be treated is often inseparable from

the putative “handicap”; hence, the notion of “discrimina-

tion,” which is the core of Section 504, has no application.

A. Seriously III Infants Do Not Present Simple,

Straightforward Cases

Petitioner premises her Section 504 analysis on the case

of the so-called “Baby Doe” infant in Bloomington, In-

diana, a child born with several serious disabilities in-

cluding Down’s Syndrome and a tracheoesphageal fistula,

an abnormal connection between the trachea and esophagus

which prevents normal eating, but which is surgically

correctable.’ Petitioner argues that if a federally-assisted

hospital withholds surgery to correct the intestinal prob-

lem solely on the basis of the child’s anticipated mental

retardation, when the hospital would perform the surgery

for a “normal” child, the hospital has “discriminated”’

2 Petitioner even misstates the facts of that case. At birth, the

infant known as “Baby Doe” was preliminarily diagnosed as having

a deformed heart. Although an autopsy on the child ultimately indi-

cated no heart problems, at the time that the treatment decisions

were being made, the potential heart defect was a serious considera-

tion. See Pless, The Story of Baby Doe, 309 New Eng. J. Med. 664

(Sept. 15, 1983).

6

against the child “solely by reason of his handicap” in

violation of Section 504. Brief for Petitioner (Pet. Br.“

at 15.

Petitioner’s hypothetical application of Section 504 is

thus premised on a simple, straightforward case in which

one of the infant’s conditions can be characterized as a

“static” disability, and the other as a condition requiring

medical treatment. In fact, the vast majority of critically

ill infants in pediatric intensive care units who would

come under Petitioner’s regulations are not so afflicted,

but suffer from multiple, interrelated medical conditions,

to which the analysis of Petitioner’s paradigm case is

wholly, inapplicable.

Premature infants constitute the largest percentage of

infants in pediatric intensive care. These infants, par-

ticularly extremely premature infants (24-30 weeks’ ges-

tation and one to three pounds weight), may suffer from

a multitude of interrelated problems, including: severe

asphyxiation at birth; respiratory distress syndrome; com-

promised intestinal function; heart defects with congestive

pulmonary failure; meningitis; septicemia; and immature

organs, such as the brain and retina. See, e.g., G. Avery,

Neonatology: Pathophysiology and Management of the

Newborn 241-55 (2d ed. 1981) [“Avery”]; Stahlman,

Newborn Intensive Care: Success or Failure? 105 Pedi-

atrics 162, 163-64 (1984).

Besides premature infants, other seriously ill infants

suffer from such diverse and often interrelated disabilities

as myelomeningocele (spina bifida) ; hydrocephalus (ac-

cumulated fluid in the cranial vault) ; anencephaly (ab-

sence of the cranial vault) ; and Trisomy 13 and Trisomy

18 (chromosomal defects resulting in a variety of medical

disabilities). See generally Avery at 870-89, 944-46. For

example, “Baby Jane Doe,” the infant in United States

v. University Hospital, State University of New York at

Stony Brook, 729 F.2d 144 (2d Cir. 1984) [“University

Hospital“ ], suffered from multiple birth defects, includ-

7

ing: microcephaly, an abnormally small head; hydro-

cephalus; inability to close her eyes or achieve sucking

action; a malformed brain stem; upper extremity spastic-

ity; and a thumb implanted in her fist. Jd. at 146. In

contrast to the hypothetical infant relied on by Petitioner,

seriously ill infants do not present simple, straightfor-

ward treatment decisions which can be viewed as involv-

ing any sort of “discrimination.”

B. Medical Decision Making Does Not Involve Isolated

Treatment Decisions

In Petitioner’s paradigm case, the pediatrician need

only make one treatment decision: whether to perform

surgery to correct an intestinal problem. See Pet. Br. at

15. Yet just as seriously ill infants do not suffer from

static, isolated medical conditions, medical care of seri-

ously ill infants rarely involves an isolated decision to

treat one malady. Rather, pediatric care involyes numer-

ous treatment decisions which are typically based on an

uncertain prognosis. Arras, Toward an Ethic of Am-

biguity, 14 Hastings Center Report 25, 27 (Apr. 1984).

The pediatrician must assess, often without reliable medi-

cal data, the likelihood of successful treatment, the risk

of damage to the infant from the therapy, the effect on

the child of protracted artificial life-support care, and

the pain and suffering of continued treatment. Treatment

may be life-saving, but the result of the therapy could

cause other damage. For instance, use of mechanical ven-

tilation with high levels of oxygen on a premature infant

can cause blindness, a scarred trachea or severely dam-

aged lungs. See D. Vidyasagar & A. P. Sarnaik, Neonatal

and Pediatric Intensive Care 350 (1985); Avery at 13.

Treatment of premature infants in particular requires an indi-

vidualized assessment of all of the infants’ complex and constantly

changing medical conditions, including the immaturity of many

organs:

8

The physician’s ability to determine the child’s prog-

nosis is complicated by the child’s constantly changing

medical conditions—what the University Hospital court

termed the “fluid context of medical treatment decisions.”

729 F.2d at 156. The medical conditions of seriously ill

infants can change minute to minute and hour to hour,

often evading certain prognosis. See Avery at 13. The

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Bioethical and Behavioral Research,

Deciding to Forego Life-Sustaining Treatment (1983)

President's Commission Report“ ] observed that [f] re-

quently . . . the prospect of long term survival and the

quality of that survival remains unclear for days, weeks,

and months, during which time the infants may have an

unpredictable and fluctuating course of advances and set-

backs.” Id. at 221 (emphasis added).

Petitioner’s argument that withholding medical treat-

ment from a disabled infant subject Isi. . . [the in-

fant] .. to discrimination” within the meaning of Sec-

tion 504 thus grossly oversimplifies the medical decision-

making process. The spectrum of medical conditions in-

volved, and the numerous medical decisions necessary to

respond to them, change cont'nually. The result, as ex-

plained by the Second Circuit, is that:

{[w]here the handicapping condition is related to the

condition(s) to be treated, it will rarely, if ever, be

possible to say with certainty that a particular de-

cision was “discriminatory.”

The major therapeutic challenge in managing these very im-

mature infants is not so much the specific treatment of disease

entities as it is the control of the many pathophysiologic de-

rangements resulting from prematurity itself.

Avery at 241.

Indeed, in its brief in University Hospital, the government con-

ceded this point, arguing there that it needed constant access to

updated medical records because [medical decision making is a

dynamic process.” Brief for the United States in University Hos-

pital at 24.

|

9

University Hospital, 729 F.2d at 157. The treatment de-

cision posited by the Secretary is a simple one; the re-

ality is a far more complex one where differing medical

conditions justify different treatment for individual in-

fants. See Arras at 26. Thus, a decision which may in

Petitioner’s view constitute “discrimination” at one mo-

ment may become a bona fide medical judgment—con-

cededly outside the scope of Section 504—the next. With

the threat of federal intervention, adverse publicity, liti-

gation, and pcssible loss of funding, the effect of the

regulations would be to require treatment even where con-

traindicated, a gross intrusion into difficult and complex

medical decisions.

II. REGULATING THE MEDICAL TREATMENT OF

_ SERIOUSLY ILL INFANTS EXCEEDS THE SCOPE

OF SECTION 504

Section 504 is generally designed to assure meaningful

access by otherwise qualified handicapped individuals to

federally-funded programs. See Alexander v. Choate, 105

S. Ct. 712, 721 (1985). The language of the statute and

the case law interpreting it uniformly establish that it

has a limited scope. First, it only prohibits discrimina-

tion against “otherwise qualified” handicapped individ-

uals. Second, Section 504 only prohibits discrimination

under a program or activity receiving federal financial

assistance. Third, the provision cannot be interpreted to

impose unwarranted affirmative action burdens on pro-

viders. Petitioner’s expansive reading of Section 504 ig-

nores each of these limitations.

A. A Seriously III Infant Is Not An “Otherwise Quali-

fied” Handicapped Individual

This Court, in Southeastern Community College v.

Davis, 422 U.S. 397, 406 (1979), held that an “otherwise

qualified” individual within the meaning of Section 504

is “one who is able to meet all of the program’s require-

ments in spite of his handicap.” In the context of health

10

services, Petitioner argues that if a hospital offers a par-

ticular treatment that the infant requires, then the in-

fant is “otherwise qualified,” as long as such treatment

would be “medically beneficial.” Pet. Br. at 22-24. Peti-

tioner suggests that a determination of medical benefit is

easy because it is “the sort of judgment that health care

professionals are accustomed to making on behalf of all

of their patients.” Pet. Br. at 25-26. Petitioner’s inter-

pretation of the “otherwise qualified” statutory require-

ment, however, completely ignores the complexity of such

medical judgments.

First, “medical benefit” has no intrinsic meaning.

Whether a particular child would “medically benefit”

from a particular course of treatment depends on that

child’s prognosis, and is therefore inherently individual-

ized—hardly a “bona fide standard” of “general applica-

bility” which Petitioner admits is the relevant determina-

tion of “otherwise qualified” under Section 504. See Pet.

Br. at 22. As Judge Gesell stressed in AAP 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).

Second, as noted above, a seriously ill infant’s medical

conditions are constantly changing. Given the “fluid”

nature of these medical conditions, during one hour an

infant could be deemed “otherwise qualified” because

treatment would be “medically beneficial,” but the next

hour fail Petitioner’s “otherwise qualified” test because

treatment would be futile or merely temporarily prolong

the act of dying. See 45 C.F.R. Pt. 84, App. C ff (a) (2)

(J.A. 122).

Petitioner is unable to respond to the inherent diffi-

culty of determining whether a seriously ill infant is

“otherwise qualified” given the reality of constantly

changing medical conditions. Petitioner argues that fed-

erally-funded educational or physical rehabilitation pro-

11

grams, which are clearly covered by Section 504, also

must account for fluctuations and developments in a

child’s physical and mental condition. Pet. Br. at 26

n.15. The two situations are easily distinguishable.

First, while the child’s mental or physical conditions may

fluctuate in an educational setting, the fluctuations are

not life-threatening, and do not change on a minute-by-

minute basis. More importantly, decisions in the educa-

tional setting are made by schools and teachers, and not,

as under Petitioner’s final rules, by the federal govern-

ment. Generally, the role of the federal government has

been to ensure that schools have programs available

which will respond to the individual needs of handicapped

students. There can be no question that the health care

services available for the treatment of seriously ill in-

fants satisfy that test. The Secretary wishes to go much

further in the hospital context than making sure services

are available; rather, she would intrude into individual

treatment decisions—a role beyond the scope of Section

504.

B. Medical Treatment Decisions Do Not Involve “Dis-

crimination” By A Federally-Assisted Program or

Activity

Petitioner also fails to make out a case of discrimina-

tion. Section 504 by its plain language only prohibits

discrimination against handicapped individuals “under a

program or activity receiving federal financial assist-

ance.” Petitioner concedes she cannot regulate parents’

decisions concerning treatment for their children, be-

cause parents are not recipients of federal financial as-

sistance. 45 C. F. R. Pt. 84, App. C ff (a) (4) (J.A. 122).

She has retreated, therefore, to postulating a case

whereby a federally assisted hospital potentially discrim-

inates against critically ill infants. Petitioner argues

that if a hospital “refused to furnish treatment to a

handicapped infant, even though it would furnish the

treatment to a nonhandicapped child, the infant has,

‘solely by reason of his handicap,’ been ‘denied the bene-

12

fits of’ and been ‘subjected to discrimination under’ the

federally assisted program.” Pet. Br. at 13. Alterna-

tively, Petitioner argues that, where the parents have

withheld their consent to treatment, the hospital’s refusal

to notify the state child protective services (“CPS”)

agency or to petition a state court for an order directing

treatment, subjects the handicapped infant to discrimina-

tion under the hospital’s federally-assisted program if the

hospital would have undertaken such efforts for other

children in similar circumstances. Id.

Petitioner's argument again is divorced from medical

reality. Petitioner can point to no case because no case

exists where a hospital has refused to treat a handi-

capped child against the wishes of the parents and the

treating physician. Hospitals are always prepared to

render services when the parents, in consultation with

the treating physician, determine that treatment is med-

ically indicated. In University Hospital, for example, the

hospital was at all times willing to perform the treat-

ment at issue, but lacked the legal authority to do so

without parental consent. University Hospital, 729 F.2d

at 148. If requiring hospitals to make treatment avail-

able is the focus of Petitioner’s application of Section

504, she has no basis for imposing any regulation, for the

“problem” simply does not exist.

Recognizing that she cannot directly regulate parental

treatment decisions, and identifying no case where 2

hospital refused to treat a disabled infant against the

wishes of the infant’s parents, and, finally, conceding

that hospitals lack the legal authority under state law to

treat an infant sua sponte without parental consent, Pe-

titioner is forced to make a different argument: that a

hospital would violate Section 504 not by any act or

omission in treatment but instead if it refused to execute

its duty under state law to report to the state CPS agency

known or suspected cases of unlawful medieal neglect.

Pet. Br. at 13; see 45 C. F. R. § 84.55 (e) and 45 C. F. R.

— —5i

—

13

Pt. 84, App. C, 7 (a) (4) (J. A. 122). There are several

problems with this tortured analysis.

First, the legislative history of Section 504 is devoid of

any indication that Congress intended a federal statute

to enforce a recipient’s state law duties. See infra, pp.

18-25. Section 504 was intended to require recipients of

federal funds to provide access to the programs and ac-

tivities for which the recipient receives such funds. Alez-

ander v. Choate, 105 S. Ct. at 721. Here, Petitioner con-

strues Section 504 to require the hospital to provide ac-

cess to a “program” wholly beyond its federally-funded

program of furnishing health care—state administrative

and judicial proceedings.“

In Bell v. Board of Education, Akron Public Schools,

683 F.2d 963, 968 (6th Cir. 1982), a case arising under

Title VI of the Civil Rights Act in the context of school

desegregation, the Sixth Circuit held that where there

had been discriminatory practices by federal and state

housing authorities, it would place “too heavy a burden”

on the school board to require the board to go beyond the

scope of its program (education) to remedy discrimina-

tion by another program (housing). See also Goldsboro

Board of Education v. Wayne County Board of Educa-

tion, 745 F.2d 324, 328 (4th Cir. 1984) (“[a]n inde-

pendent school district which has not caused segregation

in a neighboring independent district has no duty to

rectify a racial imbalance in the other district”). Sim-

ilarly, Section 504 prohibits discrimination and requires

remedial action only within the hospital’s own program,

i.e., furnishing health care.

5 This Court has recognized that simply because an entity receives

federal funds does not mean that every action taken by that entity

is subject to Section 504. Rather, the antidiscrimination prohibition

only applies to the “program or activity” receiving federal funds.

Grove City College v. Bell, 104 S. Ct. 1211, 1220-22 (1984). Peti-

tioner does not suggest, and certainly has no administrative record

to support any contention, that federal funds are provided to hos-

pitals to support their reporting duties.

14

Second, Petitioner cites no evidence that hospitals are

ignoring their state reporting duties. Even in Petition-

er’s paradigm case of Bloomington “Baby Doe,” when the

infant’s parents decided to withhold surgery, the attor-

ney for the hospital promptly notified the county circuit

court to arrange for a hearing. In re Infant Doe, No.

GU 8204-004A, slip op. at 2 (Monroe County Cir., Apr.

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

ex rel. Infant Doe v. Baker, No. 482 S 140 (Ind. May 27,

1982), cert. denied, 104 S. Ct. 394 (1983). See also

Holder, Parents, Courts and Refusal of Treatment, 103

Pediatrics 515, 516 (Oct. 1983). In Petitioner’s pre-

amble to the final rule, she describes numerous instances

where hospitals, on their own initiative, notified the state

CPS agency pursuant to state law, but she was unable

to point to even one case where a hospital failed to in-

voke such procedures. See 49 Fed. Reg. 1646-49 (J.A.

96-106). The “problem” Petitioner identifies simply does

not exist.

Third, and most important, the need to ensure proper

reporting of medical neglect was directly addressed in

the Child Abuse Amendments of 1984. See infra pp. 19-22.

Congress’ enactment of specific legislation building on

existing state procedures for dealing with child abuse

and neglect indicates its determination that such proce-

dures already protect child welfare. Petitioner’s inter-

pretation of Section 504 to permit intrusive federal in-

vestigation and enforcement of this state law function is

thus unnecessary, duplicative and potentially disruptive

to furnishing pediatric care.

C. The Regulations Unnecessarily Intrude Into Medi-

cal Treatment Decisions And Would Improperly

Require Affirmative Action By Hospitals

This Court also recognized in 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

15

practical nurse contended that her denial of admission to

a college nursing program on the basis of her hearing dis-

ability violated Section 504. As part of her argument,

she asserted that regulations implementing Section 504

required 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-

to eliminate discrimination against otherwise

qualified individuals, they would do gore than clar-

ify the meaning of § 504. In ead, they would con-

stitute 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 hand-

icapped persons and affirmative efforts to overcome the

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

This Court found that Section 504 does not require insti-

tutions to take substantive steps outside of their ordinary

programs to eliminate or overcome handicaps. Id. at 413.

See also Doe v. New York University, 666 F.2d 761, 775

(2d Cir. 1981) (school “not obligated by the Act to alter,

dilute or bend [its admission standards] to admit the

handicapped applicant”).

This Court has also recognized that Section 504 must

be kept “within manageable bounds.” Alexander v.

Choate, 105 S. Ct. at 720-21 n.20. Further, it cannot

serve as a basis for a “burdensome . . . mandate” on fed-

erally-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 against which

these decisions cautioned. Under Petitioner’s rules, non-

medical teams of HHS employees, designated by HHS as

16

“Baby Doe Squads,” are granted expedited access to in-

vestigate reports of suspected discriminatory treatment

of infants, including anonymous reports to HHS’ “hot-

line.” See 45 C.F.R. § 84.55. In AAP v. Heckler, Judge

Gesell concluded that the intrusion of these “Baby Doe

Squads” imposed unwarranted burdens on hospitals, and

endangered the health of the infant:

[Alny anonymous tipster, for whatever personal

motive, can trigger an investigation involving imme-

diate 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.

AAP v. Heckler, 561 F. Supp. at 399 (footnote omitted).

Judge Gesell’s conclusion that the quality of care suf-

fers from such intrusive federal regulations is well

documented. In one instance at Vanderbilt University

Hospital, a “hotline” call alleged—without basis—that

the hospital was not providing proper care to ten chil-

dren. The call resulted in a time-consuming and disrup-

tive Baby Doe squad investigation that took 39 hours

from doctors and nurses who would have otherwise spent

their time caring for patients.“ Moreover, the investiga-

tion disrupted the medical care given the ten patients

involved. One child’s surgery had to be postponed and

another remained in the pediatric intensive care unit

® Affidavit of Norman B. Urmy, Director, Vanderbilt University

Hospital, [10 (J. A. 185).

17

longer than necessary because the HHS investigators

held necessary medical records.“

In another instance, an anonymous “hotline” call was

triggered by a newspaper article stating that conjoined

twins at Strong Memorial Hospital at the University of

Rochester might not survive. The call led to a disorgan-

ized and time-consuming investigation by a Baby Doe

squad.“ The investigators argued among themselves as

to which HHS office was entitled to the medical infor-

mation, and then flew in a Virginia neonatologist with-

out having even obtained the parents’ consent to examine

the children.“ Although HHS investigators later con-

firmed that the care provided was exemplary, they re-

fused at the time to issue a public statement retracting

their allegations that would counter the trauma experi-

enced by parents and the community from newspaper

reports of the incident. The unwarranted investigation

created fears in parents of other critically ill children as

to the adequacy of the hospital's care, prompting one

family to have its seriously ill child discharged—based

on the unfounded fear that the hospital was intention-

ally harming children—before treatment was complete.“

Clearly Congress did not intend Section 504 to authorize

intervention which would harm the very individuals it

is purporting to protect from discrimination.

In AAP v. Heckler, Judge Gesell observed in invalidat-

ing Petitioner’s interim rule that “many highly relevant

factors central to any application of Section 504 to medi-

Id. 11 (J. A. 185).

8 Affidavit of Paul M. Rosenberg, Associate Director, Fiscal &

Administrative Services, Strong Memorial Hospital, University of

r., 116 (J.A. 178).

1] 8-13 (J.A. 179-80).

16 (J. A. 181).

18

cal care of the newborn infants were not considered prior

to promulgation of the challenged rule.” 561 F. Supp. at

399. Despite renewed rulemaking proceedings and

slightly modified final rules, Petitioner to date has still

failed fully to consider or address the serious implica-

tions of her rules, including the disruption, delay, and

complications of federal investigators intruding in on-

going treatment of seriously ill infants, and the risk of

painful overtreatment.’ The regulations promulgated

under Section 504 require just the sort of affirmative

burden and disruption to federally-assisted programs

which this Court has repeatedly found to be beyond Con-

gress’ intention in adopting Section 504.

III. CONGRESS DID NOT INTEND THAT SECTION 504

SERVE AS THE BASIS FOR FEDERAL INTER-

VENTION IN INDIVIDUAL MEDICAL TREAT-

MENT DECISIONS

The expansive reading of Section 504 urged by Peti-

tioner is also unsupported by the statute’s legislative his-

tory and Congress’ subsequent legislation concerning

treatment decisions involving seriously ill infants.

Equally unpersuasive is Petitioner’s attempt to find con-

gressional support for her interpretation by analogy to

other statutes. Petitioner cannot cite any evidence that

Congress intended Section 504 to authorize intervention

in the critical care nursery in the manner contemplated

by her rules.

11 See Affidavit of Hubert A. Ritter, M.D., obstetrician-

gynecologist and clinical professor at St. Louis University School of

Medicine, submitted by the American Medical Association in the

Joint Appendix of American Hospital Associatior v. Heckler, Nos.

84-6211, 84-6213 (2d Cir. 1984) at 155 {10 (regulations encourage

physicians to recommend over treatment in particular cases to avoid

investigations as to whether the failure to offer treatment consti-

tutes “discrimination,” even though such treatment may not be in

the best interest of the child).

19

A. The Child Abuse Amendments Represent Congress’

Belief That Medical Treatment Decisions Regarding

Seriously Ill Infants Are Best Addressed Under

Existing State Mechanisms

The only occasion on which Congress has specifically

addressed the subject of medical care of seriously ill in-

fants is in the Child Abuse Amendments of 1984, Pub.

L. No. 98-457, 98 Stat. 1749 et seg. [“Amendments”]. The

Amendments demonstrate Congress’ belief that medical

treatment decisions regarding seriously ill infants shouid

be dealt with under existing state administrative and

judicial procedures. Under the Amendments, to receive

grants for its CPS system, a state must establish proce-

dures for: (1) consultation with designated individuals

in hospitals; (2) notification of cases of suspected medi-

cal neglect (including instances of withholding of medi-

cally-indicated treatment from disabled infants with life-

threatening conditions); and (3) legal remedies, under

state law, for the CPS agency to prevent the withholding

of medically-indicated treatment frob disabled infants

with life-threatening conditions. Section 122 of the

Amendments, 98 Stat. 1752-53 (amending 42 U.S.C.

§ 5103(b) (2) (K)) ½ Petitioner admits that these proce-

12 The Secretary has issued final regulations implementing the

Amendments. 50 Fed. Reg. 14878 (Apr. 15, 1985). Pursuant to

the Amendments, the Secretary also issued Model Guidelines for

Health Care Providers to Establish Infant Care Review Committees

(“ICRCs”). 50 Fed. Reg. 14893 (Apr. 15, 1985). Amici strongly

support the establishment of review committees and bioethics com-

mittees to provide consultation and to ensure that sensitive treat-

ment decisions are made in a reasoned, informed and caring man-

ner. The President’s Commission Report also recommended intra-

institutional ethics committees to review treatment decisions involv-

ing seriously ill infants. President’s Commission Report at 226-27

(J.A. 190-91). According to the Academy’s 1984 survey of ICRCs

attached as Appendix II to Comments of the American Academy

of Pediatrics (Feb. 8, 1985) on Proposed Rule Regarding Child

Abuse and Neglect Prevention and Treatment Program and Interim

Model Guidelines for Infant Care Review Committees, 49 Fed. Reg.

20

dures are similar to regulations promulgated under Sec-

tion 504, the authority for which is at issue here. Pet.

Br. at 8 n.5.

The Amendments must be viewed in the context of

what Petitioner has conceded was an “extraordinary ef-

fort“ to enact legislation in this most sensitive area. 50

Fed. Reg. at 14879. In AAP v. Heckler, Judge Gesell

struck down the first “interim final rule,” finding that

HHS lacked a rational factual basis for the rule and that

the agency had failed to follow required notice and com-

ment procedures. 561 F. Supp. at 403. Judge Gesell

cited numerous shortcomings in the rule, including the

disruptive effect of HHS’ enforcement procedures in car-

ing for disabled newborns. Id. at 399. He also suggested

that this issue “be clarified by further congressional ac-

tion.” Id. at 402. HHS then issued a new proposed rule

and solicited public comment. While HHS was in the

process of preparing its final rule, the case of “Baby

Jane Doe” again raised the question of HHS’ authority

under Section 504 to intervene in medical treatment de-

cisions, which led, after extensive proceedings, to the

University Hospital decision.

Thus, in the fall of 1984 when Congress adopted the

Amendments, it was well aware of the serious legal and

policy questions raised by these cases regarding federal

regulation of medical treatment decisions. Since the

48160 and 49 Fed. Reg. 48170 (Dec. 10, 1984), many hospitals already

have an ICRC or bioethics committee, and the number of such com-

mittees is growing rapidly. Thus, the majority of hospitals which

would be subject to Petitioner’s rules already have a mechanism, in

conjunction with the state CPS system, to review cases of seriously

compromised infants and t ensure that when treatment is medically

indicated, the infant will receive appropriate care.

1 See, e.g., S. Rep. No. 246, 98th Cong. 2d Sess. 6-8 (1984), re-

printed in 1984 U.S. Code Cong. & Ad. News 2918, 2922-25; 130

Cong. Rec. 88956 (daily ed. June 29, 1984) (remarks of Sen.

Nickles). The Senate Report noted that “(t]he highly publicized

21

same congressional committees have jurisdiction over

both Section 504 and the child abuse and neglect grant

program, Congress could easily have overruled University

Hospital by expressly amending Section 504 to include

coverage of medical treatment decisions concerning dis-

abled infants. Instead, Congress chose to leave such is-

sues to the states, to carry out their traditional role in

the area of child abuse and neglect.

As recognized by this Court, the “failure of Congress

to alter [a statute] after it had been judicially con-

strued, and the enactment by Congress of legislation

which implicitly recognizes the judicial construction as

effective, is persuasive of legislative recognition that the

judicial construction is 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. 723, 732-33

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

Cir. 1981), cert. denied, 457 U.S. 1183 (1982). More-

over, the same congressional committee that originally

enacted Section 504 subsequently defined the scope of

the federal role in medical treatment decisions concerning

seriously ill infants; as such, that interpretation can be

considered “virtually conclusive” as to Congress’ 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 1369 (Ct.

Cl. 1975), cert. denied, 429 U.S. 817 (1976). Given Con-

gress’ clear decision to enact specific legislation govern-

ing medical treatment decisions involving disabled in-

fants, Petitioner’s contention that there is “firm support”

for her interpretation of Section 504 “at every stage of

recent cases have catapulted the issue of withholding treatment

from seriously ill infants into the public arena. . S. Rep. No.

246, 98th Cong. 2d Sess. 6 (1984), reprinted in 1984 U.S. Code

Cong. & Ad. News 2923.

22

the evolution” of legislation in this area is mere hyper-

bole.**

B. Congress’ Goal In Enacting Section 504 Was To

Increase Access To Federally Funded Programs,

Not To Intrude Into Individual Medical Treatment

Decisions

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). The legislative history of

Section 504 demonstrates that Congress did not contem-

plate federal regulation of medical treatment decisions.

14 In the Amendments, Congress adopted a “policy of neutrality”

regarding the application of Section 504 to medical treatment deci-

sions involving seriously ill infants. 130 Cong. Rec. 812392 (daily

ed. Sept. 28, 1984) (letter from sponsors Senators Hatch, Denton,

Nickles, Kassebaum, Dodd and Cranston). The Amendments state

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. Nevertheless, in addressing the

issue of medical care of disabled infants, Congress made a specific

decision to use the state CPS system rather than authorizing federal

intervention.

Moreover, Congress was so sensitive to the painstaking process

which led to the enactment of the Amendments that the Senate

sponsors prepared a Joint Explanatory Statement describing the

statute. In this statement, the sponsors identify the statement as

the “definitive legislative history” of the provisions and expressly

state:

Any remarks of individual Senators, including the principal

sponsors, on this legislation express only their personal views

and do not, therefore, constitute authoritative interpretation

or explanation of the measure.

130 Cong. Rec. 88953 (daily ed. June 29, 1984). Accordingly, Peti-

tioner’s references to passages in committee reports and debates

endorsing the application of Section 504 to treatment decisions of

seriously ill infants (Pet. Br. at 45 n.36) do not represent congres-

sional] intent and should not be considered by this Court.

23

In drafting Section 504, Congress initially was con-

cerned with discrimination against handicapped individ-

uals only in terms of employment. See, e.g., 119 Cong.

Rec. 24,587 (daily ed. July 18, 1973) (remarks of Sen.

Taft on S. 1875, 93d Cong., Ist Sess. 1973)).*° Later,

this goal was expanded in an effort to remove barriers to

access in education, transportation, and social services.“

Contrary to Petitioner’s assertion (Pet. Br. at 35-39),

that expansion in no way evidences an intent to author-

ize federal regulation of medical treatment decisions. To

the extent that Congress even contemplated “health serv-

ices” 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 able to meet a particular

program’s requirements despite their disability, a far

different situation than the regulation of individual med-

ical care contemplated here. 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 in

the legislative history to medicine or health services is in

tie context of access (as opposed to individual treat-

ment decisions) to nursing 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 individ-

ual constitutes or results in a substantial handicap to employ-

ment and (B) can reasonably be expected to benefit in terms

of employability from vocational rehabilitation services

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

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

L. No. 93-516, § 111 (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 (A) has a physica] or mental impairment which

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

activities, (B) has a record of such an impairment, or (C) is

regarded as having such an impairment.

24

Examples of handicapped individuals who may suf-

fer discrimination in the receipt of Federally-assisted

services but who may have been unintentionally ex-

cluded from the protection of Section 504 by the

references to enhanced employability in section 7 (6)

are as follows:

* „ * *

admission to Federally- assisted nursing homes on the

basis of their handicap.

Id.

In sum, no part of the language or legislative history

of the Rehabilitation Act of 1973 indicates a congres-

sional concern with individual medical decisions, much

less physician and parental decisions concerning complex

medical treatment for critically ill infants.“ In address-

ing the scope of Section 504 in the context of disparate-

impact discrimination, this Court expressly noted that if

Congress had 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 noth-

ing to suggest that such was Congress’ purpose.” Alez-

ander v. Choate, 105 S. Ct. at 720. The same is true

here. Had Congress intended Section 504 to reach medi-

cal decisions, some indication of this intent would be

evident in the legislative history. As noted by the Second

Circuit, “the failure of congress to focus on treatment

decisions involving defective newborn infants strikes a

7 In enacting Title XVIII of the Social Security Act (42 U.S.C.

§§ 1395 et seq.), commonly known as the Medicare program, Con-

gress specifically prohibited any federal officer or employee” from

exercising “any supervision or control over the practice of medicine

or the manner in which medical services are provided. 42

U.S.C. § 1395. Given this broad prohibition in a statute dealing

directly with the provision of health care, it is implausible that

Congress would have intended intrusive federal interference in

treatment decisions in a statute of general applicability.

25

telling blow to the government’s position.” University

Hospital, 729 F.2d at 160.“

C. Petitioner’s Analogy To Title VI Is Inapposite

Petitioner asserts that by patterning Section 504 after

Title VI of the Civil Rights Act, Pub. L. No. 88-352, 78

Stat. 252 (codified at 42 U.S.C. 88 2000d et seqg.), Con-

gress intended that Section 504’s prohibition against dis-

crimination because of handicap be construed as broadly

as Title VI’s prohibition against racial discrimination.

Pet. Br. at 30-31. Yet the very decisions of this Court

cited by Petitioner to support this assertion demonstrate

that Section 504 does not incorporate the sweeping pro-

hibition of discrimination on the basis of handicap that

Title VI mandates for discrimination on the basis of race.

Alexander v. Choate, 105 S. Ct. at 717 (“there are rea-

sons to pause before too quickly extending [case law inter-

preting Title VI] to § 504”); see also Consolidated Rail,

104 S. Ct. at 1254 n. 13. Indeed, this Court’s decisions

have recognized that Section 504 does not mandate a

total ban on distinctions in federally-funded programs

between individuals on the basis of handicap. See Davis,

442 US. 397; cf. Community Television of Southern

California v. Gottfried, 459 U.S. 498 (1983) (holding

that Section 504 does not require the Federal Communi-

cations Commission to alter its standard for reviewing

public television license renewal applications to include

consideration of the needs of the hearing-impaired).

Moreover, Petitioner proposes an overly simplistic

analogy between Title VI and Section 504. Petitioner

10 In AAP ». Heckler, 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 new-

born infants or establish standards for preserving a particular

quality of life.” 561 F. Supp. at 401 (emphasis added).

26

argues that Title VI prohibits a federally-assisted hos-

pital from refusing surgery on an infant solely because

of his race, and, hence, that Section 504 prohibits the

hospital from refusing surgery solely because of the in-

fant’s handicap. Pet. Br. at 31, 35-36. This argument

ignores the essential differences between race and hand-

icap in the context of medical decision making. First,

whereas race is a single factor wholly unrelated to med-

ical treatment, the “handicaps” to which Petitioner refers

are multiple medical conditions integrally related to the

medical conditions to be treated and are often an essen-

tial consideration in the decision as to what type of medi-

cal care is appropriate. See University Hospital, 729

F.2d at 156.

Second, whereas race is fixed and immutable, an in-

fant’s medical conditions are constantly changing. See

supra, pp. 8-10. Thus, while a decision to deny treat-

ment to a black infant on the basis of race will always

be discrimination under Title VI, no such finding of dis-

crimination is possible in the context of medical treat-

ment of a critically ill infant since different treatment

decisions must be geared to particular infants and their

changing medical conditions. Thus, Petitioner’s analogy

to Title VI is inapposite.

D. Petitioner’s Analogy To A Specific Statute Prohibit-

ing Discrimination In Medical Treatment On The

Basis Of Alcohol Abuse Is Inapposite

Petitioner also fails to show support for her Section

504 interpretation by analogy to a specific statute pro-

hibiting federally-funded medical facilities from discrim-

inating in admissions or treatment against alcoholics or

alcohol abusers because of their alcoholism (42 U.S.C.

§ 290dd-2(a)). Pet. Br. at 37-39. Alcohol and drug

abuse are fundamentally different types of “handicaps”

than the complex set of medical conditions affecting a

27

seriously ill infant. Alcohol and drug abuse, although

disabling in effect, by definition develop from external

factors in an individual’s environment. Moreover, drug

and alcohol abuse are treatable. A disabled infant’s

“handicap,” on the other hand, consists of congenital and

acquired impairments, which often are not treatable. To

equate alcohol and drug abusers with seriously ill infants

simply lacks any rational basis.

More importantly, Petitioner ignores the fundamental

fact that Congress enacted a specific statute to address

medical treatment decisions involving alcoholics and al-

cohol abusers, and, by implication, deliberately decided

against creation of a specific statute for seriously ill in-

fants. Petitioner apparently suggests that, since Con-

gress has expressly prohibited federally-funded facilities

from discriminating against alcoholics and alcohol abus-

ers in furnishing medical treatment, it intended that

Section 504 apply to all medical treatment decisions. Pet.

Br. at 37-39. That analysis ignores a basic rule of statu-

tory construction that where a statute specifically ad-

dresses one form of conduct and the persons to which it

refers, all omissions must be construed as exclusions. See

Duke v. University of Texas at El Paso, 663 F.2d 522,

526 (5th Cir. 1981), cert. denied, 105 S. Ct. 386 (1984)

(“the absence of a specific prohibition on the discrimina-

tory acts alleged. . supports an inference that the

legislature did not intend to outlaw other acts of employ-

ment discrimination by submerging an implied ban else-

where in the statute”) ; see generally Sutherland, Statu-

tory Construction § 47.23 (4th ed. 1984). Petitioner con-

cedes that Congress enacted “special statutory provisions

prohibiting discrimination against alcoholics and drug

abusers. ...” Pet. Br. at 41-42 (emphasis added). Since

Congress chose specifically to regulate medical treatment

involving alcohol abusers but not other patients, it must

be presumed that Congress did not intend, in enacting

28

Section 504, to intrude into other medical treatment de-

cisions.*®

CONCLUSION

For the reasons set forth herein, the decision of the

court below should be affirmed.

Respectfully submitted,

Of Counsel: STEPHAN E. LAWTON *

MICHAEL A. ROMANSKY — N. a

WENDY L. KRASNER IZABETH B. CARDER

yon — 2 & Dowp

ANNE W. HOGELAND ,

McDERMOTT, WILL & EMERY 1200 18th Street, N.W.

1850 K Street, N.W. Washington, D.C. 20036

Suite 500 (202) 331-8566

Washington, D.C. 20006 Attorneys for Amici Curiae

(202) 887-8000 American Academy of

Attorneys for Amicus Curiae Pediatrics, et al.

Western Association of

Children’s Hospitals Counsel of Record

November 4, 1985

19 Indeed, had Congress intended Section 504 to encompass all

medical treatment decisions, it would have had no reason in 1974 to

extend to all hospitals receiving federal financial assistance the

prohibition against discrimination on the basis of alcoholism (Pub.

L. No. 93-282, § 121(a), 88 Stat. 130 (codified at 42 U.S.C. § 4581 (a)

(1970 and Supp. IV 1974)), or, in 1976, further to amend the

provision to apply to federally-assisted outpatient facilities (Pub.

L. No. 94-371, §11(a), 90 Stat. 1041 (codified at 42 U.S.C. § 290dd-

2(a))). Congress cannot be presumed to have intended to enact

redundant and unnecessary statutory amendments. Uptagrafft v.

United States, 315 F.2d 200, 204 (4th Cir.), cert. denied, 375 U.S.

818 (1963).