# Amicus Curiae Brief — Bowen v. American Hospital Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0316%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 610 ## Text 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 — > — — — ow — co — — — — — — Fe) oe) cS 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0316%3A21. Public record. Not legal advice.