*1 HEALTH AND HUMAN OF BOWEN, SECRETARY v. AMERICAN HOSPITAL SERVICES ASSOCIATION et al. January Argued 1986 Decided June

No. 84-1529. *2 Stevens, J., judgment Court, announced the and delivered opinion Marshall, Blackmun, an in which Powell, JJ., joined. and Burger, J., judgment. White, J., C. concurred filed dissenting opinion, Brennan, J., joined I, II, IV, which and Parts and V of O’Connor, J., joined, which post, p. O’Connor, J., 648. filed a dissent- opinion, ing post, p. Rehnquist, J., 665. part took no in the consider- ation or decision of the case.

Deputy Assistant Attorney General Cooper argued cause for petitioner. With him on the briefs were Solicitor General Assistant Fried, Attorney General Reynolds, Dep- uty Kneedler, K. Wallace, Edwin S. Brian General Solicitor Landsberg, Mark L. Gross. Epstein L.

Richard for respondents the cause argued al. him on the Association et With brief American Hospital Kopit, Larry, H. David Gerson, M. William G. were Stuart Benjamin Heineman, Jr., W. Robert W. McCann. ar American Medical Associa for respondents cause gued Phillips, him on the brief were Carter G. tion et al. With Bierig, N. R. Ann Prada, Minow, Newton Jack F. Vincent Joseph Keyes, A. E. Jr.* Allen, of the Court judgment announced Stevens Justice an which Justice opinion, and delivered Jus- Marshall, *3 join. and Justice Powell Blackmun, tice whether certain question regula- This case presents of health care to handicapped tions governing provision 504 of the Rehabilitation Act by infants are authorized 1973. That section provides, part: As of amici curiae urging * Briefs reversal were filed for American Ellis and Ruth A. James W. Deficiency by on Mental et al. sociation Luckasson; et al. Coalition of Citizens with Disabilities for American Churchill, Gilhool, Laski, Timothy Michael K. Frank J. and Thomas by Cook; M. the United et the Associaion for Retarded Citizens of States for Gerry; Disability Martin H. by Rights Education Defense for the & al. Milstein; al. Barbara M. Fund, by et Inc., for Rutherford Institute et Jr., Bundren, Guy Farley, Knicely, 0. James J. John al. W. Charles by Kotouc, Bird, Whitehead, R. B. Thomas Wendell and William W. 0. Bopp, Jr., Hollberg; and Thomas J. by James for Carlton Johnson Marzen; Horan, McLone, Dennis J. D., et al. for David M. G. Quinlan. Rosenblum, Grant, R. K. and Maura Victor G. Edward Briefs of amici curiae urging affirmance were filed for the American Lawton, Goodman, by Stephan E. N. Jack Academy al. of Pediatrics et Hodges; Robert University A. of New York and John the State for Hermann, Abrams, Robert York, Attorney New Solicitor Gen- General of Glickman, Mehlman, Camhi, M. Stanley A. Paul K. eral, Frederick Levine, Miller, Shoemaker, Martha and Jane Attor- Donna 0. Assistant Levine; pro se. II, H. General, George P. neys Smith Sanford Jr., al. as amici et Bopp, for Senator Orrin Hatch James filed a brief G. curiae. individual . . . qualified handicapped

“No otherwise shall, reason of his be excluded from solely by handicap, in, of, be denied the benefits or be sub participation any activity to discrimination under or jected program financial assistance.” Federal Stat. receiving §794.1 U. S. C.

I American Medical the American Association, Hospital other Association, and several respondents2 challenge January 12, 1984, by of Final Rules validity promulgated Health and Human of the Servi Department These Rules establish “Procedures to health ces.3 relating and in infants,” particular care for handicapped require notices, of informational authorize access expedited posting actions, to records and and command expedited compliance instances state child services protective agencies “prevent infants.” neglect of unlawful medical §84.55 CFR only the Final Rules six the four

Although comprise parts, (b) are here.4 Subsection mandatory components challenged 7(7)(B) amended, Act, “Handicapped individual” is defined in as (i) “any person physical impairment as who has a or mental which substan (ii) activities, person’s major tially limits one or more of such life has a (iii) impair impairment, regarded having of such an as such an record *4 §706(7)(B). 2985, ment.” 92 Stat. 29 U. S. C. State, 2 Respondents Hospital include the Association of New York the Gynecologists, College American of Obstetricians and the Association of Academy Family Physicians, Colleges, Medical the American of American physicians. and certain individual 3 Margaret occupied position throughout the of the Heckler 13, 1985, rulemaking period. December after certiorari had been On position. Despite granted, Dr. Bowen assumed that the fact that Otis Rules, responsible promulgation of the Final for Dr. Bowen was not for continuity ease the our references assume that he was. For sake Secretary, Department, we refer to the the and HHS of reference interchangeably. 4 (a) Department “encourages recipient health In the each subsection provides to infants” to establish an provider care that health care services notice” requires of informational and “Posting is entitled care that health provider provides health every “recipient or activities receiving services to infants programs care (ICRC)” development in the to assist “Infant Care Review Committee handicapped provide infants and to assistance treatment standards for 84.55(a) (1985). § In making decisions. 45 CFR sub- individual treatment (f), Department describes its version of a model ICRC. section (f) provides that activities of the will be “[t]he also ICRC Subsection guidelines Department.” by... interpretative CFR guided [t]he §84.55(f)(l)(ii)(A) (1985). guidelines, are and These which “illustrative” 84, C, (a), conduct,” ¶ independently pt. Appendix rules of “do not establish § Department’s interpretation Although they 504. not do set forth any “discrimination,” they § do state that 504 is not contain definition regulation only parents applies categories to two applicable to and (1) hospitals: provide refusals treatment or nourishment of activities to to, requested, whose have consented or to infants (2) treatment; the failure or refusal to take action to override a such medically consent beneficial treatment or parental decision to withhold for respect category, guidelines nourishment. With second state hospital “solely may present not on the basis of the infant’s or anticipated physical impairments, applicable or fail to future mental follow protective child procedures reporting on such incidents to the services 1(a)(4) pt. Appendix C, agency judicial or to seek review.” 45 CFR (1985). respect category, guidelines first do not that 504

With to the state prohibits hospital requested from categorically withholding treatment or present anticipated “solely physical the basis of or or men- nourishment on 1(a)(1). C, pt. Appendix impairments tal of an infant.” CFR Rather, examples guidelines and two of the illustrative substantive etiology prognosis particular handicapping of and recognize may justify solely the basis handi- conditions “a refusal treat on of those 1(a)(2) (§504 treatment”); require capping conditions.” does not “futile (§504 1(a)(5)(iii) require anencephaly it does treatment because (a)(iv) temporarily prolong dying”); no the act of would “do more than infants). (same severely premature weight general, low birth hospital’s liability dependent guidelines to make a under seem (1) provide proof requested nourish- it refused treatment or (2) solely handicapping condition, an infant’s ment on the basis of medically would have been beneficial. See nourishment (a)(1) (S), 11 — respond guidelines “complaints also describe how HHS will of sus- *5 context, § pected threatening noncompliance” progress- life 504 in this with Federal financial assistance” —a to which we group refer ge- as nerically “hospitals” an post informational notice —to 84.55(b) § one of two forms. 45 CFR approved Both forms a include statement 504 prohibits discrimination on the basis of and indicate that because of handicap, this pro- (as hibition “nourishment and medically beneficial treatment determined with for reasonable respect medical judgments) should not be withheld from handicapped infants solely basis present of their or anticipated mental im- physical (4) (1985). §§ 45 CFR pairments.” 84.55(b)(3), The notice’s statement of does legal requirement be- distinguish tween care medical for which parental consent has been ob- tained has and that which it not. The notice must iden- tify the number of the child telephone appropriate protective and, addition, services number agency toll-free for the that is Department available hours a Ibid. day. Finally, the notice must state that of callers will “identity be confidential” and that federal law kept retaliation prohibits who “against any information about person provides possible Ibid. violations.” (c),

Subsection which contains the second mandatory sets forth requirement, “Responsibilities of recipient state (c) child services protective agencies.” Subsection does not (or statute) mention 504 any other federal and does not even use It the word “discriminate.” requires every designated to establish and agency procedures maintain ensure that ing telephone inquiries hospital from to the to obtain information about the infant, requests records, finally condition of the for access to to on- (b). ¶ investigations litigation appropriate site guide- eases. any lines do not draw distinction between cases in which consent has it given. they been withheld those which has been Nor do draw any hospitals report distinction between cases in which pa- have made rental report refusal to consent to and those in no which to a agency been They “Department state has made. do announce that the will any also seek its investigation investigations by to coordinate related protective agency potential the state child services so as to minimize dis- (b)(4), ¶ ruption,” indicating Department’s investigations may con- previously agency. tinue even in cases that have been to a referred state *6 law to its full to state authority pursuant utilizes agency “the of neglect handicapped instances of unlawful medical prevent 84.55(c)(1). must procedures § 45 CFR Mandated infants.” (1) providers report thát health care “[a] include requirement instances of unlaw- basis . . . known or timely suspected on a §84.55(c)(l)(i); infants,” of ful medical neglect handicapped re- (2) timely the state method which can receive agency (3) cases, 84.55(c)(1)(h); § review of such “immediate” ports “on-site including investigation,” appro- those where reports, (4) §84.55(c)(l)(iii); protection “medically neglected priate, where appropriate, legal infants” handicapped including, court to “timely pro- to secure compel order[s] action treatment,” medical nourishment necessary vision (5) notification” to HHS of §84.55(c)(l)(iv); “[tjimely unlawful “suspected neglect” medical every report to the Final Rules preamble infants. handicapped to clear that this subsection “where a refusal applies makes is a deci- result, beneficial treatment not of medically provide a health care but of decisions provider, by parents.” sions (1984). Reg. 49 Fed. “[ex-

The two authorize remaining mandatory access action to effect “[expedited to records” pedited (1985). (d) (e) §§84.55(d), 45 CFR Subsection compliance.” immediate to records on a patient access provides broadly consent, in the basis, parental “when, 24-hour with or without official, immediate responsible Department judgment life or handi- is to health of a necessary protect access 84.55(d). (e) dis- individual.” Subsection likewise capped with otherwise of notice applicable requirements penses in the De- “when, the hospital judgment responsible immediate to effect is nec- official, action partment compliance the life or of a individ- protect health essary handicapped 84.55(e). expedited compliance provision ual.” re- see[k] intended to allow “the government temporary [to] order sustain the life of a infant straining danger imminent of death.” 49 Fed. Like provision affording expedited applies access it records, regard without to whether consent to treatment has already been withheld or whether matter has been re- protective agency. ferred to a state child services

II represent Secretary’s The Final Rules ultimate re- sponse April in 9, 1982, to an incident which the Bloomington, syndrome a Indiana, infant with Down’s and handicaps surgery other refused consent to to remove an esophageal prevented feeding. obstruction that oral On April hospital judicial proceedings 10, the initiated to over- parents’ ride an decision, but court, Indiana trial after hearing holding evening, requested a the same denied the re- April 12 lief. On the court asked the local Child Protection conducting Committee to review its decision. After its own hearing, disagree the Committee no found reason to with the ruling.5 days court’s The six infant died after its birth. Citing “heightened public concern” the aftermath of the Baby Bloomington May incident, 1982, Doe on 18, direc Department’s Rights, response tor of the of Civil Office to pro “remind[ed]” a directive from the President, health care receiving viders federal financial assistance that newborn in 5 prosecutor, April At the instance the local on Indiana courts 13 hearing “Baby held another at which the court concluded that Doe” had not neglected been under Indiana’s Need of statute. Child Services Addi judicial attempts day. tional to seek intervention were rebuffed the same day, Appeals request the following On the Indiana Court of denied a Doe, (Monroe In re hearing. an immediate No. GU 8204-004A Infant 1982). 12, County Ct., Apr. Court, by Supreme Cir. Indiana a vote of 1, rejected rel. petition State ex Doe 3 to a for a writ of mandamus. Infant 1982). Baker, (May 27, stay 140 v. No. 482 S The infant while a died was Court, being subsequently sought in this and we denied certiorari. Infant Bloomington Hospital, Doe 464 S. 961 U. pro syndrome were handicaps Down’s as such fants (1982).6 Reg. Fed. 504. tected by an “Interim 1983, 7, March followed, notice was This “vigorous role.” federal contemplating a Rule” Final pro- required care health Rule Interim 9630. Fed. post “in con- to receiving assistance financial federal viders maternity ward, delivery each ward, place each spicuous including nursery, each inten- each pediatric ward, and each applicability of advising nursery” a notice sive care report telephone availability “hotline” Like 9631. Id., HHS. at the law suspected violations expedited provided for also Interim Rule Rules, Final facili- expedited records access compliance actions Department responsible judgment when, “in ties “necessary pro- was or access action official,” immediate Id., individual.” aof health life or tect the 22. on March effect Rule took The Interim 9632. Hospital Associa respondents American April

On *8 for Court complaint District Federal the al. et filed tion seeking a declaration New York District of the Southern injunction against an and was invalid Final Rule the Interim April 14, later, on a week Little more than enforcement. its Academy of brought by challenge American the in similar Dis Federal institutions, medical other and Pediatrics Interim declared of District Columbia for trict Court promulgated in vi capricious “arbitrary Rule Final American Act.” Procedure Administrative of olation Supp. 395, 561 F. Heckler, Academy Pediatrics “conclude[d] that Judge (1983). in that case District The agency based ha[d] action inexperience resulted haste and concerns several relevant inadequate consideration” they if “al §504 violate hospitals would maintained 6 The notice parents or infant’s “the care after in their remain infant” to [an] low[ed] discrimina nourishment to] consent withheld guardian [had longer (1982). Secretary no subscribes Reg. torily.” 47 Fed. (1984). Reg. 1631 Fed. See 49 statute. reading of the this and, the alternative, found that the Secretary had improp- failed erly to solicit public comment before the Rule. issuing Id., at 399-401.

On July 1983, the Department issued new “Proposed Rules” on which it invited comment. Like the Interim Final Rule, Proposed Rules required hospitals post informa- tional notices in conspicuous places authorized expedited access to records to be if followed, necessary, by expedited compliance action. 48 Fed. 30851. In Reg. a departure from the Interim Rule, Final however, the Proposed Rules required federally assisted state child protective services agencies to utilize their “full authority pursuant to State law to prevent instances of medical neglect of handicapped infants.” Ibid. Mandated procedures mirrored those con- tained in the Final Rules described above. Ibid. preamble and appendix to the Proposed Rules did not ac- knowledge hospitals and physicians lack authority perform treatment to which have not given their consent.7 7 explaining Proposed Rules, the need for the preamble, although

mentioning “parental rights children,” over their physicians’ insisted that “acquiescence in nontreatment of apparently Down’s children is because handicap,” than, supposed, rather it parental must be lack of consent. 48 Fed. The effect of nonconsent was not even appen- mentioned Proposed section, dix to the Rules. That which set forth Depart- ment’s view of “the manner in which applies provision Section 504 to the infants,” id., health care services to at declared that §504 provision mandated nourishment, fluids, “the basic and routine Id., nursing care.” provision sustenance, 30852. The according to Department, option was “not an *9 judgment.” Thus, medical Ibid. if a “[e]ven infant death, faces imminent and unavoidable no provider health upon care should take itself to cause death starvation or dehydration.” Ibid. In unqualified addition to its endorsement of required by nourishment as 504, appendix “[a]ny announced that decision not to correct intestinal Syndrome child, atresia in a Down’s complication unless an additional med- ically decision, warrants such must be deemed a denial of services based on 620 passed, HHS, had comment period notice for

After the an- Rules promulgated Final 1983, 30, December on February 1984. 13, they effect take would nounced Hospital As- respondents year American 12 of that March On respondents complaint and their amended al. et sociation to declare suit al. filed et Association Medical American enjoin enforcement. their regulations invalid new Court District Federal in the consolidated were The actions awarded which York, District New the Southern for requested authority the United decision of the on the relief United Circuit Appeals Second for the Court States (1984). Ameri- 144 Hospital, 2d University F. v. States (1984);App. Supp. 541 Heckler, F. Hospital Assn. can agreed parties appeal, the 50a. On Cert. Pet. for Hospital, University if Appeals in reasoning Court in this against judgment the Government required a valid, Court of decision, the earlier its with accordance case.8 F. 2d summarily Court. the District affirmed Appeals entirely on judgment rests thus here Since appropriate to ex- Hospital, University isit reasoning of now. that case amine

Ill Final Department’s Interim after the On October promulgated it had before invalid but been declared had Rule multiple con- challenged with here, a child Rules Final Long “Baby born was Doe” Jane genital known as defects applies to a case reasoning The same Syndrome. handicap of Down’s atresia, denial of sur- and the esophogeal Syndrome [infant] of Down’s Ibid, added). did Department (emphasis correct atresia.” gery to hospital’s treatment nonconsent the relevance discuss its un- given irrelevant it was because 504, presumably under obligation at that time. provision derstanding of the District appeal from took an Indeed, although the Government the Court summary disposition after filed motion judgment, it Court’s Its banc. motion en consideration for initial motion its Appeals denied compelled the decision was an affirmance acknowledged that expressly Hospital. University *10 promptly Island, York, New and was transferred to Univer- sity Hospital surgery. consulting for corrective After with physicians forgo advisers, and other decided to surgery likely prolong corrective that was the child’slife, improve many handicapping would but of her conditions. attorney 16, 1983, On October an unrelated named Wash- Supreme seeking filed suit in burn the New York Court, appointment guardian of a ad litem for the infant who would hospital perform surgery. direct the the corrective granted trial court that relief on 20, October but was re- following day by Appellate versed Division which “concededly loving parents” found that the concerned and appropriate had “chosen one course of medical treatment over another” and made an informed decision that “in was Stony Hospital, best interest of the infant.” Weberv. Brook App. (per 587, 589, Div. 2d 467 N. Y. S. 2d curiam). Appeals On October New York Court of ground affirmed, but on the that the trial court should not petition neglect proceed- have entertained a to initiate child ings by stranger requested who had not the aid of the re- sponsible agency. Stony Hospital, state Brook Weber (per 208, 211-213, N. Y. 2d curiam). 456 N. E. 2d 1186, 1187-1188 proceedings progress, While the state were on October complaint “private 19, HHS received a from a citizen” that Baby being discriminatorily medically Jane Doe was denied promptly complaint indicated treatment. HHS referred this (The to the New York State Child Protective Service. agency investigated charge neglect of medical and soon thereafter concluded that there vention.) no cause was for state inter-

In the meantime, before State Child Protec- tive could act, 22, 1983, Service HHS on October made re- peated requests hospital to make its records available inspection hospital in order to determine whether the was compliance hospital requests 504. refused the *11 parents to a not consented had the HHS that and advised the records. release of filed the Government

Subsequently, 2, 1983, November authority invoking general its District Court in Federal suit (1985), regulation §84.61 §504 45 CFR to enforce necessary authorizing to ascer- broadly to information access parents the to compliance. allowed Court District tain expedited proceeding, and ruled the defendants, as intervene that the Government against It reasoned the Government. the record right because to information of access no had clearly hospital the had not violated stat- the established that University Hospital, Univ. State States v. ute. United (EDNY). Supp. Stony Since 607, Brook, 575F. at N. Y. hospital established evidence the uncontradicted surgical proce- perform willing to “ha[d] at all times been only parents question, consent,” . . . would if dures ques- surgical procedures perform hospital to “failed handicapped, [wa]s Baby but Doe Jane tion, not because ha[d] Ibid. to consent.” refused her because opinion Appeals In an handed affirmed. Court of promulgation February after 1984, six weeks down on agreed District Court that with the Rules, the Final it sought agency in an investi- information “an entitled Congress given.’” authority gation has ‘overreaches Publishing (quoting Press Co. Oklahoma F. at 150 2d, (1946)). Walling, It further held that 327 U. S. “handicapped Baby although individual,” she Doe was Jane §504 meaning qualified” within the was not “otherwise typically issue, it is treatment is at “where medical because gives handicap least contributes to, rise at itself that qualified’ “the a result ‘otherwise services”; as the need applied meaningfully to a be section cannot criterion For 2d, F. at 156. decision.” 729 medical Appeals rejected the Govern- reason, same Court “subjected Baby argument been Jane Doe had ment’s handicapping condi- 504: “Where the under discrimination” condition(s) rarely, tion is related to the to be it treated, will say possible certainty particular if ever, be that a ‘discriminatory’.” difficulty decision was Id., at 157. The §504 applying to individual medical treatment decisions Appeals “[CJongress confirmed the Court of its view that contemplated never that section 504 of the Rehabilitation Act apply involving would to treatment decisions defective new- born infants when the statute was enacted in 1973, when it any subsequent in 1974, was amended or at time.” Id., rejected far-reaching position 161. It therefore “the ad- government vanced in this case” and concluded that *12 Congress spoken, until “it would be an unwarranted ex- had. judicial power approve type investigation ercise of to precipitated ha[d] that this lawsuit.” Ibid. §504

Judge pointed Winter dissented. He out that was § patterned Rights after of the Civil Act of which prohibits federally discrimination on the basis of race in programs, provide funded and asserted that a refusal to med- person’s handicapping ical treatment because of a condition is clearly by person’s as 504 as a refusal covered based on a §by race is covered 601: judgment perform surgery

“A not to certain because a person judgment. not is black is a bona medical So fide threatening digestive too, decision not to correct a life problem Syndrome because an infant has Down’s is not a judgment. bona medical The issue of au- fide thority quickly disposed is also A denial of. of medical treatment to an infant because the infant is black is not legitimated by parental Id., consent.” at 162. petition The Government did not file a certiorari Univer- sity Hospital. judgment It did, however, seek review of the granted (1985), in this case. certiorari, We S. 1016 U.. and we now affirm.

h—I C individ- “handicapped is correct General The Solicitor con- a is born who infant an includes in 504§ as used ual” qualified” “otherwise is an infant If such defect. genital finan- federal receiving activity or a program under benefits “solely discrimination him from § 504 assistance, protects cial our decision follows, under It handicap.”9 of his reason (1985), Choate, S. 469 U. Alexander access” to “meaningful entitled are infants handicapped hospital and that hospitals, provided services medical be would access such limiting denying policy or state rule 504. under challenge subject or indeed challenged, is or policy rule such

However, no in con- case, this Nor does this case. identified, been has Hospital claima University involve litigation, to the trast §504. violates decision treatment individual specific any consequence as a action, and an enforcement not suit This applies § 504 ever whether to determine necessary it is involving decisions medical individual challenge litigation this brought Respondents infants. face,10 their Final Rules on of the components mandatory four merely review we which judgment Appeals’ Court “declared which Court District judgment affirmed the *13 regulations, final] [the of enforcement enjoined invalid and 9 Ap of the Court review to no us, reason we have to ease comes theAs hospitals in to infants care of provision health assumption peals’ or activ part “program of a ais payments or Medicaid receiving Medicare Corp. Rail Consolidated See assistance.” financial receiving Federal ity 624, 635-686 Darrone, S. 465 U. v. Medical American Respondents for Opposition 10 See, g., Brief in e. and of Points 4, Assn, Memorandum Record, No. 8; Doc. 7-8, n. et al. Injunction 12 Preliminary for Motion Plaintiffs’ of Support Authorities man- four action contains challenged in this which (“The Regulation Final (“After University Hospi- id., omitted)); at 28 (citations datory provisions” by Final imposed mandatory obligations all of .. . must fall tal Associa- Medical American (complaint of App. 138-140 Cf. Regulation”). al.). tion et

625 504 of the Re- pursuant to section promulgated purportedly (1982).” App. §794 to C. 29 U. S. 1973, Act of habilitation presented question specific this 2a.11 for Cert. Pet. 11 Final “[t]he Court, declaring to in addition District It is true enjoining peti §504 and exceeding” as and unlawful . . invalid Regulation. also Regulation,” Final of the implementation “any further from tioner reg Secretary “to “[a]ny actions” of enjoined other and invalid declared authority taken under infants impaired newborn involving ulate enforce and other currently pending investigation 504, including Section of however, must, language This 51a. Pet. Cert. App. to for actions.” ment did chal complaints this case limited given a construction. be decisions, but all treatment authority regulate to Department’s lenge the enforce Final Rules of the mandatory provisions precisely more Depart pursuant to undertaken but activity along those lines ment University in the 504, as occurred authority” enforce “general ment’s investigations conducted full-scale in 41 the 49 of litigation and Hospital (complaint App. 138-139 See point time. Secretary up (com id., (same); at 159 id., al.); et Association Medical American of al.). Record, Doc. No. also See et Hospital Association of American plaint of Plaintiffs’ Motion Support Authorities 4, of Points Memorandum Ap of the Court pleadings, these From 10-11. Preliminary Injunction “any” to the word Court’s use District interpreted the apparently peals investiga pending “currently resembling the “[a]ny other actions” forbid App. to injunction, in the specified actions” enforcement and other tion investigative regulatory and possible 51a, all rather than for Cert. Pet. care health provision involve the might activity that Rules Final analysis of the our from clear Thus, become as will infants. regulatory and initiation forbids continuation injunction below, the parents have refused in which at instances activity directed investigative action, such undertake and, were to if the to treatment consent imposed state requirements affirmative compliance with to seek efforts rightly serious view “Because agencies. protective services child orders, be injunctive traditionally of violations taken have courts viola such imposed for may be which punishment severity of cause of 424, 439 S.U. Spangler, v. Education City Bd. tion,” Pasadena (1967); Assn., 389 U. S. v. Trade Longshoremen Marine (1976); see (1970), the Court Committee, U. S. University Gunn pertaining as judgment District Court’s construed Appeals properly activity (and enforcement litigation this challenged in *14 forth procedures set paralleling Rules but Final of the independent curiam) (1974) (per 473, 477 Lessard, 414 S. therein). v. U. Cf. Schmidt 626 of the mandatory provisions four is

case, then, whether § 504. authorized Rules are Final V ex- law that an agency’s administrative an axiom of It is “a ‘rational must include for its decision of the basis planation made.’” found and the choice the facts between connnection Automobile Mut. v. State Farm Assn. Motor Vehicle Mfrs. (1983) Truck Burlington 43 Co., 29, (quoting 463 U. S. Ins. (1962)).12 168 States, 156, 371 U. S. Lines, Inc. v. United uphold so far that we will has not come deference Agency a basis” for is to “conceive possible whenever it of contrary, “presumption action. To the administrative injunction to facilitate of orders (noting desirability precise construction review). course, Appeals’ judgment that is, It Court appellate review, District Court’s. See Union not the we called on are Pacific (1896). Co., 564, 163 593 Cf. Davis Chicago, R. I. P. R. U. S. R. v. & Co. (1832). 41, Accordingly, great weight to the Packard, give 49 we 6 Pet. v. judgment it affirmed. Cf. United Appeals’ of the construction Court (1919). 300, Co., purposes For Colgate S. 301-302 v. & 250 U. States reading judgment supported expansive the dissent’s comparison, parties. Brief for Re Appeals nor See by the Court of neither 14, 48, Brief al. n. 60. Cf. American Assn. et spondents Medical (quoting judgment 4 final Hospital Assn. et al. American Respondents Court). judgment the fact that affirm this view of we the District courts, employed by the lower it bears reasoning narrower than that judgments, opinions.” Chevron “reviews repetition that this Court Inc., 837, Council, 467 U. S. Inc. v. Natural A. Resources U. S. Defense (1984). Laboratories, 292, See, 351 U. S. 297 g., e. v. Cutter 842 Black Commissioner, 55, 311 U. 59 (1956); Riley E. Co. v. S. J. Investment Norris, 117, (1827); McClung (1940); 12 Wheat. v. v. 120 Williams (1821). 598, Silliman, 6 Wheat. Electric v. Natural Resources Coun Baltimore Gas & Co. See Defense cil, Inc., 87, (1983); Inc. v. Transportation, 105-106 Bowman 462 U. S. Inc., (1974); 281, Freight System, S. 285-286 FTC U. Arkansas-Best Co., (1972); FPC v. United Gas Hutchinson 405 U. S. & Sperry (1968) curiam); FTC, Siegel Co., (per Co. v. Line 393 U. S. 72-73 Pipe 608, 613 S.U.

627 regularity agency fulfilling afforded statutory an in its man equivalent date” is rationality to “the minimum a statute analysis must bear in to order withstand under the Due Proc ess Clause.” Motor Vehicle Assn. v. State Farm Mfrs. Mut. Automobile Co., Ins. 463 U. atS., 43, n. Thus, 9. mere fact that there is rational “some basis within the knowl edge experience [regulators],” of the United States v. (1938) (footnote Carolene Products Co., 304 U. S. 144, 152 omitted), they “might under which have concluded” that the regulation necessary discharge statutorily was to their au Optical mission, thorized Williamson Lee v. Co., 348 U. S. (1955), 483, 487 agency will not suffice to validate decision- making. Dept. See Industrial Union v. American Petro (1980) leum (opinion Inst., U. S. 607, 639-659 of Ste J.); Burlington Lines, Truck Inc. v. United States, vens, (1962). recognition Congress’ 156, 169 U. S. Our need agencies ample to vest power administrative assist governing complex difficult task a vast and industrial Nation carries with it responsibility the correlative agency explain the rationale and factual basis for its deci though respect agency’s sion, even judgment we show for the in both. examining Secretary’s

Before issuing reasons for Final Rules, it is essential to pre-existing understand the governing provision state-law framework of medical care infants. broad outline, state law vests de- responsibility parents, cisional in the in the first instance, subject exceptional review acting cases the State as parens patriae.13 regulatory activity Prior to the culminat- pattern The basic decisionmaking is well summarized the 1983 re port of the President’s Study Commission for the of Ethical Problems Medicine and Biomedical and Behavioral Research: paucity

“The directly relevant eases makes characterization of the law in this area problematic, points somewhat but certain First, stand out. presumption, there is a strong rebuttable, but appro- are the ing was not a Government the Federal Rules, in the Final making process decisions for participant in the presume general framework that this We infants. newborn Congress 504. See Cannon when it enacted familiar to was Chicago, University It 696-697 U. S. *16 evaluating background appropriate provides for an therefore Secretary’s case. in this action the categories possible Secretary of two has identified oversight §504 justifications for federal as

violations of hospital’s handicapped that a he contends First, infant care. medically benefi- infant with to furnish refusal by handicap” “solely constitutes reason of his treatment cial hospi- that a Second, he maintains discrimination. unlawful suspected neglect report to a medical eases of tal’s failure to concerning law infants. Traditional for their priate decisionmakers protects privacy, emerging right constitutional family, buttressed Second, persons unable to parents. as range of discretion for a substantial patriae power of the themselves, parens fall under the protect infants only punishes par- authority, the state not of this In the exercise state. but neglect abuse or of their children has to whose conduct amounted ents they operative to en- before may supervene decisions become also a child’s interests as to not so detrimental to the choices made are sure neglect and abuse. amount accepted professionally long parents choose from . . as [A]s frequently in even less su- rarely reviewed court and options the choice is authority appoint guard- their pervened. The courts exercised have in the deci- capable participating parents are not ian a child when for evidence substantial they made decisions that sionmaking or when have Although societal involvement for the child’s interests. of concern lack governmental usually auspices instrumentalities —such occurs under system ordinarily legal American agencies courts —the as child welfare individuals, continuing gov- than private rather upon the initiative relies legal authori- bring the matter to the attention supervision, to ernmental omitted). (footnotes Report, 212-214 ties.” at Secretary’s understanding of the state-law summary accords with the This (1986) Reg. 14880 framework, See 50 Fed. at least in contexts. other 1984) (“The (final decision Amendments of implementing Child Abuse rule is, except highly in medically indicated treatment provide or withhold legal guardian”). circumstances, made unusual agency may protective services also violate the state child separately possible consider these two bases statute. We the Final Rules.14 for issues, re Rather than address these Justice White’s dissent would Appeals. light willingness of its post,

mand to the Court of See at 656. hypothetical question the broader 504 ever authorizes to address whether regulation judgment of medical treatment if below decisions —“even regulations,” 4—it post, were limited to invalidation of these at n. surprise something comes as of a to read the references to the Solicitor properly in argument General’s that “this claim its current form is not case,” objections procedural plainly n. 9. The are post, at without Respondents support AMA et al. raised the lack of factual substance. opposition petition Op their brief for certiorari. See Brief Assn, (“First, position Respondents American Medical et al. 20 problem Secretary’s position it fundamental with the is that is based on a that has not occurred —and will not occur—in real life. . . . Not situation hypothetical problem] case surprisingly, [his cites no where (“B. occurred”); id., 20-21; id., at 26 Has Shown No has *17 Problem With the Historic State Law Framework That Warrants Direct id., Investigation Regulation”); at 26-29. The Federal Solicitor exists, General, Reply although responding that such evidence see Memo 9, result, procedural raise a bar. the randum for Petitioner did not As Tuttle, 808, City objection is waived. See Oklahoma v. U. S. 815-816 (1985). objection Although further discussion of this is therefore unnec essary, wrong suggesting respondents’ com the dissent is also plaints involving raise “the lack of a factual basis situations which did not 657, fact, Post, In parents have consented to treatment.” n. 9. complaint respondents alleged AMA et al. “COUNT II: Violation of the Act,” App. 146, incorporated by Procedure reference Administrative mandatory provisions Regula allegation that “None of the of the Final problem,” designed in fact or are to meet a documented tion have a basis al.). id., id., Accord, respondents AHA (complaint at 158 et at 140. grounds by than relied on that our decision rests on narrower The fact infirmity. only the lack surely not an We can add that the lower courts Court, fully support for these was briefed this of factual Assn, 39-41; Respondents American Medical et al. especially see Brief for Assn, Hospital 48-49, Respondents American et al. and the fact Brief for little, bespeaks responds with so so late the ab that the Solicitor General oppor evidentiary support regulations, inadequate for the not an sence of tunity to direct us to it. contends, reply time in his brief on

The Solicitor General also for the first merits, 16, 6, Reply Brief for Petitioner n. that the Final Rules are see I—l

> Bloomington Baby Doe immediate aftermath of the Secretary apparently proceeded assump on the incident, hospital’s statutory duty provide treatment to tion that by parental the absence of infants was unaffected supra, at 617-619. He has since abandoned consent. See correctly preamble the Final Rules Thus, the that view. no matter how decision, “a non-treatment states that when discriminatory, by hospi parents, rather than is made hospital mandate that the unilat 504 does not tal, section provide erally parental decision and overrule the notwithstanding 49 Fed. the lack of consent.” withholding pa hospital’s A of treatment when no § given has been cannot violate for with rental consent surrogate or a decisionmaker out the consent qualified” is neither “otherwise for treatment nor the infant “solely by handicap.”15 reason of his has he been denied care certainly almost a tort as a matter of Indeed, it would be operate state law to on an infant without consent. analysis heavy This makes clear that the Government’s reli analogy to race-based refusals which violate 601 ance on “merely explained Secretary’s “interpretative guidelines” which con ibid. This assertion was setting,” rejected 504 in this struction of Section Academy American tendered, Pe only it occasion on which was see (DC Heckler, 1983), diatrics Supp. 561 F. is belied Secre tary’s provide request regula own decision to notice and comment on the tions, 553(b), credit, patently and is without merit. To cf. 5 U. S. C. its ultimately rely arguments. the dissent does not on either of these See *18 post, n. 9. hospital provide as failure of the to itself the treatment” be “[t]he Just unavailability expertise equipment of the of medical or would be cause not handicap” hospital incapable but “on the fact that the is “on the basis treatment,” providing according Secretary’s regulations, to the (1984), provide equally Fed. it is clear that a refusal to care be parental “solely by cause of the absence of consent would be reason of handicap.” [the infant’s] pursuant Rights misplaced. its nor If, to Act is

of the Civil operate hospital practice, a child refused to on black mal parents treatment, had withheld their consent whose hospital’s of the child based on the race refusal would not be parents decision based their if that the even it were assumed assumption entirely child that the race of the a mistaken on inappropriate. operation made the acknowledged hospital that a has Now that the pa- obligation statutory in the absence treatment has no are the Final Rules clear that consent, it has become rental denying hospitals prevent from treatment not needed to concedes that General infants. The Solicitor hospitals contains no evidence record the administrative by the infant’s authorized either refused treatment have ever Arg. parents 8. Even the Tr. of Oral a court order. posted seriously notices, maintained never investigations emergency were neces- on-site “hotlines,” might hospitals complaints against sary process refuse requested by parents. interest The treatment appropriate au- calling the attention of a refusal to such adequately interest enforcement vindicates the thorities just obviates the need as that interest cases, 504 such provide special regulation refusals to to deal with §601 may of the Civil violate of race which on the basis Rights Act. paren- recognition Secretary’s the effect of belated supposed important, need for because

tal nonconsent monitoring hospitals’ rests en- treatment decisions federal tirely con- have refused their instances which precipi- Bloomington, Indiana, case that in Thus, sent. Secretary’s as area,16 in this efforts enforcement tated the hospital’s summary makes it clear Secretary’s of this case parents’ of consent: refusal surgery was based on perform failure April of infant Investigation into death “Bloomington, Indiana. surgery was from whom syndrome esophageal atresia with Down’s *19 632 provided Hospital University case that as in the

well us,17 summary now before in the case affirmance for the basis rested perform at issue hospital’s the treatment failure Secretary’s own sum- parental consent. lack of on the respec- beyond doubt establish cases of these maries basis of care on the hospitals medical not withhold did tive handicap they result, as a 504; did not violate and therefore regulation is support federal claim that provide for his no comparable future. cases forestall in order to needed withholding recognize Secretary’s that initial failure discriminatory equate parents with does not consent of by hospitals the Sec- undermines likewise denial of treatment rulemaking. proposed preamble retary’s findings to his in the sup- cited four sources statement, In that uniformly being [is] not 504 port that “Section claim Reg. the cited None of Fed. followed.” recipients suggests finan- of federal examples, that however, parents, opposed withheld medical had as assistance, cial handicap.18 of on the care basis Id., (emphasis parents.” the instructions

withheld added). judicial review to override earlier, hospital initiated As recounted unavailing. The Solicitor General proved decision, its but efforts parents’ of 504 finding a violation was no basis for that there acknowledges now Arg. 12. Tr. of Oral case. See this summary of this demon Secretary’s ease 17 Notwithstanding that refusal of withheld because treatment was both strates parents’ decision to override the proceedings state-court consent intervened, Department Department before the been had instituted anyway: investigation its own proceeded 19, 1983, newspa- Island, complaint, based on New York. October “Long to re- receiving surgery due article, spina bifida not infant with per in State consent; legal proceedings ha[d] been initiated fusal Depart- HHS asked 19. On October initiated October Inquiry court. hospital to refusal of action to legal to commence overcome ment Justice (1984) (emphasis 49 Fed. pertinent records.” review of permit added). M. by Raymond Duff A. G. survey cited a 1973 first 18 The nursery the Yale- special deaths calculating that 14% Campbell *20 Notwithstanding recognition pream- the ostensible in the parental hospital’s ble of the effect of nonconsent on a ob- ligation provide promulgating to in care, the Final Rules the Secretary persisted relying in on instances in which support regardless had refused consent to his claim that, “magnitude,” “illegality” its there is sufficient evidence of to justify “establishing basic mechanisms to allow for effective clearly applicable Reg. enforcement of a statute.” 49 Fed. (1984). already 1645 We have discussed one source of this specific preamble evidence—“the several in cases cited the proposed Contrary Secretary’s the rule.” Ibid. to the be- “support proposition lief, these cases do not the that handi- capped may subjected infants be to unlawful discrimination.” prior Ibid. In addition to the evidence relied on notices, Secretary summary a included of the 49 “Infant Doe hospital New Haven withholding “were related to treatment.” 48 Fed. Reg. Secretary’s solitary quotation 30847 The study, from this ac- curately illustrating the locus of the treatment decisions reviewed authors, parental involved refusal of consent: “ syndrome ‘An atresia, infant with Down’s and intestinal like the much publicized Hopkins Hospital, one at Johns par- was not treated because his thought surgery wrong ents baby was their and themselves. He Ibid, added) days (emphasis died several after birth.’” (quoting Duff & Campbell, Special-Care Nursery, Moral and Ethical Dilemmas in the (1973)). Eng. New J. Med. Secretary Hopkins Hospital next referred to an incident at Johns which, intimates, quotation parental as the above also concerned refusal of consent. Then “Bloomington Baby followed brief mention of the in- Doe” parents, admits, which the as the now refused consent cident, despite hospital’s provided. treatment insistence that it be Secretary’s example fourth and final involved “a 1979 death of an infant syndrome with Down’s Kapiolani- and an intestinal obstruction at the Honolulu, Hawaii,” Children’s Medical Center 48 Fed. (1983), again appears which parental to have resulted from “a lack of con-

sent,” id., at 30848.

Generalizing examples, Secretary reported from these the results of survey physician acquiescence attitudes. He faulted “[t]heir non- “apparently treatment of Down’s children” which he surmised was because handicap represented by syndrome.” Down’s Ibid. See n. infra. processed December Department before had

cases” Secretary’s Curiously, own ad- however, 1, 1983.19 finding of dis- in a “resulted had the 49 cases none of mission withholding at 1649. criminatory Id., medical care.” finding is no there of 49 cases entire list in the fact, provide a handi- hospital or refused failed given.20 had been consent capped infant for which Notwithstanding “believes concession, the this procedural utility demonstrate these cases three of *21 com from quotations various reprinted selected Secretary also The denying “discriminatory” decisions of reporting the existence menters these dis of comments handicapped infants. None care to sustenance by parents or made “discriminatory” were decisions those whether closed by hospitals. identify single deci inability a Secretary’s repeated The unreality to Justice White’s aura of § 504 lends an in of sion violation University Hospital. ex in Appeals’ decision of of the Court criticism holding Appeals’ of for the Court “the basis why believes stated plaining he 655, 8, 656; n. incorrect,” post, at see at post, University Hospital was in spe case fact that the involved completely ignores the White Justice else by parents. Justice White made Since decision cific treatment 504, 657, at by post, are not covered agrees that decisions where University Hospital case was in the involved 10, the infant n. and that 7, treatment, n. he im post, at qualified” for not “otherwise therefore correct; University Hospital is in judgment acknowledges that plicitly facts of well as the actual of that case—as by the actual facts only ignoring speculating investigated 49 cases that were —and hospital might refuse to in which hypothetical cases nonexistent about any the dissent basis by parents, offer requested does provide treatment University Hospital. in the decision questioning for Ap- reasoning of the Indeed, Court even the dissent’s criticism Ap- that the Court hypothetical situation is based on a peals’ decision with the treatment concerned That court was peals did not address. condition(s) to is related to the handicapping condition in “the cases which id., added); whereas see at treated,” 2d, (emphasis 729 F. at 157 be in hypothetical discussion to cases carefully his limited White has Justice baby’s handicapping unrelated to the completely which “the treatment added). Thus, bishops opposite like Post, (emphasis condition.” do not Appeals Court of White and the colors, opinions of Justice touch another. even one Accord, in Ibid. for the final rules.”

mechanisms called (“[T]hese provide of the cases additional documentation ibid. appropriateness governmental and the involvement need for rules”). procedures However, final established of the strongest supposedly provide the cases, which these three any support fail to disclose dis- intervention, federal for against handicapped newborns violation crimination Department example, Illinois, Robinson, For 504. investigation when it learned an on-site conducted (at necessary perform parents’ request) “hospital failed to added). “[t]he (emphasis surgery.” After at 1646 Id., hospital surgery,” “the referred consent for refused custody accepted who authorities, to state the matter surgery adoption,” arranged “in com- all infant and pliance concluded section 504.” Ibid. protective of the state child services “the involvement impor- hospital, agency,” the most behest of the “was at the surgery bringing in- for the about corrective tant element governmental involvement Had there been no fant. . . . might much less favorable.” outcome have been case, added).21 (emphasis at 1649 Id., Secretary’s example even illustrates with second *22 functioning nondiscriminatory greater and the effective force consequent support for lack of mechanisms and the of state Daytona Florida, the De- Beach, In intervention. federal complaint neglect partment’s a of medical hotline received hospital immediate contact with the infant; parents agency not consent revealed that “the did state and Notwithstanding surgery” 1648. Id., for the infant. at by hospital both the was confirmed information, which this despite agency, the state the fact that and the state and agency surgery” provide the order to “obtained a court had Department day conducted an notified, the HHS was before showing assumption that evidence repeatedly makes the preamble in governmental provides a basis for involvement the need for federal g., e. See, 49 Fed. volvement. in Colorado case, investigation. In the third Ibid. on-site soon after Department so intervened the Springs, Colorado, progress the decisionmaking process at inwas “the birth that began,” inquiry “it Rights] and [Officeof Civil time the OCR pro- surgery been say not have would impossible the is “However,” 1649. at Id., this involvement.” vided without the OCR of OCR involvement “the added, hospital by cooperatively received was consultant medical Ibid. apparently constructive.” nothing record in the administrative sum, there “discriminatory withhold- Secretary’s that belief justify the any support provides ing in violation medical care” (Robinson, Illinois, regulation: of the cases In two for federal Florida), hospital’s based was refusal Daytona Beach, parents’ decision but consent, absence of on the operation was and the authorities state was overridden Colorado) (Colorado Springs, performed; third case in the given their have would clear whether it is not surgery in fact was corrective not, but consent performed.22 pro of health care regulation that suggests dissent White’s Justice sup not advance —a did theory the on a justified can be viders See physicians. by biased discriminatory advice to curtail posed need handicapped infants some at least observing that 658-661. After

post, at likely as a physician attitudes treated, identifies the dissent been have not pre notices were mandated informational concludes explanation and professionals by health care an awareness “foste[r] sumably designed to respect to discriminatory manner with to act in not responsibility their Post, at 660. handicapped infants.” treatment decisions medical regulation, text of the support in theory no finds The dissent’s in this his Court. on behalf Secretary, briefs filed or the reasoning of particular notices the informational in general —do —and give may physicians any advice constraints place purport parental decisionmak- Moreover, it is now clear since patients. their theory rests on 630-631, the dissent’s supra, ing covered is not *23 may advice prevent giving that statute premise the unstated hardly that It is obvious prohibit. itself 504 does not something which do “aiding abet- and physicians from prohibits of 1973 Act the Rehabilitation

VII backstop manifestly perception As a to his incorrect that withholding parental in of treatment accordance with instruc- regulation, Secretary tions necessitates federal contends hospital’s report parents’ that a failure to refusals to consent past to treatment violates and §504, breaches of this justify oversight. kind federal

By imposes duty report itself, no instances of medi- neglect undertaking report- cal derives from state-law —that ing obligations hospital’s voluntary practice. or a own Al- though hospital’s report neglect selective refusal to medical handicapped might Secretary infants violate §504,23the ting” parental parents decision admittedly right which have a to make. Congress And if result, did intend this might expect counterintuitive one explanation Secretary an from the as to how the emergency hotlines and inspections contemplated by on-site the Final square Rules with the con- indirect, regulation, speech stitutional doctrines on direct or general in decisionmaking professionals particular. health in reality, implied physicians’ pre- neither found nor dispositions against treating handicapped parental infants had resulted Indeed, principally refusals to consent to treatment. he relied on atti- surveys proposition tudinal for the converse regulation necessary physicians because refuse consent to treatment “acquiesce will parental refus[als] to treat.” 48 Fed. To the extent any theory may Secretary’s be discerned summary two-column physician surveys, it is that doctors would not correct “bad” decisions, they responsible not that were helping them to make such place. Moreover, choices in the first even if the had relied on imposed this evidence to insinuate that judgments doctors their own value parents by lobbying consent, explains them to refuse he never parental decisionmaking process is one in which doctors exercise the deci- ibid., Compare sive influence needed to force such post, results. Secretary, short, 658-659. The theory has not even adumbrated a remotely resembling dissent, “discrimination” the one invented therefore has not made the essential connection between the evidence of physician regulatory attitudes and the choice made here. 23 course, § only hospital Of 504 would be violated if report failed to neglect report medical of a infant when neglect it would such similarly of a nonhandicapped respondents situated infant. Because have *24 any specific point that this has oc- evidence to failed to has pre- investigations in the summarized The 49 actual curred. any in not reveal case which Final Rules do to the amble failing, hospital to make an was accused failed, either or accept agency.24 report appropriate Nor can we to a state discriminatory invitation to infer the Solicitor General’s Secretary’s pro- nonreporting in the the studies cited from par- assuming rulemaking. posed that cases which Even to treatment for consent have withheld ents prove unreported, gone that fact alone would not infants have face, have no occasion to Secretary’s regulations on their we challenged the similarly situ- infants with birth defects are question whether address the (the paradigm transfusions case which in need of blood with infants ated decisions, reported sought have to override hospitals have or 16), General, Brief for Petitioner and n. according to the Solicitor distinguish the two situa- legitimately between hospital could or whether inhering in risks and benefits certain of the different tions on the basis defects, hand, and blood transfu- on the one operations to correct birth sions, other hand. on the in Secretary’s case summaries reveal numerous contrary, the To the voluntarily reported suspected instances of hospitals have in which stances legal proceedings themselves. In initiated neglect and have even medical regulations, Indiana, prompted which these Bloomington, case the summary supported the affirmance University Hospital ease which subject judicial us, was the review parents’ decision now before Robinson, Illinois, case on which the In the the state courts. illustrating regulation, need for federal examples as one of three relies authorities reported parents’ refusal to consent state hospital adoption. Reg. 1646 surgery and 49 Fed. Most arranged for who Beach, Florida, Daytona case HHS received its hotline dramatically, in the agency already a court order day the state had obtained complaint the after Id., surgery. at 1648. Not overriding parents’ refusal consent hospital with the withstanding Department’s “immediate contact” that the case had agency surely must have made it clear the state —which agency and that there was no colorable basis already reported to that been Department conducted an on-site of 504—the suspecting a violation Secretary placed spe third case on which the investigation. Ibid. had decided Department intervened before emphasis, cial not, reporting obligation so that no authorize treatment whether to triggered. Ibid. have been could hospitals involved had discriminated on the basis

handicap simply entirely discharge rather than failed their reporting obligations, any, state-law if a matter which lies wholly outside the nondiscrimination mandate of 504. *25 particular reporting by

The mechanism chosen the Secre tary regulatory imposed the entire framework on —indeed protective agencies departs state child services from the — §504 nondiscrimination of mandate a more fundamental way. mandatory provisions any The of the Final Rules omit requirement hospitals reports direct make when procedures.25 refuse consent to recommended Instead, agencies require reports, Final Rules command state to such regardless agencies’ reporting requirements of the state own (or thereof). §84.55(c)(l)(i) (1985). lack 45 CFR Far from merely agencies preventing remaining state from calculat edly handicapped they indifferent to infants while tend to the similarly nonhandicapped, needs situated the Final agencies authority” Rules command state to utilize their “full “prevent neglect instances of unlawful medical of handi 84.55(c)(1). capped effectively infants.” The Rules make neglect handicapped medical newborns a state investi gative priority, possibly forcing agencies state to shift — away scarce resources from other enforcement activities perhaps programs designed protect even from handi capped hospitals. children outside The also Rules order agencies “immediately]” reports state review from hospitals, §84.55(c)(l)(iii), investiga to conduct “on-site legal compel tion[s],” ibid., and to take action “to provision necessary treatment,” nourishment medical interpretative appended guidelines impose to the Final do Rules on providers hospitals duty other health care not to discriminate against in reporting parental neglect. infants instances of question We do not reporting, hospital address the whether either as a practice requirement law, activity or as a “program state constitutes receiving See Consolidated Federal financial assistance” under §504. Darrone, S., Corp. City Rail College 635-636. Cf. Grove v. U. Bell, 465 U. S. 570-574 §84.55(c)(l)(iv) any regard procedures without to the —all agencies handling complaints followed state filed on nonhandicapped operating proce infants. These behalf of imposed objection dures were over the of several state child agencies requirement they protective services confidentiality reports to turn over requirements HHS “conflicts with neglect statutes,” child abuse and state (1984) thereby requiring guise under the Fed. — a service which denies to nondiscrimination nonhandicapped.26 state law complaint-handling process im- would unwilling pose agencies totally foreign state to the authority prevent discrimination conferred on him §504. 504 seeks to assure treatment,” “Section evenhanded Choate, S., Alexander v. 469 U. at 304; “neither the lan- purpose, history guage, nor of 504 reveals an intent to im- *26 pose obligation” recipients an affirmative-action of federal Community College financial assistance, Southeastern v. (1979).27 442 411 Davis, U. S. The Solicitor General also §504 recognizes that is concerned with discrimination and attempt distinguish with discrimination alone. his to Secretary’s beyond 1976determination that it “is the author- ity promulgate regulations “concerning of section 504”to ade-

26 dissent, quoting Secretary’s explanation for Justice White’s requirements, they form, “substance,” these concludes a nondis Post, requirement. repetitive, crimination at 663. This assertion is responsive. governing protective agencies rules state child services operate independently any provisions law; they go of state further than (e. flatly respects; they g., them in several contradict them others con fidentiality); they revision, modification, do not accommodate the or repeal say give marching of state laws. To can detailed agencies upon discovering agencies to state orders both the and HHS working general objective are toward the same least when defined —at with sufficient abstractness —would countenance a novel and serious intru autonomy. sion on state (lan Davis, Community College S., See Southeastern U. at 410 guage recognizes and structure of 1973 Rehabilitation Act “the distinction efforts”). between . . . evenhanded treatment. . . and affirmative care or safe and humane and appropriate psychiatric

quate for institutionalized because persons conditions living of fair to compensation pa- handicap concerning payment 29548, 29559, Fed. work,” Reg. tients who perform explains: General Solicitor consistent with the fact

“This conclusion of course was con- essentially 504 is that, here, as relevant Section in the relative only cerned with discrimination and does handicapped nonhandicapped persons absolute serv- any right not confer receive particular or benefits under assisted federally programs.” ices n. 33. Brief for Petitioner (“Section (1983) 48 Fed. 504 is essence also See standard”).28 treatment, non-discrimination an equal the sort of absolute Rules, however, impose just The Final had previ- on state agencies obligation The services state are agencies required disavowed. ously are in tied to way available to infants no to make situated nonhandi- similarly the level of services provided constitute an “absolute Instead, they right infants. capped under a federally services or benefits” particular to receive if a were agency scrupulously Even state program. assisted it offered handicapped as between the protection impartial still be denied federal infants, it could nonhandicapped mission with carry Secretary’s out failing funding zeal. sufficient that these state, Secretary, It is no answer to as does “ ... reason- necessary give ‘metho[d] are a *27 (1984) 49 Fed. 1627 of compliance.”

able'assurance’ 80.4(b), agencies § which state requires 45 CFR (quoting Congress Secretary “by enacting section 504 intended

643 leeway explore in which dis- has “substantial areas HHS pos[es] particularly against crimination regulations prohibit significant problems devise and to 469 Choate, S., Alexander v. U. such discrimination.” n. 24. 304, Secretary’s according greatest respect to the

Even cannot fill the lack of an eviden- action, however, deference tiary the Final Rules must rest. The foundation on which perceived Secretary’s for federal intervention is dis- basis against handicapped 504, infants violation crimination yet pointed to no evidence that such has regulators gen- occurs. Neither the fact that discrimination particular erally may rely generic information a field gained comparable experience fields, other nor the fact or may imposed preventative pro- be supporting phylactic can substitute for evidence reasons, Secretary’s principle of own chosen rationale. For the agency’s accountability agency earlier means that “an recited upheld, articulated all, if at on the basis action must be agency Assn. v. State itself.” Motor Vehicle Mfrs. (citations Co., Ins. 463 U. at 50 S., Farm Mut. Automobile omitted).31 evidentiary agency proper action is basis for

The need for Congress especially has failed to acute in this case because legislative history, in the either in the statute or indicate, superintendence of treatment deci it envisioned federal governance. “[W]e traditionally to state entrusted sions implications and limitations of our fed must assume congressional major premise system all eral constitute repeatedly legislation, though recited therein.” United (1953) (opin Gambling 450 Devices, 441, 346 U. S. v. States 31 Institute, Donovan, Inc. v. American Textile Mfrs. Accord, 452 U. S. Lines, States, Inc. v. Burlington Truck United (1981); 371 U. S. 490, 539 Chenery Corp., 332 SEC 194, (1947); SEC v. (1962); U. S. Chenery Corp., S. U. *29 J.).32 not Jackson, ion of therefore “will be deemed Congress the federal-state balance,” to have significantly changed (1971) Bass, United States v. 404 U. 349 to have 336, S. —or authorized its to do so—“unless otherwise the delegates pur Bros., FTC v. Bunte defeated,” of the Act would be pose (1941).33 Inc., 349, 312 351 the nondiscrimi Although U. S. 32 Frankfurter, Statutes, Reading See Some Reflections on the of 47 (1947) (“The 527, underlying assumptions Colum. L. Rev. 540 of our dual government, consequent presuppositions legislative form and the of of expressive history habits, draftsmanship which are of our cut across implied range legislation”). might what otherwise be the of 33 Heublein, Comm’n, 275, Inc. v. Tax 409 Cf. South Carolina U. S. (1972) (“ Congress conveys purpose clearly, 281-282 its ‘[U]nless it will not significantly changed be deemed to have the Federal-State balance.’” Bass, S., 349); (quoting United v. 404 U. at Davies States Warehouse Co. (1944)(“Where Bowles, 144, Congress clearly v. 321 U. S. 152 has not indi purpose precipitate agencies cated a conflict federal [between and state (footnote authority] by omitted)); we should be reluctant to do so decision” (1943) Dairies, Comm’n, 261, Penn Inc. v. Milk Control 318 U. S. 275 (“An unexpressed purpose Congress of to set aside statutes of the states regulating lightly their internal affairs is not ought to be inferred and implied legislative command, light be where the read in the of its his tory, Bros., Inc., ambiguous”); S., remains v. Bunte FTC 312 U. (“The 354-355 construction of 5 the Federal Trade [of Commission Act] by urged give agency pervasive the Commission would thus a federal con myriads trol traditionally over of local businesses matters heretofore left upon to local custom or local law. ... An inroad local conditions and local far-reaching import here, standards of such ought as is involved to await a Congress”); Apex Hosiery Leader, clearer mandate from Co. v. 310 U. S. (1940) (“The 469, system proper maintenance our federal of a distri governments bution police authority between state and national and of private public public remedies wrongs far-reaching impor is of tance. An intention to disturb the lightly imputed balance is not to be (CA7 Congress”); Altobella, 310, 1971); United States v. 442 F. 2d 313-316 Sands, (4th Statutory §62.01, 3 C. Sutherland on p. Construction ed. 1974) (“[T]he rule of strict derogation construction [of statutes of sover eignty] quasi-constitutional purpose serves a system in our federal split by helping sovereignty to secure both sovereign power against levels of en (footnote omitted)). by croachment each other” legislative history support the Rehabilitation Act does not the no- Congress tion intended intervention federal officialsinto treatment language sufficiently nation mandate 504 is cast broad suggest question authority, is “not one of but its appropriate propriety [t]he exercise[,] of the exertion authority purpose must be its tested relation to the [statutory] grant regard principle and with suitable to the power that whenever the federal exerted within what power, justifica would be the otherwise domain of state power clearly ap tion of the exercise of the federal must pear.” Florida United States, U. S. 211-212 (1931). Chicago, Accord, M., St. P. & P. R. Co. v. Illinois, appear 355 U. S. is, That “it must *30 findings, supported by there are evidence, essential justify Secretary’s] [the . . . facts which would conclusion.” States, Florida v. United 282 S.,U. at 212. The adminis reasoning trative record does not contain the and evidence necessary that is to sustain federal intervention into a histori cally process appears state-administered decisional that —for any contrary functioning lack of evidence to the be full —to § compliance with 504. history exposes inappropri of these extraordinary virtually ateness a carte deference— requested by Secretary’s the Government. The blanche— traditionally parents decisions left state law to concerned and the at- or, tending physicians eases, in exceptional agencies charged state protecting noted, infant. Appeals welfare As the Court of there nothing legislative history in the remotely suggests that even that Con- gress contemplated possibility that “section 504 ap- could or would be plied decisions, involving to treatment defective newborn infants.” F. (1984). 144, 159 2d “ determined, ‘As far as can congressional be no committee or member of or suggested the House Senate ever even that section would be used to monitor medical treatment of defective newborn infants or establish preserving particular standards for quality group of life. No medical appeared practice alert to the intrusion into medical which some doctors apprehend undertaking, representatives from such an parents nor were Id., spokesmen religious or beliefs that be would affected heard.’” Academy Heckler, American at Pediatrics (quoting Supp., 561 F. 401). only previous, pa § reading present after 504 has evolved wanting.34 interpretations tently had been found erroneous regulations began history in 1982, of these The checkered they hospitals Department that would vio notified when they “allow[ed] to remain their care if an infant” late 504 guardian [had consent withheld after “the infant’s discriminatorily.” to] 47 Fed. treatment or nourishment By Proposed Reg. Rules were an 26027. the time the year had abandoned later, one nounced Department equally substituted the But the construction. provision flu nourishment, “the view that basic untenable nursing option for medical care” was “not an ids, and routine forego “[t]he judgment” medical treat and that decision to life-threatening in defect because an ment of a correctable handicap permanent irremediable from a fant also suffers life-threatening, retardation, as mental is a is not such insinuating by omission that lack of 504,” of Section violation hospital’s obligation pro parental not alter the consent did surgery. 48 Fed. vide corrective prior

Although preamble to the Final Rules corrects Department signals 504 authorizes from the erroneous and to the lives of override decisions save it to regula persists advocating *31 in it federal infants, by precipitated of treatment denials refusals tion on the basis ground experience on the that its consent and Baby has demonstrated that “the as Doe hotline with medically sumption handicapped ben infants will receive always justified.” 49 Fed. 1646 eficialtreatment is (1984). response, together previous remarks, its makes

This Department regards inference that the its irresistible the interpretation neither consistent agency’s The fact that the “has been given substantially . . diminishes the deference to be to longstanding nor . Southeastern interpretation present of the statute.” [now HHS’s] HEW’s Davis, Elec Community College v. General S., (citing 442 U. n. (1976)). Gilbert, tric Co. U. S. mission as one principally concerned with the of medi- quality cal care for infants rather than handicapped with the imple- §504. mentation of We could not quarrel with a decision to concentrate its finite Department re- compliance sources on instances of discrimination rather life-threatening than instances which merely elective care has been with- held. Cf. Heckler v. 470 U. S. 821 But Chaney, in the statute nothing authorizes the to dispense with the law’s focus on discrimination and instead to employ federal resources to save the lives of newborns, handicapped without to whether are victims regard they of discrimination by recipients federal funds or not. Section 504 does not authorize the Secretary to unsolicited give advice either to parents, to state officials who are hospitals, faced with difficult decisions chil- concerning handicapped dren. We assume that may the “qualified professionals” em- ployed by Secretary may make valuable contributions neither particular cases, but nor the assumption sincere conviction that an immediate “on-site is “nec- investigation” the life essary protect or health of a individ- ual” can enlarge statutory powers Secretary.

The administrative record demonstrates the Secre- has asserted the tary authority to conduct on-site investiga- tions, inspect hospital records, and to participate decisional process cases in emergency which there was no colorable basis for that a believing violation of 504 had occurred or was about to occur. The District Court and the Court of held Appeals correctly that these investigative ac- tions were not authorized statute and that the regula- tions which purport authorize a continuation of them are invalid.

The judgment of the Court of Appeals affirmed.

It is so ordered. Burger in concurs Chief Justice judgment. Rehnquist took no part Justice consideration or this decision of case. joins White, with whom and Brennan

Justice Justice joins I, II, IV, with whom Justice O’Connor as to Parts dissenting. V, Section 504 of the Rehabilitation Act of 1973 forbids dis solely handicap programs crimination on the basis of receiving activities federal financial assistance. The issue us is whether the before of Health and Human any authority regulate Services has under the Act to medical concerning handicapped treatment decisions newborn in Relying prior fants. its decision United States v. Uni (CA2 1984), versity Hospital, Ap F. 2d Secretary the Court of peals power held that the was without in this respect and affirmed a decision of the District Court that Secretary may 504 does not extend so far and that the not regulate any such decisions manner.

Although my granted it is view that we certiorari to ad- plurality by erroneously issue, dress this avoids it first reading enjoining only the decision below as the enforcement specificregulations by affirming then on the basis promulgation satisfy of the did estab- principles lished law, administrative a matter that the Appeals Court of had no occasion to, not, and did discuss. respect, all due I With dissent.

I plurality’s initial and fundamental error is its state- only question presented specific ment that the here is question mandatory provisions whether the four of the Final Rules issued are authorized 504. This opinion judgment conclusion misconstrues the Appeals. plurality Court of concedes that the District judgment stop enjoining Court’s on its face did not *33 Ante, enforcement of the final regulations. at 625-626, n. 11. In fact, the District Court permanently enjoined Secre- from tary the final implementing regulations and also from or “continuing undertaking other any actions investigate treatment decisions regulate in- involving impaired newborn fants taken under authority 504, Section including pending and other enforcement investigation actions.” to Pet. App. for Cert. 51a-52a. This broad ousted injunction the Secre- tary from the field and entirely granted precise relief University sought by which was complaint, filed after Hospital and which to take full sought of that deci- advantage sion.1 The Court of affirmed and in Appeals no modi- way fied the injunction District Court had entered. so, the Court of doing relied on Appeals its deter- previous University Hospital mination had Secretary no statutory authority medical regulate treatment decisions newborn infants. regarding See to Pet. App. for Cert. 2a-3a.2 disagree plurality’s

1 1 with the complaints “[t]he conclusion that in this challenge Department’s ease did not authority regulate all treatment decisions, precisely mandatory but more provisions of the Final Rules activity along and enforcement pursuant those lines but undertaken to the Department’s ‘general authority’ Ante, to enforce 504.” n. 11. Although focusing extensively regulations most on the pending and HHS investigations, complaint specifically University Hospital cited the holding apply that “Section 504 [does] not to ‘treatment involving decisions defective App. complaint specifically newborn infants.’” 138. also requested preliminary that the District Court permanent “issue a in junction prohibiting enforcing the defendant from her final rule embodied (Jan. § 84.55, in seq. CFR 49 Fed. et prohibit 12, 1984), ing acting pursuant authority defendant from otherwise to the claimed Section 504 of the Rehabilitation in regard Act of to the medical treat Id., complaint ment of infants with birth defects.” at 159. thus requested both regulations injunction against invalidation of the and an all other actions in this area. Appeals’ The Court of affirming judg brief order the District Court’s ment, although characterizing judgment generally having as struck regulations, down the University Hospital changes cited and made no Appeals the broad relief awarded the District Court. The Court of were invalidated regulations It is true that the themselves result, however, was This enjoined. and their enforcement University Hospital conclusion compelled by directly any to issue power was without it care, with infants’ medical did that dealt whatsoever *34 the relief awarded District Court by the whole comprise I of thus no justifi affirmed the Court see Appeals. the of the Appeals’ for distortion Court of plurality’s cation of all-inclusive injunction, the District Court’s affirmance Hospital, University in now the law which, represents like the statu the Circuit.3 We should resolve threshold Second University Hospital case clearly that this tory question at all any the has authority whether pose namely, — Act decisions respect under the medical care regulate the newborn.4 handicapped

II University Act, which was construed in Section Hospital, provides: in the

“No otherwise individual qualified handicapped 706(7) title, as defined in States, United section of this absolutely construing indication that it the District Court’s gave no was broadly judgment’s language than judgment one whit less indicated. Nowhere, therefore, justification plurality’s is there for reconstruc- Appeals’ reading judgment. tive the Court parties regard appear 3 1 in this that the as well do not "to have note contemplated reading judgment adopted limited more below Respondents plurality. 9; for Petitioner American See Brief Brief 4; Hospital Respondents et al. Brief for As Association American Medical 14. et al. sociation validity University Hospital

4 1would not avoid the issue of the even judgment regulations. limited if the below were to invalidation these below, University judgment whether it extends as far as Given not, Hospital University Hospital regula or on the view was based that all Secretary’s § tion of medical treatment decisions is outside the 504 author decisions, ity ap of those I believe because nature that the better proach here would be for the Court to determine correctness of University Hospital any case.

shall, reason of solely by his be excluded handicap, from in, be denied the participation of, benefits or be sub- jected discrimination under any program activity Federal receiving financial assistance.” 29 U. S. C. §794.

After determining 706(7), which defines handicapped is not limited to persons, adults and includes the newborn, University Hospital Court of Appeals construed the “otherwise of 504 qualified” language to limit the reach of the section to situations which the handicap “unrelated to, and thus improper of, consideration services 2d, 729 F. at 156.5 question.” This, concluded the Court of would exclude most Appeals, newborns because their are not handicaps normally irrelevant to the need for medical services. Furthermore, the Court of Appeals thought “otherwise limitation qualified” should not *35 in the applied be “comparatively fluid context of medical “[wjhere treatment decisions” because con handicapping condition(s) dition is related to the to be it treated, will Appeals The Court of first addressed question and reserved the hospital comprised whether the or its program activity functions or re ceiving federal Noting financial assistance. fact-specific that this was a in Bell, quiry, City College cf. (1984), Grove v. 465 U. S. 555 the Court of Appeals hospital by § entire was covered pro assumed 504 and “whether, ceeded to consider assuming hospital the entire by is covered 504, section type investigation statute authorizes the of initiated here.” 2d, 729 F. at 151. I also do not consider hospitals whether or under what circumstances or hospital programs may neonatal programs constitute receiving activities federal financial judgment assistance. The of the District Court which by Appeals was affirmed the Court of guidelines does not set forth for in- terpreting language merely this enjoins this context: It actions directed programs at such or activities. The simply adopt as well statutory language Thus, without interpreting it. I assume here that the § applied only appropriate 504 strictures would programs be to or activi- ties, and I fact-specific therefore would leave of discussion this issue for proceedings. further I may § would not apply now hold that 504 never this basis. that a certainty par if ever, say be

rarely, possible Id., 156-157. ‘discriminatory.’” was ticular decision incongruities between these Having perceived identified of medical potential regulation of 504 and the the language newborns, the Court of Ap- handicapped regarding decisions “[bjefore intended ruling congress concluded peals would section we type this under litigation spawn from face of the stat- more than apparent want proof Id., turned Thus, Appeals at 157. Court ute.” it history, again nothing persuade where found legislative treatment of intended 504 to to medical apply it that Congress and hence to enter a field so traditionally infants handicapped did it consider the current the States. Neither occupied §504 to be a interpretation longstanding administrative for deference. calling judicial construction agency the section was view, therefore, inapplicable Court of Appeals’ decisions the newborn absent regarding to medical treatment congressional indication of intent. some further conclusion, I with this which the Court disagree Appeals to in the now. first at the Looking adhered case before us statute, I with the Court of agree Appeals’ language are conclusion that newborns handi- preliminary covered Act. There is no reason individuals capped statutory definition, an limitation into the age importing “§504 previously protects and this has stated Court in a vari- of all from discrimination handicapped persons ages receiving and activities federal financial ety programs Robinson, Smith S. 1016-1017 assistance.” U. (1984).6 This the critical whether a handi- question leaves

6Although clearly handicapped infants with birth defects are individuals by 504, they may § there is one manner in which differ from most covered Specifically, they may § handicapped purposes. other individuals for medically are correctable have a combination of conditions —some of which individuals, medically of which are not. In older some only irreparable may been so that correctable conditions have corrected infant, however, In a handicapping remain. newborn both cor conditions Thus, may both of these rectable and incorrectable conditions exist. since infant can ever capped be “otherwise qualified” for medical treatment and hence possibly subjected unlawful dis- crimination when he or she is denied such treatment.7 may major activities, interfere with types may life both of conditions be handicaps. context, however, considered to be In might this it make more only sense to handicaps consider as those conditions that cannot be medi- cally point they treated to the impair major will not life activities. For such likely correctable conditions would not be to cause the infant to be regarded handicapped. case, any as I defining believe that an infant’s handicap may problem well be a delicate and one that deserves some consideration. appear It would qualified for an infant to be for treatment his or parents her must have consented to such purposes treatment. For the Appeals this discussion of whether the Court of was correct that medical may regulated by 504,1 § treatment paren decisions never be assume that tal given arguably discriminatory consent has been and that the treatment being hospital decision is made or Appeals doctor. The Court of University Hospital concentrated on the nature of these decisions in con cluding may properly applied, be and I concentrate on that as parental well. That a situation in which treatment is refused where con given may sent has been not have been shown to have arisen does not un assumption question dermine this here. The critical oper is whether the provisions may §504 apply given ative ever here the nature of the decision. purposes addressing

For the Appeals’ University Hospi- Court of analysis, straightforward tal the most fact situation to consider is one provided which the benefit is the medical treatment itself and in which a hospital parental context, treatment refuses the face of consent. In this Appeals’ the Court of conclusion that the nature of the them- decisions precludes application may selves of 504 be addressed with maximum sim- note, however, plicity. may I that it provided by well be that the benefits hospitals §by beyond and doctors and covered 504 extend itself. example, provided by hospitals patients For one benefit and doctors to who may cannot make their own medical treatment decisions be medical advice patients’ ultimately in those best interest to those who must make the rele- provision vant medical treatment decisions. To the extent that the of this program activity statute, benefit is a covered I would think that requires given parents the statute that the same advice be of a handi- capped baby similarly nonhandicapped baby. as to the of a situated provided may reporting Another benefit be the of nontreatment to the rel- agency evant state in the case of a Again, decision not to treat. *37 this consideration of prior language It well be that our may is construction correct. has that Court implied Appeals’ Davis, 442 U. S. Community College In Southeastern is person qualified “[a]n we held that otherwise (1979), program’s requirements who able to meet all a one is im- be read as may This formulation handicap.” his spite all of the re- handicapped a meets person that where plying receive bene- necessary program’s a normally quirements he or is of his or her she otherwise handicap, fits regardless not interfere with and is handicap that does because qualified her for the program. irrelevant to his or qualification thus Thus, refusing view—that Appeals’ the Court condition handicapping is called for because of only of handicap basis cannot constitute discrimination new- similarly nonhandicapped there will be no situated since e., i. who treatment —draws born, sup- one needs same in Davis it turns on the same un- from our since holding port discrimination occurs when the only derlying perception for condition is irrelevant the qualification handicapping the program. provision activity a program of this benefit is or cov-

to the extent statute, 13, infra, requires see n. I think that 504 ered would baby hospital report nontreatment of a when it or doctor report nonhandicapped baby. for a the denial of the same treatment would My regard my in this are buttressed view of 504’scover- conclusions regarding baby. a black If age in the of a medical treatment decision case hospital different less efficacious treatment for a a or doctor advised baby baby, I be for a white believe that this would discrimina- black than Similarly, report under a failure to decision tion the statute. illegally me to because of race would seem to be discrimina- treat came tory-assuming that this decision otherwise within statute. sum, present although these additional situations the same issue as to baby handicapped baby qualified is otherwise and when such a when subjected example as does of a refusal treat to discrimination the direct may well that it be in these contexts that stat- although it be would effect, likely simplicity’s I have given be sake centered ute would most Hospital example. my University on the refusal-to-treat discussion of *38 Appeals’ interpretation “other- of under the Court of Even § may qualified,” that 504 it does not follow however, wise apply decisions for the newborn. to medical treatment never part example, esophageal not be obstruction, for would An baby suffering handicap parcel from Down’s the of a syndrome, thus oth- benefit from and is and the infant would spite having qualified removed in for the obstruction erwise completely handicap. case, In this the treatment baby’s handicapping If an other- condition. unrelated to the given treatment, so child would be the identical wise normal handicapped if discrimination on the basis of child should handicap be avoided.8 is to multiply examples like this. not be difficult to It would majority great of cases the if it is true that And even handicap I treatment, the need for doubt itself will constitute any the Court other mentioned that this consideration § Appeals justifies that 504 never the wholesale conclusion handicaps. applies That some or to newborn infants with § may discern- 504, fall within failures to treat most ing discriminatory may be diffi- to treat are which failures may applying area intrude into 504 this cult, and that categori- support the of the State do not traditional functions could be made that the Court arguments There are substantial argued, example, narrowly It could be Appeals read the statute. too specific by hospitals in terms of provided is not defined that the benefit Rather, “general medical care for whatever the benefit is treatments. benefit, If then a much broader treating.” this is happens to need Alternatively, reasonable. in this context is application of the statute narrowly, accommodation” “reasonable if benefit is defined more even dispensing of identical treatment. impartial mere might require more than (1985). Choate, I 19, and nn. 299-300, 469 U. S. Alexander v. See meaning 504 and Davis in this this issue of the exact need not resolve Hospital’s however, University broad context, my conclusion that because Although I do not resolve depend on it. reasoning incorrect does not was interpretations seem issues, expansive I that while the more note these regula in the interpretation adopted with the consistent C, pt. Appendix tions, does not. See CFR the more restrictive one 11(a) (1985). may applied to medi- never be that the section

cal conclusion surely handicapped infants. And about cal decisions any history legislative consideration of in the absence handicapped itself narrow the reach does not newborns County language. statutory Pharmaceutical See Jefferson Laboratories, 150, 159-162, 460 U. S. Abbott Assn. v. purpose of remedial Furthermore, the broad n. 18 handicapped by excluding be undermined would the section plurality coverage; indicates, if, as the its infants from leeway to ex- has substantial ante, 642-643, the against plore discrimination areas which *39 prohibit regulations problems poses and to devise serious appropriate to take note of the Secre- it is discrimination, subject properly tary’s present to the extends view that Ap- I Thus, believe Court at issue here. matter peals Hospital incorrectly University that 504 concluded in concerning apply may treatment decisions to medical never regarding handicapped infants. a decision newborn Where properly falls for a newborn medical treatment subject statutory provision, it should be within the §504. Consequently, I would re- in set forth constraints judgment below. verse the

Ill Having basis for the Court of determined that the stated University Hospital holding Appeals’ incorrect and was supported by University below cannot be that the decision Hospital’s prohibition, I remand the case to would blanket Respondents plural- Appeals. have, as the the Court of significant ity’s opinion demonstrates, raised issues itself statutory presented issue here. aside from the threshold example, questions regarding substantial are, There Secretary’s statutory authority scope this area particular regulations with the these are consistent whether questions I decline to reach and decide these statute. would the benefit of the first time this Court without for the lower courts’ deliberations.9 has plurality, however, chosen to out reach and address one of those is- subsidiary sues. has Because resolved issue in plurality that a man- ner I find indefensible its own I too it. terms, address concludes the four plurality mandatory provisions of the final invalid regulations are because there no is “ ‘rational connection between facts found and the choice Assn., Motor Vehicle made.’” Inc. v. State Farm Mfrs. Mutual Co., Automobile Ins. (1983) 463 U. S. (quoting Truck Lines, States, Inc. Burlington United 371 U. S. (1962)). 156, 168 The basis for this is conclusion the plurali- ty’s two perception only two discrete wholly catego- (1) ries of are decisions object final regulations: decisions made to treat or hospitals not treat where paren- (2) tal consent been given has made by decisions hospitals to refer or to refer a not case to the child state protective services where consent been agency has withheld.10 addition, although Secretary did not brief merits of re spondents’ arbitrary claim that the are invalid because and ca pricious, the did his view claim in indicate that this its current properly form is that it inadequate the case and on its face. See Reply Brief for n. Petitioner 6.

Specifically, respondents’ first asserts that argument as *40 involving to the lack of factual basis situations in which have in complaint. App. consented to treatment was not raised the See 146 (challenging showing parental lack of of instances where “erroneous” deci- proper sions were made and where medical authorities take did not meas- law). Thus, Secretary under major ures state the that the first contends by plurality claim relied properly addressed and the was never raised. Second, Secretary interpretative regulations the contends that these are duties, impose Reg. (1984), see no new substantive 49 Fed. 1628 given. that no factual need be basis their issuance therefore Cf. 553(b). § U. S. C. contentions, although perhaps representing procedural These bar claim, ante, our reaching provide this see n. an do additional sign plurality’s shaky ground. this ease resolution of rests on ease, observes, point plurality parties At this in the all as the con agree are parental application. cerned decisions not included in 504’s ante, at See 630. discrimi- pointed has not Secretary specifically the

Since from either of these resulted that provably actions natory finds decisions, plurality types two specific is occurring that discrimination conclusion Secretary’s characterization plurality’s factually. unsupported both the rationale, however, oversimplifies Secretary’s are the regulations to which of the situations complexity Secretary. of the reasoning and the addressed is in fact being that treatment Secretary’s proof First, infants is unquestioned from withheld is making obvious that whoever It is therefore plurality. from such infants are decisions withhold treatment them, is critical to understanding made. This basic in fact being and the discussion ac- reasoning, further Secretary’s indicates that clearly the proposed companying See Fed. starting point. Secretary’s this was the with this factual under- Proceeding 30847-30848 withholding is whether such the next question standing, under discrimination prohibited constitutes that the plurality It is at this point all situations. some or narrow view, only paradigmatic two the plurality’s errs. as contemplated by decisions were types of the discrimination violation constituting potentially ante, at 628-629. The plurality does not ex- statute. See in the discussion Secretary’s what however, precisely plain, of the distillation, my reading explana- to this rise gives does not leave me with so the regulations tion accompanying concerns. Secretary’s a view of the limited support regula- cited The studies medical treatment literature concerning tions and other in which process portray decisionmaking this area generally and often other concerned per- and the doctors the parents decision to are although sons as well involved — Thus, pa- not is the critical one.11 obviously consent or *41 11 g., Duff & Campbell, Ethical Dilemmas in the e. See, Moral and (1973). Gross, Nursery, also Special-Care Eng. 289 N. J. Med. See

rental consent decision does not occur a vacuum. In fact, (directly) hospital (indirectly) the doctors and the in most participate parental cases in the formulation of the final deci- many substantially sion and cases influence that decision.12 Consequently, against discrimination a infant may guises outright assume other than the refusal to treat parental given. may once consent has been Discrimination encourages discourage pa- occur when a doctor or fails a rental decision to refuse consent to treatment for a handi- capped discourage actually child when the doctor would or oppose a decision to refuse consent to the same nonhandicapped treatment child. Or discrimination may discriminatory occur when a doctor makes a parents simply recommendation that the follow. Alterna- tively, may hospital’s explicit discrimination result from type laissez-faire attitude about this of discrimination on the part of doctors.

Contrary plurality’s to the constrained view of the Secre- tary’s justification regulations, for the the stated basis for regulations cognizant those reveals that the was example, this more elusive discrimination. For the evidence extensively by proposal cited most his initial study practicing of these was a of attitudes of teaching pediatricians pediatric surgeons. See 48 (1983) (citing Randolph, Fed. Shaw, & Manard, Surgery: Survey Ethical Issues Pediatric A National Surgeons, Pediatricians and Pediatric 60 Pediatrics 588 (1977)). study This indicated that a substantial number of (76.8% pediatric surgeons pedi- these doctors and 49.5% of Cox, Barnes, Tatyrek, Pollay, Early Management Making & and Decision Myelomeningocele, for the Treatment of Pediatrics 12Presumably, program activity apply or 504 would to in this hospital’s would be the program context neonatal of medical care or the hospital’s program generally. case, medical care either actions of hospitals permit discriminatory both doctors and that cause or decisions part program activity subject that are taken as would be to 504’s constraints.

atricians) “acquiesce parents’ in decision to refuse would surgery if atresia in with intestinal a newborn consent for syndrome.” Id., at 590. It also . Down’s infant had . . also (23.6% minority pediatric of sur- a substantial indicated encourage pediatricians) geons would fact and 13.2% surgery parents in this situation and that to refuse consent (3.4% minority pediatric surgeons only and 15.8% a small attempt get pediatricians) mandat- a court order would comparison, surgery ing if refused consent. (7.9% pediatric surgeons minority only and 2.6% of a small acquiesce parental pediatricians) refusal to treat would anomaly. And a in an infant with no other intestinal atresia large (78.3% surgeons majority pediatric and 88.4% of directing try get pediatricians) a court order sur- would gery parental for treatment of a if consent were withheld Secretary recognized malignant thus tumor. The treatable differently in that doctors would act that there was evidence attempts decisions to affect or override terms of handicapped. depending whether the infant was “[t]he conceded that evidence, this Based on practices discriminatory life-threatening to- full extent of yet handicapped is not known” but concluded infants ward adequate single due lack of an infant to die “that for even complaint procedure unacceptable.” 48 Fed. notice and Secretary promulgated Thus, regulations, issue here. These relevant policies against part, require notice of the federal dis- that a place handicap posted in a crimination on the basis of be professionals hospital’s health care will see it. This where a “[consistent requirement is, concluded, as the target Department’s intent to the notice to nurses with the professionals.” App. 25. The health care notice and other may reasonably requirement, be read as aimed at therefore, professionals fostering health care of their an awareness discriminatory responsibility not to act manner with re- spect infants. to medical treatment decisions The second requirement regulations, that state agen- cies provide mechanisms for requiring reporting medical neglect handicapped children, is also consistent with the Secretary’s focus on discrimination in the form of discrimina- tory reporting.13

I therefore a rational perceive connection between the facts found by the Secretary the regulatory choice made. The identified an Secretary existing practice that there was reason to believe resulted from discrimination on the basis of Given this handicap. finding, nature of much amorphous of the possible discrimination, the Secretary’s profession that are regulations no matter appropriate how limited the and the focus of problem,14 the regulations on loci where unlawful discrimination seems most to occur likely and on persons likely be for I responsible it, conclude that these are not arbitrary and capricious and that Court errs in them down on striking that basis. Although here Secretary’s path be may marked with “‘less than ” “ ideal clarity,’ we will uphold such a decision ‘ifthe agency’s Motor Vehicles Mfrs. path may be discerned.’” reasonably Transportation, Assn., Bowman S., 463 U. at 43 (quoting Freight System, Inc. v. Arkansas-Best Inc., 419 U. 281, S. (1974)). The also plurality to the objects regulations’ requirement the state concerning protective agencies’ reporting proce- plurality The question reserves the whether reporting pro would be a ante, gram activity receiving assistance, 639, federal financial at n. and I follow that course. plurality says The “regulations may itself imposed pre be for ante, prophylactic reasons,” ventative or but concludes that proceeded perception here based problem on the of an actual prophylactic rather than a need me, however, for rules. To the Secre tary’s statement appropriate the rules are if necessary for even one problem plurality’s situation makes the respect question distinction this prophylactic able: The line between a rule and a justifi rule that draws its likely cation from the existence of even one unlawful action seems to me a very fine one. plurality ground. Specifically, the finds

dures on another prescription requirement is fact substantive that this plurality prohibition of discrimination. than a rather regulation sets forth on the fact that the this conclusion bases adopted by agencies. specificprocedures that must be state Secretary’s disregards plurality’s ex- conclusion pro- requirement. preamble planation to the for this explicitly regulations, posed stated: every Department “The has determined that under provide necessary, parents to med- law, state’s failure of ically explicitly is care to a child either cited as indicated compel grounds treatment or for action the state implicitly the state statute. These state covered provide appropriate administrative and also statutes prevent judicial in- authorities to such enforcement neglect, including requirements of medical stances *44 report suspected personnel cases to the state medical agency, agency protective access services to medi- child authority investigations and to com- files, cal immediate (1983). Reg. pel 48 Fed. treatment.” repeated accompanying finding in the statement the This was regulations: final among

“Although there are some variations state child following protective statutes, all have the basic ele- providers report requirement that health care ments: neglect, including suspected of child abuse or medi- cases timely receipt neglect; cal a mechanism for of such inquiry reports; process investi- for administrative and authority gation the and the facts; determine responsibility appropriate rem- an court order to seek edy apparent neglect, if it is found to abuse (1984). 49 Fed. exist.” require provide regulations, in turn, The that the State respect neglect to medical of handi- these same services §84.55(c) only capped infants. 45 CFR See by regulations requirements imposed involve additional enabling Department provisions itself to review for com- requirements. pliance nondiscrimination Conse- with the existing pro- regulations simply quently, track the state Secretary, requiring found to exist cedures procedures agencies provide same state those funded regulations specify The fact that the children. necessary procedures to ensure an absence of that are speak in “nondiscrimina- and do not instead discrimination requirement of the irrelevant. The substance tion” terms is plurality’s conclusion this re- is nondiscrimination. apparently gard, rests on a determination however, may implementation ac- mandate be of a nondiscrimination may only complished if the same result be one form—even accomplished ante, I n. 26. another route. See statutory regulatory over substance not elevate form would plurality’s determination sum, manner. this regulations explained inadequately supported as a were examination does not withstand of administrative law matter underlying problem Secretary’s and of discussion of the of the regulations themselves. the contours of

IV plurality My disagreement does not with the this case I rationale, chosen For even under its here, end however. assiduously Having re- dubious. ultimate conclusion find its only, validity to the its discussion stricted only concludingexpansively up plurality that not ends *45 by investigations regulations the taken Secre- but also other regulations tary independent Thus, are invalid. the of the Secretary’s investiga- enjoins apparently on-site the Court purport to authorize “the which tions as well as plurality Ante, at 647. And the of them.” continuation courts “cor- conclusionthat the lower this action on the rests investigative rectly not author- actions were held that these by Ibid. the statute.” ized in this plurality’s reasoning the at a loss to understand

I am below, ap- the plurality the judgment In construing respect. entered by the injunction that, although to conclude pears did Appeals the Court of by affirmed Court and the District all actions the under Secretary by to prohibit not purport these merely in fact extend beyond did injunction statute, indicates Thus, plurality regulations. particular “resemble,” to actions that as well applied below judgment lines the regulations. [of]” are “along [the] or “parallel,” Ante, at further defines what n. 11. The 625-626, plurality District con- Court Appeals the Court of it believes actions initiation forbids continuation injunction templated: “[T]he at instances directed activity and investigative regulatory if and, have refused consent to treatment parents in which action, such efforts to seek to undertake were on state requirements imposed affirmative compliance Ante, at n. 11. agencies.” services child protective I see either absolutely nothing the fact that from Aside Appeals’ judgment or the Court District Court’s broadly reading phrased a constrained support would District Court and affirmed without by relief awarded have some doubt as Appeals,151 the Court of modification is from a holding today holding the Court’s to how different over decisions no whatsoever authority § 504 HHS gives lack of coher- plurality’s infants. to treat raises substantial doubts as to crucial point ence on this to the basis for that holding. and as holding reach of the why as to how and the plurality’s I am Finally, puzzled they are invalid because the regulations determination actions not extends to other arbitrary capricious are apparently regulations. plurality under taken in situ- actions all enforcement enjoin would to consent to treatment. have refused ations which ante, Yet it is not clear to me that 625-626, n. 11. See swpra, 1-2, accompanying text. nn. See *46 plurality’s invalidating regulations basis for these would ex- example, why tend to all such I see, situations. do for plurality’s finding Secretary adequately did not support report his conclusionthat failures to treat refusals to likely result from discrimination that means such a conclusion justified. Secretary might prove never be will be able to particular hospital generally report that a fails to nontreat- specific ment babies for a treatment it where reports nonhandicapped nontreatment of babies for the same regula- In essence, treatment. that determination these inadequately supported factually tions were would not seem properly beyond pursuant to be extended actions taken regulations: Secretary these The fact that the has not ade- quately justified generalized action under the appropriate should not mean that individualized action in precluded. circumstances is

V plurality today judgment sum, mischaracterizes the and, below based on that mischaracterization, is sidetracked straightforward statutory from issue of that construction presents. plurality incorrectly case this an resolves fully parties, gives issue that was not addressed no guidance parties to the or the other as to proper governing construction statute, ade- fails quately explain precise scope holding how holding supported plurality’s under the chosen ration- misguided ale. From this I effort, dissent. O’Connor,

Justice dissenting. fully agree with Justice White’s conclusion I only question properly Ap- before us is whether the Court of peals correctly power concluded that the has no regulate 29 U. 794 to under S. C. medical deci- concerning handicapped agree sions I newborn infants. also application principles statutory of established con- appropriate judicial struction and of the standard review *47 inescapably agency to the conclusion leads action authority regulate Be- area. this has the juncture to address the I no need this however, see cause, they suffi- are to assess whether details §706 S. C. ciently under 5 U. review rational to survive parts (2)(A), join only II, IV, and V I, I White’s Justice dissent. 28 The notes ‘many potential against discrimination’ handi forms of eliminate all of governmental policy.’ of a broad capped people through ‘the establishment (1974).” Reg. 1636 1297, Cong., 38 49 Fed. Rep. No. 93d 2d Sess. S. (1984). may § prohibition contained in 504 matter how broad the But no be, prohibits it is discrimination. what VI). compliance report For while with Title their on agencies require own to document their state can nothing provision compliance authorizes 504, compliance by agencies him to enforce state to commandeer (in hospitals). recipients instance, this of federal funds other agencies protective are not field officesof services child State conscripted they may bureaucracy, not be the HHS against in federal crusade.29 the foot soldiers their will as S., 307, at Choate, in Alexander v. 469 U. stated As we legislative pre- post-1973 “nothing discussion in the major Congress suggests make inroads desired to proper longstanding to choose the discretion on the States’ agencies. provided by mix” state of services VIII any head of an Executive Branch 504 authorizes Section expertise agency’s agency regardless mission or of his —to — against regulations prohibiting promulgate discrimination (1974).30 pp. handicapped. Rep. 93-1297, 39-40 See S. No. authority, rulemaking a result of this As implicated by any pro Important principles of federalism are “federal puppets compels agencies ... to function as bureaucratic gram that state Mississippi, 456 U. S. the Federal Government.” FERC J.). (1982) O’Connor, (opinion 30 Twenty-seven agencies, including the National Endowment for the Commission, Valley Arts, Regulatory and the Tennessee Au the Nuclear thority, forbidding discrimination on the promulgated regulations have receiving handicap programs or activities federal financial assist basis of Department Housing Development has issued a ance. The Urban Wolfe, Regulations Promulgated Pur proposed rulemaking. Jones & See History Act of 1973:A Brief suant to Section 504 of the Rehabilitation 1986). Service, (Congressional Feb. Present 8-9 Research Status expertise predicated deference as There is thus not the same basis for interpre respect Agency’s the Environmental Protection we found with Air Act Amendments in Chevron U. S. A. Inc. v. tation of the 1977 Clean Inc., Council, S., 842-845, and with Natural Resources U. Defense Holding Bank respect the Federal Reserve Board’s construction of the Governors, Inst., Company v. Investment 450 U. S. Act Board FRS 46, 56, and n. 21