PDF1 - University of Maryland School of Law

lifesaving operations to close her back lesion andinstall a shunt for her hydrocephalus came onOctober 28, 1983. On October 19, HHS had receiveda complaint under section 504 relating to the case. 91After studying the evidence entered in the Statecourt proceedings, which included the child's medicalrecords from birth through October 19, theSurgeon General considered it necessary to obtainmore recent medical records to determine if anyviolation of section 504 had occurred. The SurgeonGeneral stated: "An appropriate determination concerningwhether the current care of Infant Jane Doeis within the bounds of legitimate medical judgment,rather than based solely on a handicapping conditionwhich is not a medical contraindication to surgicaltreatment, cannot be made without immediate accessto. . .current medical records. . . ." 92 When repeatedrequests for the records by HHS wererebuffed, the Department of Justice filed suit inFederal district court for an injunction requiring thehospital to make them available. 93Although acknowledging that University Hospitalwas a recipient of Federal financial assistance andsubject to section 504, the district court enteredsummary judgment against the government, holdingthat the records already available established thatthe hospital had not engaged in discriminationprohibited by 504. The court found that "the paperssubmitted demonstrate conclusively that the decisionof the parents to refuse consent to the surgicalprocedures was a reasonable one based on dueconsideration of the medical options available.. . ." 94The government appealed to the Second CircuitCourt of Appeals. It maintained that the districtcourt's ruling had the absurd effect of requiringHHS to make an advance evidentiary showingconcerning the ultimate issue of unlawful conduct asa prior condition to securing the materials necessary91Id. at 146.92Quoted in id.93HHS relied upon 45 C.F.R. §80.6(c):Each recipient [of Federal funds] shall permit access by theresponsible Department official or his designee duringnormal business hours to such of its books, records, accountsand other sources of information, and its facilities as may bepertinent to ascertain compliance. . . .Asserted considerationsof privacy or confidentiality may not operate to barthe Department from evaluating or seeking to enforcecompliance. . . .94United States v. Univ. Hosp., 575 F. Supp. 607, 614-15(E.D.N.Y. 1983), affd 729 F.2d 144 (2d Cir. 1984).to reach the determination whether unlawful conducthad occurred. The Second Circuit noted that"[a]n administrative agency is entitled to access toinformation 'not plainly incompetent or irrelevant toany lawful purpose of the [agency] in the dischargeof [its] duties.'" 95 However, the Second Circuitconcluded that the proper question was whether"the subject matter of the investigation is within theagency's statutory jurisdiction." 96The Second Circuit concluded it was not. Afterdismissing the regulatory history as "inconclusive,"97 and holding that Baby Jane Doe was indeeda "handicapped individual" for purposes of section504, 98 the court essentially argued that the languageof the provision was not naturally adapted to theevaluation of medical treatment decisions. First, thecourt focused on the statute's requirement that suchan individual be "otherwise qualified" for the benefitsin question:[T]he phrase cannot be applied in the comparatively fluidcontext of medical treatment decisions without distortingits plain meaning. In common parlance, one would notordinarily think of a newborn infant suffering frommultiple birth defects as being "otherwise qualified" tohave corrective surgery performed or to have a hospitalinitiate litigation seeking to override a decision againstsurgery by the infant's parents."Second, the court wrote that medical decisionmakingis too complex to be analyzed in terms of"discrimination":Where the handicapping condition is related to thecondition(s) to be treated, it will rarely, if ever, be possibleto say with certainty that a particular decision was"discriminatory". . . .Beyond the fact that no two casesare likely to be the same, it would invariably requirelengthy litigation primarily involving conflicting experttestimony to determine whether a decision to treat, or notto treat, or to litigate or not to litigate, was based on a"bona fide medical judgment," however that phrase mightbe defined. 10095University Hospital, 729 F.2d at 149, quoting Endicott JohnsonCorp. v. Perkins, 317 U.S. 501, 509 (1943).98Id. at 150.97Id. at 154.98Id at 155.99Id. at 156.100Id. at 157. In fact, HHS had already described the distinctionbetween the condition requiring treatment and the "handicap"which is illegitimate as a ground for discrimination under section504. It did so in the supplemental information published with theFinal Rule on Jan. 12, 1984:[W]here the handicapping condition and the condition to betreated are the same. . .the "handicap" is the physical ormental impairment the infant has or will have (or "is72