PDF1 - University of Maryland School of Law

handicapped infants might violate Section 504. . .ifthe hospital failed to report medical neglect of ahandicapped infant when it would report suchneglect of a similar nonhandicapped infant" 128Nevertheless, the plurality considered that "theSecretary has failed to point to any specific evidencethat this has occurred," 129 and therefore concludedthe regulation was not adequately supported by theadministrative record. 130The plurality opinion leaves a puzzling gapbetween the logic of its analysis and the apparentbreadth of the plurality's description of the Court'sinjunction. Nothing in Justice Stevens' analysissuggests that HHS should be prevented from investigatinginstances in which it is alleged that a recipientof Federal financial assistance is failing to reportmedical neglect solely because the victim has adisability, 131 only that HHS had provided insufficientevidence of the prevalence of discriminatorynonreporting to provide an administrative justificationfor the Final Rule. Yet, Justice Stevens wrote,"the injunction forbids continuation or initiation ofregulatory and investigative activity directed atinstances in which parents have refused consent totreatment. . . ." 132 Taken literally, that might appearto forbid investigations of discriminatorynonreporting by a Federal financial assistance recipi-128Id. at 637 n.23. Justice Stevens wrote:Because respondents have challenged the Secretary's regulationson their face, we have no occasion to address thequestion whether infants with birth defects are similarlysituated with infants in need of blood transfusions (theparadigm case in which hospitals have reported or havesought to override parental decisions. . .) or whether ahospital could legitimately distinguish between the twosituations on the basis of the different risks and benefitsinhering in certain operations to correct birth defects, on theone hand, and blood transfusions, on the other hand.Id. at 637-38 n.23. Naturally, if consent for treatment is withheld,not because there is a preference that the child die, but becausethe risks to the child's life from the treatment appear to outweighthe chance that the treatment would be successful in preservingthe child's life, there is no violation of section 504.129Bowen, 476 U.S. at 637-38.130The plurality also regarded as unjustified HHS directives toState child protective services agencies that receive Federalfinancial assistance concerning the manner in which they shouldprocess reports of medical neglect of children with disabilities andthe priority they should give to them:The Final Rule also order[s] state agencies to "immediate[ly]"review reports from hospitals, §84.55(c)(l)(iii), toconduct "on-site investigation[s]," id., and to take legalaction "to compel the provision of necessary nourishmentand medical treatment," § 84.55(c)(l)(iv)—all without regardto the procedures followed by state agencies in handlingcomplaints filed on behalf of nonhandicapped infants. . . .The complaint-handling process the Secretary wouldimpose on unwilling state agencies is totally foreign to the76ent, nonreporting that, of course, could only becomean issue when parents have at least nominallyrefused consent. 133Because there was no binding majority opinion,and because the plurality opinion is ambiguous, itmight be appropriate for the Department of Healthand Human Services to act to enforce section 504 ina well-documented instance of discriminatory failureto report as a way of ultimately obtaining clarificationor adjustment from the Court.Enforcement of section 504 is contingent, ofcourse, on receipt of Federal financial assistance bythe source of alleged discrimination. In the pluralityopinion, Justice Stevens wrote: "We do not addressthe question whether reporting, either as a hospitalpractice or as a requirement of state law, constitutesa 'program or activity receiving Federal financialassistance' under Section 504." 134 The Commissionconcludes that passage of the Civil Rights RestorationAct eliminates this concern, since it defines"program or activity" under section 504 as including"all of the operations of. . .an entire corporation,partnership, or other private organization. . .whichis principally engaged in the business of providing.. .health care. . . ," 135 If a hospital engages inauthority to prevent discrimination conferred on him bySection 504. .... . .Even if a state agency was scrupulously impartial asbetween the protection it offered handicapped and nonhandicappedinfants, it could still be denied federal funding forfailing to carry out the Secretary's mission with sufficientzeal.Id. at 639-41.131But see text accompanying note 134, infra.132133Bowen, 476 U.S. at 625, n.ll.The dissent took note of this point:The plurality apparently would enjoin all enforcementactions by the Secretary in situations in which parents haverefused to consent to treatment. . . .Yet it is not clear to methat the plurality's basis for invalidating these regulationswould extend to all such situations. I do not see, for example,why the plurality's finding that the Secretary did notadequately support his conclusion that failures to reportrefusals to treat likely result from discrimination means thatsuch a conclusion will never be justified. The Secretary mightbe able to prove that a particular hospital generally fails toreport nontreatment of handicapped babies for a specifictreatment where it reports nontreatment of nonhandicappedbabies for the same treatment. . . .The fact that the Secretaryhas not adequately justified generalized action under theregulations should not mean that individualized action inappropriate circumstances is precluded.Id. at 2132 (White & Brennan, JJ., dissenting).134Id. at 2119 n.25.135Pub. L. No. 100-259, §4, 102 Stat. 29 (1988), codified at 29U.S.C. §793(b)(3)(A)(ii) (Supp. 2, July 1988).