MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. AMERICAN HOSPITAL ASSOCIATION, ET AL.

   No. 84-1529

   In the Supreme Court of the United States

   October Term, 1984

   The Solicitor General, on behalf of the Secretary of Health and
Human Services, petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Second Circuit
in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

                                  II

                       PARTIES OF THE PROCEEDING

   The petitioner is Margaret M. Heckler, the Secretary of Health and
Human Services.

   The respondents are the plaintiffs in two suits filed in the
district court that were consolidated in that court and in the court
of appeals.  The plaintiffs in American Hospital Association, et al.
v. Heckler are the American Hospital Association, the Hospital
Association of New York State, and Strong Memorial Hospital of the
University of Rochester.  The plaintiffs in American Medical
Association, et al. v. Heckler are the American Medical Association,
the American Hospital Association, the Hospital Association of New
York State, the American College of Obstetricians and Gynecologists,
the Association of American Medical Colleges, the American Acadamy of
Family Physicians, and Drs. Hubert A. Ritter, Peter A. M. Auld, Rita
Gilman Harper, and Roy Howard Petrie.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute and regulations involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The order of the court of appeals summarily affirming the judgment
of the district court (App., infra, la-3a) is not reported.  The prior
opinion of the court of appeals in United States v. University
Hospital of the State University of New York at Stony Brook (App.,
infra, 4a-47a), upon which both the district court and court of
appeals relied in this case, is reported at 729 F.2d 144.  The
memorandum and order of the district court (App., infra, 48a-49a) are
reported at 585 F. Supp. 541.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 27,
1984.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                   STATUTE AND REGULATIONS INVOLVED

   1. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794,
provides:

         No otherwise qualified handicapped individual in the United
      States, as defined in section 706(7) of this title, shall,
      solely by reason of his handicap, be excluded from the
      participation in, be denied the benefits of, or be subjected to
      discrimination under any program or activity receiving Federal
      financial assistance or under any program or activity conducted
      by any Executive agency or by the United States Postal Service.
      The head of each such agency shall promulgate such regulations
      as may be necessary to carry out the amendments to this section
      made by the Rehabilitation, Comprehensive Services, and
      Developmental Disabilities Act of 1978.  Copies of any proposed
      regulation shall be submitted to appropriate authorizing
      committees of the Congress, and such regulation may take effect
      no earlier than the thirtieth day after the date on which such
      regulation is so submitted to such committees.

   2. 45 C.F.R. 84.55 and 45 C.F.R. Pt. 84, App. C, as added by 49
Fed. Reg. 1650-1654 (Jan. 12, 1984), are reproduced in the appendix to
this petition (App. infra, 53a-72a).

                          QUESTION PRESENTED

   Whether Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794, prohibits a hospital program receiving federal financial
assistance from withholding nourishment or medically indicated
treatment from a handicapped child, or otherwise descriminating
against the child, solely because of his handicap.

                               STATEMENT

   1.a. On April 30, 1982, following public disclosure of an incident
in Bloomington, Indiana, in which a newborn child with Down's Syndrome
was permitted to starve to death after being denied life-saving
surgery to repair a blocked esophagus, the President directed the
Secretary of Health and Human Services to remind health care providers
receiving federal financial assistance that Section 504 of the
Rehabilitation Act of 1973 Prohibits discrimination on the basis of
handicap in programs or activities that receive federal financial
assistance.  See 49 Fed. Reg. 1622-1623 (1984);  American Academy of
Pediatrics v. Heckler, 561 F. Supp. 395, 397 (D.D.C. 1983).  On May
18, 1982, the Secretary sent such a notice to all covered health care
providers.  47 Fed. Reg. 26027.  The notice stated that "(t)here has
recently been heightened public concern about the adequacy of medical
treatment of newborn infants with birth defects" and that "(r)eports
suggest that operable defects have sometimes not been treated, and
instead infants have been allowed to die, because of the existence of
a concurrent handicap, such as Down's Syndrome." Ibid.

   Subsequently, on March 7, 1983, HHS promulgated interim final rules
establishing certain procedures relating to the application of Section
504 to refusals to treat handicapped infants.  48 Fed. Reg. 9630.  On
April 14, 1983, these regulations were invalidated by the United
States District Court for the District of Columbia in American Academy
of Pediatrics v. Heckler, supra.  Although the district court in that
case was of the view that the broad language of Section 504 might well
authorize some regulation of the provision of some types of medical
care to handicapped newborns (561) F. Supp. at 402), it concluded that
HHS's decision to waive the public comment period when it promulgated
the regulations violated the Administrative Procedure Act and that the
regulations were arbitrary and capricious because the administrative
record failed to establish that several important factors had been
adequately considered (id. at 403-404).

   b. The Secretary then published new proposed regulations on July 5,
1983.  48 Fed. Reg. 30846.  After receiving broad public comment, /1/
the revised final regulations at issue here were published on January
12, 1984.  49 Fed. Reg. 1622.

   The regulations explain the basic applicability of Section 504 in
this setting through interpretative guidelines, which establish four
basic principles:  (1) health care providers receiving federal
financial assistance "may not, solely on the basis of present or
anticipated physical or mental impairments of an infant, withhold
treatment or nourishment from the infant who, in spite of such
impairments, will medically benefit from the treatment or
nourishment";  (2) treatment that if futile or will do no more than
temporarily prolong the act of dying of a terminally ill infant is not
considered treatment that will medically benefit the infant for
purposes of Section 504;  (3) reasonable medical judgments in
selecting among alternative courses of treatment will be respected;
and (4) where a parent withholds consent to treatment that is
medically indicated, the hospital may not, solely on the basis of the
infant's handicap, decline to report the matter to the appropriate
child protective agency or to seek judicial review.  45 C.F.R. Pt. 84,
App. C para.  (a)(1)-(4).  /2/ The remainder of the regulations
contains measures for the implementation of these principles.

   The implementing regulations are tailored in a number of respects
to foster a cooperative effort on the part of the federal government,
state governments, the medical community, and private advocacy groups.
 For example, the regulations initiate new efforts to make the use of
federal enforcement mechanisms unnecessary by encouraging hospitals to
establish their own policies and procedures to implement the guiding
principles.  This approach follows the recommendation of the
President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research.  49 Fed. Reg. 1622, 1623-1625
(1984).  In accordance with this recommendation, the Secretary
developed a model for hospitals that wish to establish Infant Care
Review Committees to assist in evaluating issues relating to the
treatment of handicapped infants.  45 C.F.R. 84.55(a) and (f).

   Under the proposed model, the Infant Care Review Committee /3/
would develop and recommend to the hospital institutional policies
concerning the withholding or withdrawal of treatment from infants
with life-threatening conditions, including guidelines for management
of certain categories of cases (e.g., Down's Syndrome and Spina
Bifida) and procedures to be followed in certain recurring
circumstances (e.g., brain death and parental refusal to consent to
life-saving treatment).  45 C.F.R. 84.55(f) (3) (i).  The Committee
also would review specific cases where a preliminary decision has been
made to withhold or withdraw life-sustaining treatment from patients
in certain categories or where there is a disagreement between the
treating physician and the family regarding such treatment, and the
Committee would recommend that the hospital refer the case to an
appropriate court or child protective agency if the Committee
disagreed with the family's refusal to consent to treatment in a
particular case.  45 C.F.R. 84.55(f) (3) (ii).  In addition, the
Committe would conduct a retrospective record review of cases in which
treatment had been withdrawn or withheld, in order to determine
whether such instances were consistent with the hospital's policies.
45 C.F.R. 84.55(f) (1) (iii).

   In accordance with the policy of involving state agencies in the
process as well, the regulations require each state child protective
services agency that receives federal financial assistance to
establish methods of administration and procedures to assure that it
utilizes its full authority pursuant to state law to prevent instances
of unlawful medical neglect of handicapped infants.  45 C.F.R.
84.55(c).  These methods and procedures must include a requirement
that health care providers report circumstances that they determine to
constitute known or suspected instances of unlawful medical neglect of
handicapped infants;  provisions for the state agency to review and,
if necessary, investigate such reports;  procedures for affording
child protective services to medically neglected handicapped infants,
including, where appropriate, seeking a timely court order to compel
the furnishing of necessary nourishment and medical treatment;  and
notification to HHS of each report of suspected medical neglect of an
infant solely because of his handicap, including the nature of the
state agency's investigation and final dispostion of the matter.
Ibid.

   Finally, in order to facilitate investigation by HHS where
necessary, the regulations provide for expedited access to records and
facilities of the recipient hospital for investigative purposes when
"necessary to protect the life or health of a handicapped individual."
45 C.F.R. 84.55(d).  Similarly, when immediate action is necessary,
the regulations allow for waiver of the usual 10-day waiting period
prior to the initiation of judicial or other action to effect
compliance.  45 C.F.R. 84.55(e).  An appendix to the regulations sets
forth guidelines for HHS investigations of reports of unlawful
withholding of medical treatment, including provisions for
consultation with the hospital's Infant Care Review Committee and
measures to insure that any investigations are conducted promptly and
with the least disruption possible.  45 C.F.R. Pt. 84, App. C. para.
(b).  The regulations also require recipient hospitals to post a
notice, visible to nurses and other medical professionals, which (i)
states that Section 504 prohibits the withholding of nourishment and
medically beneficial treatment from handicapped infants based solely
on their present or anticipated mental or physical impairments, and
(ii) identifies the designated hospital official, the appropriate
child protective services agency, and the HHS office that may be
contacted to obtain further information or to report suspected
noncompliance.  45 C.F.R. 84.55(b).

   2.a. On April 6, 1983 the American Hospital Association, the
Hospital Association of New York State, and Strong Memorial Hospital
filed suit in the United States District Court for the Southern
District of New York challenging the initial regulations that were
promulgated by the Secretary on March 7, 1983.  See page 3, supra.
The district court entered a temporary restraining order barring
enforcement of those regulations in New York State.  American Hospital
Ass'n, et al. v. Heckler, 83 Civ. 2638-CLB (Apr. 6, 1983).  However,
before a hearing could be held by the district court below, the United
States District Court for the District of Columbia declared the
regulations invalid on APA grounds in American Academy of Pediatrics
v. Heckler, discussed at page 3, supra.  On March 12, 1984, after the
Secretary promulgated the new regulations at issue here, the
plaintiffs filed an amended complaint challenging those regulations as
beyond the Secretary's authority under Section 504.  On the same date,
a second suit was filed in the District Court for the Southern
District of New York by the American Medical Association, the American
Hospital Association, and others challenging the same regulations.
The two suits were consolidated in the district court.

   By memorandum and order dated May 23, 1984, the district court held
that the regulations are beyond the Secretary's statutory authority
under Section 504 (App., infra, 48a-49a).  In so holding, the court
concluded that this case was directly controlled by the Second
Circuit's decision in United States v. University Hospital of the
State University of New york at Stony Brook, 729 F.2d 144 (1984)
(App., infra, 4a-47a), discussed at pages 8-11, infra.  On June 11,
1984, the district court entered its final judgment, which permanently
enjoined the Secretary and her officers, agents, employees, and
attorneys from any further implementation of the regulations and from
taking any other action under Section 504 (including any pending
investigation or other enforcement action) to investigate or regulate
treatment decisions involving impaired newborn infants in any program
receiving federal financial assistance (App., infra, 50a-52a).

   b. In a brief per curiam order dated December 27, 1984, the court
of appeals summarily affirmed the district court's judgment on the
basis of the court of appeals' prior decision in United States v.
University Hospital (App., infra, 1a-3a).  /4/

   3.a. In United States v. University Hospital, which both the
district court and court of appeals regarded as controlling in this
case, a divided panel of the Second Circuit held that Section 504 is
wholly inapplicable to the withholding of medical treatment from
handicapped infants.  The court therefore held that the government was
not entitled under existing regulations (45 C.F.R. 80.6(c), 84.61) to
access to the hospital's records pertaining to a particular
handicapped infant, Baby Jane Doe.  HHS had received a complaint that
Baby Jane Doe was being discriminatorily denied life-saving medical
treatment on the basis of her handicap, and it sought access to her
medical records in order to investigate whether a violation of Section
504 had occurred.  /5/

   The court of appeals in University Hospital assumed, without
deciding, that the hospital's receipt of Medicare and Medicaid funds
constituted the receipt of "Federal financial assistance" that
triggered the application of Section 504 to the withholding of medical
treatment from Baby Jane Doe (App., infra, 16a-18a).  Further, the
court held that Baby Jane Doe was a "handicapped individual" for
purposes of Section 504 (id. at 26a-28a).  However, the majority held
that Baby Jane Doe could not be considered to be an individual who was
"otherwise qualified" for the hospital's services or was "subjected to
discrimination" within the meaning of Section 504 (id. at 28a-39a).

   According to the majority, "the phrase 'otherwise qualified' is
geared toward relatively static programs or activities such as
education, employment, and transportation systems.  As a result, the
phrase cannot be applied in the comparatively fluid context of medical
treatment decisions without distorting its plain meaning" (App.,
infra, 30a (citations omitted)).  Nor, in the majority's view, could
the child be considered to be "subjected to discrimination," because
"(w)here the handicapping condition is related to the condition(s) to
be treated, it will rarely, if ever, be possible to say with certainty
that a particular decision was 'discriminatory'" (ibid.).  The
majority also declined to attach significant weight to the Secretary's
interpretation of Section 504 in this setting, terming the regulatory
history "inconclusive" (id. at 25a;  see generally id. at 18a-25a).
In addition, the majority read the legislative history to reflect a
congressional concern primarily with access by the handicapped to
federally assisted programs, and it relied on the absence of a
specific statement in the legislative history that Section 504 applies
to medical treatment decisions (id. at 31a-38a).  Finally, the
majority concluded that to require a hospital to petition a state
court or to take other steps to override the parents' withholding of
consent to treatment in a particular case would impose an "affirmative
action" burden on the hospital, contrary to this Court's decision in
Southeastern Community College v. Davis, 442 U.S. 397 (1979) (App.,
infra, 39a).

   b. Judge Winter dissented (App., infra, 42a-47a).  He concluded
that because Congress explicitly patterned Section 504 after Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., which
prohibits discrimination on the basis of race in federally assisted
programs, Congress had determined that, "so far as the administration
of federal financial assistance is concerned, discrimination on the
basis of a handicap should be on statutory par with discrimination on
the basis of race" (App., infra, 43a-44a).  Judge Winter stressed that
the government has never taken the position that it is entitled to
override a medical judgment;  "(i)ts position rather is that it is
entitled under Section 504 to inquire whether a judgment in question
is a bona fide medical judgment" (id. at 44a).  Based on the
statutorily mandated analogy to racial discrimination, Judge Winter
concluded that the logic of the government's position is "about as
flawless as a legal argument can be" (ibid.):

      A judgment not to perform certain surgery because a person is
      black is not a bona fide medical judgment.  So too, a decision
      not to correct a life threatening digestive problem because an
      infant has Down's Syndrome is not a bona fide medical judgment.
      The issue of parental authority is also quickly disposed of.  A
      denial of medical treatment to an infant because the infant is
      black is not legitimated by parental consent.  Finally, once the
      legislative analogy to race is acknowledged, the intrusion on
      state authority becomes insignificant.

   Accordingly, Judge Winter would have reversed the judgment of the
district court in University Hospital and remanded for a determination
whether the hospital was a recipient of "Federal financial assistance"
that triggered the application of Section 504 to the infant (id. at
47a).  /6/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals had held that the Secretary's regulations and
interpretative guidelines concerning the application of Section 504 to
the withholding or withdrawal of nutrition or medically beneficial
treatment from an infant solely by reason of his handicap are invalid
on their face.  The court has held, in other words, that Section 504
does not apply to this entire category of cases, no matter how
egregious the circumstances.  Thus, to use one of the specific
examples cited in the Secretary's interpretative guidelines, /7/
Section 504 does not, in the court of appeals' view, prohibit a
federally assisted hospital program from withholding life-saving
surgery to correct an intestinal obstruction in an infant with Down's
Syndrome, even if the hospital would not hesitate to perform the same
surgery on a normal child and the hospital's failure to perform the
surgery is based solely upon the mental retardation of the infant and
thus solely upon his handicap.

   The court of appeals' holding is flatly inconsistent with the
language and purposes of Section 504 and with the Secretary's
implementing regulations and interpretative guidelines, which are
entitled to substantial deference.  Nor does such an implied exception
for all decisions concerning medical treatment of impaired newborn
infants find any support in the legislative history of Section 504,
which manifests an intent to adopt a broad bar to discrimination
against the handicapped in federally assisted programs, specifically
including those furnishing health services.  Yet the court of appeals
in this case has affirmed a sweeping nationwide injunction that
purports to bar the Secretary from undertaking any investigation or
enforcement actions under Section 504 with respect to any treatment
decisions involving handicapped newborn infants in any program or
activity receiving federal financial assistance.  What is more, the
court of appeals' view that Section 504 does not address decisions
concerning the furnishing of medical treatment is not logically
limited to infants whose impairments are severe, or even to infants.
By thus suggesting that any decision by a physician or hospital
relating to medical treatment is cloaked with blanket immunity from
scrutiny under Section 504, the decision below calls into question the
application of Section 504 to the furnishing of federally assisted
health services to handicapped individuals generally.  Review by this
Court therefore is plainly warranted.

   1.a. The starting point of analysis must of course be the language
of Section 504 itself, for "we assume 'that the legislative purpose is
expressed by the ordinary meaning of the words used.'" Kosak v. United
States, No. 82-618 (Mar. 21, 1984), slip op. 5, quoting American
Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982).  See Consolidated
Rail Corp. v. Darrone, No. 82-862 (Feb. 28, 1984), slip op. 7-9.
Contrary to the court of appeals' view (App., infra, 28a-31a), the
language of Section 504 clearly prohibits a hospital program receiving
such federal financial assistance as to bring it within the scope of
the statute (see note 12, infra), from withholding nourishment or
medically indicated treatment from a handicapped infant solely by
reason of his handicap.  Section 504 provides in relevant part:

         No otherwise qualified handicapped individual in the United
      States * * * shall, solely by reason of his handicap, be
      excluded from the participation in, be denied the benefits of,
      or be subjected to discrimination under any program or activity
      receiving Federal financial assistance * * *.

   The court of appeals in University Hospital held that an impaired
newborn child is a "handicapped individual" for purposes of Section
504 (App., infra, 26a-28a).  Although the court of appeals expressed
reservations even about that conclusion -- believing that the term
might be understood to apply only to adults (id. at 26a-27a) -- the
statutory language in our view is so clear as to admit of no other
interpretation.

   The broad directive that "(n)o * * * handicapped individual" may be
discriminated against itself suggests an all-inclusive coverage,
without regard to the individual's age.  Compare North Haven Board of
Education v. Bell, 456 U.S. 512, 520 (1982).  Moreover, the term
"handicapped individual" is defined in broad terms to mean "any person
who (i) has a physical or mental impairment which substantially limits
one or more of such person's major life activities, (ii) has a record
of such an impairment, or (iii) is regarded as having such an
impairment." 29 U.S.C. 706(7) (B) (emphasis added).  Especially in
light of the Secretary's 1977 regulations implementing Section 504
(see 42 Fed. Reg. 22677), there can be no question that the infants
who are the subject of the concern giving rise to the regulations at
issue here have "physical or mental impairment(s)" (App., infra, 26a)
/8/ and that those impairments substantially limit one or more of the
infants' major life activities." /9/ Moreover, as the court of appeals
observed (App., infra, 27a), "it would defy common sense" to rule that
the Baby Jane Doe involved in University Hospital was not at least
"regarded" by others as having such an impairment, and thus
handicapped within the meaning of 29 U.S.C. 706(7) (B) (iii).

   It also would seem clear that a handicapped newborn infant who,
solely because of his handicap, is denied nourishment or treatment
that would be medically beneficial is an "otherwise qualified"
handicapped individual who has been "denied the benefits of" and
"subjected to discrimination under" the federally assisted program
within the meaning of Section 504.  This Court stated in Southeastern
Community College v. Davis, 442 U.S. 397, 406 (1979), that the "plain
meaning" of the term otherwise qualified handicapped individual is
"one who is able to meet all of a program's requirements in spite of
his handicap." In Davis a deaf student was, because of her handicap,
not qualified for admission to nursing school because she could not
meet some of the educational program's basic physical requirements.
Obviously, one need not possess any special qualifications to benefit
from receiving nourishment.  Similarly, in the context of the
furnishing of health services, there ordinarily are no qualifications
that a patient must meet other than to have the ability, in spite of
his handicap, to benefit from medical treatment.  /10/ Accordingly, if
an infant's handicapping condition would not prevent him from
benefitting from, for example, corrective surgery, he must be
considered "otherwise qualified." That is the principle HHS applied in
adopting the regulations and interpretative guidelines at issue here.
/11/

   On this understanding, if a federally assisted hospital refused to
furnish an infant who has a handicap (e.g., Down's Syndrome) with
treatment that would be medically beneficial (e.g., surgery to remove
an intestinal blockage (see note 2, supra)) and that would be
performed for a child who is not handicapped, the infant quite clearly
has, "solely by reason of his handicap," been "denied the benefits of"
and been "subjected to discrimination under" the federally assisted
program.  Thus, contrary to the court of appeals' conclusion, the
regulations and interpretative guidelines respondents challenge are
firmly supported by the plain language of Section 504.  /12/

   The majority in University Hospital attempted to avoid this
conclusion by reasoning that the phrase "otherwise qualified" is
geared toward relatively "static" programs or activities such as
education, employment, and transportation systems, and cannot be
applied in the comparatively "fluid" context of medical treatment
decisions without "distorting its plain meaning" (App., infra, 30a).
But it is the majority below that is distorting the plain meaning of
Section 504, because the supposed distinction between "static" and
"fluid" contexts finds no support whatever in the statutory language.
Section 504 broadly prohibits discrimination in "any" program or
activity receiving Federal financial assistance" ((emphasis added);
see Consolidated Rail Corp. v. Darrone, slip op. 7), a phrase that
clearly encompasses the furnishing of health services.  See S. Rep.
93-1297, 93d Cong., 2d Sess. 38 (1974);  45 C.F.R. 84.3(h), 84.52.

   By its use of the term "fluid," the majority apparently meant that
a handicapped infant's need for a particular course of treatment may
vary with changes in the child's physical condition.  Where such
fluidity is present, it may appropriately inform the range of
reasonable medical alternatives and thereby support additional
deference to a physician's professional medical judgment.  But the
fact that some physical conditions may fluctuate does not support a
wholesale exemption from Section 504 for all decisions relating to
medical treatment.  There was, for example, nothing "fluid" about the
Bloomington Baby Doe's need for corrective esophageal surgery to
enable him to receive nourishment.  /13/ By the same token, programs
and activities other than the furnishing of health services are not
necessarily "static," as the majority in University Hospital seemed to
believe.  For example, in a federally assisted Educational program,
decisions that affect a handicapped child are made every day, and
adjustments might have to be made in that program to take into account
fluctuations in the child's physical or mental condition.  In short
the distinction the majority posited finds no basis in the statutory
language, the policies of Section 504, or common sense.

   b. The legislative history of Section 504 also fully supports the
validity of the regulations.  The legislative history of Section 504
as originally enacted is relatively sparse, but it describes the
Section in broad terms that contain no suggestion that Congress
intended to create the exception fashioned by the court of appeals.
/14/ The breadth of Section 504 is further stressed in S. Rep.
93-1297, 93d Cong., 2d Sess. (1974), which was issued in connection
with the 1974 addition of the definition of the term "handicapped
individual" in 29 U.S.C. 706(7) (B) and upon which this Court
repeatedly has relied as an authoritative exposition of the
congressional intent underlying Section 504.  /15/ That report states
that Section 504 "was enacted to prevent discrimination against all
handicapped individuals * * * in relation to Federal assistance in
employment, housing, transportation, education, health services, or
any other Federally-assisted programs" and "constitutes the
establishment of a broad government policy that programs receiving
Federal financial assistance shall be operated without discrimination
on the basis of handicap." S. Rep. 93-1297, supra, at 38-39 (emphasis
added).

   In addition, the Senate Report underscores what is in any event
evident from the language of Section 504:  that it is patterned
directly after Title VI of the Civil Rights Act of 1964 (see S. Rep.
93-1297, supra, at 39) and that Congress therefore concluded that
discrimination because of handicap should be viewed as "similar to
discrimination because of race" (id. at 38).  See Alexander v. Choate,
No. 83-727 (Jan. 9, 1985), slip op. 5 & n.7, 708 n.13;  Consolidated
Rail Corp v. Darrone, slip op. 5-6, 10 n.16;  Community Television v.
Gotfried, 459 U.S. at 509.  This congressionally mandated analogy to
racial discrimination, at least in the context of intentional
discrimination (compare Alexander v. Choate, slip op. 6-11), further
reinforces the validity of the regulations at issue here.  The
Secretary's interpretative guidelines expressly provide that
reasonable medical judgments will be respected.  45 C.F.R. Pt. 84,
App. C para. (a) (3).  But as Judge Winter explained in his dissent in
University Hospital (App., infra, 44a), not every decision by a
hospital that happens to relate to the furnishing of medical treatment
is perforce a bona fide medical judgment that is automatically immune
from scrutiny under the antidiscrimination laws.  Surely, for example,
a federally assisted hospital would not be free under Title VI to
decline to perform surgery to remove an intestinal obstruction in an
infant solely because of his race.  Although such a decision would
relate to medical treatment, it would not be a bona fide medical
judgment.  It is equally unlawful under Section 504 for the hospital
to decline to perform the same surgery on an infant solely because of
his handicap (e.g., Down's Syndrome).  Moreover, just as a hospital
could not, under Title VI, decline solely because of the child's race
to take appropriate steps to override a parental withholding of
consent to needed treatment, a hospital cannot, under Section 504,
decline to do so solely because of the child's handicap.

   The panel majority in University Hsopital believed that the analogy
to racial discrimination "breaks down," reasoning that "(w)here the
handicapping condition is related to the condition(s) to be treated,
it will rarely, if ever, be possible to say with certainty that a
particular decision was 'discriminatory'" (App., infra, 30a-31a).
Even assuming this observation were correct as an analytical matter
(but see note 17, infra), it says nothing about those instances in
which the handicapping condition is not necessarily related to the
impairment to be treated.  In the widely publicized Bloomington Baby
Doe case, a decision was made to forego routine surgery on an
intestinal blockage of a newborn child with Down's Syndrome because
such treatment would not cure the child's mental retardation.  /16/
The child starved to death.  The intestinal blockage plainly was
separable from any retardation associated with Down's Syndrome that
would have remained after the corrective surgery, and if the infant
had not been handicapped, the hospital surely would have taken steps
to provide the routine corrective surgery.  There is no difficulty in
determining that such a decision is "discriminatory." /17/

   The court of appeals in University Hospital also drew a negative
inference from the fact that medical treatment decisions were not
specifically mentioned in the legislative history of Section 504
(App., infra, 31a-35a).  But Congress's failure to advert expressly to
a particular application that the words and purpose of the statute
clearly embrace does not negate that application.  See, e.g.,
Jefferson County Pharmaceutical Ass'n v. Abbott Laboratories, 460 U.S.
150, 195 n.18 (1983), and cases cited.  See also United States v.
Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 8, 9-11.
That is especially so where, as here, Congress has deliberately
enacted a sweeping policy covering a broad range of programs and left
to the agencies concerned the responsibility to elaborate upon that
policy in particular contexts.  See pages 21-22, infra.

   Equally without merit is the court of appeals' reliance on what it
believed was Congress's exclusive concern in the legislative history
with access by handicapped persons to federally assisted programs
(App., infra, 33a-35a).  Section 504 on its face addresses not only
the matter of access (by providing that a handicapped person may not
"be excluded from the participation in" the program or activity);  it
further provides that a person may not be "denied the benefits of" or
be "subjected to discrimination under" the program, even if he does
have some measure of access to it.  In other words, Section 504
requires "evenhanded treatment" of handicapped individuals.  Alexander
v. Choate, slip op. 16.  Section 504 should be "'accord(ed) * * * a
sweep as broad as its language,'" and courts should not "read into
(the statute) a limitation (i.e., an exclusion for medical treatment
decisions) not apparent on its face." Grove City College v. Bell, No.
82-792 (Feb. 28, 1984), slip op. 8, quoting North Haven Board of
Education v. Bell, 456 U.S. at 521.

   c. The court of appeals also failed to accord any deference to the
Secretary's regulations and guidelines implementing Section 504 (App.,
infra, 25a).  Its decision in this respect is contrary to the
congressional intent that the Secretary promulgate such regulations
(S. Rep. 93-1297, supra, at 39-40) and to this Court's recognition
that "these regulations (are) an important source of guidance on the
meaning of Section 504." Alexander v. Choate, slip op. 16 n.24;  see
also Southeastern Community College v. Davis, 442 U.S. at 413.  The
regulations promulgated by the Secretary in 1977 expressly provide
that Section 504 applies to federally assisted programs for the
furnishing of health services (45 C.F.R. 84.4, 84.52, 84.53), and the
Secretary made clear at the time of promulgation that medical
treatment decisions are covered.  /18/ The origianl regulations did
not specifically mention the subcategory of treatment decisions
involving handicapped newborn infants, but this obviously does not
mean that it or any other subcategory was implicitly excluded from
coverage.

   The regulations promulgated in 1984, at issue here, were intended
simply to provide further guidance regarding the application of the
general principles of nondiscrimination in this particular setting.
Congress intended that the Secretary would have "substantial leeway to
explore areas in which discrimination against the handicapped posed
particularly significant problems and to devise regulations to
prohibit such discrimination." Alexander v. Choate, slip op. 16 n.24,
citing S. Rep. 93-1297, supra, at 40-41, 56.  See also id. at 19-20
n.32.  This is a continuing responsibility of the Secretary that may
require her to respond to reports of apparent discrimination, such as
the Bloomington Baby Doe case that led to the regulations at issue
here.  See Southeastern Community College v. Davis, 442 U.S. at 413
(emphasis added) ("Identification of those instances where a refusal
to accommodate the needs of a disabled person amounts to
discrimination against the handicapped continues to be an important
responsibility of HEW.");  Community Television v. Gottfried, 459 U.S.
at 512;  cf. Lau v. Nichols, 414 U.S. 563 (1974);  Guardians Ass'n v.
Civil Service Comm'n of New York City, 463 U.S. 582 (1983).

   The court of appeals believed that the Secretary had disclaimed any
authority with respect to medical treatment decisions when the present
Section 504 regulations were proposed in 1976, and it discounted the
Secretary's current view on that ground (App. infra, 18a-19a, 25a).
The court of appeals was wrong.  All that the Secretary determined in
1976 was that Section 504 did not authorize regulations "concerning
adequate and appropriate phychiatric care or safe and humane living
conditions for persons institutionalized because of handicap or
concerning payment of fair compensation to patients who perform work."
41 Fed. Reg. 29548, 29559 (1976).  In other words, Section 504 was not
understood to confer on institutionalized persons a right to safe
conditions or to treatment.  /19/ This conclusion of course was
consistent with the fact that Section 504 is concerned only with
discrimination in the relative treatment of handicapped and
nonhandicapped persons and does not confer any absolute right to
receive particular services or benefits under federally assisted
programs.  The Secretary did not suggest that Section 504 is
inapplicable even where there is discrimination between the
handicapped and nonhandicapped with respect to the furnishing of
particular medical services.

   When the Secretary promulgated the instant regulations in 1984, she
distinguished the comments during the rulemaking proceedings in 1976
on the ground just discussed (49 Fed. Reg. 1636 (1984)), and that
interpretation of the Department's prior action is itself entitled to
substantial deference.  Udall v. Tallman, 380 U.S. 1, 16-17 (1965).
Moreover, the fact that the Secretary was of the view after 1977 that
Section 504 does apply to the discriminatory withholding of medical
treatment from a handicapped infant is demonstrated by the fact that
in May 1980, HHS formally resolved a Section 504 complaint against a
hospital arising out of the death in 1979 of an infant with Down's
Syndrome who had an intestinal blockage.  In the compliance agreement,
the hospital committed itself to report to the state child protective
services agency any cases involving a lack of parental consent to
medically indicated treatment for handicapped infants in the same
manner as it reports similar cases involving nonhandicapped children.
See 48 Fed. Reg. 30847-30848 (1983).  Thus, the 1984 regulations the
court of appeals invalidated do not reflect a new administrative
interpretation of Section 504, much less a reversal of a prior
interpretation, as the court of appeals believed.  Compare General
Electric Co. v. Gilbert, 429 U.S. 125, 142-143 (1976).

   d. The final argument on which the panel majority in University
Hospital relied was that to require a hospital to seek a court order
or take other appropriate steps where the parents have refused to
consent to life-saving treatment would constitute an "onerous
affirmative action burden" that is impermissible under Southeastern
Community College v. Davis (App., infra, 39a).  This conclusion was
based on a misunderstanding of the Secretary's position, a
misinterpretation of Davis, and a gross exaggeration of the burden
involved.  Davis held that Section 504 does not obligate a university
to make "substantial modifications" in its nursing program to
accommodate the needs of a deaf student (422 U.S. at 413).  See
Alexander v. Choate, slip op. 13 n.20.  It has been the Secretary's
consistent position -- reflected in the resolution of the 1980
complaint, just discussed (see page 23, supra) -- that Section 504
requires a hospital to initiate steps to override a parental
withholding of consent to life-saving treatment for a handicapped
child only if the hospital would have done so for a nonhandicapped
child.  Thus, Section 504 imposes no new "affirmative action"
obligation on a hospital;  it imposes only the "burden of
nondiscrimination.

   Nor can the taking of the necessary steps in such circumstances be
viewed as an impermissibly "onerous" burden on the hospital,
especially when weighed against the consequences for the child.
Virtually all hospitals are prepared to and do take steps to assure
treatment when, for example, religious convictions prohibit the
parents of a newborn infant from consenting to medical treatment
necessary to the child's survival.  Nor is there any doubt that most
hospitals would not hesitate to take such steps in the case of a
parental refusal to consent to a routine procedure, such as a blood
transfusion, necessary to save the life of an otherwise normal and
healthy child.  It ordinarily would not even be necessary for the
hospital to assume responsibility for litigation on the question.  The
hospital often might fulfill its obligation to afford evenhanded
treatment for a handicapped child simply by notifying the state child
protective services agency, which in turn could investigate the matter
and seek any necessary court order.

   2. As we have explained, the decision of the court of appeals
creating an implied exception from the coverage of Section 504 for all
medical treatment decisions involving handicapped newborn infants is
flatly inconsistent with the text, purposes, and legislative history
of the statute and with the Secretary's implementing regulations and
guidelines.  The court's error is compounded because the case involves
a sweeping nationwide injunction that purports to prohibit the
Secretary from undertaking any investigation or enforcement action
with respect to any treatment decision involving an impaired newborn
infant in any federally assisted program (App., infra, 52a).  The
court below therefore has effectively barred any federal role whatever
under Section 504 -- even of an oversight nature -- with regard to the
withholding of medically beneficial treatment from handicapped
infants, /20/ despite the receipt by hospitals in this country of
billions of dollars annually in federal financial assistance under the
Medicare and Medicaid Program alone.  /21/

   As HHS's study of this matter demonstrates (see 48 Fed. Reg.
30847-30848 (1983)), refusals to treat even moderately handicapped
newborns has been more than just a rare occurrence.  The protection
that the Secretary's regulations afford these infants is significant,
and the absence of such protection may, in some cases, be
lifethreatening.  See 49 Fed. Reg. 1649 (1984).  For this reason, and
in light of the nationwide impact of the decision below and the
resulting absence of a potential for a circuit conflict that might
make the issue ripe for review at a later date, the court of appeals'
erroneous invalidation of the entire regulatory program should not be
permitted to stand.  /22/

   Moreover, the court of appeals' view that Section 504 does not
apply in what it termed the "fluid" context of medical treatment
decisions is not logically limited to infants with life-threatening or
other severe conditions, or even to infants.  It therefore calls into
question the applicability of Section 504 to medical treatment
decisions affecting handicapped individuals generally.  In addition,
the court of appeals' suggestion that Section 504 is limited only to
matters of access by the handicapped, or is confined by reference to
the particular examples of discriminatory treatment that were
expressly mentioned in the legislative history, could adversely affect
the enforcement of Section 504 outside of the context of medical
treatment.  Finally, the court's analysis of these issues could impede
enforcement of other antidiscrimination statutes that are worded
identically to Section 504, such as Title VI of the Civil Rights Act
of 1964, regarding discrimination on the basis of race in the
furnishing of medical services and other matters.  Review by this
Court, therefore is plainly warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Acting Solicitor General /*/

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   CHARLES J. COOPER

      Deputy Assistant Attorney General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   WALTER W. BARNETT

   MARK L. GROSS

      Attorneys

   MARCH 1985

   /1/ HHS received almost 17,000 comments on the proposed
regulations, more than 97% of which were favorable.  49 Fed. Reg.
1622-1623(1984).

   /2/ The interpretative guidelines also give illustrations of
conduct that would and would not violate Section 504.  For example,
the guidelines reiterate the Department's position that withholding of
medically beneficial surgery to correct an intestinal obstruction in
an infant with Down's Syndrome, when the withholding is based upon the
anticipated future mental retardation of the child and when there are
no medical contraindications, would constitute discrimination in
violation of Section 504.  But the guidelines also state that
withholding of treatment for such conditions as anencephaly, spina
bifida, and severe prematurity and low birth weight -- when based on
reasonable medical judgments that the treatment would be futile, too
unlikely of success given complications in the particular case, create
risks of potential harm to the infant, or merely prolong the act of
dying -- would not violate Section 504.  45 C.F.R. Pt. 84, App. C
para. (a)(5)(i)-(iv).

   /3/ The Committee would be composed of a practicing physician, a
practicing nurse, a hospital administrator, a representative of the
legal profession, a representative of a disability group or a
disability expert, a lay community member, and a member of the
hospital's organized medical staff, who would serve as a chairman.  45
C.F.R. 84.55(f)(2).

   /4/ The Secretary recognized that this case was controlled in the
court of appeals by the prior decision in University Hospital, and she
therefore moved for initial en banc consideration of the instant case.
 The court of appeals denied that motion on August 22, 1984.  The
Secretary then moved for summary disposition of the appeal.

   /5/ Baby Jane Doe was born on October 11, 1983, with multiple birth
defects, including myelomeningocele (exposed spinal cord membranes,
commonly known as spina bifida), microcephaly (abnormally small head),
and hydrocephalus (accumulation of fluid in the cranial vault).  On
advice of her initial pediatrician, Baby Jane Doe was admitted to
University Hospital for corrective surgeries.  After consulting with
physicians at University Hospital, her parents withheld consent to
surgeries to treat the spinal defect and to drain the water from the
infant's skull, opting instead to administer antibiotics and dress the
exposed spinal sac.  University Hospital acquiesced in that decision.
See United States v. University Hospital of the State University of
New York at Stony Brook, 575 F.Supp. 607, 610(E.D. N.Y. 1983).

   /6/ Shortly after the court of appeals rendered its decision in
University Hospital, the hospital disclosed that Baby Jane Doe had
received corrective surgery for her life-threatening conditions (see
page 5, supra) and had been discharged from the hospital.
Accordingly, the United States elected not to petition for a writ of
certiorari to review the judgment in that case.

   /7/ See 49 C.F.R. Pt. 84, App. C para. (a)(5)(1).

   /8/ HHS regulations define the term "physical or mental impairment"
to mean "(A) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems:  neurological;  musculoskeletal;  special
sense organs;  respiratory, including speech organs;  cardiovascular;
reproductive, digestive, genito-urinary;  hemic and lymphatic;  skin;
and endocrine;  or (B) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities." 45 C.F.R. 84.3(j)(2)(i).

   /9/ HHS regulations define the term "major life activities" to mean
"functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working."
45 C.F.R. 84.3(j)(2)(ii).  Although newborn infants obviously cannot
perform some of these functions, others of those mentioned (e.g.
seeing, hearing, breathing and learning) are capable of being
performed by infants.  Moreover, this listing expressly is not
exclusive (it refers to functions "such as" those listed), and it
therefore readily embraces any functions or activities that are
comparably "major" in the life of an infant.  In University Hospital,
for example, the court of appeals noted that Baby Jane Doe's rectal,
bladder, leg, and sensory functions were all then presently impaired
and that, with or without corrective surgery, she would experience
severe mental retardation throughout her life (App., infra, 27a).

   /10/ See 45 C.F.R. 84.3(k)(4) (as regards health and other
services, a qualified handicapped person is one "who meets the
essential eligibility requirements for the receipt of such services");
 45 C.F.R. Pt. 84, App. A para 5.

   /11/ "If the handicapped person is able to benefit medically from
the treatment or service, in spite of the person's handicap, the
indivdual is 'otherwise qualified' to receive that treatment or
service, and it may not be denied solely on the basis of the
handicap." 49 Fed. Reg. 1636 (1984);  see also id. at 1630.

   /12/ Section 504 prohibits discrimination only in a "program or
activity receiving Federal financial assistance," but no question is
presented here regarding this aspect of the coverage of Section 504.
Compare Consolidated Rail Corp. v. Darrone, slip op. 11-12;  North
Haven Board of Education v. Bell, 456 U.S. at 540.  The district court
in University Hospital held that the hospital program's receipt of
payments for the furnishing of medical treatment under the Medicaid
and Medicare Programs, 42 U.S.C. 1395 et seq., 1396 et seq.,
constituted the receipt of "Federal financial assistance" that
triggered the application of Section 504, whether or not Baby Jane Doe
herself was a beneficiary under the Medicaid Program.  575 F. Supp. at
612-613.  Compare Grove City College v. Bell, No. 82-792 (Feb. 28,
1984), slip op. 15 n.21.  This holding is consistent with HHR's
longstanding position (see 45 C.F.R. Pt. 84, App. A paras. 1, 2) and
with the holding of the only court of appeals to have extensively
considered the question.  See United States v. Baylor University
Medical Center, 736 F.2d 1039, 1042-1049 (5th Cir. 1984), cert.
denied, No. 84-525 (Jan. 21, 1985).

   However, the court of appeals in University Hospital declined to
resolve this question.  It assumed for purposes of the decision that
the hospital's actions pertaining to Baby Jane Doe were under a
program or activity receiving federal financial assistance by virtue
of the hospital's receipt of Medicare and Medicaid funds (App., infra,
16a-18a), but it held that Section 504 did not in any event address
the question of discrimination in the medical treatment of handicapped
infants (id. at 18a-41a).  The district court and court of appeals in
the instant case entered judgment in favor of respondents on the basis
of that holding in University Hospital (id. at 2a, 49a), and they
therefore likewise had no occasion to consider whether a hospital's
receipt of Medicare and Medicaid payments made Section 504 applicable
to the furnishing of medical services to patients in covered programs.

   Moreover, the regulations that respondents challenge in this suit
(45 C.F.R. 84.55 and Pt. 84, App. C) are quite general and do not even
address the question of what constitutes a program or activity
receiving federal financial assistance for purposes of Section 504.
That question therefore can be addressed only in the context of the
application of Section 504 and the regulations and guidelines at issue
here to a particular hospital.  In such a case, it would be
appropriate to consider not only the particular hospital's receipt of
Medicare and Medicaid funds, but also other forms of federal financial
assistance, such as Hill-Burton and other construction funds.  See,
e.g., 42 U.S.C. 291 et seq.

   /13/ Moreover, the potentially "fluid" nature of a patient's
condition would not immunize a medical treatment decision from
scrutiny to determine whether it was based on the race of the patient,
in violation of Title VI.  Because Section 504 was patterned after
Title VI (see pages 19-20, infra), there is no reason to believe that
Congress intended to confer such a blanket immunity under Section 504
either.

   /14/ See, e.g., S. Rep. 93-48, 93d Cong., 1st Sess. 55, 80 (1973);
S. Rep. 93-318, 93d Cong., 1st Sess. 50, 70 (1973;  118 Cong. Rec.
30681 (1972) (remarks of Sen. Randolph);  id. at 32310 (remarks of
Sen. Humphrey);  119 Cong. Rec. 5862 (1973) (remarks of Sen.
Cranston).

   /15/ See Southeastern Community College v. Davis, 442 U.S. at 406
n.6;  Community Television v. Gottfried, 459 U.S. 498, 509 (1983);
Consolidated Rail Corp. v. Darrone, slip op. 10 n.15;  Alexander v.
Choate, No. 83-727 (Jan. 9, 1985), slip op. 5 n.7, 16 n.24;  see also
id. at 18-19 & n.27.

   /16/ In re Infant Doe, No. GU 8204-004A (Apr. 12, 1982), writ of
mandamus dismissed sub non. State ex rel. Infant Doe v. Baker, No. 482
S 140 (Ind. Cir. Ct. May 27, 1982) (case mooted by child's death).
There are other documented instances of children with Down's Syndrome
being denied routine corrective surgery for intestinal blockages.  See
48 Fed. Reg. 30847 (1983).

   /17/ As the Secretary explained when she promulgated the
regulations at issue here, the same analytical framework applies where
the handicapping condition and the condition to be treated are the
same.  In such a case, the "handicap" is the physical or mental
impairment that would remain after completion of the treatment
involved.  The Secretary adknowledged that application of the
analytical framework may be more difficult in such circumstances
because of the interrelatedness of the medical considerations.  49
Fed. 1637 (1984).  But the existence of some difficult cases scarcely
justifies the wholesale exclusion fashioned by the court of appeals
for all medical treatment decisions.

   /18/ See 45 C.F.R. Pt. 84, App. A para. 36:

      (A) burn treatment center need not provide other types of
      medical treatment to handicapped persons unless it provides such
      medical services to nonhandicapped persons.  It could not,
      however, refuse to treat the burns of a deaf person because of
      his or her deafness.

   /19/ That distinct question was addressed by this Court as a
constitutional matter in Youngberg v. Romeo, 457 U.S. 307 (1982).

   /20/ The University Hospital case underscores this point.  HHS had
not determined in that case that a violation of Section 504 had
occurred as a result of the withholding of surgery from Baby Jane Doe.
 HHS required access to the relevant documents to evaluate the actions
of hospital personnel.  The court of appeals held, however, that HHS,
which administered the substantial payments the hospital received,
could not even obtain the information necessary to assess the
situation.

   /21/ In fiscal year 1983, in excess of $38 billion was expended
under Part A of the Medicare Program, which principally covers
hospital services (1984 Annual Report of the Board of Trustees of the
Federal Hospital Insurance Trust Fund, H.R. Doc. 98-199, 98th Cong.,
2d Sess. 15 (1984)), and in exesss of $32 billion was expended under
the Medicaid Program, which covers both inpatient and outpatient
services (Office of Financial and Actuarial Analysis, Health Care
Financing Administration, Department of Health and Human Services,
Annual Statistical Report No. 2082 (1984)).

   /22/ On October 9, 1984, Congress passed amendments to the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.).  See Pub.
L. No. 98-457, 98 Stat. 1749 et seq.  In those amendments Congress
required that a state child protective services agency, in order to be
eligible for federal grants under that Act, must establish procedures
for receiving and responding to reports "of medical neglect (including
instances of withholding of medically indicated treatment from
disabled infants with life-threatening conditions) * * *" (Section
122, 98 Stat. 1752).  (Similar state procedures are required under the
Secretary's Section 504 regulations at issue here.  See 45 C.F.R.
84.55(c).).

   These new amendments do not, either practically or legally, obviate
the need for review in this case.  The amendments only require the
state child protective agency to have in place procedures for
receiving and investigating possible cases of failure to treat
handicapped infants.  The role of HHS under the amendments is onlyto
insure that the state procedures are in place and are followed by the
state agency.  The amendments, unlike Section 504, place no
independent federal duty on hospitals and other providers of services
with regard to the treatment of handicapped infants.  The application
of Section 504 in this setting therefore is critical to ensure that
hospitals also have an obligation under federal law to assure that
handicapped infants are treated in an evenhanded manner and to assure,
where necessary, the opportunity for direct investigation and
enforcement by HHS regarding particular cases of discriminatory
withholding of medically indicated treatment from handicapped infants.

   Moreover, Section 127(a) of the Child Abuse Amendments of 1984 (98
Stat. 1754) states that "(n)o provision of this Act or any amendment
made by this Act is intended to affect any right or protection under
section 504 of the Rehabilitation Act of 1973." See also 130 Cong.
Rec. S11699 (daily ed. Sep. 21, 1984) (letter of Sen. Hatch, et al.).
The new legislation therefore does not affect the legal or practical
importance of this case, which will effectively establish the
applicability of Section 504 to hospital treatment decisions.  See
also 49 Fed.Reg. 48165-48166 (Dec. 10, 1984) (discussing interaction
between Child Abuse and Treatment Act Amendments and Section 504).

   /*/ The Solicitor General is disqualified in this case.

                               APPENDIX