Bell v. Southwell Brief for Appellants
Public Court Documents
July 1, 1966
Cite this item
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Brief Collection, LDF Court Filings. Alexander v. Choate Brief for Respondents, 1984. fbb26167-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7b329c2e-fd90-4fa1-b6a7-b12ab37921d6/alexander-v-choate-brief-for-respondents. Accessed April 06, 2025.
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No. 83-727
I n t h e
Bnpvmt Ctarrt af % 'MnxUh Butm
O ctober T erm , 1984
L amar A lexander, et al.,
v.
H e r s i i e l C hoate , et al.,
Petitioners,
Respondents.
ON WRIT OP CERTIORARI TO THE UNITED STATES
COURT OP APPEALS POB. THE SIXTH CIRCUIT
Legal Services of Middle
Tennessee, Ine.
1512 Parkway Towers
404 James Robertson Parkway
Nashville, TN 87219
(615) 244-6610
Susan Garner
National Health Law Program
2639 So, LaCienega Blvd.
Los Angeles, Calif. 90034
J . LeY qnne Chambers
E ric Schnapper
NAACP Legal Defense
and Educational Fund, Ine.
16th Floor
99 Hudson Street
New York, New York 10013
Brian P addock
Rural Legal Services
of Tennessee, Inc.
Arcade Building
Courthouse Square
Cookeville, Tennessee 38501
R obert J. F unk
Arlene Maverson
Kim Swain
Disability Rights
Education and Defense
Fund, Ine.
2032 San Pablo Avenue
Berkeley, California 94702
Attorneys for Respondents
* Counsel of Record
BRIEF FOR RESPONDENTS
Gordon B onnyman*
1
QUESTIONS PRESENTED
1. Does s e c t i o n 504 of the R e h a
b i l i t a t i o n Act of 1973 forb id p r a c t i c e s
which have the effect of discriminating by
reason of handicap?
2. If s e c t i o n 504 f o r b i d s only
practices which are motivated by an intent
to d i s c r i m i n a t e a g a i n s t h a n d i c a p p e d
in di vi du al s, are the r e g u l a t i o n s p r o m u l
gated by 24 federal a g e n c i e s f o r b i d d i n g
p r a c t i c e s with a d i s c r i m i n a t o r y effect
n o n e t h e l e s s valid as reasonably related to
the statute?
3. Did the l i m i t a t i o n s i m p o s e d by
Tennessee in 1980 on its Medicaid hospital
ization have a discriminatory effect on the
handicapped within the m e a n i n g of s e c t i o n
504 and the a p p l i c a b l e regulations of the
Department of Health and Human Services?
TABLE OF CONTENTS
Questions Presented ....................... i
Table of Authorities ...................... iv
Statement of the Case ..................... 1
Summary of Argument ........... 5
Argument ..................................... 11
I. Section 504 Prohibits Prac
tices Which Have The Effect
of Discriminating Against
the Handicapped ................ 11
(1) The Statutory Language .. 11
(2) The 1972-73 Legislative
History .................... 15
(3) The Agency Regulations
and Subsequent Legis
lative History .......... 34
II. The Agency Regulations Pro
hibiting Practices with a
Discriminatory Effect Are
Reasonably Related to Section
504, Even if the Statute It
self Applies Only To Cases of
Discriminatory Purpose ...... 46
Ill
Page
III. Tennessee's 14 Day Rule Had A
Discriminatory Effect on the
Handicapped ............................ 51
(1) The Nature of Tennessee's
1980 Medicaid Res tr ic
tions .................. 64
(2) The 1980 Rules Had A Dis
criminatory Effect Within
The Scope of Section 504 .... 69
(3) The "Same Service" Defense .. 85
CONCLUSION .................................... 106
IV
TABLE QF AUTHORITIES
C a s e s : Page
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ................ 33
Arizona Governing Board v. Norris,
77 L . Ed . 2d 1236 (1983) ..... 90
Beal v. Doe, 432 U.S. 438 (19 77)____... 51
Brown v. G S A , 425 U.S. 820 (1976) ..... 7,32
Cherry v. Mathews, 419 F. S u p p . 922
(D.D.C. 1976) ......................... 38
City of Los Angeles Dept, of Water v.
Manhart, 435 U.S. 702 (1978) ..... 106
Connecticut v. Teal, 457 U.S. 440
(1982) .................. 33,61,73,76.106
Consolidated Rail Corporation v. Daronne,
79 L .E d .2d 568 (1984) ..... 7,23,37,42
Doe v. Coulotti, 592 F.2d 704
(3rd Cir. 1979) ........ 74
Dopico v. Goldschmidt, 687 F.2d 644
(2d Cir. 1982) ...................... 19,101
Geinsco, Inc. v. Walling, 324 U.S.
244 ( 1945) ............ 48,49
Griggs v. Duke Power Co., 401 U.S.
424 (1971) ............... 5,12,14,15,16
Guardians Association v. Civil Service
Commission, 77 L.Ed.2d 866
(1983) .................. 5,7,12,16,32,47
V
Page
Hazelwood School District v. United States,
433 U.S. 299 (1 979) ................. 72
Jones v. Illinois Dept, of
Rehabilitation Services,
689 F .2d 724 (7th Cir. 1982) ..... 20
Lao v. Nicholq, 414 U.S. 363 (1974) ... 88
Lau v. Nichols, 483 F.2d 791 (9th
Cir. 1973) ............................. 88
Mourning v. Family Publications Service,
411 U.S. 356 ( 1973) .............. 48,49
NAACP v. Wilmington Medical Center,
657 F .2d 1 322 ( 3d Cir. 1981) ..... . 20
NAACP v. Wilmington Medical Center,
491 F. Supp. 290 (D. Del.
1980) ................. 19
NLRB v. Bell Aerospace Co.,
416 U.S. 267 ( 1 975) ..... ......... 44,45
North Haven Board of Education v. Bell,
4 56 U.S. 51 2 ( 1 982 ) .............. 1 5,46
P ve w i 11 v . U.S. Postal Service,
662 F .2d 292 (5th Cir. 1981) ..... 20
Pushkin v. Regents of University of
Colorado, 658 F.2d 1372 (10th Cir.
1981 ) . ............................... 19
Schweicker v. Gray Panthers, 453
U.S. 34 (1981 ) ........................ 62
Southeastern Community College v. Davis,
442 U.S. 397 (1979) ....... 38,56,99-104
Spomer v. Littleton, 414 U.S. 514
(9174) .................................. 64
Stutts v. Freeman, 694 F.2d 666
(11th Cir. 1983) ..................... 20
University of California Regents v.
B a k k e , 438 U.S. 265
(1978) ....................... 13,15,31,32
Williams v. Zbaraz, 448 U.S. 358
( 1980) ................................. 51
St atutes:
— .— * —
5 U.S.C. § 2302(d) ....... 102
5 U.S.C. § 4 3 1 3 ....... 102
5 U.S.C. § 4703 .............................. 102
5 U.S.C. § 7201 (e) .......................... 102
20 U.S.C. § 1411 .............. 103
22 U.S.C. § 3905(e) ...................... 102
VII -
Page
29 U . S . C . § 706(7)(b) .
29 U.S.C. § 721(a) ----
29 U.S.C. § 775(a)(2) .
29 U.S.C. § 791(b) ____
29 U.S.C. § 791(d) ____
29 U.S.C. § 792(d)(3) .
29 U.S.C. § 793(a) ____
29 U.S.C. § 794 ........
29 U.S.C. § 796(h) ____
29 U.S.C. § 1755 ......
29 U.S.C. § 1781(a) ...
29 U.S.C. § 1781(b) ...
29 U.S.C. § 1781(c) ...
31 U.S.C. § 732 ........
38 U.S.C. § 2012(a) ___
38 U.S.C. § 2014(c) ...
V X 1 1
42 U.S.C. § 1 382( a) (A) .................. 70
42 U.S.C. § 1395ww ........ 55
42 U.S.C. § 1396 .......... 83
42 U.S.C. § 1 396a ( a ) (1 0 ) ................. 51,62
42 U.S.C. § 1 396a( a) ......... 55
42 U.S.C. § 1 396d ( a ) ..................... 62
42 U.S.C. § 2000d ......................... 12
42 U.S.C. § 2000e( j ) ......... 103
42 U.S.C. § 2000e-2 ...................... 12
42 U.S.C. § 2000e-17 ................. 103
42 U.S.C. § 6005 ........ 103
4 5 U.S.C. § 7 9 7 h ( a ) 103
4 5 U.S.C. 90 7 ............................ 1U 5
4 5 U.S.C. § 1004 ........................... 10 5
82 Stat. 71 R ................................ 22
Architectural Barriers Act of 1978 .... 22
IX
P£2£
Title VI, Civil Rights Act of 1964,
42 U.S.C. § 20Q0d ...... 6,7,12,13,14,16
17,29,31,32,47,88
Title VII, Civil Rights Act of 1964,
42 U.S.C. § 2G00e .... 12,1 3,14,24,25,33
Section 114 ( 3),'Vocational Rehabilitation
Act Amendments of 1978 ............. 43
Section 115(a)(2), Vocational
Rehabilitation Act Amendments of
1978 ......................... 42
Section 118(a)(5), Vocational
Rehabilitation Act Amendments of
1978 ..................................... 43
Section 504, Vocational
Rehabilitation Act of 1973 ......... passim
Section 505(a)(2), Vocational
Rehabilitation Act of 1973 ......... 41,42
T.C.A. § 14-23-103 (2) ................... 82
Reg ul ati on s:
28 C.F.R. § 4 1 . 5 1 (b)(1)(ii) ............. 35
28 C.F.R. § 41.51 (b)(1)(iii) ........... 35
28 C.F.R. § 41.51(b)(3) ....... 35
28 C.F.R § 41.51(b)(4) ................... 35
X
Page
28 C.F.R. § 4 1 . 5 4 ..... 35
28 C.F.R. § 41.56 ...................... 35
42 C.F.R. § 80.3(b)(2) ................ 89
45 C.F.R. § 84.4(a) .................... 35
45 C.F.R. § 84.4(b) .................... 35
45 C.F.R. § 84.4(b)(1 )(ii) ........... 36
45 C.F.R. § 84.4(b)(1)(iii) ... 36,81,84,91,92
45 C.F.R. § 84.4(b)(1)(iv) ..... 86
45 C.F.R. § 84.4(b)(2) ..... 91,92,93,94,95,98
45 C.F.R. § 84.4(b)(4) ...... 9,34,36,82,83,
89,90,91,108
45 C.F.R. § 84.4(b)(5) .................... 36
45 C.F.R. § 84.5(a)(5) ........ 86
4 5 C.F.R. § 84.13 ........................... 36
4 5 C.l . R. § 84.21 ........................ 56
4 5 C.l .R. $ 84.3 3(b) ....................... 56
45 C.F.R. § 84.42(b)(2) ................... 37
45 C.F.R. § 84.44(a) ....................... 37
45 C.F.R. § 84.52(a)(3) .......... 9,37,82,91,92
45 C.F.R, Pt. 84 App. A 11 4 ............. 45
- x i -
Page
45 C.F.R. Pt. 84 App. A 11 6 .............. 87
45 C.F.R. Pt. 84 App. 1j 33 ............ 78
45 C.F.R. § 441.57 ....................... 62
Federal R e g i s t e r :
29 Fed. Reg. 16274 (1964) ............... 16,32
41 Fed. Reg. 20296 (1976) ................ 34,88
41 Fed. Reg. 29560 ( 1976) ............... 34
42 Fed. Reg. 22676 ( 1977) ........ 34,87
Legislative Materials:
112 Cong. Rec. (1966) .............. 16
117 Cong. Rec. (1971 ) ................ 21,27
118 Cong. Rec. ( 1972) ........ 1 7,1 8,19,22,24,
25,27,28
119 Cong. Rec. (1973) ... 6,17,21,23,24,26,31
40,41
- xi i -
Page
123 Cong. Rec. (1977) ........ 41,43,44,43
124 Cong. Rec. (1978) ................. 41,43-45
S. Rep. 93-318, 93rd Cong., 1st
Sess. ( 1973) ....................... 21
S. Rep. 93-1297, 93rd Cong., 2d
Sess. ( 1974) ................ 17,21
S. Rep. 95-890 Cong., 2d Sess.
(1978) ............................. 42,43,44
Hearings on the Rehabilitation of the
Handicapped Programs, 1976, before
the Subcommittee of the Senate
Committee on Labor and Public
Welfare, 94th Cong., 2d Sess.
( 1976) ........................... 38
Hearings on Review of Programs for the
Handicapped 1976, before the Sub
committee on the Handicapped of the
Senate Committee on Human Re
sources, 95th Cong., 1st Sess.
( 1977) .......................... 39
xiii
Pa^e
Other Authorities
Executive Order 11246 (1965) ............. 102
Final Report of the Special
Committee on Hospital Cost
Containment, 91st. Tennessee
General Assembly (1980) ............. 58
The Medicaid System of the Tennessee
Department of Public Health, A
Report of the Special Joint
Committee of the Ninety-Third
General Assembly (1983) ................ 55
Tennessee State Health Plan,
1979-84 ................................... 58
STATEMENT OF THE CASE
This act; ion was c o m m e n c e d in August,
1980, on behalf of a number of i n d i v i d u a l s
r e c e i v i n g medical care under the Tennessee
Medicaid program. R e s p o n d e n t s c h a l l e n g e d
several changes in Medicaid which the State
then p r o p o s e d to i n s t i t u t e to redu ce the
scope and thus the cost of that program.
( 3 . A. 12-15) By the s p r i n g of 1981 the
p a r t i e s had s e t t l e d all i s s u e s raised by
the c o m p l a i n t exce pt the l e g a l i t y of the
s t a t e ' s pla n to lower from 20 to 14 days
the n u m b e r of days of h o s p i t a l i z a t i o n
p r o v i d e d a n n u a l l y to M e d i c a i d p a t i e n t s .
(Pet. All). R e s p o n d e n t s c h a l l e n g e d the
l e g a l i t y of that r e d u c t i o n on a number of
grounds, of which the only one r e l e v a n t to
2
this a p peal is a c laim that the reduction
w ould v i o l a t e s e c t i o n 504 of the R e h a
bilitation Act of 1973.
At trial the sta te c o n c e d e d , and the
dis tr ic t c ourt t h e r e f o r e a s s u m e d w i t h o u t
d i s c u s s i o n , that s e c t i o n 504 a p p l i e d to
p r a c t i c e s which have the e f f e c t of d i s
criminating against the handicapped. (Pet.
App. A40). The trial court r e j e c t e d
r e s p o n d e n t s ' s e c t i o n 504 c l a i m on two
d i s t i n c t g r o u n d s . First, it held that,
a l t h o u g h re sp ondents had demonstrated that
the 14 day rule would have had an a d v e r s e
impact on handicapped Medicaid patients in
1 9 7 9-80, r e s p o n d e n t s h a d failed to show
that the patterns of Medicaid use, and thus
the impac t of the 14 day rule, woul d
n e c e s s a r i l y be the same in future years.
(Pet. App. A 3 3 - A 3 5 ) . Sec ond, the trial
court c o n c l u d e d that the type of adverse
impact which existed in 1979-80 was not the
3
kind of d i s c r i m i n a t o r y e f f e c t to which
section 504 and the r e l e v a n t r e g u l a t i o n s
applied. (Pet. App. A35-A43).
On a p p e a l the p e t i t i o n e r s again
c o n c e d e d that s e c t i o n 504 a p p l i e d to
1
practices with a discriminatory effect, and
the six th c i r c u i t so held. (Pet. App.
A7 -A10). The court of a p p e a l s concluded
that r e s p o n d e n t s had a d e q u a t e l y d e m o n
s t r ated that the 14 day rule woul d a d
v e r s e l y a f f e c t h a n d i c a p p e d M e d i c a i d
p a t i e n t s . (Pet. App. A10-A12). The sixth
circuit held that the e v i d e n c e a d d u c e d by
r e s p o n d e n t s was s u f f i c i e n t to establish a
prima facie case of u n l a w f u l d i s c r i m i
na ti on . (Pet. App. A 1 2 -A15, A19 n.12).
Since Tennessee had inexplicably failed to
adduc e at trial any evidence to justify or
even explain why it had c h o s e n the 14 day
1 Brief for Defendants-Appellees, pp.
1 1 - 1 2 .
4
rule, r a t h e r than some m e t h o d less b u r
densome for the handicapped, to r e d u c e the
scope and cost of the Medicaid program, the
court of a p p e a l s r e m a n d e d the case with
i n s t r u c t i o n s that the state be a f f o r d e d
another o p p o r t u n i t y to do so. (Pet. A p p .
A15-A16) .
The state sought certiorari to decide a
guestion which it had never put in issue in
the lower c o u r t s , w h e t h e r section 504 and
the r e g u l a t i o n s p r o m u l g a t e d p u r s u a n t to
that s t a t u t e forbid p r a c t i c e s with a
discriminatory effect. (Pet. ii, 7). In
this Court p e t i t i o n e r s now a p p a r e n t l y
concede that the s e c t i o n 504 r e g u l a t i o n s
establish a discriminatory effect rule, and
argue that the r e g u l a t i o n s are invalid.
(Pet. Br. 18). P e t i t i o n e r s also sough t
c e r t i o r a r i to d e c i d e w h e t h e r the 14 day
5
rule had an adverse impact within the scope
of s e c t i o n 504 and the a p p l i c a b l e regu-
lat i o n s . (P e t . i i ).
SUMMARY OF ARGUMENT '" ,n"'t...n
A. W h e t h e r s e c t i o n 504 a p p l i e s to
p r a c t i c e s wi th a d i s c r i m i n a t o r y effect
cannot be r e s o l v e d by r e f e r e n c e to the
s t a t u t o r y l a n g u a g e . Other p r o h i b i t i o n s
ag ai nst " d i s c r i m i n a t i o n " have been c o n
strued either to cover such e f f ects, or to
ap pl y on ly to p r a c t i c e s m o t i v a t e d by a
d i s c r i m i n a t o r y p u r pose, b a s e d on their
p a r t i c u l a r l e g i s l a t i v e histories. Griggs
v. Duke Power C o ., 401 U.S. 424 (1971);
G u a r d i a n s A s s o c i a t i o n v. Civil S e rvice
Commis s i o n , 77 L.Ed.2d 866 (1983).
S e c t i o n 504 was characterized in broad
l a n g u a g e by its p r o p o n e n t s . S e nator
C r a n s t o n , for e x a mple, i n s i s t e d it dealt
" c o m p r e h e n s i v e l y " with the p r o b l e m of
6
d i s c r i m i n a t i o n . (119 Cong. Rec . 5862
(1973)). The term " d i s c r i m i n a t i o n " was
repeatedly used to describe practices which
involved only discriminatory e f f e c t s , such
as a r c h i t e c t u r a l b a r r i e r s , the failure to
m a k e a c c o m m o d a t i o n s n e c e s s a r y to perm it
p a r t i c i p a t i o n by the d i s a b l e d , and d i s
criminatory employment procedures. None of
these practices would be subject to section
504, as Congress c l e a r l y i n t e n d e d , if the
statute were applied only in cases in which
there was proof of a discriminatory motive.
P e t i t i o n e r s suggest that section 504,
like Title VI, was i n t e n d e d only to
i n c o r p o r a t e a const ilut ion a I s t a n d a r d
r e g a r d i n g d i s c r i m i n a t i o n . But in 1973
there were no c l e a r l y e s t a b l i s h e d c o n
s t i t u t i o n a l r i g h t s c o n c e r n i n g d i s c r i m i
n a t i o n a g a i n s t the h a n d i c a p p e d , and none
are referred to in the d e b a t e s on s e c t i o n
504. A l t h o u g h the language of section 504
7
was p a t t e r n e d after Title VI, in 1973 the
unchallenged administrative i n t e r p r e t a t i o n
of Title VI applied it to practices with a
d i s c r i m i n a t o r y e f fect. " [ T ] h e relevant,
i n q u i r y is not w h e t h e r Congress correctly
perce iv ed the then state of the law, but
what its perception of the law was". Brown
v. G S A , 425 U.S. 820, 828 (1976).
T w enty four federa l a g e n c i e s have
issued regulations under section 504 whic h
apply it to practices with a discriminatory
ef fe ct. The s e c t i o n 504 r e g u l a t i o n s
"particularly merit deference" because they
were frame d in clo se c o n s u l t a t i o n with
Congress. Consolidated Rail Corporation v.
D a r r o n e , 79 L . E d . 2 d 568 , 577 ( 1 984 ).
Several 1978 a m e n d m e n t s to the R e h a b i l i
tation Act reflect c o n g r e s s i o n a l a p p r o v a l
of these effect regulations.
8
B. Even if section 504 itself forbids
only p r a c t i c e s with a d i s c r i m i n a t o r y
p u r p o s e , the discriminatory effect regula
tions are none theless v a l i d as r e a s o n a b l y
r e lated to the s t a t u t e . G u a r d i a n s A s s o
c i a t i o n v. Civil S e r v i c e C o m m i s s i o n , 77
L .E d .2d 866 (1983).
C. The T e n n e s s e e M e d i c a i d rules in
effect at the time of trial have since been
a l t e r e d . Some i n d i v i d u a l s who f o r m e r l y
could receive only 14 days of treatment are
today e l i g i b l e for 20 days, while others
now get none. Whether the s t ate's p r e s e n t
practices have a discriminatory effect, and
if so of what type and m a g n i t u d e , is
n e i t h e r d i s c l o s e d by the record nor known
to the parties. Since plaintiffs seek only
i n j u n c t i v e relief, a determination of the
l e g a l i t y of the 1980 r u l e s may be inap-
propr iate .
9
P e t i t i o n e r s have acknowledged that the
handicapped population of Med icaid r e c i p i
ents "would suffer proportionally more from
the reduction in hospital benefits than the
n o n - h a n d i c a p p e d ..." (Pet. App. A11 n.7)
Under the 1980 rules 27. 4% of h a n d i c a p p e d
patients were denied needed hospitalization
each fiscal year, compared to only 7.8% of
nonhandicapped patients. Prior to the 1980
rules, h a n d i c a p p e d p a t i e n t s were 33% of
these r e c e i v i n g h o s p i t a l i z a t i o n under
M e d i c a i d , but they were 6 3.4% of the
patients selected to bear the burden of the
Medicaid cuts. This type of adverse impact
i a c 1e ar 1 y wit h in the scope of section 504
and the a p p l i c a b l e 1111S r e g u l a t i o n s . 45
r . l ' . R. <}§ 84.4(b)(4), 84.52(a)(3).
Tennessee is free to limit the scope of
its M e d i c a i d p r o gram, and may use any
method which does not place the b u r d e n of
those l i m i t a t i o n s to a d i s p r o p o r t i o n a t e
10
degree on disabled Medicaid patients. Most
s t a t e s c o n t r o l their M e d i c a i d c o s t s by
m e a n s of pract ic es which have no discrimi
n a t o r y e f f e c t . R e s p o n d e n t s do not argu e
that T e n n e s s e e should apply to handicapped
p a t i e n t s a rule d i f f e r e n t than that
a p p l i c a b l e to the non handicapped, but ask
only that the state adopt a single rule for
all wh ich is n e u t r a l not only on its face
but also in its impact.
The c o u r t of appeals did not hold that
Tennessee's 14 day rule was u n l a w f u l , but
c o n c l u d e d only that the undisputed adverse
e ffect e s t a b l i s h e d a p r i m a facie case of
d i s c r i m i n a t i o n under s e c t i o n ‘>04. The
sixth circuit d i r e c t e d that on remand the
state be afforded an opportunity to justify
its s e l e c t i o n of the 14 day rule as a
m e t h o d of l i m i t i n g the M e d i c a i d program.
Since T e n n e s s e e a d d u c e d no e v i d e n c e at
trial to j u s t i f y or even e x p l a i n that
11
ch oi ce, its l e g a l i t y cannot be determined
on the p r e s e n t record. N e i t h e r party
so ug ht c e r t i o r a r i to r e v i e w the legal
standards which the s i x th circuit announced
sh ou ld be a p p l i e d on remand to assess any
such e v i d e n c e ; the c o r r e c t n e s s of those
s t a n d a r d s is t h e r e f o r e not b e f o r e this
Court .
ARGUMENT
I. SECTION 504 PROHIBITS PRACTICES
WHICH HAVE THE EFEECT OF DIS
CRIMINATING AGAINST THE HANDI
CAPPED
(1) The Statutory Language
Section 504 provides in pertinent
part :
No otherwise qualified
individual ... 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....
12
The term "disc ri min at ion", as this Court
2
has r e p e a t e d l y noted, is susceptible of a
v a r i e t y of interpretations. The "dis
c r i m i n a t i o n " forbidden by Title VII has
been c o n s t r u e d to include practices with a
d i s c r i m i n a t o r y effect. Griggs v. Duke
Power Co., 401 U.S. 424 (1971). The Title
VI p r o h i b i t i o n against discrimination, on
the other hand, has been held to bar only
a c t i o n s m o t i v a t e d by an invidious purpose.
G u a r d i a n s Association v. Civil Service
C ommission, 77 L .E d .2d 866 (1978).
The ambiguous phrase "by reason of" in
s e c t i o n 5 0 4 , like the similar language in
3
Title VI and Title VII, could be read to
̂ Guardians Association v. Civil Service
C o m m i s s i o n , 'll L.Ecf.2d &66, 875 (1983) .
^ Title VI refers to e x c l u s i o n " o n the
grounds of" race, color or national origin.
42 ll.S.C. § 2000d. Title VII forbids the
denial of employment opportunities "because
of" race, color, religion, sex or national
origin. 42 U.S.C. § 2000e-2.
13
refer to the motives of those administering
a f e d e r a l l y a s s i s t e d p r o g r a m , or to the
fact that an individual's handicap was the
cause of his or her e x c l u s i o n from p a r
t i c i p a t i o n in or the b e n e f i t s of such a
program. "Reason" can be used to i n d i c a t e
m o t i v a t i o n ("the reas on for the new
policy") or causation ("the reason why the
b r i d g e fell dow n"). The use of the term
"solely" prior to "by reason of" in section
504 m e r e l y e m p h a s i z e s that the prohibited
basis for exclusion or d e n i a l of b e n e f i t s
-- be it mo tivational or causal -- must be
h a n d i c a p .
The d i f f e r i n g i n t e r p r e t a t i o n s of the
simi la rl y v a g u e langu a g e of Title VI and
1 it le VII were based on the very different
legislative histories of those provisions.
B a k k e r elied on r e p eated and unequ ivoca l
congressional declarations in 1964 that the
purpose of Title VI was merely to extend to
14
p r o g r a m s r e c e i v i n g federal assistance the
same then well known c o n s t i t u t i o n a l
requirements already applicable to programs
4
o p e r a t e d by the federal g o v e r n m e n t . By
1964, it was a p p a r e n t that the Fift h and
F o u r t e e n t h A m e n d m e n t s forbad publ ic
o f f i c i a l s from e x c l u d i n g b l a c k s from
g o v e r n m e n t p r o g r a m s or from s e r v i n g them
only on a seg re gated b a sis. The p u r p o s e
of Title VI was to e x t e n d to f e d e r a l l y
assisted activities "the exis ti ng right to
equal t r e a t m e n t " g u a r a n t e e d by the Fifth
and F o u r t e e n t h A m e n d m e n t s . 438 U.S. at
3 3 0 . In Or i q q s , on the o t h e r hand, this
Court noted that Title VFI had been enacted
in part b e c a u s e of c o n g r e s s i o n a l c o n c e r n
that the e m p l o y m e n t o p p o r t u n i t i e s of
m i n o r i t i e s and women had b e e n l i m i t e d by
4 438 ll.S. at 287 (Powell, J.), 328
( o p i n i o n of J u s t i c e s B r e n n a n , White,
Marshall and Blackmun).
artificial and unnecessary job requirements
unr el ate d to actual q u a l i f i c a t i o n s . 401
U.S. at 430-31.
Here, as in B a k ke and G r i g g s , little
meaning can be gleaned from the language of
section 504 itself. Whether section 504 is
to be construed to apply to practices which
have the effect of d i s c r i m i n a t i n g a g a inst
the handicapped must be determined in light
of the p a r t i c u l a r l e g i s l a t i v e h i s t o r y of
that provision. "It is Congress' intention
in 197[3 ] , not in 1964, that is of signifi
can ce in interpreting" section 504. North
Hav en Board of Education v, B e i l , 456 U.S.
512, 529 (1982).
( 2) fhe 1 972-7 3 Legislative History
the in iti al l e g i s l a t i v e h i s t o r y of
s e ction 504 s t r o n g l y s u p p o r t s a c o n
s t r u c t i o n which prohibits practices with a
discriminatory effect. By 1973 both this
Court and EEOC had already construed Title
16
VII to a p p l y to practices with a discrimi
n a t o r y e f f e c t . G r i g g s v. Duke Power C o .,
401 U.S. 424 (1971). Seven federal
agencies had issued regulations under Title
5
VI establishing a similar effect standard.
Congress had e x p r e s s l y r e j e c t e d p r o p o s a l s
6
to o v e r t u r n those Title VI r e g u l a t i o n s ,
with o p p o n e n t s a r g u i n g that l i m i t i n g the
s t a t u t e to i n s t a n c e s of d i s c r i m i n a t o r y
7
inte nt " w o u l d gut Title VI." Had Congress
intended section 504 to be narrowly limited
to cases of d i s c r i m i n a t o r y intent, a
l imitation r a d i c a l l y u n l i k e the s t a n d a r d
then p r e v a i l i n g in federal civil rights
laws, s o m e o n e s u r e l y w o u l d h a v e said so,
and the m e m b e r s of the House who had
5 29 Fed. Reg. 16274-16305 (1964).
^ See Guardian Association v. C i v i, 1
Service C o m m i s s i o n , 77 L.Ed.2d 866, 893-94
(1983) (M a r s h a l l , 3. dissenting).
7 112 Cong. Rec. 18705 (1966) (Rep.
Kastenmeier) .
17
opposed such a limitation on Title VI would
presumably have voiced a similar obj ection .
S e c t i o n 504, on the c o n t r a r y , was
d e s c r i b e d in e x p a n s i v e terms. Sena tor
C r a n s t o n , the acti nq c h a i r m a n of the
s u b c o m m i t t e e that d r a f t e d s e c t i o n
8
504, i n s i s t e d that s e c t i o n 504 dealt
" c o m p r e h e n s i v e l y " with the p r o b l e m of
9
d i s c r i m i n a t i o n . Sen ator R a n d o l p h , the
Senate manager of the bill, e x p l a i n e d that
s e c t i o n 504 " p r o h i b i t s any kind of d i s
crimination against, handicapped individuals
with r e s p e c t to any p r o g r a m r e c e i v i n g
10
Federal financial assistance".
8 118 Cong. Rec. 30680 (1972) (Sen.
Randolph) .
9 119 Cong. Rec. 5862 (1973).
118 Cong. Rec. 30681 (1972). (Em
phasis added). The 1974 Senate Report
characterized section 504 as establishing
"a broad g o v e r n m e n t p o l i c y " against,
d i s c r i m i n a t i o n in p r o g r a m s r e c e i v i n g
federal assistance. S. Rep. No. 93-1297,
93d Cong., 2d S e s s . , 38 (1974).
18
D i s c u s s i o n s e a r l i e r in the s e s s i o n
regarding the problems of the d i s a b l e d had
d e m o n s t r a t e d a d e s i r e to deal with p r a c
tices with discriminatory effects. Senator
H u m p h r e y , s p e a k i n g in favor of including
the handicapped among the groups p r o t e c t e d
by Title VI, cited a var iety of practices
with such e f f e c t s as f a l l i n g w i t h i n the
scope of the Title VI language copied into
section 504 only a few months later. Among
the i n s t a n c e s of " d i s c r i m i n a t i o n " whic h
Humphrey believed would have been forbideen
by such an e x t e n s i o n of Title VI were
"transportation and architectual barriers",
"the d i s c r i m i n a t o r y e f f e c t of job guali-
fication ... procedures" and the d e nial of
"special educational assistance" for hand i
c apped childr en. ^ Senator Williams, the
chai rm an of the Labor and P u b l i c W e l f a r e
11 118 Cong. Rec. 525-26 (1972).
- 19
C o m m i t t e e w h i c h r e p o r t e d out section 504,
in a Senate speech only a few m o n t h s prior
to that r e p o r t also used the term "dis
crimination" to refer to p r a c t i c e s with a
d i s c r i m i n a t o r y effect. The handicapped, he
asserted, were the victims of " [ d i s c r i m i
natio n in access to public transportation"
and " [ d i s c r i m i n a t i o n b e c a u s e they do not
have the simplest forms of special services
1 2
they n e e d . . . . " R e p r e s e n t a t i v e Vanik
c o m p l a i n e d that " State g o v e r n m e n t s dis-
1 3
c r i m i n a t e by their a p a t h y . " C o n g r e s s
r e c o g n i z e d , as have the lower c o u r t s in
1 4
a p p l y i n g s e c t i o n 504, that the discrim-
12 1 1 ft Cong. Rec. 3320 (1972); see also
id. at 481 9 (Sen. Randolph quoting Sen.
W i l 1 iams . )
1 3 118 Cong. Rec. 2998-99 (1972).
14 See Pushkin v. Regents of University
of Co 1 ora37T," 6*5 8T~. 2 d 1 372 , 1 385 ClOthCTr.
1f)8l); NAACP v. Wilmington Medical Center,
491 F. Supp. 290, 317 (D. Del'. 1980). There
are few r e p o r t e d cases of i n t e n t i o n a l
discriamination against the handicapped.
The c o u r t s of a p p e a l s have g e n e r a l l y
applied an effects standard in section 504
20
i n a t i o n to w h i c h the h a n d i c a p p e d are
subjected is ordinarily the re sult, not of
m a l i c e , but of i n d i f f e r e n c e and t h o u g h t
lessness.
The o b s t a c l e s which a r c h i t e c t u r a l
barriers posed to p a r t i c i p a t i o n in f e d e r
ally a s s i s t e d p r o g r a m s , r e f e r r e d to by
S e nator H u m p h r e y in the p a s s a g e q u o t e d
above, wer e a r e c u r r i n g c o n c e r n in the
debates on the V o c a t i o n a l R e h a b i l i t a t i o n
Act of w h i c h s e c t i o n 504 was a part, and
were repeatedly described in terms of their
effects. The 1973 Senate Report noted that
such b a r r i e r s "lim it a h a n d i c a p p e d i n d i
cases. Dopico v. Goldschmidt , 687 F.2d 644
(2d Cir. 1982);NAACPv. Wilmington Medical
Center , 657 F .2d 1 32 2 (3d Cir. 1981)(en
banc ) ; 'Pr e wi 11 v. U.S. Postal Service, 662
F . 2d 292 ( 5th Cir. 1981); Tones v. Illinois
Dept, of Rehabilitation Services, 689 F.2d
724 (7th Cir. 1982); Pushkin.v. Regents of
University of Colorado, supra; Stutts v.
freeman, 6$4 F.2d 666 (1 1th Cir. 1983) .
21
15
vidual's ability to function in society."
Senator Randolph e x p l a i n e d , " Those things
that a person without handicaps take[s] for
g r a n t e d - - s t a i r s , e s c a l a t o r s , n a r r o w
d o o r w a y s - - a r e oft en i n s u r m o u n t a b l e o b
s t a c l e s to t h o u s a n d s of h a n d i c a p p e d
1 6
i n d i v i d u a l s . " S e n a t o r s C r a n s t o n and
S t a f f o r d p o i n t e d out that such b a r r i e r s
i m p eded a c c e s s not only to jobs, but also
to the ver y t r e a t m e n t c e n t e r s which were
s u p p o s e d to p r o v i d e s e r v i c e s to the
17
disabled. Such barriers certainly had the
effect of excluding the d i s a b l e d from the
15 S. Rep. No. 93-318, 93d Cong., 1st
Sess., 4 ( 1973). The 1974 Senate report,
liste d architectural barriers among the
forms of d i s c r i m i n a t i o n f o r b i d d e n by
section 504. S. Rep. 1297, 93rd Cong. 2d
Sess. 50 (1974)
16 -| -| 9 Cong. Rec. 5886 ( 1 973).
1 7 119 Cong. Rec. 5882 (Sen. Cranston),
5893 (Sen. Stafford). See also _id at 5898
(Sen. W i l l i a m s ) ; 117 Cong. Rec. 10311
(1971) (S e n . D o l e ) .
22
jobs and s e r v i c e s a v a i l a b l e at feder ally
a s s i s t e d p r o g r a m s , but e q u a l l y c l e a r l y
those b a r r i e r s were the r e s u l t of indif
ferenc e, not m a l i c e . If, as seems a p
p a rent, C o n g r e s s i n t e n d e d that all such
p r o g r a m s were to be a c c e s s i b l e to the
d i s a b l e d , that result could only have been
a c h i e v e d if s e c t i o n 504 i t s e l f forbad
18
practices with a discriminatory effect.
C o n g r e s s hop ed to deal with these
problems in part through better enforce
ment of the Architectural Barriers Act of
1968. 82 Stat. 718; 42 U.S.C. §§ 4151, £t.
s e q . But the Architectural Barriers Act
c o v e r e d only b u i l d i n g s constructed or
leased with federal funds, and among these
applied solely to buildings constructed
after the date on which a d m i n i s t r a t i v e
s t a n d a r d s of a c c e s s i b i l i t y had been
established. Thus, as R e p r e s e n t a t i v e
Vanik emphasized "only the most recently
c o n s t r u c t e d p ublic b u i l d i n g s " were
required by law to be accessible to the
disabled. 118 Cong. Rec. 2999 (1972). The
vast majority of the treatment centers and
other federally assisted programs in 1973
were necessarily in buildings which were
not s u b j e c t to the p r o v i s i o n s of the
Architectural Barriers Act.
23
C o n g r e s s ' s particular concern with the
employment problems of the disabled compels
a s i m i l a r c o n c l u s i o n . This Court noted in
C o n s o l i d a t e d Rail C o r p o r a t i o n v . Darrone
that " e n h a n c i n g e m p l o y m e n t of the h a n d i
c apped was . . . the focus of the 1973
l e g i s l a t i o n . " 79 L.Ed.2d 368, 575 (1984).
19
Senators Cranston, Williams and Taft noted
that the p u r p o s e s of the m u l t i - b i l l i o n
d ollar fe deral v o c a t i o n a l r e h a b i l i t a t i o n
programs were directly defeated by e m p l o y
ment d i s c r i m i n a t i o n a g a i n s t d i s a b l e d
workers. C o n g r e s s was a n x i o u s to e xpand
e m p l o y m e n t opportunities for the disabled,
not m e r e l y out of c o m p a s s i o n , but also
b e c a u s e such e m p l o y m e n t wou ld e nable the
h a n d i c a p p e d to b e c o m e s e l f - s u p p o r t i n g
i n d i v i d u a l s and would thus reduce depend
ence on g o v e r n m e n t a s s i s t a n c e p r o g r a m s .
1 9 119 Cong. Rec. 5882 (Sen. Cranston)
5882 (Sen. Williams), 24587 (Sen. Taft).
24
C o n g r e s s realized that in the long term it
was c o n s i d e r a b l y less costly to provide a
h a n d i c a p p e d individual with a job, even if
some a c c o m m o d a t i o n s were required, than to
p r o v i d e that individual with a lifetime of
20
services and aid at government expense.
Both the federal vocational rehabili
t a t i o n programs and the repeatedly
e x p r e s s e d congressional desire to enable
d i s a b l e d indivi d u a l s to become productive
t a x p a y e r s were as frustrated by employment
p r a c t i c e s with a discriminatory effect as
by d e l i b e r a t e employment discrimination.
C o n g r e s s certai nly knew, in light of the
EEOC r e g u l a t i o n s and this Court's decision
in G r i g q s , that the employment discrimi
n a t i o n forbid de n by Title VII included
practices with a discriminatory effect. In
2 0 118 Cong. Rec. 30680 (Sen. Randolph),
322 83 (committee report), 32302 (Sen.
Randolph); 119 Cong. Rec. 3886 (Sen.
Randolph), 5887 (Sen. Javits), 5893.
25
the c o n t e x t of e m p l o y m e n t d i s c r i m i n a t i o n
a g a inst the d i s a b l e d , a s i m i l a r l y broa d
c o n s t r u c t i o n of s e c t i o n 504 was c l e a r l y
n e c e s s a r y to a c h i e v e the e x p r e s s e d con-
21
gressional purposes.
F i n a l l y , s e c t i o n 504 was i n t e n d e d to
a s sure that f e d e r a l l y a s s i s t e d p r o g r a m s
p r o v i d e d s e r v i c e s that were r e a s o n a b l y
a d apted to the need of the h a n d i c a p p e d .
Senator Cranston argued:
[ T ] h o s e m i l l i o n s of h a n d i
c apped ind ividuals who pay taxes
. . . have the rig ht to expe ct
that their tax m o n e y will go
toward m a k i n g . . . their lives
and employment easier . . . . For
those individuals who have hand i
c a p p e d children, the expenditure
of d o l l a r s for p r o g r a m s which
meet their needs and the needs of
21 See also 118 Cong. Rec. 32310 (1972)
(Sen. Humphrey) (section 504 will "carry
t h r o u g h the intent of ... bills ...
introduced ... earlier this year ... to
amend ... Title VII ... to make discrimi
n a t i o n in e m p l o y m e n t b e c a u s e of these
h a n d i c a p s , and in the absence of a bona
fide o c c u p a t i o n a l q u a l i f i c a t i o n , an
unlawful employment practice.")
26
their children is a simple return
on the e q u i t y from the ir taxes
which has long s i n c e been
warranted. 119 Cong. Rec. 5882-83
( 1973).
The i n j u s t i c e of which S e n a t o r C r a n s t o n
complained did not c o n c e r n the m o t i v e s of
p r o g r a m a d m i n i s t r a t o r s ; it was s i m p l y
unfair, for whatever reason, that d i s a b l e d
i n d i v i d u a l s who had paid taxes s hould be
offered in return only programs that, while
e n t i r e l y s u f f i c i e n t for othe rs, were
i n a d e q u a t e to meet the n e e d s of the
handicapped .
S i m i l a r conc ern s regarding government
supported programs which a d e q u a t e l y s e rved
on ly i n d i v i d u a l s without disabilities were
r e p e a t e d l y v o i c e d on the floor of both
H ouses d u r i n g the d e b a t e s p r o c e e d i n g the
framing of s e c t i o n 504. S e n a t o r W i l l i a m s
emphasized that handicapped children needed
special assistance if they were to enjoy an
equal opportunity to learn, noting that "60
27
p e r c e n t of all h a n d i c a p p e d c h i l d r e n are
denied the s p e c i a l s e r v i c e s they need to
have an equal chance to live freely in this
Nation." 118 Cong. Rec. 3 3 2 0 - 2 2 (1972).
S e n ator Dole e m p h a s i z e d that m e r e l y
p r o v i d i n g d i s a b l e d c h i l d r e n with the
i d e n t i c a l e d u c a t i o n d e s i g n e d for n o n
disa bl ed c h i l d r e n was o f t e n i n e f f e c t i v e
22
and un fair. Sen ator Williams complained
that government officials often p laced the
l owest p r i o r i t y on the p r o b l e m s of the
d i s a b l e d in d e c i d i n g w hich p r o g r a m s to
f und :
[ S ] p e c i a l s e r v i c e s and
education for the handicapped are
the first p r o g r a m s to be done
away with d u r i n g times of
e c o n o m i c a d v e r s i t y . The mere
fact that services for those who
are h a n d i c a p p e d are c o n s i d e r e d
frills of government budgets that
are cut in times of e c o n o m i c
2 2 117 Cong. Rec. 10312 (1971); see also
117 Cong. Rec. 45974 (Rep. Vanik); 118
Cong. Rec. 525 (Sen. Humphrey).
28
a d v e r s i t y underlies a tragedy of
our s o c i e t y . 118 Cong. Rec.
3320-22 (1972).
The i n j u s t i c e s of which Senators Cranston,
Dole and Williams spoke concerned, not the
motives of the relevant officials, but the
failure for whatever reason to p r o v i d e the
disabled with effective services.
A c o n s t r u c t i o n of s e c t i o n 504 which
l i m i t e d it to c ases of i n t e n t i o n a l d i s
c r i m i n a t i o n w ould lead to a n u m b e r of
i n c o n g r u o u s r e s u l t s . If the t ables in a
school lunch room were so a r r a n g e d that a
student in a wheelchair could not reach the
counter at which federally assisted lunches
were s e r v e d , school authorities would have
no legal o b l i g a t i o n to r e a r r a n g e the
furniture. State officials would be equally
free to require a p p l i c a n t s for w e l f a r e or
public housing to personally fill out forms
by hand, thus e f f e c t i v e l y e x c l u d i n g all
29
bl in d i n d i v i d u a l s . I n t e r p r e t e d in this
manner section 504 would fall far short of
the " c o m p r e h e n s i v e " s o l u t i o n to the
problems of the disabled which its fram ers
clearly intended.
P e t i t i o n e r s , however, suggest that the
purpose of section 504, like that of Title
VI, was merely to apply to federal grantees
the c o n s t i t u t i o n a l p r o t e c t i o n s r e g a r d i n g
d i s c r i m i n a t i o n aga inst the disabled which
would be a p p l i c a b l e to a g o v e r n m e n t
o p e r a t e d program. (Pet. B r . 16). But the
debates leading to the enactment of section
504 are ve ry d i f f e r e n t from those p r o
c e e d i n g the a d o p t i o n of Title VI. The
l e g i s l a t i v e history of section 504, unlike
that of Title VI, contains no references to
any recognized constitutional standard. The
fact that no member of C o n g r e s s s u g g e s t e d
in 1973 that section 504 would extend "the
e x i s t i n g ri ghts" of the h a n d i c a p p e d to
30
d i s c r i m i n a t i o n by f e d e r a l g r a n t e e s is
hardly surprising. In 1973 there were no
such c l e a r l y e s t a b l i s h e d c o n s t i t u t i o n a l
rights. This Court had not then, and has
not to this day, d e c i d e d when handicapped
individuals are protected by the c o n s t i t u
tion from e x c l u s i o n , i n t e n t i o n a l l y or
otherwise, from government programs.
In 1973 C o n g r e s s c o u l d not have known
whether any such constitutional protections
w ould s u b s e q u e n t l y be held to exist.
Indeed, p e t i t i o n e r s in this Court insist
that under the c o n s t i t u t i o n the disabled
should enjoy less protection than blacks or
4
hispanics. (Pet. B r . 18 n. 21). Whether in
petitioners' view even intentional d i s c r i
m i n a t i o n a g a i n s t the h a n d i c a p p e d woul d
violate the Fifth and Fourteenth Amendments
may be an open question. It is difficult to
b e l i e v e that l e g i s l a t i o n e n a c t e d by
C o n g r e s s in 1973 to "deal f] c o m p r e h e n -
31
sively with problems such as discrimination
23
in . . . fede ral g r a n t s " was i n t ended
merely to e x t e n d to federal g r a n t e e s the
s u b s t a n c e of future c o n s t i t u t i o n a l d e c i
sions which would not be i s s u e d for years
and w hose substance no one could then have
forseen.
P e t i t i o n e r s argue in the a l t e r n a t i v e
that, since the language of section 504 was
p a t t e r n e d after that of Title VI, section
504 i n c o r p o r a t e s not the c o n s t i t u t i o n a l
s t a n d a r d a p p l i c a b l e to d i s c r i m i n a t i o n
against the d i s a b l e d , but the intent
s t a n d a r d e s t a b l i s h e d by Title VI. But in
1973, some 5 years prior to this C o urt's
decision in B a k k e , Congress could only have
c o n c l u d e d that Title VI embodied an effect
s t a n dard. That was the m a n n e r in which
Title VI had been authoritatively construed
2 3 119 Cong. Rec. 5862 (1973) (Sen.
C r a n s t o n .)
32
since 1964 by the agencies responsible for
24
its implementation, a construction which in
1973 sto od u n c h a l l e n g e d . This Court may
u l t i m a t e l y have i n t e r p r e t e d Title VI
o t h e r w i s e in B a k k e and G u a r d i a n s , but "the
r e l e v a n t i n q u i r y is not w h e t h e r Congress
correctly perceived the then s t a t e of the
law, but rather what its perception of the
law was." Brown v,, G S A , 425 U.S. 820, 828
(1976).
F i n a l l y , p e t i t i o n e r s s u g g e s t that
because of the diversity of handicaps which
exist amo ng the d i s a b l e d , Congress cannot
have i n t e n d e d that s e c t i o n 504 p r o h i b i t
practices with a discriminatory effect. But
the a p p l i c a t i o n of the e f f e c t rule under
Title VII is not based on any a ssumption
that all b l a c k s or wom en are a f f e c t e d in
the same m a n n e r by e m p l o y m e n t tests or
2 4 29 Fed. Reg. 16274-16305 (1964).
33
standards. There are important differences
among m i n o r i t i e s and w omen just as there
are am ong the h a n d i c a p p e d . A n o n - j o b
related written e x a m i n a t i o n whi ch s c r e e n s
out a d i s p r o p o r t i o n a t e n u m b e r of blacks,
for example, might leave more vacancies for
c o l l e g e e d u c a t e d b l acks able to pass that
test. See A l b e m a r l e Paper Co. v. M o o d y ,
422 U.S. 403 (1975). Title VII is n o n e
theless applicable to such a case, b e c a u s e
" C o n g r e s s never i n t e n d e d to give an
employer l i c e n s e to d i s c r i m i n a t e a g ainst
some e m p l o y e e s on the basis of race or sex
merely b e c a u s e he f a v o r a b l y tre ats other
m e m b e r s of the e m p l o y e e s ' g r o u p . " Con -
nee t i c u t v ._____T o a 1 , 457 U.S. 44 0, 455
(1982). There is no reason to believe that
Congre ss , when it e n a c t e d s e c t i o n 504,
i n t en ded to e n d o r s e f e d e r a l l y subsidized
34
p r a c t i c e s w h i c h d i s c r i m i n a t e d against the
blind so long as the practices did not also
discriminate against the deaf.
(3) The Agency Regulations and
S u p sequent Legislative History
The Department of Health, Education and
Welfare, the agency originally r e s p o n s i b l e
for c o o r d i n a t i n g e n f o r c e m e n t of s e c t i o n
504, has from the o u t s e t i n t e r p r e t e d that
s e c t i o n to apply to p r a c t i c e s with a
25
d i s c r i m i n a t o r y effect. At least 23 other
a g e n c i e s have p r o m u l g a t e d s i m i l a r regu-
26
lations applying a disparate impact test.
The D e p a r t m e n t of Justice, which is now
r e s p o n s i b l e for c o o r d i n a t i n g a g e n c y
2 5 See 41 Fed. Reg. 20296 (1976) (pro
posed department regulations) , 29560 (1976)
(proposed agency r e g u l a t i o n s ) ; 42 Fed. Reg.
22676 (1977) (final agency regulations); 45
C.F.R. § 84.4(b)(4).
2 6 See U.S. Brief, pp.1-2 n.2.
35
i m p l e m e n t a t i o n of section 504,requires all
federal a g e n c i e s to p r o m u l g a t e such
27
disparate impact regulations.
The prohibition against practices which
have an a d v e r s e effe ct on the disabled is
the l i n c h p i n of the r e g u l a t i o n s first
issued by HEW in 1976, and now enforced by
the D e p a r t m e n t of Heal th and Human S e r
vices. Sect io n 84.4(b) of the regulations
d e s c r i b e s four d i f f e r e n t t y p e s of d i s
c r i m i n a t o r y e f f e c t s whi ch are forbidden,
including methods of a d m i n i s t r a t i o n which
have the eff ect of substantially impairing
for the handicapped the achi ev eme nt of the
2 7 28 C.F.R. §§ 4 1 . 5 1 (b)(1)( i i ) , 41.51
(b)(1)(iii), 41.51(b)(3), 41.51(b)(4),
41.54, 41.56.
o
36
p u r p o s e s of a p r o g r a m . S e c t i o n 84.13
fo rbids the use of e m p l o y m e n t tests or
selection criteria which have the effect of
s c r e e n i n g out h a n d i c a p p e d p e r s o n s . S u b
c h a p t e r C of the regulations, 45 C.F.R. §§
84.21-22, is devoted entirely to a s s u r i n g
that d i s a b l e d individuals are not excluded
from programs bec ause they are p h y s i c a l l y
"inaccessible to or unusable by handicapped
perso ns ." S e c t i o n 8 4 . 33(b) r e q u i r e s that
the education afforded handicapped students
must meet their needs "as adequately as the
needs of n o n h a n d i c a p p e d persons are met."
The c r i t e r i a for a d m i s s i o n to f e d e r a l l y
a s s i s t e d c o l l e g e p r o g r a m s may not have a
" d i s p r o p o r t i o n a t e a d v e r s e effe ct on
4 5 C.F.R. § 84.4(b)(4). See also 45
C.F.R. §§ 84.4(b )(1)(i i ) (unequal o p p o r
t u n i t y to participate), 84.4 ( b )( 1 )(i i i )
( s e r v i c e s not "as e f f e c t i v e as" those
p r o v i d e d to the n o n h a n d i c a p p e d ) , 84.4
(b )(5)(locating facility at a site which
has the e f fect of excluding handicapped
p e r s o n s .)
37
h a n d i c a p p e d p e r s o n s " u n less, inter alia,
those c r i t e r i a are in fact v a l i d a t e d
p r e d i c t o r s of s u c cess in the e d u c a t i o n
p r ogram in q u e s t i o n . 45 C.F.R. § 8 4.-
42(b)(2). Academic requirements which "have
the effect of discriminating, on the basis
of h a n d i c a p " must be sim ilarly justified.
45 C.F.R. § 84.44(a). The health, w e l f a r e
and other social s e r v i c e s provided to the
handicapped must be "as e f f e c t i v e as" the
s e r v i c e s p r o v i d e d to n o n h a n d i c a p p e d
indivi d u a l s . 45 C.F.R. § 8 4 . 5 2 ( a ) ( 3 ) .
W h o l e s a l e j u d i c i a l nul lification of these
effect ru les would as a p r a c t i c a l m a t t e r
d e s t r o y most of the r e g u l a t o r y s cheme
established by HEW in 1976.
This Court r e c o g n i z e d in Consolidated
Rail C o r p o r a t i o n v. Darrone that these HEW
r e g u l a t i o n s "particularly merit deference"
b e c a u s e "th e r e s p o n s i b l e c o n g r e s s i o n a l
c o m m i t t e e s p a r t i c i p a t e d in their formu-
38
l a t ion, and both these c o m m i t t e e s and
Congress itself endorsed the regulations in
29
their final form." 79 L.Ed.2d at 577. HEW
first p r o p o s e d those r e g u l a t i o n s in Nay
1976 on ly after c o n s u l t i n g with the
relevant committees of both the House and
30
Se na te. S e n a t e h e a r i n g s in that year
expressly consi de red the s c o p e and e f f e c -
31
t x v e n e s s of the p r o p o s a l s . I n J a n u a r y
29 Jn Southeastern Community , Colleqe y.
D a v i s , 442 U.5. W T , 404 n . 4 ( 1 979) , this
Court suggested that HEW chose to rely on
the language of section 504 alone until
ordered to issue regulations in Cherry v.
Mathews , 419 E. Supp. 922 (D.D.C.' ‘1976) .
Tn fact , however, the May 1976 proposed
regulations were first issued two months
before the July, 1976 decision in C h e r r y .
3 0 H e a r i n g s on R e h a b i l i t a t i o n of the
Handicapped Programs, 1976, before the Sub
committee on the Handicapped of the Senate
Committee on Labor and Public Welfare, 94th
C o n g . , 2d S e s s . , 1491 , 1503-04 (1976)(here
inafter cited as "1976 Senate Hearings".)
3 ̂ 1976 Senate Hearings 323 (Rep. Dodd),
1502 (Sen. Williams), 1511 (Sen. Wil
liams) .
39
32
1977, first HEW Secretary Mathews and then
33
HEW Secretary Califano provided each member
of C o n g r e s s wit h c o p i e s of the p r o p o s e d
r e g u l a t i o n s and s o l i c i t e d their comments.
Following the final p r o m u l g a t i o n of those
regulations, a House subcommittee conducted
further hearings on the i m p l e m e n t a t i o n of
s e c t i o n 304 at which the Director of HEW's
Office of Civil Righ ts e x p r e s s l y c a l l e d
a t t e n t i o n to the v a r i o u s HEW r e g u l a t i o n s
34
concerning discriminatory effects.
In the spri ng of 1977, when the
p r o p o s e d s e c t i o n 504 r e g u l a t i o n s were
awaiting final action, members of both the
House and Senate repeatedly took the floor
32 Hearings on Review of Programs for
the H a n d i c a p p e d 1976, b e f o r e the S u b
committee on the Handicapped of the Senate
Committee on Human Resources, 95t.h Cong.,
1st Sess. 73 (1977).
33 £d. at 76.
3^ Id. at 295-6.
40 -
to urge HEW to a p p r o v e them as w r i t t e n .
R e p r e s e n t a t i v e Koch u r g e d S e c r e t a r y
C a l i f a n o to sign the regulations "in their
c u r r e n t form". 123 Cong. Rec. 10455.
C o n g r e s s m a n Dodd e x p r e s s e d c o n c e r n about
pos si bl e c h a n g e s in the p r o p o s e d r e g u l a
tions, i n s i s t i n g " t hese r e g u l a t i o n s must
not be w e a k e n e d . " Id. at 10823. Senator
C r a n s t o n c a l l e d for the " p rompt and
e f f e c t i v e i m p l e m e n t a t i o n " of the r e g u l a
tions, and w r o t e to S e c r e t a r y C a l i f a n o
u r ging that the draft "be c o n s i d e r e d
p r e s u m p t i v e l y v a lid" and e x p r e s s i n g
opposition to any changes that might weaken
i t. . _I_d . at 12410. Par ti cular support was
e x p r e s s e d for the p r o t e c t i o n the r e g u l a
tions would a fford a g a i n s t a r c h i t e c t u r a l
35
and r e l a t e d b a r r i e r s , a protection which
3 5 123 Cong. Rec. 1045 5 (Rep. Koch),
10823 (Rep, Dodd), 12216 (Sen. Humphrey),
12410 (Sen. Cranston).
41
e x i s t e d s o l e l y b e c a u s e the r e g u l a t i o n s
applied to p r a c t i c e s with d i s c r i m i n a t o r y
e f f ects. The final promulga ti on of those
r e g u l a t i o n s was g r e e t e d with v i r t u a l l y
u n a n i m o u s p r a i s e in both h o u s e s of C o n
gress, including, significantly, from three
of the m e m b e r s p r i m a r i l y r e s p o n s i b l e for
fr aming s e c t i o n 504 itself, S e n a t o r s
36
Cranston, Randolph, and Williams.
In 1978 C o n g r e s s a d o p t e d a n umber of
amendments to the Vocational Rehabilitation
Act which reflected its approval of the HEW
r e g u l a t i o n s . Section 505(a)(2) was added
to m a k e a v a i l a b l e under s e c t i o n 504 the
r i g h t a , r e in e d i e a and p r o c e d u r e a o f Title
Vi. The Senate Report explained that this
p r o v i s i o n was " d e s i g n e d to e n h a n c e the
3 6 123 Cong. Rec . 12760 ( 1977) (Sen.
Randolph), 13342 (Sen. Cranston), 13515
(Sen. Humphre y), 13635 (Rep. Brodhead),
14133 (Rep. Koch), 14552 (Sen. Haskell);
124 Cong. Rec. 3031 8 (1978) ( S e n . W i l l i a m s . )
42
a b i l i t y of h a n d i c a p p e d i n d i v i d u a l s to
assure c o m p l i a n c e with ... [ s e c t i o n 504]
apd the r e g u l a t i o n s p r o m u l g a t e d t h e r e
under." S. Rep. No. 95-890, 95th Cong., 2d
Sess.,18 (1978) (Emphasis added). C o n g r e s s
was well aware that those r e g u l a t i o n s
i n c l u d e d an e f f e c t s s t a n d a r d . Thus, "in
a d o p t i n g s e c t i o n 5 0 5 ( a ) ( 2 ) in the a m e n d
ments of 1978, C o n g r e s s i n c o r p o r a t e d the
s u b s t a n c e of the D e p a r t m e n t ’s regulations
into the s t a t u t e . " C o n s o l i d a t e d Rail
C o r p o r a t i o n v. D a r r o n e ,79 L.Ed.2d 568, 577
n . 15 (1984).
C o n g r e s s also e n a c t e d s e v e r a l a m e n d
ments in 1978 which spe cifically c o n f i r m e d
its k n o w l e d g e and a p p r o v a l of the effect
regulations promulgated the p r e v i o u s year.
Section 115(a)(2)provided federal funds for
technical personnel "su ch as i n t e r p r e t e r s
for the d e a f ... as may be necessary... in
c o m p l y i n g with ... the r e q u i r e m e n t s of
A3
s e c t i o n [30A ] of this Title." 2 9 U.S.C. §
7 7 3 ( a)(2) (Emphasis added). Section 114(3)
authorized grants to train interpreters for
the deaf, the Senate Report explaining that
this provision was enacted "in r e s p o n s e to
the r e q u i r e m e n t s imp osed by section 504".
S. Rep. No.95-890, 95th Cong., 2d Sess. 41
(1978). The d e b a t e s c o n c e r n i n g these
provisions reiterated their comm on a s s u m p
tion that s e c t i o n 504 forb ad f e d e r a l l y
a s s i s t e d p r o g r a m s from o p e r a t i n g in a
m a n n e r that had a discriminatory effect on
the blind or deaf. Section 118(a)(5) of the
bill d i r e c t e d the A r c h i t e c t u r a l and
T r a n s p o r t a t i o n Compliance Board to develop
standards and provide technical a s s i s t a n c e
with r egard to the section 504 regulations
co nce rning a r c h i t e c t u r a l , t r a n s p o r t a t i o n
and c o m m u n i c a t i o n b a r r i e r s . 29 U.S.C. §
3 7 124 Cong. Rec. 13900 (1978) (Rep.
Jeffords), 30580 (Sen. Hatch).
44
7 9 2 ( d ) ( 3 ) . This p r o p o s a l n e c e s s a r i l y
a s s u m e d that s e c t i o n 504 a p p l i e d to
p h y sical b a r r i e r s which had a d i s c r i m i -
38
n a t o r y e f f e c t on the d i s a b l e d . Such
" s u b s e q u e n t l e g i s l a t i o n d e c l a r i n g the
intent of an earlier statute is entitled to
significant weight" NLRB v. Bell Aerospace
£o., 416 U.S. 267, 275 (1975).
In decided contrast to these efforts to
f a c i l i t a t e e n f o r c e m e n t of the HEW r e g u
l a t i o n s r e g a r d i n g p r a c t i c e s with d i s
criminatory effects, Congress e l s e w h e r e in
the 1978 A m e n d m e n t s e x p r e s s l y r e j e c t e d
other HEW r e g u l a t i o n s c o n s t r u i n g s e c t i o n
3 8 S. Rep. No. 95-890, 95th Cong., 2d
Sess., 17 (cr eation of "a b a r r i e r free
environment" one of the "goals of section
504) ( r e f e r r i n g to " m e t h o d s short of
physical alteration ... to achieve program
accessibility under section 504 r e g u l a
tions. " ) ( 1 9 7 8 ); 124 Rec. 13901 (Rep.
J e f f o r d s ) ( r e f e r r i n g to the " p h y s i c a l
barrier provisions of 504"), 30326 (Sen.
Dole) ("m ost b a r r i e r s are e r e c t e d not
because of intentional thought but simply
because of a lack of thought").
45
504. C o n g r e s s a m e n d e d s e c t i o n 504 to
include executive a g e n c i e s and the Postal
Serv ic e, 29 U.S.C. §794, overruling H E W ' s
position that section 504 did not appl y to
39
the federal g o v e r n m e n t itself. Congress
partia lly r e j e c t e d HEW's v i e w s r e g a r d i n g
the e x t e n t of p r o t e c t i o n a f f o r d e d by
section 504 to drug a d d i c t s and a l c o h o l -
40
ism. Under these circumstances the failure
of C o n g r e s s to r evise or repeal HEW's
r e g u l a t i o n s i n t e r p r e t i n g s e c t i o n 504 to
cover p r a c t i c e s with d i s c r i m i n a t o r y
ef fects, indeed the absence of the slight
est c r i t i c i s m of that c o n s t r u c t i o n , "is
persuasive evidence that the interpretation
is the one inte nde d by Congress." NLRB v .
Bell A e r o s p a c e C o . , 416 U.S. 267 , 275
3 9 124 Cong. R e c . 13901 (1978).
4 0 Compare 29 U.S.C. § 706(7) (b) with 45
C.E.R., P t . 84, App. A H4. See also 124
Cong. Rec. 30322 (1978) (Sen. Cannon).
46
(1975). " W h e r e 'an a g e n c y ' s s t a t u t o r y
construction has been "fully brought to the
a t t e n t i o n of the public and Congress," and
the l a t t e r has not s ought to alter that
i n t e r p r e t a t i o n although it has amended the
statute in other respects, then p r e s u m a b l y
the l e g i s l a t i v e intent has been correctly
d i s c e r n e d . '" North Haven Board of Educa
tion v. B e l l , 456 U.S. 512, 535 (1982).
II. THE AGENCY REGULATIONS
PROHIBITING PRACTICES WITH A
DISCRIMINATORY EEFECT ARE
REASONABLY RELATED TO SECTION
504, EVEN IF THE STATUTE ITSELF
APPLIES ONLY TO CASES OF DIS-
CRIM INATORY PURPOSE_______________
The a u t h o r i t y of a federal a g e n c y
charged with the responsibility of adminis
ter ing a s t a t u t e e x t e n d s to the p r o m u l
gation of regulations which are r e a s o n a b l y
related to the purpose of the statute, even
if the statute by i t s e l f do es not c o n t a i n
the sam e r e q u i r e m e n t s found in the
47
r e g u l a t i o n s . In G u a r d i a n s Association v.
Civil S e r v i c e C o m m i s s i o n , 77 L . E d . 2 d 8 6 8
(1983), a majorit y of this Court held that
the Title VI r e g u l a t i o n s e s t a b l i s h i n g an
effec t s t a n d a r d were vali d, d e s p i t e the
fact that Title VI by i t s e l f a p p l i e d only
to c ases of d i s c r i m i n a t o r y p u r p o s e . 77
L. E d .2d at 875 and n.13 (White, 3.), 894
n.15 ( M a r s h a l l , 3., d i s s e n t i n g ) , 708-9
(Stevens, 3., d i s s e n t i n g ) . Thus even if
this Court were to c o n c l u d e that section
504, like Title VI, prohibits only a c t i o n s
with a discriminatory purpose, the majority
view in G u a r d i a n s m a k e s c lear that the
a p p l i c a b l e HHS eff ect r e g u l a t i o n s would
still be valid.
This Court has repeatedly held that the
a u t h o r i t y of an a d m i n i s t e r i n g agency
extends in appropriate cases to prohibiting
or reguiring conduct which is not forbidden
or r e q u i r e d by the s t a t u t e p u r s u a n t to
48
w h i c h the r e g u l a t i o n s were issu ed. In
M o u r n i n g v . F a m i l y P u b l i c a t i o n s S e r v i c e ,
411 U.S. 356 (1973), the r e s p o n d e n t
c h a l l e n g e d a r e g u l a t i o n i s s u e d by the
F e d e r a l R e s e r v e Board w h i c h r e q u i r e d the
disclosure of c e r tain c r e d i t terms in any
c o n s u m e r t r a n s a c t i o n i n v o l v i n g more than
four instalments, regardless of w h e t h e r or
not a finance charge was imposed. The Truth
in Lending Act under which the r e g u l a t i o n
was i s s u e d r e q u i r e d such disclosures only
if a f i n a n c e c h a r g e was in fact bein g
c o l l e c t e d . This Court upheld the regul a
tion as reasonably justified as a method of
a s s u r i n g c o m p l i a n c e with the s t a t u t e in
cases in which a finance charge m i g h t have
bee n built into the purchase price of the
goods . 411 U.S. at 369-371 . In Gem sc o ,
Inc, v. W a l l i n g , 324 U.S. 244 (1938), the
regulation in controversy forbade employers
from a l l o w i n g or r e q u i r i n g i n d u s t r i a l
49
h o m e w o r k . The underlying statute, the Fair
Labor Standards Act, did not even refer to
i n d u s t r i a l h o m e w o r k . The r e g u l a t i o n was
nonetheless upheld as reasonably framed to
pre vent e v a s i o n of the s t a t u t o r y minimum
wage by m e a n s of p i e c e w o r k rates that
yielded wages below that minimum. 324 U.S.
at 233.
The r a t i o n a l e of M o u r n i n g and Gemsco
is c l e a r l y a p p l i c a b l e to s t a t u t e s c o n
cerning discrimin ati on. In both of those
cases the r e s p o n s i b l e a g e n c y r e a s o n a b l y
concluded that it was not a d m i n i s t r a t i v e l y
fe asible to investigate and decide in each
invididual i n s tance w h e t h e r there was a
covert v i o l a t i o n of the law, and that
effective en forcement of the s t a t u t e thus
r e t| u ired the p r o m u l g a t i o n of a s o m ewhat
broader but considerably more administrable
rule. In the case of d i s c r i m i n a t i o n
aga in st the h a n d i c a p p e d it is often not
50
on ly i m p r a c t i c a b l e but m e a n i n g l e s s to
attempt, to d i s t i n g u i s h b e t w e e n d i s c r i m i
n a t o r y p u r p o s e and d i s c r i m i n a t o ry effect.
A f e d e r a l l y a s s i s t e d r e c r e a t i o n p r o g r a m
wh ich had a p o l i c y of e x c l u d i n g deaf
c h i l d r e n w o u l d c l e a r l y be c o v e r e d by
s e c t i o n 504. But a r e q u i r e m e n t that all
applicants pass some test which required an
ability to hear, although indistinguishable
in o p e r a t i o n from an e x p r e s s p r o h i b i t i o n
a g ainst the deaf, w o u l d not on its face
c o n s t i t u t e i n t e n t i o n a l d i s c r i m i n a t i o n .
D e l i b e r a t e d i s c r i m i n a t i o n when it occurs
against the disable d is o r d i n a r i l y based ,
not on any m a l i c e t oward h a n d i c a p p e d
i n d i v i d u a l s , but on a good faith but
i n a c c u r a t e understanding of what abilities
are in fact necessary to p a r t i c i p a t e in a
program. That misunderstanding may manifest
itself in a rule expressly d i r e c t e d at the
d i s a b l e d , or simply in a rule establishing
51
u n n e c e s s a r y or a r b i t r a r y prerequisites to
p a r t i c i p a t i o n . A r e g u l a t i o n which a t
t e mpted to d i s t i n g u i s h b e t w e e n these two
types of practices, f o r b i d d i n g the former
while p e r m i t t i n g the latter, would change
only the form but not s u b s t a n c e of the
p r a c t i c e s which s e c t i o n 504, even on
petitioners' view, was a d o p t e d to e l i m i n
ate.
III. TENNESSEE'S 14 DAY RULE HAD
A DISCRIMINATORY EFFECT ON
THE HANDICAPPED
The p r a c t i c a l issue presented by this
case is not, w h e t h e r s e c t i o n 504 requires
Tonnes see to maintain any particular level
41
of Medicaid expenditures. Every one of the
Whether the Medicaid Act itself may
require a state to maintain a particular
level of services is not at issue in this
case. This Court e x p r e s s l y r e s e r v e d
decision on that issue in Beal v. Doe, 432
U.S. 438, 444 (1977). The United” States
ar gued that the Act c o n t a i n e d such a
r e q u i r e m e n t in its brief in Williams v.
Zbaraz, 448 U.S. 358 (1980).. ......■
52
f i f t y - t h r e e j u r i s d i c t i o n s w h i c h p a r t i c i
pates in the M e d i c a i d p r o g r a m faces
f i n a n c i a l p r o b l e m s s i m i l a r to those in
Tennessee, but the o v e r w h e l m i n g m a j o r i t y
have u t i l i z e d cost control methods differ
ent from that c o m p l a i n e d of in this case.
A c c o r d i n g to a federal s t u d y of Medicaid
programs, w h i c h was i n t r o d u c e d at trial,
f i fteen s t a t e s c o n t r o l such costs without
placing any direct limitation on i n p a t i e n t
42
hospital services. Thirteen other states,
together with the District of C o l u m b i a and
Virgin Islands, require prior authorization
for some or all hospitalization, a p r o c e s s
which p e r m i t s c o n s i d e r a t i o n of the actual
43
m e d i c a l n e e d s of each patient. A growing
number of states achieve the same result by
42 J.A . 159-66.
43 id.
53
e s t a b l i s h i n g a p r e - d e t e r m i n e d amount that
will be paid for each t r e a t m e n t based on
44
the patient's diagnosis. Five states limit
the number of days of h o s p i t a l i z a t i o n per
a d m i s s i o n , a p r a c t i c e which expert testi
mony in this case indicated is both s i m p l e
to a d m i n i s t e r and d e void of any a d v e r s e
45
impact on the h a n d i c a p p e d . Four other
states r e s t r i c t the n umber of days per
46
spell of illness. Only 9 states restrict
the number of days of h o s p i t a l i z a t i o n per
year; of these Tennessee's rule was in 1980
4 4 There were four such s tates as of
August, 1984, Utah, Pennsylvania, Ohio and
New Jersey.
45 J .A . 60-61, 101-02, 106-07, 115-16,
120-21, 126, 129, 159-66. This per stay
l i m i t a t i o n is easier to administer than
Tennessee's 14 day rule, since it does not
require the state or a hospital to review a
patient's medical history over the current
fiscal year merely to determine his or her
eligibility for hospitalization coverage.
46 J.A. 1 59-66.
54
47
the most drastic in the nation. As of that
year the states other than T e n n e s s e e which
funded only a fixed number of hospital days
a year set an average ceiling of 37.6 days;
T e n n e s s e e ' s 14 day rule was less than half
that average.
The d e f e n d a n t s are free to reduce
Tennessee's Medicaid costs by m e a n s of any
48
of the m e t h o d s utilized in other states,
which bear equally on the h a n d i c a p p e d and
n o n h a n d i c a p p e d alike, while satisfying the
Medicaid Act's requirement that r e i m b u r s e
ment p o l i c i e s " a s s u r e that i n d i v i d u a l s
A p r i v a t e study of state M e d i c a i d
programs referred to by the United States
contains essentially similar information,
although it indicates the Tennessee rule is
now o n l y the s econd most severe in the
nation. (U.S. B r . 10a).
A number of other methods, in addition
to those described in the text, are used
o u t s i d e T e n n e s s e e to c o n t r o l h o s p i t a l
costs. J.A. 161 ( P u e r t o Rico), 163
( M i c h i g a n , N e v ada), 164 (Guam), 166
(Washington) .
55
e l i g i b l e for medical assistance have
reasonable access ... to inpatient hospital
services of adequate quality." 42 U.S.C. §
1 3 96 a ( a ) ( 13 ) . Indeed, the Tennessee
49
legislature has recommended that the state
adopt a di agnosis related reimbursement
plan, an approach already applied in
several state Medicaid systems and utilized
50
by the federal government under Medicare.
Respondents ask not that Tennessee apply to
The Medicaid System of the Tennessee
PeparTment of Public Health, A Report of
the Special Joint " Committee to the
N i n e t y - T h i r d General A s s e m b l y , i b , 26
( 1 9 8 3;. The Comm i fc t ee cr i tic i zed the
method by which state officials had reduced
i n p a t i e n t expenditures, noting that the
cutback "has forced an unfair burden for
cost containment efforts upon a small
number of fpuhlie and non-profit] hospitals
[which treat a high volume of Medicaid
patients] and the counties which support,
these hospitals." Adoption of a diagnosis
r e lated reimbursement system was recom
mended as a means of reducing the burden on
the hospitals "while assuring that Medicaid
c l i e n t s and the public are guaranteed a
source for acute care." See n.44, s u p r a .
50 42 U.S.C. § 139 5 w w .
56
the h a n d i c a p p e d a different rule than that
applicable to the nonhandicapped, such as a
51
20 day c e i l i n g rather than 14 days, but
that the s t a t e adopt a single rule for all
which is neutral not only on its face but
also in its impact.
This case thus presents no issues
r e g a r d i n g the financial costs which may in
other i n s t a n c e s be involved in complying
with the mandate of section 504. Peti
t i o n e r s did not assert in the court below,
and do not claim in this Court, that the
n o n - d i s c r i m i n a t o r y methods utilized in
other states to reduce Medicaid costs would
be in any way less efficacious in Ten
nessee. (See Pet. App. A20 n.12) This is
not a case like Davis v. Southeastern
C o m m u n i t y C o l l e g e , 442 U.S. 397 (1979), in
51 Indeed, the Medicaid statute itself
p r e c l u d e s such special treatment. 42
U.S.C. (Supp. V) § 1 3 9 6a(a)(10) (B).
57
w h i c h the federal g r a n t e e adduced persua
sive evidence that altering its p r o g r a m to
a c c o m m o d a t e the needs of certain disabled
individuals would not be feasible. Here the
T e n n e s s e e officials who testified at trial
never suggested that the M e d i c a i d l i m i t a
tions under c h a l l e n g e were in any way
preferable to the less burdensome a l t e r n a -
52
tives. There was no claim that the
selection of the 14-day rule was based on
any a n a l y s i s of the m e d i c a l needs of
Medicaid patients, of the most e f f i c a c i o u s
m e t h o d of administering the program, or of
any other consideration. Indeed, Tennessee
o f f i c i a l s a p p a r e n t l y p r e f e r r e d to lower
Medicaid costs by r e d u c i n g the r e i m b u r s e -
53
ment paid to i n e f f i c i e n t h o s p i t a l s , a
52 J.A. 40, 68-69, 96; Transcript of
August.15, 1980, pp. 99-105.
55 Excess bed capacity, which petitioners
had proposed to penalize, was one of the
major reasons for the high cost of hospi
talization in Tennessee. In 1980 only
70.9% of the State's licensed hospital beds
58
s o l u t i o n w h i c h would c l e a r l y have had no
a d v e r s e impact on the h a n d i c a p p e d , but
that plan was a b a n d o n e d at the last
minute in part because of opposition by the
h o s p i t a l i n d u s t r y . (Pet. App. A14; J .A .
46-47).
In short, petitioners have consistently
undert a k e n to d efend this action, not on
the g r o u n d that there was an i m p o r t a n t
reason for selecting the 14 day rule as the
m e t h o d of l i m i t i n g the state M e d i c a i d
program, but by insisting that Tennessee is
free to adopt that or any other rule for no
reason at all. Petitioners have o f f e r e d no
j u s t i f i c a t i o n for their c h o i c e of this
particular alternative, and s i m p l y insist
were occupied. Final Report of the Special
Commi 11 ee on Hosp 1 t al Cost&onfcbinment, 91st
f e n n e s s e e General A s s e m b l y (1980). The
Tennessee State Health Plan, 1970-84 noted
that such excess capacity had been found to
"contribute to the high cost of hospital
care with little or no health benefits.
59
that they are under no legal obligation to
do so. (See Pet. Br. 24). P e t i t i o n e r s
e x p r e s s l y c o n c e d e that they can offer no
explanation of why even the original 20 day
54
rule was established. (Jjd. , 7 n.10). They
contend, not that the reasons for selecting
the 14 day l i m i t a t i o n s h o u l d be given
54 Whether the 20 day rule itself had a
disparate effect on the handicapped is not
clear from the present record. To acertain
the e f fect of that rule it would be
necessary to know how many handicapped and
nonhandicapped patients require 21 days or
more of ho spatilization in a year. The
record contains no such information.
If the 20 day rule did have such a
disparate impact, that effect would under
the sixth circuit decision constitute a
prima facie case of a violation of section
504. Its ultimate legality would depend in
part on the n a t u r e and i m p o r t a n c e of
whatever justification might exist for the
20 day rule. The state conceded at trial
it would not even explain why the 20 day
rule was adopted. (J.A. 45, 67).
60
c o n t r o l l i n g legal importance, but that the
lack of any such articulated reasons is
55
legally irrelevant.
The sixth circuit, noting the extremely
narrow grounds on which the 14-day rule has
until now been defended, directed that the
d i s t r i c t court afford the state another
o p p o r t u n i t y to adduce a justification for
that p r a c t i c e . Under the decision of the
court of appeals, proof of the existence of
a p r a c t i c e with an adverse effect on the
Even prior to the present controversy,
Tennessee has opposed to scrutiny of
w h e t h e r its Medicaid program was being
operated in violation of section 504. The
state pledged, in order to receive federal
Medicaid funds, that it would periodically
review its program to ensure that it did
not discriminate against the handicapped,
but in fact never undertook any such
internal audits or evaluations. (3.A. 42,
96-97, 135, 136). All administrative
complaints alleging discrimination against
the handicapped have been disposed of in
such a way as to make them inaccessible to
federal auditors, in violation of re
presentations made by the state in order to
obtain federal Medicaid funds. (3.A. 42,
144 1 9).
61 -
d i s a b l e d is to be treated as establishing
only a prima facie case of unlawful
d i s c r i m i n a t i o n under section 504. See
C o n n e c t i c u t v. T e a l , 457 IJ.S. 440,447
(1982). The appellate court articulated
c e r t a i n s t a n d a r d s to be applied on remand
in d e t e r m i n i n g whether that prima facie
case had in this case been rebutted. (Pet.
App. A12-A16). Neither party sought
c e r t i o r a r i regarding this aspect of the
sixth c i r c u i t opinion, and the correctness
of the p a r t i c u l a r standards established by
that o p i n i o n is not be fore this Court .
Thus an a f f irmance by this Court of the
sixth c i rcuit 's finding of an unlawful
d i s c r i m i n a t o r y e ffeet would not be con-
elusive of this litigation, but will merely
shift to p e titioners the burden of estab
l i shing on remand a legally sufficient
62
justification for selecting the 14-day rule
as the m e t h o d of l i m i t i n g the s t a t e ' s
Medicaid program.
Since this case was d e c i d e d by the
district court in June, 1981, there have
been s i g n i f i c a n t c h a n g e s in the Tennessee
M e d i c a i d p r o g r a m . First, T e n n e s s e e has
r e s t o r e d 20 days per year of i n p a t i e n t
hospital coverage to individuals under the
age of 21 who are receiving early periodic
s c r e e n i n g , d i a g n o s i s , and t r e a t m e n t
56
services. Second, Tennessee has redefined
the eligibility r e q u i r e m e n t s for M e d i c a i d
so as to exclude entirely from that program
a s u b s t a n t i a l number of i n d i v i d u a l s who
57
were c o v e r e d by M e d i c a i d in 1980. As a
56 See U.S. Br . 8a. Federal law expressly
allows greater inpatient care to be given
to such children. 42 U.S.C. §§ 1396a(a)
(10)(I) , 1 3 9 6 d (a ) ; 42 C.F.R. § 441.57.
57 This c h a n g e was a c c o m p l i s h e d by
excluding from the Medicaid program most
i n d i v i d u a l s c l a s s i f i e d as " m e d i c a l l y
needy." See Schweicker v. Gray Panthers,
453 U.S. 34, f Y - 38 {1 § 81 ) . Copies o 7 tTie
63
result of these changes in the 14-day rule
as it existed at the time of trial, some of
the handicapped patients adversely affected
by the 1 4 - d a y rule are now entitled to 20
days of hospitalization per year, and some
of the nonhandicapped patients who were not
a f f e c t e d by the 14-day rule now no longer
r e c e i v e any hospitalization at all under
Medicaid.
Whether under the eligibility rules
now in o p e r a t i o n the adverse impact of the
1980 rule has been aggravated, mitigated,
elimi n a t e d , or altered in some other
legally relevant manner the record does not
d i s c l o s e and we do not know. Since this is
an a c t i o n for injunctive relief, re
sponde n t s ' right to any remedy depends on
the s u b s tance and effects of the 1984
453 U.S. 34, 37-38 ( 1981 ). -Copies of the
state rules altering the eligibility of
such m e d i c a l l y needy patients have been
lodged with the Clerk.
64
rules, not of the rather different rules
which were in effect in 1980. Under these
c i r c u m s t a n c e s the appropriate disposition
of this case would appear to be to remand
it for an evidentiary hearing to ascertain
what effect the 1984 rules now have on
h a n d i c a p p e d Medicaid patients. See Spomer
v. L i t t l e t o n , 414 U.S. 514 (1974). On the
a s s u m p t i o n , however, that the Court may
wish to resolve the issues that were
p r e s e n t e d by the 1980 rules, we set forth
our views on those questions.
(1 ) The Nature of Tennessee's 1980
Med ic aid Rest rlet ions
Ihe 14 day rule it) effect in 1980 had
a p e c u l i a r l y s e le ct iv e effect. Of approxi
m a t e l y 5 1 , 0 0 0 annual M e d i c a i d patients,
44,000, t h o s e who needed less than 15 days
of h o s p i t a l i z a t i o n in a year, were en ti re ly
e x e m p t fr om any r e d u c t i o n in Medica id
65
s e r v i c e s . All of the cost savings were
made by r e d u c i n g the services provided to
the c o m p a r a t i v e l y small group of patients,
less than 15% of the total, who required 15
days or m o r e of medical treatment in the
same fiscal year. The 7,000 indigent
M e d i c a i d recipients picked to bear ail of
the b u r d e n of the reduction in services
were c h o s e n , not because their medical
needs were less serious, or because they
were s o m e h o w abusing the Medicaid system,
but merely because they had the ill fortune
to be too sick, or to be sick too often, in
a p a r t i c u l a r fiscal year. Over 63% of
those adversely affected by the 14 day rule
were handi c a p p e d , while 72% of the group
unaffected by the rule were nonhandicapped.
The harsh impact of the 14 day rule
was felt when a Medicaid patient, having
used up his or her allotted two weeks of
c o v e rage, again required hospitalization
66
for t r e a t m e n t of an i njury or i l l n e s s in
58
the same fiscal year. The u n d i s p u t e d
evidence at trial demonstrated that it was
f r e q u e n t l y i m p o s s i b l e in T e n n e s s e e for a
sick or i n j u r e d i n d i g e n t i n d i v i d u a l to
o b t a i n a d m i s s i o n to a hospital once his or
her a nnual M e d i c a i d c o v e r a g e was ex-
59
hausted. Even some critically ill patients
60
could not obtain hospital care. One doctor,
for e x a m p l e , d e s c r i b e d his e x p e r i e n c e
trying to save the life of the victim of a
car a c c i d e n t who, a l t h o u g h l i t e r a l l y
b l e e d i n g to death, had been turned away at
a s e r i e s of T e n n e s s e e h o s p i t a l s . (J.A.
58 If a patient exhausts his or tier 14
days while still undergoing treatment,
Tennessee hospitals will nonetheless not
discharge the patient without the physi
cian's approval. J.A. 53-54, 106, 116,
129.
59 J.A. 50-52, 100-02, 116, 121-23.
60 J.A. 125-26, 129; transcript of
hearing of February 17, 1981, pp. 5-7.
67
124). At best i n d i g e n t p a t i e n t s faced a
s u b s t a n t i a l l i k e l i h o o d that, once their
allotted days were exhausted, they would be
denied hospitalization until their c o n d i
tion had d e t e r i o r a t e d s u f f i c i e n t l y to
become life threatening. (3.A. 48-58).
This s y s t e m had a number of anomalous
aspects. For the first few weeks in July,
the b e g i n n i n g of the fiscal year, all
Medicaid eligibles were able to o b t a i n a d
m i s s i o n to T e n n e s s e e h o s p i t a l s . As the
fiscal year progressed, and allotments were
used up, an i n c r e a s i n g n u m b e r of those
Medicaid patients were denied both Medicaid
c o v e r a g e and admission to hospitals in the
state. By June some 7,000 M e d i c a i d
patients faced rejection if they needed and
sought hospitalization. For these patients
the 14 day rule compelled postponement of
treatment for medical problems which arise
late in the fiscal year; a p a tient whose
68
i l l n e s s n e e d s 2 days of hospitalization in
May must g e n e r a l l y wait until July, even
t h o u g h by then his or her c o n d i t i o n may
have deteriorated so much as to r e q u i r e a
week or more of treatment.
The c e i l i n g has n o t h i n g to do with a
p a t i e n t ' s total Medicaid costs. A patient
who has a l r e a d y r e c e i v e d $ 1 0 , 0 0 0 in
o u t p a t i e n t treatment, tests and medication
still is entitled to 14 days of h o s p i t a l
ization, while a patient whose previous 14
days of hospitalization and other treatment
cost only $5,000 cannot hospitalization. If
two M e d i c a i d p a t i e n t s s u s t a i n i d e n t i c a l
injuries in an automobile accident, one may
receive needed h o s p i t a l i z a t i o n , while the
o ther is d e n i e d it s o l e l y b e c a u s e of
t r e a t m e n t e a r l i e r in the year for some
e n t i r e l y u n r e l a t e d c o n d i t i o n . A patient
h o s p i t a l i z e d from June 2 to July 2 c o n
tinues to receive hospitalization coverage;
69
an otherwise identical patient hospitalized
from June 15 to July 15 would thereafter be
d e n i e d h o s p i t a l i z a t i o n for e l e v e n and a
half months.
(2) The 1980 Rules Had A Discriminatory
E f f e e t Wi thin the Scope of Section
m -----------------------------
N e i t h e r the p e c u l i a r i t i e s of the
manner in which this rule operated, nor the
fact that it deprived only about 7,000 of
the 51,000 Medicaid p a t i e n t s of b e n e f i t s ,
were by t h e m s e l v e s of i m p o r t a n c e under
s e c t i o n 504. So long as the b u r d e n s of
these or any other restrictions do not fall
more h e a v i l y on the h a n d i c a p p e d , s e c t i o n
504 has no a p p l i c a t i o n . But in this case
the method of selecting the 7,000 p a t i e n t s
whose b e n e f i t s were to be reduced did not
fail equally on the d i s a b l e d and n o n - d i s -
70
abled alike. As of 1979-80 the number of
p a t i e n t s a f f e c t e d by the rule was as
f o l lows:
H andi
capped
Total patients 16,852
Patients Hos
pital ized
14 days or less 12,235
Patients Hos
pital ized
15 days or m o r e ^ 4,617
Non
handi
capped
34,288
31,626
2,662
61 Pet. App. 31-32; J.A. 170-72, 182-84,
These s t a t i s t i c s , p r e p a r e d by the
defendants, treat as "handicapped" indi
viduals who are blind or disabled within
the meaning of the Social Security Act. (42
U.S.C. § 1 3 8 2 ( a ) ( A ) ) . The g r o u p of
handicapped individuals covered by section
504 is somewhat broader. See 29 U.S.C. §
706(7)(H). The method used by Tennessee to
calculate Ihe effect of the 14 day rule is
similar to the methodology that is ut ilized
by the O f f i c e of Civil R ights of the
Department of Health and Human Service to
ascertain the impact of the 14 day rule.
(J.A. 148, 155-56). Both c o u r t s b e l o w
a c c e p t e d these statistics as accurately
reflected the effect of the 14 day rule on
M e d i c a i d p a t i e n t s who were handicapped
within the meaning of section 504. The
court of appeals noted the state's m e t h
odology tended to understate the adverse
effect of the 14 day rule. (Pet. App. A 11 .)
71
H a n d i c a p p e d p a t i e n t s were 3 3 . 0 % of those
receiving hospital care, but 63.4% of the
patients selected to bear the burden of the
62
M e d i c a i d cuts. Under the 1 4-day rule,
92.2% of the non-handicapped patients were
provided all the hospital care they needed,
Both parties to this litigation stipulated
that the defendant's statistics accurately
d e p i c t e d the impact of that rule on
individuals protected by section 304. (3.A.
40; see also 3.A. 94, 156).
The S o l i c i t o r G e n e r a l , apparently
disagreeing with the m e t h o d o l o g y of the
Department of Health and Human Services,
urges that this case be r e m a n d e d with
instructions to reopen this issue. (U.S.
8r. 7 n.13). But the Solicitor General,
like this Court, is obligated to accept the
concurrent factual f i n d i n g s of the two
courts below and the binding stipulation
entered into by actual parties.
62 |he court of appeals noted that while
these statistics were analyzed in several
d i f f e r e n t ways by both parties, all the
analyses demonstrated that the 14 day rule
would have a d i s p r o p o r t i o n a t e a d v e r s e
impact on the handicapped. (Pet. App.
A 1 1 ) .
72
63
but only 71.6% of all handicapped patients
received similarly complete coverage. Thus
2 7 . 4 % of h a n d i c a p p e d p a t i e n t s faced the
p r o s p e c t of b e i n g d e n i e d a d m i s s i o n to a
T e n n e s s e e h o s p i t a l b e c a u s e they had
e x h a u s t e d their a l l o t t e d M e d i c a i d days,
c o m p a r e d to only 7.8% of n o n - h a n d i c a p p e d
p a t i e n t s . M e d i c a l e x p e r t s e x p l a i n e d at
trial that m a n y of the i l l n e s s e s which
63 The state a s s e r t s that 95% of all
"eligible handicapped individuals" would
have all of their "inpatient hospitali
zation needs" met despite the 14 day rule.,
(P. Br . 10, 21). Th is calcul a t ion sev erel y
understates the effect of the 14 day rule
by i n c l u d i n g in the group not harmed by
that rule 73,816 handicapped individuals
who are eligible for hospitalization but
who are not never sick enough to reguire
any h o s p i t a l i z a t i o n . (See Pet. App.
T T T - A 3 2 ) . O b v i o u s l y the e f f e c t of a
r e d u c t i o n in h o s p i t a l i z a t i o n must be
assessed by considering only its impact on
hospital users; Medicaid eligibles who do
not actually use Medicaid hospitalization
have no "inpatient, hospital needs" to meet.
See H a z e l w o o d School District v. United
States, "4 3T "075.' ~~299 , 308 ( 1979).
73
leave v i c t i m partially or totally disabled
often r e q u i r e repeated, sometimes lengthy,
h o s p i t a l i z a t i o n during the year. Among
those c h r o n i c and disabling diseases are
s t r okes, leukemia, sickle-sell anemia,
d e g e n e r a t i v e neurological diseases such as
m u l t i p l e sclerosis, and obstructive lung
d i s e a s e s such as asthma and bronchitis.
(J.A. 100, 108-10, 111-13, 118-20.). The
state c a n d i d l y acknowledged in its appel
late brief that "the handicapped population
of M e d i c a i d recipients would suffer
p r o p o r t i o n a t e l y more from the reduction in
h o s p i t a l b e n e f i t s than the nonhandicapped
Medicaid recipients." (Pet. App. A11 n.7.)
The issue presented by this appeal is
w h eth er the state's practices, which
c o n c e d e d l y "fall more harshly on one group
than a n o t her", Connecticut v. Teal , 4 3 7
IJ.S. 440, 447 (1983), have the type of
d i s c r i m i n a t o r y effect which is covered by
74
section 504 and the applicable regulations.
The 14 day rule is inconsistent with
s e veral aspects of section 504 and the
a p p l i c a b l e regulations. First, under the
14 day rule approximately 7,000 otherwise
e l i g i b l e M e d i c a i d patients, two-thirds of
them d i s a b l e d , are literally denied needed
64
M e d i c a l hosp i t a l i z a t io n services. The
4,000 disabled patients involved are denied
a ccess to those services for differing
p e r i o d s of time, depending on whether they
use up their annual allotment early or late
in the fiscal year. At least at some point
d u r i n g the fiscal year, however, each of
This case is clearly distinguishable
from Doe v, Coulotti, 592 F.2d 704 (3rd
Cir. 197971 In boe the state did not cover
private psychiatric inpatient case under
its Medic a i d program to the same extent
that it covered inpatient hospital treat
ment for physical illness. Since such
p s y c h i a t r i c case was not subject to any
reimbursement from the federal government,
the third circuit properly held section 504
inapplicable.
75
these 4 , 0 0 0 handicapped Medicaid patients
b e c o m e s sick enough to require hospitali
zation but cannot obtain it.
If Tennessee adopted a rule which
b arred for 12 months of the year the same
p r e d o m i n a n t l y handicapped group of p a
tients, the violation of section 504 would
be o b v i o u s . These individuals are unde
n i a b l y " o t h e r w i s e qualified" in the sense
that they have the same medical needs,
r e quire the same treatment, and are
indig ent to the same degree as those who
are provided with Medicaid hospitalization.
If they were denied such services on a year
round b asis, they would clearly be "ex
c luded from the participation in ... [a]
p r o g r a m or activity receiving Federal
financial assistance."
Section 504 is no less applicable
m e r e l y b e c a u s e under the 14 day rule the
a f f e c t e d handicapped patients are only
76
denied hospital services during part of the
year. Nothing in the language of the
s t a t u t e l i m i t s its application to exclu
sions w h i c h endure throughout an entire
c a l e n d a r or fiscal year. An exclusion for
any period of time falls within the literal
scope of s e ction 504. If Tennessee in June
of each year removed for one month the
ramps providing wheelchair access to
f e d e r a l l y assisted programs in the state,
no one w o u l d seriously suggest that the
p r e v i o u s 11 months of access somehow were
sufficient to comply with the law. Congress
never i n t e n d e d to give a federal grantee a
l i c e n s e to discriminate against the
h a n d i c a p p e d at one point in time merely
b e c a u s e he had earlier treated them
f a v o r a b l y . See Connecticut v. Teal, 457
U.S. 440, 455 (1982).
77
Tennessee insists that the patients
d e n i e d h o s p i t a lization are not technically
e x c l u d e d from the program. But meaningful
participation in Medicaid consists of being
t r e at ed when sick or injured, not in the
empty p r i v i l e g e of possessing an unusuable
M e d i c a i d card and reminiscing about past
v isits to the hospital. The period of
exclusion under the 14 day rule lasted less
than a year, but if its effect does not
c o n s t i t u t e exclusion from a federally
a s s i s t e d program, the state would be free
to estab l i s h a far longer period of
e x c l u s i o n . Patients who used 14 days of
hospitalization within a given period could
be e x c l u d e d from the program for 5 or 10
years, or for life. Nothing in the
l a n g u a g e of section 504 or the applicable
r e g u l a t i o n s countenances treating such
exclusions as if they were a form of
p a r t i c i p a t i o n . Whether or not a Medicaid
78
p a t i e n t is "excluded" from Tennessee's
p r o g r a m on a particular day turns on
w h e t h e r or not he or she actually receives
n e e d e d hospitalization, not on the reasons
which may have prompted the state to deny
that treatment.
The Solicitor General relies on a
c o m m e n t a r y to the HHS regulations which
explains that a burn treatment center "need
not p r o v i d e other types of medical treat
ment to handicapped persons unless it
p r o v i d e s such medical services to non
h a n d i c a p p e d persons." 45 C.F.R. P t . 84,
App. A, H 33. The evident purpose of that
commentary is merely to make clear that the
states are authorized to establish special
ized hospit a l s , and that a recipient's
o b l i g a t i o n to take resonable steps to
a c c o m m o d a t e the disabled does not reguire
it to treat deafness at an eye hospital.
The i n stant case, however, involves no
79
specialized facilities. The problem is not
that T e n n e s s e e hospitals are ill equipped
or u na ble to treat the medical problems of
the h a n dicapped, but that the state is
unwilling to pay for that care. In
T e n n e s s e e not even a burn treatment center
will admit a disabled burn victim if he or
she has already exhausted his or her
allotted 14 day of care.
Even if the handicapped individuals
a d v e r s e l y affected by the 14 day rule are
not regarded as being excluded from
M e d i c a i d during a portion of the year, it
is n o n e t h e l e s s indisputable that they
r e ceive a very different type of medical
care than most patients. The overwhelming
m a j o r i t y of all nonhandicapped patients
remain eligible for hospitalization
w h e n e v e r they need it throughout the year;
thousands of other handicapped patients, on
the other hand, must wait to actually
80
r e c e i v e n e e d e d s e r v i c e s until the next
fiscal year. In some instances such delays
in r e c e i v i n g medical care can be literally
fatal. Delay will often result on a
s e r i o u s d e t e r i o r a t i o n in a p a t i e n t ' s
c o n d i t i o n , u l t i m a t e l y l e a d i n g to more
r a d i c a l or d a n g e r o u s forms of treatment.
Paraplegics, for example, are p a r t i c u l a r l y
s u s c e p t i b l e to d e c u b i t u s u l cers, more
c o m m o n l y known as b e d s o r e s ; t r eated
p r o m p t l y this is o r d i n a r i l y a r elatively
minor i l l ness, but left u n t r e a t e d it can
lead to a m p u t a t i o n of the limb involved.
Even where such severe consequences are not
involved, a postponement of hospitalization
will often mean that the p a t i e n t must
e n d u r e weeks or m o n t h s of pain or d i s
ability until the coming of the new fiscal
year b r i n g s with it the overdue hospital
ization.
81
The d a n g e r s and s u f f e r i n g which are
occasioned by the d elays c o m p e l l e d by the
14 day rule fall far m o r e h e a v i l y on
h a n d i c a p p e d p a t i e n t s . More than 1 in 4
h a n d i c a p p e d M e d i c a i d patients are subject
to such d e l a y s in T e n n e s s e e , c o m p a r e d to
less than 1 in 13 nonhandicapped patients.
This type of disparate impact falls w ithin
the scope of several of the a p p l i c a b l e
regulations of the Department of Health and
Human Services. First, section 84.4(b)(4)
provides:
A recipient may not ... utilize
criterion or methods of adminis
tration ... that have the ...
effect of defeating or s u bstan
tially impairing accomplishment,
of the objectives of recipient's
program with respect to handi
capped persons....
Second, s e c t i o n 8 4 . 4 ( b )( 1 ) (iii) forbids a
r e c i p i e n t from p r o v i d i n g "a g u a l i f i e d
person with an aid, benefit or service that
82
is not as e f f e c t i v e as that p r o v i d e d to
o t h e r s . . . . " See also 45 C.F.R. § 84.
52(a)(3).
The a p p l i c a t i o n of t h e s e regulations
to the facts of this case is clear. A
m e t h o d of a d m i n i s t r a t i o n which delays the
m e d i c a l l y n e c e s s a r y h o s p i t a l i z a t i o n of
4 , 0 0 0 h a n d i c a p p e d p a t i e n t s each year
u n d e n i a b l y " s u b s t a n t i a l l y i m p a i r t s ] " for
them the a c c o m p l i s h m e n t of the m a n i f e s t
goals of the M e d i c a i d p r o g r a m . T e n n e s s e e
law e x p r e s s l y states that the objective of
the state Medicaid program is "to p r e v e n t ,
d i a g n o s e , correct and cure conditions that
c a u s e acute s u f f e r i n g , e n d a n g e r life,
result in i l l n e s s or infirmity, interfere
with [a p a t i e n t ' s ] c a p a c i t y for n ormal
a c t i v i t y , or t h r e a t e n some s i g n i f i c a n t
63
handicap ...." T.C.A. § 14-23-103(2). The
65 jhe Solicitor General appears to argue
with regard to this regulation that the
p h r a s e " o b j e c t i v e s of the r e c i p i e n t ' s
program" in section 84.4(b)(4) refers not
83
objectives of a recipient's program must in
any event include furthering the p u r p o s e s
of the fe der al p r o g r a m u nder whi ch it is
funded, and healing the sick is c e r t a i n l y
the goal w h i c h led C o n g r e s s to enact the
Medicaid Act in 1964. See 42 U.S.C. § 1396.
The achievement of these federal and state
o b j e c t i v e s is i n t e r f e r r e d with s e v e r e l y ,
to the goal of that program, but merely to
the act of providing the service intended
to achieve that goal. On that reading the
"objective" of Tennessee's program would
be, not to cure the sick, but m e r e l y to
p r o v i d e 14 days of h o s p i t a l i z a t i o n ,
r e g a r d l e s s of w h e t h e r that peri od of
h o s p i t a l i z a t io n w assufficient,orperhaps,
even necessary. That is, the "objective"
of providing 14 days of hospitalization,
the government appears to suggest, is to
provide 14 days of hospitalization. This
is, at the least, an ext remely p e c u l i a r
c o n s t r u c t i o n of the term "objective", a
term which usually refers to the ultimate
goal of an activity, not to the manner in
which that activity occurs.
84
and in some instances possibly fatally, by
p o s t p o n i n g n e e d e d h o s p i t a 1 izaton for
thousands of handicapped patients.
It is e q u a l l y a p p a r e n t that the
s e l e c t i v e i m p o s i t i o n of those delays on a
predominantly handicapped group of patients
p r o v i d e s them with a type of medical care
which is decidedly less effective than that
a f f o r d e d to almost all n o n - h a n d i c a p p e d
p a t i e n t s . 45 C.F.R. § 8 4 . 4 ( b ) ( 1 ) (iii) .
D e l a y e d t r e a t m e n t will o f t e n be less
e f f i c a c i o u s t r e a t m e n t , and even the most
skilled care cannot undo the suffering that
will have occurred because needed care was
p o s t p o n e d , not for any medical reason, but
m e r e l y to await the a r r i v a l of the next
fiscal year. Where m e d i c a l need s are
concerned, treatment delayed is i n v a r i a b l y
treatment denied.
85
(3) The "Same Service" Defense
Petitioners and the Solicitor General,
while acknowledging the und en iable a d v e r s e
impact of the 14 day rule, insist that that
impact is as a m atter of law i r r e l e v a n t .
Both argue that s e c t i o n 504 of the HHS
r e g u l a t i o n s are fully s a t i s f i e d w h e n e v e r
the h a n d i c a p p e d r e ceive from a federally
assisted program the "same service" that is
p r o v i d e d to n o n h a n d i c a p p e d i n d i v i d u a l s .
Petitioners assert that thelaw " r e q u i r e [ s ]
only that aids, b e n e f i t s and services, be
provided in like kind to both the h a n d i
capped and nonhandicapped." (Pet. Br . 23)
The Un it ed States s u g g e s t s "A p erson who
o f f e r s the same goods and services ... to
all ... is treating all ... equally ... is
not d i s c r i m i n a t i n g a g a i n s t any of them."
(U.S. Br. 22). T e n n e s s e e ' s p r a c t i c e s
c anno t be a c c u r a t e l y c h a r a c t e r i z e d as
providing equal access to hospitalization.
86
By June of each fiscal year T e n n e s s e e is
not o f f e r i n g the same s e r v i c e s to every
q u a l i f i e d p a t i e n t ; some 4,000 handicapped
patients are not offered hospitalization at
all.
P e t i t i o n e r s ' view of s e c t i o n 504 and
the HHS r e g u l a t i o n s has been r e p e a t e d l y
r e j e c t e d both by the United States and by
this Court. Section 8 4 . 4 ( b )(1 ) ( iv ) notes
that under certain circumstances:
provid[ing] different ... aids,
b e n e f i t s , or s e r v i c e s ... is
necessary to provide q u a l i f i e d
h a n d i c a p p e d p e r s o n s with aid,
benefits, or services that are
as e f f e c t i v e as those provided
to others.
See also 45 C.F.R. § 8 4 . 5 ( a ) ( 5 ) . The
official HHS commentary to the r e g u l a t i o n s
notes that "in order to meet the individual
needs of h a n d i c a p p e d p e r s o n s to the same
e xtent that the c o r r e s p o n d i n g need s of
87
n o n h a n d i c a p p e d are met, adjustments to
r e g ular programs or the provisions of
d i f f e r e n t programs may be necessary." 45
C.F.R. Pt . 84 App. A 11 6. The explanation
of the HEW regulations issued in May 1977,
when the final regulations were promul
gated, emphasized
[l]n the past many handicapped persons
have been excluded from programs
e n t i r e l y or denied egual treatment,
s i m p l y be cause they are handicapped.
But e l i m i n a t i n g such gross exclusions
and d e n i a l s of egual treatment is not
s u f f i c i e n t to assure genuine equal
opportunity. In drafting a regulation
to p r o h i b i t exclusion and discrimi
na tion, it became clear that d i f
ferent or special treatment of
h a n d i c a p p e d persons, because of their
handicaps, may be necessary in a
n u m b e r of contexts in order to ensure
equal opportunity.... 42 Fed. Reg.
22676 (1977).
HFW S e c r e t a r y Mathews, in a commentary
p u b l i s h e d with the first draft of these
regulations, noted "Handicapped persons may
r e quire differ en t treatment in order to be
afforded equal access to federally assisted
88
p r o g r a m s and activities, and identical
t r e a t m e n t may, in fact, constitute d i s
crimination." 41 Fed. Reg. 20296 (1976).
This Court rejected the same argument
now a d v a n c e d by Tennessee in Lau v. Nich
o l s , 414 U.S. 563, 568. ( 1 977) In _Lau the
f e d e r a l l y assiste d public school classes
and m a t e r i a l s were ordinarily in English.
The city conducted special English language
instruction classes for many but not all of
the s t u d e n t s who entered the school system
s p e a k i n g only Chinese. 414 U.S. at 564 and
n. 1. The Chinese speaking students unable
to o b t a i n admission to those classes
a s s e r t e d that these practices violated the
Title VI regulations. The court of appeals
had held that these students were entitled
onl y to "the same facilities, text books,
t e a c h e r s and curriculum as is provided to
other c h i l d r e n ----" 483 F.2d 791 , 799 (9th
Cir. 1 973). The city pressed here an
89
a r g u m e n t indis ti ng uis hable from that now
a d v a n c e d by Tennessee, insisting that it
had "not e r e c t e d physical barriers at the
6 6
scho ol house doors." This Court reversed
the d e c i s i o n of the court of appeals,
relying in particular on section 80.3(b)(2)
of the HEW Title VI regulations, a provi
sion which, in language virtually identical
to s e c t i o n 84.4(b)(4) of the section 504
r e g u l a t i o n s , forbad federal grantees from
u t i l i z i n g m e t h o d s of administration which
had "the eff ect of defeating or substan
tial ly impair in g accomplishment of the
o b j e c t i v e s of the program as respects
i n d i v i d u a l s of a particular ... national
67
origin." The Court emphasized "there is
Brief of Respondents, 5, 20.
See also Memorandum for the United
S t a t e s , p p . 10-11.
67
90
is no e q u a l i t y of treatment merely by
p r o v i d i n g ... the same facilities, text
boo ks, teachers, and curriculum ... for
s t u d e n t s who do not understand English".
68
414 U.S. at 566, 568.
Pet ition er s point to no provision of
the s e c t i o n 504 regulations which purports
to i m m u n i z e from scrutiny practices which
have the e f f e c t of excluding handicapped
i n d i v i d u a l s from a program merely because
The Uni ted S tates a r g u e s that a
federal recipient would be insulated from
S e c t i o n 504 scrutiny if it provided all
p r o g r a m participants with a voucher of
equal dollar amount to purchase goods and
services. (U.S. Amicus Brief at 13, 22-23,
25). That hypothetical example is of
little relevance here, since Title XIX so
c l e a r l y precludes such a policy. This
Court has expressly held that the obliga
tion to treat individuals equally is at
times violated by providing identical
a m o u n t s of money which in fact purchase
unequal services. Arizona Governing Board
of Norris. 77 L.td.zd' 1 ± 36 (1983). TFe“
school board in Lau could not have satis
fied the mandate of this Court by providing
s t u d e n t s with a voucher sufficient in
a mount only to pay for English language
instruction.
91
that e x c l u s i o n is based on the receipt of
past se rvices. Neither do they suggest
that the language of the methods of
a d m i n i s t r a t i o n regulation applied in Lau
r e q u i r e s automatic approval of any program
p r o v i d i n g the same service to all. Peti
t i oner s argument, like that of the Soli
cito r G e n e r a l , is limited to a contention
that such a per se defense is somehow to be
found in the equal effectiveness regula
tions, 45 C.F.R. §§ 8 4 . 4 ( b ) (1 ) (iii) ,
8 4.52(a)(3).
The literal language of sections
8 4 . 4 ( b ) ( 1 ) ( i i i ) and 84.52(a)(3), however,
e x p r e s s l y contemplates an inquiry into the
act ua 1 effectiveness of the aervices
provided to the handicapped. But Tennessee
and the Solici to r General suggest that the
plai n m e a n i n g of these regulations is
l i m i t e d by 45 C.F.R. § 84.4(b)(2), which
p r o v i d e s :
52
For the purposes of this part,
aids, benefits, and services, to
be equally effective, are not
required to produce the identical
result or level of achievement
for handicapped and nonhan di
c apped persons, but must afford
handicapped persons equal
op por tunity to obtain the same
result, to gain the same benefit,
or to reach the same level of
achievement, in the most inte
grated setting appropriate to the
person's needs.
P e t i t i o n e r s contend that this provision
" d r a m a t i c a l l y qualifie[s]" sections 84.
.4(b )(1)(i i i ) and 84.52(a)(3), and requires
only that services "be provided in like
kind to both handicapped and nonhandi
c a p p e d . " (Pet. B r . 23) This construction
of s e c t i o n 84.4(b)(2) simply flies in the
face of the language of that section, which
s q u a r e l y holds that services of a "like
kind" are insufficient if they afford
u nlike opport u n i t e s for achievement or
s a t i s f a c t i o n to handicapped and nonhandi
c a p p e d p a r t i c i p a n t s .
93
The Solicitor General offers a more
s o p h i s t i c a t e d misreading of section
8 4 . 4 ( b ) ( 2 ) , insisting that that section
requires only that "the handicapped must be
g i v e n an 'equal opportunity'" to get the
same s e r v i c e "(whatever that may be) that
the State offers to others." (U.S. 8r.
14). This unlik ely construction of section
8 4 . 4 ( b ) ( 2 ) ignores that provision's
insistence that handicapped participants be
a f f o r d e d an equal opportunity to "obtain
the same re sul t" and reach "the same level
of a c h i e v e m e n t " as others. If a Medicaid
program is structured in such a way that in
June of each year nonhandicapped patients
can o b t a i n hospital treatment, but hand i
c a p p e d p a t i e n t s cannot, the handicapped
p a t i e n t s clearly do not have the same
o p p o r t u n i t y as the others to obtain the
cure which results from such treatment.
94
The government's faulty analysis
d e r i v e s in large measure from a misreading
of the term "benefit" in section 84.4-
(b)(2), an error which pervades the the
S o l i c i t o r ' s brief. The noun "benefit" has
two d i s t i n c t meanings, it can refer either
to a v a l u a b l e good or service ("fringe
b e n e f i t " ) , or to the advantage or gain
derived from that good or service ("for the
b e n e f i t of mankind"). Which meaning of
" b e n e f i t " is intended is ordinarily
apparent from the context in which the word
is used. That term is used in both senses
in s e c t i o n 84.4(b)(2), which explains that
" b e n e f i t s ... to be equally effective ...
must a f f o r d handicapped persons equal
o p p o r t u n i t y to obtain the same ... bene
fit." Here the first "benefit" refers to
the particular type of assistance provided,
and the s e c o n d "benefit" to the advantages
d e r i v e d from that assistance. That is
95
a p p a r e n t from the overall structure of the
s e n t e n c e ; the regulation simply makes no
sens e if it provides, as the Solicitor
s u g g e s t s , that a particular service is
"equally effective" if it provides an equal
opportunity to obtain itself. The doctrine
of j_n pari materia supports a similar
c o n c l u s i o n ; "benefit" first appears in a
list w h i c h includes aids and services, but
its second use is in a list including
result and level of achievement.
The error in the Solicitor's inter
p r e t a t i o n of the phrase "same benefit" is
s i g n a l e d by the fact that while section
8 4 . 4 ( b ) ( 2 ) asserts that the handicapped
mus t "gain " the same benefit, the govern
m e n t ' s b r i e f paraphrases the regulation as
r e q u i r i n g that the participant "get" the
same benefit. (U.S. B r . 15) The verb
"gain" is used with "benefit" only where
" b e n e f i t " refers to the advantage or value
96
wh ich a c c r u e s to someone; a participant
"gets " a s e r v i c e and "gains" an advantage
from that service.
In this case , of course, respondents
a c t u a l l y seek only the same service at the
end of a fiscal year that is available to
n o n h a n d i c a p p e d patients. But in other
c o n t e x t s the "same service" defense would
lead to a number of anomalous results. Were
this defense recognized, a recipient might
be o b l i g a t e d to take steps to remove
p h y s i c a l b a r r i e r s which prevent a handi
capped individual from entering the room in
whi ch a federally assisted activity
o c c u r r e d , but would be under absolutely no
obi igut inn to make those services useful to
that individual once he or she entered.
Thus a fed erally assisted summer camp
a t t e n d e d by paraplegic children would be
o b l i g a t e d by section 504 to provide a ramp
at the entrance to its recreation building,
97
but could limit the a c t i v i t i e s in that
building to hopscotch , s k i p p i n g rope, tap
d a n c i n g and rol ler s k a t i n g . A p r a c t i c e
which resulted in a 10% d i f f e r e n c e in the
p r o p o r t i o n of h a n d i c a p p e d and n o n h a n d i
capped individuals admitted to a f e d e r a l l y
a s s i s t e d p r o g r a m would be s u s p e c t , but a
practice which caused a 100% d i f f e r e n c e in
the e f f e c t i v e n e s s of that program would be
immune from scrutiny. Section 504 would be
v i o l a t e d if some p r a c t i c e p r e v e n t e d the
p a r t i c i p a t i o n of the d i s a b l e d in a m i n o r
part of a p r o g r a m , but not if the entire
p r o g r a m fai led to meet or a d d r e s s their
n e e d s .
The S o l i c i t o r General also attacks the
69
d e c i s i o n of the court of a p p e a l s as
69 C e n t r a l to the S o l i citor General's
attack on the Court of Appeals' holding is
its characterization of that holding as a
r e q u i r e m e n t "that the h a n d i c a p p e d be
a s s ured of the same success rate as the
non-handicappedinachieving[goodhealth]".
In fact, the appellate court was doing
n o t h i n g more than e n f o r c i n g the quite
98
i n v o l v i n g "affirmative action", a require
ment which the g o v e r n m e n t urge s was
d i s a p p r o v e d by S o u t h e a s t e r n C o m m u n i t y
C o l l e g e v. D a v i s , 442 U.S. 397 ( 1 979 ).
(U.S. B r . 21, 23, 26) Under S o u t h e a s t e r n
C o m m u n i t y C o l l e g e , he suggests, a federal
g r a n t e e is never o b l i g a t e d to spend any
additional funds, or take any other form of
p o s i t i v e a c tion, m e r e l y b e c a u s e of the
p a r t i c u l a r needs of d i s a b l e d i n d i v i d u a l s
different requirement of the Department of
Health and Human Services that the handi
capped "be given an equal opportunity to
s u c c e e d at the goal of the [ M e d i c a i d ]
program." (Pet. App. A12, n.8, citing 45
C.F.R. 84.4(b)(2).) It would obviously be
impossible, simply as a function of the
limits of medical science and the reality
of human frailty, to order that any group
of p a t i e n t s be a s s u r e d of a particular
"success rate" in achieving good health.
W h a t e v e r the i n h e r e n t l i m i t s on the
benefits that a handicapped p a t i e n t may
d e r i v e from inpatient, treatment, he is
deprived the o p p o r t u n i t y to o btain any
b e n e f i t at all, if, as o c c u r s under
Tennessee's policy, he cannot even gain
admission to the hospital.
99
who wish to p a r t i c i p a t e in its p r o gram.
Thus in the g o v e r n m e n t ' s view it is
i r r e l e v a n t whether, for example, the state
actually incurs no sav ing, or even w a s t e s
m o n e y , by requiring a handicapped individ
ual who becomes ill in May to p o s t p o n e his
or her ho spitalization until the July; the
mere act of t r e a t i n g that p a t i e n t in a
ti mely f a s h i o n is i t s e l f " a f f i r m a t i v e
action." On the interpretation advanced by
the S o l i c i t a t o r Gen eral the congressional
p olicy m a n d a t e d by s e c t i o n 504 would be
merely one of benign neglect.
S o u t h e a s t e r n _____ C o m m u n i t y _____ C o l l e g e
r e q u i r e s no such e x t r e m e res ul t. That
deci si on e x p r e s s l y r e c o g n i z e d that there
wer e " i n s t a n c e s where a r e fusal to a c
commodate the needs of a d i s a b l e d p e r s o n
a m o u n t s to d i s c r i m i n a t i o n a g a i n s t the
handicapped." 442 U.S. at 413. The c l a i m s
of the plaintiff in that case were rejected
100
b e c a u s e she was not an " o t h e r w i s e q u a l i
fied" applicant for admission to the school
at issue, and could not, even if admitted,
" r e c e i v e even a rough e q u i v a l e n t of the
t r a i n i n g a n u r s i n g p r o g r a m n o r m a l l y
g i v e s . "442 U.S. 410. S o u t h e a s t e r n C o m
m u n i t y C o l l e g e did not address the issues
p r e s e n t e d by a case such as this in which
the q u a l i f i c a t i o n s of the h a n d i c a p p e d
plaintiffs are not in question.
A c o n s t r u c t i o n of s e c t i o n 504 that
e x e m p t e d federal grantees from any duty to
take p o s i t i v e m e a s u r e s to make their
p r o g r a m s a c c e s s i b l e to and e f f e c t i v e for
the handicapped would clearly be unfaithful
to its l e g i s l a t i v e h i s t o r y . P o s itive
me asures are e s s e n t i a l to a d d r e s s i n g the
c o n c e r n s e x p r e s s e d by C o n g r e s s in 1973
regarding physical barriers.
In the c o n t e x t of public
t r a n s p o r t a t i o n and the
h a n d i c a p p e d , denial of access
101
c a n n o t be l e s s e n e d s i m p l y by
e l i m i n a t i n g d i s c r i m i n a t o r y
s e l e c t i o n c r i t e r i a ; b e c a u s e
the barriers to equal p a rtici
p a t i o n are p h y s i c a l rath er
than a b s t r a c t , some sort of
action must be taken to remove
them, if only in the area of
new c o n s t r u c t i o n or p u r
chasing. "It is not enough to
op en the door for the h a n d i
c a p p e d a ramp must be
built so the door can be
r e a c h e d . " D o p i c o v. Gol-
s c h m i d t , 6 8 7 K.2d 644, 6^2
(Td C i r . 1982).
The l e g i s l a t i v e d e b a t e s l e a d i n g to the
a d o p t i o n of s e c t i o n 504 make cle ar that
C o n g r e s s b e l i e v e d that und er c e r t a i n
c i r c u m s t a n c e s the a b s e n c e of spec ial
services or a c c o m m o d a t i o n s for the h a n d i
c a p p e d w o u l d c o n s t i t u t e d i s c r i m i n a t i o n .
(See pp. 25-27 supra)
The use of the p h r a s e " a f f i r m a t i v e
a c t i o n " in S o u t h e a s t e r n Community College
has g i v e n rise to a c e r t a i n amount of
c o n f u s i o n in the lower c o u r t s . C o n g r e s s
used that p h r a s e in section s 501 and 503,
102
but not in 504, b e c a u s e " a f f i r m a t i v e
a c tion" is a term of art w hose use has
t r a d i t i o n a l l y been l i m i t e d to employment
s t a t u t e s , r e f e r r i n g to such p e r s o n n e l
m e a s u r e s as r e c r u i t i n g and p r o m o t i n g
members of a protected group. The p h r a s e
was first u t i l i z e d in this m a n n e r in
section 202 (1 ) of E x e c u t i v e Order 11246,
i ssued in 1965. The p h r a s e " a f f i r m a t i v e
70
action" is now used in 22 federal statutes
to im pose p o s i t i v e d u t i e s with regard to
n o n - d i s c r i m i n a t i o n ; in each of these
instances the statute involved is concerned
with e m p l o y m e n t practices. Where Congress
intended to impose positive duties of other
70 5 U.S.C. §§ 2 3 0 2 ( d ) , 4313, 4703,
7201(e); 22 U.S.C. § 3905(e); 29 U.S.C.
§§721(a ) , 791(b), 791(d), 793(a), 796(h),
1755, 1781(a), 1781(b), 1781(c); 31 U.S.C.
§ 732; 38 U.S.C. §§ 2012(a), 2014(c); 42
U.S.C. §§ 200 0e-17, 6005; 45 U.S.C. §§
79 7b(a), 907, 1004. The phrase is also
u t i l i z e d to d e s c r i b e the o b l i g a t i o n s
imposed on a party guilty of violating the
law.
103
kinds, it has not used the phrase affirma
tive action. That p h r a s e is not u t i l i z e d ,
for e x a m p l e , to d e s c r i b e the spec ial
education services r e q u i r e d by the E d u c a
tion for the Handicapped Act. 20 U.S.C. §§
1411 ej: s e q . S i m i l a r l y , the duty of an
employer under Title VII to accommodate the
r e l i g i o u s needs of an e m p l o y e e is not
couched in terms of affirmative action, but
is a s s u m e d to be e n c o m p a s s e d w ithin the
duty of n o n - d i s c r i m i n a t i o n . 42 U.S.C. §
2Q00e(j). Although the respondents in this
case seek no r e m e d y w hich might under any
plausible d e f i n i t i o n be c h a r a c t e r i z e d as
a f f i r m a t i v e ac tion, some clarification of
the l a n g u a g e in S o u t h e a s t e r n C o m m u n i t y
C o l l e g e may be c a l l e d for to avoid the
c o n f u s i o n w h i c h now e x i s t s r e g a r d i n g the
scope of section 504.
104
The S o l i c i t o r G e neral s u g g e s t s that
HHS has concluded that the 14 day rule at
issue in this case does not v i o l a t e the
section 504 regulations. The g o v e r n m e n t ' s
brief states at p. 20:
Here the district court found
that the state plan would fully
serve 95% of even handicapped
Medicaid eligibles ... For that
reason the Health Care Financing
Administration has approved
Tennessee's 14-day limit.
(Emphasis a d d e d ) .
Later, noting that determining w h e t h e r the
regulations have been violated is a respon
sibility of HHS, the Solicitor asserts, "As
we have a l r e a d y made clear, the concerned
ag ency has found no such p r o b l e m h ere."
(U.S. Br . 29 n .37). The clear implication
of these passages is that HHS has held that
the 14 day rule is consistent with section
504. The truth is otherwise.
105
The s u b m i s s i o n m a d e by T e n n e s s e e to
HCFA s o u g h t and o b t a i n e d o n l y a d e c i s i o n
that the 14 day rule did not v i o l a t e the
Medicaid Act. The submission c o n t a i n e d no
i n f o r m a t i o n w h a t e v e r regarding the effect
of that rule on the d i s a b l e d . A l t h o u g h
e x c l u s i v e r e s p o n s i b i l i t y for r e s o l v i n g
s e c t i o n 504 i s s u e s is v e s t e d in the HHS
O f f i c e of Civil Rights, no submission was
ever made to OCR, and only HCFA o f f i c i a l s
gave a p p r o v a l to the c h a n g e . HCFA o f f i
cials s i g n i f i e d their a p p r o v a l m e r e l y by
signing a form submitted by Tennessee; that
approval contains no r e f e r e n c e to s e c t i o n
504, to the section 504 regulations, or to
any of the facts of this case. Counsel for
r e s p o n d e n t s did file an a d m i n i s t r a t i v e
complaint seeking a d e c i s i o n from the HHS
Office of Civil Rights as to whether the 14
day rule v i o l a t e d s e c t i o n 504 and the
a p p l i c a b l e r e g u l a t i o n s . That complai nt
106
was filed in August, 1980. (See 3 . A.
146) To this day, some four years later,
OCR has failed to issue a decision resolv
ing that complaint.
CONCLUSION
Since the plaintiffs in this case have
carried their initial burden of e s t a b l i s h
ing that Tennessee's method of administra
tion has a disparate adverse e ffect on the
h a n d i c a p p e d , the state must j u s t i f y its
choice by demonstrating that the particular
b u d g e t r e d u c t i o n m e t h o d s e l e c t e d for
limiting Medicaid benefits has a " m a n i f e s t
r e l a t i o n s h i p " to a l e g i t i m a t e interes t.
C o n n e c t i c u t v. T e a l , 457 U.S. 440, 447
( 1 982 ); Pet. App. A16. If, as seems
unlikely on the p r e sent r e c ord, the stat e
has such a j u s t i f i c a t i o n , the a d m i t t e d
a d v e r s e impact of its a c t i o n s at least
107
c o m p e l s it to d e m o n s t r a t e that justifica-
Cit y of Los A n g e l e s D e p a r t m e n t of
Water v. M a n h a r t . 435 U.S. 702, 717 n.31
(1978).
To d e m a n d such justification is to do
no more than to compel the state to honor
the c o m m i t m e n t s which it has made over the
years as a c o n d i t i o n of r e c e i p t of more
than a b i l l i o n dollars in federal Medicaid
funds. H a ving free ly a c k n o w l e d g e d the
a d v e r s e d i s p a r a t e impa ct of their actions
upon the handicapped, and their f a i l u r e to
c o n s i d e r su ch effects, the defendants must
now do what S e c t i o n 504 has a l w a y s c o m
p e l l e d them to do: they must c o n s i d e r
whether their ’’method of a d m i n i s t r a t i o n of
the [ i n p a t i e n t h o s p i t a l service] .. [has]
the ... e f f e c t of d e f e a t i n g or s u b s t a n
ti al ly i m p a i r i n g a c c o m p l i s h m e n t of the
objectives of that program with r e spect to
h a n d i c a p p e d p e r s o n s . " 45 C.F.R. § 84
108
.4(b)(4). Since, as the d e f e n d a n t s
themselves have always known, the p a r t i c u
lar m e t h o d of a d m i n i s t r a t i o n whic h they
ch ose has such an eff ect, c o n s i d e r a t i o n
n e c e s s a r i l y must be g i v e n to the a v a i l
ability of alternative methods whic h would
be d evoid of such d i s c r i m i n a t o r y c o n s e
quences.
The p e t i t i o n e r s ' o b j e c t i o n s to the
court of a p p e a l s ' d e c i s i o n amount in the
final a n a l y s i s to an a s s e r t i o n that the
methods by which they a d m i n i s t e r h u n d r e d s
of m i l l i o n s of federal M e d i c a i d d o l l a r s
each year are simply immu ne from s c r u t i n y
un de r s e c t i o n 504. This is so, argues the
state, r e g a r d l e s s of the e x t e n t to whic h
h a n d i c a p p e d p a t i e n t s are forced, in the
petitioners' own words, to "suffer p r o p o r
tionally more" under the particular methods
of a d m i n i s t r a t i o n s e l e c t e d by the state.
In the i n s t a n t case, the decision whether
109
or how to cut i n p a t i e n t c o v e r a g e was, to
the p e t i t i o n e r s , p u r e l y a m e c h a n i c a l
p r o c e s s , i n v o l v i n g only a simple math ema
tical calculation, and no more. (J.A. 68,
96). The petitioners not only admit, they
vigorously insist that consideration of the
e f f e c t s of th ose c a l c u l a t i o n s upon the
health and s a f e t y of t h o u s a n d s of h a n d i
c a p p e d p a t i e n t s was entirely extraneous to
their administration of the program.
The state's adamant indifference to the
plight of the handicapped finds s u p p o r t in
n e i t h e r the legislative history of section
504 nor the r e g u l a t i o n s i m p l e m e n t i n g that
s t a t u t e . If s e c t i o n 504 is not read, as
the sixth c i r c u i t read it, to at least
r e q u i r e c o n s i d e r a t i o n of the needs of the
handicapped, c o n g r e s s i o n a l i ntent to deal
" c o m p r e h e n s i v e l y " with d i s c r i m i n t i o n
a g a i n s t the h a n d i c a p p e d in f e d e r a l l y
110
a s s i s t e d p r o g r a m s will have been f r u s
trate d. It is d i f f i c u l t to i m agine how
section 504 could require any less in these
circumstances and still have any p r a c t i c a l
m e a n i n g .
For the above r e a s o n s the decision of
the court of appeals should be affirmed.
Respectfully submitted,
GORDON BONNYMAN*
Legal Services of Middle
Tennessee, Inc,
1512 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
(615) 244-6610
Attorney for Respondents
♦Counsel of Record
Hamilton Graphics, Inc.—200 Hudson Street, New York N.Y.—[212) 966-4177