Bowen v. American Hospital Association, 476 U.S. 610 (1986)

Important rights and policies can be in tension when a governmental agency seeks to act on a child’s behalf and parental consent has not been obtained. The conflict is heightened when the agency is part of the federal government and is attempting to regulate in an area traditionally under the control of the states. In Bowen v. American Hospital Assn., the Supreme Court reined in such an attempt because it exceeded the authority conferred upon the agency by Congress.

Under Section 504 of the Rehabilitation Act of 1973, ‘‘[n]o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’’ In 1984, the Department of Health and Human Services (HHS) promulgated regulations under the act. In relevant part, the regulations established ‘‘[p]rocedures relating to health care for handicapped infants.’’ Those procedures required the posting of informational notices, authorized expedited access to records and expedited compliance actions, and directed state child protective services agencies to ‘‘prevent instances of unlawful medical neglect of handicapped children.’’

Various plaintiffs, including the American Hospital Association and the American Medical Association, challenged the regulations. The lower courts held for the plaintiffs. The Supreme Court affirmed via a plurality opinion.

The plurality found that the need seen by HHS for federal monitoring of hospitals’ treatment decisions rested wholly on situations in which parents refused their consent to treatment. Yet, the Court stated, a hospital’s withholding treatment from a handicapped infant when the parents did not consent to treatment could not violate Section 504 of the act since—absent such consent—the infant neither is ‘‘otherwise qualified’’ nor has been denied care ‘‘solely by reason of his handicap.’’

The plurality also concluded that the regulations improperly commandeered state employees and resources. Although HHS could require state agencies to document their own compliance with Section 504, nothing in the act authorized HHS to compel state agencies to monitor and enforce compliance by other recipients (that is, the hospitals) of federal funds. The Supreme Court subsequently developed the ‘‘commandeering’’ principle in the New York and Printz cases.

Bowen offered important observations about the factual basis required for agency rules and about the degree of deference courts will accord to agency positions. ‘‘It is an axiom of administrative law that an agency’s explanation of the basis for its decision must include a rational connection between the facts found and the choice made . . . . Agency deference has not come so far that we will uphold regulations whenever it is possible to conceive a basis for administrative action.’’ This is particularly so when the federal agency seeks to superintend decisions ‘‘traditionally entrusted to state governance.’’

STEVE R. JOHNSON

References and Further Reading

• ‘‘Annotation: Who is recipient of, and what constitutes program receiving, federal financial assistance for purposes of }504 of the Rehabilitation Act (29 U.S.C.A. }794), which prohibits any program or activity receiving financial assistance from discriminating on basis of disability.’’ 160 American Law Reports Federal 297

Cases and Statutes Cited

• New York v. United States, 505 U.S. 144 (1992) 
• Printz v. United States, 521 U.S. 898 (1997)