The opinion of the court was delivered by: WEXLER
MEMORANDUM OF DECISION AND ORDER
In this action, plaintiff, the United States of America, seeks an order directing that one of the defendants, University Hospital of the State University of New York at Stony Brook, allow the Department of Health and Human Services access to the medical records of a handicapped infant, hereinafter referred to as "Baby Jane Doe". Plaintiff contends that plaintiff is entitled to such an order pursuant to Section 504 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794, which provides, in pertinent part:
No otherwise qualified handicapped individual in the United States . . . 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. . . .
Plaintiff also contends that plaintiff is entitled to said order pursuant to a regulation promulgated under said statute, 45 C.F.R. § 84.61, which regulation incorporates by reference the provisions of another regulation, 45 C.F.R. § 80.6(c), which latter regulation provides, in pertinent part, that each recipient of Federal financial assistance
[S]hall permit access by the responsible Department official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part . . . Asserted considerations of privacy or confidentiality may not operate to bar the Department from evaluating or seeking to enforce compliance with this part. Information of a confidential nature obtained in connection with compliance evaluation or enforcement shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law.
Plaintiff contends that the Department of Health and Human Services must obtain the medical records of Baby Jane Doe in order to determine whether the defendant University Hospital, in failing to perform certain surgical procedures upon Baby Jane Doe to which the parents of Baby Jane Doe (who have intervened as defendants in this action) refused to give consent, violated the provisions of 29 U.S.C. § 794 cited above. The defendant University Hospital, and the defendant parents of Baby Jane Doe, have filed separate motions to dismiss this action.Plaintiff has moved for summary judgment.
1. On October 11, 1983, Baby Jane Doe was born, suffering from spina bifida, bydrocephalus, microcephaly, bilateral upper extremity spasticity, a prolapsed rectum, and a malformed brain stem.
2. The parents of Baby Jane Doe have refused to give consent to the University Hospital of the State University of New York at Stony Brook for the performance of surgical procedures upon Baby Jane Doe to treat the spinal defect and to drain the water from the infant's skull caused by the hydrocephalic condition, but have instead opted for a conservative treatment involving good nutrition and the administration of antibiotics and dressing of the exposed spinal sac to encourage the skin to grow over and protect it.
3. Consequently, the University Hospital of the State University of New York at Stony Brook has not performed the surgical procedures.
4. By means of a petition dated October 16, 1983, A. Lawrence Washburn, Jr., an attorney, commenced a proceeding in the Supreme Court of the State of New York, Suffolk County, seeking the appointment of a guardian ad litem for Baby Jane Doe, and an order directing that the University Hospital of the State University of New York perform the surgical procedures. The Supreme Court of the State of New York, Suffolk County, appointed William E. Weber as guardian ad litem for Baby Jane Doe. The University Hospital of the State University of New York at Stony Brook, and by the parents of Baby Jane Doe, appeared by their respective counsel, and evidence was taken. The Supreme Court of the State of New York, Suffolk County (Tanenbaum, J.), on October 20, 1983, determined that Baby Jane Doe was "in need of immediate surgical procedures to preserve her life," and ordered that the surgical procedures be performed.
5. On October 21, 1983, the Appellate Division of the Supreme Court of the State of New York determined that Baby Jane Doe was not in imminent danger of death, and that the parents of Baby Jane Doe, in refusing permission for the operations, made a reasonable choice among possible medical treatments, acting with the best interests of the child in mind. That court consequently reversed the decision of the Supreme Court of the State of New York, Suffolk County, and dismissed the proceeding.
6. On October 28, 1983, the Court of Appeals of the State of New York determined that the Supreme Court of the State of New York, Suffolk County, had abused its discretion in having permitted the proceeding to go forward, since petitioner apparently had no relationship with the child, her family, or those treating the child; since the New York Legislature had placed primary responsibility for initiating child neglect proceedings upon child protection agencies; and since petitioner had apparently failed to contact those agencies. The Court of Appeals therefore affirmed the decision of the Appellate Division which dismissed the proceeding. The Court of Appeals left undisturbed, and indeed apparently endorsed, the determination by the Appellate Division that the parents of Baby Jane Doe had acted reasonably and with the best interests of the child in mind.
7. During the period in which the state court proceedings were taking place, the Department of Health and Human Services received a complaint that Baby jane Doe was being discriminatorily denied medically indicated ...