author: Justice Thomas

text:
    ARIZONA DEPARTMENT OF REVENUE v. BLAZE CONSTRUCTION CO., INC.
    No. 97-1536.
    Argued December 8, 1998
    Decided March 2, 1999

      Thomas, J., delivered the opinion for a unanimous Court.

      Patrick Irvine, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the briefs were Grant Woods, Attorney General, C. Tim Delaney, Solicitor General, and Carter G. Phillips.

      Beth S. Brinkmann argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Roy W. McLeese III, and Elizabeth Ann Peterson.

      Bruce C. Smith argued the cause for respondent. With him on the brief was Lat J. Celmins.

      Briefe of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, and Thomas F. Gede, Special Assistant Attorney General, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Heidi Heitkamp of North Dakota, Mark Barnett of South Dakota, Jan Graham of Utah, and James E- Doyle of Wisconsin; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.

      Briefs of amici curiae urging affirmance were filed for the Gila River Indian Community by Rodney B. Lewis; for the Navajo Nation by Marcelino R. Gomez; for the San Carlos Apache Indian Tribe by Richard T. Treon; and for Frank Adson et al. by Tracy A. Labin and Melody L. McCoy.

   Justice Thomas

delivered the opinion of the Court.

In United States v. New Mexico, 455 U. S. 720 (1982), we held that a State generally may impose a nondiscriminatory tax upon a private company’s proceeds from contracts with the Federal Government. This case asks us to determine whether that same rule applies when the federal contractor renders its services on an Indian reservation. We hold that it does.

I

Under the Federal Lands Highways Program, 23 U. S. C. §204, the Federal Government finances road construction and improvement projects on federal public roads, including Indian reservation roads. Various federal agencies oversee the planning of particular projects and the allocation of funding to them. §§202(d), 204. The Commissioner of Indian Affairs has the responsibility to “plan, survey, design and construct” Indian reservation roads. 25 CFR § 170.3 (1998).

Over a several-year period, the Bureau of Indian Affairs contracted with Blaze Construction Company to build, repair, and improve roads on the Navajo, Hopi, Fort Apache, Colorado River, Tohono O’Odham, and San Carlos Apache Indian Reservations in Arizona. Blaze is incorporated under the laws of the Blackfeet Tribe of Montana and is owned by a member of that Tribe. But, as the company concedes, Blaze is the equivalent of a non-Indian for purposes of this case because none of its work occurred on the Blackfeet Reservation. Brief in Opposition 2, n. 1; see Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 160-161 (1980).

At the end of the contracting period, the Arizona Department of Revenue (Department) issued a tax deficiency assessment against Blaze for its failure to pay Arizona’s transaction privilege tax on the proceeds from its contracts with the Bureau; that tax is levied on the gross receipts of companies doing business in the State. See Ariz. Rev. Stat. Ann. §§42-1306, 42-1310.16 (1991). Blaze protested the assessment and prevailed at the end of administrative proceedings, but, on review, the Arizona Tax Court granted summary-judgment in the Department’s favor. The Arizona Court of Appeals reversed. 190 Ariz. 262, 947 P. 2d 836 (1997). It rejected the Department’s argument that our decision in New Mexico, supra, controlled the case and held that federal law pre-empted the application of Arizona’s transaction privilege tax to Blaze. The Arizona Supreme Court denied the Department’s petition for review, with one justice voting to grant the petition. We granted certiorari, 523 U. S. 1117 (1998), and now reverse.

II

In New Mexico, we considered whether a State could impose gross receipts and use taxes on the property, income, and purchases of private federal contractors. To remedy “the confusing nature of our precedents” in this area, 455 U. S., at 733, we announced a clear rule:

“[T]ax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned.” Id., at 735.

We reasoned that this “narrow approach” to the scope of governmental tax immunity “accordfed] with competing constitutional imperatives, by giving full range to each sovereign’s taxing authority.” Id., at 735-736 (citing Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 483 (1939)). For that immunity to be expanded beyond these “narrow constitutional limits,” we explained that Congress must “take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs.” 455 U. S., at 737 (emphasis added); see also Carson v. Roane-Anderson Co., 342 U. S. 232, 234 (1952). Applying those principles, we upheld each of the taxes at issue in that case because the legal incidence of the taxes fell on the contractors, not the Federal Government; the contractors could not be considered agencies or instru-mentalities of the Federal Government; and Congress had not expressly exempted the contractors’ activities from taxation but, rather, had expressly repealed a pre-existing statutory exemption. See New Mexico, 455 U. S., at 743-744.

These principles control the resolution of this case. sent a constitutional immunity or congressional exemption, federal law does not shield Blaze from Arizona’s transaction privilege tax. See id., at 737; James v. Dravo Contracting Co., 302 U. S. 134, 161 (1937). The incidence of Arizona’s transaction privilege tax falls on Blaze, not the Federal Government. Blaze does not argue that it is an agency or instrumentality of the Federal Government, and New Mexico’s clear rule would have foreclosed any such argument under these circumstances. Nor has Congress exempted these contracts from taxation. Cf. Carson, supra, at 234.

Nevertheless, the Arizona Blaze urges here) that the tax cannot be applied to activities taking place on Indian reservations. After it employed a balancing test “weighing the respective state, federal, and tribal interests,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 177 (1989), the court below held that a congressional intent to pre-empt Arizona’s tax could be inferred from federal laws regulating the welfare of Indians. In cases involving taxation of on-reservation activity, we have undertaken this “particularized examination,” Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U. S. 832, 838 (1982), where the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members. See, e. g., Cotton Petroleum Corp., supra, at 176-187 (state severance tax imposed on non-Indian lessee’s production of oil and gas); Ramah, supra, at 836-846 (state gross receipts tax imposed on private contractor’s proceeds from contract with tribe for school construction); Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S. 160, 165-166 (1980) (tax imposed on sale of farm machinery to tribe); White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 144-153 (1980) (motor carrier license and use fuel taxes imposed on logging and hauling operations pursuant to contract with tribal enterprise). But we have never employed this balancing test in a case such as this one where a State seeks to tax a transaction between the Federal Government and its non-Indian private contractor.

We decline to do so now. Interest balancing in this setting would only cloud the clear rule established by our decision in New Mexico. The need to avoid litigation and to ensure efficient tax administration counsels in favor of a bright-line standard for taxation of federal contracts, regardless of whether the contracted-for activity takes place on Indian reservations. Cf. Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450, 458-459 (1995); County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 267-268 (1992). Moreover, as we recognized in New Mexico, the “political process is ‘uniquely adapted to accommodating’ ” the interests implicated by state .taxation of federal contractors. 455 U. S., at 738 (quoting Massachusetts v. United States, 435 U. S. 444, 456 (1978) (plurality opinion)). Accord, Washington v. United States, 460 U. S. 536, 546 (1983). Whether to exempt Blaze from Arizona’s transaction privilege tax is not our decision to make; that decision rests, instead, with the State of Arizona and with Congress.

Our conclusion in no way limits the opportunity to advance their interests when they choose to do so. Under the Indian Self-Determination and Education Assistance Act, 88 Stat. 2203, 25 U. S. C. §450 et seq. (1994 ed. and Supp. III), a tribe may request the Secretary of Interior to enter into a self-determination contract “to plan, conduct, and administer programs or portions thereof, including construction programs.” §450f(a)(1). Where a tribe enters into such a contract, it assumes greater responsibility over the management of the federal funds and the operation of certain federal programs. See, e. g., 25 CFR § 900.3(b)(4) (1998). Here, the Tribes on whose reservations Blaze’s work was performed have not exercised this option, and the Federal Government has retained contracting responsibility. Because the Tribes in this ease have not assumed this responsibility, we have no occasion to consider whether the Indian pre-emption doctrine would apply when Tribes choose to take a more direct and active role in administering the federal funds. Therefore, we see no need to depart from the clear rule announced in New Mexico.

* * *

For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

       The Department initially also sought to tax Blaze’s proceeds from contracts with tribal housing authorities but eventually dropped its claim. We therefore have no occasion to consider Blaze’s tax liability with respect to those contracts.

       Blaze also appears to argue that Arizona’s tax infringes on the Tribes’ right to make their own decisions and be governed by them and that this is sufficient, by itself, to preclude application of Arizona’s tax. See Williams v. Lee, 358 U. S. 217, 220 (1959). Our decisions upholding state taxes in a variety of on-reservation settings squarely foreclose that argument. See, e. g., Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 156 (1980); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 483 (1976).

       Indeed, a recent decision by the New Mexico Supreme Court illustrates the perils of a more fact-intensive inquiry. See Blaze Constr. Co., Inc. v. Taxation and Revenue Dept. of New Mexico, 118 N. M. 647, 884 P. 2d 803 (1994), cert. denied, 514 U. S. 1016 (1995). In that case, also involving the imposition of a tax on the gross receipts of Blaze’s federal contracts, the New Mexico Supreme Court applied the balancing test in Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163 (1989), and reached the exact opposite conclusion from the Arizona Court of Appeals. 118 N. M., at 652-653, 884 P. 2d, at 808-809.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Ginsburg, Justice Breyer, Justice Stevens,

license: Public Domain

text:
    AMERICAN MANUFACTURERS MUTUAL INSURANCE CO. et al. v. SULLIVAN et al.
    No. 97-2000.
    Argued January 19, 1999
    Decided March 3, 1999

      Rehnqtjist, C. J., delivered the opinion of the Court, Parts I and II of which were joined by O’Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., and Part III of which was joined by O’Connor, Kennedy, Thomas, and Ginsburg, JJ. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, post, p. 61. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined, post, p. 62. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 63.

      Michael W. McConnell argued the cause for petitioners. With him on the briefs were Alan E. Untereiner, Robert McL. Boote, Burt M. Rublin, and Robert E. Kelly, Jr.

      Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Jeffrey A. Lamken, Barbara C. Biddle, and Jacob M. Lewis.

      Loralyn McKinley argued the cause for respondents. With her on the brief for respondents Sullivan et al. were Alan B. Epstein and Thomas J. O’Brien. Jan M. Ritchie, Patricia Farrell Kerelo, Joseph W. Cunningham, and Mark Pfeiffer filed a brief for respondent School District of Philadelphia.

      Briefs of amici curiae urging reversal were filed for the American Insurance Association et al. by Mark F. Homing; for the National Association of Waterfront Employers et al. by F. Edwin Froelich and Charles T. Carroll; and for the Washington Legal Foundation by Ronald D. Moines, Daniel J. Popeo, and Paul D. Kamenar.

      Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons et al. by Gil Deford, Sarah Lenz Lock, Michael Schuster, Jeanne Finberg, Vicki Gottlich, and Judith L. Licht-man; for the Pennsylvania Federation of Injured Workers by Roderick M. Hills, Jr., and Richard W. McHugh; for the Pennsylvania Trial Lawyers Association et al. by Michael J. Foley, Mark S. Mandell, Jeffrey White, and Rickard A Kimnach; and for Carl Kreschollek by David M. Linker.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Pennsylvania provides in its workers’ compensation regime that an employer or insurer may withhold payment for disputed medical treatment pending an independent review to determine whether the treatment is reasonable and necessary. We hold that the insurers are not “state actors” under the Fourteenth Amendment, and that the Pennsylvania regime does not deprive disabled employees of property within the meaning of that Amendment.

hH

Before the enactment of workers compensation laws, employees who suffered a work-related injury or occupational disease could recover compensation from their employers only by resort to traditional tort remedies available at common law. In the early 20th century, States began to replace the common-law system, which often saddled employees with the difficulty and expense of establishing negligence or proving damages, with a compulsory insurance system requiring employers to compensate employees for work-related injuries without regard to fault. See generally 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §§5.20-5.30, pp. 2-15 to 2-25 (1996).

Following this model, Pennsylvania’s Workers’ Compensation Act, Pa. Stat. Ann., Tit. 77, § 1 et seq. (Purdon 1992 and Supp. 1998) (Act or 77 Pa. Stat. Ann.), first enacted in 1915, creates a system of no-fault liability for work-related injuries and makes employers’ liability under this system “exclusive ... of any and all other liability.” § 481(a). All employers subject to the Act must (1) obtain workers’ compensation insurance from a private insurer, (2) obtain such insurance through the State Workmen’s Insurance Fund (SWIF), or (3) seek permission from the State to self-insure. § 501(a). Once an employer becomes liable for an employee’s work-related injury — because liability either is not contested or is no longer at issue — the employer or its insurer must pay for all “reasonable” and “necessary” medical treatment, and must do so within 30 days of receiving a bill. §§531(l)(i), (5).

To assure that insurers pay only for medical care that meets these criteria, and in an attempt to control costs, Pennsylvania amended its workers’ compensation system in 1993. 1993 Pa. Laws, No. 44, p. 190. Most important for our purposes, the 1993 amendments created a "utilization review” procedure under which the reasonableness and necessity of an employee’s past, ongoing, or prospective medical treatment could be reviewed before a medical bill must be paid. 77 Pa. Stat. Ann. §531(6) (Purdon Supp. 1998). Under this system, if an insurer “disputes the reasonableness or necessity of the treatment provided,” §531(5), it may request utilization review (within the same 30-day period) by filing a one-page form with the Workers’ Compensation Bureau of the Pennsylvania Department of Labor and Industry (Bureau). § 531(6)(i); 34 Pa. Code §§ 127.404(b), 127.452(a) (1998). The form identifies (among other things) the employee, the medical provider, the date of the employee’s injury, and the medical treatment to be reviewed. Ibid.; App. 5. The Bureau makes no attempt, as the Court of Appeals stated, to "address the legitimacy or lack thereof of the request,” but merely determines whether the form is “properly completed — i.e., that all information required by the form is provided.” Sullivan v. Barnett, 139 P. 3d 158, 163 (CA3 1998); see 34 Pa. Code § 127.452(a). Upon the proper filing of a request, an insurer may withhold payment to health care providers for the particular services being challenged. 77 Pa. Stat. Ann. §531(5) (Purdon Supp. 1998); 34 Pa. Code § 208(f).

The Bureau then notifies the parties that utilization review has been requested and forwards the request to a randomly selected “utilization review organization” (URO). § 127.453. URO’s are private organizations consisting of health care providers who are “licensed in the same profession and hav[e] the same or similar specialty as that of the provider of the treatment under review,” 77 Pa. Stat. Ann.,§531(6)(i) (Purdon Supp. 1998); 34 Pa. Code § 127.466. The purpose of utilization review, and the sole authority conferred upon a URO, is to determine “whether the treatment under review is reasonable or necessary for the medical condition of the employee” in light of “generally accepted treatment protocols.” §§ 127.470(a), 127.467. Reviewers must examine the treating provider’s medical records, §§ 127.459, 127.460, and must give the provider an opportunity to discuss the treatment under review, § 127.469. Any doubt as to the reasonableness and necessity of a given procedure must be resolved in favor of the employee. § 127.471(b).

URO’s are instructed to complete their review and render a determination within 30 days of a completed request. 77 Pa. Stat. Ann. §531(6)(ii) (Purdon Supp. 1998); 34 Pa. Code § 127.465. If the URO finds in favor of the insurer, the employee may appeal the determination to a workers’ compensation judge for a de novo review, but the insurer need not pay for the disputed services unless the URO’s determination is overturned by the judge, or later by the courts. 77 Pa. Stat. Ann. § 531(6)(iv) (Purdon Supp. 1998); 34 Pa. Code § 127.556. If the URO finds in favor of the employee, the insurer must pay the disputed bill immediately, with 10 percent annual interest, as well as the cost of the utilization review. 34 Pa. Code § 127.208(e); 77 Pa. Stat. Ann. § 531(6)(iii) (Purdon Supp. 1998).

Respondents are 10 individual employees and 2 organizations representing employees who received medical benefits under the Act. They claimed to have had payment of particular 'benefits withheld pursuant to the utilization review procedure set forth in the Act. They sued under Rev. Stat. § 1979, 42 U. S. C. § 1983, acting individually and on behalf of a class of similarly situated employees. Named as defendants were various Pennsylvania officials who administer the Act, the director of the SWIF, the School District of Philadelphia (which self-insures), and a number of private insurance companies who provide workers’ compensation coverage in Pennsylvania. Respondents alleged that in withholding workers’ compensation benefits without predeprivation notice and an opportunity to be heard, the state and private defendants, acting “under color of state law,” deprived them of property in violation of due process. Amended Complaint f ¶ 265-271, App. 43-44. They sought declaratory and injunctive relief, as well as damages.

The District Court dismissed the private insurers from lawsuit on the ground that they are not “state actors,” Sullivan v. Barnett, 913 F. Supp. 895, 905 (ED Pa. 1996), and later dismissed the state officials who remained as defendants, as well as the school district, on the ground that the Act does not violate due process, App. to Pet. for Cert. 71a.

The Court of Appeals for the Third Circuit disagreed on both issues. 139 F. 3d 158 (1998). It held that a private insurer’s decision to suspend payment under the Act — what the court called a “supersedeas” — constitutes state action. The court reasoned:

“In creating and executing this system of entitlements, the [State] has enacted a complex and interwoven regulatory web enlisting the Bureau, the employers, and the insurance companies. The [State] extensively regulates and controls the Workers’ Compensation system. Although the insurance companies are private entities, when they act under the construct of the Workers’ Compensation system, they are providing public benefits which honor [s]tate entitlements. In effect, they become an arm of the State, fulfilling a uniquely governmental obligation under an entirely self-contained public benefit system. . . .
“The right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State. When insurance companies invoke the supersedeas (i. e., suspension) of an employee’s medical benefits, they compromise an employee’s [s]tate-created entitlements. The insurers have no power to deprive or terminate such benefits without the permission and participation of the [State]. More importantly, however, the [State] is intimately involved in any decision by an insurer to terminate an employee’s constitutionally protected benefits because an insurer cannot suspend medical payments without first obtaining authorization from the Bureau. However this authorization may be characterized, any deprivation that occurs is predicated upon the State’s involvement.” Id., at 168.

On the due process issue, the Court of Appeals did not address whether respondents have a protected property interest in workers’ compensation medical benefits, stating that “[n] either party disputes” this point. Id., at 171, n. 23. Thus focusing on what process is “due,” the court held that payment of bills may not be withheld until employees have had an opportunity to submit their view in writing as to the reasonableness and necessity of the disputed treatment to the URO. The court then determined that the relevant statutory language permitting the suspension of payment during utilization review was severable and struck it from the statute. Id., at 173-174.

We granted certiorari, 524 U. S. 981 (1998), to resolve a conflict on the status of private insurers providing workers’ compensation coverage under state laws, and to review the Court of Appeals’ holding that due process prohibits insurers from withholding payment for disputed medical treatment pending review.

II

To state a claim for relief in an action brought under § 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of §1983 excludes from its reach “‘merely private conduct, no matter how discriminatory or wrongful,’ ” Blum v. Yaretsky, 457 U. S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U. S. 1, 13 (1948)).

Perhaps hoping to avoid the traditional application our state-action eases, respondents attempt to characterize their claim as a “facial” or “direct” challenge to the utilization review procedures contained in the Act, in which case, the argument goes, we need not concern ourselves with the “identity of the defendant” or the “act or decision by a private actor or entity who is relying on the challenged law.” Brief for Respondents 16. This argument, however, ignores our repeated insistence that state action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,” and that “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (1982); see Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 156 (1978). In this case, while it may fairly be said that private insurers act “ ‘with the knowledge of and pursuant to’ ” the state statute, ibid, (quoting Adickes v. S. H. Kress & Co., 398 U. S. 144, 162, n. 23 (1970)), thus satisfying the first requirement, respondents still must satisfy the second, whether the allegedly unconstitutional conduct is fairly attributable to the State.

Our approach to this latter question begins by identifying “the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U. S., at 1004; see id., at 1003 (“Faithful adherence to the ‘state action’ requirement... requires careful attention to the gravamen of the plaintiff’s complaint”). Here, respondents named as defendants both public officials and a class of private insurers and self-insured employers. Also named is the director of the SWIF and the School District of Philadelphia, a municipal corporation. The complaint alleged that the state and private defendants, acting under color of state law and pursuant to the Act, deprived them of property in violation of due process by withholding payment for medical treatment without prior notice and an opportunity to be heard. All agree that the public officials responsible for administering the workers’ compensation system and the director of SWIF are state actors. See 139 F. 3d, at 167. Thus, the issue we address, in accordance with our cases, is whether a private insurer's decision to withhold payment for disputed medical treatment may be fairly attributable to the State so as to subject insurers to the constraints of the Fourteenth Amendment. Our answer to that question is “no.”

In cases involving extensive state regulation of private activity, we have consistently held that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974); see Blum, 457 U.S., at 1004. Faithful application of the state-action requirement in these cases ensures that the prerogative of regulating private business remains with the States and the representative branches, not the courts. Thus, the private insurers in this ease will not be held to constitutional standards unless “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Ibid, (internal quotation marks omitted). Whether such a “close nexus” exists, our cases state, depends on whether the State “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Ibid.; see Flagg Bros., supra, at 166; Jackson, supra, at 357; Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 173 (1972); Adickes v. S. H. Kress & Co., supra, at 170. Action taken by private entities with the mere approval or acquiescence of the State is not state action. Blum, supra, at 1004-1005; Flagg Bros., supra, at 154-165; Jackson, supra, at 357.

Here, respondents do not assert that the decision to invoke utilization review should be attributed to the State because the State compels or is directly involved in that decision. Obviously the State is not so involved. It authorizes, but does not require, insurers to withhold payments for disputed medical treatment. The decision to withhold payment, like the decision to transfer Medicaid patients to a lower level of care in Blum, is made by concededly private parties, and “turns on . . . judgments made by private parties” without “standards ... established by the State.” Blum, supra, at 1008.

Respondents do assert, however, that the decision to withhold payment to providers may be fairly attributable to the State because the State has “authorized” and “encouraged” it. Respondents’ primary argument in this regard is that, in amending the Act to provide for utilization review and to grant insurers an option they previously did not have, the State purposely “encouraged” insurers to withhold payments for disputed medical treatment. This argument reads too much into the State’s reform, and in any event cannot be squared with our cases.

We do not doubt that the State’s decision to provide insurers the option of deferring payment for unnecessary and unreasonable treatment pending review can in some sense be seen as encouraging them to do just that. But, as petitioners note, this kind of subtle encouragement is no more significant than that which inheres in the State’s creation or modification of any legal remedy. We have never held that the mere availability of a remedy for wrongful conduct, even when the private use of that remedy serves important public interests, so significantly encourages the private activity as to make the State responsible for it. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 485 (1988) (“Private use of state-sanetioned private remedies or procedures does not rise to the level of state action”); see also Lugar, 457 U. S., at 937; Flagg Bros., 436 U. S., at 165-166. It bears repeating that a finding of state action on this basis would be contrary to the “essential dichotomy,” Jackson, supra, at 349, between public and private acts that our cases have consistently recognized.

The State’s decision to allow insurers to withhold payments pending review can just as easily be seen as state inaction, or more accurately, a legislative decision not to intervene in a dispute between an insurer and an employee over whether a particular treatment is reasonable and necessary. See Flagg Bros., 436 U. S., at 164-165. Before the 1993 amendments, Pennsylvania restricted the ability of an insurer (after liability had been established, of course) to defer workers’ compensation medical benefits, including payment for unreasonable and unnecessary treatment, beyond 30 days of receipt of the bill. The 1993 amendments, in effect, restored to insurers the narrow option, historically exercised by employers and insurers before the adoption of Pennsylvania’s workers’ compensation law, to defer payment of a bill until it is substantiated. The most that can be said of the statutory scheme, therefore, is that whereas it previously prohibited insurers from withholding payment for disputed medical services, it no longer does so. Such permission of a private choice cannot support a finding of state action. As we have said before, our cases will not tolerate “the imposition of Fourteenth Amendment restraints on private action by the simple device of characterizing the State’s inaction as ‘authorization’ or ‘encouragement.’ ” Ibid.

Nor does the State’s role in creating, supervising, and setting standards for the URO process differ in any meaningful sense from the creation and administration of any forum for resolving disputes. While the decision of a URO, like that of any judicial official, may properly be considered state action, a private party’s mere use of the State’s dispute resolution machinery, without the “overt, significant assistance of state officials,” Tulsa, supra, at 486, cannot.

The State, in the course of administering a many-faceted remedial system, has shifted one facet from favoring the employees to favoring the employer. This sort of decision occurs regularly in legislative review of such systems. But it cannot be said that such a change “encourages” or “authorizes” the insurer’s actions as those terms are used in our state-action jurisprudence.

We also reject the notion, relied upon by the Court of Appeals, that the challenged decisions are state action because insurers must first obtain “authorization” or “permission” from the Bureau before withholding payment. See 139 F. 3d, at 168. As described in our earlier summary of the statute and regulations, the Bureau’s participation is limited to requiring insurers to file “a form prescribed by the Bureau,” 84 Pa. Code § 127.452, processing the request for technical compliance, and then forwarding the matter to a URO and informing the parties that utilization review has been requested. In Blum, we rejected the notion that the State, “by requiring completion of a form,” 457 U. S., at 1007, is responsible for the private party’s decision. The additional “paper shuffling” performed by the Bureau here in response to an insurers’ request does not alter that conclusion.

Respondents next contend that state action is present because the State has delegated to insurers “powers traditionally exclusively reserved to the State.” Jackson, 419 U. S., at 352. Their argument here is twofold. Relying on West v. Atkins, 487 U. S. 42 (1988), respondents first argue that workers’ compensation benefits are state-mandated “public benefits,” and that the State has delegated the provision of these “public benefits” to private insurers. They also contend that the State has delegated to insurers the traditionally exclusive government function of determining whether and under what circumstances an injured worker’s medical benefits may be suspended. The Court of Appeals apparently agreed on both points, stating that insurers “providing public benefits which honor State entitlements . . . become an arm of the State, fulfilling a uniquely governmental obligation,” 139 F. 3d, at 168, and that “[t]he right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State,” ibid.

We think neither argument has merit. West is readily distinguishable: There the State was constitutionally obligated to provide medical treatment to injured inmates, and the delegation of that traditionally exclusive public function to a private physician gave rise to a finding of state action. See 487 U. S., at 54-56. Here, on the other hand, nothing in Pennsylvania’s Constitution or statutory scheme obligates the State to provide either medical treatment or workers’ compensation benefits to injured workers. See Blum, supra, at 1011. Instead, the State’s workers’ compensation law imposes that obligation on employers. This case is therefore not unlike Jackson, supra, where we noted that “while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State.” Id., at 353; see also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 544 (1987) (“The fact ‘[t]hat a private entity performs a function which serves the public does not make its acts [governmental] action’”) (quoting Rendell-Baker v. Kohn, 457 U. S. 830, 842 (1982)).

Nor is there any merit in respondents’ argument that the State has delegated to insurers the traditionally exclusive governmental function of deciding whether to suspend payment for disputed medical treatment. Historical practice, as well as the state statutory scheme, does not support respondents’ characterization. It is no doubt true that before the 1993 amendments an insurer who sought to withhold payment for disputed medical treatment was required to petition the Bureau, and could withhold payment only upon a favorable ruling by a workers’ compensation judge, and then only for prospective treatment.

But before Pennsylvania ever adopted its workers’ compensation law, an insurer under contract with an employer to pay for its workers’ reasonable and necessary medical expenses could withhold payment, for any reason or no reason, without any authorization or involvement of the State. The insurer, of course, might become liable to the employer (or its workers) if the refusal to pay breached the contract or constituted “bad faith,” but the obligation to pay would only arise after the employer had initiated a claim and reduced it to a judgment. That Pennsylvania first recognized an insurer’s traditionally private prerogative to withhold payment, then restricted it, and now (in one limited respect) has restored it, cannot constitute the delegation of a traditionally exclusive public function. Like New York in Flagg Bros., Pennsylvania “has done nothing more than authorize (and indeed limit) — without participation by any public official— what [private insurers] would tend to do, even in the absence of such authorization,” i. e., withhold payment for disputed medical treatment pending a determination that the treatment is, in fact, reasonable and necessary. 436 U. S., at 162, n. 12.

The Court of Appeals, in response to the various arguments advanced by respondents, seems to have figuratively thrown up its hands and fallen back on language in our decision in Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). The Pennsylvania system, that court said, “inextricably entangles the insurance companies in a partnership with the Commonwealth such that they become an integral part of the state in administering the statutory scheme.” 139 F. 3d, at 170. Relying on Burton, respondents urge us to affirm the Court of Appeals’ holding under a “joint participation” theory of state action.

Burton was one of our early eases dealing with “state action” under the Fourteenth Amendment, and later cases have refined the vague “joint participation” test embodied in that case. Blum and Jackson, in particular, have established that “privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton.” Blum, 457 U. S., at 1011; see Jackson, supra, at 357-358. Here, workers’ compensation insurers are at least as extensively regulated as the private nursing facilities in Blum and the private utility in Jackson. Like those cases, though, the state statutory and regulatory scheme leaves the challenged decisions to the judgment of insurers.

Respondents also rely on Lugar v. Edmondson 457 U. S. 922 (1982), whieh contains general language about “joint participation” as a test for state action. But, as the Lugar opinion itself makes clear, its language must not be torn from the context out of which it arose:

“The Court of Appeals erred in holding that in this context ‘joint participation’ required something more than invoking the aid of state officials to take advantage of state-created attachment procedures_Whatever may be true in other contexts, this is sufficient when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute.” Id., at 942.

In the present case, of course, there is no effort by petitioners to seize the property of respondents by an ex parte application to a state official.

We conclude that an insurer’s decision to withhold payment and seek utilization review of the reasonableness and necessity of particular medical treatment is not fairly attributable to the State. Respondents have therefore failed to satisfy an essential element of their § 1983 claim.

J-H h-i > — I

Though our resolution of the state-action issue would be sufficient by itself to reverse the judgment of the Court of Appeals, we believe the court fundamentally misapprehended the nature of respondents’ property interest at stake in this case, with ramifications not only for the state officials who are concededly state actors, but also for the private insurers who (under our holding in Part II) are not. If the Court of Appeals’ ruling is left undisturbed, SWIF, which insures both public and private employers, will be required to pay for all medical treatment (reasonable and necessary or not) within 30 days, while private insurers will be able to defer payment for disputed treatment pending utilization review. Although we denied the petitions for certiorari filed by the school district, 525 U. S. 824 (1998), and the various state officials, 525 U. S. 824 (1998), we granted both questions presented in the petition filed by the private insurance companies. The second question therein states:

“Whether the Due Process Clause requires workers’ compensation insurers to pay disputed medical bills prior to a determination that the medical treatment was reasonable and necessary.” Pet. for Cert. (i).

This question has been briefed and argued, it is an important one, and it is squarely presented for review. We thus proceed to address it.

The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in “property” or “liberty.” See U. S. Const., Arndt. 14 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”); Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Only after finding the deprivation of a protected interest do we look to see if the State’s procedures comport with due process. Ibid.

Here, respondents contend that Pennsylvania’s workers’ compensation law confers upon them a protected property interest in workers’ compensation medical benefits. Under state law, respondents assert, once an employer’s liability is established for a particular work-related injury, the employer is obligated to pay for certain benefits, including partial wage replacement, compensation for permanent injury or disability, and medical care. See 77 Pa. Stat. Ann. §§431, 531 (Purdon Supp. 1998). It follows from this, the argument goes, that medical benefits are a state-created entitlement, and thus an insurer cannot withhold payment of medical benefits without affording an injured worker due process.

In Goldberg v. Kelly, 397 individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in Mathews, supra, we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual’s entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual’s interest in continued payment of benefits could be terminated. See Goldberg, supra, at 261-263; Mathews, supra, at 332.

Respondents’ property interest in ease, fundamentally different. Under Pennsylvania law, an employee is not entitled to payment for all medical treatment once the employer’s initial liability is established, as respondents’ argument assumes. Instead, the law expressly limits an employee’s entitlement to “reasonable” and “necessary” medical treatment, and requires that disputes over the reasonableness and necessity of particular treatment must be resolved before an employer’s obligation to pay— and an employee’s entitlement to benefits — arise. See 77 Pa. Stat. Ann. §531(1)(i) (Purdon Supp. 1998) (“The employer shall provide payment ... for reasonable surgical and medical services” (emphasis added)); §531(5) (“All payments to providers for treatment. . . shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment’ (emphasis added)). Thus, for an employee’s property interest in the payment of medical benefits to attach under state law, the employee must clear two hurdles: First, he must prove that an employer is liable for a work-related injury, and second, he must establish that the particular medical treatment at issue is reasonable and necessary. Only then does the employee’s interest parallel that of the beneficiary of welfare assistance in Goldberg and the recipient of disability benefits in Mathews.

Respondents obviously have not cleared both of these hurdles. While they indeed have established their initial eligibility for medical treatment, they have yet to make good on their claim that the particular medical treatment they received was reasonable and necessary. Consequently, they do not have a property interest — under the logic of their own argument — in having their providers paid for treatment that has yet to be found reasonable and necessary. To state the argument is to refute it, for what respondents ask in this case is that insurers be required to pay for patently unreasonable, unnecessary, and even fraudulent medical care without any right, under state law, to seek reimbursement from providers. Unsurprisingly, the Due Process Clause does not require such a result.

Having concluded that respondents’ due process claim falters for lack of a property interest in the payment of benefits, we need go no further. The judgment of the Court of Appeals is

Reversed.

Justice Ginsburg,

concurring in part and concurring in the judgment.

I join Part III of the Court’s opinion on the understanding that the Court rejects specifically, and only, respondents’ demands for constant payment of each medical bill, within 30 days of receipt, pending determination of the necessity or reasonableness of the medical treatment. See ante, at 61, n. 13. I do not doubt, however, that due process requires fair procedures for the adjudication of respondents’ claims for workers’ compensation benefits, including medical care. See Logan v. Zimmerman Brush Co., 455 U. S. 422, 428-431 (1982); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 485 (1988); Brief for United States as Amicus Curiae 21-22

Part III disposes of the instant controversy with respect to all insurers, the State Workmen’s Insurance Fund as well as the private insurers. I therefore do not join the Court’s extended endeavor, in Part II, to clean up and rein in our “state action” precedent. “It is a fundamental rule of judicial restraint... that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P C., 467 U. S. 138, 157 (1984); see also Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). While this rule is ordinarily invoked to avoid deciding a constitutional question in lieu of a less tall ground for decision, its counsel of restraint is soundly applied to the instant situation: When a case presents two constitutional questions, one of which disposes of the entire case and the other of which does not, resolution of the case-dispositive question should suffice.

Justice Breyer,

with whom Justice Souter joins, concurring in part and concurring in the judgment.

I join Parts I and II of the Court’s opinion and its judgment. I agree with Part III insofar as it rejects respondents’ facial attack on the statute and also points out that respondents “do not contend that they have a property interest in their claims for payment, as distinct from the payments themselves.” Ante, at 61, n. 13. I would add, however, that there may be individual circumstances in which the receipt of earlier payments leads an injured person reasonably to expect their continuation, in which case that person may well possess a constitutionally protected “property” interest. See, e.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined”); Perry v. Sindermann, 408 U. S. 593, 601 (1972); Goldberg v. Kelly, 397 U.S. 254, 262, and n.8 (1970); Mathews v. Eldridge, 424 U. S. 319, 332 (1976).

Justice Stevens,

concurring in part and dissenting in part.

Because the individual respondents suffered work-related injuries, they are entitled to have their employers, or the employers’ insurers, pay for whatever “reasonable” and “necessary” treatment they may need. Pa. Stat. Ann., Tit. 77, §§531(l)(i), (5) (Purdon Supp. 1998). That right — whether described as a “claim” for payment or a “cause of action”— is unquestionably a species of property protected by the Due Process Glause of the Fourteenth Amendment. See, e.g., Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 485 (1988). Disputes over the reasonableness or necessity of particular treatments are resolved by decision-makers who are state actors and who must follow procedures established by Pennsylvania law. Because the resolution of such disputes determines the scope of the claimants’ property interests, the Constitution requires that the procedure be fair. Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982). That is true whether the claim is asserted against a private insurance carrier or against a public entity that self-insures. It is equally clear that the State’s duty to establish and administer a fair procedure for resolving the dispute obtains whether the dispute is initiated by the filing of a claim or by an insurer’s decision to withhold payment until the reasonableness issue is resolved.

In my judgment, the significant questions case axe: (1) as in any case alleging that state statutory processes violate the Fourteenth Amendment, whether Pennsylvania’s procedure was fair when the case was commenced, and (2), if not, whether it was fair after the State modified its rules in response to the Court of Appeals’ decision. See ante, at 46, n. 3. In my opinion, the Court of Appeals correctly concluded that the original procedure was deficient because it did not give employees either notice that a request for utilization review would automatically suspend their benefits or an opportunity to provide relevant evidence and argument to the state actor vested with initial decisional authority. I would therefore affirm the judgment of the Court of Appeals insofar as it mandated the change described in the Court’s n. 3, ante, at 46. I do not, however, find any constitutional defect in the procedures that are now in place, and therefore agree that the judgment should be reversed to the extent that it requires any additional modifications. It is not unfair, in and of itself, for a State to allow either a private or a publicly owned party to withhold payment of a state-created entitlement pending resolution of a dispute over its amount.

Thus, although I agree with much of written, I do not join its opinion for two reasons. First, I think it incorrectly assumes that the question whether the insurance company is a state actor is relevant to the controlling question whether the state procedures are fair. The relevant state actors, rather than the particular parties to the payment disputes, are the state-appointed decisionmak-ers who implement the exclusive procedure that the State has created to protect respondents’ rights. These state actors are defendants in this suit. See ante, at 51. Second, the Court fails to answer either the question whether the State’s procedures were fair when the case was filed or the question whether they are fair now.

      Justice Scalia joins Parts I and II of this opinion.

       Self-insured employers and private insurers face identical obligations under Pennsylvania’s workers’ compensation system, and we therefore refer to them collectively as “insurers” or “private insurers.”

       Before Pennsylvania enacted the “utilization review” procedure, an insurer had no effective means of recouping payments for medical treatment that was later determined to be unreasonable or unnecessary. State law bars insurers from seeking reimbursement of excessive payments from health care providers, see Moats v. Workmen’s Compensation Appeal Bd. (Emerald Mines Corp.), 588 A. 2d 116, 118 (Pa. Commw. 1991), and, although insurers are entitled to reimbursement from the Workmen’s Compensation Supersedeas Fund for treatment later deemed to be unreasonable or unnecessary, 34 Pa. Code § 127.208(g) (1998), the fund is financed entirely from assessments levied on insurers and self-insured employers themselves. 77 Pa. Stat. Ann. § 999(b) (Purdon 1992). See generally D. Ballantyne, Workers Compensation Research Institute, Revisiting Workers’ Compensation in Pennsylvania 36-37 (1997).

       Although URO’s may not request, and the parties may not submit, any “reports of independent medical examinations,” 34 Pa. Code § 127.461, employees are allowed to submit a “written personal statement” to the URO regarding their view of the “reasonableness and/or necessity” of the disputed treatment, App. 50. This latter aspect of the process differs from the system in place at the time of the Court of Appeals’ decision. Under the law at that time, employees received notice that utilization review had been requested, but were not informed that their medical benefits could be suspended and were not permitted to submit materials to the URO. The Bureau modified its procedures in response to the Court of Appeals’ decision, and now provides for more extensive notice and an opportunity for employees to provide at least some input into the URO’s decision. Petitioners have not challenged the Court of Appeals’ holding with respect to these additional procedures.

         If the URO’s determination is overturned on appeal, the insurer may recover excess payments from the Workmen’s Compensation Supersedeas Fund. See n. 2, supra.

       In addition to the 10 named employees, the 2 named organizations are the Philadelphia Area Project on Occupational Safety and Health, a nonprofit group composed of over 2,000 unions and their members, Amended Complaint ¶ 15, App. 12, and the Philadelphia Federation of Teachers, a labor organization representing approximately 20,000 employees of the School District of Philadelphia, id., ¶ 16, App. 12.

       The class was defined to include "all persons who have been, or will be in the future, receiving medical benefits pursuant to the Pennsylvania Workers’ Compensation [Act], and who have had or will have their medical benefits” suspended without prior notice and an opportunity to be heard. Id., ¶ 17, App. 12-13.

      Cf. Barnes v. Lehman, 861 F. 2d 1383 (CA5 1988).

       Where, as here, deprivations of rights under the Fourteenth Amendment are alleged, these two requirements converge. See Lugar v. Edmondson Oil Co., 457 U. S. 922, 935, n. 18 (1982).

      Respondents’ reliance on Tulsa Professional v. Pope, 485 U. S. 478 (1988), as support for their position is misplaced. Nowhere in Tulsa did we characterize petitioner’s claim as a “facial” or “direct” challenge to the Oklahoma “nonclaim” statute at issue there. Instead, we analyzed petitioner’s challenge under our traditional two-step approach, requiring both action taken pursuant to state law and significant state involvement. See id., at 486-487. While it may be true, as respondents argue, that the utilization review procedure here, like the non-claim statute in Tulsa, is not “self-executing,” that fact does not relieve respondents of establishing both requisites of state action. Tulsa does not suggest otherwise.

       At the same time the District Court dismissed the private insurers, it refused to grant the school district’s motion to dismiss for lack of state action (the school district argued that because it contracted out its responsibilities as a self-insurer to a private company, it was not a state actor), leaving the question of the school district’s status unresolved pending further discovery. Sullivan v. Barnett, 913 F. Supp. 895, 905 (ED Pa. 1996). The District Court’s later ruling on the due process question obviated any need to decide whether the school district acted under color of state law, nor did the Court of Appeals rule on that question. See 139 F. 3d, at 167, and n. 16.

       The fact that the State has established a Workers’ Compensation Security Fund to guarantee the payment of medical benefits in the event an insurer becomes insolvent, see 77 Pa. Stat. Ann. § 1053 (Purdon 1992), does not mean, as respondents suggest, that the State has created a self-imposed obligation to provide benefits. The security fund is financed entirely through assessments on insurers and receives no financial assistance from the State. § 1055; see D. Ballantyne & C. Telles, Workers Compensation Research Institute, Workers’ Compensation in Pennsylvania 15 (1991).

       SWIF, like all insurers and self-insured employers, is* entitled to reimbursement from the state supersedeas fund for treatment later determined to be unreasonable or unnecessary. See n. 2, supra. Because this fund is maintained through assessments on all insurers, the Court of Appeals’ ruling, if left undisturbed, would likely cause distinct injury to private insurers.

       Respondents do not contend that they have a property interest in their claims for payment, as distinct from the payments themselves, such that the State, the argument goes, could not finally reject their claims without affording them appropriate procedural protections. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 430-431 (1982). We therefore need not address this issue. See Lyng v. Payne, 476 U. S. 926, 942 (1986) (reserving question); Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 320, n. 8 (1985) (same).

      1 agree with Justice Stevens that, although Pennsylvania's original procedure was deficient, the dispute resolution process now in place meets the constitutional requirement. See post, at 64 (opinion concurring in part and dissenting in part).

      As the Court correctly notes, “the State’s role in creating, supervising, and setting standards for the URO process [do not] differ in any meaningful sense from the creation and administration of any forum for resolving disputes.” Ante, at 64.


author: Justice Stevens Justice Thomas,

text:
    CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT v. GARRET F., a minor, by his mother and next friend, CHARLENE F.
    No. 96-1793.
    Argued November 4, 1998
    Decided March 3, 1999

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 79.

      Sue Luettjohann Seitz argued the cause fpr petitioners. With her on the briefs was Edward M. Mansfield.

      R. Oelschlaeger argued the cause for respondents. With him on the brief was Diane Kutzko.

      Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, David K. Flynn, and Seth M. Galanter.

        Gwendolyn H. Gregory and Julie Underwood filed a brief for the National School Boards Association as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Academy of Pediatrics et al. by Paul M. Smith and Nory Miller; and for the National Association of Protection and Advocacy Systems et al. by Leslie Seid Margolis.

   Justice Stevens

delivered the opinion of the Court.

The Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended, was enacted, in part, “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U. S. C. § 1400(c). Consistent with this purpose, the IDEA authorizes federal financial assistance to States that agree to provide disabled children with special education and “related services.” See §§ 1401(a)(18), 1412(1). The question presented in this case is whether the definition of “related services” in § 1401(a)(17) requires a public school district in a participating State to provide a ventilator-dependent student with certain nursing services during school hours.

I

Respondent Garret E is a friendly, creative, and intelligent young man. When Garret was four years old, his spinal column was severed in a motorcycle accident. Though paralyzed from the neck down, his mental capacities were unaffected. He is able to speak, to control his motorized wheelchair through use of a puff and suck straw, and to operate a computer with a device that responds to head movements. Garret is currently a student in the Cedar Rapids Community School District (District), he attends regular classes in a typical school program, and his academic performance has been a success. Garret is, however, ventilator dependent, and therefore requires a responsible individual nearby to attend to certain physical needs while he is in school.

During Garret’s early years at school his family provided for his physical care during the schoolday. When he was in kindergarten, his 18-year-old aunt attended him; in the next four years, his family used settlement proceeds they received after the accident, their insurance, and other resources to employ a licensed practical nurse. In 1993, Garret’s mother requested the District to accept financial responsibility for the health care services that Garret requires during the schoolday. The District denied the request, believing that it was not legally obligated to provide continuous one-on-one nursing services.

Relying on both the requested a hearing before the Iowa Department of Education. An Administrative Law Judge (AU) received extensive evidence concerning Garret’s special needs, the District’s treatment of other disabled students, and the assistance provided to other ventilator-dependent children in other parts of the country. In his 47-page report, the AU found that the District has about 17,500 students, of whom approximately 2,200 need some form of special education or special services. Although Garret is the only ventilator-dependent student in the District, most of the health care services that he needs are already provided for some other students. “The primary difference between Garret’s situation and that of other students is his dependency on his ventilator for life support.” App. to Pet. for Cert. 28a. The AU noted that the parties disagreed over the training or licensure required for the care and supervision of such students, and that those providing such care in other parts of the country ranged from nonlieensed personnel to registered nurses. However, the District did not contend that only a licensed physician could provide the services in question.

The AU explained that federal law requires that children with a variety of health impairments be provided with “special education and related services” when their disabilities adversely affect their academic performance, and that such children should be educated to the maximum extent appropriate with children who are not disabled. In addition, the ALJ explained that applicable federal regulations distinguish between “school health services,” which are provided by a “qualified school nurse or other qualified person,” and “medical services,” which are provided by a licensed physician. See 34 CFR §§ 300.16(a), (b)(4), (b)(11) (1998). The District must provide the former, but need not provide the latter (except, of course, those “medical services” that are for diagnostic or evaluation purposes, 20 U. S. C. § 1401(a)(17)). According to the AU, the distinction in the regulations does not just depend on “the title of the person providing the service”; instead, the “medical services” exclusion is limited to services that are “in the special training, knowledge, and judgment of a physician to carry out.” App. to Pet. for Cert. 51a. The AU thus concluded that the IDEA required the District to bear financial responsibility for all of the services in dispute, including continuous nursing services.

The District challenged the AU’s decision in Federal District Court, but that court approved the ALJ’s IDEA ruling and granted summary judgment against the District. Id., at 9a, 15a. The Court of Appeals affirmed. 106 F. 3d 822 (CA8 1997). It noted that, as a recipient of federal funds under the IDEA, Iowa has a statutory duty to provide all disabled children a “free appropriate public education,” which includes “related services.” See id., at 824. The Court of Appeals read our opinion in Irving Independent School Dist. v. Tatro, 468 U. S. 883 (1984), to provide a two-step analysis of the “related services” definition in §1401(a)(17) — asking first, whether the requested services are included within the phrase “supportive services”; and second, whether the services are excluded as “medical services.” 106 F. 3d, at 824-825. The Court of Appeals succinctly answered both questions in Garret’s favor. The court found the first step plainly satisfied, since Garret cannot attend school unless the requested services are available during the sehoolday. Id., at 825. As to the second step, the court reasoned that Tatro “established a bright-line test: the services of a physician (other than for diagnostic and evaluation purposes) are subject to the medical services exclusion, but services that can be provided in the school setting by a nurse or qualified layperson are not.” 106 F. 3d, at 825.

In its petition for certiorari, the District challenged only the second step of the Court of Appeals’ analysis. The District pointed out that some federal courts have not asked whether the requested health services must be delivered by a physician, but instead have applied a multifaetor test that considers, generally speaking, the nature and extent of the services at issue. See, e.g., Neely v. Rutherford County School, 68 F. 3d 965, 972-973 (CA6 1995), cert. denied, 517 U. S. 1134 (1996); Detsel v. Board of Ed. of Auburn Enlarged City School Dist., 820 F. 2d 587, 588 (CA2) (per curiam), cert. denied, 484 U. S. 981 (1987). We granted the District’s petition to resolve this conflict. 523 U. S. 1117 (1998).

b-i H — t

The District contends that § 1401(a)(17) does not require it to provide Garret with “continuous one-on-one nursing services” during the schoolday, even though Garret cannot remain in school without such care. Brief for Petitioner 10. However, the IDEA’S definition of “related services,” our decision in Irving Independent School Dist v. Tatro, 468 U. S. 883 (1984), and the overall statutory scheme all support the decision of the Court of Appeals.

The text of the “related services” definition, see n. 1, supra, broadly encompasses those supportive services that “may be required to assist a child with a disability to benefit from special education.” As we have already noted, the District does not challenge the Court of Appeals’ conclusion that the in-sehool services at issue are within the covered category of “supportive services.” As a general matter, services that enable a disabled child to remain in school during the day provide the student with “the meaningful access to education that Congress envisioned.” Tatro, 468 U. S., at 891 (“ 'Congress sought primarily to make public education available to handicapped children’ and ‘to make such access meaningful’ ” (quoting Board of Ed. of Hendrick Hudson Central School Dist, Westchester Cty. v. Rowley, 458 U. S. 176, 192 (1982))).

This general definition of “related services” is illuminated by a parenthetical phrase listing examples of particular services that are included within the statute’s coverage. § 1401(a)(17). “[M]edieal services” are enumerated in this list, but such services are limited to those that are “for diagnostic and evaluation purposes.” Ibid. The statute does not contain a more specific definition of the “medical services” that are excepted from the coverage of § 1401(a)(17).

The scope of the “medical services” exclusion is not a matter of first impression in this Court. In Tatro we concluded that the Secretary of Education had reasonably determined that the term “medical services” referred only to services that must be performed by a physician, and not to school health services. 468 U. S., at 892-894. Accordingly, we held that a specific form of health care (clean intermittent catheterization) that is often, though not always, performed by a nurse is not an excluded medical service. We referenced the likely cost of the services and the competence of school staff as justifications for drawing a line between physician and other services, ibid., but our endorsement of that line was unmistakable. It is thus settled that the phrase “medical services” in § 1401(a)(17) does not embrace all forms of care that might loosely be described as “medical” in other contexts, such as a claim for an income tax deduction. See 26 U. S. C. § 213(d)(1) (1994 ed. and Supp. II) (defining “medical care”).

The District does not ask us to define the term so broadly. Indeed, the District does not argue that any of the items of care that Garret needs, considered individually, could be excluded from the scope of 20 U. S. C. § 1401(a)(17). It could not make such an argument, considering that one of the services Garret needs (catheterization) was at issue in Tatro, and the others may be provided competently by a school nurse or other trained personnel. See App. to Pet. for Cert. 15a, 52a. As the ALJ concluded, most of the requested services are already provided by the District to other students, and the in-school care necessitated by Garret’s ventilator dependency does not demand the training, knowledge, and judgment of a licensed physician. Id., at 51a-52a. While more extensive, the in-sehool services Garret needs are no more “medical” than was the care sought in Tatro.

Instead, the District points to the combined and continuous character of the required care, and proposes a test under which the outcome in any particular ease would “depend upon a series of factors, such as [1] whether the care is continuous or intermittent, [2] whether existing school health personnel can provide the service, [3] the cost of the service, and [4] the potential consequences if the service is not properly performed.” Brief for Petitioner 11; see also id., at 34-35.

The District’s multifaetor test is not supported by any recognized source of legal authority. The prqposed factors can be found in neither the text of the statute nor the regulations that we upheld in Tatro. Moreover, the District offers no explanation why these characteristics make one service any more “medical” than another. The continuous character of certain services associated with Garret’s ventilator dependency has no apparent relationship to “medical” services, much less a relationship of equivalence. Continuous services may be more costly and may require additional school personnel, but they are not thereby more “medical.” Whatever its imperfections, a rule that limits the medical services exemption to physician services is unquestionably a reasonable and generally workable interpretation of the statute. Absent an elaboration of the statutory terms plainly more convincing than that which we reviewed in Tatro, there is no good reason to depart from settled law.

Finally, the District raises broader concerns nancial burden that it must bear to provide the services that Garret needs to stay in school. The problem for the District in providing these services is not that its staff cannot be trained to deliver them; the problem, the District contends, is that the existing school health staff cannot meet all of their responsibilities and provide for Garret at the same time. Through its multifaetor test, the District seeks to establish a kind of undue-burden exemption primarily based on the cost of the requested services. The first two factors can be seen as examples of cost-based distinctions: Intermittent care is often less expensive than continuous care, and the use of existing personnel is cheaper than hiring additional employees. The third factor — -the cost of the service— would then encompass the first two. The relevance of the fourth factor is likewise related to cost because extra care may be necessary if potential consequences are especially serious.

The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law. Defining “related services” in a manner that accommodates the cost concerns Congress may have had, cf. Tatro, 468 U. S., at 892, is altogether different from using cost itself as the definition. Given that § 1401(a)(17) does not employ cost in its definition of “related services” or excluded “medical services,” accepting the District’s cost-based standard as the sole test for determining the scope of the provision would require us to engage in judicial lawmaking without any guidance from Congress. It would also create some tension with the purposes of the IDEA. The statute may not require public schools to maximize the potential of disabled students com-mensúrate with the opportunities provided to other children, see Rowley, 458 U. S., at 200; and the potential financial burdens imposed on participating States may be relevant to arriving at a sensible construction of the IDEA, see Tatro, 468 U. S., at 892. But Congress intended “to open the door of public education” to all qualified children and “require[d] participating States to educate handicapped children with nonhandicapped children whenever possible.” Rowley, 458 U. S., at 192, 202; see id., at 179-181; see also Honig v. Doe, 484 U. S. 305, 310-311, 324 (1988); §§1412(1), (2)(C), (5)(B).

This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the District must fund such “related services” in order to help guarantee that students like Garret are integrated into the public schools.

The judgment of the Court of Appeals is accordingly

Affirmed.

Justice Thomas,

with whom Justice Kennedy joins, dissenting.

The majority, relying heavily on our decision in Irving Independent School Dist. v. Tatro, 468 U. S. 883 (1984), concludes that the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. § 1400 et seq., requires a public school district to fund continuous, one-on-one nursing care for disabled children. Because Tatro cannot be squared with the text of IDEA, the Court should not adhere to it in this case. Even assuming that Tatro was correct in the first instance, the majority’s extension of it is unwarranted and ignores the constitutionally mandated rules of construction applicable to legislation enacted pursuant to Congress’ spending power.

I

As the majority recounts, ante, at 68, IDEA authorizes the provision of federal financial assistance to States that agree to provide, inter alia, “special education and related services” for disabled children. § 1401(a)(18). In Tatro, supra, we held that this provision of IDEA required a school district to provide clean intermittent catheterization to a disabled child several times a day. In so holding, we relied on Department of Education regulations, which we concluded had reasonably interpreted IDEA’S definition of “related services” to require school districts in participating States to provide “school nursing services” (of which we assumed catheterization was a subcategory) but not “services of a physician.” Id., at 892-893. This holding is contrary to the plain text of IDEA, and its reliance on the Department of Education’s regulations was misplaced.

A

Before we consider whether deference to an agency regulation is appropriate, “we first ask whether Congress has ‘directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” National Credit Union Admin, v. First Nat. Bank & Trust Co., 522 U. S. 479, 499-500 (1998) (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984)).

Unfortunately, the Court in Tatro failed to consider necessary antecedent question before turning to the Department of Education’s regulations implementing IDEA’S related services provision. The Court instead began “with the regulations of the Department of Education, which,” it said, “are entitled to deference.” 468 U. S., at 891-892. The Court need not have looked beyond the text of IDEA, which expressly indicates that school districts are not required to provide medical services, except for diagnostic and evaluation purposes. 20 U. S. C. § 1401(a)(17). The majority asserts that Tatro precludes reading the term “medical services” to include “all forms of care that might loosely be described as ‘medical.’” Ante, at 75. The majority does not explain, however, why “services” that are “medical” in nature are not “medical services.” Not only is the definition that the majority rejects consistent with other uses of the term in federal law, it also avoids the anomalous result of holding that the services at issue in Tatro (as well as in this case), while not “medical services,” would nonetheless qualify as medical care for federal income tax purposes. Ante, at 74-75.

The primary problem with Tatro, and the majority’s reliance on it today, is that the Court focused on the provider of the services rather than the services themselves. We do not typically think that automotive services are limited to those provided by a mechanic, for example. Rather, anything done to repair or service a ear, no matter who does the work, is thought to fall into that category. Similarly, the term “food service” is not generally thought to be limited to work performed by a chef. The term “medical” similarly does not support Tatro’s provider-specific approach, but encompasses services that are “of, relating to, or concerned with physicians or with the practice of medicine.” See Webster’s Third New International Dictionary 1402 (1986) (emphasis added); see also id., at 1551 (defining “nurse” as “a person skilled in caring for and waiting on the infirm, the injured, or the sick; specif: one esp. trained to carry out such duties under the supervision of a physician”).

IDEA’S structure and purpose reinforce this textual interpretation. Congress enacted IDEA to increase the educational opportunities available to disabled children, not to provide medical care for them. See 20 U. S. C. § 1400(c) (“It is the purpose of this chapter to assure that all children with disabilities have ... a free appropriate public education”); see also § 1412 (“In order to qualify for assistance... a State shall demonstrate . . . [that it] has in effect a policy that assures all children with disabilities the right to a free appropriate public education”); Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 179 (1982) (“The Act represents an ambitious federal effort to promote the education of handicapped children”). As such, where Congress decided to require a supportive service — including speech pathology, occupational therapy, and audiology — that appears “medical” in nature, it took care to do so explicitly. See § 1401(a)(17). Congress specified these services precisely because it recognized that they would otherwise fall under the broad “medical services” exclusion. Indeed, when it crafted the definition of related services, Congress could have, but chose not to, include “nursing services” in this list.

B

Tatro was wrongly decided even if the phrase “medical services” was subject to multiple constructions, and therefore, deference to any reasonable Department of Education regulation was appropriate. The Department of Education has never promulgated regulations defining the scope of IDEA’S “medical services” exclusion. One year before Tatro was decided, the Secretary of Education issued proposed regulations that defined excluded medical services as “services relating to the practice of medicine.” 47 Fed. Reg. 38838 (1982). These regulations, which represent the Department’s only attempt to define the disputed term, were never adopted. Instead, “[t]he regulations actually define only those ‘medical services’ that are owed to handicapped children,” Tatro, 468 U. S., at 892, n. 10 (emphasis in original), not those that are not. Now, as when Tatro was decided, the regulations require districts to provide services performed ‘“by a licensed physician to determine a child’s medically related handicapping condition which results in the child’s need for special education and related services.’” Ibid, (quoting 34 CFR § 300.13(b)(4) (1983), recodified and amended as 34 CFR § 300.16(b)(4) (1998).

Extrapolating from this regulation, the Tatro Court presumed that this meant that “‘medical services’ not owed under the statute are those ‘services by a licensed physician’ that serve other purposes.” Tatro, supra, at 892, n. 10 (emphasis deleted). The Court, therefore, did not defer to the regulation itself, but rather relied on an inference drawn from it to speculate about how a regulation might read if the Department of Education promulgated one. Deference in those circumstances is impermissible. We cannot defer to a regulation that does not exist.

h — i HH

Assuming that Tatro was correctly decided in the first instance, it does not control the outcome of this ease. Because IDEA was enacted pursuant to Congress’ spending power, Rowley, supra, at 190, n. 11, our analysis of the statute in this ease is governed by special rules of construction. We have repeatedly emphasized that, when Congress places conditions on the receipt of federal funds, “it must do so unambiguously.” Pennhurst State School and Hospital v. Hal- derman, 451 U. S. 1, 17 (1981). See also Rowley, supra, at 190, n. 11; South Dakota v. Dole, 488 U. S. 203, 207 (1987); New York v. United States, 505 U. S. 144, 158 (1992). This is because a law that “eondition[s] an offer of federal funding on a promise by the recipient. . . amounts essentially to a contract between the Government and the recipient of funds.” Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 286 (1998). As such, “[t]he legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Pennhurst, supra, at 17 (citations omitted). It follows that we must interpret Spending Clause legislation narrowly, in order to avoid saddling the States with obligations that they did not anticipate.

The majority’s approach in this case turns Clause presumption on its head. We have held that, in enacting IDEA, Congress wished to require “States to educate handicapped children with nonhandicapped children whenever possible,” Rowley, supra, at 202. Congress, however, also took steps to limit the fiscal burdens that States must bear in attempting to achieve this laudable goal. These steps include requiring States to provide an education that is only “appropriate” rather than requiring them to maximize the potential of disabled students, see 20 U. S. C. § 1400(c); Rowley, supra, at 200, recognizing that integration into the public school environment is not always possible, see § 1412(5), and clarifying that, with a few exceptions, public schools need not provide “medical services” for disabled students, §§ 1401(a)(17) and (18).

For this reason, we have previously gress did not intend to “impos[e] upon the States a burden of unspecified proportions and weight” in enacting IDEA. Rowley, supra, at 190, n. 11. These federalism concerns require us to interpret IDEA’S related services provision, consistent with Tatro, as follows: Department of Education regulations require districts to provide disabled children with health-related services that school nurses can perform as part of their normal duties. This reading of Tatro, although less broad than the majority’s, is equally plausible and certainly more consistent with our obligation to interpret Spending Clause legislation narrowly. Before concluding that the district was required to provide clean intermittent catheterization for Amber Tatro, we observed that school nurses in the district were authorized to perform services that were “difficult to distinguish from the provision of [clean intermittent catheterization] to the handicapped.” Tatro, 468 U. S., at 893. We concluded that “[i]t would be strange indeed if Congress, in attempting to extend special services to handicapped children, were unwilling to guarantee them services of a kind that are routinely provided to the nonhand-ieapped.” Id., at 893-894.

Unlike clean intermittent catheterization, however, a school nurse cannot provide the services that respondent requires, see ante, at 69-70, n. 3, and continue to perform her normal duties. To the contrary, because respondent requires continuous, one-on-one care throughout the entire schoolday, all agree that the district must hire an additional employee to attend solely to respondent. This will cost a minimum of $18,000 per year. Although the maj ority recognizes this fact, it nonetheless concludes that the “more extensive” nature of the services that respondent needs is irrelevant to the question whether those services fall under the medical services exclusion. Ante, at 75. This approach disregards the constitutionally mandated principles of construction applicable to Spending Clause legislation and blindsides unwary States with fiscal obligations that they could not have anticipated.

* * *

For the foregoing reasons, I respectfully dissent.

       “The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.” 20 U. S. C. § 1401(a)(17).
      Originally, the statute was enacted without a definition of “related services.” See Education of the Handicapped Act, 84 Stat. 175. In 1975, Congress added the definition at issue in this case. Education for All Handicapped Children Act of 1975, § 4(a)(4), 89 Stat. 775. Aside from non-substantive changes and added examples of included services, see, e. g„ Individuals with Disabilities Education Act Amendments of 1997, § 101, 111 Stat. 45; Individuals with Disabilities Education Act Amendments of 1991, §25(a)(1)(B), 105 Stat. 605; Education of the Handicapped Act Amendments of 1990, § 101(c), 104 Stat. 1103, the relevant language in §1401(a)(17) has not been amended since 1975. All references to the IDEA herein are to the 1994 version as codified in Title 20 of the United States Code — the version of the statute in effect when this dispute arose.

       In his report in this case, the Administrative Law Judge explained: “Being ventilator dependent means that [Garret] breathes only with external aids, usually an electric ventilator, and occasionally by someone else’s manual pumping of an air bag attached to his tracheotomy tube when the ventilator is being maintained. This later procedure is called ambu bagging.” App. to Pet. for Cert. 19a.

       “He needs assistance with urinary bladder catheterization once a day, the suctioning of his tracheotomy tube as needed, but at least once every six hours, with food and drink at lunchtime, in getting into a reclining position for five minutes of each hour, and ambu bagging occasionally as needed when the ventilator is checked for proper functioning. He also needs assistance from someone familiar with his ventilator in the event there is a malfunction or electrical problem, and someone who can perform emergency procedures in the event he experiences autonomic hyper-reflexia. Autonomic hyperreflexia is an uncontrolled visceral reaction to anxiety or a full bladder. Blood pressure increases, heart rate increases, and flushing and sweating may occur. Garret has not experienced autonomic hyperreflexia frequently in recent years, and it has usually been alleviated by catheterization. He has not ever experienced autonomic hyperreflexia at school. Garret is capable of communicating his needs orally or in another fashion so long as he has not been rendered unable to do so by an extended lack of oxygen.” Id., at 20a.

       “Included are such services as care for • eterization, food and drink, oxygen supplement positioning, and suetion-ing.” Id., at 28a; see also id., at 53a.

       In addition, the ALJ’s opinion contains a thorough discussion of “other tests and criteria” pressed by the District, id, at 52a, including the burden on the District and the cost of providing assistance to Garret. Although the ALJ found no legal authority for establishing a cost-based test for determining what related services are required by the statute, he went on to reject the District’s arguments on the merits. See id, at 42a-53a. We do not reach the issue here, but the AU also found that Garret’s in-sehool needs must be met by the District under an Iowa statute as well as the IDEA. Id., at 54a-55a.

       “The regulations define ‘related services’ for handicapped children to include ‘school health services,’ 34 CFR § 300.13(a) (1983), which are defined in turn as ‘services provided by a qualified school nurse or other qualified person,’ §300.13(b)(10). ‘Medical services’ are defined as ‘services provided by a licensed physician.’ § 300.13(b)(4). Thus, the Secretary has [reasonably] determined that the services of a school nurse otherwise qualifying as a ‘related service’ are not subject to exclusion as a ‘medical service,’ but that the services of a physician are excludable as such.
      “. .. By limiting the ‘medical services’ exclusion to the services of a •physician or hospital, both far more expensive, the Secretary has given a permissible construction to the provision.” 468 U. S., at 892-893 (emphasis added) (footnote omitted); see also id., at 894 (“[T]he regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician”).
      Based on it seems that the Secretary’s post-ihiro view of the statute has not been entirely clear. E. g., App. to Pet. for Cert. 64a. We may assume that the Secretary has authority under the IDEA to adopt regulations that define the “medical services” exclusion by more explicitly taking into account the nature and extent of the requested services; and the Secretary surely has the authority to enumerate the services that are, and are not, fairly included within the scope of § 1407(a)(17). But the Secretary has done neither; and, in this Court, he advocates affirming the judgment of the Court of Appeals. Brief for United States as Amicus Curiae 7-8, 30; see also Auer v. Robbins, 519 U. S. 452, 462 (1997) (an agency’s views as amicus curiae may be entitled to deference). We obviously have no authority to rewrite the regulations, and we see no sufficient reason to revise Tairo, either.

       See Tr. of Oral Arg. 4-5,12.

       At oral argument, the District suggested that we first consider the nature of the requested service (either “medical” or not); then, if the service is “medical,” apply the multifactor test to determine whether the service is an excluded physician service or an included sehool nursing service under the Secretary of Education’s regulations. See Tr. of Oral Arg. 7, 13-14. Not only does this approach provide no additional guidance for identifying “medical” services, it is also disconnected from both the statutory text and the regulations we upheld in Irving Independent School Dist. v. Tatro, 468 U. S. 883 (1984). “Medical” services are generally excluded from the statute, and the regulations elaborate on that statutory term. No authority cited by the District requires an additional inquiry if the requested service is both “related” and non-“medieaI.” Even if § 1401(a)(17) demanded an additional step, the factors proposed by the District are hardly more useful in identifying “nursing” services than they are in identifying “medical” services; and the District cannot limit educational access simply by pointing to the limitations of existing staff! As we noted in Tatro, the IDEA requires schools to hire specially trained personnel to meet disabled student needs. Id., at 893.

       See Tr. of Oral Arg. 4-5, 13; Brief for Petitioner 6-7, 9. The District, however, will not necessarily need to hire an additional employee to meet Garret’s needs. The District already employs a one-on-one teacher associate (TA) who assists Garret during the schoolday. See App. to Pet. for Cert. 26a-27a. At one time, Garret’s TA was a licensed practical nurse (LPN). In light of the state Board of Nursing’s recent ruling that the District’s registered nurses may decide to delegate Garret’s care to an LPN, see Brief for United States as Amicus Curiae 9-10 (filed Apr. 22, 1998), the dissent’s future-cost estimate is speculative. See App. to Pet. for Cert. 28a, 58a-60a (if the District could assign Garret’s care to a TA who is also an LPN, there would be "a minimum of additional expense”).

       The dissent’s approach, which seems to be even broader than the District’s, is unconvincing. The dissent’s rejection of our unanimous decision in Tatro comes 15 years too late, see Patterson v. McLean Credit Union, 491 U. S. 164, 172-178 (1989) (stare decisis has “special force” in statutory interpretation), and it offers nothing constructive in its place. Aside from rejecting a “provider-specific approach,” the dissent cites unrelated statutes and offers a circular definition of “medical services.” Post, at 81 (opinion of Thomas, J.) (“ ‘services’ that are ‘medical’ in ‘nature’ ”). Moreover, the dissent’s approach apparently would exclude most ordinary school nursing services of the kind routinely provided to npndisabled children; that anomalous result is not easily attributable to congressional intent. See Tatro, 468 U. S., at 893.
      In a later discussion the dissent does offer a specific proposal: that we now interpret (or rewrite) the Secretary’s regulations so that school districts need only provide disabled children with “health-related services that school nurses can perform as part of their normal duties.” Post, at 85. The District does not dispute that its nurses “can perform” the requested services, so the dissent’s objection is that District nurses would not be performing their “normal duties” if they met Garret’s needs. That is, the District would need an “additional employee.” Ibid. This proposal is functionally similar to a proposed regulation — ultimately withdrawn — that would have replaced the “school health services” provision. See 47 Fed. Reg. 33838, 33854 (1982) (the statute and regulations may not be read to affect legal obligations to make available to handicapped, children services, including school health services, made available to nonhand-ieapped children). The dissent’s suggestion is unacceptable for several reasons. Most important, such revisions of the regulations are better left to the Secretary, and an additional staffing need is generally not a sufficient objection to the requirements of § 1401(a)(17). See n. 8, supra.

       IDEA currently defines "related services" as "transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education ....” 20 U. S. C. § 1401(a)(17) (emphasis added).

       See, e. g., 38 U. S. C. § 1701(6) (“The term ‘medical services’ includes, in addition to medical examination, treatment, and rehabilitative services— . . . surgical services, dental services . . . , optometric and podiatric services,... preventive health services,... [and] such consultation, professional counseling, training, and mental health services as are necessary in connection with the treatment”); § 101(28) (“The term ‘nursing home care’ means the accommodation of convalescents ... who require nursing care and related medical services”); 26 U. S. C. § 213(d)(1) (“The term ‘medical care’ means amounts paid — ... for the diagnosis, cure, mitigation, treatment, or prevention of disease”).

       Nor do I think that it is appropriate to defer to the Department of Education’s litigating position in this case. The agency has had ample opportunity to address this problem but has failed to do so in a formal regulation. Instead, it has maintained conflicting positions about whether the services at issue in this case are required by IDEA. See ante, at 74, n. 6. Under these circumstances, we should not assume that the litigating position reflects the “agency’s fair and considered judgment.” Auer v. Robbins, 519 U. S. 452, 462 (1997).