In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3691

JOSHUA BELLER, a minor,

by his next friend and mother,

Melissa Welch, et al.,

Plaintiffs-Appellants,

v.

HEALTH AND HOSPITAL CORP. OF

MARION COUNTY, INDIANA, d/b/a

WISHARD MEMORIAL HOSPITAL, d/b/a

WISHARD AMBULANCE SERVICE,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:03-cv-00889-TWP-TAB—Tanya Walton Pratt, Judge.

ARGUED APRIL 20, 2012—DECIDED DECEMBER 20, 2012

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. The plaintiffs brought suit

alleging that the defendant, Health and Hospital Corporation of Marion County, Indiana d/b/a Wishard Memorial
2 No. 11-3691

Hospital d/b/a Wishard Ambulance Service (“Wishard”)

violated the Emergency Medical Treatment and Active

Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, by failing to

stabilize Melissa Welch and her minor son, Joshua Beller,

during an emergency medical situation. The district

court granted summary judgment for Wishard, and the

plaintiffs appeal.

On June 14, 2001, Melissa Welch called 911 and a

Wishard ambulance was dispatched to her home. Welch

was 34 weeks pregnant, and the paramedics ascertained

that her water broke and she had a prolapsed umbilical

cord. The paramedics tried to relieve pressure on the

cord, and after consulting with the nurse at Welch’s

obstetrician’s office, agreed that Welch needed to be

transported to the nearest hospital. They then contacted

the St. Francis Beech Grove (“Beech Grove”) emergency

room and transported her there. Beech Grove did not

have an obstetrics facility. Rather than delivering the

baby there, the physician at Beech Grove examined

Welch and then sent her in the Wishard ambulance to

St. Francis Hospital South. There, Joshua Beller was

delivered by Caesarean section, but he had suffered

hypoxia resulting in severe brain damage. The plaintiffs

allege that Wishard violated the EMTALA by transferring Joshua to Beech Grove instead of stabilizing him

by delivering him, and that the failure resulted in his

permanent injuries.

The EMTALA was enacted to address the problem of

patient “dumping,” in which hospitals would not

provide the same treatment to uninsured patients as to
No. 11-3691 3

paying patients, either by refusing care to the uninsured

patients or by transferring them to other facilities. Johnson

v. Univ. of Chicago Hospitals, 982 F.2d 230, 233 n. 7 (7th

Cir. 1993); Gatewood v. Washington Healthcare Corp., 933

F.2d 1037, 1039 (D.C. Cir. 1991). EMTALA imposes two

duties on hospitals with respect to patients who

come to their emergency rooms: first, to provide medical

screening for any emergency condition; and second, as

to any emergency condition, to stabilize the patient prior

to any transfer to another facility. 42 U.S.C. § 1395dd.

The issue in this case is whether the plaintiffs had

“come to the emergency room” of Wishard Memorial

Hospital when they were transported in the Wishard

ambulance. The regulations to the EMTALA, promulgated

by the Department of Health and Human Services’

Center for Medicare and Medicaid Services (“DHHS),

provide a definition of when a person is deemed to

have “come to the emergency room,” but the 2001 definition in effect at the time of the incident was subsequently amended. Both parties agree that under the

2003 definition, the plaintiffs would not have “come to

the emergency room” of Wishard, and therefore the

claim could not proceed. The core issue, then, is which

definition applies.

The 2001 regulation provides that: 

Comes to the emergency department means . . .

that the individual is on the hospital property. For purposes of this section . . . [p]roperty . . . includes ambulances owned and operated by the hospital even

if the ambulance is not on hospital grounds.
4 No. 11-3691

42 C.F.R. § 489.24(b) (2001). That regulation was later

amended in 2003, and although it still provided that an

individual in an ambulance owned and operated by

the hospital is deemed to have come to the emergency

room, it also stated that such person is not considered

to have come to the emergency room of that hospital if

(i) (t)he ambulance is operated under communitywide

emergency medical service (EMS) protocols that

direct it to transport the individual to a hospital other

than the hospital that owns the ambulance . . . [or]

(ii) [t]he ambulance is operated at the direction of

a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance.

42 C.F.R. § 489.24(b) (2003). The Wishard ambulance

was operating under EMS protocols at the time it transported the plaintiffs to Beech Grove, and therefore

under the 2003 amendment the plaintiffs would not be

deemed to have come to the Wishard emergency room

by their presence in that ambulance.

Because the 2003 amendment occurred after the

incident, the question is whether it can be applied retroactively in determining whether the plaintiffs had come

to the emergency room at Wishard under the EMTALA.

In Bowen v. Georgetown University Hospital, 488 U.S. 204,

208-09 (1988), the Supreme Court held that an administrative agency may not promulgate retroactive rules

unless Congress has provided the agency with express

authority to do so and, even if such authority is given,

an agency rule will not be accorded retroactive effect

unless the agency uses language in the rule expressly
No. 11-3691 5

requiring that result. We have recognized, however, that

not all rules create substantive changes. Some rules

simply clarify unsettled or confusing areas of law and

rather than changing the law, those rules merely restate

what the law has always been according to the agency.

Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001). Such

a clarifying rule “can be applied to the case at hand just

as a judicial determination construing a statute can be

applied to the case at hand,” and does not raise issues of

retroactivity. Id.; Middleton v. City of Chicago, 578 F.3d

655, 633 (7th Cir. 2009). Therefore, the dispositive

question is whether the 2003 amendment of the definition of “comes to the emergency department” was

merely a clarification of the meaning of that phrase, or

whether it presented a substantive change in the definition.

The district court held that the amended definition of

“comes to the emergency department” was a clarification

that applied retroactively, and granted summary judgment in favor of the defendant. In so holding, the court

gave deference to the DHHS’ characterization of the

2003 amendment as a clarification, and concluded that

the amendment was intended to alleviate confusion

surrounding hospital-owned ambulances operating

under the EMS protocols. On appeal, the plaintiffs challenge both of those bases. They argue that it is not clear

that the DHHS in fact considered the 2003 amendment

to be a clarification. Moreover, they assert that even if

the DHHS did characterize it as a clarification, the

district court gave undue deference to that determination and erred in failing to conduct its own analysis to

ascertain whether the amendment was a substantive

change or a clarification.
6 No. 11-3691

In determining whether a rule constitutes a change in

law or a clarification of existing law, the intent of the

promulgating agency must be accorded great weight.

Clay, 264 F.3d at 749. We therefore will defer to an

agency’s expressed intent that a regulation be deemed

a clarification unless the prior interpretation of the regulation is “patently inconsistent” with the later one. Id. 

We agree with the district court’s conclusion that

the DHSS considered the 2003 regulation to be a clarification of the definition of “comes to the emergency department.” In its Final Rule implementing the 2003 amendment, the DHHS repeatedly stated that the changes

were clarifications in order to address confusion as to

the scope of the 2001 definition. In fact, the title states

“Clarifying Policies Related to the Responsibilities of

Medicare-Participating Hospitals in Treating Individuals

With Emergency Medical Conditions.” 68 FR 53222. The

Final Rule explicitly states that it “both reiterated the

agency’s interpretations under EMTALA and proposed

clarifying changes relating to the implementation of

the EMTALA provisions.” Summary, 68 FR 53222. It

indicated that the “reiterations and clarifying changes

are needed to ensure uniform and consistent application

of policy and to avoid any misunderstanding of

EMTALA requirements by individuals, physicians, or

hospital employees.” Id. Moreover, in addressing the

definition of “comes to the emergency department”

specifically, DHHS stated “we proposed to clarify, at

proposed revised § 489.24(b), in paragraph (3) of the

definition of ‘Comes to the emergency department,’ an

exception to our existing rule requiring EMTALA ap-
No. 11-3691 7

plicability to hospitals that own and operate ambulances. We proposed to account for hospital-owned

ambulances operating under communitywide EMS protocols.” XII. EMTALA Applicability to Hospital-Owned Ambulances (§ 489.24(b)) B. Provisions of the Proposed Rule, 68

FR 53256. The DHHS then proceeded again to refer to

its rule as a “proposal to clarify that EMTALA does not

apply to a hospital-owned ambulance when the ambulance is operating under communitywide protocols

that require it to transport an individual to a hospital

other than the hospital that owns the ambulance.” XII.

EMTALA Applicability to Hospital-Owned Ambulances

(§ 489.24(b)), C. Summary of Public Comments and Departmental Responses, 68 FR 53256.

Those statements are unambiguous, and we agree with

the district court that the DHHS considered the 2003

amendment to be a clarification rather than a substantive

change. We defer to that determination unless the 2001

definition is patently inconsistent with the 2003 amendment. Clay, 264 F.3d at 749.

The plaintiffs nevertheless claim that the DHHS is

mistaken in that characterization, and that the two definitions are inconsistent. According to the plaintiffs, the

2003 amendment was a response to a situation not

present in 2001—the use of the Emergency Medical

Service in determining how ambulances would be directed. With the advent of the EMS protocols, in which

ambulances were operated under the direction of those

protocols and not under the direction of the hospital

owning the ambulance, questions had arisen as to
8 No. 11-3691

whether the individual in such an ambulance would be

considered to have come to the emergency room of the

hospital that owned the ambulance. The amendment

was designed to address that confusion and set forth a

rule for such a circumstance. The plaintiffs point to the

advent of the EMS protocols as evidence that the change

is a substantive one, arguing that a substantive change

was necessary to adapt to that new circumstance. Specifically, the plaintiffs repeatedly assert that the 2001 definition was “plain and simple and had no exceptions: if an

individual was in a hospital-owned ambulance, s/he had

‘come to the emergency department’ of that hospital.”

According to the plaintiffs, the 2003 definition created

two exceptions for the 2001 definition, thus fundamentally changing, rather than clarifying, the meaning

of “comes to the emergency department.”

That characterization of the 2001 definition by the

plaintiffs ignores its plain language. The 2001 definition

stated that a person “comes to the emergency department” if the person is on hospital property, and hospital

property includes “ambulances owned and operated by

the hospital even if the ambulance is not on hospital

grounds.” The plaintiffs’ statement that a person therefore had come to the emergency department if she was

in a “hospital-owned ambulance” ignores the second

qualifier, which is that the ambulance must be owned

“and operated by” a hospital. The 2003 definition

clarified what it meant for an ambulance to be “operated

by” a hospital. The 2003 amendment specifically clarified

the status of two situations in which the ambulance

was owned by the hospital but not as a practical matter
No. 11-3691 9

operated by the hospital during that time—first in which

the ambulance was operated under communitywide

EMS protocols that direct it to transport the individual

to a hospital other than the hospital that owns the ambulance, and second in which it was operated at the

direction of a physician who is not employed or otherwise

affiliated with the hospital that owns the ambulance.

That is a classic situation of a clarifying regulation. The

plaintiffs’ exclusive focus on the ownership of the ambulance, and their failure to recognize the 2001 requirement that the ambulance must also be operated by the

hospital, misses the critical point. The advent of the

EMS protocols caused confusion in that an ambulance

could be owned by a hospital but not operated under its

direction. The 2003 regulation clarified with respect to

that and another recurring situation, that the individuals

would not be deemed to have come to the emergency

room of the hospital because the ambulance was under

the operation of others.

There is nothing inconsistent in the 2003 and 2001

definitions. The two are consistent in holding that an

individual will be deemed to have come to the emergency

department if that person is in an ambulance owned

and operated by the hospital. The 2003 definition

merely provided guidance as to what it means for an

ambulance to be “operated by” a hospital. The district court properly held that the 2003 amendment is a

clarification, which therefore applies in interpreting the

meaning of the 2001 language. Because the Wishard

ambulance was operating under the EMS protocol at

the time the plaintiffs were in it, the plaintiffs had not
10 No. 11-3691

come to the Wishard emergency department under the

EMTALA, and the plaintiffs’ claim cannot succeed. The

decision of the district court granting summary judgment in favor of the defendant is AFFIRMED.

12-20-12