                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3691

JOSHUA B ELLER, a minor,
by his next friend and mother,
Melissa Welch, et al.,
                                              Plaintiffs-Appellants,
                                 v.


H EALTH AND H OSPITAL C ORP. OF
M ARION C OUNTY, INDIANA, d/b/a
W ISHARD M EMORIAL H OSPITAL, d/b/a
W ISHARD A MBULANCE S ERVICE,
                                                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.


    A RGUED A PRIL 20, 2012—D ECIDED D ECEMBER 20, 2012




 Before M ANION, R OVNER, and W ILLIAMS, Circuit Judges.
  R OVNER, Circuit Judge. The plaintiffs brought suit
alleging that the defendant, Health and Hospital Corpora-
tion 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 trans-
ferring 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 defini-
tion in effect at the time of the incident was sub-
sequently 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 pur-
    poses of this section . . . [p]roperty . . . includes am-
    bulances 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 affili-
    ated 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 trans-
ported 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 retro-
actively 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 admin-
istrative 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 defini-
tion 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 judg-
ment 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 chal-
lenge 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 determina-
tion 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 reg-
ulation 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 clarifica-
tion of the definition of “comes to the emergency depart-
ment.” In its Final Rule implementing the 2003 amend-
ment, 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 ambu-
lances. We proposed to account for hospital-owned
ambulances operating under communitywide EMS proto-
cols.” XII. EMTALA Applicability to Hospital-Owned Ambu-
lances (§ 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 am-
bulance 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 Depart-
mental 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 amend-
ment. Clay, 264 F.3d at 749.
  The plaintiffs nevertheless claim that the DHHS is
mistaken in that characterization, and that the two def-
initions 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 di-
rected. 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. Specifi-
cally, the plaintiffs repeatedly assert that the 2001 defini-
tion 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 funda-
mentally 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 depart-
ment” 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 there-
fore 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 am-
bulance, 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 ambu-
lance, and their failure to recognize the 2001 require-
ment 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 dis-
trict 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 judg-
ment in favor of the defendant is A FFIRMED.




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