Retroactive Application of Amendments to the Emergency Medical Treatment and Active Labor Act

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January 13, 2013
Betsy Ballek
SmithAmundsen Health Care Alert

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Risk managers along with hospital counsel and claims professionals may want to review a December 2012 7th Circuit Appellate Court decision before opening or closing cases on their loss run. This decision allows for retroactive application of amendments which clarify prior Emergency Medical Treatment and Active Labor Act (EMTALA) regulations.

In Beller v. Health and Hospital Corporation d/b/a/ Wishard Ambulance Service, 11-3691 (7th Cir. 2012), the appellate court upheld a lower court holding which allowed a retroactive application of an EMTALA amendment, even though the amendment was not yet written at the time of the events took place.

In Beller, a 34-week pregnant woman with a broken bag-of-waters and a prolapsed cord (a potential obstetric emergency) was transported in a hospital-owned ambulance from her home to two different hospital emergency rooms before, ultimately, delivering a severely brain damaged infant. The plaintiffs sued Wishard Ambulance Service for transferring the patient twice, instead of stabilizing her by completing the delivery.

The EMTALA regulations in place in 2001 provided that a person “comes to the emergency department” when they are on hospital property, which included ambulances owned and operated by the hospital, even if the ambulance was not on hospital grounds. In 2003, those regulations were amended creating an exception for hospital owned ambulances “operated under communitywide emergency medical service (EMS) protocols which directed the transport of an individual to a hospital other than the hospital which owns the ambulance.” Under the 2003 amendments, a patient in a hospital-owned EMS-directed ambulance was not considered to have come to the emergency department for purposes of applying EMTALA regulations to the hospital which owned the ambulance.

Since the events in this case took place in June of 2001, but the ambulance was under EMS direction, the question was whether the 2001 or 2003 regulations applied. The appellate court reasoned that the amendments could be applied retroactively if they were not a "substantive" change in law, but rather a clarification of earlier regulations to avoid confusion.

In Beller, the court found that the Department of Health and Human Services (DHHS) used strong, unambiguous language indicating that the amendments were created for purposes of clarifying the existing rule. The court looked to the title of the amendments “clarifying policies,” and also to language the amendments were “proposed to clarify” the definition of “comes to the emergency department” for hospital-owned and operated ambulances.

The appellate court disagreed with the plaintiffs' claim that this was a substantive change, stating instead that the advent of EMS protocols “caused confusion” as to how to apply the existing regulations for hospital-owned ambulances directed by EMS. The 2003 amendments were created, in part, to clarify and to resolve this confusion. Since the 2003 amendments were deemed to be clarifying, the appellate court allowed retroactive application and affirmed that the EMTALA claim failed as the patient never “came to the emergency department” of Wishard Hospital via their ambulance service as directed by EMS.

The EMTALA regulations have been amended multiple times and certainly may be amended again in the future. Typically, retroactive changes to substantive law are not allowed. Hospitals and other providers should take note of the specific language in EMTALA amendments as to the intent with which they were written as this may have application to management of patients and claims in this area.