No. 2-09-0581 Filed: 6-16-10 _________________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT _________________________________________________________________________________
ELVIRA ARELLANO, ) Appeal from the Circuit Court ) of Winnebago County. Plaintiff-Appellant, ) ) v. ) No. 08--MR--223 ) THE DEPARTMENT OF HUMAN ) SERVICES, CAROL L. ADAMS, Secretary ) of the Department of Human Services, and ) THE DEPARTMENT OF HEALTHCARE ) AND FAMILY SERVICES, ) Honorable ) J. Edward Prochaska, Defendants-Appellees. ) Judge, Presiding. _________________________________________________________________________________
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, Elvira Arellano, appeals from the ruling of the circuit court of Winnebago County
affirming the decision of defendant, the Illinois Department of Human Services (the Department),
denying her Medicaid benefits in connection with her hospitalization and treatment for pneumonia.
(Plaintiff's complaint also named as defendants the Illinois Department of Healthcare and Family
Services and Carol Adams, the Secretary of the Department.) The lone issue presented in this appeal
is whether the medical services plaintiff received were in reaction to the "sudden onset" of an acute
medical condition, so as to qualify her, an alien not lawfully admitted for permanent United States
residence, for Medicaid benefits. However, for the reasons that follow, we conclude that the "sudden
onset" requirement impermissibly modifies the Medicaid statute and thus cannot be enforced. No. 2--09--0581
Accordingly, we vacate the Department's decision, which was premised on the "sudden onset"
requirement, and remand with directions.
The record from the proceedings before the Department includes medical records from
plaintiff's hospitalization as well as a transcript of plaintiff's testimony at a Department administrative
hearing. That evidence contains various, and conflicting, descriptions of the timing and character of
the symptoms that led to plaintiff's hospitalization.
In her testimony, plaintiff indicated that she visited a doctor a "few days" prior to her
admission into the hospital.
A hospital record of plaintiff's history and physical, from May 7, 2006, the first day of her
hospitalization, indicates that she went to the hospital complaining of shortness of breath. According
to the medical record, plaintiff "state[d] that she was in [her] usual state of health until [the prior]
evening around 11 o'clock when she went to bed. She had shortness of breath and the shortness of
breath progressed and was no better, and she had trouble sleeping throughout the night so she came
to the [hospital] *** in the morning." The report continued: "[Plaintiff] state[d] that she [had] been
having a nonproductive cough starting about three weeks [prior] and overall the cough frequency and
intensity [was] lessening."
A second May 7 history and physical report indicates that plaintiff (and the family members
who accompanied her to the hospital and translated for her) "report[ed] that approximately two to
three weeks ago [plaintiff] began feeling [ill] with shortness of breath as the princip[al] symptom.
Over the ensu[]ing two weeks, [it] has gradually progressed and she first sought medical attention
approximately three days ago at which time inhalers *** were prescribed. Over the weekend, there
-2- No. 2--09--0581
was no improvement and thus the patient sought medical attention today [at the hospital] as her
symptoms persisted and worsened."
A May 7 emergency-room report indicated that plaintiff "state[d] that since Friday [May 5]
she has been feeling short of breath and saw her doctor that day. She state[d] she [had] gotten much
worse since then."
The record of a May 10 pulmonary consultation indicated that the reason for the consult was
that plaintiff was suffering from "diffuse lower lobe consolidation with hypoxemic respiratory failure
and low grade fever, which reportedly began abruptly one day prior to her hospital admission on
5/7/2006, but was preceded by a three week history of nonproductive cough that apparently [had]
improved."
The record of a May 13 infectious-disease consultation indicated as follows, in pertinent part:
"[Plaintiff] presented one week ago with respiratory distress. She is primarily
Spanish-speaking. There was a translator in the room and, even with the translator, I had a
hard time getting the patient down. At one point, she says that she became acutely ill a day
or so prior to admission, with cough and shortness of breath. However, at another time, she
will say that she noticed that she was getting winded a week or two before she came to the
hospital, and it is really hard to pin her down as to which is the best description. As best I can
tell, it sounds like a week or two before admission, she knew there was something different
with maybe a little dyspnea [i.e., difficulty breathing] with exertion progressively, although
no orthopnea [i.e., inability to breathe unless in an upright position], and then it got acutely
worse just prior to admission."
The record of a May 10 rheumatology consultation stated as follows:
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"[Plaintiff] was in her usual state of health until about three weeks ago when she
started [to] have dyspnea on exertion and dry cough. She denied fever, but complained of
upper back pain which had been going on for three years. Her symptoms got worse three
days prior to admission to the point that she could not sleep the day before admission."
The same May 13 consultation record indicated that plaintiff reported having been in "excellent
health" prior to the onset of her illness. The medical impression in the record indicated that plaintiff
"presents with what sound[ed] like a two- to three-week lower respiratory course without fever but
with a nonproductive cough, progressive dyspnea with exertion, and now dyspneic at rest."
Her discharge summary, produced on May 25, indicated that plaintiff "came to [the hospital]
complaining of shortness of breath that [had] not been getting better. She [had] been having difficulty
sleeping at night and she [had] also been complaining of a nonproductive cough which started
approximately three weeks [prior to her hospitalization]. Her breathing [had] been getting
progressively worse."
The records in total indicate that plaintiff was treated for pneumonia.
In her testimony, plaintiff said (through an interpreter) that her condition worsened just before
she went to the hospital on May 7 (and in the days after she visited a doctor) and that she went to the
hospital emergency room because she "had a high fever." She denied having had any difficulty
sleeping the night before she went to the hospital. When asked whether she experienced difficulty
breathing before she went to the hospital, plaintiff stated that "when she got up she felt like she was
going to fall." When asked to clarify when her symptoms began, in light of medical records saying
that she had experienced shortness of breath two to three weeks before she went to the hospital,
plaintiff answered that "it's been three months," and, in response to a follow-up question, she agreed
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that she was referring to three months before she went to the hospital. When asked if she had sought
medical attention before she went to the hospital, she said that she went to the doctor "like two, three
weeks before" she went to the hospital. (Earlier in her testimony, she had indicated that she had seen
the doctor a few days, not weeks, before her hospital admission.) Plaintiff explained that she had
initially attributed her cough to a minor cold, and she agreed that she eventually went to the hospital
when the symptoms worsened to the point that she could not tolerate them and realized she was
suffering from something more than a cold.
The Department's client-assessment unit initially denied plaintiff benefits because plaintiff's
cough had begun three weeks prior to her hospitalization and progressed thereafter and, thus, "did
not occur suddenly and unexpectedly." In a second decision, the client-assessment unit stated that
plaintiff's "symptoms had been present x 3 weeks prior to her admission [and] she could have likely
been seen by her doctor *** before this [hospitalization] [a]dmission [and] a sudden acute life
threatening condition was not demonstrated on admission. Therefore emergent need [was] not met."1
In a third decision, the client-assessment unit noted that the records indicated that plaintiff's symptoms
had progressed over three weeks before worsening and causing her to visit the hospital. Thus, the
client-assessment unit again concluded that plaintiff's condition was "[n]ot emergent ***, sudden
occurrence of condition is not noted." Plaintiff continued to pursue benefits and eventually obtained
the Department decision she now appeals. (Her testimony was taken after the client-assessment unit
1 When the client-assessment unit criticized plaintiff for not having visited a doctor prior to her
hospitalization, it apparently overlooked the portions of her medical records indicating that she had
in fact visited a doctor in the days before her hospitalization.
-5- No. 2--09--0581
decisions but before the Department decision.) That Department decision held as follows, in pertinent
part:
"In order to receive Emergency Medical Assistance, an ineligible non citizen must have a
medical condition that occurs suddenly and unexpectedly. The record shows that [plaintiff]
had been experiencing a progression of symptoms for at least three weeks before she sought
treatment at the hospital. Accordingly, the record shows [plaintiff's] medical condition did
not occur suddenly and unexpectedly *** in order to be eligible for Emergency Medical
Assistance. Accordingly, the decision of [the client-assessment unit] that [plaintiff] was not
eligible for Emergency Medical Assistance will be upheld."
On administrative review, the circuit court noted the discrepancies in plaintiff's medical
records regarding the timing and nature of her symptoms but upheld the Department's decision, on
the ground that the record "as a whole" supported the Department's ruling that her condition had not
occurred suddenly and thus the Department's ruling was not clearly erroneous. Plaintiff timely
appeals.
As the parties observe, the Department is an administrative agency, and, therefore, judicial
review of its decisions is governed by the Administrative Review Law (735 ILCS 5/3--101 et seq.
(West 2008)). The subject of our review is the agency's final determination, not that of the circuit
court (Vincent v. Department of Human Services, 392 Ill. App. 3d 88, 93 (2009)), and our review
extends to all questions of law and fact presented in the administrative record (735 ILCS 5/3--110
(West 2008)). For any given issue, our standard of review, which embodies the level of deference
we afford the agency on that issue, depends on whether the issue is one of fact, one of law, or a
mixed question of law and fact within the agency's area of expertise. AFM Messenger Service, Inc.
-6- No. 2--09--0581
v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). A reviewing court affords to
an agency no deference on questions of law, and it will therefore consider de novo any legal issues
raised in an administrative appeal. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.
2d 191, 205 (1998). An administrative agency's findings of fact, on the other hand, are deemed to
be prima facie true and correct and will not be upset unless they are against the manifest weight of
the evidence. City of Belvidere, 181 Ill. 2d at 204, citing 735 ILCS 5/3--110 (West 1994). An
agency's resolutions of mixed questions of law and fact--those issues for which the historical facts are
established and the rule of law undisputed, so that the only question is whether the facts satisfy a
statutory standard or whether as applied to the facts the rule of law is violated--will not be overturned
on review unless clearly erroneous. AFM Messenger, 198 Ill. 2d at 391. The supreme court adopted
this "clearly erroneous" standard of review, and this "mixed question of law and fact" category, in
order to allow deference to agencies on matters within their expertise when review otherwise would
have been de novo. See City of Belvidere, 181 Ill. 2d at 205 ("we find that the applicable standard
of review should be between a manifest weight of the evidence standard and a de novo standard so
as to provide some deference to the Board's experience and expertise").
The current case raises a question of law regarding what legal standard governs plaintiff's
entitlement to benefits, factual questions regarding the timing and nature of her symptoms, and a
mixed question of whether, given the resolution of the legal and factual questions, she met the legal
standard.
We begin with the legal issue. In 1965, title XIX of the Social Security Act (42 U.S.C.
§§1396 through 1396v (1994)) established Medicaid, "a federal program that provides health care
funding for needy persons through cost-sharing with states electing to participate in the program."
-7- No. 2--09--0581
Greenery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226, 227 (2d Cir. 1998). To participate
in the federal Medicaid program, states must "abide by federal statutory law governing Medicaid
reimbursement" or "risk losing Medicaid reimbursement from the federal government for that
payment." Diaz v. Division of Social Services, 360 N.C. 384, 386, 628 S.E.2d 1,3 (2006).
When it was passed in 1965, the Medicaid statute was silent as to whether it provided benefits
to undocumented aliens. Lewis v. Thompson, 252 F.3d 567, 571 (2d Cir. 2001). However, in 1986,
in response to a federal court ruling that denial of Medicaid coverage to an illegal alien violated the
Medicaid statute (see Lewis v. Gross, 663 F. Supp. 1164 (E.D.N.Y. 1986)), Congress incorporated
restrictions on benefits to aliens, via the Omnibus Budget Reconciliation Act of 1986 (OBRA 1986)
(Pub. L. No. 99--509, 100 Stat. 1874 (1986)). See Lewis, 252 F.3d at 573-74. Pursuant to OBRA
1986, the Medicaid statute now provides, with two exceptions, that "no payment may be made to a
State [under Medicaid] for medical assistance furnished to an alien who is not lawfully admitted for
permanent residence or otherwise permanently residing in the United States under color of law." 42
U.S.C. §1396b(v)(1) (2006). The policy underlying this provision of OBRA 1986 has been explained
as attempting to serve both " 'a compelling government interest to remove the incentive for illegal
immigration provided by the availability of public benefits' " (Diaz, 360 N.C. at 390, 628 S.E.2d at
5, quoting 8 U.S.C. §1601(6) (2000)) and "the clear purpose *** to make government more cost-
effective" (Lewis, 252 F.3d at 576). The parties agree that plaintiff was an alien not lawfully admitted
for permanent residence in the United States, so that the above provision prohibits her from receiving
benefits unless one of its exceptions applies.
The first exception to the above provision, that it does not apply to children and pregnant
women lawfully residing in the United States (Pub. L. No. 111--3, 2009 U.S.C.C.A.N. (123 Stat.)
-8- No. 2--09--0581
56 (to be codified at 42 U.S.C. §1396b(v)(4))), is not relevant here. The second exception provides
as follows:
"(2) Payment shall be made under this section for care and services that are furnished
to an alien *** only if--
(A) such care and services are necessary for the treatment of an emergency
medical condition of the alien,
(B) such alien otherwise meets the eligibility requirements for medical
assistance under the State plan approved under this subchapter ***, and
(C) such care and services are not related to an organ transplant procedure.
(3) For purposes of this subsection, the term 'emergency medical condition' means a
medical condition (including emergency labor and delivery) manifesting itself by acute
symptoms of sufficient severity (including severe pain) such that the absence of immediate
medical attention could reasonably be expected to result in--
(A) placing the patient's health in serious jeopardy,
(B) serious impairment to bodily functions, or
(C) serious dysfunction of any bodily organ or part." 42 U.S.C. §§
1396b(v)(2), (v)(3) (2006).
The corollary federal and Illinois regulations contain similar provisions, albeit both with the addition
of the phrase "sudden onset." The federal regulation provides as follows:
"(c) *** [A]liens who are not lawfully admitted for permanent residence in the United
States or permanently residing in the United States under the color of law must receive the
services necessary to treat the condition defined in paragraph (1) of this section if--
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(1) The alien has, after sudden onset, a medical condition (including
emergency labor and delivery) manifesting itself by acute symptoms of sufficient
severity (including severe pain) such that the absence of immediate medical attention
could reasonably be expected to result in:
(I) Placing the patient's health in serious jeopardy;
(ii) Serious impairment to bodily functions; or
(iii) Serious dysfunction of any bodily organ or part, and
(2) The alien otherwise meets the requirements [contained elsewhere in the
federal regulations]." 42 C.F.R. §440.255(c) (2006).
The Illinois regulation provides as follows:
"Notwithstanding [the regulation's general ban on assistance to non-citizens], any non-
citizen is eligible for medical assistance if the non-citizen otherwise meets the income, asset
and categorical requirements of the medical assistance program and is in need of emergency
services required after the sudden onset of a medical condition (including labor and delivery)
manifesting itself by acute symptoms of sufficient severity (including severe pain) that the
absence of immediate medical attention could reasonably be expected to result in:
A) placing the non-citizen's health in serious jeopardy;
B) serious impairments of bodily functions; or
C) serious dysfunction of any organ or part (42 USC [§]1396[b](v)." 89 Ill.
Adm. Code §120.310(b)(3), amended at 29 Ill. Reg. 939, 14939, 14956, eff.
September 20, 2005.
-10- No. 2--09--0581
The parties agree that the only explicit basis for the Department's decision was its finding that
plaintiff's condition did not satisfy the "sudden onset" requirement contained in the federal and Illinois
regulations. Therefore, in order to gauge the propriety of the Department's decision, we will consider
only the "sudden onset" requirement from the above regulations, and not the remaining requirements
for eligibility.
In order to settle the parties' dispute regarding the "sudden onset" requirement, we must first
interpret the meaning of the phrase. The parties agree that the limited case law interpreting OBRA
1986 does not address the "sudden onset" requirement but instead addresses the duration of treatment
covered for admittedly emergency conditions or addresses other components of the definition of
"emergency medical condition." See Greenery Rehabilitation Group, Inc. v. Hammon, 893 F. Supp.
1195 (N.D.N.Y. 1995), rev'd, 150 F.3d 226 (7th Cir. 1998) (ongoing care of chronic conditions does
not qualify for coverage); Scottsdale Healthcare, Inc. v. Arizona Health Care Cost Containment
System Administration, 206 Ariz. 1, 75 P.3d 91 (2003) (same); Mercy Healthcare Arizona, Inc. v.
Arizona Health Care Cost Containment System, 181 Ariz. 95, 887 P.2d 625 (App. 1994) (coverage
continues after stabilization, until patient no longer requires immediate care to avoid serious harm);
Szewczyk v. Department of Social Services, 77 Conn. App. 38, 822 A.2d 957 (2003), rev'd, 275
Conn. 464, 881 A.2d 259 (2005) (same); Diaz v. Division of Social Services, 166 N.C. App. 209, 600
S.E.2d 877 (2004), rev'd, 360 N.C. 384, 628 S.E.2d 1 (2006) (medical emergency ends when
patient's condition is stabilized); Medina v. Division of Social Services, 165 N.C. App. 502, 598
S.E.2d 707 (2004) (continued care is covered so long as patient's condition manifests itself by acute
symptoms and immediate medical treatment is required to prevent serious harm); Luna v. Division
of Social Services, 162 N.C. App. 1, 589 S.E.2d 917 (2004) (same); see also Quiceno v. Department
-11- No. 2--09--0581
of Social Services, 45 Conn. Supp. 580, 728 A.2d 553 (Super. Ct. 1999) (ongoing treatment of
chronic conditions not covered); Norwood Hospital v. Commissioner of Public Welfare, 417 Mass.
54, 627 N.E.2d 914 (1994) (no coverage for chronic condition where there was no immediate danger
of serious harm). Accordingly, while we have consulted those cases for useful background on OBRA
1986 and related laws, we must independently undertake the task of interpreting the phrase "sudden
onset" in the current context.
As we note above, the federal and Illinois regulations include the phrase "sudden onset" to
define the type of "emergency medical conditions" for which Medicaid covers treatment for
undocumented aliens, but OBRA 1986 does not. We must therefore interpret the regulations.2 A
court will interpret an administrative regulation in the same manner as it would interpret a statute.
First National Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 476 (7th Cir. 1999); Union
Electric Co. v. Department of Revenue, 136 Ill. 2d 385, 391 (1990). Thus, our primary aim is to give
effect to the drafters' intent, and the best indicator of that intent is the regulations' language, given
its plain and ordinary meaning. Nolan v. Hillard, 309 Ill. App. 3d 129, 143 (1999); see Ioffe v.
Skokie Motor Sales, Inc., 414 F.3d 708, 710-11 (7th Cir. 2005) (inquiry into meaning of statute and
regulation must begin by reviewing their plain language).
The import of the phrase "sudden onset" is not immediately clear from the plain language of
the regulations. The word "sudden" can refer, among other things, to "an unexpected occurrence"
2 Because there is no appreciable difference between the federal and Illinois regulations' use
of the phrase "sudden onset," and because the Illinois regulation must in any event follow the federal
law in order for Illinois to qualify for Medicaid reimbursement, we draw no distinction between the
federal and state regulations for purposes of our interpretation.
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or emergency, or a happening "without previous notice." Webster's Third New International
Dictionary 2284 (1986). Under this definition, the phrase "sudden onset" adds a restriction to the
type of "emergency medical conditions" for which Medicaid covers treatment. See Arizona Health
Care Cost Containment System Administration v. Carondelet Health System, 188 Ariz. 266, 270, 935
P.2d 844, 848 (App. 1997) (explaining that a state regulation that added a "sudden onset"
requirement to a state statute providing benefits for "emergency medical care" restricted the meaning
of "emergency medical care").
Such an interpretation would violate the rule that a court avoid reading regulations in a way
that brings them into conflict with statutory or constitutional law. Robbins v. Bentsen, 41 F.3d 1195,
1198-99 (7th Cir. 1994); Northern Illinois Automotive Wreckers & Rebuilders Ass'n v. Dixon, 75
Ill. 2d 53, 59-60 (1979). An administrative agency delegated rulemaking authority has no power to
make law, but instead is limited to creating rules to effectuate the will of the legislature as expressed
in the relevant statute. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 47 L. Ed. 2d 668, 688,
96 S. Ct. 1375, 1391 (1976); Dixon, 75 Ill. 2d at 60 ("a statute may not be altered or added to by the
exercise of a power to make rules thereunder"); Peerless Wholesale Liquors, Inc. v. Illinois Liquor
Control Comm'n, 296 Ill. App. 3d 230, 235 (1998) ("Administrative rules cannot be read to limit or
extend the scope of a statute"). Here, the OBRA 1986 statute, which the regulations were
promulgated to implement, requires that "[p]ayment shall be made *** for care and services that are
furnished to an alien *** if *** such care and services are necessary for the treatment of an
emergency medical condition of the alien." 42 U.S.C. §1396b(v)(2)(A) (2006). OBRA 1986
contains no limitation that the emergency medical condition must also have had a "sudden onset."
OBRA 1986 also provides a specific definition of the phrase "emergency medical condition" (42
-13- No. 2--09--0581
U.S.C. §1396b(v)(3) (2006)), and that definition does not include any requirement that the condition
have had a "sudden onset." Both the federal and the Illinois regulations repeat and incorporate the
OBRA 1986 definition of "emergency medical condition," but both also add just before that definition
that the "medical condition" covered must also have had a "sudden onset." See 42 C.F.R.
§440.255(c) (2006) (beginning the exception by stating, "[t]he alien has, after sudden onset, a medical
condition," before repeating the Medicaid statute's definition of an emergency medical condition); 89
Ill. Adm. Code §120.310(b), amended at 29 Ill. Reg. 14939, 14956, eff. September 20, 2005 (same).
The maxim that, where possible, a court must interpret a regulation to be valid and not to conflict
with statutory law dictates that we not interpret the regulations' use of the phrase "sudden onset" as
adding a limitation on Medicaid benefits not contained in OBRA 1986.
On the other hand, we could avoid this problem by interpreting the phrase "sudden onset" as
redundant with Medicaid's requirement that the treatment for which reimbursement is sought be for
an "emergency medical condition" whose symptoms are "acute." See Greenery, 150 F.3d at 232
(reasoning that the term "emergency" denotes a " 'sudden' " event and that the term "acute" describes
a symptom with " 'a sudden onset' "), quoting Webster's Third New International Dictionary 23, 741
(1981); Szewczyk v. Department of Social Services, 275 Conn. 464, 511, 881 A.2d 259, 288 (2005)
(Sullivan, C.J., joined by Zarella, J., dissenting) ("[t]he injury is acute in the sense that it was of
sudden onset and is severe"); see also Webster's Third New International Dictionary 23 (1986)
(defining "acute" as a medical term used to describe a condition with "sharpness or severity" or
having "a sudden onset, sharp rise, and short course"). This solution, however, carries its own
problem: it requires that we violate the maxim that a court should avoid interpreting statutory or
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regulatory language in a way that renders it superfluous. Gillespie v. Trans Union, LLC, 433 F.
Supp. 2d 908, 913 (N.D. Ill. 2006); Gaston v. CHAC, Inc., 375 Ill. App. 3d 16, 45 (2007).
Based on the above discussion, we conclude that the regulations' plain language is ambiguous
on the proper interpretation to be accorded the phrase "sudden onset," and we continue our
interpretation by consulting the relevant legislative and regulatory history. That history provides a
very clear picture of the intent underlying the inclusion of the "sudden onset" phrase in the
regulations.
The federal Department of Health and Human Services added the "sudden onset" requirement
to the federal regulations in 1990, in order to implement changes made by OBRA 1986. See 55 Fed.
Reg. 36813 (September 7, 1990) (to be codified at 42 C.F.R. pt. 435, 436, 440). When the rules
were published, in response to comments that "the definition of emergency medical condition should
be expanded and more precisely defined," the Department of Health and Human Services stated as
follows:
"[W]e have revised the definition of emergency medical services to say that 'after the sudden
onset of a medical condition ***.' This change will make the definition of emergency services
consistent with the definition already in use in the Medicaid program at 42 C.F.R.
447.53(b)(4) and with the definition contained in section 1867(e)(1) of the [Social Security
Act], relating to hospital emergency departments['] inappropriate failure to treat certain
patients (the anti-dumping provision)." 55 Fed. Reg. 36816 (September 7, 1990) (to be
codified at 42 C.F.R. pt. 435, 436, 440).
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This passage indicates that the phrase "sudden onset" was added to the federal regulations in
order to mirror two laws separate from, but related to, the OBRA 1986 provisions for treatment of
undocumented aliens. We therefore examine both of those laws.
We first examine section 1867 of the Social Security Act, codified at 42 U.S.C. §1395dd and
better known as the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA
prohibits hospitals from rejecting patients suffering from emergency medical conditions without first
stabilizing or transferring the patients. See 42 U.S.C. §1395dd(b) (2006). Save for inconsequential
variations in punctuation and the nomenclature used to identify the patient, EMTALA's definition of
the phrase "emergency medical condition" is precisely the same as that contained in the Medicaid
statute's undocumented-alien provisions. See 42 U.S.C. §1395dd(e)(1) (2006). EMTALA's
definition of "emergency medical condition" contains no qualifier that the condition must have had
a "sudden onset." Thus, despite the statement from the Department of Health and Human Services,
EMTALA cannot have inspired its inclusion of the phrase "sudden onset" in the federal regulation
at issue here.
The second law cited by the Department of Health and Human Services, 42 C.F.R.
§447.53(b)(4), is a regulation promulgated to implement 42 U.S.C. §1396o, a section of the Medicaid
statute governing cost-sharing charges for certain patients. See Pharmaceutical Society of the State
of New York v. New York State Department of Social Services, 50 F.3d 1168, 1170 (2d Cir. 1995)
(citing both). 42 C.F.R. §447.53(b)(4) (hereinafter, the Cost Sharing Regulation) does indeed use
the phrase "sudden onset." In fact, the Cost Sharing Regulation uses precisely the same language as
the federal regulation now at issue:
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"Emergency services. Services provided in a hospital, clinic, office, or other facility
that is equipped to furnish the required care, after the sudden onset of a medical condition
manifesting itself by acute symptoms of sufficient severity (including severe pain) that the
absence of immediate medical attention could reasonably be expected to result in--
(ii) Serious impairments to bodily functions; or
(iii) Serious dysfunction of any bodily organ or part." (Emphases added.) 42
C.F.R. §447.53(b)(4) (2006).
Thus, it appears that the Cost Sharing Regulation served as the model for the regulation we now
interpret, 42 C.F.R. §440.255(c). This revelation raises two important points.
First, as we have said, the Cost Sharing Regulation was promulgated to implement 42 U.S.C.
§1396o. That statute provides no definition of the phrase "emergency services"; instead, it expressly
states that the phrase "emergency services" is to be "defined by the Secretary" (i.e., defined by an
agency and not the legislature). 42 U.S.C. §1396o(a)(2)(D) (2006). Here, on the other hand, the
relevant statute fully defines the phrase "emergency medical condition" and explicitly states that
coverage shall extend for the care of such conditions. Thus, a "sudden onset" requirement that may
have been appropriate (and consistent with the enabling statute) in the context of the Cost Sharing
Regulation is not necessarily so in the context of section 440.255(c).3
3 After we directed the parties to be prepared to discuss at oral argument the legislative and
administrative history informing this case, the Department filed a motion for leave to cite Chevron,
U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 703,
104 S. Ct. 2778, 2782 (1984), as additional authority, for the proposition that, "if [a] statute is silent
-17- No. 2--09--0581
Second, the Cost Sharing Regulation was promulgated in 1985 (see 50 Fed. Reg. 23009 (May
30, 1985) (to be codified at 42 C.F.R. pt. 431, 447)), before Congress passed EMTALA in 1986 (see
Pub. L. 99--272 §9121(b), 100 Stat. 164, 165 (1986)). "[EMTALA's] definition of emergency
medical condition contained language substantially similar to the language of [the Cost Sharing
Regulation], with the exception that the statute did not list the facilities at which emergency medical
services must be provided or include a sudden onset requirement." Szewczyk, 275 Conn. at 495-96,
881 A.2d at 279 (Sullivan, C.J., joined by Zarella, J., dissenting). We cannot attribute to inadvertence
Congress's decision to exclude specifically from EMTALA the "sudden onset" requirement when it
otherwise adopted virtually wholesale the remainder of the Cost Sharing Regulation. Rather, we
must conclude that when Congress specifically excised "sudden onset" from regulatory language it
otherwise adopted unchanged, it intended that "sudden onset" not be made a requirement for a
condition to qualify as an "emergency medical condition" under EMTALA. The amendment to the
Medicaid statute excluding undocumented aliens was passed after EMTALA and, as we have stated,
uses EMTALA's definition of "emergency medical condition." When it copied EMTALA's definition
of "emergency medical condition," Congress necessarily repeated its implicit rejection of the "sudden
onset" language.
or ambiguous with respect to [a] specific issue," a court should defer to an agency's interpretation of
the statute, so long as that interpretation is reasonable. We hereby allow the motion to cite additional
authority, but we decline to apply so-called Chevron deference to the statute and regulations at issue
here because Congress did not leave vague or ambiguous its definition of "emergency medical
condition." It specifically provided a definition of the term without the qualifier the regulations
added.
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Thus, the legislative history and the history behind section 440.255(c), the federal regulation
now at issue, indicate (1) that Congress intended to exclude from the Medicaid statute's definition
of "emergency medical conditions" the Cost Sharing Regulation's "sudden onset" limitation, and (2)
that the "sudden onset" requirement was added to section 440.255(c) to include the Cost Sharing
Regulation's "sudden onset" limitation. Accordingly, although we have a duty to construe a
regulation as consistent with the law wherever possible, we must conclude that such a construction
is not possible here. Based on the history underlying section 440.255(c), we conclude that its
"sudden onset" requirement improperly restricts and contravenes the Medicaid statute, and we
therefore cannot enforce it.
In so holding, we observe that the Department objects to any reliance on EMTALA to
interpret OBRA 1986, because, according to the Department, the purpose underlying EMTALA
(preventing patient "dumping" by hospitals) differs from those underlying OBRA 1986 (to save costs
and discourage illegal immigration). We further note that the level of care mandated under EMTALA
might differ from that mandated under OBRA 1986: EMTALA requires only that a patient's
emergency medical condition be "stabilize[d]" (42 U.S.C. §1395dd(b)(1) (2006)), while OBRA 1986
requires that an undocumented alien receive coverage for "treatment" of an emergency medical
condition (42 U.S.C. §1396b(v)(2)(A) (2006)). See Scottsdale Healthcare, Inc., 206 Ariz. at 7 n.6,
75 P.3d at 97 n.6 (contrasting the dictates of EMTALA with OBRA 1986). However, while these
differences between EMTALA and OBRA 1986 might be instructive in other contexts (such as the
question of the extent and duration of treatment covered under either law), it does not alter the fact
that the legislative history underlying OBRA 1986 includes EMTALA and excludes the phrase
"sudden onset."
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At oral argument, the Department added the argument that we should rely on the principle
of legislative acquiescence to uphold the regulations' "sudden onset" requirement. The principle of
acquiescence, described by our supreme court as a " 'weak reed on which to base a determination of
*** drafters' intent' " (People v. Marker, 233 Ill. 2d 158, 175 (2009), quoting People v. Marker, 382
Ill. App. 3d 464, 490 (2008) (O'Malley, J., dissenting)), holds that, where judicial interpretation of
a statute has not evoked an amendment to the statute, the drafters are presumed to have acquiesced,
and thus ratified, courts' interpretation of the statute (Marker, 233 Ill. 2d at 178, citing People v.
Downs, 371 Ill. App. 3d 1187, 1191 (2007)). According to the Department, the fact that the
regulations' "sudden onset" requirement has long persisted without any correction from Congress
indicates that Congress has acquiesced to the requirement. The difficulty with the Department's
theory is that, by the Department's own admission, there is no case law addressing the propriety of
the "sudden onset" requirement, much less any case law endorsing it. Thus, Congress has been
presented with no judicial rulings in which to acquiesce.
Even though it acknowledges that Congress has seen no case law directly on point, the
Department argues that the Second Circuit's decision in Greenery, although directed at a different
point, relied on the assumption that a "sudden onset" requirement was included in the Medicaid
statute. We agree with the Department's reading of Greenery as assuming a "sudden onset"
requirement to be a part of the Medicaid statute, but we disagree with the Department's conclusion
that that assumption, coupled with Congress' failure to respond, is sufficient to trigger the principle
of legislative acquiescence.
As we say above, Greenery is among the several decisions that struggled to determine whether
section 1396b(v)(3) covers treatment for chronic or ongoing conditions; the parties assumed that the
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patients' treatment was covered upon their initial hospitalization. Greenery, 150 F.3d at 231 ("The
question is simply whether chronic debilitating conditions that result from sudden and serious injuries
*** are 'emergency medical conditions' as provided under §1396b(v)(3)"). The Second Circuit
reasoned that treatment for chronic conditions was not covered, because the phrases "emergency
medical condition" and "acute" "unambiguously convey[ed] the meaning that emergency medical
conditions are sudden, severe and short-lived physical injuries or illnesses that require immediate
treatment to prevent further harm." Greenery, 150 F.3d at 232. Although the Second Circuit
included suddenness among the components of its definition of "emergency medical conditions," it
did not focus, or rely, on any suddenness requirement; it instead relied on the "short-lived" and
"immediate medical treatment" components of its definition to reach its holding that ongoing
treatment for chronic conditions is not covered. We do not construe this mention of suddenness,
which the Second Circuit neither extrapolated nor relied on, to be the type of judicial statement that
would precipitate a reaction from Congress regarding the "sudden onset" requirement contained in
the Medicaid regulation. We therefore reject the Department's contention that the principle of
acquiescence dictates that we uphold the "sudden onset" requirement contained in the regulation.4
4 Further, based on the legislative and regulatory history we discuss above, we disagree with
the Greenery court's conclusion that Congress meant the terms "emergency medical condition" and
"acute" to require that the onset of a condition covered by Medicaid be "sudden." If Congress indeed
intended to require that a condition be sudden in order for its treatment to be covered under section
1396b(v)(3), it would not have excised the "sudden onset" language from the language it otherwise
adopted in section 1396b(v)(3).
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Because we conclude that we cannot enforce any "sudden onset" requirement related to
OBRA 1986, we also conclude that the Department employed an incorrect legal standard when it
rejected plaintiff's claim due to her failure to meet a "sudden onset" requirement. The question
remains whether plaintiff's condition otherwise qualified as an "emergency medical condition." The
Department's findings of fact, which were directed entirely at the "sudden onset" requirement, do not
address this issue. Likewise, the Department's application of law to the facts was based on the
improper "sudden onset" requirement and did not address whether plaintiff's condition otherwise
qualified as an "emergency medical condition." We therefore have no basis on which to affirm the
Department's decision. Indeed, in its brief, the Department does not urge any basis to affirm other
than the "sudden onset" requirement we have held to be improper.
In sum, the "sudden onset" requirement was the exclusive basis for the Department's decision.
It entered no findings on any of the other possible bases for denying plaintiff's claim, and it of course
has had no opportunity to apply the correct legal standard (with no "sudden onset" requirement) to
the facts of this case. We therefore vacate the Department's decision and remand the case for
consideration under the legal standard articulated herein.
Vacated and remanded with directions.
JORGENSEN and HUDSON, JJ., concur.
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