Monday, June 4, 2012
Late last week, the Illinois Legislature enacted a new law setting specific standards for nonprofit hospitals seeking property tax (and sales tax) exemptions. The new law, SB2194 (the tax exemption provisions begin on page 48 of the PDF file linked above), essentially requires nonprofit hospitals to provide unreimbursed services to the poor or government entities in an amount at least equal to the property tax that would have been assessed on the hospital's property in order to retain exempt status. For-profit hospitals would get a property-tax credit for the value of such services.
The new law is a response to the Illinois Supreme Court's decision in the Provena Covenant hospital exemption case, which we have previously blogged about a number of times (key posts are here and here). In that case, a plurality of the court held that Provena Covenant hospital in Urbana, Il failed to provide sufficient charity care to qualify for property tax exemption, although the court declined to set a specific standard for how much charity care would be enough. The resulting uncertainty created a mess, and this legislation was designed to end the uncertainty.
While I'm not going to attempt a detailed dissection of the legislation in this blog post, I do want to comment on a few items. The first is that while the bill does retreat a bit from the classic community benefit formulation of tax exemption for nonprofit hospitals in that it focuses on the unreimbursed costs of services to the poor or underserved populations as the only things that "count" for tax exemption purposes, the breadth of the definition of those services is very wide indeed. In addition to classic charity care (not charging charity patients at all or heavily discounting their services), Medicaid shortfalls count, as do Medicare shortfalls for so-called "dual eligible" patients (e.g., Medicare-eligible patients that also meet eligibility requirements for Medicaid). Also counting in the calculation are
the portion of unreimbursed costs of the relevant hospital entity attributable to providing, paying for, or subsidizing goods, activities, or services that relieve the burden of government related to health care for low-income individuals. Such activities or services shall include, but are not limited to, providing emergency, trauma, burn, neonatal, psychiatric, rehabilitation, or other special services; providing medical education; and conducting medical research or training of health care professionals.
While the hospital in question will have to make an allocation for the above costs attributable to low-income inividuals, you can see that the "community benefit" theme still runs strongly in this legislation. So strongly, in fact, that I seriously doubt the legislation will effect any change to nonprofit hospital behavior. In fact, a hospital that "missed" its numerical target could simply cut a check to an appropriate entity (e.g., a clinic for the poor) and maintain exemption that way. And the fact the legislation was supported heavily by the hospital industry causes me to think that my "serious doubt" will prove to be reality.
I also wonder if the result of having a specific mathematical target (the property tax that would otherwise have been due) will lead over time to fewer services for the poor than more. While I certainly don't see any hospital CEO getting up in front of her Board and requesting changes in policies to reduce services for the poor (that would certainly get a headline in the Chicago Tribune, if not the New York Times!), one wonders if over time more subtle changes in policy (or lack of new policies) will result in a "remarkable accident" where hospitals all end up just meeting the statutory requirements in order to retain exemption. As I told one reporter, call me in five years and let's see what has happened.
In addition, there is some question whether the legislation is in fact constitutional. The Illinois Supreme Court had previously held in the Eden Retirement Center case that what constitutes a "charity" for property tax exemption purposes is in the first instance a constitutional matter, and therefore the legislature may not contradict the courts interpretations of charity for property tax exemption purposes. How this plays out with SB2194 is an interesting question. On the one hand, the bill does stick to defining broad concepts laid out by the Illinois Supreme Court in Provena - the concept of charity care as a broad gift to the community and the overall concept of relief of government burden as a sine qua non of property tax exemption. On the other hand, the bill curiously "overrules" some specifics of the Provena case - for example, the plurality in Provena quite clearly stated that Medicaid shortfalls do not count for tax exemption purposes, while this bill quite clearly says they do.
Finally, there is the question whether this legislation will become a model for other states. (If I were in a snarky mood, I might ask why anyone in their right mind would copy something passed by the Illinois Legislature, but as the saying goes, even a stopped clock tells the right time twice a day). The truth is that I doubt it. The issue of nonprofit hospital tax exemption has been settled in many states either by statute (e.g., New York, Pennsylvania, Texas); or prior litigation (e.g., Vermont, in the Medical Center Hospital v. Burlington case). While there are a few states where the issue may still be open, I didn't see any rush by state departments of revenue or local county assessment boards to copy the Provena analysis, and I similarly doubt there will be much interest in the Illinois solution to the Provena case.