Illinois hospital not charitable enough to merit tax exemption

A recent Illinois Supreme Court decision could set in motion new standards for hospital charity care requirements.

In a case that caught national attention, the high court upheld the revocation of Provena Covenant Medical Center's property tax exemption status after finding that the nonprofit facility did not provide enough charity care in 2002 to qualify for its $1.1 million tax break.

"Both the number of uninsured patients receiving free or discounted care and the dollar value of the care they received were [minimal]," the court said. Rather than charity care being its primary purpose, "with very little exception, the property was devoted to the care and treatment of patients in exchange for compensation through private insurance, Medicare and Medicaid," or other fee-based sources.

The March 18 ruling affirmed a 2003 decision by a local tax review board to deny Provena's tax exemption status after learning that the Catholic hospital's charity services amounted to less than 1% of its 2002 total revenues.

Hospital charity care practices have become the subject of increased scrutiny at the state and federal levels. But legal experts and hospital executives said the ruling sets the bar high at a time when hospitals can least afford it.

While Illinois law requires hospitals to show that they are being used for charitable purposes, it does not spell out specific levels of charity care, said Elizabeth M. Mills, a health care attorney with Proskauer Rose LLP in Chicago.

According to the opinion, hospitals likely would have to show that a majority of their care was charity care, "and that's a fairly drastic approach," she said. "There are very few hospitals that can meet that standard or raise enough contributions to be supported that way, because most are supported by payments from other payers so they can provide charity care to those who can't pay."

Provena insists it is a charitable organization, noting that the hospital provided more than $38 million in free care and other benefits in 2008.

"We can only hope this troubling ruling prompts a dialogue among hospitals and elected officials ... about not only how we define charity care, but also how we better ensure that the people who need financial assistance get it," Provena President and CEO David Bertauski said.

But Illinois Attorney General Lisa Madigan, who represented the state Dept. of Revenue in the case, said the decision helps ensure hospital accountability, calling it good news for the nearly 2 million uninsured in the state.

Justices did not dispute that Provena offered treatment to all who requested it, regardless of their ability to pay. But in addition to deriving its revenues mainly from fee-for-service payments, the court took issue with certain obstacles the hospital created for indigent patients, rather than making charity care freely available. For example:

• Provena did not advertise the availability of charity care.
• Patients were routinely billed, and unpaid bills automatically were referred to collection agencies.
• Hospital charges were discounted only after patients proved that they qualified for charitable programs.

"As a practical matter, there was little to distinguish the way in which [Provena] dispensed its 'charity' from the way in which a for-profit institution would write off bad debt," the court said.

But dissenting justices objected to the use of certain quantitative factors -- such as the number of uninsured patients treated and value of such uncompensated care -- in evaluating hospitals' charitable status. State law did not set out such thresholds, and nor should the courts, the dissenting opinion states.

Because levels of uncompensated care constantly change, "it's an impractical standard, because the same organization's tax status could change year to year," said Chicago health care regulatory lawyer Daniel J. Lawler, a partner with K&L Gates.

While such cases are fact-specific, the court ruling could lead to more challenges, Lawler added.

U.S. Sen. Charles Grassley (R, Iowa), the ranking Republican on the Senate Finance Committee, pledged to continue his efforts to investigate hospitals' charity care practices and develop uniform tax reporting standards.

"This ruling underscores what the Government Accountability Office and others, including the former IRS commissioner, have said for a long time. There is often no discernible difference between the operations of taxable and tax-exempt hospitals," Grassley said. "Tax-exempt hospitals should give more attention to their charitable activities."

The federal health reform law includes new income tax exemption requirements for hospitals that could guide the process, health care attorney Mills said. Hospitals are required, for example, to have a charity care policy in place, avoid extreme collection actions and provide a community needs assessment.

While the rules do not include specific charity care requirements, such measures are a likely next step, Mills said. "The problem with setting minimum standards is, the minimum becomes the maximum."