New Jersey may be the first state to impose per-bed fees on nonprofit hospitals for municipal services

New Jersey lawmakers approved an unusual measure last week that requires many nonprofit hospitals to pay per-bed fees to their local governments, while preserving their increasingly contested property-tax exemptions.

The legislation, which requires hospitals to pay a fee of $3 a day for each licensed bed, is in response to a landmark 2015 New Jersey Tax Court ruling involving Morristown Medical Center that “the operation and function of nonprofit hospitals do not meet the criteria for property tax exemption” under state law. A 300-bed hospital subject to the fee would pay $328,500 a year.

The New Jersey Legislature passed a similar per-bed payment system four years ago, soon after the Morris County tax-court decision, but Gov. Chris Christie vetoed it. In the meantime, at least 40 of New Jersey’s 60 or so nonprofit hospitals have been taken to tax court. Some have reached settlements and agreed to help pay for municipal services.

Murphy’s office has not responded to emails this week requesting comment on whether he intends to sign the legislation.

Cathy Bennett, chief executive of the New Jersey Hospital Association, described the legislation as the result of cooperation by the legislature, municipalities, and the hospital industry.

“I think people realized, we can’t allow this property tax issue to spiral out of control and result in policy that would drain hospital finances, particularly now, where we’ve seen the impact to the bottom line,” Bennett said, referring to the financial hit hospitals have taken from the coronavirus pandemic. “Hospitals are operating with [negative] margins that we haven’t seen since the late ’90s,” she said.

Bennett estimated that per-bed payments, plus an additional $300 per day payments for satellite emergency departments, would total $22 million a year, including $6.9 million in southern New Jersey. Other states have assessments on hospitals, typically to help pay for care for the poor, but Bennett said she didn’t know of any other states with assessments that support municipal services.

The New Jersey League of Municipalities has urged its members to ask Murphy to veto the legislation because the “community service contribution” called for in the legislation amounts in aggregate to far less than it would be if the hospitals were taxed fairly.

The association favors a legislative fix for the problem of modern hospitals not qualifying for property tax exemption, but would prefer a complete reexamination of New Jersey’s tax-exemption law, said Frank Marshall, associate general counsel at the league.

“It hasn’t been modernized in a long time. It needs to be updated to reflect the current business practices of every industry, not just hospitals, but any other nonprofits or not-for-profits that are exempt from property taxes,” he said.

The question of whether nonprofits deserve property-tax exemptions is an increasingly contested area of the law, especially in towns that are hard-pressed to pay for services.

Qualifying as a charity under section 501(c)(3) of the federal tax code — as a religious, educational, or charitable organization, for example — is not enough to automatically receive a local property-tax exemption. A key aspect to federal nonprofit income-tax exemptions is that profits must be put back into the charitable enterprise instead of benefiting private shareholders.

All states allow nonprofits to be eligible for property-tax exemptions, but each sets its own rules for how to qualify.

In New Jersey, a 1984 Supreme Court decision established a three-part test for whether a property should be tax exempt. The owner must be organized exclusively for a tax-exempt purpose, the property must be used for that purpose, and the activities there must not be conducted for profit.

The last prong of that test tripped up Morristown Medical Center, owned by Atlantic Health System, which is based in Morristown. The hospital’s operations were too entangled with for-profit physicians groups and other for-profit subsidiaries of the hospital’s owner to meet the third requirement for property-tax exemption, Tax Court Judge Vito Bianco ruled.

“This commingling of effort and activities with for-profit entities was significant, and a substantial benefit was conferred upon for-profit entities as a result,” he wrote.

That decision, which resulted in a $15 million settlement between Morristown and the medical center to be paid over 10 years through 2025, spurred cases throughout the state.

Among the most significant cases still pending are those between Vineland and Inspira and between Plainsboro Township and Princeton Healthcare System, which the University of Pennsylvania Healthcare System acquired in 2016.

Those cases will be moot if Murphy signs the legislation, which also calls for the formation of a Nonprofit Hospital Community Service Contribution Study Commission.

Hospitals, such as AtlantiCare Regional Medical Center in Galloway Township, that already have a deal in place to help pay for municipal services, will have to pay the greater amount of the new fees or the amounts due under earlier agreements, which will be allowed to run their course.

AtlantiCare’s 2017 agreement with Galloway called for increasing per-bed payments each year through 2022. This year the amount was $274,000. The health system will have to pay more under the new system. Since 2016 AtlantiCare has been in tax litigation with Atlantic City.

It is difficult to calculate the number of beds that would be subject to the fee. The count excludes skilled nursing, psychiatric, sub-acute, and newborn beds, plus an undefined set of “acute-care beds not commissioned for use.”

The legislation carves out the 89-bed Deborah Heart & Lung Center in Browns Mills, Burlington County, from having to pay the per-bed fees. That’s because Deborah meets two requirements, involving patient billing and the value of community benefits that the hospital provides.

First, Deborah does not bill patients, but rather accepts whatever its patients’ insurance companies pay or provides charity care to those who qualify. Second, its community benefit, as calculated on its 990 tax return, amounts to more than the required 12% of expenses. Deborah’s community benefit was close to 18% in 2018, according to its tax return.

Christine Carlson-Glazer, vice president for government relations at Deborah Heart & Lung, said Browns Mills had not sued it in tax court, but Deborah still wanted to preserve its charitable mission. She said Shriners Hospitals for Children and St. Jude Children’s Research Hospital are two others that do not bill patients.

“It’s not a mission that a lot of other places embrace,” Carlson-Glazer said.