13 May 2013

UPMC and "Institutions of Purely Public Charity"

by Eric Donato, Assoc. Web Editor

          Pittsburgh Mayor Luke Ravenstahl announced on March 20 that the city would challenge the University of Pittsburgh Medical Center’s status as an “institution of purely public charity,” which renders much of the $10 billion global health system’s properties tax exempt under state law.
            UPMC’s tax savings as a result of its “purely public charity” status amount to $42 million annually, according to the Pittsburgh Post-Gazette.
The city’s move is more than a policy decision concerning what UPMC’s “fair share” of the tax burden should be. The litigation raises an issue of constitutional dimensions that has troubled Pennsylvania for decades, and has raised the question: can UPMC be taxed at all?

The Pennsylvania Constitution and “Institutions of Purely Public Charity”

© insideupmc.blogspot.com
Article VIII, Section 1 of the Pennsylvania Constitution, known as the “Uniformity Clause,” typically requires that properties located within the same territorial limits be subject to the same tax burden. The Uniformity Clause makes it difficult for state, county, and local governments to tax properties at different rates, or to provide special tax exemptions for some institutions and not others.
However, Article VIII, Section 2 permits the General Assembly to exempt “institutions of purely public charity” from taxation. UPMC is currently considered an institution of purely public charity, so the properties that it uses for charitable activities are permitted to be (and are) tax-free.
            The criteria by which an organization is judged to be a purely public charity was created by the Pennsylvania Supreme Court in the 1985 case Hospital Utilization Project (HUP) v. Commonwealth. In that case, the court crafted the 5-part “HUP” test, which demands that the institution in question:
1) advance a charitable purpose,
2) donate or render gratuitously a substantial portion of its services,
3) benefit a substantial and indefinite class of persons who are legitimate subjects of charity,
4) relieve the government of some of its burden, and
5) operate entirely free from private profit motive.
            An institution must meet all five prongs of the HUP test to qualify as a purely public charity under the Pennsylvania Constitution.
            The question of whether UPMC actually meets the HUP test, however, remains an open question.


            “It depends on how the courts decide to apply the test,” said Nicholas Cafardi, professor at Duquesne Law School and an expert on nonprofit organizations. “If they apply the test strictly, its a very difficult test to meet.”
This is particularly true with regard to the fifth prong of the test, the requirement that UPMC “operate entirely free from private profit motive.”
            UPMC’s tax exempt status has drawn heavy criticism because many of the organization’s executives receive 7-figure salaries.
            Cafardi said that while “generous executive salaries” by themselves may not be evidence of a private profit motive, “if there’s a bonus tied to performance, well, then you’re starting to look like a private business, aren’t you?”
According to IRS filings, UPMC’s CEO Jeffrey Romoff received almost $6 million in compensation for the calendar year of 2010, including bonuses tied to performance.
UPMC’s closure of its struggling Braddock facility and opening of a new facility in the wealthier Monroeville area has added fuel to claims that the organization is profit-driven, rather than charitable, in nature.
Nonetheless, UPMC is “politically powerful” Cafardi explained. “Could they convince a court that hitting them with a property tax . . . would do more harm than good? That’s not the same thing as applying the test as written. That’s just saying . . . you’re going to do this to the area, and you’re not going to do good.”
UPMC has over 55,000 employees, and is western Pennsylvania’s largest healthcare system and employer.
Cafardi suggested that the court may be swayed to “adapt legal standards” for public policy reasons, and that perhaps this was “an area where policy is a perfect reason for applying standards less than rigidly.”

A Push Toward the Bargaining Table

Cafardi said that it is possible the litigation is intended to extract an agreement from UPMC to voluntarily pay a portion of what it would otherwise owe in property taxes if the organization lost the case.
“Would this be the first time a lawsuit was filed in order to get big parties to talk to each other?” said Cafardi.
UPMC has similar PILOT (payment in lieu of taxes) agreements with Erie county and South Fayette township.
“If they can do that in Erie and they can do that in Fayette, why can’t they do that in Allegheny County?” said Cafardi.

Amending the Pennsylvania Constitution

            The General Assembly has not been content to leave the issue to the courts.
            Legislation known as Senate Bill 4, which was recently approved by the Senate and sent to the House for consideration, would amend the Pennsylvania Constitution to give the legislature the exclusive power to determine what constitutes a purely public charity.
            The state constitution may only be amended after approval by the General Assembly in two consecutive sessions and a vote by the electorate in a referendum.
            In 1997, the General Assembly attempted to wrest control over the definition of “purely public charity” from the state’s highest court by passing Act 55. The legislation provided guidance on the HUP test’s five prongs, and deliberately weakened the test to make it easier for organizations to meet the definition of a purely public charity. However, because it is the job of the judiciary (not the General Assembly) to interpret the constitution, and because the HUP test is an interpretation of the state constitution’s provision on purely public charities, a narrow majority on the high court ruled that the legislation could not weaken or otherwise redefine the test.
            Amending the Pennsylvania Constitution through Senate Bill 4 would surmount the obstacle presented by the separation of powers. Should voters approve the measure, the criteria needed to reach tax-exempt status would rest squarely with the General Assembly. The resulting definition would likely be less stringent than the current HUP test, and could potentially shield organizations like UPMC from litigtion of the sort it faces now.