by Jay Gerzog, Dale Van Demark, Tamar Rosenberg, and Dawn Welch

Is it possible that the U.S. Department of the Treasury (“Treasury”) knows something we do not about the pending U.S. Supreme Court decision on PPACA?

Probably not, but that has not stopped the Treasury and Internal Revenue Service (“IRS”) from issuing proposed regulations on June 26, 2012, with respect to three of the four new requirements for tax exemption of hospitals imposed by PPACA.

With the adoption of PPACA, Congress took its first concrete step toward toughening the standard for tax exemption in decades. For many years, members of Congress have questioned the justification for the tax exemption of hospitals, decrying the lack of a charity care mandate and pointing to commensurate levels of charity care provided by proprietary hospitals.

In PPACA, Congress vented its concerns with new requirements for tax exemption . . . which do not include a charity care mandate.

Instead, Congress created a number of operational requirements designed to protect against perceived abuses related to billing and collections, and designed to focus hospitals more intently on the health needs of the communities served. With respect to the latter, Congress mandated that hospitals conduct periodic community health needs assessments and adopt strategies to address those needs. In July 2011, the Treasury and IRS issued Notice 2011-52 (2011-30 IRB 60) (July 8, 2011), identifying approaches to the community health needs assessment requirement and seeking comments.

Now, the Treasury and IRS have addressed the remaining three new requirements with proposed regulations. The three new requirements are that hospitals must:

  • establish written financial assistance policies and emergency medical care policies;
  • limit the amounts charged for emergency and other medically necessary care provided to individuals eligible for assistance under financial assistance policies to no more than the amounts generally billed to individuals who have insurance coverage for such care; and
  • make reasonable efforts to determine whether an individual is eligible for financial assistance before engaging in “extraordinary collection actions.”

The proposed regulations provide some useful insight into the direction that the government is headed with respect to these requirements. In particular, the proposed regulations provide definitions for “extraordinary collection actions” and suggest solutions to some interesting questions, such as the application of the requirements to multi-hospital systems.

The proposed regulations also request comments or reserve judgment in a number of areas, including the consequences of failing to comply with the requirements and whether certain actions should be considered “extraordinary collection actions.”

Let’s wait to see what happens with the Supreme Court’s ruling on whether these regulations will even be applicable.