In Sheep’s Clothing: United States’ Poorly Regulated Nonprofit Hospitals Undermine Health Care Access

In the United States, tens of millions of people who are uninsured or underinsured are exposed to the country’s high and rising costs of medical treatment. As a result, the US healthcare system has persistent problems with both high out-of-pocket costs for accessing health care and the indebtedness that these costs create. Together, these form sometimes insurmountable barriers to accessing health care and adversely affect people’s enjoyment of other human rights, including the rights to housing, food, and education.

A nationally representative survey conducted by the Kaiser Family Foundation in 2022 found that 41 percent of US adults had some form of outstanding debt due to medical or dental bills, while 24 percent of adults were either past due or unable to pay their health care bills at the time of the survey.

Hospital services, in particular, significantly contribute to the country’s medical debt crisis, with a March 2023 survey conducted by the Urban Institute finding that about 73 percent of adults with past-due medical debt reported owing at least some of that debt to hospitals.

However, nearly 60 percent of the more than 5,000 community hospitals across the US are privately operated nonprofits, which collectively receive public subsidies worth billions each year, largely in the form of tax exemptions, in exchange for providing “community benefits” like free or reduced-price health care. In other countries, such free or subsidized health care is the norm and widely understood as a key way that a government meets its right to health obligations. But in the US, this is tellingly referred to as “charity care.”

The US heavily relies on these privately operated nonprofit hospitals’ charity care to increase access to health care for patients who cannot pay for hospital services, such as emergency treatment, diagnostic work, and inpatient surgeries. But given the high prevalence of hospital-related medical debt in the US, this system is clearly not working.

This report documents how the US government’s lack of guidance and oversight gives private nonprofit hospitals wide discretion over how much they spend on making health care accessible for people who cannot pay, who qualifies for this assistance, and how far they will go to collect debts from patients who cannot pay their bills.

As the US government considers potential reforms to improve health care access and reduce medical debt, this report outlines how existing nonprofit hospital regulations undermine rights and explores the untenable costs of inaction.

While nonprofit hospitals have certain clear policy and reporting obligations, there are no clear federal standards defining either “community benefits” or “charity care,” allowing nonprofit hospitals to follow their own definition of these terms with little public oversight.

As a result of inadequate regulation, many nonprofit hospitals operate more like for-profit corporations, charging high fees and aggressively pursuing medical bills against people who cannot pay, including through lawsuits and selling debt to third-party debt collectors.

Media accounts and studies from across the US, compiled in Section IV below, document tens of thousands of lawsuits brought by nonprofit hospitals against patients in recent years, although the true scale of these practices is poorly understood.

Like wolves in sheep’s clothing, unscrupulous nonprofit hospitals can hide among their responsible peers, benefiting from their public perception and tax-status as charitable institutions while engaging in extractive and exploitative practices.

Many of these nonprofit hospitals also spend far less on making healthcare services accessible for people without the means to pay than the value of the public subsidies they receive. In 2020, for example, nonprofit hospitals received about $28 billion in tax benefits, but only spent about $16 billion on free or reduced-price charity care, according to the Kaiser Family Foundation.

This lack of spending on free or reduced-price care occurs despite hundreds of millions of dollars of additional tax-funded subsidies that some nonprofit hospitals receive, in addition to their valuable tax exemptions, which can cover some or even all of their charity care costs.

Despite nonprofit hospitals receiving public subsidies to support such aid, on aggregate, there seems to be little difference between how much for-profit and nonprofit hospitals spend on free and reduced-price care. For example, in 2018, a study from the National Bureau of Economic Research found that charity care accounted for only 1.5 percent of the median nonprofit hospital’s expenses, while the median for-profit hospital spent 1.4 percent of its expenses on charity care.

Not all nonprofit hospitals in the US are engaged in these practices. They are also not alone in contributing to the country’s medical debt crisis, as the practices of for-profit hospitals and private health insurance providers also warrant scrutiny. However, far too many of these ostensibly charitable institutions, which have special obligations to their communities, are failing to fund accessible health care in equal measure to the public subsidies they receive.

This report finds that, when combined with its inadequate regulation, the US model of subsidizing privately operated hospitals with tax exemptions in the hope that they will increase the accessibility of hospital care for un- and underinsured patients allows for abusive medical billing and debt collection practices and undermines human rights, including the right to health and the right to social security.

This profoundly flawed, charity-based hospital care system also impacts other rights, as the money required to access expensive hospital care or service medical debt can come at the expense of other goods and services essential to rights, such as housing, education, and food. These human rights harms also reinforce existing forms of structural discrimination, disproportionately impacting women, communities of color, and people with low incomes or disabilities.

To realize the right of everyone to enjoy the highest attainable standard of health, governments should ensure equal access to quality health care for all, regardless of a person’s ability to pay.

But the lack of federal regulation and enforcement, the structural shortcomings of this charity-based model, and the aggressive practices of hospitals that pursue medical bills against patients, including through abusive debt collection, all contribute to the failure of the US government to meet this standard.

To fulfil the right to health, the US should move away from its current, charity-dependent model of hospital services. In particular, it should consider adopting measures taken by many other high-income countries to realize the right to health through a public healthcare system that is universally accessible for all, regardless of people’s ability to pay, universal health insurance coverage, or some combination of these two.

In the short term, alongside needed reforms to the healthcare system to realize the right to health, the US government should ensure, at a minimum, that nonprofit hospitals’ charity care is, in practice, easily obtainable, and adequately inclusive and robust to reflect community need.

The Internal Revenue Service and Centers for Medicare and Medicaid Services should also adopt and amend policies to ensure that nonprofit hospitals’ community benefits and charity care provide benefits to their communities that are at least commensurate with the value of the tax exemptions these commercial actors receive.

Additionally, although the Consumer Financial Protection Bureau considers medical debt a priority and has previously written about the practices of private nonprofit hospitals, it has so far not used its enforcement capacity to improve patients’ access to these commercial entities’ services, something that should change.

Both nonprofit hospitals and third-party debt collectors should also be regulated to prohibit the seizure of people’s primary residences and imprisonment for noncompliance with civil debt proceedings. Laws and regulations should also establish strict safeguards against other abusive collection practices for medical debt.

Notwithstanding regulation, these commercial entities are also failing to meet their responsibilities to respect human rights and ensure that they do not cause or contribute to human rights abuses, including through their medical billing and debt collection practices.

The US should begin treating health care as a right, not a privilege. In the meantime, the US should ensure that the nonprofit hospitals it currently depends on to do its job of ensuring access to health care are not saddling people with debts they can never repay, just because they had the bad luck of being human and needing medical treatment.

Overarching Recommendation: The US should move away from its current, charity-dependent model of hospital services and ensure that health care is affordable to all. In particular, it should consider adopting measures taken by many other high-income countries, such as creating a public healthcare system that is universally accessible for all, regardless of people’s ability to pay, universal health insurance coverage, or some combination of these two. While building toward a rights-aligned healthcare system, US authorities should take the following steps to protect the rights of tens of millions of people who will remain exposed to the high and rising costs of hospital care in the US:

Federal Legislators

• Enact legislation to ensure that any public subsidies for healthcare providers, whether direct subsidies and indirect tax exemptions, benefit actors that actually increase access to health care for everyone, regardless of one’s ability to pay. At a minimum, recipients of public subsidies should demonstrate that they fund available and accessible health care in at least equal measure to the subsidies that they receive. Additionally, this should include additional funding for publicly administered hospital systems that can provide medical care to everyone who cannot pay for treatment at no cost or, at a minimum, at progressively scaled costs that do not create barriers to access.
• Expand coverage for existing public health insurance programs like Medicaid and Medicare.

Internal Revenue Service (IRS)

• Strengthen the oversight and enforcement of nonprofit hospitals’ compliance with sections 501(c)(3) and 501(r) of the Internal Revenue Code to ensure that their community benefits and charity care actually provide benefits to their communities that are at least commensurate with the value of the tax exemptions they receive. This should include specifying minimum financial eligibility criteria for nonprofit hospitals’ financial assistance policies, and renewing community benefits guidance for nonprofit hospitals to ensure that exempt activities appropriately reflect modern community needs, such as by requiring that surplus revenue be reinvested into healthcare services. Additionally, the IRS should redefine the circumstances under which a nonprofit hospitals’ violations of 501(r) “shall be excused,” to focus on the harm that those violations caused, rather than the intent of the hospital.
• Ensure that nonprofit hospitals’ charity care policies are consistent with the right to health, including being inclusive and accessible. This should include prohibiting certain non-financial eligibility limitations, such as residency or lawful presence requirements and other barriers to providing assistance for people who are underinsured, such as blanket bans against patients with insurance. Additionally, the IRS should require hospitals to use, and assist with the use of, a uniform and easily accessible financial assistance application, available in languages used by the communities served.
• Increase transparency of both nonprofit hospitals’ practices and the IRS’ oversight of the industry. This should include publicly disclosing section 501(r) violations and requiring that violating hospitals publish a public remediation plan. Additionally, nonprofit hospitals should be required to submit their financial assistance policies within their community health needs assessments.
• Prohibit rights-impacting practices arising from nonprofit hospitals’ extraordinary collection actions, such as foreclosures, bank account seizures, and the charging of interest on debt, as well as strengthening the definition of “reasonable effort,” and prohibiting delaying or denying future medical care due to nonpayment.

State Legislators

• Address the absence of financial assistance protections for patients by passing laws that specify clear minimum standards for eligibility for free or reduced-cost care for both uninsured and underinsured patients under hospitals’ financial assistance policies. States should also implement laws and policies that require hospitals to adopt practices to effectively and proactively identify patients eligible to receive financial assistance and ensure that they provide such assistance. Additionally, states should prohibit nonprofit hospitals’ financial assistance policies from denying coverage for patients with irregular immigration status.
• Where states are providing direct, tax-funded subsidies for nonprofit hospitals’ charity care, strengthen the oversight of these programs to ensure that subsidized institutions are not engaging in abusive medical billing and debt collection practices, or failing to provide benefits to their communities that are at least commensurate with the value of the tax exemptions they receive.
• States that have not implemented the so-called Medicaid expansion, which, among other things, expands the public health plan’s coverage to single persons without dependents, should also adopt legislation integrating these components of the program into state laws.
• Additionally, state legislators should consider adopting the National Consumer Law Center’s Model Medical Debt Protection Act, in whole or in part, which has relevant statutory language that can address many of the issues described in this report, including simplifying the financial assistance application process; creating a mechanism or private right of action that allows patients who are denied financial assistance despite their eligibility to be reimbursed; improving transparency around hospitals’ charitable expenditures and the value of subsidies that they receive, such as exemptions from state and local taxes; and requiring for-profit hospitals to also provide financial assistance for low- or no-income patients.

Consumer Financial Protection Bureau (CFPB)

• Undertake enforcement against unfair, deceptive, or abusive acts or practices among nonprofit hospitals and collectors of medical debt accrued at nonprofit hospitals.
• In particular, prioritize enforcement actions against debt collectors that fail to ensure that patients have been fully informed about and screened for financial assistance before pursuing collection.
• Work with state attorneys general and other consumer financial regulators to bring actions against nonprofit hospitals and debt collection agencies that violate state laws related to medical billing and medical debt collection practices.

Centers for Medicare and Medicaid Services (CMS)

• Establish and enforce adequate penalties for hospitals that fail to comply with their existing obligations under CMS rules to “provide all or a portion of services free of charge to patients who meet the hospital’s charity care policy.”
• Adopt other policies, potentially through new rulemaking, to further limit the human rights impacts of nonprofit hospitals’ medical billing practices. For example, require hospitals to comply with relevant consumer financial protection laws, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act and IRC Section 501(r), within the definition of “applicable Federal laws” under 42 CFR § 482.11(a), in order to receive compensation from CMS under the Conditions of Participation and Conditions for Coverage to continue participating in the Medicare and Medicaid programs.
• Set new conditions for disproportionate share hospital (DSH) payments to require hospitals to identify and respond to the unmet health needs of the communities they serve. For example, to get DSH payments, hospitals should be required to assess community needs regularly and devise ways to address them, involving representatives of underserved populations in this process.

Nonprofit Hospitals

• Notwithstanding regulation, nonprofit hospitals also have responsibilities to respect human rights and ensure that they do not cause or contribute to human rights abuses, including through their medical billing and collections practices. In particular, they should adopt policies to limit the human rights impacts of medical billing and debt collection, such as by ensuring that financial assistance is, in practice, easily accessible, and adequately inclusive and robust to reflect community need.

This report is based primarily on analysis of data and other publicly available secondary sources of information conducted between October 2022 and March 2023. It extensively draws from reports from nongovernmental organizations, government and academic studies, data from federal departments and agencies, medical literature, nationally representative surveys, and relevant local and national reporting. Where relevant, the methodology for charts and data included in this report is explained in the footnotes.

Human Rights Watch wrote letters to three large trade associations representing hospitals in the US: Federation of American Hospitals, which represents for-profit hospitals; American Hospital Association, which represents both nonprofit and for-profit hospitals; and Catholic Health Association of the United States, which represents faith-based nonprofit hospitals. Human Rights Watch also wrote letters to the three federal agencies covered in this report: Internal Revenue Service, Centers for Medicare and Medicaid Services, and Consumer Financial Protection Bureau.

These letters requested information and clarification regarding their practices. Of the 6 entities we contacted, only the Catholic Health Association of the United States and American Hospital Association provided written response. Their responses are reflected throughout the report, where relevant, including in some places to provide important contextual information about industry policies and practices. The complete correspondence with these 6 entities can be found in an online Annex to this report.

In addition to these 6 letters, Human Rights Watch also contacted 11 nonprofit hospitals and hospital systems, and 7 state-based trade associations, seeking their comment on publicly reported accounts of nonprofit hospitals’ debt collection practices. Their responses are reflected throughout Section IV. The complete correspondence with these entities can also be found in the online Annex to this report.

Everyone has the right under international human rights law to enjoy the highest attainable standard of health. To fulfil this right, governments should dedicate the maximum of their available resources towards ensuring the availability and accessibility of acceptable, quality healthcare facilities, goods and services. Ensuring access to health care that is consistent with this right, whether privately or publicly provided, requires that governments ensure that poorer households are not disproportionately burdened with health expenses.

Most high-income countries have taken measures to meet this standard by funding some combination of robust public health care services, including public hospitals, and social security programs like universal public health insurance.

While the US has two federally administered public hospital systems that can provide medical care at no or minimal cost—the Veterans Administration and Indian Health Service—they are only accessible to eligible military veterans or American Indians and Alaska Natives, respectively, and both of these systems are vastly underfunded and under-resourced.

Similarly, while the country has some public health insurance schemes that can help pay for medical care, including Medicare and Medicaid, these can still involve substantial cost sharing or user fees and are only available to citizens and so-called “lawfully present immigrants” who are above or below a certain age, have a permanent disability, or earn very low incomes alongside various other state-based eligibility limitations.

For example, to qualify for Medicaid in 2023, a single person without dependents would need to earn below $20,120 in most states. But in the 10 states that have not yet adopted the 2010 Patient Protection and Affordable Care Act’s so-called “Medicaid expansion,” no single-person households without dependents are eligible for this crucial social security program. About 2 million uninsured adults fall into this coverage gap nationwide, which disproportionately impacts Black, Indigenous, and other communities of color.

This absence of either a universally accessible public healthcare system or universal health insurance coverage leaves tens of millions of people who are uninsured or underinsured exposed to the high and rising costs of medical treatment in the US.

More than 8 percent of the US population, or approximately 30 million people, did not have any health insurance in 2021, the most recent year for which robust national-level data is available.

But these already high numbers of uninsured people are likely to rise over the coming year, as certain policies passed in response to the Covid-19 pandemic end, such as the continuous enrollment provision of Medicaid, the US public health insurance scheme for people with low incomes, which expired in March 2023. The termination of this provision will likely cause between 5 and 14 million people to lose health insurance coverage in the coming months, according to recent estimates by the Kaiser Family Foundation.

According to a biennial survey conducted by the Commonwealth Fund, a private foundation that supports an equitable healthcare system, another 34 percent of people in the US were underinsured in 2022. This means that they had gaps in coverage during the year or still had significant non-premium out-of-pocket costs, despite being covered by a health insurance plan.

Because of this absence of universally accessible and adequate health care for everyone, in 2021, about 20 percent of US adults experienced a major, unexpected medical expense that had a median out-of-pocket cost between $1,000 and $1,900, according to a nationally representative survey from the central bank of the US.

When out-of-pocket health expenditures and health insurance reimbursements are combined, people in the US pay more for health care, both per person and as a share of GDP, than 37 other high-income countries in the Organization for Economic Cooperation and Development (OECD). According to OECD data, which weighs prices based on local purchasing power, the per capita out-of-pocket cost for health care in the US was $1,172 in 2020, about 67 percent higher than OECD’s median per capita out-of-pocket costs that year.

Despite paying more than double what the median OECD country pays per capita for health care, when compared to these countries, the US has the lowest life expectancy at birth, the highest death rates for avoidable or treatable conditions, the highest maternal and infant mortality, and among the highest suicide rates. In some cases, such as maternal mortality, the United States’ health care outcomes are worsening.^[20]

Human Rights Impacts of Medical Debt

These high out-of-pocket costs for accessing health care fuel the nation’s medical debt crisis and undermine human rights.

Medical debt is highly prevalent in the US, with a nationally representative survey conducted by the Kaiser Family Foundation in 2022 finding that 41 percent of US adults had some form of outstanding debt due to medical or dental bills, while 24 percent of adults were either past due or unable to pay their health care bills at the time of the survey.

As Human Rights Watch research in the US has documented, people facing steep out-of-pocket costs for health care are more likely to ration essential medicines like insulin and are more likely to avoid medical treatment that can detect and treat preventable diseases like cervical cancer, risking dangerous and potentially lethal health complications.

These findings are consistent with the results of numerous surveys conducted by the Commonwealth Fund in recent years, which have regularly found that people in the US are much more likely to avoid seeking needed medical care or treatment because of its cost than residents of other high-income countries.

But the expense of the US healthcare system undermines more than just the right to health, as the money required to access health care or service medical debt can come at the expense of other goods and services essential to rights, such as housing and food. For example, a 2022 analysis of more than 142,000 survey results from the US Census Bureau, conducted by researchers from the City University of New York and Harvard Medical School, found that people who acquired medical debt between 2017 and 2019 were about 2.2 times more likely to become food insecure and nearly 3 times more likely to experience an eviction or foreclosure.

However, the burdens of medical debt are not shared equally. Women and people who have low incomes or disabilities, or are Black, Indigenous, or people of color (BIPOC) are disproportionately burdened by medical debt in the US. For example, a 2022 nationally representative survey conducted by the US Census Bureau found that most people in the US with incomes below $40,000—roughly the national median personal income—had some kind of outstanding medical debt.

According to data collected by the US Census Bureau and Centers for Disease Control and Prevention, people who are Native American or Alaskan Native, Latinx, or Black are much more likely to be uninsured than white people and much more likely to have chronic medical conditions like hypertension or diabetes, two of the primary risk factors for incurring medical debt.

As a result, people from these communities are also much more likely to be burdened by medical debt. For example, about 28 percent of Black households in the US had medical debt in 2017 compared to 17 percent of white, non-Hispanic households, according to data collected by the US Census Bureau. This disparity is also reflected in the share of the population with medical debt in collections, which is about 36 percent higher in BIPOC-majority communities than in majority-white communities, according to a nationally representative review of credit reports conducted by the Urban Institute in 2022.

Hospital services, in particular, significantly contribute to the country’s medical debt crisis. A 2022 Kaiser Family Foundation survey found that emergency room visits and hospitalizations led to 50 and 35 percent of US adults’ medical debt, respectively. More recently, a March 2023 survey conducted by the Urban Institute found that about 73 percent of adults with past-due medical debt reported owing at least some of that debt to hospitals.

The prices that hospitals charge for their services in the US are both exceptionally expensive and rising, having more than tripled since 2000 when adjusted for inflation, according to a Human Rights Watch analysis of federal consumer price index data.

According to OECD data, which weighs prices to reflect local purchasing power, when out-of-pocket health expenditures and health insurance reimbursements are combined, the US paid about $3,380 per person for hospital care in 2020, about 140 percent above the average per capita cost for hospital care across 32 other countries in the OECD with data available for that year—around $1,590.

Despite these uniquely high prices, many hospitals in the US face significant financial challenges. For example, in response to a letter from Human Rights Watch, the Catholic Health Association of the United States, a trade association that represents faith-based nonprofit hospitals, wrote:

In 2022, historic inflation driven costs of medical supplies, equipment and labor led to the year being one of the most financially challenging since the pandemic. As a result, numerous nonprofit hospitals have reported significant operating losses (some over $1 billion). Despite this, nonprofit hospitals, including Catholic hospitals, continue to provide low-margin services at rates higher than for-profit hospitals and cost increases were less than half of the rate of inflation in 2022.

The drivers behind the United States’ exceptionally high prices for hospital services are many and mixed, and largely outside of the scope of this report, although they appear to reflect increasing concentration within, and inadequate regulation of, the nation’s heavily market-based healthcare system.

In letters to Human Rights Watch, trade associations representing nonprofit hospitals in the US noted how the practices of both public and private health insurance providers have influenced hospital prices and contributed to the country’s medical debt crisis. While the drivers of these high prices complex, as shown in the sections below, their results are predictable.

Most community hospitals in the US are privately operated nonprofits. As private hospitals, they are not owned or operated by the government on any level, whether federal, state, or local. As nonprofits, they are also exempt from federal taxes under Section 501(c)(3) of the Internal Revenue Code, as well as other state and local taxes under various state laws, which together save these commercial actors billions of dollars each year.

A 501(c)(3) organization—also called a nonprofit or not-for-profit organization—must be organized for an exempt purpose, such as charity, religion, science, or education. The Internal Revenue Service (IRS), the agency responsible for overseeing the US federal tax system, allows hospitals to demonstrate that they qualify for this tax-exempt status as a charitable organization by providing so-called “community benefit.”

But the IRS does not have a definition of “community benefit” that nonprofit hospitals must meet. Rather, the agency relies on a four-page document published in 1969, which articulated six examples of activities that could demonstrate a hospital’s community benefit:

Fundamentally, these loosely defined examples and guidance are too vague to ensure that nonprofit hospitals deliver on the right to health. To meet international human rights standards, the US government should ensure that everyone enjoys the highest attainable standard of health, regardless of their ability to pay.

If the US government were to rely on nonprofit hospitals to provide accessible health care to everyone, regardless of their ability to pay, it should require them to, in at least some cases, deliver free health care, something which is tellingly referred to as “charity care” in the US. But conspicuously, to qualify for tax exemption as a charitable organization under this IRS guidance, hospitals are not technically required to provide this so-called charity care.

While the IRS considers a hospital’s provision of charity care to be a significant factor indicating their community benefit, the lack of clear guidance allows for a wide variety of practices. As a 2020 study by the Government Accountability Office (GAO) summarized: “Given this [regulatory] ambiguity, a hospital could, in theory, maintain a tax exemption … while spending little to no money on charity care or other community benefit activities.”

• Community Health Needs Assessments: every three years, each nonprofit hospital must produce a community health needs assessment and develop an implementation plan for how it will address those needs.
• Financial Assistance and Emergency Medical Care Policy: each nonprofit hospital must publish a written financial assistance policy that outlines who can qualify for financial assistance for medical services, how the hospital calculates costs for those services, and the actions the hospital will take in the event of nonpayment.
• Limitation on Charges: nonprofit hospitals cannot charge individuals eligible for financial assistance more for medical services than they charge patients with insurance.
• Billing and Collection Requirements: nonprofit hospitals cannot engage in so-called extraordinary collection actions against people who owe them medical debt, such as filing a lawsuit, before the hospital determines whether that individual is ineligible for assistance under their financial assistance policy.

While a significant step forward, these four requirements from the 2010 ACA, which nonprofit hospitals must also satisfy in addition to their community benefit obligations outlined by the IRS in 1969, still fall far short of what is needed to realize the right to health.

For example, although the 2010 ACA required all nonprofit hospitals to produce a written and publicly available Financial Assistance Policy, which outlines their charity care practices, these regulations do not specify any requirements for this charity care, such as eligibility criteria or minimum coverage standards. Accordingly, a nonprofit hospital’s charity care policy satisfies federal regulations merely by being written and publicly available, regardless of whether the policies actually make health care affordable for people who cannot pay for treatment.

Several states have attempted to address this regulatory gap by implementing laws and regulations that specify the criteria nonprofit hospitals should use to determine who is eligible for charity care and how fully to cover their costs. Some states, such as California and Illinois, even compel a certain amount of charity care spending by for-profit hospitals. But these state-based eligibility requirements, which are typically means-tested based on the patient’s income, vary widely.

Because nonprofit hospitals are generally allowed to define who is eligible for their “charity care,” they are allowed to set standards that exclude significant numbers of patients who cannot pay for medical treatment. As shown in Section III below, this results in nonprofit hospitals spending relatively little, on aggregate, on free or reduced-price care for people who cannot pay for it.

About one in five nonprofit hospitals across the US even have policies to deny nonemergency medical care to patients who owe them money.

In 2020, the Government Accountability Office (GAO), a nonpartisan agency of the federal government that provides auditing, evaluative, and investigative services for the US Congress, reviewed tax documents that nonprofit hospitals submitted to the IRS in 2016. These data, which included forms that self-reported how much money these nonprofit hospitals claimed to have spent on community benefits that year, revealed that 30 nonprofit hospitals had reported no spending at all on any community benefits to federal regulators.

When the GAO asked the IRS whether it had conducted any reviews related to these hospitals, the IRS was unable to provide any evidence that such reviews had occurred because it did not have a system in place to track them. But even if audits of these hospitals that reported no community benefit expenditures in 2016 had occurred, the IRS has been historically reluctant to use its enforcement powers to increase hospitals’ investment in community benefits.

The IRS reserves the right to revoke the tax-exempt status of any nonprofit organization that fails to meet its obligations under the tax code. But in its entire history, the IRS has only revoked the tax-exempt status of a nonprofit hospital once. This singular revocation was based on a very clear binary failure to produce a community health needs assessment, one of the additional requirements mandated by the 2010 ACA. When it comes to ensuring that nonprofit hospitals are adequately spending on community benefits, which does not have a clear definition or requirements, the IRS has never used its revocation authority.

It is also unclear exactly how often the agency has used less severe sanctions like investigations, settlements, or cash penalties to improve the community benefits of tax-exempt hospitals. Although, in response to a letter from Human Rights Watch, the Catholic Health Association of the United States, a trade association that represents faith-based nonprofit hospitals, wrote that the IRS “assessed over 100 $50,000 excise taxes for CHNA violations” through its 2018 fiscal year.

In part, the lack of clarity around intermediary sanctions is because the IRS neither publicly reports nor requires hospitals to report violations of either their community benefit obligations or any of the 2010 ACA’s 501(r) rules. As further discussed in Section IV, under current IRS rules, the agency will also excuse any hospital’s violation of these additional requirements from the 2010 ACA, so long as a correction is made and the violation was “neither willful nor egregious.” This standard further complicates public access to information regarding nonprofit hospitals’ practices.

The primary sources for data on how much hospitals spend on community benefits, including “charity care,” are the IRS and the Centers for Medicaid and Medicare Services (CMS), a federal agency that administers the United States’ public health insurance programs.

Each year, all nonprofit organizations are required to submit relevant tax information to the IRS. But privately operated nonprofit hospitals must also submit a so-called “Schedule H” form, which includes, among other things, self-reported information about how much money these hospitals claimed to have spent on community benefits that year. While this Schedule H form requests data from hospitals on their spending across 17 different possible types of community benefits, shown below, the IRS does not systematically consider the adequacy of these claimed expenses. Rather, the IRS primarily assesses their accuracy.

Similarly, CMS requires all short-term acute care hospitals to submit so-called “cost reports” each year, which include data on four types of community benefit expenditures. Like the IRS, CMS also does not judge whether this hospital-defined community benefit spending should actually be considered a community benefit, such as whether the hospitals’ charity care spending was adequate to meet community needs.

For example, a 2021 study of more than 1,900 private nonprofit hospitals’ tax filings from 2017, conducted by researchers at the Johns Hopkins University Bloomberg School of Public Health, found that, on average, these hospitals reported spending about 8 percent of their expenses on activities or services that they considered to benefit the community that year.

In a letter to Human Rights Watch, the American Hospital Association, which represents both nonprofit and for-profit hospitals in the US, suggested that this average spending was higher, writing that nonprofit hospitals spent 13.9% of their total expenses on community benefits in 2019.

However, charity care, which is the clearest form of community benefit and has the greatest impact on people’s ability to access health care, accounted for less than one-fifth of the average nonprofit hospital’s claimed community benefit expenditures in 2017, or about 1.5 percent of the average nonprofit hospital’s total expenses that year.

Private nonprofit hospitals’ spending on charity care has also declined in recent years, according to a separate 2021 study conducted by these researchers from Johns Hopkins. Although these nonprofit hospitals’ claimed spending on community benefits remained relatively constant between 2011 and 2018, this study found that the amount spent on charity care roughly halved, declining from 33 percent of the average nonprofit hospital’s total community benefit expenditures in 2011 to just 18 percent in 2018.

While the causes of this decline in charity care expenditures are unclear, it suggests that nonprofit hospitals have, on aggregate, provided less free-of-cost care to uninsured patients over recent years. Although this may also reflect the decline in the rate of the uninsured population over this period, which fell from about 17.4 percent to 10.4 percent of the US between 2011 and 2018.

This decline has occurred despite additional forms of public subsidy, aside from valuable tax exemptions, which can in some cases cover some or even all of their charity care costs. For example, several states spend hundreds of millions of dollars each year to help finance nonprofit hospitals’ charity care through dedicated public support funds.

Both Medicare and Medicaid also provide so-called “disproportionate share hospital (DSH) payments” to both for-profit and nonprofit hospitals that care for a disproportionate share of low-income patients, which are partly intended to offset the costs of charity care and other uncompensated care. According to estimates by the Kaiser Family Foundation, the total value of these DSH payments was $31.9 billion in 2020.

Despite nonprofit hospitals receiving public subsidies to support such aid, on aggregate, there seems to be little difference between how much for-profit and nonprofit hospitals spend on free and reduced-price care. For example, in 2018, a study from the National Bureau of Economic Research found that charity care accounted for only 1.5 percent of the median nonprofit hospital’s expenses, while the median for-profit hospital spent 1.4 percent of its expenses on charity care.

Similarly, a 2020 study by researchers at the Harvard University School of Public Health, which analyzed Medicare cost data from 2018, found “no significant difference between for-profit and nonprofit hospitals in charity care as percent of total expenses,” leading the authors to conclude that “nonprofit hospitals may not be providing the level of charity care warranted by their tax exemption status, and in some cases may be spending relatively less than their for-profit counterparts.”

A 2021 study of 2018 Medicare cost reports by researchers from Johns Hopkins University suggests that nonprofit hospitals actually spend less on charity care, on aggregate, than their for-profit counterparts. This study analyzed data from more than 4,600 hospitals and found that, on aggregate, nonprofit hospitals spent about $2.30 of every $100 in total expenses on charity care, which was less than publicly administered and for-profit hospitals, which spent $4.10 and $3.80 on charity care per every $100 of expenses, respectively.

One of the 2021 studies by researchers from Johns Hopkins, discussed above, estimated that 86 percent of nonprofit hospitals spent less on charity care than the value of their tax exemptions. Similarly, a 2022 study by the Lown Institute found that 80 percent of the 275 largest private nonprofit hospital systems spent less on charity care and community investment than the estimated value of their tax breaks.

More recently, the Kaiser Family Foundation reported that nonprofit hospitals’ tax exemptions were worth approximately US$28 billion in 2020 while the value of their charity care was only $16 billion, or about 57 percent of the tax benefits they received.

These studies suggest that, on aggregate, nonprofit hospitals’ tax exemptions are not leading to increased charity care, and that the billions of dollars these commercial entities save in taxes are being diverted to other uses, such as growth, executive compensation, and sizeable investment portfolios.

We find it unfortunate that some recent reports and media coverage on non-profits hospitals explicitly ignore several categories when comparing community benefit expenses and taxes not collected from nonprofit hospitals, giving an incomplete picture of hospitals’ investments in their communities…. The value of community benefit activities cannot be measured solely by the amount spent. Many may be relatively low cost, especially when provided in coalition with public health agencies and community organizations but can play a significant role in improving community health. The resulting community value of programs (impact) in most instances is far greater than the cost (spending) reported by hospitals.

As a field, hospitals provide more benefit to their communities than any other sector in health care…. tax-exempt hospitals provide more than sufficient benefits to their communities to merit that exemption under any reasonable standard.

In its letter to Human Rights Watch, the AHA further cited to an AHA-funded report from the international accounting form EY, which found that “for every one dollar in tax exemption, hospitals provided nine dollars in community benefit.”

According to the 2021 study by researchers from Johns Hopkins University Bloomberg School of Public Health, detailed above, nearly half of nonprofit hospitals’ self-reported community benefit expenditures in 2017 were for so-called “unreimbursed Medicaid costs.”

Unlike private insurers in the US, which negotiate with hospitals to determine how much they will pay for certain services, the amount that Medicaid—the United States’ public health insurance system for low-income adults—pays for hospital services is set by law.

In brief, these “unreimbursed Medicaid costs”—also referred to as a “Medicaid shortfall”—are the amount of money that the hospital believes that Medicaid’s legally set reimbursement amounts underpaid for medical care that the hospital rendered to people covered by the program. In other words, if a privately operated nonprofit hospital charges prices for their services that are above the amounts that Medicaid will reimburse, they can list the difference as charitable spending.

According to another study by researchers from Johns Hopkins University, between 2011 and 2018, the average nonprofit hospital’s claimed “unreimbursed Medicaid costs” increased, as a share of both their total community benefit expenditures and overall expenses, by 31.8 percent and 32.4 percent, respectively.

While these unreimbursed Medicaid costs form the foundation of nonprofit hospitals’ claimed charitable community benefits, which justify their valuable tax exemptions, nonprofit hospitals seem to spend similar amounts on unreimbursed Medicaid costs as their for-profit, tax-paying counterparts.

A 2022 study of more than 3,400 private hospitals’ Medicare cost reports, conducted by researchers from Johns Hopkins University, found that nonprofit and for-profit hospitals had, on average, similar “unreimbursed Medicaid costs” when measured as a share of their expenses. In over half of the 45 states these researchers studied, nonprofit hospitals actually spent less on unreimbursed Medicaid costs, on average, than for-profit hospitals, leading the researchers to conclude that “the largest component of community benefit supposedly provided by nonprofit hospitals … is poorly aligned with the (effectively automatic) tax subsidy that these institutions receive.”

In a letter to Human Rights Watch, the American Hospital Association contested these findings, writing that unreimbursed Medicaid costs are “a widely recognized and important component of community benefit that is reported every year by tax-exempt hospitals and unquestionably benefits the poor and elderly thereby relieving a significant government burden.”

There are several key reasons why patients who should be eligible for charity care under a nonprofit hospital’s policies may not receive it. For example, they may not have known that such charity care programs existed, or that they were eligible, or may have had issues with applying, or possibly had an application improperly denied.

In a letter to Human Rights Watch, the American Hospital Association wrote, “We recognize that some patient debt is incurred when patients who would otherwise qualify for financial assistance decline to apply.” However, research and investigations, many of which are compiled below, indicate that many such exclusions are driven more by hospital practices than patient choices.

Whatever the cause, a 2019 analysis of tax reports from 1,651 nonprofit hospitals, conducted by Kaiser Health News, found that 45 percent routinely sent medical bills to patients “who probably would have qualified for [charity care] under the hospitals’ own policies.”

This so-called “bad debt,” which is the remaining amount of a patient’s bills that hospitals write off after attempting to collect, is another expense that nonprofit hospitals can claim as a part of their community benefit. In other words, under current tax rules, a nonprofit hospital can hound charity-care-eligible patients for unpaid debts, driving low-income people into extreme financial distress as they try to pay these bills, and then turn around and write off the remainder of these bills as a form of community benefit.

When medical bills like these go unpaid for an extended period, they become delinquent and enter an onerous process called collections, where creditors or third-party debt collectors that have purchased a patients’ debt can sue in civil and small claims courts to collect on this debt.

One of the additional requirements from the 2010 ACA mandates that nonprofit hospitals make a reasonable effort to determine if a patient is eligible for charity care under the hospital’s policy before engaging in so-called “extraordinary collection actions,” such as initiating a legal or judicial process against them or selling their debts to third-party debt collectors. The Centers for Medicare and Medicaid Services similarly requires hospitals to “provide all or a portion of services free of charge to patients who meet the hospital’s charity care policy.”

However, a 2022 research brief by the Consumer Financial Protection Bureau found “little evidence that compliance with [charity care] rules is systematically monitored and enforced at the federal level.”

Under current IRS rules, the agency will excuse any hospital’s violation of these additional requirements from the 2010 ACA, so long as a correction is made and the violation was “neither willful nor egregious.” As it can be difficult to establish that a nonprofit hospital willfully intended to violate these rules when it, for example, sued patients who should have been eligible for charity care under its own policies, the ability of the IRS to penalize and deter violators is severely limited.

In part, this is because lawsuits involving nonprofit hospitals are spread out over thousands of civil and small-claims courts across the US, which have no central reporting mechanism. Additionally, if a nonprofit hospital outsources or sells a patients’ medical debt to a third-party debt collector, which then sues the patient in their own name, the source of this debt is often obscured from public records.

When combined with its inadequate regulation, the United States’ model of subsidizing privately operated hospitals with tax exemptions in the hope that they will increase the accessibility of hospital care for un- and underinsured patients, while failing to regulate these hospitals to ensure accessibility, undermines rights protected under international human rights law, including the right to the highest attainable standard of health and the right to social security.

Health is a human right indispensable to the exercise of other human rights, and every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

The Universal Declaration of Human Rights (UDHR) recognizes that all people have “the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Similarly, the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the rights to “an adequate standard of living” and “the enjoyment of the highest attainable standard of physical and mental health,” including the “prevention, treatment and control of epidemic, endemic, occupational and other diseases” and the “creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

The United States has signed, but not ratified, the ICESCR. As a signatory, the US is obligated to refrain from acts that would defeat the treaty’s object and purpose.

The Committee on Economic, Social and Cultural Rights (CESCR), which interprets the ICESCR, has also affirmed that states have “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the [treaty’s] rights.” This duty extends to preventing and protecting against deprivations of individuals’ human rights by non-state actors, including effective regulation of their activities.

Governments have obligations to ensure health facilities, goods, and services are accessible to everyone without discrimination and affordable for all. The right to health facilities, goods, and services includes “the provision of equal and timely access to basic preventive” services and “appropriate treatment of prevalent diseases.” States should ensure these health services are economically accessible, meaning “affordable for all” and of good quality, the CESCR has clarified.

Access to health care is also a fundamental component of the human right to social security, which is reaffirmed in the Universal Declaration of Human Rights and reflected in the ICESCR, other international conventions, and regional frameworks. The CESCR, interpreting the ICESCR, has clarified that the right to social security requires states parties to “guarantee that health systems are established to provide adequate access to health services for all,” including “general and practical medical care, together with hospitalization.”

Governments should ensure that everyone has access to the highest possible standard of health care, regardless of their ability to pay.

Additionally, many state constitutions contain provisions that require the state to promote and protect the public health or even require legislative action to fund health care services for specific activities or for certain groups, such as indigent persons. In some states, state-based regulations on nonprofit hospitals’ financial assistance policies may be required to give effect to these constitutional provisions.

Both the International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified, and the ICESCR guarantee the right to equal treatment and protection under law, without discrimination on the basis of race, ethnicity, national origin, gender, property, or other status, including economic status. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States has ratified, spells out in more detail protections against discrimination on the basis of race, ethnicity, and national origin, among others.

US constitutional law requires a finding of discriminatory intent before courts will rule unconstitutional discriminatory practices that disproportionately burden a racial group. But ICERD goes further, prohibiting policies and practices that have either the purpose or effect of restricting rights because of race. It proscribes apparently race-neutral practices that affect fundamental rights, regardless of racist intent, if those practices create unwarranted racial disparities.

The Committee on the Elimination of Racial Discrimination, which interprets the ICERD, has specifically stated that “indirect—or de facto—discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular racial, ethnic or national origin at a disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Under the ICERD, governments may not ignore the need to secure equal treatment of all racial and ethnic groups, but rather must act affirmatively to prevent or end policies with unjustified discriminatory impacts. Governments are obligated to “undertake to prohibit and to eliminate racial discrimination … notably in the enjoyment of … the right to public health [and] medical care.”

The ostensibly neutral policies of nonprofit hospitals and government agencies that have discriminatory impacts on particular racial and ethnic groups’ ability to access hospital services, regardless of their ability to pay, should therefore be substantially revised to eliminate such discriminatory impacts. Additionally, as discussed above, non-citizens are generally unable to access public health insurance schemes, impacting their access to health care.

Even in the absence of regulations, under the UN Guiding Principles on Business and Human Rights (UN Guiding Principles), all businesses have a responsibility to respect human rights and ensure that they do not cause or contribute to actual or potential adverse human rights impacts.

Fundamental to this responsibility is the requirement that companies carry out human rights due diligence to identify the possible and actual human rights impacts of their operations, and to establish meaningful processes to prevent and mitigate those risks and remedy adverse impacts. The process should be ongoing and continuous.

Companies should meaningfully consult with potentially affected groups and other relevant stakeholders at all stages of human rights due diligence. This consultation should be meaningful and go beyond engaging with a few patient representatives.

Human rights due diligence also entails identifying and rectifying business practices with adverse human rights impacts that are part of a company’s operations. The UN Guiding Principles state that businesses should look at their “own activities” and embed human rights policies across “all relevant business functions.”