An organization is not a non-profit simply because it says so. There are state and federal standards that non-profit entities must meet in order to maintain their legal status -- and to qualify for tax-exemption.

A review of California state health care data, Internal Revenue Service non-profit guidelines as well as Tri-City Regional Medical Center's lease with owner Irving Moskowitz all strongly suggest that rather than serving the health needs of Hawaiian Gardens and the surrounding community, the hospital is mainly operating as a private surgical facility for a wealthy physician's stomach stapling practice.

Meeting the Community Benefit Standard

Providing health care is not enough to qualify as a non-profit. According to IRS guidelines, a hospital may qualify for tax-exemption only if it is organized and operated exclusively for charitable purposes and if it meets the community benefit standards.1 Tri-City fails on both scores.

The IRS defines community benefit as the operation of a hospital in a way that helps the community as a whole. For the IRS, Tri-City's failure to provide charity care to poor patients should be a red flag. The IRS gives points to organizations that have a formal policy to provide free care to patients who are too poor to pay.2 Tri-City has such a policy - it just doesn't follow it.

When it applied for 501c(3) status, the hospital's application declared, "With regard to charity cases, the Hospital's policy is simple. The Hospital will not turn away any patient for financial reasons. When a charity patient is admitted, the case is handled individually on a case by case basis. In some cases, the Hospital absorbs costs associated with providing services to charity patients."3 But in 2000 and 2001 the hospital provided zero charity care, despite net income of over $2 million in 2001 alone.

Tri-City also reneged on another policy it presented to the IRS when it filed for tax-exempt status - its commitment to pre-natal care. The hospital's administration promised that, "Prenatal Services will provide care for the female patient during pregnancy, labor, delivery and the post-partum period."4 There were no babies delivered in Hawaiian Gardens in 2000 and 2001.5

Tri-City's administration might argue that its failure to provide obstetric services is the result of a lack of demand from the community. But by the IRS' lights, it would be hard for the hospital to know what the health care needs of the surrounding area are unless it consults with the community. As part of its review, the IRS looks for a governing or community board composed of civic leaders rather than ones dominated by hospital administrators, physicians and other professionals connected to the hospital.6

Again, Tri-City looks good on paper but failed to live up to its promises. In its application for 501c(3) status, the hospital touted its 25 member community advisory board which consisted of "school officials, clergymen, business owners, city government and community organizations. The board assesses and determines the prevalent health care problems in the community." 7 According to one former city official who sat on the hospital's community board, the advisory board ceased meeting soon after it was formed. Citing the high cost of treatment at Tri-City and the lack of charity care, he said few residents of Hawaiian Gardens use the hospital now.

State health care data backs that assertion up - despite its proximity only 13.7% of all Hawaiian Gardens residents who were hospitalized in Los Angeles County last year were admitted to Tri-City Regional Medical Center. Hawaiian Garden residents admitted to the hospital represented an even smaller percentage of Tri-City's total patient census - just 5.4% (Less than a fifth of the patients treated by Tri-City lived within a five-mile radius of the hospital). 8

Hospital charges were also higher than the norm - no one from Hawaiian Gardens was discharged with less than $2,900 in charges, less than one in ten left with charges under $5,000.9 This includes patients who used the emergency room for relatively simple complaints such as a cut, chest pains or a child's broken bone. On average - Tri-City patients from Hawaiian Gardens were charged well over $10,000.10 Many of the residents of Hawaiian Gardens are immigrants without insurance to cover their health care costs, so for them, Tri-City's high charges are all but unaffordable.

Beyond the degree to which a hospital serves the community, the IRS also considers whether or not the majority of its activities promotes a tax-exempt purpose.11 Arguably, Tri-City is doing more to advance the business of Dr. Mathias Fobi than it is to promote the health of the surrounding community.

The for-profit Center for the Surgical Treatment of Obesity is located within the Tri-City Hospital campus. The center, which provides surgical stomach shrinking services to the morbidly obese, generates at least one quarter of the hospital's surgical cases and probably a good deal more. Last year, 439 of Tri-City's patients underwent the stomach stapling procedure and on average, they racked up $50,000 in hospital charges each. Total charges for those patients totaled $21,936,400 - representing close to a third of the hospital's gross charges for the year.12

Another 15 patients received "tummy tucks," their total charges ranged $24,000 to $100,344.13 And more than 200 of the hospital's other patient discharges involved some sort of abdominal procedure such as an abdominal CAT-Scan, a procedure which is often associated with stomach stapling.14 The hospital discharge data strongly suggests that perhaps as much as half of Tri-City's surgical practice is tied to the Obesity Center.

Insiders, Disqualified Persons and Private Benefit

While Fobi charges for the surgeries he performs, the hospital also would typically bill patients for the use of its operating and recovery rooms and other medical services it provides. Tri-City's IRS form 990 from 2001 (the most recent one that is publicly available) indicates that year it paid Fobi's private firm, FOCA Management Company, $2,293,044 -- more than its next four highest paid contractors combined.15

Stomach stapling accounts for a large part of Tri-City Hospital's tiny patient census.

Whether the firm is managing all or just part of the hospital's patient care - $2.3 million is an extraordinarily large amount for a non-profit of Tri-City's size (the hospital has less than 130 licensed beds) to pay for an administrative service. At minimum, it suggests the potential for a conflict of interest on Fobi's part, particularly if the firm's fees are based on revenues.16 At worst, it could represent a violation of federal anti-kickback laws governing doctor-hospital relationships.

The payment to the management firm also has the potential to put Tri-City's tax-exempt status in jeopardy. IRS guidelines expressly forbid those having an interest in the hospital from benefiting from its net earnings.17

A public trust?

The same rule that draws into question the large payment Fobi received also applies to the hospital's former for-profit owner, Irving Moskowitz.

Moskowitz is neither a board member nor a Tri-City executive and, at least technically, he does not maintain ownership of the hospital. But Cerritos Gardens General Hospital Company, a private firm run by Moskowitz, has received more than a million dollars in annual rent from Tri-City since it spun off the hospital as a non-profit in late 1996.18 The rental agreement alone does not necessarily jeopardize the hospital's tax-exempt status. However, both members of Tri-City's two-person governing board and the hospital's president (who is also one of the two board members) are long-time Moskowitz associates. And, a review of Tri-City's financial circumstances indicates that Moskowitz retains a level of de facto control over Tri-City.

Immediately after Tri-City Regional Medical Center was converted into a non-profit, the Irving I. Moskowitz Foundation19 donated $4.9 million in tax-free proceeds from its Hawaiian Gardens bingo to the hospital.20 California state financing records show that in 2000 the foundation made an additional transfer of funds to Tri-City. The state financing statement does not record the amount of the loan but it does indicate that the hospital pledged its accounts receivable as collateral.21 Two additional state financing records, dated February 2, 1999 and January 25, 2001, show the hospital also is indebted to its landlord - Cerritos Gardens General Hospital Company.

What's more, a clause in the lease signed between Tri-City and Cerritos Gardens grants Moskowitz's private firm the right to resume control of the property at any time, regardless of whether the lease remains in effect or not. It states that the "Lessor may re-enter or resume possession of the Hospital, and remove Lessee and Lessee's property there from, and at its option either terminate this lease, or without terminating it, lease the Hospital for the account of the Lessee for the remainder of the term or terms as Lessor shall see fit."22

The social contract of tax exemption for charitable organizations is based on the assets of those organizations being held in trust for the public - not for the benefit of an individual or a group that controls a charity.

A case could be made for Moskowitz and his firm making a calculated decision to rid themselves of the inconvenience of paying state and federal tax on the facility while continuing to reap a profit through sizable rent payments (subsidized first by a grant from his own foundation and later, from the net earnings derived from business generated by the for-profit obesity center). All the while he and his firm would be able to maintain control through the hospital's financial obligations to the company and his foundation. And, if that did not work or was no longer the optimal business model, the for-profit firm could resume possession of the land and the building at any time. It is a classic case of having one's cake and eating it too. It is also an affront to the basic tenets of public trust and hardly what the federal government had in mind when it established tax-exempt status for non-profits.

1 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p. 2, "The promotion of health for the benefit of the community is a charitable purpose. Engaging in health care activities alone does not necessarily further charitable purposes." and p. 9 "The test used fro determining if a health care provider satisfies the IRC 501c(3) operational test is the "community benefit standard" enunciated in Revenue Ruling 68-545, 1969-2 C.B. 117, and court cases that apply Rev. Rul. 69-545. The community benefit standard is the test used to determine whether a hospital, clinic or other health care provider is operated to promote health in a way that accomplishes a charitable purpose."
2 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003. p. 9, "Prior to Rev. Rule 69-545, tax-exempt hospitals were required by rev. Rul 56-185, 1956-1 C.B. 202 to admit and treat patients who were unable to pay…Although a formal policy to provide charity care is still relevant, the new standard also takes into account a number of additional factors indicating that the operation of the hospital benefits the community as a whole."
3 Gardens Regional Hospital and Medical Center, Inc. 1023 IRS application for Recognition of Exemption Under Section 501c3 of the Internal Revenue Code Addendum to Schedule C - Hospital and Medical Research Organizations, November 25, 1997.
4 Gardens Regional Hospital and Medical Center, Inc. 1023 IRS application for Recognition of Exemption Under Section 501c(3) of the Internal Revenue Code -Exhibit B "Statement of Activities," November 25, 1997.
5 California Office of Statewide Health Planning and Development (OSHPD), Patient Discharge Database, 2000 and OSHPD Annual Utilization Report of Hospitals, 2001.
6 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p. 10, "As used with regard to a hospital, the "Community benefit standard" in Rev. Rul. 69-545 includes the following factors: Does the hospital have a governing board, community board, board of trustees, or board of directors composed of prominent civic leaders rather than exclusively members who are hospital administrators, physicians or other professionally connected to the hospital?"
7 Gardens Regional Hospital and Medical Center, Inc. 1023 IRS application for Recognition of Exemption, Exhibit B, November 25, 1997.
8 According to the 2002 OSHPD Public Patient Discharge Data, 136 Tri-City discharges came from the Hawaiian Gardens zip code (90716) and Tri-City Regional Medical Center discharged a total of 2519 patients that year. Less than 500 patients discharged from Tri-City lived in zip codes that were within a five-mile radius of the hospital.
9 2002 OSHPD Public Patient Discharge Data
10 Ibid.
11 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p. 33, "Each director, principal officer and member of a committee with board delegated powers shall annually sign a statement which affirms that such person… understands that the Corporation is a charitable organization and that in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes."
12 2002 OSHPD Public Patient Discharge Data and OSHPD Annual Utilization Report of Hospitals and 2001 OSHPD financial data. and The International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM), National Center for Health Statistics, 2002.
13 2002 OSHPD Patient Discharge Data and The International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM), National Center for Health Statistics, 2002.
14 Ibid.
15 Gardens Regional Hospital - DBA Tri-City Regional Medical - 2001 federal tax return.
16 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p. 18, "If compensation is based on revenues, the potential for unreasonable compensation warrants a close review."
17 J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p. 4, "IRC 501 c(3) expressly provides that to qualify for exemption, no part of an organization's net earnings shall to the benefit of private shareholders or individuals…in practice the inurement prohibition applies to insiders…In the health care setting physicians may be insiders depending upon whether they exercise control." p. 8 also notes that insider status is not necessarily a pre-requisite for a violation of the inurement prohibition, "…if the charity confers a private benefit on non-insiders, the charity is nor operating exclusively in the public interest and its exemption may be jeopardized if the private benefit is substantial."
18 According to Los Angeles County property records Cerritos Gardens Hospital Company currently owns the property at the hospital's address. Irving Moskowitz is identified as the company's managing general partner in his casino application submitted to the city of Hawaiian Gardens. Hawaiian Gardens Card Club, Inc., Information in Support of Application for Card Club License, January 25, 1995.
19 Moskowitz and his wife Cherna have presided over the Foundation as President and Secretary Treasurer since at least as far back as 1988. Irving I. Moskowitz Foundation 990s, 1987-2001.
20 The Irving I. Moskowitz Foundation 1997 990, Statement 7, p. 28 (On p. 23 the Foundation notes that, "Concerning grants and allocations to Gardens Regional Hospital and American Friends of Mercaz Harav which are listed on statement 7: the donees have agreed under specified circumstances to return a portion of the grant to the Irving Moskowitz Foundation.").
21 UCC Record, California Secretary of State, May 15, 2000, debtors: Gardens Regional Hospital and Medical Center, Inc. and Tri-City Regional Medical Center, Secured Parties: Irving I. Moskowitz Foundation.
22 Gardens Regional Hospital and Medical Center, Inc. 1997 1023 IRS application for Recognition of Exemption Under Section 501c3 of the Internal Revenue Code - Exhibit E, "Lease by and Between Cerritos Gardens General Hospital Company, a CA limited partnership and Gardens Regional Hospital and Medical Center," November 25, 1997. The lease agreement notes that the hospital's dba (doing business as) name is Tri-City Regional Medical Center. p. 36, Para 25.1. J.E. Gitterman and M. Friedlander, "Health Care Provider Reference Guide," Internal Revenue Service, 2003, p.17 - Retained Rights - A review of the underlying docs is necessary to determine if there is retained authority by the seller and on p. 11 it states, "Financial control may include the right to approve annual operating and capital budgets, strategic planning initiatives, and significant sales, leases, mortgages, or other transfers of encumbrances of real estate or personal property." It is worth noting that the lease between and Between Cerritos Gardens General Hospital Company and Tri-City includes a demand for an annual review of the non-profits financial statements.