Englewood Hospital & Medical Center v. the State of New Jersey ( 2024 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2767-21
    ENGLEWOOD HOSPITAL &
    MEDICAL CENTER, HUDSON
    HOSPITAL OPCO, LLC, d/b/a
    APPROVED FOR PUBLICATION
    CHRIST HOSPITAL, IJKG OPCO,
    June 27, 2024
    LLC, d/b/a BAYONNE MEDICAL
    CENTER, HUMC OPCO, LLC,               APPELLATE DIVISION
    d/b/a HOBOKEN UNIVERSITY
    MEDICAL CENTER, CAPITAL
    HEALTH REGIONAL MEDICAL
    CENTER, CAPITAL HEALTH
    MEDICAL CENTER – HOPEWELL,
    COOPER UNIVERSITY HOSPITAL,
    HACKENSACK MERIDIAN
    HEALTH PASCAK VALLEY
    MEDICAL CENTER, JFK
    MEDICAL CENTER, OUR LADY
    OF LOURDES MEDICAL CENTER,
    LOURDES MEDICAL CENTER OF
    BURLINGTON COUNTY,
    ST. FRANCIS MEDICAL CENTER,
    HACKENSACK MERIDIAN
    HEALTH – MOUNTAINSIDE
    MEDICAL CENTER, and PRIME
    HEALTHCARE SERVICES –
    ST. MARY’S PASSAIC, LLC, d/b/a
    ST. MARY’S GENERAL HOSPITAL,
    Plaintiffs-Appellants,
    v.
    THE STATE OF NEW JERSEY,
    THE STATE OF NEW JERSEY
    DEPARTMENT OF HUMAN
    SERVICES, SARAH ADELMAN
    in her capacity as Commissioner of
    the DEPARTMENT OF HUMAN
    SERVICES, STATE OF NEW
    JERSEY DEPARTMENT OF
    HUMAN SERVICES, DIVISION
    OF MEDICAL ASSISTANCE AND
    HEALTH SERVICES, MEGHAN
    DAVEY, in her capacity as Director
    of the DIVISION OF MEDICAL
    ASSISTANCE AND HEALTH
    SERVICES, STATE OF NEW
    JERSEY DEPARTMENT OF
    HEALTH, and DR. KAITLAN
    BASTON, in her capacity as
    Commissioner of the
    DEPARTMENT OF HEALTH,
    Defendants-Respondents.
    ________________________________
    Argued October 31, 2023 – Decided June 27, 2024
    Before Judges Rose, Smith and Perez Friscia.
    On appeal from the Superior Court of New Jersey,
    Law Division, Mercer County, Docket Nos.
    L-1434-17 and L-1397-18.
    John Zen Jackson argued the cause for appellants
    (Greenbaum, Rowe, Smith & Davis, LLP, attorneys;
    James A. Robertson IV, John Zen Jackson, Andrew F.
    McBride, Robert B. Hille, and Paul L. Croce, on the
    briefs).
    Jacqueline D'Alessandro, Deputy Attorney General,
    argued the cause for respondents (Matthew J. Platkin,
    Attorney General, attorney; Melissa H. Raksa,
    Assistant Attorney General, of counsel; Jacqueline
    A-2767-21
    2
    D'Alessandro and Elizabeth Tingley, Deputy Attorney
    General, on the brief).
    The opinion of the court was delivered by
    SMITH, J.A.D.
    After cross-motions for summary judgment, plaintiffs appeal from the
    trial court's order granting defendants' motion for summary judgment on
    certain taking claims and dismissing certain plaintiffs' remaining takings
    claims on ripeness grounds for failure to exhaust administrative remedies.
    Plaintiffs, a group of hospitals licensed to do business in New Jersey and
    governed by the Health Care Cost Reduction Act, N.J.S.A. 26:2H-18.50 to -69,
    contend that N.J.S.A. 26:2H-18.64 (charity care), the State's Medicaid Plan,
    and corresponding regulations compel plaintiffs to use medicine, equipment,
    and services they control to provide patient care regardless of ability to pay,
    and without an adequate subsidy to make up the financial shortfall. Plaintiffs
    argue that this scheme represents an unconstitutional taking. Plaintiffs also
    claim the trial court erred when it dismissed certain plaintiffs' claims for a lack
    of ripeness due to their failure to exhaust administrative remedies.1
    1
    See Do-Wop Corp. v. City of Rahway, 
    168 N.J. 191
    , 199 (2001) (permitting
    an appellate court to affirm for other reasons because "appeals are taken from
    orders and judgments and not from opinions").
    A-2767-21
    3
    Considering the arguments and governing legal principles, we affirm the
    trial court's order dismissing all of the constitutional taking claims, but we do
    so for slightly different reasons.
    I.
    A.
    A brief overview of Medicaid, the Health Care Cost Reduction Act, and
    related charity care provisions is warranted.         The Medicaid program,
    established in 1965 by Title XIX of the Social Security Act, is a joint federal -
    state program designed to provide medical care for indigent, disabled, and
    elderly persons. 
    42 U.S.C.A. § 1396
    ; United Hosps. Med. Ctr. v. State, 
    349 N.J. Super. 1
    , 4 (App. Div. 2002). If a state chooses to join the Medicaid
    program, it "must operate its program in compliance with the federal statute
    and regulations," United Hosps., 
    349 N.J. Super. at
    4 (citing Harris v. McCrae,
    
    448 U.S. 297
    , 301 (1980)), and must submit a Medicaid State Plan, describing
    the methods and standards for reimbursement to providers, for federal
    approval, 
    42 U.S.C.A. § 1396
    (a)(13); N.J.S.A. 30:4D-7.
    In 1968, our State Legislature elected to participate in the Medicaid
    program when it passed the Medical Assistance and Health Services Act
    (N.J.S.A. 30:4D-1 to -19) for patients whose "resources are determined to be
    inadequate to secure necessary medical care at their own expense." Bergen
    A-2767-21
    4
    Pines County Hosp. v. N.J. Dep’t of Human Servs., 
    96 N.J. 456
    , 465 (1984).
    As per the Act, the Medicaid program is administered by the Division of
    Medical Assistance and Health Services (the Division). See United Hosps.,
    
    349 N.J. Super. at 5
    . 2
    In 1992, as part of the Health Care Cost Reduction Act, N.J.S.A. 26:2H -
    18.50 to -69, the Legislature enacted N.J.S.A. 26:2H-18.64, which provides in
    part, "[n]o hospital shall deny any admission or appropriate service to a patient
    on the basis of that patient’s ability to pay or source of payment." Such care is
    referred to as charity care. 3 To qualify for charity care, individuals must have
    no health coverage, private or government sponsored (including Medicaid),
    and meet the income and asset eligibility requirements. N.J.A.C. 10:52 -11.8.
    A hospital which violates the statute is subject to a fine of $10,000 per
    violation.4 See N.J.S.A. 26:2H-18.64.
    2
    Providers are reimbursed for care of Medicaid-eligible patients through the
    N.J. Medicaid Program fund, and the State is permitted to seek reimbursement
    for a portion of those costs. See SSI Med. Servcs v. State of New Jersey, 
    146 N.J. 614
    , 617-18 (1996).
    3
    Charity care is one aspect of New Jersey's Medicaid State Plan, which is
    approved by the Secretary of Health and Human Services. See N.J.S.A.
    30:4D-6.
    4
    The corresponding regulation is N.J.A.C. 10:52-11.14, which prohibits
    hospitals from sending a bill for services to eligible persons or initiating
    collection actions against them.
    A-2767-21
    5
    The Legislature recognized that disproportionate share hospitals (DSH) 5
    bear a greater burden to sustain the interests of the Health Care Cost Reduction
    Act and established a Health Care Subsidy Fund (HCSF), N.J.S.A. 26:2H-
    18.58, to distribute subsidies to qualifying facilities.        Each year, the
    Legislature appropriates funds to the HCSF via the annual Appropriations Act.
    The State of New Jersey Department of Health (DOH) then allocates subsidies
    for the current state fiscal year according to the statutory formula contained in
    N.J.S.A. 26:2H-18.59i—accounting for any instructions or modifications
    contained in the current year’s Appropriations Act. N.J.S.A. 26:2H-18.55.
    In Univ. of Med. & Dentistry v. Grant, we explained the subsidy
    program's operation in detail:
    The statutory distribution formula requires a
    determination of how much charity care an eligible
    hospital has provided, valued not at its usual and
    customary charges but rather on the amount Medicaid
    would pay for such services ("documented charity
    care").
    ....
    Therefore, the initial value must be converted or
    "priced" to the Medicaid value to determine ultimately
    ______________________
    5
    A hospital qualifies as a DSH when it serves a disproportionate number of
    low-income patients with special needs.
    A-2767-21
    6
    the "documented charity care" for each eligible
    hospital.
    ....
    To this basic figure, other calculations are
    applied to determine eligibility for, and amount of,
    any subsidy. The "profitability factor" reduces the
    hospital's "documented charity care" if the hospital's
    operating margin is above the statewide median. Also
    considered is the "payer mix factor," determined by
    how much of the hospital revenues come from private
    payers. A hospital with a factor equal to or less than
    the statewide target would not receive a charity care
    subsidy.
    [343 N.J Super. 162, 165-68 (App. Div. 2001)
    (internal citations omitted).]
    The Legislature's health care subsidy is not designed to be a full
    "reimbursement" covering a hospital’s actual charity care expenses, but instead
    to provide each hospital with its "proportionate share of the total subsidy
    funded by the Legislature for that year." Id. at 165. Hospitals may challenge
    their assigned share of the HCSF in two ways.         They may challenge the
    amount of their designated HCSF subsidy by filing an administrative appeal
    with the DOH.        N.J.A.C. 10:52-13.4(f)(1)-(2).   They may also seek an
    adjustment of the Medicaid rate issued each year by the Division. N.J.A.C.
    10:52-14.17(c)(1).
    B.
    A-2767-21
    7
    Against this backdrop, we review our unpublished opinions in In re
    Medicaid Inpatient Hosp. Reimbursement Rate Appeals (In re Medicaid), No.
    A-3726-13 (App. Div. May 20, 2016) and IMO Englewood Med. Ctr.'s SFY
    2014 Charity Care Subsidy Appeal (IMO Englewood), No. A-1555-13 (App.
    Div. May 20, 2016), which are directly related to the matter before us. 6 In
    each case, the plaintiff hospitals raised taking claims as part of their rate
    challenges, and in each case final administrative decisions were issued
    dismissing the taking claims on jurisdictional grounds.
    In In re Medicaid, plaintiff hospitals appealed to the Division disputing
    their assigned Medicaid rates pursuant to N.J.A.C. 10:52–14.17. (slip op. at 2-
    3). After the Division denied the appeals, plaintiffs sought an administrative
    hearing to make an as-applied constitutional challenge to each [h]ospital's
    2009 Medicaid rates.     Id. at 4.   They argued the State failed to provide
    adequate compensation for its taking of [h]ospital property, "including . . .
    facilities, equipment, staff and services, for public use."   Ibid. In its final
    administrative decision, the Director of the Division concluded that an
    6
    References and citations to these unpublished appellate opinions herein are
    provided for the purpose of explaining the history of the hospitals' efforts to
    bring constitutional takings claims, and as such are not provided for any
    precedential purpose. See Zahl v. Hiram Eastland, Jr., 
    465 N.J. Super. 79
    , 86 n.1
    (App. Div. 2020) ("Although citing an unpublished opinion is generally forbidden,
    [see R. 1:36-3], we do so here to provide a full understanding of the issues
    presented.").
    A-2767-21
    8
    administrative hearing was not the proper venue for the hospitals' "facial
    challenge to the charity care statute . . . administered by the [DOH] not [the
    Division]." 
    Ibid.
     We affirmed, concluding the hospitals' takings claims were
    not foreclosed, and could "be developed and . . . adjudicated in another
    forum." 
    Id. at 17
    .
    In IMO Englewood, eight hospitals filed administrative appeals
    challenging the New Jersey Health Care Cost Reduction Act, including
    N.J.S.A. 26:2H-18.64. (slip op. at 3). The plaintiffs projected losses for fiscal
    year 2015, alleging the losses were due to their statutory obligation to provide
    low or no-cost care to eligible persons. 
    Id. at 5-6
    . The plaintiffs claimed this
    statutory obligation, combined with the alleged inadequate subsidies,
    constituted   unconstitutional     takings   of   their   property   without       just
    compensation. 
    Id. at 6
    . The Commissioner of the DOH concluded it lacked
    jurisdiction to consider the hospitals' constitutional claims.          
    Ibid.
           We
    affirmed. 
    Id. at 3
    . Noting the plaintiff hospitals received some subsidies in
    the disputed years, we declined to exercise original jurisdiction because of an
    insufficient factual record.     
    Id. at 8-9, 14
    . Similar to In re Medicaid, we
    instructed the plaintiff hospitals to bring their claims in the trial court, where a
    A-2767-21
    9
    factual record appropriate to analyze their takings claims could be developed.
    
    Id. at 15
    .7
    II.
    We turn to the matter before us. Plaintiffs are fourteen licensed for-
    profit and non-profit general acute care hospitals who all qualify as DSH.8
    Defendants include the State of New Jersey, the State of New Jersey
    Department of Human Services (DHS), the Division, DOH, and several state
    officials.9
    Approximately six weeks after our decisions in In re Medicaid and IMO
    Englewood, plaintiffs filed suit against various state entities and individual
    7
    In both In re Medicaid and IMO Englewood, the plaintiff hospitals brought
    as-applied constitutional challenges, however, in both cases, the Director and
    Commissioner considered the challenges as facial.          For example, the
    Commissioner in IMO Englewood noted the hospitals had not challenged the
    manner in which their charity care subsides had been calculated, but rather
    their statutory obligation to provided charity care in light of inadequate
    subsidies. 
    Id. at 6
    .
    8
    After argument, JFK Medical Center was dismissed pursuant to stipulation
    on February 27, 2024.
    9
    Sarah Adelman is the current commissioner of DHS. Jennifer Langer Jacobs
    is the current Division Assistant Commissioner of the Division. As the
    Division is part of the Department of Human Services, respondents
    Commissioner Adelman, DHS, Assistant Commissioner Jacobs, and the
    Division are referenced collectively in this memo as "the Division." In
    addition, the current commissioner of the DOH is Dr. Kaitlan Baston as of July
    25, 2023. All defendants are collectively referenced to herein as "the State."
    A-2767-21
    10
    officers, asserting constitutional takings claims dating back to 2004. Plaintiffs'
    two-count complaint alleged that under the Fifth and Fourteenth Amendments
    of the United States Constitution as well as Article I, Paragraph 20 of the New
    Jersey Constitution of 1947: "The obligations imposed by the [charity care]
    [s]tatute result in a taking of the . . . [h]ospitals' real and personal property in
    terms of space, supplies, and services"; and "[T]he mandates imposed on the
    . . . [h]ospitals by . . . [the charity care] [s]tatute along with the limited
    reimbursement provided by the Division and DOH for the . . . hospitals'
    treatment of Medicaid and charity care patients has resulted in an as-applied
    violation of the Takings Clauses of the United States and New Jersey
    Constitutions."
    After the close of discovery, both sides moved for summary judgment.
    Finding no disputed issues of material fact, the court granted defendants'
    motion for summary judgment on certain taking claims, and dismissed in part
    plaintiffs' remaining takings claims on ripeness grounds for failure to exhaust
    administrative remedies.
    The court first considered the question of whether plaintiffs' claims
    constituted as-applied or facial constitutional challenges.      The court found
    each plaintiff sought just compensation for their individual alleged shortfalls
    and did not seek to advocate for the rights of hospitals statewide. Hence, the
    A-2767-21
    11
    court concluded plaintiffs' claims were as-applied constitutional takings
    claims.
    The court's comprehensive statement of reasons supporting its order
    granting defendants summary judgment included findings of fact and
    conclusions of law. First, the court concluded certain plaintiffs' claims were
    not ripe, finding they failed to exhaust administrative remedies prior to filing
    suit. Next, the court analyzed the surviving plaintiffs' claims and concluded
    New Jersey's charity care statute and the Medicaid rates used for the HCSF
    distribution formula did not constitute a physical or regulatory taking. The
    court stated:
    [A]ny interference with [p]laintiffs' property rights
    arises from two public programs enacted to adjust the
    burdens and benefits of economic life for the common
    good. The charity care and Medicaid programs ensure
    equal access to healthcare for indigent patients—a
    public health and healthcare purpose squarely in line
    with the public health laws upheld in In re Health Care
    Admin. Bd., 
    83 N.J. 67
    , 73, 75-76 (1980), and Cooper
    Medical Center v. City of Camden, 
    214 N.J. Super. 493
    , 496-97 (App. Div. 1987).
    [(Citations reformatted).]
    Plaintiffs appealed.
    III.
    Our review of a trial court's summary judgment order is de novo,
    applying the same legal standard, namely, the standard set forth in Rule 4:46-
    A-2767-21
    12
    2. Conley v. Guerrero, 
    228 N.J. 339
    , 346 (2017). We consider, as did the trial
    court, whether "the competent evidential materials presented, when viewed in
    the light most favorable to the non-moving party, are sufficient to permit a
    rational factfinder to resolve the alleged disputed issue in favor of the non-
    moving party." Town of Kearny v. Brandt, 
    214 N.J. 76
    , 91 (2013) (quoting
    Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995)).
    If there is no genuine issue of material fact, we must then "decide
    whether the trial court correctly interpreted the law." Dickson v. Cmty. Bus
    Lines, 
    458 N.J. Super. 522
    , 530 (App. Div. 2019) (citing Prudential Prop. &
    Cas. Co. v. Boylan, 
    307 N.J. Super. 162
    , 167 (App. Div. 1998)). "We accord
    no deference to the trial judge's conclusions of law and review these issues de
    novo." 
    Ibid.
    Both the Takings Clause of the Fifth Amendment and the New Jersey
    Constitution prohibit the taking of private property for public use "without just
    compensation." U.S. Const. amend. V; N.J. Const. art. I, ¶ 20. Our courts
    apply the same analysis for state and federal takings claims, viewing the
    constitutional provisions as "coextensive."    Klumpp v. Borough of Avalon,
    
    202 N.J. 390
    , 405 (2010).
    While "[t]he paradigmatic taking requiring just compensation is a direct
    government appropriation or physical invasion of private property," the
    A-2767-21
    13
    Constitution also guards against certain uncompensated regulatory interference
    with a property owner's interest in their property. Lingle v. Chevron U.S.A.
    Inc., 
    544 U.S. 528
    , 537-38 (2005); see also Cedar Point Nursery v. Hassid, 
    594 U.S. 139
    , 147-48 (2021) (noting most obvious examples of physical takings
    include when government condemns property, takes possession without
    acquiring title, or physically occupies property—such as "recurring flooding as
    a result of building a dam"). Regulations are considered per se takings where
    they "result[] in a physical appropriation of property." Cedar Point, 594 U.S.
    at 149.
    Where the regulation does not occupy or appropriate property, but still
    influences it, we must engage in a fact-specific inquiry. See Ark. Game &
    Fish Comm'n v. United States, 
    568 U.S. 23
    , 32 (2012); Bernardsville Quarry,
    Inc. v. Borough of Bernardsville, 
    129 N.J. 221
    , 232 (1992). In Penn Central,
    
    438 U.S. 104
    , 124 (1978), the Supreme Court identified certain factors to
    guide such a fact-sensitive analysis, observing there is no "set formula" for
    deciding regulatory takings cases. The three Penn Central factors are: the
    economic impact of the regulation on plaintiff; the extent to which the
    regulation has interfered with plaintiff's investment-backed expectations; and
    the character of the governmental action being challenged.      Ibid.; see also
    Mansoldo v. State, 
    187 N.J. 50
    , 58-59 (2006) (explaining "protection from
    A-2767-21
    14
    governmental takings under the New Jersey constitution is coextensive with
    protection under the federal constitution" and that the Penn Central factors
    serve to resolve regulatory takings claims that are not per se physical takings).
    A.
    We first consider whether the trial court erred by dismissing some of
    plaintiffs' claims for failure to exhaust administrative remedies.
    The court found plaintiffs' taking claims were as-applied claims. Having
    carefully reviewed the record, we reach a different conclusion. An as -applied
    constitutional challenge to a regulatory scheme necessarily involves the proffer
    of evidence to support the challenge. The administrative agency responsible
    for enforcement of the regulation must hear the claim first. See Fred Depkin
    & Son, Inc. v. Dir., New Jersey Div. of Tax'n, 
    114 N.J. Super. 279
    , 284-86
    (App. Div. 1971). This principle does not apply to facial claims, which are
    purely questions of law. 
    Ibid.
     see also Matter of Comm'r of Ins.'s Issuance of
    Ords. A-92-189 & A-92-212, 
    274 N.J. Super. 385
    , 404 (App. Div. 1993).
    Here, plaintiff hospitals challenge the Legislature's reimbursement
    system, including N.J.S.A. 26:2H-18.64, in its entirety.             If successful,
    plaintiffs would have us declare charity care unconstitutional for failing to
    provide plaintiffs at-cost reimbursement. The charity care subsidy reimburses
    no hospital in New Jersey at one hundred percent. It follows that plaintiffs'
    A-2767-21
    15
    claim is one which, if successful, will affect all hospitals, even though the
    claim was not brought on behalf of all hospitals licensed to operate in the state.
    We conclude this represents a facial constitutional attack on the charity care
    statute, and that it would be futile to remand those claims to the agency. 10 We
    conclude that the trial court's order dismissing without prejudice certain
    plaintiffs' takings complaints between 2004 and 2015 for failure to first obtain
    individual decisions under the rate appeal process was issued in error.11
    B.
    Plaintiffs' primary argument on appeal is that the trial court erred by
    concluding no taking occurred.       They propose alternate theories .       First,
    plaintiffs posit N.J.S.A. 26:2H-18.64's operation results in a per se taking of
    10
    Even if we accept that plaintiffs' constitutional claims were as-applied and
    not facial claims, a ripeness analysis would require judicial review of all the
    takings claims now. See Platkin v. Smith & Wesson, 
    474 N.J. Super. 476
    , 496
    (App. Div. 2023).        Plaintiffs have spent years attempting to bring
    constitutional taking claims as part of their administrative challenge to
    Medicaid rates and charity care subsidies. It follows that remand for an
    administrative hearing on any aspect of these claims after more than a decade
    of litigation would be fundamentally unfair.
    11
    The trial court dismissed without prejudice all takings claims for lack of
    ripeness except the following: Englewood Hospital & Medical Center and JFK
    Medical Center for fiscal years 2009-12 and 2014-15; Hoboken University
    Medical Center, Capital Health Regional Medical Center, and Capital Health
    Medical Center–Hopewell for fiscal years 2014-15 only; and Hackensack
    Meridian Health Pascack Valley Medical Center, Hackensack Meridian Health
    Mountainside Medical Center, and St. Mary's General Hospital for fiscal years
    2009-12 only.
    A-2767-21
    16
    hospital property due to the "inadequate" state subsidies the statute generates.
    In the alternative, plaintiffs contend they met their burden to show a regulatory
    taking of the same property occurred when they presented to the trial court
    uncontroverted Penn Central evidence.
    A constitutional takings analysis must first address the nature of the
    property at issue. Property need not be physical, tangible property to trigger a
    takings analysis. The term property
    is not used in the "vulgar and untechnical sense of the
    physical thing . . . . [Instead, it] [denotes] the group of
    rights inhering in the citizen's relation to the physical
    thing, as the right to possess, use and dispose of it. . . .
    The constitutional provision is addressed to every sort
    of interest the citizen may possess."
    [Pruneyard Shopping Ctr. v. Robins, 
    447 U.S. 74
    , 82
    n.6 (1980) (second, third, and fourth alterations in
    original) (quoting United States v. General Motors
    Corp., 
    323 U.S. 373
    , 377-78 (1945)).]
    The United States Supreme Court has identified property interests in
    both real property and in investment interests. See, e.g., Horne v. Dep't of
    Agric., 
    576 U.S. 350
     (2015) (finding property interest in raisins confiscated by
    government officials); Duquesne Light Co. v. Barasch, 
    488 U.S. 299
    , 309-12
    (1989) (finding property interest in utility profits where rates were so stringent
    that they became confiscatory in nature).         Our Supreme Court has also
    identified property interests in a landlord's expectation of rental income and
    A-2767-21
    17
    the rendering of professional services. See, e.g., Prop. Owners Ass'n v. North
    Bergen, 
    74 N.J. 327
    , 336 (1977) (finding rental subsidies confiscatory);
    Madden v. Delran, 
    126 N.J. 591
    , 602 (1992) (identifying legal services as
    property).
    We now consider plaintiffs' contention that operation of N.J.S.A. 26:2H-
    18.64 results in a physical appropriation of their property, which effects a per
    se taking. Plaintiffs argue government-authorized entry onto their property
    and compelled provision of medical supplies and staff labor goes further than
    just a "regulatory restriction on use." They rely primarily on the standard set
    forth in Loretto v. Teleprompter Manhattan CATV Corp., 
    458 U.S. 419
     (1982),
    which was further developed by Nollan v. California Coastal Com'n, 
    483 U.S. 825
     (1987).
    In Loretto, New York passed a law requiring landlords to permit cable
    companies to install equipment on apartment buildings in exchange for a
    nominal fee. 
    458 U.S. at 421
    . The Supreme Court held that where a physical
    occupation is permanent—no matter how small—it is a taking that must be
    compensated. 
    Id. at 435
    .
    In Nollan, the Supreme Court applied Loretto where a government land
    use entity conditioned a use permit upon the property owner's grant of a public
    easement.     483 U.S. at 827.    The Court concluded the easement was a
    A-2767-21
    18
    "permanent physical occupation" of the property, because the public was
    "given a permanent and continuous right to pass to and fro, so that the real
    property may continuously be traversed, even though no particular individual
    is permitted to station himself permanently upon the premises." Id. at 832.
    In contrast to the plaintiffs in Loretto and Nollan, plaintiffs here operate
    hospitals within the complex and highly regulated health care industry. Unlike
    the cable installation law in Loretto, N.J.S.A. 26:2H-18.64 does not limit the
    right to exclude individuals from their premises. Rather, it prohibits hospitals
    from turning away patients "on the basis of [their] ability to pay" without
    being subject to civil penalty, and further prohibits billing only those patients
    who qualify under charity care.     Similarly, the contested scheme does not
    permit the public's unfettered access to plaintiffs' premises like the easement
    condition in Nollan. Instead, the Legislature crafted the charity care statute
    with specificity, requiring plaintiffs provide care only to those the act aims to
    benefit.
    To further support their argument, plaintiffs contend their facts are
    analogous to the facts in Cedar Point, and distinguishable from Pruneyard
    Shopping Ctr., 447 U.S. at 74 (holding that the temporary occupation of a
    privately owned mall by pamphleteers was not a taking).
    A-2767-21
    19
    In Cedar Point, the Supreme Court concluded a regulation granting labor
    union organizers a three-hour right of access to agricultural employer's
    property 120 days a year, for the purpose of soliciting support for unionization
    was a per se physical taking. 549 U.S. at 143. The nature of the property at
    issue was a private agricultural business—not open to the public. The disputed
    regulation required the plaintiff property owners to open their property to
    third-party union organizers. The plaintiffs claimed the imposition disturbed
    their operations. Ibid. The Court pointed out that Pruneyard was "readily
    distinguishable," as it involved a business generally open to the public unlike
    the farms at issue. Id. at 157.
    We conclude the charity care statute's operation does not lead to physical
    invasion of the hospitals' property by the public because, unlike Cedar Point,
    the public's presence in a hospital is a natural element of its business, making
    it more analogous to Pruneyard. Although plaintiffs contend that charity care
    as a whole has a negative economic impact on their investment interests, there
    is no evidence that the prohibition on turning away patients because of
    inability to pay unreasonably impairs the value of the premises. Charity care
    restricts how hospitals use their property to provide medical services, not
    whether they do so. The property will be used as it was intended—to treat
    patients.
    A-2767-21
    20
    Finally, the hospitals' argument that the charity care provisions'
    requirements are an unconstitutional appropriation of their tangible personal
    property is without merit.     To support their argument, plaintiffs cite the
    standard provided by Horne, 576 U.S. at 355 (holding a law requiring raisin
    growers "to give a percentage of their crop to the government, free of charge,"
    was a per se taking). However, unlike Horne, the statute here does not require
    a transfer of ownership of medical supplies or equipment into the government's
    or a third party's hands. The hospitals retain the majority of their agency as to
    their medical supplies and equipment. The record shows no per se taking, as
    plaintiffs have failed to show evidence of physical appropriation of the
    hospital property, real or personal, consistent with our jurisprudence.
    C.
    Having found no per se taking, we next balance "the private interests
    affected by the regulation against the public interests that are advanced."
    Matter of Plan for Orderly Withdrawal of Twin City Fire Ins. Co., 
    129 N.J. 389
    , 417 (1992). To accomplish this, we analyze the relationships among the
    Penn Central factors. Where there is no per se taking, and
    where the government merely regulates the use of
    property, compensation is required only if
    considerations such as the purpose of the regulation or
    the extent to which it deprives the owner of the
    economic use of the property suggest that the
    regulation has unfairly singled out the property owner
    A-2767-21
    21
    to bear a burden that should be borne by the public as
    a whole.
    [Yee v. City of Escondido, 
    503 U.S. 519
    , 522-23
    (1992).]
    Plaintiffs argue the uncontroverted record shows:         adverse economic
    impact to the hospitals; undue infringement on their investment backed
    expectations; and per se confiscatory government action. They contend that,
    on balance, N.J.S.A. 26:2H-18.64's regulatory burden outweighs its public
    good. We discuss each factor in turn.
    1. Economic Impact
    Plaintiffs argue the subsidy shortfall           causes   a constitutionally
    burdensome economic impact.         They offer expert testimony to show their
    hospitals fall below the national median in three main industry-wide criteria:
    profitability, liquidity, and debt-to-capitalization ratio.
    A regulation's economic impact must be examined in the context of the
    property as a whole rather than by its parts or segmented uses.          See Penn
    Central, 438 U.S. at 130-31.       We look to the disparity between subsidies
    plaintiffs received and the cost they've incurred for charity care medical
    services and determine the impact it has had on their property. Giving all
    favorable inferences to plaintiffs, Kearny, 
    214 N.J. at 91
    , the record shows
    they clearly established before the court evidence sufficient to support a
    A-2767-21
    22
    finding that N.J.S.A. 26:2H-18.64 has had an adverse impact on their
    profitability.     The record also shows that during the years of plaintiffs'
    compliance with N.J.S.A. 26:2H-18.64, they fell short of industry-wide
    profitability standards. Plaintiffs further contend that shortfall is wholly due to
    the charity care provisions. While plaintiffs have shown sufficient material
    issues of fact demonstrating they are less profitable than the average hospital
    nationally, they have not shown that N.J.S.A. 26:2H-18.64 deprives them of
    economic use of their properties as a whole, in effect, as hospitals. See Yee,
    
    503 U.S. at 522-23
    . A takings claim cannot be sustained on the sole ground
    that plaintiffs fail to financially perform on par with industry-wide norms.
    This framing fails to recognize other relevant regulatory factors at work which
    may be unique to a given hospital serving the community where it is located.
    See Hutton Park Gardens v. Town Council of Town of W. Orange, 
    68 N.J. 543
    , 570 (1975) ("The rate of return permitted need not be as high as prevailed
    in the industry prior to regulation nor as much as an investor might obtain by
    placing his capital elsewhere.").      Giving all favorable inferences that this
    factor should weigh moderately in favor of finding a taking of plaintiffs'
    property, but we caution that this one factor is not dispositive.
    2. Interference with Investment-Backed Expectations
    A-2767-21
    23
    Plaintiffs claim that the charity care statute unduly interferes with their
    investment-backed expectations.      Here, the pertinent question is whether
    plaintiffs have a reasonable investment-backed expectation in receiving
    reimbursement at cost for their treatment of charity care patients. "[D]istinct,
    investment-backed expectations are reasonable only if they take into account
    the power of the state to regulate in the public interest." Nekrilov v. City of
    Jersey City, 
    45 F. 4th 662
    , 674-75 (3d Cir. 2022) (alteration in original)
    (quoting Pace Resources, Inc. v. Shrewsbury Twp., 
    808 F. 2d 1023
    , 1033 (3d
    Cir. 1987)). Hospital investors in the highly regulated health care industry
    should expect that use of their property, in all its forms, is likely to be
    regulated by the state, and that such government regulation may diminish
    investment-backed expectations without resulting in an unconstitutional
    taking. See also United Wire, Metal & Mach. Health & Welfare Fund v.
    Morristown Mem'l Hosp., 
    995 F. 2d 1179
    , 1191 (3d Cir. 1993) (rejecting a
    takings challenge to state system of setting hospital billing rates, in part,
    because plaintiffs' investment-backed expectations were reduced by "the
    historically heavy and constant regulation of health care" in the state).
    The New Jersey health care industry has been consistently and
    comprehensively regulated within our state.        Plaintiffs, as a condition of
    obtaining their hospital licenses, elected to provide subsidized medical
    A-2767-21
    24
    services in the communities they serve. When a hospital seeks a license to
    operate in our state, it must consider the laws in effect at that time as well as
    those which may be adopted by our Legislature. Given plaintiffs' choice to do
    business here, it is reasonable that they should expect such license conditions
    to affect business profits. In turn, we conclude it is not reasonable for the
    hospitals to expect an at-cost reimbursement for the medical services the
    Legislature has required them to provide as a condition of doing business in
    our state. Plaintiffs have failed to satisfy this Penn Central factor.
    3. Character of the Government Action
    Our courts have repeatedly stated that the character of public health and
    healthcare regulations typically weighs against the conclusion that a law acts
    as a taking. See JWC Fitness, LLC v. Murphy, 469 N.J. Super 414, 436 (2021)
    (recognizing the nature of the regulation weighed against finding a taking as it
    was not specific to plaintiff and was a valid exercise of police power); In re
    Health Care Admin. Bd., 83 N.J. at 81 (finding no taking where the
    "regulations in question are directed at an acute social problem affecting the
    health and welfare of the needy aged and infirm, are well within the power and
    authority vested in the [DOH] by the Legislature").
    The requirements of the charity care statute and its subsidy scheme are
    specific to its aims—to ensure equal access to healthcare for indigent patients,
    A-2767-21
    25
    and we conclude that such regulation fits squarely within the police power
    vested in our Legislature. The Legislature, in turn, has delegated authority to
    the respective agencies to oversee the appeal processes for both Medicaid
    reimbursement rates and the charity care subsidy. To this end, the character of
    the government action reflects a reasonable adjustment to the benefits and
    burdens of economic life for the common good and weighs strongly against
    finding a taking.
    D.
    After a thorough review of all plaintiffs' constitutional taking claims, we
    conclude that the record shows no per se taking, nor does a balancing of the
    Penn Central factors reveal a regulatory taking. We affirm the trial court's
    order granting defendants' motion for summary judgment against all plaintiffs.
    Affirmed.
    A-2767-21
    26
    

Document Info

Docket Number: A-2767-21

Filed Date: 6/27/2024

Precedential Status: Precedential

Modified Date: 7/2/2024