The Role of Access in Charitable Tax Exemption

The central thesis of this Article is that the criterion that can and should be used to judge exempt status in these cases of “commercial similarity” is whether the organization provides access to services for previously-underserved populations or provides specific services to the majority population that otherwise are not provided by the private sector. Using “enhancing access” as the main criterion in judging an organization’s entitlement to exemption makes considerable sense; after all, a major rationale for granting charitable tax exemption is to recognize the pluralism-enhancing nature of such enterprises. Organizations that provide expanded access to services for those unable to obtain them as a result of economic, geographic, or other constraints enhance the pluralism objective; exemption becomes the reward for doing so. The access criterion also fits nicely with the major economic explanations for exemption, which posit that exemption helps overcome an undersupply of services at the intersection of private-market failure and government failure. Moreover, making access a central theme of exemption would force organizations to explain their mission in access terms—a process that in and of itself could help focus such organizations on why they differ from for-profit counterparts and what they should do to highlight that difference Part II reviews how IRS rulings and court decisions in the healthcare area already contain access-based language and concepts. Part III expands the analysis of Part II to other cases in which exempt organizations arguably do things similar to for-profit counterparts such as community-development organizations, public-interest law firms, and certain kinds of “arts” organizations. Part IV then presents the policy case for using access as a primary criterion for judging exemption by arguing that the criterion is consistent with both economic and sociological explanations for exemption and the existence of nonprofit organizations. Part V explores the practicalities of an access-based test by developing in more detail the doctrinal implementation of such a test and analyzing how using access as a primary exemption criterion would affect the analysis of exempt status for a variety of organizations that arguably compete with for-profit providers of similar services. Again this part focuses heavily on health care organizations, but also applies an access criterion to organizations outside the health sector. The Article concludes that using “enhancing access” as a primary criterion for exempt status would simplify current doctrine, would still be consistent with theoretical underpinnings of exemption, and would help provide a focus point for the mission of nonprofit organizations that provide commercial-type services

Infant Visual Habituation

The use of visual habituation in the study of infant cognition and learning is reviewed. This article traces the history of the technique, underlying theory, and procedural variation in its measurement. In addition, we review empirical findings with respect to the cognitive processes that presumably contribute to habituation, studies of developmental course and long-term prediction, as well as recent attempts to address or explain the phenomenon of visual habituation through the use of mathematical or quantitative models. The review ends with an appeal for a return to the study of habituation per se as a valid measure of infant learning, rather than relegating the phenomenon to its use as a technique for familiarizing infants in procedures testing for discrimination or recognition

The Charitable Status of Nonprofit Hospitals: Toward a Donative Theory of Tax Exemption

This Article examines the growing controversy over the multi-billion dollar charitable tax exemption enjoyed by nonprofit hospitals. It begins by articulating four criteria for evaluating a rationale of the charitable exemption: deservedness, incorporating the elements of worth and need; proportionality; universality; and historical consistency. The Article then employs these criteria to refute three conventional explanations of why nonprofit hospitals are exempt: because health care is a per se charitable activity; because the treatment of indigent patients relieves a government burden; and because nonprofit hospitals provide community benefits. The Article also uses these criteria to refute two academic theories: Boris Bittker\u27s income measurement rationale and Henry Hansmann\u27s capital subsidy theory. This Article proposes a donative theory as an alternative rationale for the charitable exemption. The donative theory posits that charity describes an entity capable of attracting a substantial level of philanthropic support from the public at large. Donations exist where there is a combined failure of private markets and direct public funding to supply a shared public benefit at the optimally desired level. Donative institutions deserve a tax subsidy because the public\u27s support signals their worth, and the free-rider tendency that affects all giving assures the need for an additional, shadow subsidy. The Article further demonstrates that the donative theory comports with the statutory scheme and the four centuries of legal history that shape the legal concept of charity. In particular, the donative theory provides the only explanation of the tax law\u27s otherwise unjustifiable reliance on the law of charitable trusts

Docosahexaenoic acid (DHA) and arachidonic acid (ARA) balance in developmental outcomes

The DHA Intake and Measurement of Neural Development (DIAMOND) trial represents one of only a few studies of the long-term dose-response effects of LCPUFA-supplemented formula feeding during infancy. The trial contrasted the effects of four formulations: 0.00% docosahexaenoic acid (DHA)/0.00% arachidonic acid (ARA), 0.32% DHA/0.64% ARA, 0.64% DHA/0.64% ARA, and 0.96% DHA/0.64% ARA against a control condition (0.00% DHA/0.00% ARA). The results of this trial have been published elsewhere, and show improved cognitive outcomes for infants fed supplemented formulas, but a common finding among many of the outcomes show a reduction of benefit for the highest DHA dose (i.e., 0.96% DHA/0.64% ARA, that is, a DHA: ARA ratio 1.5:1.0). The current paper gathers and summarizes the evidence for the reduction of benefit at this dose, and in an attempt to account for this reduced benefit, presents for the first time data from infants' red blood cell (RBC) assays taken at 4 and 12 months of age. Those assays indicate that blood DHA levels generally rose with increased DHA supplementation, although those levels tended to plateau as the DHA-supplemented level exceeded 0.64%. Perhaps more importantly, ARA levels showed a strong inverted-U function in response to increased DHA supplementation; indeed, infants assigned to the formula with the highest dose of DHA (and highest DHA/ARA ratio) showed a reduction in blood ARA relative to more intermediate DHA doses. This finding raises the possibility that reduced ARA may be responsible for the reduction in benefit on cognitive outcomes seen at this dose. The findings implicate the DHA/ARA balance as an important variable in the contribution of LCPUFAs to cognitive and behavioral development in infancy