Medical Referral Program still belongs to CHCC—AG

The Medical Referral Service Office still belongs to the Commonwealth Healthcare Corp. and was transferred to the Office of the Governor without legal authority, according to Attorney General Edward Manibusan.

In a legal opinion he addressed to Gov. Ralph DLG Torres dated June 21, a copy of which was obtained by Saipan Tribune yesterday, Manibusan recommends that CHCC resume the Medical Referral Service Office function as permitted by Public Law 16-51.

Manibusan alternatively recommends that the Legislature pass a law authorizing the MRSO to operate within the Governor’s Office under the Executive Branch, in accordance with the NMI Constitution Article 3, Section 15. He said such legislation may include immunity provisions and retroactive effects.

In the absence of such proper legal authorization, the Governor’s Office will have to cease processing matters pertaining to the MRSO, including contracts and payments, until the office is operated with proper legal effect.

Manibusan said the OAG recently examined the legal underpinnings of the MRSO under the Governor’s Office after the Office of the Public Auditor asked about it. In this examination, Manibusan said, it became clear that the MRSO has no enabling law creating that office with enumerated functions and powers. He said the MRSO is treated as a line-item program within budget appropriation laws.

Manibusan said only two laws specifically mention the MRSO: one pertaining to government-subsidized patient-escort requirements, and the second regarding an exception on government liability under the Government Liability Act.

He said the CNMI Legislature, through Public Law 16-51, established CHCC in January 2010, and specifically empowered the corporation to address medical referral matters, which was previously handled by CHCC’s predecessor, the Department of Public Health, “without any apparent explicit grant of statutory authority.”

He said P.L. 16-51, however, did not create a new medical referral office within the new health care corporation, among other specifically-enumerated functions.

In May 2013, then-governor Eloy S. Inos executed Executive Order 2013-09, ordering CHCC to relinquish responsibility over the Medical Referral Program, with the Office of the Governor taking over the responsibility for the administration and operation of the program. Manibusan said Inos based his legal authority for that executive order on Article 3, Section 15, of the CNMI Constitution.

He pointed out, though, that E.O. 2013-09, did not reallocate an existing office, provided for by law, and its functions. He said E.O. only re-allocated a CHCC function and essentially created a new office within the Executive Branch, without explicit statutory authority, when “only the Legislature may create a new Executive Branch agency.”

Manibusan said under the CNMI Constitution Article 3, Section 15, the governor can re-allocate offices, but he cannot create an entirely new government entity based on an enumerated function of CHCC.

“It does not matter that the Legislature did not reject the executive order when it was presented,” he said.

The governor, Manibusan said, cannot usurp legislative authority by creating a new office within the Executive Branch.

He said a non-autonomous Executive Branch agency, such as the MRSO, has no rights and no legal authority except that which is provided to it by law.

The AG said the CNMI Legislature never created the MRSO with established functions by law.
Thus, he said, E.O. 2013-09 is ultimately ultra vires (done beyond one’s legal power or authority), and the MRSO regulations promulgated by the Executive Branch in the NMI Administrative Code lack legal force and effect.