The IRS scandal: three degrees of separation from NYS Office of Mental Health


“An administrative agency does not have the power to change the plain meaning of the law and make a disaster happen and that’s what’s happened here.” Rep. Eleanor Holmes Norton  on the IRS’ interpretation of the words “exclusively” and “primarily” in the statue. May 23, 2013

This is relevant to the issue of how NY State’s Office of Mental Health (OMH) and other mental health agencies have ‘interpreted’ the mandate given to them by both the state and federal governments to protect the mentally ill from abuses and bad quality of services.

I discussed this problem in my post When is ‘minimum’ the same as ‘high’? When NYS OMH says so. I wrote it in February this year. There, I exposed how OMH changed the words “high quality of services”  mandated by the state mental health law, to make the providers accountable only to ‘minimum’ levels of care.  Mrs. Norton has validated the point I made there.

DISCLAIMER:

I am NOT supporting ANY politician of ANY of the two parties nor supporting ANY position in favor or against this IRS ‘controversy’. I use this controversy in this post ONLY as an example to ILLUSTRATE problems of statutory law in OMH’s regulations. These are my opinions and do not represent the opinions of other people who are part of the grass-roots group called The Citywide Mental Health Project. End of disclaimer.

THE BACKGROUND: Statutory vs. Regulatory laws and powers

The big issue and controversy is this: statutory law vs. regulatory laws. It’s about the process of making laws and how administrative agencies enact those laws.

1. Law-makers, whether state or Congressional (senate included), pass a law about any issue, be it mental health or IRS etc. It is called STATUTORY law because it is created by elected officials, not by a court or judge.

2. The law-makers delegate the enacting of the law to the commissioner of the administrative agency in charge of the issue for which the law was passed.

3. They give a BLUE PRINT to the agency which tells the agency what GOALS   the REGULATIONS it creates must achieve. The statutory law is a MANDATE to the agency. The regulation is to enact the mandate but carries the force of law and the backing of the police powers to enforce the regulation.

discretionary4. The law-makers give the commissioner of the  agency  DISCRETIONARY POWERS to enact the mandate. This means that the law-makers don’t care what regulations the agency creates, only that the MANDATE is enacted LEGALLY. The agency can create ANY regulation with ANY language as long as the PURPOSE of the regulation is to achieve the MANDATE.

5. But the DISCRETIONARY powers are LIMITED. The commissioner of the agency can pass any regulation as long as it is LEGAL and doesn’t violate the ‘spirit of the mandate nor state or federal laws.

spirit

The ‘spirit of the law’ as seen by some law-makers.

6. This means that an administrative agency is a LAW-MAKING body: Because it MUST pass REGULATIONS to bring the MANDATE into life, an administrative agency is considered a ‘law making’ system.

7. But the COMMISSIONERS of  these administrative agencies with  ‘law-making’ functions are NOT elected. STATUTORY law makers (meaning those we elect to state senate and assemblies and Congress) are, supposedly, accountable to us. Commissioners ARE NOT accountable to us, they are so only to state and federal law-makers.

All of the above is what is called POLICY-MAKING SYSTEM. This is important because:

  • the commissioners of the administrative agencies are NOT ELECTED and not accountable to the public, and
  • Because they have DISCRETIONARY POWERS to create NEW LAWS to control the public’s behavior through these regulations.

Because of all of this, there is a thing called FEEDBACK  built into that policy decision-making  system. It is there so that we can INFLUENCE those COMMISSIONERS into enacting or correcting REGULATIONS that had the unintended outcome of HURTING the people who was supposed to be protected by the regulations.

WORDS HAVE MEANING AND ‘FEELINGS’

words

OK. That was the background. Now, Mrs. Norton did exactly what I did in my document about OMH”s Supported Housing rules: she put the mandate and the agency’s rules side by side to illustrate how the agency DISTORTED the meaning of the mandate. The following is from MSNBC (bold and link by me):

Section 501(c)(4) of the Internal Revenue Code which defines social welfare organizations for tax-exempt purposes defines them this way:  “Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare.”

Then, the IRS code does a magic trick and changes the meaning of the word exclusively:

“To be operated exclusively to promote social welfare, an organization must operate primarily to further the common good and general welfare of the people of the community.”

http://tv.msnbc.com/2013/05/23/exclusively-vs-primarily-irs-law-a-disaster-waiting-to-happen/

The distortion of words in the mandates by these agencies have the consequence of stripping the SPIRIT out of the law, the PURPOSE FOR WHICH the statutory MANDATE was created in the first place.

There is always a ‘context‘ behind every law. Judges refer to them in many cases, they look at the ‘history of the statute” because words without context have no importance nor usefulness. That’s why writing policy and statutes is an ‘art’: there are specific rules about how to write them.

lawsIt is an art to prevent that the meaning of  “exclusively” be INTERPRETED as “primarily”, two words with DIFFERENT meanings. One, ‘exclusively’, CLOSES the door to anything that is NOT contained in the ‘universe’ described in the law. The other, “primarily” has a TENTATIVE meaning, it leaves the door open for things not envisioned and even EXCLUDED in the original description. “Exclusively” says ‘no way Jose’ to anything outside the boundaries; the other, “primarily”, says ‘yeah right, whatever’. One says “men only club’, the other says ‘primarily men only club’. Go figure. Bad examples? I think they are grrreat!

I stand by my claim that OMH’s so-called licensing rules violate  state and federal mandates. The problem is that, once these agencies write their rules, it is as if they were written in stone.

Remember how difficult it was to remove the administrative  rule that ordered Black people and other minorities to seat in the back of the bus in the South?

Just because it is a law or rule or written in stone doesn’t make it right nor are we obligated to obey unjust rules.

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