The Public Health Improvement Process in Alaska: Toward a Model Public Health Law

• Citation: Vol. 17
• Publication year: 2000

§ 17 Alaska L. Rev. 77. THE PUBLIC HEALTH IMPROVEMENT PROCESS IN ALASKA: TOWARD A MODEL PUBLIC HEALTH LAW

Alaska Law Review
Volume 17
Cited: 17 Alaska L. Rev. 77

THE PUBLIC HEALTH IMPROVEMENT PROCESS IN ALASKA: TOWARD A MODEL PUBLIC HEALTH LAW

LAWRENCE O. GOSTIN, JAMES G. HODGE, JR. ^{[*] [**]}

I. INTRODUCTION

II. A FRAMEWORK FOR PUBLIC HEALTH LAW

A. Defining Public Health Law

B. Constitutional Authority for Public Health Powers

III. PUBLIC HEALTH LAW IN ALASKA

A. The Alaska Constitution

B. Constitutional and Statutory Provisions of Public Health Law in Alaska

C. Municipal/Local Adoption of Public Health Powers

D. Tribal Public Health Powers

IV. THE PUBLIC HEALTH LAW IMPROVEMENT PROCESS

A. Benefits of a Public Health Law Improvement Process

B. Guidelines for Reforming Public Health Law in Alaska

V. CONCLUSION

FOOTNOTES

[*pg 78 - 79]

I. INTRODUCTION

The mission of public health [is] fulfilling society's interest in assuring conditions in which people can be healthy. ^[1]

Preserving the public health is among the most important goals of government, and law is essential in helping to achieve this goal. Public health law contemplates the responsibilities of individuals and the duties of government to act for the health of society. Laws define the jurisdiction of public health officials and specify the manner in which they may exercise their authority. Laws can also establish norms for healthy behavior and create the social conditions in which people can be healthy. Legislatures, courts, and administrative agencies serve as conduits for social debates on important public health issues within the legal language of rights, duties, and justice. As one public health lawyer has aptly stated, "[t]he field of public health . . . could not long exist in the manner in which we know it today except for its sound legal basis." ^[2] In a forthcoming book, we define the field of public health law as both the study of the legal powers and state duties necessary to assure the conditions of public health, and limitations on state power to constrain individuals' rights in the interests of community health. ^[3]

In its foundational 1988 text, The Future of Public Health, the Institute of Medicine ("IOM") agreed that law was essential for furthering public health, but questioned the soundness of public health law in the United States. ^[4] The IOM concluded that the United States "has lost sight of its public health goals and has allowed the system of public health activities to fall into disarray," ^[5] [*pg 80] due partly to obsolete and inadequate state laws and regulations. Though its bleak view is not universally accepted, ^[6] the IOM further recommended that

states review their public health statutes and make revisions necessary to accomplish the following two objectives: [i] clearly delineate the basic authority and responsibility entrusted to public health agencies, boards, and officials at the state and local levels and the relationships between them; and [ii] support a set of modern disease control measures that address contemporary health problems . . ., and incorporate due process safeguards (notice, hearings, administrative review, right to counsel, standards of evidence). ^[7]

In response to this challenge, some states have updated and revised their public health laws since 1988. Most, however, have not. In many states, public health law remains ripe for reform. Pursuant to a comprehensive survey of communicable disease law in the fifty states, we suggest existing state statutes are ineffective in responding to contemporary health threats for many reasons. ^[8] These statutes often (1) pre-date modern scientific and constitutional developments; (2) fail to equip public health officials with a range of flexible powers needed to control infectious disease; (3) lack adequate standards of privacy, due process, and risk assessment; and (4) are based on arbitrary disease classification schemes that no longer relate to modern disease threats or epidemiologic methods of infection control. ^[9]

The need for public health law reform is well-stated by the IOM and others. Yet, confusion regarding the field of public health law has confounded meaningful proposals for reform attempted by public health officials, state legislators, and the general [*pg 81] public in many states. To address this, we have conducted comprehensive public health law case studies in several states (e.g., New Hampshire, Virginia, and Oregon) in an attempt to facilitate the understanding of public health law, as well as to provide objective, scholarly recommendations for legal and institutional reform. These studies reveal vastly different legal structures for the public health systems within each of these jurisdictions. Our case study in Alaska revealed perhaps the most complex and interesting system of public health law, presenting creative opportunities for reform.

In this Article, we present the findings of our study on the improvement of public health law in Alaska. We examine and analyze the public health laws supporting the state's public health system. The fact that Alaska has attained statehood comparatively recently, and has a governing structure involving state, municipal, rural, and tribal entities presents unique opportunities for the State to improve its public health system and its supporting legal infrastructure.

Part II begins with a framework that examines public health as a distinct field of law and policy. It briefly reviews and defines public health law within the constitutional structure of the United States. The Constitution limits government power in two ways: (1) it divides federal power among three branches of government. and (2) it allocates power between the federal government and the states. The tripartite separation of powers protects individual liberties and the ideology of federalism protects state sovereignty. Although the Constitution does not obligate the federal or state government to act in the interests of public health, the federal government draws its expansive authority to act in the field of public health from specific, enumerated powers provided within the Constitution. These powers include the power to raise revenue for public health services and, through its Commerce power, to regulate, both directly and indirectly, private activities that endanger human health.

Principles of new federalism, however, challenge the extent to which federal powers may lawfully extend into areas of traditional state concern, such as public health. Pursuant to the Tenth Amendment, states retain their sovereign powers. State police powers - or the inherent authority of the state to protect, preserve, and promote the health, safety, morals, and general welfare of the public - represent the state's residual authority to act in the interests of the public health. Local governments, including counties or boroughs, municipalities, and special districts, share public health authority through specific delegations of state police power.

Part III examines the legal authority for public health in Alaska through a comprehensive description of the constitutional, [*pg 82] statutory, and administrative laws underlying public health practice in the state and among tribal jurisdications. Like the federal Constitution, the Alaska Constitution sets limits on the powers of the state while providing affirmative grants of governmental powers. The Alaska Constitution guarantees many individual rights which specifically authorize the state legislature to promote and protect the public health and public welfare. ^[10] Part III reviews an array of statutes enacted by the Alaska Legislature, charging various state and local governmental agencies and departments to regulate and implement traditional public health functions.

Most public health matters in Alaska are administered by one of two state agencies, the Department of Health and Social Services ("DHSS") and the Department of Environmental Conservation ("DEC"). DHSS is primarily responsible for the control of communicable diseases, the administration of public health care, and some public safety issues. The DEC is delegated the authority to regulate environmental threats to health, including public health nuisances.

Alaska's boroughs and cities are delegated various public health powers based on their particular statutory classification under state law. However, Alaska Native villages and tribal groups owe their legal existence, and many of their public health powers, to the federal government. Congress previously assumed direct responsibility for the provision of health care to tribal governments. More recently, Congress encouraged the direct involvement of tribal governments in planning and operating health programs. While the federal-tribal relationship is strong, the United States Supreme Court has confirmed that Alaska has primary jurisdiction over tribal lands. ^[11] Nevertheless, the extent of state influence over tribal governments is conditioned upon the recognition of a federal partnership with tribal governments. This dual recognition of tribal health authorities as federal partners and local governments raises questions concerning the responsibilities for the public health that these tribal governments share with state and other local governments.

Part IV discusses the benefits of a public health law improvement...