2012-Op. (Apr. 17).

• Case Date: April 17, 2012
• Court: Alaska

Alaska Attorney General Opinions 2012. 2012-Op. (Apr. 17). April 17 2012Richard C. Holm Chair Board of PharmacyP.O. Box 110806 Juneau AK 99811-0806Re: License requirements for individual pharmacists working for tribal health programs, AGO No. AN2009102500Dear Mr. Holm: You have asked whether Alaska professional licensing requirements apply to pharmacists working for Alaska Native tribal health programs. As explained in the following opinion, because of a federal law enacted in March 2010, pharmacists employed by tribal health programs do not need to be licensed in Alaska as long as they are licensed in another state. This federal law, sometimes called Section 221, reads:

Licensed health professionals employed by a tribal health program shall be exempt, if licensed in any State, from the licensing requirements of the State in which the tribal health program performs the services described in the contract or compact of the tribal health program under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.). (fn1)

Section 221 expressly preempts-i.e., overrides-state licensing requirements for a pharmacist who qualifies for the exemption.(fn2) The conclusion that pharmacists employed by tribal health programs are exempt from Alaska licensing requirements relies entirely on the existence of Section 221. Section 221 was enacted along with the Patient Protection and Affordable Care Act (PPACA). PPACA has been challenged in multiple lawsuits, and the U.S. Supreme Court may ultimately decide that it is unconstitutional. If the court strikes down all of PPACA, including the Indian health provisions, Section 221 will no longer be the law and the analysis of the licensing question will change. As of the date of this opinion, however, Section 221 is in effect. To qualify for a Section 221 exemption, a pharmacist must be employed by a tribal health program operating under an Indian Self-Determination and Education Assistance Act (ISDEAA) agreement between the federal Indian Health Service (IHS) and a tribal organization. The exemption applies only to a pharmacist with a current, valid out-of-state license. The licensing exemption only applies during time spent working for the tribal health program-if a pharmacist wishes to "moonlight" working elsewhere, an Alaska license is required.(fn3) A pharmacist who works for a tribal health program as a contractor rather than a regular employee may be entitled to the exemption, but this will depend on the specific facts of the situation.(fn4) The Board may require a pharmacist to provide proof of out-of-state licensure and tribal health program employment status before recognizing a Section 221 licensing exemption.(fn5) Licensing boards who need help determining whether a particular person in a specific factual scenario qualifies for a Section 221 exemption should contact the Department of Law. Section 221 does not prevent state licensing boards from exercising authority over their own licensees. A tribal pharmacist who holds an Alaska license is still subject to discipline by the Board.(fn6) Finally, as the Department of Law concluded in 2005 with regard to dental health aides,(fn7) federally certified community health aides do not have to obtain pharmacist or pharmacy technician licenses even if they are performing pharmacy-related functions as long as they are acting within their scope of practice.(fn8) Requiring community health aides to obtain state professional licenses would pose an obstacle to the federal community health aide program, which is intended to increase health services in remote areas through the use of paraprofessional aides. This conclusion does not depend on Section 221 and would not be affected if PPACA were struck down. OPINION I. INTRODUCTION You have asked whether Alaska professional licensing requirements apply to individual pharmacists working for Alaska Native tribal health programs. Because of an express federal statutory exemption enacted in March 2010, pharmacists employed by tribal health programs that are operated under Indian Self-Determination and Education Assistance Act (ISDEAA) agreements need not obtain Alaska licenses as long as they are validly licensed in another state.(fn9) Additionally, as the Department of Law previously determined with regard to dental health aides,(fn10) federally certified community health aides need not be state licensed even if they are performing pharmacy-related functions as long as they are acting within their scope of practice. II. FACTUAL OVERVIEW OF ALASKA NATIVE HEALTH CARE The federal government recognizes itself as having special obligations towards Native Americans and Alaska Natives, including providing them with health care.(fn11 )Historically, federal agencies like the Bureau of Indian Affairs (BIA) and later the Indian Health Service (IHS) directly administered Indian health care services in Alaska and elsewhere. Federal employees are generally not subject to state professional licensing requirements such as those contained in Alaska's Pharmacy Act.(fn12) The IHS has its own pharmacy standards and requires its pharmacists to have a current license from any state.(fn13) However, since the passage of the ISDEAA in 1975,(fn14) tribal groups(fn15) in many areas have taken over administration of Indian health care services. The ISDEAA entitles tribal groups to enter into agreements with the federal government under which they receive federal funding to provide services to Native Americans and Alaska Natives, such as health care, that a federal agency like the IHS would otherwise provide.(fn16) The purpose of the ISDEAA is to give tribal groups more control over Indian services, helping tailor programs to better fit community needs.(fn17) A tribal group providing health care services under an ISDEAA agreement is not bound by IHS internal agency guidelines, policies and manuals unless it expressly agrees to be bound.(fn18) Thus, now that Indian health care services are increasingly controlled by tribal groups rather than by the federal government, the question naturally arises whether tribal health care professionals are subject to state licensing requirements or are exempt from those requirements like the IHS employees they've replaced. This section provides a brief overview of the tribal health system as background for the analysis of this question. A. The Indian Self-Determination and Education Assistance Act (ISDEAA) A tribal group that wants to take control of Indian health care services may enter into a "self-determination contract" under Title I of the ISDEAA or a "self-governance compact" under Title V of the ISDEAA.(fn19) The federal government must accept a tribal group's Title I contract proposal or provide written findings detailing why the proposal is unacceptable under specified statutory criteria.(fn20) Title V compacts give tribal groups more control over the structuring of programs than Title I contracts,(fn21) but have more stringent eligibility requirements.(fn22) A tribal group that has entered an ISDEAA contract or compact must negotiate a funding agreement with the IHS detailing the services it will provide and the federal funds it will receive. In order to allow a transfer of control without a reduction in services or a transfer of the financial burden of providing services, the ISDEAA requires the federal government to provide tribal groups with the same level of funding that the IHS would have received if it were providing services directly, plus funds to cover reasonable overhead costs.(fn23) To further reduce the potential financial burden on tribal groups that take over IHS functions, the federal government provides coverage under the Federal Tort Claims Act (FTCA) for personal injury suits arising out of the performance of services under ISDEAA contracts and compacts.(fn24) B. The ISDEAA in Alaska In Alaska, 99% of IHS funding has been transferred to tribal control under ISDEAA contracts, compacts, and funding agreements, and the IHS no longer provides any direct health services. According to the IHS, as of December 2011, 25 tribal groups operate health programs in Alaska under Title V, and 14 do so under Title I. The Title V groups are signatories to the Alaska Tribal Health Compact, the umbrella Title V compact for all of Alaska developed in 1994.(fn25) Each signatory to the Compact negotiates its own funding agreements with the IHS. The Compact is revised periodically to account for changes in law, new signatories, and other amendments. C. Tribal health care providers Health professionals working for...