Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Association of Naturopathic Physicians v. State, Division of Corporations, Business & Professional Licensing (3/16/2018) sp-7229

Alaska Association of Naturopathic Physicians v. State, Division of Corporations, Business & Professional Licensing (3/16/2018) sp-7229

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



ALASKA  ASSOCIATION  OF                                       )  

NATUROPATHIC  PHYSICIANS,                                     )     Supreme Court No. S-16530  

                                                                                             

                                                                                                    

                                                              )  

                               Appellant,                     )     Superior Court No. 3AN-14-07022 CI  

                                                                                                                            

                                                              )  

          v.                                                                           

                                                              )    O P I N I O N  

                                                              )  

                                                                                                        

                    

STATE OF ALASKA,                                              )    No. 7229 - March 16, 2018  

                                  

DEPARTMENT OF COMMERCE,                                       )  

                              

COMMUNITY & ECONOMIC                                          )  

                                                  

DEVELOPMENT, DIVISION OF                                      )  

                                                    

CORPORATIONS, BUSINESS &                                      )  

                               

PROFESSIONAL LICENSING,                                       )  

                                                              )  

                               Appellee.                      )  

                                                              )  



                                                                                                          

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                    

                     Judicial District, Anchorage, Catherine M. Easter, Judge.  



                                                                                                     

                     Appearances:            Joe P.  Josephson, Josephson  Law  Offices,  

                                                                                     

                     LLC, Anchorage, for Appellant.  Robert C. Auth, Assistant  

                                                                                              

                     Attorney   General,   Anchorage,   and   Jahna   Lindemuth,  

                                                                     

                     Attorney General, Juneau, for Appellee.  



                                                                                                       

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                         

                     and Carney, Justices.  



                                       

                     BOLGER, Justice.  


----------------------- Page 2-----------------------

I.         INTRODUCTION  



                                                                                                                                   

                     An  association  representing  naturopathic  physicians  challenges  a  new  



                                                                                                                           

regulation that effectively forbids naturopaths from using and prescribing injectable  



                                                                                                                                      

vitamins  and  minerals.                   The  association  argues  that  the  statutory  definition  of  



naturopathy includes the use of dietetics, that dietetics include injectable vitamins and  



                                                                                                                                       

minerals obtained by pharmaceutical prescription, and that the statutory restrictions on  



                                                                                                                                      

the  practice  of  naturopathy  prohibit  the  use  of  only  prescription  drugs,  not  all  



                                                                                                                            

prescription  medicines.   But we conclude that the statutory text, the larger statutory  



                                                                                                                                        

context, and the legislative history together suggest that the legislature did not intend to  



                                                                                                                               

grant prescriptive authority to naturopaths.   We therefore affirm the superior court's  



                                                                                                             

decision to grant summary judgment against the association on this issue.  



                                   

II.        FACTS AND PROCEEDINGS  



                                          

           A.        Regulatory Backdrop  



                                                                                                                               

                     Naturopathy is a method of treating disease "that avoids drugs and surgery  



                                                                                                                             

and emphasizes the use of natural agents (such as air, water, and herbs) and physical  



                                                                                             1  

                                                                                                                                        

means (such as tissue manipulation and electrotherapy)."                                         Alaska first established a  



                                                                                                        2  

                                                                                                                               

licensing structure for naturopaths in 1986, codified at AS 08.45.                                         This statute defines  



                                                                                                                                        

the practice of naturopathy, provides requirements  for  obtaining and maintaining a  



                                                                                                                                   3  

                                                                                                                                        

naturopathy license, and establishes restrictions on the practice of naturopathy.                                                      It  



                                                                                                                           

defines   naturopathy   to   include   a   range   of   practices:   "hydrotherapy,   dietetics,  



           1         N  a  t  u  r  o  p  a  t  h  y  ,                   M  E     R   R    I  A   M   -  W  E       B   S   T   E   R   ,  



                                                                                                                                            

https://www.merriam-webster.com/dictionary/naturopathy (last visited Feb. 28, 2018).  



           2         Ch. 56, SLA 1986.       



           3  

                                                   

                     See generally AS 08.45.010-.200.  



                                                                   -2-                                                            7229
  


----------------------- Page 3-----------------------

electrotherapy, sanitation, suggestion, [and]mechanical                                             and manual manipulationforthe                       



stimulation of physiological and psychological action to establish a normal condition of                                                                  



                                4  

mind   and   body."                                                                                                                  

                                      And  it  defines  dietetics  to  "include[]  herbal  and  homeopathic  



                    5  

remedies."                                                                                                                                                    

                        The statute forbids naturopaths from engaging in three types of conduct:  



                                                                                                                                                        

"A person who practices naturopathy may not (1) give, prescribe, or recommend in the  



                                                                                                                                                          

practice (A) a prescription drug; (B) a controlled substance; (C) a poison; (2) engage in  



                                                                                                          6  

                                                                                                 

surgery; (3) use the word 'physician' in the person's title." 



                                                                                                                                       

                        In   1992   the   State   conferred   authority   to   promulgate   regulations  



                                                                                     

implementing AS 08.45 on the Department of Commerce, Community, and Economic  



                          7  

                                                                                                                                       

Development.                   The Department adopted regulations implementing the naturopathy  



                                                                                                                                             

statute in 1994.  Among those regulations were definitions of some of the key statutory  



terms:  



                                                                                                                  

                        (1)  "dietetics"  includes  the  use  of  nutritional  therapies,  

                                                                                                                  

                        nutritional   counseling,   nutritional   substances,   vitamins,  

                                                                                                                    

                        minerals, and supplements to promotehealth andto diagnose,  

                                                                                              

                        treat, and prevent disease, illness, and conditions;  



                                           

                                    . . . .  



                                                                                                                                   

                        (3) "herbal remedy" includes medicines derived from or a  

                                                                                                                                 

                        concentrate or extract of a plant, tree, root, moss, fungus, or  

                                                                                                                                   

                        other natural substance; "herbal remedy" does not include a  

                                            

                        controlled substance;  



                                           

                                    . . . .  



            4           AS 08.45.200(3).                  



            5           Id.  



            6           AS 08.45.050.   



            7  

                                                                                                       

                        Ch. 87,  3, SLA 1992; see AS 08.45.100.  



                                                                            -3-                                                                    7229
  


----------------------- Page 4-----------------------

                           (8)   "prescription drug" includes a controlled substance or                                                        

                           other medicine commonly requiring a written prescription                                        

                           from   a   physician   licensed   under   AS   08.64;   "prescription  

                           drug" does not include a device or herbal or homeopathic                                      

                           remedy or dietetic substance in a form that is not a controlled                                     

                           substance[8]  



                           In theensuing years, naturopathsandtheDepartmentdeveloped conflicting  

                                                                                                                                                         



interpretations of these regulatory definitions.  Naturopaths distinguished prescription  

                                                                                                                                                      



drugs, which they acknowledged they were not permitted to prescribe or administer,  

                                                                                                                                                        



from non-drug prescription medicines, which they interpreted the statute as permitting  

                                                                                                                                                          



themto prescribeor administer. Accordingly, Alaskanaturopathsroutinelyadministered  

                                                                                                                                                      



or prescribed dietetics requiring a prescription, such as injectable vitamins and minerals  

                                                                                                                                                              

(e.g., a Vitamin B-12 shot or a magnesiumshot).9  In contrast, the Department interpreted  

                                                                                                                                                         



the regulation to prohibit naturopaths from administering and prescribing all medicines  

                                                                                                                                                          



requiring a prescription, even if the prescription medicine was also a dietetic.  These  

                                                                                                                                                                  



clashing interpretations resulted in some pharmacists refusing to fill prescriptions for  

                                                                                                                                                                         



naturopaths and the State launching investigations of naturopaths who used prescription  

                                                                                                                                                       



medicines and the pharmacists who filled the prescriptions.  

                                                                                                                         



                           In  2012  the  Department  issued  a  notice  of  proposed  changes  to  the  

                                                                                                                                                                       



regulatory definitions that would clarify naturopaths' prescriptive authority.  After the  

                                                                                                                                                                        



public comment period closed, the Department amended the definitions in two ways to  

                                                                                                                                                                           



effectively  bar  naturopaths  from using  or  prescribing  any  medicine  that  requires  a  

                                                                                                                                                         



              8            Former 12 Alaska Administrative Code (AAC) 42.990 (eff. 7/28/94).                                                                             



              9  

                                                                                                                                                                         

                           Apparently injectable vitamins and minerals require a prescription.   In  

                                                                                                                                                                                

contrast,  orally  administered  vitamins  and  minerals  do  not  require  a  prescription.  

                                                                                                                                                          

Injectable vitamins and minerals are used for patients who have difficulty absorbing  

                                                                                                                                                                  

orallyadministered vitamins and minerals, e.g., patients with an impaired stomach lining.  



                                                                                    -4-                                                                             7229
  


----------------------- Page 5-----------------------

prescription,  including   dietetics   (injectable   vitamins   and   minerals),   herbal,   and  



                                      10  

homeopathic   remedies.                                                                                                              

                                             First,  the  new  regulation  broadened  the  definition  of  



                                                                         

prescription drug so that it encompassed any medicine requiring a prescription and no  



                                                                                                                                 

longer excluded dietetics, herbal, and homeopathic remedies:  " '[P]rescription drug'  



                                                                                                                          

means a controlled substance or other medicine requiring a prescription froma physician  



                                                                                                                                 

licensed under AS 08.64 or from another health care professional authorized to issue  

                                                           11  Second, the new regulation explicitly excluded  

                                                                                                                           

prescriptions by the law of this state." 



prescription drugs from the definitions of dietetics, herbal remedy, and homeopathic  

                                                                                                                     



remedy:  



                                (1) "dietetics"  

                                                        



                                          (A)  includes the  use of nutritional therapies,  

                                                                                                     

                                nutritional          counseling,            nutritional          substances,  

                                                                                               

                                vitamins, minerals, and supplementsto promotehealth  

                                                                                                           

                                and to diagnose, treat, and prevent disease, illness, and  

                                                                                                               

                                conditions;  

                                                   



                                          (B) does not include the use of a prescription  

                                                                                                 

                                drug, poison, or controlled substance;  

                                                                            



                                          . . . .  

                                                 



                                (3) "herbal remedy"  

                                                                  



                                          (A)  includes  medicines  derived  from  or  a  

                                                                                                                  

                                concentrate  or  extract  of  a  plant,  tree,  root,  moss,  

                                                                                                           

                                fungus, or other natural substance;  

                                                                                        



                                          (B) does not includeaprescriptiondrug,poison,  

                                                                                                          

                                or controlled substance;  

                                                      



                                (4) "homeopathic remedy" means a remedy defined in  

                                                                                                                  

                     the  Homeopathic  Pharmacopoeia  of  the  United  States  

                                                                                                          



           10         12 AAC 42.990 (2014).                  



           11  

                                                      

                      12 AAC 42.990(8).  



                                                                  -5-                                                            7229  


----------------------- Page 6-----------------------

                              Abstracts 1993                    , revised as of December 1992 and adopted by                                                    

                              reference except for prescription drug, poison, or controlled                                                   

                              substance[.][12]  



These new definitions went into effect in January 2014.  

                                                                                                                               



               B.             Proceedings  

                              In May 2014 the Alaska Association of Naturopathic Physicians13 filed a  

                                                                                                                                                        



declaratory judgment action, seeking a declaration that the new regulation was invalid  

                                                                   



to the extent it was inconsistent with AS 08.45. Specifically, the Association alleged that  

                                                                                                                                                                                           



the new regulation unduly expanded the statutory prohibition on prescription drugs to  

                                                                                                                                                    



include  all  prescription  medicines.                                               It  also  claimed  that  the  new  regulation,  which  

                                                                                                                                                                                    



effectively prohibited the use of prescription dietetics, was contrary to the statutory  

                                                                                                                                                                               



definition of naturopathy, which conferred on naturopaths the unqualified right to use  

                                                                                                                                                                                            



dietetics.   Moreover, it urged that the new regulation contravened the longstanding  

                                                                                                                                                                     



practice and training of naturopaths in Alaska and prevented them from practicing in a  

                                                                                                                                                                                                 



manner consistent with their training, experience, and expertise.  

                                                                                                                                                  



                              In  January  2016  the  Department  filed  a  motion  to  dismiss,  which  the  

                                                                                                                                                                                           



superior court later converted to a motion for summary judgment.  After hearing oral  

                                                                                                                                                                                          



argument and receiving supplemental briefing from the Association, the superior court  

                                                                                                                                                                                       



granted the Department's motion.  The Department then moved for 20% of its actual  

                                                                                                                                                                                     

                                                                                                  14  The Association opposed the motion on  

attorney's fees under Alaska Civil Rule 82.                                                                                                                         



               12              12 AAC 42.990.                        



               13             The Association "is an incorporated, non-profit, professional association                                                                   



or organization representing licensed naturopathic doctors who practice their profession                                                                                    

in Alaska."  According to the Association, its membership is composed of naturopaths  

                                                                                                                                                                         

practicing in Alaska, totaling approximately 25 individuals.                                                                            



               14             See Alaska R. Civ. P. 82(b)(2) ("In cases [resolved without trial] in which  

                                                                                                                                                                                      

                                                                                                                                                                     (continued...)  



                                                                                              -6-                                                                                       7229
  


----------------------- Page 7-----------------------

 the basis that it was a public interest litigant exempt from an adverse attorney's fees                                                                                                                                   



 award.   The superior court rejected this contention, concluding that the Association did                                                                                                                                    



 not qualify as a public interest litigant because it had sufficient economic incentive to                                                                                                                                       



 bring the suit.  After concluding that the Department's fee request was reasonable, the                                                                                                                                      



 superior court awarded it $16,844 in fees, 20% of its total fees incurred.                                                                                                                       



                                    The Association appeals both the grant of summary judgment in favor of                                    



                                                                                                                           15  

 the Department and the attorney's fees award.                                                                                   



 III.              STANDARDS OF REVIEW                                  



                                    A regulation's consistency with its enabling statute "is a question of law to                                                                                                                 



                                                                                                                                                                                                               

 which we apply the appropriate standard of review based on the level of agency expertise  



                             16  

                                                                                                                                                                                                              

 involved."                        Here, the parties agree that the new regulatory definitions do not implicate  



                                                                                                                                                                                                            

 the  Department's  expertise,  so  we  review  them using  the  substitution  of  judgment  



                         17  

 standard.                                                                                                                                                                                                                    

                               Under this standard we exercise our independent judgment, substituting our  



                                                                                                                                                                                                                                  

 "own judgment for  that of the agency  even  if  the  agency's [interpretation] ha[s] a  



                                                                 18  

                                                                                                                                                                                                                          

 reasonable basis in law."                                              We will "adopt the rule of law that is most persuasive in light  



                  14                (...continued)  



                                                       

 the prevailing party recovers no money judgment, the court shall award the prevailing  

                                                                                                                                                                                                

 party . . . 20 percent of its actual attorney's fees which were necessarily incurred.").  



                  15                The Association also appeals the denial of its own motion for summary  

                                                                                                                                                                                                             

judgment, which it had filed in June 2015.  The Association does not present a separate  

                                                                                                                                                                                                               

 argument concerning this denial, and our analysis below applies equally to it as to the  

                                                                                                                                                                                                                              

 superior court's grant of summary judgment in favor of the Department.  

                                                                                                                                                                                                  



                  16                Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293, 299  

                                                                                                                                                                                                                            

 (Alaska 2014).  

                                          



                  17                Id.  

                                             



                  18                Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903  

                                                                                                                                                           

                                                                                                                                                                                                   (continued...)  



                                                                                                                -7-                                                                                                      7229
  


----------------------- Page 8-----------------------

of precedent, reason, and policy, but in doing so we give due deliberative weight 'to what                                                                                                      



                                                                                                                                                                                             19  

the agency has done, especially where the agency interpretation is longstanding' "                                                                                                                and  

continuous.20  



                                                                                                                                                                                             

                               Wegenerallyreviewan attorney'sfeesawardfor abuseofdiscretion, which  



                                                                                                                                                                                                      

exists when an award is "arbitrary, capricious, manifestly unreasonable, or the result of  

                                                   21     Interpretation of the scope of the exception to attorney's fees  

                                                                                                                                                                                                 

an improper motive." 

awards for constitutional claimants is a question of law reviewed de novo.22  

                                                                                                                                                                                   



IV.             DISCUSSION  



                A.             The New Regulation, 12 AAC 42.990, Is Consistent With AS 08.45.                                                                                          



                               The   Association   argues   that   the   new   regulatory   definitions   governing  



naturopaths,   codified   at   12   AAC   42.990,   are   inconsistent   with  the   definition   of  



                18             (...continued)  



                    

(Alaska 1987).  



                19             Heller v. State, Dep't of Revenue                                            , 314 P.3d 69, 73 (Alaska 2013) (quoting                                   



Chugach Elec. Ass'n v. Regulatory Comm'n of Alaska, 49 P.3d 246, 250 (Alaska 2002)).  

                                                                                                                                                                                          



                20             Premera BlueCross v. State, Dep't of Commerce, Cmty. &Econ. Dev., Div.  

                                                                                                                                                                                                  

of  Ins.,  171  P.3d  1110,  1119  (Alaska  2007).                                                                      The  parties  disagree  whether  the  

                                                                                                                                                                                                  

Department's interpretationisduetheadditional deferenceaccorded tolongstanding and  

                                                                                                                                                                                                   

                                                                                                                                                                                                

continuous  interpretations.                                          The  Association  urges  it  is  not,  noting  that  the  new  

                                                                  

                                                                                                                                                                                                

regulation became effective in 2014 and that it altered regulatory language that had been  

                                                                                                                                                                               

in effect for 20 years.  The Department urges that additional deference is nonetheless  

                                                                                                                                                                                           

warranted becausetheDepartment's interpretation hasremainedconsistent, even though  

                                                                            However, we need not resolve this dispute because the                                                                   

the regulatory text has changed.  

level of deference would not affect our interpretation of the statute in this case.                                                                                                       



                21             DeVilbissv.Matanuska-SusitnaBorough                                                            ,356P.3d290,294(Alaska2015)                                     



(quoting  Bachner Co. v. Weed                                          , 315 P.3d 1184, 1189 (Alaska 2013)).                                                       



                22             Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279  

                                                                                                                                                                                                 

(Alaska 2015).  

                                      



                                                                                                  -8-                                                                                          7229
  


----------------------- Page 9-----------------------

naturopathy   and the restrictions on                                         naturopaths outlined in the naturopathy                                                 statute,  



AS 08.45.               We have not previously interpreted the scope of naturopaths' prescribing                                                              



authority under AS 08.45.                                When determining a statute's meaning, we consider three                                                           



factors:   "the language of the statute, the legislative history, and the legislative purpose                                                                        

                                          23     "We decide questions of statutory interpretation on a sliding  

behind the statute."                                                                                                                                                   

scale"24 :  "[T]he plainer the language of the statute, the more convincing any contrary  

                                                                                                                                                                    

legislative history must be . . . to overcome the statute's plain meaning."25                                                                                  Moreover,  

                                                                                                                                                               



"[a] party challenging a regulation bears the burden of showing that adoption of the  

                                                                                                                                                                               

regulation is inconsistent with the . . . statute."26  

                                                                                                      



                            The Association argues that the new regulation is inconsistent with the  

                                                                                                                                                                               



statute's ban on naturopaths using and prescribingprescription drugs because it prohibits  

                                                                                                                                                                   



naturopaths fromusing and prescribing all prescription "medicine," not just prescription  

                                                                                                                                                             



drugs.  The statute, in a section entitled "Restrictions on practice of naturopathy," states  

                                                                                                                                                                          



                                                                                                                                                                               

that naturopaths may not "give, prescribe, or recommend . . . a prescription drug."27  The  

                                                                                                                                                            



new regulation defines "prescription drug" as "a controlled substance or other medicine  

                                                                                                                                                                   



requiring a prescription froma physician licensed under AS 08.64 or fromanother health  

                                                                                                                                                                         



              23            Oels v. Anchorage Police Dep't Emps. Ass'n                                                    , 279 P.3d 589, 595 (Alaska   



2012) (quoting                  Shehata v. Salvation Army                                , 225 P.3d 1106, 1114 (Alaska 2010)).                                             



              24            Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska  

                                                                                                                                                                      

2011).  



              25            Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 922 (Alaska 1991).  

                                                                                                                                                                        



              26            Grunert v. State, 109 P.3d 924, 937 (Alaska 2005).  

                                                                                                                                         



              27            AS 08.45.050(1)(A).  

                                     



                                                                                        -9-                                                                                7229
  


----------------------- Page 10-----------------------

                                                                                                                                             28  

care professional authorized to issue prescriptions by the law of this state."                                                                   Unlike the   



old regulation, it does not exclude "herbal or homeopathic remed[ies]" and "dietetic                                                                 

                                                                 29    In other words, the new regulation categorically  

substance[s]" from the definition.                                                                                                           



defines  prescription  drug  to  include  any  medicine  requiring  a  prescription.                                                                          But  

                                                                                                                                                             



according totheAssociation,thereis areal distinctionbetween aprescription "medicine"  

                                                                                                                                                 



and  a  prescription  "drug,"  with  natural  substances  and  their  derivatives  (such  as  

                                                                                                                                                                 



injectable vitamins and minerals) falling in the former category but not the latter.  

                                                                                                                                                             



                          1.          Statutory text and structure  

                                                                             



                          The text of the naturopathy statute does not provide, and the Association  

                                                                                                                                



does not cite, any support for distinguishing between a prescription drug (which the  

                                                                                                                                                 



Association  concedes  a  naturopath  is  forbidden  from prescribing)  and  prescription  

                                                                                                                                              



medicines composed of natural substances or their derivatives.  As an initial matter, the  

                                                                                                                                                                



statute does not define the term "prescription drug" or its constituent words.   In the  

                                                                                                                                                                



absence  of  a  definition,  we  construe  statutory  terms  according  to  their  common  

                                                                                                                                                    

meaning.30  

                                                                                                                                                     

                       Dictionaries "provide a useful starting point for [determining]" a phrase's  

                                    31   Black's Law Dictionary's definition of "drug" does not exclude  

                                                                                                                                                       

common meaning. 



natural substances or their derivatives.  It defines "drug" as (1) "[a] substance intended  

                                                                                                                                                     



for use in the diagnosis, cure, treatment, or prevention of disease" and (2) "[a] natural or  

                                                                                                                                                                  



             28           12 AAC 42.990(8).                      



             29  

                                                                                                           

                         Former 12 AAC 42.990(8) (eff. 7/28/94).  



             30  

                                                                                                                                                                   

                         Adamson v. Municipality of Anchorage , 333 P.3d 5, 16 (Alaska 2014).  



             31  

                                                                                                                                                       

                         Alaskans for Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 276 n.4 (Alaska  

              

2004).  



                                                                               -10-                                                                         7229
  


----------------------- Page 11-----------------------

                                                                                                                                                                                                                                                                                                                                                          32  

 synthetic substance that alters one's perception or consciousness."                                                                                                                                                                                                                                                                                                This definition   



 suggests that the common meaning of "prescription drug" does not exclude natural                                                                                                                                                                                                                                                                                                                               



 substances.   



                                                                    The overall structure and substance of AS 08.45 also provide insight into                                                                                                                                                                                                                                                                                    



the meaning of "prescription drug," and they too provide no basis for distinguishing                                                                                                                                                                                                                                                                                        



between   prescription  drugs   and   other   prescription   medicines   composed   of   natural  



 substances.  The only mention of prescriptions or prescribing authority in AS 08.45 is   



to ban naturopaths from prescribing drugs; nowhere else does the naturopathy statute                                                                                                                                                                                                                                                                                                                                



refer to prescribing authority or prescription substances.                                                                                                                                                                                                                                        If the legislature's intention                                                                       



were to convey to naturopaths broad prescribing authority for non-drug prescription                                                                                                                                                                                                                                                                                                    



medicines, it would be odd for the statute to mention this authority only in the context                                                                                                                                                                                                                                                                                        



of constraining it.                                                                        Given that the only mention of naturopath prescribing authority is in                                                                                                                                                                                                                                                                           



the context of circumscribing it, the naturopath statute as a whole does not evince an                                                                                                                                                                                                                                                                                                                                                   



intent to allow naturopath use of other prescription substances.                                                                                                                                                                                                    



                                                                    Comparing the language of the naturopath statute to that of the licensing                                                                                                                                                                                                                                                          



 statutes    governing    healthcare    professionals    who    unequivocally    have    prescribing  



authority also provides insight into the scope of the term "prescription drug." In marked                                                                                                                                                                                                                                                                                                                       



contrast to the naturopath statute, the statutes governing the licensing of doctors and                                                                                                                                                                                                                                                                                                                                          

                                                         33              dentists,34                                               veterinarians,35                                                                     registered   nurses,36                                                                                         and   advanced   nurse  

osteopaths,                                                                                                                                                                                                                                                                                                                                                                                                         



                                  32                               Drug, B                                   LACK 'S  LAW  DICTIONARY  (10th ed. 2014).                                                                                                                                           



                                  33                                AS 08.64.380(6)(A) (defining the "practice of medicine" and the "practice                                                                                                                                                                                                                                                           



of osteopathy" to include "prescrib[ing] for . . . any human ailment, blemish, deformity,                                                                                                                                                                                                                                                                                                        

disease, disfigurement, disorder, injury, or other mental or physical condition").  

                                                                                                                                                                                                                                                                                                                                                       



                                  34                                AS   08.36.360(2)   (defining   the   "practice   of   dentistry"   to   include  

                                                                                                                                                                                                                                                                                                                                                                                                         

"prescrib[ing]  for  a  disease,  lesion,  pain,  injury,  deficiency,  deformity,  or  physical  

                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                                                                                                 -11-                                                                                                                                                                                                         7229
  


----------------------- Page 12-----------------------

practitioners37 all explicitly define their respective practices to include some degree of                                                   



prescribing authority. These statutes suggest that where the legislature intends to convey                                                                    



prescribing authority, it does so explicitly.                                          The statutory definition of the practice of                                     



naturopathy conveys no such explicit prescribing authority, indicating that no such                                                                               



authority was intended to be conveyed.                    



                           This   conclusion   is   underscored  by   a   1985   attorney   general   opinion  

                                                                                                                  38       Although  they  are  not  

"concerning  persons   who   may   initiate   prescriptions."                                                                                                       

controlling, we generally afford opinions of the Attorney General "some deference."39  

                                                                                                                                                                             



The opinion responds to a question from the Department querying whether healthcare  

                                                                                                                   



boards had the authority to grant prescriptive authority to healthcare professionals via  

                                                                                                                                                                     



regulations.  The opinion first notes that "[t]he [statutory] definitions of what activities  

                                                                                                                                                          



constitute a particular profession appear to be the best reference for determining who is  

                                                                                                                                                                         



             34            (...continued)  



                                                                                                           

condition, malocclusion or malposition of the human teeth").  



             35  

                                   

                          AS 08.98.250(5)(A)(i) (defining the "practice of veterinary medicine" to  

include "prescription . . . of a drug, biologic apparatus, anesthetic, or other therapeutic                                          

                            

or diagnostic substance").  



             36           AS  08.68.850(11)(F)  (defining  the  "practice  of  registered  nursing"  to  

                                                                                                                                                                       

include"theprescription ofmedical therapeuticorcorrectivemeasures under regulations  

                                                                                                                                                      

adopted by the [Board of Nursing]").  

                                                    



             37           AS 08.68.850(9) (defining the "practice of advanced practice registered  

                                                                                                                                                        

nursing"  to  include  "the  prescription  and  dispensing  of  medical,  therapeutic,  or  

                                                                                                                                                                      

corrective measures under regulations adopted by the [Board of Nursing]").  

                                                                                                                                



             38            [1985] 1 I   NFORMAL  OP. A                        TT'Y  GEN. 197.                 

                                          



             39  

                                                                                                                                               

                          State v. Dupier, 118 P.3d 1039, 1050 n.62 (Alaska 2005).  



                                                                                  -12-                                                                           7229
  


----------------------- Page 13-----------------------

                                                             40  

authorized to issue a prescription."                             It concludes that for a healthcare board to grant                          



prescriptive authority by regulation, the board "must have a statutory basis for                                                               the  



              41  

                                                                                                                                      

action."          Therefore, according to this Attorney General opinion, prescriptive authority  



                                                                                                                                         

must  have  a  statutory  basis  in  the  definition  of  the  practice.                                        As  discussed  above,  



                                                                                                                                            

however, the definition of the practice of naturopathy provides no such statutory basis.  



                                                                                                                                                 

                       The  Association  nonetheless  contends  that  the  legislature  intended  to  



                                                                                                                                     

convey to naturopaths prescribing authority for some non-drug substances by including  



                                                                                                                                            

"dietetics" in the statutory definition of "naturopathy."   It argues that because some  



                                                                                                                                      

dietetics, such as injectable vitamins and minerals, require a prescription, the inclusion  



                                                                                                                                         

of dietetics in the statutory definition of naturopathy evinces legislative intent to convey  



                                                                                                                                                

prescribing authority.  However, we conclude that the inclusion of this term does not  



                                                                                                                                                  

provide a statutory basis for prescriptive authority, especially when it is read in light of  



                                                                                                                                                  

the more specific statutory prohibition on naturopath use of prescription drugs. First, as  



                                                                                                                                  

discussed  above,  in  other  statutes  governing  medical  professions,  the  legislature  



                                                                                                                                                

conveyed   prescriptive   authority   explicitly   through   the   use   of   words   such   as  



                                                                                                                                        

"prescription"  and  "prescribe."                          Therefore,  when  the  legislature  wishes  to  convey  



                                                                                                                                      

prescribing authority, it does so clearly and explicitly rather than opaquely.  In addition,  



                                                                                                                                            

only a subset of dietetics require a prescription, meaning it is possible to use some  



                                                                                                                                                  

dietetics without any prescriptive authority.  It is thus possible to interpret the statute as  



                                                                                                                          

not conveying prescriptive authority to naturopaths without rendering the inclusion of  



                                                                                 

"dietetics" in the statutory definition a nullity.  



                                                                                                                                 

                       The Association's argument regarding the statutory definition additionally  



                                                                                                                                                       

falters when  considered against the backdrop of the naturopath  statute as a whole.  



            40         [1985]   1  INFORMAL  OP.  ATT'Y  GEN.   197.   



            41         Id.  at   199.  



                                                                       -13-                                                                      7229  


----------------------- Page 14-----------------------

"When a statute . . . is part of a larger framework or regulatory scheme, [it] must be                                                       



                                                                                                              42  

interpreted in light of the other portions of the regulatory whole."                                                                 

                                                                                                                   Although various  



                                                                                                                                      

statutory sections should be harmonized when possible, more specific sections control  

                                     43    Here, the statutory definition of "naturopathy" appears in a  

                                                                                                                            

                       

over general sections. 

general section: the definitions section that applies to the entirety of AS 08.45.44                                                         In  

                                                                                                                                             



contrast, the statutory prohibition on prescription drugs appears in a specific, standalone  

                                                                                                                                

section entitled "Restrictions on practice of naturopathy."45   The inclusion of dietetics in  

                                                                                                                                              



the general statutory definition of naturopathy should be understood as being modified  

                                                                                                                                  



by the specific prohibition on naturopath use of prescription drugs.   In other words,  

                                                                                                                                      



together, the two statutory sections provide that naturopaths can practice the methods  

                                                                                                                                   



listed  in  the  definition  of  naturopathy  to  the  extent  those  methods  do  not  include  

                                                                                                                                    



prescription of drugs.  This interpretation does not bring the two sections into conflict  

                                                                                                       



but merely recognizes that one specific section cabins a general term in the other.  

                                                                                                                                          



                      2.         Legislative history  

                                                       



                      The legislative history of AS 08.45 only confirms the indication of the  

                                                                                                                                            



statutory text that naturopaths lack any prescribing authority.  When the bill that was  

                                                                                                                                           



ultimately enacted as AS 08.45, Senate Bill (S.B.) 297, was initially introduced in 1985,  

                                                                                                                                        



it explicitly included some prescriptive authority for naturopaths.  In a section entitled  

                                                                                                                     



"Scope of Naturopathic Practice," the bill provided that naturopaths could, among other  

                                                                                                                                         



           42         Alaska   Airlines,   Inc.   v.   Darrow,   403   P.3d   1116,   1127   (Alaska   2017)  



(quoting  Millman  v.  State,  841  P.2d   190,   194  (Alaska  App.   1992)).   



           43         Nelson  v.  Municipality  of  Anchorage ,  267  P.3d  636,  642  (Alaska  2011).   



           44         AS  08.45.200.  



           45         AS  08.45.050.   



                                                                     -14-                                                               7229
  


----------------------- Page 15-----------------------

                                                                                                                                                      46  

things, "write prescriptions for substances authorized by this chapter."                                                                                   The initial bill        



also included a section restricting the practice of naturopathy, but with a narrower ban                                                                     



on prescriptive authority: "A naturopath may not . . . use drugs, except local anesthetics,                                                                       

minerals, and extracts, compounds or concentrates obtained from plants or animals."                                                                                                    47  



The initial bill thus provided a carve-out for drugs composed of natural substances and  

                                                                                                                                                                                   



would have allowed naturopaths to use and prescribe injectable vitamins and minerals.  

                                                                                                                                                                                            



                             Shortly after this initial bill was introduced, the Department of Health and  

                                                                                                                                                                                   



Social Services submitted a position paper expressing reservations about certain aspects  

                                                                                                                                                                           

of the bill.48   The paper noted some "controversy over the scientific basis of naturopathic  

                                                                                                                                                                



medicine" and expressed the agency's concern over allowing naturopaths to treat certain  

                                                                                                                                                                            

types of illnesses given the limits of the naturopathic approach.49                                                                          Although the agency  

                                                                                                                                                                           



concluded it was "neutral on th[e] bill," it noted that other states placed more restrictive  

                                                                                                                                                                     



conditions on naturopaths by, for example, forbidding naturopaths from using drugs and  

                                                                                                                                                                                   



                                                       50  

from performing surgery.                                    

                                      



                             About a year later, a sponsor substitute to S.B. 297 was introduced that  

                                                                                                                                                                                  



omitted the section entitled "Scope of Naturopathic Practice," thereby eliminating the  

                                                                                                                                                                                    

original bill's affirmative grant of authority for naturopaths to write prescriptions.51   The  

                                                                                                                                                                                   



sponsor substitute also amended the section restricting the practice of naturopathy to  

                                                                                                                                                                                      



              46             S.B.  297,   14th  Leg.,   1st  Sess.    2,  at  4  (Apr.  23,   1985).     



              47            Id.    2,  at  5.   



              48             Dep't of Health &  Soc.  Servs., Position Paper, S.B. 297 (Apr. 30, 1985).   



              49            Id.   



              50            Id.   



              51             Sponsor   Substitute   for   Senate   Bill   (S.S.S.B)   297,   14th   Leg.,   2d   Sess.  



(Apr.   17,   1986).  



                                                                                         -15-                                                                                  7229
  


----------------------- Page 16-----------------------

narrow the drugs that naturopaths were permitted to use and prescribe, still permitting   



the prescription of natural substances:                                     "[A] person who practices naturopathy may not                                           



. . . use in the practice or prescribe . . . a prescription drug other than a natural plant,                                                                   

                                                              52    But then the committee substitute for the sponsor  

animal, or mineral substance."                                                                                                                            



substitute  made  the  ban  on  using  and  prescribing  prescription  drugs  entirely  

                                                                                                                                                         



unconditional:  "A person who practices naturopathy may not . . . give, prescribe, or  

                                                                                                                                                                     

recommend in the practice . . . a prescription drug . . . ."53                                                   It was this language that was  

                                                                                                                                                                  

enacted into law later that year, codified in AS 08.45.050.54  

                                                                                             



                          The path of this legislative history suggests that the legislature did not  

                                                                                                                                                                   



intend for the statute to convey any prescribing authority to naturopaths.   The  bill  

                                                                                                                                                                  



drafting process shows the legislature gradually winnowed the substances for which  

                                                                                                                                                             



naturopaths could write prescriptions from some natural substances, to fewer natural  

                                                                                                                                                            



substances, to an unconditional ban on prescription drugs.  If the legislature wished to  

                                                                                                                          



draw a distinction in the statute between prescription natural substances and prescription  

                                                                                                                                                   



drugs, it would have retained the language of the initial bill, which drew this precise  

                                                                                                                                                            



distinction.  Further, the drafting process shows that the legislature stripped language  

                                                                                                                                      



from the bill that explicitly defined the scope of naturopath practice to include writing  

                           



prescriptions.   Given the removal of this language, it is unlikely that the legislature  

                                                                                                                                                     



intended to nonetheless convey some prescriptive authority to naturopaths by including  

                                                                                                                                                        



"dietetics" in the definition of "naturopathy."   Moreover, these changes were made  

                                                                                                                                                               



againstthebackdrop oftheDepartment ofHealthand SocialServicesexpressingconcern  

                                                                                                                                                           



             52           Id.   1, at 2.       



             53           Committee Substitute for Sponsor Substitute for Senate Bill (C.S.S.S.S.B.)  

                                                                                                                                              

297, 14th Leg., 2d Sess.  8, at 3 (1986).                       



             54           Ch. 56,  1, SLA 1986.  

                                                             



                                                                                 -16-                                                                           7229
  


----------------------- Page 17-----------------------

about the scope of naturopath prescribing authority. Thus the statute's legislative history                                                                                                                                                                                                                                                 



provides additionalevidencethat                                                                                                         thelegislaturedidnotintend                                                                                           to convey any prescriptive                                 



authority to naturopaths.                                                                                



                                                        In sum, neither the text nor overall structure of AS 08.45 indicates that it  



conveysto                                    naturopaths theauthority                                                                                 to prescribenaturalsubstances,including                                                                                                                                  injectable  



vitamins and minerals. This conclusion is further bolstered by comparing the naturopath                                                                                                                                                                                                                                     



 statute to those statutes governing other professionals and by reviewing the legislative                                                                                                                                                                                                                     



history of AS 08.45, which excised language that would have conveyed some degree of                                                                                                                                                                                                                                                                             



prescribing authority to naturopaths.                                                                                                                       The new regulation, which effectively prohibits                                                                                                                       



naturopaths fromusing all prescription medicines, is therefore consistent with AS 08.45.                                                                                                                                                                                                                                                       



                            B.	                         The Association Has Waived Its Challenge To The Attorney's Fees                                                                                                                                                                                                                             

                                                        Award.  



                                                        The Association also seeks to challenge the superior court's attorney's fees  

                                                                                                                                                                                                                                                                                                                                                        



award.  It argues that it is exempt from attorney's fees under the public interest litigant  

                                                                                                                                                                                                                                                                                                                                           

                                           55          But this common law exception was abrogated by statute in 2003.56                                                                                                                                                                                                                                The  

exception.                                                                                                                                                                                                                                                                                                                                            



current version of the exception, as codified at AS 09.60.010(c), allows a constitutional  

                                                                                                                                                                                                                                                                                                            



                            55                          See Miller v. Matanuska-Susitna Borough                                                                                                                                     , 54 P.3d 285, 293 (Alaska 2002)                                                                            



 (" 'It is an abuse of discretion to award attorney's fees against an unsuccessful public                                                                                                                                                                                                                                                    

interest plaintiff who raises a claim in good faith.'                                                                                                                                                                 A four-part test determines public                                                                                     

interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If                                                                                                                                                                                                                                                                   

the plaintiff succeeds, will numerous people receive benefits from the lawsuit?                                                                                                                                                                                                                                                         (3) Can   

only a private party have been expected to bring this suit?                                                                                                                                                                                                    (4) Would the purported                                         

public interest litigant have sufficient economic incentive to file suit even if the action   

involves only narrow issues lacking general importance?" (footnote omitted) (quoting                                                                                                                                                                 

 Carr-Gottstein   Props.   v.   State,  899   P.2d   136,   147   (Alaska   1995))),   superseded   by  

statute, ch. 86, SLA 2003,                                                                                             as recognized in Krone v. State, Dep't of Health & Soc.                                                                                                                                                                       

Servs., 222 P.3d 250, 258 (Alaska 2009).                                                                                                                                      



                            56                         Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 280  

                                                                                                                                                                                                                                                                                                                                                       

 (Alaska 2015).  

                                                                



                                                                                                                                                                            -17-	                                                                                                                                                                   7229
  


----------------------- Page 18-----------------------

claimant to avoid an adverse attorney's fees award under certain circumstances, but the                                                                                                                                                                                                               



Association did not rely on this statute in its response to the Department's motion for                                                                                                                                                                                                               



attorney's fees or in its original brief on appeal.                                                                                                                     And at oral argument, the Association                                                         



conceded that its complaint did not raise any constitutional claims.                                                                                                                                                                          We thus conclude  



that the Association has waived and abandoned any challenge to the attorney's fees                                                                                                                                                                                                              



                           

award.  



V.                      CONCLUSION  



                                               We AFFIRM the superior court's judgment.  

                                                                                                                                                                                                              



                                                                                                                                                            -18-                                                                                                                               7229
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC