More than two years after the state of Alabama was shut down because of coronavirus, people are taking a closer look at who is in charge of healthcare in Alabama, and concerns are growing about how much power the position of state health officer holds.
On March 19, 2020, Dr. Scott Harris, acting under his authority as the state health officer for the state of Alabama, issued orders closing all public beaches, all senior citizen centers and all schools and prohibiting all restaurants and bars from serving on-site, as well as banning gatherings of 25 people or more, including places of worship.
Many people don't know how Harris came to have this kind of authority over the state and to whom the state health officer is accountable.
"The person which is given the authority to shut a business down is selected by a private group and is not answerable to the people, is not an elected official that could face the ramifications from their actions at the voting booth," said State Sen. Jim McClendon (R-Springville), who chairs the Senate Healthcare Committee.
The orders issued in 2020 were due to the presence of COVID-19 within the state and the "…potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people." It was the early days of the COVID-19 pandemic, and Harris was acting on the best medical knowledge he had.
Dr. Chad Mathis, MD, who was working for the Department of Health & Human Services (HHS) in Washington, D.C. during the outbreak of the pandemic, was surprised when he learned how the state health officer was chosen in Alabama after speaking to members of the Board of Health.
"When I returned from Washington and started looking into engaging with the board, I was shocked to find they are not part of the governor's cabinet; they are part of Medical Association for the State of Alabama (MASA)," said Mathis.
In every other state, the equivalent of Alabama's state health officer is accountable to the electorate, either by direct appointment from the governor or by a board appointed by the same.
Alabama is unique in that the entire structure of the public health establishment has minimal accountability to the public. The Board of Health is completely intertwined with MASA, which is the professional organization that represents "some 7,000 physicians of all specialties throughout Alabama," according to the MASA website.
The opening language of the Alabama Code dealing with public health establishes the relationship with clarity: "The Medical Association of the State of Alabama, as constituted under the laws now in force or which hereafter may be in force, is the State Board of Health" (AL Code 2021 – Section 22-2-1).
MASA is the State Board of Health.
And MASA is an organization that "works closely with the American Medical Association and specialty societies at the state and national level on various issues," representing the interest of its membership in the state legislature.
When told about Alabama's state health officer position appointment, Florida Deputy Press Secretary for the Office of the Governor, Bryan Griffin, agreed that accountability is vital for any public position.
"We avoid commenting on hypotheticals, particularly those that may pertain to affairs outside of Florida," said Griffin. "But as a general principle, it is best when any public official is directly accountable to the citizenry or a duly elected representative of the citizenry."
In short, Alabama is the only state in the country where the state health officer is not answerable to the people but is selected by MASA and serves at the pleasure of the Committee on Public Health, which again is made up of medical professionals not appointed or approved by either the governor or the legislature.
"They're totally immune, separated and insulated from the voters of Alabama," said McClendon.
McClendon introduced a bill in the 2021 legislative session to give the governor the power to pick the state's top public health official. After being held up in the Rules Committee, the bill never made it to the floor.
Professor John Eidsmoe teaches Constitutional Law at Oak Brook College of Law & Government Policy.
"We feel that the Executive Powers Act that gives the governor and state health officer the power to suspend laws is an unconstitutional delegation of legislative power," Eidsmoe said. "The Alabama Constitution (art. 1, sec. 21) says no power suspending laws shall be exercised, except by the legislature. The way it is put there, I think it's clear that is a power the legislature cannot delegate to the executive."
McClendon pointed out that his critique is not of Harris personally but of this Alabama public policy system that lacks public accountability.
"I'm not criticizing Dr. Harris; he served in some very difficult times," said McClendon. "But I am criticizing the system where we have someone who is not an elected official who is given this kind of authority."
In the 2022 legislative session, Sen. Arthur Orr (R-Decatur) proposed a law requiring the governor's approval for emergency orders. The bill failed but could be brought up again in the 2023 legislative session.
During the debate over Orr's bill, two doctors on the Senate committee argued that a change in the way the position is selected would make the state health officer a political position.
"I don't want him answering to the governor," said Sen. Tim Melson, who has a medical degree from UAB and has served as Chief of Anesthesia at Helen Keller Hospital. "I want him answering to the patients in the state … We are going to make it a political position and not a free thinker."
Republican Sen. Larry Stutts, an obstetrician-gynecologist, said it was a step in the wrong direction "to have a political appointment take that position".
Rep. Chris Pringle (R-Mobile), on the other hand, supported the bill, saying he felt it was important to have public health orders subject to approval by an elected official, like the governor.
"I think it's important that we allow somebody that's accountable to be involved in the decision process," Pringle said.
McClendon is concerned with the power of MASA over the state.
"The Medical Association (MASA) is in charge of the major health policies for the state of Alabama," McClendon said. "My concern with this, and how I got involved in it, was the pathetic medical outcomes that we have here in Alabama. Alabama is by far the worst in the nation as far as the health of our population, and the health of our population is, in fact, the responsibility of the Alabama Board of Health, which of course, is MASA."
In 2021, WalletHub ranked Alabama as having the worst healthcare system in the nation based on data on healthcare costs and disease rates, while Alabama physicians rank #1 among the highest paid of all states, according to Medscape's 2021 survey. However, in 2018, the Agency for Healthcare Research and Quality (AHRQ) reported the state ranked in the middle range for things such as types of care offered, the setting of care and clinical research areas.
When it comes to who is in charge in Alabama, the Department of Health's organizational flow chart of January 2022 shows the sequence begins with state government, the Board of Health, the 16-member Committee on Public Health (with 12 members from MASA) and the State Health Officer, currently Scott Harris, MD, who is hired by and acts on behalf of the committee.
When the Board of Health is not in session, the Committee on Public Health assumes the responsibilities of the board. The committee is made up of 16 members, 12 of which are from MASA. The other four seats are held by the chairs of the Council on Dental Health, Council on Animal and Environmental Health, Council on Prevention of Disease and Medical Care and Council on Health Costs.
The committee selects the state health officer, who is empowered to act on the board's behalf.
The board, the State Health Officer, and/or their assigned deputies may choose to inspect various areas including all schools, hospitals, jails, opera houses, stockades where convicts are kept, street railroad cars, clubhouses, and residences, among many others.
Another responsibility of critical importance assigned to public health is to monitor the water supply for pollution or conditions which are likely to bring about pollution. According to the code, "proper steps shall be taken by proper authorities to improve or correct conditions."
However, of the powers afforded the state health officer, none are as broad as the powers granted regarding quarantines. Authority to declare quarantines is shared between the governor and the Board of Health. However, there are powers unique to the state health officer.
Section 22-12-6 of the Alabama Code allows the state health officer, or any representative designated, to enter into "any place in this state" when investigating the necessity for quarantine.
Some say it is striking language considering this authority is vested in an official selected by a professional organization without immediate accountability to the electorate.
This authority extends to all county health boards and officers. In fact, if county health officers fail to follow the State Board of Health, their function "may be discharged by the State Board of Health until proper arrangements are made."
So, are the courts and other state officials bound to follow the rules and decisions of the board?
The subsequent text of the law reads, "rules and regulations shall have the force and effect of law and shall be executed and enforced by the same courts, bodies, officials, agents and employees as in the case of health laws, and a quorum, as provided for by the constitution of the Medical Association of the State of Alabama, shall be competent to act."
This language binds courts to the decisions of the board. These decisions require only a quorum, in this case, nine members. Considering MASA makes up 75% of the board, meaning there are only four seats they don't control, it will always have a majority.
Matt Clark, President of the Alabama Center for Law and Liberty, was even more blunt.
"It is shocking when you see that Dr. Harris really ran the state for about a year and he's somebody that the people did not elect and that the people's representatives did not appoint," Clark said. "So, when one unelected and one unaccountable person has that much power, you have to stop and ask whether this is a good setup or not."
The ACLL has filed a lawsuit against Alabama Gov. Kay Ivey and State Health Officer Dr. Scott Harris on behalf of business owners forced to shut down after COVID restrictions were put into place by Ivey and Harris.
1819 News asked Harris' office what metrics were used to determine the harms from mitigation measures, such as lockdowns, school closures, etc. Harris' office referred to an earlier statement to 1819 News from the Board of Health:
"The Alabama Department of Public Health (ADPH) follows the guidance of the Centers for Disease Control and Prevention (CDC). ADPH provides evidence-based information, based on current science, regarding public health issues, including response to the COVID-19 pandemic," Ryan Easterling, Director of Health Media & Communications Division, stated.
Easterling referred subsequent questions on positions taken by the Board to MASA.
1819 News made multiple attempts to talk to representatives of MASA but received no reply.
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