Int'l Chiropractors Ass'n v. New Mexico Bd. of Chiropractic Examiners

• Decision Date: 31 July 2013
• Docket Number: Nos. 31,690,31,668.,s. 31,690
• Citation: 323 P.3d 914
• Parties: INTERNATIONAL CHIROPRACTORS ASSOCIATION, Plaintiff–Appellant, v. NEW MEXICO BOARD OF CHIROPRACTIC EXAMINERS, Defendant–Appellee, and New Mexico Board of Pharmacy and New Mexico Medical Board, Plaintiffs–Appellants, v. New Mexico Board of Chiropractic Examiners, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

323 P.3d 914

INTERNATIONAL CHIROPRACTORS ASSOCIATION, Plaintiff–Appellant,

v.NEW MEXICO BOARD OF CHIROPRACTIC EXAMINERS, Defendant–Appellee,andNew Mexico Board of Pharmacy and New Mexico Medical Board, Plaintiffs–Appellants,

v.New Mexico Board of Chiropractic Examiners, Defendant–Appellee.

Nos. 31,690, 31,668.

Court of Appeals of New Mexico.

July 31, 2013.

Cuddy & McCarthy LLP, Charles V. Garcia, Albuquerque, NM, Patrick Ortiz, Santa Fe, NM, Swankin & Turner, James S. Turner, Esq., Washington, D.C., for Appellant International Chiropractors Association.

Gary K. King, Attorney General, Zachary A. Shandler, Assistant Attorney General, Santa Fe, NM, for Appellee New Mexico Board of Chiropractic Examiners.

Odin, Feldman & Pittleman, P.C., Thomas R. Daly, Reston, VA, Sutin, Thayer & Browne, Susan M. Hapka, Albuquerque, NM, for Amicus Curiae, American Chiropractic Association.

Gary K. King, Attorney General, Daniel R. Rubin, Special Assistant Attorney General, Santa Fe, NM, Mary H. Smith, Assistant Attorney General, Albuquerque, NM, for Appellants New Mexico Board of Pharmacy and New Mexico Medical Board.

Gary K. King, Attorney General, Zachary A. Shandler, Assistant Attorney General, Santa Fe, NM, for Appellee New Mexico Board of Chiropractic Examiners.

OPINION

WECHSLER, Judge.

{1} This appeal is taken under the Uniform Licensing Act, NMSA 1978, §§ 61–1–1 to –34 (1957, as amended through 2013), to challenge rules adopted by Appellee, the New Mexico Board of Chiropractic Examiners (the Chiropractic Board). The rules in question approve an amended advanced practice chiropractic formulary that includes minerals and additional drugs to be administered by injection (2011 formulary) and a new rule establishing additional educational requirements for advanced practice chiropractic physicians (training rule). Appellants, the New Mexico Board of Pharmacy (the Pharmacy Board), the New Mexico Medical Board (the Medical Board), and the International Chiropractors Association (the ICA), challenge the 2011 formulary, asserting that it violates the requirement of NMSA 1978, Section 61–4–9.2(B) (2009) of the Chiropractic Physician Practice Act, NMSA 1978, §§ 61–4–1 to –17 (1968, as amended through 2009), that prior approval of the Pharmacy Board and the Medical Board be obtained. The ICA also challenges the training rule, arguing that it lacked the necessary prior approval of the Medical Board. We hold that the 2011 formulary that includes minerals and additional drugs to be administered by injection violates Section 61–4–9.2(B)'s requirement that the formula receive approval from the Pharmacy Board and the Medical Board. We find no fault with the training rule. Accordingly, we set aside the 2011 formulary.

BACKGROUND

{2} A certified “advanced practice chiropractic” physician has “prescriptive authority for therapeutic and diagnostic purposes.” Section 61–4–9.1; 16.4.15.7(B) NMAC (7/23/2010). The Chiropractic Board has the statutory obligation to approve formularies for substances to be administered by certified advanced practice chiropractic physicians. Section 61–4–9.2(B). A formulary is a listing of the approved substances and includes the manner in which they may be administered. 16.4.15.11 NMAC (11/13/2011). Formularies are embodied under a rule of the Chiropractic Board. Id. A formulary that includes “[d]angerous drugs or controlled substances, drugs for administration by injection and substances not listed in Subsection A of” Section 61–4–9.2 requires prior submission to the Pharmacy Board and the Medical Board for approval. Section 61–4–9.2(B).

{3} Effective September 11, 2009, the Chiropractic Board adopted an administrative rule establishing an advanced practice chiropractic formulary. This 2009 formulary was the subject of prior litigation between the parties. After the voluntary dismissal of its appeal to this Court, the Pharmacy Board gave its approval for certain substances, and the manner for their administration, to be included in the formulary. The Chiropractic Board decided to amend the formulary proposed in 2009 with the 2010 formulary that was effective July 23, 2010. On July 29, 2011, the Chiropractic Board issued notice that it would hold a hearing and regular meeting to consider various items, including changes to the 2010 formulary. The proposed formulary (2011 formulary) included an amendment to the 2010 formulary 16.4.15.11 NMAC (07/23/2010), to include minerals and additional drugs to be administered by injection and a new rule, 16.4.15.12 NMAC (11/13/2011), establishing additional educational requirements for certified advanced practice chiropractic physicians that was not approved by the Medical Board.

{4} The Chiropractic Board did not submit its proposed 2011 formulary to the Pharmacy Board or the Medical Board prior to the August 30, 2011 hearing. In connection with the hearing, both boards advised the Chiropractic Board that they did not approve the 2011 formulary. The ICA also objected to the 2011 formulary as well as the training rule. The Chiropractic Board approved the 2011 formulary that amended 16.4.15.11 NMAC and the new language of 16.4.15.12 NMAC. The Pharmacy Board and the Medical Board filed a single appeal from the Chiropractic Board's action, and the ICA filed a separate appeal. This Court consolidated the appeals and granted a stay of the two administrative rules pending the resolution of this appeal.

ARGUMENTS OF THE PARTIES

{5} In this appeal, the Pharmacy and Medical Boards and the ICA contend that the 2011 formulary, 16.4.15.11 NMAC, is contrary to law because the Chiropractic Board adopted it without approval of the Pharmacy and Medical Boards, as required by Section 61–4–9.2(B). The ICA additionally argues that the Chiropractic Board's own regulations required it to obtain the approval of the Pharmacy and Medical Boards before approving the 2011 formulary. It further contends that the training rule, 16.4.15.12 NMAC, violates Section 61–4–9.1(D) and 16.4.15.10(C) NMAC (3/31/2009) because the Medical Board did not approve the new training requirements.

{6} The Chiropractic Board counters that its 2011 formulary does not require approval of the Pharmacy and Medical Boards based on its interpretation of Section 61–4–9.2(B) that construes the plain meaning of the statutory language, avoids surplusage, and complies with proper re-punctuation. It argues that its interpretation of Section 61–4–9.2 does not result in any conflict with its regulations. It further contends that the Medical Board was not required to approve the training rule.

STANDARD OF REVIEW

{7} In an appeal of the adoption of a regulation under the Uniform Licensing Act, this Court may set aside the regulation only if it finds the regulation to be: “(1) arbitrary, capricious or an abuse of discretion; (2) contrary to law; or (3) against the clear weight of substantial evidence of the record.” Section 61–1–31(C). The arguments in this appeal raise the question of whether the 2011 formulary and the training rule are contrary to law. Our interpretation of the relevant statutes and administrative rules and regulations is also a question of law. See PC Carter Co. v. Miller, 2011–NMCA–052, ¶ 11, 149 N.M. 660, 253 P.3d 950. We review the Chiropractic Board's application of the law de novo. See id.

THE 2011 FORMULARY

{8} “An administrative agency has no power to create a rule or regulation that is not in harmony with its statutory authority.” Rivas v. Bd. of Cosmetologists, 1984–NMSC–076, ¶ 3, 101 N.M. 592, 686 P.2d 934. The statutory authority at issue is contained in Section 61–4–9.2, which states that:

A. A certified advanced practice chiropractic physician may prescribe, administer and dispense herbal medicines, homeopathic medicines, over-the-counter drugs, vitamins, minerals, enzymes, glandular products, protomorphogens, live cell products, gerovital, amino acids, dietary supplements, foods for special dietary use, bioidentical hormones, sterile water, sterile saline, sarapin or its generic, caffeine, procaine, oxygen, epinephrine and vapocoolants.

B. A formulary that includes all substances listed in Subsection A of this section, including compounded preparations for topical and oral administration, shall be developed and approved by the board. A formulary for injection that includes the substances in Subsection A of this section that are within the scope of practice of the certified advanced practice chiropractic physician shall be developed and approved by the board. Dangerous drugs or controlled substances, drugs for administration by injection and substances not listed in Subsection A of this section shall be submitted to the [Pharmacy Board] and the [Medical Board] for approval.

{9} The central issue before us concerns the meaning of the third sentence of Section 61–4–9.2(B) as to the circumstances under which approval of the Pharmacy and Medical Boards is required. We thus seek to interpret Section 61–4–9.2 to establish the Legislature's intent in enacting the statute. See Bd. of Educ. for Carlsbad Mun. Sch. v. N.M. State Dep't of Pub. Educ., 1999–NMCA–156, ¶ 16, 128 N.M. 398, 993 P.2d 112 (“The primary purpose of statutory interpretation is to ascertain and give effect to legislative intent.” (internal quotation marks and citation omitted)). As the Chiropractic Board points out, this Court refers to the canons of statutory construction to interpret statutory meaning. Janet v. Marshall, 2013–NMCA–037, ¶ 9, 296 P.3d 1253. The Chiropractic Board specifically requests that we interpret Section 61–4–9.2 based on three such canons: that a statute should be interpreted in accordance with its plain meaning, see Janet, 2013–NMCA–037, ¶ 9, 296 P.3d 1253; that a statute should be interpreted to give effect to its entire language such that no language is surplusage, see Benny v. Moberg Welding, 2007–NMCA–124, ¶ 8, 142 N.M. 501, 167 P.3d 949; and that a court may re-punctuate a sentence to fulfill the...