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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PACIFIC DENTAL SERVICES, INC.,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-36235
5 NEW MEXICO BOARD OF DENTAL 6 HEALTH CARE,
7 Defendant-Appellee.
8 APPEAL FROM NEW MEXICO BOARD OF DENTAL HEALTH CARE 9 Dr. Charles Schumacher, DDS, Presiding Officer
10 Montgomery & Andrews, P.A. 11 Seth C. McMillan 12 Kari E. Olson 13 Stephen S. Hamilton 14 Matthew A. Zidovsky 15 Santa Fe, NM
16 for Appellant
17 Hector H. Balderas, Attorney General 18 Lori Chavez, Assistant Attorney General 19 Santa Fe, NM
20 for Appellee
21 MEMORANDUM OPINION
1 VANZI, Judge.
2 {1} Pacific Dental Services, LLC (Plaintiff), the managing member of a limited
3 liability company licensed as a non-dentist owner of several dentistry practices in
4 New Mexico, appeals the adoption of three regulatory amendments (the
5 amendments) to the occupational and professional licensing regulations by the
6 New Mexico Board of Dental Health Care (the Board). We affirm.
7 BACKGROUND
8 {2} The Board held three separate meetings on January 27, 2017: an initial
9 hearing to take public comment on proposed regulatory amendments, a committee
10 meeting to consider the impact of the proposed amendments on dental hygienists,
11 and a regular meeting for the Board to discuss and vote on the proposed
12 amendments. Plaintiff, through its counsel, was present at the initial public hearing,
13 along with several other members of the professional dental community. Because
14 this is a memorandum opinion and the parties are familiar with the case, we briefly
15 summarize the relevant portions of the three meetings as they relate to each of the
16 challenged amendments and reserve further discussion of the facts for our analysis
17 of the issues on appeal.
18 {3} The Board first proposed amending 16.5.1.24 NMAC to require non-dentist
19 owners to comply with the existing general record-keeping requirements applicable
20 to dentists, which require patient records to be kept for six years after a dentist
1 retires or stops practicing. Plaintiff commented that requiring non-dentist owners to
2 comply with the general record-keeping requirements would be redundant because
3 there is already a regulation that requires non-dentist owners to maintain patient
4 records for six years. See 16.5.9.8(L) NMAC. Additionally, Plaintiff argued that
5 the amendment would be confusing because non-dentist owners do not “practice[]”
6 or “retire[].” After the initial public hearing, the dental hygienist committee met
7 and voted unanimously to recommend adoption of the amendment without
8 comment. At the regular meeting following the committee meeting, the Board
9 noted the dental hygienist committee’s approval and voted unanimously to adopt
10 the amendment without further discussion.
11 {4} The Board also proposed amending 16.5.9.8(K) NMAC, a regulation
12 applicable only to non-dentist owners, which requires that “no person other than a
13 New Mexico licensed dentist shall have direct control or interfere with the dentist’s
14 or dental hygienist’s clinical judgment and treatment[.]” The amendment added the
15 language “including referrals or prescription of laboratory services.” Plaintiff
16 commented that the proposed amendment would be confusing and redundant in
17 light of existing regulations and statutes that prohibit anyone from interfering with
18 a dentist’s clinical judgment. The presiding member of the Board asked how the
19 amendment would affect Plaintiff. Plaintiff responded that while it already
20 complied with the existing statutes and regulations, it was concerned that the
1 amendment was targeting non-dentist owners. Plaintiff believed the Board was
2 targeting non-dentist owners by amending the regulation specifically applicable to
3 non-dentist owners instead of adopting a generally applicable regulation. The
4 dental hygienist committee subsequently voted unanimously to recommend
5 adoption of the amendment. During the regular meeting, the Board noted the
6 committee’s approval and voted unanimously to adopt the amendment without any
7 further discussion.
8 {5} Finally, the Board proposed amending 16.5.16.10(B)(4) NMAC, one of the
9 guidelines that the Board considers when imposing disciplinary action for
10 unprofessional conduct. Section 16.5.16.10(B)(4) defined “unprofessional
11 conduct” to include “failure to seek consultation whenever the welfare of the
12 patient would be safeguarded or advanced by referral to individuals with special
13 skills, knowledge, and experience[.]” The proposed amendment added the
14 following subsections to 16.5.16.10(B)(4) as specific examples of this type of
15 unprofessional conduct:
16 (a) an owner dentist or supervisor causing an employee 17 dentist to make a referral for dental treatment based on contractual 18 obligations when, in the judgment of the treating dentist, the welfare 19 of the patient would be safeguarded or advanced by referral to another 20 practitioner, and/or failure to notify the patient of such contractual 21 obligations for referrals;
22 (b) an owner dentist or supervisor causing an employee 23 dentist to use a dental laboratory due to contractual obligations when, 24 in the judgment of the treating dentist, the welfare of the patient 4
1 would be safeguarded or advanced by the use of another dental 2 laboratory.
3 Plaintiff voiced concern that the amendment would create uncertainty for licensees
4 in terms of knowing whether their conduct is sanctionable. Plaintiff also asserted
5 that current regulations and statutes already prohibit the conduct proscribed by the
6 amendment. The dental hygienist committee did not discuss or vote on the
7 amendment. During the regular meeting, the Board voted unanimously to adopt the
8 amendment after briefly considering tabling it to consider its possible legal
9 ramifications.
10 {6} Plaintiff subsequently brought this appeal pursuant to NMSA 1978, Section
11 61-1-31(A) (1981).
12 DISCUSSION
13 Plaintiff Has Standing to Appeal
14 {7} At the outset, we address the Board’s argument that Plaintiff lacks statutory
15 standing to appeal the Board’s adoption of the amendments. “Whether a party has
16 standing to litigate a particular issue is a question of law, which we review de
17 novo.” Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶ 6, 279 P.3d 772
18 (internal quotation marks and citation omitted). “[S]tanding is a jurisdictional
19 prerequisite where an action is created by statute and the statute specifies that only
20 a limited class of plaintiffs who satisfy certain conditions may sue.” Phoenix
21 Funding, LLC v. Aurora Loan Servs., LLC, 2017-NMSC-010, ¶ 19, 390 P.3d 174. 5
1 In determining whether a party has standing under a statute, “we must look to the
2 Legislature’s intent as expressed in the [a]ct or other relevant authority.” Key v.
3 Chrysler Motors Corp., 1996-NMSC-038, ¶ 11, 121 N.M. 764, 918 P.2d 350. “To
4 determine legislative intent we look first to the plain language of the statute.”
5 Draper v. Mountain States Mut. Cas. Co., 1994-NMSC-002, ¶ 4, 116 N.M. 775,
6 867 P.2d 1157. “[W]hen a statute contains language which is clear and
7 unambiguous, we must give effect to that language and refrain from further
8 statutory interpretation.” Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147
9 N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted).
10 {8} Section 61-1-31(A) provides: “Any person who is or may be affected by a
11 regulation adopted by the [B]oard may appeal to the court of appeals for relief.”
12 The Board argues that, in light of Plaintiff’s assertions that it already complies with
13 the law and that all of the regulation amendments are “redundant,” there is no harm
14 for which this Court may grant relief. In support of its argument, the Board cites
15 Kerr-McGee Nuclear Corp. v. New Mexico Environmental Improvement Board,
16 1981-NMCA-044, ¶ 43, 97 N.M. 88, 637 P.2d 38, where we stated, “ ‘For relief’
17 means that when a board adopts a regulation, which, when applied, leads to an
18 unfavorable result to any ‘person,’ that ‘person’ can appeal to this Court to
19 challenge the validity of the regulation.” (Emphasis added.) The Board’s reliance
20 on Kerr-McGee Nuclear Corp. is misplaced. When read in context, it is clear this
1 Court intended this statement to express the broad nature of the language “person”
2 rather than express a limitation on standing to appeal based on the harm to the
3 Plaintiff as a result of the adopted regulation. See id. ¶¶ 43-44. Similarly, the term
4 “for relief,” in the context of Section 61-1-31(A), refers to the remedy that this
5 Court may grant the Plaintiff, which is the review and potential invalidation of
6 regulations adopted by the Board. See Black’s Law Dictionary 1482 (10th ed.
7 2014) (defining “relief” as “[t]he redress or benefit . . . that a party asks of a
8 court”).
9 {9} The plain language of Section 61-1-31(A) is broad as it grants to any person
10 who “is or may be affected by a regulation adopted by the [B]oard” the right to
11 appeal the Board’s decision to this Court. (Emphasis added.) Unlike other statutory
12 provisions that expressly limit standing to those adversely affected by a regulation,
13 Section 61-1-31(A) grants standing without regard to the nature of any existing
14 effect on the plaintiff. Compare id. with NMSA 1978, § 74-6-7 (1993) (“[A]
15 person who is adversely affected by a regulation adopted by the commission . . .
16 may appeal to the court of appeals for further relief.” (emphasis added)). We
17 believe the failure to express a similar limitation in Section 61-1-31 indicates the
18 Legislature’s intent to grant all persons the right to appeal if they “[are] or may be
19 affected by the regulation,” whether or not they can demonstrate an adverse effect.
20 Cf. State v. Chavez, 1992-NMCA-037, ¶ 9, 115 N.M. 248, 849 P.2d 1071 (“We
1 believe that if the [L]egislature intended such a result, it would have clearly said
2 so.”).
3 {10} The Board does not dispute that Plaintiff is subject to 16.5.1.24 NMAC and
4 16.5.9.8(K) NMAC as a non-dentist owner, and therefore, may be affected by the
5 amendments to those sections. However, the Board asserts that 16.5.16.10(B)(4)
6 NMAC “only applies to owner dentists or supervisors, not non-dentist owners.”
7 Yet 16.5.16.2 NMAC provides that “[t]he provisions of 16.5.16 NMAC apply to
8 all active license holders and applicants for licensure[,]” and the Board does not
9 dispute that Plaintiff is an active license holder. (Emphasis added.) Thus, even
10 though 16.5.16.10(B)(4) NMAC only mentions owner dentists and supervisors, the
11 provision applies to Plaintiff. As an active license holder subject to these
12 regulations, Plaintiff “may be affected” by the Board’s decision to adopt the three
13 amendments. See Section 61-1-31(A). Plaintiff has standing to appeal the Board’s
14 decisions, and consequently this Court has jurisdiction.
15 The Board Provided an Adequate Statement of Reasons for Its Adoption of 16 the Amendments
17 {11} Having concluded that Plaintiff has standing, we turn to Plaintiff’s
18 arguments on appeal. “[I]n adopting regulations, administrative [boards] must give
19 some indication of their reasoning and of the basis upon which the regulations
20 were adopted in order for the courts to be able to perform their reviewing
21 function.” N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA- 8
1 083, ¶ 16, 88 N.M. 201, 539 P.2d 221. However, “[f]ormal findings are not
2 required.” Pharm. Mfrs. Ass’n v. N.M. Bd. of Pharmacy, 1974-NMCA-038, ¶ 17,
3 86 N.M. 571, 525 P.2d 931. Nor does the Board need to state its reasons for
4 adopting each provision or address every concern raised in testimony, as “[s]uch a
5 requirement would be unduly onerous . . . and unnecessary for the purposes of
6 appellate review.” The Regents of Univ. of Cal. v. N.M. Water Quality Control
7 Comm’n, 2004-NMCA-073, ¶ 13, 136 N.M. 45, 94 P.3d 788. Rather, “[t]he only
8 requirements are that the public and the reviewing courts are informed as to the
9 reasoning behind the regulation.” Pharm. Mfrs. Ass’n, 1974-NMCA-038, ¶ 17.
10 {12} Plaintiff contends that the Board failed to provide a statement of reasons for
11 the amendments. In response, the Board argues that its members’ statements made
12 at the initial public hearing provide this Court with sufficient indications of the
13 Board’s reasons for the amendments. After reviewing the record, we agree with the
14 Board. Although neither the dental hygienist committee nor the Board dedicated
15 any real substantive discussion to the three amendments at their respective
16 meetings, the Board members’ comments at the initial public meeting provide us
17 with sufficient information of the Board’s reasoning to allow for meaningful
18 review.
19 {13} In regard to the record-keeping requirement of 16.5.1.24 NMAC, one of the
20 Board members pointed out that some non-dentist owners do, in fact, retire and
1 corporate non-dentist owners occasionally close down without transferring patient
2 records to another practice. The board member also pointed out that the
3 requirement was helpful to the Board’s complaint committee in terms of having
4 access to patient records. Another Board member stated that the record-keeping
5 requirement needed to “be on file with more teeth” because some patients were
6 having difficulty accessing their records after dental practices close down. In
7 responding to Plaintiff’s concerns about redundancy, a member of the Board’s
8 rules committee responsible for drafting the amendments stated that it was
9 important to have the requirement appear in multiple sections so licensees “would
10 be more likely to run into it.” Another member of the Board’s rules committee
11 commented in favor of the amendment because it would require non-dentist
12 owners to comply with additional record-keeping requirements after they retire or
13 stop practicing.
14 {14} With respect to the amendment prohibiting non-dentist owners from
15 interfering with patient referrals and prescription of laboratory services,
16 16.5.9.8(K) NMAC, a member of the rules committee commented that the
17 regulation was important to prevent non-dentist owners from questioning the
18 clinical judgments of dentists in order to increase profits. Another member of the
19 rules committee explained that the purpose of the rule was to give young dentists
20 the authority to confront coercive superiors. In response to Plaintiff’s concerns
1 about redundancy, a Board member pointed out there were only regulations in
2 place to sanction dentist owners and supervisors for interfering with a dentist’s
3 clinical judgment; there was no similar regulation applicable to non-dentist owners.
4 As such, the Board member concluded the regulation was necessary to protect the
5 public by ensuring that non-dentist owners were subject to the same requirements
6 as dentist owners in terms of interfering with a dentist’s clinical judgment.
7 {15} Finally, with reference to the last amendment relating to patient referrals
8 based on contractual obligations, 16.5.16.10(B)(4) NMAC, a Board member stated
9 that the purpose of the regulation was to cover situations where the dentist’s
10 contractual obligations influenced their decision on where to refer patients, which
11 was not already proscribed by other regulations or statutes. And another Board
12 member stated that the purpose was to protect the public by requiring dentists to
13 refer their patients to whomever the dentist believed would be best, regardless of
14 their contractual obligations.
15 {16} Plaintiff contends that these statements are insufficient to show the basis of
16 the Board’s decisions because the Board did not formally issue any findings or
17 explicitly adopt the reasoning behind them. However, the Board is not required to
18 expressly enunciate findings of fact, see Pharm. Mfrs. Ass’n, 1974-NMCA-038,
19 ¶ 17, or address every concern raised in testimony, see The Regents of Univ. of
20 Cal., 2004-NMCA-073, ¶ 13. It must simply inform the public and the reviewing
1 court of the reasoning behind the regulations. See Pharm. Mfrs. Ass’n, 1974-
2 NMCA-038, ¶ 17. We hold that the Board and rules committee members’
3 statements satisfy this requirement. See id. (holding that the comments of one
4 board member, which were uncontradicted by the other board members, were
5 sufficient to enable appellate review).
6 The Board’s Adoption of the Amendments Was Not Arbitrary, Capricious, an 7 Abuse of Discretion, or Against the Clear Weight of Substantial Evidence
8 {17} Plaintiff argues that the Board’s adoption of the amendments was arbitrary,
9 capricious, or an abuse of discretion, as well as against the clear weight of
10 substantial evidence because the Board did not consider any competent evidence.
11 See § 61-1-31(C) (stating that this Court may set aside a regulation only if it is “(1)
12 arbitrary, capricious, or an abuse of discretion; (2) contrary to law; or (3) against
13 the clear weight of substantial evidence of the record”). We disagree. We review
14 the whole record to determine the validity of an administrative board’s decision.
15 See Town & Country Food Stores, Inc. v. N.M. Regulation & Licensing Dep’t,
16 2012-NMCA-046, ¶ 8, 277 P.3d 490. “The party challenging an [administrative
17 board] decision bears the burden on appeal of showing that [board] action falls
18 within one of the oft-mentioned grounds for reversal.” See Miss. Potash, Inc. v.
19 Lemon, 2003-NMCA-014, ¶ 8, 133 N.M. 128, 61 P.3d 837 (internal quotation
20 marks and citation omitted). An administrative board acts arbitrarily and
21 capriciously when its actions “may be considered wil[l]ful and unreasonable, 12
1 without consideration, and in disregard of the facts and circumstances.”
2 Application of PNM Elec. Servs., Div. of Pub. Serv. Co. of N.M., 1998-NMSC-017,
3 ¶ 24, 125 N.M. 302, 961 P.2d 147. “An abuse of discretion occurs when the
4 administrative [board] has not acted in a manner required by the law.” N.M.
5 Regulation & Licensing Dep’t v. Lujan, 1999-NMCA-059, ¶ 8, 127 N.M. 233, 979
6 P.2d 744. “Substantial evidence is relevant evidence that a reasonable person might
7 accept as adequate to support a conclusion. In reviewing a substantial evidence
8 claim, the question is not whether substantial evidence exists to support the
9 opposite result, but rather whether such evidence supports the result reached.”
10 Wilcox v. N.M. Bd. of Acupuncture & Oriental Med., 2012-NMCA-106, ¶ 7, 288
11 P.3d 902 (alteration, internal quotation marks, and citations omitted).
12 {18} Our review of the record establishes that the majority of comments at the
13 public hearing were in favor of all three amendments. The only comments in
14 opposition to the record-keeping amendment, 16.5.1.24 NMAC, came from
15 Plaintiff. On the other hand, several members of the public and the rules committee
16 commented in favor of the amendment. A member of the Board’s rules committee
17 commented that, based on her experience serving on the Board for over eleven
18 years, the more times a requirement appeared in the regulations, the more likely the
19 licensee would be aware of it. Another member of the rules committee commented
20 in favor of making non-dentist owners subject to the regulation because it
1 contained additional record-keeping requirements. A local dentist also commented
2 that he knew of two corporate dental practices in other states that left patients
3 without access to their records after suddenly going bankrupt. Plaintiff argues that
4 these “anecdotes concerning activities occurring in other parts of the country
5 demonstrated no evidentiary nexus to any evil present in New Mexico that this rule
6 amendment is intended to rectify.” Yet Plaintiff provides no authority for the
7 argument that the Board cannot consider examples of relevant events from other
8 states, and we are aware of no such authority. See In re Adoption of Doe, 1984-
9 NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that when a party fails to
10 cite authority for an argument, we may assume none exists). The purpose of the
11 Board is to protect the public from the improper and unprofessional practice of
12 dentistry. See NMSA 1978, § 61-5A-2(A) (2011) (“In the interest of the public
13 health, safety and welfare and to protect the public from the improper,
14 unprofessional, incompetent and unlawful practice of dentistry and dental hygiene,
15 it is necessary to provide laws and rules controlling the granting and use of the
16 privilege to practice dentistry and dental hygiene and to establish a board of dental
17 health care and a dental hygienists committee to implement and enforce those laws
18 and rules.”). Simply because the dentist’s illustrative examples came from other
19 states does not mean that the Board must sit idly by waiting for the harms it is
20 trying to protect against to happen in our state.
1 {19} The amendment prohibiting non-dentist owners from exercising direct
2 control over a dentist’s referrals or prescription of laboratory services, 16.5.9.8(K)
3 NMAC, also received substantial support during the initial public hearing. One
4 rules committee member commented on the importance of protecting against non-
5 dentist owners interfering with the clinical judgments of dentists, and another
6 explained that the rule gave young dentists the ability to stand up to coercive non-
7 dentist superiors. Two local dentists, one of whom was a rules committee member,
8 stated that they knew of instances where non-dentist owned practices pressured
9 their dentists into performing more procedures in order to increase profits.
10 Additionally, the American Association of Orthodontists submitted an email in
11 support of the amendment. Again, the only comments in opposition to the
12 amendment came from Plaintiff.
13 {20} Likewise, the majority of the comments supported 16.5.16.10(B)(4) NMAC,
14 the amendment defining the practice of referring patients to outside providers
15 based on contractual obligations as “unprofessional conduct.” While Plaintiff and
16 one rules committee member voiced concerns over the amendment, the other
17 comments were in favor of the amendment. A local dentist supportive of the
18 amendment stated that he knew of three instances—two involving Albuquerque
19 dentists—where dentists referred patients to inferior providers based on contractual
20 obligations. Another dentist and rules committee member commented in favor of
1 implementing the regulation in order to protect patients. The amendment also
2 received support from the American Association of Orthodontists.
3 {21} Plaintiff would have us brush off the comments in support of the
4 amendments. Specifically, Plaintiff argues that the comments discussed above do
5 not constitute competent evidence because they were based on “conjecture,”
6 “unfounded opinion,” and “anecdote.” We disagree with the veneer Plaintiff places
7 on the comments. “In proceedings held under the Uniform Licensing Act, boards . .
8 . may admit any evidence and may give probative effect to evidence that is of a
9 kind commonly relied on by reasonably prudent people in the conduct of serious
10 affairs. Boards . . . may in their discretion exclude incompetent, irrelevant,
11 immaterial and unduly repetitious evidence.” NMSA 1978, § 61-1-11(A) (1981).
12 We fail to see how the comments are not “of a kind commonly relied on by
13 reasonably prudent people in the conduct of serious affairs.” Id. Notably, all of the
14 commenters, besides Plaintiff’s attorney, were local professionals in the field of
15 dentistry. Some of the commenters were also members of the Board’s rules
16 committee in charge of drafting the amendments. Many, if not all, of their
17 comments were based on firsthand knowledge. The root of Plaintiff’s argument
18 appears to be that the Board should have given credence to Plaintiff’s opinions and
19 not those of the other commenters. However, we will not reweigh the evidence, nor
20 substitute our judgment for that of the Board. Bd. of Cty. Comm’rs of Sierra Cty. v.
1 Harrison, 1998-NMCA-106, ¶ 7, 125 N.M. 495, 964 P.2d 56. Given the number of
2 the comments in favor of the amendments and the qualifications of those making
3 the comments, we hold that the Board’s adoption of the amendments was not
4 arbitrary, capricious, an abuse of discretion, or against the clear weight of
5 substantial evidence.
6 {22} Plaintiff makes several additional arguments, which we briefly address.
7 Throughout its brief in chief, Plaintiff claims that the Board’s adoption of the
8 amendments was arbitrary, capricious, or an abuse of discretion because the
9 amendments are redundant and confusing in light of existing regulations and laws.
10 Yet Plaintiff cites no authority for the proposition that an administrative board’s
11 adoption of a regulation is improper because the regulation’s purpose is separately
12 provided for by other regulations or statutes. Where a party cites no authority to
13 support its argument, we may assume no such authority exists. See In re Adoption
14 of Doe, 1984-NMSC-024, ¶ 2. Thus, we decline to address this argument.
15 {23} Plaintiff also asserts that the regulations violate equal protection and
16 “potentially conflict” with existing law. However, we also decline to opine on
17 these arguments, as Plaintiff makes no real attempt to demonstrate how the
18 regulations are unconstitutional or incompatible with existing law beyond these
19 conclusory assertions. See Elane Photography, LLC v. Willock, 2013-NMSC-040,
20 ¶ 70, 309 P.3d 53 (declining to rule on an inadequately briefed argument).
1 {24} Lastly, Plaintiff argues that the Board’s adoption of the amendments was
2 error because “there was no rational connection between the facts found and the
3 [amendments] adopted because no facts based on record evidence or testimony
4 were found by the Board.” However, as discussed earlier, the Board is not required
5 to enter any formal findings of fact. See Pharm. Mfrs. Ass’n, 1974-NMCA-038, ¶
6 17. Nor does Plaintiff demonstrate how there is a lack of a rational connection
7 between the public comments and the Board’s decision to adopt the amendments.
8 Therefore, Plaintiff’s argument is unavailing.
9 CONCLUSION
10 {25} For the foregoing reasons, we affirm the Board’s decision to adopt the
11 amendments.
12 {26} IT IS SO ORDERED.
13 __________________________________ 14 LINDA M. VANZI, Judge
15 WE CONCUR:
16 _________________________________ 17 BRIANA H. ZAMORA, Judge
18 _________________________________ 19 ZACHARY A. IVES, Judge