Wilcox v. New Mexico Board of Acupuncture & Oriental Medicine

2012 NMCA 106, 2 N.M. 682
CourtNew Mexico Court of Appeals
DecidedAugust 8, 2012
DocketDocket 30,500 consolidated with 30,869
StatusPublished
Cited by33 cases

This text of 2012 NMCA 106 (Wilcox v. New Mexico Board of Acupuncture & Oriental Medicine) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilcox v. New Mexico Board of Acupuncture & Oriental Medicine, 2012 NMCA 106, 2 N.M. 682 (N.M. Ct. App. 2012).

Opinion

OPINION

CASTILLO, Chief Judge.

{1} This Opinion consolidates two appeals by Glenn W ilcox (Appellant), a doctor of oriental medicine who is challenging two sets of regulations passed by the New Mexico Board of Acupuncture and Oriental Medicine (the Board). The first set consists of emergency regulations passed in June 2010 (Emergency Regulations); the second set consists of permanent regulations passed in October 2010 (2010 Regulations).

{2} We conclude that the Board acted contrary to its statutory authority in passing the Emergency Regulations, but we uphold the Board’s approval of the 2010 Regulations. Accordingly, we reverse in part and affirm in part.

I. BACKGROUND

{3} We begin with a short history of the events underlying these two appeals. In 2000, under the Acupuncture and Oriental Medicine Practice Act (Practice Act), NMSA 1978, §§ 61-14A-1 to -22 (1993, as amended through 2007), the New Mexico Legislature authorized the Board to issue certifications, as determined by Board rule, for extended prescriptive authority for those substances enumerated in the statute. Section 61-14A-8.1 (2000). In late 2004, the Board approved regulations establishing a formulary to guide that expanded practice, and the formulary took effect in February 2005 (2005 Regulations or 2005 Formulary).

{4} In 2007, the Legislature amended the Practice Act to redefine the scope of the certificates for expanded practice and prescriptive authority. Section 61-14A-8.1 (2007). The available types of certifications in the expanded practice areas were increased to four: basic injection therapy, injection therapy, intravenous therapy, and bioidentical hormone therapy. Section 61-14A-8.1(B). The 2007 amendments also included additional substances and clarified that the compounding of drugs must comply with the compounding requirements for licensed health care professionals in the United States pharmacopoeia and national formulary. Section 61-14A-8.1(C), (D). In November 2007, soon after the amendments became law, the Board became aware that the updated Practice Act was subject to misinterpretation by practitioners and that confusion existed about which drugs and substances could be injected into patients. In that same year, the Board discussed cooperating with the Board of Pharmacy (BOP), which had expressed frustration with the 2005 Formulary’s lack of specificity and definition. In early 2008, the Board established a joint committee with the BOP to address the matter. During 2008 and 2009, the Governor’s Office, the BOP, the New Mexico Regulation and Licensing Department, as well as practitioners, makers of the substances, and members of the public brought their concerns to the Board regarding the confusion about what could and could not be prescribed, administered, compounded, and dispensed under Section 61-14A-8.1 and the 2005 Formulary.

{5} As a result of these concerns, the Board adopted new regulations in September 2009 (2009 Regulations). These regulations were the subject of Appellant’s first appeal to this Court in November 2009. In May 2010, we set aside the 2009 Regulations because the Board had failed to communicate the reasons behind passage of the regulations. See Wilcox v. N.M. Bd. of Acupuncture & Oriental Med., 2010 WL 4684756 (July 23, 2010). 1

{6} These combined appeals represent Appellant’s next two challenges to virtually the same set of regulations. After the 2009 Regulations were set aside, the Board responded less than a month later in June 2010 and, under its emergency powers provided by the Uniform Licensing Act (ULA), voted to re-adopt the regulations, making them effective for a 120-day period. See NMSA 1978, § 61-1-30 (1981). Appellant appealed the adoption of the Emergency Regulations, which expired in October 2010. The Board then held hearings in August and later in 2010. After admitting numerous exhibits, hearing testimony, public comment, and issuing more than one hundred findings of facts and conclusions of law, the Board voted to adopt the 2010 Regulations. Appellant then filed an appeal challenging these regulations. After setting out the standard of review, we will consider Appellant’s two appeals in turn.

II. DISCUSSION

A. Standard of Review

{7} “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, 101 N.M. 592, 593, 686 P.2d 934, 935 (1984). The Legislature may delegate legislative duties to aboard, “but in so doing, boundaries of authority must be defined and followed.” Id. We will set aside a regulation only if it is found to be “(1) arbitrary, capriciousf,] or an abuse of discretion; (2) contrary to law; or (3) against the clear weight of substantial evidence of the record.” NMSA 1978, § 61-1-31(C) (1981).

We define “[arbitrary” and “capricious” acts as “those that may be considered wilful and unreasonable, without consideration, and in disregard of the facts and circumstances.” In re PNM Elec. Servs., 1998-NMSC-017, ¶ 24, 125 N.M. 302, 961 P.2d 147. And we take a deferential stance when judging whether a board abused its discretion:

An agency’s rule-making function involves the exercise of discretion, and a reviewing court will not substitute its judgment for that of the agency on that issue where there is no showing of an abuse of that discretion. Rules and regulations enacted by an agency are presumed valid and will be upheld if reasonably consistent with the statutes that they implement.

Old Abe Co. v. N.M. Mining Comm’n, 121 N.M. 83, 88, 908 P.2d 776, 781 (Ct. App. 1995) (internal quotation marks and citation omitted). “Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion.” In re PNM Elec., 1998-NMSC-017, ¶ 23. In reviewing a substantial evidence claim, “[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached.” Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. We conduct a whole record review to determine whether a board’s decision is supported by substantial evidence. AA Oilfield Serv., Inc. v. N.M. State Corp. Comm’n, 118 N.M. 273, 275, 881 P.2d 18, 20 (1994). Additionally this Court “will not reweigh the evidence nor substitute our judgment for that of the fact finder.” Las Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. We review both sets of regulations under this standard.

B. Emergency Regulations

{8} As we have explained, after this Court rejected the 2009 Regulations, the Board passed emergency regulations in June 2010 that were essentially the same as those adopted in 2009.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State ex rel. Taylor v. Denney
New Mexico Court of Appeals, 2025
Ryan v. Garrison
New Mexico Court of Appeals, 2024
Barnes v. N.M. Tax'n and Revenue Dep't
New Mexico Court of Appeals, 2024
Rupert v. N.M. Hum. Services Dep't
New Mexico Court of Appeals, 2023
State ex rel. CYFD v. Phelisha L.
New Mexico Court of Appeals, 2023
Augustin Plains Ranch, LLC v. D'Antonio
New Mexico Court of Appeals, 2022
Augustin Plains Ranch v. John D’Antonio
New Mexico Court of Appeals, 2022
Santa Fe Reporter Newspaper v. City of Santa Fe
New Mexico Court of Appeals, 2022
Amigos Bravos v. WQCC
New Mexico Court of Appeals, 2021
White v. Los Alamos
New Mexico Court of Appeals, 2021
Marker v. N.M. Oil and Conservation
New Mexico Court of Appeals, 2021
White v. Farris
2021 NMCA 014 (New Mexico Court of Appeals, 2021)
Laffoon v. Bank of N.Y.
New Mexico Court of Appeals, 2020
Brown v. Garcia
New Mexico Court of Appeals, 2020
James Hamilton Constr. Co. v. Church
New Mexico Court of Appeals, 2020
Active Solutions v. Taxation and Revenue Dep't
New Mexico Court of Appeals, 2020
State v. Williams
New Mexico Court of Appeals, 2019
Silva v. Denco Sales Co.
2020 NMCA 012 (New Mexico Court of Appeals, 2019)
Soderlund v. Hennessey-Soderlund
New Mexico Court of Appeals, 2019

Cite This Page — Counsel Stack

Bluebook (online)
2012 NMCA 106, 2 N.M. 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-new-mexico-board-of-acupuncture-oriental-medicine-nmctapp-2012.