2 N.M. 682
N.M. Ct. App.2012Background
- This appeal consolidates challenges to two NM Board of Acupuncture and Oriental Medicine regulations: emergency regs (June 2010) and permanent regs (October 2010).
- Glenn Wilcox, a doctor of oriental medicine, challenges the Board’s use of emergency powers under the Uniform Licensing Act.
- The Court previously set aside the 2009 Regulations; the Board then enacted emergency regs for 120 days in June 2010 and later adopted the 2010 Regulations after hearings.
- The Practice Act authorizes expanded practice and prescriptive authority with rules to implement it; the Board may adopt rules under the Act and must consult with the Board of Pharmacy as appropriate.
- The court analyzes whether the emergency regs were a valid exercise of emergency power and whether the 2010 Regulations were in harmony with the Act, based on substantial evidence.
- The court ultimately holds the Emergency Regulations invalid but affirms the Board’s adoption of the 2010 Regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether emergency regs were within statutory authority | Wilcox argues the emergency regs exceeded authority because no emergency existed. | Board contends urgency to protect public safety justified emergency action. | Emergency regs invalid; Board acted contrary to law. |
| Whether the 2010 Regulations were in harmony with the Practice Act | Wilcox contends 2010 regs improperly eliminated substances and modes of administration. | Board asserts regulations were supported by substantial evidence and statutory authority. | 2010 Regulations approved; in harmony with the Act. |
| Whether Board properly defined bioidentical hormones and natural substances | Definitions deviated from Act and lacked substantial evidentiary support. | Board had statutory authority to define terms; definitions grounded in expert guidance. | Definitions valid; supported by substantial evidence. |
| Whether imposition of new fees for expanded practice is authorized | Fees exceed statutory authority and are not tied to administrative costs. | Fees are authorized to cover administrative expenses and reflect expanded procedures. | Fees authorized; justification in record; within statutory limits. |
| Whether Board acted with willful arbitrariness in rulemaking | Board biased and unreasonable in promulgating regulations. | Board engaged in extensive, years-long rulemaking with input from multiple parties. | No willful or arbitrary conduct shown; regulations proper. |
Key Cases Cited
- Rivas v. Bd. of Cosmetologists, 101 N.M. 592 (1984) (agency rules must align with statutory authority)
- In re PNM Elec. Servs., 1998-NMSC-017 (1998) (substantial evidence standard and deference to agency findings)
- Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044 (1997) (whole-record review; do not reweigh evidence)
- Leonard v. Payday Prof’l/Bio-Cal Comp., 2008-NMCA-034 (2008) (issues capable of repetition yet evading review; mootness considerations)
- State v. Cobb (Paragon Found., Inc. v. N.M. Livestock Bd.), 2006-NMCA-004 (2006) (public policy issues; repetition and review considerations)