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Special Edition

The New Mexico "Briefs"

  September 24 , 2012 

In This Issue
The New Mexico Statutes
June 14, 2010
March 7, 2011
March 17, 2011
August 30, 2011
The Legal Arguments
The New Mexico Briefs
The Conclusion
Quick Links
Past Issues
 

 

 

 
 
 
 
 
 
 
JanseSpeech2012.m4v

2012 FCLB:

Dr. Riekeman

 
 







 

 

FCLB Janse Speech 2011 Highlights.mov

2011 FCLB:

 Dr. Winterstein


 

 

 

 

 

 

 

 

DaVinciConference.m4v

May 2012:

DaVinci Group

 

 

 

 

 

 

 

 

 

Chiropractic Neurology: Miracle Method or Placebo?
Chiropractic Neurology: Miracle Method or Placebo?

 

 

 

 

 

 

 

 

 

 

 

[OFFICIAL TRAILER] Medical, Inc.
[OFFICIAL TRAILER] Medical, Inc.

 

 

 

 

 

 

 

 

 

 

 

 

NMBCE NMMB General Counsel
The New Mexico Legal Issue
The WHG Message
The West Hartford Group has recently surfaced as a minority group advocating for  the  elimination of  "subluxation" from the chiropractic profession.  The Following Published Papers are prominently displayed on the WHG "Our Message" page at: 

 

1Podiatry Paper 

 

2.  Subluxation/Dogma Paper

 

3.  Spine Care Model Paper

 

4.  Chiropractic Education Paper

 

Do you know who belongs to this politically active group of chiropractic elitists?  Click here and check for yourself.

Greetings!

Welcome to the special "New Mexico Legal Briefs" edition of the "ICA In Action" newsletter.  As the ICA continues to increase involvement in state, national and international events I hope to keep you informed as to the "what, where and whys" behind the ICA actions.  I look forward to your feedback.
 
 On September 13, 2012 the American Chiropractic Association announced their filing of an Amicus Brief in support of the legal position taken by the New Mexico Board of Chiropractic Examiners. In that announcement the ACA claimed that the "International Chiropractors Association (ICA) joined forces with the New Mexico Board of Pharmacy and the New Mexico Medical Board in a December 2011 memorandum to the court, requesting a halt to efforts by the New Mexico Board of Chiropractic Examiners to create an advanced practice training and certification program for chiropractic physicians."
 
In the past I have criticized the actions of various chiropractic leaders who have taken the art of "spin" beyond the realm of reasonableness.  This time the ACA has filed a brief in the New Mexico Court of Appeals.  In that brief the ACA claims that  " ... the outside intervention of the International Chiropractors Association, in aligning itself with the views and actions of the New Mexico Medical Board and the New Mexico Board of Pharmacy in opposition to the New Mexico Board of Chiropractic Examiners, does not represent the views of the mainstream of the chiropractic profession."
 
Several chiropractic organizations have issued statements interpreting the action taken by the ACA as indicative of a show of support for the "pro-drug" minority in our profession seeking to obtain prescription drug rights. ( see FSV release and FCPAA e-mail )
 
Rather than issue an "official statement" in response to the misleading ACA press release, I will present the facts, in an objective manner and let you, the reader, decide whether you support the actions of the ICA.  This Special Issue of the ICA In Action newsletter is dedicated to exploring the legal issues in New Mexico.  I will attempt to present both sides of the lawsuit in New Mexico and admit that my bias is in favor of the position taken by the ICA. 
 
 
Click here if you would like to join the ICA and become part of the "mainstream" opposing the introduction of "prescription drug rights".  

   

Dr. Steve Welsh 
Secretary/Treasurer
ICA
The New Mexico Statute Passed in 2009

The basis of the legal arguments revolve around the interpretation of section 61-4-9.2 which was amended when HB14 was passed and signed into law on April 8, 2009. 

 

61-4-9.2. Certified advanced practice chiropractic physician authority defined. (Repealed effective July 1, 2016.) (2008) 

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 board of pharmacy and the New Mexico medical board for approval.

History: Laws 2008, ch. 44, 2; 2009, ch. 260, 1. 

 

It is the legal position of the ICA that section B of statute 61-4-9.2 requires that the addition of any injectable substance, which by law is defined as a drug, to the New Mexico Formulary requires the express approval of the New Mexico Medical Board and the New Mexico Board of Pharmacy. 

 

June 14, 2010:  NMBCE's Dr. Bill Doggett Defines  a Drug
Dr  Bill Doggett
Dr Bill Doggett
At the June 14, 2010 at a public hearing of the New Mexico Board of Chiropractic Examiners (NMBCE),  Dr. Bill Doggett explained that the Board had erred when it issued a letter to the practitioners authorizing the injection of substances listed in Part A of the statute based upon an interpretation that the phrase "administer"  included administration by injection. The NMBCE, in June 2010, agreed with the other Boards' assertion that  "ANY substance intended to be injected, by law, becomes a DRUG."   At the February 2010 meeting of the New Mexico Medical Board the recommendation for a Chiropractic Formulary was approved that expressly DID NOT include ANY injectables for Physical Medicine Therapies.  Click here to access the official minutes of that meeting.  Since the Board did not obtain approval from the Medical Board, the New Mexico Chiropractic Association introduced HB127 in 2011.  The proposal to remove the requirement for Medical Board oversight for injectables quickly became national news and a rallying point for both sides of the "chiropractic prescription drug" debate.
March 7, 2011: HB 127 on Channel 13 News
Plan lets chiropractors prescribe drugs
Plan lets chiropractors prescribe drugs
 Dr. Stephen Perlstein, an APC Chiropractor, and one of the principal authors of HB127,  was featured on an TV news segment as the controversial bill was working its way through committee.  At that time, it was expected that the airing of the report would give momentum to the bill, already passed in the New Mexico House, that was scheduled to be heard in the New Mexico Senate Judiciary Committee.  The TV report did give an objective view of the concerns on both sides of the debate.  The Bill was ultimately defeated.
March 17, 2011:  HB 127 Is Defeated in Committee
  In April 2011, Vol. 29, Issue 9 Dynamic Chiropractic reported on the events of that day.  The New Mexico Bill HB 127, which would have granted the NMBCE the authority to add injectables to the New Mexico Chiropractic Formulary without the oversight of the New Mexico Medical Board was soundly defeated. 

In June 2011 Dynamic Chiropractic featured two commentaries offering different perspectives on the great "Chiropractic Prescription Drug" debate.  The "pro drug", or "scope expansion" perspective was articulated by Dr. James Winterstein in his commentary entitled  Best for the Profession or Best for the Public?  The "anti drug" perspective was argued by Dr. Gerry Clum in his commentary entitled  A Prescription for Professional Disaster.

I will let the reader decide whether the "Scope Expansion" issue in New Mexico is directly related to the "Chiropractic Prescription Drug Rights" issue ... or not.
 August 30, 2011:  Public Hearing: General Counsel McKay
NMBCE NMMB General Counsel
NMBCE NMMB General Counsel
The unexpected defeat of HB 127 left the pro "prescription drug rights" chiropractors on the New Mexico Board of Examiners in a quandary. It appears that the NMBCE decided to change, once again, its interpretation of the statutes.  The NMBCE, by proposing to add a series of injectables and IV therapies to the Formulary, seemed to be attempting to expand the scope through the rulemaking process in order to accomplish what was denied by the state legislature when SB 127 was defeated.  In this video taken at the public hearing on August 30, 2011, after the Executive Director of the New Mexico Medical Board, Lynn Hart explains the position of the Medical Board, the Chief Counsel of the New Mexico Regulations and Licensing Department, James Mckay, provided his testimony.  Mr. McKay clearly explained that the NMBCE did not have the legal authority to add injectables to the Chiropractic Formulary without the express approval of the New Mexico Medical Board.  The NMBCE ignored the testimony and proceeded to pass the additions to the Formulary.  The ICA, the Medical Board and the Pharmacy Board all filed suit in the New Mexico Court of Appeals.  The ICA requested a "stay" on the implementation of the new formulary until such time that a final decision was reached by the court.  On February 15, 2012 the stay, requested by the ICA, was granted.  The New Mexico Court of Appeals eventually combined all three legal suits into one proceeding. 
The Legal Arguments Before the New Mexico Court of Appeals
 In the first Issue of the ICA In Action newsletter  , I reported that ... "Acting on behalf of concerned members in New Mexico and out of concern for the integrity and credibility of the chiropractic profession at large, on November 14, 2011, the International Chiropractors Association (ICA) filed a notice of appeal with the New Mexico State Court of Appeals directed at specific questionable actions of the New Mexico Chiropractic Board. On December 21, 2011 the ICA next filed an extensive memorandum in support of a motion to stay.  On February 15, 2012 the Court of Appeals granted the Stay requested by the ICA
 
 In Issue 2 of the ICA In Action newsletter, I explored some of the issues associated with the the movement to obtain prescription drug rights for chiropractors.  I also reported on the unwillingness of the NMBCE to recognize the significance of the decision of the 3 judge Appeals Court panel that unanimously agreed to issue the stay.
 Finally! The New Mexico Legal Briefs
Now that you have been "briefed" on the legislative history associated with the efforts of the "pro-prescription drug rights" chiropractors in New Mexico to obtain the legal authority to inject substances without the approval of the New Mexico Medical Board, you are ready to review the arguments that are currently before the New Mexico Court of Appeals.  The arguments are presented in the form of "briefs" to the Court.  Links have been provided to the actual briefs for those that have an interest in reading them in their entirety.
 
Brief #1:  NMMB & NMBoP:  The basic legal argument presented by the New Mexico Medical Board and the New Mexico Board of Pharmacy are as follows:

 

NMMB/NMBoP Argument #1: 

 

I. THE FORMULARY ADOPTED BY APPELLEE IS CONTRARY TO LAW, SPECIFICALLY SECTION61-4-9.2(B), BECAUSE APPELLEE FAILED TO OBTAIN BOTH APPELLANTS'  PRIOR APPROVAL OF ALL DRUGS INCLUDED IN THAT FORMULARY:

 

          A. Any Chiropractic Formulary That Includes a Dangerous Drug

          or Controlled Substance, a Drug for Administration by Injection,

          or Any Substance Not Listed in Section61-4-9.2(A) Must Be Approved

          by Both Appellants

  

          B. The Formulary Improperly Included "Drugs for Administration by

          Injection "Without Obtaining Prior Approval by Both Appellants Because

          Such Drugs Are Statutorily Defined as "DangerousDrugs"

 

NMMB/NMBoP Argument #2: 

 

II.      A PLAIN READING OF SECTION 61-4-9.2(B) SHOWS THAT EACH OF THE THREE SENTENCES BUILD ON EACH OTHER, AND IMPOSE SEPARATE REQUIREMENTS FOR ADOPTING A FORMULARY

 

Brief #2: ICA

 

The International Chiropractors Association filed similar arguments.  They were as follows:

 

ICA Argument #1:

 

I.  The Chiropractic Board's Adoption of Its 2011 Formulary Is Contrary to Statute  

 

          a. The Plain Language of the Chiropractic Physician Act Shows that Pharmacy

          and Medical Board Approvals Are Required

 

          b. Other Related Statutes Show that Pharmacy and Medical Board Approvals

          Are Required

 

ICA Argument #2:

 

II.  The Chiropractic Board's Adoption of Its 2011 Formulary Is in Violation of Its Own Rules

 

          a. Chiropractic Board Rules Require Pharmacy and Medical Board Approval for

          Expansion of the Formulary

 

          b. Chiropractic Board Rules Require Medical Board Approval for Training Programs

          to Certify Advanced Practice Chiropractic Physicians

  

          c. The Training Prescribed by the Chiropractic Board Fails to Meet Statutory and

          Board Requirements

 

ICA Argument #3:

  

III.  The Chiropractic Board Must Fulfill Its Statutory Mandate and Act to Protect the Health and Well-Being of the Citizens of the State

 

 

 Brief # 3: NMBCE: 

 

The NMBCE filed arguments suggesting that their current interpretation was valid based upon sentence structure and punctuation. 

 

NMBCE Argument #1:

 

 I. The Chiropractic Board's interpretation of Section 61-4-9.2(A) and (B)is correct because it follows the canons of statutory construction.

  

          A. The Chiropractic Board's interpretation of Section 61-4-9.2 (A) and (B) is correct

          because it follows the canon of statutory construction regarding the plain meaning

          of the text.

  

          B.  Appellants' interpretation of the third sentence of Section 61-4-9.2(B) IS wrong

          because it violates the canon of statutory construction that other sentences cannot

          be read to be surplusage.

 

                1. Appellants' argument IS equivalent to a mathematical proof.

                2. Appellants' interpretation turns the second sentence into surplusage.

 

           C. The Chiropractic Board's interpretationof Section61-4-9.2(A) and (B) is correct

           because it follows the canon of statutory construction regarding the re-punctuation

           of a sentence.

 

NMBCE Argument #2:

 

II. The Chiropractic Board's interpretation of Section 61-4-9.2(A) and (B) is correct and therefore it did not violate any laws or rules.

 

NMBCE Argument #3:

 

III. Appellants have withdrawn their argument about16.4.15.12NMAC.

  

Brief #4: ACA Amicus Brief:

 

The ACA filed an Amicus Brief on September 13, 2012 which offered the following arguments in suppport of the NMBCE:

 

ACA Argument #1:

A.  Doctors of Chiropractic Are Highly Trained Health Care Providers Whose Professional Perspective Provided Through the Board of Chiropractic Examiners Should Be Afforded Equal Deference by the Court

 

ACA Argument #2:

 

B.  The American Chiropractic Association is the Nation's Largest and Preeminent Chiropractic Professional Association Representing the Chiropractic Mainstream Whose Long Established Policy is to Recognize Local Doctors in Each State Are Best Equipped to Determine Matters of Scope of Practice.  

 
Observations, Summary and Conclusion
 After reading the briefs it should be clear that the ICA HAS NOT attempted to halt the efforts of the New Mexico Board of Chiropractic Examiners "... to create an advanced practice training and certification program for chiropractic physicians" as claimed in the ACA press release. The objection of the ICA only relates to the addition of injectables to the formulary.  Any substance injected into the body is, by definition, a drug!  In reviewing the ACA Amicus Brief I would like to offer the following, objective, observations.

1.  The arguments presented in the ACA Amicus Brief DO NOT address the legal issues before the court.

2.  ACA Argument 1 is that "Doctors of Chiropractic Are Highly Trained Health Care Providers".  No one is arguing that they are not. 

3. ACA Argument 1 also argues that "Doctors of Chiropractic ... Should Be Afforded Equal Deference by the Court."   All parties should expect to be afforded equal deference.

4.  ACA Argument #2 is that "The American Chiropractic Association is the Nation's Largest and Preeminent Chiropractic Professional Association Representing the Chiropractic Mainstream"  In the Court of Appeals "Size Does Not Matter". The " mine is bigger than yours" argument has no legal relevance.   In the Court of Public Opinion the question of  who is representing the "mainstream" is a matter of opinion not a matter of fact.

5.  ACA Argument #2 also states that "Local Doctors in Each State Are Best Equipped to Determine Matters of Scope of Practice."  This argument seems to imply that the health care providers should be allowed to determine their scope of practice without any oversight.  In New Mexico, the scope of practice has been defined and is codified in state law.  The ICA expects all New Mexico Boards to comply with the law.   

The fundamental issue that stands before the New Mexico Court of Appeals is:

Does the NMBCE have the authority to add injectables, legally defined as a drug, to the Chiropractic Formulary without the approval of the New Mexico Medical Board and the New Mexico Board of Pharmacy? 

In early 2010 the NMBCE thought they did.  Subsequently they admitted that they didn't (June 2011).   The "pro drug" chiropractors sought the authority from the legislature (HB 127) and were denied.  Following the denial, the NMBCE changed their mind again and decided that they did have the authority  to add injectables to the formulary without approval of the other two boards  ... at least until someone challenged that authority and it is decided in court. The ICA decided to challenge the legality of the NMBCE actions.  The ACA has decided to support the position of the NMBCE in the legal arguments before the New Mexico Appeals Court. 

I leave it up to you, the reader, to decide what that means.
The ICA continues to strive to advance chiropractic throughout the world as a distinct health care profession predicated on its unique philosophy, art and science on a daily basis.  I sincerely hope that the "ICA In Action" newsletter will assist you in combating the mis-information campaigns that have begun to proliferate as the ICA continues to increase its efforts to defend chiropractic. 
 
 
Sincerely,

 
Stephen P. Welsh, DC, FICA
International Chiropractors Association