July 31, 2013 – International Chiropractors Association v. New Mexico Board of Chiropractic Examiners and New Mexico Board of Pharmacy and New Mexico Medical Board v. New Mexico Board of Chiropractic Examiners, No. 31,690 (Consolidated with No. 31,668)

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: July 31, 2013

NO. 31,690 (consolidated with No. 31,668)

INTERNATIONAL CHIROPRACTORS
ASSOCIATION,

Plaintiff-A ppellant,
V.

NEW MEXICO BOARD OF
CHTROPRACTIC EXAMINERS,

Defendant- Appellee,
and

NEW MEXICO BOARD OF PHARMACY
and NEW MEXICO MEDICAL BOARD,

Plaintiffs-A ppellants,
V.

NEW MEXICO BOARD OF
CHTROPRACTIC EXAMINERS,

Defendant- Appellee.

Direct Appeal from Rulemaking by the New Mexico Board of Chiropractic
Examiners
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

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

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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.

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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.

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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)

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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

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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; 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 legislative intent. See City of Roswell
v. Hall, 1941-NMSC-011, ¶ 4, 45 N.M. 116, 112 P.2d 505.

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{10} 	We address each of the Chiropractic Board’s arguments. However, we believe
that the Legislature’s intent is best resolved by looking to the language of Section 61-
4-9.2 in the context of “its history and background” and the manner in which it “fits
within the broader statutory scheme.” Chatterjee v. King, 2012-NMSC-019, ¶ 12, 280
P.3d 283. In this regard, we examine Section 61-4-9.2 in conjunction with statutes
that address the same subject matter in order to ensure “a harmonious, common-sense
reading.” Chatterjee, 2012-NMSC-019, ¶ 12.
History and Background of Section 61-4-9.2
{11} 	In 2008, the Legislature amended the Chiropractic Physician Practice Act.
Among the amendments, the Legislature for the first time authorized the Chiropractic
Board to establish by rule an advanced chiropractic practice physician certification
registry. Section 61-4-9.1. The Legislature distinguished an advanced chiropractic
practice physician from other chiropractors. It permitted an advanced chiropractic
practice physician to “have prescriptive authority for therapeutic and diagnostic
purposes as authorized by statute” and included within this authority the ability to
administer “a drug by injection.” 	Id.; Section 61-4-2(C). 	With this distinctive
authority, the Legislature required that an advanced chiropractic practice physician be
licensed 	and 	certified 	by 	a 	nationally-recognized 	credentialing 	agency, 	have
completed three years of post-graduate clinical practice or equivalent clinical

8
experience and annual continuing education, and have “completed a minimum of
ninety clinical and didactic contact course hours in pharmacology, pharmacognosy,
medication administration and toxicology certified by an examination from an
institution of higher education approved by the [Chiropractic Board] and the [Medical
Board].” Section 61-4-9.1(D).
{12} 	With the creation of the advanced chiropractic practice physician status in 2008,
the Legislature also required the Chiropractic Board to develop a formulary to address
advanced practice chiropractic physicians’ prescribing, administering, and dispensing
and further required that the formulary be approved by the Pharmacy and Medical
Boards. Section 61-4-9.2 (2008). The Legislature additionally required coordination
between regulatory boards by mandating joint approval of the Chiropractic and
Medical Boards of higher education requirements. Section 61-4-9.1(D).
{13} 	The Legislature’s authority to enact the Chiropractic Physician Practice Act
stems from its exercise of the state’s power to regulate for the protection of the health,
safety, and welfare of its citizens. See State ex rel. Dep’t of Pub. Safety, State Police
Div. v. One 1986 Peterbilt Tractor, Black in Color, with an Altered VIN, 1997-
NMCA-050, ¶ 15, 123 N.M. 387, 940 P.2d 1182 (“The [L]egislature is the proper
branch of government to determine what should be proscribed under the police power,
and a determination of what is reasonably necessary for the preservation of the health,

9
safety and welfare of the general public is a legislative function.” (alteration, internal
quotation marks, and citation omitted)). Although the Legislature did not include a
specific purpose provision in the Chiropractic Physician Practice Act, it did mandate
that the Chiropractic Board establish educational requirements “for the purpose of
protecting the health and well-being of the citizens of this state.” Section 61-4-3(G).
The statutes forming the Pharmacy and Medical Boards specifically state the purpose
of the statutes as within the state’s police power. See NMSA 1978, § 61-11-1.1(B)
(1997) (“The purpose of the Pharmacy Act is to promote, preserve and protect the
public health, safety and welfare[.]”); NMSA 1978, § 61-6-1(B) (2003) (stating the
purpose of the Medical Practice Act to be “[i]n the interest of the public health, safety
and welfare”).
Plain Meaning of Section 61-4-9.2
{14} 	The Chiropractic Board makes two arguments concerning the plain meaning of
Section 61-4-9.2. 	In its answer brief, it raises an argument that draws upon the
original language of Section 61-4-9.2 as enacted by the Legislature in 2008. 	That
language read:
A 	certified 	advanced 	practice 	chiropractic 	physician 	may
prescribe, administer and dispense herbal medicines, homeopathic
medicines, vitamins, minerals, enzymes, glandular products, naturally
derived substances, protomorphogens, live cell products, gerovital,
amino 	acids, 	dietary 	supplements, 	foods 	for 	special 	dietary 	use,
bioidentical hormones, sterile water, sterile saline, sarapin or its generic,

10
caffeine, procaine, oxygen, epinephrine and vapocoolants. A formulary
shall be developed by the board and approved by the [Medical Board]
and the [Pharmacy Board].
Section 61-4-9.2 (2008).
{15} 	The Chiropractic Board’s plain meaning interpretation of Section 61-4-9.2
raised in its brief focuses on the first two sentences of Subsection B. According to the
Chiropractic Board, the first sentence plainly authorizes it to adopt a formulary
allowing an advanced practice chiropractic physician to prescribe and administer a
substance listed in Subsection A. With its amendment to Section 61-4-9.2 in 2009,
the Legislature removed from Subsection A the language requiring Pharmacy and
Medical Board approval. Thus, to the Chiropractic Board, under the plain meaning
of the first sentence of Subsection B, the Pharmacy and Medical Boards do not need
to approve the formulary. 	See N.M. Cattle Growers’ Ass’n v. N.M. Water Quality
Control Comm’n, 2013-NMCA-046, ¶ 8, 299 P.3d 436 (“The law of statutory
construction presumes that when the Legislature amends a statute, it intends to change
the existing law.”), cert. granted, 2013-NMCERT-003, 300 P.3d 1181.
{16} 	The Chiropractic Board similarly analyzes the plain meaning of the second
sentence of Subsection B. 	It reads this sentence to permit it to adopt a formulary
allowing an advanced practice chiropractic physician to administer by injection a
substance listed in Subsection A if it ensures that such formulary is consistent with the

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scope of practice of an advanced practice chiropractic physician. Again, because the
second sentence of Subsection B does not contain language requiring that the
Pharmacy and Medical Boards approve such formulary, the Chiropractic Board does
not consider such approval to be within the plain meaning of Subsection B.
{17} 	By its own account, the Chiropractic Board’s plain meaning interpretation of
Section 61-4-9.2 raised in its brief does not address the third sentence of Subsection B.
And it is the meaning of the third sentence that is the crux of the issue before us.
Indeed, the language of this sentence indicates a legislative intent to require Pharmacy
and Medical Board approval for the use of certain drugs and substances by an
advanced practice chiropractic physician. The question is which drugs or substances
are subject to the required approvals.
{18} 	The Chiropractic Board raised an alternative argument at oral argument to this
Court. It argued that the plain meaning of the third sentence of Section 61-4-9.2(B)
is reflected in the Legislature’s reference to “substances in Subsection A” in the first
and second sentences. According to the Chiropractic Board, the Legislature’s use of
the language “substances listed in Subsection A” in connection with its requirement
that the Chiropractic Board develop formularies in the first two sentences indicates
that when the Legislature required Pharmacy and Medical Board approval in the third

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sentence of Subsection B for “substances not listed in Subsection A,” it plainly meant
to exclude substances listed in Subsection A from the required approval.
{19} 	In addressing these arguments, we note the interchangeable use of “drug” and
“substance” in the Chiropractic Physician Practice Act. Section 61-4-9.2(B) refers to
the “substances” listed in Subsection A. But Subsection A includes “over-the-counter
drugs.” 	The third sentence of Subsection B uses the terms “[d]angerous drugs,”
“controlled substances,” “drugs for administration by injection,” and “substances not
listed in Subsection A.” 	Section 61-4-9.2(B). 	The definitions section of the
Chiropractic Physician Practice Act defines “chiropractic” in part by including “the
administering of a drug by injection by a certified advanced practice chiropractic
physician[.]” Section 61-4-2(C). It does not, however, define “drug” or “substance”
for the purposes of the Chiropractic Physician Practice Act. At oral argument, the
Chiropractic Board and the Pharmacy Board both indicated that the Chiropractic
Physician Practice Act uses the terms “drug” and “substance” interchangeably. By
virtue of this interchangeable use, we do not make any distinction between “drug” and
“substance” in the language of the Chiropractic Physician Practice Act. Cf. Hanson
v. Turney, 2004-NMCA-069, ¶ 12, 136 N.M. 1, 94 P.3d 1 (stating that, when the
Legislature was aware of a distinction used in other statutes and did not adopt it, it
intended otherwise).

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{20} 	When we then turn to the language of the third sentence of Section 61-4-9.2(B),
and focus only on “drugs for administration by injection,” we observe no lack of
clarity in the requirement that a formulary that includes “drugs for administration by
injection” or “substances not found in Subsection A” be approved by the Pharmacy
and Medical Boards. The Chiropractic Board, however, contends in its brief that, in
context, the second and third sentences are confusing and do not permit such an
isolating focus. 	In particular, it argues that a reading of Section 61-4-9.2(B) that
addresses the first two sentences as establishing the Chiropractic Board’s authority to
develop and approve formularies and the third sentence as limiting that authority does
not make sense and renders statutory language duplicative or surplusage.
{21} 	In order to address these arguments, we must consider the other types of drugs
the Legislature listed in the third sentence. 	Because the Chiropractic Physician
Practice Act does not define these terms, we look elsewhere for guidance. See Janet,
2013-NMCA-037, ¶ 11 (“The statute itself does not define [the term], so we look to
case law and other statutes for guidance.”). 	“Dangerous drugs” and “controlled
substances” are defined in the context of laws that similarly address regulated drugs.
“Controlled substances” are defined in the schedules of the Controlled Substances
Act, NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 2011), and are
subject to regulation by the Pharmacy Board. Controlled substances are also defined

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in the New Mexico Drug, Device and Cosmetic Act by reference to the Controlled
Substances Act. NMSA 1978, § 26-1-2(D) (2011). As defined in the New Mexico
Drug, Device and Cosmetic Act, a “drug” is an article “recognized in an official
compendium” that is “intended for use in the diagnosis, cure, mitigation, treatment or
prevention of disease.” Section 26-1-2(E)(1), (2). Also as defined in the New Mexico
Drug, Device and Cosmetic Act, a “dangerous drug” is
a drug, other than a controlled substance enumerated in Schedule I of the
Controlled Substances Act, that because of a potentiality for harmful
effect or the method of its use or the collateral measures necessary to its
use is not safe except under the supervision of a practitioner licensed by
law to direct the use of such drug.
Section 26-1-2(F).
{22} 	These definitions were in place when the Legislature amended Section 61-4-9.2
in 2009. Although the Legislature did not specifically refer to the New Mexico Drug,
Device and Cosmetic Act or the Controlled Substances Act for definitions, as it could
have, it had already linked the New Mexico Drug, Device and Cosmetic Act to the
Chiropractic 	Physician 	Practice 	Act 	by 	mandating 	coordination 	between 	the
Chiropractic Board and the Pharmacy Board, which oversees the operation of the New
Mexico Drug, Device and Cosmetic Act. See NMSA 1978, § 61-11-6(1), (9) (2005).
Moreover, we believe that the Legislature intended the use of the New Mexico Drug,
Device and Cosmetic Act and Controlled Substances Act definitions to apply because

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it used the terms “dangerous drugs” and “controlled substances” that are clearly
defined in those acts. 	“Controlled substance” does not have meaning without
reference to the Controlled Substances Act that defines it. 	See Gutierrez v. J & B
Mobile Homes, 1999-NMCA-007, ¶ 8, 126 N.M. 494, 971 P.2d 1284 (applying “a
common sense interpretation to the plain language of the statute”). In addition, when
interpreting a statute, we seek to harmonize statutes involving the same or similar
subject matter. See Sinclaire v. Elderhostel, Inc., 2012-NMCA-100, ¶ 14, 287 P.3d
978 (stating that “[w]hen two statutes cover the same subject matter, we attempt to
harmonize and construe them together in a way that facilitates their operation and the
achievement of their goals” (alteration in original) (internal quotation marks and
citation omitted)). 	Under the definition of “dangerous drugs” in the New Mexico
Drug, Device and Cosmetic Act, we agree with the Pharmacy and Medical Boards that
a drug that is administered by injection falls within the definition because it is not safe
unless 	it 	is 	administered 	under 	the 	supervision 	of 	an 	appropriately 	licensed
practitioner.
{23} 	Returning to the Chiropractic Board’s arguments, it first contends that if the
Legislature had intended the third sentence to be a limitation of the second sentence,
“it would have been clearer if the [L]egislature had expressly added the phrase ‘shall
be submitted to the [Pharmacy Board] and Board of Medicine’ to the end of the

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second sentence.” The Legislature had used this approach in 2008 and removed this
language in 2009. While this approach may have more directly stated the legislative
intent, we do not second guess the approach the Legislature utilized. See Marckstadt
v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 31, 147 N.M. 678, 228 P.3d 462
(stating that this Court “will not second-guess” the method chosen by the Legislature).
Although the adopted approach may be more indirect because of the need to reference
the New Mexico Drug, Device and Cosmetic Act, we do not consider it to be
ambiguous. 	See Bd. of Educ. for Carlsbad Mun. Sch., 1999-NMCA-156, ¶ 18 (“A
statute is ambiguous if reasonably informed persons can understand the statute as
having two or more meanings.”). We also do not consider this approach to render the
second sentence of Section 61-4-9.2(B) surplusage. As we have expressed, the second
sentence granted the authority to the Chiropractic Board to adopt a formulary for
drugs administered by injection, and the third sentence required the Chiropractic
Board to submit such a formulary to the Pharmacy and Medical Boards for approval.
{24} 	The Chiropractic Board’s second argument asserts that, under a construction in
which the third sentence of Section 61-4-9.2(B) limits the second sentence, the
legislative use of the phrase “drugs for administration by injection” in the third
sentence of Section 61-4-9.2(B) duplicates the use of the term “[d]angerous drugs”

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earlier in the same sentence. We agree that there is overlap in the language because,
as we have discussed, the term “dangerous drugs” includes drugs for administration
by injection. Nevertheless, we do not consider this overlap to confuse the legislative
intent. 	See Bd. of Educ. for Carlsbad Mun. Sch., 1999-NMCA-156, ¶ 16 (“The
primary purpose of statutory interpretation is to ascertain and give effect to legislative
intent.” (internal quotation marks and citation omitted)). 	Drugs administered by
injection are a subset of “dangerous drugs.” 	While the Legislature could have
excluded drugs administered by injection, or used other language such as “dangerous
drugs, including drugs for administration by injection,” we do not believe that
separately listing such drugs alters the legislative intent. We could not construe the
separate listing as surplusage unless we attached a different meaning either to “drugs
for administration by injection” or to “dangerous drugs.” 	However, we do not
perceive a meaning that is different from those we have discussed for either term, and
the Chiropractic Board has not asserted that there is a different meaning for the terms.
{25} 	The Chiropractic Board’s oral argument position does not affect our analysis
because we read the third sentence of Subsection B as an overarching requirement
with respect to the formularies required by the first two sentences. “[S]ubstances not
listed in Subsection A” is but a single category requiring approval. The language used
distinguishes the category from the substances listed in Subsection A. 	But,

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particularly in view of the interchangeability of the terms “drugs” and substances” in
the Chiropractic Physician Practice Act, we do not consider the use of the language
to have greater meaning. To the extent that “substances in Subsection A” are also
“dangerous drugs” or “drugs administered by injection,” they fit within the specific
categories identified in the third sentence of Subsection B.
{26} 	When we thus read Section 61-4-9.2 both in connection with the history and
other provisions of the Chiropractic Physician Practice Act and the definitions of the
New Mexico Drug, Device and Cosmetic Act, which is a similar exercise of the
Legislature’s police power to protect the health and safety of its citizens, the meaning
of the third sentence of Section 61-4-9.2(B) is clear. In creating the advanced practice
chiropractic physician, the Legislature’s primary purpose was to protect the public
health and safety. 	Seemingly because of the existing authority and purpose of the
Pharmacy and Medical Boards to protect the public health and safety concerning the
prescribing and administering of drugs, the Legislature mandated a coordinated effort
among the Chiropractic, Pharmacy, and Medical Boards to fulfill its purpose. It linked
the Chiropractic Board to the Medical Board in developing a special educational
requirement for advanced practice chiropractic physicians. 	It further required, in
Section 61-4-9.2(B), that the Pharmacy and Medical Boards approve the use of
dangerous drugs and drugs for administration by injection, among others. 	The

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Legislature has adopted similar coordinated efforts for other health professionals.
See NMSA 1978, Section 61-9-17.2(B) (2002) (requiring the State Board of
Psychologist Examiners and the Board of Medical Examiners to jointly develop
guidelines concerning a psychologist’s prescribing of psychotropic medication);
NMSA 1978, Section 61-3-23.3(E) (2001) (requiring the Board of Nursing to develop
a formulary for prescriptive authority of certified registered nurse anesthetists in
collaboration with the Board of Medical Examiners).
{27} 	In 2008, the legislative language left no room to question the need for the
Pharmacy and Medical Boards to approve the Chiropractic Board’s formularies.
Although the 2009 amendment modified the language of Section 61-4-9.2, we do not
believe that it modified the Legislature’s mandate that the Pharmacy and Medical
Boards approve the Chiropractic Board’s formularies that it considered necessary for
the protection of the public health and safety. 	In 2009, the Legislature relaxed its
requirement that the Chiropractic Board submit all formularies to the Pharmacy and
Medical Boards for approval. 	However, using terms with which it was familiar
because of their use in the New Mexico Drug, Device and Cosmetic Act and the
Controlled Substances Act, the Legislature required approval for, among other drugs
and substances, dangerous drugs. 	By using this term, the Legislature intended to
follow the established definition in the New Mexico Drug, Device and Cosmetic Act.

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Otherwise, the Legislature would have created an ambiguity, or worse, a new,
conflicting definition, a result that we do not believe that it intended. See Bd. of Educ.
for Carlsbad Mun. Sch., 1999-NMCA-156, ¶ 18 (“A statute is ambiguous if
reasonably informed persons can understand the statute as having two or more
meanings.”).
{28} 	In summary, we read Section 61-4-9.2(B) to authorize the Chiropractic Board
to develop and approve formularies to permit an advanced practice chiropractic
physician to prescribe and administer the substances listed in Subsection A. 	The
formularies may include both topical and oral administration and administration by
injection. 	However, the Chiropractic Board must submit its formularies to the
Pharmacy and Medical Boards for approval to the extent that the formularies include
dangerous drugs, as defined in the New Mexico Drug, Device and Cosmetic Act. As
defined in the New Mexico Drug, Device and Cosmetic Act, dangerous drugs include
drugs for administration by injection.
Re-Punctuation
{29} 	The Chiropractic Board differs with this interpretation and would have us re-
punctuate the third sentence of Section 61-4-9.2(B) to adopt what it argues is the
legislative purpose. According to the Chiropractic Board, Dr. Stephen Perlstein and
Dr. Robert Jones, proponents of the 2009 amendment, testified at the rulemaking

21
hearing that the intent of the 2009 amendment was to distinguish natural substances
from all others and that there was no debate as to whether the Chiropractic Board had
oversight over the natural substances. These natural substances are the ones listed in
Subsection A. The proponents intended the amendment to enable the Chiropractic
Board to oversee the dispensing of the Subsection A substances without approval of
the Pharmacy Board and the Medical Board. They believed that they had worked out
the third sentence to read: “Dangerous drugs or controlled substances and drugs for
administration by injection not listed in [Subsection] A shall be submitted to the
[Pharmacy Board] and the [Medical Board] for approval.” The Chiropractic Board
contends in this appeal that this interpretation is consistent with the second sentence
that allows it to develop a formulary for the substances of Subsection A to be
administered by injection without approval by the Pharmacy and Medical Boards.
Dr. Perlstein testified at the rulemaking hearing that a drafter at the Legislative
Council Service modified this language by placing a comma after “dangerous drugs
or controlled substances” that set off “dangerous drugs or controlled substances” and
changed the meaning of the intended language.
{30} 	The Chiropractic Board suggests two ways in which this Court could alter the
third sentence of Section 61-4-9.2(B) to achieve the substance that it contends was
intended. First, it suggests that the emphasis of the third sentence should be on the

22
language “not listed in Subsection A” such that “not listed in Subsection A” modifies
all three items covered in the sentence, “[d]angerous drugs or controlled substances,”
“drugs for administration by injection,” and “substances.” To capture this emphasis,
the Chiropractic Board suggests that we modify the third sentence to delete the comma
after “controlled substances” and insert “and” in its place. The suggested sentence
would read:
Dangerous drugs or controlled substances and 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.
Alternatively, the Chiropractic Board suggests that we re-punctuate the third sentence
to add a comma before and after “not listed in Subsection A of this section” so that
“not listed in Subsection A of this section” will modify all other items listed in the
sentence. The sentence would thus read:
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.
{31} 	We find the Chiropractic Board’s suggestions to be problematic for four
reasons. First, it is not the realm of this Court to re-write a statute to comport with our
opinion as to the manner it should be interpreted. 	See Martinez v. Sedillo, 2005-
NMCA-029, ¶ 7, 137 N.M. 103, 107 P.3d 543 (“We will not rewrite a statute.”). The

23
Chiropractic Board relies on a single case, Roswell, 1942-NMSC-011, ¶ 4, 45 N.M.
116, 112 P.2d 505, to support its position. In that case, our Supreme Court observed
from the face of a city ordinance that a word was incorrectly used. 	Id. ¶ 2. 	It
considered the error to be clerical and substituted a word and a comma that was also
used in a parallel clause in the ordinance. Id. As the Court pointed out, “[w]hen the
ordinance is read as a whole, there can be no question as to its intended meaning.” Id.
¶ 3. 	In this case, there is no apparent clerical error in the Section 61-4-9.2(B) as
written that frustrates the intended meaning.
{32} 	Second, the Chiropractic Board rests its argument on the testimony of Drs.
Perlstein and Jones concerning the Legislature’s intent in amending Section 61-4-9.2.
New Mexico courts look primarily to the legislation itself to ascertain legislative
intent. 	Regents of the Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020,
¶ 30, 125 N.M. 401, 962 P.2d 1236. As a general rule, the Legislature “speaks solely
through its concerted action as shown by its vote.” U.S. Brewers Ass’n, Inc. v. Dir.
of the N.M. Dep’t of Alcohol Beverage Control, 1983-NMSC-059, ¶ 9, 100 N.M. 216,
668 P.2d 1093 (emphasis, internal quotation marks, and citation omitted). Although
contemporaneous documents presented to the Legislature or statements of legislators
made while legislation is pending may be considered to bear upon legislative intent,
our courts do not generally consider statements of legislators or others after legislation

24
has passed. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 35, 117 N.M. 346,
871 P.2d 1352; Claridge v. N.M. State Racing Comm’n, 1988-NMSC-056, ¶¶ 24, 28,
107 N.M. 632, 763 P.2d 66. 	Moreover, Drs. Perlstein and Jones testified at the
rulemaking hearing about their intent as proponents of the 2009 amendment, not about
the Legislature’s intent.
{33} 	Third, 	notwithstanding 	the 	testimony 	of 	Drs. 	Perlstein 	and 	Jones, 	the
Chiropractic Board asks that we re-write Section 61-4-9.2(B) to adopt a meaning that
was not clearly the intent of the Legislature. As we have earlier discussed, the history
and background of the Chiropractic Physician Practice Act support the requirement
that 	the 	Pharmacy 	and 	Medical 	Boards 	approve 	formularies 	that 	contain
dangerous drugs.
{34} 	Last, the Chiropractic Board’s suggested alterations to the third sentence do not
persuade us that the Legislature intended Pharmacy and Medical Board approval to
apply only to substances not listed in Subsection A. In its first suggestion, the words
“not listed in Subsection A of this section” are not separated from the immediately
previous word “substances” so as to indicate that they refer to any items other than
“substances.” See Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 9, 110 N.M. 314, 795
P.2d 1006 (stating the doctrine of the last antecedent as “[r]elative and qualifying
words, phrases, and clauses are to be applied to the words or phrase immediately

25
preceding, and are not to be construed as extending to or including others more
remote” (internal quotation marks and citation omitted)). 	In the alternative
suggestion, the word “substances” placed before a comma and the words “not listed
in Subsection A of this section” do not make sense without a further descriptor or
modifier. Each of the other references to drugs or substances in the sentence is more
specifically described.
THE 	ICA’S 	ARGUMENTS 	CONCERNING 	THE 	CHIROPRACTIC
BOARD’S REGULATIONS
{35} 	The ICA raises additional arguments on appeal concerning the Chiropractic
Board’s regulations. It contends that the Chiropractic Board’s adoption of the 2011
formulary violated its own regulations, that the regulations require Medical Board
approval for training programs for advanced practice chiropractic physicians, and that
the Chiropractic Board’s prescribed training does not meet statutory and regulatory
requirements. We consider the ICA’s arguments in turn.
{36} 	As to the adoption of the 2011 formulary, the ICA points to 16.4.15.7(E)
NMAC, 16.4.15.8(A) NMAC (7/23/2010), and 16.4.15.8(H) NMAC. 	Regulation
16.4.15.7(E) of the Administrative Code defines “[c]hiropractic formulary” as “those
substances that have been approved for use by the chiropractor registered in advanced
practice by the [Chiropractic Board] and as by statute with consensus between the
[Medical 	Board] 	and 	[Pharmacy 	Board].” 	Regulation 	16.4.15.8(A) 	of 	the

26
Administrative Code provides in part that actively registered chiropractic physicians
“are allowed prescription authority that is limited to the current formulary as agreed
on by the [Chiropractic Board] and as by statute, by the [Pharmacy Board] and the
[Medical Board].” 	Regulation 16.4.15.8(H) of the Administrative Code addresses
amendments to advanced practice formularies. It permits the Chiropractic Board to
review the formularies annually for necessary amendments and further provides that
all amendments “be made following consensus of the [Medical Board], [the Pharmacy
Board] and the [Chiropractic Board].” 16.4.15.8(H) NMAC. The ICA argues that
these regulations read together “all provide that any expansion of the chiropractic
formulary must be made by consensus of all three boards.”
{37} 	On their face, 16.4.15.7(E) NMAC and 16.4.15.8(A) NMAC do not go as far
as the ICA argues. Both require the involvement of the Pharmacy and Medical Boards
“as by statute.” By this express language, the regulations do not require any more
than what is required by statute.
{38} 	Regulation 16.4.15.8(H) of the Administrative Code requires the consensus of
the Chiropractic Board and the Pharmacy and Medical Boards for an amendment to
advanced practice formularies. The adoption of the 2011 formulary amended the
previous formulary. 16.4.15.11 NMAC. Although it appears that the Chiropractic
Board may be acting in a manner that is inconsistent with this regulation, we need not

27
address this argument in view of our holding that the Chiropractic Board is statutorily
required to obtain the Pharmacy and Medical Board’s approval of the formulary to the
extent it includes dangerous drugs.
{39} 	The ICA’s remaining arguments concern the Chiropractic Board’s adoption of
16.4.15.12 NMAC, the training rule pertaining to the educational requirements of
advanced practice chiropractic physicians. The Medical Board objected to 16.4.15.12
NMAC, stating that because the hours of training do not appear to be sufficient, it
would “continue to disapprove all injectables until adequate training is proposed and
agreed to by the” Medical Board. Section 61-4-9.1(D) requires an advanced practice
chiropractic physician to have “completed a minimum of ninety clinical and didactic
contact course hours” in specified subjects “from an institution of higher education
approved by the [Chiropractic Board] and the [Medical Board].” 	Regulation
16.4.15.7(D) of the Administrative Code similarly requires that “[a]ny educational
institution allowed to provide clinical and didactic programs credited toward advanced
practice certification must have concurrent approval from the [Medical Board] and the
[Chiropractic Board].” 	Regulation 16.4.15.8(B)(2) of the Administrative Code
provides that a chiropractic physician applying for advanced chiropractic physician
registry must submit documentation of the completion of the specified ninety hours

28
of education “provided by an institution approved by the [Medical Board] and the
[Chiropractic Board].” We find no fault with the training rule.
{40} 	These provisions require the Medical Board to approve the institutions of higher
education that provide the minimum of ninety specified educational hours to an
advanced practice chiropractic physician. 	They do not give the Medical Board
authority to decline any other type of approval. The ICA’s position that the Medical
Board could object to the formulary because it did not believe that the educational rule
provided sufficient training is not supported by the statute and regulations it cites. As
a result, the approval of higher education requirements by the Medical Board will not
translate into a justification to reject separate “drug or substance” formularies
proposed by the Chiropractic Board. 	The issues are distinct and we reject this
argument by the ICA.
CONCLUSION
{41} 	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.
{42} 	IT IS SO ORDERED.

WE CONCUR:

TIMOTHY L. GARCIA, Judge

J. MILES HANISEE, Judge

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JAMES J. WECHSLER, Judge