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Court rejects board’s drug dispensing rules

New formulary rules written by New Mexico’s chiropractic board were invalidated on July 31 after the state’s pharmacy and medical boards challenged them in court, saying the rules were improperly enacted without their approval

(International Chiropractors Association v. New Mexico Board of Chiropractic Examiners).

New Mexico law provides:

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 [Pharmacy Board] and the [Medical Board] for approval.

In 2010, the New Mexico Board of Chiropractic Examiners created new rules governing the recently-authorized field of advanced practice chiropractic, a chiropractic certification that empowers specially-certified and trained chiropractors with prescription authority which was established by the New Mexico legislature in 2008.

The new rules did not provide authority to chiropractors to administer many controlled substances but, instead, allowed the dispersal of herbal and homeopathic medicines and other alternative medicines, and included injections as a method of delivery.

The board’s decision was not received favorably by either the state’s medical or pharmacy boards, who, along with the International Chiropractors Association, a chiropractic advocacy group opposed to the use of drugs in the practice, brought a suit against the board to overturn the new rules.

The entities challenging the new rules argued that New Mexico law required the approval of both the state’s board of pharmacy and board of medicine before the new chiropractic formulary could be enacted. In answer to the challenge, the chiropractic board provided an argument of statutory interpretation, claiming that, although the act required the approval of the other boards in order for chiropractors to administer “dangerous” drugs and drugs through injection, those constraints did not apply to the list of specifically-enumerated drugs provided to chiropractors under the act.

In an opinion by Judge James Wechsler, the court did not agree. While the state’s chiropractic act does allow for the possibility of chiropractors administering drugs by injection, he wrote that such authority could be granted only with the approval of the other boards. Judge Wechsler acknowledged that, while the statute was, at times, redundant, its intent, especially in the context of similar acts passed by the state’s legislature, was clear.

The chiropractic board objected to this interpretation of the statute and asked the court to re-punctuate the sentence of the law requiring approval in a way which would allow the board to authorize injection without the approval of the other boards in order to bring the letter of the law into harmony with what the board believed was the legislature’s intent to exclude all “natural” substances from those requiring approval. Judge Wechsler rejected the idea, saying that it would be an improper revision of the law.

Having found the new rules in violation of the chiropractic statute, the court set them aside.