2023 New Mexico Statutes › Chapter 61 - Professional and Occupational Licenses › Article 11 - Pharmacy › Section 61-11-6 - Powers and duties of board.

A. The board shall:
(1) promulgate rules in accordance with the provisions of the State Rules Act [Chapter 14, Article 4 NMSA 1978] to carry out the provisions of the Pharmacy Act in accordance with the provisions of the Uniform Licensing Act [Chapter 61, Article 1 NMSA 1978];
(2) provide for examinations of applicants for licensure as pharmacists;
(3) provide for the issuance and renewal of licenses for pharmacists;
(4) require and establish criteria for continuing education as a condition of renewal of licensure for pharmacists;
(5) provide for the issuance and renewal of licenses for pharmacist interns and for their training, supervision and discipline;
(6) provide for the licensing of retail pharmacies, nonresident pharmacies, wholesale drug distributors, drug manufacturers, hospital pharmacies, nursing home drug facilities, industrial and public health clinics and all places where dangerous drugs are stored, distributed, dispensed or administered and provide for the inspection of the facilities and activities;
(7) enforce the provisions of all laws of the state pertaining to the practice of pharmacy and the manufacture, production, sale or distribution of drugs or cosmetics and their standards of strength and purity;
(8) conduct hearings upon charges relating to the discipline of a registrant or licensee or the denial, suspension or revocation of a registration or a license in accordance with the Uniform Licensing Act;
(9) cause the prosecution of any person violating the Pharmacy Act, the New Mexico Drug, Device and Cosmetic Act [Chapter 26, Article 1 NMSA 1978] or the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978];
(10) keep a record of all proceedings of the board;
(11) make an annual report to the governor;
(12) appoint and employ, in the board's discretion, a qualified person who is not a member of the board to serve as executive director and define the executive director's duties and responsibilities; except that the power to deny, revoke or suspend any license or registration authorized by the Pharmacy Act shall not be delegated by the board;
(13) appoint and employ inspectors necessary to enforce the provisions of all acts under the administration of the board, which inspectors shall be pharmacists and have all the powers and duties of peace officers;
(14) provide for other qualified employees necessary to carry out the provisions of the Pharmacy Act;
(15) have the authority to employ a competent attorney to give advice and counsel in regard to any matter connected with the duties of the board, to represent the board in any legal proceedings and to aid in the enforcement of the laws in relation to the pharmacy profession and to fix the compensation to be paid to the attorney; provided, however, that the attorney shall be compensated from the money of the board, including that provided for in Section 61-11-19 NMSA 1978;
(16) register and regulate qualifications, training and permissible activities of pharmacy technicians;
(17) provide a registry of all persons licensed as pharmacists or pharmacist interns in the state;
(18) promulgate rules that prescribe the activities and duties of pharmacy owners and pharmacists in the provision of pharmaceutical care, emergency prescription dispensing, drug regimen review and patient counseling in each practice setting;
(19) promulgate, after approval by the New Mexico medical board and the board of nursing, rules and protocols for the prescribing of dangerous drug therapy, including vaccines and immunizations, and the appropriate notification of the primary or appropriate physician of the person receiving the dangerous drug therapy; and
(20) have the authority to authorize emergency prescription dispensing.
B. The board may:
(1) delegate its authority to the executive director to issue temporary licenses as provided in Section 61-11-14 NMSA 1978;
(2) provide by rule for the electronic transmission of prescriptions; and
(3) delegate its authority to the executive director to authorize emergency prescription dispensing procedures during civil or public health emergencies.
History:
1953 Comp., § 67-9-37, enacted by Laws 1969, ch. 29, § 5; 1972, ch. 84, § 55; 1977, ch. 62, § 1; 1979, ch. 293, § 1; 1983, ch. 165, § 1; 1992, ch. 19, § 2; 1997, ch. 131, § 6; 2001, ch. 50, § 4; 2005, ch. 152, § 5; 2022, ch. 39, § 45.
ANNOTATIONS
The 2022 amendment,
effective May 18, 2022, clarified that the board of pharmacy is required to follow the provisions of the State Rules Act when promulgating rules; in Subsection A, Paragraph A(1), deleted "adopt, amend or repeal rules and regulations necessary" and added "promulgate rules in accordance with the provisions of the State Rules Act", in Paragraph A(18), deleted "adopt" and added "promulgate", and after "rules", deleted "and regulations", and in Paragraph A(19), deleted "adopt" and added "promulgate"; and in Subsection B, Paragraph B(2), after "provide by", deleted "regulation" and added "rule".
The 2005 amendment,
effective June 17, 2005, provided in Subsection A(18) that the board shall adopt rules and regulations concerning the provision of emergency prescription dispensing; added Subsection A(20) to permit the board to authorize emergency prescription dispensing; and added Subsection B(3) to permit the board to delegate its authority to the executive director to authorize emergency prescription dispensing procedures during emergencies.
The 2001 amendment,
effective June 15, 2001, in Subsection A, deleted "annual" preceding "renewal" in Paragraphs (4) and (5), and added Paragraph (19).
The 1997 amendment,
effective June 20, 1997, rewrote Subsection A; redesignated former Subsections B through H as Paragraphs A(2) through A(8), respectively; deleted former Subsection I relating to minor violations of the Pharmacy Act; redesignated former Subsections J through P as Paragraphs A(9) through A(15), respectively; deleted former Subsection Q relating to rules and regulations regarding supportive personnel; redesignated former Subsection R as Paragraph A(18); and added Subsection B.
The 1992 amendment,
effective May 20, 1992, substituted "nonresident pharmacies, wholesale drug distributors" for "wholesale drug dealers" near the beginning of Subsection F and inserted "or administered" near the end of that subsection; inserted "Device" in Subsection J; added Subsections Q and R; and made minor stylistic changes throughout the section.
Defendants did not meet the definition of "custodial care facilities," and therefore did not require a pharmacy license.
— Where the board of pharmacy notified defendants, two community care homes that provide full-time care, supervision and support to children, that they needed a pharmacy license to maintain their children, youth and families department (CYFD) licenses, claiming that defendants were considered "custodial care facilities" under the Pharmacy Act, §§ 61-11-1 through 61-11-29 NMSA 1978, and where defendants responded that they were not required to hold a pharmacy license because they were not "custodial care facilities," and where defendants filed a complaint in district court seeking declaratory and injunctive relief to prevent their licenses from being revoked, the district court did not abuse its discretion in granting declaratory and injunctive relief in defendants' favor, because defendants did not meet the definition of "custodial care facilities." Defendants' purpose is to provide safe care for certain children, not medical or health care, and the children which defendants care for are not placed there for health care purposes; defendants do not retain nurses or doctors on staff, and do not provide the children with extended health care or prescribe them medications. Defendants are not "custodial care facilities" as contemplated by the Pharmacy Act, but are "community homes," as defined by CYFD regulations, which are not required to obtain a pharmacy license to operate.
N.M. Boys & Girls Ranch v. N.M. Bd. of Pharmacy
, 2022-NMCA-047, cert. denied.
Pharmacy board exceeded its regulatory authority by expanding the statutory definition of "custodial care facility".
— Where the board of pharmacy (board) notified defendants, two community care homes that provide full-time care, supervision and support to children, that they needed a pharmacy license to maintain their children, youth and families department licenses, claiming that defendants were considered "custodial care facilities" under the Pharmacy Act, §§ 61-11-1 through 61-11-29 NMSA 1978, and where defendants responded that they were not required to hold a pharmacy license because they were not "custodial care facilities," and where defendants filed a complaint in district court seeking declaratory and injunctive relief to prevent their licenses from being revoked, the district court did not abuse its discretion in granting declaratory and injunctive relief in defendants' favor, because the board acted outside its statutory authority in defining "custodial care facility" by regulation in a manner that excessively expanded upon the legislature's definition of "custodial care facility" in the Pharmacy Act. The board's definition is therefore void.
N.M. Boys & Girls Ranch v. N.M. Bd. of Pharmacy
, 2022-NMCA-047, cert. denied.
Board constitutional.
— The board is well founded in the police power of the state and cannot be attacked as being unconstitutional. 1960 Op. Att'y Gen. No. 60-126.
Constitutionality of regulating nonresident dealers.
— This provision gives the board power to license, regulate and impose a reasonable license fee on resident and nonresident wholesale drug dealers and manufacturers distributing their products in the state, and such action will not violate the United States constitution. 1971 Op. Att'y Gen. No. 71-49.
Powers of board.
— The board of pharmacy has power to make bylaws, rules and regulations necessary for the protection of the public in the field of pharmacy and may employ chemists, inspectors, agents and clerical administrative help for the proper conduct of its business. 1953 Op. Att'y Gen. No. 53-5776.
Jurisdiction over hospital pharmacies.
— The board of pharmacy exercises the same powers over pharmacies or drug dispensaries operated by a hospital as it does over any other drug store or pharmacy, etc., operated within the state. 1960 Op. Att'y Gen. No. 60-126.
Presence of pharmacist.
— Under broad grant of authority given the board for the protection of public health and welfare, it may promulgate a regulation requiring that a registered pharmacist must be on duty in a drug store from the opening hour of the drug store until the closing hour. 1961 Op. Att'y Gen. No. 61-85.
Sharing office space.
— The pharmaceutical association and the state board of pharmacy could maintain offices under the same roof and within the same office space, but they would be required to separate their expenditures for rent and clerical help. 1953 Op. Att'y Gen. No. 53-5776.
Inspector.
— Inspector appointed under former law, in the performance of duties, was empowered with all of the powers and duties of law enforcement officers of the state, within which powers was the right to carry such weapons as the occasion appeared to require. 1965 Op. Att'y Gen. No. 65-93.
An inspector has all of the authority granted to municipal, county and state law enforcement officers, including the power to obtain search warrants in all cases concerning the violation or violations of the pharmacy laws of the state of New Mexico. 1953 Op. Att'y Gen. No. 53-5865 (rendered under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 28 C.J.S. Drugs and Narcotics § 8 et seq.