N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners

Citations: 821 S.E.2d 376; 371 N.C. 697Docket: 380A17

Court: Supreme Court of North Carolina; December 7, 2018; North Carolina; State Supreme Court

Original Court Document: View Document

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The Supreme Court of North Carolina reviewed the case between the North Carolina Acupuncture Licensing Board and the North Carolina Board of Physical Therapy Examiners regarding the classification of 'dry needling' under state law. The Acupuncture Board sought a ruling that dry needling is not a practice of physical therapy and requested the Physical Therapy Board to withdraw a conflicting position statement. The case highlights nearly ten years of debate over whether dry needling should be regulated exclusively by the Acupuncture Board.

The Physical Therapy Board initially classified dry needling as a form of acupuncture in 2002 but reversed its position in 2010, asserting that it falls within physical therapy due to its basis in intramuscular manual therapy. In response, the Acupuncture Board sought clarification from the Attorney General, who indicated that dry needling is distinct from acupuncture and should be regulated by the Physical Therapy Board for public safety. Subsequently, the Physical Therapy Board proposed a formal rule to regulate dry needling, which faced opposition from acupuncturists during public hearings, leading the Rules Review Commission to object to the rule due to perceived lack of statutory authority.

Ultimately, the Supreme Court affirmed the Business Court's decision, upholding the Physical Therapy Board’s determination that dry needling constitutes physical therapy, as consistent with its enabling statutes and administrative rules.

The Physical Therapy Board did not contest the Commission’s decision and announced on its website that physical therapists may continue practicing dry needling per its 2010 position statement. In 2015, the Acupuncture Board sued the Physical Therapy Board in Wake County Superior Court to prohibit dry needling by physical therapists, but the case was dismissed for failing to exhaust administrative remedies. Subsequently, the Acupuncture Board sought a declaratory ruling from the Physical Therapy Board, which reaffirmed that dry needling falls under physical therapy according to relevant statutes and regulations. The Acupuncture Board appealed this ruling, which was upheld by the Business Court, leading to further appeal to this Court. The Acupuncture Board contended that dry needling is part of acupuncture practice, claiming the Physical Therapy Board erred in its classification.

The Court reviewed the Acupuncture Board's petition citing errors of statutory authority, procedural legality, and other legal mistakes, applying a de novo standard. This standard allows the trial court to reassess the matter as if it were new. While courts decide on the scope of an administrative agency's authority, they interpret enabling legislation to encompass all powers intended by the General Assembly. Courts give significant weight to an agency's interpretation of statutes it administers, though such interpretations are not binding. The persuasiveness of an agency's interpretation is influenced by the depth of its consideration, reasoning validity, and consistency with past and future statements. Courts will reject interpretations that conflict with the clear intent of the governing act.

The Court's primary objective in interpreting statutes is to fulfill the legislature's intent, as established in prior case law. The key indicators of legislative purpose include the statutory language, the act's spirit, and its intended outcomes. Specifically, the General Assembly broadly defines "physical therapy" to encompass various evaluation and treatment methods aimed at preventing or alleviating physical or mental disabilities. This definition also includes specialized tests and procedures, as well as the development of patient care programs, while explicitly excluding certain practices such as the use of roentgen rays, surgery, spinal manipulation unless prescribed, and medical diagnosis of diseases.

The statute empowers the Physical Therapy Board to further define physical therapy through regulations, indicating legislative intent for the practice to evolve over time. The only specific limitations on the Board's regulatory authority are those explicitly stated in the statute. The General Assembly has granted the Board broad powers to enact rules necessary for safeguarding public health and ensuring practitioner competence, emphasizing a liberal interpretation of these powers. Consequently, the Physical Therapy Board's inclusion of dry needling within the definition of physical therapy is presented as persuasive authority for the Court's consideration.

The Physical Therapy Board determined that dry needling is classified as a form of physical therapy under statutory definitions, describing it as a treatment aimed at alleviating myofascial pain through rehabilitative procedures. The court evaluated the Board's interpretation based on several factors: thoroughness of consideration, validity of reasoning, consistency with prior statements, and persuasive power. The Board's conclusion was supported by a detailed forty-nine-page ruling referencing scientific literature on dry needling's history, efficacy, and safety, as well as practices in other states. The Board's past statements, including confirmations from the North Carolina Attorney General, indicated that physical therapists could perform dry needling with appropriate training. The case deviates from standard administrative law disputes, as the Board exercised its authority to adopt a rule asserting that physical therapy encompasses procedures commonly taught in educational programs. The Board highlighted that a significant portion of dry needling competency is included in entry-level physical therapy education, leading to its conclusion that dry needling is part of physical therapy practice.

The Physical Therapy Board's interpretation of its own rule aligns with statutory requirements, granting it controlling weight as established in legal precedent. The Acupuncture Board claims that the Physical Therapy Board improperly utilized a policy statement to override the Rules Review Commission's authority, which objected to a proposed rule on dry needling training requirements. However, the Commission's role is limited to procedural review of proposed rules, focusing on their adherence to specific criteria rather than their quality or efficacy. If the Physical Therapy Board wishes to challenge the Commission's actions, it may do so through a declaratory judgment in Wake County Superior Court.

The Commission's rejection of the dry needling training rule does not conflict with the Board’s nonbinding policy statements from 2002 and 2010, which merely interpret statutory definitions and do not constitute formal rules requiring rulemaking procedures. The Acupuncture Board’s argument that the 2010 policy statement unlawfully expanded the scope of physical therapy practice misinterprets the Administrative Procedure Act, which prevents agencies from enlarging licensed activities but does not restrict how they regulate licensed practitioners. The 2010 policy statement clarifies that licensed physical therapists must follow existing rules when practicing dry needling, without broadening the category of individuals requiring licensure.

The Acupuncture Board contends that dry needling should be classified as acupuncture, thus outside the practice of physical therapy. The Physical Therapy Board argues that dry needling does not utilize acupuncture diagnostic or treatment methods; however, it lacks the authority to define the scope of acupuncture practice. Legal precedent dictates that laws against unauthorized acupuncture practice must be strictly interpreted, as seen in Elliott v. N.C. Psychology Bd. The strict construction principle limits statutory applications to their explicit terms, as supported by Turlington v. McLeod. When statutory language is ambiguous regarding agency roles, concurrent authority is assumed, as established in Trayford v. N.C. Psychology Bd. The Acupuncture Board's attempt to differentiate its case from Trayford is based on the Physical Therapy Act’s explicit provision that prevents the Physical Therapy Board from restricting licensed professionals' activities. However, the Acupuncture Act lacks a similar provision, indicating a limitation on enforcement rather than authority. The court does not decide hypothetical enforcement actions or provide advisory opinions, as noted in Wise v. Harrington Grove Cmty Ass’n. The Physical Therapy Board's interpretations of relevant statutes affirm that dry needling is encompassed within physical therapy practice. Consequently, the court affirms the Business Court's decision that dry needling is a legitimate part of physical therapy in North Carolina.