Dry Needling Updates for LAcs

Not again! Yes, again.

[If nothing else, read: NC AG Opinion, NC Order and Opinion, Henry v NCALB, and TX AG Opinion. If you have an opinion on dry needling, and you want it to be an informed opinion, these documents are necessary reading.]

North Carolina has been a major DN battlefield. It’s been a rallying cry for strong action elsewhere. How’s it going?

Not well.

Some history –

In 2011, the North Carolina Acupuncture Licensing Board (NCALB) requested an opinion from the NC Attorney General regarding the North Carolina Board of Physical Therapy Examiners’ (NCPTE) decision that Dry Needling was within the PT scope of practice. The AG opinion was that the NCPTE could make this determination if it conducted appropriate rule-making.

Subsequent to that decision, but before the NCPTE concluded the rule-making process, the NCALB sent “cease-and-desist” letters to PT’s practicing dry needling, accusing them of illegal activity. And, in 2015, the NCALB filed a complaint, demanding a ruling that DN was the unlawful practice of acupuncture, and insisting that the PT Board inform its licensees that DN was not within the scope of practice of PT’s.

Given the AG opinion it’s no surprise that the NCPTE (and individual PT’s who had received the cease-and-desist letters) weren’t ready to roll over for the NCALB.

On August 2nd, the Court issued this NC Order and Opinion affirming the NCPTE’s decision that dry needling is within scope for PT’s, and that it is distinct from acupuncture.

(Again, please read the documents. They are critical to understanding why our arguments aren’t leading to more wins.)

In January the court ruled that Henry v NCALB could proceed. This is not good news for the NCALB and its members, who may be found (subsequent to the NC Board of Dental Examiners Supreme Court ruling) guilty of antitrust violations.

My top takeaways —

  • Don’t request an AG opinion if you won’t accept the answer. (A colleague recently wrote that he’s gearing up to “CRUSH dry needling” in Texas. Here’s the Texas AG opinion.)
  • If it’s determined that a PT Board has the power to pursue rulemaking on dry needling, we should make a good faith effort to offer respectful input. We should focus on minimizing risk to the public, while accepting that we don’t get to call the shots. Obstructing the regulatory process or making unrealistic demands puts the public at greater risk. (Also, we should make well-informed arguments. Insisting that dry needling is outside of PT scope after it’s been ruled otherwise, for example, doesn’t help our case.)
  • Don’t use dud ammunition. NCASI and others still argue, for example, that it’s illegal for anyone other than acupuncturists to possess acupuncture needles. The court wrote (highlighting mine)

¶¶ 16–20.) In particular, the Acupuncture Board contends that the needles used in dry needling “must carry a specific FDA warning as required under 21 CFR §880.109(b)(1), stating ‘Caution: Federal law restricts this device to sale by or on the order of a [qualified practitioner of acupuncture licensed by the law of the State in which he practices to use or order the use of the device.]’” (Petition ¶ 19) (brackets
and emphasis in original).
50. The Petition takes glaring liberties with the cited regulation, however. The full text of the regulation requires medical devices, such as the solid filament needles at issue here, to include a label bearing: The symbol statement “RX only” or “℞ only” or the statement “Caution: Federal law restricts this device to sale by or on the order of a ____”, the blank to be filled with the word “physician”, “dentist”, “veterinarian”, or with the descriptive designation of any other practitioner licensed by the law of the State in which the practitioner practices to use or order the use of the device[.]
21 C.F.R. § 801.109(b)(1). As such, the cited regulation does not support the Acupuncture Board’s argument that the needles used in dry needling are “medical devices” only for use by acupuncturists.

  • Our professions’ news sources are full of misleading, inaccurate, and incomplete information. This AT article, this NGAOM post, and this blog post, are inaccurate – repeating the false needle argument, misstating the finding of the NC rules review commission, and/or misrepresenting what the NCPTE told licensees. We need to do better.
  • Long-term, there may be a few states where PT’s are not permitted to do dry needling, just as there are a few states still not open to LAcs. There is already PT DN in most states. Making the argument that dry needling is acupuncture, as the NCCAOM did in their recent statement, is a terrible mistake. Do we want the PT next door to advertise “now offering acupuncture”? Our statements encourage them to do so. We need to adjust to the current reality.

In 2013 I wrote Imagine, or, How I Learned to Stop Worrying and Love the Bomb. I can still only imagine where we’d be if we had spent the last four years doing those 11 things, instead of what we’ve done (and continue to do). Let’s stop doing what we’ve done. We can get something better if we understand what’s gotten us here.

 

 

 

Copyright —

© Elaine Wolf Komarow and The Acupuncture Observer, 2013-2017. Unauthorized use and/or duplication of this material without express written permission from Elaine Wolf Komarow is prohibited. Excerpts and links are encouraged, provided that full and clear credit is given with specific direction to the original content.

8 thoughts on “Dry Needling Updates for LAcs

  1. It is quite odd…I left the profession 7 yrs ago and the issue of dry needling is still “a thing.”

    I also just receive the NCCAOM survey about degrees and titles and that is still a thing. I decided to answer the survey and there are free text areas under each series of questions about degrees. Here is how I responded:

    I’m not sure why this is even a conversation. This is a trade, not a profession. It only deserves certification, not a Master’s and most definitely not a doctorate. Most of the schools are nationally accredited, which is what one would find with massage therapy programs and truck driving schools.

    The only standard for entry into an AOM program is 60 hours of college credit…not a Bachelor’s degree, and certainly not a GRE.

    If you want to offer an MS, meet the basic requirements of such: a bachelor’s degree, and some form of Graduate Entry examination, such as the GRE, and require all institutions to be regionally accredited.

    The Doctorate, in any form, is a joke that only serves the AOM schools…longer program term equals more tuition money.

    I also do not feel that AOM schools should be allowed to receive federal financial aid loan dollars, until a legitamitw residency program along with the above mentioned baseline academic criteria are met.

    But in reality, AOM is dying, because the training (it is not an education) has failed the recipients, and after >3000 studies on AOM, all that could be said is that acupuncture is no better than placebo

    http://journals.lww.com/anesthesia-analgesia/Pages/articleviewer.aspx?year=2013&issue=06000&article=00025&type=Fulltext

    This trade profession does not satisfy the standard for doctoral education

    Whether or not the term “oriental” is used or not is irrelevant because it is a trade, not a profession.

    The redundancy of your survey questions reflect the low level intelligence of those running this trade. Please understand that the Doctorate designation will not bring the legitimacy this skilled trade seeks.

    If one wants the title of “Doctor” ante up and go to medical school, or get a PhD in medical anthropology focusing on tradition medical practices of Asia.

  2. I don’t get your text here — “Making the argument that dry needling is acupuncture, as the NCCAOM did in their recent statement, is a terrible mistake. Do we want the PT next door to advertise “now offering acupuncture”? Our statements encourage them to do so. We need to adjust to the current reality.”
    They can’t advertise “offering acupuncture” because it’s not in their scope and isn’t that the whole point? DN is acupuncture. I had a PT, who did the weekend-warrior DN-course, ask me how does he explain to his patients how DN/acupuncture works. He’s can’t explain what he’s doing! I told him, just tell your patient that you don’t know how it works and that they should go ask an acupuncturist.

    • The argument that dry needling = acupuncture was originally adopted mainly because LAcs thought that would prevent PT’s from adding it to their scope. That clearly hasn’t worked. Furthermore, our previous arguments had always been that acupuncture was far more than sticking a needle in a point – that it based on complex knowledge and included more modalities. That was how we “wrested” away complete control from the MD’s in at least some jurisdictions.

      So, if PT’s have been told, as they have in many jurisdictions, that dry needling is in their scope, and we argue that dry needling is acupuncture, we’ve now given the nod to them saying they offer acupuncture. I can see it now, an LAC complaining to the court, and the court saying, the acupuncture community insisted they were the same, so on what basis are you trying to block their adopting your preferred terminology.

      And, we’ve lost our branding. I regularly see clients who had dry needling and HATED it. They are willing to seek out acupuncture because it is different. If they get dry needling and hate it, and they ask the PT “would acupuncture be different” the PT can now say, with our backing, no, dry needling is acupuncture, see, here’s what the Acupuncture Credentialing group has to say….. Nice quote to pull out for their advertising “Dry Needling is Acupuncture” says National Commission for the Certification of Acupuncture and Oriental Medicine.

      Do you get it now? (People take medications prescribed by their MD all of the time, even though neither they nor the MD can explain how it works. Also, I’m surprised the PT can’t explain it — releasing a trigger point is well understood, and that’s what they are doing.)

      • I agree that equating acupuncture with dry needling is a horrific mistake; our message to the public should be that dry needling is a crude and often painful substitute for acupuncture. By equating the two therapies our brand suffers from any bad experiences that dry needling creates. It’s worth pointing out, however, that some states have title protection clauses in their licensing acts that prevent other professions from using the words “acupuncture” or “acupuncturist”, even if acupuncture is within their legal scope. Similar title protections prevent MD’s and PT’s from using the words “chiropractor” or “chiropractic”, even if the state allows them to do adjustments. The invention of the term “dry needling” was designed in part to avoid legal confrontations over such laws. If you’re in a title-protected state, it’s unlikely you’ll have to worry about some other profession co-opting the title “acupuncture” or “acupuncturist”.

        • Yes, because of those Title Protection regulations. I’ve got no concerns that the PT’s will begin saying they are acupuncturists. But I don’t believe title protection will prevent them from saying they are doing acupuncture. For instance, MD’s in many states can do acupuncture and can advertise that they provide acupuncture, but still can’t refer to themselves as an Acupuncturist.

          It would take some convoluted legal reasoning to explain that we think PT’s should be stopped from saying they are doing acupuncture when we have spent years arguing that they are doing acupuncture.

          When I speak with people who have previously had “dry needling” they want to know how acupuncture is different. Will it help if dry needling didn’t? Will it hurt the way dry needling did? We’ve lost the ability to make that distinction when we’re arguing it’s all the same. Such a poor strategy.

  3. The messenger always gets shot when ignorance is the meal of the day. It takes a long measured view to prevail. I’ve a friend that told me, ‘litigation is about two sides trying to arrive at a compromise where both sides try to walk away the least disgruntled. Hopefully everyone gets something they want.’ You’ve called this for nearly a decade now. I keep telling colleagues they are bringing a knife to a gun fight. The f-ed up thing is maybe it doesn’t have to be a fight…? We don’t have the political capital to force others “to behave.” This is a political fight now and we are telling bureaucrats what they should do. Never seen a civil servant yet that responds to that well. I get this is scary and perhaps we have some real points to bring here but seriously….?! Don’t have the answers here, but long experience has taught me not to make the situation worse.
    Check this map out….
    https://integrativedryneedling.com/dry-needling-training/scope-of-practice/

    • I’ve been thinking about last week’s GoT — I realize some will roll their eyes, but for those who watch — that small band of dedicated fighters marching beyond the wall. It seemed obvious that they were marching to disaster. They had supersonic ravens, dragons, and mysterious Benjen – otherwise, end of line for them. Charging in and assuming if we just try hard enough we can be the dragon. Well…..

  4. Nice summary, Elaine. You are so right that we do ourselves a disservice by inaccurately reporting when it comes to decisions about dry needling. Half truths only get us in trouble.

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