The Battle of Cold Harbor, in May – June 1864, was one of the last victories for the Confederates in the Civil War. (Or, as it was referred to in the South, the War for Southern Independence.) The victory did not change the outcome of the war.
In January, a state judge ruled that Dry Needling is not within scope for Physical Therapists in Florida. This ruling was proclaimed a great victory and widely celebrated on Facebook and here, in Acupuncture Today.
FSOMA won in Florida, because, as appears in the ruling, “A simple reading of the physical therapy scope of practice statute, section 486.021(11), in light of the definition of “acupuncture” in section 457.102(1), makes plain that dry needling is not within the statutory scope of practice for PTs in the State of Florida. The Board had no basis for moving forward with the Proposed Rule.”
FSOMA did not win because the FDA limits the use of filiform needles to LAcs, there aren’t standards for the practice of dry needling, the physical therapists aren’t adequately trained, dry needling would harm patients, dry needling is “cultural misappropriation,” or any of the other many arguments made in Florida and elsewhere.
This ruling sets no precedent for any other state because it is based on the definition of Acupuncture and the scope of PT practice as found in Florida law. If state level rulings did set a precedent in other jurisdictions, FSOMA would likely have lost. We’ve lost in more states than we’ve won.
Of course, you wouldn’t know any of this from that Acupuncture Today article, or all those celebratory posts on Facebook.
Meanwhile, we’ve lost a significant and costly battle. One which should never have been fought. This loss hasn’t yet made the news.
The North Carolina Physical Therapy Association recently announced a settlement agreement, in which the North Carolina Acupuncture Licensing Board would pay the NCPTA a six-figure settlement and agree that all current and future members would stop sending cease-and-desist letters to physical therapists who offer dry needling, and would honor the North Carolina Supreme Court’s decision that dry needling is within the scope of practice of physical therapy.
This loss should surprise no one. The NCALB incurred significant legal debt persisting in a battle that no one outside of the profession thought they could win. And they attracted negative attention from lawmakers in the process. Why, oh why, did they do this?
I’ve stopped hoping that yet another blog post will change our behavior. Will a six-figure settlement? How will the NCALB continue to function without resources?
Even the few battles we’ve won could later be lost. Scopes of health professions can change via legislation. Physical Therapists outnumber us in every state. The trend is away from scope “monopolies” – understandable when we need to improve access to services and reduce health care spending. (Consider the history of scope and Advanced Practice Nurses, Optometrists, Social Workers, and Dental Therapists.)
Both the Acupuncturists and the Physical Therapists might refer to this multi-year hostility as The War of Defending the Profession, or The War of Protecting our Patients. Undoubtedly, each side has been motivated by the belief that they were doing what was right. But, war is costly. And, as the smaller and poorer profession, we have suffered greatly for our few victories.
In the past few years we’ve done a good job increasing the demand or and interest in acupuncture. But the number of people entering the acupuncture profession is dropping. In the vast majority of the country we don’t have enough practitioners to meet the need. Meanwhile, qualified and experienced practitioners can’t practice because of regulatory loopholes that seem to benefit only the NCCAOM. The NCCAOM is looking for a new Executive Director, and it’s critical that we be involved in the selection process. Acupuncturists can’t pay off their student loans while others argue for additional educational requirements. Our schools are closing. We’re increasingly participating in the insurance system, increasingly concerned that the system doesn’t support our work, and increasingly, getting into insurance-related legal trouble.
It’s past time to give up the war. There is no one person who can proclaim the end to hostilities. General Lee could only surrender the Army of Northern Virginia on April 9,
1965 1865.* Other Generals continued to fight. I’m sure some state association somewhere will continue to beat the drums of war, insisting that we fight on. What a shame.
We have far better things we could be doing with our time and our money. Let’s.
(Yes, I’m so tired of writing about dry needling I studied up on some Civil War history to spice things up.)
* When I first published this I goofed and wrote 1965. When it was pointed out (thanks astute reader!) I quickly corrected it. But I’ve been thinking. The consequences of the Civil War are still very much with us. Freedom Summer was in 1963, for example. When I see suppliers marketing that they don’t sell needles to PT’s, and LAcs boycotting suppliers who don’t make that promise, well, it’s heartbreaking. The sooner we reconcile the better. And, yup, some LAcs see me as a Profession Traitor for saying this.