Dry Needling – Winning, and Losing.

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.

 

Copyright —

© Elaine Wolf Komarow and The Acupuncture Observer, 2013-2019. 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.

22 thoughts on “Dry Needling – Winning, and Losing.

  1. Another point here….
    The FL ‘victory’ is actually one State judge ruling.
    486.021 Part 11
    “Practice of physical therapy” means the performance of physical therapy assessments and the treatment of any disability, injury, disease, or other health condition of human beings, or the prevention of such disability, injury, disease, or other condition of health, and rehabilitation as related thereto by the use of the physical, chemical, and other properties of air; electricity; exercise; massage; the performance of acupuncture only upon compliance with the criteria set forth by the Board of Medicine, when no penetration of the skin occurs; the use of radiant energy, including ultraviolet, visible, and infrared rays; ultrasound; water; the use of apparatus and equipment in the application of the foregoing or related thereto; the performance of tests of neuromuscular functions as an aid to the diagnosis or treatment of any human condition; or the performance of electromyography as an aid to the diagnosis of any human condition only upon compliance with the criteria set forth by the Board of Medicine.
    Here’s my question…? Is it solely based on this law that PT’s were told no? How many other states explicitly state no penetration of skin in the relevant state practice act? The other thing nobody talks about is the fact that PT’s and others practice DN regardless of scope. Those patients tell us this all the time in NY and NJ. Lot of good the fighting did.
    This is what the petitioner (PT) asked Judge Stevenson to rule on…
    http://www.floridahealth.gov/licensing-and-regulation/declaratory/_documents/CLF-5501-14672DOH17-1605DS.pdf
    https://health.wusf.usf.edu/post/judge-pokes-hole-dry-needling-rule#stream/0

    • I think this is a relevant section — “70. It should also be noted that the only provision of section 486.021(11) that expressly authorizes an invasive procedure places significant constraints on the performance of that procedure by a PT. The statute allows “the performance of electromyography as an aid to the diagnosis of any human condition only upon compliance with the criteria set forth by the Board of Medicine.” Florida Administrative Code Rule 64B837.001 sets forth the Board of Medicine’s prerequisites to the performance of electromyography by a PT: Pursuant to Section 486.021(11), F.S., the Board of Medicine sets forth the following criteria for the performance of electromyography by physical therapists. (1) Before a physical therapist may perform electromyography as an aid to the diagnosis of any human condition, he must be trained and competent in: (a) Inserting and adjusting electrodes. 35 (b) Reading and identifying normal and abnormal signals on the grid. (c) Interpreting the audible signals. (2) In addition to the requirements of subsection (1), a physical therapist must receive no less than the following formal education within an accredited postsecondary educational institution: (a) Human dissection. (b) Human physiology. (c) Neurology. (d) Neuro-anatomy and neuro-physiology offered at a graduate level. (e) Pathological conditions. (3) In addition to having completed the formal study requirements of subsection (2), outlined above, the physical therapist must have completed 200 hours of testing human subjects under the direct supervision of a licensed physician or licensed physical therapist who has previously met these qualifications and should be able to present evidence of having performed 100 tests on neurologically involved patients, with findings corroborated by a licensed physician or licensed physical therapist who has previously met these qualifications. 71. Section 486.021(11) twice mentions invasive procedures. In the first instance, it forbids PTs from penetrating the skin when performing acupuncture. In the second, it requires compliance with the criteria set forth by the Board of Medicine. The Board of Medicine’s adopted criteria include proof of basic training and prerequisite coursework, 36 200 hours of supervised testing of human subjects, and 100 corroborated tests before a PT may perform electromyography. The Board of Medicine’s rule does not leave a PT free to act as the judge of his own competence in the area of electromyography, as FSOMA alleges the Proposed Rule would effectively allow for dry needling. 72. Mr. Parente, who has been licensed as a PT since 1986, testified as to an “old adage” that applies to physical therapy: “Thou shalt not break the skin.” The experts testifying on behalf of the Board and FPTA uniformly rejected the notion that PTs are forbidden from performing invasive procedures. These experts may be correct in their general understanding of the current scope of practice for PTs in the United States. Nonetheless, section 486.021(11) governs the scope of practice in Florida and is found to contain a general presumption against PTs performing invasive procedures without prior demonstration of their qualifications and competence. More to the point of the instant case, section 486.021(11) includes a specific prohibition on the performance of invasive acupuncture procedures by PTs.” in combination with —

      “87. Dry needling may not constitute the practice of acupuncture in any real world sense, but in the statutory sense it does. Because it meets the definition of “acupuncture” set forth in section 457.102(1), dry needling is prohibited in the practice of physical therapy by section 486.021(11), which allows PTs to perform acupuncture only “when no penetration of the skin occurs.”

      So, it’s not so much that the statute doesn’t allow penetration of the skin but that it only allows acupuncture “when no penetration of the skin occurs.”

      Which I think might mean the statute would allow PT’s to practice Toyahari techniques. Can’t wait for that fight!

      In some states, the statute might not specifically allow penetration of the skin, but if debridement and electromyography are allowed that’s been enough to get the courts to say, well, we’ve allowed it before and we’ll allow it now.

      Folks practice outside of scope all of the time. Scope can be fluid. I suppose some would say the real win is that now at least they can’t bill insurance — which is pretty funny. One of the things PT’s liked about dry needling is that they couldn’t bill insurance and people would pay cash. Certainly Acupuncturists haven’t been reporting that insurance coverage is a big win.

      PT’s who practice outside of scope certainly put themselves at legal risk. They won’t get malpractice coverage for that procedure. I don’t see this as being a top priority for enforcement for regulatory boards.

      Yes, it’s certainly need a big waste of time!

  2. It’s always interesting how few people click few on the links. If you’re going to comment that I’m wrong, and we just need to fight harder, or anything along those lines, look at the links first. Thanks.

  3. Acupuncture is a medical science that should be practice by medical professionals and acupuncturists and acupuncture physicians. No PT, no DC, no others. All other health care professionals just realized that acupuncture works and everything is about to change-hence money. Acupuncturists should be United like medical doctors and osteopath doctors against other health professions. Physical therapists want to diagnose, currently they can’t. They understand with pseudo-acupuncture (dry needle) they will be able to diagnose, hence will doctor. So please be unified and steadfast dry needle is acupuncture. Please stop the counter argument that acupuncturist should work with PT. They (PTs) need dry needle to agenda.

    • As I said, some will insist on fighting on, even after it becomes clear that the war is lost. Of course, MD’s haven’t wanted to share, and, of course, they’ve lost that argument many times over. MD’s tried to stop non-MD’s (that’s us) from doing acupuncture and failed. They’ve tried to stop Nurses from practicing independently, and have failed.

      Your arguments that dry needling is only pseudo-acupuncture are undermined by the acupuncturists insistence that it is acupuncture.

      Your arguments are both misinformed about the history of medical practice, and completely ignorant of the situation we face. It does not matter how steadfast we remain, we are not going to win, because neither the law nor the power structure agrees with our position.

      Will you pay off the settlement that the North Carolina Licensing Board owes to the NCPTA for remaining steadfast.

      • I’m not an Acupuncturist, but I have been an advocate for this medical practice. If you go to statnews website you will locate my comments. Pain and the opioid crisis are what brought acupuncture over the map. The health care system finally has realized the potential of acupuncture. The acupuncture board can allow some health care professionals to have a limited scope of practice, but not in the detriment of acupuncturists. The World Health Organization (who) has mentioned other health professions, but they must have limited scope of practice. WHO understands that even MDs don’t fully understand or know fully how to apply acupuncture system. That is why WHO has stretched advanced programs for MDs on top of the 200 hrs.
        If it wasn’t for acupuncture, Acupuncturists wouldn’t have been recognized in 47 states. Medicare just took comments on acupuncture that ended on 2/14/19. The first time Medicare is doing a full trial in collaboration with NIH, and others. By the end of October, 2019 Medicare will have a final draft as to whether to include acupuncture.
        Acupuncturists must be proud and professional. No other health system involve patients input like acupuncture and oriental medicine.
        Oriental medicine encompasses the mind-the nervous system. Therefore oriental medicine is good for mental health, pain-nociception, Mood and etc..

        You must stand together so that history won’t repeat itself. When oriental medicine and acupuncture were prevented/outcast. This time they will spin it, and dilute it. In Europe, especially in France, Italy and Germany even in Latin America they always make reference to acupuncture in any of their inventions that include penetration of needle-hence Western medical acupuncture. However in United States is not the same. Name changing benefits “them”. Steadfast acupuncturists, the world is watching.

        • Even if we stand together, there are at least 10 times as many PT’s as there are LAcs. If Medicare includes acupuncture, we have no where close to the number of practitioners to meet that need. There are, optimistically, 40 LAcs in West Virginia in 433,494 folks on Medicare, for example.

          I am proud and professional and think highly of my skills. I agree that a well-trained acupuncturist is a wonderful thing. Though I have yet to see persuasive evidence that patients do better when treated by an LAc over someone else using an acupuncture needle.

          Mostly, though, the history of the past six years shows that the law is not on our side. We would have done better to take our efforts to build the number of practitioners, and to help the public understand the difference in training between different types of practitioners.

          Again, those who insisted on continuing the fight in North Carolina have put their licensing board in jeopardy, and owe the PT’s and the lawyers hundreds of thousands of dollars. Being steadfast behind a misunderstanding of the terrain has done them no good.

          Your argument is that keep trying the same unsuccessful remedy rather than reconsider whether you’ve made the right diagnosis. When the patient is harmed as a consequence, that’s malpractice.

          • If I am misunderstood, I apologized. What I said WHO, mentioned it as well. Limited scope for other health workers. MD(some) and Lac should have unlimited scope.

            The Acupuncture association and acupuncture state board should convene first to know what PTs limited scope would be.

            As for as school closing, school always closed if recruitments are low.

            Once insurance companies and Medicare start covering acupuncture, there will be a flock of new students. Currently, MDs are going back to school for acupuncture because acupuncture cannot be fully understood with limited classes.

            Acupuncture is a medical realms. It is a distinct field. Anyone may stick the needle, but the patients will get well temporary with complications later. Oriental medicine takes time to master. It takes years.

            I understand the frustration. There’s bill to be paid. But oriental medicine has more to give. Human Body is like a car engine where the mechanical engineers or the mechanics use tools to fix it. This anecdote is Acupuncture.

            This is my last comment.

          • Acupuncture Boards don’t have a say in PT scope of practice. That’s one of issues in North Carolina. The PT Board regulates PT’s according to the laws passed by the Legislature. How do you propose LAcs get involved? (For what it is worth, I do think we had an opportunity to work with PT’s six or seven years ago, which is what we tried in Virginia, with some success. However, since we have spent the past five years harassing them, I think we’ve lost that opportunity.)

            Yes, enrollment is falling. We could do something about that. The cost of our education does not help.

            Insurance is increasingly covering acupuncture, and most practitioners complain about it and say the reimbursements aren’t enough. That is likely to be an even bigger problem if there is increased Medicare coverage.

            When you say patients who get treated by practitioners who don’t have full training get temporarily better but have complications later, I know you are repeating one of the professions deepest beliefs. But is there any evidence of that?

            Thanks for commenting. I appreciate the opportunity to share ideas.

  4. Bravo to EWK. My most recent W-L count re dry needling was PTs 10, LAcs 2. Bravo to SJ. Of course LAcs should be making a deal with the PTs and DCs. “Encroachment” on scope of practice is beyond commonplace in medicine. It is a way for growth and collaboration among disciplines. When Fam Med docs decided they could do ultra sounds the OBs howled “not in your scope, in ours!” 2 years later the deal was struck. Fam Meds would do ultra sound. OBs would train them how to do them. For a fee of course. Now how might that work in AOM?

    IMO PTs want to do injections of pain meds. Doing “dry needling” is one step closer along that path.

    Regarding school closures…CCAOM has the data. Don’t expect them to release it. LAcs and educators who attend the national meetings where these reports are narrowly released get the scoop. Most recently I was told new enrollment across all CCAOM members is down 25% (from 8,000 to 6,000). That will shutter some schools.

  5. Just saw that long-term plan for Dry Needling is on the agenda for my state association’s upcoming annual meeting. So, seems like we’re going to keep up this awful fight ’til the death.

  6. I apologize for the rant. Thank you for the great article. I feel I am not alone in this fumbled messed up profession.

    Oh dear god … can we as a profession stop this silly fight? Can’t we work with PTs? Dry needling is limited. Some of their clients will want “acupuncture “ and a bridge between us could really help.

    Why don’t we put effort into the holistic part of our whole body training? Educate the public? Help them understand the differences and allow them to make a decision?

    Why arent we figuring out insurance? Now so deeply ingrained into our profession that we have to dumb down the best part of our healing so we can make money? Hey, I had a woman call me yesterday- she was in weekly acupuncture (covered by insurance) for a YEAR! She had anxiety which responded but was told she needed weekly acupuncture. Come on folks we are playing all the games we say we hate so much.

    So we wanted insurance we got. PTs aren’t dumb – they get paid just as badly and dry needling gets them more money and (we hate to admit it) it works.

    If I had know how bad our profession would crumble 15 years ago … I would have never entered. We are shattered and fragmented….going around in a hamster wheel.

  7. Just a heads up that the last bit has been edited since the e-mail notifications went out this morning.

  8. where can I find out acupuncture schools are closing? which ones?

    I have a practice in WA state and from the emails I get from our state association it appears the state has told both acu society and PT’s society to come together and form a compromise; or they’ll do it for both parties, which means all those efforts and time and money to win lawsuit against the PT’s and stop their legislation is going in vain….

  9. Yep. Here’s my prediction. CA, NY and FL will become the main states where anti ‘dry needling’ rulings will come down that ‘benefit’ acupuncturists. State by state precedence (or findings) will be set that will allow PT’s and others to use needles to do muscle release. The argument here is the same as asserting that no one should be able to do massage but LMT’s. We’re gonna lose this. NY will be next to fall. Give it 5 years but it’s gonna happen. As usual it’s not popular to say, especially since I don’t know what a reasonable alternative is… Sucks, especially with fragmented ‘leadership’ not finding consensus. Slavery had to go much to the dismay of all those ‘owners’ in the South. We do not own needling! Unless the laws clearly state that we do that’s the end of it. We don’t have the money or organization to get each state to write and pass these laws. I know, someone is gonna scream, “You’re comparing slavery to acupuncturists “protecting the public.” Before we discount what you’re (EWK) pointing out, read the rulings that went against us. I know it sucks and may not be fair but sometimes better to stop fighting. We brought a knife to a gunfight!!!! Interesting to read the partial history of NJ. Probably a template for PT Boards to continue the erosion of the limited and shaky state oppositions.
    http://dborthopt.com/files/2018/07/APTANJ_DryNeedling_Bill_Support_Info_070218.pdf
    The following link is pro DN so take with grain of salt.
    https://www.kinetacore.com/about/scope-of-practice/
    It’s not cut and dry because each state summary link is in flux with some states PT-Boards having no ruling, or pro-ruling and various legislatures writing DN for PT’s into law, Attorney Generals supporting or not and so on. So far the states that seem to or explicitly allow are AZ, AR, CO, DE, DC, GA, IL?, IA?, KS?, KY, LA, ME, MD, MS, MT, NE, NV, NH, NM, NC, ND, OH, OK, OR, RI, SC, SD, TN, TX, UT, VA, WV, WI, WY.
    What seems to be the past scenario so far is the state PT’s that practice DN and get the PT Boards to issue favorable rulings. In states where there are sufficient acupuncturists to object they get their Boards to object and the opinions of the Boards get taken up by Atty Generals or state Legislatures. Then you need a lawyer and you better hope you have big bucks and the law on our side.) It usually is not because state Medical Boards can’t govern what is in the other’s scope. (That’s why they exist! To govern members of their profession. Why would a PT Board rule against their state members?!!!!?) So then you get rulings from AG’s that rule according to narrowly defining the law. (That’s their job!) Sometimes the Legislature gets involved but we really need to soberly analyze the situation. Try this on for size. Someone drafts a bill saying PT’s aren’t allowed to do DN. Along come 100 Acu’s (if were lucky) that support the Bill and ask their reps to vote Aye. Then along come 1,000 PT’s with more money and support asking the same Reps to vote Nay. Add in the public that just want treatment covered by insurance and readily available, and guess what call they’re going to make…? I ain’t no lawyer but think about what has occurred so far….. I don’t like it!!!! Don’t think it’s fair or fun!!!! Seriously though, the cow already left the barn and left the rebel flag trampled in the dust on the way out to pasture. Or as another commenter wrote, except I add it’s a (dead) hamster on the wheel.

    • I think Washington state is also currently in the PT’s can’t do dry needling column. It’s worth noting, that the PT Dry Needling community is doing a much better job of keeping interested parties informed about the actual legal rulings as they come down. What acupuncturists have is a bunch of one-sided and misleading stories, such that even folks who are more in the loop than most are often confused about what actually happened.

      Our efforts to promote acupuncture as a treatment for pain that deserves to be more widely adopted will make it easier for other professions to begin using the technique. Folks were super excited about BCBS in TN saying they wouldn’t cover oxy but would cover acupuncture, but there are only about 100 acupuncturists in TN.

      Personally, I don’t even see this as unfair to acupuncturists. 25 years ago I was fighting to do acupuncture in a state that said only MD’s could. The MD’s, of course, said they were only looking out for patient safety as they tried to keep us out. We argued that patients should have the right to choose….

    • One thing I’d like to “correct” — when people say “we brought a knife to a gun fight” it feeds the false narrative that we just didn’t have a powerful enough weapon, if only we stood strong and fought. I’d say that a better analogy is that we brought a knife to a courtroom. We needed a winning legal argument and we don’t have one, and it doesn’t matter how many people come together to scream that we are right and they are wrong, that isn’t going to influence the court. Numbers and power do influence legislators, of course, but even laws can be overturned by courts.

      • I like it. Instead of a measured thought-out response there’s this brittle, battle-minded posturing that doesn’t really hold our strengths out. It’s this victimized, “Oh these evil dangerous PT’s. There will never be room. I’ll never have enough clients. They’re being stolen from me.” It’s this fear-based argument and loses the actual real issues that occur when PT’s practice acupuncture. I think the Middle Way is the way to go. State our case and hit the pause button and see what the Universe does. Not role over and give up either but actually articulate where we stand. Hmmmm…

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