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?
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.