North Carolina Acupuncture Licensing Board v. North Carolina Board of Physical Therapy Examiners

• Decision Date: 02 August 2017
• Docket Number: 16 CVS 9539
• Citation: 2017 NCBC 66 .
• Court: Superior Court of North Carolina
• Parties: NORTH CAROLINA ACUPUNCTURE LICENSING BOARD, Petitioner, v. NORTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS Respondent.

2017 NCBC 66.

NORTH CAROLINA ACUPUNCTURE LICENSING BOARD, Petitioner, v. NORTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS Respondent.

No. 16 CVS 9539

Superior Court of North Carolina, Wake

August 2, 2017

Everett Gaskins Hancock, LLP, by E.D. Gaskins, Jr., James M Hash, and Fiona K. Steer, and Stevens Martin Vaughn &amp Tadych, PLLC, by Michael J. Tadych, for Petitioner North Carolina Acupuncture Licensing Board.

Ellis & Winters LLP, by Matthew W. Sawchak, Stephen Daniel Feldman, Troy D. Shelton, and James M. Weiss, for Respondent North Carolina Board of Physical Therapy Examiners.

ORDER AND OPINION ON PETITION FOR JUDICIAL REVIEW

Louis A. Bledsoe, III Special Superior Court Judge.

1. THIS MATTER is before the Court upon the North Carolina Acupuncture Licensing Board's (the "Acupuncture Board" or "Petitioner") Petition for Judicial Review (the "Petition") of a declaratory ruling (the "Declaratory Ruling") issued pursuant to N.C. Gen. Stat. § 150B-4 by the North Carolina Board of Physical Therapy Examiners (the "Physical Therapy Board" or "Respondent") in the above- captioned case. For the reasons discussed below, the Court AFFIRMS the Declaratory Ruling.

I. BACKGROUND

A. Prior History

2. This action arises out of an ongoing disagreement between the Acupuncture Board and the Physical Therapy Board over whether a procedure known as "dry needling" is acupuncture and thus subject to the exclusive regulation of the Acupuncture Board. Dry needling is the insertion of solid filament needles into specific trigger points in a patient's muscle tissue to relieve pain. (Declaratory Ruling 4-5; Pet. Judicial Review 2.) The Acupuncture Board views dry needling as indistinct from the practice of acupuncture because both procedures use identical needles, which are inserted at the same places in the body and manipulated in the same way to achieve the same therapeutic results. (Pet. for Judicial Review 2.) The Physical Therapy Board currently takes the position that dry needling falls within the scope of physical therapy and may be performed by physical therapists in North Carolina.

3. The Acupuncture Board brought this dispute before the undersigned in a previous case, N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners, No. 15 CVS 12012 (N.C. Super. Ct. Wake Cnty.), petitioning the Court for a declaratory judgment that dry needling does not fall within the statutory scope of physical therapy in North Carolina. The Court dismissed that case on jurisdictional grounds; in particular, the Court held that it lacked jurisdiction because the Acupuncture Board had not exhausted available administrative remedies under North Carolina's Administrative Procedure Act, including sections 150B-4 and 150B- 20. N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners, 2016 NCBC LEXIS 33, at *24 ( N.C. Super. Ct. Apr. 26, 2016) (hereinafter, "NC Acupuncture F).

4. The Acupuncture Board's request draws on the history of the parties' dispute about the regulation of dry needling. In 2002, the Physical Therapy Board, as reflected in its newsletters for licensees, took the position that dry needling was a form of acupuncture and outside the scope of practice of physical therapists. (R. at 233.) The Physical Therapy Board revised its view eight years later and issued a position statement in September 2010 concluding that dry needling is within the scope of practice of physical therapists. (R. at 297-99.)

5. In response, the Acupuncture Board sought a formal Attorney General Opinion addressing whether dry needling is within the scope of practice of physical therapists. In response, the Attorney General's office issued an advisory letter (the "Advisory Letter") on December 1, 2011. The Advisory Letter took the position that dry needling is distinct from acupuncture and that it is within the Physical Therapy Board's power to determine whether dry needling falls within the scope of practice of physical therapists. (R. at 267.) The Advisory Letter cautioned that, in order to fulfill the Board's statutory mandate to safeguard the public health, the Physical Therapy Board should adopt administrative rules and standards to ensure that dry needling only be practiced by physical therapists with a requisite level of skill and competence. (R. at 267-68.)

6. In 2014, the Physical Therapy Board undertook rulemaking procedures and proposed a rule setting training standards for dry needling. (R. at 237.) The proposed rule defined dry needling as "a technique using the insertion of a solid filament needle, without medication, into or through the skin to treat various impairments, " and would have required at least fifty-four additional hours of training for physical therapists who wished to perform dry needling. (R. at 237.) The Physical Therapy Board submitted the proposed rule to the Rules Review Commission in accordance with N.C. Gen. Stat. § 150B-21.8. Representatives of the Acupuncture Board opposed the proposed rule in writing and in person at a January 15, 2015 hearing. (R. at 307.) At the hearing, the Rules Review Commission orally voted to object to the proposed rule. (R. at 2075.) In a follow-up letter dated January 26, 2015, the Rules Review Commission memorialized the basis for its objection: "The Commission objected to this Rule based upon lack of statutory authority. [The Rule], as adopted by the agency, addresses a matter not within the authority delegated to the agency by the General Assembly, as required by [ N.C. Gen. Stat. §] 150B-21.9(a)." (R. at 238.)

7. The Physical Therapy Board did not pursue its statutory rights to challenge the Rules Review Commission's objection to the proposed rule. Instead, the Physical Therapy Board posted on its website a revised position statement on January 16, 2015 (the "Revised Position Statement"), the day after the Rules Review Commission voted to object to the proposed rule. The Revised Position Statement expresses the Physical Therapy Board's view that the Attorney General's Advisory Letter still stands. The Revised Position Statement states the Physical Therapy Board's conclusion that "physical therapists can continue to perform dry needling so long as they possess the requisite education and training required by N.C. G.S. § 90-270.24(4), but there are no regulations to set the specific requirements for engaging in dry needling." (R. at 239.)

8. The Acupuncture Board filed suit to enjoin the Physical Therapy Board from instructing physical therapists that they could practice dry needling, and the Court in NC Acupuncture I dismissed the complaint on April 26, 2016. On May 2, 2016, the Acupuncture Board requested a declaratory ruling from the Physical Therapy Board pursuant to N.C. Gen. Stat. § 150B-4. (R. at 1.) The Acupuncture Board requested a ruling "that the [Physical Therapy] Board publicly declare that 'dry needling' is not within the scope of the Physical Therapy Act and withdraw the position statement of January 16, 2015 .. . because it is in conflict with the determination of the Rules Review Commission." (R. at 1.)

B. The Declaratory Ruling and the Petition for Judicial Review

9. The Physical Therapy Board issued the Declaratory Ruling on June 27, 2016. The Declaratory Ruling summarizes the conclusions of the Physical Therapy Board that:

• the scope of physical therapy under North Carolina law includes dry needling;

• the scope of health professions is dynamic, not static;

• dry needling is distinct from acupuncture;

• the Acupuncture Board's request fails to recognize that health professions are allowed to have overlapping scopes of practice;

• there is no conflict between this ruling and the Rules Review Commission's January 15, 2015 objection to the Board's proposed rule on additional training requirements for dry needling;

• North Carolina public policy favors patient choice in health care; and

• the Acupuncture Board's desired ruling would violate the anti-monopoly provision in the North Carolina Constitution.

(Notice of Designation Ex. E., hereinafter "Declaratory Ruling, " 3.)

10. The Acupuncture Board exercised its right under North Carolina's Administrative Procedure Act, N.C. Gen. Stat. § 150B-1 et seq., to seek judicial review of the Declaratory Ruling by filing the Petition on July 27, 2016. Pursuant to N.C. Gen. Stat. § 150B-46, the Petition catalogues the Acupuncture Board's exceptions to the Declaratory Ruling and states its requested relief. The Acupuncture Board's Petition sets forth sixteen exceptions to the Declaratory Ruling, which the Acupuncture Board's opening brief in support of the Petition distills into two arguments: (i) that the Physical Therapy Board is bound by the decision of the Rules Review Commission in issuing its Declaratory Ruling and Revised Position Statement; and (ii) that the Physical Therapy Board wrongly concluded that dry needling falls within the statutory scope of physical therapy. The Acupuncture Board seeks a final judgment that reverses the Declaratory Ruling and holds that dry needling is acupuncture and not within the scope of physical therapy. (Pet. Judical Review, Prayer for Relief.) The Court held a hearing on the Petition, and the matter is now ripe for decision.

II. STANDARD OF REVIEW

11. In reviewing a final agency decision, the Court acts in the capacity of an appellate court, and the standard of review depends on the issue presented. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002). N.C. Gen. Stat. § 150B-51(b) specifically addresses a trial court's authority in this context and provides as follows:

The court reviewing a final [agency] decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if

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