371 N.C. 697
N.C.2018Background
- The NC Acupuncture Licensing Board sought a declaratory ruling that “dry needling” is not within the scope of the Physical Therapy Act after a long dispute over whether dry needling is acupuncture.
- Physical Therapy Board (PT Board) previously shifted from a 2002 position (dry needling = acupuncture) to a 2010 position treating dry needling as within physical therapy; Attorney General staff advised it is distinct from acupuncture.
- PT Board attempted to adopt a formal rule regulating dry needling; the Rules Review Commission objected for lack of statutory authority, so the Board posted policy guidance permitting PTs to perform dry needling with requisite training.
- Acupuncture Board filed suit but dismissed for failure to exhaust administrative remedies; it then requested the PT Board’s declaratory ruling reaffirming dry needling is physical therapy.
- The Business Court affirmed the PT Board’s 27 June 2016 declaratory ruling; the NC Supreme Court reviewed de novo whether the Board exceeded statutory authority or erred in law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does dry needling fall within the statutory definition of "physical therapy"? | Dry needling is acupuncture and thus outside PT scope; only Acupuncture Board may regulate it. | Dry needling is a rehabilitative physical procedure taught/performed in PT education/practice and fits the broad statutory definition. | Held: Dry needling falls within the scope of physical therapy. |
| Was the PT Board acting beyond its statutory authority by so ruling? | The Board exceeded authority and could not expand the licensed scope without rulemaking. | The Board has broad statutory authority to interpret and regulate practices commensurate with PT education/training. | Held: Board action consistent with enabling statutes and within authority. |
| Did the Rules Review Commission’s objection bar the Board’s policy statements or declaratory ruling? | RRC’s objection to a proposed rule shows the Board lacked authority and cannot continue the policy. | RRC reviews procedural/authority criteria for rules; nonbinding policy/declaratory rulings interpreting scope remain permissible. | Held: RRC objection did not invalidate the Board’s interpretive statements or declaratory ruling. |
| Does treating dry needling as PT unlawfully usurp or criminalize acupuncture or constitute forbidden expansion of licensing scope? | Dry needling is acupuncture (or surgery) and the PT Board cannot regulate or criminalize another profession’s practice. | The Board’s interpretation does not enlarge the class required to hold a PT license; it regulates how licensees may practice. | Held: No unlawful expansion or usurpation; statutes strictly construing acupuncture do not preclude concurrent regulation where statutes are ambiguous. |
Key Cases Cited
- Wetherington v. N.C. Dep’t of Pub. Safety, 368 N.C. 583 (discusses standards for judicial review of agency decisions)
- High Rock Lake Partners v. N.C. Dep’t of Transp., 366 N.C. 315 (gives weight to agency interpretation of enabling statutes while courts determine statutory limits)
- N.C. Sav. & Loan League v. N.C. Credit Union Comm’n, 302 N.C. 458 (factors for deference to administrative interpretations; Skidmore framework)
- Skidmore v. Swift & Co., 323 U.S. 134 (framework for persuasive weight of agency interpretations)
- Morrell ex rel. Long v. Flaherty, 338 N.C. 230 (agency interpretation of its own rule given controlling weight when consistent)
- Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (deference principles regarding agency interpretation)
- Trayford v. N.C. Psychology Bd., 360 N.C. 396 (concurrent/regulatory boundaries among licensing boards)