New ground on dry needling has been broken in North Carolina. The North Carolina Acupuncture Board (NCALB) has sued the North Carolina Board of Physical Therapy Examiners (NCBPTE) for “telling physical therapists they can perform dry needling despite a ruling from the North Carolina Rules Review Commission that ‘dry needling’ is outside the scope of practice of physical therapists in North Carolina.” The NCALB is not looking to recover any monetary damages. NCALB wants affirmation of what has already been endorsed by the Rules Review Commission in North Carolina: “We are asking the court to confirm the practices known as dry needling, trigger point therapy, or intramuscular stimulation or therapy being performed by physical therapists in North Carolina are acupuncture.”
Review of Facts. In 2014 the NCBPTE wrote its own dry needling rule establishing that PTs in North Carolina would be able to do dry needling with 54 hours of training. The group set to conduct this training is MyoPain Seminars which is owned and operated by leading DN author Jan Dammerholt. Incidentally, there are ~50 individuals listed at the MyoPain seminars website. Each one has an impressive background in manual therapy. Not one lists any training in acupuncture. What can we learn from that observation? This group of PTs is not concerned with what the acupuncturists have to say about putting needles in people. Cissy Majebe describes this lack of concern for adequate training as a public safety concern. Can she win with this strategy?
The North Carolina Rules Review Commission (NCRRC) found on January 15, 2015 that the NCBPTE lacked statutory authority to make such a rule. On January 16 – the next day – the NCBPTE posted a note on their website advising PTs to ignore the NCRRC decision. What can we learn from that decision? PTs in North Carolina are not concerned about the ability of LAcs in North Carolina to protect their scope of practice. There are ~500 LAcs in North Carolina. I wonder how many are up to speed on this lawsuit?
Physicians and chiropractors are commonly exempted from state acupuncture practice acts. When laws were being drawn up across states 30 years back, our “leaders” in the 80s and 90s believed exemptons were the cost to play. You may be surprised to learn that Physical Therapists were not exempted as commonly as were MDs, dentists, and veterenarians. In fact, only one state with an acupuncture practice act exempts PTs. That state is Connecticut. Who were those “old school” leaders in such a hurry to hamstring this profession?
In order to successfully expand their scope of practice to include acupuncture – I mean dry needling – PTs will have to stake a claim in a few smaller states before undertaking a national campaign. That will take money and organizational person power. There are more than 200,000 PTs in the USA. There are between 25,000 and 30,000 LAcs in the USA. There are about 5,600 PTs in NC and 500 LAcs. Odds look good for PTs. How can acupuncturists compete? How about organized labor as our ally?
In spite of their overwhelming numbers and $$, the PTs are facing a strong acupuncturist leader in North Carolina; Cissy Majebe. She has a history of fighting legislative battles on behalf of all acupuncturists in her state. Cissy was investigated in 1990 for practicing medicine without a license. Her case resulted in the creation of the NCALB three years later. She was the first acupuncture baord’s first Chair. She lost the battle but won the war.
Always More to the Story. This fight began as a battle between dentists and “nondentists” in NC. The issue was who would be allowed to whiten teeth. The NC dental board had issued cease-and-desist letters to the non-dentists to stop their teeth whitening practice. That fight was settled in 2013 when the US Supreme Court upheld the rights of “non-dentists” to charge a lower fee for teeth whitening. “Because a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met.” The “requirement not met” includes the stipulation that teeth whitening is not included in the NC dental practice act. We can agree whitening teeth is not in the same basket as sticking needles in people.
A group of North Carolina PTs has sued the NCALB for sending cease-and-desist letters to PTs for practicing dry needling. That’s right. This time the LAcs are playing the dentists role and sending the nastygrams. The PTs suit stood on a 2011 opinion by the NC Attorney General that acupuncture and dry needling are not the same thing. If that is true then there goes the restraint of trade argument. The PT suit also rests on another 2015 Supreme Court decision that “state professional regulatory boards are not inherently shielded from antitrust challenge.” You can read the NCPTA side here.
Observations and Conclusions. It is a prima facie matter that acupuncture and dry needling are NOT the same thing. Or is it? There are other questions. When larger issues such as expanding scope of practice are in play then a struggle is sure to follow. This is where professional leadership makes a big difference. Assess the players first. Have a sound plan. Settle out of court if at all possible.
Leadership is important in every group enterprise. Effective leaders become the voice of an organization or, on a grander scale, a movement. Missy Majebe has been a very effective voice in her home state – for 25 years! – by (i) defending the acupuncture scope of practice with regards to dry needling; (ii) having the vision to see beyond the next bend in the road (it is good to have some road experience); and (iii) creating the organizational capacity to build a movement that shares her point of view. She has been in this fight for more than two decades. She knows how to use the legislative process. She knows how to work with the other side. She knows how to win the struggle even if it means losing a battle or two.
Leadership is on the table again in the world of acupuncture. Who is available to play the role of Missy Majebe on the national stage? Who or what org has the vision and the strategic plan to navigate this “sticky” issue? Leadership has been and remains a long standing problem for our profession. The leadership fights are foolish. They are the sign of an immature and under-developed profession.
“A house divided against itself cannot stand.” What is the Guild agenda? What are our priorities? Cissy provides an example of how to answer these questions in her home state. Like Cissy, the Guild is directly involved legislatively in California, New Jersey and Connecticut. We are joining with CAOMA to lead a national effort to support HR3849. We rely on our brothers and sisters in OPEIU and the AFL-CIO for resources they are able to share with us.
“I don’t like that person. I must get to know him better.” I expect Cissy will end up working with the PTs. They are stronger and better financed. She has the experience and the know-how in North Carolina legislative and regulatory matters. Both hold good trading cards. Politics is about winning the truce. When will acupuncture understand this?