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    Thursday, May 05, 2016

  Court Dismisses Lawsuit Filed by NC Acupuncture Licensing Board

  
  Advocates for North Carolina physical therapists (PTs) have scored a victory by way of a superior court, which dismissed a lawsuit brought by the North Carolina Acupuncture Licensing Board (NCALB) against the North Carolina Board of Physical Therapy Examiners (NCBPTE), several PTs, and a physical therapy practice over the issue of dry needling by PTs.
  In September 2015, NCALB filed the lawsuit against NCBPTE, asking the Wake County Superior Court to declare that dry needling by PTs is the unlawful practice of acupuncture, and to require NCBPTE to advise its licensees that dry needling is outside the scope of physical therapist practice. The acupuncture board also asked the court authorize it to send cease and desist letters to PTs who practice dry needling and to sue the PTs who refuse to comply.
  On April 26, Judge Louis Bledsoe III dismissed the suit largely on jurisdictional grounds. "There is no reason to stop North Carolina patients from receiving dry-needling treatment," said North Carolina Physical Therapy Association (NCPTA) President C. David Edwards, PT, DPT, CCCE, in a statement posted to the NCPTA website. "This is especially true when the ones who are trying to eliminate dry needling are doing it to protect their power in the marketplace."
  The dismissal of NCALB’s case against the PT board is not the end of the fight over dry needling in the state. A second lawsuit filed in early October challenging NCALB’s efforts to prevent PTs from engaging in dry needling is still pending in US District Court. That lawsuit, supported by NCPTA, argues that NCALB is violating antitrust law and due process rights in its actions to prevent PTs from practicing the skilled intervention.
  The plaintiffs in the case, titled Henry v North Carolina Acupuncture Licensing Board, filed their lawsuit against NCALB after several years of efforts by the acupuncture board to shut down dry needling by physical therapists. NCALB engaged in various actions to prevent PTs from performing dry needling, including the issuing of "cease and desist" letters to PTs and clinics across the state claiming that the PTs practicing dry needling were illegally engaged in the practice of acupuncture, a Class 1 misdemeanor.
  The Henry lawsuit has legal support in a 2015 decision by the US Supreme Court holding that state licensing boards controlled by market participants, such as NCALB, are not exempt from antitrust claims unless their conduct is actively supervised by the state. The NCPTA lawsuit is the first in the country to bring this type of antitrust violation claim on behalf of PTs since the Supreme Court decision.
  NCPTA set up a "Go Fund Me" page to help fundraising efforts. APTA is working collaboratively with the chapter, and is providing support as NCPTA pursues the legal action.
  Dry needling has been discussed in several states, most of which have included the intervention as part of the PT scope of practice. APTA has created a webpage with resources on the topic, and the association's Learning Center offers courses on dry needling and clinical decision-making and background evidence for dry needling.