(Henry v. North Carolina Acupuncture Licensing Board)
The issue of whether physical therapists may use needles in their practice has been debated at the state level for a number of years. In 2011, the North Carolina attorney general, responding to a request from the acupuncture board, produced an advisory opinion declaring that the state’s physical therapy board had the authority to declare dry needling within the scope of practice for physical therapists.
Despite that opinion, in 2012 the acupuncture board posted a document on its website in which it claimed that physical therapists’ practice of dry needling was endangering the public, potentially subjecting them to legal action.
In 2013, the board escalated the conflict by sending cease-and-desist-letters to physical therapists using dry needling. In 2015, the board brought suit against the state’s physical therapy board, seeking to have a court declare that dry needling done by physical therapists constituted the unlawful practice of acupuncture.
The group of physical therapists and other plaintiffs then filed their suit challenging the board’s attempts to halt the practice by non-acupuncturists, arguing that its actions were anticompetitive and a violation of their constitutional right to equal protection.
In response, the board defendants argued that any legal action concerning the federal anticompetitive claims should be delayed until the resolution of their earlier state court case on the substantive issue of whether physical therapists could engage in the practice.
However, the court noted that the two cases considered different questions of law—the state case asked a court to determine the scope of practice, while the federal case claimed anticompetitive behavior in violation of federal statutes— and that it was entirely possible that the case would continue even if the state lawsuit determined that dry needling was acupuncture. Assessing the other elements of the plaintiffs’ claim, Judge William Osteen held that the physical therapists had made sufficient arguments to protect the case from dismissal.
Osteen did reject the plaintiffs’ equal protection claims, holding that the plaintiffs did not provide sufficient “support for their contention that they have a Constitutional right to perform dry needling.”