Antitrust Law Daily Wrap Up, ANTITRUST NEWS: State acupuncture board charged with excluding physical therapists from muscle pain therapy, (Oct 8, 2015)

By Linda O’Brien, J.D., LL.M.

The state licensing board for the practice of acupuncture and several board members engaged in anticompetitive conduct by using their government power to exclude and deter physical therapists from performing a certain muscle pain relief technique known as “dry needling,” according to a complaint filed in the federal district court in Greensboro, North Carolina (Henry v. North Carolina Acupuncture Licensing Board, October 7, 2015).

The North Carolina Acupuncture Licensing Board is the state agency in North Carolina that regulates the practice of acupuncture. The Acupuncture Board is comprised of six members, the majority of which are licensed acupuncturists. Elizabeth Henry, Aart Schulenklopper, Eileen Carter, and Shondell Jones are licensed physical therapists in North Carolina.

According to the complaint, physical therapists are licensed, highly trained health care professionals who use medically tested methods to maintain, restore, and improve patients’ movement, activity, and health. One of the many issues that physical therapists treat is myofascial trigger point pain—pain arising from one or more hyper-irritable spots in skeletal muscle associated with hypersensitive palpable nodules and taut bands. A commonly used intervention for treating myofascial trigger point pain is intramuscular manual therapy, generally referred to as “dry needling.” During dry needling, physical therapists insert needles into trigger points to relieve patients’ pain or dysfunction.

In December 2010, the Physical Therapy Board, the state regulatory agency charged with regulating physical therapists, determined that dry needling was within the scope of practice of physical therapy. After the Acupuncture Board requested an advisory opinion, the North Carolina Attorney General opined that the Physical Therapy Board had the authority to determine that dry needling was within the scope of the practice of physical therapy and the authority to use acupuncture needles for therapeutic purposes was not necessarily reserved exclusively for licensed acupuncturists, the complaint alleges.

The complaint states that in 2010 the Association of Acupuncture and Oriental Medicine began pressuring the Acupuncture Board to use its government power to suppress competition from physical therapists performing dry needling. In response, the Acupuncture Board published a position paper on dry needling, which set forth the Board’s view that dry needling could be defined as the practice of acupuncture. The paper also stated that physical therapists performing dry needling were engaging in a “misrepresentation of the skill set included in the scope of practice of physical therapy” in the state and confusing the public as to who may provide acupuncture safely. The publication was shared with consumers through social media and blogs in an effort to persuade them not to seek dry needling services from physical therapists.

The complaint also alleges that in November 2012, at the urging of the Association, the Acupuncture Board issued cease-and-desist letters to twelve physical therapists who advertised dry needling on their websites to cease their “unauthorized practice.” Said letters were intended to intimidate and deter those physical therapists from entering or remaining in the market for dry needling services. After issuing the letters, the Acupuncture Board revised and republished the position paper in December 2014 to state that physical therapists offering dry needling “may pose a threat to public safety.”

The Acupuncture Board continued its efforts to exclude physical therapists from providing dry needling by actively raising money to fund those efforts and by filing a complaint against the Physical Therapy Board to enjoin it from advising its licensees that dry needling is within the scope of physical therapy practice.

The plaintiffs assert claims for violations of Section 1 of the Sherman Act and substantive Due Process. The action seeks injunctive relief, treble damages, pre- judgment interest, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 1:15-cv-00831-WO-LPA.

Attorneys: Andrew H. Erteschik, Caroline P. Mackie, and John Michael Durnovich (Poyner Spruill LLP) for Elizabeth Henry, Aart Schulenklopper, Eileen Carter, Shondell Jones, Jan Burkhard-Catlin, and Lindsay Purrington.

Companies: North Carolina Acupuncture Licensing Board

News: Antitrust NorthCarolinaNews