N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners , 371 N.C. 697 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 380A17
Filed 7 December 2018
NORTH CAROLINA ACUPUNCTURE LICENSING BOARD
v.
NORTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS
Appeal pursuant to N.C.G.S. § 7A-27(a)(2) from an order and opinion on
petition for judicial review dated 2 August 2017 entered by Judge Louis A. Bledsoe,
III, Special Superior Court Judge for Complex Business Cases, in Superior Court,
Wake County, after the case was designated a mandatory complex business case by
the Chief Justice pursuant to N.C.G.S. § 7A-45.4(b). Heard in the Supreme Court on
18 April 2018.
Everett Gaskins Hancock LLP, by E.D. Gaskins, Jr., Katherine A. King, and
James M. Hash; and Stevens Martin Vaughn & Tadych, PLLC, by Michael J.
Tadych, for plaintiff-appellant.
Ellis & Winters LLP, by Stephen D. Feldman, James M. Weiss, and Troy D.
Shelton, for defendant-appellee.
JACKSON, Justice.
In this case we must determine whether the Business Court erred by affirming
a declaratory ruling issued by the North Carolina Board of Physical Therapy
Examiners (Physical Therapy Board) pursuant to N.C.G.S. § 150B-4 determining that
dry needling constitutes physical therapy. Because we conclude that the Physical
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Therapy Board’s decision was consistent with its enabling statutes and
administrative rules, we affirm the final judgment of the Business Court that upheld
the Physical Therapy Board’s declaratory ruling.
In May 2016, the North Carolina Acupuncture Licensing Board (Acupuncture
Board) requested a declaratory ruling from the Physical Therapy Board “that ‘dry
needling’ is not within the scope of the Physical Therapy Act,” and further requesting
that Board to withdraw its “[contradictory] position statement . . . because it is in
conflict with the determination of the Rules Review Commission . . . .” Both the
Acupuncture Board and the Physical Therapy Board are administrative agencies
created by the state legislature, and both are authorized to adopt rules and
regulations governing the licensing and performance of their respective occupations.
This case arises from a nearly decade-long debate over whether “dry needling” is
confined to the practice of acupuncture, thus placing dry needling within the
exclusive regulatory purview of the Acupuncture Board. As stated in the record on
appeal, the Acupuncture Board defines dry needling as “the insertion of solid filament
needles into specific trigger points in a patient’s muscle tissue to relieve pain.”
The history of the regulation of dry needling is instructive. In 2002 the
Physical Therapy Board wrote in its newsletter that dry needling “is a form of
acupuncture” and should not be performed by physical therapists who are not also
licensed by the Acupuncture Board. Subsequently, in 2010 the Physical Therapy
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Board, referencing new scientific studies and practice developments, reconsidered
this position and issued an informal position statement concluding that dry needling
falls within the practice of physical therapy because it involves “intramuscular
manual therapy.” The Acupuncture Board disagreed with this conclusion and in 2011
requested an opinion from the Attorney General’s office whether dry needling fell
within the scope of physical therapy. In lieu of a formal opinion, the Attorney General
issued an Advisory Letter taking the position that dry needling is “distinct from
acupuncture” and that the Physical Therapy Board must therefore regulate the
practice in the interest of public safety. Accordingly, the Physical Therapy Board
proposed a formal rule, with an effective date of 1 February 2015, regulating the
practice of dry needling by physical therapists. In compliance with N.C.G.S. § 150B-
21.8, the Physical Therapy Board submitted the rule to the Rules Review Commission
for its consideration. During the public hearing on the proposed rule, several
acupuncturists opposed it, and the Commission decided to object to the rule based
upon a lack of statutory authority to adopt it. The Physical Therapy Board did not
appeal the Commission’s decision but instead promptly posted a notice on its website
indicating physical therapists could continue to practice dry needling in accordance
with existing standards of competence consistent with its 2010 position statement.
In 2015 the Acupuncture Board filed an action against the Physical Therapy Board
in Superior Court, Wake County seeking to enjoin the practice of dry needling by
physical therapists. That action was designated as a mandatory complex business
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case and assigned to the Business Court, which dismissed the 2015 complaint based
upon the Acupuncture Board’s failure to exhaust its administrative remedies before
filing the action in superior court.
Thereafter, in order to exhaust its administrative remedies the Acupuncture
Board requested the declaratory ruling from the Physical Therapy Board that is at
issue in this case. In its 27 June 2016 declaratory ruling, the Physical Therapy Board
“reaffirm[ed] the conclusion that dry needling constitutes physical therapy” pursuant
to the relevant statutes and Board rules. The Acupuncture Board appealed this
ruling, and the Business Court affirmed the Physical Therapy Board’s declaratory
ruling. The Acupuncture Board then appealed to this Court.
In this appeal the Acupuncture Board argues that dry needling is part of the
practice of acupuncture rather than physical therapy. Therefore, it argues, the
Physical Therapy Board erred in determining dry needling is within the scope of
physical therapy. We disagree.
A decision made in a declaratory ruling by an administrative agency is subject
to judicial review. N.C.G.S. §§ 150B-4, -43 to -52 (2017). “On judicial review of an
administrative agency’s final decision, the substantive nature of each assignment of
error dictates the standard of review.” Wetherington v. N.C. Dep’t of Pub. Safety, 368
N.C. 583, 590, 780 S.E.2d 543, 546 (2015) (quoting N.C. Dep’t of Env’t & Nat. Res. v.
Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004)). In its petition for judicial
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review, the Acupuncture Board claimed that the Physical Therapy Board’s decision
was made in excess of statutory authority, rendered upon unlawful procedure, and
affected by other errors of law. Pursuant to N.C.G.S. § 150B-51(c), all three of these
types of asserted errors are reviewed de novo. “Under the de novo standard of review,
the trial court ‘consider[s] the matter anew[ ] and freely substitutes its own judgment
for the agency’s.’ ” Wetherington, 368 N.C. at 590, 780 S.E.2d at 547 (alterations in
original) (quoting Carroll, 358 N.C. at 660, 599 S.E.2d at 895).
While “ ‘[t]he responsibility for determining the limits of statutory grants of
authority to an administrative agency is a judicial function for the courts to
perform,’ ” when “making this determination we apply the enabling legislation
practically so that the agency’s powers include all those the General Assembly
intended the agency to exercise.” High Rock Lake Partners v. N.C. Dep't of Transp.,
366 N.C. 315, 319, 735 S.E.2d 300, 303 (2012) (internal citations omitted) (quoting In
re Broad & Gales Creek Cmty. Ass’n, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980)).
This Court gives “great weight to an agency’s interpretation of a statute it is charged
with administering; however, ‘an agency’s interpretation is not binding.’ ” Id. at 319,
735 S.E.2d at 303 ( internal citations omitted) (quoting Lee v. Gore, 365 N.C. 227, 229-
30, 717 S.E.2d 359, 358 (2011)). “The weight of such [an interpretation] in a
particular case will depend upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to control.” N.C.
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Sav. & Loan League v. N.C. Credit Union Comm’n, 302 N.C. 458, 466, 276 S.E.2d 404,
410 (1981) (alteration in original) (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140, 65 S. Ct. 161, 164 (1944)). We will not “follow an administrative interpretation
in direct conflict with the clear intent and purpose of the act under consideration.”
High Rock Lake Partners, 366 N.C. at 319, 735 S.E.2d at 303 (quoting Watson Indus.
v. Shaw, 235 N.C. 203, 211, 69 S.E.2d 505, 511 (1952)). This Court’s “primary task
in construing a statute is to effectuate the intent of the legislature.” Watkins v. N.C.
State Bd. of Dental Exam’rs, 358 N.C. 190, 207, 593 S.E.2d 764, 774 (2004) (first citing
State ex rel. Comm'r of Ins. v. N.C. Rate Bureau, 300 N.C. 381, 399, 269 S.E.2d 547,
561 (1980); and then citing In re Beatty, 286 N.C. 226, 229, 210 S.E.2d 193, 195
(1974)). We previously have identified the “ ‘best indicia of . . . legislative purpose’
to be ‘the language of the statute, the spirit of the act, and what the act seeks to
accomplish.’ ” Id. at 207, 593 S.E.2d at 774 (ellipsis in original) (quoting State ex rel.
Comm'r of Ins., 300 N.C. at 399, 269 S.E.2d at 561) (citation omitted).
With respect to the scope of physical therapy, the General Assembly has stated:
“Physical therapy” means the evaluation or treatment of
any person by the use of physical, chemical, or other
properties of heat, light, water, electricity, sound, massage,
or therapeutic exercise, or other rehabilitative procedures,
with or without assistive devices, for the purposes of
preventing, correcting, or alleviating a physical or mental
disability. Physical therapy includes the performance of
specialized tests of neuromuscular function,
administration of specialized therapeutic procedures,
interpretation and implementation of referrals from
licensed medical doctors or dentists, and establishment
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and modification of physical therapy programs for patients.
Evaluation and treatment of patients may involve physical
measures, methods, or procedures as are found
commensurate with physical therapy education and
training and generally or specifically authorized by
regulations of the Board. Physical therapy education and
training shall include study of the skeletal manifestations
of systemic disease. Physical therapy does not include the
application of roentgen rays or radioactive materials,
surgery, manipulation of the spine unless prescribed by a
physician licensed to practice medicine in North Carolina,
or medical diagnosis of disease.
N.C.G.S. § 90-270.90(4) (2017) (emphasis added).
Here, as shown by the plain language of the statute, the General Assembly
defined the practice of physical therapy broadly and left open the opportunity for the
Board to further define physical therapy “generally or specifically . . . by regulations.”
Id. It is clear the intent of the legislature was to allow for the evolution of treatments
used in the practice of physical therapy. Specifically, the language in the definition
encompasses what is taught in educational programs and training as appropriate for
regulation by the Board. This language does not limit the Board’s authority to adopt
rules to accomplish this purpose.1 The only prohibitions set forth by the General
Assembly are explicit: “Physical therapy does not include the application of roentgen
rays or radioactive materials, surgery,2 manipulation of the spine unless prescribed
1 N.C.G.S. § 150B-2(8a) (2017) defines a “[r]ule” as “any agency regulation, standard,
or statement of general applicability that implements or interprets an enactment of the
General Assembly . . . .”
2 The Acupuncture Board attempts to argue that dry needling qualifies as “surgery”
based upon a definition promulgated by the North Carolina Medical Society; however, the
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by a physician licensed to practice medicine in North Carolina, or medical diagnosis
of disease.” Id. The General Assembly gave the Physical Therapy Board the power to
“[a]dopt, amend, or repeal any rules or regulations necessary to carry out the
purposes of this Article and the duties and responsibilities of the Board.” N.C.G.S. §
90-270.92(9) (2017). The General Assembly specifically expressed that the “powers
and duties enumerated [for the Board] are granted for the purpose of enabling the
Board to safeguard the public health, safety and welfare against unqualified or
incompetent practitioners of physical therapy, and are to be liberally construed to
accomplish this objective.” Id. § 90-270.92 (2017). (emphasis added). This language
vests the Board with broad authority to regulate the practice of physical therapy and
adopt administrative rules and regulations governing the profession. Although not
dispositive, the Physical Therapy Board’s construction of the statutory term “physical
therapy” so as to encompass dry needling is persuasive authority for this Court.
Here the Physical Therapy Board determined that dry needling falls within
the statutory definition of physical therapy. Specifically, the Physical Therapy Board
concluded that “dry needling is a treatment that uses physical or rehabilitative
Medical Society, a voluntary membership association, has no authority to define or regulate
surgery. Rather, the Medical Board, which was established pursuant to N.C.G.S. § 90-2, is
charged with the authority “to regulate the practice of medicine and surgery for the benefit
and protection of the people of North Carolina.” For purposes of our review in the instant
case, neither the Medical Board nor the Medical Society have asserted that they play a role
in governing the practice of physical therapy. Therefore, we are not persuaded by this
argument.
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procedures, with assistive devices, for the purpose of correcting or alleviating
myofascial pain, a physical disability.” In determining the weight to give this
interpretation, the Court considers: “[1] the thoroughness evident in its
consideration, [2] the validity of its reasoning, [3] its consistency with earlier and
later pronouncements, and [4] all those factors which give it power to persuade.” N.C.
Sav. & Loan League, 302 N.C. at 466, 276 S.E.2d at 410 (quoting Skidmore, 323 U.S.
at 140, 65 S. Ct. at 164).
The Physical Therapy Board reached its conclusion in a detailed, forty-nine
page declaratory ruling that included references to numerous scientific articles,
reports, and books describing the history, efficacy, and safety of dry needling. In
making this determination, the Physical Therapy Board looked not only to North
Carolina law and experience but also to the conclusions reached by similar
administrative agencies in other states. The Physical Therapy Board applied its
experience and expertise in construing the enabling statute and rules adopted by the
Board to determine that dry needling falls within the statutory definition of physical
therapy. Given the Physical Therapy Board’s extensive review of a variety of
substantial studies and other evidence in conjunction with the involvement of
technical and specialized terms specific to physical therapy, we conclude that the
Board’s reasoning is sound. The Physical Therapy Board’s determination also is
consistent with its earlier statements, specifically in 2010, that were confirmed in
2011 by the North Carolina Attorney General’s staff, and again in 2015 via the
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Board’s publication clarifying that physical therapists “can continue to perform dry
needling so long as they possess the requisite education and training required by
N.C.G.S. § 90-270.24(4) [2015].”3
The posture of this case is not one we typically see when reviewing a dispute
concerning administrative law and an occupational licensing board’s interpretation
of the statutes governing its profession. Ordinarily, an administrative agency would
either promulgate a rule that would undergo notice and comment rulemaking, or the
agency could respond to a request for declaratory ruling. Chapter 150B clearly covers
both of these scenarios and does not provide that either path is exclusive. Ultimately,
both are subject to exhaustion of administrative remedies and to judicial review.
Here, we note that the Physical Therapy Board initially chose to exercise its
authority to adopt a rule stating that: “Physical therapy is presumed to include any
acts, tests, procedures, modalities, treatments, or interventions that are routinely
taught in educational programs or in continuing education programs for physical
therapists and are routinely performed in practice settings.” 21 NCAC 48C .0101(a)
(2018). Part of the Physical Therapy Board’s rationale for its declaratory ruling was
that relevant literature and other evidence showed that dry needling is being taught
in educational and continuing education programs for physical therapists and is
3 Subsection 90-270.24(4), defining “physical therapy,” was later recodified as
N.C.G.S. § 90-270.90(4) (2017).
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routinely performed in practice settings. Specifically, the Physical Therapy Board
repeatedly pointed out that eighty-six percent of the knowledge requirements for
competency in dry needling are taught in entry-level physical therapy programs, and
the additional competencies are obtained through continuing education programs for
licensed physical therapists. Because of these findings, the Physical Therapy Board
applied its rule stating that “[a] physical therapist who employs . . . procedures . . . in
which professional training has been received through education or experience is
considered to be engaged in the practice of physical therapy” and concluded that dry
needling falls within the practice of physical therapy. Id. § .0101(b) (2018). Because
the Physical Therapy Board’s interpretation of its own rule is consistent with both
the statute and the language of the rule, the Board’s interpretation “must be given
‘controlling weight.’ ” Morrell ex rel. Long v. Flaherty, 338 N.C. 230, 238, 449 S.E.2d
175, 180 (1994) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114
S. Ct. 2381, 2386 (1994)), cert. denied, 515 U.S. 1122, 115 S. Ct. 2278 (1995)).
The Acupuncture Board also argues that the Physical Therapy Board has
inappropriately used a policy statement to usurp the authority of the Rules Review
Commission, which objected to a proposed rule by the Physical Therapy Board
regarding training requirements for the practice of dry needling. However, the Rules
Review Commission’s authority over a proposed rule is generally limited to deciding
whether to approve or object to the rule. See N.C.G.S. § 150B-21.10 (2017). In doing
so, the Rules Review Commission does not consider questions relating to the quality
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or efficacy of the proposed rule but rather determines whether a rule meets four
criteria:
(1) It is within the authority delegated to the agency by the General
Assembly.
(2) It is clear and unambiguous.
(3) It is reasonably necessary to implement or interpret an enactment of
the General Assembly, or of Congress, or a regulation of a federal
agency. The Commission shall consider the cumulative effect of all
rules adopted by the agency related to the specific purpose for which the
rule is proposed.
(4) It was adopted in accordance with Part 2 of this Article.
Id. § 150B-21.9(a) (2017). As this Court previously has opined, “[t]he Commission is
tasked only with the responsibility to review [a] Board's rules from a procedural
perspective for clarity and to ensure that the rules are adopted in compliance with
the APA. Such a review does not require special expertise . . . .” N.C. State Bd. of
Educ. v. State, __ N.C. __, __, 814 S.E.2d 54, 65 (2018). “[I]f an agency such as [a]
Board desires to challenge the Commission's exercise of its delineated duties, ‘[w]hen
the Commission returns a permanent rule to an agency . . . the agency may file an
action for declaratory judgment in Wake County Superior Court.’ ” Id. at __, 814
S.E.2d at 65 (third and fourth alterations in original) (quoting N.C.G.S. § 150B-
21.8(d) (2017)). The Commission’s rejection of the Physical Therapy Board’s proposed
rule on required training for the use of dry needling in no way conflicts with or affects
the Physical Therapy Board’s policy statements interpreting the definition of physical
therapy. Both the 2002 and the 2010 policy statements by the Physical Therapy
Board regarding dry needling are “[n]onbinding interpretative statements within the
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delegated authority of an agency that merely define, interpret, or explain the
meaning of a statute or rule.” N.C.G.S. § 150B-2(8a)(c) (2017). As such, they are
necessarily not “statement[s] of general applicability” that would require formal
rulemaking. Id. § 150B-2(8a), see id. § 150B-18 (2017). Therefore, this change in
policy is not forbidden by the Rules Review Commission’s subsequent rejection of a
rule on a related subject.
Additionally, the Acupuncture Board contends that because of the Physical
Therapy Board’s 2002 policy statement excluding dry needling from the practice of
physical therapy, the 2010 policy statement expanded the scope of the practice of
physical therapy in contravention of the Administrative Procedure Act. See id. §
150B-19(2) (2017) (“An agency may not adopt a rule that . . . [e]nlarges the scope of a
profession, occupation, or field of endeavor for which an occupational license is
required.”) This argument misapprehends that provision of the Administrative
Procedure Act. Id. This subsection prevents an agency from expanding the activities
that require a license beyond those identified by the legislature, but the provision
does not relate to how an agency regulates those it licenses. The Physical Therapy
Board’s 2010 policy statement does not expand the class of persons required to be
licensed, but simply indicates that when licensed physical therapists engage in dry
needling, they must comply with the relevant general rules promulgated by the
Physical Therapy Board.
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Finally, the Acupuncture Board also argues that dry needling cannot be part
of the practice of physical therapy because it is acupuncture. We first note that
although the Physical Therapy Board’s observation that dry needling does not employ
acupuncture methods of diagnosis and treatment is persuasive, the Physical Therapy
Board lacks authority or expertise to determine whether a particular practice falls
within the scope of acupuncture. This is because the law prohibiting the
unauthorized practice of acupuncture, like many laws governing the practice of
various occupations and professions, must be strictly construed. See Elliott v. N.C.
Psychology Bd., 348 N.C. 230, 235, 498 S.E.2d 616, 619 (1998) (“Thus, the Psychology
Practice Act should be strictly construed because it is both in derogation of the
common law and penal in nature.”). “Strict construction of statutes requires only that
their application be limited to their express terms . . . .” Turlington v. McLeod, 323
N.C. 591, 594, 374 S.E.2d 394, 397 (1988) (citing Harrison v. Guilford County, 218
N.C. 718, 12 S.E.2d 269 (1940)). As this Court has already affirmed, when there is
ambiguity in the statutory language defining the role of an agency concurrent
authority is assumed. See Trayford v. N.C. Psychology Bd., 360 N.C. 396, 627 S.E.2d
462 (2006), aff’g per curiam 174 N.C. App 188, 619 S.E.2d 862 (2005) (holding that
the Psychology Board could not regulate an individual’s professional counselor
license, regulated by the North Carolina Board of Licensed Professional Counselors,
solely based on the fact he was also licensed as a psychological associate and that the
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Psychology Practice Act, N.C.G.S. § 90-270.4(g) provided for licensees to “comply with
all conditions, requirements, and obligations imposed by [the Board or Act]”).
The Acupuncture Board attempts to distinguish this case from Trayford. It
argues that the Physical Therapy Act explicitly mandates that the Physical Therapy
Board cannot limit the activities of other licensed professionals. See N.C.G.S. § 90-
270.34(b)(1) (2015)4 (“Nothing in this Article shall be construed to prohibit . . . [a]ny
act in the lawful practice of a profession by a person duly licensed in this State . . . .”)
The Acupuncture Board argues that the Acupuncture Act contains no similar
provision, see id. § 90-452 (2017); however, these provisions provide a limitation on
enforcement actions by the covered boards, not a limitation on their areas of
authority. This Court does not determine the outcome of hypothetical enforcement
actions, and “[i]t is no part of the function of the courts to issue advisory opinions.”
Wise v. Harrington Grove Cmty Ass’n, 357 N.C. 396, 408, 584 S.E.2d 731, 740 (2003)
(citing City of Greensboro v. Wall, 247 N.C. 516, 519, 101 S.E.2d 413, 416 (1958)).
Both the Physical Therapy Board’s declaratory ruling and underlying policy
statement are consistent with the statutes and administrative rules that the Board
is charged with interpreting and administering. Therefore, we defer to the Physical
Therapy Board’s interpretations of those same statutes and rules in reaching the
4This provision was recodified as N.C.G.S. § 90-270.101(b)(1) (2017); the quoted
language is the same in both statutes.
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conclusion that dry needling is a part of the practice of physical therapy. Accordingly,
we affirm the decision of the Business Court affirming the Physical Therapy Board’s
declaratory ruling reaffirming that dry needling falls within the scope of physical
therapy in North Carolina.
AFFIRMED.
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