Judge halts “dry needling” suit
Physical therapists can continue to stick it to their patients after challenge by acupuncturists.
The more than 6,000 licensed physical therapists in Colorado can continue to offer “dry needling” as a form of treatment after a Denver judge knocked down a lawsuit by the state’s licensed acupuncturists challenging the practice.
In a tightly written, eight-page decision, Denver District Judge A. Bruce Jones dismissed the lawsuit by the Acupuncture Association of Colorado largely because the group’s challenge of a 2012 rule allowing physical therapists to engage in dry needling comes years too late.
But Jones said even if the association’s challenge to Rule 211 was to be entertained, it would fail because state laws regulating what physical therapists are allowed to do in their practice are loose enough to include dry needling.
“There is sufficient elasticity in the (Physical Therapists Practice Act’s) definition of physical therapy to encompass dry needing,” Bruce wrote in an opinion issued Dec. 12.
Pulling from a 2013 opinion by the state Office of Legislative Legal Services, Bruce added: “The definition … of ‘physical measures, activities and devices’ encompasses mechanical stimulation ‘which can include the kind of stimulation of muscles that the technique of dry needling employs. The use of needles to palpate trigger points can be reasonably seen as the use of a “device” to accomplish ‘mechanical stimulation.’ ”
At issue was a Colorado Physical Therapy Board provision allowing physical therapists to use the same types of needles — known as filiform needles — as acupuncturists use to stimulate what they call “ashi” points. The board issued Rule 211 shortly after it was empaneled following a 25year absence. It’s unclear how many of the state’s licensed physical therapists use dry needling.
The AAC argued that the public could be harmed because physical therapists are allowed to use dry needling with only 46 hours of training while acupuncturists in Colorado must attend 1,905 hours of classes in order to be licensed. The acupuncturists claimed people were being injured by poorly practiced dry needling — which they say is merely a euphemism for what they have done for centuries — and, as a result, made the public more fearful of their own treatments.
There are about 1,440 licensed acupuncturists in Colorado, according to the Department of Regulatory Agencies.
The lawsuit challenged a board decision in January 2017 in which the seven-member panel — five of them licensed physical therapists and two members of the public —
chose not to act on a petition the AAC filed to have Rule 211 rescinded. Physical therapists had been allowed to engage in the practice of dry needling since at least 2007 when the profession was regulated by the director of the state’s Division of Registrations within the Department of Regulatory Affairs.
A spokeswoman for the Physical Therapy Board said its members had no comment about Bruce’s ruling.
Bruce agreed with the state’s contention that the AAC had its chance to challenge the rule back when it was first passed.
“No timely request for judicial review, however, was sought upon enactment of the rule or, for that matter, its 2007 predecessor,” Bruce wrote. “Instead, over four years after Rule 211 was promulgated … (AAC) sought its repeal by the board. … An appeal of the enactment of an agency rule must be filed within 35 days.”
Bruce’s ruling, however, seems contrary to a determination last year by the American Medical Association that noted “dry needling is indistinguishable from acupuncture” and a rule by the U.S. Food and Drug Administration that says filiform needles are to be made available only to qualified practitioners of acupuncture.
He reasoned that the Col- orado legislature, when it passed the Physical Therapists Practice Act in 1979 “likely … used broad language so as to provide for new developments in physical therapy practice” even though legislators could not have contemplated dry needling.
Three states — California, Washington and Oregon — have removed similar provisions after court battles, and several others are expected to do the same.
“This verdict is positive for Coloradan’s who seek health care from physical therapists,” said Cameron MacDonald, president of the Colorado chapter of the American Physical Therapy Association, in an email to its membership. “It does not limit the scope of any other practitioner.”
The physical therapy board is under a mandatory five-year sunset review by the legislature and, Cameron said, “the chapter will remain diligent in seeking to strengthen the PT Practice Act in Colorado, such that future challenges to the scope of practice of physical therapists will not be put forth based upon statutory language that presents the opportunity for alternate interpretation.”
It is unclear if the association of acupuncturists will appeal the ruling. Attorneys for the AAC did not immediately respond to emails and telephone messages seeking comment.