IN THE COURT OF APPEALS OF IOWA
No. 16-1902
Filed January 10, 2018
IOWA ASSOCIATION OF ORIENTAL MEDICINE AND ACUPUNCTURE,
Petitioner-Appellant,
vs.
IOWA BOARD OF PHYSICAL AND OCCUPATIONAL THERAPY,
Respondent-Appellee,
and
IOWA PHYSICAL THERAPY ASSOCIATION,
Intervenor-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David M. Porter,
Judge.
The Iowa Association of Oriental Medicine and Acupuncture appeals a
district court ruling on its petition for judicial review following a declaratory order
by the Iowa Board of Physical and Occupational Therapy. AFFIRMED.
Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,
P.C., West Des Moines, and Brent Foster, Hood River, Oregon, for appellant.
Thomas J. Miller, Attorney General, and Laura C. Steffensmeier, Assistant
Attorney General, for appellee Iowa Board of Physical and Occupational Therapy
Douglas L. Struyk of Carney & Appleby, P.L.C., Des Moines, and John J.
Bennett, Alexandria, Virginia, for appellee Iowa Physical Therapy Association.
Heard by Danilson, C.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
The Iowa Association of Oriental Medicine and Acupuncture (Association)
appeals a district court ruling on its petition for judicial review following an order
by the Iowa Board of Physical and Occupational Therapy (Board) declaring the
practice of “dry needling”1 falls within the definition of “physical therapy”
contained in Iowa Code section 148A.1(1)(b) (2015). The Association contends
the Board’s determination is an irrational, illogical, or wholly unjustifiable
interpretation of the statute.2 See Iowa Code § 17A.19(10)(l).3
I. Background Facts and Proceedings
In August 2015, the Association petitioned the Board for a declaratory
order defining “dry needling” as a form of acupuncture and a practice not within
the legal scope of the practice of physical or occupational therapy. The gist of
the Association’s position on the matter was that physical therapists and other
professionals were engaging in dry needling without formal acupuncture training,
such was detrimental to public safety, and the practice of dry needling should be
reserved for advanced acupuncture practitioners. In September, the American
1
The district court implicitly adopted the Board and Federation of State Boards of
Physical Therapy’s definition of dry needling:
Dry needling is a skilled technique performed by a physical therapist
using filiform needles to penetrate the skin and/or underlying tissue to
affect change in body structures and functions for the evaluation and
management of neuromusculoskeletal conditions, pain, movement
impairments, and disability.
2
The Association also argues the Board’s interpretation of section 148A.1(1)(b) is
beyond its statutory authority. See Iowa Code § 17A.19(10)(b). The Association’s
argument appears to be, however, that the Board’s determination is only beyond its
statutory authority because it is based upon an irrational, illogical, or wholly unjustifiable
application of the law. We therefore only consider, as did the district court, the viability
of the Board’s determination under Iowa Code section 17A.19(10)(l).
3
In this opinion, references to chapter 17A are to the 2016 version of the Iowa Code. All
other statutory references are to the 2015 version.
3
Physical Therapy Association and the Iowa Physical Therapy Association (IPTA)
filed a joint petition to intervene and generally argued the practice of dry needling
falls within the statutory definition of physical therapy. The Board granted the
petition for intervention and established a forty-five-day public comment period.
In January 2016, following the submission of hundreds of comments and
oral arguments by the parties, the Board issued its ruling declaring “[d]ry needling
falls within the definition of physical therapy because it is a rehabilitative
procedure used to prevent, correct, minimize, or alleviate a physical impairment.”
See id. § 148A.1(1)(b). In its ruling, the Board repeated its informal position that
there is “nothing in the laws and rules governing the practice of physical therapy
to prohibit a physical therapist from performing dry needling, provided the
physical therapist ha[s] adequate training to competently perform the technique.”
The Board noted several differences between dry needling and acupuncture but
declined to rule whether or not dry needling is acupuncture, citing a lack of
jurisdiction. See generally id. § 148E.1(3) (placing oversight of the practice of
acupuncture with the board of medicine).
The Association filed a petition for judicial review of the Board’s
declaratory ruling, see id. § 17A.19(1)–(2), arguing the Board “exceeded its
authority in its determination dry needling is within the scope of physical therapy”
and erroneously interpreted section 148A.1(1)(b). The district court granted
IPTA’s subsequent motion to intervene. The district court heard oral arguments
in July 2016 and, in October, issued an order affirming the Board’s ruling,
concluding the Association failed to meet its “burden of demonstrating the
4
Board’s decision was irrational, illogical, or wholly unjustifiable.” This appeal
followed.
II. Standard of Review
“Judicial review of agency decisions is governed by Iowa Code section
17A.19.” Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017)
(quoting Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 216, 222
(Iowa 2014)). The district court acts in an appellate capacity in judicial-review
proceedings. Iowa Med. Soc’y v. Iowa Bd. of Nursing, 831 N.W.2d 826, 838
(Iowa 2013) (quoting City of Sioux City v. GME, Ltd., 584 N.W.2d 322, 324 (Iowa
1998)). On appeal, this court “appl[ies] the standards of section 17A.19(10) to
determine if we reach the same results as the district court.” Brakke, 897 N.W.2d
at 530 (quoting Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa
2010)). Relief in a judicial-review proceeding is appropriate only “if the agency
action prejudiced the substantial rights of the petitioner and if the agency action
falls within one of the criteria listed in section 17A.19(10)(a) through (n).” Id.
“The boards for the various professions shall adopt all necessary and
proper rules to administer and interpret this chapter [147] and chapters 148
through 158, except chapter 148D.” Iowa Code § 147.76. Thus, there is no
question the legislature has granted the Board interpretive authority as to chapter
148A. Cf. Iowa Med. Soc’y, 831 N.W.2d at 827, 838; Houck v. Iowa Bd. of
Pharmacy Exam’rs, 752 N.W.2d 14, 18 (Iowa 2008); Al-Jurf v. Iowa Bd. of Med.,
No. 12-0293, 2013 WL 3830159, at *4 (Iowa Ct. App. July 24, 2013). Where the
legislature has granted an agency such authority, “[w]e defer to the agency’s
interpretation of law” and “will overturn an agency’s interpretation of law . . . only
5
if the agency’s interpretation is ‘irrational, illogical, or wholly unjustifiable.’”
Brakke, 897 N.W.2d at 530 (citations omitted); accord Iowa Code
§ 17A.19(10)(l). This is akin to “a deferential abuse-of-discretion standard of
review.” Thoms v. Iowa Pub. Emp. Ret. Sys., 715 N.W.2d 7, 11 (Iowa 2006).
III. Analysis
“An agency shall have only that authority or discretion delegated or
conferred upon the agency by law and shall not expand or enlarge its authority or
discretion beyond the powers delegated to or conferred upon the agency.” Iowa
Code § 17A.23(3). The Association challenges the Board’s interpretation of a
term used within the legislature’s definition of “physical therapy” in Iowa Code
section 148A.1(1)(b). “Physical therapy” is statutorily defined as follows:
“physical therapy” is that branch of science that deals with the
evaluation and treatment of human capabilities and impairments.
Physical therapy uses the effective properties of physical agents
including, but not limited to, mechanical devices, heat, cold, air,
light, water, electricity, and sound, and therapeutic exercises, and
rehabilitative procedures to prevent, correct, minimize, or alleviate a
physical impairment.
Id. § 148A.1(1)(b) (emphasis added). The Board determined, “Dry needling falls
within the definition of physical therapy because it is a rehabilitative procedure
used to prevent, correct, minimize, or alleviate a physical impairment.” The
Association specifically contends the Board’s interpretation of the term
“rehabilitative procedures” is irrational, illogical, or wholly unjustifiable.
Although the legislature defined “physical therapy,” it did not define the
terms used within its definition, namely the term “rehabilitative procedures.” See
id. The legislature has not defined the term “rehabilitative procedures” elsewhere
in the code, and, based on the language of the statute, the term appears to be a
6
substantive term within the special expertise of the Board. Under these
circumstances, we conclude the legislature has expressly authorized the Board
to interpret the term “rehabilitative procedures.” See Renda, 784 N.W.2d at 14
(“[W]hen the statutory provision being interpreted is a substantive term within the
special expertise of the agency, we have concluded that the agency has been
vested with the authority to interpret the provisions. . . . When the provisions to
be interpreted are found in a statute other than the statute the agency has been
tasked with enforcing, we have generally concluded interpretive power was not
vested with the agency.”); see also Iowa Code § 147.76. The Iowa Supreme
Court has directed that our review in such circumstances “is controlled in large
part by the deference we afford to decisions of administrative agencies.” Iowa
Med. Soc’y, 831 N.W.2d at 839.
Where the legislature “clearly delegates discretionary authority to an
agency to interpret or elaborate a statutory term based on the agency’s own
special expertness, the court may not simply substitute its view as to the
meaning or elaboration of the term for that of the agency” unless the agency
interpretation is irrational, illogical, or wholly unjustifiable. Renda, 784 N.W.2d at
11 (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure
Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State
Government 62 (1998)); see Iowa Code § 17A.19(10)(l). Where, as here, “the
statutory provision being interpreted is a substantive term within the special
expertise of the agency, . . . the agency has . . . the authority to interpret the
provisions.” Renda, 784 N.W.2d at 14.
7
The Association’s general argument is that the Board’s interpretation
expands the scope of physical therapy beyond what the legislature intended and
is therefore an irrational, illogical, or wholly unjustifiable interpretation of the
statute. In determining the legislature’s intent, we consider “the words chosen by
the legislature, not what it should or might have said.” Auen v. Alcoholic
Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004); accord State v. Pettijohn, 899
N.W.2d 1, 15 (Iowa 2017). “When the legislature fails to define a statutory term,
we examine the context in which the term appears and accord the term its
ordinary and common meaning.” Pettijohn, 899 N.W.2d at 16. We consider the
statute as a whole, not just isolated words or phrases. Id.
The statute, by its punctuation and repetitive use of the word “and,” clearly
groups physical therapy into three separate categories of treatment that “prevent,
correct, minimize, or alleviate a physical impairment”: (1) the use of “effective
properties of physical agents including, but not limited to, mechanical devices,
heat, cold, air, light, water, electricity, and sound,” (2) “therapeutic exercises,”
and (3) “rehabilitative procedures.”4 See Iowa Code § 148A.1(1)(b). The
Association argues the non-invasive nature of the “physical agents” noted in the
first grouping restricts rehabilitative procedures in the third grouping to non-
4
The statute provides:
Physical therapy uses the effective properties of physical agents
including, but not limited to, mechanical devices, heat, cold, air, light,
water, electricity, and sound, and therapeutic exercises, and rehabilitative
procedures to prevent, correct, minimize, or alleviate a physical
impairment.
Iowa Code § 148A.1(1)(b) (emphasis added). Focusing on the language of the relevant
grouping, the statute effectively defines that category of physical therapy as the use of
“rehabilitative procedures to prevent, correct, minimize, or alleviate a physical
impairment.” Cf. Sullivan v. Abraham, 488 S.W.3d 294, 298–98 (Tex. 2016) (concluding
legislative use of oxford or serial comma before the term “and” separates the terms in
the series and therefore limits term modifiers to their particular grouping in a statute).
8
invasive treatment, which would not include dry needling. Based on the
punctuation and wording of the statute, quoted in its entirety above, we conclude
the only matters limiting the invasiveness of potential rehabilitative procedures
under the statute are the term’s common and ordinary meaning and Iowa Code
section 148A.5, which expressly prohibits physical therapists from practicing
“operative or osteopathic surgery or chiropractic manipulation” and from
administering or prescribing any drug.
With these contextual limitations in mind, we accord the term
“rehabilitative procedures” its ordinary and common meaning in order to
determine legislative intent. See Pettijohn, 899 N.W.2d at 16 (“When the
legislature fails to define a statutory term, we examine the context in which the
term appears and accord the term its ordinary and common meaning.”).
“Rehabilitative” in the treatment context ordinarily concerns efforts intended “to
restore [a person] to a condition of health or normal activity.” Webster’s Third
New International Dictionary 1914 (unabridged ed. 2002). A “procedure” is “a
particular way of doing or of going about the accomplishment of something.” Id.
at 1807.
As did the Board, we recognize that the ordinary and common meaning of
the term “rehabilitative procedures” is broad. The Association complains the
Board’s broad use of the term effectively expands the definition of physical
therapy to include almost any type of procedure. We limit our consideration of
procedures to the facts of this case, not hypotheticals. And, the record before us
reveals physical therapists have been engaged in the practice of dry needling for
several years in Iowa, generally without incident. The Association finally argues
9
dry needling is, in fact, acupuncture and, because acupuncture is regulated
under Iowa Code chapter 148E, the legislature could not have intended to allow
physical therapists to engage in dry needling. The Board, however, correctly
determined it lacked jurisdiction to determine whether dry needling amounts to
acupuncture, as that question—and whether to address it—is reserved for the
board of medicine. See Iowa Code §§ 147.76, 148E.1(3). The issue of whether
dry needling amounts to acupuncture is therefore not ripe for our review. See
State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010) (quoting State v. Iowa Dist. Ct.,
616 N.W.2d 757, 578 (Iowa 2000)). The Association's complaint that the Board
allows physical therapists to engage in dry needling absent specific training is
premature, inasmuch as the Board has delayed the promulgation of
administrative rules on the matter until this litigation is resolved. In any event, the
Board has taken the position that physical therapists cannot engage in dry
needling absent adequate training to competently perform the technique.
The Board consists of seven members: three physical therapists, two
occupational therapists, and two members of the public. Iowa Code
§ 147.14(1)(j). The Board is generally allowed to apply its expertise in the area
of physical therapy to determine what matters are within the scope of the
practice. In granting deference to the Board’s expertise in the area of physical
therapy, we conclude its determination that the practice of dry needling falls
within the definition of physical therapy was not irrational, illogical, or wholly
unjustifiable. As such, we affirm the district court’s denial and dismissal of the
Association’s petition for judicial review of the Board’s declaratory order.
AFFIRMED.