N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners

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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