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NC Dry Needling Dispute Is Just One Of Many Antitrust Suits

Alex Olgin

There are a lot of rules that come with practicing medicine, therapy and other professions. They are in place to protect the consumer. But when those rules are used to restrict competitors doing the same thing at a lower cost, it raises the question: Do regulators have consumers' best interest at heart? There has been a spike in lawsuits that challenge the authority of licensing boards. One of the latest disputes comes from North Carolina. It’s between physical therapists and acupuncturists.  

Physical Therapist Bill Merritt feels Alex Reynolds calf muscle in his Cornelius practice.  

Merritt asks, “Is it tender, painful or just kind of tight?”

“Just the usual tightness,” Reynolds responds.

The 37-year-old tri-athlete is rehabbing from surgery after a bike wreck during one of his races. He gets needles inserted in his lower leg about once a month to relieve pain. 

Merritt slips on blue latex gloves and pulls out individually packaged six centimeter needles. And starts pushing six of them into Reynolds leg.

“Because of tightness in Alex’s calves some of these are a little tougher to push in,” Merritt said.

Reynolds says it’s like a less intense bee sting.

“It’s just a twinge, almost like a small twitch,” Reynolds explains. 

Then Merritt runs an electric current run through the needles in Reynolds leg. Merritt, is one of several physical therapists that perform dry needling. That’s what physical therapists call it. Acupuncturists call it acupuncture. And that’s why the state acupuncture board sent cease-and-desist letters to some physical therapists doing procedure saying they were illegally practicing acupuncture.

A handful of physical therapists who received the letters are suing the acupuncture board for violating antitrust laws. Merritt didn’t get one of those letters and isn’t part of the lawsuit. He said he only does dry needling to help with neuromuscular issues.

“I’m not trying to take anybody’s patients,” Merritt said when people ask him about other problems he directs them to see an acupuncturist. “Dry needling is not going to help infertility, asthma, allergies - that’s for an acupuncturist.” 

Mary Cissy Majebe is an acupuncturist and chair of the state licensing board. She said dry needling is acupuncture by a different name.

“It has to do with nomenclature not technique working with,” Majebe said.

She’s concerned for patient safety. Majebe cites two people who have claimed they were injured by physical therapists performing the technique. But she didn’t have details. Majebe insists this it isn’t protectionism because both chiropractors and physicians can do the procedure.

“So this is not about trying to restrict it to just us,” she said.

Majebe said physical therapists don’t get enough training to safely do the procedure. There have been at least 10 antitrust cases against licensing boards in the past few years. In 2015 the U.S. Supreme Court decided a case out of North Carolina. In that ruling the justices said most licensing boards made up of practicing professionals aren’t protected from antitrust lawsuits if they take actions against competitors. In other words dentists can’t prohibit others form offering teeth whitening services.

Another part of this decision is concerning because board members can be on the hook for damages said Lisa Robin of the Federation of State Medical Boards

“They would be personally liable in the event to of a successful case,” Robin said.

She worries the decision could continue to have the chilling effect on professionals wanting to serve on these regulatory boards. Robin references a situation in Florida. More than half of the state Board of Employee Leasing Companies resigned earlier this year citing antitrust concerns.

The Federation of State Medical Boards, along with the national associations of veterinary, accountancy, landscape architectural boards along with nine other groups are lobbying congress to protect them.

“All we are looking at it from the professional licensing coalition is that protection for the individual not the behavior of the actual board,” Robin said.

There’s a relatively easy fix for that – insurance. That’s according to Barak Richman. He teaches antitrust law at Duke University School of Law.  He thinks the professionals are concerned about losing business. He points to the case of dentists who tried to stop non-dentists from providing teeth whitening services in North Carolina.

“Sometimes the occupational licensure regimes prevent them from doing things that have traditionally been in the domain of doctors,” said Richman.

Meanwhile he expects disputes with licensing boards to continue. And he says that means boards will have to do more to show their decisions aren’t arbitrary.

“Applying the antitrust laws only means that these medical boards don’t have total power or power or power by fiat,” Richman said. “They simply have to offer evidence for what they are doing. They have to show what they are doing advances the overall welfare of population.”

Richman doesn’t think professional licensing boards are going away any time soon. But he says the extra scrutiny will likely lessen their power.