Maryland Attorney General Opinion 95 OAG 138

138 [95 Op. Att’y

HEALTH OCCUPATIONS

P HYSICAL T HERAPISTS – A CUPUNCTURISTS – P HYSICAL T HERAPY
B OARD H AS A UTHORITY TO D ETERMINE BY R EGULATION
W HETHER “D RY N EEDLING” IS W ITHIN THE S COPE OF
P RACTICE OF P HYSICAL T HERAPY

August 17, 2010

Steven Kaufman, L.Ac., Chair
Board of Acupuncture
Maryland Department of Health
and Mental Hygiene

On behalf of the State Acupuncture Board, your predecessor
asked for our opinion concerning a procedure known as “dry
needling” that is performed by some physical therapists. Dry
needling involves the insertion of acupuncture needles into the skin
at certain locations for a therapeutic effect – usually relief of pain.
He asked whether the insertion of acupuncture needles in a patient
falls within the definition of the practice of physical therapy in
Maryland and whether it is appropriate for the Board of Physical
Therapy Examiners (“Physical Therapy Board”) to include it within
the scope of practice of physical therapy without legislation on the
subject. He stated that the Acupuncture Board believes that the
authority to insert needles is reserved, under the Maryland
Acupuncture Act, to licensed acupuncturists and certain health care
professionals specifically exempted from its licensing requirements.

The authority to use acupuncture needles for therapeutic
purposes is not necessarily reserved exclusively to licensed
acupuncturists or those specifically exempted from the licensing
requirement for acupuncturists. State law recognizes that the scope
of practice of health care professions may overlap and confers
extensive discretion on licensing boards to define the scope of a
profession within statutory limits. In our opinion, the Physical
Therapy Board may determine that dry needling is within the scope
of practice of physical therapy if it conducts rulemaking under the
State Administrative Procedure Act and adopts a regulation that
relates dry needling to the statutory definition of practice of physical
therapy. Any such process should consider standards for education
and training that presumably would be at least as strict as those set
Gen. 138] 139

by the Legislature for physicians who use acupuncture needles for
similar therapeutic purposes.

I

Background

A. Dry Needling

“Dry needling” refers to the insertion of one or more solid
needles into the skin for a therapeutic purpose without injecting or
withdrawing any fluids. There apparently are several variants of the
technique, including “trigger point dry needling” (also called
intramuscular stimulation or intramuscular manual therapy by some),
in which an acupuncture needle is inserted into the skin and muscle
for the treatment of pain. J. Dommerholt, et al., Trigger Point Dry
Needling, 14:4 Journal of Manual and Manipulative Therapy E70
(2006).

Dry needling is controversial. Few physical therapists have
been trained in it or use the technique. Id. Physical therapy boards
in at least half a dozen states and several countries have embraced it
as within the scope of practice of physical therapy while others have
declared it to be outside the scope of practice. Id.; see also
Federation of State Boards of Physical Therapy, Intramuscular
Manual Therapy (Dry Needling) – Resource Paper (March 8, 2010)
at p. 6; Memorandum of Debi Mitchell, Practices Issues
Coordinator, Physical Therapy Board of California (December 8,
2006) (stating that physical therapists in California are not
authorized to perform dry needling).1

B. Dry Needling in Maryland

In Maryland, the Physical Therapy Board and the Acupuncture
Board have staked out contrary positions concerning regulation of
dry needling.

1
The Acupuncture Board and Maryland Acupuncture Society
provided copies of minutes of meetings of other state physical therapy
boards in which those boards expressed the view that dry needling is
outside the scope of practice of physical therapy. See, e.g., Minutes of
Delaware Examining Board of Physical Therapists and Athletic Trainers
(October 27, 2009) at p. 6; Minutes of Idaho State Board of Physical
Therapy (May 4, 2007) at p. 2; Minutes of New Jersey State Board of
Physical Therapy Examiners (November 28, 2006) at p. 3.
140 [95 Op. Att’y

Physical Therapy Board

In 1997, the Physical Therapy Board informally advised one of
its licensees that it was of the opinion that “there is nothing in the
Physical Therapy Statute ... to preclude a physical therapist from
performing intramuscular stimulation (IMS) by dry needling if
adequate training and competency can be demonstrated.... The Board
feels that physical therapists, especially those with manual therapy
skills, are qualified to perform dry needling.” Letter of Charles M.
Dilla, P.T., Chairman of the Maryland Board of Physical Therapy
Examiners, to Jan Dommerholt, MPS, P.T. (September 18, 1997).
The Physical Therapy Board has not adopted any regulations that
address dry needling or that specify any particular training or
education as a prerequisite to using the technique.

After the Acupuncture Board requested this opinion, the
Physical Therapy Board provided us with various materials to
support its position that dry needling, as well as certain other
invasive procedures,2 are within the scope of practice of physical
therapy. The Physical Therapy Board defines dry needling as “a
technique used to treat myofascial [muscle] pain that uses a dry
needle, without medication, that is inserted into a trigger point with
the goal of releasing/inactivating the trigger points and relieving
pain.” Federation of State Boards of Physical Therapy,
Intramuscular Manual Therapy (Dry Needling) – Resource Paper
(March 8, 2010) at p. 3.3 The Physical Therapy Board contrasts dry
needling, which it argues is based on modern western ideas
concerning anatomy and neurology, to acupuncture, which it
characterizes as a form of health care based on a theory derived from
Chinese medicine. The Physical Therapy Board also asserts that use
of the technique by physical therapists is limited by virtue of the
Board’s regulation providing that a “physical therapist shall work

2
Among the other invasive procedures described in those materials
were electromyography, wound debridement, staple removal, and other
procedures. This opinion addresses only dry needling.
3
We also received materials from the Maryland Chiropractic
Association supporting the conclusion that dry needling is within the
scope of practice of physical therapy. The State Board of Chiropractic and
Massage Therapy Examiners may authorize individuals to practice
chiropractic with a right to practice physical therapy, if the certain criteria
are met. Annotated Code of Maryland, Health Occupations Article, §§3-
101(g), 3-301, 3-302(d), 3-303, 3-304(e)(2).
Gen. 138] 141

within the physical therapist’s competency in physical therapy
evaluation and treatment.” COMAR 10.38.03.02A(2)(f).

Acupuncture Board

The State Acupuncture Board has a different view. It reports
that it recently received a complaint that an acupuncturist was
performing a physical therapy technique – i.e., dry needling. The
Acupuncture Board determined that dry needling is within the scope
of practice of acupuncture and closed its investigation. In the letter
requesting this opinion, the Acupuncture Board stated that it believes
not only that dry needling is within the scope of practice of
acupuncture, but also that the authority to insert needles in skin is
reserved to licensed acupuncturists and to those health care
professionals exempted by the acupuncture statute from the licensing
requirement – physicians, dentists, and veterinarians.4 Some of the
materials submitted to us maintain that the theory underlying dry
needling is identical to a particular branch of Chinese medicine
called Ashi and that dry needling is therefore indistinguishable from
acupuncture.

We need not resolve the academic debate whether acupuncture
is limited to the application of Chinese medical theories or whether
the theory underlying dry needling can be traced to a branch of
Chinese medicine. As indicated in the next section, the General
Assembly has defined acupuncture, for purposes of Maryland law,
both with and without reference to Chinese medicine. More
importantly, the scope of practice of physical therapy and the scope
of practice of acupuncture are not necessarily mutually exclusive.

C. Regulation of Use of Acupuncture Needles in Maryland

There appears to be no dispute that dry needling involves the
same type of needles used by acupuncturists and that the technique
bears at least a superficial similarity to acupuncture. The use of
acupuncture needles for therapeutic purposes has been a key part of
traditional Chinese medicine for millennia. 80 Opinions of the
Attorney General 180 (1995). It was brought to the United States by
Chinese immigrants during the 19 th century, but was not practiced

4
We also received materials from the Maryland Acupuncture
Society and nearly identical letters from approximately 30 licensed
acupuncturists arguing that there is no substantive difference between
acupuncture and dry needling.
142 [95 Op. Att’y

outside the Chinese community until the early 1970s. Id. At that
time, the State began to regulate the use of acupuncture needles.

1. 1970s: Regulation of Acupuncture as Practice of
Medicine

In late 1973 and again in early 1974, Attorney General Burch
advised that the practice of acupuncture was the practice of medicine
and therefore could be performed only by a licensed physician. 59
Opinions of the Attorney General 3 (1974); Advice Letter to Daniel
T. Doherty, Chairman, Workmen’s Compensation Commission
(November 28, 1973). That opinion also stated that the Board of
Medical Examiners could adopt a regulation allowing physicians to
delegate limited, specific manual procedures to unlicensed assistants
in connection with acupuncture. Shortly thereafter, the Legislature
confirmed that advice in legislation. Chapter 530, Laws of Maryland
1974. That law did not define acupuncture, but simply included
acupuncture within the scope of practice of medicine and authorized
non-physicians to perform acupuncture only under the supervision
of a licensed physician.

2. 1982: Definition of “Acupuncture” Performed by
Physicians

In 1982, the General Assembly amended the licensing statute
for physicians to provide for the registration of individuals whom the
Board of Medical Examiners found to have adequate education,
training, or experience in acupuncture. The statute authorized
registered practitioners to perform acupuncture under the general
supervision of physicians who had themselves completed special
training in acupuncture. Chapter 644, Laws of Maryland 1982. That
law also provided, for the first time, a definition of acupuncture. It
defined “perform acupuncture” to mean:

to stimulate a certain point or points on or near
the surface of the human body by the insertion
of needles to prevent or modify the perception
of pain or to normalize physiological
functions, including pain control, for the
treatment of ailments or conditions of the
body.

Annotated Code of Maryland, Health Occupations Article (“HO”),
§14-101(h) (1981 & 1982 Supp.). As is evident, this definition
would include the current practice of dry needling. This definition
Gen. 138] 143

does not refer to any particular philosophy that informs the use of the
needles.

3. 1994: Maryland Acupuncture Act

In 1994, the General Assembly created the State Acupuncture
Board and began to regulate acupuncturists as a separate health care
profession. Chapter 620, Laws of Maryland 1994, codified at HO
§1A-101 et seq. In the definition of “acupuncture” in the licensing
statute, the General Assembly for the first time made reference to a
particular philosophy guiding the use of the needles by that
profession. In particular, it defined acupuncture as a form of health
care based on “a theory of energetic physiology” involving the “use
of oriental medical therapies.” 5 Physicians, dentists, and
veterinarians were specifically excluded from regulation under the
State Acupuncture Law. HO §1A-102.6

5
The Maryland Acupuncture Act defines acupuncture as “a form of
health care, based on a theory of energetic physiology, that describes the
interrelationship of the body organs or functions with an associated point
or combination of points.” HO §1A-101(b). The statute defines the
practice of acupuncture as:
(1) ... the use of oriental medical therapies for the
purpose of normalizing energetic physiological
functions including pain control, and for the
promotion, maintenance, and restoration of health.
(2)”Practice acupuncture “ includes:
(i) Stimulation of points of the body by the
insertion of acupuncture needles;
(ii) The application of moxibustion; and
(iii) Manual, mechanical, thermal, or
electrical therapies only when performed in
accordance with the principles of oriental
acupuncture medical theories.
HO §1A-101(f) (emphasis added). In 80 Opinions of the Attorney General
180 (1995), Attorney General Curran relied in part on the references to
“oriental medical therapies” in concluding that the Acupuncture Act
authorized licensed acupuncturists to treat animals.
6
In addition, several other categories of individuals were excluded
(continued...)
144 [95 Op. Att’y

The 1994 law retained the provision in the physician licensing
statute that required registration of physicians who perform
acupuncture. The definition of “perform acupuncture” in the
Medical Practice Act has remained unchanged since 1982. In
particular, that definition refers generally to the insertion of needles
“to prevent or modify the perception of pain or to normalize
physiological functions” without reference to any particular theory
of medicine. HO §14-101(i). 7 In order to register to “perform
acupuncture,” a physician must complete at least 200 hours of
instruction in acupuncture and satisfy other conditions set by the
Physicians’Board. HO §14-504(c).

II

Scope of Practice of a Health Care Profession

Disputes over the boundaries of the scope of practice of
licensed occupations are not uncommon. On occasion, this Office
has been asked to provide guidance on how to navigate those
boundaries. See 88 Opinions of the Attorney General 182 (2003)
(professional engineers and private detectives); 80 Opinions of the
Attorney General 180 (1995) (acupuncturists and veterinarians); 76
Opinions of the Attorney General 3 (1991) (physical therapists and
chiropractors); 73 Opinions of the Attorney General 208 (1988)
(clinical social workers and physicians); 71 Opinions of the Attorney
General 149 (1986) (whether chiropractors may use certain
laboratory diagnostic techniques).

It is frequently the case that the scopes of practice of two
occupations overlap. “[T]here is nothing intrinsically amiss about
legislative authorization for two separate health occupations to
perform some of the same acts.” 76 Opinions of the Attorney
General at 13; see also 80 Opinions of the Attorney General at 181
(“Depending on the statutory scheme, the same activities could fall
within the scope of practice of two separate health occupations.”).

6
(...continued)
from the licensing requirements – e.g., federal employees practicing
acupuncture within the scope of their employment, students, visiting
teachers. See HO §1A-301(b).
7
Effective October 1, 2010, this definition will be recodified as HO
§14-101(k).
Gen. 138] 145

The scopes of practice of regulated health care professions are
set forth in the definitional sections of the various titles of the Health
Occupations Article of the Annotated Code of Maryland. The
licensing statutes presume that there are areas of overlap among the
scopes of practice of various health care professions. Thus, each
licensing statute provides that it “does not limit the right of an
individual to practice a health care occupation that the individual is
authorized to practice under the [Health Occupations Article].” See,
e.g., HO §1A-102(a) (Maryland Acupuncture Act); HO §13-102(1)
(Maryland Physical Therapy Act); see also 76 Opinions of the
Attorney General at 6. In providing for overlapping scopes of
practice for various health care professions, the General Assembly
has fostered consumer choice in the selection of treatment and
practitioner. 80 Opinions of the Attorney General at 182
(concluding that both acupuncturists and veterinarians could perform
acupuncture on animals within the scope of their respective
practices).

Thus, as appropriately phrased in your predecessor’s letter, the
critical question for resolving this dispute is whether dry needling
falls within the scope of practice of physical therapy, regardless of
whether it would also fall within the scope of practice of
acupuncture.

In answering such a question we first look to whether the
General Assembly has clearly resolved the issue. Has the General
Assembly, in the Physical Therapy Act, clearly included dry
needling within the scope of practice of physical therapy? If the
statutory language does not clearly settle the issue, then we must
assess whether the licensing board has sufficient authority to find
that the technique is within the scope of practice of the profession
it regulates. In other words, would the Physical Therapy Board be
acting within its statutory authority if it adopted a regulation
allowing its licensees to perform the dry needling? See 76 Opinions
of the Attorney General at 8-11.

If a licensing board has authority to declare a particular
technique to be within the scope of practice of its profession, it can
exercise that authority only in certain ways. Such a determination
would be without legal effect if the board does not follow the
rulemaking or declaratory ruling procedures of the Administrative
Procedure Act. 76 Opinions of the Attorney General at 6-7 (Physical
Therapy Board’s statement that certain procedures were within the
scope of practice of physical therapy was without legal effect as the
board did not follow APA procedures in reaching that conclusion).
146 [95 Op. Att’y

III

Scope of Practice of Physical Therapy

A. Statute

The Maryland Physical Therapy Act sets forth the scope of
practice of physical therapy as follows:

(1) “Practice physical therapy” means to
practice the health specialty concerned with:

(i) The prevention of disability
in patients or clients; and

(ii) The physical rehabilitation of
patients or clients with a congenital or
acquired disability.

(2) “Practice physical therapy” includes:

(i) Performing an evaluation of
the physical therapy needs of patients or
clients;

(ii) Performing and interpreting
tests and measurements of neuromuscular and
musculoskeletal functions to aid treatment;

(iii) Planning treatment programs
that are based on test findings; and

(iv) Except as provided in
paragraph (3) of this subsection, administering
treatm ent w ith therapeutic exercise,
therapeutic massage, mechanical devices, or
therapeutic agents that use the physical,
chemical, or other properties of air, water,
electricity, sound, or radiant energy.

(3) “Practice physical therapy” does not
include using:

(i) X-rays;
Gen. 138] 147

(ii) Radioactive substances;

(iii) Electricity for cauterization
or surgery.

HO §13-101(i). The Physical Therapy Board is authorized to adopt
regulations to carry out its licensing statute. HO §13-206(a)(1). The
Board thus has authority to adopt legislative rules – i.e., regulations
that have binding effect – on scope of practice matters. 76 Opinions
of the Attorney General at 7; 75 Opinions of the Attorney General
37, 47-49 (1990).8 Such rules must, of course, be consistent with the
statute. Fogle v. H&G Restaurant, Inc., 337 Md. 441, 453, 654 A.2d
449 (1995).

As is evident, the Physical Therapy Act makes no specific
mention of “dry needling,” “trigger points,” or any other use of
needles. On the other hand, treatment by needles is not explicitly
excluded from the statute either, as is the use of x-rays. The various
methods of administering treatment that are explicitly authorized in
the statute appear to be unrelated to dry needling, unless acupuncture
needles would be considered “mechanical devices.” Thus, the
statute itself does not clearly answer the question whether dry
needling is within the scope of practice of physical therapy.

Whether dry needling is within the scope of physical therapy
therefore depends on whether the Physical Therapy Board has
authority to adopt a regulation that finds acupuncture needles to be
a “mechanical device” for purposes of this statute.

B. Whether the Term “Mechanical Device” Could Include
Acupuncture Needles

The reference to the use of “mechanical devices” by physical
therapists has been a part of the law since the State first regulated
physical therapists in 1947. See Chapter 906, Laws of Maryland
1947. Then, as now, the statute defined physical therapy to include
treatment of injuries or disabilities by a variety of means, including
exercise, massage, heat, cold, air, and light, among other things.
There is no legislative history that sheds light on the range of
implements covered by the phrase “mechanical devices.” And we

8
The Act forbids the practice of physical therapy without a license
from the Physical Therapy Board or other authorization by law. HO §§13-
301(a), 13-401(a).
148 [95 Op. Att’y

have not found a judicial construction of the phrase. But it seems
fair to conclude that, in using general terms like “exercise,” “heat,”
“cold,” and “mechanical device,” the General Assembly did not
intend to catalog each particular technique or limit the practice of
physical therapy to the particular devices in existence in 1947. The
general phrase “mechanical device” could encompass new devices
that might be developed for physical therapists to administer
treatment. In our view, the General Assembly intended to give the
Physical Therapy Board substantial discretion to recognize new
mechanical devices that might be employed in the practice of
physical therapy.

The phrase “mechanical device”appears susceptible to a broad
reading. A widely used dictionary defines “mechanical” as “of or
relating to machines or tools” and “device” as “something
constructed for a particular purpose.” Webster’s New College
Dictionary (1995) at pp. 310, 679. In other words, in this context a
mechanical device could be any tool designed for purposes related
to physical therapy – i.e., the prevention of disability or the physical
rehabilitation of individuals with congenital or acquired disabilities.

Acupuncture needles have an ancient lineage in other parts of
the world. But their use among the general population in Maryland
for therapeutic purposes is relatively recent. As best we can tell
from the materials available to us, the practice of dry needling as a
form of therapy supposedly distinct from acupuncture did not appear
until the 1970s. Hobbs, Dry Needling and Acupuncture: Emerging
Professional Issues, Qi-Unity Report (September/October 2007).
It apparently first came to the attention of the Physical Therapy
Board in the mid-1990s. In our view, the Physical Therapy Board
has discretion to determine by regulation whether acupuncture
needles are a mechanical device for purposes of the Physical
Therapy Act.

C. Process

The Physical Therapy Board’s informal statement that dry
needling is consistent with the practice of physical therapy does not
carry the force of law, as it is not a regulation adopted pursuant to
the State Administrative Procedure Act, Annotated Code of
Maryland, State Government Article, §10-101 et seq. It thus has no
legal effect. See 76 Opinions of the Attorney General at 6-7
(Physical Therapy Board statement concerning scope of practice that
was not incorporated in a regulation was without legal effect); 80
Opinions of the Attorney General at 185-86 (Acupuncture Board’s
Gen. 138] 149

statement concerning scope of practice was ineffective legally
because it had not been adopted as a regulation). In order to adopt
a policy concerning dry needling that has legal effect, the Physical
Therapy Board must undertake a rulemaking process that gives fair
consideration to the objections to the use of acupuncture needles by
physical therapists – objections that apparently have led a number of
state physical therapy boards to find dry needling to be outside the
scope of practice of physical therapy. In a previous opinion,
Attorney General Curran outlined the type of inquiry the Physical
Therapy Board must undertake:

We suppose that, for example, the
Physical Therapy Board would need to
consider whether the procedure is akin to
those for which physical therapists are trained;
whether the procedure, if misapplied, entails
an unusual risk of injury; and whether special
diagnostic safeguards beyond those used by
physical therapists are needed. We do not
pretend to know whether these are the only
questions, or even exactly the right ones to
ask. Our point is that experts in physical
therapy, not lawyers, are the people to answer
them, through a procedure that allows all
pertinent material to be considered. The
purpose of the rulemaking would be to enable
the Physical Therapy Board to learn and
evaluate the legislative facts necessary to a
sound decision.

76 Opinions of the Attorney General at 14 (footnote omitted).
Moreover, as part of its process the Physical Therapy Board cannot
ignore that, beginning 35 years ago, the Legislature has closely
regulated the use of acupuncture needles in several respects under
the rubric of “acupuncture,” defined in at least two ways. If, after
conducting a rulemaking process, the Physical Therapy Board finds
that an acupuncture needle is a “mechanical device” and that dry
needling is within the scope of practice of physical therapy, it should
also define the standards for the use of dry needling, including
standards for the education and training of physical therapists who
engage in the practice.

In developing any such standards, the Physical Therapy Board
should consider the standards the Legislature has established for
physicians who “perform acupuncture.” The practice of dry
150 [95 Op. Att’y

needling, as described in the materials provided to us, appears to be
indistinguishable from the definition of “perform acupuncture” in
the Maryland Medical Practice Act. A physician who performed dry
needling would be stimulating certain points near the surface of a
person’s body “by the insertion of needles to prevent or modify the
perception of pain or to normalize physiological functions, including
pain control, for the treatment of ailments or conditions of the body.”
Such a physician would, in the words of the Maryland Medical
Practice Act, “perform acupuncture.” HO §14-101(i). Under the
Medical Practice Act, a physician must obtain at least 200 hours of
instruction and meet other conditions set by the State Board of
Physicians in order to use acupuncture needles in that way. HO §14-
504.

It seems very unlikely that the General Assembly would intend
that physicians satisfy such education requirements and specially
register with their own licensing board in order to insert “needles to
prevent or modify the perception of pain or to normalize
physiological functions,” but permit physical therapists to perform
the same technique without any special educational requirements or
oversight. Given that the Legislature has placed specific limitations
on a physician’s use of acupuncture needles in the Medical Practice
Act, any rulemaking process adopted by the Physical Therapy Board
would presumably need to consider standards and restrictions at least
as stringent as those imposed on physicians.

IV

Conclusion

The authority to use acupuncture needles for therapeutic
purposes is not necessarily reserved exclusively to licensed
acupuncturists or those specifically exempted from the licensing
requirement for acupuncturists. State law recognizes that the scope
of practice of health care professions may overlap and confers
extensive discretion on licensing boards to define the scope of a
profession within statutory limits. In our opinion, the Physical
Therapy Board may determine that dry needling is within the scope
of practice of physical therapy if it conducts rulemaking under the
State Administrative Procedure Act and adopts a regulation that
relates dry needling to the statutory definition of the practice of
physical therapy. Any such process should consider standards for
education and training that presumably would be at least as strict as
Gen. 138] 151

those set by the Legislature for physicians who use acupuncture
needles for similar therapeutic purposes.

Douglas F. Gansler
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice