KEN PAXTON
                                            ATTORNEY GENERAL OF TEXAS




                                                    May 9, 2016



Mr. Allen Cline                                                 Opinion No. KP-0082
Chairman
Texas State Board of Acupuncture Examiners                      Re: Whether licensed physical therapists are
Post Office Box 2018                                            authorized to practice trigger point dry
Austin, Texas 78768-2018                                        needling (RQ-0068-KP)

Dear Mr. Cline:

        You explain that there has been disagreement between .the Board of Acupuncture
Examiners and the Board of Physical Therapy Examiners about "whether dry needling [is]
authorized under the scope of the Physical Therapy Act." 1 Because the two boards have been
unable to resolve this disagreement independently, you have requested an attorney general opinion
seeking clarification. See Request Letter at 2. 2

        Your literal questions ask whether "trigger point dry needling" is the practice of
acupuncture, and, in tum, whether physical therapists may practice acupuncture. See id. at 1. As
phrased, your questions assume that the scope of practice of physical therapy and the scope of
practice of acupuncture are mutually exclusive; however, overlap between the scopes of practice
of acupuncture and physical therapy may exist. See Tex. Att'y Gen. Op. No. DM-443 (1997) at
1-3 (recognizing that the scopes of practice of physical therapy and medicine overlap with regard
to a procedure called needle electromyography). The statutes governing both acupuncture and
physical therapy expressly state that they do not apply to a health care professional licensed under
another statute of this state and acting within the scope of that license. TEX. Occ. CODE
§§ 205.003(a) (governing acupuncture), 453.004(a) (governing physical therapy). The substance
of your request asks for a determinatio~ about whether physical therapists may perform trigger
point dry needling, not whether acupuncturists may perform the procedure. See Request Letter at



         'See Letter from Mr. Allen Cline, Chairman, Tex. State Bd. of Acupuncture Exam'rs, to Honorable Ken
Paxton, Tex. Att'y Gen. at 2 (Nov. 9, 2015) ("Request Letter"), https://www.texasattomeygeneral.gov/opinion/
requests-for-opinions-rqs.

         2The  dispute is not unique to Texas. Multiple attorneys general from other states have addressed this same
question with regard to the acupuncture and physical therapy laws in their respective states, and some state legislatures
have resolved the dispute by statute. See, e.g., Tenn. Att'y Gen. Op. No. 14-62 (2014) at 2; Ky. Att'y Gen. Op. No.
13-010 (2013) at 5; Miss. Att'y Gen. Op. No. 2012-00428 (2012) at4-5; 95 Md. Att'y Gen. Op. No. 138 (2010) at 8;
see also UTAH CODE § 58-24b-505(1) ("A physical therapist may practice trigger point dry needling if' certain
prerequisites are fulfilled.).
Mr. Allen Cline - Page 2                           (KP-0082)



2-3. It is therefore necessary to answer your questions by analyzing the scope of practice of
physical therapy rather than the scope of practice of acupuncture.

        As a threshold matter, it is necessary to define the term "trigger point dry needling."
Trigger point dry needling is not expressly included in either the statutory or regulatory definitions
of physical therapy. The American Physical Therapy Association defines trigger point dry
needling, also sometimes referred to as "dry needling" or "intramuscular manual therapy," as the
use of "a thin filiform needle to penetrate the skin and stimulate underlying myofascial trigger
points, muscular, and connective tissues for the management of neuromusculoskeletal pain and
movement impairments."3 The American Academy of Medical Acupuncture similarly describes
dry needling as "the use of solid needles (contrasted with the use of hollow hypodermic needles
that are used for injections) to treat muscle pain by stimulating and breaking muscular knots and
bands."4 While their phrasing differs to some extent, these organizations appear to agree that
trigger point dry needling involves the use of needles to treat muscular pain.

         We next analyze whether the practice of trigger point dry needling falls within the scope
of physical therapy. "Physical therapy" is defined by the Legislature as "a form of health care that
prevents, identifies, corrects, or alleviates acute or prolonged movement dysfunction or pain of
anatomic or physiologic origin." TEX. Occ. CODE§ 453.001(6). The practice of physical therapy
includes "treatment ... to reduce the incidence or severity of disability or pain to enable, train, or
retrain a person to perform the independent skills and activities of daily living." Id.
§ 453.005(b)(3). The Legislature has also authorized the Board of Physical Therapy Examiners
(the "Board") to adopt rules necessary to regulate the practice of physical therapy. Id. §§ 453.052
(authorizing the Board to regulate the practice of physical therapy), .102(a) (authorizing the Board
to adopt rules). Pursuant to that authority the Board has further defined physical therapy to include
the "utilization of exercises, rehabilitative procedures, massage, manipulations, and physical
agents including, but not limited to, mechanical devices, heat, cold, air, light, water, electricity,
and sound in the aid of diagnosis and treatment." 22 TEX. ADMIN. CODE § 321.1(15). Those
definitions are broad in scope and encompass numerous methods and procedures that a physical
therapist may use in practice. Under section 453.303, the Legislature has expressly prohibited the
use of certain agents in the practice of physical therapy. See TEX. Occ. CODE § 453.303
(prohibiting roentgen rays or radium and electricity in certain instances). The Legislature could
have, but has not, included needles in this list of prohibited items.

       Based on the broad definitions of physical therapy established by the Legislature and the
Board, the Board has concluded that "dry needling is within the scope of practice of a Texas
physical therapist." 5 Consistent with this conclusion, it has approved forty-one post-graduate dry


        3
        Am. Physical Therapy Ass'n, Physical Therapists & the Performance of Dry Needling 2 (Jan. 2012),
www.apta.org/Statelssues/DryNeedling/.

        4 Am. Acad. of Med. Acupuncture, Policy on Dry-Needling (Dec. 9, 2014) (attached as Exhibit A to Request
Letter) (on file with the Op. Comm.).

        5 Letter from Gary Gray, Chairman, Tex. Bd. of Physical Therapy Exam'rs, to Honorable Ken Paxton, Tex.
Att'y Gen. at 7 (Dec. I 0, 2015) (on file with the Op. Comm.) ("Bd. of Physical Therapy Brief').
Mr. Allen Cline - Page 3                                (KP-0082)



needling courses as meeting the standards for continuing competence for physical therapists. Bd.
of Physical Therapy Brief at 7; see 22 TEX. ADMIN. CODE § 341.2 (requiring licensed physical
therapists to complete continuing competence requirements).

        The Legislature has vested the Board with authority to "regulate the practice of physical
therapy in this state." TEX. Occ. CODE§ 453.052. When such statutory authority exists, this office
has often deferred to the determinations made by boards regulating health professions as to what
constitutes the scope of the practice they regulate, but a regulating board may not adopt a rule that
enlarges the scope of practice of the profession beyond what the statute permits. 6 If a board adopts
a scope of practice that "is inconsistent with state law regulating" that practice, the regulating board
will have acted beyond its authority. Tex. Att'y Gen. Op. No. JC-0441 (2001) at 3 (concluding
that the Board of Podiatric Medical Examiners exceeded its authority by enlarging the practice of
podiatry beyond the language of the statute).

        Based on the definitions discussed above, trigger point dry needling is a "treatment ... to
reduce the incidence or severity of ... pain to enable ... a person to perform the independent skills
and activities of daily living," and it therefore likely falls within the Legislature's broad definition
of physical therapy. TEX. Occ. CODE § 453.005(b)(3). Furthermore, it would seem consistent
with the Board's rules to conclude that trigger point dry needling involves the "utilization of ...
physical agents ... in the aid of diagnosis or treatment." 22 TEX. ADMIN. CODE § 321.1(15). 7
Thus, a court would likely conclude that the Board of Physical Therapy Examiners has authority
to determine that trigger point dry needling is within the scope of practice of physical therapy. 8




         6
             See Tex. Att'y Gen. Op. Nos. JC-0379 (200 I) at I, DM-443 (1997) at 2, DM-423 (1996) at 4, n. I.

         7
          You submit that physical therapists should not be authorized to practice trigger point dry needling because
it involves "the use of acupuncture needles," which you suggest may only be used by persons legally authorized to
practice acupuncture. Request Letter at 3. This office previously addressed a similar argument concerning the use of
acupuncture needles by chiropractors and noted that while federal law may restrict the use of acupuncture needles to
practitioners licensed by state law to use such devices, it does not "prescribe who may be licensed by a state to use the
device." Tex. Att'y Gen. Op. No. DM-471 (1998) at 2 (concluding that the practice of acupuncture is not excluded
from the scope of practice of a licensed chiropractor); see also Tex. Att'y Gen. Op. No. DM-443 (1997) at 3
(concluding that the decision of the Board of Physical Therapy Examiners that needle electromyography is within the
scope of practice ofa licensed physical therapist is a reasonable one).

         8A number of attorneys general from other states have likewise concluded that their own state laws are broad
enough to enable their respective physical therapy regulatory boards to determine that the scope of practice of physical
therapy includes trigger point dry needling. See, e.g., Ky. Att'y Gen. Op. No. 13-0 I 0 (20 I 3) at 5, 8 ("we agree with
the Board of Physical Therapy that the definition in KRS 327.010(1) is broad enough to include 'dry needling' by a
physical therapist"); Miss. Att'y Gen. Op. No. 2012-00428 (2012) at 5 ("statutes regarding the definitions of
acupuncture ... cannot be used to interfere with or limit physical therapists who are performing !MT or dry needling
under the licensing authority of the Physical Therapy Board"); 95 Md. Att'y Gen. Op. No. I 38 (20 I 0) at I, I 3 ("the
Physical Therapy Board may determine that dry needling is within the scope of practice of physical therapy"); but see
Tenn. Att'y Gen. Op. No. 14-62 (2014) at 2 ("[L]egislation would be necessary in order to bring dry needling within
the scope of the practice of physical therapy.").
Mr. Allen Cline - Page 4                    (KP-0082)



                                    SUMMARY

                     A court would likely conclude that the Board of Physical
              Therapy Examiners has authority to determine that trigger point dry
              needling is within the scope of practice of physical therapy.

                                            Very truly yours,



                                          ~?~
                                            KEN PAXTON
                                            Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee