Dry Needling in Virginia - A Timeline 

NOTE: The Board of Physical Therapy opted to expand their scope of practice to include dry needling via the regulatory process. The ASVA Board of Directors recommends that you familiarize yourself with the steps of the regulatory process so that you understand the timeline below. You can find detailed information here.

The regulatory process in Virginia is an administrative process involving the Department of Health and Human Resources. It also includes participation by members of the executive branch who review and approve each stage of the process. The regulatory process DOES NOT involve Virginia legislators.

2005

Dr. Douglas Wayne, MD at Advanced Orthopedic Center writes the Virginia Board of Physical Therapy asking whether dry needling is within physical therapy scope of practice. The Board of Physical Therapy discusses the topic at its October 28th meeting, and responds on November 3, 2005 with a letter that read: “The Board determines scope of practice issues on a case by case basis. In regard of dry needling, the Board defers any interpretation pending a current disciplinary action.

2006

Dry Needling is discussed at the October 27, 2006 Board of Physical Therapy meeting. ASVA Board members speak out against dry needling by physical therapists during the public comment period. The Board of Physical Therapy decides to gather further information.

2007

January Board of Physical Therapy meeting - Board decides to convene a task force to research dry needling. ASVA members are present and speak during public comment period. Two Assistant Attorneys General are present.

The Board of Physical Therapy convenes a Task Force on Dry Needling which consists of 3 physical therapists, 1 acupuncturist (ASVA Board Member), and 1 medical doctor.

The Task Force meets on March 2nd (also attended by ASVA lobbyist) and a decision is made to further investigate dry needling.

The Task Force meets on March 30th. Upon a vote, the task force determines that dry needling is within the scope of practice of Physical Therapy with one vote opposed to this decision. 

At the April Board of Physical Therapy meeting, Assistant Attorney General Amy Marschean is present. The Board Chair has the Board review letters in opposition to dry needling written by ASVA members. ASVA lobbyist offers public comments in opposition to dry needling by physical therapists, as does representative of the Medical Society of Virginia. Board of Physical Therapy votes that dry needling is within scope the scope of practice for physical therapists and agrees to develop a guidance document. The Board is advised by Senior Policy Analyst that if physical therapists are to be held accountable than regulations will need to be developed, but that for the time being a guidance document is acceptable.

Members of the Acupuncture Advisory Board request a meeting with the Board of Physical Therapy to discuss and resolve concerns. ASVA President also writes to the Board of Physical Therapy expressing disagreement with the Board’s conclusion that dry needling is within the physical therapy scope of practice. This is presented to the Board of Physical Therapy at the July 2007 meeting, attended by the ASVA lobbyist.

AAAOM sends letter to Virginia Board of Physical Therapy opposing dry needling.

In November, the Board of Physical Therapy and the Advisory Board on Acupuncture meet to discuss concerns. In addition to discussion of language for the guidance document, the Advisory Board requests that the guidance document go through the regulatory process so that it is enforceable.

At the recommendation of the Task Force, the Board of Physical Therapy determined that dry needling is within the scope of practice of physical therapy in Virginia and unanimously adopts the Guidance on Dry Needling in the Practice of Physical Therapy

The Guidance Document outlines the following conditions for the practice of dry needling in Virginia:

  • Dry needling is not an entry level skill but an advanced procedure that requires additional training. 

  • A physical therapist using dry needling must complete at least 54 hours of post professional training including providing evidence of meeting expected competencies that include demonstration of cognitive and psychomotor knowledge and skills.

  • The licensed physical therapist bears the burden of proof of sufficient education and training to ensure competence with the treatment or intervention.

  • Dry needling is an invasive procedure and requires referral and direction, in accordance with §54.1-3482 of the Code of Virginia.  Referral should be in writing and specific for dry needling; if the initial referral is received orally, it must be followed up with a written referral. 

  • If dry needling is performed, a separate procedure note for each treatment is required, and notes must indicate how the patient tolerated the technique as well as the outcome after the procedure. 

  • A patient consent form should be utilized and should clearly state that the patient is not receiving acupuncture.  The consent form should include the risks and benefits of the technique, and the patient should receive a copy of the consent form.  The consent form should contain the following explanation:

Dry needling is a technique used in physical therapy practice to treat trigger points in muscles.  You should understand that this dry needling technique should not be confused with a complete acupuncture treatment performed by a licensed acupuncturist. A complete acupuncture treatment might yield a holistic benefit not available through a limited dry needling treatment.  

NOTE: A “guidance document” is any document developed by a state agency that provides information or guidance of a general nature to agency staff or the public to interpret or implement statutes or the agency’s regulations. Guidance documents are maintained and published on the Virginia Regulatory Town Hall website. 

2008

In January, the Board of Physical Therapy votes on guidance document language. ASVA Members are present as is Senior Assistant Attorney General Amy Marschean.

2008 - 2015

Virginia physical therapists practice dry needling under the conditions outlined in the guidance document. 

2015

In 2015, Governor Terry McAuliffe receives a letter from the American Academy of Medical Acupuncture, which includes their position statement on dry needling. In response, Governor McAuliffe requires the Board of Physical Therapy to create regulations to replace the guidance document. 

June 2015

The Board of Physical Therapy submits a Notice of Intended Regulatory Action (NOIRA) for the practice of dry needling by physical therapists. This is the first step in the regulatory process in which the public receives notification that a regulatory change is being considered, along with a description of the change being considered. 

The original text of the NOIRA mirrors the conditions outlined in the guidance document.

NOTE: ASVA has always maintained that the Board of Physical Therapy lacks the legal authority to expand the physical therapy scope of practice to include dry needling, especially by way of regulation rather than legislation. Several attempts are made to meet with Governor McAuliffe and the Office of the Attorney General regarding this issue. Governor McAuliffe’s office is unresponsive. The Office of the Attorney General clearly communicates their support for this regulation. 

June 2015 - November 2015

Once a NOIRA is submitted, it is reviewed by the Department of Planning and Budget, the Secretary of Health and Human Resources, and the Governor for approval before a public comment period is opened. 

The DPB completes its review on June 24, 2015. The Secretary of HHR completes its review on November 5, 2015. The Governor reviews and approves the NOIRA on November 11, 2015. 

During this time, ASVA attempts to meet with the Governor to no avail.

November 2015

ASVA hires attorney Brent Foster. Brent Foster is a Washington attorney who represented Washington Acupuncture and Eastern Medicine Association (WAEMA) during their fight against dry needling by physical therapists. Brent works with local counsel to prepare talking points for the comment period as well as the official comment submitted by ASVA. 

November 30, 2015

The public comment forum for the proposed NORIA is opened. ASVA requests acupuncturists across the nation write a comment opposing the regulation. An historic 1,496 comments were made during the 30 comment period. 1,266 of those comments oppose dry needling by physical therapists. 

November 2015 - June 2016

ASVA Board members or members acting on behalf of the ASVA Board regularly attend Board of Physical Therapy meetings to monitor progress and change to the NOIRA. ASVA Board members or members acting on behalf of the Board also make public comments opposing dry needling by physical therapists at these meetings when appropriate. 

June 2016

The Board of Physical Therapy begins Stage 2 of the regulatory process. The Board submits an agency statement outlining their response to the public comments submitted in November and December of 2015. They propose the following language for their dry needling regulation:

18VAC112-20-121

18VAC112-20-121. Practice of dry needling.

A. Dry needling is an invasive procedure that requires referral and direction in accordance with § 54.1-3482 of the Code of Virginia. Referral should be in writing; if the initial referral is received orally, it shall be followed up with a written referral.

B. Dry needling is not an entry level skill but an advanced procedure that requires additional training. The training shall be specific to dry needling and shall include emergency preparedness and response, contraindications and precautions, secondary effects or complications, palpation and needle techniques, and physiological responses.

C. Prior to the performance of dry needling, the physical therapist shall obtain informed consent from the patient or his representative. The informed consent shall include the risks and benefits of the technique and shall clearly state that the patient is not receiving an acupuncture treatment. The informed consent form shall be maintained in the patient record.

This is a drastic change from the language of the guidance document. The Board of Physical Therapy opted to remove any minimum training hour requirements. They state in their agency statement that they removed the training hours for three reasons: “1) the hours necessary to achieve minimal competency may vary; physical therapists who have had little experience in practice may need more hours to develop the competencies for Town Hall Agency Background Document Form: TH-02 10 dry needling, while those who have had more experience and other advanced education may not need basic level training; 2) there are no hours specified in the regulations of most other states; and 2) there are no hours of training specified for other highly specialized or invasive practices, such as the performance of electromyography (EMG). Results from the Analysis of Competencies for Dry Needling by Physical Therapists indicate that 86% of the knowledge requirements related to competency in dry needling is acquired during the course of PT clinical education, and on 14% of the knowledge requirements must be acquired through post-graduate education or specialized training in dry needling. All physical therapy education programs are now at the doctoral level, and some have already introduced dry needling into the curriculum.

June 2016 - December 2016

The new proposed regulation is approved by the Office of the Attorney General on June 15, 2016. The Office of the Attorney General issues a memorandum stating:

The Board has the statutory authority to promulgate this regulation under Virginia Code §§ 54.1-2400 and 54.1-3475. The proposed regulation is constitutional and does not conflict with existing federal or state laws or regulations.

The Department of Planning and Budget completes their review on July 29, 2016. The Secretary of Health and Human Resources completes their review on November 9, 2016. The Governor reviews and approves the proposed regulation on December 6, 2016. 

During this time, the ASVA Board of Directors continues to monitor the situation, attend Board of Physical Therapy meetings, and consult its lobbyist and attorneys.

December 2016

The public comment forum for the proposed regulation opens. ASVA requests acupuncturists across the nation write a comment opposing the regulation. An historic 2,049 comments were made during the 60 comment period. 1,176 of those comments oppose dry needling by physical therapists.

February 2017

The Board of Physical Therapy holds a public hearing on February 7, 2017 to hear public comments regarding the proposed regulation. ASVA coordinates Lobby Day(s) wherein members and licensed acupuncturist throughout Virginia are encouraged to attend the public hearing on Tuesday, February 7th and volunteer for Lobby Day demonstrations at the Capitol on Wednesday, February 8th. 13 people present at the hearing make a public comment in opposition of dry needling. The transcript from that hearing can be read here.

June 2017

The Board of Physical Therapy convenes a Regulatory Advisory Panel (RAP). The purpose of the RAP is to “provide professional specialization and technical assistance to the Board to address a specific regulatory issue - the Board’s proposed regulations regarding the practice of dry needling and the public comment that has been received in response to those proposed regulations. The RAP is charged with making recommendations to the full Board regarding whether the public comments received prompt any proposed changes to the current proposed regulation.

The first RAP meeting was held on June 29, 2017. The panel consisted of 7 physical therapists/physical therapy assistants and 1 licensed acupuncturist. Janet Borges represents acupuncturists on the panel. The primary areas of discussion by the panelists include: 

  1. Number of training hours; clinic and didactic hours

  2. Face to face hours; What counts in didactic education?

  3. Course approval - who approves/oversees? Qualifications of instructors?

  4. Years of practice

  5. Informed Consent

  6. Delegation

  7. Definition of dry needling

Please review the meeting minutes for details about the discussion. The Panel recommends several changes to the regulation with regard to clinical/didactic/face-to-face training, course approval, delegation, and informed consent. The Panel opts to excluding a definition of dry needling in the regulation. The Panel runs out of time to further discuss the issue of minimum required training hours for the practice of dry needling. 

August 2017

The Regulatory Advisory Panel presents its report to the Board of Physical Therapy at the Board’s August 22nd meeting. The Board unanimously votes to reconvene the Regulatory Advisory Panel  in November of 2017 to complete its discussion regarding minimum training hours.

ASVA Board members, ASVA’s lobbyist, and members of the acupuncture community attend this meeting. The Board of Physical Therapy prohibits public comments related to dry needling at this meeting. 

November 2017

The Regulatory Advisory Panel reconvenes in Richmond to further discuss minimum training hours. ASVA Board member, Aubry Fisher, is invited to sit on the panel as a representative for licensed acupuncturists in Virginia. After discussion, the Panel decides to exclude minimum training hours. The Panel votes 7-1 (nay: Aubry Fisher) to amend paragraph B.2 of the regulation to read:

The training shall consist of didactic and hands-on laboratory education and shall include passage of a theoretical and practical examination. The hands-on laboratory education shall be face-to-face.” 

The Panel votes 7-1 (nay: Aubry Fisher) to include a 4th paragraph to section B to read:

The practitioner shall not practice beyond the scope of his highest level of training.” 

During this Panel meeting, Board counsel and Assistant Attorney General, Erin Barrett, “states that the full Board has discretion to determine what constitutes competency; this could be as a minimum number of hours or as competencies - either would give the Board a framework to work with in the event there is a disciplinary case.” 

During the Panel meeting, Board counsel and Assistant Attorney General, Erin Barrett, informs panel member Aubry Fisher that “the assertion of unlicensed practice would be an antitrust issue, and the scope of physical therapy practice is not an issue.”

Aubry Fisher reports this information to ASVA attorneys in the event that ASVA must prepare for an antitrust lawsuit. 

Please review the meeting minutes for details about the discussion.

On November 17, 2017, the Board of Physical Therapy votes to adopt the changes recommended by the Regulatory Advisory Panel. The re-proposed regulation reads:

18VAC112-20-121
18VAC112-20-121. Practice of dry needling.

A. Dry needling is an invasive procedure that requires referral and direction in accordance with § 54.1-3482 of the Code of Virginia. Referral should be in writing; if the initial referral is received orally, it shall be followed up with a written referral.

B. Dry needling is not an entry level skill but an advanced procedure that requires additional [ post-graduate ] training.

[ 1. ] The training shall be specific to dry needling and shall include emergency preparedness and response, contraindications and precautions, secondary effects or complications, palpation and needle techniques, and physiological responses.

[ 2. The training shall consist of didactic and hands-on laboratory education and shall include passage of a theoretical and practical examination. The hands-on laboratory education shall be face-to-face.

3. The training shall be in a course certified by FSBPT or approved or provided by a sponsor listed in subsection B of 18VAC112-20-131.

4. The practitioner shall not perform dry needling beyond the scope of the highest level of the practitioner's training.

C. Prior to the performance of dry needling, the physical therapist shall obtain informed consent from the patient or his representative. The informed consent shall include the risks and benefits of the technique. The informed consent form shall be maintained in the patient record.

[ D. Dry needling shall only be performed by a physical therapist trained pursuant to subsection B of this section and shall not be delegated to a physical therapist assistant or other support personnel. 

December 2017

The Governor approves the revised proposed regulation on December 6, 2017. 

The Office of the Attorney General completed their review and certified the proposed regulation on December 7, 2017.

The Office of Planning and Budget submitted an Economic Impact Analysis on December 28, 2017.

May 2018

The Secretary of Health and Human Resources completed their review of the proposed regulations on May 8, 2018. The proposed regulation is then sent to the Governor's office for review. The Governor’s does not have a deadline in reviewing and approving the regulation at this stage in the process. Approval by the Governor’s office is likely delayed by the 2017 election and subsequent transition of the newly elected Governor.

November 2018

ASVA contacts its local counsel and requests a memorandum detailing the cost and likely outcome of a lawsuit against the Board of Physical Therapy.

February 2019

Local counsel responds with a memorandum estimating the initial cost of lawsuit at $20,000+. The memorandum - taking legal precedent into consideration - predicts a negative outcome for ASVA should the organization file a lawsuit against the Board of Physical Therapy. 

April 2019

ASVA presents the details of the memorandum at its 2019 Annual Membership Meeting on April 13th in Fairfax, Virginia.

Govern Ralph Northam approved the final proposed regulation on April 30, 2019.

June 2019

A 30 day public comment period opens on June 26th. It is scheduled to close on July 26, 2019. ASVA requests acupuncturists across the nation write a comment opposing the regulation.


ACUPUNCTURE SOCIETY OF VIRGINIA
P.O. BOX 1125
WARRENTON, VA 20188
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