Were Oregon physical therapists allowed to perform 'dry needling' in 2017, or was that acupuncture and outside their scope of practice?

Plain-English summary

"Dry needling" is a manual-therapy technique where solid filiform needles are inserted into muscle trigger points to reduce pain and improve mobility. By 2017 it had become a contested turf issue between three Oregon health-licensing boards: the Physical Therapist Licensing Board, the Oregon Medical Board (which oversees acupuncture), and the Oregon Board of Chiropractic Examiners.

The Physical Therapist Licensing Board asked the AG whether dry needling was within the statutory scope of practice for Oregon physical therapists, ORS 688.010(6).

The OCR transcription of this opinion is missing the Short Answer section text (the heading is present but the answer text was lost in OCR). The Discussion section presents the factual background: the Physical Therapist Board's evolving position from "not within scope" (2008-09, on grounds that dry needling is invasive) to "likely within scope but practitioners should not perform it until training parameters are set" (after 2009). The Oregon Medical Board concluded dry needling is acupuncture (using the same needles, techniques, and points as acupuncture). And the Oregon Ass'n of Acupuncture and Oriental Medicine v. Board of Chiropractic Examiners case held that dry needling was outside chiropractic scope of practice, but did not decide whether it was acupuncture or whether it fell within physical therapy.

For a definitive view of where the AG ultimately came out, the linked PDF is authoritative.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Why this question kept coming up

Dry needling became popular among physical therapists in the 2010s as part of an expanded manual-therapy toolkit. Acupuncturists objected that it was just acupuncture under a different name, and that allowing PTs to perform it without acupuncture training endangered patients. The Oregon Medical Board, which regulates acupuncture, sided with the acupuncturists in 2010 correspondence with the Chiropractic Examiners, defining dry needling as acupuncture. The PT Board held off; instead of formally authorizing or prohibiting dry needling, it issued cautious statements asking practitioners to abstain until training standards were set.

What the opinion did

The opinion was the AG's interpretation of ORS 688.010(6), the statutory definition of "practice of physical therapy." That section identifies what PTs may do: examine, evaluate, and test for impairments; alleviate impairments by designing and implementing physical therapy interventions; and reduce risk through interventions including health and fitness promotion. The OCR text we have shows the AG laying out the textual question but the conclusion section was lost in OCR. Readers needing the actual conclusion should rely on the official PDF.

Why this mattered

Practitioners in three professions wanted to perform dry needling: physical therapists, acupuncturists, and chiropractors. The Oregon Court of Appeals had already excluded chiropractors. If the AG concluded dry needling was acupuncture, PTs would have been excluded too unless they obtained acupuncture licensure. If the AG concluded it was within physical therapy scope, the PT Board could regulate it through training requirements.

Common questions

Q: What is dry needling?
A: A technique using solid, dry (no medication) needles inserted into muscle trigger points to relieve pain and improve mobility. The technique is taught in continuing-education seminars rather than standard PT curriculum.

Q: How is dry needling different from acupuncture?
A: That was the contested question. Acupuncturists argue they use the same needles, the same insertion techniques, and the same anatomical points, making dry needling functionally identical to a subset of acupuncture. Physical therapists argue dry needling is grounded in Western anatomical models (trigger points), distinct from acupuncture's traditional Chinese medicine framework.

Q: Why was the OCR text incomplete?
A: The PDF was a scanned image, and the optical character recognition pass missed the Short Answer text after the heading. The substantive content of the AG's conclusion is in the official PDF.

Q: Did Oregon physical therapists end up performing dry needling?
A: Practice and regulation has evolved since 2017. Verify the current scope-of-practice rules with the Physical Therapist Licensing Board before relying on this opinion.

Background and statutory framework

ORS 688.010(6) defines the scope of physical therapy. ORS 677.757(1) defines acupuncture as "the stimulation of specific points on the surface of the body by the insertion of needles." The question for the AG was whether the PT scope statute was broad enough to include trigger-point dry needling, given that the acupuncture statute could be read to cover the same physical act.

The Oregon Court of Appeals' 2014 decision in Oregon Ass'n of Acupuncture and Oriental Medicine v. Board of Chiropractic Examiners held that dry needling is not within chiropractic scope of practice but expressly declined to decide whether it was acupuncture or whether it fell within physical therapy. That left the question open for the Physical Therapist Licensing Board.

Citations and references

Statutes:
- ORS 688.010 to 688.201 (physical therapy practice)
- ORS 677.757 (acupuncture definition)

Cases:
- Oregon Ass'n of Acupuncture and Oriental Medicine v. Board of Chiropractic Examiners, 260 Or App 676 (2014)

Source

• Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2017/05/op2017-2.pdf

Original opinion text

Best-effort transcription from a scanned PDF. The Short Answer text was lost in OCR; the linked PDF is authoritative.

FREDERICK M. BOSS
Deputy Attorney General

ELLEN F. ROSENBLUM

Attorney General

85

DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION

May 19, 2017

SENT VIA EMAIL ONLY: [email protected]

James Heider

Executive Director

Physical Therapist Licensing Board
Portland State Office Building, Suite 40
800 NE Oregon Street

Portland, OR 97232

Re: Opinion Request OP-2017-2
Dear Mr. Heider:

The Oregon Physical Therapist Licensing Board asks a question about the scope of
practice of its licensees. Below we set out that question and our short answer, followed by a
discussion.

QUESTION

Is the practice of “dry needling” within the scope of practice of a physical therapist
licensed in Oregon?

SHORT ANSWER

DISCUSSION

1. Background

“Dry needling” is a technique in which solid, dry needles are inserted into “trigger
points” in the muscle and surrounding tissue to relieve pain and improve mobility. The Oregon
- Physical Therapist Licensing Board (board) informs us that the dry needling technique currently
is not taught as part of the standard physical therapy curriculum in Oregon. We understand that
physical therapists that wish to learn the technique typically do so by attending seminars put on
by companies that teach dry needling.

x

1162 Court Street NE, Salem, OR 97301-4096
Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (503) 378-5938 www.doj.state.or.us

James Heider
May 19, 2017
Page 2

In 2008 and early 2009, the board was asked by its licensees whether dry needling is
within the scope of practice of physical therapy. The board responded that it was not, because it
is an invasive procedure.

On October 17, 2009, the American Academy of Orthopedic Manual Physical Therapists
issued a position statement concluding that physical therapists “are well-trained to utilize dry
needling in conjunction with manual physical therapy interventions.” American Academy of
Orthopedic Manual Physical Therapists, Position Statement on Dry Needling, October 17, 2009.”

The board was then asked to reconsider its earlier opinion. The board issued a statement
concluding that dry needling likely is within the physical therapist scope of practice, but
cautioning that it is an ‘advanced intervention requiring post physical therapy graduate training
and education.” The board, therefore, recommended that:

[T]he acupuncture committee, physical therapist and medical Board work in
partnership, with their professional associations, to define a minimum
competency by which a physical therapist can safely practice the intervention of
dry needling trigger points. In the interest of public safety, until specific training
and education parameters can be determined, the Board strongly advises its
licensees to not perform dry needling of trigger points.

Oregon Physical Therapist Licensing Board 1 1.20.09 Statement Relevant to Physical Therapists
using the Intervention of Dry Needling.*”

Dry needling, however, remains controversial. The Oregon Medical Board and its
Acupuncture Advisory Committee regulate the practice of acupuncture in Oregon. They have
concluded that “dry needling” is acupuncture. See Letter from Kathleen Haley, Executive
Director, Oregon Medical Board to David McTeague, Executive Director Oregon Board of
Chiropractic Examiners, October 27, 2010 (concluding that dry needling is acupuncture, because
it uses the same needles, the same needling techniques, the same points, and is used for the same
purpose); see also, ORS 677.757(1) (defining acupuncture to involve “the stimulation of specific
points on the surface of the body by the insertion of needles.”). The Oregon Medical Board has
also advised that dry needling seminars should not be taught in Oregon without its preapproval
of content and instructors. Letter from Kathleen Haley, Executive Director Oregon Medical
Board to Executive Director, Oregon Health Professionals Regulatory Board, December 7, 2011.
See also, International Center for Integrative Medicine v. Kinetacore, Temporary Restraining
Order, Case # 30-216-008-35053, March 17, 2016, Superior Court of California, Orange County
(restraining insertion of acupuncture needles into humans by other than acupuncturist or medical
doctor and the delivery of acupuncture needles for Kinetacore dry needling seminar).

Physical therapists are not the only health care practitioners interested in performing dry
needling. In 2011, the Oregon Board of Chiropractic Examiners adopted a rule authorizing
chiropractors to practice dry needling. The Oregon Association of Acupuncture and Oriental
Medicine challenged the rule claiming the practice to be acupuncture. The Oregon Court of
Appeals did not consider whether the practice was acupuncture, but did hold that dry needling is

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not within the chiropractic scope of practice. Oregon Ass’n of Acupuncture and Oriental
Medicine v. Board of Chiropractic Examiners, 260 Or App 676, 320 P3d 575 (2014). The
opinion specifically declined to address whether dry needling is within the physical therapist’s
scope of practice.

After that opinion was issued, the Oregon Physical Therapist Licensing Board reaffirmed
its earlier statement that dry needling likely is within the practice of physical therapy, but should
not be performed until training and educational parameters are determined. The board has not
adopted rules or taken any other action. The board now asks us to determine whether dry
needling is within the scope of practice for physical therapists.

2. Methodology for interpreting statutes

To answer that question, we must interpret the Oregon statutes governing the practice of
physical therapy. Our goal in interpreting those statutes is to determine the intent of the
legislature that enacted them. We attempt to do so by examining the text, in context, and any
pertinent legislative history, if helpful. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009) (discussing statutory interpretation methodology).

3. ORS 688.010(6) — Practice of physical therapy
   a. -Text

ORS 688.010 to 688.201 govern the practice of physical therapy in Oregon.
ORS 688.010(6) defines the “[p]ractice of physical therapy” as:

(a) Examining, evaluating and testing for mechanical, physiological and
developmental impairments, functional limitations and disabilities or other
neuromusculoskeletal conditions in order to determine a physical therapy
diagnosis or prognosis or a plan of physical therapy intervention and to assess the
ongoing effects of physical therapy intervention.

(b) Alleviating impairments and functional limitations by designing,
implementing, administering and modifying physical therapy interventions.

(c) Reducing the risk of injury, impairment, functional limitation and
disability by physical therapy interventions that may include as a component the
promotion and maintenance of health, fitness and quality of life in all age
populations.

(d) Consulting or providing educational services to a patient for the
purposes of paragraphs (a), (b) and (c) of this subsection.

(Emphasis added).

Dry needling is used to alleviate mechanical and physiological impairments and
functional limitations. The question is whether it is a “physical therapy intervention” within the
meaning of subsection 6(b). The statutes do not define that phrase. Subsection 6(c) provides the

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sole example of a “physical therapy intervention.” It states that “physical therapy interventions
may include as a component the promotion and maintenance of health, fitness and quality of life
in all age populations.” That example does not help answer the question.

Although the statutes do not define “physical therapy interventions,” they do define
“physical therapy * * * unless the context requires otherwise” as “the care and services provided
by a licensed physical therapist or physical therapist assistant acting under the physical
therapist’s direction and control.” ORS 688.010(5). That definition clarifies that only actions
performed by licensed physical therapists or their assistants may be called “physical therapy.” It
sheds no light on which care and services are “physical therapy interventions.”

b. Dictionary definitions

As there is no applicable statutory definition of “physical therapy interventions,” we turn
to dictionaries to help determine the meaning of the phrase. That phrase is not defined in
dictionaries of common usage or in the medical dictionaries that we consulted.

Parsing the phrase, “intervention” in this context means an “action or ministration that
produces an effect or that is intended to alter the course of a pathological process.” STEDMAN’S
MEDICAL DICTIONARY at 915 (27" ed 2000). Dry needling is an “intervention” under this
definition. .

“Physical therapy” in common usage means “the treatment of disease by physical and
mechanical means (as massage, regulated exercise, water, light, heat, electricity) — compare
PHYSICAL MEDICINE.” WEBSTER’S, THIRD NEW INT’L DICTIONARY at 1707 (unabridged
2002). A medical dictionary similarly defines “physical therapy” as the “treatment of pain,
disease, or injury by physical means : SYN physiotherapy.” STEDMAN’S MEDICAL DICTIONARY
at 1822. That dictionary does not define “physiotherapy.” Webster’s defines “physiotherapy”
simply as “PHYSICAL THERAPY.” WEBSTER’S at 1707. Hence, in both common and medical
usage, “physical therapy” and “physiotherapy” are synonymous. That is significant, as we
discuss below, because the Oregon Court of Appeals interprets the term “physiotherapy” to
exclude dry needling.

“Physical therapy,” as its name suggests and dictionaries confirm, is therapy by
“physical” means. “Physical” in this context could mean either “material things” or “physical
forces.” See WEBSTER’S at 1706 (defining “physical” to mean “of or relating to natural or
material things as opposed to things mental, moral, spiritual or imaginary” or “of or relating to
physics : characterized or produced by the forces and operations of physics : employed in the
processes of physics.”).. We conclude that physical means of treatment in this context refers to
treatment by the use of physical forces for two reasons. First, treatment by “material things” is
so broad that it could encompass almost all means of health care treatment other than
psychological treatment. Second, the examples of physical means of treatment provided in the
definition of “physical therapy” involve treatment by physical forces (water, light, heat,
electricity, massage and regulated exercise).

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The common (but not the medical) definition of “physical therapy” includes “mechanical
means” of treatment. “Mechanical means” of treatment in this context most likely refers to
treatment using mechanical forces, rather than treatment with machinery or tools. See id. at 1401
(defining “mechanical” as “of, relating to, or concerned with machinery or tools” or “relating to,
governed by, or in accordance with mechanics * * * b: relating to the quantitative relations of
force and matter as distinguished from mental, vital, and chemical.”). That is the sense in which
“mechanical” is used elsewhere in the definition of “physical therapy.” See ORS 688.010(6)(a)
(referring to examining, evaluating and testing for “mechanical * * * impairments,” obviously
meaning impairments in the mechanical operations of the body, not machinery or tools). Hence,
treatment by “mechanical means” would include therapeutic exercise and the use of traction
devices, for example.

The question then is whether “dry needling” is treatment by physical or mechanical
means like light, heat, air, water, regulated exercise and massage. Dry needling involves
inserting a needle into muscle and surrounding tissue to “stimulate a reaction in trigger points.”
It is not entirely clear to us that “dry needling” works by applying a physical or mechanical
force. Interpreted in the broadest possible sense, the touch of a needle could be characterized as
the use of a mechanical force, however slight. That broad interpretation, however, would also
sweep in any treatment that touched the patient externally or internally.

Also, treatment by water, light, heat, electricity, massage and regulated exercise all
appear to refer to noninvasive forms of therapy. Dry needling is “invasive,” as it involves
puncturing intact skin and inserting a needle into internal body tissue which makes it unlike
those treatments. This qualitative difference makes it ambiguous whether dry needling is a
physical therapy intervention within the meaning of the statute. As discussed, the board initially
concluded that “dry needling” was not within the physical therapy scope of practice, because it is
an invasive procedure. We also note that whether invasive techniques are or are not within the
practice of physical therapy has been addressed with specificity in some state’s physical therapy
statutes, but not in Oregon’s.” In short, whether “physical therapy interventions” include the
techniques of dry needling is not self-evident.”

Cc. Court of Appeals interpretation of synonym “physiotherapy”

In Oregon Ass’n of Acupuncture and Oriental Medicine v. Board of Chiropractic
Examiners, the Oregon Court of Appeals interpreted “physiotherapy” as used in the chiropractic
statutes to exclude dry needling. The term had been added to the statutes in 1927 so the court
applied the definition from a medical dictionary in use at that time. The dictionary defined
“physiotherapy” to mean “[t]he use of natural forces such as light, heat, air, water and exercise.”
260 Or App at 681(citation omitted). The court concluded that dry needling was not the use of a
natural force similar to light, heat, air, water and exercise, because it is neither “natural” nor a
“force.” Id. at 683. It reasoned that, “[i]n contrast to light, heat, air, water, and exercise * * * a
needle is a man-made object.” Id. (emphasis in original). The court continued:

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[A]lthough the use of natural forces may involve man-made objects and devices,
we find nothing in the definition of physiotherapy suggesting the practice of
physiotherapy would include the application of a man-made object directly to the
internal tissues of a patient.

Td.

As discussed, “physical therapy” and “physiotherapy” are synonymous. The definition of
“physiotherapy” the Court of Appeals applied in the chiropractic statutes does not differ in any
- meaningful way from the current definition of “physical therapy.” Although the definition of
physiotherapy in 1927 specified “natural” forces and the definition of “physical therapy”
specifies “physical and mechanical forces” the examples provided of both are substantially the
‘same. In addition, to include dry needling within the meaning of “physical therapy intervention”
would require an interpretation of “physical” or “mechanical” means of treatment that is so broad
it would include virtually any technique that involved physical touch, including invasive
techniques. Based on text alone, therefore, Oregon courts likely would interpret “physical
therapy interventions” to exclude dry needling.

d. Context and legislative history

Courts do not construe statutes based on text alone, but in context and also in the light of
pertinent legislative history. Pertinent context and legislative history do not suggest a different
interpretation than the one based on text alone. At most, one piece of context bolsters
interpreting “physical therapy” to exclude invasive treatments. We begin with that context.

(1) Other statutory provision

Another provision in the physical therapy statutes, ORS 688.135(4), provides that a
“physical therapist may purchase, store and administer topical and aerosol medications as part of
the practice of physical therapy as defined in ORS 688.010.” That provision specifically
authorizes physical therapists to use one particular chemical means of treatment in their practice:
topical and aerosol medications. Significantly, that provision does not authorize physical
therapists to administer medications subcutaneously by puncturing intact skin; authorization of
that kind might have suggested that physical therapy interventions could include such invasive

procedures.
(2) Prior versions of the statute and legislative history

Context also includes prior versions of the statute. State v. Perry, 336 Or 49, 55-56, 77
P3d 313 (2003). We examined the statutory changes over time for clues as to legislative intent.
We also examined the legislative history surrounding those changes. Nothing in that context or
history suggests that the legislature intended physical therapy interventions to include dry
needling. ,

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In 1965, the physical therapy statutes defined “physical therapy” as the “treatment of a
human being by the use of exercise, massage, heat or cold, air, light, water, electricity or sound
* * * [but] shall not include radiology or electrosurgery.” Or Laws 1965, ch 314, § 1. Dry
needling clearly would not have been “physical therapy” under that definition because it does not
use any of the listed means.”

The definition of “physical therapy” was amended in 1987. Rather than specifying the
specific “forces” that qualified as treatment, the new definition provided, as pertinent, that
physical therapy includes the “use of physical measures, activities and devices for preventive and
therapeutic purposes.” Or Laws 1987, ch 726, § 5. That definition did not refer to the use of
“mechanical” measures, activities or devices.” This definition is consistent with the medical
definition of “physical therapy” as “physical” means of treatment.

The legislature amended the statute to its current form in 2005 through House Bill 3260.
Or Laws 2005, ch 627, § 3. The Oregon Physical Therapists Association had proposed the bill.
Genoa Ingram, testifying on behalf of the association, informed the legislature that the bill was
intended:

To update the statutes so that it conforms more with what other states are doing.

• • • Tt updates the language [and] it reorganizes the statutes so it makes things
      easier to find and just more logical. There are about a half a dozen states that
      have adopted, substantially adopted the [American Physical Therapy Association]
      Model Practices Act * * * everyone has had to tweak them slightly. * * * So the
      majority of the bill does not represent a change in scope but primarily a
      reorganization of the statute.

Testimony of Genoa Ingram, House Committee on Health and Human Services (HB 3260),
April 8, 2005, internet audio at 26:30 to 56:00, She identified only five policy changes that the
bill made. None are relevant. Most of the discussion focused on protection of the term “physical
therapy.” There was no discussion of the types of interventions encompassed in the practice of
physical therapy or dry needling in particular. At that time dry needling was not taught, tested,
or generally practiced by physical therapists. See J. Dommerholt, et al., 14:4 Journal of Manual
and Manipulative Therapy E70 (2006) (noting that few physical therapists had been trained in
the technique); American Physical Therapy Association, The Performance of Dry Needling at 2
(January, 2012) (although much of the anatomical, physiological and biomechanical knowledge
needed for dry needling is taught, currently the dry needling technique is not taught). As late as
2009, the board concluded that dry needling was an invasive technique not within the scope of
practice. Consequently, there is no basis to believe that the 2005 Legislative Assembly would
have thought dry needling in particular was a physical therapy intervention.

e. Conclusion based on text, context, and legislative history
To conclude that dry needling is a “physical therapy intervention” would require an

interpretation of “physical” and “mechanical” means of treatment that is so broad it would
encompass many treatments clearly not within the physical therapy scope of practice. Such an

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interpretation would also conflict with the Oregon Court of Appeals’ recent interpretation of the
term “physiotherapy,” a term we conclude is indistinguishable from the term “physical therapy.”
Nor was dry needling part of the generally accepted practice of physical therapy in 2005, which
might have suggested that the legislature would have intended it to be included as a “physical
therapy intervention.” We, therefore, conclude that dry needling is not within the scope of
practice for physical therapists licensed in Oregon.

Our conclusion is based solely on our legal analysis of the statute as currently written.
Our task is not to weigh the policies for or against permitting physical therapists to perform dry
needling. The legislature, of course, may expand the scope of physical therapy practice by

amending the statute.
CONCLUSION

Although it is a close question, 8’ based on the above analysis, we conclude that dry
needling is not within the physical therapy scope of practice in Oregon.” This opinion is
limited solely to the question whether dry needling is a “physical therapy intervention” under
ORS 688.010(6)(b) and does not address or express any opinion about any other provision or
intervention.

General Counsel Division

SAW:nog:pjn/DM7969049

’ The American Physical Therapy Association describes dry needling as:

A skilled intervention that uses 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. Dry needling
(DN) is used to treat dysfunctions in skeletal muscle, fascia, and connective tissue, and
diminish persistent peripheral nociceptive input, and reduce or restore impairments of
body structure and function leading to improved activity and participation.

American Physical Therapy Association, Description of Dry Needling in Clinical Practice:
An Educational Resource Paper at 2 (February, 2013).

2/ A Washington Attorney General opinion concludes that dry needing is not “manual therapy.”
Wash Att’y Gen Op 2016-3 (2016) (citing FARLEX AND PARTNERS, MEDICAL DICTIONARY (2009), which
defines manual therapy” as “[a] collection of techniques in which hand movements are skillfully applied
to mobilize joints and soft tissues”).

+) Safety risks may include “sepsis, excessive trauma, and perforation of the blood vessels and
organs.” See 61 Fed Reg 64616 (December 6, 1996) (describing risks associated with use of the same
needles to pierce the skin in the practice of acupuncture).

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4 ORS 688.010(2) defines “physical therapist” to mean a physical therapist licensed under
ORS 688.010 to 688.201. .

5! See, e.g., Ky Rev Stat § 327.010(1) (specifying that physical therapy includes “invasive” as
well as noninvasive procedures); Cal Gov’t Code § 2620.5 (authorizing physical therapists to penetrate
tissue only for the purpose of one specific test, and only if specially authorized by a physician or surgeon
and specially certified by board to perform the test); Haw Rev Stat § 461J-2.5 (prohibiting physical
therapists from using “invasive procedures,” defined as “the breaking or puncturing of a person’s good
skin integrity, for example, through surgery or injection”).

6 The board has adopted a rule defining “physical therapy intervention,” but that definition does
not specifically include dry needling or suggest an answer to whether dry needling is a physical therapy
intervention: .

“Physical therapy intervention” means a treatment or procedure and includes but is not
limited to: therapeutic exercise; gait and locomotion training; neuromuscular reeducation,
manual therapy techniques (including manual lymphatic drainage, manual traction,
connective tissue and therapeutic massage, mobilization/manipulation of soft tissue or
spinal or peripheral joints, and passive range of motion); mobility in work
(job/school/play), community, and leisure integration or functional training related to
physical movement and mobility in self-care and home management (including activities
of daily living (ADL) and instrumental activities of daily living JADL)); functional
training related to physical movement and reintegration (including IADL, work
hardening, and work conditioning); prescription, application, and, as appropriate,
fabrication of devices and equipment (assistive, adaptive, orthotic, protective, or
supportive); airway clearance techniques; integumentary repair and protective techniques;
electrotherapeutic modalities; physical agents and mechanical modalities; and patient
related instruction and education.

OAR 848-040-0100(8).

7 We note that the specific exclusion of “electrosurgery” and “radiology” is consistent with
physical therapy not being the practice of medicine. See WEBSTER’S at 1706-1707 (excluding
“radiology” from the examples of physical or mechanical means of treatment in the definition of physical
therapy but including it as an example of physical means of treatment in the definition of “physical
medicine”); Id. at 733 (defining “electrosurgery” as “diathermy for surgical process”); Id. at 625 (defining
“diathermy” as “the generation of heat in tissue for medical or surgical purposes by the application of
high-frequency electric currents of various wavelengths by means of electrodes and other instruments”);
Id. at 1873 (defining “radiology” as “the use of sources of radiant energy * * * in the diagnosis and
treatment of disease”).

8/ We note that several state attorneys general have issued opinions addressing whether dry
needling fits within either the physical therapy or chiropractic scope of practice under their state acts.
None found it to be an easy question. All of those opinions were based.on their own state’s statutory
language and methods of interpretation. None had the benefit of appellate court guidance on the issue.
Detailed discussion of those opinions, therefore, would not add to our analysis. We offer the following
brief summaries to illustrate the range of results the opinions have reached.

For attorney general opinions concluding dry needling is — or arguably is — within the scope of
practice see, Ky Att’y Gen Op No. 13-010 (2013) (concluding that “assistive devices” and “physical
agents” might include treatment with needles and observing that statute specifically authorized invasive
procedures); N.C. Att’y Gen Advisory Op, December 1, 2011 (licensing board had authority to determine

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whether dry needling within scope of practice but must adopt rules establishing competency standards);
Miss Att’y Gen Op. No. 2012-00428 (construing treatment by “mechanical devices” to include dry
needling); 95 Md Op Atty Gen 138 (2010) (concluding that statute did not clearly answer question, but
licensing board had discretion to determine by rule whether dry needling within scope of practice as
“mechanical device” and to establish necessary training and education); Neb Att’y Gen Op 16-009 (2016)
(“colorable argument” that dry needling is “mechanical modality” or “physical agent or modality” but
best approach to seek a legislative solution); La Att’y Gen Op No. 14-0216 (2015) (treatment by
“mechanical means and devices” broad enough to include use of solid filiform needles); Tex Atty Gen
Op No. KP-0082 (2016) (“treatment * * * to reduce the incidence or severity of * * * pain to enable * **
a person to perform the independent skills and activities of daily living” broad enough to include dry
needling);

For opinions concluding that dry needling is not within scope of practice of physical therapists,
see, Tenn Att’y Gen Op No. 14-62 (2014) (“physical agents and modalities” “mechanical and
electrotherapeutic modalities” and “manual therapy” did not clearly include the invasive use of needles
for therapeutic purposes); Wash Att’y Gen Op 2016-3 (2016) (dry needling not a “physical agent” or
“mechanical modality” because to construe those terms broadly enough to include dry needling would
also encompass a wide range of practices that clearly fall outside the practice of physical therapy); See
also, State of Washington ex rel. South Sound Acupuncture Ass’n y. Kinetacore, et al. No. 13-2-04894-
9 King County Superior Court, (October 10, 2014) (district court concluding that “the penetration of
human tissue with an acupuncture needle or any similar needle used for dry needling is outside the plain
text of the authorized scope of practice for physical therapy” in Washington).

*! We acknowledge that this conclusion is somewhat at odds with a conclusion in a 1974 Attorney
General opinion. In that opinion, we concluded that, under narrowly specified conditions, physical
therapists could perform “electromyography” tests, which might involve “insertion of a needle electrode
into the muscle.” 37 Op Atty Gen 61 (1974). That opinion, however, was issued both before the cases
establishing the current method of statutory construction and before the decision in Oregon Ass’n of
Acupuncture and Oriental Medicine.