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Iowa Association of Oriental Medicine and Acupuncture v. Iowa Board of Physical and Occupational Therapy

Court of Appeals of Iowa

January 10, 2018

IOWA ASSOCIATION OF ORIENTAL MEDICINE AND ACUPUNCTURE, Petitioner-Appellant,
v.
IOWA BOARD OF PHYSICAL AND OCCUPATIONAL THERAPY, Respondent-Appellee, and IOWA PHYSICAL THERAPY ASSOCIATION, Intervenor-Appellee.

         Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.

         The Iowa Association of Oriental Medicine and Acupuncture appeals a district court ruling on its petition for judicial review following a declaratory order by the Iowa Board of Physical and Occupational Therapy. AFFIRMED.

          Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., West Des Moines, and Brent Foster, Hood River, Oregon, for appellant.

          Thomas J. Miller, Attorney General, and Laura C. Steffensmeier, Assistant Attorney General, for appellee Iowa Board of Physical and Occupational Therapy

          Douglas L. Struyk of Carney & Appleby, P.L.C., Des Moines, and John J. Bennett, Alexandria, Virginia, for appellee Iowa Physical Therapy Association.

          Heard by Danilson, C.J., and Doyle and Mullins, JJ.

          MULLINS, Judge.

         The Iowa Association of Oriental Medicine and Acupuncture (Association) appeals a district court ruling on its petition for judicial review following an order by the Iowa Board of Physical and Occupational Therapy (Board) declaring the practice of "dry needling"[1] falls within the definition of "physical therapy" contained in Iowa Code section 148A.1(1)(b) (2015). The Association contends the Board's determination is an irrational, illogical, or wholly unjustifiable interpretation of the statute.[2] See Iowa Code § 17A.19(10)(l).[3]

         I. Background Facts and Proceedings

         In August 2015, the Association petitioned the Board for a declaratory order defining "dry needling" as a form of acupuncture and a practice not within the legal scope of the practice of physical or occupational therapy. The gist of the Association's position on the matter was that physical therapists and other professionals were engaging in dry needling without formal acupuncture training, such was detrimental to public safety, and the practice of dry needling should be reserved for advanced acupuncture practitioners. In September, the American Physical Therapy Association and the Iowa Physical Therapy Association (IPTA) filed a joint petition to intervene and generally argued the practice of dry needling falls within the statutory definition of physical therapy. The Board granted the petition for intervention and established a forty-five-day public comment period.

         In January 2016, following the submission of hundreds of comments and oral arguments by the parties, the Board issued its ruling declaring "[d]ry needling falls within the definition of physical therapy because it is a rehabilitative procedure used to prevent, correct, minimize, or alleviate a physical impairment." See id. § 148A.1(1)(b). In its ruling, the Board repeated its informal position that there is "nothing in the laws and rules governing the practice of physical therapy to prohibit a physical therapist from performing dry needling, provided the physical therapist ha[s] adequate training to competently perform the technique." The Board noted several differences between dry needling and acupuncture but declined to rule whether or not dry needling is acupuncture, citing a lack of jurisdiction. See generally id. § 148E.1(3) (placing oversight of the practice of acupuncture with the board of medicine).

         The Association filed a petition for judicial review of the Board's declaratory ruling, see id. § 17A.19(1)-(2), arguing the Board "exceeded its authority in its determination dry needling is within the scope of physical therapy" and erroneously interpreted section 148A.1(1)(b). The district court granted IPTA's subsequent motion to intervene. The district court heard oral arguments in July 2016 and, in October, issued an order affirming the Board's ruling, concluding the Association failed to meet its "burden of demonstrating the Board's decision was irrational, illogical, or wholly unjustifiable." This appeal followed.

         II. Standard of Review

         "Judicial review of agency decisions is governed by Iowa Code section 17A.19." Brakke v. Iowa Dep't of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017) (quoting Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 216, 222 (Iowa 2014)). The district court acts in an appellate capacity in judicial-review proceedings. Iowa Med. Soc'y v. Iowa Bd. of Nursing, 831 N.W.2d 826, 838 (Iowa 2013) (quoting City of Sioux City v. GME, Ltd., 584 N.W.2d 322, 324 (Iowa 1998)). On appeal, this court "appl[ies] the standards of section 17A.19(10) to determine if we reach the same results as the district court." Brakke, 897 N.W.2d at 530 (quoting Renda v. Iowa Civil Rights Comm'n, 784 N.W.2d 8, 10 (Iowa 2010)). Relief in a judicial-review proceeding is appropriate only "if the ...


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