Arkansas House Bill 2211 died in the House Public Transportation Committee during the 2011 legislative session, allowing the continuation of what the bill’s author called the “deceitful and profit-driven practice” of steering auto accident victims to chiropractors for treatment.
The bill, which the state Attorney General’s Office labeled an infringement of free speech, was the latest unsuccessful effort to curb chiropractors’ use of “runners.” Runners are individuals or companies that troll through police reports for names and addresses of people involved in wrecks and then use a variety of tactics, some of them blatantly dishonest, to lure them to a chiropractor who pays a bounty for each new patient.
Those tactics allegedly include claiming to represent the victim’s insurance company, telling accident victims that their claims will only be paid if they see the designated chiropractor, even warning that failing to see the chiropractor will cost the victim an insurance windfall.
The Arkansas Chiropractic Association labels the use of runners “unethical,” and the Arkansas State Board of Chiropractic Examiners forbids deceptive marketing. But complaints filed with the board and the Arkansas Insurance Department (see After Auto Accidents ‘Runners’ Pressure Potential Chiropractic Clients and Unauthorized Advice: Runner Disciplined for Allegedly Practicing Law) suggest that the practice is used extensively by a small number of chiropractors in Arkansas.
The board’s executive director, Rebecca Wright, says the board has no authority to regulate runners and has a hard time proving that a runner has been paid by a particular chiropractor.
HB2211, sponsored by Rep. Denny Altes, R-Fort Smith, would have addressed the problem by making it a misdemeanor for medical providers and their agents to use the information from police reports to speak to auto accident victims for the purpose of selling a service for at least 60 days following the wreck. Attorney Joey McCutchen of Fort Smith, who helped draft HB2211, said he had pushed for the legislation because the Chiropractic Board hadn’t taken any action against runners or the chiropractors who pay them.
A number of chiropractors supported the bill, and McCutchen believes the bill would have passed if the Arkansas Insurance Department and Attorney General’s Office supported it. But the AG’s Office actively opposed the bill because it “presented constitutionality concerns as they relate to the First Amendment,” spokeswoman Julie Johnson Thompson said.
The state Supreme Court had dealt with a similar question 10 years ago. In an opinion written by Chief Justice W.H. “Dub” Arnold, the court ruled that a regulation limiting chiropractors’ use of a telemarketing firm to attract clients was “an unconstitutional infringement on commercial speech, in violation of the First Amendment.”
McCutchen, however, said the Attorney General’s Office never worked with him to try to solve the constitutional concerns, which he discounted anyway.
“I felt like the constitutional concerns were not valid,” he said.
Other states have curbed runners through legislation, said James Quiggle, a spokesman for the Coalition Against Insurance Fraud in Washington, D.C.
“The runners have a large bag of deceptive tricks to try and convince accident victims to seek treatments at shady clinics that will then inflate and invent treatments that are fraudulently billed to auto insurance [companies],” Quiggle said. “It’s a widespread practice in many areas of the country.”
And it costs the insurance industry billions of dollars a year, said Howard Goldblatt, director of government affairs for the Coalition Against Insurance Fraud.
Goldblatt said Florida had limited access to police auto accident reports for 60 days to people who aren’t a party to the accident.
State Insurance Commissioner Jay Bradford said he would like to see a bill dealing with runners that is sanctioned by the National Association of Insurance Commissioners. Arkansas has one of the most generous Freedom of Information Acts in the country, so he doubts the Florida solution would work here.
“If you’re going to prohibit people from getting a public record, that’s not going to work,” Bradford said. “So you’ve got to bypass that.”
HB2211 would have applied not only to chiropractors but to other medical providers attempting to sell a service to an accident victim. The Arkansas Trial Lawyers Association tracked the legislation, said Nathan Pittman, ATLA’s director of public affairs, but took no position on it because attorneys are governed by the rules of professional conduct which prevent lawyers from directly contacting auto accident victims.
Pittman said he doesn’t think that attorneys have ever challenged the no-contact rule in court, as a chiropractor did.
“In general, like most folks, we think that these runners are despicable,” Pittman said.
Fraud Alleged
The insurance industry considers runners to be worse than despicable. Insurance organizations say fraud tied to runners costs billions of dollars a year, and the industry has lobbied for limits on access to police accident reports — the lifeblood for the runners.
“Without the runner, a lot of auto insurance fraud cannot happen,” said Michael Barry, a spokesperson for the Insurance Information Institute of New York. The runner “fulfills a key role, connecting the policyholder who is inclined to commit fraud and the medical providers who then bill the auto insurance fraudulently.”
Bradford, the insurance commissioner, said the cases involving runners were difficult to prosecute because the conversations usually take place on the phone.
The Arkansas Insurance Department has never taken action against a runner. On one occasion, the state Supreme Court disciplined a runner it said practiced law without a license.
Chiropractor Dwight Stewart of Little Rock testified in favor of the 2011 bill. He told Arkansas Business recently that the use of the runners was “getting to be more common.”
A few years ago, Stewart’s office found that, during a six-month period, more than 20 new clients had canceled their appointments with him to go to another chiropractor, he said.
“Come to find out, they’ve been steered to another [chiropractor] or facility … because of the misleading language by these runners,” Stewart said.
He said the runners would say anything to get the patients to switch, including falsely accusing Stewart of being under investigation or overcharging.
Only a small number of chiropractors use runners, Stewart said, but “they are making us look pretty bad and probably turning off some people from seeking legitimate chiropractic care because of their tactics.
“We don’t like being called at home for a survey. … But when you’re injured and you’re being called at home or someone is knocking at your door, that’s pretty offensive to some people.”
Stewart said he thought the Chiropractic Board had given up trying to stop runners.
“My position is if there was no payment, the runners wouldn’t be out there,” he said.
Use Called Unethical
Wright, the executive director of the Arkansas State Board of Chiropractic Examiners, said the board’s rules and regulations allow chiropractors to contact accident victims, but they are required to be honest in their marketing.
She acknowledged, however, that some chiropractors pay runners, but the relationships and the recruitment tactics are hard to prove because the runners aren’t technically employees of the chiropractor or clinic.
The runners deny being associated with a chiropractor or clinic, Wright said. Similarly, “when we contact the chiropractor, he says, ‘That person doesn’t work for me.’ That’s one of the reasons why it’s so difficult when these complaints come in.”
Wright said the board receives about two complaints a month about runners’ tactics, but the board doesn’t regulate runners.
“Because we don’t have documents [or] there’s no recording … it’s a he said-she said situation,” Wright said. “It’s kind of sad because we are trying to be protecting the public.”
The Arkansas Chiropractic Associa-tion said using runners was unethical.
“There aren’t many doctors doing this, but the ones that are, are doing a lot [of it],” said Stephen Matthews of Fort Smith, who is president of the association.
He said his organization supported Rep. Altes’ bill.
And the author of that bill, Joey McCutchen, hasn’t given up.
“Until we get this problem stopped,” he said, “I’m going to do everything in my power to protect Arkansas consumers from what’s going on.”
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