The use of "runners" or "cappers" to solicit accident victims, without more, does not constitute unprofessional conduct in violation of Minn. Stat. § 148.10, subd. 1(a)(11) and (e) (2002).
The opinion of the court was delivered by: Page, Justice.
Heard, considered, and decided by the court en banc.
David Pietsch, D.C., seeks review of a decision of the court of appeals affirming the Minnesota Board of Chiropractic Examiners' (the Board) disciplinary action against him based on the Board's conclusion that he engaged in unprofessional conduct in violation of Minn. Stat. § 148.10, subd. 1(a)(11) and (e) (2002). We reverse and remand.
Pietsch, a Doctor of Chiropractic, owns and operates the Pietsch Chiropractic Clinic in St. Paul, Minnesota. Pietsch was first licensed to practice chiropractic in Minnesota in February 1998. At all times relevant to the Board's disciplinary action, Pietsch's practice consisted primarily of treating victims of motor vehicle accidents whose injury claims were covered by no-fault automobile insurance. A sizeable number of his patients were from the Hmong and Laotian communities.
In 1999, Pietsch contracted with Hue Xiong and Cha Xiong of Xiong Translation & Transportation Company (collectively, the Xiongs) to market his chiropractic services to the Hmong community. The Xiongs' practice was to obtain publicly available accident reports from local police departments every morning. These reports were then used to identify accident victims by ethnic group so that one of Pietsch's agents from the same ethnic group could call or visit the victims in order to solicit them to become patients at Pietsch's clinic. The record indicates that Pietsch's clinic paid Xiong Translation and Transportation $71,000 in 1999 and $95,000 in 2000.
Sometime before March 1, 2001, the Board received complaints alleging that Pietsch was engaged in improper fee splitting with the Xiongs. The Board's authority includes the power to grant, deny, revoke, suspend, condition, limit, restrict, or qualify a license to practice chiropractic. See Minn. Stat. § 148.10. The Board's complaint panel met with Pietsch on March 1, 2001, to discuss the fee splitting complaints. At that meeting, Pietsch denied paying a fee or commission for patient referrals. On March 8, 2001, the Board informed Pietsch by letter that, based on the facts before it, it had concluded that there was insufficient evidence to warrant pursuing the complaints further. Subsequent to the letter, the Board received additional evidence and, on March 21, 2002, the complaint panel issued a notice and order for hearing alleging that Pietsch engaged in fee splitting in violation of Minn. Stat. § 148.10, subd. 1(a)(16), and engaged in unprofessional conduct in violation of Minn. Stat. § 148.10, subd. 1(a)(11) and (e), by using "runners" or "cappers"*fn1 to solicit people involved in automobile accidents, by instructing chiropractic interns how to falsify treatment bills and examination reports to defraud insurance companies, and by instructing interns that they could care for non-English-speaking-patients without communicating with them about their health or medical problems.
In response to the complaint panel's request for admissions, Pietsch admitted paying the Xiongs to identify and contact Hmong accident victims for the purpose of soliciting them to become patients of his clinic. On the strength of these admissions, the complaint panel brought a motion for partial summary disposition*fn2 on the issues of fee splitting and the use of "runners" or "cappers" to solicit patients.*fn3 A hearing was held on the motion before an administrative law judge (ALJ) at the Office of Administrative Hearings. The ALJ found that the complaint panel "ha[d] established that [Pietsch] paid 'runners' to solicit business from accident victims * * * in violation of Minn. Stat. § 148.10, subd. 1(a)(16)," and that in doing so Pietsch also engaged in unprofessional conduct. The ALJ concluded, however, that the complaint panel "failed to demonstrate that [Pietsch's] conduct was per se unprofessional because the [Board] introduced no evidence to support a finding that [Pietsch's] conduct violated standards of professional behavior established by the consensus of the expert opinion in the chiropractic community." Ultimately, the ALJ recommended that the Board's summary disposition motion be granted and that disciplinary action be taken against Pietsch's chiropractic license.
The Board considered the ALJ's recommendation at a hearing in October 2002 and, on November 5, 2002, the Board issued its findings of fact, conclusions, and final order. In its findings, the Board disagreed with the ALJ's finding that Pietsch's conduct was not unprofessional conduct per se, but otherwise adopted the ALJ's findings in their entirety. The Board found that Pietsch's conduct in using paid "runners" or "cappers" constituted fee splitting, in violation of Minn. Stat. § 148.10, subd. 1(a)(16), and that fee splitting, as well as using "runners" or "cappers" to solicit clients, constituted unprofessional conduct, in violation of Minn. Stat. § 148.10, subd. 1(a)(11) and (e). In support of these findings, the Board noted that "the employment of runners and the use of fee splitting arrangements negatively affect the professional-patient/client relationship and are unethical, deceptive and harmful to the public." The Board went on to say:
Fee splitting arrangements with runners can influence the type of treatment a chiropractor provides to a patient and can encourage patients to exaggerate or invent injuries. Obtaining patients by employing runners to follow up on daily police accident reports preys on people when they are most vulnerable. These patients are not given an opportunity to carefully consider and choose among health care options. They are, in fact, pressured into choosing the runner's employer for their health care.
Furthermore, [Pietsch] admits that he targeted clients from the Hmong/Southeast Asian communities. These people may have language and cultural barriers which make [Pietsch's] behavior even more egregious.
Based on its findings and conclusions, the Board suspended Pietsch's chiropractic license for three years, assessed a $30,000 civil penalty, and set out a number of conditions Pietsch ...