Petition for Review of a Decision of the District of Columbia Board of Dentistry.
Before Farrell and King, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: Petitioner, Dr. Stephen Gropp, challenges the findings of the District of Columbia Board of Dentistry (hereinafter the Board) for revoking his license to practice in the District of Columbia and barring him from applying for reinstatement for two years. The Board instituted action against petitioner pursuant to D.C. Code § 2-3305.14 (a)(13) (1988 Repl.) by filing one charge of submitting false statements to collect fees for services which were not provided. Two specifications stem from that charge. Specification A refers to insurance claims submitted in 1985 to the Pilot Life Insurance Company ("Pilot") for dental services for Ms. Rosa Torres-Alverez in November 1984 and September 1985. Specification B relates to insurance claims submitted in 1983 to Aetna Life Insurance Company ("Aetna") for dental services for Ms. Kathleen M. Lyons in October and November 1981, and in April and May 1982.
In this appeal, petitioner claims the Board erred by (1) making findings not supported by substantial evidence as to specification A; (2) basing its findings solely on documentary evidence and an affidavit as to specification B thereby denying Dr. Gropp the opportunity to confront and cross examine adverse witnesses; (3) imposing a penalty that was excessively harsh and not supported by substantial evidence; (4) unduly delaying the institution of the proceedings; and (5) failing to consider a reasonable settlement proposed in good faith by Dr. Gropp. We affirm.
Ms. Rosa Torres-Alverez ("Torres-Alverez") first became a patient of Dr. Gropp in October 1985. On October 8, October 18, and October 24, 1985, and November 1 and November 8, 1985, Dr. Gropp provided dental services for her which included X-rays, fitting and adjusting of a bridge, and cleaning of the teeth. (Gov. Ex. #1). In an undated submission in 1985 ("Pilot #1"), Dr. Gropp requested payment from Pilot for services the doctor claimed were provided to Torres-Alverez on November 14, and November 21, 1984, approximately one year before the dates set forth above. In that claim, he asserted the services provided included an oral examination/bite wing x-ray (2)/periapical x-ray (8)/complete occlusal adjustment/diagnostic casts and bridge work on teeth numbered 6, 7, 8, and 9. (Gov. Ex. 11, Attachment J). In a second undated submission to Pilot *fn1 in 1985, Dr. Gropp also submitted a claim ("Pilot #2") for performance of four quadrants of subgingival curettage and for providing an occlusal appliance for bruxism (night guard) for services claimed to have been performed by him on September 12 and 15, 1985. In that claim, Dr. Gropp also indicated that on September 8, 1985, he performed the following: oral exam/bite wing X-ray (2)/periapical X-rays (8)/prophylaxis/ complete occlusal adjustment/diagnostic casts. (Gov. Ex. 11, Attachment K).
On October 15, 1985, Dr. Gropp submitted a claim to Aetna *fn2 for services he reported he performed on Torres-Alverez on October 7 and October 11, 1985. The services listed on that claim were: oral exam/bite wing X-ray (2)/periapical x-rays (8)/prophylaxis/complete occlusal adjustment/complete periodontic scaling on October 7, 1985. The claim also listed diagnostic casts and bridge work to the teeth numbered 6, 7, 8, and 9 provided on October 11, 1985. (Gov. Ex. 11, Attachment O). Dr. Gropp testified that this claim to Aetna was pending when he submitted Pilot #1.
On November 19, 1985, Pilot sent Dr. Gropp payment in the amount of $1000 for services he claimed to have performed on Torres-Alverez on November 14 and 21, 1984 in Pilot #1. On October 1, 1985, Torres-Alverez's insurance coverage changed from Pilot to Aetna Insurance Company. In January 1986, Pilot requested a refund of the $1000 payment made in November 1985 for Pilot #1. Dr. Gropp made the refund in March 1986.
With respect to specification B, Dr. Gropp submitted claim forms on behalf of Kathleen Lyons ("Lyons") to Aetna Insurance Company in early 1983 for services said to have been provided in October and November of 1981 and in April and May 1982. The doctor claimed he treated Lyons for orthodontic, endodontic, crowns, and related services. (Gov. Ex. 11, Attachments C, E, and F). In an affidavit, Lyons swore that she had not been provided any of the dental services listed in the claims. (Gov. Ex. 12). Aetna made a payment of $1122.90 to respondent for these services in January 1984.
On October 20, 1989, the Board served petitioner with notice of intent to take disciplinary action against him for filing false statements to collect fees for services which were not provided to patients. *fn3 On January 18, 1990, the Board notified Dr. Gropp of a hearing date scheduled for March 14, 1990. On March 5, 1990, Dr. Gropp filed a motion to dismiss. The date for the hearing was continued; however, it was eventually conducted on July 18, 1990.
At the hearing, Torres-Alverez testified that some of the services the doctor claimed he rendered were in fact provided; however, the services were actually performed nearly one year after the dates set forth in the claim submitted in Pilot #1. Torres-Alverez denied ever receiving a night guard in September 1985 or at any time from Dr. Gropp. In addition, Torres-Alverez was questioned by the Board members regarding the claimed treatment for four quadrants of subgingival curettage. Based on her testimony, the Board concluded that "each quadrant of subgingival curettage requires a local anesthesia, at least one hour per quadrant and is normally done in four separate appointments." The claim submitted, however, was for performance of this service on a single day, i.e., September 12, 1985. Furthermore, since no anesthesia was administered to the patient and no after effects were ever felt by her after treatment by Dr. Gropp, the Board concluded it was "highly unlikely that petitioner performed the subgingival curettage procedure . . . since the discomfort associated with it is not likely forgotten."
Also, at the hearing, the government introduced an affidavit executed by Lyons in which she denied receiving the services set forth in the claim form submitted to Aetna in 1983. She also swore that she did not sign her name to the forms and that she had not authorized petitioner to sign her name for her. Dr. Gropp admitted that he did not provide the dental services to Lyons described in the claim and that he had no records to show when he provided any services to her. He also admitted that he signed Lyons's name on the form without her permission.
Petitioner claims that the finding of facts and Conclusions of law made by the Board with respect to specification A were not supported by substantial evidence. Specification A charges that Dr. Gropp submitted claims for services allegedly rendered to Torres-Alverez in November 1984 and September 1985 knowing that such services were not provided on those dates. The main focus of the Board was upon the claim for services alleged to have been performed in November 1984. Dr. Gropp maintains that the services claimed actually were performed in October and November 1985 (rather than November 1984), and he argues that he ...