Gallanosa v. Ind. State Bd. of Dentistry, 87A01–1407–PL–282.

• Decision Date: 20 March 2015
• Docket Number: No. 87A01–1407–PL–282.,87A01–1407–PL–282.
• Citation: 31 N.E.3d 37 (Table)
• Parties: Arnel J. GALLANOSA, D.D.S., Appellant–Petitioner, v. INDIANA STATE BOARD OF DENTISTRY, Appellee–Respondent.
• Court: Indiana Appellate Court

31 N.E.3d 37 (Table)

Arnel J. GALLANOSA, D.D.S., Appellant–Petitioner

v.INDIANA STATE BOARD OF DENTISTRY, Appellee–Respondent.

No. 87A01–1407–PL–282.

Court of Appeals of Indiana.

March 20, 2015.

Terry A. White, Olsen & White, LLP, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BRADFORD

, Judge.

Case Summary

[1] On December 31, 2013, Appellee–Respondent the Indiana State Board of Dentistry (“the Board”) revoked Appellant–Petitioner Arnel J. Gallanosa's license to practice dentistry in the State of Indiana. Gallanosa had left and/or closed his practice, Access Dental Care (“ADC”), and failed to provide notice to his patients as he was required to do by administrative regulation. At the time of this statutory violation, Gallanosa's license was on probation for committing several acts of Medicaid fraud in 2012. Gallanosa filed a petition for judicial review which was denied by the trial court. In this appeal, Gallanosa alleges that the Board misconstrued the notice regulation, that the Board's decision was arbitrary and capricious and unsupported by substantial evidence, and that the notice regulation is unconstitutionally vague. We affirm the Board's judgment.

Facts and Procedural History

[2] The relevant facts, as originally found by the Board and incorporated as findings of the trial court, are as follows:

1. [Gallanosa]'s address on record with the Indiana Professional Licensing Agency (“ILPA”) is 137 Hiatt Drive, Carmel, Indiana 46074.

2. [Gallanosa] is a licensed dentist in the State of Indiana having been issued license number 12009962A on July 3, 1997.

3. On or around June 21, 2012, [Gallanosa]'s license was placed on probation, and is currently on probation.

4. Prior to May 20, 2013, [Gallanosa] owned Access Dental Care, located at 3750 North Meridian Street, Suite 200, Indianapolis, Indiana 46028.

5. In April 2013, Elizabeth Simpson, D.M.D. began her employment at Access Dental Care as an associate.

6. On or around May 20, 2013, [Gallanosa] transferred ownership of Access Dental Care to Dr. Simpson for only $100.00, although no cash was exchanged. [Gallanosa] initiated and performed this transfer since Access Dental Care primarily serves Medicaid patients, and [Gallanosa] was prohibited from serving Medicaid patients. Dr. Simpson had made no attempt to obtain ownership of Access Dental Care prior to this. [Gallanosa] then discontinued providing services at this location, and in Indianapolis.

7. On or around June 19, 2013, [Gallanosa] signed a termination of the lease, and the office was vacated by June 20, 2013.

8. On or around June 26, 2013, Patient A attempted to call Access Dental Care to discuss a bill, but the number was disconnected. Patient A then went to Access Dental Care and found that it was permanently closed.

9. On or around July 5, 2013, Patient B went to Access Dental Care to obtain her records and found that it was permanently closed.

10. 828 IAC 1–1–24(a)

states, “Upon retirement, discontinuation of practice, or leaving or moving from a community, a dentist shall: (1) notify all of the dentist's active patients in writing, or by publication once a week for three (3) consecutive weeks in a newspaper of general circulation in the community, that the dentist intends to discontinue the dentist's practice of dentistry in the community; and (2) encourage the dentist's patients to seek the services of another dentist.”

11. [Gallanosa] failed to comply with the provisions of 828 IAC 1–1–24(a)

either upon discontinuation of his practice and leaving Indianapolis in May 2013, or upon his termination of the lease for Access Dental Care in June 2013.

12. Dr. Simpson has taken custody of Access Dental Care's records and has placed a publication in the Indianapolis Star for three weeks as required by 828 IAC 1–1–24(a)

.

13. [Gallanosa] has had several prior disciplinary actions. In February 2012, [Gallanosa]'s license was summarily suspended after [Gallanosa] was charged with ten counts of Medicaid Fraud, five counts of Theft, and three counts of Conspiracy to Commit Medicaid Fraud.

14. In April 2012, the Board suspended [Gallanosa]'s license after [Gallanosa provided] treatment to five mental health patients without obtaining the proper consent. [Gallanosa]'s license was reinstated on probation in June 2012.

15. In February 2013, an Order to Show Cause hearing was held and [Gallanosa]'s probation was modified and [Gallanosa] was assessed a $1000 fine.

Appellant's App. p. 8.

[3] On October 9, 2013, the Consumer Protection Division of the Indiana Attorney General's Office (“CPD”) filed a complaint with the Board against Gallanosa. The Board held a hearing on December 6, 2013 and, on December 31, 2013, revoked Gallanosa's license and imposed a $1000.00 fine and a $5.00 fee against him. On January 8, 2014, Gallanosa filed a petition for judicial review. On April 30, 2014, the trial court held a hearing to review the Board's decision. On June 2, 2014, the trial court affirmed the Board's decision. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

[4] Judicial review of an administrative decision is limited under the Administrative Orders and Procedures Act (“AOPA”). Agency action subject to AOPA will be reversed only if the court “determines that a person seeking judicial relief has been prejudiced by an agency action that is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence.” See Ind.Code § 4–21.5–5–14(d)

. A trial court and an appellate court both review the decision of an administrative agency with the same standard of review. In reviewing the decision of an administrative agency, we defer to the agency's expertise and will not reverse simply because we may have reached a different result. The burden of demonstrating the invalidity of agency action is on the party to the judicial review proceeding asserting invalidity. Review of an agency's decision is largely confined to the agency record, and the court may not substitute its judgment for that of the agency. We give deference to an administrative agency's findings of fact, if supported by substantial evidence, but review questions of law de novo. On review, we do not reweigh the evidence.

[5] Terkosky v. In. Dep't of Educ., 996 N.E.2d 832, 841–42 (Ind.Ct.App.2013)

(some citations and quotation marks omitted). “An interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself.” LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000) (citing Ind. Dep't of State Revenue v. Bulkmatic Transport, Co., 648 N.E.2d 1156, 1158 (Ind.1995) ).

II. Substantial Evidence Analysis

[6] Indiana courts have defined substantial evidence as something “more than a scintilla, but something less than a preponderance of the evidence.” State v. Carmel Healthcare Mgmt. Inc., 660 N.E.2d 1379, 1384 (Ind.Ct.App.1996)

, trans. denied; see also Ind. Family and Soc. Servs. Admin. v. Pickett, 903 N.E.2d 171, 177 (Ind.Ct.App.2009) (“Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotations omitted), aff'd and clarified on reh'g. Only if the agency action is unsupported by substantial evidence or is contrary to law may it be reversed.

Terkosky, 996 N.E.2d at 842.

A. Whether Gallanosa's Actions Triggered the Notice Requirements of 828 IAC 1–1–24(a)

[7] Gallanosa claims that his decision to leave ADC did not trigger the requirements of 828 IAC 1–1–24(a)

. Specifically, he argues that the “Board misconstrued 828 IAC 1–1–24(a) by determining that Gallanosa was required to send notice to patients, who were generally unassigned to a particular dentist, when he left [ADC] intact with others to service the existing patients.”¹ 828 IAC 1–1–24(a) provides as follows:

Upon retirement, discontinuation of practice, or leaving or moving from a community, a dentist shall: (1) notify all of the dentist's active patients in writing, or by publication once a week for three (3) consecutive weeks in a newspaper of general circulation in the community, that the dentist intends to discontinue the dentist's practice of dentistry in the community; and (2) encourage the dentist's patients to seek the services of another dentist.

[8] Gallanosa's first argument-that the patients were not assigned to a particular dentist and so would not be entitled to notice under the 828 IAC 1–1–24(a)

—fails for several reasons. At the Board hearing, Patient A testified that she was a patient at ADC for approximately three years and that Gallanosa was the only doctor practicing at ADC until he “ran into the legal problems” in 2012. Petitioner's Ex. A p. 27. Gallanosa hired Dr. Simpson on April 17, 2013, and Diana Taverbaugh sometime in 2012. Patient A said that her “preference was to be seen by Dr. Gallanosa and [she] didn't want to be seen by any of the other doctors that were working in his office....” Petitioner's Ex. A p. 19. Patient A went on to testify, “I came [to ADC] specifically to see Gallanosa, which is why I didn't ever go to any other doctors.” Petitioner's Ex. A p. 24. Additionally, Patient B testified that she “became a patient of Dr. Gallanosa's” on April 2, 2013. Petitioner's Ex. A p. 7. There is substantial evidence that that the two patient witnesses were both “active patients” of Gallanosa's at the time he left ADC. Accordingly, they were entitled to notice under 828 IAC 1–1–24(a).

[9] Gallanosa's second argument—that he left ADC intact...