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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-AA-1349

                         ROBERT B. JOHNSON, PETITIONER,

                                         V.

         DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, RESPONDENT.

                         On Petition for Review of an Order
                            of the District of Columbia
                                 Board of Dentistry
                                    (DEN-5788)
(Argued April 18, 2017                                        Decided July 13, 2017)

      Alan Dumoff for petitioner.
       Adam Daniel for respondent. Karl A. Racine, Attorney General for the
District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy
Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General,
were on the brief.
      Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
      Opinion for the court by Associate Judge THOMPSON.
      Concurring opinion by Associate Judge MCLEESE at page 25.


      THOMPSON, Associate Judge:       Petitioner Robert B. Johnson challenges the

October 29, 2015, Superseding Decision and Final Order (the ―Superseding

Decision‖) of the District of Columbia Board of Dentistry (the ―Board‖ or the
                                          2

―D.C. Board‖) that revoked his license to practice dentistry in the District of

Columbia. For the reasons set out below, we remand for the Board to reconsider

the sanction it imposed.



                                          I.



      On September 27, 2013, the Virginia Board of Dentistry (the ―Virginia

Board‖), after conducting a two-day hearing, issued an order revoking petitioner‘s

license to practice dentistry in Virginia. The order set out the Virginia Board‘s

findings on charges against petitioner based on the treatment of twenty-two

patients over the course of a decade. On June 18, 2014, the D.C. Board issued a

Notice of Intent to Take Disciplinary Action (―NOI‖) based on the disciplinary

action taken in Virginia.1 Based on the Virginia Board‘s findings of fact, the NOI

selectively charged petitioner with infractions in connection with the treatment of

several patients in Virginia.

      1
            See D.C. Code § 3-1205.14 (a)(3) (2012 Repl.) (providing that the D.C.
Board ―may take one or more of the disciplinary actions provided in subsection (c)
of this section [including license revocation or suspension, reprimand, a civil fine,
a course of remediation, a period of probation, or a cease and desist order] against
. . . a person permitted by this subchapter to practice a health occupation regulated
by the board in the District who . . . (3) [i]s disciplined by a licensing or
disciplinary authority . . . of any jurisdiction for conduct that would be grounds for
disciplinary action under this section‖ (italics added)).
                                          3

      The D.C. Board conducted a hearing on August 27, 2014, during which it

heard testimony from government expert witness Dr. Robert Caldwell, D.D.S.,

petitioner, and a few of petitioner‘s former patients. The Board issued a Decision

and Order on November 5, 2014 (the ―Original Decision‖), in which it adopted all

of the Virginia Board‘s findings of fact, including findings relating to acts or

omissions by petitioner that were not specified in the NOI, and revoked petitioner‘s

license to practice dentistry in the District. Petitioner timely sought review of the

Original Decision by this court. On July 16, 2015, this court granted a consent

motion to remand the record for further proceedings ―in light of [petitioner‘s

original] brief[,]‖ which asserted that the Board had erred in a number of respects,

primarily by failing to ―limit[] its inquiry into the specific charges contained in the

District‘s [NOI]‖ and by ―failing to consider whether the conduct at issue in

Virginia would have been grounds for taking disciplinary action in the District[.]‖2

Thereafter, on October 29, 2015, the Board issued its post-record-remand

Superseding Decision, which is the subject of the instant review.



      In the Superseding Decision, the Board adopted only those findings by the

Virginia Board that were repeated in the NOI. After disposing of several pending

      2
          The Board now agrees that ―some of the fact findings in Virginia may be
insufficient to form the basis of a finding of legal violation in the District.‖
                                          4

motions (including a motion by petitioner to obtain information concerning a

pending investigation by the Board into a complaint brought by a patient in the

District of Columbia, which motion the Board denied), the Superseding Decision

concluded that petitioner (who, the Board found, ―practiced general dentistry and is

a general dentist‖) committed (in Virginia) the following acts or omissions, which

it found are grounds for discipline in the District of Columbia:

    On September 9, 2010, [petitioner] injected into Patient H‘s sinus area
     [certain] homeopathic substances[;]

    On March 10, 2008 and August 11, 2009, [he] administered a series of
     injections of unspecified substances to Patient J‘s sinus area without
     documenting the dental need for or diagnosis relating to such treatment;

    On August 18, 2010, [he] replaced the crown on Patient O‘s tooth #15
     without documenting a diagnosis as to the reason for the replacement[;]

    [His] treatment record for Patient R from April 2008 to December 2010 does
     not contain an initial or updated health history[;]

    With respect to Patient T, from approximately 2003 to 2011, [his] records
     were devoid of an initial health history or subsequent updated history[;]

    [His] progress notes for Patient T end on July 22, 2009, but his billing for
     the patient indicates that he continued to provide treatment to her on
     multiple occasions after July 22, 2009[;]

    On September 26, 2005, [he] removed amalgam from Patient K‘s teeth #3,
     4, 29, 30, and 31 without an adequate dental indication for doing so (or any
     diagnosis of mercury poisoning, allergy, or related condition by a medical
     doctor)[;]
                                          5

    On September 23, 2009, [he] provided injections of procaine, methyl, and
     folic acid into Patient O‘s tonsils for pain. . . . [and] [t]here was no
     documentation of a dental diagnosis for this treatment[;]3

    On July 29, 2009, [he] performed cranial myofascial therapy on Patient S
     without adequate dental diagnosis for doing so[;]

    [He] also [in 2009] removed amalgam from Patient S‘s teeth without an
     adequate dental indication for doing so (or any diagnosis of mercury
     poisoning, allergy or related condition by a medical doctor).4



      The Board found that ―any of‖ the above-described findings — relating to

―practicing outside the scope of his dental license,‖ ―failing to conform to the

standards of acceptable conduct and prevailing practice,‖ and ―failure to properly

maintain records‖ as required by regulation in the District of Columbia — was

―sufficient to warrant the imposition of disciplinary action‖ in the District of


      3
          The NOI noted that petitioner ―testified before the Virginia Board that he
injected the tonsils because the tonsil area affects the head, neck, and facial areas.‖
      4
          Based on the Virginia Board‘s findings, the NOI also charged that on
August 18, 2010, petitioner ―did not document in Patient O‘s treatment record the
type of cement that was used to bond the crown that was placed on tooth #15,‖
and, on December 22, 2009, ―did not document in Patient O‘s treatment record the
type of cement that was used to bond the crowns that were placed on [t]eeth [#]3
and 19.‖ The D.C. Board heard no evidence about these two charges, and, in its
Superseding Decision, reached no conclusion that they described conduct
warranting discipline in the District of Columbia. Also, although petitioner‘s brief
suggests otherwise, it does not appear that the Board drew any conclusion from the
fact that the substances petitioner injected into Patient H‘s sinus area were
homeopathic.
                                         6

Columbia. Citing petitioner‘s devotion to a ―holistic approach toward the practice

of dentistry[,]‖ the Board also found ―that there are no restrictions, fines, or

courses that it could impose that would stop [petitioner] from crossing the line and

engaging in practices that are beyond the scope of practice of dentistry and/or that

fail to conform to the standards of acceptable conduct and prevailing practices of

dentistry in the District of Columbia.‖ Quoting petitioner‘s statement at the close

of the hearing that he had ―basically stopped doing‖ procedures when he learned

that they were not acceptable in Virginia, the Board found that his testimony,

which the Board called ―disingenuous and self-serving,‖ ―implie[d] that he

continued doing these procedures in some manner or form, as opposed to full-stop

cessation[,]‖ a fact that the Board found ―undermine[d] his statements that he

would not engage in conduct if he knew that it was not permissible.‖ The Board

found that petitioner ―knew or should have known that his conduct was not

acceptable and that he chose to offer these services to his patients anyway.‖ The

Board explicitly did not credit, and found ―implausible,‖ petitioner‘s testimony to

the extent that it ―attempt[ed] to convince th[e] Board that he provided services

different from the ones documented in his records.‖



      The Board found that petitioner‘s recordkeeping is ―unreliable‖ and that the

Board ―would be unable to trust the content of [petitioner‘s] records if it were to
                                           7

allow [him] to continue to practice and to attempt to monitor his conduct through

an audit of his records in the future[,]‖ and cited the ―lack[] [of] any assurances

that if allowed to maintain his dentist license . . . [petitioner] would not continue to

practice beyond the scope of his District of Columbia license, fail to conform to the

acceptable standards and prevailing practices of the profession, and fail to comply

with the District‘s recordkeeping requirements.‖ Finding ―no lesser combination

of sanctions . . . that would sufficiently protect the citizens of the District of

Columbia from [petitioner‘s] impermissible dental practices[,]‖the Board revoked

petitioner‘s District of Columbia dental license. It noted that revocation means that

he is not eligible to apply for reinstatement for five years.



      In the brief in support of his petition for review, petitioner asserts that the

only NOI charges that were sustainable were those involving documentation

failures, and that the charges set out in the NOI with regard to scope of practice

and standards of practice were based on actions or omissions that would not have

been sanctionable in the District of Columbia. He further argues that the Board

made ―numerous errors of law, applying Virginia rather than District of Columbia

legal standards,‖ that the Board applied ―vague practice standards,‖ improperly

limited the presentation of evidence, and improperly denied his motion to obtain

the results of the Board‘s investigation into his complained-about conduct in the
                                           8

District of Columbia.      Finally, he contends that even if all the charges are

sustainable, the Board ―reached a sanction that cannot be supported by substantial

evidence.‖ Petitioner asserts that the Board, in issuing its Superseding Decision,

primarily sought ―to maintain the revocation,‖ and ―simply justify the prior result,‖

rather than ―begin the consideration . . . afresh‖5 after eliminating the defects in the

Original Decision. ―[T]hat error,‖ he argues, ―still pervades [the Board‘s] decision

to use its most serious sanction.‖ He contends that the sanction the Board imposed

reflects its ―negative reaction to his ‗enthusiasm‘ about holistic dentistry‖ and

―biologic dentistry,‖6 and exposes its willingness to decide the matter based on the

full Virginia order ―no matter the [differences between Virginia and District of

Columbia law] or the evidence.‖



      5
        Zhang v. District of Columbia Dep’t of Consumer & Regulatory Affairs,
834 A.2d 97, 106 (D.C. 2003).
      6
            Petitioner explains that ―[b]iological dentists adhere to principles that
include mercury-free restorations and recognize the toxicity of mercury and care
needed in its removal, a matter of great controversy[.]‖ As evidence of the
―controversy,‖ he cites, inter alia, 38 Md. Reg. 1615, 1616 (Dec. 2, 2011), a
Maryland Department of Health and Mental Hygiene notice retracting a previous
policy and stating that ―a dentist who wishes to advertise that he or she practices
‗mercury-free dentistry‘ or removes mercury amalgams for replacement with
nonmercury-containing materials will be permitted to do so without a disclaimer‖
that acknowledges the federal Food and Drug Administration‘s position ―that there
is no causal link between dental amalgam and adverse health effects.‖ Petitioner
asserts that the Board ―magnified‖ ―Virginia‘s discomfort with mercury-free
dentistry.‖
                                         9

                                        II.



      We will reverse the Board‘s decision only if it is ―[a]rbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law[.]‖ D.C. Code § 2-

510 (a)(3)(A) (2012 Repl.). ―The [Board] must make findings on each material

issue of fact; the factual findings must be supported by substantial evidence on the

record as a whole; and the [Board‘s] conclusions must flow rationally from those

findings and comport with the applicable law.‖ Williamson v. District of Columbia

Bd. of Dentistry, 647 A.2d 389, 394 (D.C. 1994) (internal citations omitted). Our

review for abuse of discretion means that we must determine ―whether the decision

maker failed to consider a relevant factor, [or] . . . relied upon an improper

factor[.]‖ Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979) (internal

quotation marks omitted). We recognize that ―on questions of credibility[,] the

fact-finding of hearing officers is entitled to great weight.‖ Arthur v. District of

Columbia Nurses’ Examining Bd., 459 A.2d 141, 146 (D.C. 1983) (internal

quotation marks omitted). ―We must be particularly deferential to the [Board‘s]

determination where the decision lies within the agency‘s expertise[,]‖ and we are

bound by factual findings ―supported by substantial evidence on the record as a

whole‖ even if we ―may have reached a different result based on an independent

review of the record.‖ Williamson, 647 A.2d at 394. We review an agency‘s legal
                                        10

rulings de novo.   District of Columbia Dep’t of Mental Health v. District of

Columbia Dep’t of Emp’t Servs., 15 A.3d 692, 696-97 (D.C. 2011).



      We recognize that ―[a] licensing agency has broad discretion to suspend or

revoke a license for reasonable cause in order to protect public health, safety, or

morals[,]‖ and thus we review a sanction decision for abuse of discretion. Arthur,

459 A.2d at 147. As a general matter, ―[w]here . . . a sanction is within an

agency‘s statutory power to impose, an appellate court will not disturb the exercise

of that discretion solely because that sanction is more severe than penalties levied

in similar cases.‖ Kegley v. District of Columbia, 440 A.2d 1013, 1020 n.11 (D.C.

1982).



                                        III.



      Petitioner is correct that most of the instances of conduct charged in the NOI

and determined by the Board to be grounds for discipline in the District of

Columbia involved documentation failures (either no documentation of diagnosis,

or patient records lacking initial or updated health histories).7    To the extent


      7
        Relying on Dr. Caldwell‘s testimony, the Board found that ―replacing a
crown without documenting a diagnosis, failing to maintain initial and updated
                                                                      (continued…)
                                         11

petitioner suggests that these ―documentation failures‖ were merely minor

infractions, we have no basis for accepting that claim. Deferring to the Board‘s

expertise,8 we accept its expressed view that recordkeeping infractions are not

mere technical issues or minor violations, that proper recordkeeping practices are

―essential for the continuity of care of a provider‘s patients‖ and ―provide a

window into the clinical judgment exercised at the time that the services were

rendered,‖ and that petitioner‘s omissions as found by the Virginia Board and set

out in the NOI warrant reciprocal discipline.      Cf. Faulkenstein v. District of

Columbia Bd. of Med., 727 A.2d 302, 308 (D.C. 1999) (concluding that there was

―no warrant to disturb the Board‘s findings‖ where, inter alia, the evidence

depicted Faulkenstein as having ―a propensity for bad record-keeping‖ and the

Board had grave doubts about his veracity).


(…continued)
patient health histories, and failing to maintain progress notes while continuing to
provide treatment‖ were grounds for disciplinary action under D.C. Code § 3-
1205.14 (a)(24) (―Violates any provision of this chapter or rules and regulations
issued pursuant to this chapter‖) and 17 DCMR § 4213.4 (a). Section 4213.4 (a)
provides that a ―dentist shall maintain a record for each patient‖ that ―[a]ccurately
reflect[s] the evaluation and treatment of the patient[.]‖ Section 4213.4 (a)(2)
states that the patient record ―may include,‖ inter alia, an ―[u]pdated health
history.‖ Petitioner has not argued that the absence of updated health histories in
his patient records was not a regulatory violation.
      8
            See Williamson, 647 A.2d at 395 (stating that a ―determination that is
peculiarly within the Board‘s expertise relating to the practice of dentistry . . .
call[s] for particular deference‖).
                                         12

      We also cannot agree with petitioner that the only NOI charges that were

sustainable were those involving documentation failures. For example, relying on

testimony by Dr. Caldwell, the Board found, with reference to procedures the

Virginia Board found petitioner performed on Patient H, that ―inject[ing] a

substance into a patient’s sinus‖ (italics added) is not within the scope of the

practice of dentistry in the District of Columbia and is a ground for disciplinary

action under D.C. Code § 3-1205.14 (a)(21) (2012 Repl.) (―Performs, offers, or

attempts to perform services beyond the scope of those authorized by the license

held by the health professional‖).9 Petitioner‘s claim of error with respect to the

conclusion that he committed a scope-of-practice violation is that the Board‘s

finding went beyond the finding of the Virginia Board, which used the phrase ―into

Patient H‘s sinus area,‖ an ambiguous term that is consistent with the possibility

(and petitioner‘s explanation) that the injection was into the part of the oral cavity

near where the patient‘s (presumably ailing) tooth projected into the sinus. In his

testimony before the D.C. Board, petitioner noted the ―anatomical proximity of the

sinus to the roots of the maxillar molars.‖       In light of the Virginia Board‘s


      9
           The Board also made this finding with respect to Patient J and stated in
the NOI, in a paragraph that set out allegations about Patient J and Patient H, that
―[t]hese actions would be prohibited . . . in that they are beyond the scope of your
dental license.‖ Factually, however, what the NOI asserted regarding Patient J is
that petitioner administered injections into his sinus area ―without documenting the
dental need for or diagnosis relating to such treatment‖ infraction.
                                         13

ambiguous wording of the finding as to Patient H, petitioner‘s explanation was not

necessarily, as the Board characterized it, an effort to relitigate a fact resolved by

the Virginia Board.    Nevertheless, especially in light of the Virginia Board‘s

additional usage of the phrase ―into Patient . . . sinus area‖ when it found that

petitioner performed an injection ―into Patient D‘s sinus area to treat a sinus

infection‖ (a matter not charged in the NOI), we are satisfied that the D.C. Board

could reasonably infer that the Virginia Board‘s finding about Patient H was also

about an injection into the sinus itself (which petitioner acknowledges ―would have

been outside the scope of his dental license‖). Cf. Williamson, 647 A.2d at 394

(―Our function is to ascertain whether the inferences drawn by the administrative

agency are within the reasonable boundaries prescribed by the facts.‖ (internal

quotation marks omitted)).



      Further, the Board relied on Dr. Caldwell‘s testimony to find that petitioner

engaged in conduct that ―failed to conform to standards of acceptable conduct and

prevailing practices within the practice of dentistry in the District of Columbia‖

within the meaning of D.C. Code § 3-1205.14 (a)(26) (―Fails to conform to

standards of acceptable conduct and prevailing practice within a health

profession‖). That was the D.C. Board‘s conclusion about petitioner‘s use of

procaine (which Dr. Caldwell testified ―is not currently used in the practice of
                                           14

dentistry in the District of Columbia‖ and his ―performance of cranial myofascial

therapy‖ ―without an adequate dental diagnosis for doing so.‖ Petitioner argues

with some force that the Virginia Board deems cranial myofascial therapy to be

―quackery‖ and therefore would never find any ―dental diagnosis‖ ―adequate‖ to

justify it (even though, he correctly asserts, Dr. Caldwell acknowledged that he

performs such therapy and testified that it is not improper when supported by an

adequate diagnosis). However, even if we assume that the D.C. Board erred in

treating the Virginia Board‘s finding pertaining to petitioner‘s performance of

cranial myofascial therapy as a basis for discipline in the District of Columbia, we

are still left with the Board‘s conclusion, supported by Dr. Caldwell‘s testimony,

that petitioner‘s use of procaine would have been a deviation from acceptable

dental practice in our jurisdiction and is a basis for discipline here.



      The Board also relied on Dr. Caldwell‘s testimony that petitioner ―failed to

conform to standards of acceptable conduct and prevailing practices within the

practice of dentistry in the District of Columbia‖ when he removed amalgam from

the teeth of Patient K in 2005 ―without an adequate dental indication for doing so

(or any diagnosis of mercury poisoning, allergy, or related condition)‖; Petitioner

argues that it was unfair for the Board to infer that he made no diagnosis just

because, as charged in the NOI, he failed to document a diagnosis in the patient‘s
                                        15

record (and he asserts that he ―always found defects in the amalgam removed‖).

We are satisfied, however, that to the extent the Board drew an inference of the

absence of a dental diagnosis as to Patient K, it did not do so unreasonably. Cf.

Williamson, 647 A.2d at 395 (holding that the licensing board‘s conclusion that

―because there was no notation of a prescription in a patient‘s record[,] this

indicated that the prescription was issued for a reason outside a legitimate medical

purpose‖ was not arbitrary or capricious).



      We do agree with petitioner, however, that the Board relied on legally

insufficient evidence in concluding that his conduct in 2009, when he removed

amalgam from the teeth of Patient S ―without an adequate dental indication for

doing so or any diagnosis of mercury poisoning, allergy, or related condition,‖ was

―conduct that would be grounds for disciplinary action in the District of

Columbia.‖ As petitioner notes, 17 DCMR § 4213.44, added in 2007 (see 54 D.C.

Reg. 3514, 3520 (Apr. 20, 2007)), provides that ―[a] dentist shall not remove

amalgam restorations containing mercury from patients who are not allergic to

mercury for the alleged purpose of removing toxic substances from the body, when

such treatment is performed solely at the recommendation or suggestion of the
                                         16

dentist.‖ (italics added).10 Another regulation also added in 2007 contemplates that

a dentist might remove amalgam without a dental indication therefor if the dentist

has obtained ―appropriate informed consent from the patient,‖ which includes

advising the patient that ―(a) [t]he National Institutes of Health has determined that

there are no verifiable systemic health benefits resulting from the removal of

mercury amalgam restorations; and (b) [t]he removal of sound or serviceable

mercury amalgam restorations may significantly affect the integrity of the tooth.‖

17 DCMR § 4213.45. Prior to 2007, there was no D.C. regulation pertaining to

removal of amalgam.



      As the D.C. Board acknowledged, the Virginia Board made no finding about

whether petitioner removed amalgam from the teeth of Patient S solely at

petitioner‘s suggestion or recommendation (and similarly made no finding about

whether the removal was with the patient‘s informed consent). In the absence of a

finding that petitioner removed the amalgam without a dental indication therefor

and did so at his sole recommendation or suggestion (rather than, for example, at

      10
           By contrast, as petitioner points out, it appears that Virginia dental
practice standards were more stringent, requiring that a dentist ―[r]efrain from
removing amalgam restorations from a non-allergic patient for the alleged purpose
of removing toxic substances from the body.‖ Standards for Professional Conduct
in the Practice of Dentistry, Guidance Document 60-15, Virginia Board of
Dentistry, http://www.dhp.virginia.gov/dentistry/dentistry_guidelines.htm (last
visited April 27, 2017).
                                           17

each patient‘s request), the Board had an inadequate basis for concluding that the

Virginia infraction provided a basis for discipline in the District of Columbia. Dr.

Caldwell‘s testimony that ―removal of amalgam of a patient without adequate

dental indication for removal [is] a basis for discipline of a dentist in the District of

Columbia‖ was not a sufficient basis for the Board to apply a standard-of-practice

limitation that went beyond that specified in § 4213.44, the standard-of-conduct

regulation specifically addressing amalgam removal.



      We also note that while the Board found two instances of sanctionable

conduct (injections into the patients‘ sinus area) that it labeled scope-of-practice

violations (but see note 9 supra regarding the factual allegation as to Patient J), it

repeatedly emphasized Dr. Caldwell‘s testimony that injections into the tonsils

(which petitioner was found to have done in the case of Patient O) are ―not within

the scope of general dentistry practice in the District of Columbia.‖ (italics added).

During the hearing, the Board Chair remarked that ―[u]nder the laws of the District

of Columbia[,] general dentists are not treating the tonsils.‖ (italics added). The

Board returned to the subject of tonsil injections in explaining its decision on what

sanction to impose, referring to the ―superior cervical ganglion‖ (which petitioner

testified is ―right behind the tonsil‖) and stating that petitioner ―knew or should
                                          18

have known that his conduct was not acceptable and that he chose to offer these

services to his patients anyway.‖



      Although the Board‘s decision does not formally treat the tonsil injections

for Patient O as a scope-of-practice violation that was a basis for discipline in the

District of Columbia, the Board‘s frequent mention of this leaves us with the

impression that it was a significant factor in the Board‘s determination that

reciprocal discipline was warranted. Yet, neither D.C. Code § 3-1201.02 (5) (2012

Repl.), which defines the ―[p]ractice of dentistry,‖11 nor 17 DCMR § 4217, the

regulation on ―unauthorized [dental] practice,‖ defines or uses the terms ―general

dentistry‖ or ―general dentist‖ — meaning that Dr. Caldwell‘s testimony about the

scope of ―general dentistry‖ arguably lacks a legal anchor. Given Dr. Caldwell‘s

acknowledgment that ―[t]here are dentists who by skill or training or expertise in a

certain area may go beyond what general dentistry does and that might include the

tonsils[,]‖ and the absence of evidence that this practice is not ―[c]ommonly used

in dental practice in the United States‖ and ―[c]urrently taught in [American Dental

Association-accredited] United States dental schools or dental residency

programs[,]‖ 17 DCMR § 4217.1 (b)-(c), we must agree with petitioner that the

      11
            Section 3-1201.02 (5)(A) provides that the ―[p]ractice of dentistry‖
includes, inter alia, ―[t]he diagnosis, treatment, operation, or prescription for . . .
condition[s] of the . . . adjacent tissues or structures of the oral cavity[.]‖
                                         19

Board, which charged the tonsil-injection incident as a lack-of-documentation-of-

diagnosis violation, could not properly sanction it as an additional scope-of-

practice violation. Uncharged conduct, even if it would constitute a violation of

District of Columbia law, cannot form the basis for imposition of a sanction. See

D.C. Code 3-1205.14 (a)(3).



                                         IV.



      We now turn to petitioner‘s challenge to the sanction the Board imposed:

license revocation, with the opportunity to apply for reinstatement only after five

years. For two primary reasons, we conclude that we must remand this matter to

the Board for reconsideration of the sanction.



      The first reason relates to the fact that the Board imposed the sanction in a

decision after a remand, to which it consented so that it could correct errors in its

original analysis. In this circumstance, the Board ―was bound to deal with the

problem afresh, performing the function delegated to it[,]‖ SEC v. Chenery Corp.,

332 U.S. 194, 200-01 (1947), and it was obligated not to merely ―redraft[] . . . [its]

conclusions to . . . reinforce [its original] decision.‖ Ait-Ghezala v. District of

Columbia Bd. of Zoning Adjustment, 148 A.3d 1211, 1218 (D.C. 2016); see also
                                          20

Zhang, 834 A.2d at 106 (―[W]e direct that the Board not simply justify the prior

result, but rather begin the consideration of Zhang‘s application afresh in light of

this decision.‖). We note that in the Original Decision, having adopted all of the

Virginia Board‘s scores of findings (designated ―a‖ through ―kkkk‖), the Board

purported to impose a sanction ―identical‖ to the sanction the Virginia Board had

imposed (revocation). The Board endorsed the concept of discipline ―mirror[ing]

that imposed by the original disciplining jurisdiction[,]‖ explaining that it is ―a

helpful tool for the Board to consider that general legal principles support the

adoption of an identical (or mirroring) sanction as the starting point.‖



      By contrast, in the Superseding Decision, having concluded that discipline

was warranted with respect to only a fraction of the Virginia Board‘s findings and

with respect to only ten of the twelve Virginia Board findings recited in the NOI

(see supra note 4), and without having heard any additional evidence that might

justify a harsher sanction even on fewer sustained charges, the Board imposed the

very same sanction it had imposed in the Original Decision (for what it then called

―the staggering number of [petitioner‘s] conduct that constitute[d] violations of the

District laws‖).12 The Board did so even though, for example, it no longer cited (as


      12
           The Board also recognized (in a footnote in the Original Decision) that
petitioner‘s license revocation in Virginia means that he was barred from seeking
                                                                           (continued…)
                                           21

it had in the Original Decision), as a basis for discipline in the District, the Virginia

Board‘s finding that the patient the Virginia Board referred to as ―Patient I‖ had

―suffered significant [―actual‖] harm when his infection was not diagnosed and

properly treated, forcing him to seek emergency care,‖ and even though no finding

of actual harm was entailed in any of the findings the Board concluded warranted

disciplinary action here. We acknowledge that the Board was ―free on remand to

reach the same result on different grounds[,]‖ City of Charlottesville v. Fed.

Energy Regulatory Comm’n, 774 F.2d 1205, 1212 (D.C. Cir. 1985) (internal

quotation marks omitted), but these facts do not give us assurance that, on remand,

the Board actually considered the sanction afresh.13


(…continued)
reinstatement for three years (see Va. Code § 54.1-2408.2), but did not explain in
either of its decisions how the five-year waiting period for possible reinstatement
in the District of Columbia is ―identical‖ to or a ―mirror‖ of the Virginia sanction
(instead of, for example, a suspension with an opportunity to seek re-licensure after
three years). Cf. In re Olivarius, 90 A.3d 1113, 1116 (D.C. 2014) (explaining that
this court has sometimes, in attorney discipline cases, ―impose[d] essentially the
same discipline under a different label where it would be useful to do so‖ to effect
functionally equivalent reciprocal discipline).
      13
          Here, in arriving at its decision about what sanction to impose, the Board
gave great emphasis to petitioner‘s remark, in his closing statement, that he had
―basically stopped‖ doing services he had been performing when he ―found out
they weren‘t [acceptable] in Virginia,‖ a statement the Board found implied that he
continued to perform the services ―in some manner or form.‖ The colloquial
phrase petitioner used during his closing statement possibly cannot bear the weight
the Board assigned to it when, during his direct testimony, he had testified that
―when it started to become apparent to me [that there was a problem with them in
                                                                           (continued…)
                                         22

      We note in this regard that although the NOI charged petitioner with only a

fraction of the charges that had been sustained by the Virginia Board, the D.C.

Board was not precluded from considering petitioner‘s other Virginia infractions in

considering what sanction to impose, especially to the extent that the Board viewed

the Virginia findings as pertinent to petitioner‘s willingness to abide by the

practice limitations and standards of this jurisdiction as one of its licensees.14

That said, to the extent such infractions were not shown to be grounds for

discipline in the District, we caution that they cannot properly be the driving force

of the Board‘s sanction decision, lest the Board fail to adhere to the limitations of

its authority under D.C. Code § 3-1205.14 (a)(3). The Assistant Attorney General

properly recommended that ―any sanction . . . be consistent with the violations that

are stated and proved in the [NOI].‖15


(…continued)
Virginia], I have not done sinus injections and tonsil injections‖ and that he had
―not done any in DC.‖ More to the point, however, the Board was aware of
petitioner‘s ―basically stopped‖ statement when it issued its Original Decision, yet
made no mention of it at all.
      14
           Cf. Bradley v. District of Columbia, 107 A.3d 586, 595 (D.C. 2015)
(―We also afford a sentencing court considerable discretion in marshal[]ing the
factual foundation for a sentence; a court may examine any reliable evidence,
including that which was not introduced at trial, and may consider a wide range of
facts concerning a defendant‘s character[.]‖ (internal quotation marks omitted)).
      15
          In challenging the sanction the Board imposed, petitioner also asserts
that the Board erred in denying his motion in limine ―to obtain documentary
                                                                       (continued…)
                                         23

      The second reason for remand is that our analysis above concludes that there

was an insufficient basis for reciprocal discipline based on petitioner‘s removal of

amalgam from Patient S‘s teeth, at least with respect to the 2009 infraction, and an

insufficient evidentiary basis for (apparently) treating the tonsil injection as a

scope-of-practice violation. Our case law establishes that ―remand is required . . .

if substantial doubt exists whether the agency would have made the same ultimate

finding with the error removed.‖ Arthur, 459 A.2d at 146. ―[U]nless we can be

sure that the Board would have based its ruling on a lesser number [of bases for

revocation than it found to exist,]‖ we cannot affirm. Faulkenstein, 727 A.2d at




(…continued)
evidence regarding [the Board‘s] investigation of [petitioner‘s] post-Virginia
revocation practice in the District[.]‖ We decline petitioner‘s invitation to extend
the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), to this license-revocation
matter. See In re Fay, 111 A.3d 1025, 1031 (D.C. 2015) (observing that while they
are ―quasi-criminal,‖ ―disciplinary proceedings are not criminal proceedings‖).
Moreover, it appears from the record that the Board‘s investigation was regarding a
complaint by one patient, and it is not clear why anything in that narrowly-focused
investigation would have revealed information favorable to petitioner about his
general practices that would have addressed the Board‘s expressed concern about
whether petitioner would, more generally, ―completely cease‖ ―practic[ing] beyond
the scope of his District of Columbia license, fail[ing] to conform to the acceptable
standards and prevailing practices of the profession, and fail[ing] to comply with
the District‘s recordkeeping requirements.‖ Accordingly, we do not require the
Board to disclose the requested information, although it should reconsider its
ruling if the requested information in fact supports appellant‘s representation
(which the Board doubted) that he had ceased to engage in the practices charged in
the NOI.
                                         24

304 (quoting Salama v. District of Columbia Bd. of Med., 578 A.2d 693, 700 (D.C.

1990)).



      Given our disposition of this matter, we do not address petitioner‘s

remaining arguments. But ―[s]ince we must remand, we take this opportunity to

point out certain deficiencies in the findings and conclusions of the [Board].‖

Bakers Local Union No. 118 v. District of Columbia Bd. of Zoning Adjustment, 437

A.2d 176, 180 (D.C. 1981); see also Caison v. Project Support Servs., Inc., 99

A.3d 243, 250 (D.C. 2014). We have two points in mind. First, the Board faulted

petitioner for not having ―contacted the Board for clarification‖ if he ―truly wanted

to know what conduct was permissible‖ ―prior to facing disciplinary action before

this Board‖ (which, again, was based on his conduct in Virginia).               At oral

argument, counsel for the District of Columbia was unable to say whether the

Board issues advisory opinions about whether certain practices are or are not

permissible. The Board‘s criticism was misplaced if the Board would not have

given an advisory opinion regarding petitioner‘s dental practice in Virginia.



      Second, the Board stated that petitioner‘s ―conduct and practice in the

District‖ were not relevant to the Board‘s intent to take reciprocal action based on

the Virginia revocation, thus reiterating a ruling that it made during the hearing and
                                         25

that may reasonably have caused petitioner to limit his presentation.         Yet, in

explaining the sanction it chose, the Board faulted petitioner — unfairly, it seems

to us — for failing to ―address whether he has continued to remove amalgam

without an adequate dental indication, to replace crowns without documenting a

diagnosis, to perform cranial myofascial therapy without adequate dental

diagnosis, or to fail to maintain appropriate records‖ in the District of Columbia.



                                         V.



      This matter is remanded to the Board for it to reconsider the appropriate

sanction in light of this opinion.



                                              So ordered.




      MCLEESE, Associate Judge, concurring in the judgment: I agree with the

court that the case should be remanded for reconsideration of the sanction to be

imposed. Although I agree with much of the court‘s analysis, I disagree on four

points. I therefore concur in the judgment.
                                          26

      First, the court sets aside the Board‘s finding of a violation based on Dr.

Johnson‘s injections into Patient O‘s tonsils. Ante at 17-19. In the court‘s view,

that conduct was charged as a ―lack-of-documentation-of-diagnosis violation‖ but

impermissibly treated as a ―scope-of-practice violation.‖ Ante at 19. In fact,

however, that conduct was charged as a failure ―to conform to standards of

acceptable conduct and prevailing practice,‖ in violation of D.C. Code § 3-

1205.14 (a)(26).   Moreover, the Board sustained that charge, finding that the

conduct reflected a ―fail[ure] to conform to standards of acceptable conduct and

prevailing practices.‖



      The Board‘s reasoning seems to me sufficient to support the finding that Dr.

Johnson‘s injections into Patient O‘s tonsils did not conform to standards of

acceptable conduct and prevailing practices. In addition to noting that Dr. Johnson

did not document a dental diagnosis for injecting Patient O‘s tonsils, the Board

indicated that (a) one of the substances injected (procaine) is no longer used in

dentistry because of unwanted side effects; and (b) Dr. Johnson was a general

dentist who lacked specialized training about injection of the tonsils. It is true that

the Board described injection of the tonsils as outside ―the scope of general

dentistry.‖ I understand the Board to be explaining why Dr. Johnson‘s injections

into the tonsils of Patient O were contrary to ―standards of acceptable conduct and
                                          27

prevailing practice,‖ in violation of D.C. Code § 3-1205.14 (a)(26), not

impermissibly finding an uncharged violation of D.C. Code § 3-1205.14 (a)(21)

(prohibiting provision of services beyond the scope of those authorized by license).



      Second, the court criticizes the Board‘s original decision for purporting to

adopt a sanction that was identical to the sanction imposed in Virginia but that

instead carried greater consequences – revocation with a five-year waiting period

for possible reinstatement in the District compared to revocation with a three-year

waiting period in Virginia. Ante at 19-20 & n.12. I see no basis for criticism of the

Board‘s original decision, which adopted the same basic sanction of revocation

while explaining that Virginia law permitted reinstatement after three years.

Moreover, the Board in its original decision emphasized that it was not

             by any means obligated or compelled to accept the
             Virginia Decision. The Board reviews the Virginia
             Decision based on established precedents and reaches its
             own decision particularly as regards the questions of the
             District law and the ultimate sanction as, in its discretion,
             it believes appropriate in light of all relevant factors.

In any event, the reasoning of the Board‘s original decision is not relevant, because

we are reviewing the Board‘s superseding decision, and that decision made clear

that the Board was aware that revocation in the District would permit reinstatement

only after five years.
                                         28

      Third, I do not share the court‘s concerns about the Board‘s decision to

revoke Dr. Johnson‘s license even though the Board was considering only a subset

of the violations found in Virginia. Ante at 20-22. As the court acknowledges, the

Board permissibly considered Dr. Johnson‘s other Virginia infractions in deciding

what sanction to impose. Ante at 22. Although the court states that the uncharged

Virginia infractions cannot permissibly be the ―driving force‖ behind the Board‘s

sanction decision, ante at 22, I am unsure what that restriction means or what basis

the court has for suggesting that the Board gave undue weight to the uncharged

Virginia infractions.



      Finally, the court expresses concern that the Board did not ―actually

consider[] the sanction afresh‖ on remand. Ante at 21. In its decision on remand,

the Board explained at length its reasons for revoking Dr. Johnson‘s license. I see

no reason to suppose that the Board was simply ―redraft[ing] its conclusions to

reinforce its original decision.‖ Ante at 19 (ellipses, brackets, and quotation marks

omitted). See generally, e.g., Darden v. District of Columbia Dep’t of Emp’t

Servs., 911 A.2d 410, 416 n.3 (D.C. 2006) (noting ―the presumption of regularity

that attaches to the actions of Board members as official actions of public

officers‖).
