vs. ) CASE NO. 76-921
DR. THOMAS A. MULLIN, )
Respondent. )
This case was heard pursuant to notice at several locations within Deland and in Orlando, Florida on September 12, 13, and 14, 1978. This hearing was heard by the assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an administrative complaint filed by the Department of Education against Thomas A. Mullin. This administrative complaint alleges that Mullin violated the provisions of Section 6A-10.081, Florida Administrative Code, and Part IV, Chapter 468, Florida Statutes, by conducting audiological testing and prescribing hearing aids by:
The Department of Education presented evidence in support of its allegations and the Respondent presented evidence in his own behalf. The issues presented at hearing were whether the Respondent had violated the cited rules and statutes as alleged in the administrative complaint.
During the period from September 3 through September 7, 1974, the Respondent, Dr. Thomas A. Mullin, undertook to perform audiological testing on various patients and staff at University Convalescent Center West (UCCW) and University Convalescent Center East (UCCE) in Deland, Florida. These two convalescent centers, although owned by the same corporation, were at that time separate and distinct facilities, each having its own administrator. UCCW was located at 545 West Euclid Avenue in Deland, Florida, and its administrator was Arthur Anderson. UCCE was at that located at 991 East New York Avenue in Deland, Florida, and its administrator was Gelatha Koranda. Dr. Mullin obtained permission from Arthur Anderson to conduct audiological tests at DCCW and through Anderson's recommendation obtained access to UCCE. Anderson's permission was obtained by Dr. Mullin subsequent to a discussion between Mullin and Anderson in which Dr. Mullin discussed audiological screening of the convalescent center's patients by audiology students from Florida Technological University under Dr. Mullin's supervision. In addition, Dr. Mullin and Andersen discussed a new Medicaid program under which hearing testing and hearing aids could be provided to Medicaid patients. The acquisition of hearing aids under this program was dependent upon the recommendation of an audiologist approved by Medicaid. Dr. Mullin advised Anderson that he wad so approved by MedicaId and would be glad to provide this service to patients of the nursing home at the time the audiological screening was done. Mullin told Anderson at this initial conference that he would test Medicaid patients and bill Medicaid for his professional services and that the nursing home would not be billed. It was further agreed that Dr. Mullin would provide Anderson a report on the patients. These audiological tests were subsequently conducted on Anderson's authority and without the permission and knowledge of Dr. Rauschenberger, house physician for the two nursing homes and in some instances personal physician of some of the
patients. Prior medical authorization is not required for audiological testing in general practice or under the Medicaid program.
After the testing program was completed, Dr. Mullin reported in writing to Mr. Anderson the results of the residents and staff at UCCW. Koranda, the administrator at UCE, had not requested a report be filed with her regarding Dr. Mullin's findings, and no report was rendered to her by Dr. Mullin. In neither instance did the administrators request or authorize Dr. Mullin to enter his findings in the patient's medical records maintained at the centers and no such entries were made. Expert testimony varied regarding the obligation of an audiologist to make entries in a patient's record. How ever, it was generally agreed that an audiologist would not make entries on a patient's record without authorization by the administration of the health care facility when testing was not the result of medical referral.
As a result of his testing at UCCW, Dr. Mullin prescribed hearing aids for Alfred Miller, Sallie Porter, Ruby Allen, Minnie Jennings, Florence Rogers, and Agnes Flowers, all of whom were Medicaid patients. As a result of audiological testing at UCCE, Dr. Mullin prescribed hearing aids for Jessie Robinson, Maggie Smith, Clara Brown, Emma Van Landingham, Emily Burkhart, Della Stone, and Lenora Gell, all of whom were Medicaid patients.
Dr. Mullin prepared prescriptions for hearing aids on the persons named above, and forwarded these prescriptions to Orange Hearing Aid Center in Orlando, Florida which provided and fitted the hearing aids to the individuals. Dr. Mullin submitted the bill directly to the Department of Health and Rehabilitative Services for his professional services in screening Medicaid patients' hearing and for his professional services in screening and prescribing heading aids for Medicaid patients.
Dr. Mullin's basic hearing evaluation test consisted of a pure tone air conduction test. Dr. Mullin conducted further testing if necessary to include a pure tone bone conduction test, speech discrimination test, and speech reception threshold test. A master hearing aid was used for the hearing aid selection process and an audiometer used for the basic testing. Dr. Mullin prescribed hearing aids on the basis of these latter tests
Dr. Mullin had planned to conduct all testing in a specially adapted trailer, but was unable to use this trailer because of the immobility of the patients. A bathing facility or "tub room" in each of the nursing homes was provided by the nursing home administration for conducting the tests, and represented to be the only facility available for the testing. These facilities were not ideal in terms of their construction and location for conducting audiological testing. However, Dr. Mullin took what measures he could to reduce ambient noise levels, to include the use of aural domes. No clear and convincing evidence was introduced that the noise conditions during Dr. Mullin's tests were so bad that his test results were invalid. In fact, subsequent tests made by the Board revealed that the patients tested by Dr. Mullin were hard of hearing, although some of the results differed slightly in degree of loss.
Subsequent to the testing, as mentioned above, Dr. Mullin filed a written report with Arthur Anderson, administrator of UCCW. This report was rendered on the letterhead of Florida Technological University. This report revealed that Rogers, Silfies, Bowen, Covington, Peppett, Trodden Turner, Farrow, Howard, and Tidson had normal hearing. The report contained specific comments with regard to Rolle, Rigsbee, Goodrich, Rosato, VonDohler, Shalhoub, Thompson, Owens, Murkinson, Tholl, and Hocker. Silfries, Rolle, Owens, Peppett,
Goodrich, and Hocker were Medicaid patients upon whom Mullin submitted billings to Medicaid through the Department of Health and Rehabilitative services. The comments on Thompson, Owens, Murkinson and Tholl indicate referral to otolaryngologists. The specific comments with regard to Rolle, Goodrich, Rosato, and Shalhoub indicate a hearing loss but no recommendation for a hearing aid due to some specific contra-indication.
The billings submitted to Medicaid through the Department of Health and Rehabilitative Services are consistent with the findings reported in Exhibit 3. The billings were for basic hearing evaluations on those Medicaid paie:ts who were determined to have normal hearing and for selective amplification procedures in addition to basic evaluation for those patients whose hearing was not normal. The billings are substantiated by the report filed with Anderson and the audiograms prepared. However, the report does reveal that Herman Owens, who was referred to an otolaryngologist for removal of impacted cerumen in the right ear, received both basic hearing tests and selective hearing amplification procedures, both of which were billed to Medicaid; and J. L. Hocker received selective amplification testing although Mullin's comments indicated that Hocker's right ear had recently undergone surgery for removal of a carcinoma. However, Medicaid's criteria for testing were not introduced and no evidence was introduced, that a patient with impacted ears should not be tested. Also this report contains no reference to the patients for whom Dr. Mullin had prescribed a hearing aid. The report does reveal that where contra-indicated, whether because of the nature of the hearing loss, as indicated with Rolle and Rosato, or patient attitude, as in the case of Goodrich, Dr. Mullin did not prescribe a hearing aid. This relates particularly to the allegation that Dr. Mullin prescribed hearing aids for certain patients who did not want hearing aids, and an implication made that Dr. Mullin recommended hearing aids for patients who could not benefit from them. This report which is on Florida Technological University letterhead is the sole support of the charge that Dr. Mullin misused his connection with Florida Technological University. It is clear that this report was rendered after the testing had been concluded. Clearly, his report rendered after the testing on the letterhead of Florida Technological University could not have been an inducement to Anderson to permit Mullin access to the convalescent center. However, the fact is clear that Dr. Mullin did make a personal profit for a venture undertaken in connection with an otherwise authorized university activity.
The evidence indicates that the hearing aids prescribed by Dr. Mullin and provided by Orange Hearing Aid Center were fitted by Merrill Schwartz. Schwartz fitted these hearing aids at UCCW and UCCE. There is no indication that UCCE or UCCW failed to cooperate in any way with Schwartz gaining access to the patients and fitting them with aids. To the contrary, the evidence indicates that both centers cooperated fully in providing Schwartz the opportunity and facilities to fit the hearing aids. The fact that both centers did not question the fitting of the hearing aids substantiates Dr. Mullin's assertion that Anderson expected hearing aids to be fitted to patients under the Medicaid program.
Expert testimony was received that the only positive evaluation of the utility of the hearing aid to a patient is a trial by the patient using the aid to include counselling on the use and benefits of the hearing aid to overcome a patient's possible aversion to the aid. Dr. Mullin testified that he had prescribed the aids on a thirty day trial basis, and his audiograms substantiate this. However, his prescriptions to Orange Hearing Aid Center did not reflect any trial period. Merrill Schwartz, the hearing aid salesman for Orange Hearing Aid Center, stated that he fitted the aids from the prescriptions and no trial
period was stated. However, the current owner, Irwin Pensack, stated that during his transitional period in taking over Orange Hearing Aid Center from Emmanuel Gitles, that Gitles had impressed upon him the importance of maintaining good customer relationships and providing trial periods routinely when requested. Why the 30 day trial was not included in the prescription was not explained by Dr. Mullin, who stated it was his understanding they were for a
30 day trial. However, in this same regard, the evidence further reveals that none of the staff at UCCW or UCCE contacted Dr. Mullin or Orange Hearing Aid Center with regard to followup counseling or return of the hearing aids when the patients failed to properly use them. It is questionable how effective a 30 trial period would have bean under the circumstances. No evidence was presented to show hat Dr. Mullin received any type of "kickback" or other benefit from Orange Hearing Aid Center.
Although substantial and competent evidence was introduced that some of the patients who were fitted with the hearing aids were senile, expert testimony was received that such a condition is not a contra-indication of the need and benefit to the patient of the use of a hearing aid. This is particularly true since the effects of deafness and senility subjectively reinforce one another. Expert testimony was also received that an audiologist would not routinely provide followup services subsequent to audiological testing and the prescription of a hearing aid unless requested to do so by the patient or the hearing aid dealer. The evidence indicates that Dr. Mullin did not receive any requests for followup from either UCC er UCC on behalf of any of the patients for whom hearing aids were prescribed, from patients themselves, or the dealer. The one call made from a patient who had received a hearing aid was made to Orange County Hearing Aid for followup services or repair. Said services were provided by Orange Hearing Aid Center, and indicates that this patient was using the hearing aid.
The bills submitted to Medicaid through the Department of Health and Rehabilitative Services were in accord with Medicaid's published schedules for the professional services rendered by Dr. Mullin. There is no substantial and competent evidence that Mullin charged for work he did not do or overcharged for the work that he did.
CONCLUSIONS OF LAW
The parties stipulated at the hearing that the rules applicable in this particular proceeding would be Section 6A-10.081, Florida Administrative Code. (Supp 55). A copy of these rules were received into evidence as Exhibit 13, and will be applied in this case. Paragraph 8 of the administrative complaint was withdrawn by Petitioner.
Essentially, Dr. Mullin is charged with violation of professional conduct by violating the provisions of 6A-10.081, the code of ethics for the practice of speech pathology and audiology. The administrative complaint is not specific with regard to what portions of Section 6A-10.081, Florida Administrative Code, are violated by the conduct enumerated In the administrative complaint. However, the argument of counsel for the Department of Education indicates that the conduct enumerated violates the provisions of
6A-10.081(2)(b)(3), Florida Administrative Code, Section 6A-10.081(2)(c), Florida Administrative Code, Section 6A-10.08l(3)(c) , Florida Administrative Code, and Section 6A-10.081 (2)(d), Florida Administrative Code, In addition, the Department asserts that Dr. Mullin's conduct violates Section 468.147(2), (4), and (5), Florida Statutes. Specifically, the Department alleges that Dr. Mullin violated the provisions of Section 6A-10.081(2)(d) (c) and (3)(c) by
failing to obtain medal authorization from the personal or attending physician and by failing to provide information to and seek information from the attending physician as set forth in the factual allegations of paragraph 7 a, b and c of the administrative complaint. The Department alleges that Dr. Mullin violated the provisions of Section 6A-10.081(2)(d) by failing to re-examine the patients and provide followup services, as set forth specifically in the factual allegations of paragraph 7 f. The Department allege the violation of Section 468.147(2)(4) and (5), Florida Statutes. Violation of subsection 2 is based upon violation of the rules cited above. Violation of subsection 4 is based upon obtaining authorization to test the patients by means of fraud, misrepresentation, or concealment of material facts, as set forth in the factual allegations contained in paragraph 7 d, e, f, and j of the administrative complaint. The Department alleges violation of subsection 5 on the basis that Dr. Mullin's general conduct as alleged in paragraph 7 a through j.
Referring to the factual allegations contained in the administrative complaint, the evidence shows that Dr. Mullin did not obtain medical clearance or authorization from the personal or attending physician of any of the patients who he tested. However, Dr. Mullin did obtain the authorization of the administrators, which under the circumstances presented in this case, was sufficient authorization to treat these patients in the absence of some specifically medically related problem affecting audiometric testing of a patient or a health problem discovered during the conduct of audiometric testing would require referral of the patient, there is no obligation for an audiologist to establish liaison with an individual's personal or attending physician. The evidence presented shows that Dr. Mullin did report to Mr. Anderson his findings with regard to most UCCW patients whom he saw and recommended referral of some to an otolaryngologist. The evidence also shows that Ms. Koranda did not request such a report. There is no evidence that any of the patients seen at UCCE, administered by Ms. Koranda, had any medical difficulties requiring their referral to a physician. Dr. Mullin did maintain his personal records on each of the patients whom he tested and the evidence does not reveal any obligation or authorization for Dr. Mullin to have entered his test results in the medical records of the patients at either of the centers. The evidence generally indicates that such an authorization is necessary before an audiologist may make input into a patient's record. Therefore, the evidence does not substantiate the allegations of paragraph 7 a, b and c of the administrative complaint.
The evidence presented shows that the individuals for whom hearing aids were prescribed did have impaired hearing. This is evident from Dr. Mullin's test results and those test results obtained by the Board. To the extent that the hearing of some of the individuals tested might have improved, expert testimony was received that subtle fluctuations in an individual's hearing may occur. Because the Board's testing occurred nearly six months after Dr. Mullin's testing, such slight fluctuation of hearing cannot be determinative of the question of whether Dr. Mullin's prescription of a hearing aid was inappropriate based upon their hearing loss. Similarly, expert testimony was received that an individual's subjective need or personal desire to use a hearing aid is not necessarily a disqualifying factor in the prescription of a hearing aid. The primary evidence presented in support of the Department's allegation was that some of these patients were senile and had difficulty caring for themselves. Expert testimony was received that even senile patients may benefit from the use of a hearing aid. Similarly, expert testimony was received that the individual's personal desire to wear a hearing aid is not necessarily disqualifying to the prescription of a hearing aid. Dr. Mullin's report to Anderson reveals an instance in which he did not prescribe a hearing aid because of a patient's attitude and several in which the nature of the hearing loss
disqualified the individual from efficient use of a hearing aid. The factual allegations contained in paragraph 7 d and e were not proven.
The evidence presented shows that Dr. Mullin did not provide followup services to the patients at either convalescent center. It was not shown, however, that such services were requested, needed, or dictated through professional usage. Followup services were in fact available and were provided through the hearing aid fitter. The allegations of paragraph 7 f of the administrative complaint were not proven.
The evidence shows that Dr. Mullin submitted bills for hearing testing and for tests related to the prescription of hearing aids to Medicaid through the Department of Health and Rehabilitative Services. The testimony received indicated that these charges were consistent with the fee schedule established by the Department of Health and Rehabilitative Services and no substantial and competent evidence was presented that Dr. Mullin did not perform the services for which he charged. The allegations contained in Section 7 g were not proven.
The specific allegations of paragraph 7 h are that Dr. Mullin's testimony was limited to basic pure bone air conduction threshold measures and that no master hearing aid, speech audiometer, or any similar amplifying device was employed as part of the evaluation procedure. These specific allegations were not proven. In fact, the testimony indicated that a combination pure tone air conduction tests, pure tone bone conduction tests, speech discrimination tests, and speech threshold tests were conducted for all patients who receive hearing aid prescriptions. These tests were conducted using an audiometer and a master hearing aid. The allegations of paragraph 7 h were not proven.
The allegations of paragraph 7 relate to the deficiencies of the test environment used by Dr. Mullin in the audiometric testing at UCCE and UCCW. The record reflects that Dr. Mu1lin planned to use a special trailer to conduct the audiometric testing, but could not do so because of the immobility of the patients. The room used was the only one available, and Dr. Mullin recognized the room's deficiencies. There is a conflict in the testimony regarding whether the fan and light combination in the room, which was the major noise source in the room, was used during testing. Dr. Mullin testified that it was not used and that a table lamp was used instead of the fan-light combination. Dr. Mullin's testimony is accepted as the most accurate because he spent the greatest period of time in the room and was using this as a student exercise.
It is reasonable to assume that Dr. Mullin attempted to attain an optimum testing environment to enhance the learning experience. The Board's test data is not adjusted to compensate for the absence of fan noise and the use of aural domes. The testimony based upon these tests asserted that the noise level was too high with the fan running. No adjustment was made to the test data for the noise attenuation of aural domes. There is no substantial competent evidence regarding the noise levels in the noise levels in the room without the fan on and using aural domes. Absent such data, there is no showing that the noise levels in the room without the fan on and using aural domes exceeded acceptable standards. The allegations of paragraph 7 (i) were not proven.
The allegations f paragraph 7 (j) relate to Dr. Mullin's use of Florida Technological University letterhead stationery to obtain consent to the testing program which was in part a private venture. The record reflects the only use of Florida Technological University letterhead was for an after-action report. Clearly, the use of such letterhead after the test had been conducted did not effect Anderson's decision to let Dr. Mullin conduct audiometric testing at his center. The record does, however, reflect that Dr. Mullin did obtain
access initially to both centers on the basis of audiological screening on the part of his students and as a function of the University. During his initial conversation with Anderson, the testing of Medicaid patients and prescription of hearing aids was raised. Dr. Mullin's uncontroverted testimony was that he advised Anderson that he would do such testing, prescribe hearing aids as reeded, Dr. Mullin did do this and billed Medicaid for his services The fact that neither center questioned or protested the subsequent arrival of Schwartz to fit hearing aids is indicative of the fact that Anderson contemplated that hearing aids would be fitted as a result of the testing. Screening patients and staff was done by students as a part of their clinical experience under Dr. Mullin's supervision and as a part of an authorized university program.
Therefore, the allegations of paragraph 7 (j) are not proven.
Although it is not specifically alleged as a violation in the complaint, Section 6A-10.081 (4)(a) states that an audiologist shall guard against conflicts of professional interests. Subparagraphs 1 and 2 of this subsection clarify the conflicts to be avoided. Subparagraph 1 provides:
He (an audiologist) shall not accept compensation in any form from a manufacturer or a dealer in prosthetic or other devices for recommending
any particular product.
Subparagraph 2 provides:
He shall not engage in any commercial
activities that conflict with his responsibilities to the persons he serves
professionally or to his colleagues. He shall not permit his professional titles or accomplishments to be used in the sale or promotion of any product related to his professional field. He shall not perform clinical services or promotional
activity for any profit making organization that is engaged in the retail sales of equipment, publications or other
materials. He may be employed by
a manufacturer or publisher, provided that his duties are consultative, scientific, or educational in nature.
The evidence is clear that while engaging in a university activity directly relating to the clinical experiences of his students, Dr. Mullin was engaging in a personal business venture from which he derived direct economic benefit. Although a conflict of interest exists, it is not the conflict addressed by the rule cited above. The rule addresses conflicts between the interest of the audiologist and the patient or his colleagues in the audiology profession. No such conflict is apparent from the facts in this case. Dr. Mullin did not endorse, promote, sell or recommend any equipment, publication materials, or product. However, he did violate his duty and responsibility to the university system for which he worked by engaging in an activity for his own economic benefit while supervising clinical experience of his students. Such an activity may be prohibited by the rules and regulations of the Board of Regents; however, this hearing is not for the purpose of determining whether Dr. Mullin violated such rules. Such a showing would not be material or relevant to the charges brought against him in this cause.
The record in this case further indicates that the testing of Medicaid patients and the prescription of hearing aids to Medicaid patients was the result of professional interests of one of the nursing home administrators in obtaining Medicaid benefits for his Medicaid patients. Unfortunately, this interest did not extend to providing these patients with the necessary followup care to insure that the patients obtained the maximum benefit from their hearing aids. The record indicates that staff at the institutions did not provide counseling to the patients on the use of their hearing aids or recontact Dr. Mullin to provide audiological counseling to the patients to assist them in the use of their hearing aids. The response of staff of the convalescent centers was to pick up the hearing aids and secure them as valuable piece of property rather than recognizing their potential benefit as prosthetic devices to the patients for whom they had been prescribed. This failure cannot be attributed to Dr. Mullin or to Mr. Schwartz.
Based upon the foregoing Findings of Facts and Conclusions of Law, the Hearing Officer recommends that no action be taken against the certificate of Thomas A. Mullin as a speech pathologist and audiologist.
DONE and ORDERED this 26th day of October, 1978, in Tallahassee, Florida.
STEPHEN F. DEAN
Howard R. Marsee, Esquire Post Office Box 20154 Orlando, Florida 32814
Gene Sellers, Esquire General Counsel's Office Department of Education Knott Building
James M. Russ, Esquire
