STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA HEARING AID SOCIETY, ) INC., CARL BECKER and ARNOLD S. ) WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-111

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 17 June 1980 at Tallahassee, Florida.

APPEARANCES

For Petitioners: Jon D. Caminez, Esquire

1030 East Lafayette Street, Suite 101

Tallahassee, Florida 32301

For Respondent: Steven W. Huss, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

By Petition filed 11 January 1980 Carl Becker and Arnold white seek reversal of cease and desist orders issued to them by the Department of Health and Rehabilitative Services (DHRS) , Respondent, to cease advertising as certified bearing aid audiologists. As a nonprofit organization representing numerous certified hearing audiologists in Florida, Florida Hearing Aid Society, Inc. also joined as a Petitioner. As grounds for having the cease and desist orders set aside Petitioners alleged there is no rule prohibiting the use of the term certified hearing aid audiologist (CHAA) , and the issuance of the cease and desist order was unauthorized and improper. Five witnesses were called by Petitioner, three witnesses were called by Respondent, and nine exhibits were offered into evidence. Ruling on the objection to the admissibility of Exhibit 7, which was reserved at the hearing, is now sustained.

Proposed recommended orders timely submitted by the parties have been considered. Proposed findings submitted and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. prior to the regulation of hearing aid dispensers in Florida in 1967, the National Hearing Aid Society and its Florida chapter, the Florida Hearing Aid Society, were voluntary nonprofit organizations established to provide information to, and establish certain standards for, its members.

   
   

2. In 1951 the National Hearing Aid Society inaugurated the title Certified Hearing Aid Audiologist and established certain criteria for certification. These included two years experience dispensing hearing aids, a letter from a doctor of medicine that he had observed a fitting that had been done by the ,applicant, credit reference, complete the National Hearing Aid Society's certified exam or its equivalent, and submit a fee to the National Hearing Aid Society. Subsequent to 1967, passing of the Florida exam for licensure as a hearing aid specialist was deemed equivalent to the National Hearing Aid Society's exam.

   
   

3. The term Certified Hearing Aid Audiologist was patented by the National Bearing Aid Society in 1970.

   
   

4. Those hearing aid dispensers certified by the National Hearing Aid Society (NHAS) were authorized by NHAS to advertise and hold themselves out at CHAA's.

   
   

5. Webster's New Collegiate Dictionary (1977) defines audiology as: A branch of science dealing with hearing; specif. therapy of individuals having impaired hearing.

   
   

6. Audiologists are licensed in Florida pursuant to Section 468.139 et seq. Florida Statutes (1979) which requires formal education and training before the applicant for licensure becomes qualified to take the examination which must be passed before certification is granted.

   
   

7. Most audiologists are designated as clinical audiologists apparently because their testing and diagnosing of clients occurs in a clinic equipped with machines designed to test and diagnose hearing difficulties.

   
   

8. Many audiologists dispense and fit hearing aids as do some otologists. The latter are exempted from hearing aid regulation by Section 468.137(2) , Florida Statutes.

   
   

9. The average person is unaware that a CHAA does not have equal (and some people believe greater) qualifications respecting hearing disorders than does an audiologist. Few people know there is any difference between the two. Even one of Petitioner's witnesses acknowledged that a lot of physicians are confused about the term certified hearing aid audiologist. Accordingly, holding oneself out as a CHAA tends to mislead the general public when one so holding himself out is not, in fact, a qualified audiologist.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

11. Section 468.129 authorizes Respondent to refuse to issue or to remove, to suspend or revoke any certificate, or to impose an administrative fine on a

    certificate holder after giving such certificate holder an opportunity for hearing for the following causes:

    
    

    1. For unethical conduct or for gross malpractice in the fitting or selling of hearing aids.

    2. [For] violation of any of the provisions of this part or of any rule or regulation promulgated pursuant to the authority delegated in this part.

Section 468.130, Florida Statutes (1979) provides in part that unethical conduct shall include:

(3) Using or causing or promoting the use of any advertising matter, promotional literature, testi- monial guarantee, warranty, label, brand, insignia, or any other representation, however disseminated or published, which is misleading, deceiving or untruthful.

1. Section 468.141 defines audiologist to mean:

   
   

   . . any person who examines, tests, evaluates, treats or counsels, for which a fee may be charged, persons suffering, or suspected of suffering, from disorders or conditions affecting hearing or assist persons in the perceiving of sound or improving the senses by which noises and tones are received as stimuli to the auditory faculties. A person is deemed to be an audiologist if he offers such services to the public under any title incorporating the terms "audiology", "audiologist", "audiological", "hearing clinic", "hearing clinician", "hearing therapy", or "hearing therapist."

   
   

2. Section 468.142 provides generally that no person shall practice or hold himself out as being able to practice audiology unless he is certified by DHRS.

   
   

3. Section 468.149 provides that violation of the provisions this part, which include s. 468.142, shall constitute a misdemeanor of the second degree.

   
   

4. From the foregoing it is clear that one holding himself out as a certified hearing aid audiologist is misleading the general public in believing the person so holding himself out possesses qualifications and training he does not have. This violates the provisions of Section 468.129 and 468.142 above quoted. Such conduct constitutes grounds for disciplinary action against the certificate of registration issued to hearing aid specialists in Florida.

   
   

5. The Petitioners herein involved are respected members

   of the hearing aid sales fraternity and have been for many years. They were certified by the National Hearing Aid Society as CHAA before audiologists and speech therapists were regulated in Florida and held themselves out in advertisements as CHAA's which they honestly believed their certificate entitled them to do. As a matter of fact before those selling hearing aids became regulated they were legally entitled to do many things they could no longer do after regulation commenced.

6. It cannot be said Petitioners acquired a prescriptive, or any other, right to use the term CHAA before audiologist received a statutory definition and requirements for such designation were established, any more than could a person could acquire a right to continue selling a non-controlled drug, for example, after it was placed on the list of controlled substances.

   
   

7. Advising Petitioners that they should cease and desist from advertising themselves as CHAA's certainly appears more appropriate under the circumstances than preferring charges against them for violating the very statutory provisions above cited. Accordingly, I find the issuance of the cease and desist order pursuant to Section 468.123(12) , Florida Statutes, both authorized and appropriate in this case. It is therefore,

RECOMMENDED that the Petition be dismissed. DONE and ENTERED this 31st day of July, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jon D. Caminez, Esquire 1030 East Lafayette Street,

Suite 101

Tallahassee, Florida 32301

Steven W. Huss, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

FLORIDA HEARING AID SOCIETY, INC., CARL BECKER and

ARNOLD S. WHITE,

Petitioner,

vs. CASE NO. 80-111

STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, finding the Recommended Order to be correct, and being otherwise well advised in the premises, hereby adopts the Findings of Fact and Conclusions of Law of the attached Recommended Order entered in this cause by Hearing Officer K. N. Ayers, dated July 31, 1980, with the further Conclusion of Law that the use of the term "certified hearing aid audiologist is prohibited in the State of Florida. Said Order is hereby declared to be and by this Order becomes the Final Order of the Department.

ORDERED that:

1. The petition of Florida Hearing Aid Society, Inc. Carl Becker and Arnold S. White is, and the same shall be, DISMISSED.

   
   

2. The use of the term "certified hearing aid audiologist" is prohibited.

   
   

3. Petitioners Carl Becker and Arnold S. White are ordered to cease and desist from use of the term "certified hearing aid audiologist."

DONE and ORDERED this 8th day of , 1980, in Tallahassee, Florida.

ALVIN J. TAYLOR

Secretary

COPIES FURNISHED:

K. N. Ayers, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Steven W. Huss, Attorney Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Jon D. Caminez, Esquire

1030 East Lafayette Street, Suite 101

Tallahassee, Florida 32301

Ralph R. Gray

Office of Consumer Drug and Device Control

Department of Health and Rehabilitative Services

Daniel Building

111 Coastline Drive, East Jacksonville, Florida 32231

Docket for Case No: 80-000111

Orders for Case No: 80-000111