LDP 3fSB4L RECEIVED APR 15 2003 STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS DEPARTMENT OF HEALTH, ADMINISTRATIVE LAW Petitioner, Cy “Ls vs. Case No. AS 2001-19141 | *, DON F. KUTIK, | Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, (hereinafter “Petitioner”) by and through its undersigned qualified representative and files its Administrative Complaint against Respondent, DON F. KUTIK, (hereinafter “Respondent”) and alleges: NATURE OF THE ACTION 1. This is an action to impose administrative penalties and assess costs related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072 and 484.056, Florida Statutes. JURISDICTION AND VENUE 2. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes. 3. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of hearing aid specialists pursuant to Section 20.43, Florida Statutes, and Chapters 456’ and 484, Part Il, Florida Statutes. 5. Atal times material hereto Respondent has been licensed as a hearing aid specialist, having been issued license number AS2426 on June 18, 1992. 6. Respondent's last known address is Beltone Hearing Center, 5070 SE Federal Highway, Stuart, FL 34997. GENERAL ALLEGATIONS 7. On January 25, 2000, Respondent sold a patient whose initials are C.V. (hereinafter “CV") a pair of canal type hearing aids in Stuart, Florida for $2,600.00. 8. On February 24, 2000, Respondent delivered the hearing aids to the patient. 9. After the delivery, the patient was unable to use the right hearing aid for the purpose for which it was purchased. 10. The patient was unable to get sufficient volume out of the hearing aid without encountering feedback. 11. Respondent failed to perform pure tone audiometric testing by air and bone prior to fitting and selling the hearing aids. 12. Respondent failed to utilize effective masking procedures prior to fitting and selling the hearing aids although the need for it was indicated. ‘Formerly Chapter 455, Part ll; see Chapter 2000-160, Laws of Florida. 2 13. Respondent failed to perform appropriate testing to determine speech reception thresholds, most comfortable listening levels, and uncomfortable loudness levels. 14. The left hearing aid Respondent sold to the patient was impractical for the purpose represented or implied by the sale. 145. The left hearing aid Respondent sold to the patient was not suitable for the patient's degree of hearing loss. 16. The testing performed by Respondent prior to the sale could not have been used to accurately identify the type or degree of correction needed by the patient. 17. Respondent failed to maintain the patient's testing records for a period of four years. COUNT! 18. Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-17. 19. Respondent is guilty of negligence or incompetency, or both negligence and incompetency, in the practice of dispensing hearing aids. 20. Based on the foregoing, Respondent is subject to discipline under Section 484.056(1)(g), Florida Statutes (1999), for being guilty of negligence or incompetency in the practice of dispensing hearing aids. COUNT II 21. Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-17. 22. Based on the foregoing, Respondent is subject to discipline under Section 484.056(1)(L), Florida Statutes (1999), for selling and delivering a product impractical for the purpose represented or implied by such action. COUNT Ill 23. Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-17. 24. Based on the foregoing, Respondent is subject to discipline under Section 484.056(1)(h), Florida Statutes (1999), for violating Rule 64B6-6.007, Florida Administrative Code, by failing to maintain patient CV's records for 4 years. COUNT IV 25. Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-17. 26. Based on the foregoing, Respondent violated Section 484.0501(1)(a), Florida Statutes (1999), by failing to use pure tone audiometric testing by air and bone to determine the type and degree of hearing deficiency prior to Respondent's fitting and selling of hearing aids to patient CV. 27. Based on the foregoing, Respondent is subject to discipline under Section 484.056(1)(h), Florida Statutes (1999), for violating Section 484.0501(1 )(a), Florida Statutes (1999), with respect to Respondent's fitting and selling of hearing aids to patient CV. CLAIM FOR RELIEF WHEREFORE, Petitioner respectfully requests the BOARD OF HEARING AID SPECIALISTS to enter an order imposing one or more of the following penalties pursuant to Sections 456.072 and 484.056, Florida Statutes and Rule 64B6-7.002, Florida Administrative Code: a. b. f. g. Revocation or suspension of Respondent's license; Restriction of Respondent's practice; . An administrative fine; . Areprimand; . Restitution or Refund of fees billed and collected from the complainant(s) or a third party on behalf of the complainant(s); Probation; and/or Any other penalty the Board deems appropriate. i. Dated this 7 day of PR/ L— , 2003. Respectfully submitted, CHARLES J. CRIST, JR. FI LED Attorney General PARTMENT DE OF HEALTH ST} DEPUTY CLERK CLERK hi Kenen a DATE 14/23 Steven Graham Qualified Representative PCP: DATE: Department of Legal Affairs 110 S.E. 6" Street Fort Lauderdale, FL 33301 (954) 712-4600 Yordon, Smith March 13, 2003 NOTICE OF HEARING RIGHTS AND ASSESSMENT OF COSTS RESPONDENT IS HEREBY NOTIFIED THAT HE/SHE HAS THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 420.57, FLORIDA STATUTES. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED EXPLANATION OF RIGHTS. ALL REQUESTS FOR HEARING MUST BE MADE WITHIN 21 DAYS OF RECEIPT AND SENT TO STEVEN GRAHAM, QUALIFIED REPRESENTATIVE, DEPARTMENT OF LEGAL AFFAIRS, 110 S.E. 6™ STREET, FORT LAUDERDALE, FLORIDA 33301. RESPONDENT IS PLACED ON NOTICE THAT PETITIONER HAS INCURRED COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF THIS MATTER. PURSUANT TO SECTION 456.072(4), FLORIDA STATUTES, THE BOARD SHALL ASSESS COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF A DISCIPLINARY MATTER, WHICH MAY INCLUDE ATTORNEY HOURS AND COSTS, ON THE RESPONDENT IN ADDITION TO ANY OTHER DISCIPLINE IMPOSED. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy has been served by certified H mail this 7 _day of APPL _,2003 to: DON F. KUTIK, Beltone Hearing Center, 5070 SE Federal Highway, Stuart, FL 34997.

Docket for Case No: 03-003453PL