The Issue Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?
Findings Of Fact At all times relevant to this proceeding Respondent William D. Williston has been a licensed hearing aid specialist in Florida, having been issued license no. 1439 by the Florida Board of Hearing Aid Specialist, commencing April 1, 1983. At all times relevant to the inquiry Respondent operated a business known as the Sumter Hearing Center in Wildwood, Florida, from which hearing aids were sold and dispensed. At times relevant to the inquiry Respondent sponsored Darleen L. Sherman as a trainee at his business. Respondent also served as the designated hearing aid specialist to assist in the training of Ms. Sherman. Respondent served in the capacity of direct supervisor to Ms. Sherman in her attempt to learn the necessary skills to become a licensed hearing aid specialist. Respondent's initial sponsorship and supervision of Ms. Sherman's training, wherein Respondent had been designated to serve, was for the training period June 24, 1997 through December 23, 1997. Ms. Sherman completed that training program. Following the completion of her training she took the hearing aid specialist examination. She failed the written theory portion of the examination taken May 1, 1998 through May 3, 1998. Ms. Sherman and Respondent were made aware of those results by notice mailed to the candidate for licensure on June 4, 1998. On June 6, 1998, Ms. Sherman reapplied to participate in a training program sponsored and supervised by Respondent. This was a request to repeat the training. Ms. Sherman's application form submitted to Petitioner was accompanied by a form completed by Respondent as sponsor, also dated June 6, 1998. On June 8, 1998, a check was written by Ms. Sherman to Petitioner in the amount of $105 for the stated purpose of participation in the "second training program." On June 13, 1998, Ms. Sherman was officially registered for the repeat training program with Respondent serving as sponsor and a prospective examination date to gain her license as hearing aid specialist was provided. That date for examination was sometime in January 1999. The training program registration identified the repeat training program period as running from June 12, 1998 through December 11, 1998. Stage I to that training program was June 12, 1998 through July 11, 1998; Stage II July 12, 1998 through September 11, 1998, and Stage III September 12, 1998 through December 11, 1998. During the hiatus between being notified that Ms. Sherman had failed the May 1998 examination and the beginning date for the repeat training program, Ms. Sherman, with Respondent's knowledge, acted in behalf of Respondent's hearing aid specialist business in Wildwood, Florida. This took place on June 9, 1998, involving the patient C.D., outside Respondent's presence. On that date Ms. Sherman performed hearing aid testing on C.D. and sold C.D. new hearing aids manufactured by Rexton for a total price of $4,000. The first $2,000 to purchase was paid on that date. The sales receipt provided C.D. was signed by Ms. Sherman indicating that she was a hearing aid specialist, which she was not. C.D. also signed the receipt form. The receipt provided C.D. on June 9, 1998, indicated that the hearing aids were guaranteed by Rexton for a period of one year with a loss and damage provision available with a 25% deductible. C.D. was provided another document which he signed and dated June 9, 1998. That document was entitled "30-day trial agreement." By its terms it said: I agree to wear my new hearing aid for the full 30-day trial period, and will come in at least once a week for consultation and any adjustments that may be needed. If the hearing aids are returned to the laboratory for any modification, my trial period will resume upon refitting of the hearing aids. I realize that hearing aid fittings are individual in nature and that it is normal to expect adjustments to be made. It has taken a long time for my hearing loss to develop, and will take some time to once again begin to enjoy the sound of life. Respondent was aware of the use of this type form in his business and the type of sales receipt form utilized in the transaction with C.D. Contrary to Respondent's testimony it is not found that C.D. was provided a form with information entitled "30-day trial agreement terms and conditions" as of the purchase date June 9, 1998, or upon any other date. C.D. in his testimony disclaimed being presented the form "30-day trial agreement terms and conditions." His testimony is supported by his wife, V.D. Ms. Sherman does not recall whether the form "30-day trial agreement terms and conditions" was provided to C.D. The "30-day trial agreement terms and conditions" was used on occasion by Respondent and Ms. Sherman but not here. The form is similar to the notice requirements set forth in Section 484.0512, Florida Statutes, dealing with the statutory requirement for a 30-day trial period and money back guarantee, together with the opportunity to return the hearing aids or mail written notice of cancellation to the seller and Rule 64B-6.001, Florida Administrative Code, which further describes written notice requirements. On June 19, 1998, Ms. Sherman received from the factory the hearing aids purchased by C.D. They had the wrong circuitry. As a consequence Ms. Sherman returned the hearing aids for correction. On June 29, 1998, Ms. Sherman received the hearing aids a second time. On June 30, 1998, C.D. returned to Respondent's business and was provided the hearing aids and paid the $2,000 balance for the purchase. Respondent was in attendance on this occasion. No further documentation was provided C.D. concerning his purchase when he took delivery of the hearing aids. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia. On July 14, 1998, C.D. wrote Ms. Sherman concerning the hearing aids in question. In that correspondence he said "Sorry, but these hearing aids just don't meet my needs. Please refund my $4,000." On that same date by registered delivery, return receipt requested, C.D. sent the hearing aids back to Respondent's Wildwood, Florida, business address. The hearing aids were received at that address on July 20, 1998. The hearing aids were eventually returned to the manufacturer for credit on Respondent's account with Rexton. This disposition occurred around August 10, 1998. On July 20, 1998, the same day that the hearing aids were received by Respondent's business, Ms. Sherman wrote C.D. at his Florida address in Lake Panasoffkee, Florida. In that correspondence she identified herself as being a hearing aid specialist and an office manager for Respondent's Sumter Hearing Centers, one of which was at the Wildwood, Florida, address. In this correspondence she stated: We are in receipt of your hearing aid. As we agreed when you purchased the hearing aid you would give the hearing aid a 30-day trial basis, therefore I would suggest that we delay canceling this order. My suggestion is again a 30-day trial basis effective upon your return. It is important that I know what kind of problems, 'not loud enough, too much background noise, whistling, fit uncomfortable or etc.' you are having so that I can make adjustments and have you try them again. I am confident that we can get you to hear better. Please contact me at 352-793-4422 regarding the above matter. On August 6, 1998, C.D. responded to the July 20, 1998 letter from Ms. Sherman by writing to her and saying: In reference to your letter of July 20th; be advised that I have purchased another hearing aid and I am happy with them [sic]. Please return the $4,000 I paid for the Rexton aids. In fact, C.D. had not purchased another hearing aid. He made this false statement as a further attempt to be reimbursed the purchase price for the Rexton hearing aids. C.D. made numerous attempts to obtain a refund for the hearing aids purchased, to no avail. Respondent was aware of these attempts. Among the efforts was contact by Randall M. Thornton, Esquire, C.D.'s attorney, who wrote to the Respondent's business address at Wildwood, Florida, and another business address in Bushnell, Florida, requesting a refund in the amount of $4,000. This correspondence from the attorney was dated October 9, 1998. Respondent's uncorroborated testimony that he refunded the $4,000 to C.D. is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes an administrative fine of $2,000, assesses costs of investigation and prosecution, orders Respondent to refund $4,000 to C.D., and otherwise dismisses the Amended Administrative Complaint. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Mail Station 39 Tallahassee, Florida 32308 William D. Williston 3131 Southwest College Road Suite 302 Ocala, Florida 34474 William D. Williston 1072 Southeast 155th Street Summerfield, Florida 34491 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent, Craig Louis Schuette, committed the violations alleged in the Administrative Complaints in these cases, and if so what is the appropriate penalty to be imposed by the Petitioner.
Findings Of Fact At all times material to this proceeding Respondent has been a licensed hearing aid specialist in the state of Florida, having been issued license No. AS 2553 on June 9, 1994. Case No. 02-0520 On November 5, 1998, hearing impaired patient R.G., a resident of New York and part-time resident of Florida, visited Audiometric Hearing Center (Audiometric), a hearing aid establishment located on Fifth Avenue, North, in St. Petersburg, Florida. R.G. visited Audiometric after being contacted by postcard and telephone about a free hearing test offer. While at the Center on November 5, 1998, R.G. received a hearing test and signed an agreement to purchase a pair of hearing aids for $3,500.00. Respondent signed the sales receipt on behalf of Audiometric as the selling agent. R.G. paid the entire purchase price to Audiometric on November 5, 1998, by charging the entire amount on his Visa credit card. On November 20, 1998, R.G. returned to Audiometric to be fitted with the new hearing aids. At that time, R.G. noticed that the hearing aids he had purchased, as described in his contract, were a different model and smaller than the devices with which he was being fitted. Respondent persuaded R.G. to test the hearing aids, and R.G. took possession of the devices on that date. Twelve days later, on December 2, 1998, upon being dissatisfied with the hearing aids, R.G. returned to Audiometric with the devices and requested a refund. Audiometric accepted the hearing aids back and R.G. was advised for the first time that he would receive a refund within 90 to 120 days. Although R.G. was promised a refund of $3,125.00, on December 2, 1998, he never received it. R.G. made numerous attempts to obtain a refund but never received one. During an investigation of this matter by the Agency for Health Care Administration, Respondent did not accept responsibility for the refund. While Respondent agreed to assist the patient and provide a free refitting, he maintained that Audiometric was responsible for any and all refunds. Case No. 02-0522 Hearing impaired patient E.T., a resident of Canada who also resided in Florida part of the year, visited the Audiometric Hearing Center, a hearing aid establishment located on Walsingham Road, in Largo, Florida, on February 6, 1998. E.T. went to Audiometric for a free hearing test after being called and offered one by a telephone solicitor. E.T. received a hearing test on that date. On February 6, 1998, E.T. purchased a hearing aid for her right ear at Audiometric for $1,980.00. Respondent signed the sales agreement on behalf of Audiometric as the selling agent. He told E.T. she needed a hearing aid and showed E.T. three hearing aids. E.T. paid the entire purchase price on February 6, 1998, by charging it on her Visa credit card. On February 13, 1998, the patient accepted delivery of the hearing aid at Audiometric from someone other than Respondent. Upon experiencing an itching problem, E.T. returned the hearing aid to Audiometric on February 18, 1998, for a refund, stating that she was not satisfied with it. Someone at Audiometric, other than Respondent, accepted the returned hearing aid from E.T. and promised her a refund of $1,980.00. E.T. made numerous attempts to obtain the refund but never received any portion of it. In fact, she even filed a lawsuit and obtained a default judgment against Audiometric, but could not collect any of it. During an investigation of the matter by the Agency for Health Care Administration, Respondent denied responsibility for the matter, and indicated that Audiometric was culpable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order: Dismissing DOAH Case No. 02-0521 (DOH Case No. 98- 19487). Finding Respondent guilty as charged in the Administrative Complaints in DOAH Case Nos. 02-0520 (DOH Case No. 99-03437) and 02-0522 (DOH Case No. 98-20376). Imposing a letter of reprimand. Imposing a total fine of $1,000.00. Assessing costs of the investigation and prosecution not to exceed $500.00, and ordering Respondent to pay as corrective action $3,125.00 to patient R.G. and $1,731.00 to patient E.T., with all monetary payments to be paid within 90 days of entry of a final order. As to the corrective action, the Respondent should be ordered to provide proof thereof to the Board of Hearing Aid Specialists, Department of Health Compliance Unit within 90 days of the date of the final order. DONE AND ENTERED this 26th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Craig Schuete 12300 Park Boulevard, Unit 220 Seminole, Florida 33772 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337
Findings Of Fact At all times relevant hereto Respondent was licensed as a Hearing Aid Specialist having been issued license number 0000804. During the period 1985-1986 the license of T. Ray Black was displayed on the wall at East Pasco Hearing Aid Center in Zephyrhills, Florida, but Respondent never worked at this address. East Pasco Hearing Aid Center is owned and operated by Arvina Hines whose license as a Hearing Aid Specialist was revoked circa 1981. Ms. Hines hired people to work at East Pasco Hearing Aid Center and trained them in selling and fitting hearing aids. Pamela Strife worked at the East Pasco Hearing Aid Center from 1981 until 1986 and never met Respondent nor did she ever see him at the center. She did see Raymond J. Black and Cynthia Sue Bennett, the father and sister of Respondent, working at the center. Raymond J. Black's license was revoked January 26, 1981. Arvina Hines submitted an application for training program for Hearing Aid Specialist on April 21, 1986. (Exhibit 5), in which Respondent signed the sponsor affidavit as the sponsor of Ms. Hines. He did not provide any supervision to Hines. Sheila Louise Thomas submitted as application February 25, 1985, for a training program as a Hearing Aid Specialist (Exhibit 4), on which Respondent signed as sponsor. Ms. Thomas was trained by Ms. Hines. Thomas does not recall completing the application for training, but identified her signature thereon. She has never met Respondent. Peggy Goodman worked at East Pasco Hearing Aid Center for three weeks in 1985. During the time she was employed she never saw Respondent at the center.
The Issue Whether Respondent violated Subsections 484.051(2), 484.056(1)(g), 484.056(1)(h), 484.056(1)(k), 484.053(1)(f), 484.053(3), 455.624(1)(j), and 484.0512(l), Florida Statutes,1 and Rule 64B6-6.010, Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact Stephens is and has been, at least since March 1999, a licensed Hearing Aid Specialist. His license number is AS 0002599. On April 26, 1999, O.G. purchased a pair of hearing aids from Stephens. The total price of the hearing aids was $3200. O.G. paid $1600 using his Visa credit card on April 26. The hearing aids were delivered by Stephens to O.G. on May 14, 1999, at which time O.G. paid the remaining $1600 by Visa credit card. O.G. was not happy with the hearing aids and returned to Stephens' place of business, Hearing World, sometime in June 1999. Stephens convinced O.G. to try a different pair of hearing aids instead of getting a refund. O.G. agreed, and Stephens ordered a new pair of hearing aids, which Stephens delivered on June 30, 1999. O.G. was not happy with the second pair of hearing aids and again returned them to Hearing World. Stephens persuaded O.G. to try another set of hearings aids. By letter dated July 26, 1999, Stephens advised as follows: This letter is to confirm that: When you receive your remade instruments on or before August 15, 1999, you will have 30 days to try them without penalty. Should you decide that you wish to return them for a refund you may do so and receive a full refund of your investment. Further, should you need an extension of the trial it will be granted based on your request before the original trial expires. O.G. agreed to Stephens' proposition. The third set was delivered on August 14, 1999. The third set of hearing aids was also unacceptable to O.G. Stephens ordered a fourth pair and delivered them to O.G. on October 1, 1999. O.G. was not satisfied with the fourth pair and asked for a refund. On November 19, 1999, O.G. received a letter from Stephens stating: We are in receipt of your request for cancellation. I do accept this letter as your notice. We are very sorry that we were not able to satisfy your hearing needs. We are having a very difficult time financially at this time and will not be able to refund your money as timely as you would like. However, we do owe you a refund and will take care of it as soon as we are financially able to do so. The refund time is running about 8 weeks. O.G. did receive $300 from Stephens as part of the refund. Stephens made no further payments to O.G. On February 15, 1999, Joseph Wright (Wright) applied to the Department for admittance to the hearing aid specialist training program and was approved for the training program period March 12, 1999, through September 11, 1999. The notice from the Department to Wright advising him that he was approved for the training program stated: "A trainee may continue to function as a trainee until receipt of the examination grade results." Stephens was Wright's sponsor. As part of the training program, Stephens taught Wright, using text books and hands-on training. Stephens showed Wright how to make molds and do fittings. As Wright progressed, he was allowed to make the molds and do fittings by himself. Wright would show the molds to Stephens after Wright completed them. If Wright had trouble fitting a client, Stephens would come and assist Wright. Generally Stephens was in the office when Wright did fittings. After completing the six-month training program, Wright took the Hearing Aid Specialist Examination in September 1999. Wright did not pass the examination. On October 29, 1999, the Department mailed Wright the notice that he had not passed the examination. The evidence did not establish when Wright received the notification that he had failed the examination. Nor did the evidence establish when Stephens became aware that Wright had failed the examination. At least by April 14, 2000, Wright was aware that he had failed the examination because on that date he again applied with the Department to enter the hearing aid specialist program under Stephens' sponsorship. Stephens was also aware by April 14, 2000, that Wright had failed the examination because Wright's application included a signed statement from Stephens dated April 14, 2000, indicating that he would be Wright's sponsor. The Department admitted Wright to the training program for the period April 22, 2000, through October 21, 2000. The dates for his examination were January 19 and 20, 2001. In February 2000, J.F. received an advertisement from Hearing World, advertising free hearing examinations. On March 2, 2000, J.F. went to Hearing World for the free examination. He did not see Stephens and was helped by Wright. J.F. signed a written purchase agreement to purchase two hearing aids from Hearing World for $5,700. Wright performed the examination, made the molds for the hearing aids, and signed the purchase agreement on behalf of Hearing World. J.F. gave Wright a check for $5,700 on March 2, 2000, as payment in full for the hearing aids. On March 23, 2000, Wright delivered the hearing aids to J.F. and signed the purchase agreement as having delivered the hearing aids. Stephens was not physically present in the room with Wright and J.F. at the time the delivery was made. The purchase agreement did not contain the signature and license number of Stephens. The written purchase agreement provided: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. In the event that the purchaser decides to return the hearing aid(s), they must be returned to the specialist of record in new working order, on or before the 30th day of possession. Upon receipt of the hearing aid(s) Hearing World will refund the purchase price, less mold and dispensing fees (mold fee $150 for one aid, $200 for a set. In addition, a 5% of the purchase price-dispensing fee may be retained). J.F. tried wearing the hearing aids but experienced vertigo when using them. He talked to Wright on April 3 and explained the problem he was having with the hearing aids and indicating he wanted to return the hearing aids for a refund. Wright explained to J.F. that only Stephens had the authority to make a refund. J.F. met with Stephens on April 12, 2000. Stephens explained that he had a cash flow problem and could not make a full refund at that time. It was agreed that J.F. would return one of the hearing aids and try to wear the other one. On April 14, 2000, J.F. returned to Hearing World and explained to Stephens that the use of one hearing aid did not solve the vertigo problem that he was experiencing. J.F. returned the other hearing aid and asked for a complete refund. Stephens told J.F. that he did not have the funds to make a full refund and gave J.F. $100. Stephens made no further payments to J.F. for the refund on the hearing aids. Stephens filed a petition for bankruptcy on September 27, 2000. A Discharge of Debtor was entered on January 8, 2001, in In Re: Stephens, Donald Lane, Case No. 00-14949-8W7, United States Bankruptcy Court Middle District of Florida, Tampa Division. J.F. and O.G. were listed as creditors holding unsecured nonpriority claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: In Case No. 03-0404PL, finding that Donald Stephens violated Subsections 484.0512(1) and 484.056(1)(h), Florida Statutes, as set forth in Count I of the Administrative Complaint; Subsection 484.051(2), Florida Statutes, as set forth in Count II of the Administrative Complaint; and Subsection 484.056(1)(h), Florida Statutes, and Rule 64B6-6.010, Florida Administrative Code, as set forth in Count IV of the Administrative Complaint. In Case No. 03-0404PL, dismissing Count III of the Administrative Complaint. In Case No. 03-0404PL, issuing a reprimand and imposing administrative fines of $1,000 for the violations set forth in Count I, $500 for the violations set forth in Count II, and $500 for the violations set forth in Count IV. In Case No. 03-0405PL dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003.
Findings Of Fact 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. 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. The term Certified Hearing Aid Audiologist was patented by the National Bearing Aid Society in 1970. 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. Webster's New Collegiate Dictionary (1977) defines audiology as: A branch of science dealing with hearing; specif. therapy of individuals having impaired hearing. 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. 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. 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. 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.
Findings Of Fact 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.
Recommendation 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 Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Howard R. Marsee, Esquire Post Office Box 20154 Orlando, Florida 32814 Gene Sellers, Esquire General Counsel's Office Department of Education Knott Building Tallahassee, Florida 32304 James M. Russ, Esquire 441 First Federal Building 109 East Church Street Orlando, Florida 32801
Findings Of Fact Petitioner Horrigan has owned Better Hearing Aid Services, St. Petersburg, Florida since the company was started in 1957. Be is a certified hearing aid specialist and has been licensed each year through 1979. Petitioner Whittington has been a certified hearing aid specialist since 1957 and has managed Better Hearing Aid Services since 1968. During the early part of 1979 Petitioner Horrigan decided to sell his business and Whittington decided to retire at the end of 1979. Both Petitioners are well past 65 and Horrigan has had more than one heart attack. To seek buyers for the business an ad was placed in the June 1979 issue of the Hearing Aid Journal (Exhibit 1) Both Petitioners were aware of the requirement for completion of the continuing education course for renewal of certificates hut since both of them planned to retire in 1979 neither intended to renew his license for 1980. Bulletins reminding registrants of this requirement were sent to all certificate holders by Respondent on February 13, August 8 and October 1, 1979. Attempts to sell the hearing aid business in 1979 were unsuccessful. Accordingly, late in 1979, Horrigan decided it would be necessary for him to renew his certificate to keep the business open until he could find a buyer. Continuing education courses were given at various places in Florida during 1979 and Horrigan planned to go to Daytona Beach to take the course given 2 December 1979. On 27 November 1979 Horrigan was hospitalized for 9 days for a condition related to his previous heart attacks and was unable to take the course. Whittington was not aware that Horrigan was hospitalized until after the 2 December continuing education course was given. Had he known Horrigan couldn't attend, Whittington testified he would have attended so he could qualify for renewal of his certificate and keep the business open until a buyer was found. The next continuing education course given in Florida after 2 December 1979 was on January 24-25, 1980 at St. Petersburg, Florida. Both Petitioners attended this course and immediately upon completion submitted their applications for renewal of their certificates. Both applications for renewal were denied because they had not taken the continuing education course in calendar year 1979. Both Petitioners are highly qualified to sell hearing aids and denial of their applications for renewal of certificates is not in the public interest.
The Issue Whether Rules 21JJ-7.007(2), (3) and (3)(a), Florida Administrative Code, are invalid pursuant to Sections 120.54(2) and 120.56, Florida Statutes (1987)?
Findings Of Fact Section 484.0401, Florida Statutes (1987), provides the following: The Legislature recognizes that the dispensing of hearing aids requires particularized knowledge and skill to ensure that the interests of the hearing-impaired public will be adequately served and safely protected. It recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health, safety, and welfare to regulate the dispensing of hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to *protect the public from physical and economic harm*, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market. [Emphasis added]. The Legislature amended Section 484.0401, Florida Statutes (1987), during the 1986 Session to provide for the protection of the public against economic harm and to include the public welfare within the scope of the protection of Chapter 484, Florida Statutes. Section 484.044, Florida Statutes (1987), authorizes the Board of Hearing Aid Specialists (hereinafter referred to as the "Board"), to adopt rules it deems necessary to carry out the provisions of Chapter 484, Florida Statutes. On April 24, 1987, the Board caused to be published Rule 21JJ-7.007, Florida Administrative Code, in Volume 13, Number 17, Florida Administrative Weekly. On May 20, 1987, a public hearing was held to allow comments concerning the challenged rule. Following this meeting and a meeting before the Board on July 10 and 11, 1987, a Notice of Change, changing the challenged rules was published in the July 24, 1987, edition of the Volume 13, Number 30, Florida Administrative Weekly. Rule 21JJ-7.007, Florida Administrative Code, was filed with the Department of State on July 23, 1987. Volume 13, Number 31, Florida Administrative Weekly. It was effective August 12, 1987. Rule 21JJ-7.007(2), Florida Administrative Code, provides the following: Fraudulent, False, Deceptive or Misleading Advertising. An advertisement or advertising is fraudulent, false, deceptive or misleading, if it: (2) Conveys the impression that the licensee or trainee possesses qualifications, skills, or other attributes which are false, other than a simple listing of earned professional achievements and degrees. Rule 21JJ-7.007(3) and (3)(a), Florida Administrative Code, provide the following: Fraudulent, False, Deceptive or Misleading Advertising. An advertisement or advertising is fraudulent, false, deceptive or misleading, if it: Is misleading or deceptive because its content or the context in which it is presented makes only a partial disclosure of relevant facts. Specifically, it is misleading and deceptive to advertise a discounted price, without identifying the specific product or service against which the discounted price applies, and without specifying the usual price for the product or service identified. Advertising is an extremely important part of the hearing aid business. It is the principal manner in which hearing aid licensees attract clients. Advertising may assist consumers in making an educated decision about hearing aid products and services. It is common for licensed hearing aid specialists and businesses employing licensed hearing aid specialists to include information such as the following in advertisements: The length of service in a particular community or in the hearing aid profession. Such advertisements can be an indication of the stability of a hearing aid business; Statements such as the following: "trust your hearing to the professionals", "ethical professional practice", "ask the expert" and "factory- trained"; Other types of training, such as factory training; and Educational experiences, including research and teaching experiences. The type of information listed in finding of fact 10 may be beneficial to the public and is not necessarily false, deceptive or misleading. Advertisements used by licensed hearing aid specialists do not include every bit of information about a product. For example, the following type of information may be included in an advertisement: One of the smallest hearing aids, designed for nerve deafness to 40 db. Model E-50 complete with one year warranty. This type of advertisement is not false, deceptive or misleading. It does not, however, contain all the relevant facts concerning the product advertised. Additional relevant information concerning the product may be voluminous, technical and of no use to a consumer. To include all information which may be relevant could require a very large advertisement which would be expensive. Advertisements used by licensed hearing aid specialists commonly indicate a reduction of a certain dollar amount or a percentage reduction for individual hearing aids, lines of hearing aids or all products carried by a specialist. Such advertisements do not necessarily list the specific product or service to which a discount applies or the price for each product or service before the discount. Where discounts apply to several products or services, to list each product and the price before discount would require a large advertisement which would be expensive. As of May 15, 1987, there were 1,016 licensed hearing aid specialists in the State of Florida. Two hundred and forty-four of the total number of licensed hearing aid specialists were on inactive status. Of the 772 active licensed specialists, 670 were members of the Petitioner as of December 4, 1987, or approximately 88 percent of all active licensed practitioners. The Petitioner has an ethics committee and a grievance committee which are active in reviewing advertising used by hearing aid specialists. Members of the Petitioner are subject to discipline, including expulsion from the Petitioner, for improper advertising. The following Summary of Estimate of Economic Impact of the Rule was published by the Department: The implementation of this proposal will have minimal impact upon the Board or the Department other than the costs involved in promulgation. There should be no adverse economic impact or benefit to current licensees or potential applicants as a direct result of the proposed rules. The Board feels the rule is imperative to clarify statutory provisions within Section 484.056(1)(f), F.S., by delineating for the activities which constitute fraudulent, false, deceptive or misleading advertising. It is therefore impossible to determine exactly what impact the proposed rule will have upon current or potential licensees. It is not foreseeable that the proposal will place an economic impact upon competition among current licensees, the open market for employment, or upon entities falling within the definition of "small entities" as defined in Section 288.703(1), F.S.
The Issue Whether Petitioner's application for renewal of his certificate of registration to fit and sell hearing aids should be denied here he establishes that he satisfactorily completed the required continuing education course during the year of his application, rather than during the previous calendar year.
Findings Of Fact On January 29, 1980, the Applicant submitted to the Department a completed application for renewal of his 1979 Certificate of Registration to Dispense Hearing Aids in Florida. (Petitioner's Exhibit 1). At the time of his application (January, 1980) the Applicant was unable to provide evidence of having completed at least ten hours of an approved continuing education course relating to the fitting and selling of hearing aids. He was, however, in the process of attending such a course at the University of Central Florida, which he successfully completed during February, 1980. (Petitioner's Exhibits 1 and 2, Testimony of G. L. BOOTHE) The Department proposed to deny the applicant's request for renewal on the sole ground that his application failed to show that the required continuing education course had been completed prior to his application, and during the prior calendar year 1979. (Testimony of G. L. Boothe) On July 21, 1978, and again on October 1, 1979 the Department notified all registered hearing aid dispensers, including the Applicant, of the new continuing education requirement enacted by the 1978 Florida Legislature. The Applicant received such notice, and was aware of this new requirement. (Respondent's Exhibits 1 and 2, Testimony of G. L. BOOTHE) Between 1969 and February, 1979, the Applicant was licensed by the State to fit and sell hearing aids, and was employed by the Beltone Hearing Aid Company. In February, 1979, he left the company and was considering retirement. (Testimony of G. L. BOOTHE) The Applicant failed to take the required continuing education course during 1979 because, from February 1979 through January, 980, he was uncertain whether he would surrender his license or continue in the business of fitting and selling hearing aids. During January and February, 1980, he entered the employment of the Orange Hearing Aid Center, Orlando, Florida for the purpose of fitting and selling hearing aids. He, therefore, applied far the renewal of his license, and successfully completed the required continuing education course. (Testimony of G. L. Boothe)
