The Issue The factual issues presented for determination are as follow: Are the allegations of the Administrative Complaint true? Did Respondent have the required scienter with respect to the violations alleged in the Administrative Complaint? Various legal and procedural issues were raised and previously disposed of by written order prior to the final hearing. This order will not contain a recital of those interlocutory actions. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact At all times relevant to this proceeding, the Respondent was employed by and president of Gainesville Hearing Aid Company, and registered by the Department of Health and Rehabilitative Services for the fitting and sale of hearing aids. On or about September 13, 1979, Respondent sold to Lawrence J. Murphy a certain Dahlberg hearing aid, serial #VEI7AA, while representing to Mr. Murphy that the hearing aid was new, when in fact the hearing aid had been previously owned by Peter Fancher. The written contract of sale for this hearing aid did not indicate whether the hearing aid was new or used. The Dahlberg hearing aid sold to Murphy had been sold to P. D. Fancher on April 25, 1977, by Respondent. The hearing aid was returned to Gainesville Hearing Aid Company on May 17, 1977, by Mr. Fancher for full refund. The inventory records of Gainesville Hearing Aid Company show the sale and the return for refund. This hearing aid was used. On or about September 12, 1979, Respondent sold to Oran Ledbetter a certain Audiotone hearing aid, serial #28S-7963102, while representing to Mr. Ledbetter that the hearing aid was new and indicating on the written contract of sale that it was new, when in fact that same hearing aid had previously been owned by D. L. Bentley. The Audiotone hearing aid sold to Ledbetter had been sold to D. L. Bentley on March 27, 1979, by Gainesville Hearing Aid Company together with another hearing aid not material to these proceedings. These hearing aids were delivered to Mr. Bentley on April 16, 1979. The subject hearing aid was returned to Gainesville Hearing Aid Company by Bentley some four to five months later and was returned to the inventory of the company as a used hearing aid. This hearing aid was used. On or about February 2, 1978, Respondent sold to Virginia Collette a Dahlberg hearing aid, serial #TW22AH7, representing to Ms. Collette and showing on the contract of sale for the hearing aid that it was new, when in fact the hearing aid had been previously owned by Joseph E. McIntire. This hearing aid was used. The Dahlberg hearing aid sold to Ms. Collette had been sold to J. C. McIntire by Gainesville Hearing Aid Company on October 14, 1977, on an installment contract calling for $95 down and monthly payments of $43 per month for 24 months. Mr. McIntire fell behind in his monthly payments and subsequently died. An unidentified member of the family returned the hearing aid to Gainesville Hearing Aid Company, and the company subsequently collected some $989 from McIntire's estate. While the inventory records reflected that the hearing aids above were used, there is no evidence that Respondent was aware of this information in the cases of Murphy and Ledbetter. At the time Respondent left the offices of Gainesville Hearing Aid Company to make the sale of the Dahlberg hearing aid to Ms. Collette, he requested his employee, William Glance, to bring him a hearing aid from inventory. Mr. Glance brought Respondent the Dahlberg hearing aid and at that time advised him it was a used hearing aid. Respondent permitted his daughter, Angie Gardner, who did not hold a certificate of registration or a learner's permit, to conduct audiograms, to fit and sell hearing aids, and to conduct hearing aid examinations at various times during 1979. This included in particular November 2, 1979, when Angie Gardner was permitted to run a hearing test on a Mrs. Jones, who objected to the performance of the examination by Respondent's daughter. Respondent subsequently sought the advice of Ralph Gray as to the legality of permitting Angie Gardner to conduct these tests and, on being advised that it was contrary to law, discontinued this practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, William Hunter Gardner, be fined administratively $500 for each violation of the statute for the three violations of Section 468.130(1) and thereby Section 468.129(3), Florida Statutes, and have his license suspended for a period of two years for the violation of Section 468.130(2), Florida Statutes, the enforcement of the suspension to be suspended upon Respondent's demonstrated good conduct and adherence to the statutes, rules and regulations during that period. DONE and ORDERED this 28th day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982. COPIES FURNISHED: Joseph E. Hodges, Esquire Department of HRS 2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601 George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
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.
Findings Of Fact George Selis holds certificate of registration Number 695-04-73 to fit and sell hearing aids in the State of Florida, and this certificate of registration was issued by the Department of Health and Rehabilitative Services. On August 9, 1976, George Selis did fit and sell a hearing aid to Daisy Binder. On that date George Selis examined the ears of Daisy Binder prior to giving her a hearing test and according to his testimony observed a quantity of cerumen, or ear wax, in her ears. At that time, according to Selis, the ear canal was not blocked or impacted by the cerumen. In accordance with his experience and training, it was not improper for Selis to test an individual's hearing when cerumen was observed in the ear canal as long as the ear canal was not blocked. On August 24, 1976, Daisy Binder was examined by Dr. Herbert King, M.D., who determined that both of her ears were impacted with cerumen. In Dr. King's medical opinion, from the quantity of wax present on August 24, 1976, an excessively large quantity of wax would have been present on August 9, 1976, when Daisy Binder's ears were examined by George Selis. Dr. King's medical opinion is buttressed by the medical records of Binder which show she had had her ears irrigated and impacted cerumen removed roughly every two years for four years prior to August, 1976. George Selis sold and fitted a hearing aid to Augusta Miller on or about August 24, 1975. Regarding the testing of hearing of his client, Selis explained that prior to every test he explained to the client the way the test was conducted and what the results meant. The handwritten lines and annotations on the hearing test of Augusta Miller, Exhibit 20, had a diagram on the back of this test relating to Selis' explanation of the test and its operation on the ear. In this explanation Selis explained that a hearing loss of 30 decibels or less is normal, that a hearing loss between 30 decibels and 80 decibels may not be correctable. Selis also explained the fact that hearing aids cannot help certain hearing losses and that certain types of hearing losses can be treated medically. Regarding the type of loss which a hearing aid can help, Selis explained that the use of the hearing aid does not stop the loss and that the loss may continue to the extent that the hearing aid will no longer offer any assistance. Selis represented that it was this explanation which he gave to Augusta Miller on August 24, 1975, when he fitted and sold her a hearing aid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the certificate of registration of George Selis be suspended for a period of 30 days. DONE and ORDERED this 3rd day of August, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 F Jacksonville, Florida 32231 Louis Ossinsky, Jr., Esquire Ossinsky and Krol 411 Main Street Post Office Drawer E Daytona Beach, Florida 32018
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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
The Issue The issue in this case is whether Respondent, Kent A. Broy, committed the violations alleged in an Administrative Complaint filed with by Petitioner, the Department of Health, on April 11, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving hearing aid specialists licensed to practice in Florida. Respondent, Kent A. Broy, is, and was at the times material to this matter, a hearing aid specialist licensed to practice in Florida, having been issued license number AS2169 on April 13, 1989.5 The Administrative Complaint. On April 11, 2003, an Administrative Complaint, DOH Case No. AS 2001-19941, was filed with the Department against Mr. Broy. Mr. Broy disputed the issues of fact alleged in the Administrative Complaint and requested a formal administrative Hearing by a Request for Formal Hearing filed with the Department on Mr. Broy's behalf by counsel. The remaining four counts of the Administrative Complaint, Counts I, II, III, and V, allege violations of subsections of Section 484.056(1), Florida Statutes: Section 484.056(1)(g) (Count I); (j) (Count II); (w) (Count III); and (m) (Count V). All four counts include the following introductory sentence: "Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-16 [of the Administrative Complaint]." Paragraphs 1 through 6 are general allegations which were admitted by Mr. Broy. Patient G.H. Patient G.H., who was 88 years of age at the time, visited a business known as Audibel Hearing Care Center (hereinafter referred to as "Audibel")6 and located at 1620 North U.S. Highway 1, Jupiter, Florida, on October 24, 2001, a Tuesday. G.H. was accompanied by his wife, J.H. G.H. went to Audibel to determine whether he needed hearing aids. Mr. Broy, who G.H. assumed was a licensed hearing aid specialist, assisted G.H.7 As alleged in the Administrative Complaint, G.H. agreed to purchase a pair of "in the ear" hearing aids for $6,810.00. Mr. Broy attempted to make molds of the G.H.'s ear canals so that the hearing aids G.H. had agreed to purchase could be ordered. Molding material was placed in G.H.'s ear, but when it was removed it was found to be covered with wax. Mr. Broy attempted to remove the wax from G.H.'s ear with some type of instrument. This caused pain in G.H.'s ear, so the effort was discontinued. Mr. Broy then gave G.H. some oil to use to attempt to soften the wax, and he scheduled G.H. to return the next week. In furtherance of the sale and purchase of the hearing aids, G.H. signed a Purchase Agreement. The Agreement states that G.H. was purchasing 2 "Merc CIC Dig" hearing aides at $4,200.00 each ($8,400.00 total) less a 20% discount, leaving a discounted price of $6,720.00 plus a $90.00 administration fee. The Purchase Agreement includes, in part, the following regarding return of the hearing aids: Return Policy - . . . . Purchaser may return the hearing aid(s), so long as the hearing aid(s) is returned to the seller within the 30 day trial period in good working condition. A return claim form may be obtained from the distributor at the location checked on the face of this agreement. A request for return must be submitted in writing, within 30 days. . . . . The distributor identified on the face of the Purchase Agreement was Audibel. The Purchase Agreement did not identify the guarantor for the refund. No hearings aids, however, were delivered to G.H. at the time he signed the Purchase Agreement or anytime subsequent thereto. G.H. paid the full purchase price, charging the full price to a credit card. Shortly after executing the Purchase Agreement, G.H. decided that he did not want the hearing aids8 and he returned to Audibel. He told Mr. Broy that he no longer wanted the hearing aids.9 G.H., not receiving satisfaction from Mr. Broy, ultimately challenged the amount he paid for the hearing aids with his credit card company. He was refunded the $6,810.00 charge. On January 9, 2002, Mr. Broy charged $630.00 to G.H.'s credit card. That amount has not been refunded. During the investigation of this matter, Neil Bailes, an investigator for the Agency for Health Care Administration, who had never met or spoken to Mr. Broy in person, spoke to someone whom he believed was Mr. Broy. The individual he spoke with told him that records relating to G.H.'s purchase and subsequent return of hearing aids were in G.H.'s possession, and, therefore, he could not provide those records.10
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Hearing Aid Specialist dismissing the April 11, 2003, Administrative Complaint against Kent A. Broy. DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of February, 2004.
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.
The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?
Findings Of Fact The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21). The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971 and there are no provisions in the statutes for reinstatement once a license is revoked. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29." The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).
Recommendation Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a). Date October 25, 1976 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Hodges, Esquire Post Office Box 210 Jacksonville, Florida 32201 John V. Russell, Esquire Suite 205 2 Commercial Boulevard Lauderdale-by-the-Sea, Florida 33308
