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.
The Issue The issue presented for decision in this case is whether the Petitioner should receive a passing grade on the September 1997 Hearing Aid Specialist examination.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: In September 1997, Petitioner was a trainee and candidate for licensure as a hearing aid specialist, pursuant to Chapter 484, Part II, Florida Statutes, and Chapter 64B6-8, Florida Administrative Code. A trainee studying hearing aid dispensing must do so under the direct supervision of a “sponsor” who is an active Florida licensed hearing aid specialist with an established place of business. Section 484.0445, Florida Statutes; Rule 64B6- 8.003(1), Florida Administrative Code. Petitioner’s sponsor was Gerald Amato, a hearing aid specialist of over 20 years’ experience. Mr. Amato was a franchisee of Beltone, a manufacturer of audiometric equipment, including hearing aids and audiometers. Beltone supplied all of the equipment used by Petitioner. An “audiometer” is a piece of equipment that measures a person’s ability to hear, and is regularly used by hearing aid specialists and trainees. Petitioner testified that, shortly before he commenced his training program, Beltone converted from manual audiometers to computerized audiometers. Petitioner contends that he was placed at an unfair disadvantage because the examination proctors would not allow him to plug in his computerized audiometer for use during the examination. Petitioner argued that the older, manual audiometers provide visual cues such as dials and meters even when they are not plugged in, cues that assist the trainee to successfully complete the examination. The computerized audiometer, on the other hand, presents nothing but a blank screen when it is not plugged in. Petitioner acknowledged that no one taking the exam was allowed to plug in an audiometer. However, he contended that this was a situation in which technology had outpaced the testing procedures, and that Respondent should have made provisions for persons with computerized equipment to take the exam on an even footing with persons using manual equipment. Ms. Wilma Ferrer, a psychometrician familiar with the hearing aid specialist examination procedures, testified that candidates were informed they could not plug in their audiometers at least three times before they sat for the exam. The “Candidate Information Booklet,” sent by mail to candidates about a month before the exam, expressly states: “Each candidate is required to bring an audiometer with recorded speech and/or live voice capability to be used during the candidate’s examination. Do not plug in audiometer during examination.” During the hands-on portion of the exam, candidates demonstrate proper procedures, using the proctors as their subjects. If the audiometers were plugged in, there would be some chance of damaging the proctors’ hearing during the exam. Ms. Mary Lou Lauster, an expert regarding hearing aid specialists, testified that the purpose of the audiometer portion of the exam is to permit candidates to demonstrate they know which buttons to push to perform each audiometer function, and that they know how to properly fit the headset. Ms. Lauster conceded that some of the older audiometers provide visual cues, but stated her opinion that Petitioner would not be disadvantaged by his use of the computerized audiometer, if he knew how to run it. According to Ms. Lauster, the exam is simply an opportunity for the candidate to talk his or her way through the procedures, and it should make no difference whether the audiometer is plugged in. In other words, the candidate should not need visual cues to successfully negotiate the examination. Ms. Lauster denied the implication that the examiners and the agency itself were unprepared to deal with Petitioner’s new equipment. She testified that other candidates have used the same computerized equipment with success and without incident. At the hearing, Petitioner suggested that a better policy might be to require all candidates to be tested on a single, standard audiometer, so that no candidate could be perceived to have an unfair advantage. Ms. Lauster disagreed with this suggestion, stating that candidates are generally more comfortable using the audiometers with which they were trained. It is found that Respondent’s decision not to allow candidates to plug in their audiometers during the examination was rational and supported by legitimate concerns for the proctors’ hearing. Petitioner was given ample notice that he would not be allowed to plug in his audiometer. Other candidates using the same or similar equipment have successfully completed the examination. All candidates were treated equally in this regard, and Petitioner was not entitled to a special exemption from Respondent’s clearly stated testing policy. Respondent was well aware of the trend in the industry away from manual audiometers, and considered the existence of newer, computerized equipment in deciding to maintain its testing policy of not allowing audiometers to be plugged in during the examinations. Petitioner suggested that his equipment presented a brand new situation that Respondent had not anticipated, but this suggestion was not supported by the evidence presented at hearing. Petitioner also claimed that the proctor engaged him in unnecessary conversation regarding his audiometer, and that this conversation distracted him during the examination. Even crediting Petitioner’s version of events, this conversation cannot be found to have caused Petitioner’s poor performance on the practical portion of the examination. For reasons that cannot be attributed to Respondent, Petitioner entered the examination anticipating that he would be allowed to plug in his audiometer. The undersigned does not doubt Petitioner’s assertion that his performance on the examination was adversely affected when he was not allowed to plug in his audiometer. However, the fault lies with Petitioner, not with Respondent. Petitioner is not entitled to the award of any additional points in the practical portion of the examination. In his challenge letter, Petitioner also contested Questions 1 and 20 of the written, multiple choice portion of the examination. At hearing, Petitioner withdrew his challenge of Question 20. Each of the written questions was worth one point. Petitioner failed the examination by three points. Thus, even if it were found that he should be awarded one point for Question 1, Petitioner would not achieve a passing score. Petitioner’s challenge of Question 1 will nonetheless be addressed, to ensure a complete record in this proceeding. Question 1 referred to the effect that the addition of an “air” vent would have on an earmold. Petitioner chose the answer that it would “accentuate the low frequencies.” The correct answer was that it would “reduce the feeling of pressure in the ear canal.” Ms. Lauster testified that, while venting may accentuate frequencies, it does not necessarily relate to high or low frequencies. A vent may accentuate high or low frequencies, depending on the size of the vent. The general tendency is for a vent to enhance high frequencies. Ms. Lauster's opinion was supported by a standard textbook on hearing instrument science and fitting practices. It was undisputed that the addition of an air vent does relieve pressure in the ear canal. Thus, the best answer to Question 1 was “reduce the feeling of pressure in the ear canal.” Respondent correctly found that Petitioner’s response to Question 1 was not the best answer, and correctly denied him credit for that question. Petitioner alleged that Question 1 was of such difficulty that it should either not be counted, or his answer should be counted as correct. Respondent demonstrated that 26 out of 50 candidates answered the question correctly, thus negating Petitioner’s contention in this regard. Question 1 was properly graded as a question of medium difficulty, and is a valid and acceptable item on the examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Hearing Aid Specialists, enter a final order denying Petitioner’s challenge to the grade assigned him for the September 1997 Hearing Aid Specialist licensure examination. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Terry L. Allman, pro se 110 St. Lucia Loop Apollo Beach, Florida 33572 Anne Marie Williamson, Esquire Florida Department of Health 1317 Winewood Boulevard Building 6, Suite 240 Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building Six, Room 240 1309 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building Six, Room 306 Tallahassee, Florida 32399-0700
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
The Issue The issue presented in this case is whether Respondent, Gary Segretario, committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed by Petitioner.
Findings Of Fact Respondent, Gary Segretario, is and at all times material hereto was a licensed hearing aid specialist in the state of Florida, holding license number AS2321. Petitioner, Department of Health, Board of Hearing Aid Specialists, is the state agency charged with the authority and duty to regulate the practice of hearing aid dispensing within the state of Florida. In June 1997, purportedly in response to increasing misconduct by various hearing aid specialists, the Board of Hearing Aid Specialists issued an emergency rule amending Rule 61G-9-6.010, Florida Administrative Code, and changing the justification for the purchaser's refund from a measured improvement in the purchaser's hearing to failure of the purchaser to obtain satisfaction from the hearing aid. In 1999, the Florida Legislature created Section 484.0512(3), Florida Statutes, and added a 30-day refund provision into the Statute when the purchaser has a valid reason as defined by the Board's Rule. On April 24, 1998, in response to a telephone solicitation, patient D.V. presented to Hearing Care 2000 in Daytona, Florida, for the purpose of a hearing examination. On that date, patient D.V. was tested by Respondent and his assistant Eric Collins, a licensed hearing aid specialist trainee. Following the testing, Respondent recommended and patient D.V. agreed to purchase a hearing aid for his left ear. There is insufficient evidence to conclude that Respondent advised patient D.V. that he would lose his hearing if he did not purchase a hearing aid. The contract provided for a 30-day refund of the hearing aid purchase. On or about April 29, 1998, Respondent received the hearing aid from the manufacturer and contacted patient D.V. An appointment for delivery of the hearing aid was scheduled for May 1, 1998. After patient D.V. missed the appointment, another appointment was scheduled for May 15, 1998. On May 15, 1998, Respondent presented the hearing aid to D.V. At the time of delivery, patient D.V. complained of feedback and Respondent immediately placed a vent plug in the hearing aid. Patient D.V. departed Respondent's office with the hearing aid in his possession on May 15, 1998. On or about May 19, 1998, patient D.V. returned to Respondent's office complaining of feedback. To cure the problem, Respondent forwarded the hearing aid to the manufacturer for a soft coat finish. Three days later on May 22, 1998, patient D.V. returned for the hearing aid, was again tested, scored 100 percent without feedback, and took possession of the aid. To ensure satisfaction, a follow-up appointment was scheduled for May 29, 1998; however, patient D.V. failed to appear. On June 29, 1998, patient D.V. entered Respondent's office and demanded a refund. Upon being denied, patient D.V. physically attacked trainee Collins, threw the hearing aid at the receptionist, and eventually departed. The evidence deduced at Hearing indicates that patient D.V. physically maintained possession of the hearing aid from May 15, 1998, through May 19, 1998, and May 22, 1998, through June 29, 1998, a total of 43 days, before requesting a refund. The following day, on June 30, 1998, Respondent's wife, Barbara Segretario, advised patient D.V. via letter that he was no longer permitted within the Daytona office. Shortly thereafter, patient D.V. contacted his credit card company and disputed the hearing aid charge apparently alleging that he never signed the credit card slip. Cathy Gionfriddo, an employee at Hearing Care 2000, forwarded a copy of patient D.V.'s signed credit card slip and signed contract to the credit card company for signature comparison. Following the lengthy dispute process, the credit card company ruled in favor of Hearing Care 2000. Thereafter, patient D.V. filed a small claims action against Respondent, wherein the small claims judge ruled in favor of patient D.V. and awarded him a $450.00 judgment. Patient D.V. received the money in April 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialist issue a Final Order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 11th day of September, 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 11th day of September, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Reginald Dixon, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William W. Large, General Counsel 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
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.
Findings Of Fact Petitioner, Donna A. Benoit, is a candidate for licensure as a hearing aid specialist. Her examination date was September 10-12, 1993. There were two sections to the examination for licensure: a practical portion that consisted of several subparts, and a written portion for which the minimum passing grade was 75.00. In order to achieve an "overall examination status" of passing, Petitioner was required to pass both sections. While Petitioner obtained a passing grade on the practical section, her grade on the written section was 74.00. Upon receipt of her test scores, Petitioner timely challenged the examination results. Initially, Petitioner listed twenty-two questions for which she received no credit as those to be challenged. At hearing, however, Petitioner elected to only challenge one: Question 10. The format for the written examination was multiple choice, and the instructions directed candidates to choose the best answer from among those suggested. Approximately 79 percent of the candidates taking the examination got Question 10 correct. Therefore, for statistical purposes, Question 10 should not be considered vague or ambiguous. An audiometric evaluation is required before a hearing aid can be fitted or sold. An audiometric evaluation consists of the following: puretone testing by air and bone conduction, effective masking when indicated, speech reception thresholds, speech discrimination scores, MCL and UCL, and selection of best fitting arrangement. An otoscopic examination of the ear is performed before the audiometric evaluation can be performed. An otoscopic examination does not, of itself, allow a hearing aid to be fitted or sold. Once the otoscopic examination is successfully completed such that a hearing aid may be fitted and sold, the audiometric evaluation must be performed. An audiometric evaluation as described in Section 484.0501, Florida Statutes, provides the minimal procedures in the fitting and selling of hearing aids. Petitioner's answer to Question 10, "D", was not the best selection from those available; consequently, the Department correctly scored Petitioner's response.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Board of Hearing Aid Specialists, enter a final order denying Petitioner's challenge to Question 10 of the hearing aid specialists examination administered September 10-12, 1993. DONE AND RECOMMENDED this 21st day of April, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0303 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Petitioner's one page letter filed March 28, 1994, has been considered argument and not in a format to allow rulings on specific facts. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 3, and 6 are accepted. The first two sentences and the last sentence of paragraph 4 are accepted; the remainder is rejected as irrelevant. The last sentence of paragraph 5 is accepted; the remainder is rejected as unnecessary or irrelevant. COPIES FURNISHED: Donna A. Benoit 100 St. George Boulevard Apt. 402 Savannah, Georgia 31419 Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in these cases is whether Respondent committed the violations alleged in three Administrative Complaints, and, if so, what appropriate disciplinary action should be taken against him.
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence and the entire record complied herein, the following relevant facts are made: 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 regulation of hearing aid providers in Florida. Section 455, Florida Statutes (1999). Respondent, Robert F. Davidson, has been a licensed hearing aid specialist in this state, holding license number 0000740. From sometime in April and continuing through sometime in December 1998 Respondent was employed as a salaried store manager at Hearite Audiological ("Hearite"), a hearing aid establishment located at 2700 East Bay Drive, Largo, Florida, 33771, and owned by George Richards and Paula Rogers. Respondent engaged in testing the hearing of individuals and engaged in selling hearing aids to individuals for Hearite Audiological, Inc. To each individual Respondent sole a hearing aid, he provided that person with a written notice of the 30-day money back guarantee. Case No. 01-3536PL Patient C. L. D., a hearing impaired-person, visited Hearite on September 9, 1998, and entered an agreement to purchase a pair of hearing aids for $1,795.00, paying $500.00 deposit at that time. Patient C. L. D. was provided a sales receipt for her deposit signed by Respondent. On September 21, 1998, Respondent delivered the hearing aids to patient C. L. D. at Hearite and signed the receipt as the person who delivered the hearing aids to the patient. Patient C. L. D., after using the hearing aids, became dissatisfied with them and returned the hearing aids to Respondent at Hearite on October 8, 1998. Respondent accepted the hearing aids from Patient C. L. D. and, pursuant to the terms of the sales contract, Respondent promised Patient C. L. D. a full refund of her $500.00 deposit. Despite repeated phone calls to Respondent and repeated attempts to obtain the refund, Patient C. L. D. has never received her refund as promised, and Hearite was later sold to a new owner in January 1999. Case No. 01-3537PL On May 26, 1998, hearing-impaired Patient J. C. aged 95 years, and now deceased, along with his daughter, Chris Vidalis, visited Hearite and purchased a hearing aid for $1,345.00, paying $500.00 deposit upon execution of the sales contract. On June 5, 1998, Patient J. C. paid the remaining $845.00 and received his hearing aid. On June 12, 1998, being dissatisfied with its use Patient J. C. returned the hearing aid and requested a refund. Respondent accepted the hearing aid and promised Patient J. C. a refund of $1,345.00 within 120 days. Patient J. C.'s daughter, Chris Vidalis, who was with her father every time he visited Hearite, made numerous telephone calls and visits to Hearite in attempts to obtain the refund. The refund was never paid and Hearite was sold to a new owner in January 1999. Case No 01-3538PL On or about June 10, 1998, Patient R. L., after several unsolicited telephone calls from someone representing Hearite, visited Hearite for the purpose of having his hearing tested and possibly purchasing a hearing aid. After testing, Patient R. L. purchased a pair of hearing aids at Hearite for $3,195.00. A paid in full receipt signed by Al Berg was given to Patient R. L. On or about July 10, 1998, Respondent delivered the hearing aids to Patient R. L. and signed the sales receipt as the licensee who delivered the hearing aids. Upon being dissatisfied with using the hearing aids Patient R. L. returned them to Hearite on July 13, 1998. Kelly Dyson, audiologist employed at Hearite, accepted the hearing aids and promised Patient R. L. a full refund of $2,840.00, pursuant to the terms of the contract. Patient R. L. made repeated attempts to obtain his refund as promised but has not received one. Hearite was sold to a new owner in January 1999. Respondent's position, that each of the three patients herein above was aware or should have been aware that the sale of hearing aids, and, therefore, the guarantor of the refunds was Hearite Audiological, Inc., and, not himself, is disingenuous.
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 requiring Respondent to pay the following amounts: to Patient C. L. D., $500.00, DOAH Case No. 01-3536PL; to Patient J. C. (or his estate) $1,345.00, DOAH Case No. 01-3537PL, and to Patient R. L., $2,840.00, DOAH Case 01-3537PL. Further that Respondent be fined $1,000.00 and be required to pay the appropriate costs of investigation and prosecution. Further, ordered that Respondent's license be suspended and not reinstated until after all payments herein ordered are paid in full, and thereafter place Respondent on probation for a period of not less than one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 1st day of February, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 1st day of February, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
