STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS. Petitioner, Case No: License No.: AS 5149 FINAL ORDER

Transcription

1 Final Order No. DOH FILED DATE - Departm -MQA STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS Deputy Agency Clerk DEPARTMENT OF HEALTH vs. Petitioner, Case No: License No.: AS 5149 NICHOLAS R. GRAY, H.A.S., Respondent. FINAL ORDER This matter appeared before the Board of Hearing Aid Specialists (hereinafter "Board") pursuant to Sections and (4), Florida Statutes, at a duly-noticed public meeting on July14, 2017, in Orlando, Florida, for consideration of a Settlement Agreement (attached hereto as Exhibit "A") entered into between the parties in this cause and incorporated by reference into this Order. The Department of Health (hereinafter "Petitioner") was represented by Octavio Simoes-Ponce, Assistant General Counsel. Mr. Nicholas R. Gray (hereinafter "Respondent") was present and was represented by counsel. Upon consideration of the Settlement Agreement, the documents submitted in support thereof, the arguments of the parties and otherwise being advised in the premises, the Board rejected the Settlement Agreement. The Board voted to offer a Counter Settlement Agreement. The Respondent accepted the counter offer via electronic mail from his attorney dated August 4, Accordingly, settlement of the case includes the terms of the settlement agreement attached as Exhibit A as modified by the following:

2 1) Stipulated Disposition, Paragraph 2: The amount of the fine shall be $2, ) Stipulated Disposition, Paragraph 3: The cost to be reimbursed was shall be $2, to be paid within one year from the date of issuance of this final order. There is no suspension of Mr. Gray's license. 3) Standard Provisions, Paragraph 1: The Respondent is not required to appear before the Board. This Order shall become effective upon filing with the Clerk for the Department of Health. DONE AND ORDERED this DI*" day of, BOARD OF HEARING AID SPECIALISTS Je 'fer on ehal V Fold, Executive Director eanne Polhill, CHAIR CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Nicholas R. Gray 8732 SE 165th Mulberry Lane, Miami Lakes, FL 33016, Jamie Dokovan, Esq., 625 N. Flagler Drive, West Palm Beach, FL 33401; and by Electronic Mail to Octavio Simoes-Ponce at Octavio.Simoesn tt-- Ponce@flhealth.gov on this 0(1 day of X4 St, Deputy Agency Clerk

3 STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sanders DATE i AUG DEPARTMENT OF HEALTH vs. Petitioner, Case No: License No.: AS 5149 NICHOLAS R. GRAY, H.A.S., Respondent. ORDER REJECTING SETTLEMENT AGREEMENT AND OFFERING COUNTER SETTLEMENT AGREEMENT This matter appeared before the Board of Hearing Aid Specialists (hereinafter "Board") pursuant to Sections and (4), Florida Statutes, at a duly-noticed public meeting on July14, 2017, in Orlando, Florida, for consideration of a Settlement Agreement (attached hereto as Exhibit "A") entered into between the parties in this cause and incorporated by reference into this Order. The Department of Health (hereinafter "Petitioner") was represented by Octavio Simoes-Ponce, Assistant General Counsel, with the Department of Health. Mr. Nicholas R. Gray (hereinafter "Respondent") was present and was represented by counsel. The Petitioner filed an Administrative Complaint against the Respondent on April 10, 2017, attached hereto as Exhibit "B" and incorporated by reference into this Order. Upon consideration of the Settlement Agreement, the documents submitted in support thereof, the arguments of the parties and otherwise being advised in the premises, the Board rejected the Settlement Agreement. The Board voted to offer a Counter

4 Settlement Agreement that incorporates the original Settlement Agreement with the following amendments: 1) Stipulated Disposition, Paragraph 2: The amount of the fine was amended to $2, ) Stipulated Disposition, Paragraph 3: The cost to be reimbursed was amended to $2, to be paid within one year from the date of issuance of a final order memorializing this agreement. There is no suspension of Mr. Gray's license. 3) Standard Provisions, Paragraph 1: The Respondent is not required to appear before the Board if he accepts the amendments to the Settlement Agreement. The Board's Counter Settlement Agreement must be accepted or rejected in writing within ten days of the filing of this Order by correspondence addressed to: Marlene Stern, Board Counsel, at Marlene.Stem@myfloridalegal.com, and to Octavio Simoes-Ponce, at Octavio.Simoes-Ponce@fihealth.gov. If the Counter Settlement Agreement is accepted, such acceptance shall be incorporated into a Final Order. This Order shall become effective upon filing with the Clerk for the Department of Health. DONE AND ORDERED this 11-1 day of, BOARD OF HEARING AID SPECIALISTS 41I0 AfidAl - Set ler '' - o d, Executive Director on ehal YIP e Polhill, CHAIR 2

5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Nicholas R. Gray 8732 SE 165th Mulberry Lane, Miami Lakes, FL 33016, Jamie Dokovan, Esq., 625 N. Flagler Drive, West Palm Beach, FL 33401; and by Electronic Mail to Octavio Simoes-Ponce at Octavio.Simoes- Ponce@flhealth.gov on this t day of Deputy Agency Clerk 3

6 STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Amber Greene DATE JUL DEPARTMENT OF HEALTH vs. Petitioner, Case No: License No.: AS 5149 NICHOLAS R. GRAY, H.A.S., Respondent. ORDER REJECTING SETTLEMENT AGREEMENT AM) OFFERING COUNTER SETTLEMENT AGREEMENT This matter appeared before the Board of Hearing Aid Specialists (hereinafter "Board") pursuant to Sections and (4), Florida Statutes, at a duly-noticed public meeting on July14, 2017, in Orlando, Florida, for consideration of a Settlement Agreement (attached hereto as Exhibit "A") entered into between the parties in this cause and incorporated by reference into this Order. The Department of Health (hereinafter "Petitioner") was represented by Octavio Simoes-Ponce, Assistant General Counsel, with the Department of Health. Mr. Nicholas R. Gray (hereinafter "Respondent") was present and was represented by counsel. The Petitioner filed an Administrative Complaint against the Respondent on April 10, 2017, attached hereto as Exhibit "B" and incorporated by reference into this Order. Upon consideration of the Settlement Agreement, the documents submitted in support thereof, the arguments of the parties and otherwise being advised in the-premises, the Board rejected the Settlement Agreement. The Board voted to offer a Counter

7 Settlement Agreement that incorporates the original Settlement Agreement with the following amendments: 1) Stipulated Disposition, Paragraph 2: The amount of the fine was amended to $2, ) Stipulated Disposition, Paragraph 3: The cost to be reimbursed was amended to $2, to be paid within one year from the date of issuance of a final order memorializing this agreement. There is no suspension of Mr. Gray's license. 3) Standard Provisions, Paragraph 1: The Respondent is not required to appear before the Board if he accepts the amendments to the Settlement Agreement. The Board's Counter Settlement Agreement must be accepted or rejected in writing within ten days of the filing of this Order by correspondence addressed to: Marlene Stern, Board Counsel, at Marlene.Stem invtloridaleaal.com, and to Octavio Simoes-Ponce, at Octavio.Simoes-Pon.ce@fihealth.gov. If the Counter Settlement Agreement is accepted, such acceptance shall be incorporated into a Final Order. This Order shall become effective upon filing with the Clerk for the Department of Health. DONE AND ORDERED this 2h day of, BOARD OF HEARING AID SPECIALISTS R ic' Jennifer W on behalfofle cutive Director olhill, CHAIR 2

8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Nicholas R. Gray 8732 SE 165Th Mulberry Lane, Miami Lakes, FL 33016, Jamie Dokovan, Esq., 625 N. Flagler Drive, West Palm Beach, FL 33401; and by Electronic Mail to Octavio Simoes-Ponce at Octavio.Simoes- Ponce@flhealth.gov on this day of -5-Lk.11, Deputy Agency Clerk 3

9 Mission: To prated, promote & improve the health of all people In Florida through integrated state, county & community efforts. HEALTH Vision: To be the Healthiest State in the Nation Rick Scott Governor Celesta Philip, MD, MPH State Surgeon General and Secretary MEMORANDUM DATE: July 25, 2017 TO: FROM: Adrienne Rodgers, J.D., Bureau Chief Bureau of Health Care Practitioner Regulation Jennifer Wenhold, Executive Director Boards of Clinical Social Work, Marriage & Family Therapy, Mental Health Counseling, Dentistry, Opticianry, Hearing Aid Specialists, and Athletic Training SUBJECT: Delegation of Authority This is to advise you that while I am out of the office Friday, July 28, 2017, Penny Johnson, Regulatory Supervisor, has delegated authority to serve as Acting Executive Director for the Boards of Clinical Social Work, Marriage and Family Therapy, Mental Health Counseling, Dentistry, Opticianry, Hearing Aid Specialists, and Athletic Training. Mrs. Johnson is available by phone to (850) JW/ac cc: Executive Directors Board Staff Florida Department of Health Division of Medical Quality Assurance Bureau of Health Cam Practilimer Regulallcc Boards of Clinical Social Work, Marriage & Family Therapy, Mental Health Counseling, Dentistry, Opticlanry, Hearing Ald Spedallste, and Athletic Training 4052 Bald Cypress Way, Bin C-08 Tallahassee, FL PHONE: FAX PlaridaHealth.gov Accredited Health Department Public Health Accreditation Board

10 1802 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS PETITIONER, v. CASE NO NICHOLAS R. GRAY, H.A.S., RESPONDENT. SETTLEMENT AGREEMENT Pursuant to Section (4), Florida. Statutes, the above named parties hereby offer this Settlement Agreement to the Board of Hearing Aid Specialists ("Board") as disposition of the Administrative Complaint, attached hereto as Exhibit "A," in lieu of any other administrative proceedings. The terms herein become effective only if and when a Final Order accepting this Settlement Agreement is issued by the Board and then filed. In considering this Settlement Agreement, the Board may review all investigative materials regarding this case. If this Settlement Agreement is rejected, it, and its presentation to the Board, shall not be used against either party. DOH v. Nicholas Gray, H.A.S. 1

11 1803 STIPULATED FACTS 1. For ail times pertinent herein, Respondent was a licensed hearing aid specialist in the State of Florida, having been issued license number AS Respondent was charged by an Administrative Complaint filed by the Department of Health ("Department") and properly served upon Respondent with violations of Chapter 456 and/or 484, Florida Statutes. 3. Respondent neither admits nor denies the factual allegations in the Complaint and is entering into this Settlement Agreement for the purpose of settlement in these administrative proceedings only. 4. The parties agree that the Settlement Agreement is a fair, appropriate, and reasonable resolution to this pending matter. STIPULATED LAW 1. Respondent admits that Respondent is subject to the provisions of Chapters 456 and 484, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the stipulated facts, if they were proven true, constitute violations of law as alleged in the Administrative Complaint. DOH v. Nicholas Gray, HAS. 2

12 1804 STIPULATED DISPOSITION 1. Reprimand - The Board shall Reprimand the license of the Respondent. 2 Fine - The Board shall impose an administrative fine of one thousand dollars ($1000) against the license of Respondent, to be paid by Respondent to the Department of Health, Compliance Management Unit, Post Office Box 6320, Tallahassee, Florida , Attention: Board of Hearing Aid Specialists Compliance Officer, within one (1) year from the date of the Final Order incorporating this agreement. All fines shall be paid by certified funds or money order. The compliance office does not have the authority to change the terms of payment of any fine imposed by the Board. 3. Reimbursement - Pursuant to Section (4), Florida Statutes, Respondent shall pay all actual costs associated with the investigation and prosecution of this matter. The costs will be determined at the time this Settlement Agreement is presented to the Board, but shat( not exceed two thousand five hundred dollars ($2,500). Respondent will pay costs to the Department of Health, Compliance Management Unit, P.O. Box 6320, Tallahassee, Florida , Attention: Board of Hearing DOH v. NiCholas'Gray, H.A.S. 3

13 1805 Aid Specialists Compliance Officer, within two (2) years from the date Respondent's suspension ends. Any post-board costs, such as the costs associated with compliance, are not included in this Settlement Agreement. STANDARD PROVISIONS 1. Appearance: Respondent is required to appear before the Board at the meeting of the Board where this Settlement Agreement Is considered and answer the Board's questions, if any. 2. No force or effect until final order - It Is expressly understood that this Settlement Agreement is subject to the approval of the Board 3. Addregses - Respondent must keep current residence and practice addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. 4. Future Conduct - In the future, Respondent shall not violate Chapters 456, or 484, Florida Statutes, or the rules promulgated pursuant thereto, or any other state or federal law, rule, or regulation relating to the practice or the ability to practice Hearing Aid Specialty. Prior to signing this agreement, the Respondent shall read Chapters 456, DOH v. Nicholas Gray, H.A.S. 4

14 , and the Rules of the Board of Hearing Aid Specialists, at Chapter 64B6, Florida Administrative Code. 5. Violation of terms considered - It is expressly understood that a violation of the terms of this Settlement Agreement shall be considered a violation of a Final Order of the Board, for which disciplinary action may be initiated pursuant to Chapters 456 and 484, Florida Statutes. 6. Purpose of Agreement - Respondent, for the purpose of avoiding further administrative action with respect to this cause, executes this Settlement Agreement. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Settlement Agreement. Respondent agrees to support this Settlement Agreement at the time it is presented to the Board and shall offer no evidence, testimony or argument that disputes or contravenes any stipulated fact or conclusion of law. Furthermore, should this Settlement Agreement not be accepted by the Board, it is agreed that presentation to and consideration of this Settlement Agreement and other documents and matters by the Board shall not DOH v. Nicholas Gray, H.A.S. 5

15 1807 unfairly or illegally prejudice the Board or any of its members from further participation,, consideration or resolution of these proceedings. 7. No preclusion of additignal proceedings - Respondent and the Department fully understand that this Settlement Agreement and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against Respondent for acts or omissions not specifically set forth in the Administrative Complaint attached as Exhibit A. 8. Waiver of attormy's fees and costs - Upon the Board's adoption of this Settlement Agreement, the parties hereby agree that with the exception of costs noted above the parties will bear their own attorney's fees and costs resulting from prosecution or defense of this matter. Respondent waives the right to seek any attorney's fees or costs from the Department and the Board in connection with this matter. 9. Waiver of further procedural steps - Upon the Board's adoption of this Settlement Agreement, Respondent expressly waives all further procedural steps and expressly waives all rights to seek judicial review of or to otherwise challenge or contest the validity of the DOH V. Nicholas Gray, 1-IA5. 6

16 1808 Settlement Agreement and the Final Order of the Board incorporating said Settlement Agreement. WHEREFORE, the parties hereby request that the Board enter a Final Order accepting, adopting, and implementing the terms contained herein. SIGNED this day of 1-, STATE OF FLORIDA COUNTY OF C / Nicholas R. Gray, H.A.S. Before me personally appeared 1-1 whose identity is known to me personally or by 'T.., (type of identification), and who, under oath, acknowledges that his/her signature appears above. Sworn to and subscribed by.1`,, %\.\. 'before me this day of 1-,2017. /., Notary Publiol My Commission Expires: ' 0.60, FIRITAINY RI SON Ire MY COMMISSION 0 FP EXPIRES: February 6, 2020 Botta Tk J Hoary Plait Uncionitato DOH v. Nicholas Gray, H.A.S. 7

17 1809 APPROVED this day of 1 _, Celeste Phillip, M.D., M.P.H. State Surgeon General and Secretary Octavio Simoes-Ponce Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Florida Bar No.: (850) x Telephone (850) Facsimile Octavio.Simoes-Ponce@flhealth.gov DOH v. Nicholas Gray, H.A.S. 8

18 1795 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS PETITIONER, v. CASE NO NICHOLAS R. GRAY, H.A.S., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Hearing Aid Specialists against Respondent, Nicholas R. Gray, H.A.S., and in support thereof alleges: 1. Petitioner Is the state agency charged with regulating the practice of hearing aid specialists pursuant to Chapter 20, Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 484, Florida Statutes. 2. Respondent Is a licensed hearing aid specialist within the State of Florida, having been first issued license number AS 5149 on or about December 17, DOH v. Nicholas R. Gray, H.A.S.

19 Respondent's mailing address on record with the Department is 755 Wynfield Circle, St. Augustine, Florida From on or about April 22, 2015, to on or about November 19, 2015, Respondent held hearing aid specialist trainee ("trainee") license number AST 449, which is currently null and void. 5. At all times material to this Complaint, Respondent was employed as a trainee by Physician Audiology Services, Inc., which does business in Florida as Florida Medical Hearing Centers ("FMHC"). 6. According to Rule 64E , F.A.C., the trainee program is divided Into the following stages: (a) Stage I; During this Stage, the trainee shall complete the International Hearing Society Home Study Course and shall submit proof of passing the home study course final examination. If the trainee passes the home study course.flnal examination but fails the licensure examination, he or she will not have to repeat the home study course prior to the next available licensure examination. (b) Stage II 1 month: During this Stage, the trainee may perform audiometric tests, and make ear mold impressions and modifications, but the sponsor or hearing aid specialist designated by the sponsor shall be physically present, in the same room at all times when the trainee is performing these functions. The trainee may not recommend the selection of a hearing aid, dispense a hearing aid, or counsel a client. (c) Stage III 2 months: During this Stage the trainee may perform all tasks in Stage II, recommend the selection of a hearing aid, and counsel a client, but the trainee shall be under the direct supervision of the sponsor or hearing aid specialist designated by the sponsor. The trainee may not deliver a hearing aid. (d) Stage IV 3 months: During this Stage the trainee may perform all the tasks in Stages II and III and deliver hearing aids, but the sponsor or hearing aid specialist designated by the sponsor shall be physically present in the same room at the time a hearing aid Is delivered to the DOH v. Nicholas R. Gray, H.A.S. Casa No

20 1797 client, and the receipt required by Section , F.S., must have the signature and license number of the sponsor or hearing aid specialist designated by the sponsor. 7, Stage I of. Respondent's trainee program, during which time he was not authorized to perform audiometric tests, lasted from on or about April 22, 2015, to on or about May 20, , During the above time period, Respondent performed audiometric tests for FMHC patients, 9, Stages II through III of Respondent's trainee program, during which time he was not authorized to deliver hearing aids, lasted from on or about May 20, 2015, to on or about August 19, During the above time period, Respondent delivered hearing aids to FMHC patients. 11. Section (2), Florida Statutes ( ), subjects any person to discipline for committing a violation of Section (1) or a violation of the applicable practice act which occurred prior to obtaining a license. 12. Section (1)(w), Florida Statutes ( ), subjects a hearing aid specialist to discipline for violating any provision of chapter 484 or chapter 456, or any rules adopted pursuant thereto. DOH v. Nicholas R. Gray, H.A.S. Case Na

21 Section (1)(o), Florida Statutes ( ), subjects a licensee to discipline for practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform. 14, Respondent, while working at FMHC as a trainee, practiced or offered to practice beyond the scope permitted by law, or accepted and performed professional responsibilities Respondent knew, or had reason to know, Respondent was not competent to perform, by: a. Performing audiometric tests for FMHC patients during Stage I of his trainee program; and/or b. Delivering hearing aids to FMHC patients during Stages II through III of his trainee program. 15. Based on the foregoing, Respondent has violated Section 484,056(1)(w), Florida Statutes ( ), by violating Section (1)(o), Florida Statutes ( ). WHEREFORE, the Petitioner respectfully requests that the Board of Hearing Aid Specialists enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's DOH v. NIcholas R. Gray, H.A.S,

22 1799 license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement a the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this /6 day of, Celeste Philip, MD, MPH State.Surgeon General and Secretary CLERK DATE A FILED DEPARTMENT UP %WM-TN DEPuTY ct_er4k tor ridet2117 ) / Octavio Simoes-Ponce, Esq. Assistant General Counsel Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL (850) ext FAX (850) Florida Bar # Octavio.Simoes-Ponce@flhealth.gov PCP: April 6, PCP Members: John Fischer, H.A.S., Chairperson, and Joseph Someillan, H.A.S., Panel Member. DOH v. Nicholas R. Gray, H.A.S.

23 1800 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section and , Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested: A request or petition for an administrative hearing must be in writing and must be received by the Department within' 21 days from the day Respondent received the Administrative Complaint, a. pursuant to Rule (2), Florida Administrative Code. Please send your request to: Department of Health Prosecution Services Unit Attention: Octavio Simoes-Ponce, Esq Bald Cypress Wayi Bin #C65 Tallahassee, Florida If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule (4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule (5), Florida Administrative Code. Please be advised that mediation under Section , Florida Statutes, is not available for administrative disputes involving this agency action. DOH v. Nicholas R. Gray, H.A.S.

24 1801 NOTICE REGARDING ASSESSMENT OF COSTS Respondenit is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section (4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Nicholas R. Gray, H.A.S. 7