Final Order No. DOH-17-1590- -MQA ILED DATE - UG 2 5 2017 Departen STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS puty Agency Clerk DEPARTMENT OF HEALTH Petitioner, Case No: 2016-18265 vs. License No.: AS 2749 JOE CROGAN, H.A.S., Respondent. FINAL ORDER This matter came before the Board of Hearing Aid Specialists (hereinafter "Board") pursuant to Sections 120.569 and 120.57(4), Florida Statutes, at a duly-noticed public meeting held via teleconference on August 15, 2017, for consideration of the proposed Settlement Agreement (attached as Exhibit A and incorporated by reference) between the parties. Petitioner, Department of Health, was represented by Octavio Simoes-Ponce, Assistant General Counsel. Respondent, Joe Crogan, was present and was represented by Jamie Dokovna, Esq. The Board voted to reject the proposed Settlement Agreement. The Board voted to make a counter offer. The Respondent accepted the counter offer by electronic mail dated August 21, 2017. Accordingly, the final settlement of the case includes the following modifications to the Stipulated Disposition section of Exhibit A: a fine of $7,500; costs of $2,918.17; costs and fines to be paid within 6 months of the issuance of
an Order approving the counter offer; a letter of reprimand instead of a letter of concern; and, four years probation. All other terms of Exhibit A remain the same.1 This Order shall become effective upon filing with the Clerk for the Department.5411 of Health. DONE AND ORDERED this day of, 2017. BOARD OF HEARING AID SPECIALISTS Jennifer Wenhold, Executiv 'rector on behalf of Leanne 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 Joe Crogan, 1108 S. State Street, Suite 108, Bunnell, FL 32210, and Jamie Dokovna, Esq., Bank of America Centre, 625 N. Flagler Dr., 7th Floor, West Palm Beach, FL 33401; and, electronic mail to Jamie Dokovna at JDokovnaa,bplegal.com, and Octavio Simoes-Ponce at Octavio.Simoes- Ponce@flhealth.gov on this 2day of 0,,țe awn-, 2017. Deputy Agency Clerk 1 The reference to a license suspension on page 4 of the attached Settlement Agreement is a scriveners error. Suspension was never intended to be a term of the proposed settlement between the parties and is not intended to be part of the Board's counter offer. 2
Mission: To protect, 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 Celeste Philip, MD, MPH State Surgeon General and Secretary MEMORANDUM DATE: August 24, 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 Thursday, August 24, 2017 through Friday, August 25, 2017, Robin McKenzie, Program Operations Administrator and 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. McKenzie is available by phone to (850) 245-4461. JW/ac cc: Executive Directors Board Staff Florida Department of Health Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Boards of Clinical Social Work, Marriage & Family Therapy, Mental Health Counseling, Dentistry, Opticianry, Hearing Aid Specialists, and Athletic Training 4052 Bald Cypress Way, Bin C-08 Tallahassee, FL 32399-3261 PHONE: 850/245-4474 FAX 850/1921-5389 FlorldaHealth.gov Accredited Health Department Public Health Accreditation Board
STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Anael Sanders DATE AUG 1 6 2017 DEPARTMENT OF HEALTH vs. Petitioner, Case No: 2016-18265 License No.: AS 2749 JOE CROGAN, Respondent. ORDER REJECTING SETTLEMENT AGREEMENT AND OFFERING COUNTER SETTLEMENT AGREEMENT This matter came before the Board of Hearing Aid Specialists (hereinafter "Board") pursuant to Sections 120.569 and 120.57(4), Florida Statutes, at a duly-noticed public meeting held via teleconference on August 15, 2017, for consideration of the proposed Settlement Agreement (attached as Exhibit A) between the parties. The Department of Health (hereinafter "Petitioner") was represented by Octavio Simoes- Ponce, Assistant General Counsel, with the Department of Health. Respondent, Joe Crogan, was present and was represented by Jamie Dokovna, Esq. The Board voted to reject the proposed Settlement Agreement. The Board voted to make a counter offer consisting of: a fine of $7,500; costs of $2,918.17; costs and fines to be paid within 6 months of the issuance of an Order approving the counter offer; a letter of reprimand instead of a letter of concern; and, four years probation. All other terms of the attached Settlement Agreement would remain the same.' 1 The reference to a license suspension on page 4 of the attached Settlement Agreement is a scriveners error. Suspension was never intended to be a term of the proposed settlement between the parties and is not intended to be part of the Board's counter offer.
In addition, the Board voted that the Respondent must respond to this counter offer within 14 days of the issuance of this Order. The response shall be provided to: Marlene Stem, Board Counsel, at Marlene.Stem@myfloridalegal.com, and to Octavio Simoes-Ponce, at Octavio.Simoes-Ponce@flhealth.gov. If the Counter Settlement Agreement is accepted, such acceptance shall be incorporated into a Final Order and no additional appearance before the Board will be required. of Health. This Order shall become effective upon filing with the Clerk for the Department DONE AND ORDERED this WI day of (M-*, 2017. BOARD OF HEARING AID SPECIALISTS Je on nhold, 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 Joe Crogan, 1108 S. State Street, Suite 108, Bunnell, FL 32210, and Jamie Dokovna, Esq., Bank of America Centre, 625 N. Flagler Dr., 7th Floor, West Palm Beach, FL 33401; and, electronic mail to Jamie Dokovna at JDokovnac21bplegal.com, and Octtro Simoes-Ponce at Octavio.Simoes- Ponce@flhealth.gov on this' (0 day of +-2017. 2 EVOGILlia_ Deputy Agency Clerk
29 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS PETITIONER, v. CASE NO. 2016-18265 JOE CROGAN, H.A.S., RESPONDENT. SETTLEMENT AGREEMENT Pursuant to Section 120.57(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..1oe Oxman, H.A.S. 1 (se No. 2016-18265
30 STIPULATED FACTS 1. For all times pertinent herein, Respondent was a licensed hearing aid specialist in the State of Florida, having been issued license number AS 2749. 2. 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. STIpyLATED 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. Joe Crogan, HAS. 2 Case No. 2016-18265
31 STIPULATED DISPOSITION 1. Latter of Concern - The Board shall issue a Letter of Concern to 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 32314-6320, 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 Of Costs - Pursuant to Section 456.072(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 shall not exceed three thousand dollars ($3,000). Respondent will pay costs to the Department of Health, Compliance Management Unit, P.O. Box 6320, Tallahassee, Florida 32314-6320, Attention: Board of Hearing Aid DOH v. Joe Grogan, H.A.S. 3 Case No. 2016-18265
32 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. Addresses - 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..loe Crown, H.A.S. Case No. 2016-18265 4
33 484, and the Rules of the Board of Hearing Aid Specialists, at Chapter 64B6, Florida Administrative Code. 5. Violption of terms considertsti - 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. Joe Crogan, H.A.S. Case No. 2016-18265 5
34 unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. 7. No preclusion pf additional 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 attorney'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 fulther 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. Joe Crogan, H.A.S. 6 Case No. 2016-18265
35 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 4-Ps- day of r11 2017. STATE OF FLORIDA COUNTY OF F.1 elk{ Before me personally appeared./..arara L / /car.%,whose identity is known PerSanalY or by (type of identification), and who, under oath, acknowledges that his/her signature appears above. Sworn to and subscribed by elfin before me this 1-P-1% day of rnal 442. Notary Public My Commission Expires: DOH v. Joe Onion, H.AS. 7 Case No. 2016-18265
36 0 APPROVED this \ day of ft-6a, 2017. 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 32399-3265 Florida Bar No.: 0096511 (850) 245-4444 x. 8230 Telephone (850) 245-4684 Facsimile Octavio.Simoes-Ponce@flhealth.gov DOH v. Joe Cavan, H.A.S. Case No. 2016-18265
22 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS PETITIONER, V. CASE NO. 2016-18265 JOE CROGAN, 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, Joe Crogan, 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. At all times material to this complaint, Respondent was a licensed hearing aid specialist within the State of Florida, having been first issued license number AS 2749 on or about December 3, 1997. 1)011 v. Joe Cogan, H.A.S Case No 2016 18265
23 3. Respondent's mailing address on record with the Department is 1108 S. State St., Suite 108, Bunnell, Florida 32110. 4. From on or about April 22, 2015, to on or about November 19, 2015, Respondent was the sponsor of Nicholas Gray ("Mr. Gray"), who at that time was a hearing aid specialist trainee ("trainee") holding. license number AST 449. 5. At all times material to this Complaint, Mr. Gray 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 64B6-8.003, 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 final 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 I1I and deliver hearing aids, but the sponsor or DOH v. Joe Crogan, H.A.S. Case No. 2016-18265 2
24 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 dient, and the receipt required by Section 484.051, F.S., must have the signature and license number of the sponsor or hearing aid specialist designated by the sponsor. 7. Stage I of Mr. Gray'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, 2015. 8. During the above time period, Mr. Gray performed audiometric tests for FMHC patients. 9. Stages II through III of Mr. Gray'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, 2015. 10. During the above time period, Gray delivered hearing aids to FMHC patients. 11. The receipts for the aids delivered by Mr. Gray to FMHC patients did not contain Respondent's signature and license number. 12. Respondent failed to directly supervise Mr. Gray at some or all times material to this Complaint. 13. Section 484.056(1)(w), Florida Statutes (20142015), subjects a hearing aid specialist to discipline for violating any provision of chapter 484 or chapter 456, or any rules adopted pursuant thereto. 1011 v Joc Crogan. H.A S. Case No.. 2016-18265 3
25 14. According to Section 484.0445, Florida Statutes (2014-2015), a trainee shall perform the functions of a hearing aid specialist in accordance with board rules only under the "direct supervision" of a licensed hearing aid specialist. The term "direct supervision" means that the sponsor is responsible for all work being performed by the trainee. The sponsor or a hearing aid specialist designated by the sponsor shall give final approval to work performed by the trainee and shall be physically present at the time the hearing aid is delivered to the client. 15. Rule 64B6-8.001, F.A.C., defines "direct supervision" as [a] relationship In which the sponsor is responsible for all work being done and gives final approval to all hearing aid dispensing work performed by the trainee. The sponsor or hearing aid specialist designated by the sponsor must be physically present in the same room at the time a hearing aid is delivered to the dient, and the receipt required by Section 484.051, F.S., must have the signature and license number of the sponsor or hearing aid specialist designated by the sponsor. 16. Respondent failed to provide direct supervision to Mr. Gray while Mr. Gray practiced beyond the scope of his trainee license. 17. Respondent failed to sign and place his license number on the receipts for the aids Mr. Gray dispensed to patients. 18. Based on the foregoing, Respondent has violated Section 484.056(1)(w), Florida Statutes (2014-2015), by violating Section 484.0445, Florida Statutes (2014-2015), and/or Rule 64B6-8.001, F.A.C. DOH v. Joe Grogan, H, A.S Case No. 2016-18265 4
26 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 license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of 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 day of egy7\1%, 2017. Celeste Philip, MD, MPH State Surgeon General and Secretary CLERK DATE FILED DEPARTMENT OF HEALTH DEPUTY CLERK JP 1 11117 Octavio Simoes-Ponce, Esq. Assistant General Counsel Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 (850) 245-4444 ext. 8230 FAX (850) 245-4681 Florida Bar # 0096511 Octavio.Simoes-Ponce@flhealth.gov PCP: April 6, 2017. PCP Members: John Fischer, H.A.S., Chairperson, and Joseph Someillan, H.A.S., Panel Member. DOH v. Joc Crow, H.A.S. Case No. 2016-18265
27 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, 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, pursuant to Rule 28-106.111(2), Florida Administrative Code. Please send your request to: Department of Health Prosecution Services Unit Attention: Octavio Simoes-Ponce, Esq. 4052 Bald Cypress Way, Bin #C65 Tallahassee, Florida 32399-1701 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 28-106.111(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 28-106.2015(5), Florida Administrative Code. Please be advised that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this agency action. DOH v. Joe Crogazi. H.A.S. Case No 2DI 6- I 8265 6
28 NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOIJ ;oe C:rok H.A tic 0 i 826