76-000921 Department Of Education vs. Thomas A. Mullin Status: Closed Recommended Order on Thursday, October 26, 1978.

Summary: Dismiss the complaint. There was no evidence that Respondent violated any provision regarding his profession.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-921

)

DR. THOMAS A. MULLIN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This case was heard pursuant to notice at several locations within Deland

and in Orlando, Florida on September 12, 13, and 14, 1978. This hearing was

heard by the assigned Hearing Officer of the Division of Administrative

Hearings. This case was presented upon an administrative complaint filed by the

Department of Education against Thomas A. Mullin. This administrative complaint

alleges that Mullin violated the provisions of Section 6A-10.081, Florida

Administrative Code, and Part IV, Chapter 468, Florida Statutes, by conducting

audiological testing and prescribing hearing aids by:

1. Failing to obtain medical clearance, authorization or establishing

liaison with the personal or attending physician;

2. Failing to report, either verbally or in writing, his test results

to the administration of the nursing homes where he conducted the tests.

3. Failing to place or cause to be placed a record of the audiometric

testing and hearing aid recommendations in the medical records of the patients

who were tested;

4. Prescribing hearing aids to patients who exhibited no symptomology

of hearing impairment or did not want a hearing aid or their subjective need for

a hearing aid did not require one to be prescribed;

5. Prescribing hearing aids for patients where the audiometric data

on the patient showed that there was no need for a hearing, aid;

6. Failing to provide followup services to patients either personally

or through the hearing aid fitter and seller and not returning to see the

patients;

7. Charging exorbitant and unreasonable fees in relation to the

services performed;

8. Using limited and inadequate audiological procedures for the

selection and recommendation of hearing aids for patients; specifically,

prescribing on the basis of pure tone air conduction threshold measurements

without the use of a master hearing aid, speech audiometer, or similar

amplifying device and conducting threshold audiometric tests in environments

that did not meet minimum standards for exclusion of excessive and extraneous

noise;

9. Using the letterhead of a state supported university at various

times throughout the testing and fitting program in his own individual, private

venture thereby misleading those with whom he was dealing.

The Department of Education presented evidence in support of its

allegations and the Respondent presented evidence in his own behalf. The issues

presented at hearing were whether the Respondent had violated the cited rules

and statutes as alleged in the administrative complaint.

APPEARANCES

For Petitioner: Howard Marsee and

George Meier

605 East Robinson Street

Post Office Box 20154

Orlando, Florida 32814

For Respondent: James Russ and

Paul Mandelkern

441 First Federal Building

109 East Church Street

Orlando, Florida 32801

FINDINGS OF FACT

1. During the period from September 3 through September 7, 1974, the

Respondent, Dr. Thomas A. Mullin, undertook to perform audiological testing on

various patients and staff at University Convalescent Center West (UCCW) and

University Convalescent Center East (UCCE) in Deland, Florida. These two

convalescent centers, although owned by the same corporation, were at that time

separate and distinct facilities, each having its own administrator. UCCW was

located at 545 West Euclid Avenue in Deland, Florida, and its administrator was

Arthur Anderson. UCCE was at that located at 991 East New York Avenue in

Deland, Florida, and its administrator was Gelatha Koranda. Dr. Mullin obtained

permission from Arthur Anderson to conduct audiological tests at DCCW and

through Anderson's recommendation obtained access to UCCE. Anderson's

permission was obtained by Dr. Mullin subsequent to a discussion between Mullin

and Anderson in which Dr. Mullin discussed audiological screening of the

convalescent center's patients by audiology students from Florida Technological

University under Dr. Mullin's supervision. In addition, Dr. Mullin and Andersen

discussed a new Medicaid program under which hearing testing and hearing aids

could be provided to Medicaid patients. The acquisition of hearing aids under

this program was dependent upon the recommendation of an audiologist approved by

Medicaid. Dr. Mullin advised Anderson that he wad so approved by MedicaId and

would be glad to provide this service to patients of the nursing home at the

time the audiological screening was done. Mullin told Anderson at this initial

conference that he would test Medicaid patients and bill Medicaid for his

professional services and that the nursing home would not be billed. It was

further agreed that Dr. Mullin would provide Anderson a report on the patients.

These audiological tests were subsequently conducted on Anderson's authority and

without the permission and knowledge of Dr. Rauschenberger, house physician for

the two nursing homes and in some instances personal physician of some of the

patients. Prior medical authorization is not required for audiological testing

in general practice or under the Medicaid program.

2. After the testing program was completed, Dr. Mullin reported in writing

to Mr. Anderson the results of the residents and staff at UCCW. Koranda, the

administrator at UCE, had not requested a report be filed with her regarding Dr.

Mullin's findings, and no report was rendered to her by Dr. Mullin. In neither

instance did the administrators request or authorize Dr. Mullin to enter his

findings in the patient's medical records maintained at the centers and no such

entries were made. Expert testimony varied regarding the obligation of an

audiologist to make entries in a patient's record. How ever, it was generally

agreed that an audiologist would not make entries on a patient's record without

authorization by the administration of the health care facility when testing was

not the result of medical referral.

3. As a result of his testing at UCCW, Dr. Mullin prescribed hearing aids

for Alfred Miller, Sallie Porter, Ruby Allen, Minnie Jennings, Florence Rogers,

and Agnes Flowers, all of whom were Medicaid patients. As a result of

audiological testing at UCCE, Dr. Mullin prescribed hearing aids for Jessie

Robinson, Maggie Smith, Clara Brown, Emma Van Landingham, Emily Burkhart, Della

Stone, and Lenora Gell, all of whom were Medicaid patients.

4. Dr. Mullin prepared prescriptions for hearing aids on the persons named

above, and forwarded these prescriptions to Orange Hearing Aid Center in

Orlando, Florida which provided and fitted the hearing aids to the individuals.

Dr. Mullin submitted the bill directly to the Department of Health and

Rehabilitative Services for his professional services in screening Medicaid

patients' hearing and for his professional services in screening and prescribing

heading aids for Medicaid patients.

5. Dr. Mullin's basic hearing evaluation test consisted of a pure tone air

conduction test. Dr. Mullin conducted further testing if necessary to include a

pure tone bone conduction test, speech discrimination test, and speech reception

threshold test. A master hearing aid was used for the hearing aid selection

process and an audiometer used for the basic testing. Dr. Mullin prescribed

hearing aids on the basis of these latter tests

6. Dr. Mullin had planned to conduct all testing in a specially adapted

trailer, but was unable to use this trailer because of the immobility of the

patients. A bathing facility or "tub room" in each of the nursing homes was

provided by the nursing home administration for conducting the tests, and

represented to be the only facility available for the testing. These facilities

were not ideal in terms of their construction and location for conducting

audiological testing. However, Dr. Mullin took what measures he could to reduce

ambient noise levels, to include the use of aural domes. No clear and

convincing evidence was introduced that the noise conditions during Dr. Mullin's

tests were so bad that his test results were invalid. In fact, subsequent tests

made by the Board revealed that the patients tested by Dr. Mullin were hard of

hearing, although some of the results differed slightly in degree of loss.

7. Subsequent to the testing, as mentioned above, Dr. Mullin filed a

written report with Arthur Anderson, administrator of UCCW. This report was

rendered on the letterhead of Florida Technological University. This report

revealed that Rogers, Silfies, Bowen, Covington, Peppett, Trodden Turner,

Farrow, Howard, and Tidson had normal hearing. The report contained specific

comments with regard to Rolle, Rigsbee, Goodrich, Rosato, VonDohler, Shalhoub,

Thompson, Owens, Murkinson, Tholl, and Hocker. Silfries, Rolle, Owens, Peppett,

Goodrich, and Hocker were Medicaid patients upon whom Mullin submitted billings

to Medicaid through the Department of Health and Rehabilitative services. The

comments on Thompson, Owens, Murkinson and Tholl indicate referral to

otolaryngologists. The specific comments with regard to Rolle, Goodrich,

Rosato, and Shalhoub indicate a hearing loss but no recommendation for a hearing

aid due to some specific contra-indication.

8. The billings submitted to Medicaid through the Department of Health and

Rehabilitative Services are consistent with the findings reported in Exhibit 3.

The billings were for basic hearing evaluations on those Medicaid paie:ts who

were determined to have normal hearing and for selective amplification

procedures in addition to basic evaluation for those patients whose hearing was

not normal. The billings are substantiated by the report filed with Anderson

and the audiograms prepared. However, the report does reveal that Herman Owens,

who was referred to an otolaryngologist for removal of impacted cerumen in the

right ear, received both basic hearing tests and selective hearing amplification

procedures, both of which were billed to Medicaid; and J. L. Hocker received

selective amplification testing although Mullin's comments indicated that

Hocker's right ear had recently undergone surgery for removal of a carcinoma.

However, Medicaid's criteria for testing were not introduced and no evidence was

introduced, that a patient with impacted ears should not be tested. Also this

report contains no reference to the patients for whom Dr. Mullin had prescribed

a hearing aid. The report does reveal that where contra-indicated, whether

because of the nature of the hearing loss, as indicated with Rolle and Rosato,

or patient attitude, as in the case of Goodrich, Dr. Mullin did not prescribe a

hearing aid. This relates particularly to the allegation that Dr. Mullin

prescribed hearing aids for certain patients who did not want hearing aids, and

an implication made that Dr. Mullin recommended hearing aids for patients who

could not benefit from them. This report which is on Florida Technological

University letterhead is the sole support of the charge that Dr. Mullin misused

his connection with Florida Technological University. It is clear that this

report was rendered after the testing had been concluded. Clearly, his report

rendered after the testing on the letterhead of Florida Technological University

could not have been an inducement to Anderson to permit Mullin access to the

convalescent center. However, the fact is clear that Dr. Mullin did make a

personal profit for a venture undertaken in connection with an otherwise

authorized university activity.

9. The evidence indicates that the hearing aids prescribed by Dr. Mullin

and provided by Orange Hearing Aid Center were fitted by Merrill Schwartz.

Schwartz fitted these hearing aids at UCCW and UCCE. There is no indication

that UCCE or UCCW failed to cooperate in any way with Schwartz gaining access to

the patients and fitting them with aids. To the contrary, the evidence

indicates that both centers cooperated fully in providing Schwartz the

opportunity and facilities to fit the hearing aids. The fact that both centers

did not question the fitting of the hearing aids substantiates Dr. Mullin's

assertion that Anderson expected hearing aids to be fitted to patients under the

Medicaid program.

10. Expert testimony was received that the only positive evaluation of the

utility of the hearing aid to a patient is a trial by the patient using the aid

to include counselling on the use and benefits of the hearing aid to overcome a

patient's possible aversion to the aid. Dr. Mullin testified that he had

prescribed the aids on a thirty day trial basis, and his audiograms substantiate

this. However, his prescriptions to Orange Hearing Aid Center did not reflect

any trial period. Merrill Schwartz, the hearing aid salesman for Orange Hearing

Aid Center, stated that he fitted the aids from the prescriptions and no trial

period was stated. However, the current owner, Irwin Pensack, stated that

during his transitional period in taking over Orange Hearing Aid Center from

Emmanuel Gitles, that Gitles had impressed upon him the importance of

maintaining good customer relationships and providing trial periods routinely

when requested. Why the 30 day trial was not included in the prescription was

not explained by Dr. Mullin, who stated it was his understanding they were for a

30 day trial. However, in this same regard, the evidence further reveals that

none of the staff at UCCW or UCCE contacted Dr. Mullin or Orange Hearing Aid

Center with regard to followup counseling or return of the hearing aids when the

patients failed to properly use them. It is questionable how effective a 30

trial period would have bean under the circumstances. No evidence was presented

to show hat Dr. Mullin received any type of "kickback" or other benefit from

Orange Hearing Aid Center.

11. Although substantial and competent evidence was introduced that some

of the patients who were fitted with the hearing aids were senile, expert

testimony was received that such a condition is not a contra-indication of the

need and benefit to the patient of the use of a hearing aid. This is

particularly true since the effects of deafness and senility subjectively

reinforce one another. Expert testimony was also received that an audiologist

would not routinely provide followup services subsequent to audiological testing

and the prescription of a hearing aid unless requested to do so by the patient

or the hearing aid dealer. The evidence indicates that Dr. Mullin did not

receive any requests for followup from either UCC er UCC on behalf of any of the

patients for whom hearing aids were prescribed, from patients themselves, or the

dealer. The one call made from a patient who had received a hearing aid was

made to Orange County Hearing Aid for followup services or repair. Said

services were provided by Orange Hearing Aid Center, and indicates that this

patient was using the hearing aid.

12. The bills submitted to Medicaid through the Department of Health and

Rehabilitative Services were in accord with Medicaid's published schedules for

the professional services rendered by Dr. Mullin. There is no substantial and

competent evidence that Mullin charged for work he did not do or overcharged for

the work that he did.

CONCLUSIONS OF LAW

13. The parties stipulated at the hearing that the rules applicable in

this particular proceeding would be Section 6A-10.081, Florida Administrative

Code. (Supp 55). A copy of these rules were received into evidence as Exhibit

13, and will be applied in this case. Paragraph 8 of the administrative

complaint was withdrawn by Petitioner.

14. Essentially, Dr. Mullin is charged with violation of professional

conduct by violating the provisions of 6A-10.081, the code of ethics for the

practice of speech pathology and audiology. The administrative complaint is not

specific with regard to what portions of Section 6A-10.081, Florida

Administrative Code, are violated by the conduct enumerated In the

administrative complaint. However, the argument of counsel for the Department

of Education indicates that the conduct enumerated violates the provisions of

6A-10.081(2)(b)(3), Florida Administrative Code, Section 6A-10.081(2)(c),

Florida Administrative Code, Section 6A-10.08l(3)(c) , Florida Administrative

Code, and Section 6A-10.081 (2)(d), Florida Administrative Code, In addition,

the Department asserts that Dr. Mullin's conduct violates Section 468.147(2),

(4), and (5), Florida Statutes. Specifically, the Department alleges that Dr.

Mullin violated the provisions of Section 6A-10.081(2)(d) (c) and (3)(c) by

failing to obtain medal authorization from the personal or attending physician

and by failing to provide information to and seek information from the attending

physician as set forth in the factual allegations of paragraph 7 a, b and c of

the administrative complaint. The Department alleges that Dr. Mullin violated

the provisions of Section 6A-10.081(2)(d) by failing to re-examine the patients

and provide followup services, as set forth specifically in the factual

allegations of paragraph 7 f. The Department allege the violation of Section

468.147(2)(4) and (5), Florida Statutes. Violation of subsection 2 is based

upon violation of the rules cited above. Violation of subsection 4 is based

upon obtaining authorization to test the patients by means of fraud,

misrepresentation, or concealment of material facts, as set forth in the factual

allegations contained in paragraph 7 d, e, f, and j of the administrative

complaint. The Department alleges violation of subsection 5 on the basis that

Dr. Mullin's general conduct as alleged in paragraph 7 a through j.

15. Referring to the factual allegations contained in the administrative

complaint, the evidence shows that Dr. Mullin did not obtain medical clearance

or authorization from the personal or attending physician of any of the patients

who he tested. However, Dr. Mullin did obtain the authorization of the

administrators, which under the circumstances presented in this case, was

sufficient authorization to treat these patients in the absence of some

specifically medically related problem affecting audiometric testing of a

patient or a health problem discovered during the conduct of audiometric testing

would require referral of the patient, there is no obligation for an audiologist

to establish liaison with an individual's personal or attending physician. The

evidence presented shows that Dr. Mullin did report to Mr. Anderson his findings

with regard to most UCCW patients whom he saw and recommended referral of some

to an otolaryngologist. The evidence also shows that Ms. Koranda did not

request such a report. There is no evidence that any of the patients seen at

UCCE, administered by Ms. Koranda, had any medical difficulties requiring their

referral to a physician. Dr. Mullin did maintain his personal records on each

of the patients whom he tested and the evidence does not reveal any obligation

or authorization for Dr. Mullin to have entered his test results in the medical

records of the patients at either of the centers. The evidence generally

indicates that such an authorization is necessary before an audiologist may make

input into a patient's record. Therefore, the evidence does not substantiate

the allegations of paragraph 7 a, b and c of the administrative complaint.

16. The evidence presented shows that the individuals for whom hearing

aids were prescribed did have impaired hearing. This is evident from Dr.

Mullin's test results and those test results obtained by the Board. To the

extent that the hearing of some of the individuals tested might have improved,

expert testimony was received that subtle fluctuations in an individual's

hearing may occur. Because the Board's testing occurred nearly six months after

Dr. Mullin's testing, such slight fluctuation of hearing cannot be determinative

of the question of whether Dr. Mullin's prescription of a hearing aid was

inappropriate based upon their hearing loss. Similarly, expert testimony was

received that an individual's subjective need or personal desire to use a

hearing aid is not necessarily a disqualifying factor in the prescription of a

hearing aid. The primary evidence presented in support of the Department's

allegation was that some of these patients were senile and had difficulty caring

for themselves. Expert testimony was received that even senile patients may

benefit from the use of a hearing aid. Similarly, expert testimony was received

that the individual's personal desire to wear a hearing aid is not necessarily

disqualifying to the prescription of a hearing aid. Dr. Mullin's report to

Anderson reveals an instance in which he did not prescribe a hearing aid because

of a patient's attitude and several in which the nature of the hearing loss

disqualified the individual from efficient use of a hearing aid. The factual

allegations contained in paragraph 7 d and e were not proven.

17. The evidence presented shows that Dr. Mullin did not provide followup

services to the patients at either convalescent center. It was not shown,

however, that such services were requested, needed, or dictated through

professional usage. Followup services were in fact available and were provided

through the hearing aid fitter. The allegations of paragraph 7 f of the

administrative complaint were not proven.

18. The evidence shows that Dr. Mullin submitted bills for hearing testing

and for tests related to the prescription of hearing aids to Medicaid through

the Department of Health and Rehabilitative Services. The testimony received

indicated that these charges were consistent with the fee schedule established

by the Department of Health and Rehabilitative Services and no substantial and

competent evidence was presented that Dr. Mullin did not perform the services

for which he charged. The allegations contained in Section 7 g were not proven.

19. The specific allegations of paragraph 7 h are that Dr. Mullin's

testimony was limited to basic pure bone air conduction threshold measures and

that no master hearing aid, speech audiometer, or any similar amplifying device

was employed as part of the evaluation procedure. These specific allegations

were not proven. In fact, the testimony indicated that a combination pure tone

air conduction tests, pure tone bone conduction tests, speech discrimination

tests, and speech threshold tests were conducted for all patients who receive

hearing aid prescriptions. These tests were conducted using an audiometer and a

master hearing aid. The allegations of paragraph 7 h were not proven.

20. The allegations of paragraph 7 relate to the deficiencies of the test

environment used by Dr. Mullin in the audiometric testing at UCCE and UCCW. The

record reflects that Dr. Mu1lin planned to use a special trailer to conduct the

audiometric testing, but could not do so because of the immobility of the

patients. The room used was the only one available, and Dr. Mullin recognized

the room's deficiencies. There is a conflict in the testimony regarding whether

the fan and light combination in the room, which was the major noise source in

the room, was used during testing. Dr. Mullin testified that it was not used

and that a table lamp was used instead of the fan-light combination. Dr.

Mullin's testimony is accepted as the most accurate because he spent the

greatest period of time in the room and was using this as a student exercise.

It is reasonable to assume that Dr. Mullin attempted to attain an optimum

testing environment to enhance the learning experience. The Board's test data

is not adjusted to compensate for the absence of fan noise and the use of aural

domes. The testimony based upon these tests asserted that the noise level was

too high with the fan running. No adjustment was made to the test data for the

noise attenuation of aural domes. There is no substantial competent evidence

regarding the noise levels in the noise levels in the room without the fan on

and using aural domes. Absent such data, there is no showing that the noise

levels in the room without the fan on and using aural domes exceeded acceptable

standards. The allegations of paragraph 7 (i) were not proven.

21. The allegations f paragraph 7 (j) relate to Dr. Mullin's use of

Florida Technological University letterhead stationery to obtain consent to the

testing program which was in part a private venture. The record reflects the

only use of Florida Technological University letterhead was for an after-action

report. Clearly, the use of such letterhead after the test had been conducted

did not effect Anderson's decision to let Dr. Mullin conduct audiometric testing

at his center. The record does, however, reflect that Dr. Mullin did obtain

access initially to both centers on the basis of audiological screening on the

part of his students and as a function of the University. During his initial

conversation with Anderson, the testing of Medicaid patients and prescription of

hearing aids was raised. Dr. Mullin's uncontroverted testimony was that he

advised Anderson that he would do such testing, prescribe hearing aids as

reeded, Dr. Mullin did do this and billed Medicaid for his services The fact

that neither center questioned or protested the subsequent arrival of Schwartz

to fit hearing aids is indicative of the fact that Anderson contemplated that

hearing aids would be fitted as a result of the testing. Screening patients

and staff was done by students as a part of their clinical experience under Dr.

Mullin's supervision and as a part of an authorized university program.

Therefore, the allegations of paragraph 7 (j) are not proven.

22. Although it is not specifically alleged as a violation in the

complaint, Section 6A-10.081 (4)(a) states that an audiologist shall guard

against conflicts of professional interests. Subparagraphs 1 and 2 of this

subsection clarify the conflicts to be avoided. Subparagraph 1 provides:

He (an audiologist) shall not accept compensation

in any form from a manufacturer or a dealer in

prosthetic or other devices for recommending

any particular product.

Subparagraph 2 provides:

He shall not engage in any commercial

activities that conflict with his responsibilities

to the persons he serves

professionally or to his colleagues. He

shall not permit his professional titles

or accomplishments to be used in the sale

or promotion of any product related to

his professional field. He shall not

perform clinical services or promotional

activity for any profit making organization

that is engaged in the retail sales of

equipment, publications or other

materials. He may be employed by

a manufacturer or publisher, provided

that his duties are consultative,

scientific, or educational in nature.

23. The evidence is clear that while engaging in a university activity

directly relating to the clinical experiences of his students, Dr. Mullin was

engaging in a personal business venture from which he derived direct economic

benefit. Although a conflict of interest exists, it is not the conflict

addressed by the rule cited above. The rule addresses conflicts between the

interest of the audiologist and the patient or his colleagues in the audiology

profession. No such conflict is apparent from the facts in this case. Dr.

Mullin did not endorse, promote, sell or recommend any equipment, publication

materials, or product. However, he did violate his duty and responsibility to

the university system for which he worked by engaging in an activity for his own

economic benefit while supervising clinical experience of his students. Such an

activity may be prohibited by the rules and regulations of the Board of Regents;

however, this hearing is not for the purpose of determining whether Dr. Mullin

violated such rules. Such a showing would not be material or relevant to the

charges brought against him in this cause.

24. The record in this case further indicates that the testing of Medicaid

patients and the prescription of hearing aids to Medicaid patients was the

result of professional interests of one of the nursing home administrators in

obtaining Medicaid benefits for his Medicaid patients. Unfortunately, this

interest did not extend to providing these patients with the necessary followup

care to insure that the patients obtained the maximum benefit from their hearing

aids. The record indicates that staff at the institutions did not provide

counseling to the patients on the use of their hearing aids or recontact Dr.

Mullin to provide audiological counseling to the patients to assist them in the

use of their hearing aids. The response of staff of the convalescent centers

was to pick up the hearing aids and secure them as valuable piece of property

rather than recognizing their potential benefit as prosthetic devices to the

patients for whom they had been prescribed. This failure cannot be attributed

to Dr. Mullin or to Mr. Schwartz.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, the

Hearing Officer recommends that no action be taken against the certificate of

Thomas A. Mullin as a speech pathologist and audiologist.

DONE and ORDERED this 26th day of October, 1978, in Tallahassee, Florida.

___________________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building

Tallahassee, Florida 32304

[phone]

COPIES FURNISHED:

Howard R. Marsee, Esquire

Post Office Box 20154

Orlando, Florida 32814

Gene Sellers, Esquire

General Counsel's Office

Department of Education

Knott Building

Tallahassee, Florida 32304

James M. Russ, Esquire

441 First Federal Building

109 East Church Street

Orlando, Florida 32801