ORDERS:
CONSENT AGREEMENT AND ORDER
This matter comes before the Administrative Law Judge Division pursuant to the
Petitioner's request for a contested case hearing.
Petitioner's request is in response to the March 4, 2002 action of the South
Carolina Department of Health and Environmental Control (Department) concerning the
Petitioner's status as Hearing Aid Specialist Licensee No. 133.
The Administrative Law Judge Division has been informed by the parties, that
there has been a resolution and an agreed upon disposition of this matter.
From a review of the file herein, it appears that all parties have, in a timely fashion, requested a hearing, paid the
appropriate fees, and provided the Division with the necessary information for it to have jurisdiction over this matter.
FINDINGS OF FACT
1. The Practice of Specializing in Hearing Aids Act, S.C. Code Ann. §§ 40-25-10 to190
(2002), vests the Department with, inter alia, the authority to inspect facilities of persons who engage in the practice of
fitting and selling hearing aids. The Department is empowered to revoke or suspend the license of a person specializing in
the practice of fitting or selling hearing aids if the Department determines there has been a violation of the Act.
2. The Administrative Law Judge Division has jurisdiction over this case.
3. Donald E. Fitzpatrick has been the holder of a license as a hearing aid specialist
issued by the South Carolina Department of Health and Environmental Control
(Department) pursuant to The Hearing Aids Act.
4. The Department notified Donald E. Fitzpatrick by letter dated March 4, 2002 that
it was revoking his hearing aid specialist license, number # 133 based on the following
citations:
1) "obtaining a fee or making a sale by fraud or misrepresentation" in violation of section 40-25-160(B)(3)(a);
2) "selling a hearing aid to a person who has not been given tests utilizing appropriate established procedures and
instrumentation in fitting of hearing aids" in violation of section 40-25-160(B)(6);
3) "gross incompetence or negligence in fitting and selling hearing aids" in violation of section 40-25-160(B)(7); and
4) "violating this chapter" pursuant to section 40-25-160(B)(8).
5. By letter dated March 26, 2002, Jonathan Harvey, Attorney, submitted a timely
appeal on behalf of Donald E. Fitzpatrick.
6. The parties met on March 21, 2002 to determine if settlement of this matter could
be reached. The Department requested that Donald E. Fitzpatrick and his attorney
submit additional information which supported their position. In addition, the
parties met again on May 1, 2002, and reached a mutual agreement to resolve this matter.
7. The parties hereby state that they recognize and understand that this resolution is
the compromise of citations and defenses thereto which each party believes to have been valid and meritorious.
THEREFORE, IT IS AGREED
1. That Donald E. Fitzpatrick will take immediate action to ensure he is in compliance
with all applicable statutes regulating his occupation as a hearing aid specialist.
2. Additionally, Donald E. Fitzpatrick agrees to prepare and submit to the
Department a copy of a policy and procedures manual implementing new office
procedures for his practice as a hearing aid specialist within thirty days of the
execution of this Consent Order. This manual shall fully address all the accounting
requirements as specified in 24 S.C. Code Ann. Regs. 61-3. Also, the policy and
procedures shall comply with S.C. Code Ann. section 40-25-70 (C). The policy and
procedure manual shall further include any and all forms that will assist Mr. Fitzpatrick
in complying with the accounting requirements of R. 61-3.
3. In the event Mr. Fitzpatrick fails to submit a copy of his policy and procedure
manual to the Department by certified mail, return receipt requested within thirty days of
execution of this Consent Order, he agrees that he will voluntarily cease operation of his
practice as a hearing aid specialist until such time as he has submitted a copy of the
manual to the Department. Mr. Fitzpatrick furthermore agrees to retain a copy of the
return receipt card for the submission of his policy and procedure manual to the
Department in his records for at least one year.
4. Donald E. Fitzpatrick will withdraw his pending appeal pending before the
Administrative Law Judge Division with prejudice.
5. Donald E. Fitzpatrick and the Department mutually agree that the suspension of
Donald E. Fitzpatrick's license as a hearing aid specialist will be lifted upon Mr.
Fitzpatrick's receipt of the fully executed Consent Agreement and Order by certified
mail.
6. That Mr. Fitzpatrick accepts the terms of this Consent Order in recognition of his
being subject to the supervisory authority of the Department as a Hearing Aid Specialist and the Department's mandated
regulation of the practice of specializing in hearing aids, and this Consent Order is not to be construed as an admission by
him regarding the substance of the citations set forth in the letter of March 4, 2002.
7. The Department in no way waives its authority to enforce, by imposing penalties
or otherwise, the statutory and regulatory requirements for the licensure of Donald E.
Fitzpatrick as a hearing aid specialist.
8. It is further agreed that the failure to abide by the terms of this Consent Agreement
and Order or the failure to abide by any statutory or regulatory requirements may result in
the imposition of new penalties or the revocation of the license of Donald E. Fitzpatrick
as a hearing aid specialist, pursuant to the Practice of Specializing in Hearing Aids Act.
AND IT IS SO ORDERED
June 4, 2002
C. Dukes Scott Date
Administrative Law Judge
WE CONSENT:
Jerry L. Paul, Director Date
Division of Health Licensing
Nancy S. Layman Date
Chief Attorney for Health Regulation
Donald E. Fitzpatrick Date
Hearing Aid Specialist
Jonathan Harvey, Attorney Date |
