w brian d. bill deputy attorney general california ... › public_speech ›...

XAVIER BECERRA Attorney General of California JUDITH T. ALVARADO N Supervising Deputy Attorney General

W BRIAN D. BILL Deputy Attorney General State Bar No. 239146 + California Department of Justice

U 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-9474 Facsimile: (213) 897-9395

Attorneys for Complainant

8 BEFORE THE SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY AND HEARING AID

9 DISPENSERS BOARD DEPARTMENT OF CONSUMER AFFAIRS

10 STATE OF CALIFORNIA

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In the Matter of the Accusation Against: Case No. 1I-2015-077 12

ANDRES GODINEZ STATEMENT TO RESPONDENT 13

Respondent. [Gov. Code $$ 11504, 11505(b)] 14

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16 TO RESPONDENT:

17 Enclosed is a copy of the Accusation that has been filed with the Speech-Language

18 Pathology and Audiology and Hearing Aid Dispensers Board of the Department of Consumer

19 Affairs (Board), and which is hereby served on you.

20 Unless a written request for a hearing signed by you or on your behalf is delivered or

21 mailed to the Board, represented by Deputy Attorney General Brian D. Bill, within fifteen (15)

22 days after a copy of the Accusation was personally served on you or mailed to you, you will be

23 deemed to have waived your right to a hearing in this matter and the Board may proceed upon the

24 Accusation without a hearing and may take action thereon as provided by law.

25 The request for hearing may be made by delivering or mailing one of the enclosed forms

26 entitled "Notice of Defense," or by delivering or mailing a Notice of Defense as provided in

27 section 11506 of the Government Code, to

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STATEMENT TO RESPONDENT

Brian D. Bill Deputy Attorney General Ronald Reagan Building

N 300 South Spring Street, Suite 1702 Los Angeles, CA 90013

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You may, but need not, be represented by counsel at any or all stages of these proceedings.

The enclosed Notice of Defense, if signed and filed with the Board, shall be deemed a

specific denial of all parts of the Accusation, but you will not be permitted to raise any objection

to the form of the Accusation unless you file a further Notice of Defense as provided in section

11506 of the Government Code within fifteen (15) days after service of the Accusation on you.

If you file any Notice of Defense within the time permitted, a hearing will be held on the

10 charges made in the Accusation.

11 The hearing may be postponed for good cause. If you have good cause, you are obliged to

12 notify the Office of Administrative Hearings, 320 West Fourth Street, Suite 630, Los Angeles,

13 CA 90013, within ten (10) working days after you discover the good cause. Failure to notify the

14 Office of Administrative Hearings within ten (10) days will deprive you of a postponement.

15 Copies of sections 11507.5, 11507.6, and 11507.7 of the Government Code are enclosed.

16 If you desire the names and addresses of witnesses or an opportunity to inspect and copy

17 the items mentioned in section 11507.6 of the Government Code in the possession, custody or

18 control of the Board you may send a Request for Discovery to the above designated Deputy

19 Attorney General.

20 NOTICE REGARDING STIPULATED SETTLEMENTS

21 It may be possible to avoid the time, expense and uncertainties involved in an

22 administrative hearing by disposing of this matter through a stipulated settlement. A stipulated

23 settlement is a binding written agreement between you and the government regarding the matters

24 charged and the discipline to be imposed. Such a stipulation would have to be approved by the

25 Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board but, once

26 approved, it would be incorporated into a final order.

27 Any stipulation must be consistent with the Board's established disciplinary guidelines;

28 however, all matters in mitigation or aggravation will be considered. A copy of the Board's

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Disciplinary Guidelines will be provided to you on your written request to the state agency

N bringing this action.

If you are interested in pursuing this alternative to a formal administrative hearing, or if you

have any questions, you or your attorney should contact Deputy Attorney General Brian D. Bill at +

the earliest opportunity.

Dated: September 20, 2017 XAVIER BECERRA Attorney General of California JUDITH T. ALVARADO

8 Supervising Deputy Attorney General

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10 BRIAN D. BILL

11 Deputy Attorney General Attorneys for Complainant

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XAVIER BECERRA Attorney General of California

N JUDITH T. ALVARADO Supervising Deputy Attorney General

w BRIAN D. BILL Deputy Attorney General

4 State Bar No. 239146 California Department of Justice 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013

6 Telephone: (213) 897-9474 Facsimile: (213) 897-9395

7 Attorneys for Complainant

FILED - STATE OF CALIFORNIA Speech-Language Pathology & Audiology & Hearing Aid Dispensers Board Sacramento, California on September 29, 2017 By Marti shaffer

8 BEFORE THE SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY AND HEARING AID



11

In the Matter of the Accusation Against: Case No. 11-2015-077 12

ANDRES GODINEZ 13 4910 Van Nuys, #201

Sherman Oaks, CA 91403 ACCUSATION 14 Audiologist License No. AU 2267,

15 Respondent.

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17 Complainant alleges:

18 PARTIES

19 1 . Paul Sanchez (Complainant) brings this Accusation solely in his official capacity as

20 the Executive Officer of the Speech-Language Pathology and Audiology and Hearing Aid

21 Dispensers Board, Department of Consumer Affairs.

22 2. On or about February 25, 2004, the Speech-Language Pathology and Audiology and

23 Hearing Aid Dispensers Board issued Audiologist License Number AU 2267 to Andres Godinez

24 (Respondent). The Audiologist License was in full force and effect at all times relevant to the

25 charges brought herein and will expire on February 28, 2018, unless renewed.

26 JURISDICTION

27 3. This Accusation is brought before the Speech-Language Pathology and Audiology

28 and Hearing Aid Dispensers Board (Board), Department of Consumer Affairs, under the authority

ANDRES GODINEZ) ACCUSATION

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of the following laws. All section references are to the Business and Professions Code unless

otherwise indicated. N

w 4. Section 2530.2 of the Code states:

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"(m) 'Audiology aide' means any person meeting the minimum requirements established by

6 the board. An audiology aid may not perform any function that constitutes the practice of

audiology unless he or she is under the supervision of an audiologist. The board may by

regulation exempt certain functions performed by an industrial audiology aide from supervision

provided that his or her employer has established a set of procedures or protocols that the aide

shall follow in performing these functions.

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12 5 . Section 2530.4 of the Code states:

13 "Nothing in this chapter shall be construed as authorizing a speech-language pathologist or

14 audiologist to practice medicine, surgery, or any other form of healing, except that authorized by

Section 2530.2.

16 6. Section 2530.6 of the Code states:

17 "Speech-language pathologists and audiologists supervising speech-language pathology or

18 audiology aides shall register with the board the name of each aide working under their

19 supervision. The number of aides who may be supervised by a licensee shall be determined by

the board. The supervising audiologist or speech-language pathologist shall be responsible for the

21 extent, kind, and quality of services performed by the aide, consistent with the board's designated

22 standards and requirements."

23 7. Section 2533 of the Code states:

24 "The board may refuse to issue, or issue subject to terms and conditions, a license on the

grounds specified in Section 480, or may suspend, revoke, or impose terms and conditions upon

26 the license of any licensee for any of the following:

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28 "(e) Committing a dishonest or fraudulent act that is substantially related to the

2 (ANDRES GODINEZ) ACCUSATION

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qualifications, functions, or duties of a licensee.

N "(f) Incompetence, gross negligence, or repeated negligent acts.

w "(g) Other acts that have endangered or are likely to endanger the health, welfare, and safety

of the public.

6 "(k) Violation of Section 1689.6 or 1793.02 of the Civil Code."

8. Section 2538.35 of the Code states:

"A licensee shall, upon the consummation of a sale of a hearing aid, deliver to the purchaser

9 a written receipt, signed by or on behalf of the licensee, containing all of the following:

"(a) The date of consummation of the sale.

11 "(b) Specifications as to the make, serial number, and model number of the hearing aid or

12 aids sold.

13 "(c) The address of the principal place of business of the licensee, and the address and

14 office hours at which the licensee shall be available for fitting or postfitting adjustments and

servicing of the hearing aid or aids sold.

16 "(d) A statement to the effect that the aid or aids delivered to the purchaser are used or

17 reconditioned, as the case may be, if that is the fact.

18 "(e) The number of the licensee's license and the name and license number of any other

19 hearing aid dispenser or temporary licensee who provided any recommendation or consultation

regarding the purchase of the hearing aid.

21 "(f) The terms of any guarantee or written warranty, required by Section 1793.02 of the

22 Civil Code, made to the purchaser with respect to the hearing aid or hearing aids."

23 9. Section 1793.02 of the California Civil Code states:

24 " (a)

"(1) Except as provided in paragraph (2), all new and used assistive devices sold at retail in

26 this state shall be accompanied by the retail seller's written warranty which shall contain the

27 following language: 'This assistive device is warranted to be specifically fit for the particular

28 needs of you, the buyer. If the device is not specifically fit for your particular needs, it may be

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(ANDRES GODINEZ) ACCUSATION |

returned to the seller within 30 days of the date of actual receipt by you or completion of fitting by

N the seller, whichever occurs later. If you return the device, the seller will either adjust or replace

the device or promptly refund the total amount paid. This warranty does not affect the protections w

4 and remedies you have under other laws.' In lieu of the words '30 days' the retail seller may

specify any longer period.

6 "(2)

"(A) All new and used hearing aids sold in this state shall be accompanied by the retail J

seller's written warranty and shall contain the following language: 'This hearing aid is warranted

to be specifically fit for the particular needs of you, the buyer. If the hearing aid is not initially fit

10 for your particular needs, it may be returned to the seller within 45 days of the initial date of

11 delivery to you. If you return the hearing aid, the seller will either adjust or replace the hearing

12 aid or promptly refund the total amount paid. This warranty does not affect the protections and

13 remedies you have under other laws.'

14 "(B) In lieu of the words '45 days' the retail seller may specify any longer period.

15 "(C) On the initial date of delivery, the retail seller shall revise the written warranty to

16 include the initial date of delivery to the buyer of the hearing aid and expiration date of the

17 warranty.

18 "(b) The language prescribed in subdivision (a) shall appear on the first page of the

19 warranty in at least 10-point bold type. The warranty shall be delivered to the buyer at the time of

20 the sale of the device.

21 "(c) If the buyer returns the device within the period specified in the written warranty, the

22 seller shall, without charge and within a reasonable time, adjust the device or, if appropriate,

23 replace it with a device that is specifically fit for the particular needs of the buyer. If the seller

24 does not adjust or replace the device so that it is specifically fit for the particular needs of the

buyer, the seller shall promptly refund to the buyer the total amount paid, the transaction shall be

26 deemed rescinded, and the seller shall promptly return to the buyer all payments and any assistive

27 device or other consideration exchanged as part of the transaction and shall promptly cancel or

cause to be canceled all contracts, instruments, and security agreements executed by the buyer in

(ANDRES GODINEZ) ACCUSATION

connection with the sale. When a sale is rescinded under this section, no charge, penalty, or other

N fee may be imposed in connection with the purchase, fitting, financing, or return of the device.

w "(d) With respect to the retail sale of an assistive device to an individual, organization, or

agency known by the seller to be purchasing for the ultimate user of the device, this section and

subdivision (b) of Section 1792.2 shall be construed to require that the device be specifically fit

6 for the particular needs of the ultimate user.

"(e) This section and subdivision (b) of Section 1792.2 shall not apply to any of the

following sales of assistive devices:

9 "(1) A catalog or similar sale, as defined in subdivision (q) of Section 1791, except a sale of

10 a hearing aid.

11 "(2) A sale which involves a retail sale price of less than fifteen dollars ($15).

12 "(3) A surgical implant performed by a physician and surgeon, or a restoration or dental

13 prosthesis provided by a dentist.

14 "(f) The rights and remedies of the buyer under this section and subdivision (b) of Section

15 1792.2 are not subject to waiver under Section 1792.3. The rights and remedies of the buyer

16 under this section and subdivision (b) of Section 1792.2 are cumulative, and shall not be

17 construed to affect the obligations of the retail seller or any other party or to supplant the rights or

18 remedies of the buyer under any other section of this chapter or under any other law or instrument.

19 "(g) Section 1795.5 shall not apply to a sale of used assistive devices, and for the purposes

20 of the Song-Beverly Consumer Warranty Act the buyer of a used assistive device shall have the

21 same rights and remedies as the buyer of a new assistive device.

22 "(h) The language in subdivision (a) shall not constitute an express warranty for purposes of

23 Sections 1793.2 and 1793.3."

24 COST RECOVERY

25 10. Section 125.3 of the Code states, in pertinent part, that the Board may request the

26 administrative law judge to direct a licentiate found to have committed a violation or violations of

27 the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

28 enforcement of the case.

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FACTUAL ASSERTIONS

Patient F.G.'

w 11. On or about August 6, 2013, patient F.G., age 2 years 8 months, was seen at the

A Sherman Oaks Ear and Hearing Institute (Institute) by Respondent. F.G. and her mother, the

complaining witness, were referred to Respondent by Kaiser Permanente for the sale and fitting of

hearing instruments.

12. On or about April 26, 2013, audiometric testing was conducted on F.G. at Kaiser.

Tests results indicated F.G. had mild to severe hearing loss.

9 13. F.G. was approved for services by the California Children's Services (CCS), for

10 complete cost coverage of F.G.'s hearing aids.

11 14. Prior to scheduling an appointment with Respondent, the complaining witness spoke

12 to Institute staff member, "Fernando," who suggested that Respondent may not accept F.G. as a

13 patient since CCS "has had problems with transmitting payment for services." The complaining

14 witness faxed a copy of the Kaiser testing to the Respondent for his review.

15 15. The Complaining witness subsequently spoke with Respondent who stated that based

16 upon his review of the testing, the results appeared to be inconclusive and F.G. needed retesting.

17 Respondent further stated that it was his office policy to test the patient himself before providing

18 hearing aids. The testing would not be covered by CCS and the complaining witness would need

19 to pay out of pocket. The complaining witness agreed and scheduled the August 6, 2013

20 appointment.

21 16. During the August 6, 2013 exam Respondent and "Fernando" each conducted

22 portions of various hearing tests. "Fernando" does not hold the requisite license to conduct

23 audiometric testing.

24 17. The tests conducted by Respondent and "Fernando" were repetitive of the testing

completed at Kaiser on April 26, 2013. Respondent further suggested that he should perform an

26 Auditory Brainstem Response exam (ABR), which would not be covered by Kaiser. The

27 Initials are used to protect patient privacy.

28 2Auditory brainstem response (ABR) audiometry is a neurologic test of auditory (continued...)

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ANDRES GODINEZ) ACCUSATION |

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complaining witness responded that the ABR exam was scheduled to proceed at Kaiser on August

8, 2013. N

w 18. Respondent charged the complaining witness and F.G. $120.00 for the additional

4 testing, which is typically covered by Medi-Cal.3

19. Respondent and Fernando then discussed the hearing aid options for F.G. Respondent

6 contended that F.G. needed "to get a higher quality hearing aid." Respondent told the

complaining witness that CCS would not cover the total costs of the hearing aids he chose.

8 Therefore, the complaining witness would have to pay the difference.

20. The complaining witness decided to obtain hearing aids through a different provider.

Patient A.N.

11 Dates of Service.

12 21. Patient A.N. and her mother were treated at the Institute by Respondent on the

13 following dates:

14 A. September 17. 2013. Patient A.N., age 3 years 1 month, and her mother

presented to Respondent for a for audiometric evaluation. Respondent performed otoscopy and

16 tuning fork tests." Respondent determined that A.N. had a "possible bilateral symmetrical hearing

17 loss" and recommended that she return to his clinic "ASAP" for a full evaluation.

18 B. March 10. 2014. A.N. returned to the respondent's clinic for audiometric

19 testing. Respondent performed various audiometric testing. However, it is not clear from the

records how the tests were conducted. Respondent recommended a pediatrician review of results,

21 a "Vicks vaporizer," as well as to "follow up audiological evaluation."

22 C. March 26, 2014. A.N. presented to Respondent again for a complete evaluation.

23 Respondent conducted various tests. However, results obtained were substantially different from

24 (...continued) brainstem function in response to auditory (click) stimuli.

Participation in Medi-Cal is limited to providers who accept Medi-Cal payment as payment in full. Providers are prohibited from collecting additional sums from Medi-Cal patients.

26 * examination that involves looking into the ear with an instrument called an otoscope in order to examine the external auditory canal.

27 A hearing screening test conducted by placing a tuning fork on the mastoid bone behind

28 a patient's ear.

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previous testing just 16 days earlier. It is not clear how the testing was conducted.

N D. April 15, 2014. A.N. presented to Respondent once again for another

evaluation. Respondent was unable to obtain accurate results. There is no documentation w

indicating why certain testing was repeated. Respondent commented in the records that the

5 patient "needs to be tracked" and "mother is not practicing" [the testing procedures].

6 July 8. 2014. A.N. presented to Respondent again for additional testing and a

hearing aide evaluation. Respondent performed ABR testing on A.N. while she was awake. A

handwritten note on the records states "child removed electrodes multiple times during TB test

was aborted (child was [illegible] and did not [illegible]." The responses were unreliable.

10 However, Respondent indicated that results "revealed a normal ABR finding" and "retrocochlear

11 pathology may be discarded." The respondent recommended hearing aids and referral to

12 "psychology."

F. September 4. 2014. A.N. was fitted with a Fisher Aurora U slim tube hearing

14 aid. This hearing device is classified as a "personal sound amplifier" (PSAP) and does not have

15 custom ear molds attached, but instead has one-size-fits-all domes. There is no evidence that the

16 Respondent verified A.N.'s fitting using real ear measures (REM) or real ear to coupler difference

17 (RECD). There is no evidence that the Respondent measured binaural functional gain

18 measurement for tones or speech to determine A.N.'s responsiveness to sounds or for comfort to

19 loud sounds.

20 22. On or about November 3, 2015, A.N. was seen and treated by M.L.F., Doctor of

21 Audiology. M.L.F. reviewed Respondent's care and treatment of A.N. and filed a formal

22 complaint with the Board. Specifically, M.L.F. alleged that A.N. was "inappropriately fit with

23 slim tube hearing aids with no ear mold which are not FM compatible," that "there were no domes

24 on the end of the slim tubes" and "the teacher reported that A.N. sometimes refused to wear the

25 hearing aids because they hurt her ears."

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27 PSAPs are not intended to amplify speech or environmental sounds for individuals with

28 impaired hearing or to compensate for hearing impairment.

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Purchase agreement

N 23. The Respondent provided a "Hearing Aid Purchase Agreement" (Agreement) dated

w September 4, 2014, for a pair of Fisher Aurora U, style "BTE," serial numbers 14077005 and

A 14077006, and ear mold style "tubing." The term "Medical" is written in the space provided the

purchase price amount, and a note states "paid in full" under the "total" amount line. The

6 Agreement does not indicate whether or not the hearing aids are new, used or reconditioned.

24. The Agreement does not include the Respondent's principal place of business, the

address and office hours at which the Respondent shall be available for fitting or post-fitting

adjustments and servicing of the hearing aids sold. Although the Respondent signed the

10 "Purchase Agreement," he did not include his license number anywhere on the document.

11 25. The Agreement departs from applicable laws in that it contains the following

12 language:

13 A. "If I cancel my order before I receive my hearing aid(s), I understand I will

14 forfeit the $400 dispensing fee which covers the hearing test and consultation services I received.

15 Shipping and handling is also non-refundable."

16 B "If I return my hearing aids, I will receive a refund of the purchase price, less

17 the $400 dispensing fee and credit card fees if any."

18 C. "We reserve the right to revoke the thirty-day adjustment period when a patient

19 is not fully committed, is not giving 100% effort, and does not allow the Audiologist an

20 opportunity to try alternative options (such style, model, and brand)."

21 26. The Agreement' does not contain any warranty information regarding the Fisher

22 Aurora U hearing aids.

23 Billing Issues

24 27. On March 10, 2014, March 26, 2014, and April 15, 2014, A.N. was tested at the

respondent's clinic. Respondent billed for various repetitive testing.

26 28. On July 8, 2014, according to the records, Respondent performed the ABR test, and a

27 Hearing Aid Examination and Selection. Respondent also billed for Established Office Visit.

28 There is no substantial documented evidence that a "Hearing Aid Examination" was performed.

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29. On July 22, 2014, the respondent billed Medi-Cal $6000 for the hearing devices and

N ear molds." He received $1480.32 for the hearing aids and $55.04 for the ear molds. However,

w there is no documentation that impressions were taken or that custom ear molds were ordered.

30. Respondent's manufacturer invoice for the hearing devices provided to A.N. appears

to have been fabricated.

6 FIRST CAUSE FOR DISCIPLINE

J (Practice of Healing Arts)

31. Respondent is subject to disciplinary action under sections 2530.4, 2530.2,

subdivision (m), and 2530.6 of the Code in that Respondent allowed an unlicensed staff member

to conduct testing and Respondent provided inappropriate referrals. The circumstances are as

11 follows:

12 32. The facts and circumstances regarding this Cause for Discipline are alleged in

13 paragraphs 11-30, above, and are hereby incorporated by reference and realleged as if fully set

14 forth herein.

SECOND CAUSE FOR DISCIPLINE

16 (Unlicensed Practice)

33. Respondent is subject to disciplinary action under section sections 2530.4, 2530.2,

18 subdivision (m), and 2530.6 of the Code in that Respondent allowed an unlicensed staff member

19 to conduct testing and Respondent provided inappropriate referrals The circumstances are as

follows:



23 forth herein.

24 Respondent's documentation alleges that the wholesale amount for the hearing devices

was $6000.00. The typical wholesale cost for Medi-Cal hearing aids range from approximately $199 to $499 per hearing aid from recognized, known manufacturers. Medi-Cal and CCS

26 binaural hearing aid claims are paid the least of the following: Wholesale cost plus $1,025, or $1,480.32, or the billed amount. According to the records, Respondent paid $6010 wholesale cost

27 for a binaural set of hearing aids and settled for $1480.32 in reimbursement, resulting in a net loss of $4529.68. It is likely that the true wholesale cost of the hearing devices provided to A.N. were

28 approximately $200 or less each.

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THIRD CAUSE FOR DISCIPLINE

(Dishonest and/or Fraudulent Acts)

WN . 35. Respondent is subject to disciplinary action under section 2533, subdivision (e), in

A that Respondent engaged in fraudulent billing, charged for unnecessary services, and engaged in

U "balance billing." The circumstances are as follows:

a 36. The facts and circumstances regarding this Cause for Discipline are alleged in

paragraphs 11-30, above, and are hereby incorporated by reference and realleged as if fully set

8 forth herein.

9 FOURTH CAUSE FOR DISCIPLINE

10 (Incompetence and/or Negligence)

11 37. Respondent is subject to disciplinary action under section 2533, subdivision (f), in

12 that Respondent performed audiological testing in an incompetent and negligent manner. The

13 circumstances are as follows:



16 forth herein.

17 FIFTH CAUSE FOR DISCIPLINE

18 (Acts that Endanger Public Heath, Safety, and Welfare)

19 39. Respondent is subject to disciplinary action under section 2533, subdivision (g), in

20 that Respondent engaged in business practices that endanger the health, safety, and welfare of the

21 People of the State of California. The circumstances are as follows:



24 forth herein.

25 SIXTH CAUSE FOR DISCIPLINE

26 (Violation of Song-Beverly Consumer Warranty Act)

27 41. Respondent is subject to disciplinary action under section 2533, subdivision (k) of the

28 Code, and California Civil Code section 1793.02, subdivision (a), in that Respondent's business

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practices circumvented hearing aid consumer protections guaranteed by California Law. The

N circumstances are as follows:

42. The facts and circumstances regarding this Cause for Discipline are alleged in

paragraphs 11-30, above, and are hereby incorporated by reference and realleged as if fully set

5 forth herein.

6 SEVENTH CAUSE FOR DISCIPLINE

(Receipt Requirement)

43. Respondent is subject to disciplinary action under section 2538.35 of the Code, in that

Respondent's bill of sales failed to comply with applicable law. The circumstances are as

10 follows:



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PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

w and that following the hearing, the Speech-Language Pathology and Audiology and Hearing Aid

Dispensers Board issue a decision:

1. Revoking or suspending Audiologist License Number AU 2267, issued to ANDRES

6 GODINEZ;

2. Ordering Andres Godinez to pay the Speech-Language Pathology and Audiology and

Hearing Aid Dispensers Board the reasonable costs of the investigation and enforcement of this

case, pursuant to Business and Professions Code section 125.3; and,

3 . Taking such other and further action as deemed necessary and proper.

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14 DATED: 09.29. 17 PAUL SANCHEZ Executive Officer Speech-Language Pathology and Audiology and Hearing

16 Aid Dispensers Board Department of Consumer Affairs

17 State of California Complainant

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XAVIER BECERRA P Attorney General of California JUDITH T. ALVARADO N

Supervising Deputy Attorney General w BRIAN D. BILL

Deputy Attorney General State Bar No. 239146 California Department of Justice

U 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013

O Telephone: (213) 897-9474 Facsimile: (213) 897-9395

Attorneys for Complainant

BEFORE THE SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY AND HEARING AID



11 In the Matter of the Accusation Against: Case No. 11-2015-077

12

ANDRES GODINEZ REQUEST FOR DISCOVERY 13

Respondent. 14

15 TO RESPONDENT:

16 Under section 11507.6 of the Government Code of the State of California, parties to an

17 administrative hearing, including the Complainant, are entitled to certain information concerning

18 the opposing party's case. A copy of the provisions of section 11507.6 of the Government Code

19 concerning such rights is included among the papers served.

20 PURSUANT TO SECTION 11507.6 OF THE GOVERNMENT CODE, YOU ARE

21 HEREBY REQUESTED TO:

22 1. Provide the names and addresses of witnesses to the extent known to the Respondent,

23 including, but not limited to, those intended to be called to testify at the hearing, and

24 2. Provide an opportunity for the Complainant to inspect and make a copy of any of the

25 following in the possession or custody or under control of the Respondent:

26 a. A statement of a person, other than the Respondent, named in the

27 initial administrative pleading, or in any additional pleading, when it is claimed that

28 the act or omission of the Respondent as to this person is the basis for the

REQUEST FOR DISCOVERY

administrative proceeding;

N b. A statement pertaining to the subject matter of the proceeding made

w by any party to another party or persons;

A C. Statements of witnesses then proposed to be called by the

UI Respondent and of other persons having personal knowledge of the acts, omissions or

6 events which are the basis for the proceeding, not included in (a) or (b) above;

7 d. All writings, including but not limited to reports of mental, physical

8 and blood examinations and things which the Respondent now proposes to offer in

9 evidence;

10 e . Any other writing or thing which is relevant and which would be

11 admissible in evidence, including but not limited to, any patient or hospital records

12 pertaining to the persons named in the pleading;

13 f. Investigative reports made by or on behalf of the Respondent

14 pertaining to the subject matter of the proceeding, to the extent that these reports (1)

15 contain the names and addresses of witnesses or of persons having personal

16 knowledge of the acts, omissions or events which are the basis for the proceeding, or

17 (2) reflect matters perceived by the investigator in the course of his or her

18 investigation, or (3) contain or include by attachment any statement or writing

19 described in (a) to (e), inclusive, or summary thereof.

20 IN ADDITION, if cost recovery is requested in the pleading prayer, provide all writings

21 which will support any objection which may be made by the Respondent, to Respondent's

22 payment of investigation and enforcement costs to the Board.

23 For the purpose of this Request for Discovery, "statements" include written statements by

24 the person, signed, or otherwise authenticated by him or her, stenographic, mechanical, electrical

25 or other recordings, or transcripts thereof, of oral statements by the person, and written reports or

26 summaries of these oral statements.

27 YOU ARE HEREBY FURTHER NOTIFIED that nothing in this Request for Discovery

28 should be deemed to authorize the inspection or copying of any writing or thing which is


privileged from disclosure by law or otherwise made confidential or protected as attorney's work

N product.

w Your response to this Request for Discovery should be directed to the undersigned attorney

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for the Complainant at the address on the first page of this Request for Discovery within 30 days

after service of the Accusation.

Failure without substantial justification to comply with this Request for Discovery may

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subject the Respondent to sanctions pursuant to sections 11507.7 and 11455.10 to 11455.30 of the

Government Code.

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Dated: September 20, 2017 XAVIER BECERRA Attorney General of California JUDITH T. ALVARADO

12 0 BRIAN D. BILL Deputy Attorney General Attorneys for Complainant

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LA2017604998 62537766.docx

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DISPENSERS BOARD DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

In the Matter of the Accusation Against: Case No. 11-2015-077

ANDRES GODINEZ

Respondent. NOTICE OF DEFENSE

[Gov. Code $$ 11505 and 1 1506]

I, the undersigned Respondent in the above-entitled proceeding, hereby acknowledge receipt of a copy of the Accusation; Statement to Respondent; Government Code sections 11507.5, 11507.6 and 11507.7, Complainant's Request for Discovery; Disciplinary Guidelines; and two copies of a Notice of Defense.

Date:

Respondent's Name: Respondent's Signature: Respondent's Mailing Address:

Phone: FAX E-mail

Check appropriate boxes: 0 I hereby request a hearing to permit me to present my defense to Accusation.

I wish to be considered for a stipulated settlement.

I wish to surrender my license.

I am represented by counsel, whose name, address and telephone number appear below: Counsel's Name

Counsel's Mailing Address

Phone: FAX: E-mail:

I am not now represented by counsel. If and when counsel is retained, immediate notification of the attorney's name, address and telephone number will be filed with the

Office of Administrative Hearing and a copy sent to counsel for Complainant so that counsel will be on record to receive legal notices, pleadings and other papers.

The agency taking the action described in the Accusation may have formulated guidelines o assist the administrative law judge in reaching an appropriate penalty. You may obtain a copy of the guidelines by requesting them from in writing from the agency.

LA2017604998 62537766.DOCX

2


DISPENSERS BOARD DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

In the Matter of the Accusation Against: Case No. 1I-2015-077

ANDRES GODINEZ

Respondent. NOTICE OF DEFENSE

[Gov. Code $$ 11505 and 11506]

I, the undersigned Respondent in the above-entitled proceeding, hereby acknowledge receipt of a copy of the Accusation; Statement to Respondent; Government Code sections 11507.5, 11507.6 and 11507.7, Complainant's Request for Discovery; Disciplinary Guidelines;

and two copies of a Notice of Defense.

Date:

Respondent's Name: Respondent's Signature: Respondent's Mailing Address:

Phone: FAX E-mail

Check appropriate boxes: I hereby request a hearing to permit me to present my defense to Accusation.

I wish to be considered for a stipulated settlement.

I wish to surrender my license.

I am represented by counsel, whose name, address and telephone number appear below: Counsel's Name Counsel's Mailing Address

Phone: FAX:

E-mail:

I am not now represented by counsel. If and when counsel is retained, immediate notification of the attorney's name, address and telephone number will be filed with the

Office of Administrative Hearing and a copy sent to counsel for Complainant so that counsel will be on record to receive legal notices, pleadings and other papers.

The agency taking the action described in the Accusation may have formulated guidelines to assist the administrative law judge in reaching an appropriate penalty. You may obtain a copy of the guidelines by requesting them from in writing from the agency.

LA2017604998 62537766.DOCX

N

COPY OF GOVERNMENT CODE SECTIONS 11507.5, 11507.6 AND 11507.7 PROVIDED PURSUANT TO GOVERNMENT CODE SECTIONS 11504 AND 11505

SECTION 11507.5: Exclusivity of discovery provisions

The provisions of Section 11507.6 provide the exclusive right to and method of discovery as to any proceeding governed by this chapter.

SECTION 11507.6: Request for discovery

After initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the agency of the initial pleading or within 15 days after the service of an additional pleading, is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party:

(a) A statement of a person, other than the respondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the respondent as to this person is the basis for the administrative proceeding;

b) A statement pertaining to the subject matter of the proceeding made by any party to another party or person;

c) Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in (a) or (b) above;

d) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence;

e) Any other writing or thing which is relevant and which would be admissible in evidence;

f) Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding, to the extent that these reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) reflect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in (a) to (e), inclusive, or summary thereof.

For the purpose of this section, "statements" include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of these oral statements.

Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney's work product.

SECTION 11507.7: Petition to compel discovery; Order; Sanctions

(a) Any party claiming the party's request for discovery pursuant to Section 11507.6 has not been complied with may serve and file with the administrative law judge a motion to compel discovery, naming as respondent the party refusing or failing to comply with Section 11507.6. The motion shall state facts showing the respondent party failed or refused to comply with Section 11507.6, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under that section, that a reasonable and good faith attempt to contact the respondent for an informal resolution of the issue has been made, and the ground or grounds of respondent's refusal so far as known to the moving party.

(b) The motion shall be served upon respondent party and filed within 15 days after the respondent party first evidenced failure or refusal to comply with Section 11507.6 or within 30 days after request was made and the party has failed to reply to the request, or within another time provided by stipulation, whichever period is longer.

(c) The hearing on the motion to compel discovery shall be held within 15 days after the motion is made, or a later time that the administrative law judge may on the judge's own motion for good cause determine. The respondent party shall have the right to serve and file a written answer or other response to the motion before or at the time of the hearing.

(d) Where the matter sought to be discovered is under the custody or control of the respondent party and the respondent party asserts that the matter is not a discoverable matter under the provisions of Section 11507.6, or is privileged against disclosure under those

provisions, the administrative law judge may order lodged with it matters provided in subdivision (b) of Section 915 of the Evidence Code and examine the matters in accordance with its provisions.

(e) The administrative law judge shall decide the case on the matters examined in camera, the papers filed by the parties, and such oral argument and additional evidence as the administrative law judge may allow.

(f) Unless otherwise stipulated by the parties, the administrative law judge shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover under Section 11507.6. A copy of the order shall forthwith be served by mail by the administrative law judge upon the parties. Where the order grants the motion in whole or in part, the order shall not become effective until 10 days after the date the order is served. Where the order denies relief to the moving party, the order shall be effective on the date it is served.

62537766.DOCX LA2017604998

TATE OF CALIFORNIA BUSINESS. CONSUMER SERVICES, AND HOUSING AGENCY . GOVERNOR EDMUND Q BROWN JR. SPEECH-LANGUAGE PATHOLOGY & AUDIOLOGY& HEARING AID DISPENSERS BOARD 2005 EVERGREEN STREET, SUITE 2100, SACRAMENTO, CA 95815 PHONE (916) 263-2666 FAX (916) 263-2668 WWW.SPEECHANDHEARING.CA.GOV

DEPARTMENT OF CONSUMER AFFAIRS

DECLARATION OF SERVICE BY CERTIFIED MAIL & FIRST CLASS MAIL

In the Matter of the Decision & Order

RE: Andres Godinez CASE NUMBER: 11-2015-077

I, the undersigned declare that I am over 18 years of age; my business address is 2005 Evergreen Street, Suite 2100, Sacramento, California 95815. I served a true copy of the following:

Statement of Respondent; . Accusation;

Request for Discovery; .

Notice of Defense (2 copies); . Government Code Sections 11507.5, 11507.6 and 11507.7

The above was sent by Certified mail to the individual identified below, by placing same in an envelope addressed as follows:

NAME AND ADDRESS: CERTIFIED NUMBER: Andres Godinez 7014 3490 0001 2778 6254 4910 Van Nuys, #201 Sherman Oaks, CA 91403

Andres Godinez Via USPS First Class Mail 4910 Van Nuys, #201 Sherman Oaks, CA 91403

Brian D. Bill VIA FedEx Tracking No. 7703 8230 4648 Deputy Attorney General Office of the Attorney General 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013

Said envelope was then, on the 29th day of September 2017, sealed and deposited in the United States Mail at 2005 Evergreen Street, Suite 2100, Sacramento, CA, 95815 in the county in which I am employed, as certified mail with postage thereon fully prepaid, return receipt requested with postage thereon fully prepaid.

Executed on the 29th day of September 2017, at Sacramento, California.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

Marti Shaffer Marti shaffer Declarant Signature

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