1.1                          A bill for an act
  1.2             relating to health; exempting audiologists and 
  1.3             speech-language pathologists from certification and 
  1.4             certain other requirements for hearing instrument 
  1.5             dispensers; amending Minnesota Statutes 1996, sections 
  1.6             148.5195, subdivision 3, and by adding subdivisions; 
  1.7             and 153A.18; proposing coding for new law in Minnesota 
  1.8             Statutes, chapter 148; repealing Minnesota Statutes 
  1.9             1996, section 153A.14, subdivision 2a. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11     Section 1.  Minnesota Statutes 1996, section 148.5195, is 
  1.12  amended by adding a subdivision to read: 
  1.13     Subd. 1a.  [INVESTIGATION OF COMPLAINTS AGAINST 
  1.14  AUDIOLOGISTS WHO DISPENSE HEARING INSTRUMENTS.] In addition to 
  1.15  the investigation process in subdivision 1, an audiologist who 
  1.16  dispenses hearing instruments is also subject to the internal 
  1.17  operating procedures for receiving and investigating complaints 
  1.18  and imposing enforcement actions established under section 
  1.19  153A.15, subdivision 3.  In an investigation of an audiologist 
  1.20  who dispenses hearing instruments, the commissioner has all of 
  1.21  the discovery powers provided in section 153A.15, subdivision 3a.
  1.22     Sec. 2.  Minnesota Statutes 1996, section 148.5195, 
  1.23  subdivision 3, is amended to read: 
  1.24     Subd. 3.  [GROUNDS FOR DISCIPLINARY ACTION BY 
  1.25  COMMISSIONER.] The commissioner may take any of the disciplinary 
  1.26  actions listed in subdivision 4 on proof that the individual has:
  1.27     (1) intentionally submitted false or misleading information 
  2.1   to the commissioner or the advisory council; 
  2.2      (2) failed, within 30 days, to provide information in 
  2.3   response to a written request by the commissioner or advisory 
  2.4   council; 
  2.5      (3) performed services of a speech-language pathologist or 
  2.6   audiologist in an incompetent or negligent manner; 
  2.7      (4) violated sections 148.511 to 148.5196; 
  2.8      (5) failed to perform services with reasonable judgment, 
  2.9   skill, or safety due to the use of alcohol or drugs, or other 
  2.10  physical or mental impairment; 
  2.11     (6) violated any state or federal law, rule, or regulation, 
  2.12  and the violation is a felony or misdemeanor, an essential 
  2.13  element of which is dishonesty, or which relates directly or 
  2.14  indirectly to the practice of speech-language pathology or 
  2.15  audiology.  Conviction for violating any state or federal law 
  2.16  which relates to speech-language pathology or audiology is 
  2.17  necessarily considered to constitute a violation, except as 
  2.18  provided in chapter 364; 
  2.19     (7) aided or abetted another person in violating any 
  2.20  provision of sections 148.511 to 148.5196; 
  2.21     (8) been or is being disciplined by another jurisdiction, 
  2.22  if any of the grounds for the discipline is the same or 
  2.23  substantially equivalent to those under sections 148.511 to 
  2.24  148.5196; 
  2.25     (9) not cooperated with the commissioner or advisory 
  2.26  council in an investigation conducted according to subdivision 
  2.27  1; 
  2.28     (10) advertised in a manner that is false or misleading; 
  2.29     (11) engaged in conduct likely to deceive, defraud, or harm 
  2.30  the public; or demonstrated a willful or careless disregard for 
  2.31  the health, welfare, or safety of a client; 
  2.32     (12) if the individual is a speech-language pathologist, 
  2.33  failed to disclose to the consumer any fee splitting or any 
  2.34  promise to pay a portion of a fee to any other professional 
  2.35  other than a fee for services rendered by the other professional 
  2.36  to the client; 
  3.1      (13) if the individual is an audiologist who dispenses 
  3.2   hearing instruments, split fees or promised to pay a portion of 
  3.3   a fee to any other professional, other than a fee for services 
  3.4   rendered by the other professional to the client; 
  3.5      (14) engaged in abusive or fraudulent billing practices, 
  3.6   including violations of federal Medicare and Medicaid laws, Food 
  3.7   and Drug Administration regulations, or state medical assistance 
  3.8   laws; 
  3.9      (14) (15) obtained money, property, or services from a 
  3.10  consumer through the use of undue influence, high pressure sales 
  3.11  tactics, harassment, duress, deception, or fraud; 
  3.12     (15) (16) performed services for a client who had no 
  3.13  possibility of benefiting from the services; or 
  3.14     (16) (17) failed to refer a client for medical evaluation 
  3.15  or to other health care professionals when appropriate or when a 
  3.16  client indicated symptoms associated with diseases that could be 
  3.17  medically or surgically treated; or 
  3.18     (17) if the individual is a dispenser of hearing 
  3.19  instruments as defined by section 153A.13, subdivision 5, had 
  3.20  the certification required by chapter 153A, denied, suspended, 
  3.21  or revoked according to chapter 153A. 
  3.22     Sec. 3.  Minnesota Statutes 1996, section 148.5195, is 
  3.23  amended by adding a subdivision to read: 
  3.24     Subd. 3a.  [ADDITIONAL GROUNDS FOR DISCIPLINARY ACTION; 
  3.25  AUDIOLOGISTS WHO DISPENSE HEARING INSTRUMENTS.] In addition to 
  3.26  the grounds for disciplinary action in subdivision 3, the 
  3.27  commissioner may take any of the disciplinary actions listed in 
  3.28  subdivision 4a against an audiologist who dispenses hearing 
  3.29  instruments on proof that the audiologist has: 
  3.30     (1) failed to apply to the commissioner for registration, 
  3.31  or supplied false or misleading information on the application 
  3.32  for registration; 
  3.33     (2) prescribed or otherwise recommended to a consumer or 
  3.34  potential consumer the use of a hearing instrument without 
  3.35  basing the prescription or recommendation on an audiogram that 
  3.36  is delivered to the consumer or potential consumer when the 
  4.1   prescription or recommendation is made and that bears the 
  4.2   following information in all capital letters of 12-point or 
  4.3   larger boldface type:  "THIS PRESCRIPTION OR RECOMMENDATION MAY 
  4.4   BE FILLED BY, AND HEARING INSTRUMENTS MAY BE PURCHASED FROM, THE 
  4.5   CERTIFIED DISPENSER OF YOUR CHOICE"; 
  4.6      (3) failed to give a copy of the audiogram upon which the 
  4.7   prescription or recommendation is based to the consumer when 
  4.8   there has been a charge for the audiogram and the consumer 
  4.9   requests a copy; 
  4.10     (4) failed to provide the consumer rights brochure required 
  4.11  by section 153A.14, subdivision 9; 
  4.12     (5) provided the commissioner with false or misleading 
  4.13  statements of the audiologist's credentials, training, or 
  4.14  experience; 
  4.15     (6) failed to comply with restrictions on sales of hearing 
  4.16  aids in sections 153A.14, subdivision 9, or 153A.19; 
  4.17     (7) dispensed hearing instruments in an incompetent or 
  4.18  negligent manner; 
  4.19     (8) failed to comply with the requirements of this chapter 
  4.20  as a supervisor or supervisee; 
  4.21     (9) failed to provide information in a timely manner in 
  4.22  response to a request by the hearing instrument dispenser 
  4.23  advisory council; 
  4.24     (10) been convicted within the past five years of violating 
  4.25  any laws of the United States or any state or territory of the 
  4.26  United States if the violation is a felony, gross misdemeanor, 
  4.27  or misdemeanor, an essential element of which relates to hearing 
  4.28  instrument dispensing, except as provided in chapter 364; 
  4.29     (11) failed to cooperate in good faith with the 
  4.30  commissioner, the commissioner's designee, the advisory council, 
  4.31  or the hearing instrument dispenser advisory council in any 
  4.32  investigation; 
  4.33     (12) failed to dispense hearing instruments with reasonable 
  4.34  judgment, skill, or safety due to the use of alcohol or drugs, 
  4.35  or other physical or mental impairment; 
  4.36     (13) failed to fully disclose actions taken against the 
  5.1   applicant or audiologist or the applicant's or audiologist's 
  5.2   legal authorization to dispense hearing instruments in this or 
  5.3   another state; 
  5.4      (14) violated a state or federal court order or judgment, 
  5.5   including a conciliation court judgment, relating to the 
  5.6   applicant's or audiologist's activities in hearing instrument 
  5.7   dispensing; 
  5.8      (15) misrepresented the purpose of hearing tests, or in any 
  5.9   way communicated that the hearing test or hearing test protocol 
  5.10  required by section 153A.14, subdivision 4b, is a medical 
  5.11  evaluation, a diagnostic hearing evaluation conducted by an 
  5.12  audiologist, or is other than a test to select a hearing 
  5.13  instrument, except that the audiologist may determine the need 
  5.14  for or recommend that the consumer obtain a medical evaluation 
  5.15  consistent with requirements of the United States Food and Drug 
  5.16  Administration; or 
  5.17     (16) aided or abetted another person in violating any of 
  5.18  the provisions of sections 153A.13 to 153A.19. 
  5.19     Sec. 4.  Minnesota Statutes 1996, section 148.5195, is 
  5.20  amended by adding a subdivision to read: 
  5.21     Subd. 4a.  [ENFORCEMENT ACTIONS; AUDIOLOGISTS WHO DISPENSE 
  5.22  HEARING INSTRUMENTS.] When the commissioner finds that an 
  5.23  audiologist who dispenses hearing instruments has violated one 
  5.24  or more provisions of subdivision 3, or clause (10), (11), (14), 
  5.25  or (15) or subdivision 3a, the commissioner may do one or more 
  5.26  of the following: 
  5.27     (1) reject the audiologist's application for registration; 
  5.28     (2) revoke the registration; 
  5.29     (3) suspend the registration; 
  5.30     (4) impose, for each violation, a civil penalty that 
  5.31  deprives the audiologist of any economic advantage gained by the 
  5.32  violation and that reimburses the department of health for costs 
  5.33  of the investigation and proceeding resulting in disciplinary 
  5.34  action, including the amount paid for services of the office of 
  5.35  administrative hearings, the amount paid for services of the 
  5.36  office of the attorney general, attorney fees, court reporters, 
  6.1   witnesses, reproduction of records, advisory council members' 
  6.2   per diem compensation, department staff time, and expenses 
  6.3   incurred by advisory council members and department staff; 
  6.4      (5) censure or reprimand the audiologist; 
  6.5      (6) revoke or suspend the right to direct or evaluate 
  6.6   supervisees; 
  6.7      (7) revoke or suspend the right to be a supervisee; 
  6.8      (8) impose a civil penalty not to exceed $10,000 for each 
  6.9   separate violation; or 
  6.10     (9) take any other action reasonably justified by the 
  6.11  individual case. 
  6.12     Sec. 5.  Minnesota Statutes 1996, section 148.5195, is 
  6.13  amended by adding a subdivision to read: 
  6.14     Subd. 7.  [PENALTY; AUDIOLOGISTS WHO DISPENSE HEARING 
  6.15  INSTRUMENTS.] An audiologist who dispenses hearing instruments 
  6.16  and violates any provision of sections 148.511 to 148.5198 is 
  6.17  guilty of a misdemeanor. 
  6.18     Sec. 6.  [148.5197] [EXEMPTION FROM CERTIFICATION 
  6.19  REQUIREMENTS OF DISPENSERS OF HEARING INSTRUMENTS.] 
  6.20     Subdivision 1.  [EXEMPTION.] Except as otherwise provided 
  6.21  in sections 148.511 to 148.5198, a speech-language pathologist 
  6.22  or audiologist registered under sections 148.511 to 148.5198 is 
  6.23  exempt from sections 153A.14, subdivisions 1 to 8, 10, and 11; 
  6.24  153A.15, subdivisions 1 and 2; and 153A.17.  An audiologist may 
  6.25  select, fit, and dispense assistive listening devices, alerting 
  6.26  and amplification devices, and systems for personal and public 
  6.27  use, including hearing aids and devices, and may provide 
  6.28  training in their use, without a certificate to dispense hearing 
  6.29  instruments. 
  6.30     Subd. 2.  [PROVISIONS STILL APPLICABLE.] An audiologist who 
  6.31  dispenses hearing instruments is subject to sections 153A.14, 
  6.32  subdivision 9; 153A.15, subdivisions 3 and 3a; 153A.19; and 
  6.33  153A.20. 
  6.34     Sec. 7.  [148.5198] [HEARING AIDS; RESTRICTIONS ON SALES.] 
  6.35     An audiologist who sells hearing aids is subject to section 
  6.36  153A.19 relating to restrictions on the sale of hearing aids. 
  7.1      Sec. 8.  Minnesota Statutes 1996, section 153A.18, is 
  7.2   amended to read: 
  7.3      153A.18 [CONSUMER INFORMATION CENTER.] 
  7.4      The commissioner shall establish a consumer information 
  7.5   center to assist actual and potential purchasers of hearing aids 
  7.6   by providing them with information regarding hearing instrument 
  7.7   sales.  The consumer information center shall disseminate 
  7.8   information about consumers' legal rights related to hearing 
  7.9   instrument sales, provide information relating to complaints 
  7.10  about dispensers of hearing instruments, and provide information 
  7.11  about outreach and advocacy services for consumers of hearing 
  7.12  instruments.  In establishing the center and developing the 
  7.13  information, the commissioner shall consult with representatives 
  7.14  of hearing instrument dispensers, audiologists, physicians, and 
  7.15  consumers.  The commissioner may provide information regarding 
  7.16  audiologists who dispense hearing instruments to the consumer 
  7.17  information center. 
  7.18     Sec. 9.  [REPEALER.] 
  7.19     Minnesota Statutes 1996, section 153A.14, subdivision 2a, 
  7.20  is repealed. 
  7.21     Sec. 10.  [INSTRUCTION TO REVISOR.] 
  7.22     The revisor of statutes shall change the phrase "sections 
  7.23  148.511 to 148.5196" wherever it appears in Minnesota Statutes 
  7.24  and Minnesota Rules to "sections 148.511 to 148.5198." 
  7.25     Sec. 11.  [EFFECTIVE DATE.] 
  7.26     Sections 1 to 10 are effective August 1, 1997.