SF 1718

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to health; providing that audiologists need
not obtain hearing instrument dispenser certification;
providing penalties; amending Minnesota Statutes 2004,
sections 148.512, subdivision 6; 148.5194, by adding a
subdivision; 148.5195, subdivision 3; 153A.13,
subdivision 5; 153A.14, subdivisions 2a, 2i, 4, 4c;
153A.15, subdivision 1; 153A.20, subdivision 1;
proposing coding for new law in Minnesota Statutes,
chapter 148.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 148.512,
subdivision 6, is amended to read:

Subd. 6.

Audiologist.

"Audiologist" means a natural
person who engages in the practice of audiology, meets the
qualifications required by sections 148.511 to deleted text begin 148.5196
deleted text end new text begin 148.5198 new text end , and is licensed by the commissioner new text begin under a general,
clinical fellowship, doctoral externship, or temporary license new text end .
Audiologist also means a natural person using any descriptive
word with the title audiologist.

Sec. 2.

Minnesota Statutes 2004, section 148.5194, is
amended by adding a subdivision to read:

new text begin Subd. 7. new text end

new text begin Surcharge. new text end

new text begin A surcharge of $....... is added to
the audiologist licensure fee for the period of ........
new text end

Sec. 3.

Minnesota Statutes 2004, section 148.5195,
subdivision 3, is amended to read:

Subd. 3.

Grounds for disciplinary action by
commissioner.

The commissioner may take any of the disciplinary
actions listed in subdivision 4 on proof that the individual has:

(1) intentionally submitted false or misleading information
to the commissioner or the advisory council;

(2) failed, within 30 days, to provide information in
response to a written request, via certified mail, by the
commissioner or advisory council;

(3) performed services of a speech-language pathologist or
audiologist in an incompetent or negligent manner;

(4) violated sections 148.511 to deleted text begin 148.5196 deleted text end new text begin 148.5198 new text end ;

(5) failed to perform services with reasonable judgment,
skill, or safety due to the use of alcohol or drugs, or other
physical or mental impairment;

(6) violated any state or federal law, rule, or regulation,
and the violation is a felony or misdemeanor, an essential
element of which is dishonesty, or which relates directly or
indirectly to the practice of speech-language pathology or
audiology. Conviction for violating any state or federal law
which relates to speech-language pathology or audiology is
necessarily considered to constitute a violation, except as
provided in chapter 364;

(7) aided or abetted another person in violating any
provision of sections 148.511 to deleted text begin 148.5196 deleted text end new text begin 148.5198 new text end ;

(8) been or is being disciplined by another jurisdiction,
if any of the grounds for the discipline is the same or
substantially equivalent to those under sections 148.511 to
148.5196;

(9) not cooperated with the commissioner or advisory
council in an investigation conducted according to subdivision
1;

(10) advertised in a manner that is false or misleading;

(11) engaged in conduct likely to deceive, defraud, or harm
the public; or demonstrated a willful or careless disregard for
the health, welfare, or safety of a client;

(12) failed to disclose to the consumer any fee splitting
or any promise to pay a portion of a fee to any other
professional other than a fee for services rendered by the other
professional to the client;

(13) engaged in abusive or fraudulent billing practices,
including violations of federal Medicare and Medicaid laws, Food
and Drug Administration regulations, or state medical assistance
laws;

(14) obtained money, property, or services from a consumer
through the use of undue influence, high pressure sales tactics,
harassment, duress, deception, or fraud;

(15) performed services for a client who had no possibility
of benefiting from the services;

(16) failed to refer a client for medical evaluation or to
other health care professionals when appropriate or when a
client indicated symptoms associated with diseases that could be
medically or surgically treated;

(17) deleted text begin if the individual is a dispenser of hearing
instruments as defined by section 153A.13, subdivision 5, had
the certification required by chapter 153A, denied, suspended,
or revoked according to chapter 153A;
deleted text end

deleted text begin (18) deleted text end used the term doctor of audiology, doctor of
speech-language pathology, AuD, or SLPD without having obtained
the degree from an institution accredited by the North Central
Association of Colleges and Secondary Schools, the Council on
Academic Accreditation in Audiology and Speech-Language
Pathology, the United States Department of Education, or an
equivalent; deleted text begin or
deleted text end

deleted text begin (19) deleted text end new text begin (18) new text end failed to comply with the requirements of section
148.5192 regarding supervision of speech-language pathology
assistants deleted text begin . deleted text end new text begin ;
new text end

new text begin (19) prescribed or otherwise recommended to a consumer or
potential consumer the use of a hearing instrument, unless the
prescription from a physician or recommendation from an
audiologist is in writing, is based on an audiogram that is
delivered to the consumer or potential consumer when the
prescription or recommendation is made, and bears the following
information in all capital letters of 12-point or larger
boldface type: "THIS PRESCRIPTION OR RECOMMENDATION MAY BE
FILLED BY, AND HEARING INSTRUMENTS MAY BE PURCHASED FROM, THE
LICENSED AUDIOLOGIST OR CERTIFIED DISPENSER OF YOUR CHOICE";
new text end

new text begin (20) failed to give a copy of the audiogram, upon which the
prescription or recommendation is based, to the consumer when
the consumer requests a copy;
new text end

new text begin (21) failed to provide the consumer rights brochure
required by section 148.5197, subdivision 3;
new text end

new text begin (22) failed to comply with restrictions on sales of hearing
aids in sections 148.5197, subdivision 3, and 148.5198; or
new text end

new text begin (23) failed to return a consumer's hearing aid used as a
trade-in or for a discount in the price of a new hearing aid
when requested by the consumer upon cancellation of the purchase
agreement.
new text end

Sec. 4.

new text begin [148.5197] HEARING INSTRUMENT DISPENSING.
new text end

new text begin Subdivision 1. new text end

new text begin Content of contracts. new text end

new text begin Oral statements
made by an audiologist regarding the provision of warranties,
refunds, and service on the hearing instrument or instruments
dispensed must be written on, and become part of, the contract
of sale, specify the item or items covered, and indicate the
person or business entity obligated to provide the warranty,
refund, or service.
new text end

new text begin Subd. 2. new text end

new text begin Required use of license number. new text end

new text begin The
audiologist's license number must appear on all contracts, bills
of sale, and receipts used in the sale of hearing instruments.
new text end

new text begin Subd. 3. new text end

new text begin Consumer rights information. new text end

new text begin An audiologist
shall, at the time of the recommendation or prescription, give a
consumer rights brochure, prepared by the commissioner and
containing information about legal requirements pertaining to
sales of hearing instruments, to each potential buyer of a
hearing instrument. The brochure must contain information about
the consumer information center described in section 153A.18. A
sales contract for a hearing instrument must note the receipt of
the brochure by the buyer, along with the buyer's signature or
initials.
new text end

new text begin Subd. 4. new text end

new text begin Liability for contracts. new text end

new text begin Owners of entities in
the business of dispensing hearing instruments, employers of
audiologists or persons who dispense hearing instruments,
supervisors of trainees or audiology students, and hearing
instrument dispensers conducting the sales transaction at issue
are liable for satisfying all terms of contracts, written or
oral, made by their agents, employees, assignees, affiliates, or
trainees, including terms relating to products, repairs,
warranties, service, and refunds. The commissioner may enforce
the terms of hearing instrument sales contracts against the
principal, employer, supervisor, or dispenser who conducted the
sale and may impose any remedy provided for in this chapter.
new text end

Sec. 5.

new text begin [148.5198] RESTRICTION ON SALE OF HEARING AIDS.
new text end

new text begin Subdivision 1. new text end

new text begin 45-calendar-day guarantee and buyer right
to cancel. new text end

new text begin (a) An audiologist dispensing a hearing aid in this
state must comply with paragraphs (b) and (c).
new text end

new text begin (b) The audiologist must provide the buyer with a
45-calendar-day written money-back guarantee. The guarantee
must permit the buyer to cancel the purchase for any reason
within 45 calendar days after receiving the hearing aid by
giving or mailing written notice of cancellation to the
audiologist. If the consumer mails the notice of cancellation,
the 45-calendar-day period is counted using the postmark date,
to the date of receipt by the audiologist. If the hearing aid
must be repaired, remade, or adjusted during the 45-calendar-day
money-back guarantee period, the running of the 45-calendar-day
period is suspended one day for each 24-hour period that the
hearing aid is not in the buyer's possession. A repaired,
remade, or adjusted hearing aid must be claimed by the buyer
within three business days after notification of availability,
after which time the running of the 45-calendar-day period
resumes. The guarantee must entitle the buyer, upon
cancellation, to receive a refund of payment within 30 days of
return of the hearing aid to the audiologist. The audiologist
may retain as a cancellation fee no more than $250 of the
buyer's total purchase price of the hearing aid.
new text end

new text begin (c) The audiologist shall provide the buyer with a contract
written in plain English, that contains uniform language and
provisions that meet the requirements under the Plain Language
Contract Act, sections 325G.29 to 325G.36. The contract must
include, but is not limited to, the following: in immediate
proximity to the space reserved for the signature of the buyer,
or on the first page if there is no space reserved for the
signature of the buyer, a clear and conspicuous disclosure of
the following specific statement in all capital letters of no
less than 12-point boldface type: "MINNESOTA STATE LAW GIVES
THE BUYER THE RIGHT TO CANCEL THIS PURCHASE FOR ANY REASON AT
ANY TIME PRIOR TO MIDNIGHT OF THE 45TH CALENDAR DAY AFTER
RECEIPT OF THE HEARING AID(S). THIS CANCELLATION MUST BE IN
WRITING AND MUST BE GIVEN OR MAILED TO THE AUDIOLOGIST. IF THE
BUYER DECIDES TO RETURN THE HEARING AID(S) WITHIN THIS
45-CALENDAR-DAY PERIOD, THE BUYER WILL RECEIVE A REFUND OF THE
TOTAL PURCHASE PRICE OF THE AID(S) FROM WHICH THE AUDIOLOGIST
MAY RETAIN AS A CANCELLATION FEE NO MORE THAN $250."
new text end

new text begin Subd. 2. new text end

new text begin Itemized repair bill. new text end

new text begin Any audiologist or
company who agrees to repair a hearing aid must provide the
owner of the hearing aid, or the owner's representative, with a
bill that describes the repair and services rendered. The bill
must also include the repairing audiologist's or company's name,
address, and telephone number.
new text end

new text begin This subdivision does not apply to an audiologist or
company that repairs a hearing aid pursuant to an express
warranty covering the entire hearing aid and the warranty covers
the entire cost, both parts and labor, of the repair.
new text end

new text begin Subd. 3. new text end

new text begin Repair warranty. new text end

new text begin Any guarantee of hearing aid
repairs must be in writing and delivered to the owner of the
hearing aid, or the owner's representative, stating the
repairing audiologist's or company's name, address, telephone
number, length of guarantee, model, and serial number of the
hearing aid and all other terms and conditions of the guarantee.
new text end

new text begin Subd. 4. new text end

new text begin Misdemeanor. new text end

new text begin A person found to have violated
this section is guilty of a misdemeanor.
new text end

new text begin Subd. 5. new text end

new text begin Additional. new text end

new text begin In addition to the penalty provided
in subdivision 4, a person found to have violated this section
is subject to the penalties and remedies provided in section
325F.69, subdivision 1.
new text end

new text begin Subd. 6. new text end

new text begin Estimates. new text end

new text begin Upon the request of the owner of a
hearing aid or the owner's representative for a written estimate
and prior to the commencement of repairs, a repairing
audiologist or company shall provide the customer with a written
estimate of the price of repairs. If a repairing audiologist or
company provides a written estimate of the price of repairs, it
must not charge more than the total price stated in the estimate
for the repairs. If the repairing audiologist or company after
commencing repairs determines that additional work is necessary
to accomplish repairs that are the subject of a written estimate
and if the repairing audiologist or company did not unreasonably
fail to disclose the possible need for the additional work when
the estimate was made, the repairing audiologist or company may
charge more than the estimate for the repairs if the repairing
audiologist or company immediately provides the owner or owner's
representative a revised written estimate pursuant to this
section and receives authorization to continue with the
repairs. If continuation of the repairs is not authorized, the
repairing audiologist or company shall return the hearing aid as
close as possible to its former condition and shall release the
hearing aid to the owner or owner's representative upon payment
of charges for repairs actually performed and not in excess of
the original estimate.
new text end

Sec. 6.

Minnesota Statutes 2004, section 153A.13,
subdivision 5, is amended to read:

Subd. 5.

Dispenser of hearing instruments.

"Dispenser of
hearing instruments" means a natural person who engages in
hearing instrument dispensing whether or not certified by the
commissioner of health or licensed by an existing health-related
board, except that a person described as follows is not a
dispenser of hearing instruments:

(1) a student participating in supervised field work that
is necessary to meet requirements of an accredited educational
program if the student is designated by a title which clearly
indicates the student's status as a student trainee; or

(2) a person who helps a dispenser of hearing instruments
in an administrative or clerical manner and does not engage in
hearing instrument dispensing.

A person who offers to dispense a hearing instrument, or a
person who advertises, holds out to the public, or otherwise
represents that the person is authorized to dispense hearing
instruments must be certified by the commissioner new text begin except when
the person is an audiologist as defined in section 148.512 new text end .

Sec. 7.

Minnesota Statutes 2004, section 153A.14,
subdivision 2a, is amended to read:

Subd. 2a.

Exemption deleted text begin from written examination
requirement deleted text end new text begin requirements new text end .

Persons deleted text begin completing the audiology
registration requirements of section 148.515 after January 1,
1996, deleted text end new text begin licensed as audiologists under section 148.512 new text end are exempt
from the deleted text begin written examination deleted text end requirements of deleted text begin subdivision 2h,
paragraph (a), clause (1). Minnesota licensure, a current
certification of clinical competence issued by the American
Speech-Language-Hearing Association, board certification in
audiology by the American Board of Audiology, or an equivalent,
as an audiologist is not required but may be submitted as
evidence qualifying for exemption from the written examination
if the requirements are completed after January 1, 1996.
Persons qualifying for written examination exemption must
fulfill the other credentialing requirements under subdivisions
1 and 2 before a certificate may be issued by the
commissioner deleted text end new text begin this chapter new text end .

Sec. 8.

Minnesota Statutes 2004, section 153A.14,
subdivision 2i, is amended to read:

Subd. 2i.

Continuing education requirement.

On forms
provided by the commissioner, each certified dispenser must
submit with the application for renewal of certification
evidence of completion of ten course hours of continuing
education earned within the 12-month period of July 1 to June 30
immediately preceding renewal. Continuing education courses
must be directly related to hearing instrument dispensing and
approved by the International Hearing Society deleted text begin or qualify for
continuing education approved for Minnesota licensed
audiologists deleted text end . Evidence of completion of the ten course hours of
continuing education must be submitted with renewal applications
by October 1 of each year. This requirement does not apply to
dispensers certified for less than one year. The first report
of evidence of completion of the continuing education credits
shall be due October 1, 1997.

Sec. 9.

Minnesota Statutes 2004, section 153A.14,
subdivision 4, is amended to read:

Subd. 4.

Dispensing of hearing instruments without
certificate.

Except as provided in subdivisions new text begin 2a, new text end 4a new text begin , new text end and 4c,
it is unlawful for any person not holding a valid certificate to
dispense a hearing instrument as defined in section 153A.13,
subdivision 3. A person who dispenses a hearing instrument
without the certificate required by this section is guilty of a
gross misdemeanor.

Sec. 10.

Minnesota Statutes 2004, section 153A.14,
subdivision 4c, is amended to read:

Subd. 4c.

Reciprocity.

(a) A person applying for
certification as a hearing instrument dispenser under
subdivision 1 who has dispensed hearing instruments in another
jurisdiction may dispense hearing instruments as a trainee under
indirect supervision if the person:

(1) satisfies the provisions of subdivision 4a, paragraph
(a);

(2) submits a signed and dated affidavit stating that the
applicant is not the subject of a disciplinary action or past
disciplinary action in this or another jurisdiction and is not
disqualified on the basis of section 153A.15, subdivision 1; and

(3) provides a copy of a current credential as a hearing
instrument dispenser deleted text begin , an audiologist, or both, deleted text end held in the
District of Columbia or a state or territory of the United
States.

(b) A person becoming a trainee under this subdivision who
fails to take and pass the practical examination described in
subdivision 2h, paragraph (a), clause (2), when next offered
must cease dispensing hearing instruments unless under direct
supervision.

Sec. 11.

Minnesota Statutes 2004, section 153A.15,
subdivision 1, is amended to read:

Subdivision 1.

Prohibited acts.

The commissioner may
take enforcement action as provided under subdivision 2 against
a dispenser of hearing instruments for the following acts and
conduct:

(1) prescribing or otherwise recommending to a consumer or
potential consumer the use of a hearing instrument, unless the
prescription from a physician or recommendation from a hearing
instrument dispenser or audiologist is in writing, is based on
an audiogram that is delivered to the consumer or potential
consumer when the prescription or recommendation is made, and
bears the following information in all capital letters of
12-point or larger boldface type: "THIS PRESCRIPTION OR
RECOMMENDATION MAY BE FILLED BY, AND HEARING INSTRUMENTS MAY BE
PURCHASED FROM, THE CERTIFIED DISPENSER new text begin OR LICENSED AUDIOLOGIST
new text end OF YOUR CHOICE";

(2) failing to give a copy of the audiogram, upon which the
prescription or recommendation is based, to the consumer when
there has been a charge for the audiogram and the consumer
requests a copy;

(3) dispensing a hearing instrument to a minor person 18
years or younger unless evaluated by an audiologist for hearing
evaluation and hearing aid evaluation;

(4) failing to provide the consumer rights brochure
required by section 153A.14, subdivision 9;

(5) being disciplined through a revocation, suspension,
restriction, or limitation by another state for conduct subject
to action under this chapter;

(6) presenting advertising that is false or misleading;

(7) providing the commissioner with false or misleading
statements of credentials, training, or experience;

(8) engaging in conduct likely to deceive, defraud, or harm
the public; or demonstrating a willful or careless disregard for
the health, welfare, or safety of a consumer;

(9) splitting fees or promising to pay a portion of a fee
to any other professional other than a fee for services rendered
by the other professional to the client;

(10) engaging in abusive or fraudulent billing practices,
including violations of federal Medicare and Medicaid laws, Food
and Drug Administration regulations, or state medical assistance
laws;

(11) obtaining money, property, or services from a consumer
through the use of undue influence, high pressure sales tactics,
harassment, duress, deception, or fraud;

(12) failing to comply with restrictions on sales of
hearing aids in sections 153A.14, subdivision 9, and 153A.19;

(13) performing the services of a certified hearing
instrument dispenser in an incompetent or negligent manner;

(14) failing to comply with the requirements of this
chapter as an employer, supervisor, or trainee;

(15) failing to provide information in a timely manner in
response to a request by the commissioner, commissioner's
designee, or the advisory council;

(16) being convicted within the past five years of
violating any laws of the United States, or any state or
territory of the United States, and the violation is a felony,
gross misdemeanor, or misdemeanor, an essential element of which
relates to hearing instrument dispensing, except as provided in
chapter 364;

(17) failing to cooperate with the commissioner, the
commissioner's designee, or the advisory council in any
investigation;

(18) failing to perform hearing instrument dispensing with
reasonable judgment, skill, or safety due to the use of alcohol
or drugs, or other physical or mental impairment;

(19) failing to fully disclose actions taken against the
applicant or the applicant's legal authorization to dispense
hearing instruments in this or another state;

(20) violating a state or federal court order or judgment,
including a conciliation court judgment, relating to the
activities of the applicant in hearing instrument dispensing;

(21) having been or being disciplined by the commissioner
of the Department of Health, or other authority, in this or
another jurisdiction, if any of the grounds for the discipline
are the same or substantially equivalent to those in sections
153A.13 to 153A.19;

(22) misrepresenting the purpose of hearing tests, or in
any way communicating that the hearing test or hearing test
protocol required by section 153A.14, subdivision 4b, is a
medical evaluation, a diagnostic hearing evaluation conducted by
an audiologist, or is other than a test to select a hearing
instrument, except that the hearing instrument dispenser can
determine the need for or recommend the consumer obtain a
medical evaluation consistent with requirements of the United
States Food and Drug Administration;

(23) violating any of the provisions of sections 153A.13 to
153A.19; and

(24) aiding or abetting another person in violating any of
the provisions of sections 153A.13 to 153A.19.

Sec. 12.

Minnesota Statutes 2004, section 153A.20,
subdivision 1, is amended to read:

Subdivision 1.

Membership.

The commissioner shall
appoint nine persons to a Hearing Instrument Dispenser Advisory
Council.

(a) The nine persons must include:

(1) three public members, as defined in section 214.02. At
least one of the public members shall be a hearing instrument
user and one of the public members shall be either a hearing
instrument user or an advocate of one; and

(2) three hearing instrument dispensers certified under
sections 153A.14 to 153A.20, each of whom is currently, and has
been for the five years immediately preceding their appointment,
engaged in hearing instrument dispensing in Minnesota and who
represent the occupation of hearing instrument dispensing and
who are not audiologists; and

(3) three audiologists deleted text begin who are certified hearing instrument
dispensers or are deleted text end licensed as audiologists under chapter 148.

(b) The factors the commissioner may consider when
appointing advisory council members include, but are not limited
to, professional affiliation, geographical location, and type of
practice.

(c) No two members of the advisory council shall be
employees of, or have binding contracts requiring sales
exclusively for, the same hearing instrument manufacturer or the
same employer.

Sec. 13. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin The revisor of statutes shall change references from
"sections 148.511 to 148.5196" to "sections 148.511 to 148.5198"
wherever they appear in Minnesota Statutes and Minnesota Rules.
new text end

Sec. 14. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 13 are effective August 1, 2005.
new text end