Minnesota Session Laws - 1993, Regular Session

  
    Laws of Minnesota 1993 

                        CHAPTER 201-S.F.No. 1101 
           An act relating to health-related occupations; 
          requiring hearing instrument dispensers to be 
          certified by the commissioner of health; requiring 
          holders of temporary hearing instrument dispensing 
          permits to be supervised by certified hearing 
          instrument dispensers; authorizing cease and desist 
          orders; providing for penalties; appropriating money; 
          amending Minnesota Statutes 1992, sections 153A.13, 
          subdivisions 4 and 5; 153A.14; 153A.15; and 153A.17; 
          proposing coding for new law in Minnesota Statutes, 
          chapter 214. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1992, section 153A.13, 
subdivision 4, is amended to read: 
    Subd. 4.  [HEARING INSTRUMENT SELLING DISPENSING.] "Hearing 
instrument selling dispensing" means fitting and selling hearing 
instruments, assisting the consumer in instrument selection, 
selling hearing instruments at retail, or testing human hearing 
in connection with these activities. 
    Sec. 2.  Minnesota Statutes 1992, section 153A.13, 
subdivision 5, is amended to read: 
    Subd. 5.  [SELLER DISPENSER OF HEARING INSTRUMENTS.] 
"Seller Dispenser of hearing instruments" means a natural person 
who engages in hearing instrument selling dispensing whether or 
not registered by the commissioner of health or licensed by an 
existing health-related board. 
    Sec. 3.  Minnesota Statutes 1992, section 153A.14, is 
amended to read: 
    153A.14 [REGULATION.] 
    Subdivision 1.  [APPLICATION FOR PERMIT CERTIFICATE.] 
A seller dispenser of hearing instruments shall apply to the 
commissioner for a permit certificate to sell dispense hearing 
instruments.  The commissioner shall provide applications 
for permits certificates.  At a minimum, the information that an 
applicant must provide includes the seller's dispenser's name, 
social security number, business address and phone number, 
employer, and information about the seller's dispenser's 
education, training, and experience in testing human hearing and 
fitting hearing instruments.  The commissioner may reject an 
application for a permit certificate if there is evidence of a 
violation or failure to comply with sections 153A.13 to 153A.15 
this chapter. 
    Subd. 2.  [ISSUANCE OF PERMIT CERTIFICATE.] The 
commissioner shall issue a permit certificate to each seller 
dispenser of hearing instruments who applies under subdivision 1 
if the commissioner determines that the applicant is in 
compliance with sections 153A.13 to 153A.15 this chapter, has 
passed an examination administered by the commissioner, and has 
paid the fee set by the commissioner.  A certificate must be 
renewed by November 1 of each year. 
    Subd. 3.  [NONTRANSFERABILITY OF PERMIT CERTIFICATE.] The 
permit cannot be A certificate may not be transferred.  
    Subd. 4.  [SALE DISPENSING OF HEARING INSTRUMENTS WITHOUT 
PERMIT CERTIFICATE.] Except as provided in subdivision 4a, it is 
unlawful for any person not holding a valid permit certificate 
to sell dispense a hearing instrument as defined in section 
153A.13, subdivision 3.  A person who sells dispenses a hearing 
instrument without the permit certificate required by this 
section is guilty of a gross misdemeanor.  For purposes of this 
chapter, a person is dispensing a hearing instrument if the 
person does, or offers to do, any of the activities described in 
section 153A.13, subdivision 4, or if the person advertises, 
holds out to the public, or otherwise represents that the person 
is authorized to dispense hearing instruments. 
    Subd. 4a.  [TRAINEES.] (a) A person who is not certified 
under this section may dispense hearing instruments as a trainee 
for a period not to exceed nine months if the person: 
    (1) is employed by and under the supervision or sponsorship 
of a certified dispenser meeting the requirements of this 
subdivision; and 
    (2) meets all requirements for certification except 
completion of the person's training and passage of the 
examination required by this section. 
    (b) A certified hearing instrument dispenser may not 
employ, sponsor, and supervise more than two trainees at the 
same time.  The certified dispenser is responsible for all 
actions or omissions of a trainee in connection with the 
dispensing of hearing instruments.  A certified dispenser may 
not employ, sponsor, or supervise a trainee if there are any 
commissioner, court, or other orders, currently in effect or 
issued within the last five years, that were issued with respect 
to an action or omission of a certified dispenser or a trainee 
under the certified dispenser's supervision. 
    Subd. 5.  [RULEMAKING AUTHORITY.] The commissioner shall 
adopt rules under chapter 14 to implement sections 153A.13 to 
153A.18 this chapter.  The rules must prescribe the form and 
content of the examination required by this section and must 
establish and prescribe the duties of a hearing instrument 
dispenser advisory council.  The commissioner may adopt rules 
requiring continuing education of certified hearing instrument 
dispensers. 
    Subd. 6.  [HEARING INSTRUMENTS TO COMPLY WITH FEDERAL AND 
STATE REQUIREMENTS.] The commissioner shall ensure that hearing 
instruments are sold dispensed in compliance with state 
requirements and the requirements of the United States Food and 
Drug Administration.  Failure to comply with state or federal 
regulations may be grounds for enforcement actions under section 
153A.15, subdivision 2. 
    Subd. 7.  [CONTESTED CASES.] The commissioner shall comply 
with the contested case procedures in chapter 14 when 
suspending, revoking, or refusing to issue a permit certificate 
under this section. 
    Subd. 8.  [CONTENT OF CONTRACTS.] Oral statements made by a 
hearing instrument dispenser 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. 
    Subd. 9.  [CONSUMER RIGHTS INFORMATION.] A hearing 
instrument dispenser shall 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.  A sales 
contract for a hearing instrument must note the receipt of the 
brochure by the buyer. 
    Subd. 10.  [LIABILITY FOR CONTRACTS.] Owners of entities in 
the business of dispensing hearing instruments, employers of 
persons who dispense hearing instruments, and sponsors and 
supervisors of trainees 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, sponsor, or 
supervisor of an agent, employee, or trainee and may impose any 
remedy provided for in this chapter. 
    Sec. 4.  Minnesota Statutes 1992, section 153A.15, is 
amended to read: 
    153A.15 [PROHIBITED ACTS; ENFORCEMENT; AND PENALTY.] 
    Subdivision 1.  [PROHIBITED ACTS.] The commissioner may 
reject an application for a permit certificate or may act under 
subdivision 2 against a seller dispenser of hearing instruments 
for failure to comply with sections 153A.13 to 153A.15 this 
chapter.  Failure to apply to the commissioner for a permit 
certificate, or supplying false or misleading information on the 
application for a permit certificate, is a ground for action 
under subdivision 2.  The following acts and conduct are also 
grounds for action under subdivision 2: 
    (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 seller dispenser or audiologist is in writing, is 
delivered to the consumer or potential consumer, and bears the 
following information in all capital letters of 12-point or 
larger bold-face type:  "THIS PRESCRIPTION OR RECOMMENDATION MAY 
BE FILLED BY, AND HEARING INSTRUMENTS MAY BE PURCHASED FROM, THE 
DISPENSER, AUDIOLOGIST, OR PHYSICIAN OF YOUR CHOICE."  A and 
unless the prescription or written recommendation must include 
includes, upon the authorization of the consumer or potential 
consumer, the audiogram upon which the prescription or 
recommendation is based if there has been a charge for the 
audiogram; 
    (2) representing through any advertising or communication 
to a consumer or potential consumer that a person's permit 
certification to sell dispense hearing instruments indicates 
state approval, or endorsement, or satisfaction of standards of 
training or skill; 
    (3) being disciplined through a revocation, suspension, 
restriction, or limitation by another state for conduct subject 
to action under subdivision 2 this chapter; 
    (4) presenting advertising that is false or misleading; 
    (5) providing the commissioner with false or misleading 
statements of credentials, training, or experience; 
    (6) 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; 
    (7) 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; 
    (8) 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; 
    (9) obtaining money, property, or services from a consumer 
through the use of undue influence, high pressure sales tactics, 
harassment, duress, deception, or fraud; or 
    (10) failing to comply with restrictions on sales of 
hearing aids in section 153A.19; 
    (11) performing the services of a certified hearing 
instrument dispenser in an incompetent or negligent manner; or 
    (12) failing to comply with the requirements of this 
chapter as an employer, supervisor, sponsor, or trainee. 
    Subd. 2.  [ENFORCEMENT ACTIONS.] When the commissioner 
finds that a seller dispenser of hearing instruments has 
violated one or more provisions of sections 153A.13 to 153A.15 
this chapter, the commissioner may do one or more of the 
following: 
    (1) deny or reject the application for a permit 
certificate; 
    (2) revoke the permit certificate; 
    (3) suspend the permit certificate; 
    (4) impose, for each violation, a civil penalty that 
deprives the seller dispenser of any economic advantage gained 
by the violation and that reimburses the department of health 
for costs of the investigation and proceeding resulting in 
disciplinary action, including the amount paid for services of 
the office of administrative hearings, the amount paid for 
services of the office of the attorney general, attorney fees, 
court reporters, witnesses, reproduction of records, advisory 
council members' per diem compensation, department staff time, 
and expenses incurred by advisory council members and department 
staff; and 
    (5) censure or reprimand the dispenser; 
    (6) revoke or suspend the right to sponsor trainees; 
    (7) impose a civil penalty not to exceed $10,000 for each 
separate violation; or 
    (8) any other action reasonably justified by the individual 
case. 
    Subd. 3.  [PROCEDURES.] The commissioner shall establish, 
in writing, internal operating procedures for receiving and 
investigating complaints and imposing enforcement actions.  The 
written internal operating procedures may include procedures for 
sharing complaint information with government agencies in this 
and other states.  Establishment of the operating procedures are 
not subject to rulemaking procedures under chapter 14.  
Procedures for sharing complaint information shall must be 
consistent with the requirements for handling government data 
under chapter 13. 
    Subd. 3a.  [DISCOVERY.] In all matters relating to the 
lawful regulation activities under this chapter, the 
commissioner may issue subpoenas to require the attendance and 
testimony of witnesses and production of books, records, 
correspondence, and other information relevant to any matter 
involved in the investigation.  The commissioner or the 
commissioner's designee may administer oaths to witnesses or 
take their affirmation.  The subpoenas A subpoena may be served 
upon any person named therein it names anywhere in the state by 
any person authorized to serve subpoenas or other processes in 
civil actions of the district courts.  If a person to whom a 
subpoena is issued does not comply with the subpoena, the 
commissioner may apply to the district court in any district and 
the court shall order the person to comply with the subpoena.  
Failure to obey the order of the court may be punished by the 
court as contempt of court.  All information pertaining to 
individual medical records obtained under this section shall be 
considered is health data under section 13.38. 
    Subd. 4.  [PENALTIES.] Except as provided in section 
153A.14, subdivision 4, a person violating sections 153A.13 to 
153A.15 this chapter is guilty of a misdemeanor.  The 
commissioner may impose an automatic civil penalty equal to 
one-fourth the renewal fee on each hearing instrument seller who 
fails to renew the permit certificate required in section 
153A.14 by the renewal deadline established by the commissioner 
in rule. 
    Sec. 5.  Minnesota Statutes 1992, section 153A.17, is 
amended to read: 
    153A.17 [EXPENSES.] 
    The expenses for administering the permit certification 
requirements including the complaint handling system for hearing 
aid sellers dispensers in sections 153A.14 and 153A.15 and the 
consumer information center under section 153A.18 must be paid 
from initial permit application and examination fees and, 
renewal fees, penalties, and fines.  The total fees collected 
must as closely as possible equal anticipated expenditures 
during the fiscal biennium as provided for in section 16A.128.  
The commissioner shall by rule, with the approval of the 
commissioner of finance, adjust any fee the commissioner is 
empowered to assess as provided for in section 16A.128.  The fee 
established must include a The certificate application fee is 
$280, the examination fee is $200, and the trainee application 
fee is $100, except that the certification application fee for a 
registered audiologist is $280 minus the audiologist 
registration fee of $101.  In addition, both certification and 
examination fees are subject to a surcharge amount necessary of 
$60 to recover, over a five-year period, the 
commissioner's accumulated direct expenditures for adoption of 
the rules administering the requirements of this chapter, but 
not registration of hearing instrument dispensers under section 
214.13, before November 1, 1994.  All fees, penalties, and fines 
received must be deposited in the state government special 
revenue fund. 
    Sec. 6.  [214.131] [COMMISSIONER CEASE AND DESIST AUTHORITY 
AND PENALTY FOR VIOLATION.] 
    Subdivision 1.  [CEASE AND DESIST ORDER.] The commissioner 
of health may issue a cease and desist order to stop a person 
from engaging in an unauthorized practice or violating or 
threatening to violate a statute, rule, or order that the 
commissioner of health has issued or is empowered to enforce.  
The cease and desist order must state the reason for its 
issuance and give notice of the person's right to request a 
hearing under sections 14.57 to 14.62.  If, within 15 days after 
service of the order, the subject of the order fails to request 
a hearing in writing, the cease and desist order becomes final. 
    A hearing must be initiated by the commissioner of health 
not later than 30 days after the date the commissioner receives 
a written hearing request.  Within 30 days after receiving the 
administrative law judge's report, the commissioner of health 
shall issue a final order modifying, vacating, or making 
permanent the cease and desist order as the facts require.  The 
final order remains in effect until modified or vacated by the 
commissioner of health. 
    When a request for a stay accompanies a timely hearing 
request, the commissioner of health may grant the stay.  If the 
commissioner does not grant a requested stay, the commissioner 
shall refer the request to the office of administrative hearings 
within three work days after receiving the request.  Within ten 
days after receiving the request from the commissioner of 
health, an administrative law judge shall issue a recommendation 
to grant or deny the stay.  The commissioner of health shall 
grant or deny the stay within five work days after receiving the 
administrative law judge's recommendation. 
    In the event of noncompliance with a cease and desist 
order, the commissioner of health may institute a proceeding in 
a district court to obtain injunctive relief or other 
appropriate relief, including a civil penalty payable to the 
commissioner of health not exceeding $10,000 for each separate 
violation. 
    Subd. 2.  [CIVIL PENALTY.] When the commissioner of health 
finds that a person has violated one or more provisions of any 
statute, rule, or order that the commissioner of health is 
empowered to regulate, enforce, or issue, the commissioner of 
health may impose, for each violation, a civil penalty that 
deprives the person of any economic advantage gained by the 
violation, or that reimburses the department of health for costs 
of the investigation and proceeding, or both. 
    Subd. 3.  [INJUNCTIVE RELIEF.] In addition to any other 
remedy provided by law, the commissioner of health may bring an 
action in district court for injunctive relief to restrain any 
unauthorized practice or violation of any statute, rule, or 
order that the commissioner of health is empowered to regulate, 
enforce, or issue.  A temporary restraining order may be granted 
in the proceeding if continued activity by a person would create 
a serious risk of harm to others. 
    Subd. 4.  [ADDITIONAL POWERS.] The issuance of a cease and 
desist order or injunctive relief granted under this section 
does not relieve a person from criminal prosecution by any 
competent authority or from disciplinary action by the 
commissioner of health.  Any violation of any order of the 
commissioner is a misdemeanor. 
    Sec. 7.  [RULES.] 
    Until the commissioner adopts rules required by this act 
for the administration of the hearing instrument dispenser 
certification program, the commissioner shall apply Minnesota 
Rules, chapter 4692, to govern commissioner action on permits; 
Minnesota Rules, part 4745.0025, to govern requirements for 
certification, examination of applicants, and certification by 
reciprocity; Minnesota Rules, chapter 4745, to govern 
commissioner action on certificates and additional grounds for 
disciplinary action; and Minnesota Rules, part 4745.0060, to 
establish the membership and responsibilities of the hearing 
instrument dispenser advisory council. 
    Sec. 8.  [TRANSFER OF POWERS AND DUTIES.] 
    Actions prohibited under Minnesota Statutes, section 
153A.15, occurring before the effective date of this act may be 
investigated by the commissioner and enforcement actions taken 
under the continuing authority of Minnesota Statutes, chapter 
153A.  Disciplinary actions and other orders of the commissioner 
issued before the effective date of this act to govern the 
conduct of persons or entities subject to Minnesota Statutes, 
chapter 153A, continue in effect after the effective date of 
this act. 
    Sec. 9.  [TRANSITION PERIOD.] 
    Notwithstanding section 3, subdivision 2, a person who, by 
exam or reciprocity, is a registered hearing instrument 
dispenser on the effective date of this act is entitled to 
certification without examination.  Between the effective date 
of this act and November 1, 1994, no current registrations of 
hearing instrument dispensers may be renewed and no new 
registrations issued, but hearing instrument dispenser permits 
must be renewed to applicants for renewal who meet the 
requirements in effect at the time their previous permit was 
issued.  During that period, the fee for a permit and the fee 
for a certificate is the amount set for a certificate 
application in section 5, except that the commissioner shall 
prorate the fee for first-time applicants for certification 
according to the number of months that have elapsed since the 
date the applicant's permit was issued and the date 
certification must be renewed under section 3.  Notwithstanding 
section 3, subdivision 4, a person holding a valid hearing 
instrument dispenser permit may continue to dispense hearing 
instruments without a certificate until November 1, 1994, but 
may not use the title "certified hearing instrument dispenser" 
or in any other way hold to the public that the person is 
certified. 
     Sec. 10.  [APPROPRIATION.] 
    $45,000 is appropriated in fiscal year 1994 and $49,000 is 
appropriated in fiscal year 1995 to the commissioner of health 
from the state government special revenue fund. 
    Sec. 11.  [EFFECTIVE DATE.] 
    Sections 1 to 9 are effective July 1, 1993. 
    Presented to the governor May 12, 1993 
    Signed by the governor May 14, 1993, 3:45 p.m.