2006 Minnesota Statutes

153A.15 PROHIBITED ACTS; ENFORCEMENT; AND PENALTY.
    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) dispensing a hearing instrument to a minor person 18 years or younger unless evaluated
by an audiologist for hearing evaluation and hearing aid evaluation;
(2) being disciplined through a revocation, suspension, restriction, or limitation by another
state for conduct subject to action under this chapter;
(3) presenting advertising that is false or misleading;
(4) providing the commissioner with false or misleading statements of credentials, training,
or experience;
(5) 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;
(6) 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;
(7) 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;
(8) obtaining money, property, or services from a consumer through the use of undue
influence, high pressure sales tactics, harassment, duress, deception, or fraud;
(9) performing the services of a certified hearing instrument dispenser in an incompetent
or negligent manner;
(10) failing to comply with the requirements of this chapter as an employer, supervisor,
or trainee;
(11) failing to provide information in a timely manner in response to a request by the
commissioner, commissioner's designee, or the advisory council;
(12) 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;
(13) failing to cooperate with the commissioner, the commissioner's designee, or the advisory
council in any investigation;
(14) 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;
(15) failing to fully disclose actions taken against the applicant or the applicant's legal
authorization to dispense hearing instruments in this or another state;
(16) 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;
(17) 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;
(18) 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;
(19) violating any of the provisions of sections 148.5195, subdivision 3, clause (20);
148.5197; 148.5198; and 153A.13 to 153A.18; and
(20) aiding or abetting another person in violating any of the provisions of sections 148.5195,
subdivision 3 , clause (20); 148.5197; 148.5198; and 153A.13 to 153A.18.
    Subd. 2. Enforcement actions. When the commissioner finds that a dispenser of hearing
instruments has violated one or more provisions of this chapter, the commissioner may do one
or more of the following:
(1) deny or reject the application for a certificate;
(2) revoke the certificate;
(3) suspend the certificate;
(4) impose, for each violation, a civil penalty that deprives the 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;
(5) censure or reprimand the dispenser;
(6) revoke or suspend the right to supervise trainees;
(7) revoke or suspend the right to be a trainee;
(8) impose a civil penalty not to exceed $10,000 for each separate violation; or
(9) any other action reasonably justified by the individual case.
    Subd. 2a. Hearings. If the commissioner proposes to take action against the dispenser as
described in subdivision 2, the commissioner must first notify the person against whom the action
is proposed to be taken and provide the person with an opportunity to request a hearing under the
contested case provisions of chapter 14. If the person does not request a hearing by notifying the
commissioner within 30 days after service of the notice of the proposed action, the commissioner
may proceed with the action without a hearing.
    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. Procedures for sharing complaint information
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. A subpoena may be served upon any
person 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 is health data under section 13.3805, subdivision 1.
    Subd. 4. Penalties. Except as provided in section 153A.14, subdivision 4, a person violating
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
certificate required in section 153A.14 by the renewal deadline.
    Subd. 5. Authority to contract. The commissioner shall contract with the health
professionals services program as authorized by sections 214.31 to 214.37 to provide these
services to practitioners under this chapter. The health professionals services program does not
affect the commissioner's authority to discipline violations of this chapter.
History: 1988 c 689 art 2 s 57; 1989 c 282 art 2 s 47; 1991 c 202 s 10,11,41; 1992 c 464 art
2 s 1; 1993 c 201 s 4; 1995 c 164 s 26,27; 1997 c 187 art 2 s 7; 1998 c 317 s 25,26; 1999 c 227 s
22; 2000 c 460 s 61; 2005 c 147 art 7 s 17; 2006 c 267 art 2 s 17