H*3381 Session 109 (1991-1992)
H*3381(Rat #0348, Act #0312 of 1992) General Bill, By J.V. Gregory, Boan,
J. Brown, Kirsh, E.L. Nettles, P.E. Short and Wilkins
A Bill to amend Chapter 25, Title 40, Code of Laws of South Carolina, 1976,
relating to the Fitting and Selling of Hearing Aids Act, so as to change the
references to the practice of specializing in hearing aids act, revise
definitions and the powers and duties of the Department of Health and
Environmental Control, change the references to the Commission of Hearing Aid
Dealers and Fitters to the Commission of Hearing Aid Specialists and revise
related requirements, and revise the requirements for licenses, permits,
licensees, permittees, examination, education, fees, suspension, revocation,
and penalties, and provide for the licensing of audiologists; and to
reauthorize the existence of the Commission of Hearing Aid Specialists for six
years.-amended title
01/31/91 House Introduced and read first time HJ-452
01/31/91 House Referred to Committee on Labor, Commerce and
Industry HJ-453
02/07/91 House Recalled from Committee on Labor, Commerce and
Industry HJ-29
02/07/91 House Committed to Committee on Medical, Military,
Public and Municipal Affairs HJ-29
04/10/91 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs HJ-6
04/16/91 House Debate adjourned until Wednesday, April 17, 1991 HJ-16
04/17/91 House Debate adjourned until Thursday, April 18, 1991 HJ-41
04/18/91 House Amended HJ-14
04/18/91 House Objection by Rep. Quinn, Klapman, Vaughn,
Chamblee, Harrison, HJ-30
04/18/91 House Objection by Rep. Cooper & Gonzales HJ-30
04/24/91 House Objection withdrawn by Rep. Chamblee HJ-30
04/24/91 House Objection withdrawn by Rep. Cooper HJ-31
04/25/91 House Objection withdrawn by Rep. Gonzales HJ-79
05/08/91 House Amended HJ-56
05/08/91 House Read second time HJ-56
05/09/91 House Reconsider vote whereby read second time HJ-15
05/09/91 House Debate adjourned until Tuesday, May 14, 1991 HJ-21
05/14/91 House Amended HJ-13
05/14/91 House Read second time HJ-15
05/15/91 House Read third time and sent to Senate HJ-13
05/16/91 Senate Introduced and read first time SJ-19
05/16/91 Senate Referred to Committee on Medical Affairs SJ-19
03/10/92 Senate Committee report: Favorable with amendment
Medical Affairs SJ-13
03/17/92 Senate Amended SJ-16
03/17/92 Senate Read second time SJ-28
03/19/92 Senate Read third time and returned to House with
amendments SJ-23
03/25/92 House Concurred in Senate amendment and enrolled HJ-43
04/02/92 Ratified R 348
04/08/92 Signed By Governor
04/08/92 Effective date 04/08/92
04/08/92 Act No. 312
05/05/92 Copies available
(A312, R348, H3381)
AN ACT TO AMEND CHAPTER 25, TITLE 40, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
FITTING AND SELLING OF HEARING AIDS ACT, SO AS TO
CHANGE THE REFERENCES TO THE PRACTICE OF
SPECIALIZING IN HEARING AIDS ACT, REVISE
DEFINITIONS AND THE POWERS AND DUTIES OF THE
DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL, CHANGE THE REFERENCES TO THE
COMMISSION OF HEARING AID DEALERS AND FITTERS
TO THE COMMISSION OF HEARING AID SPECIALISTS
AND REVISE RELATED REQUIREMENTS, AND REVISE
THE REQUIREMENTS FOR LICENSES, PERMITS,
LICENSEES, PERMITTEES, EXAMINATION, EDUCATION,
FEES, SUSPENSION, REVOCATION, AND PENALTIES,
AND PROVIDE FOR THE LICENSING OF AUDIOLOGISTS;
AND TO REAUTHORIZE THE EXISTENCE OF THE
COMMISSION OF HEARING AID SPECIALISTS FOR SIX
YEARS.
Be it enacted by the General Assembly of the State of South
Carolina:
Fitting and selling of Hearing Aids Act revised
SECTION 1. Chapter 25, Title 40 of the 1976 Code is amended
to read:
"CHAPTER 25
The Practice of Specializing in
Hearing Aids
Section 40-25-10. This chapter may be cited as the `Practice of
Specializing in Hearing Aids Act'.
Section 40-25-20. As used in this chapter, unless the context
requires otherwise:
(1) `Department' means the Department of Health and
Environmental Control.
(2) `Commission' means the State Commission for Hearing
Aid Specialists.
(3) `License' means a license issued by the department under
this chapter to hearing aid specialists.
(4) `Temporary permit' means a permit issued while the
applicant is in training to become a licensed hearing aid
specialist.
(5) `Hearing aid' means an acceptable wearable instrument or
device designated or offered to aid or compensate for impaired
human hearing and parts, attachments, or accessories, including
earmold, but excluding batteries and cords.
(6) `Practice of specializing in hearing aids' means the
measurement of human hearing by an audiometer and by other
established means solely for fitting, making selections,
adaptations, or sale of hearing aids. It also includes the making of
impressions for earmolds.
(7) `Sell' or `sale' means the transfer of title or of the right to
use by lease, bailment, or other contract, excluding wholesale
transactions with distributors or specialists.
(8) `Hearing aid specialist' means an individual licensed under
this chapter to engage in the practice of specializing in hearing
aids.
(9) `Audiologist' means an individual licensed by the State
Board of Examiners in Speech Pathology and Audiology as an
audiologist.
(10) `Otolaryngologist' means a licensed physician
specializing in ear, nose, and throat.
Section 40-25-30. The powers and duties of the department
are to:
(1) authorize disbursements necessary to carry out this
chapter;
(2) supervise issuance of licenses `by experience' and
administer qualifying examinations to test the knowledge and
proficiency of applicants licensed by examination;
(3) register persons who apply to the department and are
qualified to engage in the practice of specializing in hearing
aids;
(4) purchase and maintain or rent audiometric equipment and
other facilities necessary to carry out the examination of
applicants;
(5) issue and renew licenses;
(6) suspend or revoke licenses or require that refunds be
made;
(7) designate the time and place for examining
applicants;
(8) enforce this chapter and appoint an equal number of
licensed hearing aid specialists and licensed audiologists who also
are licensed hearing aid specialists to conduct or supervise the
examination;
(9) promulgate and publish regulations not inconsistent with
the laws of this State and necessary to carry out this chapter,
including the establishment of licensing fees;
(10) appoint or employ subordinate employees;
(11) retain funds received for administration of the
program;
(12) require the periodic inspection of audiometric testing
equipment and carry out the periodic inspection of facilities of
persons who engage in the practice of specializing in hearing
aids.
Section 40-25-40. (A) A Commission of Hearing Aid
Specialists is established to guide, advise, and make
recommendations to the department.
(B)(1) Members of the commission must be residents of the
State. The commission consists of:
(a) four licensed hearing aid specialists, and each must be
a principal dealer of a different manufacturer's hearing aid;
(b) one otolaryngologist;
(c) one audiologist;
(d) one representative of the general public who is a user
of a hearing aid, is not associated with a hearing aid specialist or
manufacturer, and is not a member of the other groups or
professions required to be represented on the commission;
(e) the State Health Officer or his designee.
(2) Each hearing aid specialist on the commission must
have no less than five years experience under this chapter.
(C) Members of the commission in subsection (B)(1)(a)
through (d) must be appointed by the Governor with the advice
and consent of the Senate. Before appointing the member in
subsection (B)(1)(d) the Governor shall invite recommendations
from the South Carolina Hearing Aid Society, the Commission on
Aging, the Department of Consumer Affairs, the Department of
Education, the Department of Vocational Rehabilitation, the
Board of Commissioners of the School for the Deaf and the Blind,
and other agencies or organizations which might have knowledge
of qualified citizens to serve on the commission. The term of each
member is four years. Before a member's term expires the
Governor, with the advice and consent of the Senate, shall appoint
a successor to assume his duties at the expiration of the term. A
vacancy must be filled in the manner of the original appointment.
The members annually shall designate one member as chairman
and another as secretary. No member of the commission who has
served two or more full terms may be reappointed until at least
one year after the expiration of his most recent full term of
office.
(D) Commission members may receive per diem and mileage
provided by law for members of state boards, committees, and
commissions for each day actually spent in the duties of the
commission. No member may receive more than fifteen days per
diem in one fiscal year.
Section 40-25-50. The commission shall:
(1) advise the department in all matters relating to this
chapter;
(2) prepare the examinations required by this chapter for the
department;
(3) assist the department in carrying out this chapter;
(4) keep a record of its proceedings and a register of persons
licensed under this chapter;
(5) make a report each year to the Governor of all its official
acts during the preceding year;
(6) meet not less than once each year at a place, day, and hour
determined by the commission and meet at other times and places
requested by the department.
Section 40-25-60. (A) No person may engage in the practice
of specializing in hearing aids or display a sign or in another way
advertise or represent himself as a person who engages in the
practice of specializing in hearing aids after January 1, 1972,
unless he holds an unsuspended, unrevoked license issued by the
department under this chapter. The license number must be listed
in an advertisement or a representation. The license must be
posted conspicuously in his office or place of business. Duplicate
licenses must be issued by the department to valid license holders
operating more than one office without additional payment. A
license under this chapter confers upon the holder the right to
perform only those hearing tests necessary to select, fit, and sell
hearing aids.
(B) Nothing in this chapter prohibits a corporation,
partnership, trust, association, or like organization maintaining an
established business address from engaging in the business of
selling or offering for sale hearing aids at retail without a license,
if it employs only properly licensed natural persons in the direct
sale and fitting of the products.
Section 40-25-70. (A) A person who engages in the practice
of specializing in hearing aids shall deliver to a person supplied
with a hearing aid a receipt which contains the licensee's signature
and business address, the number of his license, specifications as
to the make and model of the hearing aid furnished, and full terms
of the sale clearly stated. If an aid which is not new is sold, the
receipt and its container must be marked clearly as `used' or
`reconditioned', whichever is applicable, with terms of guarantee,
if any.
(B) The purchaser must be advised at the outset of his
relationship with the hearing aid specialist that an examination or
a representation is not an examination, diagnosis, or prescription
by a person licensed to practice medicine in this State.
(C) A person engaged in the practice of specializing in hearing
aids shall comply with federal regulations, 21 CFR 801, or related
amendments to the regulations. He may not sell a hearing aid to a
prospective user under eighteen years of age unless he presents to
the dealer a written statement signed by a licensed physician
stating that the patient's hearing loss has been evaluated
medically, and the patient may be considered a candidate for a
hearing aid. This evaluation must have taken place within the
preceding six months.
Section 40-25-80. (A) This chapter does not:
(1) prevent a person from engaging in the practice of
measuring human hearing for the purpose of selection of hearing
aids if the person or organization employing him does not sell
hearing aids or their accessories except for earmolds used only for
audiologic evaluation;
(2) apply to a physician licensed to practice in South
Carolina;
(3) apply to an audiologist or another person while he is
engaged in the practice of recommending hearing aids if his
practice is part of the academic curriculum of an accredited
institution of higher education or part of a program conducted by
a public, charitable institution or nonprofit organization which
primarily is supported by voluntary contributions, if this
organization does not sell hearing aids or accessories.
(B) On the selling and fitting of hearing aids located in the
temples of glasses, licensees may not make facial measurements
or adapt, fit, or adjust lenses or frames under this chapter, except
for the replacement of temples by those incorporating hearing aid
components, unless legally qualified to do so under other South
Carolina statutes.
Section 40-25-90. For six months after January 1, 1972, an
applicant for a license must be issued one without examination if
the applicant:
(1) principally has been engaged as a hearing aid specialist for
at least two years within a period of five years immediately before
January 1, 1972;
(2) is a resident of South Carolina and is of good moral
character;
(3) is twenty-one years of age or older;
(4) is free of contagious or infectious disease.
Section 40-25-100. (A) The department shall register each
applicant without discrimination or examination who satisfactorily
passes the experience requirement in Section 40-25-90 or passes
an examination in Section 40-25-110 and upon the applicant's
payment of a fee set by the department through regulation shall
issue to the applicant a license signed by the department. The
license is effective for one year and expires one year after it is
issued.
(B) When the commission determines that another state or
jurisdiction has requirements equivalent to or higher than those in
effect pursuant to this chapter and that the state or jurisdiction has
a program equivalent to or stricter than the program for
determining whether applicants pursuant to this chapter are
qualified to dispense and fit hearing aids, the department may
issue certificates of endorsement to applicants who hold current
unsuspended and unrevoked certificates or licenses to fit and sell
hearing aids in the other state or jurisdiction if the applicant is
twenty-one years of age. Applicants for certificate of
endorsement are not required to submit to or undergo a qualifying
examination, other than the payment of fees pursuant to this
chapter. The holder of a certificate of endorsement must be
registered in the same manner as licensees. The fee for issuance of
a license based upon an initial certificate of endorsement is the
same as the fee for an initial license. Fees, grounds for renewal,
and procedures for the suspension and revocation of certificates of
endorsement and licenses are the same.
Section 40-25-110. (A) An applicant may obtain a license
by successfully passing a qualifying examination if he:
(1) is at least twenty-one years of age;
(2) has an education equivalent to a four-year course in an
accredited high school.
(B) An audiologist licensed under Chapter 67, Title 40 must be
issued a license upon application and payment of the fee provided
in Section 40-25-100 without written examination. Upon
presentation of a certificate of clinical competence in audiology or
a substantial equivalent, as determined by the State Board of
Examiners in Speech/Language Pathology and Audiology, an
audiologist also is exempt from a practical test.
(C) An applicant for license by examination shall appear at a
time, place, and before persons the department may designate to
be examined by means of written and practical tests in order to
demonstrate that he is qualified to engage in the practice of
specializing in hearing aids. The examination administered as
directed by the department constituting standards for licensing
must not be conducted so that college training is required to pass
the examination. Nothing in this examination may imply that the
applicant possess the degree of medical competence normally
expected of physicians. If an applicant fails the practical portion
of the examination, he may appeal to the commission.
(D) The department shall give examinations at least once a
year.
Section 40-25-120. (A) A person who fulfills the
requirements regarding age and education in Section 40-25-110
may obtain a temporary permit upon application to the
department. Previous experience or a waiting period is not
required to obtain a temporary permit.
(B) Upon receiving an application under this section
accompanied by a fee set by the department through regulation,
the department shall issue a temporary permit which entitles the
applicant to engage in the fitting and sale of hearing aids for one
year. A person holding a valid hearing aid specialist license shall
supervise and train the applicant, maintain adequate personal
contact, and make quarterly reports to the department about the
performance of the person holding the temporary permit.
(C) If a person who holds a temporary permit under this
section has not passed successfully the licensing examination
within one year from the date of issuance, the temporary permit,
may be renewed or the applicant may be permitted to reapply at a
later date.
Section 40-25-130. The qualifying examination in Section
40-25-110 must be designated to demonstrate the applicant's
adequate technical qualifications by:
(1) tests of knowledge in the following areas as they pertain to
the practice of specializing in hearing aids:
(a) basic physics of sound;
(b) anatomy and physiology of the ear;
(c) function of hearing aids;
(2) practical tests of proficiency in the following techniques as
they pertain to the fitting of hearing aids:
(a) pure tone audiometry, including air conduction testing
and bone conduction testing;
(b) live voice or recorded voice speech audiometry,
including speech reception threshold testing and speech
discrimination testing;
(c) masking when indicated;
(d) recording and evaluation of audiograms and speech
audiometry to determine proper selection and adaptation of a
hearing aid;
(e) taking earmold impressions.
Section 40-25-140. (A) A person who holds a license shall
notify the department in writing of the regular address of the place
where he engages or intends to engage in the practice of
specializing in hearing aids.
(B) The department shall keep a record of the place of
business of licensees.
(C) Notice required to be given by the department to a person
who holds a license must be mailed to him by certified mail at the
address of the last place of business of which he has notified the
department.
Section 40-25-150. (A) A person who engages in the
practice of specializing in hearing aids before the license
expiration date shall pay to the department a fee set by the
department through regulation for issuance or a renewal of his
license. The license must be posted conspicuously in his office or
place of business. Where more than one office is operated by the
licensee, duplicate licenses must be issued by the department for
posting in each location. A thirty-day grace period is allowed after
the license expiration date during which licenses may be renewed
on payment of a fee set by the department through regulation.
After expiration of the grace period, the department may renew
the certificates upon payment of a fee set by the department
through regulation. No person who applies for renewal whose
license has expired is required to submit to examination as a
condition to renewal, if the renewal application is made within
two years from the date of the expiration.
(B) A licensee or temporary permit holder shall maintain a
progressing level of professional competence by participation
during the previous year of licensing in educational programs
designed to keep the licensee informed of changes, current
practices, and developments pertaining to the fitting of hearing
aids and rehabilitation as appropriate to hearing aid use.
(C) The licensee annually shall submit to the commission
proof of having participated in a minimum of eight hours of
continuing education during the previous year of licensing. The
requirement may be fulfilled by attending and participating in
training activities approved by the commission and those
accredited by the International Hearing Society, unless
disapproved by the commission.
(D) A person or organization desiring to conduct continuing
education training programs shall submit the programs to the
commission for approval before presentation. The commission
shall develop procedures for submitting these requests and for
approving or disapproving them.
(E) Failure to complete the minimum educational
requirements results in a license suspension until the requirements
are met. The commission, upon sufficient cause shown by the
licensee, may allow the licensee to make up the necessary hours
during the next year of licensing. The make-up allowance does
not waive the full annual requirements for continued education.
Section 40-25-160. (A) A person wishing to make a
complaint against a licensee under this chapter shall file a written
complaint with the department within one year from the date of
the action upon which the complaint is based. If the department
determines the charges made in the complaint are sufficient to
warrant a hearing to determine whether the license issued under
this chapter must be suspended or revoked, it shall make an order
fixing a time and place for hearing and require the licensee
complained against to appear and defend against the complaint.
The order and copy of the complaint must be served upon the
licensee at least thirty days before the date set for hearing,
personally or by registered mail sent to the licensee's last known
address. Continuances or adjournment of hearing date must be
made if for good cause. At the hearing the licensee complained
against may be represented by counsel. The licensee complained
against and the department may compel the attendance of
witnesses by subpoenas issued by the department under its
seal.
(B) A person registered under this chapter may have his
license revoked or suspended for a fixed period or be required to
make a refund by the department for:
(1) conviction of a felony or misdemeanor involving
moral turpitude. The record of conviction or a certified copy,
certified by the clerk of court or by the judge in whose court the
conviction is had, is conclusive evidence of the conviction;
(2) procuring of license by fraud or deceit practiced upon
the department;
(3) unethical conduct, including, but not limited to:
(a) obtaining a fee or making a sale by fraud or
misrepresentation;
(b) knowingly employing directly or indirectly a
suspended or unregistered person to perform work covered by this
chapter;
(c) using or causing or promoting the use of advertising
matter, promotional literatures, or testimonial, guarantee,
warranty, label, brand, insignia, or other representation, however
disseminated or published, which is misleading, deceptive, or
untruthful;
(d) advertising a particular model or type of hearing aid
for sale when purchasers or prospective purchasers responding to
the advertisement cannot purchase the advertised model or type,
where it is established that the purpose of the advertisement is to
obtain prospects for the sale of a different model or type than that
advertised;
(e) representing that the service or advice of a person
licensed to practice medicine will be used or made available in the
selection, fitting, adjustment, maintenance, or repair of hearing
aids when that is not true or using the words `doctor' or `clinic' or
similar words, abbreviations, or symbols which tend to connote
the medical profession when the use is not the case. No hearing
aid specialist who is not a licensed audiologist may represent
himself as a licensed audiologist in the practice of selling hearing
aids;
(f) habitual intemperance;
(g) gross immorality;
(h) permitting another's use of a license;
(i) advertising a manufacturer's product or using a
manufacturer's name or trademark which implies a relationship
with the manufacturer that does not exist;
(j) directly or indirectly giving or offering to give or
permitting or causing to be given money or anything of value to a
person who advises another in a professional capacity as an
inducement to influence him or have him influence others to
purchase or contract to purchase products sold or offered for sale
by a hearing aid specialist;
(k) stating or implying that the use of a hearing aid will
restore or preserve hearing or prevent or retard progression of
hearing impairment;
(4) conducting business while suffering from a contagious
or infectious disease;
(5) engaging in the practice of specializing in hearing aids
under a false name or alias with fraudulent intent;
(6) selling a hearing aid to a person who has not been
given tests utilizing appropriate established procedures and
instrumentation in fitting of hearing aids, except in cases of
selling replacement hearing aids or where it is medically
impossible to conduct routine testing;
(7) gross incompetence or negligence in fitting and
selling hearing aids; or
(8) violating this chapter.
(C) If a refund must be made under this section, the
department may suspend the license of the person required to
make the refund until it is made.
Section 40-25-170. (A) The final order of the department in
proceedings for the suspension or revocation of certificates of
registration are subject to review by the circuit court of Richland
County, the county in which the registrant has his principal place
of business, or the county in which the books and records of the
department are kept. Other final orders of the department under
this chapter are subject to review in the same courts.
(B) Appeals to the circuit court must be upon the original
records before the department, and the court in its discretion may
affirm, reverse, or modify an order made by the department.
Section 40-25-180. No person may:
(1) sell, barter, or offer to sell or barter a license;
(2) purchase or procure by barter a license with intent to use it
as evidence of the holder's qualification to engage in the practice
of specializing in hearing aids;
(3) alter a license with fraudulent intent;
(4) use or attempt to use as a valid license a license which has
been purchased, fraudulently obtained, counterfeited, or
materially altered;
(5) wilfully make a false statement in an application for
license or application for renewal of license.
Section 40-25-190. A person violating this chapter is guilty
of a misdemeanor and, upon conviction, must be fined not more
than one hundred dollars or imprisoned not more than thirty
days."
Reauthorization
SECTION 2. In accordance with Section 1-20-60 of the 1976
Code, the existence of the State Commission of Hearing Aid
Specialists is reauthorized for six years.
Time effective
SECTION 3. This act takes effect upon approval by the
Governor.
Approved the 8th day of April, 1992. |