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TO AMEND TITLE 40, CHAPTER 25, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PRACTICE OF SPECIALIZING IN HEARING AIDS, SO AS TO CONFORM THIS CHAPTER TO THE STATUTORY, ORGANIZATIONAL, AND ADMINISTRATIVE FRAMEWORK ESTABLISHED FOR PROFESSIONAL AND OCCUPATIONAL BOARDS IN CHAPTER 1, TITLE 40, TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF HEARING AID SPECIALISTS, INCLUDING PROVIDING PENALTIES FOR VIOLATIONS, TO DEVOLVE THE POWERS, DUTIES, FUNCTIONS, AND RESPONSIBILITIES OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL REGARDING THE "PRACTICE OF SPECIALIZING IN HEARING AIDS ACT" PURSUANT TO CHAPTER 25, TITLE 40 UPON THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, AND TO PROVIDE THAT THE COMMISSION FOR HEARING AID SPECIALISTS SHALL ACT AS A PROFESSIONAL AND OCCUPATIONAL LICENSING BOARD FOR HEARING AID SPECIALISTS WITHIN THE DEPARTMENT OF LABOR, LICENSING AND REGULATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 25, Title 40 of the 1976 Code is amended to read:
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;
(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.
(13) appoint members of the commission and other individuals who are not audiologists to conduct and supervise the written and practical examinations;
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) five licensed hearing aid specialists, and each must be a principal dealer of a different manufacturer's hearing aid who are not audiologists;
(b) one otolaryngologist;
(c) 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;
(d) 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 or audiologist 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.
(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 literature, 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.
Section 40-25-5. Unless otherwise provided for in this chapter, Article 1, Chapter 1, Title 40 applies to hearing instrument specialists and fitters. However, if there is a conflict between this chapter and Article 1, Chapter 1, Title 40, the provisions of this chapter control.
Section 40-25-10. (A) There is created the Board of Examiners for Hearing Instrument Specialists and Fitters under the administration of the Department of Labor, Licensing and Regulation. The purpose of this board is to protect the public through the administration and enforcement of this chapter and regulations promulgated pursuant to this chapter regulating the practice of hearing instrument specialists and fitters.
(B) The Board of Examiners for Hearing Instrument Specialists and Fitters consists of five hearing instrument specialists, each of whom must have five years or more experience and hold a valid license issued pursuant to this chapter, one otolaryngologist licensed pursuant to Chapter 47, and one consumer member. Members must be appointed by the Governor with the advice and consent of the Senate. Nominations for appointment to the board may be submitted to the Governor from a group, individual, or association and must be considered in accordance with Section 40-1-45. Members shall serve terms of four years and until a successor has been appointed and qualifies. A member may not serve more than two consecutive terms. A vacancy on the board must be filled for the remainder of the unexpired term in the manner of the original appointment.
(C) The Governor may remove a member of the board in accordance with Section 1-3-240.
(D) A member of the board, before entering upon the discharge of the duties of the office, shall take and file with the Secretary of State, in writing, an oath to perform properly the duties of the office as a member of the board and to uphold the Constitution of this State and the United States.
Section 40-25-20. As used in this chapter:
(1) 'Audioprosthologist' means an individual licensed pursuant to this chapter who has completed the audioprosthology coursework and is currently certified by the National Institute for Hearing Instrument Studies.
(2) 'Board' means the Board of Examiners for Hearing Instrument Specialists and Fitters.
(3) 'Department' means the Department of Labor, Licensing and Regulation.
(4) 'Hearing Aid' means an acceptable wearable instrument or device designated or offered to aid or compensate for impaired human hearing, including parts, attachments, and accessories, which include earmold, cords, and batteries.
(5) 'Hearing Aid Fitter' means an individual licensed pursuant to this chapter to engage in practice only under the supervision of a licensed hearing instrument specialist or audiologist.
(6) 'Hearing Instrument Specialist' means an individual licensed pursuant to this chapter who is currently board certified by the National Board for Certification in Hearing Instrument Sciences.
(7) 'IHS' means the International Hearing Society.
(8) 'License' means a license issued by the board pursuant to this chapter to practice as a hearing instrument specialist or fitter.
(9) 'Specializing in hearing aids' means the measurement of human hearing by an audiometer and by other established means solely for fitting, selecting, adapting, programming, or selling hearing aids. It also includes making impressions for earmolds. However, a practitioner, at the request of a physician or related profession, may prepare audiograms for that professional's use.
(10) 'Temporary Permit' means a permit issued to an individual, which would allow a person in training or a person licensed in another jurisdiction to practice under the supervision of a licensed hearing instrument specialist or audiologist while completing the license requirements set forth by the board. The sponsoring party, hearing instrument specialist, or audiologist is liable pursuant to Chapter 25 and accompanying regulations for the actions of the temporary permit holder.
Section 40-25-30. A person may not specialize in hearing aids without a license issued in accordance with this chapter. A hearing aid fitter or temporary permit holder may practice only under the supervision of a hearing instrument specialist or audiologist. However, a person licensed, before enactment of this section, to dispense hearing aids in the State who provides proof of being certified as a hearing instrument specialist by the National Board for Certification-Hearing Instrument Sciences must be issued a license as a 'Hearing Instrument Specialist' without further examination. Other persons who are licensed before enactment of this section, must be issued a 'Hearing Aid Fitter' license and are authorized to operate unsupervised for five years, at which time those individuals must have become certified by the National Board for Certification-Hearing Instrument Sciences or must be supervised by a hearing instrument specialist or audiologist.
Section 40-25-50. (A) These fees must be assessed, collected, and adjusted on behalf of the board by the Department of Labor, Licensing and Regulation in accordance with this chapter and Section 40-1-50(D):
(1) biennial license renewal fee;
(2) annual fee, temporary permit;
(3) license examination fee, written;
(4) license examination fee, practical;
(5) reinstatement of license fee.
(B) All fees are nonrefundable.
(C) A check that is presented to the board as payment for a fee that the board is permitted to charge pursuant to this chapter, which is returned unpaid may be cause for denial of a license or for imposing a sanction authorized pursuant to this chapter or Section 40-1-120.
Section 40-25-60. (A) The board annually shall elect from among its members a chairman, vice-chairman, and other officers as the board determines necessary. The board shall adopt rules and procedures reasonably necessary for the performance of its duties and the governance of its operations and proceedings.
(B) The board shall meet quarterly to administer examinations and conduct business on behalf of the board and at other times upon the call of the chairman or a majority of the board.
(C) Three members of the board constitute a quorum; however, if there is a vacancy on the board, a majority of the members serving constitutes a quorum.
(D) Business conducted by the board must be by a positive majority vote. For purposes of this subsection, 'positive majority vote' means a majority vote of the entire membership of the board, reduced by any vacancies existing at the time.
(E) The board may have and use an official seal bearing the name of the board.
Section 40-25-70. In addition to the powers and duties enumerated in Sections 40-1-70 through 40-1-100, the board shall:
(1) regulate the issuance of hearing instrument specialist, hearing aid fitters licenses and temporary permits;
(2) promulgate regulations and establish policies and procedures necessary to carry out this chapter; and
(3) discipline licensees in a manner permitted by this chapter or pursuant to Sections 40-1-110 through 40-1-150.
Section 40-25-80. For the purpose of conducting an investigation or proceeding pursuant to this chapter, the board or a person designated by the board may subpoena witnesses, take evidence, and require the production of documents or records the board considers relevant to the inquiry.
Section 40-25-100. Restraining orders and cease and desist orders must be issued in accordance with Section 40-1-100.
Section 40-25-110. In addition to grounds for disciplinary action as set forth in Section 40-1-110 and in accordance with Section 40-25-120, the board may take disciplinary action against a licensee who:
(1) violates federal or state laws relating to the practice of specializing in hearing aids;
(2) violates a provision of this chapter or an order issued pursuant to this chapter or a regulation promulgated pursuant to this chapter;
(3) fraudulently or deceptively attempts to use, obtain, alter, sell, or barter a license;
(4) aids or abets a person who is not a licensed hearing instrument specialist or hearing aid fitter in illegally engaging in the practice of specializing in hearing aids within this State;
(5) participates in the fraudulent procurement or renewal of a license for himself or another person or allows another person to use his license;
(6) commits fraud or deceit in the practice of specializing in hearing aids including, but not limited to:
(a) using or promoting or causing the use of any misleading, deceiving, or untruthful advertising matter, promotional literature, testimonial guarantee, warranty, label, brand insignia, or other representation;
(b) wilfully making or filing a false report or record in the practice of specializing in hearing aids or in satisfying requirements of this chapter;
(c) submitting a false statement to collect a fee or obtaining a fee through fraud or misrepresentation;
(7) commits an act of dishonest, immoral, or unprofessional conduct while engaging in the practice of specializing in hearing aids including, but not limited to:
(a) engaging in illegal, incompetent, or negligent practice of specializing in hearing aids;
(b) providing professional services while mentally incompetent or under the influence of alcohol or drugs;
(c) promoting the sale of devices to a person who cannot reasonably be expected to benefit from the devices;
(8) is convicted of or pleads guilty or nolo contendere to a felony or violation of a federal, state, or local drug law;
(9) is disciplined by a licensing or disciplinary authority of another state, country, or nationally recognized professional organization or convicted of or disciplined by a court of any state or country for an act that would be grounds for disciplinary action pursuant to this section;
(10) violates the code of ethics promulgated in regulation by the board.
Section 40-25-115. (A) The board has jurisdiction over the actions of licensees and former licensees as provided for in Section 40-1-115.
(B)(1) Before dispensing a hearing aid, a licensee shall conduct a hearing measurement including:
(a) pure tone audiometry;
(b) speech audiometry;
(c) hearing aid evaluation.
(2) A licensee shall deliver a receipt to the person being supplied a hearing aid which contains the licensee's signature, business address, license number, specifications as to the make and model of the hearing aid being furnished, and full terms of the sale clearly stated. If no commercial office is located within the State, a clear statement to that effect must be made on the receipt. If the office is not open five days a week, the regular hours when licensed persons are present to provide service must be noted on the receipt. If an aid which is not new is sold, the receipt and the aid's container must be marked clearly as 'used' or 'reconditioned', whichever is applicable, with terms of the guarantee, if any.
(3) A licensee may not sell a hearing aid to a prospective user under eighteen years of age unless the patient presents to the licensee 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.
(4) A licensee shall advise a prospective user that an examination by a hearing instrument specialist is not an examination, diagnosis, or prescription by a physician licensed to practice medicine pursuant to Chapter 47.
Section 40-25-120. Upon a determination by the board that one or more of the grounds for discipline of a licensee exists, as provided for in Section 40-25-110 or 40-1-110, the board, in addition to the actions provided for in Section 40-1-120, may impose a fine of not more than one thousand dollars.
Section 40-25-130. The board may deny licensure to an applicant based on the grounds for which the board may take disciplinary action against a licensee.
Section 40-25-140. A license may be denied based on a person's prior criminal record only as provided for in Section 40-1-140.
Section 40-25-150. A licensee who is under investigation for any of the disciplinary grounds provided for in Section 40-25-110 or Section 40-1-110 voluntarily may surrender his license to the board in accordance with Section 40-1-150.
Section 40-25-160. A person aggrieved by an action of the board may seek review of the decision in accordance with Section 40-1-160.
Section 40-25-170. A person found in violation of this chapter or regulations promulgated pursuant to this chapter may be required to pay costs associated with the investigation and prosecution of the case in accordance with Section 40-1-170.
Section 40-25-180. Costs and fines imposed pursuant to this chapter must be paid in accordance with and are subject to the collection and enforcement provisions of Section 40-1-180.
Section 40-25-190. Communications made in connection with an investigation or hearing relevant to a complaint against a licensee are privileged as provided for in Section 40-1-190.
Section 40-25-200. A person who practices or offers to practice specializing in hearing aids in this State in violation of this chapter or a regulation promulgated pursuant to this chapter or who violates another provision of this chapter or a regulation promulgated pursuant to this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than six months, or both.
Section 40-25-210. In addition to initiating a criminal proceeding for a violation of this chapter, the board also may seek civil and injunctive relief pursuant to Section 40-1-210.
Section 40-25-220. (A) A license must be issued independently either as a hearing instrument specialist or hearing aid fitter.
(B) To be licensed by the board as a hearing instrument specialist an individual shall:
(1) hold a valid certificate of board certification from the National Board for Certification in Hearing Instrument Sciences;
(2) have an education equivalent to a four-year course in an accredited high school; and
(3) have passed an examination approved by the board.
(C) To be licensed by the board as a hearing aid fitter an individual shall:
(1) have on file with the board the name and address of a currently licensed hearing instrument specialist or audiologist who will be responsible for the supervision of the activities covered by the individual's hearing aid fitter license;
(2) have an education equivalent to a four-year course in an accredited high school; and
(3) have passed an examination approved by the board.
(D) To be issued a temporary permit by the board an individual must complete an application and pay the required fee. A temporary permit is valid for twelve months and may be renewed for twelve months at the discretion of the board. During the temporary permit period, the permit holder shall pass an examination approved by the board.
Section 40-25-230. An individual applying for a license as a hearing instrument specialist or a hearing aid fitter shall file a notarized application with the board; a renewal form is not required to be notarized. The appropriate fee and documentation of eligibility as prescribed by the board must accompany each application.
Section 40-25-240. (A) If an applicant satisfies the licensure requirements provided for in this chapter, the board shall issue a license to the applicant. A license is a personal right and not transferable, and the issuance of a license is evidence that the person is entitled to the rights and privileges of a hearing instrument specialist or hearing aid fitter while the license remains current and unrestricted. However, the license is the property of the State and, upon suspension or revocation, immediately must be returned to the board.
(B) A person licensed pursuant to this chapter shall display the document in a prominent and conspicuous place in the person's place of business or place of employment.
(C) Only a person licensed pursuant to this chapter may use the title 'Hearing Instrument Specialist' or 'Hearing Aid Fitter'.
(D) A duplicate license may be issued by the board upon payment of the fee provided for in Section 40-25-50.
Section 40-25-250. The board may issue a license to a person who holds a current unrestricted hearing instrument specialist license in another state if the standards for licensure in that state are at least the substantial equivalent to the licensing standards provided for in this chapter and the person satisfies other requirements the board may prescribe including, but not limited to, continuing education requirements.
Section 40-25-260. As a condition of license renewal, a hearing instrument specialist or hearing aid fitter must satisfactorily complete at least sixteen hours continuing education per license period. The requirement may be fulfilled by attending and participating in training activities approved by the board pursuant to regulations promulgated by the board.
Section 40-25-270. (A) A hearing instrument specialist license or hearing aid fitter license must be renewed biennially and expires on December thirty-first of the second year. A temporary permit expires twelve months from the date of issue and may, at the discretion of the board, be renewed for one twelve-month period.
(B) To renew a license the individual shall:
(1) pay a renewal fee as provided for in Section 40-25-50;
(2) submit evidence of compliance with continuing education requirements as provided for in Section 40-25-260.
(C) A license not renewed by December thirty-first is invalid and only may be reinstated upon receipt of a renewal application postmarked before February first and accompanied by the biennial license fee and the reinstatement fee.
Section 40-25-290. The Board of Examiners for Hearing Instrument Specialists and Hearing Aid Fitters may promulgate regulations setting forth a code of ethics for persons licensed by the board.
Section 40-25-300. This chapter does not apply to audiologists licensed pursuant to Chapter 67 or to physicians licensed pursuant to Chapter 47.
Section 40-25-350. If a provision of this chapter or the application of a provision to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."
SECTION 2. The powers, duties, functions, and responsibilities of the Department of Health and Environmental Control regarding the "Practice of Specializing in Hearing Aids Act" pursuant to Chapter 25, Title 40 of the 1976 Code are devolved upon the Department of Labor, Licensing and Regulation, and the Commission for Hearing Aid Specialists shall act as a professional and occupational licensing board for hearing aid specialists and fitters within the Department of Labor, Licensing and Regulation.
SECTION 3. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 4. This act takes effect October 31, 2005.
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