PRINTER'S NO. 1291
No. 1123 Session of 1975
INTRODUCED BY DeMEDIO, FISHER, MANDERINO, ENGLEHART, BERSON,
A. P. KELLY, BENNETT, BRUNNER, LAUDADIO AND LEVI,
APRIL 28, 1975
REFERRED TO COMMITTEE ON CONSUMER PROTECTION, APRIL 29, 1975
AN ACT
1 Relating to the dispensing and sale of hearing aids, providing
2 for the registration and regulation of hearing aid
3 dispensers, making certain acts illegal, and prescribing
4 penalties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 ARTICLE I
8 Short Title, Purpose, Application, Definitions
9 Section 101. Short Title.--This act shall be known and may
10 be cited as the "Pennsylvania Hearing Aid Sales Registration
11 Law."
12 Section 102. Purpose.--In recognition of the technical
13 nature of fitting and dispensing proper hearing aids to hearing
14 impaired individuals, their exists a decided need for powerful
15 and effective control over the hearing aid sales industry.
16 Section 103. Application.--(a) Except as hereinafter
17 provided, it shall be unlawful for any person to engage in the
18 sale of or practice of fitting hearing aids or display a sign or
1 in any other way to advertise, represent or hold himself out as
2 a hearing aid dealer or fitter, unless he shall first have
3 registered pursuant to the provisions of this act.
4 (b) Nothing in this act shall prohibit any person from
5 maintaining an established business address or from engaging in
6 the business of selling or offering for sale hearing aids to the
7 users thereof without being registered: Provided, That said
8 person employs only persons registered under this act as hearing
9 aid dealers and fitters in the direct sale and fitting of such
10 products. Such persons shall file annually with the department a
11 list of all registered hearing aid dealers and fitters directly
12 or indirectly employed by him.
13 (c) Prior law exclusively governs all suits, actions,
14 prosecutions or proceedings which are pending or may be
15 initiated on the basis of facts or circumstances occurring
16 before the effective date of this act.
17 Section 104. Definitions.--As used in this act:
18 "Advertise," and any of its variants, means the use of a
19 newspaper, magazine or other publication, book, notice,
20 circular, pamphlet, letter, handbill, poster, sign, placard,
21 card, label, tag, window display, store sign, radio, television
22 announcement, or any other means or methods now or hereafter
23 employed to bring to the attention of the public the practice of
24 fitting and sale of hearing aids.
25 "Audiologist" means a person holding the Certificate of
26 Clinical Competence in Audiology awarded by the American Speech
27 and Hearing Association or one who can provide evidence of
28 having successfully completed equivalent academic training and
29 clinical experience.
30 "Board" means The Board of Examiners of Hearing Air
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1 Dispensers in the Department of State.
2 "Conviction" means a plea, verdict of guilty, or a conviction
3 following a plea of nolo contendere, made to a charge of a crime
4 involving moral turpitude.
5 "Hearing aid" means any wearable instrument or device
6 designed for or offered for the purpose of aiding or
7 compensating for impaired human hearing.
8 "Person" means any individual, partnership, corporation, or
9 other organization or any combination thereof.
10 "Practice of fitting and selling hearing aids" means those
11 practices used solely for the purpose of making selections,
12 adaptations and sale of hearing aids.
13 "Registrant" means a person holding a certificate of
14 registration.
15 "Registration certificate" includes a temporary or apprentice
16 registration certificate.
17 ARTICLE II
18 Duties of Board of Examiners of Hearing Aid Dispensers
19 Section 201. Examinations.--The board shall prepare,
20 approve, grade and conduct examinations of applicants for a
21 hearing aid dispenser's certificate of registration. The board
22 may provide that the preparation and grading of the examination
23 be conducted by a competent person or organization other than
24 the department: Provided, however, That the board shall
25 establish the guidelines for the examination, and shall approve
26 the actual examination.
27 Section 202. Records.--The board shall keep a record of all
28 prosecutions for violations of this act, and of all examinations
29 held for applicants for a registration certificate together with
30 the names and addresses of all persons taking examinations and
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1 of their success or failure to pass such examinations.
2 Section 203. Course of Instruction.--The board may recommend
3 the preparation of and administration by the State Department of
4 Education of a course of instruction concerned with the fitting
5 and selection of hearing aids. The department may require that
6 after 1977, applicants for a registration certificate shall
7 first complete the required course of instruction or otherwise
8 satisfy the department that the applicant possesses the
9 necessary background and qualifications to fit and sell hearing
10 aids.
11 Section 204. Publishing Information.--The board may publish
12 and distribute information concerning the examination
13 requirements for obtaining a registration certificate to engage
14 in the practice of fitting and selling hearing aids within this
15 Commonwealth.
16 Section 205. Rules and Regulations.--The board shall make
17 and promulgate rules and regulations as may be necessary to
18 enable it to carry into effect the provisions of this act.
19 Section 206. Administration of Act.--The Attorney General
20 may prosecute any and all persons guilty of violating any of the
21 provisions of this act or the rules and regulations thereunder.
22 The board may employ the personnel necessary to administer the
23 provisions of this act and may incur such other expenses as are
24 necessary for the administration of this act. Inspections or
25 investigations made pursuant to the provisions of this act shall
26 be made by personnel from the board, or by the Attorney General,
27 or by local law enforcement authorities.
28 ARTICLE III
29 Registration
30 Section 301. Applications.--Each person desiring to obtain a
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1 registration certificate from the board to engage in the
2 practice of fitting and selling hearing aids shall make
3 application to the board. The application shall be made upon a
4 form approved by the board and shall be made in such manner as
5 is provided by the board and shall be accompanied by the
6 appropriate fee.
7 Section 302. Applicant Qualifications.--The board may
8 require proof concerning the honesty, truthfulness and good
9 reputation of the applicant, and in addition, shall ascertain
10 that the applicant has a thorough knowledge of the following
11 areas demonstrated by passing a practical examination compiled
12 by the board:
13 (1) The anatomy and physiology of the ear.
14 (2) The function of hearing aids.
15 (3) The knowledge and understanding of the grounds for
16 revocation, suspension or probation of the registrant as
17 outlined in this act.
18 (4) The knowledge and understanding of criminal offenses as
19 outlined in this act.
20 (5) The procedures and use of equipment established by the
21 department for the fitting and selling of hearing aids.
22 (6) Taking ear mold impressions.
23 (7) Evidence of knowledge regarding the medical and
24 rehabilitation facilities for children and adults that are
25 available in the areas served.
26 (8) A knowledge of criteria for medical referral when found
27 to exist either from observation by the registrant or on the
28 basis of information furnished by the prospective hearing aid
29 user to include the following:
30 (i) Visible congenital or traumatic deformity of the ear.
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1 (ii) History of or active drainage of the ear within the
2 previous 90 days.
3 (iii) History of sudden or rapidly progressive hearing loss
4 within the previous 90 days.
5 (iv) Acute or chronic dizziness.
6 (v) Unilateral hearing loss of sudden or recent onset within
7 the previous 90 days.
8 (vi) Visible evidence of cerumen accumulation or a foreign
9 body in the ear canal.
10 Section 303. Time of Examination.--Examinations shall be
11 held by the board at least twice a year with such additional
12 examinations as the board may direct. The time and place of any
13 examination shall be fixed by the board at least 45 days prior
14 to the date it is to be held.
15 Section 304. Failure to Pass Examination.--No applicant
16 shall be eligible for a registration certificate who fails to
17 obtain an average predetermined by the board in every subject
18 upon which he is examined. In case any applicant fails to pass
19 an examination, he shall be examined at the next or any
20 succeeding examination, in compliance with this section only in
21 the subject area in which he failed to obtain an average as
22 determined by the board.
23 Section 305. Issuance of Registration Certificate.--The
24 board shall issue a registration certificate to all applicants
25 who have satisfied the requirements of this act and paid the
26 appropriate fees. No registration certificate shall be issued to
27 any person other than an individual.
28 Section 306. Temporary Registration Certificate.--(a) An
29 applicant who has fulfilled the requirements, has made
30 application, and proves to the satisfaction of the board that he
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1 has been engaged in the fitting and selling of hearing aids at
2 an established place of business in a state other than the
3 Commonwealth of Pennsylvania for a period of two years within a
4 five-year period immediately prior to his application, may have
5 a temporary registration certificate issued to him which shall
6 be valid and effective for a period ending 30 days after the
7 conclusion of a qualifying examination given not earlier than 90
8 days after the date of issue of such temporary registration
9 certificate, but not later than one year after the date of issue
10 of such temporary registration certificate.
11 (b) An applicant who has fulfilled the requirements of
12 section 301 and has made application therefor, and who proves to
13 the satisfaction of the board that he will be supervised and
14 trained by a person who holds a valid registration certificate
15 issued pursuant to the provisions of section 305 or subsection
16 (a) may have an apprentice registration certificate issued to
17 him which shall entitle him to be engaged, under such
18 supervision, in the fitting and selling of hearing aids for a
19 period of six months from the date of the commencement of his
20 employment or for a period ending 30 days after the conclusion
21 of a qualifying examination given not earlier than 150 days
22 after the date of issue of such temporary registration
23 certificate, whichever is later. Such temporary registration
24 certificate shall be effective and valid only while the
25 applicant remains in the employ of a person who holds a valid
26 registration certificate issued pursuant to the provisions of
27 section 305 or subsection (a). Such registrant shall be
28 responsible for the supervision and training of such applicant.
29 Section 307. Reciprocal Registration.--(a) Whenever the
30 board determines that another state or jurisdiction has
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1 requirements equivalent to or higher than those in effect
2 pursuant to this act and that such state or jurisdiction has a
3 program equivalent to or stricter than the program for
4 determining whether applicants to this act are qualified as a
5 hearing aid dealer or fitter, the board may issue certificates
6 of endorsement to applicants who hold current, unsuspended and
7 unrevoked certificates or licenses to fit and sell hearing aids
8 in such other state or jurisdiction. No such applicants for
9 certificate of endorsement shall be required to submit to or
10 undergo a qualifying examination or requirements other than the
11 payment of fees. The holder of a certificate of endorsement
12 shall be registered in the same manner as registrants. The fee
13 for an initial certificate of endorsement shall be the same as
14 the fee for an initial registration certificate. Fees, grounds
15 for renewal and procedures for the suspension and revocation of
16 certificates of endorsement shall be the same as for renewal,
17 suspension and revocation of a registration certificate. Such
18 reciprocity provision shall not, however, apply where the state
19 or jurisdiction of the individuals seeking such certificate of
20 endorsement does not extend like reciprocity to an individual
21 registered by this Commonwealth under this act.
22 (b) If a person who holds a temporary or apprentice
23 registration certificate issued under the provisions of this
24 section, takes and fails to pass the qualifying examination
25 referred to in this section, the board may renew the temporary
26 registration certificates for a period ending 30 days after the
27 conclusion of the next qualifying examination given after the
28 date of renewal. The board shall not issue more than two
29 renewals of such temporary registration certificate to any
30 applicant.
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1 Section 308. Persons Excluded from Registration.--(a) This
2 act does not apply to a person engaged in the practice of
3 fitting hearing aids if his practice is for a governmental
4 agency, or private clinic, or is part of the academic curriculum
5 of an accredited institution of higher education, or part of a
6 program conducted by a public, charitable institution or other
7 nonprofit organization, and who does not engage directly or
8 indirectly in the sale or offering for sale of hearing aids.
9 (b) This act does not apply nor affect any physician or
10 surgeon licensed under appropriate licensing laws, who does not
11 directly or indirectly engage in the sale or offering for sale
12 of hearing aids, nor to any audiologist or to an individual
13 supervised by such audiologist in conducting fitting procedures
14 and who does not directly or indirectly engage in the sale or
15 offering for sale of hearing aids.
16 Section 309. Fictitious Names.--Every person applying for a
17 registration certificate who desires to have a certificate
18 issued under a fictitious name shall file with his application
19 certified copies of the entry made in the register by the county
20 clerk, the Secretary of State, and the affidavit of publication
21 made pursuant to the provisions of the act of May 24, 1945
22 (P.L.380, No.163), relating to fictitious names, if such
23 applicant is an individual, proprietorship, partnership or
24 unincorporated association, or pursuant to the act of July 11,
25 1957 (P.L.783, No.347), known as the "Fictitious Corporate Name
26 Act," if such applicant is a corporation.
27 Section 310. Expiration Date.--Registration certificates
28 issued under this act expire at midnight on January 15 of each
29 year thereafter if not renewed. To renew an unexpired
30 registration certificate the registrant shall, before the time
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1 at which the certificate would otherwise expire, apply for
2 renewal on a form prescribed by the board and pay the renewal
3 fee prescribed by this act.
4 Section 311. Renewal of Registration Certificate.--Except as
5 otherwise provided in this act, an expired registration
6 certificate may be renewed at any time within five years after
7 its expiration on filing of an application for renewal on a form
8 prescribed by the board, and payment of the renewal fee in
9 effect on the last renewal date. If the registration certificate
10 is renewed more than 30 days after its expiration, the
11 registrant, as a condition precedent to renewal, shall also pay
12 the delinquency fee. Renewal under this section shall be
13 effective on the date on which the application is filed, on the
14 date on which the renewal fee is paid or whichever last occurs.
15 If so renewed, the registration certificate shall continue in
16 effect through the date provided in section 311 which next
17 occurs after the effective date of the renewal, when it shall
18 expire if it is not again renewed.
19 Section 312. No Registration Required Until Examinations
20 Administered.--In any case, no registration certificate will be
21 required under the provisions of this act until such time as the
22 board has prepared and administered the examination required by
23 this act on at least three occasions separated by at least a
24 six-month period.
25 Section 313. Expiration of Suspended Registration
26 Certificate.--A registration certificate which has been
27 suspended is subject to expiration and shall be renewed as
28 provided in this act, but such renewal does not entitle the
29 holder of the registration certificate while it remains
30 suspended and until it is reinstated, to engage in the fitting
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1 and selling of hearing aids, or in any other activity or conduct
2 in violation of the order or judgment by which the registration
3 certificate was suspended. A registration certificate which has
4 been revoked is subject to expiration, but it may not be
5 renewed. If it is reinstated after its expiration, the
6 registrant as a condition precedent to its reinstatement, shall
7 pay a reinstatement fee in an amount equal to the renewal fee in
8 effect on the last regular renewal date before the date on which
9 it is reinstated, plus the delinquency fee, if any, accrued at
10 the time of its revocation.
11 Section 314. Failure to Renew.--A registration certificate
12 which is not renewed within five years after its expiration may
13 not be renewed, restored, reissued, or reinstated.
14 Section 315. Fees and Penalties.--The amount of fees and
15 penalties prescribed by this act are those fixed in the
16 following schedule:
17 (1) The fee for applicants applying for the first time for a
18 registration certificate is $100 which shall not be refunded,
19 except to applicants who are found to be ineligible to take an
20 examination for a registration certificate; those applicants are
21 entitled to a refund of $75.
22 (2) The fee for an employee-applicant for an apprentice
23 registration certificate is $25. The additional fee for such
24 employee-applicant upon taking the qualifying examination, is
25 $75.
26 (3) The fee for applicants for a registration certificate
27 who have failed a previous examination is $25 for each
28 succeeding examination.
29 (4) The fee for renewal of a registration certificate is $50
30 for each renewal.
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1 (5) The initial registration certificate fee is $100, unless
2 the initial registration certificate is issued on or after July
3 15 of any year. If it is issued on or after July 15, the initial
4 registration certificate fee is $50.
5 (6) The delinquency fee is $25.
6 (7) The fee for issuance of a duplicate registration
7 certificate for a branch office, or upon loss of an original
8 registration certificate or upon change of name authorized by
9 law of a person holding a registration certificate is $5.
10 ARTICLE IV
11 Duties of Registrants
12 Section 401. Address of Registrant.--Before engaging in the
13 practice of fitting and selling hearing aids, each registrant
14 shall notify the board in writing of the address or addresses
15 where he is to engage, or intends to engage in the fitting and
16 selling of hearing aids, and, also, of any changes in his place
17 of business. Any notice required to be given by the board to a
18 registrant may be given by United States mail to such address,
19 postage thereon prepaid.
20 Section 402. Display of Certificate.--Each holder of a
21 registration certificate shall keep it conspicuously posted in
22 his office or place of business at all times.
23 Section 403. Branch Offices; Duplicate Certificates.--If a
24 registrant maintains more than one place of business within this
25 State, he shall apply for and procure a duplicate registration
26 certificate for each branch office so maintained by him. Such
27 application shall state the name of the person and the location
28 of the place or places of business for which such duplicate
29 registration certificate is desired.
30 Section 404. Receipt to Purchasers.--A registrant shall,
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1 upon the consummation of a sale of a hearing aid, deliver to the
2 purchaser a written receipt, signed by or on behalf of the
3 registrant, containing all of the following:
4 (1) The date of consummation of the sale.
5 (2) Specifications as to the make, serial number, and model
6 name or number of the hearing aid or aids sold.
7 (3) The address of the principal place of business of the
8 registrant.
9 (4) A statement to the effect that the aid or aids delivered
10 to the purchaser are used or reconditioned, as the case may be,
11 if that is the fact.
12 (5) The number of the registrant's registration certificate.
13 (6) The terms of any guarantee or express warranty, if any,
14 made to the purchaser with respect to such hearing aid or
15 hearing aids.
16 (7) Such receipt shall bear, or have attached to it in no
17 smaller than ten point type the following:
18 "The purchaser has been advised at the outset of his
19 relationship with the hearing aid dealer that any examination
20 or representation made by a registered hearing aid dealer and
21 fitter in connection with the practice of fitting and selling
22 of this hearing aid, is not an examination, diagnosis, or
23 prescription by a person licensed to practice medicine in
24 this State or by a certified audiologist and therefore must
25 not be regarded as medical opinion or professional advice."
26 Section 405. Referral to Physician.--Whenever any of the
27 following conditions are found to exist either from observations
28 by the registrant or on the basis of information furnished by
29 the prospective hearing aid user, a registrant shall, prior to
30 fitting and selling a hearing aid to any individual, suggest to
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1 that individual in writing that his best interests would be
2 served if he would consult a licensed physician specializing in
3 diseases of the ear, or if no such licensed physician is
4 available in the community, then to a duly licensed physician:
5 (1) Visible congenital or traumatic deformity of the ear.
6 (2) History of or active drainage from the ear within the
7 previous 90 days.
8 (3) History of sudden or rapidly progressive hearing loss
9 within the previous 90 days.
10 (4) Acute or chronic dizziness.
11 (5) Unilateral hearing loss of sudden or recent onset within
12 the previous 90 days.
13 (6) Visible evidence of cerumen accumulation or a foreign
14 body in the ear canal.
15 (7) Discrimination impairment exceeding criteria when such
16 criteria are recommended by the department and promulgated by
17 the secretary.
18 Section 406. Sale to Minors.--No hearing aid shall be sold
19 by an individual registered under this act to a person 16 years
20 of age or younger, unless within the proceeding six months a
21 recommendation for a hearing aid has been made by both a
22 physician specializing in otolaryngology and by an audiologist.
23 A replacement of an identical hearing aid within six months
24 shall be an exception to this requirement.
25 Section 407. Records.--A registrant shall, upon the
26 consummation of a sale of a hearing aid, keep and maintain
27 records in his office or place of business at all times and each
28 such record shall be kept and maintained for a seven-year
29 period. These records shall include:
30 (1) Results of test techniques as they pertain to fitting of
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1 the hearing aid.
2 (2) A copy of the written receipt required by section 404
3 and the written recommendation and receipt required by section
4 405 when applicable.
5 ARTICLE V
6 Suspension, Revocation, Penalties, Injunction
7 Section 501. Causes for Denial, Suspension or Revocation of
8 Certificate.--The board may deny, suspend, or revoke a
9 registration certificate or impose conditions of probation upon
10 a registrant for any of the following causes:
11 (1) Gross incompetency which includes, but is not limited
12 to, the improper or unnecessary fitting of a hearing aid.
13 (2) Conviction of any felony or misdemeanor involving moral
14 turpitude.
15 (3) Obtaining a registration certificate by fraud or deceit.
16 (4) Use of the term "doctor" or "physician" or "clinic" or
17 "audiologist" or any derivation thereof, as part of the firm
18 name under which the registrant fits and sells hearing aids,
19 unless authorized by law.
20 (5) Fraud or misrepresentation in the repair, fitting or
21 selling of a hearing aid.
22 (6) The employment, to perform any act covered by the
23 provisions of this act, or any person whose registration
24 certificate has been suspended or who does not possess a valid
25 registration certificate issued under this act.
26 (7) Habitual intemperance.
27 (8) Gross immorality.
28 (9) Permitting another to use his or her registration
29 certificate for any purpose.
30 (10) Violate any provision of this act or any rules or
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1 regulations duly promulgated under this act.
2 (11) Any cause which would be grounds for denial of an
3 application for a registration certificate.
4 (12) Be enjoined from violating any provision of the act of
5 December 17, 1968 (P.L.1224, No.387), known as the "Unfair Trade
6 Practices and Consumer Protection Law," or be subject to a final
7 order of the Federal Trade Commission, the Pennsylvania
8 Department of Health, or the Food and Drug Administration of the
9 United States Department of Health, Education and Welfare
10 concerning the sale or offering for sale of unsafe, unhealthful
11 or worthless hearing devices or for engaging in conduct which
12 has the tendency to mislead or deceive.
13 Section 502. Notice of Denial.--Upon denial of an
14 application for a registration certificate, the board shall
15 notify the applicant in writing, stating:
16 (1) The reason for the denial.
17 (2) That the applicant has a right to a hearing if he makes
18 written request therefore within 60 days after notice of denial.
19 Service of the notice required by this section may be made by
20 certified mail addressed to the applicant at the latest address
21 filed by the applicant in writing with the board in the
22 application or otherwise.
23 Section 503. Investigations and Proceedings.--The board or
24 the Attorney General shall initiate any disciplinary
25 investigations and proceedings for violation of this act and the
26 board shall suspend, revoke, or impose probationary conditions
27 upon any registrant violating this act.
28 Section 504. Additional Examination.--Before setting aside
29 the revocation or suspension of any registrant, the board may
30 require the applicant to pass the regular examination given for
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1 applicants for registration certificates.
2 Section 505. Unlawful Acts.--It is unlawful:
3 (1) To sell or barter, or offer to sell or barter any
4 registration certificate issued by the board.
5 (2) To purchase or procure by barter any registration
6 certificate issued by the board with intent to use the same as
7 evidence of the holder's qualification to practice the fitting
8 and selling of hearing aids.
9 (3) To alter with fraudulent intent in any material
10 regarding a registration certificate issued by the board.
11 (4) To use or attempt to use any registration certificate
12 issued by the board which has been purchased, fraudulently
13 issued, counterfeited, or materially altered as a valid
14 registration certificate.
15 (5) To engage in the practice of fitting and selling hearing
16 aids under a false or assumed name except as provided in section
17 309.
18 (6) To willfully make any false statement in a material
19 regard in an application for an examination before the board for
20 a registration certificate.
21 (7) To engage in the practice of fitting and selling hearing
22 aids in this Commonwealth without having at the time of so doing
23 a valid unrevoked and unexpired registration certificate or
24 temporary registration certificate.
25 (8) To advertise by displaying a sign or otherwise or hold
26 oneself out to be a person engaged in the practice of fitting
27 and selling hearing aids without having at the time of so doing
28 a valid, unrevoked registration certificate.
29 Section 506. Penalty.--Any person who violates any of the
30 provisions of this act is guilty of a misdemeanor of the third
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1 degree and, upon conviction thereof, shall be punished by
2 imprisonment for not more than one year, or to pay a fine of not
3 more than $2,500 or both.
4 Section 507. Injunctions.--In addition to other proceedings
5 provided for in this act, whenever any person has engaged, or is
6 about to engage in any acts or practices which constitute an
7 offense against this act, the court of common pleas for the
8 county wherein the acts or practices take place or are about to
9 take place, or the Commonwealth Court of Pennsylvania, may issue
10 an injunction or other appropriate order, restraining such
11 conduct on application of the board, the Attorney General, or
12 the district attorney of the county.
13 ARTICLE VI
14 Date of Application; Effective Date
15 Section 601. Date of Application.--Notwithstanding any other
16 provision of this act, persons subject to this act shall have a
17 period of 2 years from the effective date hereof in which to
18 comply with this act; and, no disciplinary or penal action shall
19 be taken against any person for a period of 2 years from the
20 effective date of this act.
21 Section 602. Effective Date.--The provisions of this act
22 shall take effect immediately.
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