AS Title 8, Chapter 55: Hearing Aid Dealers

Chapter 55. Hearing Aid Dealers. Sec. 08.55.010. Qualifications for license. (a) The department shall issue a license to act as a hearing aid dealer to an individual who (1) is 18 years of age or older; (2) applies on a form provided by the department; (3) has a high school diploma or the equivalent; (4) has a business license issued under AS 43.70.020 ; (5) furnishes evidence satisfactory to the department that the individual has not engaged in conduct that is a ground for imposing disciplinary sanctions under AS 08.55.130 ; (6) submits with the application a statement disclosing whether the applicant (A) has, during the five-year period immediately preceding the date of the application been convicted of a felony, or had a final judgment entered against the applicant in a civil action, if the felony or civil action involved fraud, embezzlement, or misappropriation of property; (B) is subject to an injunctive order that is currently in effect from a pending proceeding or action brought by a public agency; (C) is a defendant in a pending criminal or civil action relating to fraud, embezzlement, misappropriation of property, or the antitrust or trade regulation laws of the United States or a state; (D) has, during the five-year period immediately preceding the date of the application, been reorganized, had a debt adjustment, or has been adjudicated a bankrupt under bankruptcy proceedings due to insolvency or was a principal executive officer or general partner of a business that has been reorganized, had a debt adjustment, or has been adjudicated a bankrupt due to insolvency during the five-year period; (7) furnishes a description of each item in (6) of this subsection that the applicant disclosed as being applicable to the applicant. (b) An individual who is a physician or an audiologist may deal in hearing aids without being licensed under this chapter, but shall comply with AS 08.55.050 , 08.55.070, 08.55.100, 08.55.110(a), 08.55.110(b)(3) and (c) — (h), and 08.55.130(7) — (13) when dealing in hearing aids. (c) If an individual licensed under this chapter has more than one place of business, the department shall, on request and payment of a fee, issue a duplicate license for each place of business of the individual. Sec. 08.55.020. Renewal of license. (a) [Repealed, § 49 ch 94 SLA 1987.] (b) On or before the expiration of a license under this chapter, a licensee may apply for renewal of the license, and the department shall renew the license if the licensee pays the renewal fee, has a current business license to act as a hearing aid dealer under AS 43.70.020 , and provides evidence satisfactory to the department that the individual has not engaged in conduct that is a ground for imposing disciplinary sanctions under AS 08.55.130 . (c) [Repealed, § 49 ch 94 SLA 1987.] (d) The department may reinstate a lapsed license under (b) of this section if the license has not lapsed for more than two years and if the person pays a delinquency fee in addition to the renewal fee. Sec. 08.55.030. Bond required. (a) Except as otherwise provided in this section, an applicant for a license under AS 08.55.010 shall at the time of applying for the license file with the department a surety bond in the amount of $5,000 running to the state and conditioned on the applicant's promise to pay all (1) taxes and contributions due the state and political subdivisions of the state; (2) amounts that may be adjudged against the applicant by reason of negligently or improperly dealing in hearing aids or breaching a contract when dealing in hearing aids. (b) In lieu of the surety bond, the applicant may file with the department a cash deposit, a certificate of deposit payable to the state, or a negotiable security acceptable to the department, if the deposit, certificate of deposit, or security is in the amount specified for the bond. (c) The surety shall be maintained in effect while each of the hearing aid dealers for whom the surety is filed is licensed and for three years after each of the dealers ceases to be licensed. During this period, one form of surety may be substituted for another as long as a surety in the required amount is maintained at all times during the period. An action may not be commenced on or against the surety with regard to a particular hearing aid dealer later than three years after the dealer ceases to be licensed under this chapter. In this subsection, “surety” means the bond, cash deposit, certificate of deposit, or negotiable security required by this section. (d) An applicant for a license under this section who is an employee of a hearing aid dealer, acts as a hearing aid dealer in the employment, and does not act as a hearing aid dealer outside the employment, is not required to file the bond required by (a) of this section if the employer files with the department a surety bond in the amount of $10,000 that covers the employees of the hearing aid dealer, runs to the state, and is conditioned on the employer's promise to pay all (1) taxes and contributions due the state and political subdivisions of the state; (2) amounts that may be adjudged against the employer or the employees by reason of the employees negligently or improperly dealing in hearing aids or breaching a contract when dealing in hearing aids. (e) The bond under (d) of this section may be used to satisfy the bonding requirement for the employer under (a) of this section if the bond is also conditioned on the employer's promise to pay all amounts that may be adjudged against the employer by reason of the employer negligently or improperly dealing in hearing aids or breaching a contract when dealing in hearing aids. Sec. 08.55.040. Fees. The department shall set fees under AS 08.01.065 for each of the following: (1) application; (2) hearing aid dealer license; (3) renewal of license; (4) renewal delinquency; (5) duplicate license. Sec. 08.55.050. Items to be provided by hearing aid dealer. (a) A hearing aid dealer shall give the following items to a consumer at the time the consumer contracts with the hearing aid dealer to buy or lease a hearing aid: (1) an instructional brochure that contains operating instructions, purchase privileges, and performance data for the hearing aid; (2) a statement of the dealer's registration number; (3) a statement of the manufacturer's specifications, make, model, and serial number for the hearing aid; (4) a clear statement of the full terms of the contract; and (5) a written statement indicating that the consumer may file a written complaint about a hearing aid or a hearing aid dealer with the department and giving the mailing address and location address of the department. (b) Before the sale of a used hearing aid, the hearing aid dealer shall clearly mark the receipt and the container for the hearing aid as “used” or “reconditioned,” whichever is applicable, and with the terms of a guarantee that the dealer provides. Sec. 08.55.060. Prior medical evaluation. (a) A hearing aid dealer who is not a physician may not sell or lease a hearing aid unless the prospective user of the hearing aid presents to the hearing aid dealer a written statement signed by a physician stating that the physician has evaluated the prospective user's hearing and that the prospective user is a candidate for a hearing aid. (b) The exam on which the physician bases the statement required in (a) of this section must have occurred within the six months immediately preceding the date when the prospective user presents the statement to the hearing aid dispenser. (c) If the prospective user is 18 years of age or older, the hearing aid dealer may afford the prospective user an opportunity to waive in writing the evaluation required by (a) of this section if the hearing aid dealer (1) informs the prospective user that the exercise of the waiver is not in the best interest of the prospective user's health; (2) does not actively encourage the prospective user to waive the evaluation; and (3) affords the prospective user the opportunity to sign the following statement: I have been advised by (HEARING AID DEALER'S NAME) that it would be in my best interest if I had a medical evaluation by a licensed physician (preferably a physician who specializes in diseases of the ear) before purchasing or leasing a hearing aid. (PROSPECTIVE USER'S SIGNATURE) (d) The hearing aid dealer shall retain the evaluation statement of the physician or the prospective user's signed waiver statement for four years after the date of the sale of the hearing aid. Sec. 08.55.070. Transmittal of hearing aid by mail. If a hearing aid dealer mails a hearing aid to a customer, the dealer shall send the hearing aid by certified mail. Sec. 08.55.080. Complaints. (a) A person may file a complaint with the department about a hearing aid or a hearing aid dealer within three years from the date of the cause of the complaint. (b) A hearing aid dealer shall prominently display in the business establishment of the dealer a sign indicating that a person may file a complaint with the department about a hearing aid or a hearing aid dealer and giving the mailing and location address of the department. Sec. 08.55.100. Calibration requirements. A hearing aid dealer shall maintain in conformity with the standards set by the American National Standard Institute the calibration of each audiometer used by the hearing aid dispenser, and shall keep a record of the results of the annual calibration of each audiometer used by the dealer. Sec. 08.55.110. Cancellation option. (a) In addition to the cancellation allowed under AS 45.02.350 , a person who has purchased or leased a hearing aid from a hearing aid dealer may cancel the sale or lease as provided under (b) of this section or by giving written notice of the intention to cancel the sale or lease to the dealer not later than 30 days following the later of the date (1) the person receives the hearing aid, or (2) the hearing aid dealer provides the person with the notice under (c) of this section. The person may use the notice received under (c) of this section to cancel the sale or lease by signing the form where indicated. (b) In addition to the other rights and remedies the purchaser or lessee of a hearing aid may have, the purchaser or lessee of a hearing aid has the right to cancel the sale or lease by giving written notice of the cancellation to the hearing aid dealer if (1) the hearing aid dealer is not a physician or an audiologist, and within 60 days from the receipt by the purchaser or lessee of the hearing aid or the notice to be provided under (c) of this section, whichever receipt is later, a physician or an audiologist advises the person in writing to cancel the sale or lease and specifies in writing the medical or audiological reason for the advice; or (2) the hearing aid dealer, if not a physician or audiologist, has violated a provision of this chapter in the sale or lease of the hearing aid to the person; (3) the hearing aid dealer who is a physician or audiologist has violated (a) or (c) — (h) of this section or AS 08.55.050 , 08.55.070, 08.55.100, or 08.55.130(7) — (13) in the sale or lease of the hearing aid to the person. (c) A hearing aid dealer shall give a person who has purchased or leased a hearing aid from the dealer notice of the right to cancel the purchase or lease that is substantially identical to the following form with all of the information filled in except the signature and date lines for the purchaser or lessee: NOTICE OF RIGHT TO CANCEL Name of Hearing Aid Dealer Address of Hearing Aid Dealer Date of Sale or Lease You may cancel this transaction within 30 days from the date you receive the hearing aid or this notice, whichever is later.You may also cancel this transaction within 60 days from the date you receive the hearing aid or this notice, whichever is later, if the hearing aid dealer is not a licensed physician or a licensed audiologist and if a licensed physician or a licensed audiologist advises you in writing to cancel this transaction.If you cancel this transaction, the property you traded in, the payments you made under the sale or lease (less certain costs allowed by state law) and any negotiable instrument executed by you will be returned within 20 days following receipt by the hearing aid dealer of your cancellation notice, and the hearing aid dealer will cancel any security interest arising out of the sale or lease.If you cancel, you must make available to the hearing aid dealer, in as good a condition as when received, less normal wear and tear, the goods delivered to you under this sale or lease, unless the dealer notifies you to keep the goods or to hold them until the dealer collects them.If the goods have been damaged, the hearing aid dealer may deduct from any refund due you the reasonable costs incurred in repairing the goods to make them suitable for resale. If the goods have been damaged beyond repair, you are liable for the full purchase price, even if you are just leasing the goods.If you make the goods available for the hearing aid dealer to collect after your cancellation, and within 20 days of receiving your cancellation the hearing aid dealer does not collect them from you or provide you with instructions for returning the goods by mail, you may retain or dispose of the goods without further obligation to the hearing aid dealer. If you fail to make the goods available for the hearing aid dealer to collect after your cancellation, then the sale or lease is not cancelled and you remain liable for performance of the obligations of the sale or lease.To cancel this transaction, mail (by certified mail, return receipt requested) or deliver a signed and dated copy of this notice or another written notice to (name of hearing aid dealer), at (address of hearing aid dealer's place of business) and (hearing aid dealer's telephone number) no later than midnight of (Date).I hereby cancel this transaction.(Date) ______________________________________(Purchaser's or Lessee's signature)I have read and understand the terms of cancellation of this purchase/lease. Purchaser's or Lessee's signature Date (d) If a purchaser or lessee of a hearing aid cancels the purchase or lease under (a) or (b) of this section, the hearing aid dealer shall within 20 days of receipt of a notice of the cancellation (1) refund to the purchaser or lessee all deposits, including the down payment, less (A) 10 percent of the total purchase price for each 30 days that the purchaser or lessee had the hearing aid, to pay for the reasonable rental value of the hearing aid; (B) the reasonable price of ear molds or custom casings prepared for the purchaser or lessee; and (C) the reasonable costs actually incurred by the hearing aid dealer to make goods that were traded in by the purchaser or lessee ready for sale; the hearing aid dealer may retain the money allowed under this paragraph only up to the amount of a down payment made by the purchaser or lessee; (2) return to the purchaser or lessee all goods traded in to the hearing aid dealer as part of the sale or lease; (3) return to the purchaser or lessee a negotiable instrument signed by the purchaser or lessee; and (4) cancel a security interest taken by the hearing aid dealer for the purchase or lease. (e) If the hearing aid returned by the purchaser or lessee has been damaged, the hearing aid dealer may deduct from any refund due the purchaser or lessee the reasonable costs incurred in repairs necessary to make the hearing aid suitable for resale. If the hearing aid is damaged beyond repair, the purchaser or lessee is liable for the full purchase price. (f) The purchaser or lessee may retain or dispose of the hearing aid if within 20 days of receipt of the notice of cancellation, the hearing aid dealer fails (1) to collect the hearing aid from the purchaser or lessee; or (2) to provide the purchaser or lessee with instructions for returning the hearing aid by mail. (g) If a purchaser or lessee of a hearing aid fails to make the hearing aid available for the hearing aid dealer to collect, the purchaser or lessee remains liable for the purchase or lease. (h) To give written notice under this section, a person shall deliver the notice to the hearing aid dealer in person or to the place of business of the dealer, or mail the notice to the place of business of the dealer by certified mail, return receipt requested. Sec. 08.55.120. Testing of hearing. (a) A hearing aid dealer may take threshold measurements to determine the need for a hearing aid, but may not perform diagnostic procedures to determine the cause of a hearing impairment or charge a fee for a hearing measurement. (b) A hearing aid dealer shall include in every printed advertisement for the services of the dealer the following statement bordered in black: Alaska law permits a hearing aid dealer who is not a licensed physician or a licensed audiologist to test hearing only for the purpose of selling or leasing hearing aids; the tests given by a hearing aid dealer are not to be used to diagnose the cause of a hearing impairment. Sec. 08.55.130. Grounds for imposition of disciplinary sanctions. After a hearing, the department may impose a disciplinary sanction on an individual licensed under this chapter when the department finds that the person (1) secured a license through deceit, fraud, or intentional misrepresentation; (2) engaged in deceit, fraud, or intentional misrepresentation in the course of providing professional services or engaging in professional activities; (3) advertised professional services in a false or misleading manner; (4) has been convicted of a felony or other crime that affects the individual's ability to continue to practice competently and safely; (5) failed to comply with a provision of this chapter or a regulation adopted under this chapter, or an order of the department; (6) continued to practice after becoming unfit due to (A) professional incompetence; (B) addiction to or severe dependency on alcohol or another drug that impairs the individual's ability to practice safely; (C) physical or mental disability; (7) employed a person who did not have a valid current license to deal in hearing aids to perform work covered by this chapter; (8) failed or refused to honor a representation, promise, agreement, or warranty made by the person while dealing in hearing aids; (9) advertised a model, type, or kind of hearing aid for sale that the person does not sell; (10) failed to maintain a business address and telephone number at which the individual could normally be reached during regular business hours; (11) included in a contract or receipt for the purchase or lease of a hearing aid a confession of judgment or a waiver of a right of the consumer under this chapter; (12) used undue influence, coercion, or other wilful act or representation to interfere with the exercise by the consumer of the rights provided in this chapter; (13) negotiated, transferred, sold, or assigned a note or other evidence of indebtedness to a finance company or other third party within two months of delivering a hearing aid to a purchaser or lessee of the hearing aid by mail or in person; (14) permitted another person to use the licensee's license; (15) dealt in hearing aids while suffering from a serious disease that was contagious or infectious. Sec. 08.55.140. Disciplinary sanctions. (a) When it finds that a licensee has committed an act listed in AS 08.55.130 , the department may impose the following sanctions singly or in combination: (1) permanently revoke a license to practice; (2) suspend a license for a determinate period of time; (3) censure a licensee; (4) issue a letter of reprimand; (5) place a licensee on probationary status and require the licensee to (A) report regularly to the department on matters involving the basis of probation; (B) limit practice to those areas prescribed; (C) continue professional education until a satisfactory degree of skill has been attained in those areas determined by the department to need improvement; (6) impose limitations or conditions on the practice of a licensee. (b) The department may withdraw a limitation, condition, or probationary status if it finds that the deficiency that required the sanction has been remedied. (c) The department may summarily suspend a license before final hearing or during the appeals process if the department finds that the licensee poses a clear and immediate danger to the public welfare and safety if the licensee continues to practice. A person whose license is suspended under this subsection is entitled to a hearing conducted by the office of administrative hearings ( AS 44.64.010 ) not later than seven days after the effective date of the order. The person may appeal the suspension after the hearing to the superior court. (d) The department may reinstate a license that has been suspended or revoked if the department finds after a hearing that the applicant is able to deal in hearing aids with reasonable skill and safety. Sec. 08.55.150. Prohibited acts. (a) Unless a person is licensed under this chapter or is licensed as an audiologist under AS 08.11 , the person may not (1) deal in hearing aids; (2) use a title indicating or representing that the person deals in hearing aids or is licensed to deal in hearing aids; (3) advertise that the person deals in hearing aids. (b) A person may not (1) sell, barter, or offer to sell or barter a license issued under this chapter; (2) purchase or obtain by barter a license issued under this chapter with the intent to use it as evidence of the holder's qualification to deal in hearing aids; (3) materially alter a license issued under this chapter with fraudulent intent; (4) use or attempt to use as valid a license to deal in hearing aids that has been purchased, fraudulently obtained, counterfeited, or materially altered. Sec. 08.55.160. Penalty. A person who violates AS 08.55.150 is guilty of a class B misdemeanor. Sec. 08.55.170. Notice of place of business. A person who holds a license under this chapter shall notify the department in writing of the regular address of the place or places where the person deals or intends to deal in hearing aids. Sec. 08.55.180. Administrative Procedure Act. AS 44.62 (Administrative Procedure Act) applies to regulations and proceedings under this chapter. Sec. 08.55.200. Definitions. In this chapter, (1) “audiologist” means an individual licensed as an audiologist under AS 08.11 ; (2) “dealing in hearing aids” means the sale or lease, or attempted sale or lease of hearing aids, and the recommendation, selection, fitting, or adaptation of hearing aids; (3) “department” means the Department of Commerce, Community, and Economic Development; (4) “hearing aid” means a prosthetic instrument or device designed for or represented as aiding, improving, or correcting defective human hearing and the parts, attachments, or accessories of the instrument or device; “hearing aid” does not include cochlear implants, middle-ear implants, vibro-tactile speech-reading aids, other aids for cued speech, or group or individual auditory training units and assistive devices; (5) “hearing aid dealer” means an individual licensed under AS 08.55.010 ; (6) “physician” means a person licensed as a physician under AS 08.64 .