S 588 Session 109 (1991-1992)
S 0588 General Bill, By Drummond
A Bill to amend Section 40-25-20, Code of Laws of South Carolina, 1976,
relating to definitions in the Fitting and Selling of Hearing Aids Act, so as
to revise the definition for audiologist; to amend Section 40-25-30, relating
to the powers and duties of the Department of Health and Environmental
Control, so as to provide for refunds and establishment of licensing fees; to
amend Section 40-25-40, relating to the Commission of Hearing Aid Dealers and
Fitters, so as to provide for mileage and delete obsolete language; to amend
Section 40-25-60, relating to licenses, so as to delete the filing
requirements for corporations, partnerships, trusts, and associations; to
amend Section 40-25-70, relating to duties of licensees, so as to delete the
provisions pertaining to the examination of children twelve years of age,
require medical evaluations, and provide for waivers; to amend Section
40-25-100, relating to the issuance of licenses and, for persons licensed in
another state, of certificates of endorsement, so as to provide for fees to be
set by regulation and delete the requirements for character and health; to
amend Section 40-25-110, relating to qualifications of applicants for
examinations, so as to delete obsolete language, change the age requirement
from twenty-one to eighteen years, delete the health requirement, provide for
licensing of audiologists, and provide for appeals; to amend Section
40-25-120, relating to temporary permits, so as to delete the character and
health requirements and provide for fees to be set by regulation; to amend
Section 40-25-150, relating to renewal and display of licenses and continuing
education, so as to provide for fees to be set by regulation; to amend Section
40-25-160, relating to complaints against licensees and suspension and
revocation of licenses, so as to increase the time for service of a complaint
before a hearing from twenty to thirty days and provide for refunds; and to
reauthorize the existence of the Commission for Hearing Aid Dealers and
Fitters for six years.
02/05/91 Senate Introduced and read first time SJ-10
02/05/91 Senate Referred to Committee on Medical Affairs SJ-11
A BILL
TO AMEND SECTION 40-25-20, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO DEFINITIONS IN THE FITTING
AND SELLING OF HEARING AIDS ACT, SO AS TO REVISE THE
DEFINITION FOR AUDIOLOGIST; TO AMEND SECTION 40-25-30,
RELATING TO THE POWERS AND DUTIES OF THE
DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL,
SO AS TO PROVIDE FOR REFUNDS AND ESTABLISHMENT OF
LICENSING FEES; TO AMEND SECTION 40-25-40, RELATING TO
THE COMMISSION OF HEARING AID DEALERS AND FITTERS,
SO AS TO PROVIDE FOR MILEAGE AND DELETE OBSOLETE
LANGUAGE; TO AMEND SECTION 40-25-60, RELATING TO
LICENSES, SO AS TO DELETE THE FILING REQUIREMENTS
FOR CORPORATIONS, PARTNERSHIPS, TRUSTS, AND
ASSOCIATIONS; TO AMEND SECTION 40-25-70, RELATING TO
DUTIES OF LICENSEES, SO AS TO DELETE THE PROVISIONS
PERTAINING TO THE EXAMINATION OF CHILDREN TWELVE
YEARS OF AGE, REQUIRE MEDICAL EVALUATIONS, AND
PROVIDE FOR WAIVERS; TO AMEND SECTION 40-25-100,
RELATING TO THE ISSUANCE OF LICENSES AND, FOR
PERSONS LICENSED IN ANOTHER STATE, OF CERTIFICATES
OF ENDORSEMENT, SO AS TO PROVIDE FOR FEES TO BE SET
BY REGULATION AND DELETE THE REQUIREMENTS FOR
CHARACTER AND HEALTH; TO AMEND SECTION 40-25-110,
RELATING TO QUALIFICATIONS OF APPLICANTS FOR
EXAMINATIONS, SO AS TO DELETE OBSOLETE LANGUAGE,
CHANGE THE AGE REQUIREMENT FROM TWENTY-ONE TO
EIGHTEEN YEARS, DELETE THE HEALTH REQUIREMENT,
PROVIDE FOR LICENSING OF AUDIOLOGISTS, AND PROVIDE
FOR APPEALS; TO AMEND SECTION 40-25-120, RELATING TO
TEMPORARY PERMITS, SO AS TO DELETE THE CHARACTER
AND HEALTH REQUIREMENTS AND PROVIDE FOR FEES TO BE
SET BY REGULATION; TO AMEND SECTION 40-25-150,
RELATING TO RENEWAL AND DISPLAY OF LICENSES AND
CONTINUING EDUCATION, SO AS TO PROVIDE FOR FEES TO
BE SET BY REGULATION; TO AMEND SECTION 40-25-160,
RELATING TO COMPLAINTS AGAINST LICENSEES AND
SUSPENSION AND REVOCATION OF LICENSES, SO AS TO
INCREASE THE TIME FOR SERVICE OF A COMPLAINT BEFORE
A HEARING FROM TWENTY TO THIRTY DAYS AND PROVIDE
FOR REFUNDS; AND TO REAUTHORIZE THE EXISTENCE OF
THE COMMISSION FOR HEARING AID DEALERS AND FITTERS
FOR SIX YEARS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 40-25-20 of the 1976 Code is amended to read:
"Section 40-25-20. As used in this chapter, except as
unless the context may require requires
otherwise:
(1) `Department' shall mean means the
Department of Health and Environmental Control.
(2) `Commission' shall mean means the State
Commission for Hearing Aid Dealers and Fitters.
(3) `License' shall mean means a license issued
by the department under this chapter to hearing aid dealers and fitters.
(4) `Temporary permit' shall mean means a
permit issued while the applicant is in training to become a licensed
hearing aid dealer and fitter.
(5) `Hearing aid' shall mean any means an
acceptable wearable instrument or device designated for or
offered for the purpose of aiding to aid or
compensating compensate for impaired human hearing
and any parts, attachments, or accessories, including
earmold, but excluding batteries and cords.
(6)`Practice of fitting and dealing in hearing aids' shall mean
means the measurement of human hearing by means of
an audiometer or by any other established means solely for
the purpose of making selections, adaptations, or sale
of hearing aids. The term It also includes the making of
impressions for earmolds.
(7)`Sell' or `sale' shall mean any means the transfer
of title or of the right to use by lease, bailment, or any other
contract, excluding wholesale transactions with distributors or dealers.
(8)`Audiologist' shall mean means an individual
completing satisfactory graduate work and holding a certificate of
clinical competence and who is actually engaged in audiologistical
practice in this State licensed by the State Board of Examiners
in Speech Pathology and Audiology.
(9)`Otolaryngologist' shall mean means a licensed
physician specializing in ear, nose, and throat."
SECTION 2. Section 40-25-30 of the 1976 Code is amended to read:
"Section 40-25-30. The powers and duties of the department
are as follows to:
(1) To authorize all disbursements necessary to
carry out the provisions of this chapter.;
(2) To supervise issuance of licenses `by experience' and
administer qualifying examinations to test the knowledge and
proficiency of applicants licensed by examination.;
(3) To register persons who apply to the department and
who are qualified to engage in the fitting and sale of hearing
aids.;
(4) To purchase and maintain or rent audiometric
equipment and other facilities necessary to carry out the examination of
applicants as provided.;
(5) To issue and renew licenses.;
(6) To suspend or revoke licenses in the manner
provided. or require that refunds be made;
(7) To designate the time and place for examining
applicants.;
(8) To appoint representatives to conduct or supervise the
examination and enforce the provisions of this
chapter.;
(9) To make promulgate and publish rules
and regulations not inconsistent with the laws of this State which
are and necessary to carry out the provisions of this
chapter. including the establishment of licensing fees;
(10) To appoint or employ subordinate
employees.;
(11) To retain all funds received for administration
of the program.;
(12) To require the periodic inspection of audiometric
testing equipment and to carry out the periodic inspection of
facilities of persons who practice fitting of hearing aids."
SECTION 3. Section 40-25-40 of the 1976 Code is amended to read:
"Section 40-25-40. (1) There shall be established a
(A) A Commission of Hearing Aid Dealers and Fitters
which shall is established to guide, advise, and
make recommendations to the department.
(2)(B)(1) Members of the commission shall
must be residents of the State. The commission shall
consist consists of:
(a) four licensed hearing aid dealers, and each
of whom shall must be a principal dealer of a different
manufacturer's hearing aid;
(b) one otolaryngologist;
(c) one audiologist;
(d) one representative of the general public who is
a user of a hearing aid, is not associated with a hearing aid dealer or
manufacturer, and is not a member of the other groups or professions
required to be represented on the commission; and
(e) the State Health Officer or his designee.
(2) Each hearing aid dealer on the commission
shall must have no less than five years of
experience as provided under this chapter but an exception
shall be the hearing aid dealers and fitters of the first commission
appointed who shall have no less than five years of experience and shall
fulfill all qualifications for "license by experience" as
provided under this chapter.
(3)(C) All appointive members
Members of such the commission shall
in subsection (B)(1)(a) through (d) must be appointed by the
Governor with the advice and consent of the Senate. Provided, that
with regard to the one representative of the public, Before
appointing the member in subsection (B)(1)(d) the Governor shall
invite recommendations from 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 such other agencies or
organizations which might have knowledge of qualified citizens to serve
on the commission. The term of office of each member shall
be for is four years except that of the members of the
first commission appointed under this act three shall be appointed for
four years, and three shall be appointed for two years and until their
successors are appointed and qualify. Before a member's term
expires the Governor shall, with the advice and consent of the
Senate, shall appoint a successor to assume his duties at the
expiration of the predecessor's term. A vacancy in the office
of a member shall must be filled in the same manner
as of the original appointment. The members of the
commission shall annually shall designate one member
to serve as chairman and another to serve as secretary.
No member of the commission who has served two or more full terms
may be reappointed to the commission until at least one year
after the expiration of his most recent full term of office.
(4)(D) Each member of the Commission
shall be entitled to the current statutory members may
receive per diem plus actual travel expenses of ten cents per
mile traveled, and mileage provided by law for members of state
boards, committees, and commissions for each day actually spent
in the duties of the Commission; provided, no.
No member shall be entitled to may receive
more than fifteen days per diem in any one fiscal year."
SECTION 4. Section 40-25-60 of the 1976 Code is amended to read:
"Section 40-25-60. (1)(A) No person
shall may engage in the sale of or practice of fitting
hearing aids or display a sign or in any other another
way advertise or represent himself as a person who practices the fitting
and sale of hearing aids after January 1, 1972, unless he holds
an unsuspended, unrevoked license issued by the department as
provided in under this chapter. The license shall
must be conspicuously posted conspicuously
in his office or place of business. Duplicate licenses shall
must be issued by the department to valid license holders
operating more than one office, without additional payment. A
license under this chapter shall confer confers upon the
holder the right to select, fit, and sell hearing aids.
(2)(B) Nothing in this chapter shall prohibit
prohibits a corporation, partnership, trust, association,
or other 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, provided
that if it employs only properly licensed natural persons in
the direct sale and fitting of such the products. Such
corporations, partnerships, trusts, associations or other like organizations
shall file annually with the Department and Commission a list of all
licensed hearing aid dealers and fitters directly or indirectly employed
by it. Such organizations shall also file with the Department and
Commission a statement on a form approved by the Commission that
they submit themselves to the rules and regulations of the Department
and the provisions of this chapter which the Department shall deem
applicable to them."
SECTION 5. Section 40-25-70 of the 1976 Code is amended to read:
"Section 40-25-70. (1)(A) Any
A person who practices the fitting and sale of hearing aids shall
deliver to each a person supplied with a hearing aid a
receipt which shall contain contains the licensee's
signature and show his business address and, the
number of his certificate, together with 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 the its container thereof shall
must be clearly marked clearly as `used' or
`reconditioned,' whichever is applicable, with terms of guarantee, if any.
(2)(B) The purchaser must be advised at the outset
of his relationship with the hearing aid dealer that any
an examination or a representation is not an
examination, diagnosis, or prescription by a person licensed to practice
medicine in this State.
(3) Any person engaging in the fitting and sale of hearing aids
will, when dealing with a child twelve years of age or under, ascertain
whether the child has been examined by an otolaryngologist for his
recommendation within ninety days prior to the fitting. If such not be the
case, a recommendation to do so must be made and this fact noted on the
receipt.
(C) A hearing aid dealer may not sell a hearing aid unless the
prospective user has presented to the hearing aid 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. The medical evaluation must have taken
place within the preceding six months. If the prospective hearing aid
user is eighteen years of age or older, the hearing aid dealer may afford
the prospective user an opportunity to waive the medical evaluation
requirement if he:
(1) informs the prospective user that the exercise of the waiver
is not in the user's best interest;
(2) actively does not encourage the prospective user to waive
a medical evaluation;
(3) affords the prospective user the opportunity to sign the
following statement:
`I have been advised by (dealer's name) that the Food and Drug
Administration has determined that my best health interest would be
served if I had a medical evaluation by a licensed physician, preferably
a physician who specializes in diseases of the ear, before purchasing a
hearing aid. I do not wish a medical evaluation before purchasing a
hearing aid.'"
SECTION 6. Section 40-25-100 of the 1976 Code is amended to
read:
"Section 40-25-100. (1)(A) The department
shall register each applicant without discrimination or examination who
satisfactorily passes the experience requirement as provided in
Section 40-25-90 or passes an examination as provided in
Section 40-25-110 and upon the applicant's payment of fifty
dollars a fee set by the department through regulation shall
issue to the applicant a license signed by the department. The license
shall be is effective until January thirtieth of the year
following the year in which licensed.
(2)(B) Whenever 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 such 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 such the other
state or jurisdiction if the applicant is eighteen years of age, is a
person of good moral character and is free of contagious or infectious
disease. No such applicants Applicants for
certificate of endorsement shall be are not required to
submit to or undergo a qualifying examination, other than the payment
of fees pursuant to the provisions of this chapter. The holder of
a certificate of endorsement shall must be registered in
the same manner as licensees. The fee for issuance of a license based
upon an initial certificate of endorsement shall be 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 shall be and licenses are the same as
for renewal, suspension and revocation of a license."
SECTION 7. Section 40-25-110 of the 1976 Code is amended to
read:
"Section 40-25-110. (1) Applicants who do not meet the
experience qualification on January 1, 1972 (A) An
applicant may obtain a license by successfully passing a qualifying
examination, provided the applicant if he:
(a)(1) Is is at least twenty-one
eighteen years of age.;
(b) Is of good moral character.
(c)(2) Has has an education
equivalent to a four-year course in an accredited high school.
(d) Is free of contagious or infectious disease.
(B) An audiologist licensed under Chapter 67, Title 40 must
be issued a license upon application without examination.
(2)(C) Applicant An applicant for
license by examination shall appear at a time, place, and before
such persons as the department may designate to be
examined by means of written and practical tests in order to demonstrate
that he is qualified to practice the fitting and sale of hearing aids. The
examination administered as directed by the department constituting
standards for licensing shall must not be conducted
in such a manner so that college training is required
in order to pass the examination. Nothing in this examination
shall may imply that the applicant shall 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.
(3)(D) The department shall give examinations at
least once a year."
SECTION 8. Section 40-25-120 of the 1976 Code is amended to
read:
"Section 40-25-120. (1)(A) Any
A person who fulfills the requirements regarding age,
character, and education and health as set forth in
Section 40-25-110, may obtain a temporary permit upon
application to the department. Previous experience or a waiting period
shall is not be required to obtain a temporary
permit.
(2)(B) Upon receiving an application as
provided under this section and accompanied by a fee
of twenty-five dollars set by the department through
regulation, the department shall issue a temporary permit which
shall entitle entitles the applicant to engage in the fitting
and sale of hearing aids for a period of one year. A person
holding a valid hearing aid dealers and fitters license shall be
responsible for the supervision shall supervise and
training of such train the applicant and,
maintain adequate personal contact, and make annual reports
to the department about the performance of the person holding the
temporary permit.
(3)(C) If a person who holds a temporary permit
under this section has not successfully passed
successfully the licensing examination within one year from the
date of issuance, the temporary permit may, at the discretion of the
Department, may be renewed, or at the
discretion of the Department, the applicant may be permitted to
reapply at a later date, at the discretion of the
department."
SECTION 9. Section 40-25-150 of the 1976 Code is amended to
read:
"Section 40-25-150. (A) Each A
person who engages in the fitting and sale of hearing aids shall
annually, on or before January thirtieth, thirty-first
shall pay to the department a fee of fifty dollars set by
the department through regulation for issuance or a renewal of his
license and shall keep the certificate conspicuously.
The license must be posted conspicuously in his office
or place of business at all times. Where more than one office is
operated by the licensee, duplicate certificates licenses
must be issued by the department for posting in each location. A
thirty-day grace period is allowed after January thirtieth, during
which time licenses may be renewed on payment of a fee of
sixty dollars to set by the department through
regulation. After expiration of the grace period, the department
may renew the certificates upon payment of seventy-five dollars
to a fee set by the department through regulation.
No person who applies for renewal whose license has expired is required
to submit to any examination as a condition to renewal,
provided if the renewal application is made within two
years from the date of the expiration.
(B) Any A licensee or temporary permit
holder must shall maintain a progressing level of
professional competence by participation during each calendar year 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 shall annually shall
submit to the commission proof of having participated in a minimum of
eight hours of continuing education during the calendar year. A licensee
who is granted a license during a calendar year is not required to
complete the requirement during that year, and the requirement
shall begin begins the second full licensing year. The
requirement may be fulfilled by attending and participating in training
activities approved by the commission.
(D) Any A person or organization
desiring to conduct continuing education training programs must
shall submit the programs to the commission for approval
prior to their 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 shall result 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 calendar year. The make-up allowance
shall does not waive the full annual requirements for
continued education."
SECTION 10. Section 40-25-160 of the 1976 Code is amended to
read:
"Section 40-25-160. (1)(A) Any
A person wishing to make a complaint against a licensee under
this chapter shall reduce the same to writing and file this
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 shall 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 shall must be
served upon the licensee at least twenty thirty days
before the date set for hearing, either personally or by registered
mail sent to the licensee's last known address. Continuances or
adjournment of hearing date shall must be made if for
a good cause. At the hearing the licensee complained against may be
represented by counsel. The licensee complained against and the
department shall have the right to may compel the
attendance of witnesses by subpoenas issued by the department under its
seal.
(2)(B) Any 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
any of the following causes:
(a)(1) The conviction of a
felony, or a misdemeanor involving moral turpitude. The
record of conviction or a certified copy thereof, certified by the
clerk of the court or by the judge in whose court the conviction
is had, shall be is conclusive evidence of such
the conviction.;
(b)(2) procuring of license by fraud or deceit
practiced upon the department.;
(c)(3) unethical conduct, including, but not
limited to the following:
(1)(a) The obtaining of any
a fee or the making of any a sale by
fraud or misrepresentation.;
(2)(b) knowingly employing directly or
indirectly any a suspended or unregistered person to
perform any work covered by this chapter.;
(3)(c) using or causing or promoting the use
of any advertising matter, promotional literatures, or
testimonial, guarantee, warranty, label, brand, insignia, or any
other representation, however disseminated or published, which is
misleading, deceptive, or untruthful.;
(4)(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.;
(5)(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,'
`audiologist,' or `clinic' or similar words,
abbreviations, or symbols which tend to connote the medical
profession when such the use is not the
case.;
(6)(f) habitual
intemperance.;
(7)(g) gross immorality.;
(8)(h) permitting another's use of a
license.;
(9)(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.;
(10)(j) directly or indirectly giving or offering
to give or permitting or causing to be given money or anything of value
to any 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 dealer or fitter.;
(11)(k) stating or implying that the use of
any a hearing aid will restore or preserve
hearing, or prevent or retard progression of hearing
impairment.;
(d)(4) conducting business while suffering from
a contagious or infectious disease.;
(e)(5) engaging in the fitting and sale of hearing
aids under a false name or alias with fraudulent intent.;
(f)(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.;
(g)(7) gross incompetence or negligence in
fitting and selling hearing aids.; or
(h)(8) violating any provisions of 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 11. In accordance with Section 1-20-60 of the 1976
Code, the existence of the State Commission of Hearing Aid Dealers and
Fitters is reauthorized for six years.
SECTION 12. This act takes effect upon approval by the
Governor.
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