1500-S.E AAS 4/7/93 S2736.1

ESHB 1500 - S COMM AMD

By Committee on Health  & Human Services

                                                    ADOPTED 4/7/93

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 18.35.010 and 1991 c 3 s 80 are each amended to read as follows:

    As used in this chapter, unless the context requires otherwise:

    (1) "Department" means the department of health.

    (2) "((Council)) Board" means the ((council)) board on fitting and dispensing of hearing aids.

    (3) "Hearing aid" means any wearable prosthetic instrument or device designed for or represented as aiding, improving, compensating for, or correcting defective human hearing and any parts, attachments, or accessories of such an instrument or device, excluding batteries and cords and ear molds.

    (4) "Fitting and dispensing of hearing aids" means the sale, lease, or rental or attempted sale, lease, or rental of hearing aids together with the selection and adaptation of hearing aids and the use of those tests and procedures essential to the performance of these functions.  It includes the taking of impressions for ear molds for these purposes.

    (5) "Secretary" means the secretary of health.

    (6) "Establishment" means any facility engaged in the fitting and dispensing of hearing aids.

    Sec. 2.  RCW 18.35.050 and 1989 c 198 s 3 are each amended to read as follows:

    Except as otherwise provided in this chapter an applicant for license shall appear at a time and place and before such persons as the department may designate to be examined by written and practical tests.  The department shall give an examination in May and November of each year.  The examination shall be reviewed annually by the ((council)) board and the department, and revised as necessary.  No examination of any established association may be used as the exclusive replacement for the examination unless approved ((and developed)) by the ((council)) board.

    Sec. 3.  RCW 18.35.060 and 1991 c 3 s 82 are each amended to read as follows:

    (1) The department shall issue a trainee license to any applicant who has shown to the satisfaction of the department that:

    (a) The applicant is at least eighteen years of age;

    (b) If issued a trainee license, would be employed and directly supervised in the fitting and dispensing of hearing aids by a person licensed in good standing as a fitter-dispenser for at least one year unless otherwise approved by the ((council)) board; and

    (c) Has paid an application fee determined by the secretary as provided in RCW 43.70.250, to the department.

    The provisions of RCW 18.35.030, 18.35.110, and 18.35.120 shall apply to any person issued a trainee license.  Pursuant to the provisions of this section, a person issued a trainee license may engage in the fitting and dispensing of hearing aids without having first passed the examination provided under this chapter.

    (2) The trainee license shall contain the name of the person licensed under this chapter who is employing and supervising the trainee and that person shall execute an acknowledgment of responsibility for all acts of the trainee in connection with the fitting and dispensing of hearing aids.

    (3) A trainee may fit and dispense hearing aids, but only if the trainee is under the direct supervision of a person licensed under this chapter in a capacity other than as a trainee.  Direct supervision by a licensed fitter-dispenser shall be required whenever the trainee is engaged in the fitting or dispensing of hearing aids during the trainee's first three months of full-time employment.  The ((council)) board shall develop and adopt guidelines on any additional supervision or training it deems necessary.

    (4) The trainee license shall expire one year from the date of its issuance except that on recommendation of the ((council)) board the license may be reissued for one additional year only.

    (5) No person licensed under this chapter may assume the responsibility for more than two trainees at any one time, except that the department may approve one additional trainee if none of the trainees is within the initial ninety-day period of direct supervision and the licensee demonstrates to the department's satisfaction that adequate supervision will be provided for all trainees.

    Sec. 4.  RCW 18.35.110 and 1987 c 150 s 22 are each amended to read as follows:

    In addition to causes specified under RCW 18.130.170 and 18.130.180, any person licensed under this chapter may be subject to disciplinary action by the ((council)) board for any of the following causes:

    (1) For unethical conduct in dealing in hearing aids.  Unethical conduct shall include, but not be limited to:

    (a) Using or causing or promoting the use of, in any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or any other representation, however disseminated or published, which is false, misleading or deceptive;

    (b) Failing or refusing to honor or to perform as represented any representation, promise, agreement, or warranty in connection with the promotion, sale, dispensing, or fitting of the hearing aid;

    (c) Advertising a particular model, type, or kind of hearing aid for sale which purchasers or prospective purchasers responding to the advertisement cannot purchase or are dissuaded from purchasing and where it is established that the purpose of the advertisement is to obtain prospects for the sale of a different model, type, or kind than that advertised;

    (d) Falsifying hearing test or evaluation results;

    (e)(i) Whenever any of the following conditions are found or should have been found to exist either from observations by the licensee or on the basis of information furnished by the prospective hearing aid user prior to fitting and dispensing a hearing aid to any such prospective hearing aid user, failing to advise that prospective hearing aid user in writing that the user should first consult a licensed physician specializing in diseases of the ear or if no such licensed physician is available in the community then to any duly licensed physician:

    (A) Visible congenital or traumatic deformity of the ear, including perforation of the eardrum;

    (B) History of, or active drainage from the ear within the previous ninety days;

    (C) History of sudden or rapidly progressive hearing loss within the previous ninety days;

    (D) Acute or chronic dizziness;

    (E) Any unilateral hearing loss;

    (F) Significant air-bone gap when generally acceptable standards have been established as defined by the food and drug administration;

    (G) Visible evidence of significant cerumen accumulation or a foreign body in the ear canal;

    (H) Pain or discomfort in the ear; or

    (I) Any other conditions that the ((department)) board may by rule establish.  It is a violation of this subsection for any licensee or that licensee's employees and putative agents upon making such required referral for medical opinion to in any manner whatsoever disparage or discourage a prospective hearing aid user from seeking such medical opinion prior to the fitting and dispensing of a hearing aid.  No such referral for medical opinion need be made by any licensee in the instance of replacement only of a hearing aid which has been lost or damaged beyond repair within six months of the date of purchase.  The licensee or the licensee's employees or putative agents shall obtain a signed statement from the hearing aid user documenting the waiver of medical clearance and the waiver shall inform the prospective user that signing the waiver is not in the user's best health interest:  PROVIDED, That the licensee shall maintain a copy of either the physician's statement showing that the prospective hearing aid user has had a medical evaluation or the statement waiving medical evaluation, for a period of three years after the purchaser's receipt of a hearing aid.  Nothing in this section required to be performed by a licensee shall mean that the licensee is engaged in the diagnosis of illness or the practice of medicine or any other activity prohibited under the laws of this state;

    (ii) Fitting and dispensing a hearing aid to any person under eighteen years of age who has not been examined and cleared for hearing aid use within the previous six months by a physician specializing in otolaryngology except in the case of replacement instruments or except in the case of the parents or guardian of such person refusing, for good cause, to seek medical opinion:  PROVIDED, That should the parents or guardian of such person refuse, for good cause, to seek medical opinion, the licensee shall obtain from such parents or guardian a certificate to that effect in a form as prescribed by the department;

    (iii) Fitting and dispensing a hearing aid to any person under eighteen years of age who has not been examined by an audiologist who holds at least a master's degree in audiology for recommendations during the previous six months, without first advising such person or his or her parents or guardian in writing that he or she should first consult an audiologist who holds at least a master's degree in audiology, except in cases of hearing aids replaced within six months of their purchase;

    (f) Representing that the services or advice of a person licensed to practice medicine and surgery under chapter 18.71 RCW or osteopathy and surgery under chapter 18.57 RCW or of a clinical audiologist 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 word "doctor," "clinic," or other like words, abbreviations, or symbols which tend to connote a medical or osteopathic profession when such use is not accurate;

    (g) Permitting another to use his or her license;

    (h) Stating or implying that the use of any hearing aid will restore normal hearing, preserve hearing, prevent or retard progression of a hearing impairment, or any other false, misleading, or medically or audiologically unsupportable claim regarding the efficiency of a hearing aid;

    (i) Representing or implying that a hearing aid is or will be "custom-made," "made to order," "prescription made," or in any other sense specially fabricated for an individual when that is not the case; or

    (j) Directly or indirectly offering, giving, permitting, or causing to be given, money or anything of value to any person who advised another in a professional capacity as an inducement to influence that person, or to have that person influence others to purchase or contract to purchase any product sold or offered for sale by the licensee, or to influence any person to refrain from dealing in the products of competitors.

    (2) Engaging in any unfair or deceptive practice or unfair method of competition in trade within the meaning of RCW 19.86.020 ((as now or hereafter amended)).

    (3) Aiding or abetting any violation of the rebating laws as stated in chapter 19.68 RCW.

    Sec. 5.  RCW 18.35.140 and 1983 c 39 s 11 are each amended to read as follows:

    The powers and duties of the department, in addition to the powers and duties provided under other sections of this chapter, are as follows:

    (1) ((To purchase and maintain or rent audiometric equipment and facilities necessary to carry out the examination of applicants for license.)) To provide facilities necessary to carry out the examination of applicants for license.

    (2) To authorize all disbursements necessary to carry out the provisions of this chapter.

    (3) To require the periodic examination of the audiometric testing equipment and to carry out the periodic inspection of facilities of persons who deal in hearing aids, as reasonably required within the discretion of the department.

    Sec. 6.  RCW 18.35.150 and 1989 c 198 s 7 are each amended to read as follows:

    (1) There is created hereby the ((council)) board on fitting and dispensing of hearing aids.  The ((council)) board shall consist of ((nine)) seven members to be appointed by the governor.

    (2) Members of the ((council)) board shall be residents of this state.  ((Five)) Two members shall represent the public.  Two members shall be persons experienced in the fitting of hearing aids who shall hold valid licenses under this chapter and who do not have a masters level college degree in audiology.  One advisory nonvoting member shall be a medical ((doctor)) or osteopathic physician specializing in diseases of the ear.  ((One member shall be a nondispensing audiologist.  Two members shall represent the public.)) Two members must be experienced in the fitting of hearing aids, must be licensed under this chapter, and shall have received at a minimum a masters level college degree in audiology.

    (3) The term of office of a member is three years.  No member shall be appointed to serve more than two consecutive terms.  A member shall continue to serve until a successor has been appointed.  The governor shall either reappoint the member or appoint a successor to assume the member's duties at the expiration of his or her predecessor's term.  A vacancy in the office of a member shall be filled by appointment for the unexpired term.

    (4) The ((chairman)) chair of the ((council)) board shall be elected from the membership of the ((council)) board at the beginning of each year.  In event of a tie, the issue shall be brought to a second vote and the chair shall refrain from voting.

    (5) The ((council)) board shall meet at least once each year, at a place, day and hour determined by the ((council)) board, unless otherwise directed by a majority of ((council)) board members.  The ((council)) board shall also meet at such other times and places as are requested by the department or by three members of the ((council)) board.

    (6) Members of the ((council)) board shall be compensated in accordance with RCW 43.03.240 and shall be reimbursed for their travel expenses in accordance with RCW 43.03.050 and 43.03.060.

    Sec. 7.  RCW 18.35.161 and 1987 c 150 s 23 are each amended to read as follows:

    The ((council)) board shall have the following powers and duties:

    (1) To establish by rule such minimum standards and procedures in the fitting and dispensing of hearing aids as deemed appropriate and in the public interest;

    (2) To develop guidelines on the training and supervision of trainees;

    (3) To adopt any other rules ((or regulations)) necessary to implement this chapter and which are not inconsistent with it;

    (4) To develop, approve, and administer all licensing examinations required by this chapter; and

    (5) To require a licensee to make restitution to any individual injured by a violation of this chapter or chapter 18.130 RCW, the uniform disciplinary act.  The authority to require restitution does not limit the ((council's)) board's authority to take other action deemed appropriate and provided for in this chapter or chapter 18.130 RCW.

    Sec. 8.  RCW 18.35.170 and 1973 1st ex.s. c 106 s 17 are each amended to read as follows:

    A member of the ((council)) board on fitting and dispensing of hearing aids shall not be permitted to take the examination provided under this chapter unless he or she has first satisfied the department that adequate precautions have been taken to assure that he or she does not and will not have any knowledge, not available to the members of the public at large, as to the contents of the examination.

    Sec. 9.  RCW 18.35.185 and 1989 c 198 s 12 are each amended to read as follows:

    (1) In addition to any other rights and remedies a purchaser may have, the purchaser of a hearing aid shall have the right to rescind the transaction for other than the ((seller's)) licensee's breach if:

    (a) The purchaser, for reasonable cause, returns the hearing aid or holds it at the ((seller's)) licensee's disposal, if the hearing aid is in its original condition less normal wear and tear.  "Reasonable cause" shall be defined by the ((council)) board but shall not include a mere change of mind on the part of the purchaser or a change of mind related to cosmetic concerns of the purchaser about wearing a hearing aid; and

    (b) The purchaser sends notice of the cancellation ((to the licensee at the licensee's place of business)) by certified mail, return receipt requested, to the establishment employing the licensee at the time the hearing aid was originally purchased, and the notice is posted not later than thirty days following the date of delivery, but the purchaser and the ((seller)) licensee may extend the deadline for posting of the notice of rescission by mutual, written agreement.  In the event the hearing aid is in the possession of the ((seller)) licensee or the ((seller's)) licensee's representative during the thirty days following the date of delivery, the deadline for posting the notice of rescission shall be extended by an equal number of days that the aid is in the possession of the ((seller)) licensee or the ((seller's)) licensee's representative.  Where the hearing aid is returned to the ((seller)) licensee for any inspection for modification or repair, and the ((seller)) licensee has notified the purchaser that the hearing aid is available for redelivery, and where the purchaser has not responded by either taking possession of the hearing aid or instructing the ((seller)) licensee to forward it to the purchaser, then the deadline for giving notice of the recision shall begin seven working days after this notice.

    (2) If the transaction is rescinded under this section or as otherwise provided by law and the hearing aid is returned to the licensee, the licensee shall refund to the purchaser any payments or deposits for that hearing aid.  However, the licensee may retain, for each hearing aid, fifteen percent of the total purchase price or one hundred dollars, whichever is less.  The licensee shall also return any goods traded in contemplation of the sale, less any costs incurred by the licensee in making those goods ready for resale.  The refund shall be made within ten days after the rescission.  The buyer shall incur no additional liability for such rescission.

(3) For the purposes of this section, the purchaser shall have recourse against the bond held by the establishment entering into a purchase agreement with the buyer, as provided by RCW 18.35.240.

    Sec. 10.  RCW 18.35.220 and 1987 c 150 s 25 are each amended to read as follows:

    (1) If the ((council)) board determines following notice and hearing, or following notice if no hearing was timely requested, that a person has:

    (a) Violated any provisions of this chapter or chapter 18.130 RCW; or

    (b) Violated any lawful order, or rule of the ((council)) board

an order may be issued by the ((council)) board requiring the person to cease and desist from the unlawful practice.  The ((council)) board shall then take affirmative action as is necessary to carry out the purposes of this chapter.

    (2) If the ((council)) board makes a written finding of fact that the public interest will be irreparably harmed by delay in issuing an order, a temporary cease and desist order may be issued.  Prior to issuing a temporary cease and desist order, the ((council)) board, whenever possible, shall give notice by telephone or otherwise of the proposal to issue a temporary cease and desist order to the person to whom the order would be directed.  Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held to determine whether the order becomes permanent.

    (3) The department, with or without prior administrative proceedings, may bring an action in the superior court to enjoin the acts or practices and to enforce compliance with this chapter, or rule or order under this chapter.  Upon proper showing, injunctive relief or temporary restraining orders shall be granted and a receiver or conservator may be appointed.  The department shall not be required to post a bond in any court proceedings.

    Sec. 11.  RCW 18.35.240 and 1991 c 3 s 85 are each amended to read as follows:

    (1) Every establishment engaged in the fitting and dispensing of hearing aids shall file with the department a surety bond in the sum of ten thousand dollars, running to the state of Washington, for the benefit of any person injured or damaged as a result of any violation by the establishment's employees or agents of any of the provisions of this chapter or rules adopted by the secretary.

    (2) In lieu of the surety bond required by this section, the establishment may file with the department a cash deposit or other negotiable security acceptable to the department.  All obligations and remedies relating to surety bonds shall apply to deposits and security filed in lieu of surety bonds.

    (3) If a cash deposit is filed, the department shall deposit the funds with the state treasurer.  The cash or other negotiable security deposited with the department shall be returned to the depositor one year after the establishment has discontinued the fitting and dispensing of hearing aids if no legal action has been instituted against the establishment, its agents or employees, or the cash deposit or other security.  The establishment owners shall notify the department if the establishment is sold or has discontinued the fitting and dispensing of hearing aids in order that the cash deposit or other security may be released at the end of one year from that date.

    (4) A surety may file with the department notice of withdrawal of the bond of the establishment.  Upon filing a new bond, or upon the expiration of sixty days after the filing of notice of withdrawal by the surety, the liability of the former surety for all future acts of the establishment terminates.

    (5) Upon the filing with the department notice by a surety of withdrawal of the surety on the bond of an establishment or upon the cancellation by the department of the bond of a surety under this section, the department shall immediately give notice to the establishment by certified or registered mail with return receipt requested addressed to the establishment's last place of business as filed with the department.

    (6) The department shall immediately cancel the bond given by a surety company upon being advised that the surety company's license to transact business in this state has been revoked.

(7) Each invoice for the purchase of a hearing aid provided to a customer must clearly display on the first page the bond number of the establishment or the licensee selling the hearing aid.

NEW SECTION. Sec. 12.  A new section is added to chapter 18.35 RCW to read as follows:

    (1) A person licensed under this chapter and not actively fitting and dispensing hearing aids may be placed on inactive status by the department at the written request of the licensee.  The board shall define by rule the conditions for inactive status licensure.  In addition to the requirements of RCW 43.24.086, the licensing fee for a licensee on inactive status shall be directly related to the costs of administering an inactive license by the department.  A person on inactive status may be voluntarily placed on active status by notifying the department in writing, paying the remainder of the licensing fee for the licensing year, and complying with subsection (2) of this section.

    (2) Inactive licensees applying for active licensure shall comply with the following:  A licensee who has not fitted or dispensed hearing aids for more than five years from the expiration of the licensee's full fee license shall retake the practical examinations required under this chapter and shall have completed continuing education requirements within the previous twelve-month period.  Persons who have been on inactive status from two to five years must have within the previous twelve months completed continuing education requirements.  Persons who have been on inactive status for one year or less shall upon application be reinstated as active licensees.  Persons who have inactive status in this state but who are actively licensed and in good standing in any other state shall not be required to meet continuing education requirements or to take the practical examinations, but must submit an affidavit attesting to their knowledge of the current Washington Administrative Code rules and Revised Code of Washington statutes pertaining to the fitting and dispensing of hearing aids."

ESHB 1500 - S COMM AMD

By Committee on Health  & Human Services

                                                    ADOPTED 4/7/93

    On page 1, line 1 of the title, after "aids;" strike the remainder of the title and insert "amending RCW 18.35.010, 18.35.050, 18.35.060, 18.35.110, 18.35.140, 18.35.150, 18.35.161, 18.35.170, 18.35.185, 18.35.220, and 18.35.240; and adding a new section to chapter 18.35 RCW."

                            --- END ---