WSR 99-01-096

PROPOSED RULES

DEPARTMENT OF HEALTH

[Filed December 17, 1998, 10:00 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-22-090.

Title of Rule: Purchaser recision rights.

Purpose: The amendments will identify the recision amount determined by the board. The amendments will also simplify and clarify the required language and format of the required purchase agreement used by hearing instrument fitter/dispensers in the sale of hearing instruments.

Statutory Authority for Adoption: RCW 18.35.161.

Statute Being Implemented: RCW 18.35.185(2).

Summary: The recision amount required by statute is not currently indicated in WAC. The recision amount is the amount of money the hearing instrument fitter/dispenser is allowed to keep when a purchaser chooses to cancel the agreement.

Reasons Supporting Proposal: The proposed amendments take consumer groups and hearing instrument fitter/dispenser suggestions and clarify the purchaser's rights and require that the purchase agreement be in larger print than previously required.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Department of Health, Board of Hearing and Speech, 1300 Quince Street, Olympia, WA, (360) 236-4916.

Name of Proponent: Washington Hearing Aid Society, private.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 246-828-290 defines the receipt, disclosure and notice to buyer information that must be provided in the purchase agreement as required by RCW 18.35.030 and [18.35.]185. This rule also defines the purchase agreement format and determines the recision amount.

This rule is intended to protect the public from being misled and suffering financial harm as a result of unclear, confusing and incomplete purchase agreements.

Proposal Changes the Following Existing Rules: The amendments identify the recision amount determined by the Board of Hearing and Speech, not included in the current rule.

The amendments simplify and clarify the required language and format of the purchase agreement used by hearing instrument fitter/dispensers in the sale of hearing instruments.

The amendments will provide consumers with information regarding recision of the agreement that is presented in a readable format (larger print) and in understandable language.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no disproportionate affect on small and large entities.

RCW 34.05.328 does not apply to this rule adoption. This rule does not subject a person to a penalty or sanction; does not establish, alter or revoke a qualification or standard for certification or licensure; and does not make significant amendments to a policy or regulatory program. This rule identifies the recision amount, language and format of the purchase agreement required in the sale of hearing instruments as required by RCW 18.35.185.

Hearing Location: Department of Health, 1101 South Eastside, Olympia, WA 98504, on February 19, 1999, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Betty Bird by January 25, 1999, TDD (800) 525-0127 or (360) 236-4916.

Submit Written Comments to: Diane Young, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, fax (360) 236-4918, by February 15, 1999.

Date of Intended Adoption: February 19, 1999.

December 4, 1998

Sheila Winkler, Chair

Board of Hearing and Speech

OTS-2083.3

AMENDATORY SECTION (Amending Order 165B, filed 5/8/91, effective 6/8/91)

WAC 246-828-290  Purchaser recision rights. ((In addition to the receipt and disclosure information required by RCW 18.35.030, 63.14.040 and 63.14.120, every retail agreement for the sale of a hearing aid shall contain or have attached the following notice to buyer in ten point boldface type or larger on the front page in reasonable proximity to the purchaser signature line.

The notice of additional rights must be made known to the purchaser before the contract is executed. Such knowledge shall be demonstrated by the signature of the purchaser following a statement of those "additional rights" or following a statement on the face of the contract that the purchaser has been advised and is aware of the "additional rights." The "additional rights" must be provided in writing to the purchaser by the licensee and be in ten point boldface type or larger.

Notice to Buyer

(1) Do not sign this agreement before you read it or if any spaces intended for the agreed terms, except as to unavailable information, are blank.

(2) You are entitled to a copy of this agreement at the time you sign it.

(3) You may cancel this agreement if it was solicited in person, and you sign it, at a place other than the seller's business address shown on the agreement, by sending notice of such cancellation by certified mail, return receipt requested, to the seller at his address shown on the agreement, which notice shall be posted not later than midnight of the third day (excluding Sundays and holidays) following your signing this agreement; you must return or make available to the seller at the place of delivery any merchandise, in its original condition, received by you under this agreement.

Additional Rights

In addition to the rights and remedies provided for under the above circumstances, you, the purchaser, have the right to rescind the transaction for other than the seller's breach if, for reasonable cause, you return the hearing aid or hold it at the seller's disposal and the hearing aid is in its original condition less normal wear and tear, and you send a notice to the licensee's regular place of business by certified mail, return receipt requested. The notice should state that the transaction is cancelled pursuant to RCW 18.35.190(3) and must be mailed not later than thirty days following the date of delivery. Reasonable cause does not include a mere change of mind or cosmetic concerns.

In the event of cancellation under RCW 18.35.190(3), or as otherwise provided by law, the licensee must, without further request, refund to you postmarked within ten days after such cancellation, all deposits, including down payment, less fifteen percent of the total purchase price or one hundred dollars per hearing aid, whichever is less. He must also return all goods traded in.

You, the buyer, shall incur no additional liability for such cancellation. If you have taken the steps described above to cancel the purchase and subsequently agree with the seller to extend the trial or recision period, you remain entitled to receive the refund upon demand made within sixty days of the original date of delivery or such other time as agreed to in writing by both parties. Written notice of the last date for demanding a refund is to be provided to you at the time the trial or recision period is extended.)) In addition to the receipt and disclosure information required by RCW 18.35.030, 18.35.185, 63.14.040 and 63.14.120, every retail agreement for the sale of hearing instruments shall contain or have attached the following notice to buyer in twelve point type or larger. The language in part 1 under "Notice to Buyer" is intended to have the same legal effect as the notices required in RCW 63.14.040(2) and 63.14.120(3) and may be substituted for those notices.

The rights summarized in the "Notice to Buyer" must be made known to the purchaser before the contract is executed. The licensee or certificate holder must provide this "Notice to Buyer" in writing to the purchaser. The purchaser must demonstrate knowledge of these rights by initialing each numbered section of the "Notice to Buyer" and by signing his or her name in the appropriate space following the "Notice to Buyer."

Notice to Buyer

Do not sign this agreement before you read it or if any spaces intended for the agreed terms are blank.

You are entitled to receive a copy of this agreement at the time you sign it.

The seller's business address must be shown on the agreement.

Section 1 CANCELLATION - WITHIN THREE DAYS Purchaser's Initial. . .

You may cancel this agreement within three days, without explaining your reasons, if the seller solicited it in person and you signed it at a place other than the seller's business address.

To cancel this agreement without explaining your reasons, you must notify the seller in writing that you are canceling the agreement. You may deliver the written notice to the seller at the seller's business address. Alternatively, you may send the written notice by certified mail, return receipt requested, to the seller at the seller's business address.

Your written notice must be mailed or delivered by midnight of the third business day after you signed this agreement.

Any merchandise you received under this agreement must be in its original condition. You must return it to the seller or make it available to the seller at the same place it was delivered to you.

The seller must refund to you all deposits, including any down payment, and must return to you all goods traded in as part of the agreement.

You will incur no additional liability for canceling the agreement.

Section 2 RECISION - WITHIN THIRTY DAYS Purchaser's initial . . .

You may rescind (or terminate) the agreement within thirty days, for reasonable cause. This thirty-day period is called the "recision period."

To rescind this agreement, you must notify the seller in writing that you are rescinding the agreement for reasonable cause pursuant to RCW 18.35.185(1). (Reasonable cause does not include cosmetic concerns or a mere change of mind.) You may deliver the written notice to the seller at the seller's business address. Alternatively, you may send the written notice by certified mail, return receipt requested, to the seller at the seller's business address.

Your written notice must be mailed or delivered by midnight of the thirtieth day after you signed this agreement.

Any merchandise you received under this agreement must be in its original condition, except for normal wear and tear. You must return it to the seller or make it available to the seller at the same place it was delivered to you.

The seller must refund to you all deposits, including any down payment, and must return to you all goods traded in as part of the agreement. However, for each hearing instrument you return, the seller may keep either one hundred fifty dollars or fifteen percent of the total purchase price, whichever is less. The seller also may deduct any costs incurred in making traded-in goods ready for resale.

The seller must refund your money and return your traded goods, or have them postmarked and in the mail to you, within ten business days after receiving your notice of recision.

You will incur no additional liability for rescinding the agreement.

Section 3 EXTENSION OF RECISION PERIOD Purchaser's Initial . . .

If you notify the seller within the thirty-day recision period that your hearing instrument has developed a problem that constitutes reasonable cause to rescind the agreement or that prevents you from evaluating your hearing instrument, the seller must extend the recision period. The recision period stops running on the date you notify the seller of the problem and starts running again on the date the seller notifies you that your hearing instrument is ready for redelivery.

You and the seller may agree to a recision period longer than thirty days.

Whenever the recision period is extended, the seller must provide you written notice of the last date upon which you may demand a refund and return of traded goods.

[Statutory Authority: RCW 18.35.161. 91-11-031 (Order 165B), recodified as § 246-828-290, filed 5/8/91, effective 6/8/91; 86-09-064 (Order PL 586), § 308-50-330, filed 4/17/86; Order PL 190, § 308-50-330, filed 5/23/75; Order PL 159, § 308-50-330, filed 2/8/74.]

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