2005 Regular Session
To: Public Health and Welfare
By: Senator(s) Nunnelee
AN ACT TO BRING FORWARD SECTIONS 73-14-1 THROUGH 73-14-47, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE LICENSURE AND REGULATION OF HEARING AID SPECIALISTS BY THE STATE BOARD OF HEALTH; TO REPEAL SECTION 73-14-49, MISSISSIPPI CODE OF 1972, WHICH PROVIDES AN AUTOMATIC REPEALER ON SAID STATUTES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-14-1, Mississippi Code of 1972, is brought forward as follows:
73-14-1. The State Board of Health established and empowered by Section 41-3-1 et seq., Mississippi Code of 1972, shall discharge as additional duties and responsibilities the provisions of this chapter in the examination, licensing and regulation of persons who sell and fit hearing aids and who test hearing while engaged in the selling and fitting of hearing aids.
SECTION 2. Section 73-14-3, Mississippi Code of 1972, is brought forward as follows:
73-14-3. The following definitions apply as used in this chapter, unless the context otherwise requires:
(a) The "board" means the Mississippi State Board of Health.
(b) "License" includes a temporary license.
(c) "Hearing aid" shall mean any wearable instrument or device designed for or offered for the purpose of aiding or compensating for impaired human hearing and any parts, attachments, or accessories, including ear molds, but excluding such things as telephone devices, batteries and cords.
(d) "Hearing aid specialist" means an individual licensed by the board to engage in the practice of dispensing and fitting hearing aids.
(e) "Practice of dispensing and fitting hearing aids" means the evaluation or measurement of powers or range of human hearing by means of an audiometer and the consequent selection or adaptation or sale of hearing aids intended to compensate for hearing loss, including the making of an impression of the ear.
(f) "Sell" or "sale" means any transfer of title or of the right to use by lease, bailment, or any other contract, excluding wholesale transactions with distributors or dealers.
(g) "Unethical conduct" means:
(i) The obtaining of any fee or the making of any sale by fraud or misrepresentation.
(ii) Knowingly employing directly or indirectly any suspended or unlicensed person to perform any work covered by this chapter.
(iii) Representing that the professional services or advice of a physician or audiologist will be used or made available in the selling, fitting, adjustment, maintenance or repair of hearing aids when that is not true, or using the words "doctor," "clinic," "clinical," and/or "research audiologist," "audiologic," or any other like words, abbreviations or symbols which tend to connote audiological or professional services, when such use is not accurate.
(iv) Permitting another to use his license or certificate or endorsement.
(v) Quoting prices of competitive hearing aids or devices without disclosing that they are not the present current prices, or showing, demonstrating, or representing competitive models as being current models when such is not the fact.
(vi) Imitating or simulating the trademarks, trade names, brands or labels of competitors with the capacity and tendency or effect of misleading or deceiving purchasers or prospective purchasers.
(vii) Defaming competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing, or by other false representations, or falsely disparaging the products of competitors in any respect, or their business methods, selling prices, values, credit terms, policies or services.
(viii) Stating or implying that the use of any hearing aid will restore or preserve hearing, prevent or retard progression of a hearing impairment.
(ix) Dispensing and selling a hearing aid to a child under the age of eighteen (18) years who has not been examined and cleared for hearing aid use by a licensed physician within a six-month period immediately prior to dispensing and selling the hearing aid.
(x) Representing himself as being an audiologist as defined in Section 73-38-3.
SECTION 3. Section 73-14-5, Mississippi Code of 1972, is brought forward as follows:
73-14-5. (1) This chapter is not intended to prevent any person from engaging in the practice of measuring human hearing for the purpose of selection of hearing aids, provided such person or organization employing such person does not sell hearing aids or accessories thereto, except in the case of ear molds to be used only for the purpose of audiologic evaluation.
(2) This chapter shall not apply to any physician or surgeon licensed by the State of Mississippi.
(3) This chapter does not apply to a person while he is engaged in the fitting of hearing aids, provided it is part of the academic curriculum of an accredited institution of higher education or part of a program conducted by a public tax-supported institution or agency or nonprofit organization, unless such person or institution or agency sells hearing aids, and/or accessories, except ear molds.
SECTION 4. Section 73-14-7, Mississippi Code of 1972, is brought forward as follows:
73-14-7. (1) The powers and duties of the Mississippi State Board of Health under this chapter are as follows:
(a) To authorize all disbursements necessary to carry out the provisions of this chapter.
(b) To supervise and administer qualifying examinations to test the knowledge and proficiency of applicants for a license.
(c) To license persons who apply to the board and who are qualified to practice the fitting, dispensing and selling of hearing aids.
(d) To purchase and maintain or rent audiometric equipment and facilities necessary to carry out the examination of applicants for license.
(e) To issue and renew licenses.
(f) To suspend or revoke licenses pursuant to this chapter.
(g) To appoint representatives to conduct or supervise the examining of applicants for license.
(h) To designate the time and place for examining applicants for license.
(i) To make and publish rules and regulations not inconsistent with the laws of this state which are necessary to carry out the provisions of this chapter, in compliance with the provisions of Section 25-43-1 et seq., Mississippi Code of 1972, which is the Administrative Procedures Law.
(j) To require the periodic inspection and calibration of audiometric testing equipment and to carry out the periodic inspection of facilities of persons who practice the fitting or selling of hearing aids.
(k) To establish minimum requirements of test procedures and test equipment to be used in the fitting of hearing aids pursuant to this chapter, also the retention of all fittings and records of fittings by the dealer.
(2) The Hearing Aid Advisory Council appointed pursuant to Section 73-14-7 is hereby continued and reconstituted as follows:
The council shall consist of seven (7) members, four (4) of whom are licensed hearing aid specialists who do not currently hold any other professional license regulated by the State Board of Health, one (1) of whom is a licensed audiologist, one (1) of whom is a licensed physician, board certified in otolaryngology, and one (1) of whom is a person of the board's own choosing from the state at large, and said person shall be hearing impaired. The person of the board's choosing shall not be a member of nor have personal interest in any organization associated with hearing aid specialists.
No person shall serve more than two (2) full consecutive terms. No more than three (3) members shall be appointed to said council from any one (1) Supreme Court district. The hearing aid specialist appointments may be made from a list of at least three (3) licensed hearing aid specialists furnished by the Mississippi Hearing Aid Dealer Association, or its successor, for each vacancy on the council, who have practiced and resided for three (3) years in the state. The audiologist appointment may be made from a list of at least three (3) licensed audiologists furnished by the Mississippi Speech and Hearing Association, who has practiced and resided for three (3) years in the state. The licensed physician appointment may be made from a list of at least three (3) board certified otolaryngologists furnished by the Mississippi Eye, Ear, Nose and Throat Association, who has practiced and resided for three (3) years in the state. Appointments to the council to fill a vacancy occurring for other than expiration of a term shall only be made for the remainder of the expired term. The council shall promulgate such rules and regulations by which it shall conduct its business. Members of the council shall receive no salary for services performed on the council but may be reimbursed for their reasonable and necessary actual expenses incurred in the performance of the same, from funds provided for such purpose. The council shall assist and advise the board in the development of regulations and standards governing the licensure of hearing aid dealers. Council members may be removed from office if found guilty of any violation of any provision of this chapter. A council member subject to formal disciplinary proceedings shall disqualify himself from any council business until the charge is resolved. A member must also disqualify himself from any council business on which he may not make an objective evaluation and/or decision.
SECTION 5. Section 73-14-13, Mississippi Code of 1972, is brought forward as follows:
73-14-13. Any person who practices the fitting or dispensing of hearing aids shall deliver to each person supplied with a hearing aid, by him or at his order or direction, a bill of sale which shall contain his signature and show the address of his regular place of practice and the number of his license, together with a description of the make and model of the hearing aid furnished, the serial number of the hearing aid furnished, and the amount charged therefor. The bill of sale shall also reveal the condition of the hearing device and whether it is new, used or rebuilt.
SECTION 6. Section 73-14-15, Mississippi Code of 1972, is brought forward as follows:
73-14-15. No person shall engage in the sale or practice of dispensing and fitting hearing aids or display a sign or in any other way advertise or hold himself out as a person who practices the dispensing and fitting of hearing aids unless he holds a current, unsuspended, unrevoked license by the board as provided in this chapter. The license required by this section shall be kept conspicuously posted in his office or place of business at all times.
SECTION 7. Section 73-14-17, Mississippi Code of 1972, is brought forward as follows:
73-14-17. An applicant for a license shall pay a fee of One Hundred Dollars ($100.00) and shall show to the satisfaction of the board that he:
(a) Is twenty-one (21) years of age or older.
(b) Has an education equivalent to a four-year course in an accredited high school.
No governmental entity or agency shall be required to pay the fee or fees set forth in this section.
Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.
SECTION 8. Section 73-14-19, Mississippi Code of 1972, is brought forward as follows:
73-14-19. An applicant for a license who is notified by the board that he has fulfilled the requirements of Section 73-14-17 and upon paying a testing fee determined by the department as necessary to cover the expense of the administration of the examination not to exceed One Hundred Fifty Dollars ($150.00), shall appear at a time, place and before such persons as the board may designate, to be examined by written and practical test in order to demonstrate that he is qualified to practice the fitting, dispensing and selling of hearing aids.
SECTION 9. Section 73-14-21, Mississippi Code of 1972, is brought forward as follows:
73-14-21. The examination provided in Section 73-14-19 shall be selected by the board, with advice of the council, and may also include an oral examination at the discretion of the board. The tests under this section shall not include questions requiring a medical or surgical education. It is the intent of this section that the exams administered under this chapter be of such a level as to provide that at a minimum an individual having a high school education or its equivalent and with appropriate study, training and supervision under the direction of a qualified hearing aid specialist should be able to pass.
SECTION 10. Section 73-14-23, Mississippi Code of 1972, is brought forward as follows:
73-14-23. The board shall register each applicant who satisfactorily passes the examination and then issue such applicant a license. The license shall be effective until July 1 next following issuance.
SECTION 11. Section 73-14-25, Mississippi Code of 1972, is brought forward as follows:
73-14-25. The department may license as a hearing aid specialist, and furnish a certificate of licensure, to any applicant who presents evidence, satisfactory to the department of having passed an examination before a similar lawfully authorized examining agency or board of hearing aid specialists of another state or the District of Columbia, if the standards for registration of hearing aid specialists or for licensure as a hearing aid specialist in such state or district are determined by the department to be as high as those of this state, and if that jurisdiction affords licensees of this state reciprocity.
Any person making application for licensure under the provisions of this section may, at the discretion of the board, be required to pass an examination selected by the board.
SECTION 12. Section 73-14-27, Mississippi Code of 1972, is brought forward as follows:
73-14-27. (1) An applicant who fulfills the requirements of Section 73-14-17 and who has not previously applied to take the examination provided under Section 73-14-19 may apply to the board for a temporary license.
(2) Upon receiving an application provided under subsection (1) of this section, the board shall issue a temporary license which shall entitle the applicant to practice the fitting and dispensing of hearing aids for a period ending thirty (30) days after the conclusion of the next examination given after the date of issue.
(3) No temporary license shall be issued by the board under this section unless the applicant shows to the satisfaction of the board that he is or will be supervised and trained by a person who:
(a) Holds a current and valid document of being National Board Certified in Hearing Instrument Sciences by the International Hearing Society (IHS) or its successor; or
(b) Holds a current and valid Certificate of Clinical Competence in Audiology from the American Speech-Language-Hearing Association (ASHA); or
(c) Has had a minimum of three (3) years' experience in the testing of hearing, fitting of hearing aids and dispensing of hearing aids.
(4) If a person who holds a temporary license issued under this section does not take the next examination given after the date of issue, the temporary license shall not be renewed, except for good cause shown to the satisfaction of the board.
(5) If a person who holds a temporary license issued under this section takes and fails to pass the next examination given after the date of issue, the board may renew the temporary license for a period ending thirty (30) days after the date of renewal is announced. In no event shall more than one (1) renewal be permitted. The fee for renewal shall be Fifty Dollars ($50.00).
SECTION 13. Section 73-14-31, Mississippi Code of 1972, is brought forward as follows:
73-14-31. A person who practices the fitting and dispensing of hearing aids shall biennially pay to the board a fee of Two Hundred Dollars ($200.00) for a renewal of his license. A grace period of thirty (30) days shall be allowed after the expiration of a license, during which the same may be renewed on payment of a fee of Two Hundred Dollars ($200.00) to the board. The license of any person who fails to have his license renewed by the expiration of the grace period of thirty (30) days shall be considered to have lapsed. After the expiration of the grace period, the board may reinstate a license upon payment of a fee of Two Hundred Fifty Dollars ($250.00) to the board. No person who applies for reinstatement, whose license was suspended for the sole reason of failure to renew, shall be required to submit to any examination as a condition of reinstatement, provided such person applies for reinstatement within one (1) year from the date of lapse of the license.
The board shall require the applicant for license renewal to present evidence of the satisfactory completion of continuing education requirements as determined by the board.
In the event that any licensee shall fail to meet the annual educational requirement, his license shall not be renewed by the board, but the board may renew the license upon the presentation of satisfactory evidence of educational study of a standard approved by the board and upon the payment of all fees due. No governmental entity or agency shall be required to pay the fee or fees set forth in this section.
SECTION 14. Section 73-14-33, Mississippi Code of 1972, is brought forward as follows:
73-14-33. A person who holds a license or temporary license shall notify the board in writing of the address of the place or places where he engages or intends to engage in the practice of fitting or dispensing of hearing aids.
The board shall keep a record of the places of practice of persons who hold licenses or temporary licenses. Any notice required to be given by the board to a person who holds a license or temporary license may be given by mailing it to him at the address given by him to the board.
A person who holds a license or temporary license to practice as a hearing aid specialist in this state but whose principal place of business is not in this state shall certify to the board that they will:
(a) Display their Mississippi license while conducting business in Mississippi; and
(b) Shall make all records regarding clients who are residents of Mississippi available to the licensing authority within seventy-two (72) hours of receiving such a request in writing.
Failure to comply with the requirements of (a) or (b) above shall constitute grounds for disciplinary action under the provisions of this chapter and/or rules and regulations promulgated pursuant to this chapter.
SECTION 15. Section 73-14-35, Mississippi Code of 1972, is brought forward as follows:
73-14-35. (1) Any person registered under this chapter may have his license or certificate revoked or suspended for a fixed period to be determined by the board for any of the following causes:
(a) Being convicted of an offense involving moral turpitude. The record of such conviction, or certified copy thereof from the clerk of the court where such conviction occurred or by the judge of that court, shall be sufficient evidence to warrant revocation or suspension.
(b) By securing a license or certificate under this chapter through fraud or deceit.
(c) For unethical conduct or for gross ignorance or inefficiency in the conduct of his practice.
(d) For knowingly practicing while suffering with a contagious or infectious disease.
(e) For the use of a false name or alias in the practice of his profession.
(f) For violating any of the provisions of this chapter or any rules or regulations promulgated pursuant to this chapter.
(g) For violating the provisions of any applicable federal laws or regulations.
(h) Discipline by another jurisdiction if at least one (1) of the grounds for the discipline is the same or substantially equivalent to those set forth in this chapter or rules and regulations promulgated pursuant to this chapter.
(2) In addition to the causes specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 16. Section 73-14-37, Mississippi Code of 1972, is brought forward as follows:
73-14-37. (1) Any person, whose license is sought to be revoked under the provisions of this chapter, shall be given thirty (30) days' notice, in writing, enumerating the charges and specifying a date for public hearing thereon. The hearing shall be held in the county where the person's business is conducted. The board may issue subpoenas, compel the attendance and testimony of witnesses, and place them under oath, the same as any court of competent jurisdiction where the hearing takes place.
(2) At all hearings the board may designate in writing one or more persons deemed competent by the board to conduct the hearing as trial examiner or trial committee, with the decision to be rendered in accordance with the provisions of subsection (3) of this section.
(3) After a hearing has been completed the trial examiner or trial committee who conducted the hearing shall proceed to consider the case and, as soon as practicable, shall render a decision. In any case, the decision must be rendered within sixty (60) days after the hearing. The decision shall contain:
(a) The findings of fact made by the trial examiner or trial committee;
(b) Conclusions of law reached by the trial examiner or trial committee; and
(c) The order based upon these findings of fact and conclusions of law.
SECTION 17. Section 73-14-39, Mississippi Code of 1972, is brought forward as follows:
73-14-39. (1) From any revocation, the person charged may, within thirty (30) days thereof, appeal to the chancery court of the county of the residence of the licensee.
(2) Notice of appeals shall be filed in the office of the clerk of the court, who shall issue a writ of certiorari directed to the board, commanding it within ten (10) days after service thereof to certify to such court its entire record in the matter in which the appeal has been taken. The appeal shall thereupon be heard in the due course by said court without a jury, and the court shall review the record and make its determination of the cause between the parties.
(3) Any order, rule or decision of the board shall not take effect until after the time of appeal in the said court shall have expired. If there is an appeal, such appeal may, in the discretion of and on motion to the chancery court, act as a supersedeas. The chancery court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may, in the discretion of the chancellor, be tried in vacation.
(4) Any person taking an appeal shall post a satisfactory bond in the amount of Two Hundred Dollars ($200.00) for payment of any costs which may be adjudged against him.
(5) Actions taken by the board in suspending a certificate of registration when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a suspension of a certificate that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 18. Section 73-14-41, Mississippi Code of 1972, is brought forward as follows:
73-14-41. No person may:
(a) Sell, barter or offer to sell or barter a license.
(b) Purchase or procure by barter a license with intent to use it as evidence of the holder's qualifications to practice the fitting and dispensing of hearing aids.
(c) Alter materially a license with fraudulent intent.
(d) Use or attempt to use as a valid license one which has been purchased, fraudulently obtained, counterfeited or materially altered.
(e) Willfully make a false material statement in an application for registration or for renewal of a license.
SECTION 19. Section 73-14-43, Mississippi Code of 1972, is brought forward as follows:
73-14-43. Violation of any provision of this chapter is a misdemeanor punishable upon conviction by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not more than ninety (90) days in the county jail, or by both.
SECTION 20. Section 73-14-45, Mississippi Code of 1972, is brought forward as follows:
73-14-45. The board may enforce any provisions of this chapter by injunction or by any other appropriate proceeding. No such proceeding shall be barred by any proceeding had or pending pursuant to any other section of this chapter, and the authority conferred in this chapter is in addition to and supplementary to any other statute, civil or criminal, dealing with the subject matters herein and the institution and prosecution of any action shall not preclude the institution and prosecution under other appropriate civil or criminal statutes dealing therewith.
SECTION 21. Section 73-14-47, Mississippi Code of 1972, is brought forward as follows:
73-14-47. All fees and monies received by the board under this chapter shall be deposited in a special fund hereby created in the State Treasury and shall be used for the implementation and administration of this chapter when appropriated by the Legislature for such purpose.
SECTION 22. Section 73-14-49, which provides an automatic repealer on those statutes which provide for the licensure and regulation of hearing aid specialists by the State Board of Health, is hereby repealed.
SECTION 23. This act shall take effect and be in force from and after June 30, 2005.