Chapter 4753-8 Hearing Aid Sales and Advertising

4753-8-01 Definitions.

(A) "Hearing aid" means any wearable instrument or device designed or offered for the purpose of aiding or compensating for impaired human hearing, including all attachments, accessories, and parts thereof, except batteries and cords.

(B) "Practice of dispensing" or "fitting" of hearing aids means the sale of a hearing aid, and the measurement and testing of human hearing by means of an audiometer or by any other means for the purpose of selecting, adapting, and selling a hearing aid to any person, and includes the making of impressions for earmolds.

(C) "Dispensing audiologist" means an audiologist who is licensed pursuant to Chapter 4753. of the Revised Code and who is engaged in the practice of dispensing or fitting of hearing aids.

(D) "Dispense," "sell" or "sale" means the retail transfer of title or of the right to use by lease, bailment, or any other contract, but does not include a wholesale sale to a distributor or dealer.

(E) "Assistive listening device" means an auxiliary aid which enhances ease of communication, telephone communication, and reception of important warning signals.

(F) "Advertising" includes all advertisements to the general public offering replicas, descriptive literature on assistive listening devices, wearable hearing aids or hearing loss, etc., placed by an audiologist licensed under Chapter 4753. of the Revised Code or an organization whose business includes the merchandising of hearing aids and assistive listening devices for sale.

R.C. 119.032 review dates: 12/1/2012 and 11/16/2017
Promulgated Under: 119.03
Statutory Authority: 4753.05
Rule Amplifies: 4753.01(G) , 4753.05
Prior Effective Dates: Eff 11-16-92 (Emer.); 2-9-93; 6-27-97; 6-26-03

4753-8-03 Rules on appropriate hearing aid test procedures.

(A) An audiologist is responsible for the accuracy of an evaluation and shall utilize the results of appropriate evaluative procedures on every individual to whom he/she sells or fits a hearing aid. He/she shall retain the results on file for a period of at least three years for adult patients, or in the case of patients under the age of twenty-one years, three years past the date of the patient's twenty first birthday, or as required by federal or state laws and regulations.

(B) An audiologist shall advise a prospective hearing aid user to consult promptly with a licensed physician (preferably an ear specialist) before dispensing a hearing aid if medical intervention is indicated by documented case history, actual observation, or review of any diagnostic audiological or other available information concerning the prospective user.

(C) An audiologist shall only sell hearing aids to a prospective user who has presented one of the following types of documentation, which document shall be retained by the audiologist for three years after the dispensing of a hearing aid:

(1) A written statement, signed by a licensed physician, that states the prospective user is his/her patient, the patient's hearing loss has been medically evaluated on a date that is within the six months preceding the sale, and the patient may be considered a candidate for a hearing aid.

(2) A written waiver of the medical evaluation signed by the prospective user provided all of the following conditions are met:

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

(b) The audiologist informs the prospective user that the exercise of the waiver is not in the user's best health interest;

(c) The audiologist does not in any way actively encourage the prospective user to waive such a medical evaluation;

(d) The waiver consists of the following statement printed in boldface type of the minimum of ten points:

"I have been advised by (Audiologist"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."; and

(e) The audiologist provides the prospective user with a copy of the signed waiver.

(D) The failure to comply with the procedures and requirements of this rule shall constitute the committing of fraud, deception, or misrepresentation in the practice of audiology, committing an act of dishonorable, immoral, or unprofessional conduct while engaging in the practice of audiology, or any other conduct enumerated in section 4753.10 of the Revised Code.

R.C. 119.032 review dates: 11/15/2012 and 12/01/2017
Promulgated Under: 119.03
Statutory Authority: 4753.05
Rule Amplifies: 4753.01(G) , 4753.05 , 4753.10
Prior Effective Dates: 11-16-92 (Emer.); 2-9-93; 6-27-97; 6-26-03

4753-8-04 Sales receipt.

(A) An audiologist shall furnish each person supplied with a hearing aid receipt showing the licensee's signature, the number of his/her license certificate, the complete address of his/her place of business, a complete description of the make and model of hearing aid furnished, the full terms of sale, including the terms of guarantee, if any, and if the hearing aid sold is not new, the receipt shall also be clearly marked "used" or "reconditioned," whichever is applicable. Each receipt shall also bear, in type no smaller than that used in the body of the receipt, the following legend: "the purchaser is advised that any examination, fitting, recommendation, or representation made by a licensed hearing aid dealer or fitter in connection with the sale of this hearing aid is not an examination, diagnosis, or prescription made by a person licensed to practice medicine in this state and, therefore must not be regarded as medical opinion or advice."

(B) In accordance with division (C) of section 1345.30 of the Revised Code, the following shall appear on the sales receipt:

Right to return the hearing aid within thirty days and receive a refund

Under Ohio law (section 1345.30 of the Revised Code), a consumer has the right to return a hearing aid for any reason within thirty days after it is originally delivered to the consumer or a person acting on the consumer's behalf and receive a refund of the consideration paid for the hearing aid less an amount specified by the hearing aid dealer, physician, or audiologist to cover expenses incurred in connection with the hearing aid not later than fifteen days after presenting proof of payment for the hearing aid and returning it in the condition in which it was received, except for normal wear and tear. In this case the amount deducted from the refund will be $......

(C) The following definitions shall apply:

(1) The signature used on the customer's receipt shall be that of the licensed individual making the sale and must be the same name under which the audiologist's license was issued to that individual license.

(2) The "complete address of his/her place of business" includes the telephone number of the business.

(3) "A complete description of the make and model of the hearing aid furnished" includes the serial number of the hearing aid, which shall be added to the sales receipt at the time the hearing aids are delivered to buyer.

(D) The terms of guarantee statement on the sale receipt shall be satisfied by one of the following statements printed in type no smaller than that used in the body of the receipt:

(1) Full terms of guarantee printed on the receipt and, if printed on the back of the receipt, a reference is to appear on the face of the receipt, such as "terms of guarantee on reverse side."

(2) A statement such as "the aid(s) listed on this receipt are covered by a guarantee, the details of which are supplied on a separate form at the time of execution of this receipt" shall appear above the purchaser's signature.

(E) In accordance with section 4753.10 of the Revised Code, the board may reprimand, place on probation, suspend, revoke or refuse to issue or renew the license of any audiologist who does not exercise appropriate procedures as set forth in this rule.

Five Year Review (FYR) Dates: 09/23/2014 and 09/23/2018
Promulgated Under: 119.03
Statutory Authority: 4753.05
Rule Amplifies: 4753.05 , 4753.12(K) , 4753.14
Prior Effective Dates: 11/16/1992 (Emer.), 2/9/93, 6/27/97

4753-8-05 Fraud or misrepresentation; hearing aid, assistive listening device; disciplinary action.

(A) Fraud or misrepresentation: No audiologist shall misrepresent the facts or commit fraudulent acts before, during or after the sale of a hearing aid or assistive listening device, and neither shall he/she use either means to obtain any fee. Any of the following representations may be considered as fraudulent or a misrepresentation:

(1) That the hearing aid or assistive listening device has sponsorship, approval, performance characteristics, accessories, or uses it does not have;

(2) That the hearing aid or assistive listening device will provide benefits it will not provide;

(3) That the hearing aid or assistive listening device is of a particular brand, model, engineering design or prescription if it is not;

(4) That the hearing aid or assistive listening device is new or reconditioned if it is not;

(5) That a hearing aid or assistive listening device is in need of extensive repairs or is in need of replacement if it is not;

(6) That the hearing aid or assistive listening device is available to the purchaser for a reason that does not exist; and

(7) That the hearing aid or assistive listening device may be purchased below the dealer's regular price because of a special price advantage, if it does not.

(B) In determining whether an act or practice is fraudulent or constitutes misrepresentation, the following circumstances shall be considered, but not exclusively. Whether the licensed audiologist:

(1) Took advantage of the inability of the purchaser reasonably to protect his/her interests because of his/her physical or mental infirmities, ignorance, illiteracy or his/her inability to understand the language of an agreement either verbal or written;

(2) Did not fully inform the purchaser of a hearing aid or assistive listening device with obviously poor discrimination for speech of his/her inability to obtain a reasonable benefit;

(3) Made statements to mislead the purchaser into believing his/her hearing will suffer if he/she does not purchase either one or two aids or assistive listening devices;

(4) Required the hearing aid or assistive listening device purchaser to agree to contract terms which were substantially one-sided in favor of the audiologist;

(5) Made a false statement of fact on which the hearing aid or assistive listening device purchaser was likely to rely, to his/her detriment; and

(6) Informed the person(s) served that his/her present hearing aid or assistive listening device was beyond repair or inappropriate for the type or amount of loss when there was no evidence to support these statements.

(C) By reason of the authority of section 119.061 of the Revised Code, the board may in addition to those reasons enumerated in Chapter 4753 of the Revised Code, also reprimand, place on probation, suspend, revoke, refuse to issue or renew license if the holder thereof engages in a deceptive trade practice as defined under section 4165.02 of the Revised Code; and, as provided by section 4165.02 of the Revised Code, the licensee will be considered to have engaged in a deceptive trade practice if, in the practice of dealing in or fitting of hearing aids or sale of assistive listening devices as defined by Chapter 4753 of the Revised Code, that licensee:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or misunderstanding as to affiliation, connection, or association with, or certification by another;

(4) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, in quantities that they do not have or that a person has sponsorship, approval, status affiliation, or connection that he/she does not have;

(5) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;

(6) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(7) Disparages the goods, services, or business of another by false representation of fact;

(8) Advertises goods or services with intent not to sell them as advertised;

(9) Makes false statements of fact concerning the reasons for existence of. or amounts of price reductions; and

(10) Advertises goods or services with intent not to supply reasonable expectable public demand, unless the advertisements discloses a limitation of quantity.

R.C. 119.032 review dates: 11/15/2012 and 12/01/2017
Promulgated Under: 119.03
Statutory Authority: 4753.05
Rule Amplifies: 4753.05 , 4753.12(K) , 4753.14
Prior Effective Dates: 11/16/1992 (Emer.), 2/9/93, 6/27/97