HB0530 EngrossedLRB098 03348 MGM 33363 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Hearing Instrument Consumer Protection Act
5is amended by changing Sections 3 and 6 as follows:
 
6    (225 ILCS 50/3)  (from Ch. 111, par. 7403)
7    (Section scheduled to be repealed on January 1, 2016)
8    Sec. 3. Definitions. As used in this Act, except as the
9context requires otherwise:
10    "Department" means the Department of Public Health.
11    "Director" means the Director of the Department of Public
12Health.
13    "License" means a license issued by the State under this
14Act to a hearing instrument dispenser.
15    "Licensed Audiologist" means a person licensed as an
16audiologist under the Illinois Speech-Language Pathology and
17Audiology Practice Act.
18    "National Board Certified Hearing Instrument Specialist"
19means a person who has had at least 2 years in practice as a
20licensed hearing instrument dispenser and has been certified
21after qualification by examination by the National Board for
22Certification in Hearing Instruments Sciences.
23    "Licensed physician" or "physician" means a physician

 

 

HB0530 Engrossed- 2 -LRB098 03348 MGM 33363 b

1licensed in Illinois to practice medicine in all of its
2branches.
3    "Trainee" means a person who is licensed to perform the
4functions of a hearing instrument dispenser in accordance with
5the Department rules and only under the direct supervision of a
6hearing instrument dispenser or audiologist who is licensed in
7the State.
8    "Board" means the Hearing Instrument Consumer Protection
9Board.
10    "Hearing instrument" or "hearing aid" means any wearable
11instrument or device designed for or offered for the purpose of
12aiding or compensating for impaired human hearing and that can
13provide more than 15 dB full on gain via a 2cc coupler at any
14single frequency from 200 through 6000 cycles per second, and
15any parts, attachments, or accessories, including ear molds.
16"Hearing instrument" or "hearing aid" do not include batteries,
17cords, instrument or device designed, intended, or offered for
18the purpose of improving a person's hearing and any parts,
19attachments, or accessories, including earmold. Batteries,
20cords, and individual or group auditory training devices and
21any instrument or device used by a public utility in providing
22telephone or other communication services are excluded.
23    "Practice of fitting, dispensing, or servicing of hearing
24instruments" means the measurement of human hearing with an
25audiometer, calibrated to the current American National
26Standard Institute standards, for the purpose of making

 

 

HB0530 Engrossed- 3 -LRB098 03348 MGM 33363 b

1selections, recommendations, adaptions, services, or sales of
2hearing instruments including the making of earmolds as a part
3of the hearing instrument.
4    "Sell" or "sale" means any transfer of title or of the
5right to use by lease, bailment, or any other contract,
6excluding wholesale transactions with distributors or dealers.
7    "Hearing instrument dispenser" means a person who is a
8hearing care professional that engages in the selling, practice
9of fitting, selecting, recommending, dispensing, or servicing
10of hearing instruments or the testing for means of hearing
11instrument selection or who advertises or displays a sign or
12represents himself or herself as a person who practices the
13testing, fitting, selecting, servicing, dispensing, or selling
14of hearing instruments.
15    "Fund" means the Hearing Instrument Dispenser Examining
16and Disciplinary Fund.
17    "Hearing Care Professional" means a person who is a
18licensed audiologist, a licensed hearing instrument dispenser,
19or a licensed physician.
20(Source: P.A. 96-846, eff. 6-1-10.)
 
21    (225 ILCS 50/6)  (from Ch. 111, par. 7406)
22    (Section scheduled to be repealed on January 1, 2016)
23    Sec. 6. Mail order and Internet sales. Nothing in this Act
24shall prohibit a corporation, partnership, trust, association,
25or other organization, maintaining an established business

 

 

HB0530 Engrossed- 4 -LRB098 03348 MGM 33363 b

1address, from engaging in the business of selling or offering
2for sale hearing instruments at retail by mail or by Internet
3to persons 18 years of age or older who have not been examined
4by a licensed physician or tested by a licensed hearing
5instrument dispenser provided that:
6    (a) The organization is registered by the Department prior
7to engaging in business in this State and has paid the fee set
8forth in this Act.
9    (b) The organization files with the Department, prior to
10registration and annually thereafter, a Disclosure Statement
11containing the following:
12        (1) the name under which the organization is doing or
13    intends to do business and the name of any affiliated
14    company which the organization recommends or will
15    recommend to persons as a supplier of goods or services or
16    in connection with other business transactions of the
17    organization;
18        (2) the organization's principal business address and
19    the name and address of its agent in this State authorized
20    to receive service of process;
21        (3) the business form of the organization, whether
22    corporate, partnership, or otherwise and the state or other
23    sovereign power under which the organization is organized;
24        (4) the names of the directors or persons performing
25    similar functions and names and addresses of the chief
26    executive officer, and the financial, accounting, sales,

 

 

HB0530 Engrossed- 5 -LRB098 03348 MGM 33363 b

1    and other principal executive officers, if the
2    organization is a corporation, association, or other
3    similar entity; of all general partners, if the
4    organization is a partnership; and of the owner, if the
5    organization is a sole proprietorship, together with a
6    statement of the business background during the past 5
7    years for each such person;
8        (5) a statement as to whether the organization or any
9    person identified in the disclosure statement:
10            (i) has during the 5 year period immediately
11        preceding the date of the disclosure statement been
12        convicted of a felony, pleaded nolo contendere to a
13        felony charge, or been held liable in a civil action by
14        final judgment, if such felony or civil action involved
15        fraud, embezzlement, or misappropriation of property,
16        and a description thereof; or
17            (ii) is subject to any currently effective
18        injunctive or restrictive order as a result of a
19        proceeding or pending action brought by any government
20        agency or department, and a description thereof; or
21            (iii) is a defendant in any pending criminal or
22        material civil action relating to fraud, embezzlement,
23        misappropriation of property or violations of the
24        antitrust or trade regulation laws of the United States
25        or any state, and a description thereof; or
26            (iv) has during the 5 year period immediately

 

 

HB0530 Engrossed- 6 -LRB098 03348 MGM 33363 b

1        preceding the date of the disclosure statement had
2        entered against such person or organization a final
3        judgment in any material civil proceeding, and a
4        description thereof; or
5            (v) has during the 5 year period immediately
6        preceding the date of the disclosure statement been
7        adjudicated a bankrupt or reorganized due to
8        insolvency or was a principal executive officer or
9        general partner of any company that has been
10        adjudicated a bankrupt or reorganized due to
11        insolvency during such 5 year period, and a description
12        thereof;
13        (6) the length of time the organization and any
14    predecessor of the organization has conducted a business
15    dealing with hearing instrument goods or services;
16        (7) a financial statement of the organization as of the
17    close of the most recent fiscal year of the organization.
18    If the financial statement is filed later than 120 days
19    following the close of the fiscal year of the organization
20    it must be accompanied by a statement of the organization
21    of any material changes in the financial condition of the
22    organization;
23        (8) a general description of the business, including
24    without limitation a description of the goods, training
25    programs, supervision, advertising, promotion and other
26    services provided by the organization;

 

 

HB0530 Engrossed- 7 -LRB098 03348 MGM 33363 b

1        (9) a statement of any compensation or other benefit
2    given or promised to a public figure arising, in whole or
3    in part, from (i) the use of the public figure in the name
4    or symbol of the organization or (ii) the endorsement or
5    recommendation of the organization by the public figure in
6    advertisements;
7        (10) a statement setting forth such additional
8    information and such comments and explanations relative to
9    the information contained in the disclosure statement as
10    the organization may desire to present.
11    (b-5) If a device being sold does not meet the definition
12of a hearing instrument or hearing device as stated in this
13Act, the organization shall include a disclaimer in all written
14or electronic promotions. The disclaimer shall include the
15following language:
16        "This is not a hearing instrument or hearing aid as
17    defined in the Hearing Instrument Consumer Protection Act,
18    but a personal amplifier and not intended to replace a
19    properly fitted and calibrated hearing instrument.".
20    (c) The organization files with the Department prior to
21registration and annually thereafter a statement that it
22complies with the Act, the rules issued pursuant to it, and the
23regulations of the Federal Food and Drug Administration and the
24Federal Trade Commission insofar as they are applicable.
25    (d) The organization files with the Department at the time
26of registration an irrevocable consent to service of process

 

 

HB0530 Engrossed- 8 -LRB098 03348 MGM 33363 b

1authorizing the Department and any of its successors to be
2served any notice, process, or pleading in any action or
3proceeding against the organization arising out of or in
4connection with any violation of this Act. Such service shall
5have the effect of conferring personal jurisdiction over such
6organization in any court of competent jurisdiction.
7    (e) Before dispensing a hearing instrument to a resident of
8this State, the organization informs the prospective users that
9they may need the following for proper fitting of a hearing
10instrument:
11        (1) the results of an audiogram performed within the
12    past 6 months by a licensed audiologist or a licensed
13    hearing instrument dispenser; and
14        (2) an earmold impression obtained from the
15    prospective user and taken by a licensed hearing instrument
16    dispenser.
17    (f) The prospective user receives a medical evaluation or
18the organization affords the prospective user an opportunity to
19waive the medical evaluation requirement of Section 4 of this
20Act and the testing requirement of subsection (z) of Section
2118, provided that the organization:
22        (1) informs the prospective user that the exercise of
23    the waiver is not in the user's best health interest;
24        (2) does not in any way actively encourage the
25    prospective user to waive the medical evaluation or test;
26    and

 

 

HB0530 Engrossed- 9 -LRB098 03348 MGM 33363 b

1        (3) affords the prospective user the option to sign the
2    following statement:
3            "I have been advised by .......... (hearing
4        instrument dispenser's name) that the Food and Drug
5        Administration and the State of Illinois have
6        determined that my best interest would be served if I
7        had a medical evaluation by a licensed physician,
8        preferably a physician who specialized in diseases of
9        the ear, before purchasing a hearing instrument; or a
10        test by a licensed audiologist or licensed hearing
11        instrument dispenser utilizing established procedures
12        and instrumentation in the fitting of hearing
13        instruments. I do not wish either a medical evaluation
14        or test before purchasing a hearing instrument."
15    (g) Where a sale, lease, or rental of hearing instruments
16is sold or contracted to be sold to a consumer by mail order,
17the consumer may void the contract or sale by notifying the
18seller within 45 business days following that day on which the
19hearing instruments were mailed by the seller to the consumer
20and by returning to the seller in its original condition any
21hearing instrument delivered to the consumer under the contract
22or sale. At the time the hearing instrument is mailed, the
23seller shall furnish the consumer with a fully completed
24receipt or copy of any contract pertaining to the sale that
25contains a "Notice of Cancellation" informing the consumer that
26he or she may cancel the sale at any time within 45 business

 

 

HB0530 Engrossed- 10 -LRB098 03348 MGM 33363 b

1days and disclosing the date of the mailing and the name,
2address, and telephone number of the seller. In immediate
3proximity to the space reserved in the contract for the
4signature of the consumer, or on the front page of the receipt
5if a contract is not used, and in bold face type of a minimum
6size of 10 points, there shall be a statement in substantially
7the following form:
8        "You, the buyer, may cancel this transaction at any
9    time prior to midnight of the 45th business day after the
10    date of this transaction. See the attached notice of
11    cancellation form for an explanation of this right."
12    Attached to the receipt or contract shall be a completed
13form in duplicate, captioned "NOTICE OF CANCELLATION" which
14shall be easily detachable and which shall contain in at least
1510 point bold face type the following information and
16statements in the same language as that used in the contract:
17
"NOTICE OF CANCELLATION
18
enter date of transaction
19
.........................
20
(DATE)
          
21    YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR
22OBLIGATION, WITHIN 45 BUSINESS DAYS FROM THE ABOVE DATE.
23    IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY
24YOU UNDER THE CONTRACT OR SALE LESS ANY NONREFUNDABLE
25RESTOCKING FEE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU
26WILL BE RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RECEIPT BY

 

 

HB0530 Engrossed- 11 -LRB098 03348 MGM 33363 b

1THE SELLER OF YOUR CANCELLATION NOTICE AND ALL MERCHANDISE
2PERTAINING TO THIS TRANSACTION, AND ANY SECURITY INTEREST
3ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.
4    IF YOU CANCEL, YOU MUST RETURN TO THE SELLER, IN
5SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS
6DELIVERED TO YOU UNDER THIS CONTRACT OR SALE.
7        TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED
8    AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER
9    WRITTEN NOTICE, OR SEND A TELEGRAM, TO (name of seller), AT
10    (address of seller's place of business) AND (seller's
11    telephone number) NO LATER THAN MIDNIGHT OF
12    ...........(date).
13        I HEREBY CANCEL THIS TRANSACTION.
14(Date)............
15..................
16(Buyers Signature)"
17    The written "Notice of Cancellation" may be sent by the
18consumer to the seller to cancel the contract. The 45-day
19period does not commence until the consumer is furnished the
20Notice of Cancellation and the address and phone number at
21which such notice to the seller can be given.
22    If the conditions of this Section are met, the seller must
23return to the consumer the amount of any payment made or
24consideration given under the contract or for the merchandise
25less a nonrefundable restocking fee.
26    It is an unlawful practice for a seller to: (1) hold a

 

 

HB0530 Engrossed- 12 -LRB098 03348 MGM 33363 b

1consumer responsible for any liability or obligation under any
2mail order transaction if the consumer claims not to have
3received the merchandise unless the merchandise was sent by
4certified mail or other delivery method by which the seller is
5provided with proof of delivery; (2) fail, before furnishing
6copies of the "Notice of Cancellation" to the consumer, to
7complete both copies by entering the name of the seller, the
8address of the seller's place of business, the seller's
9telephone number, the date of the mailing, and the date, not
10earlier than the 45th business day following the date of the
11mailing, by which the consumer may give notice of cancellation;
12(3) include in any contract or receipt any confession of
13judgment or any waiver of any of the rights to which the
14consumer is entitled under this Section including specifically
15his right to cancel the sale in accordance with the provisions
16of this Section; (4) misrepresent in any manner the consumer's
17right to cancel; (5) use any undue influence, coercion, or any
18other wilful act or representation to interfere with the
19consumer's exercise of his rights under this Section; (6) fail
20or refuse to honor any valid notice of cancellation and return
21of merchandise by a consumer and, within 10 business days after
22the receipt of such notice and merchandise pertaining to such
23transaction, to (i) refund payments made under the contract or
24sale, (ii) return any goods or property traded in, in
25substantially as good condition as when received by the person,
26(iii) cancel and return any negotiable instrument executed by

 

 

HB0530 Engrossed- 13 -LRB098 03348 MGM 33363 b

1the consumer in connection with the contract or sale and take
2any action necessary or appropriate to terminate promptly any
3security interest created in the transaction; (7) negotiate,
4transfer, sell, or assign any note or other evidence of
5indebtedness to a finance company or other third party prior to
6the 50th business day following the day of the mailing; or (8)
7fail to provide the consumer of a hearing instrument with
8written information stating the name, address, and telephone
9number of the Department and informing the consumer that
10complaints regarding hearing instrument goods or services may
11be made to the Department.
12    (h) The organization employs only licensed hearing
13instrument dispensers in the dispensing of hearing instruments
14and files with the Department, by January 1 of each year, a
15list of all licensed hearing instrument dispensers employed by
16it.
17(Source: P.A. 89-72, eff. 12-31-95.)
 
18    Section 99. Effective date. This Act takes effect upon
19becoming law.