Rep. Michael J. Zalewski

Filed: 3/19/2013

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 530

2    AMENDMENT NO. ______. Amend House Bill 530 by replacing
3everything after the enacting clause with the following:
 
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7    (Section scheduled to be repealed on January 1, 2016)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

 

 

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1Audiology Practice Act.
2    "National Board Certified Hearing Instrument Specialist"
3means a person who has had at least 2 years in practice as a
4licensed hearing instrument dispenser and has been certified
5after qualification by examination by the National Board for
6Certification in Hearing Instruments Sciences.
7    "Licensed physician" or "physician" means a physician
8licensed in Illinois to practice medicine in all of its
9branches.
10    "Trainee" means a person who is licensed to perform the
11functions of a hearing instrument dispenser in accordance with
12the Department rules and only under the direct supervision of a
13hearing instrument dispenser or audiologist who is licensed in
14the State.
15    "Board" means the Hearing Instrument Consumer Protection
16Board.
17    "Hearing instrument" or "hearing aid" means any wearable
18instrument or device designed for or offered for the purpose of
19aiding or compensating for impaired human hearing and that can
20provide more than 15 dB full on gain via a 2cc coupler at any
21single frequency from 200 through 6000 cycles per second, and
22any parts, attachments, or accessories, including ear molds.
23"Hearing instrument" or "hearing aid" do not include batteries,
24cords, instrument or device designed, intended, or offered for
25the purpose of improving a person's hearing and any parts,
26attachments, or accessories, including earmold. Batteries,

 

 

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1cords, and individual or group auditory training devices and
2any instrument or device used by a public utility in providing
3telephone or other communication services are excluded.
4    "Practice of fitting, dispensing, or servicing of hearing
5instruments" means the measurement of human hearing with an
6audiometer, calibrated to the current American National
7Standard Institute standards, for the purpose of making
8selections, recommendations, adaptions, services, or sales of
9hearing instruments including the making of earmolds as a part
10of the hearing instrument.
11    "Sell" or "sale" means any transfer of title or of the
12right to use by lease, bailment, or any other contract,
13excluding wholesale transactions with distributors or dealers.
14    "Hearing instrument dispenser" means a person who is a
15hearing care professional that engages in the selling, practice
16of fitting, selecting, recommending, dispensing, or servicing
17of hearing instruments or the testing for means of hearing
18instrument selection or who advertises or displays a sign or
19represents himself or herself as a person who practices the
20testing, fitting, selecting, servicing, dispensing, or selling
21of hearing instruments.
22    "Fund" means the Hearing Instrument Dispenser Examining
23and Disciplinary Fund.
24    "Hearing Care Professional" means a person who is a
25licensed audiologist, a licensed hearing instrument dispenser,
26or a licensed physician.

 

 

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1(Source: P.A. 96-846, eff. 6-1-10.)
 
2    (225 ILCS 50/6)  (from Ch. 111, par. 7406)
3    (Section scheduled to be repealed on January 1, 2016)
4    Sec. 6. Mail order and Internet sales. Nothing in this Act
5shall prohibit a corporation, partnership, trust, association,
6or other organization, maintaining an established business
7address, from engaging in the business of selling or offering
8for sale hearing instruments at retail by mail or by Internet
9to persons 18 years of age or older who have not been examined
10by a licensed physician or tested by a licensed hearing
11instrument dispenser provided that:
12    (a) The organization is registered by the Department prior
13to engaging in business in this State and has paid the fee set
14forth in this Act.
15    (b) The organization files with the Department, prior to
16registration and annually thereafter, a Disclosure Statement
17containing the following:
18        (1) the name under which the organization is doing or
19    intends to do business and the name of any affiliated
20    company which the organization recommends or will
21    recommend to persons as a supplier of goods or services or
22    in connection with other business transactions of the
23    organization;
24        (2) the organization's principal business address and
25    the name and address of its agent in this State authorized

 

 

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1    to receive service of process;
2        (3) the business form of the organization, whether
3    corporate, partnership, or otherwise and the state or other
4    sovereign power under which the organization is organized;
5        (4) the names of the directors or persons performing
6    similar functions and names and addresses of the chief
7    executive officer, and the financial, accounting, sales,
8    and other principal executive officers, if the
9    organization is a corporation, association, or other
10    similar entity; of all general partners, if the
11    organization is a partnership; and of the owner, if the
12    organization is a sole proprietorship, together with a
13    statement of the business background during the past 5
14    years for each such person;
15        (5) a statement as to whether the organization or any
16    person identified in the disclosure statement:
17            (i) has during the 5 year period immediately
18        preceding the date of the disclosure statement been
19        convicted of a felony, pleaded nolo contendere to a
20        felony charge, or been held liable in a civil action by
21        final judgment, if such felony or civil action involved
22        fraud, embezzlement, or misappropriation of property,
23        and a description thereof; or
24            (ii) is subject to any currently effective
25        injunctive or restrictive order as a result of a
26        proceeding or pending action brought by any government

 

 

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1        agency or department, and a description thereof; or
2            (iii) is a defendant in any pending criminal or
3        material civil action relating to fraud, embezzlement,
4        misappropriation of property or violations of the
5        antitrust or trade regulation laws of the United States
6        or any state, and a description thereof; or
7            (iv) has during the 5 year period immediately
8        preceding the date of the disclosure statement had
9        entered against such person or organization a final
10        judgment in any material civil proceeding, and a
11        description thereof; or
12            (v) has during the 5 year period immediately
13        preceding the date of the disclosure statement been
14        adjudicated a bankrupt or reorganized due to
15        insolvency or was a principal executive officer or
16        general partner of any company that has been
17        adjudicated a bankrupt or reorganized due to
18        insolvency during such 5 year period, and a description
19        thereof;
20        (6) the length of time the organization and any
21    predecessor of the organization has conducted a business
22    dealing with hearing instrument goods or services;
23        (7) a financial statement of the organization as of the
24    close of the most recent fiscal year of the organization.
25    If the financial statement is filed later than 120 days
26    following the close of the fiscal year of the organization

 

 

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1    it must be accompanied by a statement of the organization
2    of any material changes in the financial condition of the
3    organization;
4        (8) a general description of the business, including
5    without limitation a description of the goods, training
6    programs, supervision, advertising, promotion and other
7    services provided by the organization;
8        (9) a statement of any compensation or other benefit
9    given or promised to a public figure arising, in whole or
10    in part, from (i) the use of the public figure in the name
11    or symbol of the organization or (ii) the endorsement or
12    recommendation of the organization by the public figure in
13    advertisements;
14        (10) a statement setting forth such additional
15    information and such comments and explanations relative to
16    the information contained in the disclosure statement as
17    the organization may desire to present.
18    (b-5) If a device being sold does not meet the definition
19of a hearing instrument or hearing device as stated in this
20Act, the organization shall include a disclaimer in all written
21or electronic promotions. The disclaimer shall include the
22following language:
23        "This is not a hearing instrument or hearing aid as
24    defined in the Hearing Instrument Consumer Protection Act,
25    but a personal amplifier and not intended to replace a
26    properly fitted and calibrated hearing instrument.".

 

 

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1    (c) The organization files with the Department prior to
2registration and annually thereafter a statement that it
3complies with the Act, the rules issued pursuant to it, and the
4regulations of the Federal Food and Drug Administration and the
5Federal Trade Commission insofar as they are applicable.
6    (d) The organization files with the Department at the time
7of registration an irrevocable consent to service of process
8authorizing the Department and any of its successors to be
9served any notice, process, or pleading in any action or
10proceeding against the organization arising out of or in
11connection with any violation of this Act. Such service shall
12have the effect of conferring personal jurisdiction over such
13organization in any court of competent jurisdiction.
14    (e) Before dispensing a hearing instrument to a resident of
15this State, the organization informs the prospective users that
16they may need the following for proper fitting of a hearing
17instrument:
18        (1) the results of an audiogram performed within the
19    past 6 months by a licensed audiologist or a licensed
20    hearing instrument dispenser; and
21        (2) an earmold impression obtained from the
22    prospective user and taken by a licensed hearing instrument
23    dispenser.
24    (f) The prospective user receives a medical evaluation or
25the organization affords the prospective user an opportunity to
26waive the medical evaluation requirement of Section 4 of this

 

 

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1Act and the testing requirement of subsection (z) of Section
218, provided that the organization:
3        (1) informs the prospective user that the exercise of
4    the waiver is not in the user's best health interest;
5        (2) does not in any way actively encourage the
6    prospective user to waive the medical evaluation or test;
7    and
8        (3) affords the prospective user the option to sign the
9    following statement:
10            "I have been advised by .......... (hearing
11        instrument dispenser's name) that the Food and Drug
12        Administration and the State of Illinois have
13        determined that my best interest would be served if I
14        had a medical evaluation by a licensed physician,
15        preferably a physician who specialized in diseases of
16        the ear, before purchasing a hearing instrument; or a
17        test by a licensed audiologist or licensed hearing
18        instrument dispenser utilizing established procedures
19        and instrumentation in the fitting of hearing
20        instruments. I do not wish either a medical evaluation
21        or test before purchasing a hearing instrument."
22    (g) Where a sale, lease, or rental of hearing instruments
23is sold or contracted to be sold to a consumer by mail order,
24the consumer may void the contract or sale by notifying the
25seller within 45 business days following that day on which the
26hearing instruments were mailed by the seller to the consumer

 

 

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1and by returning to the seller in its original condition any
2hearing instrument delivered to the consumer under the contract
3or sale. At the time the hearing instrument is mailed, the
4seller shall furnish the consumer with a fully completed
5receipt or copy of any contract pertaining to the sale that
6contains a "Notice of Cancellation" informing the consumer that
7he or she may cancel the sale at any time within 45 business
8days and disclosing the date of the mailing and the name,
9address, and telephone number of the seller. In immediate
10proximity to the space reserved in the contract for the
11signature of the consumer, or on the front page of the receipt
12if a contract is not used, and in bold face type of a minimum
13size of 10 points, there shall be a statement in substantially
14the following form:
15        "You, the buyer, may cancel this transaction at any
16    time prior to midnight of the 45th business day after the
17    date of this transaction. See the attached notice of
18    cancellation form for an explanation of this right."
19    Attached to the receipt or contract shall be a completed
20form in duplicate, captioned "NOTICE OF CANCELLATION" which
21shall be easily detachable and which shall contain in at least
2210 point bold face type the following information and
23statements in the same language as that used in the contract:
24
"NOTICE OF CANCELLATION
25
enter date of transaction
26
.........................

 

 

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1
(DATE)
          
2    YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR
3OBLIGATION, WITHIN 45 BUSINESS DAYS FROM THE ABOVE DATE.
4    IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY
5YOU UNDER THE CONTRACT OR SALE LESS ANY NONREFUNDABLE
6RESTOCKING FEE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU
7WILL BE RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RECEIPT BY
8THE SELLER OF YOUR CANCELLATION NOTICE AND ALL MERCHANDISE
9PERTAINING TO THIS TRANSACTION, AND ANY SECURITY INTEREST
10ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.
11    IF YOU CANCEL, YOU MUST RETURN TO THE SELLER, IN
12SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS
13DELIVERED TO YOU UNDER THIS CONTRACT OR SALE.
14        TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED
15    AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER
16    WRITTEN NOTICE, OR SEND A TELEGRAM, TO (name of seller), AT
17    (address of seller's place of business) AND (seller's
18    telephone number) NO LATER THAN MIDNIGHT OF
19    ...........(date).
20        I HEREBY CANCEL THIS TRANSACTION.
21(Date)............
22..................
23(Buyers Signature)"
24    The written "Notice of Cancellation" may be sent by the
25consumer to the seller to cancel the contract. The 45-day
26period does not commence until the consumer is furnished the

 

 

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1Notice of Cancellation and the address and phone number at
2which such notice to the seller can be given.
3    If the conditions of this Section are met, the seller must
4return to the consumer the amount of any payment made or
5consideration given under the contract or for the merchandise
6less a nonrefundable restocking fee.
7    It is an unlawful practice for a seller to: (1) hold a
8consumer responsible for any liability or obligation under any
9mail order transaction if the consumer claims not to have
10received the merchandise unless the merchandise was sent by
11certified mail or other delivery method by which the seller is
12provided with proof of delivery; (2) fail, before furnishing
13copies of the "Notice of Cancellation" to the consumer, to
14complete both copies by entering the name of the seller, the
15address of the seller's place of business, the seller's
16telephone number, the date of the mailing, and the date, not
17earlier than the 45th business day following the date of the
18mailing, by which the consumer may give notice of cancellation;
19(3) include in any contract or receipt any confession of
20judgment or any waiver of any of the rights to which the
21consumer is entitled under this Section including specifically
22his right to cancel the sale in accordance with the provisions
23of this Section; (4) misrepresent in any manner the consumer's
24right to cancel; (5) use any undue influence, coercion, or any
25other wilful act or representation to interfere with the
26consumer's exercise of his rights under this Section; (6) fail

 

 

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1or refuse to honor any valid notice of cancellation and return
2of merchandise by a consumer and, within 10 business days after
3the receipt of such notice and merchandise pertaining to such
4transaction, to (i) refund payments made under the contract or
5sale, (ii) return any goods or property traded in, in
6substantially as good condition as when received by the person,
7(iii) cancel and return any negotiable instrument executed by
8the consumer in connection with the contract or sale and take
9any action necessary or appropriate to terminate promptly any
10security interest created in the transaction; (7) negotiate,
11transfer, sell, or assign any note or other evidence of
12indebtedness to a finance company or other third party prior to
13the 50th business day following the day of the mailing; or (8)
14fail to provide the consumer of a hearing instrument with
15written information stating the name, address, and telephone
16number of the Department and informing the consumer that
17complaints regarding hearing instrument goods or services may
18be made to the Department.
19    (h) The organization employs only licensed hearing
20instrument dispensers in the dispensing of hearing instruments
21and files with the Department, by January 1 of each year, a
22list of all licensed hearing instrument dispensers employed by
23it.
24(Source: P.A. 89-72, eff. 12-31-95.)
 
25    Section 99. Effective date. This Act takes effect upon

 

 

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1becoming law.".