(1) In
addition to any other deceptive trade practices under section 6-1-105, a dispenser
engages in a deceptive trade practice when the dispenser:
(a) Fails to deliver to each person to whom the dispenser dispenses a hearing
aid a receipt that:
(I) Bears the business address of the dispenser, together with specifications
as to the make and serial number of the hearing aid furnished and the full terms of
the sale clearly stated. If the dispenser dispenses a hearing aid that is not new, the
dispenser shall clearly mark on the hearing aid container and the receipt the term
used or reconditioned, whichever is applicable, within the terms of the
guarantee, if any.
(II) Bears, in no smaller type than the largest used in the body of the receipt,
in substance, a provision that the buyer has been advised at the outset of the
buyer's relationship with the dispenser that any examination or representation
made by a dispenser in connection with the practice of dispensing, fitting, or
dealing in hearing aids is not an examination, diagnosis, or prescription by a person
licensed to practice medicine in this state and, therefore, must not be regarded as
medical opinion or advice;
(III) Bears, in no smaller type than the largest used in the body of the receipt,
a provision indicating that dispensers who are licensed by the department are
regulated by the division; and
(IV) Bears a provision labeled warranty in which the exact warranty terms
and periods available from the manufacturer are documented, or includes an
original or photocopy of the original manufacturer's warranty with the receipt;
(b) Dispenses a hearing aid to a child under eighteen years of age without
receiving documentation that the child has been examined by a licensed physician
and an audiologist within six months prior to the fitting;
(c) Dispenses, adjusts, provides training or teaching in regard to, or
otherwise services surgically implanted hearing devices unless the dispenser is an
audiologist or physician;
(d) Fails to recommend in writing, prior to fitting or dispensing a hearing aid,
that the best interests of the prospective user would be served by consulting a
licensed physician specializing in diseases of the ear, or any licensed physician, if
any of the following conditions exist:
(I) Visible congenital or traumatic deformity of the ear;
(II) Active drainage of the ear, or a history of drainage of the ear within the
previous ninety days;
(III) History of sudden or rapidly progressive hearing loss;
(IV) Acute or chronic dizziness;
(V) Unilateral hearing loss of sudden onset within the previous ninety days;
(VI) Audiometric air-bone gap equal to or greater than fifteen decibels at
500 hertz (Hz), 1,000 Hz, and 2,000 Hz;
(VII) Visible evidence of significant cerumen accumulation on, or a foreign
body in, the ear canal; or
(VIII) Pain or discomfort in the ear;
(e) Fails to provide a minimum thirty-day rescission period with the following
terms:
(I) The buyer has the right to cancel the purchase for any reason before the
expiration of the rescission period by giving or mailing written notice of
cancellation to the dispenser and presenting the hearing aid to the dispenser,
unless the hearing aid has been lost or significantly damaged beyond repair while in
the buyer's possession and control. The rescission period is tolled for any period
during which a dispenser takes possession or control of a hearing aid after its
original delivery.
(II) The buyer, upon cancellation, is entitled to receive a full refund of any
payment made for the hearing aid within thirty days after returning the hearing aid
to the dispenser, unless the hearing aid was significantly damaged beyond repair
while in the buyer's possession and control.
(III) (A) The dispenser shall provide a written receipt or contract to the buyer
that includes, in immediate proximity to the space reserved for the signature of the
buyer, the following specific statement in all capital letters of no less than ten-point, bold-faced type:
THE BUYER HAS THE RIGHT TO CANCEL THIS PURCHASE FOR ANY REASON AT
ANY TIME PRIOR TO 12 MIDNIGHT ON THE [Insert applicable rescission period,
which must be no shorter than thirty days after receipt of the hearing aid] CALENDAR DAY AFTER RECEIPT OF THE HEARING AID BY GIVING OR MAILING
THE DISPENSER WRITTEN NOTICE OF CANCELLATION AND BY RETURNING
THE HEARING AID, UNLESS THE HEARING AID HAS BEEN SIGNIFICANTLY
DAMAGED BEYOND REPAIR WHILE THE HEARING AID WAS IN THE BUYER'S
CONTROL.
(B) The written contract or receipt provided to the buyer must also contain a
statement, in print size no smaller than ten-point type, that the sale is void and
unenforceable if the hearing aid being purchased is not delivered to the consumer
within thirty days after the date the written contract is signed or the receipt is
issued, whichever occurs later. The written contract or receipt must also include the
dispenser's license number, if the dispenser is required to be licensed by the state,
and a statement that the dispenser will promptly refund all money paid for the
purchase of the hearing aid if it is not delivered to the consumer within the thirty-day period. The buyer cannot waive this requirement, and any attempt to waive it is
void.
(IV) A refund request form must be attached to each receipt and must
contain the information in subsection (1)(a)(I) of this section and the statement, in all
capital letters of no less than ten-point, bold-faced type:
REFUND REQUEST - THIS FORM MUST BE POSTMARKED BY _________ [Date to
be filled in]. NO REFUND WILL BE GIVEN UNTIL THE HEARING AID OR HEARING
AIDS ARE RETURNED TO THE DISPENSER.
A space for the buyer's address, telephone number, and signature must be
provided. The buyer is required only to sign, list the buyer's current address and
telephone number, and mail the refund request form to the dispenser. If the hearing
aid is sold in the buyer's home, the buyer may require the dispenser to arrange the
return of the hearing aid.
(f) Represents that the service or advice of a person licensed to practice
medicine will be used or made available in the selection, fitting, adjustment,
maintenance, or repair of hearing aids when that is not true or using the terms
doctor, clinic, state-licensed clinic, state-registered, state-certified, or
state-approved, or any other term, abbreviation, or symbol when it would:
(I) Falsely give the impression that service is being provided by persons
trained in medicine or that the dispenser's service has been recommended by the
state when that is not the case; or
(II) Be false or misleading;
(g) Directly or indirectly:
(I) Gives or offers to give, or permits or causes to be given, money or
anything of value to any person who advises another in a professional capacity as
an inducement to influence the person or have the person influence others to
purchase or contract to purchase products sold or offered for sale by the dispenser;
except that a dispenser does not violate this subsection (1)(g)(I) if the dispenser
pays an independent advertising or marketing agent compensation for advertising
or marketing services the agent rendered on the dispenser's behalf, including
compensation that is paid for the results or performance of the services on a per-patient basis; or
(II) Influences or attempts to influence any person to refrain from dealing in
the products of competitors;
(h) Dispenses a hearing aid to a person who has not been given tests utilizing
appropriate established procedures and instrumentation in the fitting of hearing
aids, except when selling a replacement hearing aid within one year after the date
of the original purchase;
(i) Makes a false or misleading statement of fact concerning goods or
services or the buyer's right to cancel with the intention or effect of deterring or
preventing the buyer from exercising the buyer's right to cancel, or refuses to
honor a buyer's request to cancel a contract for the purchase of a hearing aid, if the
request was made during the rescission period set forth in subsection (1)(e) of this
section;
(j) Employs a device, a scheme, or an artifice with the intent to defraud a
buyer of a hearing aid;
(k) Intentionally disposes of, conceals, diverts, converts, or otherwise fails to
account for any funds or assets of a buyer of a hearing aid that is under the
dispenser's control; or
(l) Charges, collects, or recovers any cost or fee for any good or service that
has been represented by the dispenser as free.
(2) (a) This section applies to a dispenser who dispenses hearing aids in this
state.
(b) This section does not apply to the dispensing of hearing aids outside of
this state so long as the transaction either conforms to this section or to the
applicable laws and rules of the jurisdiction in which the transaction takes place.