§ 799 — Administration; suspension and revocation of registrations; fines; reprimands

§ 799. Administration; suspension and revocation of registrations;\nfines; reprimands. 1. (a) The secretary shall refer each complaint which\nalleges conduct constituting a violation of article one hundred\nfifty-nine of the education law committed by an individual licensed\npursuant to article one hundred fifty-nine of the education law to the\noffice of professional discipline within the education department. Such\ncomplaints shall be processed pursuant to article one hundred thirty of\nthe education law.\n (b) Any order to suspend, revoke or refuse to issue a certificate of\nregistration for hearing aid dispensing of a licensed audiologist shall\nbe issued by the commissioner of education. Where such complaints allege\nviolation of the provisions of this article relating to the dispensing\nof hearing aids by a registrant who is also subject to the provisions of\narticle one hundred fifty-nine of the education law, the secretary shall\nhave the powers as provided in this section. Such powers relate\nexclusively to the registration as a hearing aid dispenser.\n 2. Except as provided in subdivision one of this section, the\nsecretary may suspend or revoke any registration issued pursuant to this\narticle, and/or impose a fine of up to one thousand dollars per\nviolation payable to the secretary. Such penalties may be imposed for\nthe following reasons:\n (a) engaging in the business of dispensing hearing aids unless the\nperson is a registered hearing aid dispenser or a holder of a temporary\ncertificate of registration.\n (b) incompetency which includes, but is not limited to, the improper\nor unnecessary dispensing of a hearing aid.\n (c) negligence and/or repeated negligent acts.\n (d) conviction of any crime substantially related to the\nqualifications, functions and duties of a hearing aid dispenser.\n (e) obtaining a certificate of registration by fraud or deceit; or\npresenting as his or her own the certificate of registration of another.\n (f) use of the term "doctor" or "physician" or "clinic" or "hearing\nspecialist" or "audiologist," or any derivation thereof, unless\nauthorized by law; or any terms which suggest or imply medical board\ncertification, medical training, competency or expertise. Any reference\nto certification or other professional training shall specify the\ngrantor of such credential.\n (g) fraud or misrepresentation in the dispensing of a hearing aid or\naids.\n (h) the employment, to perform any act covered by the provisions of\nthis article, of any person whose certificate of registration has been\nsuspended, revoked, or who does not possess a valid certificate of\nregistration or temporary certificate of registration issued under this\narticle.\n (i) the use or causing the use, of any advertising or promotional\nliterature in such manner as to have the capacity or tendency to mislead\nor deceive purchasers or prospective purchasers including any reference\nto "hearing consultation", unless permitted pursuant to article one\nhundred fifty-nine of the education law for those hearing aid dispensers\nlicensed under such article, or medical consultation, diagnosis or\ntreatment.\n (j) the registrant's permitting another to use his or her certificate\nof registration for any purpose.\n (k) failure to display the certificate of registration as provided in\nthis article.\n (l) violation of any provision of this article, other applicable\nfederal or state law, rule or regulation, or of any existing applicable\nsanitary code.\n (m) failure or refusal to perform repairs or service on any hearing\naid sold by such trainee and/or registrant.\n (n) no hearing aid dispenser, registrant or hearing aid trainee shall\nstate or imply that the use of any hearing aid will restore hearing to\nnormal, or preserve hearing, or prevent or retard the progression of\ndeafness or being hard of hearing or any false or misleading or\nmedically or audiologically unsupportable claims regarding the efficacy\nor benefits of hearing aids.\n (o) fraud or bribery in securing a certificate of registration or\npermission to take an examination therefor.\n (p) violation of a lawful order of the department previously entered\nin a disciplinary hearing or failure to comply with investigations or a\nlawfully issued subpoena of the department.\n (q) making any predictions or prognostications as to the future course\nof deafness or being hard of hearing, either in general terms or with\nreference to an individual person, except where such predictions and\nprognostications are made by a hearing aid dispenser licensed pursuant\nto the provisions of article one hundred fifty-nine of the education law\nand consistent with such law.\n (r) exerting influence on a client in such a manner as to exploit the\nclient for financial gain for the registrant or for a third party.\n (s) sale of a hearing aid by telephone or telemarketing. Such\nprohibition shall not limit the scheduling of appointments, offering of\nservices or the sale of a hearing aid to a person whom has been tested\nby that dispenser or dispensing audiologist within the previous thirty\ndays or is a hearing aid user who has initiated or specifically\nrequested the telephone sale or offer of sale.\n (t) inducing a prospective user or the parent or guardian of a\nprospective user to execute a religious waiver through the use of a\nfalse or misleading statement to effect the sale of a hearing aid.\n (u) performing an otoscopic observation or testing of hearing for\nmedical diagnostic purposes.\n 3. Whenever a certificate of registration is revoked, such certificate\nof registration shall not be reinstated or reissued until after the\nexpiration of a period of five years from the date of such revocation.\n 4. The secretary may issue an order directing the cessation of any\nactivity for which registration is required by this article upon a\nfinding that a person, including a partnership, limited liability\ncompany, corporation, trust or other business organization has engaged\nin or acted as a hearing aid dispenser or a hearing aid dispensing\nbusiness within this state without a valid registration. The department\nshall, before making such determination and order, afford such person\nincluding a partnership, limited liability company, corporation, trust,\nassociation or business organization, an opportunity to be heard in\nperson or by counsel in reference to an adjudicatory proceeding held\npursuant to this article.\n 6. Upon the suspension or revocation of a certificate of registration\nby the secretary and the issuance of a notice thereof, the registrant\nshall within five business days deliver to the secretary the certificate\nof registration. If surrendered by mail, the certificate of registration\nshall be sent by registered or certified mail, postmarked no later than\nthree business days following notice of suspension or revocation.\nFailure to return a certificate of registration which has been revoked\nor suspended pursuant to this section within the prescribed time shall\nconstitute a violation punishable by the payment of a fine of up to five\nhundred dollars.\n 7. In the event that the registrant shall contest the charge of the\nviolation, a hearing on the charge shall be conducted in accordance with\nthe provisions of subdivisions one and two of section eight hundred of\nthis article.\n