Public Act 098-0362
 
HB0530 EnrolledLRB098 03348 MGM 33363 b


  
    AN ACT concerning regulation.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
    Section 5. The Hearing Instrument Consumer Protection Act 
is amended  by changing Sections 3 and 6 as follows:
 


    (225 ILCS 50/3)  (from Ch. 111, par. 7403)




    (Section scheduled to be repealed on January 1, 2016)

    Sec. 3. Definitions. As used in this Act, except as the 
context
requires otherwise:

    "Department" means the Department of Public Health.

    "Director" means the Director of the Department of Public 
Health.

    "License" means a license
issued by the State under this

Act to a hearing instrument dispenser.

    "Licensed Audiologist" means a person
licensed
as an 
audiologist under the Illinois Speech-Language Pathology and 
Audiology
Practice Act.

    "National Board Certified Hearing Instrument
Specialist" 
means a person
who has had at least 2 years in practice as a 
licensed hearing
instrument dispenser and has
been certified 
after qualification by examination by the National Board for

Certification in Hearing Instruments Sciences.

    "Licensed physician" or "physician" means a physician 
licensed
in Illinois to
practice medicine in all of its 
branches.

    "Trainee" means a person who is licensed to perform the 
functions of a hearing instrument dispenser in accordance with 
the Department rules and only under the direct supervision of a 
hearing instrument dispenser or audiologist who is licensed in 
the State. 
    "Board" means the Hearing Instrument Consumer Protection

Board.

    "Hearing instrument" or "hearing aid" means any wearable 
instrument or device designed for or offered for the purpose of 
aiding or compensating for impaired human hearing and that can 
provide more than 15 dB full on gain via a 2cc coupler at any 
single frequency from 200 through 6000 cycles per second, and 
any parts, attachments, or accessories, including ear molds. 
"Hearing instrument" or "hearing aid" do not include batteries, 
cords, instrument or
device
designed, intended,
or offered for 
the purpose of improving a person's hearing and any parts,

attachments,
or
accessories, including earmold.
Batteries, 
cords, and individual or group auditory training devices and 
any
instrument or device used by a public utility in providing 
telephone or
other communication services are excluded.

    "Practice of fitting, dispensing, or servicing of hearing

instruments" means
the measurement of human hearing with an

audiometer, calibrated to
the current American National 
Standard Institute standards, for the
purpose of making 
selections, recommendations, adaptions, services, or sales of

hearing instruments including the making of earmolds as a part 
of the hearing
instrument.

    "Sell" or "sale" means any transfer of title or of the 
right to use
by lease, bailment, or any other contract, 
excluding wholesale transactions
with distributors or dealers.

    "Hearing instrument dispenser" means a person who
is a 
hearing care professional that engages
in the selling,
practice 
of fitting, selecting, recommending, dispensing, or servicing

of hearing instruments or the testing for means of hearing

instrument selection or who
advertises or displays a sign or 
represents himself or herself as a person
who
practices the 
testing, fitting, selecting, servicing, dispensing,
or selling 
of hearing instruments.

    "Fund" means the Hearing Instrument Dispenser Examining

and Disciplinary Fund.

    "Hearing Care Professional" means a person who is a 
licensed
audiologist, a licensed hearing instrument dispenser, 
or a licensed
physician.

(Source: P.A. 96-846, eff. 6-1-10.)

 



    (225 ILCS 50/6)  (from Ch. 111, par. 7406)



    (Section scheduled to be repealed on January 1, 2016)

    Sec. 6. Mail order and Internet sales. Nothing in this Act 
shall prohibit
a corporation, partnership,
trust, association, 
or other organization, maintaining an established
business

address, from engaging in the business of selling or offering 
for sale hearing
instruments at retail by mail or by Internet 
to persons 18 years of age or older
who have not
been examined

by a licensed physician or tested by a licensed hearing 
instrument
dispenser provided that:

    (a) The organization is registered by the Department prior

to engaging
in business in this State and has paid the fee set 
forth in
this
Act.

    (b) The organization files with the Department, prior to

registration
and annually thereafter, a Disclosure Statement 
containing the following:


        (1) the name under which the organization is doing or 
    intends to do
business
and the name of any affiliated 
    company which the organization recommends
or will 
    recommend to persons as a supplier of goods or services or 
    in
connection with other business transactions of the 
    organization;


        (2) the organization's principal business address and 
    the name and address
of its agent in this State authorized 
    to receive service of process;


        (3) the business form of the organization, whether 
    corporate, partnership,
or otherwise and the state or other 
    sovereign power under which the
organization is organized;


        (4) the names of the directors or persons performing 
    similar functions
and names and addresses of the chief 
    executive officer, and the financial,
accounting, sales, 
    and other principal executive officers, if the 
    organization
is a corporation, association, or other 
    similar entity; of all general
partners, if the 
    organization is a partnership; and of the owner, if the

    organization is a sole proprietorship, together with a 
    statement of the
business background during the past 5 
    years for each such person;


        (5) a statement as to whether the organization or any 
    person identified
in the disclosure statement:


            (i) has during the 5 year period immediately 
        preceding the date of the
disclosure statement been 
        convicted of a felony, pleaded nolo contendere
to a 
        felony charge, or been held liable in a civil action by 
        final judgment,
if such felony or civil action involved 
        fraud, embezzlement, or
misappropriation of property, 
        and a description thereof; or


            (ii) is subject to any currently effective 
        injunctive or restrictive
order
as a result of a 
        proceeding or pending action brought by any government 
        agency
or department, and a description thereof; or


            (iii) is a defendant in any pending criminal or 
        material civil action
relating to fraud, embezzlement, 
        misappropriation of property or violations
of the 
        antitrust or trade regulation laws of the United States 
        or any state,
and a description thereof; or


            (iv) has during the 5 year period immediately 
        preceding the date of the
disclosure statement had 
        entered against such person or organization a final

        judgment in any material civil proceeding, and a 
        description thereof; or


            (v) has during the 5 year period immediately 
        preceding the date of the
disclosure statement been 
        adjudicated a bankrupt or reorganized due to

        insolvency or was a principal executive officer or 
        general partner of any
company that has been 
        adjudicated a bankrupt or reorganized due to

        insolvency during such 5 year period, and a description 
        thereof;


        (6) the length of time the organization and any 
    predecessor of the
organization has conducted a business 
    dealing with hearing instrument goods or services;


        (7) a financial statement of the organization
 as
of the 
    close of the most recent fiscal year
of the organization. 
    If the financial statement is filed later than 120
days 
    following the close of the fiscal year of the organization 
    it must
be accompanied by a statement of the organization 
    of any material changes
in the financial condition of the 
    organization;


        (8) a general description of the business, including 
    without limitation
a description of the goods, training 
    programs, supervision, advertising,
promotion and other 
    services provided by the organization;


        (9) a statement of any compensation or other benefit 
    given or promised
to a public figure arising, in whole or 
    in part, from (i) the use of the
public figure in the name 
    or symbol of the organization or (ii) the endorsement
or 
    recommendation of the organization by the public figure in 
    advertisements;


        (10) a statement setting forth such additional 
    information and such
comments
and explanations relative to 
    the information contained in the disclosure
statement as 
    the organization may desire to present. 
    (b-5) If  a device being sold does not meet the definition 
of a hearing instrument or hearing device as stated in this 
Act, the organization shall include a disclaimer in all written 
or electronic promotions. The disclaimer shall include the 
following language: 
        "This is not a hearing instrument or hearing aid as 
    defined in the Hearing Instrument Consumer Protection Act, 
    but a personal amplifier and not intended to replace a 
    properly fitted and calibrated hearing instrument.".

    (c) The organization files with the Department prior to

registration
and annually thereafter a statement that it 
complies with
the Act, the rules
issued pursuant to it, and the 
regulations of the Federal Food and Drug
Administration and the 
Federal Trade Commission insofar as they are applicable.

    (d) The organization files with the Department at the time

of
registration an irrevocable consent to service of process 
authorizing the
Department and any of its successors to be 
served any notice, process, or
pleading in any action or 
proceeding against the organization
arising out
of or in 
connection with any violation of this Act.  Such service shall

have the effect of conferring personal jurisdiction over such 
organization
in any court of competent jurisdiction.

    (e) Before dispensing a hearing instrument to a resident
of 
this State, the organization informs the prospective users that 
they may
need the following for proper fitting of a hearing 
instrument:


        (1) the results of an audiogram performed within the  
    past 6 months by a
licensed audiologist or a licensed 
    hearing instrument dispenser; and


        (2) an earmold impression obtained from the 
    prospective user and taken by
a licensed hearing instrument 
    dispenser.

    (f) The prospective user receives a medical evaluation or

the organization affords the prospective user an opportunity
to 
waive the medical
evaluation requirement of Section 4 of this 
Act and the testing requirement of
subsection (z) of Section 
18, provided that
the
organization:


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


        (2) does not in any way actively encourage the 
    prospective user to waive
the medical evaluation or test; 
    and


        (3) affords the prospective user the option to sign
the 
    following
statement:


            "I have been advised by .......... (hearing 
        instrument
dispenser's name) that
the Food and Drug 
        Administration and the State of Illinois have 
        determined
that my best interest would be served if I 
        had a medical
evaluation by a licensed physician, 
        preferably a physician who
specialized in diseases of

        the ear, before purchasing a hearing instrument; or a 
        test by a licensed audiologist or licensed
hearing 
        instrument
dispenser utilizing established procedures 
        and instrumentation in the fitting
of hearing 
        instruments.  I do not wish either a medical evaluation

        or test before
purchasing a hearing instrument."

    (g) Where a sale, lease, or rental of hearing instruments 
is sold or contracted
to be sold to a consumer by mail order, 
the consumer may
void the contract or sale by notifying the 
seller within
45 business days following that day on which the 
hearing
instruments were mailed by the seller to the consumer 
and by
returning to the seller in its original condition any 
hearing
instrument
delivered to the consumer under the contract 
or sale.
At the time the hearing instrument is
mailed, the 
seller shall furnish the consumer
with a fully completed 
receipt or copy of any contract pertaining to the
sale that 
contains a "Notice of Cancellation" informing the
consumer that 
he or she
may cancel the sale at any time within 45 business 
days and
disclosing the
date of the mailing and the name,

address, and telephone number
of the seller. In immediate 
proximity to the space reserved in the
contract
for the 
signature of the consumer, or on the front page of the receipt 
if
a contract is not used, and in bold face type of a minimum 
size of 10
points, there shall be
a statement in substantially 
the following form:


        "You, the buyer, may cancel this transaction at any 
    time prior to
midnight
of the 45th business day after the 
    date of this transaction.  See
the attached
notice of 
    cancellation form for an explanation of this right."

    Attached to the receipt or contract shall be a completed 
form in
duplicate,
captioned "NOTICE OF CANCELLATION" which 
shall be easily detachable and
which shall contain in at least 
10 point bold face type the following
information
and 
statements in the same language as that used in the contract:

"NOTICE OF CANCELLATION


enter date of transaction


.........................


(DATE)
          

    YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR 
OBLIGATION, WITHIN
45 BUSINESS DAYS FROM THE ABOVE DATE.

    IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY 
YOU UNDER
THE CONTRACT OR SALE LESS ANY NONREFUNDABLE 
RESTOCKING FEE, AND ANY
NEGOTIABLE
INSTRUMENT EXECUTED BY YOU 
WILL
BE RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RECEIPT BY 
THE SELLER OF YOUR
CANCELLATION
NOTICE AND ALL MERCHANDISE

PERTAINING TO THIS TRANSACTION,
AND ANY SECURITY INTEREST 
ARISING OUT OF THE TRANSACTION
WILL BE CANCELLED.

    IF YOU CANCEL, YOU MUST RETURN TO THE SELLER,
IN 
SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS 
DELIVERED
TO YOU UNDER THIS CONTRACT OR SALE.


        TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED 
    AND DATED COPY OF
THIS CANCELLATION NOTICE OR ANY OTHER 
    WRITTEN NOTICE, OR SEND A TELEGRAM,
TO (name of seller), AT 
    (address of seller's place of business) AND (seller's

    telephone number) NO LATER THAN MIDNIGHT OF 
    ...........(date).


        I HEREBY CANCEL THIS TRANSACTION.

(Date)............

..................

(Buyers Signature)"

    The written "Notice of Cancellation" may be sent by the 
consumer
to the
seller to cancel the contract.  The 45-day 
period
does not commence until the consumer is furnished the 
Notice
of Cancellation
and
the address and phone number at 
which such notice to the seller can be given.

    If the conditions of this Section are met, the seller must 
return to the
consumer the amount of any payment
made or 
consideration given under
the contract or for the merchandise 
less a nonrefundable
restocking fee.

    It is an unlawful practice
for a seller to: (1) hold a 
consumer responsible for any liability or
obligation under any 
mail order transaction if the consumer claims not to have

received the merchandise unless the merchandise was sent by 
certified mail or
other delivery method by which the seller is 
provided with proof of delivery; (2) fail,
before
furnishing 
copies of the "Notice of Cancellation" to the
consumer, to 
complete both copies by entering the name of the seller, the

address of the seller's place of business, the seller's 
telephone number,
the date of the mailing, and the date, not 
earlier
than the 45th
business
day following the date of the 
mailing, by which the
consumer may give notice
of cancellation; 
(3) include in any contract or receipt any
confession of

judgment or any waiver of any of the rights to which the 
consumer is entitled
under this Section including specifically 
his right to cancel the
sale in accordance with the provisions 
of this Section; (4)
misrepresent
in any manner the consumer's 
right to cancel; (5) use any undue
influence,
coercion, or any 
other wilful act or representation to interfere with the

consumer's exercise of his rights under this Section; (6) fail 
or
refuse
to honor any valid notice of
cancellation and return 
of
merchandise
by a consumer and, within 10
business
days after 
the receipt of such
notice and merchandise
pertaining to such 
transaction,
to (i) refund payments made
under
the contract or 
sale, (ii) return any goods or property traded in, in

substantially as good condition as when received by the person, 
(iii)
cancel and return any negotiable instrument executed by 
the consumer in
connection with the contract or sale and take 
any action necessary or
appropriate to terminate promptly any 
security interest created in the
transaction; (7) negotiate, 
transfer, sell, or assign any note or
other
evidence of 
indebtedness to a finance company or other third party prior to 
the 50th business day following the day of the
mailing;
or (8) 
fail to provide the consumer of a hearing instrument with 
written
information stating the name, address, and telephone 
number of the Department
and informing the consumer that 
complaints regarding hearing instrument goods
or services may 
be made to the Department.

    (h)  The organization employs only licensed
hearing

instrument dispensers in the
dispensing of hearing instruments 
and files with the Department,
by
January 1 of
each year, a 
list of all licensed hearing instrument dispensers
employed by 
it.

(Source: P.A. 89-72, eff. 12-31-95.)

 

    Section 99. Effective date. This Act takes effect upon 
becoming law.