Public Act 098-0362
Public Act 0362 98TH GENERAL ASSEMBLY
|
Public Act 098-0362
| | HB0530 Enrolled | LRB098 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| (Section scheduled to be repealed on January 1, 2016)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.
|
Effective Date: 8/16/2013
|
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