Request By:
Mr. Steve W. Barlow, President
Hearing Aid Association of Kentucky, Inc.
121 Malibu Drive - Unit 8
Lexington, Kentucky 40503
Opinion
Opinion By: David L. Armstrong, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have written the Attorney General requesting an official opinion on the following statement of facts.
We have discovered and have written documentation that several individuals and/or organizations are dispensing hearing aids for profit without being properly licensed within our state.
This is being done by an individual who may give a complete evaluation for the purpose of fitting an aid, and who will upon completion of his evaluation recommend that the patient buy a particular aid through the mail. Once the aid has been received in the mail, the patient will again visit this individual and/or organization for delivery and instructions on the use and care of the instrument. All follow-up visits are also handled in the same manner.
These individuals are charging their patients by an unbundling method so they can claim that the only charges they have are for services rendered. If it were not for the sale of a hearing aid, then none of their services would be needed.
You cite one particular instance which illustrates the problem by sending us the affidavit of a hearing aid patient relating his experience with a named clinic. The affidavit states that the patient made an appointment with the clinic and upon going to the clinic he saw an audiologist for the purpose of conducting a hearing test. After the hearing test was conducted the audiologist advised the patient that he could get a hearing aid for him for $205.50 and that everything could be taken care of at the clinic, including in addition to the hearing test, taking the impression of his ear, ordering the hearing aid and fitting the hearing aid on him. The audiologist said that the hearing aid would be purchased from a national company. The patient said he wanted to think about the matter and he returned ten days later at which time the audiologist made an impression of his ear and the hearing aid was ordered; he was presented with a waiver of medical evaluation form which he signed; he gave the audiologist his check in the amount of $205.50 made payable to the "Hearing Aid Center" of Kalamazoo, Michigan. Twenty days later the patient returned to the clinic and the hearing aid was put on and it was explained that he had a thirty-day trial period for using the hearing aid. The affidavit conculdes with the statement that the patient returned the hearing aid because he did not like the performance and he was told he would receive a refund from the Hearing Aid Center.
The affidavit which you sent us presents us with a factual case which we can evaluate as to legality. For reasons which we will presently state it is our opinion that the facts in this case constitute a violation of KRS Chapter 334 which states the law applying to hearing aid dealers and fitters. KRS 334.020 reads as follows:
No person shall engage in the sale of or practice of fitting hearing aids or display a sign or in any other way advertise or represent himself as a person who practices the fitting and sale of hearing aids unless he holds an unsuspended, unrevoked license issued by the board as provided in this chapter, or unless he holds a current, unsuspended, unrevoked certificate of endorsement pursuant to KRS 334.050. The license shall be conspicuously posted in each office or place of business.
It is clearly the legislative intent of KRS Chapter 334 that the sale and fitting of hearing aids in Kentucky may be done only by persons licensed under that chapter. An audiologist is not such a person. Audiologists are licensed under KRS Chapter 334A. KRS 334.200(2) provides as follows:
No physician conducting an examination for an approval or hearing aid evaluation, or an audiologist conducting a hearing aid evaluation, under this section shall have a direct or indirect interest in any business concern controlled by or employing a licensee solely for the purpose of engaging in the fitting or sale of hearing aids for profit.
The import of KRS 344.200(2) is that no so-called hearing center, hospital, et cetera, can employ a licensed hearing aid dealer solely for the purpose of engaging in the fitting or sale of hearing aids for profit. A licensed audiologist cannot sell or fit hearing aids. His practice is limited by KRS 334A.020(7) which reads as follows:
'The practice of audiology' means the application of principles, methods and procedures of measurement, testing, appraisal, prediction, consultation, counseling, and instruction related to hearing and disorders of hearing for the purpose of modifying communicative disorders involving speech, language, auditory behavior, or other aberrant behavior related to hearing loss; planning, directing, conducting or participating in identification and hearing conservation programs; habilitative and rehabilitative programs including hearing aid recommendations and evaluation, auditory training or speech reading.
An audiologist is not authorized to sell or fit a hearing aid. He can only make "hearing aid recommendations and evaluation." By contrast, a hearing aid dealer can measure human hearing "by means of an audiometer or by other means devised for the purpose of making selections, adaptions and sales of hearing aids to compensate for hearing loss. " "The term also includes the making of ear molds." KRS 334.010(5).
One of the functions of an audiologist is to determine if a patient's hearing problem can be ameliorated by the use of a hearing aid. The statutes protect the public from the sale of unnecessary hearing aids to persons whose hearing cannot be helped by a hearing aid by providing that audiologists shall have no interest in the sale of hearing aids.
In the case described by the affidavit you sent the audiologist and the clinic by which he was employed acted as agents for an out-of-state company in selling a hearing aid to the patient and thus violated KRS 344.020. According to the affidavit the patient did not receive a written and dated agreement, offer to purchase or receipt at the time he gave the audiologist his check for a hearing aid which contained the following information: licensee's signature, and printed name and business address, and license number issued to the licensee by the board as required by KRS 334.030(1).
What we have said in this opinion applies only to the selling of hearing aids for profit. KRS 334.040 provides the following exemptions from application of KRS Chapter 334.
(1) This chapter does not apply to a person while he is engaged in the practice of fitting hearing aids if his practice is part of the academic curriculum of an accredited institution of higher education or part of a program conducted by a public, charitable institution or non-profit organization, which is primarily supported by voluntary contributions.
(2) This chapter shall not be construed to prevent any person who is a medical or osteopathic physician licensed to practice in the Commonwealth of Kentucky from treating or fitting hearing aids to the human ear, which includes the making of ear molds, or to an audiologist holding a certificate of clinical competence of the American Speech and Hearing Association so long as they do not engage in the sale of hearing aids.