Request By:
M. T. Morgan
2274 Lakeview Drive
Madisonville, Kentucky 42431
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Conley C. Congleton, Assistant Attorney General
In Re : Interpretation of KRS 334.200(2)
In your recent letter to this office, you indicated that you are a licensed audiologist and hearing aid dealer in Kentucky. As a result of your occupation, you requested an opinion on who is allowed to dispense hearing aids in Kentucky. As noted in your letter, you believe KRS 334.200(2) is the controlling statute on this issue.
The purpose of KRS Chapter 334 is to protect the public from abuses within the hearing aid industry. See
Kentucky Board for Licensing of Hearing Aid Dealers v. Rallo, Ky., 549 S.W.2d 825 (1977). In pursuit of that goal, KRS 334.020 prohibits anyone from engaging in the "sale of" or the practice of "fitting hearing aids" unless he holds a license as a hearing aid dealer. In OAG 76-544, this office stated that the dispensing of a hearing aid device constituted a "sale" and therefore only those licensed as hearing aid dealers could dispense hearing aids. This decision was supported by reference to KRS 334.040(2), which exempted physicians and audiologists from the provisions of Chapter 334 so long as they do not engage in the sale of hearing aids.
Therefore, KRS 334.020 in conjunction with 334.040(2), as interpreted by OAG 76-544, prohibits the sale or dispensing of hearing aids except by licensed hearing aid dealers. However, this does not prohibit a physician, audiologist or any other properly qualified individual from applying for a hearing aid dealer's license. Once licensed, the individual, regardless of whether he is a physician or audiologist, may sell and dispense hearing aids. Such an interpretation is not in conflict with the statute you cited, KRS 334.200(2). The purpose behind that provision is to prevent one who is licensed only as a physician or audiologist from owning an interest in a business controlled by a hearing aid dealer that is established solely for the purpose of engaging in the fitting or sale of hearing aids for profit. This restriction does not apply if:
(a) A physician or audiologist owns an interest in a hearing aid business that is not solely engaged in the fitting or sale of hearing aids for profit; or
(b) If the physician or audiologist becomes licensed as a hearing aid dealer.
In summary, it is our opinion that KRS 334.020 and KRS 334.040(2) prohibit anyone, including physicians and audiologists, from engaging in the sale or dispensing of hearing aids unless they are licensed as hearing aid dealers. The purpose behind KRS 334.200(2) is to prevent a physician or audiologist from owning an interest in a business controlled by or employing a hearing aid dealer where the sole purpose of that business is to engage in the fitting or sale of hearing aids for profit. Obviously, these statutes work in harmony to prohibit any unlicensed individual from selling or dispensing hearing aids or profiting from such selling or dispensing, unless the selling or dispensing is done through a licensed hearing aid dealer. However, if the physician or audiologist becomes licensed as a hearing aid dealer, he may then sell or dispense the hearing aids.