|
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.
|