§ 799. Administration; suspension and revocation of registrations; fines; reprimands. 1. (a) The secretary shall refer each complaint which alleges conduct constituting a violation of article one hundred fifty-nine of the education law committed by an individual licensed pursuant to article one hundred fifty-nine of the education law to the office of professional discipline within the education department. Such complaints shall be processed pursuant to article one hundred thirty of the education law.(b) Any order to suspend, revoke or refuse to issue a certificate of registration for hearing aid dispensing of a licensed audiologist shall be issued by the commissioner of education. Where such complaints allege violation of the provisions of this article relating to the dispensing of hearing aids by a registrant who is also subject to the provisions of article one hundred fifty-nine of the education law, the secretary shall have the powers as provided in this section. Such powers relate exclusively to the registration as a hearing aid dispenser. 2. Except as provided in subdivision one of this section, the secretary may suspend or revoke any registration issued pursuant to this article, and/or impose a fine of up to one thousand dollars per violation payable to the secretary. Such penalties may be imposed for the following reasons:
(a) engaging in the business of dispensing hearing aids unless the person is a registered hearing aid dispenser or a holder of a temporary certificate of registration.
(b) incompetency which includes, but is not limited to, the improper or unnecessary dispensing of a hearing aid.
(c) negligence and/or repeated negligent acts.
(d) conviction of any crime substantially related to the qualifications, functions and duties of a hearing aid dispenser.
(e) obtaining a certificate of registration by fraud or deceit; or presenting as his or her own the certificate of registration of another.
(f) use of the term "doctor" or "physician" or "clinic" or "hearing specialist" or "audiologist," or any derivation thereof, unless authorized by law; or any terms which suggest or imply medical board certification, medical training, competency or expertise. Any reference to certification or other professional training shall specify the grantor of such credential.
(g) fraud or misrepresentation in the dispensing of a hearing aid or aids.
(h) the employment, to perform any act covered by the provisions of this article, of any person whose certificate of registration has been suspended, revoked, or who does not possess a valid certificate of registration or temporary certificate of registration issued under this article.
(i) the use or causing the use, of any advertising or promotional literature in such manner as to have the capacity or tendency to mislead or deceive purchasers or prospective purchasers including any reference to "hearing consultation", unless permitted pursuant to article one hundred fifty-nine of the education law for those hearing aid dispensers licensed under such article, or medical consultation, diagnosis or treatment.
(j) the registrant's permitting another to use his or her certificate of registration for any purpose.
(k) failure to display the certificate of registration as provided in this article.
(l) violation of any provision of this article, other applicable federal or state law, rule or regulation, or of any existing applicable sanitary code.
(m) failure or refusal to perform repairs or service on any hearing aid sold by such trainee and/or registrant.
(n) no hearing aid dispenser, registrant or hearing aid trainee shall state or imply that the use of any hearing aid will restore hearing to normal, or preserve hearing, or prevent or retard the progression of deafness or being hard of hearing or any false or misleading or medically or audiologically unsupportable claims regarding the efficacy or benefits of hearing aids.
(o) fraud or bribery in securing a certificate of registration or permission to take an examination therefor.
(p) violation of a lawful order of the department previously entered in a disciplinary hearing or failure to comply with investigations or a lawfully issued subpoena of the department.
(q) making any predictions or prognostications as to the future course of deafness or being hard of hearing, either in general terms or with reference to an individual person, except where such predictions and prognostications are made by a hearing aid dispenser licensed pursuant to the provisions of article one hundred fifty-nine of the education law and consistent with such law.
(r) exerting influence on a client in such a manner as to exploit the client for financial gain for the registrant or for a third party.
(s) sale of a hearing aid by telephone or telemarketing. Such prohibition shall not limit the scheduling of appointments, offering of services or the sale of a hearing aid to a person whom has been tested by that dispenser or dispensing audiologist within the previous thirty days or is a hearing aid user who has initiated or specifically requested the telephone sale or offer of sale.
(t) inducing a prospective user or the parent or guardian of a prospective user to execute a religious waiver through the use of a false or misleading statement to effect the sale of a hearing aid.
(u) performing an otoscopic observation or testing of hearing for medical diagnostic purposes. 3. Whenever a certificate of registration is revoked, such certificate of registration shall not be reinstated or reissued until after the expiration of a period of five years from the date of such revocation. 4. The secretary may issue an order directing the cessation of any activity for which registration is required by this article upon a finding that a person, including a partnership, limited liability company, corporation, trust or other business organization has engaged in or acted as a hearing aid dispenser or a hearing aid dispensing business within this state without a valid registration. The department shall, before making such determination and order, afford such person including a partnership, limited liability company, corporation, trust, association or business organization, an opportunity to be heard in person or by counsel in reference to an adjudicatory proceeding held pursuant to this article. 6. Upon the suspension or revocation of a certificate of registration by the secretary and the issuance of a notice thereof, the registrant shall within five business days deliver to the secretary the certificate of registration. If surrendered by mail, the certificate of registration shall be sent by registered or certified mail, postmarked no later than three business days following notice of suspension or revocation. Failure to return a certificate of registration which has been revoked or suspended pursuant to this section within the prescribed time shall constitute a violation punishable by the payment of a fine of up to five hundred dollars. 7. In the event that the registrant shall contest the charge of the violation, a hearing on the charge shall be conducted in accordance with the provisions of subdivisions one and two of section eight hundred of this article.
