BILL ANALYSIS
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|Hearing Date:July 13, 2009 |Bill No:AB |
| |1535 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 1535Author:Jones
As Amended:July 9, 2009 Fiscal: Yes
SUBJECT: Audiologists: hearing aids.
SUMMARY: Revises the definition of the practice of audiology to
include the selling of hearing aids, and specifies certain
requirements for the sale of hearing aids. Provides that on and after
January 1, 2010, in addition to satisfying the licensure and
examination requirements, as specified, no licensed audiologists shall
sell hearing aids unless he or she passed an examination, approved by
the Speech-Language Pathology and Audiology Board (SLPAB) relating to
selling hearing aids. Eliminates the Hearing Aid Dispensers Bureau
and consolidates its functions into the SLPAB and changes the
composition of the SLPAB.
Existing law:
1)Establishes the Speech-Language Pathologists and Audiologists
Licensure Act to regulate the practice of speech-language pathology
and audiology. Establishes the SLPAB to license and regulate
speech-language pathologists and audiologists.
2)States that the nine-member SLPAB includes three licensed
speech-language pathologists, three licensed audiologists, and three
public members one of whom is a licensed physician and surgeon,
board certified in otolaryngology, and the remaining two public
members who shall be licentiates of the SLPAB, as specified.
Provides that the Governor appoints the physician and surgeon public
member and the other six licensed members, and the Senate Rules
Committee and the Speaker of the Assembly each appoint a public
member.
3)States that the practice of audiology means the application of
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principles, methods, and procedures of measurement, testing,
appraisal, prediction, consultation, counseling, instruction related
to auditory, vestibular, and related functions and the modification
of communicative disorders involving speech, language, auditory
behavior or other aberrant behavior resulting from auditory
dysfunction; and the planning, directing, conducting, supervising,
or participating in programs of identification of auditory
disorders, hearing conservation, cerumen removal, aural
habilitation, and rehabilitation, including, hearing aid
recommendation and evaluation procedures including, but not limited
to, specifying amplification requirements and evaluation of the
results thereof, auditory training, and speech reading.
4)Establishes within the Department of Consumer Affairs the Hearing
Aid Dispensers Bureau (HAD) to regulate the practice of hearing aid
dispensers. Establishes the Hearing Aid Dispensers Advisory
Committee, consisting of seven members; three of whom shall be
licensed hearing aid dispensers and four of whom are public members.
States that only one of the licensed members may also be a licensed
audiologist.
5)Defines a hearing aid dispenser as a person engaged in the fitting
or selling of hearing aids to an individual with impaired hearing.
6)Defines the practice of fitting or selling hearing aids as those
practices used for the purpose of selection and adaptation of
hearing aids, including direct observation of the ear, testing of
hearing in connection with the fitting and selling of hearing aids,
taking of ear mold impressions, fitting or sale of hearing aids, and
any necessary postfitting counseling. Provides that the practice of
selling hearing aids does not include the act of concluding the
transaction by a retail clerk.
7)Prohibits a hearing aid dispenser from conducting diagnostic hearing
tests when conducting tests in connection with the fitting or
selling of hearing aids.
8)States that hearing aids may be sold by catalog or direct mail
provided that:
a) The seller is licensed as a hearing-aid dispenser in this
state.
b) There is no fitting, selection or adaptation of the instrument
and no advice is given with respect to fitting, selection, or
adaptation of the instrument and no advice is given with respect
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to the taking of an ear impression for an earmold by the seller.
c) The seller has received a statement which is signed by a
physician and surgeon, audiologist, or a hearing aid dispenser,
licensed by the state of California which verifies that
consultation for specified conditions has been complied with, and
has conducted a direct observation of the purchaser's ear canal.
9)Requires a hearing aid dispenser, upon consummation of a sale of a
hearing aid to deliver to the purchaser a written receipt containing
specified information.
10)Requires that whenever specified conditions are found to exist,
either from observations by the licensee or on the basis of
information furnished by the prospective hearing aid user, a hearing
aid dispenser, prior to fitting or selling a hearing aid, suggest to
the individual in writing that it may be in his or her best interest
to consult with a licensed physician, as specified.
11)Prohibits a hearing aid dispenser from selling to a person 16 years
of age or younger, unless a recommendation has been made by a
physician or audiologist, as specified.
12)Requires a hearing aid dispenser to keep and maintain specified
records for a seven-year period.
13)Provides that a hearing aid dispenser who is the owner, manager or
franchisee at a location where hearing aids are fit and sold to be
responsible for the adequacy of the fitting or selling or any
hearing aid fit and sold by any hearing aid dispenser at that
location.
14)Requires the HAD to prepare, approve, grade, and conduct
examinations of applicants for a hearing aid dispenser license.
Requires that each applicant take and pass a written examination and
a practical examination compiled at the direction of the HAD
covering the critical tasks involved in the fitting and selling of
hearing aids and the knowledge, skills, and abilities needed to
perform those tasks safely and competently.
15)Specifies that hearing aids may be sold by catalog or direct mail
provided that certain requirements are met, including that the
seller is a licensed hearing aid dispenser, there is not fitting,
selection, or adaptation of the instrument and no advice is given
with respect to the taking of an ear impression for an earmold by
the seller.
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16)Establishes the Newborn Hearing Screening Program implemented by
the Department of Health Care Services, to screen all newborns and
infants to identify hearing loss.
This bill:
1)Eliminates the HAD and consolidates its functions into the SLPAB.
Eliminates the HAD Fund and places those funds into the SLPAB Fund.
2)Revises the definition of the practice of audiology to include the
selling of hearing aids.
3)Revises the composition of the SLPAB, and instead requires that the
six non-public members be made up of the following: two licensed
speech-language pathologists, two licensed audiologists, one of whom
shall be a dispensing audiologist, and two hearing aid dispensers.
Retains the three public members if SLPAB, one of whom shall be a
physician certified in otolaryngology.
4)Makes other clarifying and conforming changes in the Hearing Aid
Dispensers Licensing Law and the Speech-Language Pathologists and
Audiologists Licensure Act.
This bill, similar to requirements for hearing aid dispensers:
1)States that on and after January 1, 2010, in addition to satisfying
existing licensure and examination requirements, no licensed
audiologists shall sell hearing aids unless he or she has passed an
examination , approved by the SLPAB relating to selling hearing aids.
2)Provides that on and after January 1, 2010, a licensed audiologist,
with an unexpired license, to sell hearing aids pursuant to the
Hearing Aid Dispensers Licensing Law may continue to sell hearing
aids pursuant to that license until that license expires, and upon
expiration the licensee shall be deemed to have passed the
examination specified in # 1) above and may continue to sell hearing
aids pursuant to his or her audiology license pursuant to the
provisions of the Speech-Language Pathologists and Audiologists
Licensure Act.
3)States that an audiologist whose license to sell hearing aids,
issued pursuant to the Hearing Aid Dispensers Licensing Law is
suspended or revoked is not authorized to sell hearing aids and
shall be subject to the examination requirements specified in # 1)
above and other provisions of the Speech-Language Pathologists and
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Audiologists Licensure Act.
4)Provides that hearing aids may be sold by catalog or direct mail
provided that:
a) The seller is licensed as an audiologist in this state.
b) There is no fitting, selection, or adaptation of the
instrument and no advice is given with respect to fitting,
selection, or adaptation of the instrument and no advice is given
with respect to the taking of an ear impression for an earmold by
the seller.
c) The seller has received a statement which is signed by a
physician and surgeon, audiologist, or a hearing aid dispenser,
licensed by the State of California which verifies that
consultation for the conditions specified in item #11) below has
been complied with.
5)Requires a copy of the statement referred to in item # 4) c) above,
to be retained by the seller for a seven-year period.
6)Requires a licensed audiologist, upon the consummation of a sale of
a hearing aid, deliver to the purchaser a written receipt , signed by
or on behalf of the licensed audiologist, containing all of the
following:
a) The date of consummation of the sale.
b) Specifications as to the make, serial number, and model number
of the hearing aid or aids sold.
c) The address of the principal place of business of the licensed
audiologist, and the address and office hours at which the
licensed audiologist shall be available for fitting or
postfitting adjustments and servicing of the hearing aid or aids
sold.
d) A statement to the effect that the aid or aids delivered to
the purchaser are used or reconditioned, as the case may be, if
that is the fact.
e) The number of the licensed audiologist's license and the name
and license number of any other hearing aid dispenser, temporary
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licensee, or audiologist who provided any recommendation or
consultation regarding the purchase of the hearing aid.
f) The terms of any guarantee or written warranty, as specified,
made to the purchaser with respect to the hearing aid or hearing
aids.
7)States that whenever any of the following conditions are found to
exist (as specified in a) to f), above), either from observations by
the licensed audiologist, or on the basis of information furnished
by the prospective hearing aid user, a licensed audiologist shall,
prior to fitting or selling a hearing aid to any individual, suggest
to that individual in writing that his or her best interests would
be served if he or she would consult a licensed physician
specializing in diseases of the ear, or if no licensed physician is
available in the community, then to a duly licensed physician:
a) Visible congenital or traumatic deformity of the ear.
b) History of, or active, drainage from the ear within the
previous 90 days.
c) History of sudden or rapidly progressive hearing loss within
the previous 90 days.
d) Acute or chronic dizziness.
e) Unilateral hearing loss of sudden or recent onset within the
previous 90 days.
f) Significant air-bone gap (when generally acceptable standards
have been established).
8)Provides that no referral for medical opinion need be made by any
licensed audiologist in the instance of replacement only of a
hearing aid that has been lost or damaged beyond repair within one
year of the date of purchase. Requires a copy of the written
recommendation to be retained by the licensed audiologist for a
seven-year period.
9)Requires that a person receiving the written recommendation who
elects to purchase a hearing aid to sign a receipt , and the receipt
shall be kept with the other papers retained by the licensed
audiologist for a seven-year period.
10)States that nothing that is required to be performed by a licensed
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audiologist for the sale of a hearing aid shall mean that the
licensed audiologist is engaged in the diagnosis of illness or the
practice of medicine or any other activity prohibited by the
provisions of the Business and Professions Code.
11)Prohibits the sale by of a hearing aid by an individual licensed as
an audiologist to a person 16 years of age or younger, unless within
the preceding 6 months a recommendation for a hearing aid has been
made by both a board-certified, or a board-eligible physician
specializing in otolaryngology, and by a state licensed audiologist.
States that a replacement of an identical hearing aid within one
year shall be an exception to this requirement.
12)Requires a licensed audiologist to, upon the consummation of a sale
of a hearing aid, keep and maintain records in his or her office or
place of business at all times and each such record shall be kept
and maintained for a seven-year period. These records include:
a) Results of test techniques as they pertain to fitting of the
hearing aid.
b) A copy of the written receipt required by item # 6) above, and
the written recommendation and receipt as specified in item # 8)
and # 9) above.
13)Requires a licensed audiologist who is the owner, manager, or
franchisee at a location where hearing aids are fit or sold, to be
responsible for the adequacy of the fitting or selling of any
hearing aid fit and sold by any licensee or licensees at that
location.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
1)No net fiscal impact due to a fee-supported special fund reduction
in revenue of approximately $320,000 and an associated reduction in
enforcement activities connected to audiologists under current law
who maintain both licenses. As a result of this bill, those with
two licenses will end their annual payment of the $280 HAD licensure
fee. Oversight and enforcement workload for HAD will be reduced and
shifted to SLPAB which currently handles some hearing aid sales
complaints related to audiologists.
2)The HAD is proposed for consolidation under SLPAB in the recent
release of the Governor's May Revision.
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COMMENTS:
1)Purpose. According to the Author , this bill would allow licensed
audiologists to sell hearing aids under their audiology licenses,
rather than requiring them to also have a dispenser's (sales)
license administered by a second state licensing entity. The Author
points out that this bill increases the accessibility of hearing
aids for hearing impaired patients by allowing the purchase of a
hearing aid directly through their audiologist, and does not affect
the ability of non-audiologist dispensers to sell hearing aids.
Consumers may go to an audiologist or a dispenser elsewhere if they
wish to purchase a hearing aid device. The California Academy of
Audiology , which is the sponsor of this measure, argues that this
limitation dates back
37 years ago when hearing aid options were quite limited and thought
to be "unprofessional" at that time for audiologists to sell the
devices. As a result, a dispenser's license was established to
license non-audiologists who sell the devices, and it required some
basic knowledge about "fitting" a hearing aid. Over the years,
hearing treatment and hearing aid technology has become more
advanced, particularly within the pediatric population as a result
of the Universal Newborn Hearing Screening Programs in California
and other states, and many audiologists have had to get a
dispenser's license in order to vend the new hearing aids and fully
serve their patients. Currently, 52% of the audiology licensees
now have a dispenser's license. This Sponsor points out that this
bill removes the unnecessary dual licensing requirement for
audiologists to sell hearing aids.
2)Background.
a) The Practice of Audiology. The SLPAB sets licensing standards
and enforces the laws governing the practices of speech-language
pathology and audiology. SLPAB investigates complaints against
licensed and unlicensed practioners and takes disciplinary action
whenever appropriate. There are roughly 1650 licensed
audiologists in California and approximately 50% of them are
licensed to dispense hearing aids. Current law provides that to
be eligible for licensure as an audiologist, the applicant must
possess at least a master's degree in audiology from an
educational institution approved by the SPLAB, complete at least
60 units of courses related to the normal development, function,
and use of speech, hearing, and language; and courses that
provide information about, and training in, the management of
speech, hearing, and language disorders, and at least 24 of the
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60 required units be related to language resulting from hearing
disorders, completion of supervised clinical practice, completion
of no less than 36 weeks of supervised professional full-time
experience or 72 weeks of professional part-time experience
obtained under the supervision of a licensed audiologist, and
pass an examination approved by the SLPAB. The examination
includes test items on evaluating of hearing, identifying medical
conditions requiring referral, fitting hearing aids, and ethics.
A minimum of 375 hours of supervised clinical practice is also
required of audiologists. Under current law, the practice of
audiology does not include the selling of hearing aids, and
audiologists may not sell hearing aids unless they have obtained
a license from the HAD. SB 821 (Committee on Business,
Professions and Economic Development Committee) revises the
educational and curriculum standards for audiologists to require
a doctoral level in audiology. The doctoral level in audiology
provides for another full-year of classroom instruction and a
full-year externship to be completed under the auspices of the
university training program prior to the issuance of the
doctorate degree.
b) Hearing Aid Dispensers. The HAD oversees the licensing and
regulation of hearing aid dispensers. HAD informs consumers of
their legal rights and obligations when purchasing or returning
hearing aids. It also protects consumers by maintaining
advertising standards as well as evaluating the competence of
individual dispensers. HAD mediates complaints and enforces
statutory and regulatory requirements related to the practice of
hearing aid dispensers. HAD licenses more than 2,200 hearing aid
dispensers. Current law makes it unlawful for an individual to
fit or sell hearing aids, or to display a sign or to advertise to
be engaged in the business of fitting or selling hearing aids
without t a license. To be eligible to be a hearing aids
dispenser, an applicant must be at least 18 years of age, and who
possess a high school diploma or its equivalent. An applicant
must also pass written and practical examinations as prescribed
by the HAD. The practical examination contains three stations,
and an applicant moves from one station to another in no
particular order. Station A is a 30 minutes examination that
involves audiometric assessment or the inspection of the ear and
an electronic hearing assessment. Station B is a twenty minutes
examination which involves taking an ear impression and
evaluating hearing instruments. Finally, Station C is a 25
minutes examination that involves fitting and orientation and
post-fitting care.
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c) Joint Legislative Sunset Review Committee (JLSRC). In 1998,
the JLSRC considered the issue of whether the scope of practice
of audiologist be expanded to include the practice of dispensing
hearing aids. The recommendation of JLSRC staff and the
Department of Consumer Affairs staff was that all proposals to
expand the scope of practice of audiologists should be evaluated
on a case-by-case basis and subjected to the requirement of
"sunrise" review. The JLSRC staff and DCA further recommended
that both the SLPAB and the Hearing Aid Dispensers Advisory
Committee evaluate whether there are any health and safety risks
posed by allowing audiologists to also sell hearing aids.
Subsequently, in 2006, the SLPAB submitted a report to the Joint
Committee on Boards, Commissions and Consumer Protection
(formerly JLSRC) which supported expanding the scope of practice
of audiologists to include the practice of dispensing of hearing
aids. SLPAB indicates in this report, that for almost 30 years
the scope of educational training for audiologists has included
the selection, fitting, and dispensing of hearing aids. In
addition, the application of appropriate amplification is an
important aspect of most other audiology courses from pediatrics
to aural rehabilitation in which patients are provided with
therapeutic techniques for overcoming the handicapping conditions
related to hearing loss. The SLPAB licensing law provides that
audiologists are trained to select appropriate amplification and
evaluate patient performance with that amplification. SLPAB
points out that audiologists working in the federal Veteran's
Administration settings (which are exempt from licensure
requirements) are not required to hold a hearing aid dispensers
license to provide hearing aid services and dispense hearing
instrumentation.
d) Other States. According to background information provided to
the Committee, 30 states permit hearing aid dispensing with the
audiology license including Massachusetts, Alaska, Florida, and
Washington. Connecticut and Texas enforce special conditions for
audiologists to dispense hearing aids with the audiology license
and New Mexico requires that audiologists obtain a separate
endorsement to dispense hearing aids. On the other hand, 20
twenty states and the District of Columbia require audiologists
to hold a hearing aid dispenser licensure to dispense hearing
aids.
3)DCA Legal Opinion. An opinion by DCA counsel on the issue of
whether an audiologist may fit, but not sell hearing aids, without
being a licensed hearing aid dispenser, was submitted to the members
of the SLPAB on April 2, 2008. The opinion concluded that a
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hearing aid dispensing license is not required as long as the
audiologist does not sell the devices. In reaching this conclusion,
the opinion indicated that existing law codifying the practice of
hearing aid dispensers indicates that persons who fit or sell
hearing aids must be licensed as hearing aid dispensers. However,
another provision points out that this requirement does not apply to
nor affect any licensed audiologist in conducting fitting
procedures, and who does not directly or indirectly engage in the
sale or offering for sale of hearing aids. The opinion pointed out
that this means an audiologist can fit a patient with a hearing aid
without being licensed as a hearing aid dispenser as long as he or
she does not sell or offer to sell these devices.
4)Governor's Elimination, Consolidation and Reorganization Proposals.
The Governor's 2009-2010 Budget Act includes proposals to eliminate,
consolidate and reorganize boards and bureaus within the DCA. One
of these proposals is the consolidation of the HAD under the SLPAB.
This Committee held a hearing on June 15, 2009 to consider the
Governor's proposals and heard testimony from the Administration,
the Departments, Boards and Offices that would be affected, the
Legislative Analyst's Office, members of the regulated professions,
and the public. A report was then made to Budget Conference
Committee with all recommendations made by the Committee regarding
the Governor's Elimination, Consolidation and Reorganization
Proposals to the May Revision of the Budget. The Committee
recommended by an 8-0 vote the following:
Consolidate the Hearing Aid Dispensers Bureau with the
Speech-Language Pathology and Audiology Board. Consideration
should be given to changing the composition of the Board to include
hearing aid dispensers.
5)Related Legislation This Session. SB 821 (Committee on Business,
Professions and Economic Development), among other provisions,
revises the educational and curriculum standards for licensure as an
audiologist to require possession of a doctorate in audiology. SB
821 is pending in Assembly Business & Professions Committee.
6)Prior Legislation. A prior version of AB 525 (Cohn, Chapter 48,
Statutes of 2003) would have allowed audiologists to sell hearing
aids but these provisions were amended out of the measure and the
bill instead required that audiologist be licensed instead of
certified.
7)Arguments in Support. The American Academy of Audiology (Academy),
an organization representing audiologists, states that audiologists
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are uniquely trained and educated in the evaluation, assessment,
diagnosis, management, treatment, and prevention of hearing and
balance problems. The preparation for entry into the professions of
audiology allows for rigorous theoretical and clinical education and
training in the area of hearing aids and hearing assistive
technologies. At a minimum, audiologists hold master's degrees and
complete clinical practicums. The Academy also points out that it
has clinical practice documents that specifically address the best
practices in the provision of amplification (hearing aids) to both
children and adults. In its support of this bill, the California
Speech-Language Pathology and Audiology Board states the change in
authority will result in greater access to, and overall efficiency
in, providing professional hearing services to the public. SLPAB
states that allowing audiologists to sell hearing aids should not
raise concerns over competency or accuracy, as it is clear by way of
existing statutes, and by the education and training of audiologists
that they are competent to evaluate, select and fit appropriate
hearing aid devices for their patients.
8)Arguments in Opposition. (Prior to the July 9, 2009 Amendments.)
According to the Hearing Healthcare Providers of California
(HHP/CA), this bill will benefit only those audiologists who no
longer have to demonstrate proficiency in fitting a hearing aid, but
would remove consumer protection for everyone else. Specifically,
HHP/CA states that California law recognizes the potential harm to
consumers that could result from the improper fitting of a hearing
aid, and thus requires a practical examination prior to issuing a
license to any hearing aid dispenser, whether a physician,
audiologist, or hearing aid dispenser. HHP/CA believes that passing
the practical examination assures consumers that the individual is
proficient with the skills needed to properly fit the hearing aid to
the consumer's satisfaction.
9)Suggested Amendment: The bill as currently amended provides that
SLPAB has the authority to approve the examination for audiologists
who want to sell hearing aids. As currently drafted, it is unclear
whether the current examination provided by HAD would be utilized by
SLPAB, or whether the SLPAB would develop a new examination to be
provided for audiologists. The Committee should consider amending
this measure to require the SLPAB to provide the current hearing
dispenser's examination provided by HAD until such time the next
examination validation and occupational analysis is completed by the
Department of Consumer Affairs .
SUPPORT AND OPPOSITION:
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Support:
California Academy of Audiology (Sponsor)
American Academy of Audiology
California Speech-Language Pathology and Audiology Board
California Speech-Language Hearing Association
A number of Audiologists
Opposition: (Prior to the July 9, 2009 Amendments.)
Hearing Healthcare Providers of California
Individual Hearing Aid Dispensers
Consultant:Rosielyn Pulmano