Section 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 a
  hearing  impairment  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 a hearing impairment, 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.