§ 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.