TAB III SPEECH-LANGUAGE PATHOLOGY & AUDIOLOGY & HEARING AID DISPENSERS BOARD 2005 EVERGREEN STREET, SUITE 2100, SACRAMENTO, CA 95815 PHONE (916) 263-2666 FAX (916) 263-2668 WWW.SPEECHANDHEARING.CA.GOV HEARING AID DISPENSERS COMMITTEE MEETING MINUTES July 26, 2012 Wyndham Garden Hotel “Aztec Room” 3737 Sports Arena Blvd San Diego, CA (916) 263-2666 Committee Members Present Staff Present Deane Manning, Chair, Hearing Aid Dispenser Annemarie Del Mugnaio, Executive Officer Robert Green, Au.D. Claire Yazigi, Legal Counsel Sandra Danz, Hearing Aid Dispenser Breanne Humphreys, Staff Alison Grimes, Au.D. Yvonne Crawford, Staff Rodney Diaz, M.D. Ily Mason, Staff Board Members Present Monty Martin, M.A. Carol Murphy, M.A. Guests Present Cliff Johnson, Tricia Hunter, HHP CA Jacque Georgeson, SDSU Don Tucker, HHP I. Call to Order Chairperson Manning called the meeting to order at 1:15 p.m. II. Introductions Those present introduced themselves. III. Approval of the January 13, 2012 Hearing Aid Dispensers Committee Meeting Minutes The Committee made minor edits to the minutes. M/S/C: Grimes/Danz The Committee voted to approve the minutes as amended. IV. Review Public Comments to Amendments to the Hearing Aid Dispenser’s Advertising Regulations and Related Guidelines (California Code of Regulations Section 1399.127) Ms. Del Mugnaio reviewed the public comments and recent Board discussion regarding suggested changes to the advertising regulations. The following changes were discussed:  Place restrictions on advertisements that appear to be a medical research study instead of a marketing strategy.  Use of the term Audioprosthologist  Add provisions for including the licensee’s name and license number on the advertisements for a specific hearing aid location  Provide greater clarity on advertising pricing for hearing aids  Clarify the manner in which professional certifications should be represented to the public Ms. Del Mugnaio explained that the goal of the Committee is to develop language or advertising concepts that will clarify existing advertising expectations. She stated that she sought comments and suggestions regarding amendments to the advertising regulations from consumer groups, senior groups, members of the Hearing Healthcare Providers (HHP), and members of the California Academy of Audiology (CAA). Ms. Grimes stated that one of the more egregious misleading advertisements are those which claim that a particular hearing aid can completely eliminate background noise as no existing product has the technology to do that. Ms. Del Mugnaio responded that any advertisement which makes false claims or creates a false or unjustified expectation of a favorable result is a violation of law pursuant to Business and Professions Code Section 651. Ms. Grimes inquired regarding the number of complaints the Board receives regarding false or misleading advertisements and whether such complaints are levied by consumers. Ms. Del Mugnaio stated that a large majority of the complaints received about hearing aid dispensers are relative to misleading advertising, however, such complaints are typically levied by industry professionals. The Committee determined that the examples as currently provided in regulation are confusing and should be eliminated. The Committee delegated to Ms. Yazigi and Ms. Del Mugnaio the task of crafting clarifying advertising regulations for review by the Committee members. Ms. Yazigi asked the Committee for some guiding principles in order to craft amended provisions. The Committee requested the proposed language be general but provide for implementing language of B&P Code Section 651 regarding misleading advertisements. Ms. Yazigi stated that she will provide the Committee members with the text of B&P Code Section 651 for reference prior to the next Committee meeting. V. Update Regarding the Exemption Request of the Federal Drug Administration on Mail Order and Catalog Sales of Hearing Aids (Business & Professions Code Section 2539.2) Ms. Del Mugnaio stated that the exemption request was mailed to the Federal Drug Administration (FDA) on May 30, 2012 and there has been no response received to date. Ms. Yazigi commented that the FDA has a regulatory obligation to respond to an exemption request within sixty (60) days. Ms. Del Mugnaio agreed to follow-up with the FDA. Ms. Del Mugnaio reported that she has shared the Board’s exemption request letter with hearing aid dispensers licensing agencies’ in other states as well as the International Hearing Society. Chairperson Manning adjourned the meeting at 2:10 p.m. TAB IV (1) Title 16 California Code of Regulations Division 13.3 Proposed changes to Section 1399.127 (“Advertising”) 10/01/12 Draft *Bold indicates language currently in Section 1399.127 (a) A licensed hearing aid dispenser may advertise any goods or services authorized to be provided by such license in a manner authorized by Section 651 of the code so long as such advertising does not promote the unnecessary or excessive use of such goods or services. (b) False or misleading advertising includes but is not limited to advertising which violates any provision of Article 8 of Chapter 5.3 of Division 2 of the Business and Professions Code or which does not comply with any one of the following requirements. Advertisement on behalf of a licensee must do all of the following: (1) Include the following information: (A) The dispenser’s name and address as they appear on the hearing aid dispenser license; (B) License number, including the letters ‘HAD’ or ‘DAU’, as appropriate; and (C) Licensee telephone number. If a telephone number appears in an advertisement or on an advertising sign, this number shall be the same number as that listed for the dispenser’s firm name and address in the telephone directory, or in the telephone company records if such number is assigned to the dispenser subsequent to the publication of such telephone directory; (2) If advertising a hearing test, state that such test is not diagnostic but only to properly fit and sell hearing aids; (3) If including an educational degree, specify the degree and field. The use of the title “Dr.” is not sufficient for purposes of specifying the degree where the degree is a non-medical doctorate; (4) If including a job title or dispenser's certification by a professional organization, include the entire, fully-spelled name of the job title or certification and certifying organization. Any job title, certification, or words of like import listed in an advertisement must represent an actual job title, credential, or certification, and must not be misleading. [Possible additional language: Any certifications claimed must be those issued upon successful completion of an oral and written examination based on psychometric principles; and training and experience subsequent to such examinations, to assure competent practice in the dispensing of hearing aids as determined by the professional organization granting the certification – or list the organizations whose certifications the Board will recognize]; (5) Not utilize a business name that is so broad as to connote comprehensive and diagnostic hearing services. Advertisements and business names must not include the word ‘Hearing’ without being immediately followed by the word ‘Aid,’ unless the dispenser is also licensed as a physician or audiologist; (6) Not include information that suggests that the offer of new technology is part of a research project when it is not; (7) Not include the term "specialist" when referencing licensure without including the title "hearing aid dispenser"; and (8) Not include sending to a consumer preset appointment information or "rebate coupons" that resemble checks as part of a direct mail solicitation. (c) An advertisement of price must do all of the following: (1) Be exact, and disclose any conditions or other variables to an advertised price; (2) If including price comparison, base such comparison on verifiable data. Such data must be retained by the licensee for one year after the advertisement is published; (3) Specify whether the hearing aids are one-size-fits all or will be made to conform to an ear mold; and (4) Not have the capacity to mislead the public as to the extent that anticipated goods or services are included in the advertised price. If consumers will likely need to purchase additional related goods or services, the advertisement must disclose this fact. [Possible additional language: Any such disclosure statement shall indicate that many instances of performance of the service involve extra cost and, if the dispenser reasonably expects that the extra cost will be more than 25% of the advertised costs, that the extra cost may be substantial. The type size of the disclosure statement shall be at least1/2 the type size used in the advertised price, but no smaller than 8 point font, and the statement shall either be shown near the price or shall be prominently footnoted through use of an asterisk or similar reference. The advertisement must also disclose any additional services not part of the procedure but for which the consumer will be charged, together with the fees for such services.]. (d) An advertisement of discount must: (1) List either the dollar amount of the non-discounted fee for the hearing aid or provide consumers with a method to ascertain the actual price, like Manufacturer’s Suggested Retail Price; (2) List either the dollar amount of the discount fee or the percentage of the discount for the specific device; (3) Inform the public of the dates on which the sale or discount price will be in effect if the sale or discount price is a limited time offer; and (4) Identify specific groups who qualify for the discount or any other terms and conditions or restrictions for qualifying for the discount. (e) An advertisement shall not be used to entice the consumer into a more costly transaction than the advertised item or service at the advertised price. (f) Any national advertisement published in California shall comply with all applicable state and federal laws and regulations. NOTE: Authority Cited: Section 651, 2531.06 and 2531.95, Business and Professions Code. Reference: Sections 651 and 17500, Business and Professions Code. TAB IV (2) Comments: Sandra Danz Title 16 California Code of Regulations Division 13.3 Proposed changes to Section 1399.127 (“Advertising”) 10/01/12 Draft *Bold indicates language currently in Section 1399.127 (a) A licensed hearing aid dispenser may advertise any goods or services authorized to be provided by such license in a manner authorized by Section 651 of the code so long as such advertising does not promote the unnecessary or excessive use of such goods or services. (b) False or misleading advertising includes but is not limited to advertising which violates any provision of Article 8 of Chapter 5.3 of Division 2 of the Business and Professions Code or which does not comply with any one of the following requirements. Advertisement on behalf of a licensee must do all of the following: (1) Include the following information: (A) The dispenser’s name and address as they appear on the hearing aid dispenser license; (There are some forms of advertising that may cover a number of office locations, thus include many different licensees. In the case of a large National corporation, there may be one letter signed only by the President of the company. Prospective buyers would then call a number and be directed to the office location closest to their residence. Again, I do not see how this is a consumer protection issue. The financial burden placed on large corporations to customize advertising for each office location, on the other hand, seems unreasonable). (B) License number, including the letters ‘HAD’ or ‘DAU’, as appropriate; and (C) Licensee telephone number. If a telephone number appears in an advertisement or on an advertising sign, this number shall be the same number as that listed for the dispenser’s firm name and address in the telephone directory, or in the telephone company records if such number is assigned to the dispenser subsequent to the publication of such telephone directory; (I see this as problematic as many corporations utilize unique telephone numbers that enable their marketing departments to track the success of various types of advertising. I fail to see how this is a consumer protection issue. I seem to recall that, when discussed at the last board meeting, we were all in agreement on this matter). (2) If advertising a hearing test, state that such test is not diagnostic but only to properly fit and sell hearing aids; (3) If including an educational degree, specify the degree and field. The use of the title “Dr.” is not sufficient for purposes of specifying the degree where the degree is a non-medical doctorate; (4) If including to a job title or dispenser's certification by a professional organization, include the entire, fully-spelled name of the job title or certification and certifying organization. Any job title, certification, or words of like import listed in an advertisement must represent an actual job title, credential, or certification, and must not be misleading. [Possible additional language: Any certifications claimed must be those issued upon successful completion of an oral and written examination based on psychometric principles; and training and experience subsequent to such examinations, to assure competent practice in the dispensing of hearing aids as determined by the professional organization granting the certification – or list the organizations whose certifications the Board will recognize]; (5) Not utilize a business name that is so broad as to connote comprehensive and diagnostic hearing services. Advertisements and business names must not include the word ‘Hearing’ without being immediately followed by the word ‘Aid,’ unless the dispenser is also licensed as a physician or audiologist; (Again, problematic as we are seeing more and more blended practices and corporations that employ both Audiologists and Dispensers. If an Audiologist and a Dispenser are working in the same practice they may call the practice a “Hearing Center” yet if they Audiologists should leave, even temporarily, the practice would be in violation, based on this definition. I once again fail to see this as a consumer protection issue) (6) Not include information that suggests that the offer of new technology is part of a research project when it is not; (7) Not include the term "specialist" when referencing licensure without including the title "hearing aid dispenser"; and (8) Not include sending to a consumer preset appointment information or "rebate coupons" that resemble checks as part of a direct mail solicitation. (c) An advertisement of price must do all of the following: (1) Be exact, and disclose any conditions or other variables to an advertised price; (2) If including price comparison, base such comparison on verifiable data. Such data must be retained by the licensee for one year after the advertisement is published; (3) Specify whether the hearing aids are one-size-fits all or will be made to conform to an ear mold; and (4) Not have the capacity to mislead the public as to the extent that anticipated goods or services are included in the advertised price. If consumers will likely need to purchase additional related goods or services, the advertisement must disclose this fact. [Possible additional language: Any such disclosure statement shall indicate that many instances of performance of the service involve extra cost and, if the dispenser reasonably expects that the extra cost will be more than 25% of the advertised costs, that the extra cost may be substantial. The type size of the disclosure statement shall be at least1/2 the type size used in the advertised price, but no smaller than 8 point font, and the statement shall either be shown near the price or shall be prominently footnoted through use of an asterisk or similar reference. The advertisement must also disclose any additional services not part of the procedure but for which the consumer will be charged, together with the fees for such services.]. (d) An advertisement of discount must: (1) List either the dollar amount of the non-discounted fee for the hearing aid or provide consumers with a method to ascertain the actual price, like Manufacturer’s Suggested Retail Price; (2) List either the dollar amount of the discount fee or the percentage of the discount for the specific device; (3) Inform the public of the dates on which the sale or discount price will be in effect if the sale or discount price is a limited time offer; and (4) Identify specific groups who qualify for the discount or any other terms and conditions or restrictions for qualifying for the discount. (e) An advertisement shall not be used to entice the consumer into a more costly transaction than the advertised item or service at the advertised price. (f) Any national advertisement published in California shall comply with all applicable state and federal laws and regulations. NOTE: Authority Cited: Section 651, 2531.06 and 2531.95, Business and Professions Code. Reference: Sections 651 and 17500, Business and Professions Code.