Jerry Kopel


Like the fabled phoenix of the ancients, hearing aid dealers and audiologists will once again seek licensing from the Colorado legislature in l995.

Their professional organizations have already begun efforts to get a positive spin. In July, they managed a two-part series on Denver's Channel 2. Unfortunately the video didn't explain how licensing would stop rip-offs.

In fact, the TV reporter who interviewed me couldn't explain why "Sixty Minutes", in its expose of hearing aid rip-offs, chose to feature Arizona and California, two states that license and regulate hearing aid dealers.

Colorado had a ten-year experience with licensing hearing aid dealers. It ended in l986. Only 23 of the l00 legislators serving in l986 are still in office, so this might be the best time to fill in the other 77 on what happened.

The Board of Hearing Aid Dealers bill was adopted in l975 and sponsored by Rep. Art Herzberger. It was renewed in l980 and the statute was amended and continued. By l985, the Dept. of Regulatory Agency (DORA) summarized in review :

The State Auditor's l980 Sunset review showed NO hearing aid dealers licenses denied, suspended or revoked from l976 through l979. The board, in legislative committee hearings, was admonished to do a better job of protecting the consumers and they promised to do so. As of June, l985, there were 240 licensed hearing aid dealers. No disciplinary actions had been taken and the board had not denied any licensees on disciplinary grounds.

DORA concluded: "The board has been an ineffective enforcement disciplinary actions have ever been taken in the ten years the board has existed...the board has yet to revoke or suspend a license or issue a letter of admonition."

The department recommended abolishing the board, but urged the legislature to keep and enlarge the consumer protections for buyers, using the Colorado Consumer Protection Act as the vehicle.

The bill, replacing the licensing law with the protection act was introduced by then-Rep. Bill Owens and passed, defeating opposition by the dealers and their lobbyist Freda Poundstone.

Protections under the Ownes bill and later revisions ranged from a 30-day recission period to injunctive remedies and what is now a Class 6 felony for criminal violations. Violations leading to damages ranged from the lack of a physician referral to selling a used hearing aid as new.

Among the loopholes pointed out in the l985 DORA report: An examination was required under the law, but the law was written so that an applicant who did not pass the examination but met other requirements could receive a temporary permit for up to fourteen months, with only forty hours of personal supervision. DORA concluded: "Someone who does not even pass the qualifying examination may practice without supervision for up to 59 weeks. That does not constitute effective screening of unqualified people."

Another loophole our Sunset committee discovered during testimony was that even though the law specified the requirement of physician referral, dealers were circumventing that by use of a boiler-plate contract foisted on consumers. The chairman of the dealers board admitted to the legislative committee that he almost always used the boiler-plate contract.

In l99l, the Sunrise-Sunset committee considered a sunrise application for audiologists, speech pathology, and hearing aid dispensers. The DORA review did find a large number of consumer complaints, and recommended placing responsibility for the regulation of hearing aids as medical devices in the Department of Health through the Colorado Food and Drug Act. DORA recommended licensing hearing aid dispensers and audiologists who dispense hearing aids through the Dept. of Health.

DORA wrote it was acting based on concerns from the Consumer Fraud Division of the Attorney General's office. One significant comment was "The attorney general's office suggested an escrow account to better ensure that reimbursement for unuseable hearing aids during the recission period is forthcoming."

As the bill was considered, a turf fight erupted from "Colorado Front Range Educational Group" who asked Sen. Bob Schaffer, the bill's sponsor "that audiologists and other individuals practicing within the schools be exempt."

The original bill considered by the Sunrise committee in l99l would have required stiff language for entering and staying in the occupation, and placed regulation under DORA. Those who would have been regulated then began fighting over turf and who should be exempt, so the committee switched to further strengthening the Consumer Protection Act.

The Sunrise committee hearing on this licensing bill is scheduled for Thursday, Sept. 7 in House Committee Room ll2. As of the date this column is printed, the DORA Sunrise review had not been released, so I don't know what the recommendation will be. But assuming the report is consistent with the l99l version, the committee will be looking at licensing or registration.

In my opinion, the WORST approach the committee could use would be to treat this as an "ordinary" event. Colorado HAD ten years of proof that these people will NOT protect the public through a board. Is Charlie Brown going to ask Lucy to hold the football again? If the Sunrise review determines licensing or registration is appropriate, I would suggest any bill include the following:

  • No "grandfathering in" of those presently in business. No exemptions.

  • A "dealers' fund" similar to that established for real estate to ensure that injured consumers would recover damages.

  • The ability of DORA to inspect books and premises at all times without advance notice.

  • A class 6 felony for the first criminal offense.

  • Incorporation of all specific violations listed in the hearing aid dealers section of the Colorado Consumer Protection Act.

  • Jurisdiction under the director of registrations with hearing aid dealers and audiologists as an "advisory" board.

  • Funding for a specific number of staff in the Attorney General's office to do a massive cleanup for a three-year period with costs borne by fees charged to those regulated.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator. He was chief sponsor of the original Sunrise-Sunset law, and served eight years on the committee.

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