Request By:
Mr. David V. Kramer
Deters, Benzinger & La Velle, P.S.C.
Thomas More Park
2701 Turkeyfoot Road
Covington, Kentucky 41017
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In Re: Sale of Hearing Aids
In your letter dated March 20, 1990, you requested an opinion from this office on whether KRS 334.040(2) prohibits audiologists who are also licensed as hearing aid dealers from selling hearing aids if they also treat and fit hearing aids for patients.
You further indicated in your letter that it was your belief that KRS 334.040(2) does not prohibit an audiologist who performs hearing aid evaluations and fits hearing aids from selling hearing aids so long as the audiologist is licensed as a hearing aid dealer.
In addition, you also asked whether KRS 334.200(2) prohibits a nonprofit hospital that is not owned in whole or in part by a physician or audiologist from employing audiologists who are licensed hearing aid dealers where part of the audiologists' work duties would consist of the fitting and sale of hearing aids for profit.
In answering your questions, a number of principles must be kept in mind. First, KRS 446.080(1) provides:
All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.
Subsection (4) of that statute requires that:
All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.
Additionally, it is important to recall that,
The purpose of KRS Chapter 334 is to protect the public from abuses within the hearing aid industry. To accomplish this purpose, the legislature established a board for the examination and licensing of hearing aid dealers and fitters and the general policing of the industry. Under this chapter no person may engage in the sale of or practice of fitting hearing aids unless he holds a valid license from the board.
Kentucky Board for Licensing Hearing Aid Dealers, et al v. Rallo, Ky., 549 S.W.2d 825 at 827 (1977). With the above-noted principles in mind I now turn to responding to your questions.
In regard to your first question, there is nothing in Chapter 334 which prohibits an audiologist or any other professional from becoming licensed as a hearing aid dealer in order to sell hearing aids. Clearly the procurement of a hearing aid dealer license in the fact situation contained in your letter follows along with the protection of the public philosophy expressed in the Rallo, supra, decision. Therefore, I believe that KRS 334.040(2) does not prohibit an audiologist from selling hearing aids so long as the audiologist has first obtained a hearing aid dealer license.
In regard to your second question, I do not believe that the specific fact pattern contained in your letter would constitute a violation of KRS 334.200(2) which provides:
No physician conducting an examination for an approval or hearing aid evaluation, or an audiologist conducting a hearing aid evaluation, under this section shall have a direct or indirect interest in any business concern controlled by, or employing, a licensee solely for the purpose of engaging in the fitting or sale of hearing aids for profit.
Once again, applying the previously stated principles of construction to this statute, I do not believe that allowing an audiologist who is also licensed as a hearing aid dealer to sell hearing aids in the setting as described in your letter violates KRS 334.200(2). In fact, the arrangement which is described in your letter is not even addressed by the statute. Therefore, OAG 85-27 is modified accordingly to comply with this opinion.
In summary, based upon the fact situation as contained in your letter, an audiologist who is also licensed as a hearing aid dealer may sell hearing aids. In addition, an audiologist/ hearing aid dealer may sell hearing aids in the setting described in your letter.
I hope this has been of some assistance to you.