ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN INFORMAL OPINION ADDRESSING, IN EFFECT, THE FOLLOWING QUESTION:
DOES THE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY HAVE THE AUTHORITY, PURSUANT TO THE PROVISIONS OF THE SPEECH PATHOLOGY AND AUDIOLOGY LICENSING ACT, TO ORDER HEARING-AID DEALERS TO CEASE AND DESIST FROM THE USE OF "AUDIOMETRIC", "AUDIOMETRY" OR SIMILAR TERMS IN CONNECTION WITH THEIR SERVICES AS HEARING AID DEALERS?
IN ORDER TO ANSWER YOUR QUESTION, IT IS NECESSARY TO EXAMINE BOTH THE SPEECH PATHOLOGY AND AUDIOLOGY LICENSING ACT, 59 O.S. 1601 (1991) ET SEQ., AND THE DULY PROMULGATED RULES OF THE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY (THE "BOARD").
THE SPEECH PATHOLOGY AND AUDIOLOGY LICENSING ACT (THE "ACT") SPECIFICALLY ADDRESSES THE USE OF SUCH AUDIOMETRY TERMS BY HEARING AID DEALERS. 59 O.S. 1604 OF THE ACT SETS FORTH IN PERTINENT PART:
"AFTER THE FIRST DAY OF JANUARY, 1974, NO PERSON SHALL PRACTICE SPEECH PATHOLOGY OR AUDIOLOGY UNLESS HE IS LICENSED * * * EXCEPT THAT NOTHING IN THE SPEECH PATHOLOGY AND AUDIOLOGY LICENSING ACT SHALL BE CONSTRUED TO PREVENT:
* * *
4. THE ACTIVITIES AND SERVICES OF A HEARING-AID DEALER OR FITTER SO LONG AS HIS ACTIVITIES AND SERVICES ARE LIMITED TO THE SELECTION, ADAPTATION, DISTRIBUTION OR SALE OF HEARING AIDS, AND THE TESTING, INSTRUCTION, AND COUNSELING PERTAINING THERETO, PROVIDED SUCH A HEARING-AID DEALER OR FITTER DOES NOT CALL HIMSELF AN AUDIOLOGIST(.)"
(EMPHASIS ADDED.)
THE ACT DEFINES WHAT IT MEANS TO REPRESENT ONESELF TO BE AN AUDIOLOGIST IN SECTION 1603 AS FOLLOWS:
"A PERSON "REPRESENTS HIMSELF TO BE AN AUDIOLOGIST" WHEN HE HOLDS HIMSELF OUT TO THE PUBLIC BY ANY TITLE OR DESCRIPTION OF SERVICES INCORPORATING THE TERMS "AUDIOLOGY", "AUDIOLOGIST", "AUDIOMETRY", "AUDIOMETRIST", "HEARING THERAPY", "HEARING THERAPIST", "HEARING CLINICIAN", "HEARING CLINIC", "HEARING CENTER", "AUDIOLOGICAL", OR "AUDIOMETRICS" (.)"
THE PENALTY FOR UNLAWFULLY REPRESENTING ONESELF TO BE AN AUDIOLOGIST IS SET FORTH IN 59 O.S. 1621 OF THE ACT AS FOLLOWS:
"ANY PERSON WHO . . . REPRESENTS HIMSELF TO BE A SPEECH PATHOLOGIST AND/OR AUDIOLOGIST OR ENGAGES IN THE PRACTICE OF SPEECH PATHOLOGY AND/OR AUDIOLOGY WITHIN THIS STATE WITHOUT BEING LICENSED OR EXEMPTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT IS GUILTY OF A MISDEMEANOR AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN FIVE HUNDRED DOLLARS ($500.00) OR BE CONFINED TO JAIL NOT MORE THAN SIX (6) MONTHS, OR BOTH. EACH DAY OF VIOLATION IS A SEPARATE OFFENSE."
THE ABOVE STATUTES CLEARLY FORBID ANYONE NOT LICENSED AS AN AUDIOLOGIST TO USE "AUDIOLOGY", "AUDIOMETRY", "AUDIOMETRICS" OR SIMILAR TERMS IN CONNECTION WITH HIS OR HER SERVICES. HOWEVER, THERE IS NO PROVISION IN THE ACT OR THE BOARD'S DULY PROMULGATED RULES WHICH GRANTS THE BOARD AUTHORITY OVER PERSONS NOT LICENSED UNDER THE ACT. THE ACT GIVES THE BOARD THE AUTHORITY TO DISCIPLINE ONLY LICENSED SPEECH PATHOLOGISTS OR AUDIOLOGISTS WHO VIOLATE THE PROVISIONS OF THE ACT OR ANY REGULATIONS ADOPTED THEREUNDER. 59 O.S. 1619 (1991)
UPON EXAMINATION OF THE BOARD'S DULY PROMULGATED RULES, IT APPEARS THAT THE BOARD'S RULES DO NOT GRANT THE BOARD ANY AUTHORITY TO DISCIPLINE INDIVIDUALS WHO ARE NOT LICENSED UNDER THE ACT. RATHER, THE BOARD'S RULES SET FORTH THE PROCEDURE THE BOARD MUST FOLLOW IN DISCIPLINARY ACTIONS AGAINST LICENSED SPEECH PATHOLOGISTS AND AUDIOLOGISTS. OAC 690:5-5-1 ET SEQ. THEREFORE, THE BOARD, BY ITSELF, HAS NO AUTHORITY TO ORDER HEARING AID DEALERS TO CEASE AND DESIST FROM USING "AUDIOMETRIC", "AUDIOMETRY" OR SIMILAR TERMS TO DESCRIBE THEIR SERVICES.
HOWEVER, 59 O.S. 1620 OF THE ACT DOES GRANT THE BOARD THE AUTHORITY TO "APPLY TO THE DISTRICT COURT IN THE COUNTY IN WHICH A VIOLATION OF THIS ACT IS ALLEGED TO HAVE OCCURRED FOR AN ORDER ENJOINING OR RESTRAINING THE COMMISSION OR CONTINUANCE OF THE ACTS COMPLAINED OF." THE COURT MAY THEN GRANT SUCH TEMPORARY OR PERMANENT INJUNCTION OR RESTRAINING ORDER AS IT DEEMS JUST AND PROPER. 59 O.S. 1620.
IN ADDITION TO APPLYING FOR AN INJUNCTION OR RESTRAINING ORDER WHEN A HEARING AID DEALER LS IN VIOLATION OF THE ACT, THE BOARD CAN ALSO REPORT THE VIOLATION TO THE DISTRICT ATTORNEY'S OFFICE. THE DISTRICT ATTORNEY HAS THE AUTHORITY TO THEN CHARGE THE HEARING AID DEALER WITH A MISDEMEANOR PURSUANT TO 59 O.S. 1621 (1991).
ALSO, THE STATE BOARD OF HEALTH, PURSUANT TO THE HEARING AID DEALERS AND FITTERS ACT (63 O.S. 1-1750), HAS ISSUED THE HEARING AID DEALER AND FITTER REGULATIONS TO REGULATE THE PRACTICE AND LICENSING OF HEARING AID DEALERS AND FITTERS. THESE REGULATIONS GIVE THE STATE COMMISSIONER OF HEALTH THE POWER AND DUTY TO SUSPEND OR REVOKE THE LICENSE OF ANY PERSON LICENSED UNDER THE HEARING AID DEALERS AND FITTERS ACT WHO VIOLATES ANY PROVISION OF THE ACT OR ANY REGULATION ADOPTED THEREUNDER. OAC 310:2657-1(A). THE PROVISIONS GOVERNING UNETHICAL CONDUCT (OAC 310:265-7-L(B)(3)) SET FORTH IN PERTINENT PART:
"ANY PERSON REGISTERED UNDER THESE REGULATIONS MAY HAVE HIS LICENSE REVOKED OR SUSPENDED FOR A FIXED PERIOD OF TIME BY THE COMMISSIONER FOR ANY OF THE FOLLOWING CAUSES:
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(3) UNETHICAL CONDUCT, INCLUDING, BUT NOT LIMITED TO:
* * *
(E) REPRESENTING THAT THE SERVICE OR ADVICE OF A PERSON LICENSED TO PRACTICE MEDICINE OR AUDIOLOGY WILL BE USED OR MADE AVAILABLE IN THE SELECTION, FITTING, ADJUSTMENT, MAINTENANCE OR REPAIR OF HEARING AIDS WHEN THAT IS NOT TRUE, OR HOLDING ONESELF OUT TO THE PUBLIC BY ANY TITLE OR DESCRIPTION OF SERVICES INCORPORATING THE TERMS "DOCTOR", "AUDIOLOGIST", "AUDIOLOGY", "CLINIC", "HEARING CLINIC", "HEARING CENTER" OR SIMILAR WORDS ABBREVIATIONS OR SYMBOLS WHICH TEND TO CONNOTE THE MEDICAL OR AUDIOLOGY PROFESSION WHEN SUCH IS NOT ACCURATE(.)"
(EMPHASIS ADDED.)
THUS, IF A HEARING AID DEALER IS UNLAWFULLY USING AUDIOMETRY TERMS AS SET FORTH ABOVE, THE BOARD CAN REPORT THE HEARING AID DEALER'S VIOLATION TO THE STATE COMMISSIONER OF HEALTH. THE COMMISSIONER OF HEALTH CAN THEN BEGIN PROCEEDINGS TO DISCIPLINE THE HEARING AID DEALER PURSUANT TO THE HEARING AID DEALER AND FITTER REGULATIONS. OAC 310:265-7-1.
THEREFORE. IT IS THE OPINION OF THE UNDERSIGNED ATTORNEY THAT, WHILE A HEARING AID DEALER USING "AUDIOMETRY", "AUDIOMETRIC" OR SIMILAR TERMS IN CONNECTION WITH HIS OR HER SERVICES IS IN VIOLATION OF BOTH THE SPEECH PATHOLOGY AND AUDIOLOGY LICENSING ACT AND THE HEARING AID DEALERS AND FITTERS REGULATIONS, THE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY, BY ITSELF, DOES NOT HAVE THE AUTHORITY TO ORDER THE HEARING AID DEALER TO CEASE FROM USING SUCH TERMS. HOWEVER, THE BOARD HAS THE AUTHORITY TO APPLY TO THE DISTRICT COURT FOR AN ORDER ENJOINING OR RESTRAINING THE HEARING AID DEALER'S VIOLATIONS. 59 O.S. 1620. THE BOARD CAN ALSO REPORT THE HEARING AID DEALER'S VIOLATION TO THE DISTRICT ATTORNEY WHO CAN PROCEED AGAINST THE HEARING AID DEALER UNDER 59 O.S. 1621 (1991). THE STATE COMMISSIONER OF HEALTH ALSO HAS AUTHORITY, PURSUANT TO THE HEARING AID DEALERS AND FITTERS REGULATIONS, TO COMMENCE TO PROCEED AGAINST THE HEARING AID DEALER WITH DISCIPLINARY ACTION. OAC 310:265-7-1.
(JULIE A. KRAMER)