CHAPTER Hcp 100  DEFINITIONS, ORGANIZATION AND PUBLIC INFORMATION

 

PART Hcp 101  PURPOSE AND SCOPE

 

          Hcp 101.01  Purpose and Scope.  The rules of this title implement the statutory responsibilities of the New Hampshire board of hearing care providers created by RSA 137-F:3 and are made pursuant to RSA 137-F:6.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

PART Hcp 102  DEFINITIONS

 

          Hcp 102.01  Terms Used.  As used in these rules, the following terms shall have the meanings as set below:

 

          (a)  “Audiologist” means “audiologist” as defined by RSA 137-F:2, I, namely, “any person who renders or offers to render to the public any service involving the application of principles, methods, and procedures for the measurement of testing, identification, appraisal, consultation, counseling, instruction, and research related to the development and disorders of hearing and vestibular function for the purpose of diagnosing, designing, and implementing programs for the amelioration of such disorders and conditions;”

 

          (b)  “Audiology” means “audiology” as defined by RSA 137-F:2, II, namely, “the application of principles, methods, and procedures related to the development and disorders of human communication, which disorders shall include any and all conditions whether of organic or nonorganic origin, that impede the normal processes of human communication and balance including, but not limited to, disorders of hearing, vestibular function, and central auditory processing;”

 

          (c)  “Board” means “board” as defined by RSA 137-F:2, III, namely, “the board of hearing care providers;”

 

          (d)  “Days” means “days” as defined by RSA 137-F:2, X, namely, “Monday through Friday, excluding official holidays;”

 

          (e)  “Hearing aid” means “hearing aid” as defined by RSA 137-F:2, IV; namely, “any wearable instrument or device designed for or offered for the purpose of or represented as aiding or compensating for impaired human hearing and any parts or attachments, including ear molds, but excluding batteries and cords or accessories thereto, or equipment, devices, and attachments used in conjunction with services provided by a public utility company;”

 

          (f)  “Hearing aid dealer” means “hearing aid dealer” as defined by RSA 137-F:2, V, namely, “any person engaged in the testing of human hearing for the purpose of selecting, fitting, or otherwise dealing in hearing aids.”  The term includes any person who physically modifies a hearing aid/earmold or adjusts a hearing instrument’s electroacoustic performance but does not include rudimentary cleaning or basic hearing aid orientation/instruction;

 

          (g)  “License” means the form of permission required, pursuant to RSA 137-F:11, to be obtained from the board before a person can lawfully practice audiology;

 

          (h)  “Licensee” means a person who has received a license issued by the board pursuant to RSA 137-F:11 to practice audiology;

 

          (i)  “Licensure” means the process by which a person applies for a license from the board and the board’s action to grant or deny such license;

 

          (j)  “Otolaryngologist” means “otolaryngologist” as defined by RSA 137-F:2, VI, namely, “a physician licensed in the state of New Hampshire who specializes in medical problems of the ear, nose, and throat, and is eligible for qualification by the American Board of Otolaryngology as an otolaryngologist;”

 

          (k)  “Practice of audiology” means “practice of audiology” as defined by RSA 137-F:2, VII, namely, it “means, but shall not be limited to:

 

(a)  Screening, identifying, assessing, interpreting, diagnosing, rehabilitating, and preventing hearing disorders.

 

(b)  Rendering to individuals or groups of individuals, who are suspected of having hearing disorders, basic and comprehensive audiological and vestibular site-of-lesion tests, including otoscopic examinations, electrophysiologic test procedures, and auditory evoked assessment.

 

(c)  Rendering basic and comprehensive auditory and vestibular habilitative and rehabilitative services, including aural rehabilitative assessment and therapy, vestibular rehabilitative assessment and therapy, and speech and language screening.

 

(d)  Providing basic and comprehensive audiological and psychoacoustic evaluations for the purpose of determining candidacy for amplification or assistive alerting/listening devices; providing tinnitus evaluations and therapy; providing hearing aid fitting and orientation; taking ear impressions; and providing hearing aid product dispensing, repair, and modification.

 

(e)  Providing preoperative evaluation and selection of cochlear implant candidacy and post-implant rehabilitation.

 

(f)  Providing occupational hearing conservation;”

 

          (l)  “Registrant” means a person who has registered with the board pursuant to RSA 137-F:9 as a hearing aid dealer;

 

          (m)  “Rental or selling of hearing aids” means “rental or selling of hearing aids” as defined by RSA 137- F:2, VIII, namely, “the selection, adaptation, and sale or rental of hearing aids.  Also included is the making of impressions for ear molds and instruction pertaining to the use of hearing aids;” and

 

          (n)  “Sell” or “sale” means “sell” or “sale” as defined by RSA 137-F:2, IX, namely, “any transfer of title or of the right of use by sale, conditional sales contract, lease bailments, hire-purchase or any other means, excluding wholesale transactions of dealers and distributors.”

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

PART Hcp 103  AGENCY ORGANIZATION

 

          Hcp 103.01  Composition of the Board.  The board consists of 7 members who meet the eligibility requirements of RSA 137-F:3.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

          Hcp 103.02  Staff.  The board obtains staff assistants as necessary to perform its record-keeping and other statutory functions, and to oversee the board’s daily operations.  The board’s secretary is responsible for typing, maintaining all records of the board’s activities and for receiving correspondence, filings and other communications and documents.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

          Hcp 103.03  Office Hours, Office Location, Mailing Address and Telephone.

 

          (a)  The board’s mailing address is:

 

Board of Hearing Care Providers

Philbrook Building

121 South Fruit Street

Concord, NH 03301

 

          (b)  Correspondence, filings and other communications intended for the board shall be addressed to the board’s secretary at the location stated in Hcp 103.03(a).

 

          (c)  The board’s telephone number is (603) 271-9482.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

PART Hcp 104  PUBLIC INFORMATION

 

          Hcp 104.01  Record of Board Actions.  Minutes shall be kept of board meetings and of official actions taken by the board pursuant to RSA 91-A:3, III.  These minutes shall record the members who participate in each vote and separately record the position of members who choose to dissent, abstain or concur.  Minutes of all board meetings are governmental records and, unless the board has voted to seal them pursuant to RSA 91-A:3, III, shall be available for inspection during the board’s ordinary office hours within  72 hours of each such meeting.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

          Hcp 104.02  Custodian of Records.  The executive secretary shall be the custodian of the board’s records and shall respond to requests to examine those records which are subject to public inspection or are otherwise accessible by the person requesting access.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

          Hcp 104.03  Copies of Records.  Any person may request and obtain copies of board governmental records upon paying a copying fee of $.25 per page of hardcopy.  No fee shall be charged for electronic copies of existing board electronic records.  If records requested contain both disclosable and confidential information, the board shall redact the confidential information and only provide the disclosable information.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

PART Hcp 105  MEETINGS, DELIBERATIONS AND DECISIONS

 

          Hcp 105.01  Meetings.  The board meets every month, or as needed at such times and places as the board determines is necessary.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

          Hcp 105.02  Quorum.  No action shall be taken by the board if there is no quorum, which is 4 members of the board.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

PART Hcp 106  APPOINTMENT OF COMMITTEES

 

          Hcp 106.01  Subcommittees.

 

          (a)  As set forth in RSA 137-F:4, the board has 2 subcommittees, the hearing aid dealers subcommittee, and the audiology subcommittee.

 

          (b)  The hearing aid dealers subcommittee consists of the 2 non-audiologist hearing aid dealer members of the board and one of the public members.

 

          (c)  The audiology subcommittee consists of the 2 audiologist board members, the otolaryngologist board member, and the other public member.

 

          (d)  The subcommittees undertake investigations and make recommendations to the board in their respective areas of expertise, but cannot take final action on behalf of the board.

 

Source.  #6934, eff 1-29-99; ss by #9336, eff 12-3-08

 

CHAPTER Hcp 200  PRACTICE AND PROCEDURE

 

PART Hcp 201  PURPOSE, SCOPE AND DEFINITIONS

 

          Hcp 201.01  Purpose and Scope.  The board shall conduct various proceedings for the purpose of acquiring sufficient information to make fair and reasoned decisions on matters within its statutory jurisdiction, including decisions on applications for licensure or registration and complaints filed against licensees or registrants.  These rules shall be construed to secure the just, efficient and accurate resolution of all board proceedings.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 201.02  Definitions.  Except where the context makes another meaning manifest, the following words shall have the meanings indicated when used in this chapter:

 

          (a)  “Adjudicative proceeding” means “adjudicative proceeding” as defined in RSA 541-A:1, I, namely, “the procedures to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36” and Hcp 200.

 

          (b)  “Complaint” means a written allegation of professional misconduct against a licensee or registrant.

 

          (c)  “Contested case” means “contested case” as defined in RSA 541-A:1, IV, namely, “a proceeding in which the rights, duties, or privileges of a party are required by law to be determined by the board after notice and an opportunity for hearing.”  The term does not include nonadjudicative investigations or rulemaking.

 

          (d)  “Data” means all information other than argument, including oral or written descriptions, reports, maps, charts, drawings, photographs, audio or video recordings, computer programs, or computer printouts.

 

          (e)  “File” means to place a document in the actual possession of the board.

 

          (f)  “Hearing” means the receipt and consideration by the board of data or argument, or both, by methods which are appropriate to the nature and scope of the issues being decided by the board.

 

          (g)  “Hearing counsel” means an individual appointed by the board under Hcp 206.15(d) or Hcp 210.03 to prosecute or investigate misconduct allegations in the public interest.

 

          (h)  “Motion” means any request by a party to an existing adjudicative proceeding for an order or relief relating to that proceeding.

 

          (i)  Nonadjudicative investigation” means a formal or informal search by the board for data concerning matters within its jurisdiction, the result of which is other than a final determination of a person’s rights, duties or privileges.

 

          (j)  “Order” means a document issued by the board:

 

(1)  Establishing procedures to be followed in an adjudicative or nonadjudicative proceeding;

 

(2)  Granting or denying a petition or motion;

 

(3)  Requiring a person to do, or to abstain from doing, some thing; or

 

(4)  Determining a person’s rights to a license or registration or other privilege established by RSA 137-F or the rules of this chapter.

 

          (k)  “Petition” means an initial request to the board seeking action or relief, but does not include a license or registration application, a complaint against a licensee or registrant, or a motion.

 

          (l)  “Presiding officer” means the board member or other individual to whom the board has delegated authority to preside over some or all aspects of an adjudicative or other proceeding.

 

          (m)  “Proposed decision” means an initial or recommended decision made by a presiding officer pursuant to Hcp 207.04 which is subject to review by the entire board.

 

          (n)  “Rulemaking” means the procedures for formulating agency rules set forth in RSA 541-A:3.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 201.03  Failure to Comply with Procedural Rules or Orders.

 

          (a)  Failure to comply with the rules of this chapter shall be grounds for:

 

(1)  Refusing to accept or admit a noncompliant document for filing or refusing to consider a noncompliant oral petition or motion if such noncompliance prevents the board from properly evaluating the document or oral petition in question; or

 

(2)  Accepting or admitting, or denying or not admitting, a noncompliant application, petition, motion, or exhibit on the condition that conformity with specific procedural requirements be achieved by a specified date following written notice from the board.

 

          (b)  When a noncompliant pleading or other tendered information is not accepted or admitted by the board, or when conditions for the acceptance or admission of noncompliant information are not met, the board shall make a decision on the pending matter without considering the noncompliant information, unless the board notifies the parties that it has waived the rule in accordance with Hcp 201.04.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 201.04  Waiver or Suspension of Procedural Rules or Orders.  The board, upon its own initiative or upon the motion of any interested person, shall suspend or waive any procedural requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues properly pending before the board than would adherence to a particular procedural rule or requirement.  A motion for waiver or suspension of a procedural rule or order shall fully set forth the reasons for the requested relief.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

PART Hcp 202  APPEARANCES BEFORE THE BOARD

 

          Hcp 202.01  Representatives.

 

          (a)  A person appearing before the board shall represent himself or herself or be represented by a person who:

 

(1)  Is an attorney holding a current and active New Hampshire license and has filed a written appearance with the board containing his or her business address and telephone number; or

 

(2)  Is not a New Hampshire licensed attorney, and has not been convicted of a felony under the law of any state.

 

          (b)  Appearances by non-attorneys who represent anyone before the board shall:

 

(1)  Briefly describe the representative’s professional and character qualifications;

 

(2)  Provide the representative’s daytime address and telephone number; and

 

(3)  Be signed by both the proposed representative and the party who would be represented.

 

          (c)  Corporations, partnerships and other legal entities which are not natural persons may be represented by:

 

(1)  An attorney licensed in New Hampshire; or

 

(2)  An officer, director, or managing partner with express and unqualified written authority to act on behalf of the entity concerning the matter in question and has not been convicted of a felony in any state.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

PART Hcp 203  TIME PERIODS

 

          Hcp 203.01  Computation of Time.  Any time period specified in this chapter shall begin with the day following the act, event, or default, and shall include the last day of the period, unless it is Saturday, Sunday, or state legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or state legal holiday.  When the period prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and state legal holidays shall be excluded from the computation.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 203.02  Change in Allowed Times.  Except where a time period is fixed by statute, the board shall upon motion enlarge or shorten the time provided for the filing of any document, or advance or postpone the time set for any oral hearing, prehearing conference, or other activity, upon a finding that the moving party did not comply with the time period due to accident, mistake, or misfortune, and the probable injury to the moving party outweighs any detriment likely to be suffered by any other party.  The board shall enlarge or shorten such time period on its own motion for reasons of its own convenience and provided that no participant suffers any detriment.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 203.03  Limitations.  A motion to change time shall be filed at least 3 days before the scheduled date of the event in question.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

PART Hcp 204  FILING AND SERVICE OF DOCUMENTS

 

          Hcp 204.01  Filing Documents with the Board.

 

          (a)  A document shall be considered filed when it is actually received at the board’s office and is facially in conformity with the board’s rules.

 

          (b)  A document which is facially in violation of the board’s rules shall not be accepted for filing. Such submissions shall be returned to the sender without prejudice to subsequent acceptance if the deficiencies are corrected and the document is refiled within any applicable time period.

 

          (c)  All correspondence, filings or communications intended for the board shall be addressed to the board’s office in care of its executive secretary.

 

          (d)  All petitions, motions, exhibits, memoranda or other documents filed in connection with a request for board action shall be filed with an original and one copy unless the board directs otherwise.

 

          (e)  Notwithstanding (d), above, only a single copy shall be filed of:

 

(1)  Transmittal letters, requests for public information, or other routine correspondence not directed at formal board action;

 

(2)  License or registration applications; and

 

(3)  Complaints against licensees or registrants.

 

          (f)  Failure to furnish the required number of copies shall result in a tendered document being returned as unacceptable for filing.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 204.02  Subscription and Veracity of Documents.

 

          (a)  All complaints, petitions, motions, and replies filed with the board shall be signed and dated by the proponent of the document or, if the party appears by a representative, by the representative.

 

          (b)  The signature on a document filed with the board shall constitute a certification that:

 

(1)  The signer has read the document;

 

(2)  The signer is authorized to file it;

 

(3)  To the best of the signer’s knowledge, information, and belief, there are good grounds to support it; and

 

(4)  The document has not been filed for purposes of delay or harassment.

 

          (c)  A willful violation of the representations contained in (b), above, shall, to the extent consistent with justice and the statutes administered by the board, result in the entry of an order adverse to the party committing the violation.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 204.03  Service of Documents.

 

          (a)  Complaints against licensees or registrants shall be filed with the board without service upon the licensee/registrant against whom the allegations are made.

 

          (b)  Applications shall be filed with the board without service upon other persons. Petitions for rulemaking and for declaratory rulings shall be served upon the board.

 

          (c)  All objections, motions, replies, memoranda, exhibits, or other documents filed in connection with a request for board action shall be served by the proponent upon all interested parties by:

 

(1)  Depositing a copy of the document in the United States mail, first class postage prepaid, addressed to the last address given to the board by the party being served, no later than the day the document is filed with the board; or

 

(2)  Delivering a copy of the document in hand on or before the date it is filed with the board.

 

          (d)  Notices, orders, decisions or other documents issued by the board in connection with requests for board action shall be served by the board upon all interested parties by either:

 

(1)  Depositing a copy of the document, first class postage prepaid, in the United States mail, addressed to the last address given to the board by the party being served; or

 

(2)  Delivering a copy of the document in hand to the party.

 

          (e)  When a party has appeared by a representative, service shall be upon the representative.

 

          (f)  Except for exhibits distributed at a prehearing conference or hearing, every document filed with the board, and required to be served upon the parties to an adjudicative proceeding, shall be accompanied by a certificate of service, signed by the person making service, attesting to the method and date of service, and the persons served.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

PART Hcp 205  PLEADINGS, COMPLAINTS AND MOTIONS

 

          Hcp 205.01  Pleadings.

 

          (a)  The only pleadings permitted shall be petitions and replies to petitions. Complaints against licensees/registrants shall be a particular type of petition and shall be subject to the additional requirements of Hcp 205.02.  Applications for licenses or registrations shall not be considered pleadings.

 

          (b)  Petitions shall contain:

 

(1)  The name and address of the petitioner;

 

(2)  The name and address of the petitioner’s representative, if any;

 

(3)  A concise statement of the facts which the petitioner believes warrants the relief requested from the board;

 

(4)  The description of the action which the petitioner wishes the board to take;

 

(5)  A citation to any statutes, rules, orders, or other authority which the petitioner believes entitles the petitioner to the relief requested; and

 

(6)  The signature and date required by Hcp 204.02(a).

 

          (c)  Replies to petitions shall contain:

 

(1)  The name and address of the respondent;

 

(2)  The name and address of the representative of the respondent, if any;

 

(3)  A statement admitting or denying each fact alleged in the petition pursuant to Hcp 205.01(b)(3);

 

(4)  A statement admitting or denying the authority identified by the petitioner pursuant to Hcp 205.01(b)(5);

 

(5)  A concise statement of any additional or different facts which the respondent believes warrants the board acting in the manner requested by the respondent;

 

(6)  A citation to any statutes, rules, orders or other authority, not identified in the petition, that the respondent believes has a bearing upon the subject matter of the petition or response;

 

(7)  A description of the action which the respondent wishes the board to take; and

 

(8)  The signature and date required by Hcp 204.02(a).

 

          (d)  Replies shall be filed within 10 days from the date of the filing of the petition.

 

          (e)  For purposes of deciding whether to grant or deny a petition, any fact contained in the petition which is not denied in the reply, shall be deemed admitted by the respondent.  A statement that the respondent lacks sufficient knowledge to admit or deny shall be treated as a denial.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 205.02  Complaints of Licensee or Registrant Misconduct.

 

          (a)  Any person may file a complaint alleging misconduct by licensees or registrants in violation of RSA 137-F:17 or Hcp 501 and such complaint shall be in writing and filed at the board’s offices as specified in Hcp 103.03(a).

 

          (b)  Complainants shall set forth the following information:

 

(1)  The name and address of the complainant;

 

(2)  The name and, if known, the business address, of the licensee or registrant against whom the complaint is directed;

 

(3)  The specific facts and circumstances which are believed to constitute professional misconduct; and

 

(4)  The signature and date required by Hcp 204.02(a).

 

          (c)  A complaint shall be treated as an ex parte request for the initiation of disciplinary proceedings and the board shall then investigate the complaint pursuant to Hcp 206.01.  Pursuant to RSA 137-F:21, II, the information obtained in the investigation shall be exempt from public disclosure under RSA 91-A unless it subsequently becomes the subject of a disciplinary hearing.

 

          (d)  A complaint shall be dismissed to the extent that it:

 

(1)  Fails to state a cause of action; or

 

(2)  Alleges a cause of action which arose more than 3 years prior to the filing of the complaint.

 

          (e)  Unless previously dismissed pursuant to (d) above, or settled after investigation pursuant to Hcp 206.02, a complaint shall be granted in whole or in part, by the board based upon the board’s confidential evaluation of the information available to it.  The substance of a complaint that has been granted shall be incorporated into a notice of hearing which commences a disciplinary hearing pursuant to Hcp 207.02(b).

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 205.03  Motions and Objections Thereto.

 

          (a)  Motions and objections shall be in writing unless the circumstances from which the motion is made or the nature of the relief requested requires oral presentation upon short notice.

 

          (b)  Motions shall state clearly and concisely:

 

(1)  The purpose of the motion;

 

(2)  The relief sought by the motion;

 

(3)  The statutes, rules, orders, or other authority authorizing the relief sought by the motion;

 

(4)  The facts claimed to constitute grounds for the relief requested by the motion; and

 

(5)  If not made orally, the signature and date required by Hcp 204.02(a).

 

          (c)  Objections to motions shall state clearly and concisely:

 

(1)  The defense of the party filing the objection;

 

(2)  The action which the party filing the objection wishes the board to take on the motion;

 

(3)  The statutes, rules, orders, or other authority relied upon in defense of the motion;

 

(4)  Any facts which are additional to or different from the facts stated in the motion; and

 

(5)  If not made orally, the signature and date required by Hcp 204.02(a).

 

          (d)  An objection shall specifically admit or deny each fact contained in the motion.  Failure to deny a fact shall constitute the admission of that fact for the purposes of the motion. In the event a party filing an objection lacks sufficient information to either admit or deny a fact contained in the motion, the party shall so state, specifically identifying such fact.

 

          (e)  Motions shall be decided upon the writings submitted or, if the board determines that a hearing will assist in the resolution of factual disputes and will promote the purposes of these rules, after a hearing at which argument, testimonial evidence, or both, may be presented.

 

          (f)  Objections to motions shall be filed with the board within 20 days of the filing of a motion.  Failure to object to a motion within the time allowed shall constitute a waiver of objection to the motion.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

PART Hcp 206  MISCONDUCT INVESTIGATIONS

 

          Hcp 206.01  Approval by the New Hampshire Department of Justice.  Notwithstanding any other provision of this chapter, all subpoenas, investigations, appointments of legal counsel, experts, investigators, and other such investigatory provisions shall be approved by the State of New Hampshire department of justice, pursuant to RSA 137-F:21, I.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08 (formerly Hcp 210.04); ss by #12111, eff 2-21-17

 

          Hcp 206.02  Misconduct Investigations.

 

          (a)  The board shall conduct misconduct investigations through a board-retained investigator to examine acts of possible misconduct which come to its attention through complaints or other means.  The type, form, and extent of an investigation shall be determined by the investigator so appointed based upon the severity of the alleged misconduct, the availability of witnesses and information pertaining to the alleged misconduct, and the resources available to the board.

 

          (b)  Within 10 days of the commencement of an investigation under this part, the investigator shall notify the licensee or registrant who is the subject of the investigation of the nature of the misconduct alleged.  Within 20 days of such notification, the licensee or registrant shall, pursuant to RSA 137-F:21, IX, provide to the investigator a detailed and good faith written response to each such allegation of misconduct.  The response shall address each allegation of misconduct by admitting or contesting each of the material facts alleged.

 

          (c)  When a misconduct investigation occurs, the investigator retained by the board shall contact such persons and examine such records and other documents as are reasonably necessary to make a recommendation as to whether further board action should be taken on the allegations in question.

 

          (d)  Investigations, including those based upon allegations in a complaint, shall be conducted on an ex parte basis.

 

          (e)  The investigator shall make a written report of misconduct investigations which includes an assessment as to whether, pursuant to RSA 137-F:21, VIII, any part of the complaint fails to state a cause of action.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12111, eff 2-21-17 (from Hcp 206.01)

 

          Hcp 206.03  Post-Investigation Settlements.

 

          (a)  At any point during the investigation, the licensee or registrant may propose a settlement agreement which shall set forth all material facts involved in the allegations proposed to be resolved.  Such proposed settlement agreement shall then be brought to the full board for its review.

 

          (b)  Upon receiving the proposed settlement agreement, the board shall consider whether to approve it.  Proposed settlement agreements shall be entertained until a notice of hearing is issued.  Thereafter, negotiated resolution shall be accomplished by means of a consent decree.

 

          (c)  Settlements under (a) above, shall not be granted if:

 

(1)  The complainant has not been provided notice and an opportunity to submit written comments concerning the proposal in question;

 

(2)  The board believes that material facts remain in dispute; or

 

(3)  Facts in dispute are such that the board might impose a materially different sanction if additional relevant facts were known.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12111, eff 2-21-17 (from Hcp 206.02)

 

          Hcp 206.04  Access to Information Obtained in Misconduct Investigations.

 

          (a)  Board investigations and all information obtained by the board as part of a misconduct investigation shall be exempt from public disclosure requirements of RSA 91-A pursuant to RSA 137-F:21, II, unless such information subsequently becomes the subject of a public disciplinary hearing.

 

          (b)  Notwithstanding (a) above, and pursuant to RSA 137-F:21, II, reports and information obtained in a misconduct investigation shall be made available under the following circumstances and to the following persons:

 

(1)  If it is sought by parties to any adjudicative proceeding resulting therefrom;

 

(2)  If it is introduced as evidence in a disciplinary hearing; and

 

(3)  If it is requested by:

 

a.  Law enforcement agencies;

 

b.  Certifying agencies of other jurisdictions;

 

c.  Board investigators or prosecutors;

 

d.  Expert witnesses or assistants retained by board prosecutors or investigators in the same or related disciplinary matters; or

 

e.  A licensee or registrant, complainant, or other witness, when such disclosure would assist the board in investigating that allegation.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12111, eff 2-21-17 (from Hcp 206.03)

 

          Hcp 206.05  Procedure for Surrendering A License or Registration.  An audiologist or hearing aid dealer may surrender a license or registration at any time in response to an investigation by returning the document to the board and providing a signed statement indicating such intent.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12111, eff 2-21-17 (from Hcp 206.04)

 

          Hcp 206.06  Effect of Voluntary License or Registration Surrender.

 

          (a)  Neither non-renewal or surrender of an audiology license or hearing aid registration shall preclude the board from investigating or completing a disciplinary proceeding based upon the audiologist’s or hearing aid dealer’s professional conduct while the license or registration was still in effect.

 

          (b)  A licensed audiologist or registered hearing aid dealer who voluntarily surrenders a license or registration shall retain no right or privilege in a New Hampshire license or registration unless such a right or privilege is expressly preserved in the board order or in the settlement agreement that includes a voluntary surrender. Subject to the foregoing, a person who subsequently applies for audiology licensure or hearing aid dealer registration in New Hampshire after a voluntary surrender shall have the burden of proving compliance with all of the requirements then in effect for new applicants, including national examination and professional character requirements.

 

          (c)  Surrender of a license or registration pursuant to a voluntary surrender order or pursuant to a settlement agreement shall not preclude the board from investigating disciplinary proceedings not expressly referenced in such order or settlement agreement.

 

Source.  #12111, eff 2-21-17 (from Hcp 206.05)

 

PART Hcp 207  ADJUDICATIVE PROCEEDINGS

 

          Hcp 207.01  Applicability.  This part shall govern all proceedings conducted by the board except rulemaking and nonadjudicative investigations.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 206.01)

 

          Hcp 207.02  Commencement of Proceedings.

 

          (a)  The board shall commence an adjudicative proceeding by issuing a notice to the parties at least 15 days before the first scheduled hearing date or first prehearing conference.

 

          (b)  The notice commencing an adjudicative proceeding shall:

 

(1)  Identify the parties to the proceeding as of the date of the order and specify a deadline for the submission of petitions to intervene;

 

(2)  Briefly summarize the subject matter of the proceeding, and identify the issues to be resolved;

 

(3)  Specify the legal authority for the proposed action, and identify any applicable board rules;

 

(4)  Specify the date by which, and the address where, appearances or motions by representatives shall be filed;

 

(5)  Specify the date, time, and location of an initial prehearing conference or dates for an oral hearing;

 

(6)  Identify the presiding officer for the proceeding, if other than the chairman of the board;

 

(7)  Identify any special procedures to be followed;

 

(8)  Identify any confidentiality requirements applicable to the proceeding;

 

(9)  Indicate that each party has the right to have an attorney present to represent the party at his or her expense;

 

(10)  Indicate that each party has the right to have the board provide, at the party’s expense, a certified shorthand court reporter provided that any such request is made at least 10 days prior to the proceeding; and

 

(11)  Contain such other information or attachments as is warranted by the circumstances of the case, including, but not limited to, orders consolidating or severing issues in the proceeding with other proceedings, and orders directing the production or exchange of documents.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 206.02)

 

          Hcp 207.03  Docketing, Service of Notice, Public Notice.

 

          (a)  The board shall assign each adjudicative proceeding a docket number, and serve the hearing notice upon all parties to the proceeding and the board’s legal counsel in the civil bureau, department of justice.  The hearing notice shall be served upon the respondent, and the complainant, if any, by means of certified mail.

 

          (b)  Service of all subsequent orders, decisions and notices issued by the board, including any amendments to the hearing notice, shall be served upon the parties, including any intervenors, by regular mail.

 

          (c)  Orders, notices, and decisions of the board, and motions, memoranda, exhibits, and other documents and data submitted to the board in a docketed case shall be kept in a docket file and made available for public inspection in the board’s office except to the extent that confidentiality has been otherwise provided for by law.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 206.03)

 

          Hcp 207.04  Intervention.

 

          (a)  Petitions for intervention shall state with particularity:

 

(1)  The petitioner’s interest in the subject matter of the hearing;

 

(2)  Why the interests of the parties and the orderly and prompt conduct of the proceeding would not be impaired; and

 

(3)  Any other reasons why the petitioner should be permitted to intervene.

 

          (b)  A complainant may petition to intervene in any hearing held by the board that addresses the substance of the complaint that the complainant filed.  However, unless the complainant’s petition for intervention is granted or the complainant is called as a witness in the proceeding, the complainant shall have no role in the proceeding.

 

          (c)  Petitions for intervention shall be granted if the petitioner has a substantial interest in the proceeding, and if granting intervention will not prejudice a party or unduly delay the board’s proceeding.

 

          (d)  Once granted leave to intervene, an intervenor shall take the proceeding as he or she finds it and no portion of the proceeding shall be repeated because of the fact of intervention.  From the time of the granting of a petition to intervene, the intervenor shall be treated as a party and no distinction shall be maintained.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 206.04)

 

          Hcp 207.05  Right to Counsel.  Parties and witnesses in adjudicative proceedings shall have the right to be represented by legal counsel, but an attorney appearing on behalf of a party shall first file with the board a letter announcing his or her representation. Requests for appointment of counsel shall not be entertained, and the board shall have no responsibility for the legal expenses of any licensee, registrant, applicant, intervenor or witness.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.05)

 

          Hcp 207.06  Prehearing and Other Informal Conferences.

 

          (a)  At any time following the commencement of an adjudicative proceeding, the presiding officer, upon motion, or upon his or her own initiative, shall direct the parties to attend one or more prehearing conference when such a conference would aid in the disposition of the proceeding.

 

          (b)  Matters which can be addressed at a prehearing conference shall include:

 

(1)  The distribution of exhibits and written testimony, if any, to the parties;

 

(2)  Opportunities and procedures for simplification of the issues;

 

(3)  Possible amendments to the pleadings;

 

(4)  Opportunities and procedures for settlement;

 

(5)  Possible admissions of fact and authentication of documents to avoid unnecessary proof;

 

(6)  Possible limitations on the number of witnesses, and possible limitations on the scheduling of witnesses;

 

(7)  Possible changes to the standard procedures which would otherwise govern the proceeding; and

 

(8)  Other matters which might contribute to the orderly, prompt and fair resolution of the proceeding.

 

          (c)  The board shall cause prehearing conferences to be recorded. Matters decided at a prehearing conference shall be reflected in an appropriate order.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.06)

 

          Hcp 207.07  Discovery and Disclosure.

 

          (a)  The board shall provide for the disclosure to the parties of any investigative report or other unprivileged information in the possession of the board that is reasonably related to the subject matter of the proceeding.

 

          (b)  Parties shall attempt to agree among themselves concerning the mutual exchange of relevant information.  If these efforts prove unsuccessful, a party wishing to initiate discovery against another party, shall, by motion, seek leave to do so and shall identify the exact type of discovery requested.

 

          (c)  Discovery shall be permitted against a party when:

 

(1)  The parties cannot adequately address specific relevant factual issues at the time fixed for the presentation of evidence, and addressing these issues at a subsequent time would place the requesting party at a material disadvantage;

 

(2)  The requested method of discovery is reasonable, and the requested discovery would not cause material unfairness or unreasonable expense to any party; and

 

(3)  The requesting party has acted diligently and the requested discovery would not unreasonably delay the proceeding.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.07)

 

          Hcp 207.08  Subpoenas.

 

          (a)  Subpoenas for the attendance of witnesses or the production of evidence in investigations or adjudicative proceedings shall be issued upon the order of the board after approval by the department of justice pursuant to RSA 137-F:21, I.

 

          (b)  Motions to quash or modify a subpoena shall be entertained from the person to whom the subpoena is directed, if filed within 7 days after service of the subpoena, or one day before the date specified in the subpoena for compliance therewith, whichever is later.  Such motions shall be denied for the same reasons that they are denied in the superior court.  If the board denies the motion to quash or modify, in whole or in part, the person to whom the subpoena is directed shall comply with the subpoena, or any modification thereof, within the balance of time prescribed in the subpoena or within 3 days from the date of the board’s order, whichever is later, unless the board expressly provides additional time to comply.

 

          (c)  A subpoena shall be served in any manner authorized by law. The date, time, and method of service shall be written on the reverse of the original copy of the subpoena by the person making service who shall then file that copy with the board.

 

          (d)  Should a person fail to comply with a subpoena issued pursuant to this section, the board shall take one or more of the following actions calculated to best encourage compliance or mitigate the harm caused by such non-compliance:

 

(1)  Impose sanctions specific to any pending proceeding or investigation, including, but not limited to, entry of a default judgment as to some or all of the pending issues which is adverse to the noncompliant party;

 

(2)  Institute a separate investigation against any noncompliant individual who is subject to the board’s jurisdiction; or

 

(3)  Continue with the proceeding and defer all, or part, of the subpoena enforcement issues.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.08)

 

          Hcp 207.09  Evidence.

 

          (a)  The evidentiary privileges recognized by law in New Hampshire shall apply to adjudicative proceedings under this chapter.

 

          (b)  All data which will reasonably assist the board in arriving at the truth shall be admissible, but data which is irrelevant, immaterial, or unduly repetitious shall be excluded.

 

          (c)  Oral testimony shall be presented unless the board, upon a finding that written evidence would be more efficient and would not result in material prejudice, orders that some or all of the evidence be submitted in written form.

 

          (d)  If the board officially notices a fact, it shall so state, and permit any party, upon timely request, the opportunity to show the contrary.

 

          (e)  Witnesses appearing before the board shall testify under oath or affirmation administered by the presiding officer.

 

          (f)  Unless a timely request that the board provide a certified shorthand court reporter has been granted, the board shall cause an electronic or stenographic record to be made of hearings and prehearing conferences.  This record shall be transcribed upon the request of a party who pays the estimated cost of transcription in advance.  However, if the board elects to transcribe some or all of the record for its own use, the transcribed portions shall be included in the public docket file.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.09)

 

          Hcp 207.10  Burden of Proof.

 

          (a)  The party asserting the affirmative of a proposition shall have the burden of proving the truth of that proposition by a preponderance of the evidence.

 

          (b)  Without limiting the generality of paragraph (a), above, all moving parties and all petitioners shall have the burden of persuading the board that their motion or petition should be granted.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.10)

 

          Hcp 207.11  Methods of Proceeding.  Unless all parties agree to a modification of the process, the board shall hold a trial-type of evidentiary hearing with an opportunity for the subsequent submission of memoranda.  Each party shall have the opportunity to call its own witnesses and to cross-examine other witnesses who testify at the evidentiary hearing.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.11)

 

          Hcp 207.12  Inquiry By Presiding Officer or Board Members.  The presiding officer shall make such inquiry of witnesses as the presiding officer believes necessary to develop a sound record for decision.  Other board members participating in the proceeding shall also ask such questions and make such inquiries as each such board member deems necessary, subject to recognition by the presiding officer.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.12)

 

          Hcp 207.13  Proposed Findings of Fact and Conclusions of Law.  The presiding officer shall direct the parties to submit proposed findings of fact or conclusions of law if the presiding officer believes proposed findings or conclusions would be helpful to the board in deciding the case.  If such an order is issued, individual rulings upon such proposed findings or conclusions shall be included as part of any proposed or final decision required to be issued in the proceeding.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.13)

 

          Hcp 207.14  Decisions and Orders.

 

          (a)  The board shall issue a decision and order based on:

 

(1)  A hearing attended by a quorum of the board; or

 

(2)  A written proposed consent decree.

 

          (b)  The decision and order shall be in writing and dated.

 

          (c)  A board member shall not participate in rendering a decision if he or she has not personally heard all of the testimony in the case, unless the disposition does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating all testimony and other evidence.

 

          (d)  If the presiding officer has been delegated the authority to draft a proposed decision and order, the presiding officer shall submit to the board a written proposed decision and order containing:

 

(1)  The disposition proposed by the presiding officer;

 

(2)  A statement of the reasons for the proposed disposition;

 

(3)  Findings of fact and rulings of law necessary to the proposed disposition; and

 

(4)  Any order necessary to effectuate the disposition.

 

          (e)  If a proposed disposition submitted pursuant to paragraph (d) is adverse to any party, the board shall:

 

(1)  Serve a copy of it on each party; and

 

(2)  Provide an opportunity to file objections and present briefs and oral arguments to the board.

 

          (f)  The board shall keep a final decision in its records for at least 5 years following their dates of issuance, unless the director of the division of records management and archives of the department of state sets a different retention period pursuant to rules adopted under RSA 5:40.

 

Source.  #9337, eff 12-3-08

 

          Hcp 207.15  Ex Parte Communications.  Once an adjudicative proceeding has been commenced, no party shall communicate with any person assigned to render a decision or to make findings of fact and conclusions of law in a contested case concerning the merits of the case except upon notice to all parties and in accordance with the rules of this chapter.  Additionally, no party shall cause any other person to make such communications or otherwise engage in conduct prohibited by RSA 541-A:36.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.14)

 

          Hcp 207.16  Disciplinary Hearings.

 

          (a)  Adjudication of misconduct allegations shall be conducted in accordance with this part, as supplemented by the hearing order and possible prehearing and other appropriate procedural orders served upon the parties, which shall establish the particular scheduling and filing requirements applicable to each case.

 

          (b)  A hearing notice shall be subject to substantive amendment by the board at any time prior to the issuance of a final order provided that the parties receive at least 15 days notice and an opportunity to be heard on any new or materially different misconduct allegations to be decided in a particular disciplinary proceeding.

 

          (c)  When the board receives information indicating that a licensee or registrant has engaged in or is likely to engage in professional conduct which poses an immediate danger to public health, safety or welfare, the board shall issue an order pursuant to RSA 541-A:30, III which sets forth the alleged misconduct and immediately suspends the license or registration for up to 10 working days pending completion of an adjudicative proceeding on the specified issues.

 

          (d)  Immediate suspension orders under Hcp 207.16(c) shall be accompanied by a notice that complies with Hcp 207.02(b).  The board shall, unless expressly waived by the licensee or registrant, hold a hearing within 10 working days of such order or the suspension shall be vacated.

 

          (e)  No hearing date established in a proceeding conducted under Hcp 207.16(c) shall be postponed at the request of the licensee or registrant unless the licensee or registrant also agrees to continue the suspension period pending issuance of the board’s final decision.

 

          (f)  Prehearing conferences in disciplinary proceedings shall be public except to the extent that settlement discussions or other matters entitled to confidentiality are addressed.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 206.15)

 

          Hcp 207.17  Continuances.

 

          (a)  Any party in a hearing may make an oral or written motion that a hearing be postponed to a later date or time.

 

          (b)  If a continuance is requested by a party, it shall be granted if the presiding officer determines that good cause has been demonstrated.  Good cause shall include the unavailability of any party, witness or attorney or other representative necessary to conduct the hearing, the likelihood that a hearing will not be necessary because the parties have reached a settlement or any other circumstances that demonstrate that a continuance would assist resolving the case fairly.

 

          (c)  If the later date, time and place are known at the time of the hearing that is being postponed, the date, time and place shall be stated on the record.  If the later date, time and place are not known at the time of the hearing that is being postponed, the presiding officer shall issue a written scheduling order stating the date, time and place of the postponed hearing as soon as practicable.

 

Source.  #9337, eff 12-3-08

 

PART Hcp 208  PRESIDING OFFICER

 

          Hcp 208.01  Designation.

 

          (a)  Adjudicative proceedings commenced by the board shall be conducted by a presiding officer.

 

          (b)  The board chairman shall serve as presiding officer unless he or she designates another board member to so serve or is otherwise not available to act as presiding officer, in which case the board shall select any other person who is available to act as presiding officer.

 

          (c)  The presiding officer in an adjudicative proceeding shall be subject to replacement in the event that a majority of the board members present so vote in the interest of justice or in the event of the illness or unavailability of the board chairman.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 207.01)

 

          Hcp 208.02  Authority of Presiding Officer.

 

          (a)  The presiding officer shall possess all authority with respect to the procedural aspects of adjudicative proceedings which could be exercised by the board itself, including, but not limited to, the power to administer oaths and affirmations, direct the course of the proceeding, and decide scheduling, discovery, and other procedural issues.

 

          (b)  Except as provided by Hcp 208.05, the presiding officer shall receive no testimony or oral argument on the merits of the case unless a majority of the board members hearing the case is present.

 

          (c)  Except in proceedings conducted pursuant to Hcp 208.05, and consistent with the fair and orderly conduct of the proceeding, the presiding officer shall permit board members who are hearing the case and are present during an adjudicative proceeding to make inquiries of witnesses pursuant to Hcp 207.12.

 

          (d)  The presiding officer shall attempt to assist the parties in resolving the issues of the hearing through reaching a proposed consent decree.  When a proposed consent decree has been agreed to by the parties, the presiding officer shall refer it to the board for decision, but shall not stay the proceeding merely because the board is deliberating on the proposed settlement decree.

 

          (e)  The presiding officer shall not decide motions or enter orders which finally resolve any specific issue or issues which the board has designated for hearing.  Potentially dispositive motions shall be referred to the board if the presiding officer believes that they have sufficient merit to warrant prompt consideration. Otherwise, the presiding officer shall defer any ruling on dispositive motions until the close of the record and the issuance of the recommended decision.

 

          (f)  If the presiding officer believes a default or similar final order should enter against a party, the presiding officer shall issue a written recommendation to the board, with service on the parties, and the board shall take appropriate action after allowing the parties 10 days to file objections thereto.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 207.02)

 

          Hcp 208.03  Withdrawal of Presiding Officer.

 

          (a)  Upon his or her own initiative or upon the motion of any party, the presiding officer shall withdraw from any adjudicative proceeding for good cause.

 

          (b)  Good cause shall exist if the presiding officer:

 

(1)  Has a direct interest in the outcome of the matter, including but not limited to, a financial or family relationship with any participant in the hearing;

 

(2)  Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of the case; or

 

(3)  Personally believes that he or she cannot fairly judge the facts of the case.

 

          (c)  Mere knowledge of the issues or acquaintance with any participant in the hearing shall not constitute good cause for withdrawal.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08

 

          Hcp 208.04  Exceptions to Interlocutory Rulings by the Presiding Officer.

 

          (a)  The board shall not entertain interlocutory appeals of procedural or discovery orders made by the presiding officer.  Contemporaneous exceptions to such rulings shall be unnecessary to preserve the objections of any party adversely affected.

 

          (b)  Objections to adverse rulings by a presiding officer shall be brought to the attention of the board by including such objections in any exceptions taken to a proposed decision under Hcp 208.05.  When a proposed decision is not issued, such objections shall be presented to the board as a motion or as part of a closing memorandum submitted within 10 days from the close of the hearing.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 207.03)

 

          Hcp 208.05  Proposed Decisions by the Presiding Officer.

 

          (a)  The evidence shall be received by the board and the presiding officer shall be charged with preparing a written proposed decision with recommendations for the final disposition of the case and any pending motions. Such proposed decisions shall be served upon the parties and board members.

 

          (b)  Exceptions and supporting memoranda of law directed to the full board shall be filed within 30 days from the date the proposed decision was served.  Replies to exceptions and reply memoranda shall be filed within 15 days from the date of the document being replied to.

 

          (c)  If a party wishes to present oral argument to the board, the party shall file a separate motion for oral argument within the time allowed for filing exceptions or replies to exceptions.

 

          (d)  If no exceptions are filed to a proposed decision, the board shall, within l0 days following the deadline for filing exceptions, issue an order announcing that the initial decision shall be reviewed by the board on its own motion if any board member participating in the decision has concerns regarding questions of fact or conclusions of law, or issue an order stating that the proposed decision shall automatically become the board’s final decision on the 4lst day following the date it was served upon the parties.

 

          (e)  When the board has directed a presiding officer to receive evidence and enter a proposed decision, there shall be no communications between the presiding officer and the board members concerning the merits of the case, and the board members shall not participate in the questioning of witnesses at the hearing, as would otherwise be permitted by Hcp 207.12.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 207.04)

 

PART Hcp 209  RECONSIDERATION AND STAY

 

          Hcp 209.01  Motion for Reconsideration or Rehearing.

 

          (a)  Final adjudicative orders of the board shall take effect on the date they are served upon the parties pursuant to Hcp 204.03(c) unless such order specifies another date, in which case, the order shall take effect as specified therein.

 

          (b)  Motions for reconsideration or rehearing shall be filed within 30 days after service of a final adjudicative order. The board shall make no distinction between the terms “reconsideration” and “rehearing.”

 

          (c)  A motion for reconsideration shall:

 

(1)  Include any memorandum of law the moving party wishes to submit;

 

(2)  Identify each error of fact, error of reasoning, or erroneous conclusion of law contained in the final order which the moving party wishes reconsidered; and

 

(3)  Concisely state the correct factual finding, correct reasoning, and correct conclusion of law urged by the moving party.

 

          (d)  The board shall grant or deny the motion, or any part thereof, on its merits to the extent the motion has revealed material errors of fact, reasoning, or law in the board’s prior decision.  The board shall also treat the motion as one for reopening and order the receipt of such additional data or additional argument as it considers necessary to evaluate any newly discovered evidence or to cure any alleged procedural errors.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 208.01)

 

          Hcp 209.02  Reconsideration on the Board’s Own Motion.  Within the time frame specified in Hcp 209.01(b), the board shall correct, reconsider, revise or reverse any final action on its own motion if the board determines that such final action was incorrect.  If the board’s action is based upon the existing record, prior notice shall not be given to the parties. If further argument or data are necessary before making such an order, the board shall provide the parties with notice and an opportunity to be heard before any final revision is made in the board’s previous action.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 208.02)

 

          Hcp 209.03  Stay of Board Orders.

 

          (a)  Board actions shall be stayed only in response to a specific motion requesting a stay or by the board acting on its own motion.

 

          (b)  A motion for stay shall be considered only if it is filed within the time period for requesting reconsideration specified by Hcp 209.01(b), and shall demonstrate good cause sufficient to warrant the stay of an action by the New Hampshire superior court.  The board shall determine what constitutes good cause, which shall include, but not be limited to, circumstances which would justify the granting of a motion for reconsideration or rehearing within the meaning of Hcp 209.01 and Hcp 209.02.

 

          (c)  Filing a motion for reconsideration shall not stay a board order.  However, a motion for stay may be combined with a motion for reconsideration.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 208.03)

 

PART Hcp 210  CONSOLIDATION AND SEVERANCE

 

          Hcp 210.01  Consolidation.  Adjudicative proceedings which involve the same, or substantially related issues, shall be consolidated for hearing or decision, or both, when fairness, accuracy and efficiency would be served by such an action.  Consolidation shall be ordered in response to a timely motion from a party or on the board’s own initiative.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 209.01)

 

          Hcp 210.02  Severance.  Whenever it shall appear to the board, upon motion or its own initiative, that injury to the substantial rights of a party or undue delay may be thereby avoided, the board shall, as fairness and efficiency permit, sever one or more issues from a proceeding, and dispose of those issues in another proceeding.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 209.02)

 

PART Hcp 211  NONADJUDICATIVE INVESTIGATIONS AND INFORMATIONAL HEARINGS

 

          Hcp 211.01  Informal Investigations.

 

          (a)  Notwithstanding any other provision of this chapter, the board, within the limits of its authority, and acting through its members, officers and employees, or through independent contractors, shall make inquiry of any person and otherwise gather data and prepare reports describing the data obtained whenever:

 

(1)  It receives data which leads it to believe that a material violation of any statute administered by the board, or of any rule of the board, has occurred, or is likely to occur; or

 

(2)  It desires to obtain data for any other lawful purpose;

 

          (b)  Informal investigations shall include all techniques and methods for gathering information which are appropriate to the circumstances of the case, including:

 

(1)  Requests for additional information from the complainant;

 

(2)  Requests for a release of relevant records belonging to or under the control of the complainant; and

 

(3)  Face to face meetings with potential witnesses and interested persons.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08 (formerly Hcp 210.01); ss by #12111, eff 2-21-17

 

          Hcp 211.02  Formal Investigations.

 

          (a)  Formal investigations shall be commenced for the purpose of obtaining documents, recording testimony, and otherwise gathering information relevant to matters within the board’s jurisdiction when the board believes this technique would be more effective than an informal investigation.

 

          (b)  Formal investigations shall be commenced by the issuance of an order of investigation containing:

 

(1)  The statutory or regulatory authority for the investigation;

 

(2)  Any statutes or rules believed to have been, or about to be, violated, or the possible regulatory action being contemplated by the board;

 

(3)  The identity of the persons, or class of persons, which are the subject of the investigation;

 

(4)  The general nature of the conduct being investigated;

 

(5)  The identity of the investigating officer or committee;

 

(6) The date upon which the investigating officer shall report his or her findings and recommendations to the board; and

 

(7)  Other provisions relevant to the issues under investigation and the time, place and manner in which the investigation is to be conducted.

 

          (c)  The issuance of an order of investigation shall not commence a disciplinary hearing and shall not constitute an allegation of misconduct against a license or registration holder.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08 (formerly Hcp 210.02); ss by #12111, eff 2-21-17

 

          Hcp 211.03  Investigators.  The board shall appoint a member of its staff, an investigator retained through the office of professional licensure and certification, an attorney, or a member of the board to conduct a formal or informal investigation.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08 (formerly Hcp 210.03); ss by #12111, eff 2-21-17

 

          Hcp 211.04  Informational Hearings.

 

          (a)  The board shall conduct informational hearings to assist it in gathering information concerning policy matters, such as the proposing of board rules.

 

          (b)  The board chair, acting chair, or another board member designated by the chair shall serve as the presiding officer at informational hearings and shall conduct all facets of the proceeding.

 

          (c)  Sworn testimony shall not be received at informational hearings unless an order of investigation has been issued by the board.

 

          (d)  The board shall establish the order and the length of the presentations made in informational hearings.

 

Source.  #9338, eff 12-3-08 (formerly Hcp 210.05); ss by #12111, eff 2-21-17

 

PART Hcp 212  RULEMAKING

 

          Hcp 212.01  How Adopted.  A board rule, or any amendment or repeal thereof, shall be adopted by order after following the process provided by RSA 541-A: 3 for 8-year rules, RSA 541-A:18 for emergency rules, and RSA 541-A18 for interim rules.  Rules shall be proposed pursuant to a petition or on the board’s own initiative.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 211.01)

 

          Hcp 212.02  Petition for Rulemaking.  A request for the commencement of a proceeding to adopt, amend or repeal a rule shall be submitted in the form of a petition which contains the following information:

 

          (a)  A statement of the reason for the petitioner’s interest in the subject matter of the proposed rule;

 

          (b)  The text of the proposed rule or a statement of the particular results intended by the petitioner to flow from the implementation of the proposed rule;

 

          (c)  If the petitioner proposes to amend or repeal an existing rule, an identification of the particular rule sought to be amended or repealed; and

 

          (d)  Any data or argument the petitioner believes would be useful to the board in deciding whether to commence a rulemaking proceeding.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 211.02)

 

          Hcp 212.03  Disposition of Petition.

 

          (a)  The board shall issue an order granting or denying a petition for rulemaking.  If the petition is denied, the board shall state the reason therefore in the order.

 

          (b)  The board shall deny a petition if:

 

(1)  The preponderance of the data or argument fails to support the petition;

 

(2)  It conflicts with an existing rule or statute, including RSA 137-F:1; or

 

(3)  The board determines it lacks the authority for the rule change.

 

          (c)  If the petition is granted, the board shall undertake to commence a rulemaking proceeding in accordance with RSA 541-A:3.

 

Source.  #9337, eff 12-3-08 (formerly Hcp 211.03)

 

          Hcp 212.04  Explanation after Adoption.

 

          (a)  Any person may request an explanation regarding adoption of the rules pursuant to RSA 541-A:11, VII by submitting a request to the board within 30 days of the board’s adoption of the rule.

 

          (b)  The request shall be considered at the next scheduled board meeting and the board shall issue an explanation within 45 days after consideration.

 

Source.  #9338, eff 12-3-08; ss by #12111, eff 2-21-17

 

PART Hcp 213  WAIVER OF SUBSTANTIVE RULES

 

          Hcp 213.01  Petitions for Waiver.

 

          (a)  Unless granting it would conflict with any statutory provision, the board shall entertain a petition to waive any rule not covered by Hcp 201.04 upon the filing of a petition pursuant to Hcp 205.01(b) which clearly identifies the rule in question and sets forth specific facts and arguments which support the requested waiver.  The petitioner shall file an original and 2 copies of the petition.

 

          (b)  Petitions for waivers of substantive rules shall address all of the following:

 

(1) Whether adherence to the rule would, in the petitioner’s view, cause the petitioner unnecessary or undue personal or financial hardship and a description of such hardship;

 

(2)  Whether the requested waiver is necessitated due to neglect or misfeasance on the part of the petitioner;

 

(3)  Whether waiver of the rule would be consistent with the statutes and rules administered by the board;

 

(4)  Whether other good cause exists for waiving the rule; and

 

(5)  Whether enforcement of the rule would injure third persons.

 

          (c)  If examination of the petition reveals that other persons would be substantially personally or financially affected by the proposed relief, the board shall require service of the petition on such persons and advise them of their right to object to the petition pursuant to Hcp 205.01(c).

 

          (d)  The petitioner shall provide such further information or participate in such evidentiary or other proceedings as shall be ordered by the board after reviewing the petition and any replies received.

 

          (e)  The board shall initiate a waiver of a substantive rule upon its own motion by providing affected parties with notice and an opportunity to be heard, and issuing an order which finds that a waiver would be consistent with the criteria of (b), above.

 

          (f)  The board shall grant the petition for waiver if the board finds that the circumstances set forth in Hcp 213.01(b)(1), (3) and (4) are present and further finds that the circumstances set forth in Hcp 213.01(b)(2) and (5) are not present.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08 (formerly Hcp 212.01); ss by #12111, eff 2-21-17

 

PART Hcp 214  DECLARATORY RULINGS

 

          Hcp 214.01  Petitions for Declaratory Rulings.

 

          (a)  Petitions for a declaratory ruling on matters within the jurisdiction of the board shall be filed as a petition which meets the requirements of Hcp 205.01(b) and also contains the following information:

 

(1)  The exact ruling being requested; and

 

(2)  The complete and material statutory and factual basis for the ruling, including any supporting affidavits or memoranda of law.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 213.01)

 

          Hcp 214.02  Action on Petitions for Declaratory Rulings.  The petitioner shall provide such further information as the board shall direct after reviewing the petition and any replies received.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9337, eff 12-3-08 (formerly Hcp 213.02)

 

PART Hcp 215  RULEMAKING PUBLIC COMMENT HEARINGS

 

          Hcp 215.01  Purpose.  The purpose of this part is to provide a uniform procedure for the conduct of public hearings at which comment from the general public will be solicited for evaluation and consideration by the board relative to rulemaking.

 

Source.  #9337, eff 12-3-08

 

          Hcp 215.02  Scope.

 

          (a)  These rules shall apply to all hearings required by state law to be conducted by the department at which public comment shall be solicited, except that they shall not apply to adjudicative hearings.

 

          (b)  If any requirement set by these rules conflicts with an applicable statute, such other authority shall control.

 

Source.  #9337, eff 12-3-08

 

          Hcp 215.03  Notice.

 

          (a)  A public comment hearing concerning rulemaking shall be commenced by placing notice of the hearing in the “Rulemaking Register” so that it shall appear at least 20 days prior to the hearing date.

 

          (b)  Notice for rulemaking public comment hearings shall comply with RSA 541-A:6, I.

 

          (c)  Nothing in these rules shall prohibit the board from giving greater notice than the minimums set out in this part.

 

Source.  #9337, eff 12-3-08

 

          Hcp 215.04  Media Access.

 

          (a)  Public comment hearings shall be open to the print and electronic media.

 

          (b)  The moderator shall place limits on the activities of the media to avoid disruption in the following ways:

 

(1)  Limit the number of media representatives when their presence is disproportionate to the number of citizens present and shall cause citizens to be excluded;

 

(2)  Limit the placement of television cameras to certain locations in the hearing room; and

 

(3)  Prohibit interviews from being conducted within the hearing room during the hearing.

 

Source.  #9337, eff 12-3-08

 

          Hcp 215.05  Moderator.

 

          (a)  The hearing shall be presided over by a moderator who shall be the board chairperson or a designee.

 

          (b)  The moderator shall:

 

(1)  Call the hearing to order;

 

(2)  Cause a recording of the hearing to be made;

 

(3)  Place limits on the media to avoid disruption as set out in Hcp 215Hcp 215.04(b);

 

(4)  Recognize those who wish to be heard and establish the order thereof;

 

(5)  Limit the time for each speaker, as set out in Hcp 215Hcp 215.06(b);

 

(6)  Remove or have removed any person who disrupts the hearing;

 

(7)  Adjourn the hearing; and

 

(8)  Provide opportunity for the submission of written comments.

 

Source.  #9337, eff 12-3-08

 

          Hcp 215.06  Public Participation.

 

          (a)  Any person who wishes to speak on the issue or issues which are the subject of the hearing shall place his or her name and address on a speakers' list before the last speaker on the list has finished speaking. All whose names appear on the speakers' list, as provided, shall be afforded reasonable time to speak at the hearing.  Reasonable time shall be determined considering the number of people who wish to be heard, the time and the availability of the facility.

 

          (b)  The board, through the moderator, shall:

 

(1)  Refuse to recognize a person who refuses to give his or her full name and address;

 

(2)  When a group or organization wishes to comment, limit the group to no more than 3 spokespersons, provided that the members who are present shall be allowed to enter their names and addresses into the record as supporting the position by the group or organization;

 

(3)  Revoke recognition of a speaker who speaks or acts in an abusive or disruptive manner; or

 

(4)  Revoke recognition of a speaker who refuses to keep his comments relevant to the issue or issues which are the subject of the hearing.

 

          (c)  Written comments may be submitted any time from the time notice has been published until the record has been closed by the moderator, which shall not be less than 7 calendar days after the hearing.

 

          (d)  In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceed that number which can be heard within a reasonable period of time subject to facility availability and length of the hearing, the hearing shall be reconvened pursuant to applicable provisions in RSA 541-A to afford such persons the opportunity to be heard.  Speakers may elect to submit written testimony in lieu of additional oral hearing.

 

Source.  #9337, eff 12-3-08

 


CHAPTER Hcp 300  INITIAL LICENSURE AND REGISTRATION

 

PART Hcp 301  INITIAL LICENSURE AS AN AUDIOLOGIST

 

             Hcp 301.01  Audiologist License Application Process Overview.

 

          (a)  Each person seeking licensure as an audiologist in New Hampshire shall:

 

(1)  Submit to the board a complete application for licensure required pursuant to RSA 137-F:13, I(a) and further described in Hcp 301.02;

 

(2)  Meet the education requirements of RSA 137-F:13, I(c) and further described in Hcp 301.03;

 

(3)  Take and pass the examination required pursuant to RSA 137-F:13, I(e) and further described in Hcp 301.04;

 

(4)  Meet the character qualifications required pursuant to RSA 137-F:13, I(g) and further described in Hcp 305.01; and

 

(5)  Pay the application fee further described in Hcp 306.01.

 

(b)  An applicant who has met the requirements of (b) above shall:

 

(1)  Be issued an audiologist license; and

 

(2)  Be authorized to use the words or titles otherwise prohibited by RSA 137-F:11, III.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 301.02  Application for Audiologist License.  Each applicant for licensure as an audiologist shall provide the following on or with an “Application for Audiologist License” form to the board:

 

          (a)  The applicant’s name, home address and telephone number;

 

          (b)  The applicant’s date of birth;

 

          (c)  A description of the applicant’s education;

 

          (d)  A list of any other audiology licenses held by the applicant in other jurisdictions, including each state in which licensure is held;

 

          (e)  The length of time the applicant has been practicing as a licensed audiologist;

 

          (f)  Whether the applicant has ever been refused an audiology license by any licensing body, and if so, the name of the board, the date of denial, and the reasons for denial;

 

          (g)  Whether the applicant has ever been convicted of a felony or misdemeanor that has not been annulled by a court of competent jurisdiction and, if so, the name of the court, the detail of the offense, the date of conviction and the sentence imposed;

 

          (h)  Documentation that the applicant has met all of the educational requirements as detailed in the requirements as set forth in Hcp 301.03;

 

          (i)  A certification separately signed by the applicant indicating that the application is true, correct, and complete to the best of the applicant’s knowledge and belief;

 

          (j)  The applicant’s Social Security number as required by RSA 161-B:11, VI-a;

 

          (k)  The applicant’s signature and date of signature; and

 

          (l)  Payment in the amount specified in Hcp 306.01 in cash, or by check or money order made payable to “Treasurer, State of New Hampshire.”

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 301.03  Audiology Educational Qualifications.  The educational qualifications for licensure as an audiologist pursuant to RSA 137-F:13, I, shall be as follows:

 

          (a)  At least one of the following degrees in the specialized area of audiology shall be:

 

(1)  A master’s degree; or

 

(2)  A doctoral degree;

 

          (b)  The degree shall have been received from an educational institution or organization recognized by any of the following:

 

(1)  Academy of Dispensing Audiology;

 

(2)  Audiology Foundation of America;

 

(3)  American Academy of Audiology; or

 

(4)  American Speech-Language-Hearing Association;

 

          (c)  At least 75 semester credit hours of study shall be completed, as evidenced by an official transcript, covering:

 

(1)  The biological and physical sciences and mathematics;

 

(2)  The behavior and/or social sciences; and

 

(3)  The nature, prevention, evaluation, and treatment of speech, language, hearing, and related disorders;

 

          (d)  At least 27 of the 75 semester credit hours shall be in basic science course work; and

 

          (e)  At least 36 of the 75 semester credit hours shall be in professional course work.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (formerly Hcp 302.02)

 

          Hcp 301.04  Audiology Examination Required.

 

          (a)  Each audiologist applicant shall pass a written national examination in audiology administered by any of the following:

 

(1)  Education Testing Services of Princeton, New Jersey;

 

(2)  American Academy of Dispensing Audiology;

 

(3)  Audiology Foundation of America;

 

(4)  American Academy of Audiology; or

 

(5)  American Speech-Language-Hearing Association.

 

          (b)  The applicant shall, as part of an application for licensure, arrange for the submission of proof of passing one of the required examinations.

 

          (c)  The board shall accept the results as determined and directly reported by the organizations listed in (a) above.  Results that are not sent directly by an organization listed in (a) above shall not be accepted by the board as proof of passing the examination.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 303.01)

 

          Hcp 301.05  Acceptance of Applications for Audiologist Licensure.

 

          (a)  Each applicant for licensure as an audiologist shall personally sign the application form and shall neither arrange for nor allow any other person to sign on the applicant’s behalf.

 

          (b)  An application shall not be considered on its merits until it has been accepted for filing pursuant to (d) below.

 

          (c)  The occurrence of any one or more of the following shall result in non-acceptance of an application:

 

(1)  The failure of the applicant to sign the application;

 

(2)  The failure to provide any information or documentation required for a complete application without an accompanying explanation or request for a waiver; or

 

(3)  The failure to attach or enclose payment of the application fee.

 

          (d)  An application shall be subject to non-acceptance pursuant to (c) above for 15 days to permit initial review and determine whether the application is complete on its face. Unless the application is denied or the applicant is informed, pursuant to (e) below, of a specific deficiency within this time period, the application shall be deemed accepted for filing on the date it was first received by the board.

 

          (e)  The board shall, within the time frame described in (d) above, notify the applicant in writing of any deficiencies in the application or of the need for any further information to evaluate the applicant’s qualifications.

 

          (f)  Additional information required pursuant to (d)-(e) above shall be provided by the applicant within 30 days from the date of the board’s letter notifying him or her of any application deficiencies.  Failure to provide such information in a timely fashion shall result in denial of the application.

 

          (g)  Applications requiring additional information pursuant to (d)-(e) above shall be deemed accepted for filing on the date the requested additional information was received by the board.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 301.03)

 

          Hcp 301.06  Audiologist Application Approval Procedures.

 

          (a)  The board shall, within 30 days from acceptance for filing:

 

(1)  Issue an audiology license if the board determines that the applicant has:

 

a.  Submitted an application free of materially false statements;

 

b.  Met all applicable procedural requirements set forth in Hcp 301.01; and

 

c.  Met all applicable qualifications set forth in Hcp 301.02 through Hcp 301.06; or

 

(2)  Issue to the applicant an order indicating its intent to deny an audiology license based on the applicant’s failure to:

 

a.  Submit an application free of materially false statements;

 

b.  Meet all applicable procedural requirements set forth in Hcp 301.01; or

 

c.  Meet all applicable qualifications set forth in Hcp 301.02 through Hcp 301.06.

 

          (b)  An intent to deny order issued pursuant to (a)(2) above shall notify the applicant in writing:

 

(1)  Of each reason for intended denial;

 

(2)  That the applicant may request a hearing on such intended denial based upon each reason identified by the board within 30 days of the board’s order of intended denial; and

 

(3)  That if a request for a hearing pursuant to (2) above is not timely requested, the application shall be denied.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

PART Hcp 302  INTERIM AUDIOLOGY LICENSE

 

          Hcp 302.01  Audiologist Interim Licensure Qualifications.

 

          (a)  An individual may apply for an interim audiologist license if he or she:

 

(1)  Meets the character requirements as set forth in Hcp 305.01; and

 

(2)  Meets the educational requirements of Hcp 301.03 and the clinical practicum requirements of Hcp 301.04, but has not yet completed the supervised post-graduate clinical experience required pursuant to RSA 137-F:13, I(f) and Hcp 301.05.

 

          (b)  An applicant for interim licensure shall submit a complete application required pursuant to Hcp 301.02, including the application fee as described in Hcp 306.01, as well as a supervised professional practice plan that complies with Hcp 301.05.

 

          (c)  Upon receiving such an application, the board shall issue an interim license which entitles the applicant to practice audiology under supervision of a New Hampshire licensed audiologist while completing requirements for licensure.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (formerly Hcp 302.05)

 

PART Hcp 303  TEMPORARY AUDIOLOGY LICENSE

 

          Hcp 303.01  Audiologist Temporary Licensure Qualifications.

 

          (a)  The following qualifications shall apply to each applicant for temporary licensure as an audiologist:

 

(1)  The applicant shall submit a complete application pursuant to Hcp 301.02, including payment of the application fee pursuant to Hcp 306.01;

 

(2)  The applicant shall meet the character qualifications of Hcp 305.01;

 

(3)  The applicant shall meet all of the educational requirements for permanent licensure as described in Hcp 301.03; and

 

(4)  The applicant shall possess a current state license and submit a copy of such license and that state’s licensing regulations.

 

          (b)  The board shall notify the applicant of acceptance or denial within 30 days from acceptance for filing of the application, as described in Hcp 301.07.

 

          (c)  A temporary license shall be granted by the board for up to 120 days in the event that the board finds that the applicant has met the requirements of this section.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (formerly Hcp 302.06) 

 

PART Hcp 304  INITIAL REGISTRATION AS A HEARING AID DEALER

 

          Hcp 304.01  Hearing Aid Dealer Registration Application Process Overview.

 

          (a)  Each person seeking registration as a hearing aid dealer in New Hampshire shall:

 

(1)  Submit to the board a complete application for registration required pursuant to RSA 137-F:9, I and further described in Hcp 304.02;

 

(2)  Meet the age and education requirements for hearing aid dealers as specified in Hcp 304.03;

 

(3)  Complete the training program as specified in Hcp 304.04;

 

(4)  Take and pass both the written and practical examinations required for hearing aid dealers pursuant to Hcp 304.05;

 

(5)  Meet the character qualifications as described in Hcp 305.01; and

 

(6)  Pay the application fee described in Hcp 306.01.

 

          (b)  A hearing aid dealer applicant who has met the requirements of (b) above shall:

 

(1)  Be issued a hearing aid dealer registration; and

 

(2)  Be authorized to use hold himself or herself out to the public as a hearing aid dealer.

 

Source.  #12112, eff 2-21-17 (from Hcp 301.04)

 

          Hcp 304.02  Application for Initial Registration as Hearing Aid Dealer.

 

          (a)  Each applicant for registration as a hearing aid dealer shall provide the following on or with an “Application for Hearing Aid Dealer Registration” form to the board:

 

(1)  The applicant’s name, home address, and telephone number;

 

(2)  The applicant’s date of birth;

 

(3)  The name and the business address of the applicant, as follows:

 

a.  If an individual, the name under which the person intends to conduct business;

 

b.  If a partnership, the name and business address of each member thereof, and the name under which the business is to be conducted; and

 

c.  If a corporation, the name of the corporation and the name and business address of each of the officers of the corporation;

 

(4)  The place or places, including the complete address or addresses, where the business is to be conducted;

 

(5)  A description of the applicant’s education;

 

(6)  A list of the applicant’s hearing aid dealer licenses held, including each state in which licensure is held;

 

(7)  The length of time the applicant has been practicing as a hearing aid dealer;

 

(8)  Whether the applicant has ever been refused a license as a hearing aid dealer by any licensing body, and if so, the name of the body, the date of denial, and the reasons for denial;

 

(9)  Whether the applicant has ever been convicted of a felony or misdemeanor that has not been annulled by a court of competent jurisdiction and, if so, the name of the court, the detail of the offense, the date of conviction and the sentence imposed;

 

(10)  Documentation that the applicant has met all of the educational requirements as detailed in the requirements as set forth in Hcp 304.03;

 

(11)  A description of the training program required by Hcp 304.04, including the beginning and ending dates;

 

(12)  A certification separately signed by the applicant indicating that the application is true, correct, and complete to the best of the applicant’s knowledge and belief;

 

(13)  The applicant’s Social Security number as required by RSA 161-B:11, VI-a;

 

(14)  The applicant’s signature and date of signature; and

 

(15)  Payment of the application fee in the amount specified in Hcp 306.01 which, if by check, shall be made payable to “Treasurer, State of New Hampshire.”

 

          (b)  The applicant shall also:

 

(1)  Arrange to have a certified copy of the National Institute for Hearing Instrument Studies (IHS) International Licensing Examination results sent directly to the board; and

 

(2)  Provide documentation that the applicant has passed the New Hampshire written and practical examinations as set forth in Hcp 304.04.

 

                 (c)  If an applicant is unable to provide the documentation of passing either or both examinations referred to in (b) above, the applicant shall so state on the application and agree to sit for each missing examination at the earliest offering of such examination.

 

Source.  #12112, eff 2-21-17

 

          Hcp 304.03  Age and Education Requirements for Initial Registration as Hearing Aid Dealer.

 

          (a)  Applicants for initial registration as a hearing aid dealer shall have attained the age of 18 by the date of the application and be of good professional character as described in Hcp 305.01.

 

          (b)  Applicants for initial registration as a hearing aid dealer shall have:

 

(1)  Obtained an associate’s degree in any field of study;

 

(2)  Earned at least 60 credits toward a baccalaureate degree in any field of study; or

 

(3)  Been board certified by the National Board for Certification in Hearing Instrument Sciences for a period of at least 2 years.

 

Source.  #12112, eff 2-21-17

 

          Hcp 304.04  Training Program Required for Hearing Aid Dealer Registration.

 

          (a)  Applicants for initial registration as a hearing aid dealer shall, by the time the application is submitted, have complete a supervised training program, not to exceed 24 months in length, that is directly supervised by a licensed audiologist or registered hearing aid dealer who has been registered for at least 2 years.

 

          (b)  The supervised trainer shall, prior to undertaking the supervision, submit to the board a plan that includes training to develop and demonstrate competency in:

 

(1)  Hearing testing and interpretation;

 

(2)  Otoscopic ear examination;

 

(3)  Earmold impression procedures;

 

(4)  Hearing aid selection and fitting protocol; and

 

(5)  Hearing aid troubleshooting and servicing.

 

          (c)  Direct supervision shall be conducted by a licensed audiologist or registered hearing aid dealer who shall:

 

(1)  Be responsible for all work being performed by the applicant;

 

(2)  Give final approval for work performed pursuant to (1) above; and

 

(3)  Be physically present in the room at the time the hearing aid is delivered the client.

 

          (d)  In a written statement submitted with the applicant’s application, the supervising trainer shall:

 

(1)  Document the dates of the initial supervision and the number of hours of supervision; and

 

(2)  Verify the completion of a training program conforming with the requirements of this section.

 

          (e)  In addition to a training program conforming with the requirements of (a)-(d) above, the board shall accept any distance learning program that is approved by the International Hearing Society as satisfying the requirements of this section.

 

          (f)  Upon completion of the training program, the applicant shall register for the first available written and practical examination offered by the board pursuant to Hcp 304.05.

 

          (g)  If the trainee fails either the written or practical examination, the trainee shall re-enter the training program and shall have 2 more opportunities to pass both the written and practical examinations.  The trainee shall take the next available examination and shall take and pass the examination within 2 years of commencing the training program.

 

          (h)  Notwithstanding (f) above, the trainee may petition the board for an extension of the 2 year time limit on the basis of health or medical issues, accident, mistake, or misfortune and not through the neglect of the trainee.

 

Source.  #12112, eff 2-21-17

 

          Hcp 304.05  Hearing Aid Dealer Written and Practical Examinations Required.

 

          (a)  Each hearing aid dealer applicant shall, as part of an application for registration, submit proof of passing:

 

(1)  The written or online International Licensing Examination of the IHS given by or on behalf of the board; and

 

(2)  A practical examination administered by the board and which shall test the applicant in the following:

 

a.  Knowledge and mastery of FDA criteria for mandatory medical referral;

 

b.  Otological examination;

 

c.  Testing procedures and techniques during hearing aid selection and fitting, air conduction testing, bone conduction testing, and masking techniques;

 

d.  Ear mold impressions; and

 

e.  Hearing aid trouble-shooting and servicing.

 

          (b)  Each applicant for written examination under (c)(1) above shall pay to IHS an examination fee as set by IHS.

 

          (c)  Notwithstanding (a) above, the following applicants shall be exempt from the written and the practical examinations:

 

(1)  Applicants who are board certified by the National Board for Certification in Hearing Instrument Sciences; and

 

(2)  Applicants who have passed the International Licensing Examination of the IHS in another state or jurisdiction whose licensure requirements are substantially equivalent to those of New Hampshire.

 

          (d)  The practical examination shall be given twice a year.  The applicant shall be notified in writing within 30 days as to whether he or she passed or failed the examination.

 

          (e)  An applicant who fails to pass the written examination or who fails to obtain a score of 70% or higher on any part of the practical examination shall re-enter the training program required by Hcp 304.04 and retake the failed portion of the examination at the next regularly scheduled examination date.

 

          (f)  An applicant who did not pass one or both examinations shall work in the physical presence of a licensed audiologist or registered hearing aid dealer who has been registered for at least 2 years, until such time as he or she has passed both the written and practical portions of the examination.

 

          (g)  If an applicant is unable to pass the examinations after 3 consecutive attempts, he or she shall not be issued a certificate of registration in New Hampshire.

 

Source.  #12112, eff 2-21-17

 

          Hcp 304.06  Acceptance of Applications for Initial Hearing Aid Dealer Registration.

 

          (a)  Each applicant for registration as a hearing aid dealer shall personally sign his or her application form and shall neither arrange for nor allow any other person to sign on the applicant’s behalf.

 

          (b)  An application shall not be considered on its merits until it has been accepted for filing pursuant to (d) below.

 

          (c)  The occurrence of any one or more of the following shall result in non-acceptance of an application:

 

(1)  The failure of the applicant to sign the application;

 

(2)  The failure to provide any information or documentation required for a complete application without an accompanying explanation or request for a waiver; and

 

(3)  The failure to attach or enclose payment of the application fee.

 

          (d)  An application shall be subject to non-acceptance pursuant to (c) above for 15 days to permit initial review and determine whether the application is complete on its face.  Unless the application is denied or the applicant is informed, pursuant to (b) below, of a specific deficiency within this time period, the application shall be deemed accepted for filing on the date it was first received by the board.

 

          (e)  The board shall, within the time frame described in (d) above, notify the applicant in writing of any deficiencies in the application or any further information needed to evaluate the applicant’s qualifications. 

 

          (f)  Any additional information required pursuant to (d)-(e) above shall be provided by the applicant within 30 days from the date of the board’s letter notifying him or her of such deficiencies.  Failure to provide such information in a timely fashion shall result in the issuance of an intent to deny order.

 

          (g)  Applications requiring additional information pursuant to (b) above shall be deemed accepted for filing on the date the requested additional information was received by the board.

 

Source.  #12112, eff 2-21-17

 

Hcp 304.07  Hearing Aid Dealer Application Approval Procedures.

 

          (a)  Upon acceptance for filing of the application for hearing aid dealer registration specified in Hcp 304.06, the board shall:

 

(1)  Notify the applicant of the date and time of the next regularly scheduled examination;

 

(2)  Notify the applicant of the requirement for successful completion of a written and practical examination; and

 

(3)  Notify the applicant relative to exemptions from the examination requirements.

 

          (b)  No later than the second board meeting following the reporting of the examination results to the board, the board shall:

 

(1)  Issue a hearing aid dealer registration if the board determines that the applicant has:

 

a.  Submitted an application free of materially false statements;

 

b.  Met all applicable procedural requirements set forth in Hcp 301; and

 

c.  Met all applicable qualifications set forth in Hcp 302 and Hcp 303; or

 

(2)  Issue an order indicating its intent to deny a hearing aid dealer registration based on the applicant’s failure, as identified in the notice, to do any or all of the following:

 

a.  Submit an application free of materially false statements;

 

b.  Meet all applicable procedural requirements set forth in Hcp 304.01; or

 

c.  Meet all applicable qualifications set forth in Hcp 304.03 through Hcp 304.05.

 

          (c)  An intent to deny order issued pursuant to (h)(2) above shall notify the applicant in writing:

 

(1)  Of each reason for intended denial;

 

(2)  That the applicant may request a hearing on such intended denial based upon each reason identified by the board within 30 days of the board’s order of intended denial; and

 

(3)  That if a request for a hearing pursuant to (2) above is not timely requested, the application shall be denied.

 

Source.  #12112, eff 2-21-17

 

PART Hcp 305  AUDIOLOGIST AND HEARING AID DEALER CHARACTER QUALIFICATIONS

 

          Hcp 305.01  Character Qualifications for Audiologists and Hearing Aid Dealers.

 

          (a)  Each application shall be investigated pursuant to RSA 137-F:21 for the purpose of verifying all application materials, and determining whether the applicant is of good professional character and can be depended upon to follow the requirements of RSA 137-F and the board’s rules.

 

          (b)  To be considered to be of good professional character pursuant to RSA 132-F:13, I(g) and someone who can be entrusted to serve the public as an audiologist or hearing aid dealer, the applicant shall not have:

 

(1)  Personally or through any other person submitted false information to the board in connection with the application;

 

(2)  Within the 10 years preceding the application, had disciplinary action taken by any licensing body or professional association that indicates the applicant cannot be relied upon to practice competently, safely and honestly, or adhere to the ethical standards required by Hcp 501; or

 

(3)  A criminal conviction history that indicates the applicant cannot be relied upon to practice competently, safely and honestly, or adhere to the ethical standards required by Hcp 501 due to:

 

a.  Conviction at any time of any felony involving dishonesty or fraud and that has not been annulled by a court of competent jurisdiction;

 

b.  Conviction within the year immediately preceding the application of any violation or misdemeanor involving a dishonest act that has not been annulled by a court of competent jurisdiction;

 

c.  Conviction within the 5 years immediately preceding the application of 2 violations, misdemeanors, or both, involving dishonest acts and that have not been annulled by a court of competent jurisdiction; or

 

d.  Conviction within the 10 years immediately preceding the application of 3 or more violations, misdemeanors, or both, involving dishonest acts.

 

Source.  #12112, eff 2-21-17

 

PART Hcp 306  INITIAL LICENSE AND REGISTRATION FEES

 

          Hcp 306.01  Fee Schedule for Initial License and Registration. The board’s fees for initial licensure as an audiologist and initial registration as a hearing aid dealer shall be the fees on the schedule set forth in Table 300-1.

 

Table 300-1  Fees Charged by the Board of Hearing Care Providers for Initial Licensure and Registration

 

Type of Fee

Fee

 

 

Audiologist initial license

$300.00

Audiologist interim license

$300.00

Audiologist temporary license

$300.00

Hearing aid dealer initial registration

$300.00

 

Source.  #12112, eff 2-21-17

 

CHAPTER Hcp 400  LICENSE RENEWAL AND FEES

 

PART Hcp 401  LICENSURE AND REGISTRATION RENEWALS

 

          Hcp 401.01  Application Process for Licensee and Registrant Renewals.  Each licensee or registrant who wishes to renew their license or registration shall:

 

          (a)  Comply with the filing deadlines established in Hcp 401.02;

 

          (b)  Submit a complete application pursuant to Hcp 401.03;

 

          (c)  Comply with the continuing education requirements described in Hcp 402; and

 

          (d)  Pay the renewal fee established in Hcp 405.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 401.02  License and Registration Expiration Dates and Filing Deadlines for Renewals.

 

          (a)  Initial licenses and registrations shall be valid for 2 full years, and shall automatically expire on July 1 after the second full year of licensure or registration.  

 

          (b)  All other audiology licenses and hearing aid dealer registrations shall automatically expire on July 1, 2 years following the last date the license or registration expired.

 

          (c)  Licenses and registrations shall be renewed on or before June 30 in the year in which the license or registration is to expire.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 401.03  Application for License and Registration Renewal.  An applicant for license or registration renewal shall provide the following information on or with the “Application for Renewal of Audiologist License and Hearing Aid Dealer Registration” form:

 

          (a)  The applicant’s full name;

 

          (b)  The applicant’s business address and telephone number;

 

          (c)  The applicant’s home address and telephone number;

 

          (d)  A statement indicating whether the applicant is actively practicing;

 

          (e)  A statement that the information included in the applicant’s initial application has not changed except to the extent it has previously been disclosed to the board or is disclosed and described in an attachment to the application;

 

          (f)  A statement that the applicant has complied with the applicable continuing education requirements of Hcp 402;

 

          (g)  A representation that the applicant acknowledges that the provision of false information in the application is a basis for disciplinary action by the board;

 

          (h)  The applicant’s signature; and

 

          (i)  The date the applicant signed the application.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 401.04  Application for Restoration of Audiologist License.  Each audiologist whose license has been expired for not more than 2 years shall, pursuant to RSA 137-F:13, III, have his or her license restored upon submitting:

 

          (a)  A completed renewal application as required by Hcp 401.03;

 

          (b)  Payment of the restoration fee described in Hcp 405; and

 

          (c)  Documentation that the applicant has met the continuing education requirements of Hcp 402.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

PART Hcp 402  CONTINUING EDUCATION

 

          Hcp 402.01  Continuing Education as a Condition for Renewal.

 

          (a)  As a condition of the biennial renew for audiologist licensure, each audiologist shall attend at least 20 credit hours of board-approved continuing education relevant to, and which enhance, the licensee’s ability to practice audiology.

 

          (b)  As a condition of the annual renewal for hearing aid dealer registration, each hearing aid dealer shall attend at least 16 credit hours of board-approved continuing education relevant to, and which enhance, the registrant’s practice as a hearing aid dealer.

 

          (c)  Credit hours shall be awarded based on a 60-minute hour, or fraction thereof, of program participation.

 

          (d)  Credit hours earned in excess of the minimums described in (a) and (b) above shall not be used to meet the subsequent biennial license or registration period’s continuing education requirements.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 403.01)

 

          Hcp 402.02  Continuing Education Programs and Courses.

 

          (a)  The board shall accept only continuing education programs offered or accredited by the organizations set forth in (b) below which are directly relevant and applicable to the practice of audiology for audiologists or hearing aid dispensing for hearing aid dealers.

 

          (b)  Continuing education credit may be claimed for any program offered or accredited by any of the following organizations:

 

(1)  College or university courses;

 

(2)   Courses, seminars, or other learning activities provided by the:

 

a.  American Academy of Dispensing Audiologists;

 

b.  American Academy of Audiology;

 

c.  American Speech-Language and Hearing Association;

 

d.  American Medical Association;

 

e.  American Academy of Otolaryngology;

 

f.  International Hearing  Society; or

 

g.  Other organizations credentialed by a. – f. above.

 

          (c)  Continuing education with non-accredited sponsorship may also be submitted for board consideration pursuant to Hcp 402.03.  If approved, credit shall be assigned pursuant to Hcp 402.01(c).

 

          (d)  To receive credit for courses submitted for approval under (b) above, the applicant shall submit a detailed report that specifies:

 

(1)  The program title;

 

(2)  Identification of the organization that sponsored the program;

 

(3)  A description of the scope of the program;

 

(4)  A description of the instructor’s credentials; and

 

(5)  A statement indicating the place, date, and length of program.

 

          (e)  The board shall consider and approve courses that have not been offered or accredited by the organizations set forth in (b) above pursuant to Hcp 402.03.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 403.02)

 

          Hcp 402.03  Board Approval of Courses.

 

          (a)  Requests for approval of courses for continuing education credit shall be submitted to the board no less than 30 days in advance of the course.

 

          (b)  Requests for approval of courses shall provide the following information on a board provided course approval form:

 

(1)  The course's title, date and location;

 

(2)  The course's sponsor and the name and phone number of contact person;

 

(3)  An agenda for the course;

 

(4)  Biographical sketches of speakers including their qualifications; and

 

(5)  A summary of the topics to be presented.

 

          (c)  After review of the application, the board shall, within 21 days of receipt of the request for approval, notify the contact person, in writing, as to whether or not the course is approved and the number of credits granted.

 

          (d)  Courses shall be approved if:

 

(1)  The application form contains all of the information required by (b) above;

 

(2)  The application form is received by the board in accordance with (a) above;

 

(3)  The subject matter will address topics that will enhance audiologists’ or hearing aid dealers’ abilities to practice; and

 

(4)  The persons presenting the pertinent subject matter have qualifications relating to both the subject matter and the category of certification of the attendees, through:

 

a.  Formal education with degrees or diplomas;

 

b.  Research experience, as demonstrated by publication of peer reviewed research; or

 

c.  Practical experience that demonstrates specialized knowledge in a particular practice area of pertinent subject matter.

 

d.  The number of credit hours granted for continuing education courses shall be assigned pursuant to Hcp 402.01(c).

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (formerly Hcp 403.03)

 

          Hcp 402.04  Documentation Requirements.

 

          (a)  Licensees and registrants shall retain documentation of maintenance of continuing competence for a period of no less than 3 years.

 

          (b)  The renewal applicant shall furnish the copies of documentation of continuing education, as described in (c) below, with their renewal application.

 

          (c)  Documentation of continuing education shall include transcripts, certificates, and other evidence of successful completion of continuing education that are provided by the person or entity conducting such education, provided that licensees and registrants shall be permitted to submit photocopies of such documentation as part of their renewal applications.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

PART Hcp 403  ONGOING REQUIREMENTS

 

          Hcp 403.01  Severance of Connection.  Each audiologist and each hearing aid dealer shall notify the board in writing within 30 business days after they sever or establish an employment situation.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 404.01)

 

          Hcp 403.02  Change of Address.  Each audiologist and each hearing aid dealer, as well as applicants for licensure or registration, shall notify the board in writing of any change in home or business address within 30 days of such change. Failure to provide a written notification of change of address shall not be exculpatory grounds for failing to respond to board inquiries or timelines and shall be grounds for disciplinary actions.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 404.02)

 

PART Hcp 404  REVOCATION, SUSPENSION, AND OTHER SANCTIONS

 

          Hcp 404.01  Disciplinary Sanctions.

 

          (a)  Other than immediate license suspensions authorized by RSA 541-A:30, III, the board shall impose disciplinary sanctions on an audiologist or hearing aid dealer only:

 

(1)  After prior notice and an opportunity to be heard; or

 

(2)  Pursuant to a mutually agreed upon settlement.

 

          (b)  After a finding that an audiologist or hearing aid dealer has committed misconduct, the board shall impose one or more of the disciplinary sanctions described in this part.

 

          (c)  The board shall impose the least severe sanction available under these rules that is calculated to address misconduct and act as a deterrent for future acts of misconduct.

 

          (d)  When a person subject to the board’s disciplinary authority is found, after notice and opportunity for hearing, to have committed misconduct, the board shall impose sanctions after considering aggravating and mitigating factors including, but not limited to:

 

(1)  The seriousness of the offense;

 

(2)  The audiologist or hearing aid dealer’s prior disciplinary record;

 

(3)  The audiologist or hearing aid dealer’s state of mind at the time of the offense;

 

(4)  The audiologist or hearing aid dealer’s acknowledgment, or lack thereof, of his or her wrongdoing;

 

(5)  The audiologist or hearing aid dealer’s willingness to cooperate with the board;

 

(6)  The purpose of the rule or statute violated;

 

(7)  The nature and extent of the enforcement activities required of the board as a result of the offense;

 

(8)  The cost of any investigation or hearing conducted by the board; and

 

(9)  The audiologist or hearing aid dealer’s ability to pay the administrative fine.

 

          (e)  Copies of board orders imposing disciplinary sanctions and copies of all settlement agreements shall be sent to the licensing body of each state in which the audiologist or hearing aid dealer is licensed and to such other entities, organizations, associations, or boards as are required to be notified under applicable state or federal law.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 402.01)

 

          Hcp 404.02  Revocation.

 

          (a)  “Revocation” means the permanent and complete cancellation of any specially-conferred rights, authority, or privileges that were granted to an audiologist or hearing aid dealer through RSA 137-F.

 

          (b)  The most severe sanction, revocation, shall be imposed only for those cases in which:

 

(1)  An audiologist or hearing aid dealer fails to be physically present, as reasonably necessary to comply with the requirements of Hcp 502.01(f), to supervise a trainee when the trainee is with a patient and performs any procedure or procedures related to hearing or hearing aid device other than a rudimentary cleaning of such a device;

 

(2)  An audiologist or hearing aid dealer is convicted of any crime, the circumstances and facts of which lead the board to conclude that the audiologist or hearing aid dealer cannot be entrusted to  protect the  health of their clients;

 

(3)  An audiologist or hearing aid dealer has had his or her license or registration suspended 3 times previously and has committed another offense for which a suspension would otherwise have been appropriate;

 

(4)  An audiologist or hearing aid dealer has been determined to have willfully deceived the board regarding anything other than his or her application for licensure or registration;

 

(5)  An audiologist or hearing aid dealer has provided materially false information on his or her application for licensure or registration; or

 

(6)  An audiologist or hearing aid dealer’s license to practice in any other state has been revoked.

 

          (c)  The period for revocation shall be the remainder of the licensure period commencing from the latter of:

 

(1)  The date that the revocation goes into effect; or

 

(2)  The date on which no further appeal may be taken.

 

          (d)  An audiologist or hearing aid dealer whose license or registration has been revoked shall be barred from reapplying for a license or registration for 3 years after the date of revocation.  The revocation order shall specify the earliest date an application may be submitted.

 

          (e)  Upon receipt of a revocation order from the board, the audiologist or hearing aid dealer shall immediately cease holding him- or herself out to the public as an audiologist or hearing aid dealer.  Further, such audiologist or hearing aid dealer shall immediately cease engaging in any act for which licensure or certification issued pursuant to RSA 137-F is required.

 

          (f)  Failure to comply with (e) above, shall constitute separate grounds for further disciplinary action.

 

          (g)  A subsequent license or registration shall be obtained only after:

 

(1)  The passage of the amount of time specified in the revocation order;

 

(2)  Complying with all of the requirements of RSA 137-F and Hcp 300 regarding application for an initial license or certification;

 

(3)  Demonstrating that the cause for revocation does not exist at the time of the subsequent application; and

 

(4)  Demonstrating that any corrective actions that were ordered by the board have been fully implemented.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 402.02)

 

          Hcp 404.03  Suspension.

 

          (a)  “Suspension” means the temporary withdrawal of any specially-conferred rights, authority, or privileges that were granted to an audiologist or hearing aid dealer through RSA 137-F.

 

          (b)  The sanction of suspension shall be imposed only after notice and opportunity for a hearing in those cases in which the board determines that at least one of the following is true:

 

(1)  An audiologist or hearing aid dealer has failed to meet continuing education requirements;

 

(2)  An audiologist or hearing aid dealer has endangered the health of a patient;

 

(3)  An audiologist or hearing aid dealer has committed a violation after having been found, after notice and opportunity for hearing, to have committed 3 previous violations of any administrative rule or rules;

 

(4)  An audiologist or hearing aid dealer has failed to pay an administrative fine within 60 days of the fine being assessed after notice and opportunity for hearing; or

 

(5)  An audiologist or hearing aid dealer’s license to practice in any other state has been suspended;

 

          (c)  The minimum period for suspension shall be that amount of time necessary for the audiologist or hearing aid dealer to take corrective action ordered by the board and return to compliance.  Suspension shall have no effect upon the expiration of licensure or certification.  Specifically, suspension shall not cause expiration to be advanced or delayed.

 

          (d)  Upon receipt of a suspension order from the board, the audiologist or hearing aid dealer shall immediately cease holding himself or herself out to the public as an audiologist or hearing aid dealer.  Further, such audiologist or hearing aid dealer shall immediately cease engaging in any act for which licensure or registration is required until the board grants reinstatement pursuant to (f), below.

 

          (e)  Failure to comply with (d) above shall constitute separate grounds for further disciplinary action.

 

          (f)  An audiologist or hearing aid dealer seeking reinstatement shall petition the board, providing documentation of all corrective actions taken.  The board shall review the petition and supporting documentation and grant the petition if it determines that all corrective action ordered by the board has, in fact, been taken and the audiologist or hearing aid dealer has returned to compliance.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 402.03)

 

          Hcp 404.04  Administrative Fines.

 

          (a)  The sanction of administrative fine shall be imposed only after notice and opportunity for a hearing in those cases in which the board determines that misconduct has occurred.

 

          (b)  The board shall impose administrative fines as outlined in (d) below for any violation of RSA 137-F or the board’s rules.

 

          (c)  Nonpayment of an administrative fine in contravention of an order, agreement or promise to pay, shall be grounds for discipline by the board and a basis for judicial action seeking to collect the penalty.

 

          (d)  Administrative fines shall be imposed as follows:

 

(1)  For a first offense, $500.00;

 

(2)  For a second offense, $1,000.00; and

 

(3)  For any subsequent offense, $2,000.00.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (from Hcp 402.04)

 

          Hcp 404.05  Disciplinary Continuing Education.

 

          (a)  “Disciplinary continuing education” means any course or seminar that an apprentice or audiologist or hearing aid dealer is ordered, by the board, to take for the purpose of addressing a finding of misconduct based upon deficient skills, and which is in addition to the continuing education requirements set forth in Hcp 402.

 

          (b)  The sanction of disciplinary continuing education shall be imposed only after notice and opportunity for a hearing in those cases in which the board determines that the apprentice or audiologist or hearing aid dealer’s misconduct arose, at least in part, through deficient skills necessary for some aspect of his or her practice.

 

          (c)  The failure by an audiologist or hearing aid dealer to take the disciplinary continuing education ordered by the board shall be grounds for further discipline by the board.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17 (formerly Hcp 402.05)

 

PART Hcp 405  RENEWAL FEES

 

          Hcp 405.01  Fee Schedule for License and Registration Renewals.  The board’s fees for license and registration renewals shall be the fees set forth in Table 400-1.

 

Table 400-1  Fees Charged by the Board of Hearing Care Providers for License and Registration Renewals

 

Type of Fee

Fee

Audiologist license renewal

$300.00

Hearing aid dealer renewal

$300.00

Audiologist license restoration

$350.00

 

Source.  #12112, eff 2-21-17

 

CHAPTER Hcp 500  ETHICAL STANDARDS

 

PART Hcp 501  ETHICAL STANDARDS

 

          Hcp 501.01  Obligation To Obey.

 

          (a)  The ethical standards set forth in this part shall bind all licensed or registered practitioners.

 

          (b)  Conduct proscribed by these ethical standards, when performed by a licensed or registered person shall also be a basis for denying a renewal for license or registration.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 501.02  Standards of Conduct.  A licensed audiologist or a registered hearing aid dealer shall:

 

          (a)  Submit only truthful, correct and complete information in any application or other document filed with or statement made to the board;

 

          (b)  Inform the board of a principal business address to which all official board communications should be directed, and also of all addresses where the audiologist or hearing aid dealer is practicing;

 

          (c)  Report the establishment of a business address or the change or abandonment of a business address to the board within 30 days;

 

          (d)  Refrain from revealing information acquired in the course of treating a patient unless the patient consents to the release of the information or the release is ordered by a court;

 

          (e)  Offer no assistance to any dishonest practice or scheme such as preparing or verifying reports which support feigned or exaggerated claims of physical disability or the concealment of physical disability, regardless of the purpose for which the report is offered;

 

          (f)  Provide each patient with the highest degree of skill and care which he or she is capable, and otherwise maintain the health and welfare of the patient as the paramount objective of his or her practice;

 

          (g)  Continually endeavor to improve his or her skill and knowledge in the field of audiology or hearing aid dispensing, as appropriate, keep abreast of new developments in the field, and offer the same good quality of care to each patient treated;

 

          (h)  Report persons who might attempt to practice audiology without a license or dispense hearing aids without registration, and otherwise violate the laws or rules pertaining to the practice of audiology or hearing aid dispensing in New Hampshire;

 

          (i)  Annually calibrate any and all equipment utilized for the purpose of testing or evaluating a person’s hearing. Calibration records shall be retained for a period of 5 years and available to the board upon demand; and

 

(j)  Comply with the reporting requirements of the New Hampshire department of health and human services’ early hearing detection and intervention program as outlined in He-P 3008.15 – 3008.18.

 

Source.  #6935, eff 1-29-99, EXPIRED: 1-29-07

 

New.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

          Hcp 501.03  Mandatory Medical Referral.

 

          (a)  A licensed audiologist or registered hearing aid dealer shall refer a patient to a physician if the audiologist or hearing aid dealer determines by any method that the patient has or might have any of the following conditions:

 

(1)  Visible congenital or traumatic deformity of the outer ear;

 

(2)  History of active drainage from the ear within the previous 90 days;

 

(3)  History of sudden or rapidly progressive hearing loss with the previous 90 days;

 

(4)  Acute or chronic dizziness;

 

(5)  Unilateral hearing loss of sudden or recent onset with the previous 90 days;

 

(6)  Audiometric air-bone gap equal to or greater than 15 decibels at 500Hz, 1000Hz, and 2000Hz;

 

(7)  Visible evidence of significant cerumen accumulation or a foreign body in the ear canal; or

 

(8)  Pain or discomfort in the ear.

 

          (b)  An audiologist or hearing aid dealer shall have a duty to inquire or otherwise determine whether any of the conditions listed in (a) above are present.

 

Source.  #9338, eff 12-3-08; ss by #12112, eff 2-21-17

 

APPENDIX

 

Rule

Specific State Statute the Rule Implements

 

 

Hcp 101

RSA 541-A:8

Hcp 102

RSA 541-A:7 and RSA 541-A:8

Hcp 103.01

RSA 137-F:3, I

Hcp 103.02 & 103.03

RSA 541-A:16, I(a)

Hcp 104.01

RSA 91-A:2, II

Hcp 104.02

RSA 91-A:4, III

Hcp 104.03

RSA 91-A:4, IV

Hcp 105.01

RSA 541-A:16, I(a)

Hcp 105.02

RSA 137-F:3, VII

Hcp 106

RSA 137-F:4

 

 

Hcp 200

(Any provision of Hcp 200 not separately listed in this table is intended to implement RSA 541-A:16, I(b), generally.)

 

RSA 541-A:16, I(b)(2)

Hcp 201.01

RSA 541-A:8

Hcp 201.02

RSA 541-A:7 and RSA 541-A:8

Hcp 202

RSA 541-A:30-a, III(b)

Hcp 203

RSA 541-A:30-a, III(f)

Hcp 204

RSA 541-A:30-a, III(a)

Hcp 205.02

RSA 137-F:21, VIII

Hcp 206

RSA 137-F:6, XII; RSA 137-F:21

Hcp 207.01

RSA 541-A:8

Hcp 207.02

RSA 137-F:22, II and RSA 541-A:31, III

Hcp 207.04

RSA 541-A:32

Hcp 207.05

RSA 137-F:22, III

Hcp 207.06

RSA 541-A:32, V(b) – (d)

Hcp 207.07

RSA 541-A:30-a, III(c)

Hcp 207.08

RSA 137-F:21, V(a)

Hcp 207.09

RSA 541-A:33

Hcp 207.10

RSA 541-A:30-a, III(d) and (e)

Hcp 207.13

RSA 541-A:35

Hcp 207.15

RSA 541-A:36

Hcp 207.16(c)

RSA 541-A:30, III

Hcp 207.17

RSA 541-A:30-a, III(h)

Hcp 208.01

RSA 137-F:22, I and RSA 541-A:1, XIV

Hcp 208.03

RSA 541-A:30-a, III(k)

Hcp 208.05

RSA 541-A:34

Hcp 209

RSA 541-A:30-a, III(i)

Hcp 211

RSA 137-F:6, XII; RSA 137-F:21, IV

Hcp 212.01 – 212.03

RSA 541-A:16, I(c)

Hcp 212.04

RSA 541-A:16, I(b); RSA 541-A:11, VII

Hcp 213

RSA 541-A:16, I(b); RSA 541-A:22, IV

Hcp 214

RSA 541-A:16, I(d)

Hcp 215

RSA 541-A:16, I(b)(3)

 

 

Hcp 301.01 – 301.02

RSA 137-F:6, I, III; RSA 137-F:11; RSA 137-F:13

Hcp 301.03 – 301.04

RSA 137-F:6, III; RSA 137-F:11; RSA 137-F:13

Hcp 301.05 – 301.06

RSA 137-F:6, III

Hcp 302

RSA 137-F:6, III; RSA 137-F:14

Hcp 303

RSA 137-F:6, VI; RSA 137-F:15

Hcp 304.01 – 304.02

RSA 137-F:6, II; RSA 137-F:8

Hcp 304.03- 304.05

RSA 137-F:6, IV; RSA 137-F:8

Hcp 304.06 – 304.07

RSA 137-F:6, IV

Hcp 305

RSA 137-F:6, III and IV; RSA 137-F:8; RSA 137-F:11

Hcp 306

RSA 137-F:6, III-V

 

 

Hcp 401

RSA 137-F:8; RSA 137-F:13, III; RSA 137-F:20

Hcp 402

RSA 137-F:6, VIII and IX

Hcp 403

RSA 137-F:6, III and IV

Hcp 404

RSA 137-F:5, III and VI; RSA 137-F:31

Hcp 405

RSA 137-F:6, V

 

 

Hcp 500

RSA 137-F:6, III and IV, and RSA 137-F:21