Hearing Aid Regulation in Manitoba

Strategies to Enhance Consumer Protection and Involvement

May 12, 2003

Table of Contents

Introduction

Hearing aids are something we don’t typically think much about – until we need them. The Province of Manitoba regulates who can test for, fit and sell hearing aids to Manitobans through the Hearing Aid Act. The Act, first passed in 1972, is administered by the Consumers’ Bureau, located in Manitoba Finance.

SMD is concerned about the regulation of hearing aid dispensing in Manitoba for three reasons. First, many of SMD’s consumers need and use hearing aids. Secondly, SMD has a strong interest in making all aspects of the health care system more open and transparent, and particularly, in increasing consumer involvement in the governance of the health care system. SMD has been an active participant in the Coalition for Physician Profiles, which has successfully lobbied the Province of Manitoba to introduce a system which will allow health care consumers to have access to information about the practice history of their physicians. Thirdly, SMD operates Kildonan Hearing Centre, a non-profit organization, licensed as a Hearing Aid Dealer in Manitoba. SMD is therefore uniquely placed, having worked with the system both on behalf of consumers and as part of the regulated system.

This paper will address four questions about the regulation of hearing aid dispensing in Manitoba. These are:

Does the current system of hearing aid regulation offer the best possible consumer protection to Manitobans?

Does the current system of hearing aid regulation offer the best possible health protection to Manitobans?

Does the current system of hearing aid regulation offer a fair appeals procedure for consumers with complaints?

Does the current system offer a fair regulatory and appeals procedure for hearing aid dispensers?

The Regulation of Hearing Aid Dispensing in Manitoba

The Hearing Aid Act of Manitoba (Act) fulfills several purposes.

Firstly, it limits dispensing hearing aids to licensed Hearing Aid Dealers. With three exceptions, only persons licensed by the Board may be Hearing Aid Dealers. The exceptions to this rule are: medical doctors, audiologists employed by the federal or provincial governments and persons testing hearing where they are not directly or indirectly engaged in selling hearing aids.

Firstly, the Act defines a “Hearing Aid Dealer” any person engaged in

testing or measuring human hearing by audiometer or any other means for the purpose of selecting, adapting, recommending, or selling hearing aids, or

selling or offering for sale hearing aids, or

making impressions for earmolds to be used in connection with hearing aids (Section 1)

Secondly, the Act establishes the Hearing Aid Board (Board), which has the power to:

Section 3 (a) regulate and promote the education of Hearing Aid Dealers;
Section 3 (b) examine potential Hearing Aid Dealers;
Section 3 (c) certify Hearing Aid Dealers;
Section 3(d) set the qualifications for applicants for certification as Hearing Aid Dealers;
Section 3 (e) prescribe the qualifications required for certification of Hearing Aid Dealers Set fees for examination, certification and licensing Hearing Aid Dealers;
Section 3 (f) prescribe testing procedures for the calibration of audiometers;
Section 3 (g) prescribe records requirements for Hearing Aid Dealers;
Section 3 (h) prescribe rules of conduct and advertising for Hearing Aid Dealers;
Section 3(i) evaluate any hearing aid and publicize its findings;
Section 3 (j) withdraw certification where dealers fail to meet the requirements set out by the Board;

Section 8 (1) review complaints from the Director and:

Section 2(2) of the Act specifies that the Hearing Aid Board shall consist of seven people:

(a) the Deputy Minister of Health, or such other person as may be designated by Cabinet, who shall serve as Chair of the Board;

(b) the Director of the Consumers’ Bureau or his or her appointee, who shall serve as Secretary of the Board;

(c) a qualified otolaryngologist nominated by the University of Manitoba, or in the absence of such nomination, a person who is considered by the Minister responsible for the administration of the Act to be equally qualified; and

(d) four persons appointed by the Minister, at least one of whom shall be a Hearing Aid Dealer.

The current membership of the Board is as follows:

The Board Chair who is a private citizen [per 2(2) a]
The Board Secretary, who is an employee of the Consumers’ Bureau [per 2(2)b]
One otolaryngologist [per 2(2)c]
Three Hearing Aid Dealers [per 2(2) d]

There is currently one vacancy on the Board.

Currently, half of the members of the Board are Hearing Aid Dealers. Thus, although the Act did not specify that the dispensing of hearing aids should be regulated by a self-governing body, this has become the de facto practice.

Thirdly, the Act grants the Director of the Consumers’ Bureau powers to:

Section 6(1) investigate complaints under the Act;
Section 6(2) have access to business premises, documents, correspondence and records of Hearing Aid Dealers in order to investigate complaints;
Section 7(1) cancel the licence of a Hearing Aid Dealer, where the Board or the Director determines that there has been a breach of the Act, or where the Board has suspended or cancelled certification of a Hearing Aid Dealer ;
Section 7(1) prosecute a Hearing Aid Dealer, where the Board or the Director determines that there has been a breach of the Act, or where the Board has suspended or cancelled certification of a Hearing Aid Dealer;

Section 7(2) refer to the Board matters where the Director believes that there may have been a failure to comply with the requirements of competence or conduct prescribed by the Board

Hearing Aid Regulation 451/88 (Regulation) provides further direction as to the practice of Hearing Aid Dealers in Manitoba.

Section 13 of the Regulation specifies that they are required to:

maintain adequate hearing aid service facilities;

maintain a reasonable number of temporary substitute hearing aids;

ensure that all audiometric equipment is calibrated to A.N.S.I. (1969) standards; and

maintain a high standard of hygiene for all equipment, hearing aids and earmolds.

Section 14 of the Regulation sets out the ethical obligations of Hearing Aid Dealers, and prohibits the following:

(a) fraud or misrepresentation;

(b) employing anyone to perform any work covered by the Act who is not certified under the Act;

(d) advertising when the purpose of the advertisement is to obtain prospects for the sale of a different model or type than that advertised;

(e) representing that medical service or advice will be when that is not true, or using words such as "doctor", "clinic" which suggest the use of a medical professional when this is not the case;

(f) advertising a manufacturer's product or using a manufacturer's name or trademark which implies a relationship with the manufacturer that does not exist;

(g) giving or offering inducements to other professionals either to have them refer consumers to the Dealer or to discourage them from using the services of another Dealer;

(h) advertising a price for any hearing aid;

(i) using the term "lifetime" or any similar wording to imply length of anticipated performance of a hearing aid;

(j) using a name which will tend to mislead the public into believing that the business is a government agency or a non-profit medical, educational or research institution;

(k) using, without prior approval of the board, any term that suggests that hearing aids are custom made or made according to a medical prescription;

(l) any conduct that may alarm or frighten a person into purchasing a hearing aid;

(m) soliciting any person for the sale of a hearing aid through the conduct of surveys either personally, by telephone or in writing;

(n) soliciting sales outside of their place of business;

(o) conducting misleading or deceptive hearing tests;

(p) offering gifts, or any other benefits in return for the purchase of a hearing aid or, for assisting any attempt by the Hearing Aid Dealer to make a sale of a hearing aid to another person.

The Regulation also specifies further requirements for the certification of Dealers, student certification and record keeping.

Regulation in Other Provinces

Manitoba is one of several provinces which regulates the sale of hearing aids as a consumer protection issues. Saskatchewan takes a similar approach.

In 2001, British Columbia’s Health Professions Council reviewed the designation of Hearing Aid Dealers and Consultants and recommended that the hearing aid dealers not be designated as a health profession under B.C.’s Health Professions Act. They recommended that the Province continue with its current system of regulation by a re‑named Board of Hearing Aid Dispensers. They also recommended that the BC Act be amended to ensure that the discipline process followed by the Board conforms with that specified in the Health Professions Act, in order to ensure greater procedural fairness.

Taking a different approach, Alberta recently established a College of Hearing Aid Practitioners, under its Health Professions Act, to regulate the dispensing of hearing aids. This College is responsible for standards of practice. Where a consumer has a complaint, and where the consumer and the Hearing Aid Practitioner agree, the College can offer them alternative dispute resolution. However, the Office of the Ombudsman has responsibility for adjudicating consumer complaints about Hearing Aid Practitioners.

In Ontario, while prescribing hearing aids is a controlled act, the dispensing of hearing aids is not regulated. The Ministry of Health’s Assistive Devices Program, which partially covers the costs of hearing aids for Ontario residents, maintains a list of registered dispensers.

Protecting Hearing Aid Consumers

Manitoba has acknowledged the importance of protecting hearing aid consumers, taking the three measures described above:

limiting the dispensing hearing aids to licensed Hearing Aid Dealers
establishing the Hearing Aid Board
granting the Director of the Consumers’ Bureau the powers to:

investigate complaints;
launch prosecutions under the Act;
refer matters to the Board where it appears that the Act has been violated.

These measures, while an important beginning, are not, in themselves, sufficient to protect those who require hearing aids, for three main reasons:

the Act does not specify that the primary purpose of the Board is consumer protection;
consumers are not meaningful participants in the regulation of hearing aid dispensing in Manitoba;
the current structure does not conform to accepted standards of administrative fairness.

4.1 Consumer Protection and Participation

In 1994, the Manitoba Law Reform Commission published an excellent review of the issues involved in self-regulating professions. The Commission recommended a series of safeguards to ensure accountability and openness to the people of Manitoba, since:

self-government is a delegation of administrative powers by the people of Manitoba through their provincial government to a practitioner organization. One of the basic principles of a democracy is that those who hold delegated powers must be held responsible for their exercise. It follows, then, that self-governing bodies must be held accountable for their use of the powers granted to them.

Besides the theoretical need to hold self-governing bodies accountable, however, there are practical reasons for doing so. As we have noted, practitioners administering a regulatory regime find themselves in a conflict of interest; elected by their fellow practitioners, they are nonetheless to exercise their powers solely in the interests of the public. Even when their intentions are good, the consequences of the decisions of self-governing bodies may be detrimental to the public. Accountability will help to ensure that the public interest is served in their actions and improve public confidence that this is so. (emphasis added)

It is not apparent that the Board operates “solely in the interests of the public”. Rather, it appears that the Board has become the private domain of a small group of Hearing Aid Dealers in Manitoba. These Board members may

The Province should act to clarify the proper responsibilities of the Board. The Hearing Aid Act should be amended to add a new section dealing with the duties of the Board. This section should clearly make the protection of the public interest the primary responsibility of the Board.

The Board should also be required to develop and publish conflict of interest guidelines to ensure that Hearing Aid Dealers who are also Board members do not gain financially because of decisions in which they participated.

Language such as that in the BC Hearing Aid Act would meet this purpose well. The BC Act states:

3 (1) It is the duty of the board at all times

(a)to serve and protect the public, and

(b) to exercise its powers and discharge its responsibilities under all enactments in the public interest.

The Province should also act to ensure that hearing aid consumers are meaningfully represented on the Board. This would make the operation of the Hearing Aid Board consistent with modern practice in other such Boards. For example, both the College of Physicians and Surgeons and the College of Midwives are required under their respective Acts to have public representatives as one-third of the members of their Complaints Committees. One third of the members of the Council of the College of Midwives and four of nineteen members of the Council of the College of Physicians and Surgeons must also be public representatives.

It is recommended that the Province amend the Act to change the composition of the Board as follows:

one designate of the Minister of Health, to serve as Chair of the Board;
one otolaryngologist, nominated by the University of Manitoba;
one person nominated by Hearing Aid Dealers in Manitoba;
two users of hearing aids, to be nominated by the Canadian Hard of Hearing Association, Manitoba Chapter;
two other public representatives.

This structure has several advantages. It maintains the current Board size at seven. It ensures consumer representation on the Board. It maintains professional representation on the Board. It also removes any possibility of the Board becoming a self-regulating body of Hearing Aid Dealers.

4.2 Administrative Fairness

While the Director of the Consumers’ Bureau has the power under the Act to investigate complaints, it is the Board which has quasi-judicial powers to suspend or cancel the licenses of Hearing Aid Dealers. The Board should therefore operate using the established rules of natural justice and administrative fairness.

It is noteworthy that this process is described differently on the web site of the Government of Manitoba, where it states that “the Bureau investigates breaches of the Act while the Board may mediate complaints.”

(see http://www.gov.mb.ca/cca/consumb/acts/haa.html). In fact, the Act grants the Board no powers of mediation.

In the current system, the Director or designate conducts investigations, determines whether or not there are sufficient grounds to refer the matter to the Board and/or to prosecution and then sits as a member of the quasi-judicial tribunal (the Board) which determines the outcome of the case. This violates the legal principle nemo judex in sua causa debet esse , or, no one should be a judge in their own case. This is the rule which prohibits bias in the operation of quasi-judicial tribunals.

The Province should act immediately to remove the possibility of bias by separating the investigative role of the Director of the Consumers’ Bureau from the decision making role of the quasi-judicial Board. Neither the Director, nor other employees of the Bureau, should sit as members of the Board.

Our earlier recommendation that the Board be required to develop and publish Conflict of Interest Guidelines, will also help to ensure that members adhere to the nemo judex rule.

The second principle of natural justice which is important in the operation of the Board is audi alteram partem, or the right of all parties to receive notice of a hearing and to be given an opportunity to be represented or heard. The Board’s current informal style does not adhere this important rule, as neither appellants nor Hearing Aid Dealers currently have the right know the details of the case, nor to be represented at hearings. The Province should act to ensure that the Board is required to release all evidence related to a complaint to both parties, prior to the Board’s hearing of the case. Section 6(3) of the Act may have to be amended to specify that in this case, evidence collected in the course of an investigation is not confidential to the Board.

The Province should immediately direct the Hearing Aid Board to ensure that its practices conform with all of the principles of natural justice and administrative fairness. Training for Board members and staff will probably be necessary in order to accomplish this. The necessary expertise exists within Manitoba Justice and within other quasi‑judicial tribunals in Manitoba to assist the Board in meeting this requirement.

Hearing Aid Dealers faced with a complaint about their practice, and members of the public who may wish to make a complaint, should understand how the Board operates. It is therefore recommended that the Board be required to develop and publish an Operations Manual and a Policy Manual, both consistent with the principles of administrative fairness and natural justice described above. This Manual should be publicly available, in a variety of media.

Board members may need independent professional expertise to assist them in their deliberations. Provision should be made in the Act to enable the Board to retain independent professional experts as required in the hearing process.

Consistent with other public tribunals, the Board’s final decisions in all cases which come before it, both those originating from consumer complaints, and those originating from an investigation by the Bureau, should be publicly available, in a variety of formats. These decisions will be helpful both to Hearing Aid Dealers and to consumers.

A Fair Role for Hearing Aid Dealers

While the recommendations above will lessen the influence of Hearing Aid Dealers in the system, they will make the system fairer for all, including the Dealers.

Hearing Aid Dealers will benefit from these proposed changes because in many ways. For example:

Hearing Aid Dealers will benefit when the legislation is amended to ensure that consumer protection is the primary goal of the Board, since the reputation of one affects the reputation of all.
Hearing Aid Dealers will benefit from the real knowledge which consumers will bring to the complaints process.
Hearing Aid Dealers appearing before the Board will benefit from changes to the system to ensure that the rules of administrative fairness and natural justice are followed.
Hearing Aid Dealers will benefit from the development and publication of Operations and Policy Manuals.

Conclusions and Recommendations

The current system of regulating the dispensing of hearing aids in Manitoba is fair to neither consumers nor Hearing Aid Dealers. It requires change in order to make the operations of the Board consistent with reasonable expectations for consumer involvement and with the currently required standards of practice of quasi‑judicial tribunals in Canada.

The following changes should be made:

The Hearing Aid Act should be amended to add a new section dealing with the duties of the Board. This section should clearly make the protection of the public interest the primary responsibility of the Board.

The Board should be required to develop and publish conflict of interest guidelines to ensure that Hearing Aid Dealers who are also Board members do not gain financially because of decisions in which they participate.

The Province should act to ensure that hearing aid consumers are meaningfully represented on the Hearing Aid Board . The Act should be amended to require the following composition of the Board:
- one designate of the Minister of Health, to serve as Chair of the Board;
- one otolaryngologist, nominated by the University of Manitoba;
- one person nominated by Hearing Aid Dealers in Manitoba;
- two users of hearing aids, to be nominated by the Canadian Hard of Hearing Association, Manitoba Chapter;
- two other public representatives.

The Province should act immediately to remove the possibility of bias by separating the investigative role of the Director of the Consumers’ Bureau from the decision making role of the quasi-judicial Board. Neither the Director, nor other employees of the Bureau, should sit as members of the Board.

The Province should act to ensure that the Board is required to release all evidence related to a complaint to both parties, prior to the Board’s hearing of the case. Section 6(3) of the Act may have to be amended to specify that in this case, evidence collected in the course of an investigation is not confidential to the Board.

The Province should immediately direct the Hearing Aid Board to ensure that its practices conform with all of the principles of natural justice and administrative fairness and to provide Board members and staff with the necessary training to accomplish this.

The Board should be required to develop and publish an Operations Manual and a Policy Manual, both consistent with the principles of administrative fairness and natural justice described above.

Provision should be made in the Act to enable the Board to retain independent professional experts as required in the hearing process.

Consistent with other public tribunals, the Board’s final decisions all cases which come before it, both those originating from consumer complaints, and those originating from an investigation by the Bureau, should be publicly available, in a variety of formats.

See http://www.healthplanning.gov.bc.ca/leg/hpc/reports/apps-hearing.html

Manitoba Law Reform Commission, Regulating Professions and Occupations, 1994, page 56

British Columbia Hearing Aid Act, [RSBC 1996] Chapter 186