S.B. No. 953
AN ACT
1-1 relating to the licensing of persons who fit and dispense hearing
1-2 instruments; providing administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 1, Chapter 366, Acts of the 61st
1-5 Legislature, Regular Session, 1969 (Article 4566-1.01, Vernon's
1-6 Texas Civil Statutes), is amended to read as follows:
1-7 Sec. 1. Definitions. In this Act, unless the context
1-8 requires a different definition:
1-9 (1) <(a)> "Board" means the Texas Board of Health
1-10 <Examiners in the Fitting and Dispensing of Hearing Aids>.
1-11 (2) <(b)> "License" means license issued by the
1-12 committee <Board> under this Act to a person authorized to fit and
1-13 dispense hearing instruments <aids>.
1-14 (3) <(c)> "Temporary training permit <Training
1-15 Permit>" means a permit issued by the committee <Board> to persons
1-16 authorized to fit and dispense hearing instruments <aids> only
1-17 under the direct supervision of a person who holds a license under
1-18 this Act.
1-19 (4) <(d)> "Hearing instrument <aid>" means any
1-20 wearable instrument or device designed for, or represented as,
1-21 aiding, improving or correcting defective human hearing, but as
1-22 used herein shall not <mean repair services, replacements for
1-23 defective parts and shall not> include batteries or<,> cords <and
1-24 accessories>. The term includes the instrument's parts,
2-1 attachments, including earmolds, and accessories.
2-2 (5) <(e)> "Sell" or "sale" includes a transfer of
2-3 title or of the right to use by lease, bailment, or any other
2-4 contract. Provided, for the purpose of this Act, the term "sell"
2-5 or "sale" shall not include sales at wholesale by manufacturers to
2-6 persons licensed under this Act, or to distributors for
2-7 distribution and sale to persons licensed under this Act.
2-8 (6) <(f)> "Fitting and dispensing <Dispensing> hearing
2-9 instruments <aids>" means the measurement of human hearing by the
2-10 use of an audiometer or by any means for the purpose of making
2-11 selections, adaptations, or <and/or> sales of hearing instruments
2-12 <aids>. The term <also> includes the <sale of hearing aids, and
2-13 the> making of impressions for earmolds to be used as a part of the
2-14 hearing instrument and any necessary postfitting counseling for the
2-15 purpose of fitting and dispensing hearing instruments <aid>.
2-16 (7) <(g)> "30-day trial period" means the period in
2-17 which a person may cancel the purchase of a hearing instrument
2-18 <aid>.
2-19 (8) "Committee" means the State Committee of Examiners
2-20 in the Fitting and Dispensing of Hearing Instruments.
2-21 (9) "Department" means the Texas Department of Health.
2-22 (10) "Person" means an individual, corporation,
2-23 partnership, or other legal entity.
2-24 (11) "Apprentice permit" means a permit issued by the
2-25 committee to a person who meets the requirements of Section 9A of
2-26 this Act.
2-27 (12) "Supervisor" means a licensed hearing instrument
3-1 dispenser who has an established place of business, is responsible
3-2 for the direct supervision and education of a temporary training
3-3 permit holder, and meets the qualifications established by this
3-4 Act.
3-5 (13) "Direct supervision" means the physical presence
3-6 of the supervisor any time a temporary permit holder is engaged in
3-7 services related to the fitting, dispensing, and sales of hearing
3-8 instruments.
3-9 SECTION 2. Chapter 366, Acts of the 61st Legislature,
3-10 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
3-11 Civil Statutes), is amended by adding Section 1A to read as
3-12 follows:
3-13 Sec. 1A. POLICY. It is the policy of this state to:
3-14 (1) safeguard the health and welfare of the
3-15 communicatively handicapped people of this state from the
3-16 dispensing of hearing instruments by unskilled or unprincipled
3-17 practitioners;
3-18 (2) establish and enforce standards of practitioner
3-19 competency;
3-20 (3) provide regulatory authority over practitioners
3-21 offering hearing instrument dispensing services to the public; and
3-22 (4) ensure professional ethical conduct in the
3-23 dispensing of hearing aid devices or instruments.
3-24 SECTION 3. Section 2, Chapter 366, Acts of the 61st
3-25 Legislature, Regular Session, 1969 (Article 4566-1.02, Vernon's
3-26 Texas Civil Statutes), is amended to read as follows:
3-27 Sec. 2. COMMITTEE MEMBERSHIP <BOARD OF EXAMINERS>. (a) The
4-1 State Committee <Texas Board> of Examiners in the Fitting and
4-2 Dispensing of Hearing Instruments <Aids> is within the Texas
4-3 Department of Health and is <hereby created. The Board shall be>
4-4 composed of nine members appointed by the governor <Governor> with
4-5 the advice and consent of the senate <Senate>. Appointments shall
4-6 be made without regard to the race, creed, sex, religion, or
4-7 national origin of the appointees. The committee <Board> members
4-8 must have the following qualifications<, to-wit>:
4-9 (1) six committee <Five of such> members must <shall>
4-10 possess a hearing instrument dispenser's license under this Act
4-11 <the necessary qualifications to fit and dispense hearing aids in
4-12 this state> and have been residents of this state actually engaged
4-13 in fitting and dispensing hearing instruments <aids> for at least
4-14 five years <immediately> preceding their appointment; no more than
4-15 two persons licensed under Chapter 381, Acts of the 68th
4-16 Legislature, Regular Session, 1983 (Article 4512j, Vernon's Texas
4-17 Civil Statutes), and its subsequent amendments, are eligible to
4-18 serve as members of the committee<. No more than two of such five
4-19 members shall be employed by, franchised by, or associated
4-20 exclusively with the same hearing aid manufacturer>;
4-21 (2) two committee <Two Board> members must be members
4-22 of the general public, each of whom<. A person> is eligible for
4-23 appointment as a public member only if the person and the person's
4-24 spouse are not licensed by an occupational regulatory agency in the
4-25 field of health care; are not employed by and do not participate in
4-26 the management of a business entity or other organization that
4-27 provides health-care services or that sells, manufactures, or
5-1 distributes health-care supplies or equipment; and do not own,
5-2 control, or have, directly or indirectly, an interest in a business
5-3 entity or other organization that provides health-care services or
5-4 that sells, manufactures, or distributes health-care supplies or
5-5 equipment; and
5-6 (3) one committee member must <One of such members
5-7 shall> be a citizen of the United States and a resident of this
5-8 state for <a period of> at least two years <immediately> preceding
5-9 the person's <his> appointment, <shall> be an active practicing
5-10 physician or surgeon <duly> licensed to practice in this state by
5-11 the Texas State Board of Medical Examiners, and specialize in the
5-12 practice of otolaryngology and may <. Such member shall> not have
5-13 a financial interest in a hearing instrument <aid> manufacturing
5-14 company or a wholesale or retail hearing instrument <aid> company<;
5-15 and>
5-16 <(4) One of such members shall be a citizen of the
5-17 United States and a resident of this state for a period of at least
5-18 two years immediately preceding his appointment and shall be an
5-19 active practicing audiologist. Such member shall not have a
5-20 financial interest in a hearing aid manufacturing company or a
5-21 wholesale or retail hearing aid company>.
5-22 (b) One who has served two full consecutive terms on the
5-23 committee is <Board shall> not <be> eligible for a reappointment to
5-24 the committee <Board> for <a period of> 12 months immediately
5-25 following the expiration of the second full term.
5-26 (c) In the event of death, resignation, or removal of any
5-27 members, the vacancy of the unexpired terms shall be filled by the
6-1 governor <Governor> in the same manner as other appointments. Each
6-2 appointee to the committee <Board> shall, within 15 days after
6-3 <from> the date of <his> appointment, qualify by taking the
6-4 constitutional oath of office. Upon presentation of the <such>
6-5 oath, the secretary of state <Secretary of State> shall issue
6-6 commissions to appointees as evidence of their authority to act as
6-7 members of the committee <Board>.
6-8 (d) Members hold office for staggered terms of six years,
6-9 and each member shall continue until a successor is appointed and
6-10 qualifies.
6-11 (e) <The Board shall be represented by the Attorney General
6-12 and the District and County Attorneys of the state.>
6-13 <(f)> A person who is required to register as a lobbyist
6-14 under Chapter 305, Government Code, may not serve as a member of
6-15 the committee <Board> or act as the general counsel to the
6-16 committee <Board>.
6-17 (f) <(g)> A member or employee of the committee <Board> may
6-18 not be an officer, employee, or paid consultant of a statewide or
6-19 national trade association in the hearing instrument <aid>
6-20 industry. A member or employee of the committee <Board> may not be
6-21 related within the second degree by affinity or consanguinity, as
6-22 determined under Article 5996h, Revised Statutes, to a person who
6-23 is an officer, employee, or paid consultant of a statewide or
6-24 national trade association in the regulated industry.
6-25 (g) <(h)> It is a ground for removal from the committee
6-26 <Board> if a member:
6-27 (1) does not have at the time of appointment the
7-1 qualifications required by Subsection (a) of this section for
7-2 appointment to the committee <Board>;
7-3 (2) does not maintain during his service on the
7-4 committee <Board> the qualifications required by Subsection (a) of
7-5 this section for appointment to the committee <Board>;
7-6 (3) violates a prohibition established by Subsection
7-7 (e) or (f) <or (g)> of this section; or
7-8 (4) fails to attend at least half of the regularly
7-9 scheduled committee <Board> meetings held in a calendar year,
7-10 excluding meetings held while the person was not a committee
7-11 <Board> member.
7-12 (h) <(i)> The validity of an action of the committee <Board>
7-13 is not affected by the fact that it was taken when a ground for
7-14 removal of a member of the committee <Board> existed.
7-15 (i) <(j)> The State Committee <Texas Board> of Examiners in
7-16 the Fitting and Dispensing of Hearing Instruments <Aids> is subject
7-17 to Chapter 325, Government Code (Texas Sunset Act). Unless
7-18 continued in existence as provided by that chapter, the committee
7-19 <board> is abolished and this Act expires September 1, 2005 <1993>.
7-20 (j) <(k)> The committee <Board> is subject to the open
7-21 meetings law, Chapter 271, Acts of the 60th Legislature, Regular
7-22 Session, 1967, as amended (Article 6252-17, Vernon's Texas Civil
7-23 Statutes), and the Administrative Procedure and Texas Register Act,
7-24 as amended (Article 6252-13a, Vernon's Texas Civil Statutes).
7-25 SECTION 4. Section 3, Chapter 366, Acts of the 61st
7-26 Legislature, Regular Session, 1969 (Article 4566-1.03, Vernon's
7-27 Texas Civil Statutes), is amended to read as follows:
8-1 Sec. 3. COMMITTEE <BOARD> ORGANIZATION AND MEETINGS.
8-2 (a) Within 60 days after <their> appointment and qualification the
8-3 initial committee <Board> shall hold its first meeting and elect a
8-4 president and vice-president <President, Vice-President, and
8-5 Secretary-Treasurer>. The term of office for all officers of the
8-6 committee <Board> shall be for a period of one year.
8-7 (b) The committee <Board> shall hold regular meetings at
8-8 least twice a year <at which an examination of applicants for
8-9 license shall be given>. Special meetings of the committee <Board>
8-10 shall be held upon request of a majority of the members or upon the
8-11 call of the president <President>. A majority of the committee
8-12 <Board> shall constitute a quorum <for the transaction of business
8-13 and should a quorum not be present on the day appointed for any
8-14 meeting, those present may adjourn from day to day until a quorum
8-15 be present provided such period shall not be longer than three
8-16 successive days>.
8-17 SECTION 5. Section 4, Chapter 366, Acts of the 61st
8-18 Legislature, Regular Session, 1969 (Article 4566-1.04, Vernon's
8-19 Texas Civil Statutes), is amended to read as follows:
8-20 Sec. 4. POWERS AND DUTIES OF THE COMMITTEE <BOARD>.
8-21 (a) Subject to the approval of the board, the committee <The
8-22 Board> shall have the power to make <such> procedural rules
8-23 consistent with this Act as may be necessary for the performance of
8-24 its duties.
8-25 (b) The committee <Board> shall have the power to appoint
8-26 subcommittees <committees> from its own membership<, the duties of
8-27 which shall be> to consider <such> matters<,> pertaining to the
9-1 enforcement of this Act<,> as shall be referred to the
9-2 subcommittees by the committee. The subcommittees <said
9-3 committees, and they> shall make recommendations to the committee
9-4 <Board in respect thereto>.
9-5 (c) With the assistance of the department, the committee
9-6 shall:
9-7 (1) administer, coordinate, and enforce the provisions
9-8 of this Act;
9-9 (2) evaluate the qualifications of applicants;
9-10 (3) examine applicants; and
9-11 (4) issue subpoenas, examine witnesses, and administer
9-12 oaths under the laws of this state.
9-13 (d) The committee shall conduct hearings and keep records
9-14 and minutes necessary to the orderly administration <The Board
9-15 shall have the power to employ the services of stenographers,
9-16 inspectors, agents, attorneys, and other necessary assistants in
9-17 carrying out the provisions> of this Act with the assistance of the
9-18 department and subject to the Administrative Procedure and Texas
9-19 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
9-20 its subsequent amendments.
9-21 (e) The board, with the aid of the department, shall
9-22 investigate a person that engages in practices that violate this
9-23 Act.
9-24 (f) A license holder under this Act is subject to the rules
9-25 adopted by the committee and approved by the board under this Act.
9-26 (g) The committee by rule shall adopt requirements for the
9-27 continuing education of a license holder under this Act. The
10-1 committee shall approve not less than five hours of specific
10-2 courses of instruction annually.
10-3 <(d) The Board, by majority vote, shall have the power to
10-4 issue subpoenas and subpoenas duces tecum to compel the attendance
10-5 of witnesses and the production of books, records and documents, to
10-6 administer oaths and to take testimony concerning all matters
10-7 within its jurisdiction.>
10-8 <(e) The Board shall have the right to institute an action
10-9 in its own name to enjoin the violation of any of the provisions of
10-10 this Act. Said action for injunction shall be in addition to any
10-11 other action, proceeding or remedy authorized by law.>
10-12 <(f) The Board is charged with the duty of aiding in the
10-13 enforcement of this Act, and any member of the Board may present to
10-14 the Attorney General or a County or District Attorney of this state
10-15 complaints relating to violations of any provision of this Act; and
10-16 the Board through the members, officers, counsel, and agents may
10-17 assist in the trial of any case involving alleged violations of
10-18 this Act, subject to the control of the Attorney General, County
10-19 Attorney, or District Attorney charged with the responsibility of
10-20 prosecuting such case.>
10-21 <(g) Before entering upon the discharge of the duties of
10-22 such office, the Secretary-Treasurer of the Board shall give such
10-23 bond for the performance of this duty as the Board may require, the
10-24 premium of such bond is to be paid from any available funds.>
10-25 <(h) The Board shall adopt an official seal and the form of
10-26 a license of suitable design and shall have an office where all the
10-27 permanent records shall be kept.>
11-1 <(i) The Board by rule shall adopt requirements for the
11-2 continuing education of licensees under this Act in subjects
11-3 pertaining to the fitting and dispensing of hearing aids. The
11-4 Board by rule may approve specific courses of instruction or
11-5 establish minimum content requirements of courses of continuing
11-6 professional education and provide programs for continuing
11-7 education.>
11-8 SECTION 6. Section 4A, Chapter 366, Acts of the 61st
11-9 Legislature, Regular Session, 1969 (Article 4566-1.04A, Vernon's
11-10 Texas Civil Statutes), is amended to read as follows:
11-11 Sec. 4A. COMMITTEE EMPLOYEES <PERSONNEL POLICIES>.
11-12 <(a)> The department shall provide administrative and clerical
11-13 employees necessary to implement the provisions of this Act
11-14 <President of the Board or his designee shall develop an
11-15 intraagency career ladder program, one part of which shall be the
11-16 intraagency posting of all nonentry level positions for at least 10
11-17 days before any public posting.>
11-18 <(b) The President of the Board or his designee shall
11-19 develop a system of annual performance evaluations based on
11-20 measurable job tasks. All merit pay for Board employees must be
11-21 based on the system established under this subsection.>
11-22 <The Board may recognize, prepare, or carry out continuing
11-23 education programs for its licensees. Participation in the
11-24 programs is voluntary>.
11-25 SECTION 7. Section 5, Chapter 366, Acts of the 61st
11-26 Legislature, Regular Session, 1969 (Article 4566-1.05, Vernon's
11-27 Texas Civil Statutes), is amended to read as follows:
12-1 Sec. 5. SEAL AND AUTHENTICATION OF Records. <(a)> The
12-2 committee <Board> shall adopt a seal that the committee shall use
12-3 to authenticate its proceedings <preserve an accurate record of all
12-4 meetings and proceedings of the Board>.
12-5 <(b) A record shall be kept showing the name, age and
12-6 present legal and mailing address of each applicant for
12-7 examination. The record shall also show whether applicants were
12-8 rejected or licensed and shall be prima facie evidence of all
12-9 matters therein contained.>
12-10 <(c) The Secretary-Treasurer of the Board shall on or before
12-11 March 1st of each year send a certified copy of such record to the
12-12 Secretary of State for permanent record. A certified copy of said
12-13 record with the hand and seal of the Secretary-Treasurer of the
12-14 Board to the Secretary of State, shall be admitted as evidence in
12-15 all courts.>
12-16 <(d) The Board shall keep a record of each license issued
12-17 under this Act containing the name, residence, place of business of
12-18 the person to whom each license has been issued, and the date of
12-19 issuance of each of such license and all information pertaining to
12-20 renewals, revocations and suspensions of such licensee.>
12-21 SECTION 8. Section 6, Chapter 366, Acts of the 61st
12-22 Legislature, Regular Session, 1969 (Article 4566-1.06, Vernon's
12-23 Texas Civil Statutes), is amended to read as follows:
12-24 Sec. 6. Examination: Application. (a) Except as provided
12-25 in Subsection (h) of this section, each <Every> person desiring to
12-26 engage in fitting and dispensing hearing instruments <aids> in this
12-27 state must <the State of Texas shall be required to> pass an
13-1 examination given by the committee <Texas Board of Examiners in the
13-2 Fitting and Dispensing of Hearing Aids>.
13-3 (b) The applicant must <shall> make application<,
13-4 furnishing> to the committee <Secretary-Treasurer of the Board> on
13-5 forms to be furnished by the committee <Board>, including sworn
13-6 evidence that the applicant <he> has attained the age of majority
13-7 and has graduated from an accredited high school or equivalent<,>
13-8 and providing <such> other information as the committee <Board> may
13-9 deem necessary for the enforcement of this Act.
13-10 (c) The examination must <shall> consist of written, oral,
13-11 or practical tests that are <shall be> objective in method and
13-12 applied in a consistent manner. The examination shall be
13-13 administered at least twice a year. The committee shall administer
13-14 or arrange for the administration of a written examination. All
13-15 examinations shall be validated by an independent testing
13-16 professional. The examination must <shall> cover the following
13-17 areas as they relate to the fitting and dispensing of hearing
13-18 instruments <aids>:
13-19 (1) basic <Basic> physics of sound;
13-20 (2) <The> structure and function of hearing
13-21 instruments <aids>;
13-22 (3) fitting <Fitting> of hearing instruments <aids>;
13-23 (4) pure <Pure> tone audiometry, including air
13-24 conduction testing and bone conduction testing;
13-25 (5) live <Live> voice and recorded <and/or record>
13-26 voice speech audiometry;
13-27 (6) masking <Masking> when indicated for air
14-1 conduction, bone conduction, and speech;
14-2 (7) recording <Recording> and evaluation of audiograms
14-3 and speech audiometry to determine the hearing instrument <aid>
14-4 candidacy;
14-5 (8) selection <Selection> and adaption of hearing
14-6 instruments, <aids and> testing of hearing instruments, and
14-7 verification of aided hearing instrument performance <aids>; <and>
14-8 (9) taking <Taking> of earmold impressions;
14-9 (10) verification of hearing instrument fitting and
14-10 functional gain measurements using a calibrated system;
14-11 (11) anatomy and physiology of the ear;
14-12 (12) counseling and aural rehabilitation of the
14-13 hearing impaired for the purpose of fitting and dispensing hearing
14-14 instruments;
14-15 (13) using an otoscope for the visual observation of
14-16 the entire ear canal; and
14-17 (14) laws, rules, and regulations of this state and
14-18 the United States.
14-19 (d) The <No part of the> examination may not test <shall
14-20 consist of tests requiring> knowledge of the diagnosis or <and/or>
14-21 treatment of any disease or injury to the human body.
14-22 (e) Each applicant shall be given due notice of the date and
14-23 place of the examination and the subjects, areas, and <and/or>
14-24 skills that will be included in the <within such> examination, and
14-25 there shall be no changes in those <said> subjects, areas, and
14-26 <and/or> skills after the date of the examination has been
14-27 announced and publicized. All examinations shall be conducted in
15-1 writing and by such other means as the committee <Board> shall
15-2 determine adequate to ascertain the qualifications of applicants.
15-3 Upon reexamination, a person who has previously failed shall be
15-4 examined only on those portions of the examination that the person
15-5 <which he> failed. Every applicant successfully passing the
15-6 examination and meeting all the requirements of this Act shall be
15-7 registered by the committee <Board> as possessing the
15-8 qualifications required by this Act and shall be issued an
15-9 apprentice permit <receive from the Board a license> to fit and
15-10 dispense hearing instruments <aids> in this state.
15-11 (f) The committee <Board>, in its discretion, may refuse to
15-12 examine an applicant who <if he> has been convicted of <a felony
15-13 or> a misdemeanor that involved moral turpitude or a felony.
15-14 (g) Within 30 days after the date a licensing examination is
15-15 administered under this Act, the committee <Board> shall notify
15-16 each examinee of the results of the examination. However, if an
15-17 examination is graded or reviewed by a national testing service,
15-18 the committee <Board> shall notify each examinee of the results of
15-19 the examination within two weeks after the date the committee
15-20 <Board> receives the results from the testing service. If the
15-21 notice of the examination results will be delayed for more than 90
15-22 days after the examination date, the committee <Board> shall notify
15-23 each examinee of the reason for the delay before the 90th day. If
15-24 requested in writing by a person who fails the licensing
15-25 examination administered under this Act, the committee <Board>
15-26 shall furnish the person with an analysis of the person's
15-27 performance on the examination.
16-1 (h) A person who is licensed under Chapter 381, Acts of the
16-2 68th Legislature, Regular Session, 1983 (Article 4512j, Vernon's
16-3 Texas Civil Statutes), and its subsequent amendments, as an
16-4 audiologist or an audiology intern is exempt from the examination.
16-5 SECTION 9. Section 8, Chapter 366, Acts of the 61st
16-6 Legislature, Regular Session, 1969 (Article 4566-1.08, Vernon's
16-7 Texas Civil Statutes), is amended to read as follows:
16-8 Sec. 8. Reciprocal arrangements. (a) On <Upon> proper
16-9 application, the committee <Texas Board of Examiners in Fitting and
16-10 Dispensing of Hearing Aids> shall grant a license to fit and
16-11 dispense hearing instruments <aids> without requiring an
16-12 examination to license holders <licentiates> of other states or
16-13 territories having requirements equivalent to or higher than those
16-14 in effect under <pursuant to> this Act for fitting and dispensing
16-15 hearing instruments <aids>.
16-16 (b) Applications for license under the provisions of this
16-17 section must <shall> be in writing and on <upon> a form prescribed
16-18 by the committee <Board>. An application <Such applications> shall
16-19 be filed with the committee <Secretary-Treasurer of the Board>.
16-20 The application shall be accompanied by documentation that clearly
16-21 shows that the state, territory, or other authority under which the
16-22 applicant was practicing has minimum requirements equivalent to or
16-23 higher than those in effect under this Act <a license or a
16-24 certified copy of a license to fit and dispense hearing aids,
16-25 lawfully issued to the applicant by some other state or territory;
16-26 and shall also be accompanied by an affidavit of the President or
16-27 Secretary of the Board of Examiners in Fitting and Dispensing
17-1 Hearing Aids who issued the license. The affidavit shall recite
17-2 that the accompanying certificate or license has not been cancelled
17-3 or revoked, and that the statement of qualifications made in this
17-4 application for license in Texas is true and correct>.
17-5 (c) In addition to any other documentation required by the
17-6 committee, the committee shall request all written records from the
17-7 state, territory, or authority under which the applicant was
17-8 practicing regarding the applicant, including a copy of the written
17-9 examination, the practicum examination, the outline of the oral
17-10 examination, and any other information necessary for the
17-11 committee's decision <Applicants for a license under the provisions
17-12 of this section shall subscribe to an oath in writing which shall
17-13 be a part of said application, stating that the license,
17-14 certificate or authority under which the applicant fits and
17-15 dispenses hearing aids in the state or territory from which the
17-16 applicant is removed, was at that time of such removal in full
17-17 force and not suspended or cancelled; that the applicant is the
17-18 identical person to whom the said certificate or license was issued
17-19 and that no proceeding was pending at the time of such removal, or
17-20 at the present time pending against the applicant for the
17-21 cancellation, suspension or revocation or such certificate or
17-22 license in the state or territory in which the same was issued and
17-23 that no prosecution was then or at the time of application pending
17-24 against the applicant in any state or federal court for any offense
17-25 under the laws of Texas which is a felony>.
17-26 SECTION 10. Section 9, Chapter 366, Acts of the 61st
17-27 Legislature, Regular Session, 1969 (Article 4566-1.09, Vernon's
18-1 Texas Civil Statutes), is amended to read as follows:
18-2 Sec. 9. Temporary training permit. (a)(1) The committee
18-3 <Board> shall grant a temporary training permit to fit and dispense
18-4 hearing instruments <aids> to any person applying to the committee
18-5 <Board> who has never taken the examination provided in the Act and
18-6 who possesses the qualifications in Subsection (b) of Section 6<,>
18-7 of this Act, on <upon> written application to the committee. The
18-8 <Secretary Treasurer of the Board, the> applicant must <shall> make
18-9 application on forms to be furnished by the committee <Board>
18-10 furnishing sworn evidence that the applicant <he> possesses the
18-11 qualifications contained in Subsection (b), Section 6, of this Act,
18-12 that the applicant <he> has never taken the examination provided in
18-13 this Act, and that the applicant <he> has never previously been
18-14 issued in this state a temporary training permit to fit and
18-15 dispense hearing instruments <aids by the Board>.
18-16 (2) Students of audiology in an accredited college or
18-17 university program are exempt from the provisions of this Act,
18-18 provided that their activities and services constitute a part of
18-19 their supervised course of study or practicum experience. Such
18-20 students are subject to the provisions of Chapter 381, Acts of the
18-21 68th Legislature, Regular Session, 1983 (Article 4512j, Vernon's
18-22 Texas Civil Statutes), and its subsequent amendments.
18-23 (b) The application for a temporary training permit must
18-24 <shall> be accompanied by the affidavit of a person <duly> licensed
18-25 and qualified to fit and dispense hearing instruments <aids> in
18-26 this state. The accompanying affidavit must <shall> state that the
18-27 applicant, if granted a temporary training permit, will be
19-1 supervised by the affiant in all work done by the applicant under
19-2 the <such> temporary training permit and<,> that the affiant will
19-3 notify the committee <Board> within 10 days following the
19-4 applicant's terminating of supervision by the affiant.
19-5 (c) A temporary training permit shall authorize the permit
19-6 holder <thereof,> to fit and dispense hearing instruments <aids>
19-7 for a period of one year or until the permit holder <thereof> shall
19-8 have successfully passed the examination required for a license
19-9 under this Act, whichever occurs first.
19-10 (d) A temporary training permit <shall> automatically
19-11 becomes <become> void on the first anniversary <at the end> of the
19-12 <period of 6 months from the> date of its issuance unless extended
19-13 for an additional period not to exceed 6 months by the committee
19-14 <Board>. The committee may not <Board shall never> extend a
19-15 temporary training permit more than one time.
19-16 (e) The committee <Board> shall establish educational
19-17 guidelines, both formal and practical, for the training of
19-18 temporary training permit holders. The training guidelines must
19-19 <shall> include directions to the training supervisor about the
19-20 subject matter to be taught, length of the training <period>,
19-21 extent of a trainee's <trainee> contact with the public, and
19-22 responsibility of the training supervisor for direct supervision of
19-23 all aspects of the training <period>. A trainee shall be required
19-24 to have at least 150 hours of directly supervised practicum that
19-25 shall include the following:
19-26 (1) 25 hours of pure tone air conduction, bone
19-27 conduction, and speech audiometry, recorded and live voice;
20-1 (2) 25 hours of hearing instrument evaluations
20-2 including sound field measurements with recorded and live voice;
20-3 (3) 20 hours of instrument fittings with actual
20-4 clients;
20-5 (4) 10 hours of earmold orientation types, uses, and
20-6 terminology;
20-7 (5) 15 hours of earmold impressions and otoscopic
20-8 examinations of the ear;
20-9 (6) 15 hours of troubleshooting of defective hearing
20-10 instruments;
20-11 (7) 20 hours of case history with actual clients;
20-12 (8) 10 hours of the laws governing the licensing of
20-13 persons fitting and dispensing hearing instruments and federal Food
20-14 and Drug Administration and Federal Trade Commission regulations
20-15 relating to the fitting and dispensing of hearing instruments; and
20-16 (9) 10 hours of supplemental work in one or more of
20-17 the above areas.
20-18 (f) The length of the training may not be shorter than 200
20-19 days. The training period begins on the date of the issuance of
20-20 the temporary permit.
20-21 (g) Satisfactory completion of the requirements of this
20-22 section by a supervisor and trainee must be verified before the
20-23 trainee may take the examination.
20-24 (h) A supervisor of a temporary training permit holder must
20-25 be licensed under this Act. Supervision of a permit holder shall
20-26 entail direct supervision by the supervisor. A supervisor may not
20-27 supervise more than two trainees at any one time.
21-1 (i) A supervisor under this Act shall:
21-2 (1) be responsible for the day-to-day supervision of a
21-3 trainee and be ultimately responsible for the service to a client
21-4 treated by the trainee;
21-5 (2) provide the trainee with materials and equipment
21-6 necessary for appropriate audiometric and hearing instrument
21-7 evaluation and fitting procedures;
21-8 (3) supplement the trainee's background information
21-9 through reading lists and other references;
21-10 (4) be responsible for conducting in-service training
21-11 for the trainee;
21-12 (5) act as a consultant to the trainee by providing
21-13 time for conferences for the trainee and providing a variety of
21-14 resource materials, approaches, and techniques that are based on
21-15 sound theory, successful practice, or documented research;
21-16 (6) establish goals with the trainee that are
21-17 realistic, easily understandable, and directed toward the
21-18 successful completion of trainee requirements;
21-19 (7) observe the trainee during the practicum, confer
21-20 with the trainee following trainee contact with clients, and
21-21 provide an opportunity for the trainee to comment on the practicum
21-22 experience, during and after the practicum experience, either in
21-23 writing or through conferences;
21-24 (8) establish that the responsibility for the
21-25 trainee's practicum is solely that of the supervisor and that the
21-26 daily supervision of the trainee is also the responsibility of the
21-27 supervisor;
22-1 (9) assist and encourage the trainee to utilize
22-2 supportive professional sources;
22-3 (10) be aware of and adhere to state and federal laws
22-4 relating to hearing instrument fitting and dispensing; and
22-5 (11) be aware of and assist the trainee in fulfilling
22-6 licensing requirements of this Act.
22-7 (j) A temporary training permit holder may not:
22-8 (1) own, manage, or independently operate a business
22-9 that engages in the fitting or sale of hearing instruments; or
22-10 (2) advertise or otherwise represent that the permit
22-11 holder holds a license as a hearing instrument dispenser.
22-12 (k) On the request of either a supervisor or a trainee, the
22-13 committee may approve a transfer of a trainee from the trainee's
22-14 supervisor to another eligible supervisor before the completion of
22-15 training. A transfer request must be acted on by the committee at
22-16 the first available committee meeting after the request. The
22-17 committee may approve a second transfer before the completion of
22-18 the training program only under exceptional circumstances and may
22-19 not approve a subsequent transfer. If a transfer is approved,
22-20 credit may be transferred at the discretion of the committee.
22-21 SECTION 11. Chapter 366, Acts of the 61st Legislature,
22-22 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
22-23 Civil Statutes), is amended by adding Section 9A to read as
22-24 follows:
22-25 Sec. 9A. APPRENTICE PERMIT. (a) A temporary training
22-26 permit holder who has taken all parts of the examination given by
22-27 the committee and has passed all parts of the examination with a
23-1 score of 70 percent or greater shall be issued an apprentice permit
23-2 to fit and dispense hearing instruments. An apprentice permit
23-3 remains valid for one year unless it is extended by the committee
23-4 for an additional period not to exceed six months.
23-5 (b) An apprentice permit holder shall work under the
23-6 supervision of a licensed hearing instrument dispenser for at least
23-7 one year. During the apprentice year, the apprentice permit holder
23-8 shall complete 18 hours of classroom continuing education in
23-9 subjects required by the committee.
23-10 (c) A hearing instrument dispenser's license shall be issued
23-11 to an apprentice permit holder when the committee has received
23-12 sufficient evidence that the apprentice permit holder has met all
23-13 the requirements of this Act for a hearing instrument dispenser's
23-14 license. Audiologists and audiology interns licensed under Chapter
23-15 381, Acts of the 68th Legislature, Regular Session, 1983 (Article
23-16 4512j, Vernon's Texas Civil Statutes), and its subsequent
23-17 amendments, are exempt from the provisions of this Act.
23-18 SECTION 12. Section 10, Chapter 366, Acts of the 61st
23-19 Legislature, Regular Session, 1969 (Article 4566-1.10, Vernon's
23-20 Texas Civil Statutes), is amended to read as follows:
23-21 Sec. 10. GROUNDS FOR DISCIPLINARY ACTIONS. The committee
23-22 may refuse to issue or renew a license or it may <Board shall>
23-23 revoke or suspend a permit or license, place on probation a person
23-24 whose permit or license has been suspended, or reprimand a permit
23-25 <permittee> or license holder <licensee> for any of the following
23-26 <violations>:
23-27 (1) making a material misstatement in furnishing
24-1 information to the committee or to any other state or federal
24-2 agency;
24-3 (2) a violation of <The temporary trainee or licensee
24-4 is guilty of any fraud, deceit or misrepresentation in the fitting
24-5 and dispensing of hearing aids or in his seeking of a license under
24-6 this Act.>
24-7 <(2) The temporary trainee or licensee is convicted of
24-8 a felony or a misdemeanor which involves moral turpitude.>
24-9 <(3) The temporary trainee or licensee is unable to
24-10 fit and dispense hearing aids with reasonable skill and safety to
24-11 customers by reason of incompetence, age, illness, drunkenness,
24-12 excessive use of drugs, narcotics, chemicals, or any other type of
24-13 material or as a result of any condition causing the temporary
24-14 trainee or licensee to become mentally or physically incapable as
24-15 determined by a court of competent jurisdiction.>
24-16 <(4) The temporary trainee or licensee has violated>
24-17 any of the provisions of this Act or <Board> rules adopted under
24-18 this Act;
24-19 (3) being convicted of a felony or misdemeanor
24-20 containing dishonesty as an essential element or of any crime
24-21 directly related to the practice of fitting and dispensing hearing
24-22 instruments;
24-23 (4) making a misrepresentation for the purpose of
24-24 obtaining or renewing a license, including falsification of the
24-25 educational requirements under this Act;
24-26 (5) being professionally incompetent or engaging in
24-27 malpractice or dishonorable, unethical, or unprofessional conduct
25-1 that is likely to deceive, defraud, or harm the public;
25-2 (6) aiding or assisting another person in violating
25-3 this Act or a rule adopted under this Act;
25-4 (7) failing to provide information in response to a
25-5 written request made by the board within 60 days;
25-6 (8) <. (5) The licensee has> knowingly, directly or
25-7 indirectly, employing, hiring, procuring, or inducing <employed,
25-8 hired, procured, or induced> a person not licensed to fit and
25-9 dispense hearing instruments <aids> in this state, to so fit and
25-10 dispense hearing instruments unless the person is exempt under this
25-11 Act;
25-12 (9) aiding or abetting <aids.>
25-13 <(6) The licensee aids or abets> any person not duly
25-14 licensed under this Act in the fitting or dispensing of hearing
25-15 instruments unless the person is exempt under this Act;
25-16 (10) being habitually intoxicated or addicted to a
25-17 controlled substance;
25-18 (11) directly or indirectly giving to or receiving
25-19 from a person a fee, commission, rebate, or other form of
25-20 compensation for a service not actually rendered;
25-21 (12) violating a term of probation;
25-22 (13) willfully making or filing false records or
25-23 reports;
25-24 (14) having a physical illness that results in the
25-25 inability to practice the profession with reasonable judgment,
25-26 skill, or safety, including the deterioration or loss of motor
25-27 skills through the aging process;
26-1 (15) soliciting a service by advertising that is false
26-2 or misleading;
26-3 (16) participating in subterfuge or misrepresentation
26-4 in the fitting or dispensing of a hearing instrument;
26-5 (17) knowingly advertising a model or type of hearing
26-6 instrument for sale when the advertised model or type cannot be
26-7 purchased;
26-8 (18) falsely representing that the service of a
26-9 licensed physician or other health professional will be used or
26-10 made available in the fitting, adjustment, maintenance, or repair
26-11 of a hearing instrument;
26-12 (19) using "doctor," "audiologist," "clinic,"
26-13 "clinical audiologist," "state licensed," "state certified,"
26-14 "licensed hearing instrument dispenser," "board certified hearing
26-15 instrument specialist," "hearing instrument specialist," "certified
26-16 hearing aid audiologist," or any other term, abbreviation, or
26-17 symbol that falsely gives the impression that:
26-18 (A) a service is being provided by a person who
26-19 is licensed or has been awarded a degree or title; or
26-20 (B) the person providing a service has been
26-21 recommended by a governmental agency or health provider;
26-22 (20) advertising a manufacturer's product or using a
26-23 manufacturer's name or trademark in a way that implies a
26-24 relationship between a permit or license holder and a manufacturer
26-25 that does not exist;
26-26 (21) <aids.>
26-27 <(7) The licensee lends, leases, rents, or in any
27-1 other manner places his license at the disposal or in the service
27-2 of any person not licensed to fit and dispense hearing aids in this
27-3 state.>
27-4 <(8) The licensee knowingly used or caused or promoted
27-5 the use of any advertising matter, promotional literature,
27-6 guarantees, warranty, disseminated or published with misleading,
27-7 deceiving or false information. It is the intention of the
27-8 Legislature that the provisions of this subdivision be interpreted
27-9 insofar as possible to coincide with the orders and rules of the
27-10 Federal Trade Commission on such subjects.>
27-11 <(9) The licensee represented that the service or
27-12 advice of a person licensed to practice medicine by the Texas State
27-13 Board of Medical Examiners is used or made available in the
27-14 selection, fitting, adjustment, maintenance, or repair of a hearing
27-15 aid when such representation was not true.>
27-16 <(10) The licensee used the term "doctor," "clinic" or
27-17 any like words, abbreviations or symbols in the conduct of his
27-18 business which would tend to connote that the licensee was a
27-19 physician or surgeon.>
27-20 <(11) The licensee obtained or attempted to obtain
27-21 information concerning the business of another licensee under this
27-22 Act by bribery, or attempting to bribe an employee or agent of such
27-23 other licensee or by the impersonation of one in authority.>
27-24 <(12) The licensee> directly or indirectly giving
27-25 <gave,> or offering <offered> to give or permitting <permitted> or
27-26 causing <caused> to be given money or anything of value to any
27-27 person who advises others in a professional capacity as an
28-1 inducement to influence the <such> person to influence those
28-2 persons that the <such> person advises in a professional capacity
28-3 to purchase or contract to purchase products sold or offered for
28-4 sale by the permit or license holder <licensee> or to refrain from
28-5 purchasing or contracting to purchase products sold or offered for
28-6 sale by any other permit or license holder <licensee> under this
28-7 Act;
28-8 (22) <.>
28-9 <(13) The licensee falsely represented to a purchaser
28-10 that a hearing aid was "custom-made," "made to order,"
28-11 "prescription-made" or any other representations that such hearing
28-12 aid was specially fabricated for the purchaser.>
28-13 <(14) The licensee refused to accept responsibility
28-14 for the acts of a temporary training permittee in a licensee's
28-15 employ and under licensee's supervision.>
28-16 <(15) The licensee> with fraudulent intent, engaging
28-17 <engaged> in the fitting and dispensing of hearing instruments
28-18 <aids> under a false name or alias;
28-19 (23) engaging in the fitting or sale of a hearing
28-20 instrument under a name with fraudulent intent;
28-21 (24) failing to provide adequately for the service or
28-22 repair of a hearing instrument fitted and sold by the license
28-23 holder; or
28-24 (25) violating a regulation of the federal Food and
28-25 Drug Administration or the Federal Trade Commission relating to
28-26 hearing instruments.
28-27 SECTION 13. Section 11, Chapter 366, Acts of the 61st
29-1 Legislature, Regular Session, 1969 (Article 4566-1.11, Vernon's
29-2 Texas Civil Statutes), is amended to read as follows:
29-3 Sec. 11. Disciplinary actions. (a) If the committee
29-4 <Board> proposes to refuse a person's application for examination,
29-5 to suspend or revoke a person's license or permit, or to probate or
29-6 reprimand a person, the person is entitled to a hearing before the
29-7 committee <Board>.
29-8 (b) The proceedings under this section are governed by the
29-9 Administrative Procedure and Texas Register Act, as amended
29-10 (Article 6252-13a, Vernon's Texas Civil Statutes).
29-11 (c) Proceedings shall be commenced by filing charges with
29-12 the committee <Board> in writing and under oath. The charges may
29-13 be made by any person or persons.
29-14 (d) <The president of the Board shall fix a time and place
29-15 for a hearing and shall cause a copy of the charges, together with
29-16 a notice of the time and place fixed for the hearing to be served
29-17 upon the applicant or licensee against whom charges have been filed
29-18 at least 30 days prior thereto. Service of such charges and
29-19 notice of hearing thereon may be given by certified mail to the
29-20 last known address of such licensee or applicant.>
29-21 <(e) At the hearing, such applicant or licensee shall have
29-22 the right to appear either personally or by counsel or both to
29-23 produce witnesses, and to have subpoenas issued by the Board and
29-24 cross-examine opposing or adverse witnesses.>
29-25 <(f) The Board shall not be bound by strict rules of
29-26 procedure or by the laws of evidence in the conduct of its
29-27 proceedings but the determination shall be founded upon sufficient
30-1 legal evidence to sustain it.>
30-2 <(g) The Board shall determine the charges upon their
30-3 merits. The Board shall enter an order in the permanent records of
30-4 the Board setting forth the findings of fact and law of the Board
30-5 and its action thereon. A copy of such order of the Board shall be
30-6 mailed to such applicant or licensee to his last known address by
30-7 certified mail.>
30-8 <(h) Any person whose license to fit and dispense hearing
30-9 aids has been refused or has been cancelled, revoked or suspended
30-10 by the Board, may, within 20 days after making and entering of such
30-11 order, take an appeal to any district court of Travis County or any
30-12 district court of the county of his residence.>
30-13 <(i) Appeal from the judgment of such district court will
30-14 lie as other civil cases.>
30-15 <(j)> Upon application, the committee <Board> may reissue a
30-16 license to fit and dispense hearing instruments <aids> to a person
30-17 whose license has been cancelled or revoked but the <such>
30-18 application shall not be made prior to the expiration of <a period
30-19 of> six months after the order of cancellation or revocation has
30-20 become final, and the <such> application shall be made in the
30-21 <such> manner and form as the committee <Board> may require.
30-22 SECTION 14. Section 12, Chapter 366, Acts of the 61st
30-23 Legislature, Regular Session, 1969 (Article 4566-1.12, Vernon's
30-24 Texas Civil Statutes), is amended to read as follows:
30-25 Sec. 12. Fees and expenses. (a) The fees for administering
30-26 this Act shall be as follows <Board shall establish reasonable and
30-27 necessary fees for the administration of this Act in amounts not to
31-1 exceed>:
31-2 1. Temporary Training Permit $200 <40>
31-3 2. Examination Fee 250 <125>
31-4 3. Apprentice License Fee 300
31-5 4. License Fee 220 <75>
31-6 5 <4>. License Renewal Fee 440 <220>
31-7 6 <5>. Duplicate Document Fee <fee> 50 <10ª
31-8 (b) <Every person passing the examination and meeting the
31-9 requirements of the Board shall be notified that he is eligible for
31-10 such license upon payment of the fee herein provided. Such notice
31-11 shall be by certified mail at the address given on his examination
31-12 papers. The fee for issuance of such license must be paid by the
31-13 applicant within 90 days after having been notified. Failure to
31-14 pay such fee within such time shall constitute a waiver of the
31-15 right to such person to obtain his license.>
31-16 <(c)> The committee <Secretary-Treasurer of the Board>
31-17 shall, every third work day <on or before the 10th day of each
31-18 month>, remit to the state treasurer <State Treasurer> all of the
31-19 fees collected by the committee <Board> during the preceding month
31-20 for deposit in the general revenue fund <General Revenue Fund>.
31-21 (c) <(d) Each member of the Board is entitled to a per diem
31-22 as set by legislative appropriation for each day that the member
31-23 engages in the business of the Board. A member may not receive any
31-24 compensation for travel expenses, including expenses for meals and
31-25 lodging, other than transportation expenses. A member is entitled
31-26 to compensation for transportation expenses as prescribed by the
31-27 General Appropriations Act. The travel expenses allowance for
32-1 members of the Board and its employees shall be provided in the
32-2 General Appropriations Act. The executive director of the Board
32-3 shall be allowed his actual expenses incurred while traveling on
32-4 official business for the Board.>
32-5 <(e) The number of days for which compensation may be paid
32-6 to members of the Board shall not exceed two days in any calendar
32-7 month except in those months in which examinations are held, but
32-8 compensations may never be allowed to exceed six days in those
32-9 months in which examinations are held.>
32-10 <(f) The Board may authorize all necessary disbursements to
32-11 carry out the provisions of this Act, including payment of the
32-12 premium on the bond of the Secretary-Treasurer, stationery
32-13 expenses, purchase and maintain or rent equipment and facilities
32-14 necessary to carry out the examinations of applications for
32-15 license; pay for printing of all licenses; rent and furnish an
32-16 office to maintain the permanent records of the Board.>
32-17 <(g)> Funds for the administration of this Act shall be
32-18 provided by the General Appropriations Act from the general revenue
32-19 fund <General Revenue Fund>. The financial transactions of the
32-20 committee <Board> are subject to audit by the state auditor in
32-21 accordance with Chapter 321, Government Code.
32-22 SECTION 15. Section 12A, Chapter 366, Acts of the 61st
32-23 Legislature, Regular Session, 1969 (Article 4566-1.12A, Vernon's
32-24 Texas Civil Statutes), is amended to read as follows:
32-25 Sec. 12A. FALSE, MISLEADING, OR DECEPTIVE Advertisements.
32-26 (a) The committee <Board> may not adopt rules restricting
32-27 competitive bidding or advertising by a person regulated by the
33-1 committee <Board> except to prohibit false, misleading, or
33-2 deceptive practices by the person. The committee <Board> may not
33-3 include in its rules to prohibit false, misleading, or deceptive
33-4 practices by a person regulated by the committee <Board> a rule
33-5 that:
33-6 (1) restricts the person's use of any medium for
33-7 advertising;
33-8 (2) restricts the person's personal appearance or use
33-9 of the person's <his> voice in an advertisement;
33-10 (3) relates to the size or duration of an
33-11 advertisement by the person; or
33-12 (4) restricts the person's advertisement under a trade
33-13 name.
33-14 (b) An advertisement is false, misleading, or deceptive if
33-15 the advertisement:
33-16 (1) contains a misrepresentation of fact;
33-17 (2) contains a false statement as to the license
33-18 holder's professional achievements, education, skills, or
33-19 qualifications in the hearing instrument dispensing profession;
33-20 (3) makes a partial disclosure of relevant fact,
33-21 including:
33-22 (A) the advertisement of a discounted price of
33-23 an item without identifying in the advertisement or at the location
33-24 of the item either the specific product being offered at the
33-25 discounted price or the usual price of the item; and
33-26 (B) the advertisement of the price of a
33-27 specifically identified hearing instrument if more than one hearing
34-1 instrument appears in the same advertisement without an
34-2 accompanying price;
34-3 (4) contains a representation that a product
34-4 innovation is new when in fact the product was first offered by the
34-5 manufacturer to the general public in this state not less than 12
34-6 months before the date of the advertisement;
34-7 (5) contains any other representation, statement, or
34-8 claim that is inherently misleading or deceptive; or
34-9 (6) contains information that the license holder
34-10 manufactures hearing instruments at the license holder's office
34-11 location unless the following statement includes a statement
34-12 disclosing that the instruments are manufactured by a specified
34-13 manufacturer and remanufactured by the license holder.
34-14 SECTION 16. Section 12B, Chapter 366, Acts of the 61st
34-15 Legislature, Regular Session, 1969 (Article 4566-1.12B, Vernon's
34-16 Texas Civil Statutes), is amended to read as follows:
34-17 Sec. 12B. CONSUMER INFORMATION AND COMPLAINTS. (a) The
34-18 committee <Board> shall prepare information of consumer interest
34-19 describing the regulatory functions of the committee <Board> and
34-20 the committee's <Board's> procedures by which consumer complaints
34-21 are filed with and resolved by the committee <Board>. The
34-22 committee <Board> shall make the information available to the
34-23 general public and appropriate state agencies.
34-24 (b) Each written contract for services in this state of a
34-25 licensed hearing instrument <aid fitter and> dispenser shall
34-26 contain the name, mailing address, and telephone number of the
34-27 committee <Board>. There shall at all times be prominently
35-1 displayed in the place of business of each license or permit holder
35-2 <licensee> regulated under this Act a sign containing the name,
35-3 mailing address, and telephone number of the committee <Board> and
35-4 a statement informing consumers that complaints against license or
35-5 permit holders <licensees> can be directed to the committee
35-6 <Board>.
35-7 (c) The committee <Board> shall establish guidelines for a
35-8 30-day trial period on every hearing instrument <aid> purchased
35-9 <from a licensed hearing aid fitter and dispenser>.
35-10 (d) The committee <Board> shall keep an information file
35-11 about each complaint filed with the committee <Board> relating to a
35-12 license or permit holder <licensee>. If a written complaint is
35-13 filed with the committee <Board> relating to a license or permit
35-14 holder <licensee>, the committee <Board>, at least as frequently as
35-15 quarterly and until final disposition of the complaint, shall
35-16 notify the parties to the complaint of the status of the complaint
35-17 unless the notice would jeopardize an undercover investigation.
35-18 SECTION 17. Section 13, Chapter 366, Acts of the 61st
35-19 Legislature, Regular Session, 1969 (Article 4566-1.13, Vernon's
35-20 Texas Civil Statutes), is amended to read as follows:
35-21 Sec. 13. RENEWAL OF LICENSE. (a) Each license to fit and
35-22 dispense hearing instruments <aids> shall be issued for the term of
35-23 one year and shall, unless suspended or revoked, be renewed
35-24 annually <on September 1> on payment of the renewal fee. The
35-25 committee may adopt a system under which licenses expire on various
35-26 dates during the year. For the year in which the expiration date
35-27 is changed, license fees shall be prorated on a monthly basis so
36-1 that each license holder shall pay only the portion of the license
36-2 fee that is applicable to the number of months during which the
36-3 license is valid.
36-4 (b) A person may renew an <his> unexpired license by paying
36-5 to the committee <Board> before the expiration date of the license
36-6 the required renewal fee.
36-7 (c) If a person's license has been expired for not more than
36-8 90 days, the person may renew the license by paying to the
36-9 committee <Board> the required renewal fee and a fee that is
36-10 one-half of the examination fee for the license.
36-11 (d) If a person's license has been expired for more than 90
36-12 days but less than two years, the person may renew the license by
36-13 paying to the committee <Board> all unpaid renewal fees and a fee
36-14 that is equal to the examination fee for the license.
36-15 (e) If a person's license has been expired for two years or
36-16 more, the person may not renew the license. The person may obtain
36-17 a new license by submitting to reexamination and complying with the
36-18 requirements and procedures for obtaining an original license.
36-19 (f) Before a license can be renewed, the committee <Board>
36-20 shall require certification that all testing equipment, both
36-21 portable and stationary, used by the license holder <licensee> has
36-22 been calibrated within one year prior to the renewal date.
36-23 (g) Before a license can be renewed, a license holder
36-24 <licensee> must demonstrate compliance with the requirements of
36-25 continuing education established by the committee <Board> under
36-26 Section 14A <Subsection (i) of Section 4> of this Act.
36-27 On written request, the committee <Board> shall provide an
37-1 alternative mechanism for meeting the continuing education
37-2 requirement through examination.
37-3 The committee <Board> may waive compliance with the
37-4 continuing education requirement for license renewal in an
37-5 individual case upon evidence of hardship or inability to meet the
37-6 requirement. The waiver may be granted after review by the
37-7 committee <Board> on an annual basis.
37-8 (h) Fitting and dispensing a hearing instrument <aids>
37-9 without an annual renewal certificate for the current year as
37-10 provided by this section <herein> shall <have the same force and
37-11 effect and> be subject to the same penalties as fitting and
37-12 dispensing a hearing instrument <aids> without a license.
37-13 (i) The committee <Board> shall issue a duplicate license to
37-14 any license holder <licensee> whose license has been lost or
37-15 destroyed and the committee <Board> shall have the authority to
37-16 prescribe the procedure and requirements for the issuance of the
37-17 duplicate license.
37-18 SECTION 18. Section 14, Chapter 366, Acts of the 61st
37-19 Legislature, Regular Session, 1969 (Article 4566-1.14, Vernon's
37-20 Texas Civil Statutes), is amended to read as follows:
37-21 Sec. 14. DUTY OF A LICENSE HOLDER <LICENSEE>. (a) Every
37-22 person engaged in the fitting and dispensing of hearing instruments
37-23 <aids> in this state shall display the person's <his> license in a
37-24 conspicuous place in the person's <his> principal office and
37-25 whenever required, exhibit the <such> license to the committee
37-26 <Board> or its authorized representatives.
37-27 (b) Every license holder <licensee> shall deliver to each
38-1 person supplied with a hearing instrument <aid>, by the license
38-2 holder <licensee> or under the license holder's <his> direction, a
38-3 bill of sale which shall contain the license holder's <his>
38-4 signature, the license holder's <his> printed name, the address of
38-5 the license holder's <his> principal office, the number of the
38-6 license holder's <his> license, a description of the make and model
38-7 of the hearing instrument <aid> furnished and the amount charged
38-8 for the hearing instrument <therefor>, and whether the hearing
38-9 instrument <aid> is new, used, or rebuilt.
38-10 (c) An <Such receipt as required in Subsection (b) of this
38-11 section shall be accompanied by the following statement in no
38-12 smaller type than the largest type used in the body portion of such
38-13 receipt, to-wit:>
38-14 <"The purchaser has been advised at the outset of his
38-15 relationship with the undersigned fitter and dispenser of hearing
38-16 aids that any examination or representation made by a licensed
38-17 fitter and dispenser of hearing aids in connection with the fitting
38-18 and selling of this hearing aid is not an examination, diagnosis or
38-19 prescription by a person duly licensed and qualified as a physician
38-20 or surgeon authorized to practice medicine in the State of Texas
38-21 and, therefore, must not be regarded as medical opinion or advice.">
38-22 <(d) Every licensee must, when dealing with a child 10 years
38-23 of age or under, ascertain whether the child has been examined by
38-24 an otolaryngologist for his recommendation within 90 days prior to
38-25 the fitting. If such is not the case, a recommendation by the
38-26 licensee to do so must be made and this fact noted on the bill of
38-27 sale required in Subsection (b) of this Section.>
39-1 <(e) Any> individual licensed under this Act shall seek
39-2 personally or through proper referral channels to obtain the
39-3 following minimal information on each prospective candidate for
39-4 amplification:
39-5 (1) pertinent case history;
39-6 (2) otoscopic inspection of the outer ear, including
39-7 canal and drumhead;
39-8 (3) evaluation of hearing acuity utilizing puretone
39-9 techniques via air and bone conduction pathways through a
39-10 calibrated system; <and>
39-11 (4) an aided and unaided speech reception threshold
39-12 and ability to differentiate between the phonemic elements of the
39-13 language through speech audiometry, utilizing a calibrated system
39-14 or other acceptable verification techniques; and
39-15 (5) verification of satisfactory aided instrument
39-16 performance by use of appropriate sound field speech, noise, or
39-17 tone testing, utilizing a calibrated system.
39-18 (d) A licensed hearing instrument fitter and dispenser or
39-19 licensed audiologist shall not sell a hearing instrument to a
39-20 person under 18 years of age unless the prospective user, parent,
39-21 or guardian has presented to the hearing instrument fitter and
39-22 dispenser or audiologist a written statement signed by a licensed
39-23 physician specializing in diseases of the ear that states that the
39-24 patient's hearing loss has been medically evaluated and the patient
39-25 may be considered a candidate for a hearing instrument. The
39-26 evaluation must have taken place within the preceding six months.
39-27 (e) If audiometric testing is not conducted in a stationary
40-1 acoustical enclosure, sound level measurements must be conducted at
40-2 the time of the testing to ensure that ambient noise levels meet
40-3 permissible standards for testing threshold to 20 dB based on the
40-4 most current American National Standards Institute (ANSI) "ears
40-5 covered" octave band criteria for Permissible Ambient Noise Levels
40-6 During Audiometric Testing. A dBA equivalent level may be used to
40-7 determine compliance. The committee shall adopt rules necessary to
40-8 enforce the provisions of this subsection.
40-9 SECTION 19. Chapter 366, Acts of the 61st Legislature,
40-10 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
40-11 Civil Statutes), is amended by adding Section 14A to read as
40-12 follows:
40-13 Sec. 14A. CONTINUING EDUCATION. (a) The committee shall
40-14 require that a fitter and dispenser licensed under this Act
40-15 complete 20 hours of continuing education each year. For purposes
40-16 of this section, each year runs concurrently with the effective
40-17 date of a license issued under this Act.
40-18 (b) The committee will provide a list of approved continuing
40-19 education sponsors which will be revised and updated periodically.
40-20 Approved sponsors will be designated by the committee. Any
40-21 continuing education activity must be provided by an approved
40-22 sponsor.
40-23 (c) On written request to the committee, a license holder
40-24 may take the state examination given by the committee. A license
40-25 holder who pays the examination fee and passes the examination
40-26 shall be exempt from the continuing education requirement for the
40-27 year that the test is taken.
41-1 (d) A license holder may be credited with continuing
41-2 education credit hours for a published book or article written by
41-3 the license holder that contributes to the license holder's
41-4 professional competence. No more than five credit hours for
41-5 preparation of a publication may be claimed by a license holder in
41-6 an annual reporting period. The continuing education committee may
41-7 grant credit hours based on the degree that the published book or
41-8 article advances knowledge regarding the fitting and dispensing of
41-9 hearing instruments.
41-10 (e) A license holder may receive no more than five
41-11 continuing education credit hours for attendance at a
41-12 manufacturer-sponsored course.
41-13 (f) A license holder who has not complied with the
41-14 continuing education requirements of this section may not be issued
41-15 a renewal license unless the license holder:
41-16 (1) has served in the regular armed forces of the
41-17 United States during part of the 12 months before the annual
41-18 reporting date;
41-19 (2) submits proof from an attending physician that the
41-20 license holder suffered a serious or disabling illness or physical
41-21 disability that prevented compliance with the requirements of this
41-22 section during the 12 months before the annual reporting date; or
41-23 (3) was licensed for the first time during the 12
41-24 months before the annual reporting date.
41-25 (g) A course summary and resume for each teacher of a course
41-26 who seeks approval from the committee must be submitted 30 days
41-27 before the date the course is scheduled to take place. The
42-1 committee shall establish criteria for the approval of submitted
42-2 courses.
42-3 (h) A license holder shall provide written proof of
42-4 attendance and completion of an approved course on a form
42-5 prescribed by the committee.
42-6 SECTION 20. Section 15, Chapter 366, Acts of the 61st
42-7 Legislature, Regular Session, 1969 (Article 4566-1.15, Vernon's
42-8 Texas Civil Statutes), is amended to read as follows:
42-9 Sec. 15. PROHIBITED ACTS. (a) It is unlawful for any
42-10 person to:
42-11 (1) buy, sell, or fraudulently obtain a license to fit
42-12 and dispense hearing instruments <aids> or aid another in any of
42-13 those activities <or abet therein>;
42-14 (2) alter a license to fit and dispense hearing
42-15 instruments <aids> with the intent to defraud;
42-16 (3) willfully make a false statement in an application
42-17 to the committee <Texas Board of Examiners of Fitters and
42-18 Dispensers of Hearing Aids> for a license, for a temporary training
42-19 permit, or for the renewal of a license;
42-20 (4) falsely impersonate any person <duly> licensed as
42-21 a fitter and dispenser of hearing instruments <aids> under <the
42-22 provisions of> this Act;
42-23 (5) offer or represent that the person is <hold
42-24 himself out as> authorized to fit and dispense hearing instruments
42-25 <aids>, or use in connection with the person's <his> name any
42-26 designation tending to imply that the person <he> is authorized to
42-27 engage in the fitting and dispensing of hearing instruments <aids>,
43-1 if the person is not <so> licensed under the provisions of this
43-2 Act;
43-3 (6) engage in the fitting and dispensing of hearing
43-4 instruments <aids> during the time the person's <his> license shall
43-5 be cancelled, suspended, or revoked;
43-6 (7) dispense or fit a hearing instrument <aid> on any
43-7 individual who has ordered the <such> hearing instrument <aid> or
43-8 device by mail unless the person dispensing and fitting the <such>
43-9 hearing instrument <aid> or device is licensed under this Act or
43-10 under Chapter 381, Acts of the 68th Legislature, Regular Session,
43-11 1983 (Article 4512j, Vernon's Texas Civil Statutes), and its
43-12 subsequent amendments; or
43-13 (8) sell hearing instruments by mail.
43-14 (b) It is unlawful for any person not a licensed <fitter
43-15 and> dispenser of hearing instruments <aids> or a holder of a
43-16 temporary training permit or an apprentice permit provided in this
43-17 Act, or a licensed physician or surgeon to do any one act or thing
43-18 or any combination of acts or things named or described in this
43-19 section <Subsection (b) of Section 1 of this Act>.
43-20 (c) It is unlawful for any license or permit holder
43-21 <licensee> to:
43-22 (1) fail to clearly disclose the holder's <his> name,
43-23 business address, and the purpose of the communication in any
43-24 telephone solicitation of potential customers;
43-25 (2) use or purchase for use a list of names of
43-26 potential customers compiled by a person by telephone other than
43-27 the license or permit holder or the holder's <licensee, his>
44-1 authorized agent or another license or permit holder <licensee>;
44-2 or
44-3 (3) do any act that <which> requires a license from
44-4 the Texas Optometry Board or the Texas State Board of Medical
44-5 Examiners.
44-6 SECTION 21. Section 16, Chapter 366, Acts of the 61st
44-7 Legislature, Regular Session, 1969 (Article 4566-1.16, Vernon's
44-8 Texas Civil Statutes), is amended to read as follows:
44-9 Sec. 16. ADMINISTRATIVE PENALTIES; INJUNCTION <PENALTY>.
44-10 (a) The committee, with the approval of the board, may impose a
44-11 fine not to exceed $250 plus costs for the first violation and not
44-12 to exceed $1,000 plus costs for each subsequent violation of this
44-13 Act and the rules adopted under this Act on any person or entity
44-14 described in this Act. The fine may be invoked as an alternative
44-15 to any other disciplinary measure, except for probation, as set
44-16 forth by the committee.
44-17 (b) If a person other than a licensed hearing instrument
44-18 dispenser has engaged in any act or practice that constitutes an
44-19 offense under this Act, a district court of any county on
44-20 application of the committee may issue an injunction or other
44-21 appropriate order restraining such conduct. <Whoever violates any
44-22 provision of this Act shall be fined not less than $100.00 nor more
44-23 than $500.00 or be confined in jail for a period of not more than
44-24 90 days, or both.>
44-25 SECTION 22. Chapter 366, Acts of the 61st Legislature,
44-26 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
44-27 Civil Statutes), is amended by adding Section 16A to read as
45-1 follows:
45-2 Sec. 16A. SURETY BONDING. (a) A license holder shall file
45-3 a bond or a surety in lieu of a bond in the amount of $10,000 with
45-4 the committee conditioned on the license holder's promise to pay
45-5 all:
45-6 (1) taxes and contributions due to the state and
45-7 political subdivisions of the state; and
45-8 (2) judgments that the license holder may be required
45-9 to pay for negligently or improperly dispensing hearing instruments
45-10 or for breaching a contract relating to the dispensing of hearing
45-11 instruments.
45-12 (b) A license holder may file with the committee a cash
45-13 deposit or other negotiable security acceptable to the committee in
45-14 the amount required in Subsection (a) of this section in lieu of a
45-15 bond.
45-16 (c) A bond required under this section remains in effect
45-17 until cancelled by action of the surety, the principal, or the
45-18 committee. A person may not commence an action on the bond later
45-19 than the third anniversary of the date the bond was cancelled.
45-20 (d) The purchaser of a hearing instrument may rescind the
45-21 purchase and recover as provided by this section for:
45-22 (1) a material misstatement of fact or
45-23 misrepresentation by the license holder regarding the hearing
45-24 instrument or services to be provided by the license holder that
45-25 were relied on by the purchaser or that induced the purchaser to
45-26 purchase the instrument;
45-27 (2) the failure by the license holder to provide the
46-1 purchaser with an instrument or with fitting and dispensing
46-2 services that conform to the specifications of the purchase
46-3 agreement;
46-4 (3) the diagnosis of a medical condition unknown to
46-5 the purchaser at the time of the purchase that precludes the
46-6 purchaser's use of the instrument;
46-7 (4) the failure by the license holder to remedy a
46-8 significant material defect of the hearing instrument within a
46-9 reasonable time;
46-10 (5) the provision by the license holder of a hearing
46-11 instrument of fitting and dispensing services that are not in
46-12 accordance with accepted industry practices; or
46-13 (6) the failure by the license holder to meet the
46-14 standards of conduct prescribed under this Act or by rules adopted
46-15 under this Act that adversely affects the transactions between the
46-16 purchaser and the license holder.
46-17 SECTION 23. Chapter 366, Acts of the 61st Legislature,
46-18 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
46-19 Civil Statutes), is amended by adding Section 16B to read as
46-20 follows:
46-21 Sec. 16B. OWNERSHIP OF DISPENSING PRACTICE. A person who
46-22 owns, maintains, or operates an office or place of business where
46-23 the person employs or engages under contract a person who practices
46-24 the fitting and dispensing of hearing instruments shall be
46-25 considered also to be engaged in the practice of fitting and
46-26 dispensing of hearing instruments under this Act. A person who is
46-27 considered to be practicing the fitting and dispensing of hearing
47-1 instruments under this section shall be required to be licensed
47-2 under this Act or licensed under Chapter 381, Acts of the 68th
47-3 Legislature, Regular Session, 1983 (Article 4512j, Vernon's Texas
47-4 Civil Statutes), and its subsequent amendments, as an audiologist.
47-5 SECTION 24. Section 17, Chapter 366, Acts of the 61st
47-6 Legislature, Regular Session, 1969 (Article 4566-1.17, Vernon's
47-7 Texas Civil Statutes), is amended to read as follows:
47-8 Sec. 17. TREATMENT OF EAR DEFECTS AND ADMINISTRATION OF
47-9 DRUGS. This <Nothing contained in this> Act does not <shall be
47-10 construed to> permit a person <persons> licensed under this Act to
47-11 treat the ear for any defect <whatsoever> in any manner, nor to
47-12 administer any drug or physical treatment <whatsoever> unless the
47-13 license holder <licensee> is a <duly qualified> physician or <and>
47-14 surgeon <and> licensed to practice by the Texas State Board of
47-15 Medical Examiners. This <Nothing in this> Act does not <shall be
47-16 construed to> amend or modify the laws regulating the practice of
47-17 medicine as defined by the Medical Practice Act (Article 4495b
47-18 <4510>, Vernon's Texas <Revised> Civil Statutes) <of Texas>.
47-19 SECTION 25. Section 18, Chapter 366, Acts of the 61st
47-20 Legislature, Regular Session, 1969 (Article 4566-1.18, Vernon's
47-21 Texas Civil Statutes), is repealed.
47-22 SECTION 26. Sections 21 and 22, Chapter 366, Acts of the
47-23 61st Legislature, Regular Session, 1969 (Articles 4566-1.21 and
47-24 4566-1.22, Vernon's Texas Civil Statutes), are repealed.
47-25 SECTION 27. This Act takes effect September 1, 1993.
47-26 SECTION 28. (a) A person holding a license for the fitting
47-27 and dispensing of hearing aids from the Texas Board of Examiners in
48-1 the Fitting and Dispensing of Hearing Aids on August 31, 1993, may
48-2 apply to the State Committee of Examiners in the Fitting and
48-3 Dispensing of Hearing Instruments for a license under Chapter 366,
48-4 Acts of the 61st Legislature, Regular Session, 1969 (Article
48-5 4566-1.01 et seq., Vernon's Texas Civil Statutes), and its
48-6 subsequent amendments, without taking the examination required by
48-7 Section 6 of that Act. The committee shall have 14 days from the
48-8 receipt of the application to issue a new license under that Act to
48-9 the applicant.
48-10 (b) An application for a license under Chapter 366, Acts of
48-11 the 61st Legislature, Regular Session, 1969 (Article 4566-1.01 et
48-12 seq., Vernon's Texas Civil Statutes), and its subsequent
48-13 amendments, must be received by the committee by December 31, 1993.
48-14 An applicant may continue to fit and dispense hearing instruments
48-15 under the applicant's existing license until the committee issues a
48-16 new license under that Act.
48-17 SECTION 29. (a) The Texas Board of Examiners in the Fitting
48-18 and Dispensing of Hearing Aids is abolished. All powers, duties,
48-19 obligations, and rights of action of that board are transferred to
48-20 the State Committee of Examiners in the Fitting and Dispensing of
48-21 Hearing Instruments in the Texas Department of Health on the
48-22 effective date of this Act. A reference in the law to the Texas
48-23 Board of Examiners in the Fitting and Dispensing of Hearing Aids
48-24 means the State Committee of Examiners in the Fitting and
48-25 Dispensing of Hearing Instruments in the Texas Department of
48-26 Health.
48-27 (b) The personnel, property, records, and funds in the
49-1 custody of the Texas Board of Examiners in the Fitting and
49-2 Dispensing of Hearing Aids on the effective date of this Act are
49-3 transferred to the Texas Department of Health.
49-4 (c) The Texas Department of Health shall continue any
49-5 proceeding brought by the Texas Board of Examiners in the Fitting
49-6 and Dispensing of Hearing Aids before September 1, 1993, in
49-7 accordance with the law in effect on the date the proceeding was
49-8 brought, and the former law is continued in effect for this
49-9 purpose.
49-10 (d) The unobligated and unexpended balance of any
49-11 appropriation made to the Texas Board of Examiners in the Fitting
49-12 and Dispensing of Hearing Aids for the fiscal year ending
49-13 August 31, 1993, is transferred to the Texas Department of Health
49-14 for the purpose of implementing this Act.
49-15 SECTION 30. The importance of this legislation and the
49-16 crowded condition of the calendars in both houses create an
49-17 emergency and an imperative public necessity that the
49-18 constitutional rule requiring bills to be read on three several
49-19 days in each house be suspended, and this rule is hereby suspended.