By: Wentworth S.B. No. 953
73R5495 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the licensing of persons who fit and dispense hearing
1-3 instruments; providing administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1, Chapter 366, Acts of the 61st
1-6 Legislature, Regular Session, 1969 (Article 4566-1.01, Vernon's
1-7 Texas Civil Statutes), is amended to read as follows:
1-8 Sec. 1. DEFINITIONS. In this Act, unless the context
1-9 requires a different definition:
1-10 (1) <(a)> "Board" means the Texas Board of Health
1-11 <Examiners in the Fitting and Dispensing of Hearing Aids>.
1-12 (2) <(b)> "License" means license issued by the
1-13 committee <Board> under this Act to a person authorized to fit and
1-14 dispense hearing instruments <aids>.
1-15 (3) <(c)> "Temporary training permit <Training
1-16 Permit>" means a permit issued by the committee <Board> to persons
1-17 authorized to fit and dispense hearing instruments <aids> only
1-18 under the direct supervision of a person who holds a license under
1-19 this Act.
1-20 (4) <(d)> "Hearing instrument <aid>" means any
1-21 wearable instrument or device designed for, or represented as,
1-22 aiding, improving or correcting defective human hearing, but as
1-23 used herein shall not <mean repair services, replacements for
1-24 defective parts and shall not> include batteries or<,> cords <and
2-1 accessories>. The term includes the instrument's parts,
2-2 attachments, including earmolds, and accessories.
2-3 (5) <(e)> "Sell" or "sale" includes a transfer of
2-4 title or of the right to use by lease, bailment, or any other
2-5 contract. Provided, for the purpose of this Act, the term "sell"
2-6 or "sale" shall not include sales at wholesale by manufacturers to
2-7 persons licensed under this Act, or to distributors for
2-8 distribution and sale to persons licensed under this Act.
2-9 (6) <(f)> "Fitting and dispensing <Dispensing> hearing
2-10 instruments <aids>" means the measurement of human hearing by the
2-11 use of an audiometer or by any means for the purpose of making
2-12 selections, adaptations, or <and/or> sales of hearing instruments
2-13 <aids>. The term <also> includes the <sale of hearing aids, and
2-14 the> making of impressions for earmolds to be used as a part of the
2-15 hearing instrument and any necessary postfitting counseling <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 supervision and education of a temporary training permit
3-3 holder or apprentice permit holder, and meets the qualifications
3-4 established by this Act.
3-5 SECTION 2. Chapter 366, Acts of the 61st Legislature,
3-6 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
3-7 Civil Statutes), is amended by adding Section 1A to read as
3-8 follows:
3-9 Sec. 1A. POLICY. It is the policy of this state to:
3-10 (1) safeguard the health and welfare of the
3-11 communicatively handicapped people of this state from the
3-12 dispensing of hearing instruments by unskilled or unprincipled
3-13 practitioners;
3-14 (2) establish and enforce standards of practitioner
3-15 competency;
3-16 (3) provide regulatory authority over practitioners
3-17 offering hearing instrument dispensing services to the public; and
3-18 (4) ensure professional ethical conduct in the
3-19 dispensing of hearing aid devices or instruments.
3-20 SECTION 3. Section 2, Chapter 366, Acts of the 61st
3-21 Legislature, Regular Session, 1969 (Article 4566-1.02, Vernon's
3-22 Texas Civil Statutes), is amended to read as follows:
3-23 Sec. 2. Committee Membership <Board of Examiners>. (a) The
3-24 State Committee <Texas Board> of Examiners in the Fitting and
3-25 Dispensing of Hearing Instruments <Aids> is within the Texas
3-26 Department of Health and is <hereby created. The Board shall be>
3-27 composed of nine members appointed by the governor <Governor> with
4-1 the advice and consent of the senate <Senate>. Appointments shall
4-2 be made without regard to the race, creed, sex, religion, or
4-3 national origin of the appointees. The committee <Board> members
4-4 must have the following qualifications<, to-wit>:
4-5 (1) six committee <Five of such> members must <shall>
4-6 possess a hearing instrument dispenser's license under this Act
4-7 <the necessary qualifications to fit and dispense hearing aids in
4-8 this state> and have been residents of this state actually engaged
4-9 in fitting and dispensing hearing instruments <aids> for at least
4-10 five years <immediately> preceding their appointment; a person
4-11 licensed under Chapter 381, Acts of the 68th Legislature, Regular
4-12 Session, 1983 (Article 4512j, Vernon's Texas Civil Statutes), and
4-13 its subsequent amendments, is not eligible to serve as a member of
4-14 the committee<. No more than two of such five members shall be
4-15 employed by, franchised by, or associated exclusively with the same
4-16 hearing aid manufacturer>;
4-17 (2) two committee <Two Board> members must be members
4-18 of the general public, each of whom<. A person> is eligible for
4-19 appointment as a public member only if the person and the person's
4-20 spouse are not licensed by an occupational regulatory agency in the
4-21 field of health care; are not employed by and do not participate in
4-22 the management of a business entity or other organization that
4-23 provides health-care services or that sells, manufactures, or
4-24 distributes health-care supplies or equipment; and do not own,
4-25 control, or have, directly or indirectly, an interest in a business
4-26 entity or other organization that provides health-care services or
4-27 that sells, manufactures, or distributes health-care supplies or
5-1 equipment; and
5-2 (3) one committee member must <One of such members
5-3 shall> be a citizen of the United States and a resident of this
5-4 state for <a period of> at least two years <immediately> preceding
5-5 the person's <his> appointment, <shall> be an active practicing
5-6 physician or surgeon <duly> licensed to practice in this state by
5-7 the Texas State Board of Medical Examiners, and specialize in the
5-8 practice of otolaryngology and may<. Such member shall> not have a
5-9 financial interest in a hearing instrument <aid> manufacturing
5-10 company or a wholesale or retail hearing instrument <aid> company<;
5-11 and>
5-12 <(4) One of such members shall be a citizen of the
5-13 United States and a resident of this state for a period of at least
5-14 two years immediately preceding his appointment and shall be an
5-15 active practicing audiologist. Such member shall not have a
5-16 financial interest in a hearing aid manufacturing company or a
5-17 wholesale or retail hearing aid company>.
5-18 (b) One who has served two full consecutive terms on the
5-19 committee is <Board shall> not <be> eligible for a reappointment to
5-20 the committee <Board> for <a period of> 12 months immediately
5-21 following the expiration of the second full term.
5-22 (c) In the event of death, resignation, or removal of any
5-23 members, the vacancy of the unexpired terms shall be filled by the
5-24 governor <Governor> in the same manner as other appointments. Each
5-25 appointee to the committee <Board> shall, within 15 days after
5-26 <from> the date of <his> appointment, qualify by taking the
5-27 constitutional oath of office. Upon presentation of the <such>
6-1 oath, the secretary of state <Secretary of State> shall issue
6-2 commissions to appointees as evidence of their authority to act as
6-3 members of the committee <Board>.
6-4 (d) Members hold office for staggered terms of six years,
6-5 and each member shall continue until a successor is appointed and
6-6 qualifies.
6-7 (e) The committee <Board> shall be represented by the
6-8 attorney general and the district and county attorneys <Attorney
6-9 General and the District and County Attorneys> of the state.
6-10 (f) A person who is required to register as a lobbyist under
6-11 Chapter 305, Government Code, may not serve as a member of the
6-12 committee <Board> or act as the general counsel to the committee
6-13 <Board>.
6-14 (g) A member or employee of the committee <Board> may not be
6-15 an officer, employee, or paid consultant of a statewide or national
6-16 trade association in the hearing instrument <aid> industry. A
6-17 member or employee of the committee <Board> may not be related
6-18 within the second degree by affinity or consanguinity, as
6-19 determined under Article 5996h, Revised Statutes, to a person who
6-20 is an officer, employee, or paid consultant of a statewide or
6-21 national trade association in the regulated industry.
6-22 (h) It is a ground for removal from the committee <Board> if
6-23 a member:
6-24 (1) does not have at the time of appointment the
6-25 qualifications required by Subsection (a) of this section for
6-26 appointment to the committee <Board>;
6-27 (2) does not maintain during his service on the
7-1 committee <Board> the qualifications required by Subsection (a) of
7-2 this section for appointment to the committee <Board>;
7-3 (3) violates a prohibition established by Subsection
7-4 (f) or (g) of this section; or
7-5 (4) fails to attend at least half of the regularly
7-6 scheduled committee <Board> meetings held in a calendar year,
7-7 excluding meetings held while the person was not a committee
7-8 <Board> member.
7-9 (i) The validity of an action of the committee <Board> is
7-10 not affected by the fact that it was taken when a ground for
7-11 removal of a member of the committee <Board> existed.
7-12 (j) The State Committee <Texas Board> of Examiners in the
7-13 Fitting and Dispensing of Hearing Instruments <Aids> is subject to
7-14 Chapter 325, Government Code (Texas Sunset Act). Unless continued
7-15 in existence as provided by that chapter, the board is abolished
7-16 and this Act expires September 1, 2005 <1993>.
7-17 (k) The committee <Board> is subject to the open meetings
7-18 law, Chapter 271, Acts of the 60th Legislature, Regular Session,
7-19 1967, as amended (Article 6252-17, Vernon's Texas Civil Statutes),
7-20 and the Administrative Procedure and Texas Register Act, as amended
7-21 (Article 6252-13a, Vernon's Texas Civil Statutes).
7-22 SECTION 4. Section 3, Chapter 366, Acts of the 61st
7-23 Legislature, Regular Session, 1969 (Article 4566-1.03, Vernon's
7-24 Texas Civil Statutes), is amended to read as follows:
7-25 Sec. 3. COMMITTEE <BOARD> ORGANIZATION AND MEETINGS. (a)
7-26 Within 60 days after their appointment and qualification the
7-27 initial committee <Board> shall hold its first meeting and elect a
8-1 president <President>, vice-president <Vice-President>, and
8-2 secretary-treasurer <Secretary-Treasurer>. The term of office for
8-3 all officers of the committee <Board> shall be for a period of one
8-4 year.
8-5 (b) The committee <Board> shall hold regular meetings at
8-6 least twice a year at which an examination of applicants for
8-7 license shall be given. Special meetings of the committee <Board>
8-8 shall be held upon request of a majority of the members or upon the
8-9 call of the president <President>. A majority of the committee
8-10 <Board> shall constitute a quorum <for the transaction of business>
8-11 and should a quorum not be present on the day appointed for any
8-12 meeting, those present may adjourn from day to day until a quorum
8-13 is <be> present, but for <provided such period shall> not <be>
8-14 longer than three successive days.
8-15 SECTION 5. Section 4, Chapter 366, Acts of the 61st
8-16 Legislature, Regular Session, 1969 (Article 4566-1.04, Vernon's
8-17 Texas Civil Statutes), is amended to read as follows:
8-18 Sec. 4. POWERS AND DUTIES OF THE COMMITTEE <BOARD>. (a)
8-19 Subject to the approval of the board, the committee <The Board>
8-20 shall have the power to make <such> procedural rules consistent
8-21 with this Act as may be necessary for the performance of its
8-22 duties.
8-23 (b) The committee <Board> shall have the power to appoint
8-24 subcommittees <committees> from its own membership<, the duties of
8-25 which shall be> to consider <such> matters<,> pertaining to the
8-26 enforcement of this Act<,> as shall be referred to the
8-27 subcommittees by the committee. The subcommittees <said
9-1 committees, and they> shall make recommendations to the committee
9-2 <Board in respect thereto>.
9-3 (c) With the assistance of the department, the committee
9-4 shall:
9-5 (1) administer, coordinate, and enforce the provisions
9-6 of this Act;
9-7 (2) evaluate the qualifications of applicants;
9-8 (3) examine applicants; and
9-9 (4) issue subpoenas, examine witnesses, and administer
9-10 oaths under the laws of this state.
9-11 (d) <(c)> The committee shall conduct hearings and keep
9-12 records and minutes necessary to the orderly administration <The
9-13 Board shall have the power to employ the services of stenographers,
9-14 inspectors, agents, attorneys, and other necessary assistants in
9-15 carrying out the provisions> of this Act with the assistance of the
9-16 department and subject to the Administrative Procedure and Texas
9-17 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
9-18 its subsequent amendments.
9-19 (e) <(d)> The committee, with the aid of the department,
9-20 shall investigate a person that engages in practices that violate
9-21 this Act <The Board, by majority vote, shall have the power to
9-22 issue subpoenas and subpoenas duces tecum to compel the attendance
9-23 of witnesses and the production of books, records and documents, to
9-24 administer oaths and to take testimony concerning all matters
9-25 within its jurisdiction>.
9-26 (f) A license holder under this Act is subject to the rules
9-27 adopted by the committee and approved by the board under this Act.
10-1 (g) The committee by rule shall adopt requirements for the
10-2 continuing education of a license holder under this Act. The
10-3 committee shall approve not less than five hours of specific
10-4 courses of instruction annually.
10-5 <(e) The Board shall have the right to institute an action
10-6 in its own name to enjoin the violation of any of the provisions of
10-7 this Act. Said action for injunction shall be in addition to any
10-8 other action, proceeding or remedy authorized by law.>
10-9 <(f) The Board is charged with the duty of aiding in the
10-10 enforcement of this Act, and any member of the Board may present to
10-11 the Attorney General or a County or District Attorney of this state
10-12 complaints relating to violations of any provision of this Act; and
10-13 the Board through the members, officers, counsel, and agents may
10-14 assist in the trial of any case involving alleged violations of
10-15 this Act, subject to the control of the Attorney General, County
10-16 Attorney, or District Attorney charged with the responsibility of
10-17 prosecuting such case.>
10-18 <(g) Before entering upon the discharge of the duties of
10-19 such office, the Secretary-Treasurer of the Board shall give such
10-20 bond for the performance of this duty as the Board may require, the
10-21 premium of such bond is to be paid from any available funds.>
10-22 <(h) The Board shall adopt an official seal and the form of
10-23 a license of suitable design and shall have an office where all the
10-24 permanent records shall be kept.>
10-25 <(i) The Board by rule shall adopt requirements for the
10-26 continuing education of licensees under this Act in subjects
10-27 pertaining to the fitting and dispensing of hearing aids. The
11-1 Board by rule may approve specific courses of instruction or
11-2 establish minimum content requirements of courses of continuing
11-3 professional education and provide programs for continuing
11-4 education.>
11-5 SECTION 6. Section 4A, Chapter 366, Acts of the 61st
11-6 Legislature, Regular Session, 1969 (Article 4566-1.04A, Vernon's
11-7 Texas Civil Statutes), is amended to read as follows:
11-8 Sec. 4A. COMMITTEE EMPLOYEES <PERSONNEL POLICIES>. The
11-9 department shall provide administrative and clerical employees
11-10 necessary to implement the provisions of this Act <(a) The
11-11 President of the Board or his designee shall develop an intraagency
11-12 career ladder program, one part of which shall be the intraagency
11-13 posting of all nonentry level positions for at least 10 days
11-14 before any public posting.>
11-15 <(b) The President of the Board or his designee shall
11-16 develop a system of annual performance evaluations based on
11-17 measurable job tasks. All merit pay for Board employees must be
11-18 based on the system established under this subsection.>
11-19 <The Board may recognize, prepare, or carry out continuing
11-20 education programs for its licensees. Participation in the
11-21 programs is voluntary>.
11-22 SECTION 7. Section 5, Chapter 366, Acts of the 61st
11-23 Legislature, Regular Session, 1969 (Article 4566-1.05, Vernon's
11-24 Texas Civil Statutes), is amended to read as follows:
11-25 Sec. 5. SEAL AND AUTHENTICATION OF RECORDS. (a) The
11-26 committee <Board> shall adopt a seal that the committee shall use
11-27 to authenticate its proceedings <preserve an accurate record of all
12-1 meetings and proceedings of the Board>.
12-2 (b) A copy of the proceedings, records, and acts of the
12-3 committee or a certificate purporting to relate the facts
12-4 concerning the proceedings, records, and acts that is signed by the
12-5 secretary-treasurer and authenticated by the seal is prima facie
12-6 evidence in all courts of this state of authenticity of the
12-7 document <A record shall be kept showing the name, age and present
12-8 legal and mailing address of each applicant for examination. The
12-9 record shall also show whether applicants were rejected or licensed
12-10 and shall be prima facie evidence of all matters therein contained.>
12-11 <(c) The Secretary-Treasurer of the Board shall on or before
12-12 March 1st of each year send a certified copy of such record to the
12-13 Secretary of State for permanent record. A certified copy of said
12-14 record with the hand and seal of the Secretary-Treasurer of the
12-15 Board to the Secretary of State, shall be admitted as evidence in
12-16 all courts.>
12-17 <(d) The Board shall keep a record of each license issued
12-18 under this Act containing the name, residence, place of business of
12-19 the person to whom each license has been issued, and the date of
12-20 issuance of each of such license and all information pertaining to
12-21 renewals, revocations and suspensions of such licensee>.
12-22 SECTION 8. Section 6, Chapter 366, Acts of the 61st
12-23 Legislature, Regular Session, 1969 (Article 4566-1.06, Vernon's
12-24 Texas Civil Statutes), is amended to read as follows:
12-25 Sec. 6. EXAMINATION: APPLICATION. (a) Each <Every> person
12-26 desiring to engage in fitting and dispensing hearing instruments
12-27 <aids> in this state must <the State of Texas shall be required to>
13-1 pass an examination given by the committee <Texas Board of
13-2 Examiners in the Fitting and Dispensing of Hearing Aids>.
13-3 (b) The applicant must <shall> make application, furnishing
13-4 to the secretary-treasurer <Secretary-Treasurer> of the committee
13-5 <Board> on forms to be furnished by the committee <Board>, 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 committee shall administer or
13-13 arrange for the administration of a written examination. The
13-14 written examination shall be validated by an independent testing
13-15 professional. The examination must <shall> cover the following
13-16 areas as they relate to the fitting and dispensing of hearing
13-17 instruments <aids>:
13-18 (1) basic <Basic> physics of sound;
13-19 (2) <The> structure and function of hearing
13-20 instruments <aids>;
13-21 (3) fitting <Fitting> of hearing instruments <aids>;
13-22 (4) pure <Pure> tone audiometry, including air
13-23 conduction testing and bone conduction testing;
13-24 (5) live <Live> voice and <and/or> record voice speech
13-25 audiometry;
13-26 (6) masking <Masking> when indicated for air
13-27 conduction, bone conduction, and speech;
14-1 (7) recording <Recording> and evaluation of audiograms
14-2 and speech audiometry to determine the hearing instrument <aid>
14-3 candidacy;
14-4 (8) selection <Selection> and adaption of hearing
14-5 instruments, <aids and> testing of hearing instruments, and
14-6 verification of aided hearing instrument performance <aids>; <and>
14-7 (9) taking <Taking> of earmold impressions;
14-8 (10) verification of hearing instrument fitting and
14-9 functional gain measurements using a calibrated system;
14-10 (11) anatomy and physiology of the ear;
14-11 (12) counseling and aural rehabilitation of the
14-12 hearing impaired;
14-13 (13) using an otoscope for the visual observation of
14-14 the entire ear canal; and
14-15 (14) laws, rules, and regulations of this state and
14-16 the United States.
14-17 (d) The <No part of the> examination may not test <shall
14-18 consist of tests requiring> knowledge of the diagnosis or <and/or>
14-19 treatment of any disease or injury to the human body.
14-20 (e) Each applicant shall be given due notice of the date and
14-21 place of the examination and the subjects, areas, and <and/or>
14-22 skills that will be included in the <within such> examination, and
14-23 there shall be no changes in those <said> subjects, areas, and
14-24 <and/or> skills after the date of the examination has been
14-25 announced and publicized. All examinations shall be conducted in
14-26 writing and by such other means as the committee <Board> shall
14-27 determine adequate to ascertain the qualifications of applicants.
15-1 Upon reexamination, a person who has previously failed shall be
15-2 examined only on those portions of the examination that the person
15-3 <which he> failed. Every applicant successfully passing the
15-4 examination and meeting all the requirements of this Act shall be
15-5 registered by the committee <Board> as possessing the
15-6 qualifications required by this Act and shall be issued an
15-7 apprentice permit <receive from the Board a license> to fit and
15-8 dispense hearing instruments <aids> in this state.
15-9 (f) The committee <Board>, in its discretion, may refuse to
15-10 examine an applicant who <if he> has been convicted of <a felony
15-11 or> a misdemeanor that involved moral turpitude or a felony.
15-12 (g) Within 30 days after the date a licensing examination is
15-13 administered under this Act, the committee <Board> shall notify
15-14 each examinee of the results of the examination. However, if an
15-15 examination is graded or reviewed by a national testing service,
15-16 the committee <Board> shall notify each examinee of the results of
15-17 the examination within two weeks after the date the committee
15-18 <Board> receives the results from the testing service. If the
15-19 notice of the examination results will be delayed for more than 90
15-20 days after the examination date, the committee <Board> shall notify
15-21 each examinee of the reason for the delay before the 90th day. If
15-22 requested in writing by a person who fails the licensing
15-23 examination administered under this Act, the committee <Board>
15-24 shall furnish the person with an analysis of the person's
15-25 performance on the examination.
15-26 SECTION 9. Section 8, Chapter 366, Acts of the 61st
15-27 Legislature, Regular Session, 1969 (Article 4566-1.08, Vernon's
16-1 Texas Civil Statutes), is amended to read as follows:
16-2 Sec. 8. þNReciprocal Arrangements.ää (a) On <Upon> proper
16-3 application, the committee <Texas Board of Examiners in Fitting and
16-4 Dispensing of Hearing Aids> shall grant a license to fit and
16-5 dispense hearing instruments <aids> without requiring an
16-6 examination to license holders <licentiates> of other states or
16-7 territories having requirements equivalent to or higher than those
16-8 in effect under <pursuant to> this Act for fitting and dispensing
16-9 hearing instruments <aids>.
16-10 (b) Applications for license under the provisions of this
16-11 section must <shall> be in writing and on <upon> a form prescribed
16-12 by the committee <Board>. An application <Such applications> shall
16-13 be filed with the secretary-treasurer <Secretary-Treasurer> of the
16-14 committee <Board>. The application shall be accompanied by
16-15 documentation that clearly shows that the state, territory, or
16-16 other authority under which the applicant was practicing has
16-17 minimum requirements equivalent to or higher than those in effect
16-18 under this Act <a license or a certified copy of a license to fit
16-19 and dispense hearing aids, lawfully issued to the applicant by some
16-20 other state or territory; and shall also be accompanied by an
16-21 affidavit of the President or Secretary of the Board of Examiners
16-22 in Fitting and Dispensing Hearing Aids who issued the license. The
16-23 affidavit shall recite that the accompanying certificate or license
16-24 has not been cancelled or revoked, and that the statement of
16-25 qualifications made in this application for license in Texas is
16-26 true and correct>.
16-27 (c) In addition to any other documentation required by the
17-1 committee, the committee shall request the following in making a
17-2 determination on an application for a reciprocal arrangement:
17-3 (1) an opinion from the attorney general's office as
17-4 to whether the state, territory, or authority under which the
17-5 applicant was practicing has minimum requirements equivalent to or
17-6 higher than those in effect under this Act; and
17-7 (2) all written records from the state, territory, or
17-8 authority under which the applicant was practicing regarding the
17-9 applicant, including a copy of the written examination, the
17-10 practicum examination, the outline of the oral examination, and any
17-11 other information necessary for the committee's decision
17-12 <Applicants for a license under the provisions of this section
17-13 shall subscribe to an oath in writing which shall be a part of said
17-14 application, stating that the license, certificate or authority
17-15 under which the applicant fits and dispenses hearing aids in the
17-16 state or territory from which the applicant is removed, was at that
17-17 time of such removal in full force and not suspended or cancelled;
17-18 that the applicant is the identical person to whom the said
17-19 certificate or license was issued and that no proceeding was
17-20 pending at the time of such removal, or at the present time pending
17-21 against the applicant for the cancellation, suspension or
17-22 revocation or such certificate or license in the state or territory
17-23 in which the same was issued and that no prosecution was then or at
17-24 the time of application pending against the applicant in any state
17-25 or federal court for any offense under the laws of Texas which is a
17-26 felony>.
17-27 SECTION 10. Section 9, Chapter 366, Acts of the 61st
18-1 Legislature, Regular Session, 1969 (Article 4566-1.09, Vernon's
18-2 Texas Civil Statutes), is amended to read as follows:
18-3 Sec. 9. TEMPORARY TRAINING PERMIT. (a) The committee
18-4 <Board> shall grant a temporary training permit to fit and dispense
18-5 hearing instruments <aids> to any person applying to the committee
18-6 <Board> who has never taken the examination provided in the Act and
18-7 who possesses the qualifications in Subsection (b) of Section 6<,>
18-8 of this Act, on <upon> written application to the
18-9 secretary-treasurer <Secretary-Treasurer> of the committee. The
18-10 <Board, the> applicant must <shall> make application on forms to be
18-11 furnished by the committee <Board> furnishing sworn evidence that
18-12 the applicant <he> possesses the qualifications contained in
18-13 Subsection (b), Section 6, of this Act, that the applicant <he> has
18-14 never taken the examination provided in this Act, and that the
18-15 applicant <he> has never previously been issued in this state a
18-16 temporary training permit to fit and dispense hearing instruments
18-17 <aids by the Board>.
18-18 (b) The application for a temporary training permit must
18-19 <shall> be accompanied by the affidavit of a person <duly> licensed
18-20 and qualified to fit and dispense hearing instruments <aids> in
18-21 this state. The accompanying affidavit must <shall> state that the
18-22 applicant, if granted a temporary training permit, will be
18-23 supervised by the affiant in all work done by the applicant under
18-24 the <such> temporary training permit and<,> that the affiant will
18-25 notify the committee <Board> within 10 days following the
18-26 applicant's terminating of supervision by the affiant.
18-27 (c) A temporary training permit shall authorize the permit
19-1 holder <thereof,> to fit and dispense hearing instruments <aids>
19-2 for a period of one year or until the permit holder <thereof> shall
19-3 have successfully passed the examination required for a license
19-4 under this Act, whichever occurs first.
19-5 (d) A temporary training permit <shall> automatically
19-6 becomes <become> void on the first anniversary <at the end> of the
19-7 <period of 6 months from the> date of its issuance unless extended
19-8 for an additional period not to exceed 6 months by the committee
19-9 <Board>. The committee may not <Board shall never> extend a
19-10 temporary training permit more than one time.
19-11 (e) The committee <Board> shall establish educational
19-12 guidelines, both formal and practical, for the training of
19-13 temporary training permit holders. The training guidelines must
19-14 <shall> include directions to the training supervisor about the
19-15 subject matter to be taught, length of the training <period>,
19-16 extent of a trainee's <trainee> contact with the public, and
19-17 responsibility of the training supervisor for direct supervision of
19-18 all aspects of the training <period>. A trainee shall be required
19-19 to have at least 150 hours of supervised practicum that shall
19-20 include the following:
19-21 (1) 25 hours of pure tone air conduction, bone
19-22 conduction, and speech audiometry, recorded and live voice;
19-23 (2) 25 hours of hearing instrument evaluations
19-24 including sound field measurements with recorded and live voice;
19-25 (3) 20 hours of instrument fittings with actual
19-26 clients;
19-27 (4) 10 hours of earmold orientation types, uses, and
20-1 terminology;
20-2 (5) 15 hours of earmold impressions and otoscopic
20-3 examinations of the ear;
20-4 (6) 15 hours of troubleshooting of defective hearing
20-5 instruments;
20-6 (7) 20 hours of case history with actual clients;
20-7 (8) 10 hours of the laws governing the licensing of
20-8 persons fitting and dispensing hearing instruments and federal Food
20-9 and Drug Administration and Federal Trade Commission regulations
20-10 relating to the fitting and dispensing of hearing instruments; and
20-11 (9) 10 hours of supplemental work in one or more of
20-12 the above areas.
20-13 (f) The length of the training may not be shorter than 200
20-14 days. The training period begins on the date of the issuance of
20-15 the temporary permit.
20-16 (g) The satisfactory completion of the requirements of this
20-17 section by the supervisor and trainee must be verified before a
20-18 trainee may take the examination.
20-19 (h) A supervisor of a temporary training permit holder must
20-20 be licensed under this Act. The supervision of a permit holder
20-21 shall entail the direct involvement of the supervisor. A
20-22 supervisor may not supervise more than two trainees at any one
20-23 time.
20-24 (i) A supervisor under this Act shall:
20-25 (1) be responsible for the day-to-day supervision of
20-26 the trainee and be ultimately responsible for the service to a
20-27 client treated by the trainee;
21-1 (2) provide the trainee with materials and equipment
21-2 necessary for appropriate audiometric and hearing instrument
21-3 evaluation and fitting procedures;
21-4 (3) supplement the trainee's background information
21-5 through reading lists and other references;
21-6 (4) be responsible for conducting in-service training
21-7 for the trainee;
21-8 (5) act as a consultant to the trainee by providing
21-9 time for conferences for the trainee and providing a variety of
21-10 resource materials, approaches, and techniques that are based on
21-11 sound theory, successful practice, or documented research;
21-12 (6) establish goals with the trainee that are
21-13 realistic, easily understandable, and directed toward the
21-14 successful completion of trainee requirements;
21-15 (7) observe the trainee during the practicum, confer
21-16 with the trainee following trainee contact with clients, and
21-17 provide an opportunity for the trainee to comment on the practicum
21-18 experience, during and after the practicum experience, either in
21-19 writing or through conferences;
21-20 (8) establish that the responsibility for the
21-21 trainee's practicum is solely that of the supervisor and that the
21-22 daily supervision of the trainee is also the responsibility of the
21-23 supervisor;
21-24 (9) assist and encourage the trainee to utilize
21-25 supportive professional sources;
21-26 (10) be aware of and adhere to state and federal laws
21-27 relating to hearing instrument fitting and dispensing; and
22-1 (11) be aware of and assist the trainee in fulfilling
22-2 licensing requirements of this Act.
22-3 (j) A temporary training permit holder may not:
22-4 (1) own, manage, or independently operate a business
22-5 that engages in the fitting or sale of hearing instruments; or
22-6 (2) advertise or otherwise represent that the permit
22-7 holder holds a license as a hearing instrument dispenser.
22-8 (k) On the request of either a supervisor or a trainee, the
22-9 committee may approve a transfer of a trainee from the trainee's
22-10 supervisor to another eligible supervisor before the completion of
22-11 training. A transfer request must be acted on by the committee at
22-12 the first available committee meeting after the request. The
22-13 committee may approve a second transfer before the completion of
22-14 the training program only under exceptional circumstances and may
22-15 not approve a subsequent transfer. If a transfer is approved,
22-16 credit may be transferred at the discretion of the committee.
22-17 SECTION 11. Chapter 366, Acts of the 61st Legislature,
22-18 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
22-19 Civil Statutes), is amended by adding Section 9A to read as
22-20 follows:
22-21 Sec. 9A. APPRENTICE PERMIT. (a) A temporary training
22-22 permit holder who has taken all parts of the examination given by
22-23 the committee and has passed all parts of the examination with a
22-24 score of 70 percent or greater shall be issued an apprentice permit
22-25 to fit and dispense hearing instruments. An apprentice permit
22-26 remains valid for one year unless it is extended by the committee
22-27 for an additional period not to exceed six months.
23-1 (b) An apprentice permit holder shall work under the
23-2 supervision of a licensed hearing instrument dispenser for at least
23-3 one year. During the apprentice year, the apprentice permit holder
23-4 shall complete 18 hours of classroom continuing education in
23-5 subjects required by the committee.
23-6 (c) A hearing instrument dispenser's license shall be issued
23-7 to an apprentice permit holder when the committee has received
23-8 sufficient evidence that the apprentice permit holder has met all
23-9 the requirements of this Act for a hearing instrument dispenser's
23-10 license.
23-11 SECTION 12. Section 10, Chapter 366, Acts of the 61st
23-12 Legislature, Regular Session, 1969 (Article 4566-1.10, Vernon's
23-13 Texas Civil Statutes), is amended to read as follows:
23-14 Sec. 10. GROUNDS FOR DISCIPLINARY ACTIONS. The committee
23-15 may refuse to issue or renew a license or it may <Board shall>
23-16 revoke or suspend a permit or license, place on probation a person
23-17 whose permit or license has been suspended, or reprimand a permit
23-18 <permittee> or license holder <licensee> for any of the following
23-19 <violations>:
23-20 (1) making a material misstatement in furnishing
23-21 information to the committee or to any other state or federal
23-22 agency;
23-23 (2) a violation of <The temporary trainee or licensee
23-24 is guilty of any fraud, deceit or misrepresentation in the fitting
23-25 and dispensing of hearing aids or in his seeking of a license under
23-26 this Act.>
23-27 <(2) The temporary trainee or licensee is convicted of
24-1 a felony or a misdemeanor which involves moral turpitude.>
24-2 <(3) The temporary trainee or licensee is unable to
24-3 fit and dispense hearing aids with reasonable skill and safety to
24-4 customers by reason of incompetence, age, illness, drunkenness,
24-5 excessive use of drugs, narcotics, chemicals, or any other type of
24-6 material or as a result of any condition causing the temporary
24-7 trainee or licensee to become mentally or physically incapable as
24-8 determined by a court of competent jurisdiction.>
24-9 <(4) The temporary trainee or licensee has violated>
24-10 any of the provisions of this Act or <Board> rules adopted under
24-11 this Act;<.>
24-12 (3) being convicted of a felony or misdemeanor
24-13 containing dishonesty as an essential element or of any crime
24-14 directly related to the practice of fitting and dispensing hearing
24-15 instruments;
24-16 (4) making a misrepresentation for the purpose of
24-17 obtaining or renewing a license, including falsification of the
24-18 educational requirements under this Act;
24-19 (5) being professionally incompetent or engaging in
24-20 malpractice or dishonorable, unethical, or unprofessional conduct
24-21 that is likely to deceive, defraud, or harm the public;
24-22 (6) aiding or assisting another person in violating
24-23 this Act or a rule adopted under this Act;
24-24 (7) failing to provide information in response to a
24-25 written request made by the committee within 60 days;
24-26 (8) <(5) The licensee has> knowingly, directly or
24-27 indirectly, employing, hiring, procuring, or inducing <employed,
25-1 hired, procured, or induced> a person not licensed to fit and
25-2 dispense hearing instruments <aids> in this state, to so fit and
25-3 dispense hearing instruments;
25-4 (9) aiding or abetting <aids.>
25-5 <(6) The licensee aids or abets> any person not duly
25-6 licensed under this Act in the fitting or dispensing of hearing
25-7 instruments; <aids.>
25-8 (10) being habitually intoxicated or addicted to a
25-9 controlled substance;
25-10 (11) directly or indirectly giving to or receiving
25-11 from a person a fee, commission, rebate, or other form of
25-12 compensation for a service not actually rendered;
25-13 (12) violating a term of probation;
25-14 (13) wilfully making or filing false records or
25-15 reports;
25-16 (14) having a physical illness that results in the
25-17 inability to practice the profession with reasonable judgment,
25-18 skill, or safety, including the deterioration or loss of motor
25-19 skills through the aging process;
25-20 (15) soliciting a service by advertising that is false
25-21 or misleading;
25-22 (16) participating in subterfuge or misrepresentation
25-23 in the fitting or dispensing of a hearing instrument;
25-24 (17) knowingly advertising a model or type of hearing
25-25 instrument for sale when the advertised model or type cannot be
25-26 purchased;
25-27 (18) falsely representing that the service of a
26-1 licensed physician or other health professional will be used or
26-2 made available in the fitting, adjustment, maintenance, or repair
26-3 of a hearing instrument;
26-4 (19) using "doctor," "audiologist," "clinic,"
26-5 "clinical audiologist," "state licensed," "state certified,"
26-6 "licensed hearing instrument dispenser," "committee certified
26-7 hearing instrument specialist," "hearing instrument specialist," or
26-8 any other term, abbreviation, or symbol that falsely gives the
26-9 impression that:
26-10 (A) a service is being provided by a person who
26-11 is licensed or has been awarded a degree or title; or
26-12 (B) the person providing a service has been
26-13 recommended by a governmental agency or health provider;
26-14 (20) advertising a manufacturer's product or using a
26-15 manufacturer's name or trademark in a way that implies a
26-16 relationship between a permit or license holder and a manufacturer
26-17 that does not exist;
26-18 <(7) The licensee lends, leases, rents, or in any
26-19 other manner places his license at the disposal or in the service
26-20 of any person not licensed to fit and dispense hearing aids in this
26-21 state.>
26-22 <(8) The licensee knowingly used or caused or promoted
26-23 the use of any advertising matter, promotional literature,
26-24 guarantees, warranty, disseminated or published with misleading,
26-25 deceiving or false information. It is the intention of the
26-26 Legislature that the provisions of this subdivision be interpreted
26-27 insofar as possible to coincide with the orders and rules of the
27-1 Federal Trade Commission on such subjects.>
27-2 <(9) The licensee represented that the service or
27-3 advice of a person licensed to practice medicine by the Texas State
27-4 Board of Medical Examiners is used or made available in the
27-5 selection, fitting, adjustment, maintenance, or repair of a hearing
27-6 aid when such representation was not true.>
27-7 <(10) The licensee used the term "doctor," "clinic" or
27-8 any like words, abbreviations or symbols in the conduct of his
27-9 business which would tend to connote that the licensee was a
27-10 physician or surgeon.>
27-11 <(11) The licensee obtained or attempted to obtain
27-12 information concerning the business of another licensee under this
27-13 Act by bribery, or attempting to bribe an employee or agent of such
27-14 other licensee or by the impersonation of one in authority.>
27-15 (21) <(12) The licensee> directly or indirectly giving
27-16 <gave,> or offering <offered> to give or permitting <permitted> or
27-17 causing <caused> to be given money or anything of value to any
27-18 person who advises others in a professional capacity as an
27-19 inducement to influence the <such> person to influence those
27-20 persons that the <such> person advises in a professional capacity
27-21 to purchase or contract to purchase products sold or offered for
27-22 sale by the permit or license holder <licensee> or to refrain from
27-23 purchasing or contracting to purchase products sold or offered for
27-24 sale by any other permit or license holder <licensee> under this
27-25 Act;<.>
27-26 <(13) The licensee falsely represented to a purchaser
27-27 that a hearing aid was "custom-made," "made to order,"
28-1 "prescription-made" or any other representations that such hearing
28-2 aid was specially fabricated for the purchaser.>
28-3 <(14) The licensee refused to accept responsibility
28-4 for the acts of a temporary training permittee in a licensee's
28-5 employ and under licensee's supervision.>
28-6 (22) <(15) The licensee> with fraudulent intent,
28-7 engaging <engaged> in the fitting and dispensing of hearing
28-8 instruments <aids> under a false name or alias;
28-9 (23) conducting business while suffering from a
28-10 contagious disease;
28-11 (24) engaging in the fitting or sale of a hearing
28-12 instrument under a name with fraudulent intent;
28-13 (25) failing to provide adequately for the service or
28-14 repair of a hearing instrument fitted and sold by the license
28-15 holder; or
28-16 (26) violating a regulation of the federal Food and
28-17 Drug Administration or the Federal Trade Commission relating to
28-18 hearing instruments.
28-19 SECTION 13. Section 11, Chapter 366, Acts of the 61st
28-20 Legislature, Regular Session, 1969 (Article 4566-1.11, Vernon's
28-21 Texas Civil Statutes), is amended to read as follows:
28-22 Sec. 11. DISCIPLINARY ACTIONS. (a) If the committee
28-23 <Board> proposes to refuse a person's application for examination,
28-24 to suspend or revoke a person's license or permit, or to probate or
28-25 reprimand a person, the person is entitled to a hearing before the
28-26 committee <Board>.
28-27 (b) The proceedings under this section are governed by the
29-1 Administrative Procedure and Texas Register Act, as amended
29-2 (Article 6252-13a, Vernon's Texas Civil Statutes).
29-3 (c) Proceedings shall be commenced by filing charges with
29-4 the committee <Board> in writing and under oath. The charges may
29-5 be made by any person or persons.
29-6 (d) The president of the committee <Board> shall fix a time
29-7 and place for a hearing and shall cause a copy of the charges,
29-8 together with a notice of the time and place fixed for the hearing
29-9 to be served upon the applicant or license or permit holder
29-10 <licensee> against whom charges have been filed at least 30 days
29-11 before the hearing <prior thereto>. Service of the <such> charges
29-12 and notice <of hearing thereon> may be given by certified mail to
29-13 the last known address of the license or permit holder <such
29-14 licensee> or applicant.
29-15 (e) At the hearing, the <such> applicant or the license or
29-16 permit holder <licensee> shall have the right to appear either
29-17 personally or by counsel or both, to produce witnesses, and to have
29-18 subpoenas issued by the committee <Board> and cross-examine
29-19 opposing or adverse witnesses.
29-20 (f) The committee <Board> shall not be bound by strict rules
29-21 of procedure or by the laws of evidence in the conduct of its
29-22 proceedings but the determination shall be founded upon sufficient
29-23 legal evidence to sustain it.
29-24 (g) The committee <Board> shall determine the charges upon
29-25 their merits. The committee <Board> shall enter an order in the
29-26 permanent records of the committee <Board> setting forth the
29-27 findings of fact and law of the committee <Board> and its action
30-1 <thereon>. A copy of the <such> order of the committee <Board>
30-2 shall be mailed to the <such> applicant or license or permit holder
30-3 at the person's <licensee to his> last known address by certified
30-4 mail.
30-5 (h) Any person whose license to fit and dispense hearing
30-6 instruments <aids> has been refused or has been cancelled, revoked,
30-7 or suspended by the committee <Board,> may, within 20 days after
30-8 making and entering of the <such> order, take an appeal to any
30-9 district court of Travis County or any district court of the county
30-10 of the person's <his> residence.
30-11 (i) <Appeal from the judgment of such district court will
30-12 lie as other civil cases.>
30-13 <(j)> Upon application, the committee <Board> may reissue a
30-14 license to fit and dispense hearing instruments <aids> to a person
30-15 whose license has been cancelled or revoked but the <such>
30-16 application shall not be made prior to the expiration of <a period
30-17 of> six months after the order of cancellation or revocation has
30-18 become final, and the <such> application shall be made in the
30-19 <such> manner and form as the committee <Board> may require.
30-20 SECTION 14. Section 12, Chapter 366, Acts of the 61st
30-21 Legislature, Regular Session, 1969 (Article 4566-1.12, Vernon's
30-22 Texas Civil Statutes), is amended to read as follows:
30-23 Sec. 12. FEES AND EXPENSES. (a) The committee by rule
30-24 <Board> shall establish reasonable and necessary fees for the
30-25 administration of this Act. The fees adopted under this section
30-26 may be adjusted so that the total amount of the fees collected are
30-27 sufficient to meet the expenses of administering this Act and so
31-1 that unnecessary surpluses in the fund are avoided.
31-2 (b) All funds received by the committee under this Act shall
31-3 be deposited according to state law in the state treasury in a
31-4 separate account designated as the hearing instrument dispensing
31-5 fund. Funds in that account may be appropriated to the department
31-6 only for the administration of this Act. <in amounts not to
31-7 exceed:>
31-8 <1. Temporary Training Permit $ 40>
31-9 <2. Examination Fee 125>
31-10 <3. License Fee 75>
31-11 <4. License Renewal Fee 220>
31-12 <5. Duplicate Document fee 10>
31-13 <(b) Every person passing the examination and meeting the
31-14 requirements of the Board shall be notified that he is eligible for
31-15 such license upon payment of the fee herein provided. Such notice
31-16 shall be by certified mail at the address given on his examination
31-17 papers. The fee for issuance of such license must be paid by the
31-18 applicant within 90 days after having been notified. Failure to
31-19 pay such fee within such time shall constitute a waiver of the
31-20 right to such person to obtain his license.>
31-21 <(c) The Secretary-Treasurer of the Board shall, on or
31-22 before the 10th day of each month, remit to the State Treasurer all
31-23 of the fees collected by the Board during the preceding month for
31-24 deposit in the General Revenue Fund.>
31-25 <(d) Each member of the Board is entitled to a per diem as
31-26 set by legislative appropriation for each day that the member
31-27 engages in the business of the Board. A member may not receive any
32-1 compensation for travel expenses, including expenses for meals and
32-2 lodging, other than transportation expenses. A member is entitled
32-3 to compensation for transportation expenses as prescribed by the
32-4 General Appropriations Act. The travel expenses allowance for
32-5 members of the Board and its employees shall be provided in the
32-6 General Appropriations Act. The executive director of the Board
32-7 shall be allowed his actual expenses incurred while traveling on
32-8 official business for the Board.>
32-9 <(e) The number of days for which compensation may be paid
32-10 to members of the Board shall not exceed two days in any calendar
32-11 month except in those months in which examinations are held, but
32-12 compensations may never be allowed to exceed six days in those
32-13 months in which examinations are held.>
32-14 <(f) The Board may authorize all necessary disbursements to
32-15 carry out the provisions of this Act, including payment of the
32-16 premium on the bond of the Secretary-Treasurer, stationery
32-17 expenses, purchase and maintain or rent equipment and facilities
32-18 necessary to carry out the examinations of applications for
32-19 license; pay for printing of all licenses; rent and furnish an
32-20 office to maintain the permanent records of the Board.>
32-21 <(g) Funds for the administration of this Act shall be
32-22 provided by the General Appropriations Act from the General Revenue
32-23 Fund. The financial transactions of the Board are subject to audit
32-24 by the state auditor in accordance with Chapter 321, Government
32-25 Code.>
32-26 SECTION 15. Section 12A, Chapter 366, Acts of the 61st
32-27 Legislature, Regular Session, 1969 (Article 4566-1.12A, Vernon's
33-1 Texas Civil Statutes), is amended to read as follows:
33-2 Sec. 12A. FALSE, MISLEADING, OR DECEPTIVE ADVERTISEMENTS.
33-3 (a) The committee <Board> may not adopt rules restricting
33-4 competitive bidding or advertising by a person regulated by the
33-5 committee <Board> except to prohibit false, misleading, or
33-6 deceptive practices by the person. The committee <Board> may not
33-7 include in its rules to prohibit false, misleading, or deceptive
33-8 practices by a person regulated by the committee <Board> a rule
33-9 that:
33-10 (1) restricts the person's use of any medium for
33-11 advertising;
33-12 (2) restricts the person's personal appearance or use
33-13 of the person's <his> voice in an advertisement;
33-14 (3) relates to the size or duration of an
33-15 advertisement by the person; or
33-16 (4) restricts the person's advertisement under a trade
33-17 name.
33-18 (b) An advertisement is false, misleading, or deceptive if
33-19 the advertisement:
33-20 (1) contains a misrepresentation of fact;
33-21 (2) contains a false statement as to the license
33-22 holder's professional achievements, education, skills, or
33-23 qualifications in the hearing instrument dispensing profession;
33-24 (3) makes a partial disclosure of relevant fact,
33-25 including:
33-26 (A) the advertisement of a discounted price of
33-27 an item without identifying in the advertisement or at the location
34-1 of the item either the specific product being offered at the
34-2 discounted price or the usual price of the item; and
34-3 (B) the advertisement of the price of a
34-4 specifically identified hearing instrument if more than one hearing
34-5 instrument appears in the same advertisement without an
34-6 accompanying price;
34-7 (4) contains a representation that a product
34-8 innovation is new when, in fact, the product was first offered by
34-9 the manufacturer to the general public in this state not less than
34-10 12 months before the date of the advertisement;
34-11 (5) contains any other representation, statement, or
34-12 claim that is inherently misleading or deceptive; or
34-13 (6) contains information that the license holder
34-14 manufactures hearing instruments at the license holder's office
34-15 location unless the following statement includes a statement
34-16 disclosing that the instruments are manufactured by a specified
34-17 manufacturer and remanufactured by the license holder.
34-18 SECTION 16. Section 12B, Chapter 366, Acts of the 61st
34-19 Legislature, Regular Session, 1969 (Article 4566-1.12B, Vernon's
34-20 Texas Civil Statutes), is amended to read as follows:
34-21 Sec. 12B. CONSUMER INFORMATION AND COMPLAINTS. (a) The
34-22 committee <Board> shall prepare information of consumer interest
34-23 describing the regulatory functions of the committee <Board> and
34-24 the committee's <Board's> procedures by which consumer complaints
34-25 are filed with and resolved by the committee <Board>. The
34-26 committee <Board> shall make the information available to the
34-27 general public and appropriate state agencies.
35-1 (b) Each written contract for services in this state of a
35-2 licensed hearing instrument <aid fitter and> dispenser shall
35-3 contain the name, mailing address, and telephone number of the
35-4 committee <Board>. There shall at all times be prominently
35-5 displayed in the place of business of each license or permit holder
35-6 <licensee> regulated under this Act a sign containing the name,
35-7 mailing address, and telephone number of the committee <Board> and
35-8 a statement informing consumers that complaints against license or
35-9 permit holders <licensees> can be directed to the committee
35-10 <Board>.
35-11 (c) The committee <Board> shall establish guidelines for a
35-12 30-day trial period on every hearing instrument <aid> purchased
35-13 from a licensed hearing instrument <aid fitter and> dispenser. The
35-14 guidelines must require that a purchaser be informed of the trial
35-15 period by a written agreement provided to the purchaser before the
35-16 purchase or delivery of the hearing instrument. The written
35-17 agreement must include all charges that may be associated with the
35-18 trial period and include the name, address, and phone number of the
35-19 committee. A purchaser of a hearing instrument is entitled to a
35-20 refund of the full purchase price of the hearing instrument on the
35-21 return of the instrument to the license holder in good working
35-22 order, except for normal wear and tear, if the return is made not
35-23 later than the 30th day after the date of the purchase or delivery
35-24 of the hearing instrument. A person may cancel the purchase of a
35-25 hearing instrument during the 30-day trial period. If a person
35-26 decides to cancel the purchase of the hearing instrument during the
35-27 trial period, the license holder who fitted the hearing instrument
36-1 shall refund the purchase price to the purchaser as provided by
36-2 this subsection. The purchaser is not entitled to a refund of a
36-3 fee charged for the fitting of the hearing instrument. A purchaser
36-4 entitled to a refund must receive the refund not later than the
36-5 30th day after the date on which the purchaser returned the hearing
36-6 instrument. A hearing instrument that has been used during the
36-7 30-day trial period is considered to be a used hearing instrument
36-8 and may not be sold as new.
36-9 (d) A license holder may have a hearing instrument that is
36-10 returned during the 30-day trial period reconditioned by the
36-11 manufacturer or a repair and reconditioning service authorized and
36-12 approved by the manufacturer. After reconditioning of the
36-13 instrument and the certification by the person who reconditioned
36-14 the instrument that the instrument meets the acoustical standards
36-15 of a new hearing instrument, the license holder may sell the
36-16 instrument as a new hearing instrument.
36-17 (e) <(d)> The committee <Board> shall keep an information
36-18 file about each complaint filed with the committee <Board> relating
36-19 to a license or permit holder <licensee>. If a written complaint
36-20 is filed with the committee <Board> relating to a license or permit
36-21 holder <licensee>, the committee <Board>, at least as frequently as
36-22 quarterly and until final disposition of the complaint, shall
36-23 notify the parties to the complaint of the status of the complaint
36-24 unless the notice would jeopardize an undercover investigation.
36-25 SECTION 17. Section 13, Chapter 366, Acts of the 61st
36-26 Legislature, Regular Session, 1969 (Article 4566-1.13, Vernon's
36-27 Texas Civil Statutes), is amended to read as follows:
37-1 Sec. 13. RENEWAL OF LICENSE. (a) Each license to fit and
37-2 dispense hearing instruments <aids> shall be issued for the term of
37-3 one year and shall, unless suspended or revoked, be renewed
37-4 annually on September 1 on payment of the renewal fee.
37-5 (b) A person may renew an <his> unexpired license by paying
37-6 to the committee <Board> before the expiration date of the license
37-7 the required renewal fee.
37-8 (c) If a person's license has been expired for not more than
37-9 90 days, the person may renew the license by paying to the
37-10 committee <Board> the required renewal fee and a fee that is
37-11 one-half of the examination fee for the license.
37-12 (d) If a person's license has been expired for more than 90
37-13 days but less than two years, the person may renew the license by
37-14 paying to the committee <Board> all unpaid renewal fees and a fee
37-15 that is equal to the examination fee for the license.
37-16 (e) If a person's license has been expired for two years or
37-17 more, the person may not renew the license. The person may obtain
37-18 a new license by submitting to reexamination and complying with the
37-19 requirements and procedures for obtaining an original license.
37-20 (f) Before a license can be renewed, the committee <Board>
37-21 shall require certification that all testing equipment, both
37-22 portable and stationary, used by the license holder <licensee> has
37-23 been calibrated within one year prior to the renewal date.
37-24 (g) Before a license can be renewed, a license holder
37-25 <licensee> must demonstrate compliance with the requirements of
37-26 continuing education established by the committee <Board> under
37-27 Section 14A <Subsection (i) of Section 4> of this Act.
38-1 On written request, the committee <Board> shall provide an
38-2 alternative mechanism for meeting the continuing education
38-3 requirement through examination.
38-4 The committee <Board> may waive compliance with the
38-5 continuing education requirement for license renewal in an
38-6 individual case upon evidence of hardship or inability to meet the
38-7 requirement. The waiver may be granted after review by the
38-8 committee <Board> on an annual basis.
38-9 (h) Fitting and dispensing a hearing instrument <aids>
38-10 without an annual renewal certificate for the current year as
38-11 provided by this section <herein> shall <have the same force and
38-12 effect and> be subject to the same penalties as fitting and
38-13 dispensing a hearing instrument <aids> without a license.
38-14 (i) The committee <Board> shall issue a duplicate license to
38-15 any license holder <licensee> whose license has been lost or
38-16 destroyed and the committee <Board> shall have the authority to
38-17 prescribe the procedure and requirements for the issuance of the
38-18 duplicate license.
38-19 SECTION 18. Section 14, Chapter 366, Acts of the 61st
38-20 Legislature, Regular Session, 1969 (Article 4566-1.14, Vernon's
38-21 Texas Civil Statutes), is amended to read as follows:
38-22 Sec. 14. DUTY OF A LICENSE HOLDER <LICENSEE>. (a) Every
38-23 person engaged in the fitting and dispensing of hearing instruments
38-24 <aids> in this state shall display the person's <his> license in a
38-25 conspicuous place in the person's <his> principal office and
38-26 whenever required, exhibit the <such> license to the committee
38-27 <Board> or its authorized representatives.
39-1 (b) Every license holder <licensee> shall deliver to each
39-2 person supplied with a hearing instrument <aid>, by the license
39-3 holder <licensee> or under the license holder's <his> direction, a
39-4 bill of sale which shall contain the license holder's <his>
39-5 signature, the license holder's <his> printed name, the address of
39-6 the license holder's <his> principal office, the number of the
39-7 license holder's <his> license, a description of the make and model
39-8 of the hearing instrument <aid> furnished and the amount charged
39-9 for the hearing instrument <therefor>, and whether the hearing
39-10 instrument <aid> is new, used, or rebuilt.
39-11 (c) An <Such receipt as required in Subsection (b) of this
39-12 section shall be accompanied by the following statement in no
39-13 smaller type than the largest type used in the body portion of such
39-14 receipt, to-wit:>
39-15 <"The purchaser has been advised at the outset of his
39-16 relationship with the undersigned fitter and dispenser of hearing
39-17 aids that any examination or representation made by a licensed
39-18 fitter and dispenser of hearing aids in connection with the fitting
39-19 and selling of this hearing aid is not an examination, diagnosis or
39-20 prescription by a person duly licensed and qualified as a physician
39-21 or surgeon authorized to practice medicine in the State of Texas
39-22 and, therefore, must not be regarded as medical opinion or advice.">
39-23 <(d) Every licensee must, when dealing with a child 10
39-24 years of age or under, ascertain whether the child has been
39-25 examined by an otolaryngologist for his recommendation within 90
39-26 days prior to the fitting. If such is not the case, a
39-27 recommendation by the licensee to do so must be made and this fact
40-1 noted on the bill of sale required in Subsection (b) of this
40-2 Section.>
40-3 <(e) Any> individual licensed under this Act shall seek
40-4 personally or through proper referral channels to obtain the
40-5 following minimal information on each prospective candidate for
40-6 amplification:
40-7 (1) pertinent case history;
40-8 (2) otoscopic inspection of the outer ear, including
40-9 canal and drumhead;
40-10 (3) evaluation of hearing acuity utilizing puretone
40-11 techniques via air and bone conduction pathways through a
40-12 calibrated system; <and>
40-13 (4) an aided and unaided speech reception threshold
40-14 and ability to differentiate between the phonemic elements of the
40-15 language through speech audiometry, utilizing a calibrated system
40-16 or other acceptable verification techniques; and
40-17 (5) verification of satisfactory aided instrument
40-18 performance by use of appropriate sound field speech, noise, or
40-19 tone testing, utilizing a calibrated system.
40-20 SECTION 19. Chapter 366, Acts of the 61st Legislature,
40-21 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
40-22 Civil Statutes), is amended by adding Section 14A to read as
40-23 follows:
40-24 Sec. 14A. CONTINUING EDUCATION. (a) The committee shall
40-25 require that a fitter and dispenser licensed under this Act
40-26 complete 10 hours of continuing education each year. For purposes
40-27 of this section, each year runs concurrently with the effective
41-1 date of a license issued under this Act.
41-2 (b) The committee shall accept a course for continuing
41-3 education credit that is approved by the Texas Hearing Aid
41-4 Association.
41-5 (c) On written request to the committee, a license holder
41-6 may take the state examination given by the committee. A license
41-7 holder who pays the examination fee and passes the examination
41-8 shall be exempt from the continuing education requirement for the
41-9 year that the test is taken.
41-10 (d) A license holder may be credited with continuing
41-11 education credit hours for a published book or article written by
41-12 the license holder that contributes to the license holder's
41-13 professional competence. No more than five credit hours for
41-14 preparation of a publication may be claimed by a license holder in
41-15 an annual reporting period. The continuing education committee may
41-16 grant credit hours based on the degree that the published book or
41-17 article advances knowledge in the field of fitting and dispensing
41-18 hearing instruments.
41-19 (e) A license holder may receive no more than five
41-20 continuing education credit hours for attendance at a
41-21 manufacturer-sponsored course.
41-22 (f) A license holder who has not complied with the
41-23 continuing education requirements of this section may not be issued
41-24 a renewal license unless the license holder:
41-25 (1) has served in the regular armed forces of the
41-26 United States during part of the 12 months before the annual
41-27 reporting date;
42-1 (2) submits proof from an attending physician that the
42-2 license holder suffered a serious or disabling illness or physical
42-3 disability that prevented compliance with the requirements of this
42-4 section during the 12 months before the annual reporting date; or
42-5 (3) was licensed for the first time during the 12
42-6 months before the annual reporting date.
42-7 (g) A course summary and resume for each teacher of a course
42-8 who seeks approval from the Texas Hearing Aid Association must be
42-9 submitted 30 days before the date the course is scheduled to take
42-10 place. The Texas Hearing Aid Association shall establish criteria
42-11 for the approval of a submitted course.
42-12 (h) A license holder shall provide written proof of
42-13 attendance and completion of an approved course on a form
42-14 prescribed by the committee.
42-15 SECTION 20. Section 15, Chapter 366, Acts of the 61st
42-16 Legislature, Regular Session, 1969 (Article 4566-1.15, Vernon's
42-17 Texas Civil Statutes), is amended to read as follows:
42-18 Sec. 15. PROHIBITED ACTS. (a) It is unlawful for any
42-19 person to:
42-20 (1) buy, sell, or fraudulently obtain a license to fit
42-21 and dispense hearing instruments <aids> or aid another in any of
42-22 those activities <or abet therein>;
42-23 (2) alter a license to fit and dispense hearing
42-24 instruments <aids> with the intent to defraud;
42-25 (3) willfully make a false statement in an application
42-26 to the committee <Texas Board of Examiners of Fitters and
42-27 Dispensers of Hearing Aids> for a license, for a temporary training
43-1 permit, or for the renewal of a license;
43-2 (4) falsely impersonate any person <duly> licensed as
43-3 a fitter and dispenser of hearing instruments <aids> under <the
43-4 provisions of> this Act;
43-5 (5) offer or represent that the person is <hold
43-6 himself out as> authorized to fit and dispense hearing instruments
43-7 <aids>, or use in connection with the person's <his> name any
43-8 designation tending to imply that the person <he> is authorized to
43-9 engage in the fitting and dispensing of hearing instruments <aids>,
43-10 if the person is not <so> licensed under the provisions of this
43-11 Act;
43-12 (6) engage in the fitting and dispensing of hearing
43-13 instruments <aids> during the time the person's <his> license shall
43-14 be cancelled, suspended, or revoked;
43-15 (7) dispense or fit a hearing instrument <aid> on any
43-16 individual who has ordered the <such> hearing instrument <aid> or
43-17 device by mail unless the person dispensing and fitting the <such>
43-18 hearing instrument <aid> or device is licensed under this Act; or
43-19 (8) sell hearing instruments by mail.
43-20 (b) It is unlawful for any person not a licensed <fitter
43-21 and> dispenser of hearing instruments <aids> or a holder of a
43-22 temporary training permit or an apprentice permit provided in this
43-23 Act, or a licensed physician or surgeon to do any one act or thing
43-24 or any combination of acts or things named or described in this
43-25 section <Subsection (b) of Section 1 of this Act>.
43-26 (c) It is unlawful for any license or permit holder
43-27 <licensee> to:
44-1 (1) fail to clearly disclose the holder's <his> name,
44-2 business address, and the purpose of the communication in any
44-3 telephone solicitation of potential customers;
44-4 (2) use or purchase for use a list of names of
44-5 potential customers compiled by a person by telephone other than
44-6 the license or permit holder or the holder's <licensee, his>
44-7 authorized agent or another license or permit holder <licensee>; or
44-8 (3) do any act that <which> requires a license from
44-9 the Texas Optometry Board or the Texas State Board of Medical
44-10 Examiners.
44-11 SECTION 21. Section 16, Chapter 366, Acts of the 61st
44-12 Legislature, Regular Session, 1969 (Article 4566-1.16, Vernon's
44-13 Texas Civil Statutes), is amended to read as follows:
44-14 Sec. 16. ADMINISTRATIVE PENALTIES; INJUNCTION <PENALTY>.
44-15 (a) The committee, with the approval of the board, may impose a
44-16 fine not to exceed $250 plus costs for the first violation and not
44-17 to exceed $1,000 plus costs for each subsequent violation of this
44-18 Act and the rules adopted under this Act on any person or entity
44-19 described in this Act. The fine may be invoked as an alternative
44-20 to any other disciplinary measure, except for probation, as set
44-21 forth by the committee.
44-22 (b) If a person other than a licensed hearing instrument
44-23 dispenser has engaged in any act or practice that constitutes an
44-24 offense under this Act, a district court of any county on
44-25 application of the committee may issue an injunction or other
44-26 appropriate order restraining such conduct. <Whoever violates any
44-27 provision of this Act shall be fined not less than $100.00 nor more
45-1 than $500.00 or be confined in jail for a period of not more than
45-2 90 days, or both.>
45-3 SECTION 22. Chapter 366, Acts of the 61st Legislature,
45-4 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
45-5 Civil Statutes), is amended by adding Section 16A to read as
45-6 follows:
45-7 Sec. 16A. SURETY BONDING. (a) A license holder shall file
45-8 a bond or a surety in lieu of a bond in the amount of $10,000 with
45-9 the committee conditioned on the license holder's promise to pay
45-10 all:
45-11 (1) taxes and contributions due to the state and
45-12 political subdivisions of the state; and
45-13 (2) judgments that the license holder may be required
45-14 to pay for negligently or improperly dispensing hearing instruments
45-15 or for breaching a contract relating to the dispensing of hearing
45-16 instruments.
45-17 (b) A license holder may file with the committee a cash
45-18 deposit or other negotiable security acceptable to the committee in
45-19 the amount required in Subsection (a) of this section in lieu of a
45-20 bond.
45-21 (c) A bond required under this section remains in effect
45-22 until cancelled by action of the surety, the principal, or the
45-23 committee. A person may not commence an action on the bond later
45-24 than the third anniversary of the date the bond was cancelled.
45-25 (d) The purchaser of a hearing instrument may rescind the
45-26 purchase and recover as provided by this section for:
45-27 (1) a material misstatement of fact or
46-1 misrepresentation by the license holder regarding the hearing
46-2 instrument or services to be provided by the license holder that
46-3 were relied on by the purchaser or that induced the purchaser to
46-4 purchase the instrument;
46-5 (2) the failure by the license holder to provide the
46-6 purchaser with an instrument or fitting and dispensing services
46-7 that conform to the specifications of the purchase agreement;
46-8 (3) the diagnosis of a medical condition unknown to
46-9 the purchaser at the time of the purchase that precludes the
46-10 purchaser's use of the instrument;
46-11 (4) the failure by the license holder to remedy a
46-12 significant material defect of the hearing instrument within a
46-13 reasonable time;
46-14 (5) the provision by the license holder of a hearing
46-15 instrument or fitting and dispensing services that are not in
46-16 accordance with accepted industry practices; or
46-17 (6) the failure by the license holder to meet the
46-18 standards of conduct prescribed under this Act or by rules adopted
46-19 under this Act that adversely affects the transaction between the
46-20 purchaser and the license holder.
46-21 SECTION 23. Chapter 366, Acts of the 61st Legislature,
46-22 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
46-23 Civil Statutes), is amended by adding Section 16B to read as
46-24 follows:
46-25 Sec. 16B. OWNERSHIP OF DISPENSING PRACTICE. A person who
46-26 owns, maintains, or operates an office or place of business where
46-27 the person employs or engages under contract a person who practices
47-1 the fitting and dispensing of hearing instruments shall be
47-2 considered under this Act to also be engaged in the practice of
47-3 fitting and dispensing hearing instruments. A person who is
47-4 considered to be practicing the fitting and dispensing of hearing
47-5 instruments under this section shall be required to be licensed and
47-6 to comply with the requirements of this Act.
47-7 SECTION 24. Section 17, Chapter 366, Acts of the 61st
47-8 Legislature, Regular Session, 1969 (Article 4566-1.17, Vernon's
47-9 Texas Civil Statutes), is amended to read as follows:
47-10 Sec. 17. TREATMENT OF EAR DEFECTS AND ADMINISTRATION OF
47-11 DRUGS. This <Nothing contained in this> Act does not <shall be
47-12 construed to> permit a person <persons> licensed under this Act to
47-13 treat the ear for any defect <whatsoever> in any manner, nor to
47-14 administer any drug or physical treatment <whatsoever> unless the
47-15 license holder <licensee> is a <duly qualified> physician or <and>
47-16 surgeon <and> licensed to practice by the Texas State Board of
47-17 Medical Examiners. This <Nothing in this> Act does not <shall be
47-18 construed to> amend or modify the laws regulating the practice of
47-19 medicine as defined by the Medical Practice Act (Article 4495b
47-20 <4510>, Vernon's Texas <Revised> Civil Statutes) <of Texas>.
47-21 SECTION 25. Section 18, Chapter 366, Acts of the 61st
47-22 Legislature, Regular Session, 1969 (Article 4566-1.18, Vernon's
47-23 Texas Civil Statutes), is amended to read as follows:
47-24 Sec. 18. EMPLOYMENT OF LICENSE HOLDER <LICENSEE>. (a)
47-25 Nothing in this Act shall prohibit a corporation, partnership,
47-26 trust, association, or other like organization maintaining an
47-27 established business in this state from engaging in the practice of
48-1 fitting and dispensing hearing instruments <aids> at retail or
48-2 selling or offering for sale hearing instruments <aids> at retail
48-3 without a license, provided that it employs only persons licensed
48-4 under this Act in the direct fitting and dispensing of such
48-5 products, instruments, or devices.
48-6 (b) Any person licensed under this Act who is employed by a
48-7 corporation, partnership, trust, association, or other like
48-8 organization to sell or <and/or> fit hearing instruments <aids>
48-9 shall supply the committee <Board> with the name and address of the
48-10 <such> employer at the time the license holder <such licensee>
48-11 applies for an annual renewal of the <his> license.
48-12 SECTION 26. Sections 21 and 22, Chapter 366, Acts of the
48-13 61st Legislature, Regular Session, 1969 (Article 4566-1.21 and
48-14 4566-1.22, Vernon's Texas Civil Statutes), are repealed.
48-15 SECTION 27. This Act takes effect September 1, 1993.
48-16 SECTION 28. (a) A person holding a license for the fitting
48-17 and dispensing of hearing aids from the Texas Board of Examiners in
48-18 the Fitting and Dispensing of Hearing Aids on August 31, 1993, may
48-19 apply to the State Committee of Examiners in the Fitting and
48-20 Dispensing of Hearing Instruments for a license under Chapter 366,
48-21 Acts of the 61st Legislature, Regular Session, 1969 (Article
48-22 4566-1.01 et seq., Vernon's Texas Civil Statutes), and its
48-23 subsequent amendments without taking the examination required by
48-24 Section 6 of that Act. The committee shall have 14 days from the
48-25 receipt of the application to issue a new license under that Act to
48-26 the applicant.
48-27 (b) An application for a license under Chapter 366, Acts of
49-1 the 61st Legislature, Regular Session, 1969 (Article 4566-1.01 et
49-2 seq., Vernon's Texas Civil Statutes), and its subsequent amendments
49-3 must be received by the committee by December 31, 1993. An
49-4 applicant may continue to fit and dispense hearing instruments
49-5 under the applicant's existing license until the committee issues a
49-6 new license under that Act.
49-7 SECTION 29. (a) The Texas Board of Examiners in the Fitting
49-8 and Dispensing of Hearing Aids is abolished. All powers, duties,
49-9 obligations, and rights of action of that board are transferred to
49-10 the State Committee of Examiners in the Fitting and Dispensing of
49-11 Hearing Instruments in the Texas Department of Health on the
49-12 effective date of this Act. A reference in the law to the Texas
49-13 Board of Examiners in the Fitting and Dispensing of Hearing Aids
49-14 means the State Committee of Examiners in the Fitting and
49-15 Dispensing of Hearing Instruments in the Texas Department of
49-16 Health.
49-17 (b) The personnel, property, records, and funds in the
49-18 custody of the Texas Board of Examiners in the Fitting and
49-19 Dispensing of Hearing Aids on the effective date of this Act are
49-20 transferred to the Texas Department of Health.
49-21 (c) The Texas Department of Health shall continue any
49-22 proceeding brought by the Texas Board of Examiners in the Fitting
49-23 and Dispensing of Hearing Aids before September 1, 1993, in
49-24 accordance with the law in effect on the date the proceeding was
49-25 brought, and the former law is continued in effect for this
49-26 purpose.
49-27 (d) The unobligated and unexpended balance of any
50-1 appropriation made to the Texas Board of Examiners in the Fitting
50-2 and Dispensing of Hearing Aids for the fiscal year ending August
50-3 31, 1993, is transferred to the Texas Department of Health for the
50-4 purpose of implementing this Act.
50-5 SECTION 30. The importance of this legislation and the
50-6 crowded condition of the calendars in both houses create an
50-7 emergency and an imperative public necessity that the
50-8 constitutional rule requiring bills to be read on three several
50-9 days in each house be suspended, and this rule is hereby suspended.