By King H.B. No. 1765
74R5427 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the fitting and dispensing of hearing
1-3 instruments.
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 by amending Subdivision (3) and
1-8 adding Subdivision (14) to read as follows:
1-9 (3) "Temporary training permit" means a permit issued
1-10 by the committee to persons authorized to fit and dispense hearing
1-11 instruments only under the direct or indirect supervision, as
1-12 appropriate, of a person who holds a license under this Act.
1-13 (14) "Indirect supervision" means the daily review by
1-14 a supervisor of a temporary training permit holder's patient
1-15 contact and daily work.
1-16 SECTION 2. Section 2(a), Chapter 366, Acts of the 61st
1-17 Legislature, Regular Session, 1969 (Article 4566-1.02, Vernon's
1-18 Texas Civil Statutes), is amended to read as follows:
1-19 (a) The State Committee of Examiners in the Fitting and
1-20 Dispensing of Hearing Instruments is within the Texas Department of
1-21 Health and is composed of nine members appointed by the governor
1-22 with the advice and consent of the senate. Appointments shall be
1-23 made without regard to the race, creed, sex, religion, or national
1-24 origin of the appointees. The committee members must have the
2-1 following qualifications:
2-2 (1) six committee members must possess a hearing
2-3 instrument dispenser's license under this Act and have been
2-4 residents of this state actually engaged in fitting and dispensing
2-5 hearing instruments for at least five years preceding their
2-6 appointment; not <no> more than one person <two persons> licensed
2-7 under Chapter 381, Acts of the 68th Legislature, Regular Session,
2-8 1983 (Article 4512j, Vernon's Texas Civil Statutes), is <and its
2-9 subsequent amendments, are> eligible to serve as a member
2-10 <members> of the committee;
2-11 (2) two committee members must be members of the
2-12 general public, each of whom is eligible for appointment as a
2-13 public member only if the person and the person's spouse are not
2-14 licensed by an occupational regulatory agency in the field of
2-15 health care; are not employed by and do not participate in the
2-16 management of a business entity or other organization that provides
2-17 health-care services or that sells, manufactures, or distributes
2-18 health-care supplies or equipment; and do not own, control, or
2-19 have, directly or indirectly, an interest in a business entity or
2-20 other organization that provides health-care services or that
2-21 sells, manufactures, or distributes health-care supplies or
2-22 equipment; and
2-23 (3) one committee member must be a citizen of the
2-24 United States and a resident of this state for at least two years
2-25 preceding the person's appointment, be an active practicing
2-26 physician or surgeon licensed to practice in this state by the
2-27 Texas State Board of Medical Examiners, and specialize in the
3-1 practice of otolaryngology and may not have a financial interest in
3-2 a hearing instrument manufacturing company or a wholesale or retail
3-3 hearing instrument company.
3-4 SECTION 3. Section 6(b), Chapter 366, Acts of the 61st
3-5 Legislature, Regular Session, 1969 (Article 4566-1.06, Vernon's
3-6 Texas Civil Statutes), is amended to read as follows:
3-7 (b) The applicant shall:
3-8 (1) apply <must make application> to the committee on
3-9 forms to be furnished by the committee, including sworn evidence
3-10 that the applicant has attained the age of majority and has
3-11 graduated from an accredited high school or equivalent and
3-12 providing other information as the committee may deem necessary for
3-13 the enforcement of this Act; and
3-14 (2) pay any required fees for application and
3-15 examination.
3-16 SECTION 4. Sections 9(a), (e), (f), and (h), Chapter 366,
3-17 Acts of the 61st Legislature, Regular Session, 1969 (Article
3-18 4566-1.09, Vernon's Texas Civil Statutes), are amended to read as
3-19 follows:
3-20 (a)(1) The committee shall grant a temporary training permit
3-21 to fit and dispense hearing instruments to any person applying to
3-22 the committee who has never taken the examination provided in the
3-23 Act and who possesses the qualifications in Subsection (b) of
3-24 Section 6 of this Act, on written application to the committee.
3-25 The applicant must pay the temporary training permit fee and make
3-26 application on forms to be furnished by the committee furnishing
3-27 sworn evidence that the applicant possesses the qualifications
4-1 contained in Subsection (b), Section 6, of this Act, that the
4-2 applicant has never taken the examination provided in this Act, and
4-3 that the applicant has never previously been issued in this state a
4-4 temporary training permit to fit and dispense hearing instruments.
4-5 (2) Students of audiology in an accredited college or
4-6 university program are exempt from the provisions of this Act,
4-7 provided that their activities and services constitute a part of
4-8 their supervised course of study or practicum experience. Such
4-9 students are subject to the provisions of Chapter 381, Acts of the
4-10 68th Legislature, Regular Session, 1983 (Article 4512j, Vernon's
4-11 Texas Civil Statutes)<, and its subsequent amendments>.
4-12 (e) The committee shall establish educational guidelines,
4-13 both formal and practical, for the training of temporary training
4-14 permit holders. The training guidelines must include directions to
4-15 the training supervisor about the subject matter to be taught,
4-16 length of the training, extent of a trainee's contact with the
4-17 public, and responsibility of the training supervisor for direct
4-18 and indirect supervision of all aspects of the training. A trainee
4-19 shall be required to have at least 150 hours of directly supervised
4-20 practicum that shall include the following:
4-21 (1) 25 hours of pure tone air conduction, bone
4-22 conduction, and speech audiometry, recorded and live voice;
4-23 (2) 25 hours of hearing instrument evaluations
4-24 including sound field measurements with recorded and live voice;
4-25 (3) 20 hours of instrument fittings with actual
4-26 clients;
4-27 (4) 10 hours of earmold orientation types, uses, and
5-1 terminology;
5-2 (5) 15 hours of earmold impressions and otoscopic
5-3 examinations of the ear;
5-4 (6) 15 hours of troubleshooting of defective hearing
5-5 instruments;
5-6 (7) 20 hours of case history with actual clients;
5-7 (8) 10 hours of the laws governing the licensing of
5-8 persons fitting and dispensing hearing instruments and federal Food
5-9 and Drug Administration and Federal Trade Commission regulations
5-10 relating to the fitting and dispensing of hearing instruments; and
5-11 (9) 10 hours of supplemental work in one or more of
5-12 the above areas.
5-13 (f) <The length of the training may not be shorter than 200
5-14 days.> The training period begins on the date of the issuance of
5-15 the temporary permit. On completion of the 150 hours of directly
5-16 supervised practicum under Subsection (e) of this section, a
5-17 temporary training permit holder shall complete the permit holder's
5-18 training under the indirect supervision of the permit holder's
5-19 supervisor.
5-20 (h) A supervisor of a temporary training permit holder must
5-21 be licensed under this Act. Supervision of a permit holder shall
5-22 entail direct and indirect supervision by the supervisor as
5-23 appropriate. A supervisor may not supervise more than two trainees
5-24 at any one time.
5-25 SECTION 5. Section 9A(a), Chapter 366, Acts of the 61st
5-26 Legislature, Regular Session, 1969 (Article 4566-1.09A, Vernon's
5-27 Texas Civil Statutes), is amended to read as follows:
6-1 (a) A temporary training permit holder who has taken all
6-2 parts of the examination given by the committee and has passed all
6-3 parts of the examination with a score of 70 percent or greater and
6-4 paid the required fees shall be issued an apprentice permit to fit
6-5 and dispense hearing instruments. An apprentice permit remains
6-6 valid for one year unless it is extended by the committee for an
6-7 additional period not to exceed six months.
6-8 SECTION 6. Section 12, Chapter 366, Acts of the 61st
6-9 Legislature, Regular Session, 1969 (Article 4566-1.12, Vernon's
6-10 Texas Civil Statutes), is amended to read as follows:
6-11 Sec. 12. Fees and expenses. (a) The committee by rule
6-12 shall adopt reasonable and necessary fees so that the fees, in the
6-13 aggregate, produce sufficient revenue to cover the costs of
6-14 administering this Act. The fees adopted by the committee under
6-15 this section may include a license fee, license renewal fee,
6-16 examination fee, temporary training permit fee, apprentice license
6-17 fee, duplicate document fee, and other fees as necessary to
6-18 administer this Act. <The fees for administering this Act shall be
6-19 as follows:>
6-20 <1. Temporary Training Permit $200>
6-21 <2. Examination Fee 250>
6-22 <3. Apprentice License Fee 300>
6-23 <4. License Fee 220>
6-24 <5. License Renewal Fee 440>
6-25 <6. Duplicate Document Fee 50>
6-26 (b) The hearing instrument dispensers licensing account is
6-27 created in the general revenue fund. Funds in the account may be
7-1 used by the committee and department only for the administration of
7-2 this Act. Fees received under this Act shall be deposited in the
7-3 general revenue fund to the credit of the account. Sections
7-4 403.094 and 403.095, Government Code, do not apply to the hearing
7-5 instrument dispensers licensing account. <The committee shall,
7-6 every third work day, remit to the state treasurer all of the fees
7-7 collected by the committee during the preceding month for deposit
7-8 in the general revenue fund.>
7-9 (c) <Funds for the administration of this Act shall be
7-10 provided by the General Appropriations Act from the general revenue
7-11 fund.> The financial transactions of the committee are subject to
7-12 audit by the state auditor in accordance with Chapter 321,
7-13 Government Code.
7-14 SECTION 7. Section 14(e), Chapter 366, Acts of the 61st
7-15 Legislature, Regular Session, 1969 (Article 4566-1.14, Vernon's
7-16 Texas Civil Statutes), is amended to read as follows:
7-17 (e) <If audiometric testing is not conducted in a stationary
7-18 acoustical enclosure, sound level measurements must be conducted at
7-19 the time of the testing to ensure that ambient noise levels meet
7-20 permissible standards for testing threshold to 20 dB based on the
7-21 most current American National Standards Institute (ANSI) "ears
7-22 covered" octave band criteria for Permissible Ambient Noise Levels
7-23 During Audiometric Testing. A dBA equivalent level may be used to
7-24 determine compliance.> The committee by rule shall establish
7-25 maximum ambient noise levels permissible for the testing of human
7-26 hearing <adopt rules necessary to enforce the provisions of this
7-27 subsection>.
8-1 SECTION 8. Section 15(a), Chapter 366, Acts of the 61st
8-2 Legislature, Regular Session, 1969 (Article 4566-1.15, Vernon's
8-3 Texas Civil Statutes), is amended to read as follows:
8-4 (a) It is unlawful for any person to:
8-5 (1) buy, sell, or fraudulently obtain a license to fit
8-6 and dispense hearing instruments or aid another in any of those
8-7 activities;
8-8 (2) alter a license to fit and dispense hearing
8-9 instruments with the intent to defraud;
8-10 (3) willfully make a false statement in an application
8-11 to the committee for a license, for a temporary training permit, or
8-12 for the renewal of a license;
8-13 (4) falsely impersonate any person licensed as a
8-14 fitter and dispenser of hearing instruments under this Act;
8-15 (5) offer or represent that the person is authorized
8-16 to fit and dispense hearing instruments, or use in connection with
8-17 the person's name any designation tending to imply that the person
8-18 is authorized to engage in the fitting and dispensing of hearing
8-19 instruments, if the person is not licensed under the provisions of
8-20 this Act;
8-21 (6) engage in the fitting and dispensing of hearing
8-22 instruments during the time the person's license shall be
8-23 cancelled, suspended, or revoked;
8-24 (7) dispense or fit a hearing instrument on any
8-25 individual who has ordered the hearing instrument or device by mail
8-26 unless the person dispensing and fitting the hearing instrument or
8-27 device is licensed under this Act or under Chapter 381, Acts of the
9-1 68th Legislature, Regular Session, 1983 (Article 4512j, Vernon's
9-2 Texas Civil Statutes)<, and its subsequent amendments>; or
9-3 (8) sell hearing instruments by mail except as
9-4 provided by Section 18 of this Act.
9-5 SECTION 9. Sections 16A(a), (b), and (d), Chapter 366, Acts
9-6 of the 61st Legislature, Regular Session, 1969 (Article 4566-1.16A,
9-7 Vernon's Texas Civil Statutes), are amended to read as follows:
9-8 (a) A sole proprietor, partnership, corporation, or other
9-9 legal entity engaged in the fitting and dispensing of hearing
9-10 instruments <A license holder> shall file a bond or a surety in
9-11 lieu of a bond in the amount of $10,000 with the committee
9-12 conditioned on the <license holder's> promise to pay all:
9-13 (1) taxes and contributions due to the state and
9-14 political subdivisions of the state by the sole proprietor,
9-15 partnership, corporation, or other legal entity; and
9-16 (2) judgments that the sole proprietor, partnership,
9-17 corporation, or other legal entity <license holder> may be
9-18 required to pay for negligently or improperly dispensing hearing
9-19 instruments or for breaching a contract relating to the dispensing
9-20 of hearing instruments.
9-21 (b) A sole proprietor, partnership, corporation, or other
9-22 legal entity subject to Subsection (a) of this section <A license
9-23 holder> may file with the committee a cash deposit or other
9-24 negotiable security acceptable to the committee in the amount
9-25 required in Subsection (a) of this section in lieu of a bond.
9-26 (d) The purchaser of a hearing instrument may rescind the
9-27 purchase and recover as provided by this section for:
10-1 (1) a material misstatement of fact or
10-2 misrepresentation by a <the> license holder employed by the sole
10-3 proprietor, partnership, corporation, or other legal entity
10-4 regarding the hearing instrument or services to be provided by the
10-5 license holder that were relied on by the purchaser or that induced
10-6 the purchaser to purchase the instrument;
10-7 (2) the failure by the sole proprietor, partnership,
10-8 corporation, or other legal entity <license holder> to provide the
10-9 purchaser with an instrument or with fitting and dispensing
10-10 services that conform to the specifications of the purchase
10-11 agreement;
10-12 (3) the diagnosis of a medical condition unknown to
10-13 the purchaser at the time of the purchase that precludes the
10-14 purchaser's use of the instrument;
10-15 (4) the failure by the sole proprietor, partnership,
10-16 corporation, or other legal entity <license holder> to remedy a
10-17 significant material defect of the hearing instrument within a
10-18 reasonable time;
10-19 (5) the provision by the sole proprietor, partnership,
10-20 corporation, or other legal entity <license holder of a hearing
10-21 instrument> of fitting and dispensing services that are not in
10-22 accordance with accepted industry practices; or
10-23 (6) the failure by a <the> license holder employed by
10-24 the sole proprietor, partnership, corporation, or other legal
10-25 entity to meet the standards of conduct prescribed under this Act
10-26 or by rules adopted under this Act that adversely affects the
10-27 transactions between the purchaser and the license holder or sole
11-1 proprietorship, partnership, corporation, or other legal entity.
11-2 SECTION 10. Section 16B, Chapter 366, Acts of the 61st
11-3 Legislature, Regular Session, 1969 (Article 4566-1.16B, Vernon's
11-4 Texas Civil Statutes), is amended to read as follows:
11-5 Sec. 16B. Ownership of dispensing practice. (a) A person
11-6 who owns, maintains, or operates an office or place of business
11-7 where the person employs or engages under contract a person who
11-8 practices the fitting and dispensing of hearing instruments shall
11-9 be considered also to be engaged in the practice of fitting and
11-10 dispensing of hearing instruments under this Act. If the person
11-11 who owns, maintains, or operates an office or place of business
11-12 under this subsection is a partnership, each partner must be
11-13 licensed as provided by this section. If the person who owns,
11-14 maintains, or operates an office or place of business under this
11-15 subsection is a corporation or other entity, the chief executive
11-16 officer of the corporation or entity must be licensed as provided
11-17 by this section.
11-18 (b) A person who is considered to be practicing the fitting
11-19 and dispensing of hearing instruments under this section shall be
11-20 required to be licensed under this Act or licensed under Chapter
11-21 381, Acts of the 68th Legislature, Regular Session, 1983 (Article
11-22 4512j, Vernon's Texas Civil Statutes), <and its subsequent
11-23 amendments,> as an audiologist.
11-24 SECTION 11. Chapter 366, Acts of the 61st Legislature,
11-25 Regular Session, 1969 (Article 4566-1.01 et seq., Vernon's Texas
11-26 Civil Statutes), is amended by adding Section 18 to read as
11-27 follows:
12-1 Sec. 18. DIRECT-MAIL AND CATALOG SALES. (a) Hearing
12-2 instruments may be sold by direct mail or through a catalog under
12-3 this Act only as provided by this section.
12-4 (b) A person who sells hearing instruments by direct mail or
12-5 through a catalog must be licensed under this Act.
12-6 (c) A person who sells a hearing instrument by direct mail
12-7 or through a catalog may not give advice regarding:
12-8 (1) the fitting, selection, or adaptation of the
12-9 instrument; or
12-10 (2) the taking of an ear impression for an earmold.
12-11 (d) Before a person may sell a hearing instrument by direct
12-12 mail or through a catalog, the person purchasing the instrument
12-13 must provide the person selling the instrument with a statement
12-14 signed by a physician or surgeon specializing in the practice of
12-15 otolaryngology, an audiologist, or a license holder under this Act
12-16 practicing in this state who has performed an examination on the
12-17 person purchasing the instrument that complies with the
12-18 requirements of Section 14, Chapter 366, Acts of the 61st
12-19 Legislature, Regular Session, 1969 (Article 4566-1.14, Vernon's
12-20 Texas Civil Statutes). The information required under Sections
12-21 14(c)(1), (2), and (3), Chapter 366, Acts of the 61st Legislature,
12-22 Regular Session, 1969 (Article 4566-1.14, Vernon's Texas Civil
12-23 Statutes), must be retained by the person selling the hearing
12-24 instrument for a period specified by committee rule. The
12-25 information required under Sections 14(c)(4) and (5), Chapter 366,
12-26 Acts of the 61st Legislature, Regular Session, 1969 (Article
12-27 4566-1.14, Vernon's Texas Civil Statutes), must be retained for a
13-1 period specified by committee rule by the physician specializing in
13-2 the practice of otolaryngology, the audiologist, or the license
13-3 holder under this Act practicing in this state who performed the
13-4 required post-fitting verifications.
13-5 SECTION 12. This Act takes effect September 1, 1995.
13-6 SECTION 13. (a) The change in law made by this Act to
13-7 Section 9(f), Chapter 366, Acts of the 61st Legislature, Regular
13-8 Session, 1969 (Article 4566-1.09, Vernon's Texas Civil Statutes),
13-9 regarding the requirements for a person holding a temporary
13-10 training permit applies only to a person holding a temporary
13-11 training permit issued on or after the effective date of this Act.
13-12 A person holding a temporary training permit issued before that
13-13 date is governed by the law in effect at the time the permit was
13-14 issued, and the former law is continued in effect for that purpose.
13-15 (b) The change in law made by this Act to Section 15,
13-16 Chapter 366, Acts of the 61st Legislature, Regular Session, 1969
13-17 (Article 4566-1.15, Vernon's Texas Civil Statutes), applies only to
13-18 a hearing instrument sold on or after the effective date of this
13-19 Act. A hearing instrument sold before that date is governed by the
13-20 law in effect at the time the instrument was sold, and the former
13-21 law is continued in effect for that purpose.
13-22 SECTION 14. The importance of this legislation and the
13-23 crowded condition of the calendars in both houses create an
13-24 emergency and an imperative public necessity that the
13-25 constitutional rule requiring bills to be read on three several
13-26 days in each house be suspended, and this rule is hereby suspended.