Justification for Adoption of Proposed Administrative Rules

Hearing Instrument Fitters and Dispensers

16 TAC Chapter 112, amendments Subchapter A, §112.2; Subchapter B, §112.10; Subchapter C, §§112.21, 112.22, 112.23, 112.24, and 112.26; Subchapter D, §§112.30, 112.32, and 112.33; Subchapter E, §112.40 and §112.42; Subchapter H, §112.70; Subchapter I, §112.80; Subchapter J, §112.92 and §112.95; Subchapter L, §112.110; Subchapter M, §112.120; and Subchapter N, §112.130; and repeal Subchapter N, §112.133

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter A, §112.2; Subchapter B, §112.10; Subchapter C, §§112.21, 112.22, 112.23, 112.24, and 112.26; Subchapter D, §§112.30, 112.32, and 112.33; Subchapter E, §112.40 and §112.42; Subchapter H, §112.70; Subchapter I, §112.80; Subchapter J, §112.92 and §112.95; Subchapter L, §112.110; Subchapter M, §112.120; and Subchapter N, §112.130; and adopts the repeal of existing rule Subchapter N, §112.133, regarding the Hearing Instrument Fitters and Dispensers program, without changes to the proposed text as published in the February 9, 2018, issue of the Texas Register (43 TexReg 695). The rules will not be republished.

The Commission also withdraws the proposed rules at 16 TAC, Chapter 112, Subchapter F, §§112.50, 112.52, and 112.53, regarding the Hearing Instrument Fitters and Dispensers program, as published in the February 9, 2018, issue of the Texas Register (43 TexReg 695).

JUSTIFICATION AND EXPLANATION OF THE RULES

These adopted rules are necessary to implement House Bill (H.B.) 4007 and H.B. 1543, 85th Legislature, Regular Session (2017) and to make clean-up changes. These three categories of rule changes have been combined into one adoption, since there is overlap in a few of the affected rule sections and this combined adoption eliminates the need for separate rulemakings.

The adopted rules implement H.B. 4007, 85th Legislature, Regular Session (2017). H.B. 4007, in part, removed certain barriers, redundancies, and impediments regarding the Hearing Instrument Fitters and Dispensers program. The bill clarified the statute’s applicability; removed the pre-appointment residency requirements for advisory board membership; removed barriers for out-of-state license applicants; removed barriers and updated provisions for temporary training permit holders; updated continuing education alternatives and exemptions; deleted prohibitions involving the fitting and dispensing of hearing instruments that were sold by mail and the selling of hearing instruments by mail; repealed the requirement that the owner of a dispensing practice must hold a hearing instrument fitter and dispenser license; and repealed provisions regarding administrative penalties and civil penalties, that are already included in Occupations Code Chapter 51, the Commission’s and the Texas Department of Licensing and Regulation (Department)’s enabling statute.

The adopted rules implement H.B. 1543, 85th Legislature, Regular Session (2017). H.B. 1543 added a new section to the statute regarding client access to records. The adopted rules add a corresponding provision to the rules.

The adopted rules also make clean-up changes identified by Department staff since the Hearing Instrument Fitters and Dispensers program was transferred from the Department of State Health Services (DSHS) to the Department effective October 3, 2016, pursuant to Senate Bill (S.B.) 202, 84 th Legislature, Regular Session (2015).

SECTION-BY-SECTION SUMMARY

The adopted rules amend §112.2, Definitions. The adopted rules eliminate the definitions of “ownership of dispensing practice” and “selling of hearing instruments by mail.” These changes are a result of H.B. 4007

The adopted rules amend §112.10, Membership. The adopted rules eliminate the pre-appointment residency requirements for advisory board membership. These changes are a result of H.B. 4007.

The adopted rules amend §112.21, Examination Qualifications. The adopted rules revise subsection (f) by adding clarifying language and removing the former second sentence, which is not applicable to this section. The adopted rules also use lower case for “jurisprudence examination.” These changes are part of the clean-up changes.

The adopted rules amend §112.22, Examination Tests and Contents. The adopted rules update the provision regarding practical exams, use lower case for “jurisprudence examination,” and update the list of exam topics to match the statute. These changes are part of the clean-up changes.

The adopted rules amend §112.23, Examination Scores and Results. The adopted rules clarify “parts of the examination,” clarify that the department or the department’s designee notifies an applicant regarding scores, and use lower case for “jurisprudence examination.” These changes are part of the clean-up changes.

The adopted rules amend §112.24, Failure of Examination. The adopted rules add the applicant who holds a current out-of-state license to this section. The statute no longer prohibits an applicant with an out-of-state license from retaking the examination if the applicant fails the examination. This change is a result of H.B. 4007. The adopted rules also re-write the provision for clarify purposes. These changes are part of the clean-up changes.

The adopted rules amend §112.26, Jurisprudence Examination. The adopted rules use lower case for “jurisprudence examination.” These changes are part of the clean-up changes.

The adopted rules amend §112.30, Hearing Instrument Fitter and Dispenser License--Application and Eligibility Requirements. The adopted rules clarify the fee language. This change is part of the clean-up changes.

The adopted rules amend §112.32, Hearing Instrument Fitter and Dispenser License--License Term; Renewals. The adopted rules remove former subsection (c)(2) and add subsection (d) to clarify that a licensee must successfully pass a criminal history background check in order to renew the license; however, the licensee does not need to submit new fingerprints. The adopted rules also clarify the fee language and the continuing education provision. These changes are part of the clean-up changes.

The adopted rules amend §112.33, Application by License Holder From Another State. The adopted rules add the fingerprint criminal history background check requirement to reflect the statutory requirement and the current practice; add the fee provision to reflect the current license application requirements; and use lower case “jurisprudence examination.” These changes are part of the clean-up changes.

In addition, the adopted rules amend §112.33 by removing the requirement that the applicant held a license in another state for at least three years preceding the date of application. The adopted rules also remove former subsection (h), regarding an applicant who fails an examination may not retake the examination and must start completely over with a temporary training permit. These changes are a result of H.B. 4007.

The adopted rules amend §112.40, Apprentice Permit--Application and Eligibility Requirements. The adopted rules use lower case “jurisprudence examination.” These changes are part of the clean-up changes.

The adopted rules amend §112.42, Apprentice Permit--Permit Term; Extension. The adopted rules add a provision requiring a criminal history background check for extensions and add a clarifying statement that the permit may only be extended once. These changes are part of the clean-up changes.

The adopted rules amend §112.70, Continuing Education--Hours and Courses. The adopted rules remove former subsection (f) regarding taking the licensing examination to fulfill the continuing education requirement. The adopted rules also remove the former continuing education exemption regarding certain military members. Provisions regarding military members and continuing education are included in Occupations Code Chapter 55, Licensing of Military Service Members, Military Veterans, and Military Spouses, and in the Department’s procedural rules under 16 TAC Chapter 60, Subchapter K, Licensing Provisions Related to Military Service Members, Military Veterans, and Military Spouses. These changes are a result of H.B. 4007.

In addition, the adopted rules clarify the terminology and requirements under §112.70. The adopted rules clarify that a license holder must complete 20 continuing education hours during each license term, rather than during each “two-year renewal period.” The adopted rules also add a cross-reference under subsection (b) to the exceptions provided under re-lettered subsection (j). These changes are part of the clean-up changes.

The adopted rules amend §112.80, Rules. The adopted rules remove the former placeholder language and insert the specific citation to 16 TAC Chapter 100, General Provisions for Health-Related Programs. These changes are part of the clean-up changes.

The adopted rules amend §112.92, Consumer Information. The adopted rules expand the title and scope of the section to include client records. The adopted rules add a new subsection (b), which requires a licensee or a hearing instrument fitting and dispensing practice to provide to a client, who provides a signed, written request, a copy of the client’s records that pertain to the testing for, and fitting and dispensing of, hearing instruments. These changes are a result of H.B. 1543.

The adopted rules amend §112.95, Information on Prospective Amplification Candidates. The adopted rules amend the rule language to match the statute. This change is part of the clean-up changes.

The adopted rules amend §112.110, Fees. The adopted rules amend the provisions regarding examination fees, to specify that these fees are determined by and payable to the Department’s designee. This change reflects the practice since the Hearing Instrument Fitters and Dispensers program was transferred from DSHS to the Department effective October 3, 2016. These changes are part of the clean-up changes.

The adopted rules amend §112.120, Complaints Regarding Standard of Care. The adopted rules remove the former placeholder language and insert the specific citation to 16 TAC Chapter 100, General Provisions for Health-Related Programs. These changes are part of the clean-up changes.

The adopted rules amend §112.130, Administrative Penalties and Sanctions. The adopted rules make a technical change that reflects the change made by H.B. 4007. The bill repealed the program-specific administrative penalties section in Occupations Code Chapter 402. Occupations Code Chapter 51, which applies to all the Department’s programs, includes administrative penalties provisions, which will apply to the Hearing Instrument Fitters and Dispensers program.

The adopted rules repeal existing rule §112.133, Civil Penalty. The adopted rules repeal this section to reflect the change made by H.B. 4007. The bill repealed the program-specific civil penalty section in Occupations Code Chapter 402. Occupations Code Chapter 51, which applies to all the Department’s programs, includes a civil penalty section, which will apply to the Hearing Instrument Fitters and Dispensers program.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the February 9, 2018, issue of the Texas Register (43 TexReg 695). The deadline for public comments was March 12, 2018. During the 30-day public comment period, the Department received public comments from two interested parties, consisting of the Texas Speech-Language-Hearing Association and the Texas Hearing Aid Association. The public comments received are summarized below.

Comment--The Department received a comment from the Texas Speech-Language-Hearing Association in support of the proposed changes to the rules under 16 TAC Chapter 112.

Department Response-- The Department appreciates the comment in support of the proposed rules. The Department did not make any changes to the proposed rule based on the public comment.

Comment--The Department received a comment from the Texas Hearing Aid Association (THAA) opposing the proposed changes to §§112.50, 112.52, and 112.53, regarding the temporary training permit requirements. THAA expressed concerns that the proposed rules remove the safeguard provisions that were repealed in H.B. 4007, but they do not include any new provisions to prevent the issue of the “perpetual permit holder.” The comment expressed concerns that “under the proposed rules, a person could receive multiple temporary permits to fit and dispense hearing aids to the public and never have completed the 150 hours of required training – never have to sit for, or pass, the written examination – and never have to demonstrate to an exam rater that he/she can fit a hearing aid by taking and passing the state’s practical exam.” (Italicized text contained in the comment letter has been removed.). THAA expressed concerns that a person could become a “perpetual temporary permit holder.”

THAA stated that there “are legitimate reasons why some people need a second permit to complete the training process and pass the state’s written and practical examination, and THAA supports amending the rules to allow for an unconditional second permit to help these people succeed in becoming a licensed hearing aid dispenser.” (Bold and underlined text contained in the comment letter has been removed.). THAA stated that this was a balanced approach that “provides more time to complete the temporary permit requirements and prevents long-term abuse of the temporary permit process.” (Italicized text contained in the comment letter has been removed.). THAA offered specific amendment language to §112.52.

THAA recommended that the Commission sever the proposed changes to §§112.50, 112.52, and 112.53 from this rulemaking and start a new rulemaking to make the specified changes to these three sections. In the alternative, if the Commission proceeds with the current rulemaking, THAA requested that the Commission “instruct Department staff to proceed as swiftly as possible with a new rulemaking proceeding to amend §112.52” as specified in the comment letter. (Italicized text contained in the comment letter has been removed.).

In addition, THAA made an oral public comment on the proposed rules during the Hearing Instrument Fitters and Dispensers Advisory Board (Advisory Board) meeting on March 21, 2018. The THAA representative referred the Advisory Board members to the THAA comment letter that had been submitted and highlighted THAA’s concerns and recommendations for consideration by the Advisory Board.

Department Response-- The Department appreciates the comment on the proposed rules and the information provided regarding the issue of the “perpetual temporary training permit.” The Department also appreciates the new suggested language for the temporary training permit provisions under §112.52, Temporary Training Permit--Permit Term; Extension.

At the Advisory Board meeting on January 10, 2018, the Advisory Board discussion primarily focused on Occupations Code §402.251(b), as amended by H.B. 4007, and proposed rule 16 TAC §112.50, Temporary Training Permit--Application and Eligibility Requirements. The Advisory Board discussed the reasons why persons may be seeking or needing subsequent temporary training permits. As part of the discussion, the Department had provided the Advisory Board with copies of the position paper submitted by THAA dated November 21, 2017, on the changes to Occupations Code §402.251(b) and THAA’s recommendation for proposed rules that require at least a 6-month waiting period before a second temporary training permit could be issued. A workgroup was appointed to study 16 TAC §112.50 related to Occupations Code §402.251(b) and the issues regarding temporary training permits.

Based on this public comment, the Department recommended withdrawing §§112.50, 112.52, and 112.53, regarding temporary training permits, from the current rulemaking. This action will allow the work group to finish its study and work on its recommended proposed rules, to consider the new THAA suggested language, and to determine the appropriate rule section(s) to address the issuance of subsequent temporary training permits. For a future rulemaking, the Department will prepare a temporary training permit rule package that includes the work group’s recommendations along with the H.B. 4007 changes and the cleanup changes that were part of the current rule proposal.

Advisory Board Recommendations AND COMMISSION ACTION

The proposed rules were presented to and discussed by the Hearing Instrument Fitters and Dispensers Advisory Board (Advisory Board) at its meeting on January 10, 2018.

The Advisory Board discussion primarily focused on Occupations Code §402.251(b), as amended by H.B. 4007, and proposed rule 16 TAC §112.50, Temporary Training Permit--Application and Eligibility Requirements. H.B. 4007 amended Occupations Code §402.251(b) by removing the provision that a temporary training permit holder had to wait 365 days after the permit expired before the person could obtain a new permit. As amended by H.B. 4007, the statute now provides that the commission by rule may provide for the issuance of a new temporary training permit after a person's temporary training permit expires.

The Department did not propose any new rules to implement Occupations Code §402.251(b) or propose any new restrictions or conditions on the issuance of a second temporary training permit. The current rules would allow a person to apply for a new temporary training permit when the previous permit expired (after the one-year extension period).

As part of the discussion, the Department had provided the Advisory Board with copies of the position paper submitted by the Texas Hearing Aid Association on this statutory change and association’s recommendation for proposed rules. The Advisory Board also discussed the issues regarding why a temporary training permit holder may need to apply for a second temporary training permit after the initial permit expired.

The Advisory Board did not make any changes to the draft proposed rules at the January 10, 2018, meeting. The Advisory Board recommended that the draft proposed rules be published in the Texas Register as proposed rules for public comment. The Advisory Board also recommended that a workgroup study 16 TAC §112.50 related to Occupations Code §402.251(b) and the issues discussed above. The workgroup study may result in a possible rulemaking in the future.

The Advisory Board met on March 21, 2018, to review the public comments received on the proposed rules and to make a recommendation to the Commission regarding the proposed rules. The Advisory Board recommended that the Commission adopt the proposed rules as published with the exception of §§112.50, 112.52, and 112.53, which were recommended to be withdrawn. These three rule sections relate to the temporary training permit requirements.

At its meeting held on March 27, 2018, the Commission adopted the proposed rules as published, with the exception of §§112.50, 112.52, and 112.53, which were withdrawn.

STATUTORY AUTHORITY

The amendments are adopted under Texas Occupations Code, Chapters 51 and 402, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the adoption.

SUBCHAPTER A. GENERAL PROVISIONS.

§112.2. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Occupations Code, Chapter 402, concerning the licensing of persons authorized to fit and dispense hearing instruments.

(2) Advisory board--The Hearing Instrument Fitters and Dispensers Advisory Board.

(3) Applicant--An individual who applies for a license or permit under the Act.

(4) Apprentice permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, §402.207 and this chapter, and which authorizes the permit holder to fit and dispense hearing instruments under appropriate supervision from an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(5) Certification, proof of--A certificate of calibration, compliance, conformance, or performance.

(6) Commission--The Texas Commission of Licensing and Regulation.

(7) Contact hour--A period of time equal to 55 minutes.

(8) Continuing education hour--A period of time equal to 50 minutes.

(9) Contract--See definition for "written contract for services."

(10) Continuing education--Education intended to maintain and improve the quality of professional services in the fitting and dispensing of hearing instruments, to keep licensees knowledgeable of current research, techniques, and practices, and provide other resources which will improve skills and competence in the fitting and dispensing of hearing instruments.

(11) Continuing education provider--A provider of a continuing education activity.

(12) Department--The Texas Department of Licensing and Regulation.

(13) Direct supervision--The physical presence with prompt evaluation, review and consultation of a supervisor any time a temporary training permit holder is engaged in the act of fitting and dispensing of hearing instruments.

(14) Executive director--The executive director of the department.

(15) Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes the making of impressions for earmolds to be used as a part of the hearing instruments and any necessary post-fitting counseling for the purpose of fitting and dispensing hearing instruments.

(16) Hearing instrument--Any wearable instrument or device designed for, or represented as, aiding, improving, or correcting defective human hearing. The term includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.

(17) Indirect supervision--The daily evaluation, review, and prompt consultation of a supervisor any time a permit holder is engaged in the act of fitting and dispensing hearing instruments.

(18) License--A license issued by the department under the Act and this chapter to a person authorized to fit and dispense hearing instruments.

(19) Licensee--Any person licensed or permitted by the department under Texas Occupations Code Chapter 401 or 402.

(20) Manufacturer--The term includes a person who applies to be a continuing education provider who is employed by, compensated by, or represents an entity, business, or corporation engaged in any of the activities described in this paragraph. An entity, business, or corporation that:

(A) is engaged in manufacturing, producing, or assembling hearing instruments for wholesale to a licensee or other hearing instrument provider;

(B) is engaged in manufacturing, producing, or assembling hearing instruments for sale to the public;

(C) is a subsidiary of, or held by, an entity that is engaged in manufacturing, producing, or assembling hearing instruments as described in this definition;

(D) holds an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition; or

(E) serves as a buying group for an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition.

(21) Non-Manufacturer--Any person, entity, buyer group, or corporation that does not meet the definition of a manufacturer.

(22) Person--An individual, corporation, partnership, or other legal entity.

(23) Sale or sell--A transfer of title or of the right to use by lease, bailment, or other contract. The term does not include a sale at wholesale by a manufacturer to a person licensed under the Act or to a distributor for distribution and sale to a person licensed under the Act.

(24) Specific Product Information--Specific product information shall include, but not be limited to, brand name, model number, shell type, and circuit type.

(25) Supervisor--A supervisor is an individual who holds a valid license to fit and dispense hearing instruments under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312, and who meets the qualifications established by Texas Occupations Code, §402.255 and this chapter.

(26) Temporary training permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, Chapter 402, Subchapter F, and this chapter, to authorize the permit holder to fit and dispense hearing instruments only under the direct or indirect supervision, as required and as appropriate, of an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(27) Working days--Working days are Monday through Friday, 8:00 a.m. to 5:00 p.m.

(28) Written contract for services--A written contract between the license holder and purchaser of a hearing instrument as set out in §112.140 (relating to Joint Rule Regarding the Sale of Hearing Instruments).

(29) 30-day trial period--The period in which a person may cancel the purchase of a hearing instrument.

SUBCHAPTER B. HEARING INSTRUMENT FITTERS AND DISPENSERS ADVISORY BOARD.

§112.10. Membership.

The advisory board consists of nine members appointed by the presiding officer of the commission, with the approval of the commission as follows:

(1) six members licensed under this chapter who have been engaged in fitting and dispensing hearing instruments for at least five years preceding appointment, not more than one of whom may be licensed under Chapter 401;

(2) one member who is actively practicing as a physician licensed by the Texas Medical Board and who:

(A) is a citizen of the United States; and

(B) specializes in the practice of otolaryngology; and

(3) two members of the public.

SUBCHAPTER C. EXAMINATIONS.

§112.21. Examination Qualifications.

(a) An applicant must qualify to take the written examination and the practical examination. The applicant must also take the jurisprudence examination as described under §112.26, but the applicant does not need to qualify to take the jurisprudence examination.

(b) The department will review a temporary training permit holder's documentation as prescribed under §112.53 to determine whether the applicant qualifies to take the written and practical examinations.

(c) The department will review an out of state license holder's application and other submitted documentation as prescribed under §112.33 to determine whether the applicant qualifies to take the practical examination.

(d) Pursuant to Texas Occupations Code §402.203(c), the department may refuse to examine an applicant who has been convicted of a misdemeanor that involves moral turpitude or a felony.

(e) The department or department's designee will notify the applicant who qualifies to take the examinations.

(f) An applicant must take and pass the examinations and complete all applicable requirements within one year after the date the permit or license application is received by the department.

§112.22. Examination Tests and Contents.

(a) The examination required under the Act shall consist of a written examination, a practical examination, and a jurisprudence examination as described under §112.26.

(b) The department shall administer or arrange for the administration of the examination.

(1) The written examination is the International Licensing Examination for Hearing Instrument Dispenser, a national examination administered by the International Hearing Society.

(2) The practical examination is developed by the department and administered by the department's designee.

(3) The jurisprudence examination is developed by the department and administered by the department's designee.

(c) The examination under subsection (a), will test the following areas as they relate to the fitting and dispensing of hearing instruments:

(1) basic physics of sound;

(2) structure and function of hearing instruments;

(3) fitting of hearing instruments;

(4) pure tone audiometry, including air conduction testing and bone conduction testing;

(5) live voice and recorded voice speech audiometry;

(6) masking when indicated for air conduction, bone conduction, and speech;

(7) recording and evaluation of audiograms and speech audiometry to determine the candidacy for a hearing instrument;

(8) selection and adaption of hearing instruments, testing of hearing instruments, and verification of aided hearing instrument performance;

(9) taking of earmold impressions;

(10) verification of hearing instrument fitting and functional gain measurements using a calibrated system;

(11) anatomy and physiology of the ear;

(12) counseling and aural rehabilitation of an individual with a hearing impairment for the purpose of fitting and dispensing hearing instruments;

(13) use of an otoscope for the visual observation of the entire ear canal; and

(14) laws, rules, and regulations of this state and the United States.

(d) The examination may not test knowledge of the diagnosis or treatment of any disease of or injury to the human body.

§112.23. Examination Scores and Results.

(a) The applicant must pass each part of the examination (written, practical, and jurisprudence) with a score of 70 percent or greater.

(b) The department or the department’s designee will notify the applicant in writing regarding the applicant’s examination scores or results for the written and practical examinations. The department’s designee will provide a certificate of completion to the applicant upon passage of the jurisprudence examination.

§112.24. Failure of Examination.

An applicant who fails the examination may retake the failed portion or portions of the examination after payment of an additional examination fee. An applicant must hold a current temporary training permit or an out-of-state license under §112.33 in order to retake the failed portion or portions of the examination.

§112.26. Jurisprudence Examination.

(a) To fulfill the requirements under Texas Occupations Code §402.204(b)(14), an applicant must pass the jurisprudence examination prescribed by the department.

(b) The jurisprudence examination is separate from the written and practical examinations under §112.22. The jurisprudence examination tests the applicant's knowledge of the laws, rules and regulations of Texas and of the United States relating to the fitting and dispensing of hearing instruments.

(c) The applicant must register online and pay the jurisprudence examination fee to the third-party provider. The applicant does not need to qualify through the department to take the jurisprudence examination.

(d) The applicant must successfully complete the jurisprudence examination and submit a certificate of completion prior to receiving a hearing instrument fitter and dispenser license or an apprentice permit.

SUBCHAPTER D. HEARING INSTRUMENT FITTER AND DISPENSER LICENSE.

§112.30. Hearing Instrument Fitter and Dispenser License--Application and Eligibility Requirements.

(a) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on department-approved forms.

(b) An applicant must complete all licensing requirements within one year from the date the application was submitted. After that year an applicant will be required to submit a new application and all required materials in addition to paying a new application fee.

(c) An applicant must submit the following required documentation:

(1) a completed application on a department-approved form;

(2) the supervisor's agreement form that has been completed by the apprentice permit holder and the supervisor(s), unless previously submitted to the department; and

(3) the initial application fee required under §112.110.

(d) An applicant for a hearing instrument fitter and dispenser license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety or its designee, in a manner prescribed by the Department of Public Safety, for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check.

(e) The commission or executive director may deny an application based on the grounds for denial under Texas Occupations Code §402.501.

§112.32. Hearing Instrument Fitter and Dispenser License--License Term; Renewals.

(a) A hearing instrument fitter and dispenser license is valid for two years from the date of issuance and may be renewed every two years.

(b) Each license holder is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification prior to the expiration date of the license shall not excuse failure to file for renewal or late renewal.

(c) To renew a hearing instrument fitter and dispenser license, a license holder must:

(1) submit a completed renewal application on a department-approved form;

(2) except for the first renewal, complete twenty (20) hours of continuing education as required under §112.70;

(3) comply with the continuing education audit process described under §112.71, if selected for an audit;

(4) provide proof that all equipment that is used by the license holder to produce a measurement in the testing of hearing acuity has been properly calibrated or certified by a qualified technician in accordance with §112.97, within one year prior to the renewal date; and

(5) submit the renewal application fee required under §112.110.

(d) A licensee must successfully pass a criminal history background check in order to renew the license; however, the licensee does not need to submit new fingerprints.

(e) The commission or department may deny the renewal of the license pursuant to Texas Occupations Code §402.501.

(f) Except as provided under subsection (e), a license that is not revoked or suspended shall be renewed provided that all other requirements are met.

(g) A person whose license has expired may renew the license in accordance with §60.31 and §60.83 of this title.

(h) A person whose license has expired shall not practice the fitting and dispensing of hearing instruments.

(i) The department shall issue a renewal card to a license holder who has met all the requirements for renewal. The license holder must display the renewal card in association with the license.

§112.33. Application by License Holder From Another State.

(a) A person licensed to fit and dispense hearing instruments in another state may apply for a hearing instrument fitter and dispenser license under this chapter by meeting the requirements under this section.

(b) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on department-approved forms.

(c) An applicant must complete all licensing requirements within one year from the date the application was submitted. After that year an applicant will be required to submit a new application and all required materials in addition to paying a new application fee.

(d) An applicant must submit the following required documentation:

(1) a completed application on a department-approved form;

(2) written verification that the applicant is licensed in good standing as a fitter and dispenser of hearing instruments in another state;

(3) written verification that:

(A) the requirements to obtain a license to fit and dispense hearing instruments in the state in which the applicant is licensed include passing the International Licensing Examination for Hearing Instrument Dispenser (ILE) written examination; or

(B) the applicant holds a certification issued by the Board of Certification for Hearing Instrument Sciences (BC-HIS);

(4) a written statement from the licensing entity in the state in which the applicant is licensed that details any disciplinary action taken by the entity against the applicant;

(5) a statement of the applicant’s criminal history acceptable to the department; and

(6) the initial application fee required under §112.110.

(e) An applicant for a hearing instrument fitter and dispenser license must submit a completed legible set of fingerprints, on a form prescribed by the department, to the Department of Public Safety or its designee, in a manner prescribed by the Department of Public Safety, for the purpose of obtaining criminal history record information. An applicant must successfully pass a criminal history background check.

(f) The department may deny an application under this section based on the applicant’s criminal history or an applicant's history of disciplinary action.

(g) If the department approves an application, the applicant must take the practical examination and the jurisprudence examination required under §112.22 and §112.26. If the applicant passes the examinations required under this section, the department shall issue to the applicant a hearing instrument fitter and dispenser license under this chapter.

(h) The department may allow an applicant under this section who satisfies all application requirements other than the requirement under subsection (d)(3), to take all sections of the examination required under Texas Occupations Code §402.202. If the applicant passes the examination, the department shall issue to the applicant a hearing instrument fitter and dispenser license under this chapter.

(i) The department may not issue a license under this section to an applicant who is a licensed audiologist in another state. The department shall inform the applicant of the licensing requirements of Chapter 401.

SUBCHAPTER E. APPRENTICE PERMIT.

§112.40. Apprentice Permit--Application and Eligibility Requirements.

(a) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on department-approved forms.

(b) An applicant must complete all permit requirements within one year from the date the application was submitted. After that year an applicant will be required to submit a new application and all required materials in addition to paying a new application fee.

(c) An applicant for an apprentice permit must:

(1) hold a current temporary training permit;

(2) submit a completed application on a department-approved form;

(3) submit the supervisor's agreement form that has been completed by the applicant and the supervisor(s);

(4) pass all parts of the examination required under §112.22;

(5) submit a certificate of completion of the jurisprudence examination under §112.26; and

(6) pay the apprentice permit fee required under §112.110.

(d) An applicant for an apprentice permit must successfully pass a criminal history background check.

§112.42. Apprentice Permit--Permit Term; Extension.

(a) An apprentice permit is valid for one year. The department may extend the apprentice permit for an additional period not to exceed one year. An apprentice permit may not be extended more than once.

(b) To extend an apprentice permit, the apprentice permit holder must:

(1) submit an extension request on a department-approved form;

(2) submit a new or renewed supervision agreement for the extension period; and

(3) pay the permit extension fee required under §112.110.

(c) An apprentice permit holder must successfully pass a criminal history background check to extend the permit.

(d) A person whose permit has expired shall not practice the fitting and dispensing of hearing instruments.

SUBCHAPTER H. CONTINUING EDUCATION REQUIREMENTS.

§112.70. Continuing Education--Hours and Courses.

(a) This section applies to a hearing instrument fitter and dispenser license holder.

(b) Except as provided under subsection (j), a license holder must complete 20 continuing education hours during each license term.

(c) Pursuant to 16 Texas Administrative Code (TAC), Chapter 59, a continuing education hour shall be 50 minutes of attendance in an approved continuing education course.

(d) No more than 10 continuing education hours per license term may be earned from an approved online continuing education course offered by an approved continuing education provider.

(e) No more than 5 continuing education hours per license term may be earned from an approved continuing education course offered by an approved manufacturer continuing education provider.

(f) A license holder may be credited with continuing education hours for a published book or article written by the license holder that contributes to the license holder’s professional competence. The department may approve credit hours based on the degree that the published book or article advanced knowledge regarding the fitting and dispensing of hearing instruments. No more than 5 contact hours per license term may be approved for preparation of a publication.

(g) Continuing education shall be acceptable if the education is described in subsection (f) or falls in one or more of the following categories:

(1) participation in approved continuing education courses offered by approved continuing education providers;

(2) completion of academic courses at an accredited college or university in areas directly supporting development of skills and competence in the fitting and dispensing of hearing instruments; and/or

(3) participation or teaching in programs directly related to the fitting and dispensing of hearing instruments (e.g., institutes, seminars, workshops, or conferences), which are approved or offered by an accredited college or university.

(h) To receive credit for completion of academic work the license holder must submit an official transcript(s) from accredited school(s) showing completion of hours in appropriate areas for which the license holder received a passing grade.

(i) The department will not approve continuing education credit for any license holder for:

(1) education incidental to the regular professional activities of a license holder such as knowledge gained through experience or research;

(2) organization activity such as serving on committees or councils or as an officer in a professional organization; and

(3) any program which is not described in, or in compliance with, this section.

(j) Pursuant to Texas Occupations Code §402.305, the department may renew the license of a license holder who has not complied with the continuing education requirements if the license holder:

(1) submits proof from an attending physician that the license holder suffered a serious disabling illness or physical disability that prevented compliance with the continuing education requirements during the twenty-four (24) months before the end of the license term; or

(2) was licensed for the first time during the twenty-four (24) months before the end of the license term.

SUBCHAPTER I. RESPONSIBILITIES OF THE COMMISSION AND THE DEPARTMENT.

§112.80. Rules.

(a) Pursuant to the authority under Texas Occupations Code §51.203, the commission shall adopt rules necessary to implement the Hearing Instrument Fitters and Dispensers program. Pursuant to §60.22 of this title, the department is authorized to propose rules.

(b) The commission has adopted rules governing changes to the standard of practice rules pursuant to §51.2031. These rules are located at 16 TAC Chapter 100.

SUBCHAPTER J. RESPONSIBILITIES OF THE LICENSEE.

§112.92. Consumer Information and Client Records.

(a) A licensee shall inform each client of the name, address, email address, and telephone number of the department for the purpose of filing a complaint or reporting violations of the Act or this chapter on:

(1) each written contract for services; and

(2) a sign prominently displayed in the primary place of business.

(b) A licensee or a hearing instrument fitting and dispensing practice shall provide to a client, who provides a signed, written request, a copy of the client’s records that pertain to the testing for, and fitting and dispensing of, hearing instruments.

§112.95. Information on Prospective Amplification Candidates.

A license holder shall try to obtain information on each prospective candidate for amplification in accordance with Texas Occupations Code §402.352.

SUBCHAPTER L. FEES.

§112.110. Fees.

(a) Fees paid to the department are nonrefundable.

(b) Hearing Instrument Fitter and Dispenser License:

(1) Initial application fee (includes two-year initial license)--$205;

(2) Renewal application fee (for two-year license)--$205;

(c) Apprentice Permit:

(1) Initial application fee (includes one-year permit)--$205;

(2) Extension fee (one-year term, may only be extended once)--$25;

(d) Temporary Training Permit:

(1) Initial application fee (includes one-year permit)--$205;

(2) Extension fee (one-year term, may only be extended once)--$25;

(e) The fees for the written examination, practical examination, and the jurisprudence examination are set by and payable to the department’s designee.

(f) Continuing education provider fee--$200 annually.

(g) A duplicate/replacement fee for a license or permit issued under this chapter is $25.

(h) Late renewal fees for licenses and permits issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(i) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(j) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

SUBCHAPTER M. COMPLAINTS.

§112.120. Complaints Regarding Standard of Care.

The commission has adopted rules related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031. These rules are located at 16 Texas Administrative Code Chapter 100.

SUBCHAPTER N. ENFORCEMENT PROVISIONS.

§112.130. Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 402, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and 402, as applicable, and any associated rules.

[ §112.133. Civil Penalty.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on April 10, 2018.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation