82R4513 NC-D
By: Anchia H.B. No. 2273
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the State Committee
of Examiners in the Fitting and Dispensing of Hearing Instruments;
providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 402.001(1) and (3), Occupations Code,
are amended to read as follows:
(1) "Board" means the executive commissioner of the
Health and Human Services Commission [Texas Board of Health].
(3) "Department" means the [Texas] Department of State
Health Services.
SECTION 2. Section 402.002, Occupations Code, is amended to
read as follows:
Sec. 402.002. APPLICATION OF SUNSET ACT. The State
Committee of Examiners in the Fitting and Dispensing of Hearing
Instruments is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the committee is abolished and this chapter expires
September 1, 2017 [2011].
SECTION 3. Section 402.052, Occupations Code, is amended to
read as follows:
Sec. 402.052. PUBLIC MEMBER ELIGIBILITY. A person is not
eligible for appointment as a public member of the committee if the
person or the person's spouse:
(1) is registered, certified, or licensed by an
occupational regulatory agency in the field of health care;
(2) is employed by or participates in the management
of a business entity or other organization that:
(A) provides health care services; [or]
(B) sells, manufactures, or distributes health
care supplies or equipment; or
(C) is regulated by or receives money from the
committee or department;
(3) owns or controls, directly or indirectly, more
than a 10 percent [an] interest in a business entity or other
organization that:
(A) provides health care services; [or]
(B) sells, manufactures, or distributes health
care supplies or equipment; or
(C) is regulated by or receives money from the
committee or department; or
(4) uses or receives a substantial amount of tangible
goods, services, or money from the committee or department, other
than compensation or reimbursement authorized by law for committee
membership, attendance, or expenses.
SECTION 4. Sections 402.053(a) and (b), Occupations Code,
are amended to read as follows:
(a) In this section, "trade association" means a
cooperative and voluntarily joined national or statewide
association of business or professional competitors designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest. [An officer, employee, or paid consultant of a
statewide or national trade association in the hearing instrument
industry may not be a member or employee of the committee.]
(b) A person may not be a member of the committee if:
(1) the person is an officer, employee, or paid
consultant of a trade association in the field of hearing
instrument fitting and dispensing; or
(2) the person's spouse or another person related to
the person within the second degree by affinity or consanguinity,
as determined under Chapter 573, Government Code, is an officer,
manager, or paid consultant of a trade association in the field of
hearing instrument fitting and dispensing. [A member or employee
of the committee may not be related within the second degree by
affinity or consanguinity, as determined under Chapter 573,
Government Code, to a person who is an officer, employee, or paid
consultant of a statewide or national trade association in the
hearing instrument industry.]
SECTION 5. Section 402.056, Occupations Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) It is a ground for removal from the committee that a
member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Sections 402.051,
402.052, and 402.053 [402.053(d)] for appointment to the committee;
(2) does not maintain during service on the committee
the qualifications required by Sections 402.051, 402.052, and
402.053 [402.053(d) for appointment to the committee];
(3) is ineligible for membership under Section 402.052
or 402.053 [violates a prohibition established by Section 402.053];
[or]
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled committee meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the committee [fails to attend at least half of the regularly
scheduled committee meetings held in a calendar year, excluding
meetings held while the person was not a committee member].
(c) If the commissioner of the department has knowledge that
a potential ground for removal exists, the commissioner shall
notify the presiding officer of the committee of the potential
ground. The presiding officer shall then notify the governor and
the attorney general that a potential ground for removal exists. If
the potential ground for removal involves the presiding officer,
the commissioner shall notify the next highest ranking officer of
the committee, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
SECTION 6. Section 402.057(a), Occupations Code, is amended
to read as follows:
(a) The governor shall designate a member of the committee
as the presiding officer of the committee to serve in that capacity
at the will of the governor [committee shall elect a president and
vice president].
SECTION 7. Section 402.058(b), Occupations Code, is amended
to read as follows:
(b) A special meeting of the committee shall be held at the
call of the presiding officer [president] or a majority of the
members.
SECTION 8. Subchapter B, Chapter 402, Occupations Code, is
amended by adding Section 402.0581 to read as follows:
Sec. 402.0581. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the committee may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the committee until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter;
(2) the programs, functions, rules, and budget of the
committee;
(3) the results of the most recent formal audit of the
committee;
(4) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest; and
(5) any applicable ethics policies adopted by the
committee or the Texas Ethics Commission.
(c) A person appointed to the committee is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 9. Subchapter C, Chapter 402, Occupations Code, is
amended by adding Sections 402.1021 and 402.1022 to read as
follows:
Sec. 402.1021. JOINT RULES FOR HEARING INSTRUMENTS. With
the assistance of the department, the committee and the State Board
of Examiners for Speech-Language Pathology and Audiology shall
jointly adopt rules to establish requirements for each sale of a
hearing instrument. The rules must:
(1) address:
(A) the information and other provisions
required in each written contract for the purchase of a hearing
instrument;
(B) records that must be retained under this
chapter or Chapter 401; and
(C) guidelines for the 30-day trial period during
which a person may cancel the purchase of a hearing instrument; and
(2) require that the written contract and 30-day trial
period information provided to a purchaser of a hearing instrument
be in plain language designed to be easily understood by the average
consumer.
Sec. 402.1022. DIVISION OF RESPONSIBILITIES. (a) The
committee shall develop and implement policies that clearly
separate the policy-making responsibilities of the committee and
the management responsibilities of the staff of the department.
(b) The committee has final authority to administer this
chapter and direct the actions of the staff of the department with
respect to this chapter, except in the administration of duties
specifically imposed on the department under this chapter.
SECTION 10. Section 402.104, Occupations Code, is amended
to read as follows:
Sec. 402.104. POWERS AND DUTIES REGARDING EXAMINATION.
(a) The department [committee] shall administer or arrange for the
administration of an [a written] examination. The examination may
include written, oral, or practical tests.
(b) The written examination shall be administered at least
twice each year.
(c) The written examination must be validated by an
independent testing professional.
(d) The practical examination must be administered by one or
more qualified proctors selected and assigned by the department.
(e) The committee by rule shall establish the
qualifications for a proctor. The rules must:
(1) require a proctor to be licensed in good standing
as a hearing instrument fitter and dispenser;
(2) specify the number of years a proctor must be
licensed as a hearing instrument fitter and dispenser; and
(3) specify the disciplinary actions or other actions
that disqualify a person from serving as a proctor.
SECTION 11. Section 402.105, Occupations Code, is amended
to read as follows:
Sec. 402.105. SUBCOMMITTEES. (a) From its members the
committee may appoint subcommittees to consider matters referred by
the committee pertaining to the enforcement of this chapter. The
subcommittees shall make recommendations to the committee.
(b) The committee shall appoint at least one public member
to each subcommittee.
SECTION 12. Subchapter D, Chapter 402, Occupations Code, is
amended by adding Section 402.1511 to read as follows:
Sec. 402.1511. PUBLIC PARTICIPATION. The committee shall
develop and implement policies that provide the public with a
reasonable opportunity to appear before the committee and to speak
on any issue under the jurisdiction of the committee.
SECTION 13. Section 402.154(e), Occupations Code, is
amended to read as follows:
(e) The committee may delegate the authority granted under
Subsection (a) to the presiding officer [president or vice
president] of the committee.
SECTION 14. Section 402.202(a), Occupations Code, is
amended to read as follows:
(a) To engage in fitting and dispensing hearing instruments
in this state a person must pass an examination required [given] by
the committee.
SECTION 15. Sections 402.205(a) and (d), Occupations Code,
are amended to read as follows:
(a) The department [committee] shall give each applicant
due notice of the date and place of the examination and the
subjects, areas, and skills that will be included in the
examination. A change may not be made in those subjects, areas, and
skills after the date of the examination has been announced and
publicized.
(d) If requested in writing by a person who fails the
licensing examination administered under this chapter, the
department [committee] shall provide to the person an analysis of
the person's performance on the examination.
SECTION 16. Sections 402.209(b), (c), (d), (e), (f), and
(g), Occupations Code, are amended to read as follows:
(b) An applicant for a license under this section must
complete the application form completely and accurately. The
department [committee] may not consider an incomplete application.
If an applicant fails to provide any information required on the
application form, the department [committee] shall send the
applicant a notice of deficiency that explains the additional
information that must be submitted before the department
[committee] may review the application.
(c) An [The committee shall require an] applicant for a
license under this section shall [to] provide as part of the
application:
(1) written verification that the applicant is
licensed in good standing as a fitter and dispenser of hearing
instruments in another state and has held the license for at least
three years preceding the date of application;
(2) 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 an examination approved by
the committee by rule; or
(B) the applicant holds a certification from a
professional organization approved by the committee by rule;
(3) [affirmation that the applicant is a resident of
this state;
[(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; and
(4) [(5)] a statement of the applicant's criminal
history acceptable to the committee.
(d) The department [committee] may deny an application
under this section based on the applicant's criminal history or
history of disciplinary action.
(e) If the department [committee] approves an application,
on the next regularly scheduled examination date the applicant may
take the practical section of the examination required under
Section 402.202 and a written examination of Texas law administered
by the department [committee]. If the applicant passes the
examinations required under this section, the committee shall issue
to the applicant a license under this chapter.
(f) The department [committee] may allow an applicant under
this section who satisfies all application requirements other than
the requirement under Subsection (c)(2) to take all sections of the
examination required under Section 402.202. If the applicant
passes the examination, the committee shall issue to the applicant
a license under this chapter.
(g) An applicant under this section who fails an examination
may request in writing, not later than the 30th day after the date
the department [committee] sends the applicant notice of the
examination results, that the department [committee] furnish the
applicant with an analysis of the applicant's performance on the
examination.
SECTION 17. Subchapter E, Chapter 402, Occupations Code, is
amended by adding Section 402.210 to read as follows:
Sec. 402.210. CRIMINAL HISTORY RECORD INFORMATION
REQUIREMENT FOR LICENSE ISSUANCE. (a) The committee shall require
that an applicant for a license submit a complete and legible set of
fingerprints, on a form prescribed by the committee, to the
committee or to the Department of Public Safety for the purpose of
obtaining criminal history record information from the Department
of Public Safety and the Federal Bureau of Investigation.
(b) The committee may not issue a license to a person who
does not comply with the requirement of Subsection (a).
(c) The committee shall conduct a criminal history check of
each applicant for a license using information:
(1) provided by the individual under this section; and
(2) made available to the committee by the Department
of Public Safety, the Federal Bureau of Investigation, and any
other criminal justice agency under Chapter 411, Government Code.
(d) The department on behalf of the committee may:
(1) enter into an agreement with the Department of
Public Safety to administer a criminal history check required under
this section; and
(2) authorize the Department of Public Safety to
collect from each applicant the costs incurred by the Department of
Public Safety in conducting the criminal history check.
SECTION 18. Subchapter G, Chapter 402, Occupations Code, is
amended by adding Section 402.302 to read as follows:
Sec. 402.302. CRIMINAL HISTORY RECORD INFORMATION
REQUIREMENT FOR LICENSE RENEWAL. (a) An applicant renewing a
license issued under this chapter shall submit a complete and
legible set of fingerprints for purposes of performing a criminal
history check of the applicant as provided by Section 402.210.
(b) The committee may not renew the license of a person who
does not comply with the requirement of Subsection (a).
(c) The requirements of this section do not apply to a
license holder who has previously submitted fingerprints under this
section or Section 402.210.
(d) This section expires February 1, 2015.
SECTION 19. Section 402.303, Occupations Code, is amended
by amending Subsections (a), (b), (d), and (f) and adding
Subsection (e-1) to read as follows:
(a) The committee by rule shall adopt requirements for the
continuing education of a license holder, including online
continuing education requirements and a requirement that a license
holder complete 20 hours of continuing education every two years
[each year. For purposes of this requirement, each year runs
concurrently with the effective date of a license issued under this
chapter]. The committee may not renew a license unless the license
holder demonstrates compliance with the continuing education
requirements established by the committee.
(b) A license holder shall provide written proof of
attendance or [and] completion of an approved course on a form
prescribed by the committee.
(d) The committee shall adopt rules to establish reasonable
requirements for continuing education sponsors and courses and to
clearly define what constitutes a manufacturer or nonmanufacturer
sponsor. The department shall review and approve continuing
education sponsor and course applications. The department may
request assistance from licensed members of the committee in
approving a sponsor or course. The department [committee] must
provide a list of approved continuing education sponsors and
continuing education courses, including online courses [,
designated by the committee]. The list must be revised and updated
periodically. Any continuing education activity must be provided
by an approved sponsor. The department [committee] shall approve
at least five hours of specific courses each year.
(e-1) The committee must allow a license holder to report at
least 10 hours of online continuing education credit hours in a
single reporting period.
(f) A course summary and resume for each teacher of a course
seeking approval from the department [committee] must be submitted
at least 30 days before the date the course is scheduled to take
place, unless the course is an online course. The committee shall
establish criteria for the approval of submitted courses and
reasonable requirements for the approval of online courses and
sponsors.
SECTION 20. Section 402.304, Occupations Code, is amended
to read as follows:
Sec. 402.304. ALTERNATIVES TO CONTINUING EDUCATION
REQUIREMENT. (a) On written request to the department
[committee], a license holder may take the state examination [given
by the committee]. A license holder who pays the examination fee
and passes the examination is exempt from the continuing education
requirement for the reporting period [year] in which the test is
taken.
(b) A license holder may be credited with continuing
education credit hours for a published book or article written by
the license holder that contributes to the license holder's
professional competence. The continuing education committee may
grant credit hours based on the degree to which the published book
or article advances knowledge regarding the fitting and dispensing
of hearing instruments. A license holder may claim in a [an annual]
reporting period not more than five credit hours for preparation of
a publication.
SECTION 21. Section 402.305, Occupations Code, is amended
to read as follows:
Sec. 402.305. CONTINUING EDUCATION EXEMPTIONS. The
committee may renew the license of a license holder who does not
comply with the continuing education requirements of Sections
402.303 or 402.304 if the license holder:
(1) was licensed for the first time during the 24 [12]
months before the [annual] reporting date;
(2) has served in the regular armed forces of the
United States during part of the 24 [12] months before the [annual]
reporting date; or
(3) submits proof from an attending physician that the
license holder suffered a serious or disabling illness or physical
disability that prevented compliance with the continuing education
requirements during the 24 [12] months before the [annual]
reporting date.
SECTION 22. Subchapter K, Chapter 402, Occupations Code, is
amended by adding Sections 402.505 and 402.506 to read as follows:
Sec. 402.505. INFORMAL PROCEEDINGS; INFORMAL SETTLEMENT
CONFERENCE. (a) The committee by rule shall adopt procedures
governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with
Section 2001.054, Government Code.
(b) The committee by rule shall establish procedures by
which a panel appointed by the department may conduct an informal
settlement conference to resolve a complaint against a person
licensed under this chapter.
(c) Procedures established under Subsection (b) must:
(1) require the panel conducting the conference to use
the schedule of sanctions adopted by the committee to determine the
appropriate disciplinary action, if any, to recommend to the
committee; and
(2) require the panel to:
(A) recommend a settlement of the complaint to
the committee; or
(B) refer the complaint to the State Office of
Administrative Hearings for a formal hearing and notify the
committee of the referral.
(d) The committee may approve, modify, or reject the
settlement recommendation of the panel.
(e) Rules adopted under this section must:
(1) provide the complainant and the license holder
with an opportunity to be heard; and
(2) require the presence of an attorney to advise the
panel.
Sec. 402.506. RECUSAL OF COMMITTEE MEMBER. (a) A
committee member who participated in the investigation of a
complaint or in informal settlement negotiations regarding the
complaint:
(1) may not vote on the matter at a committee meeting
related to the complaint; and
(2) shall state at the meeting why the member is
prohibited from voting on the matter.
(b) A statement under Subsection (a)(2) shall be entered
into the minutes of the meeting.
SECTION 23. Subchapter L, Chapter 402, Occupations Code, is
amended by adding Sections 402.5521 and 402.5522 to read as
follows:
Sec. 402.5521. COMMITTEE-ORDERED REFUND. The committee may
order a license holder to pay a refund to a consumer who returns a
hearing instrument during the 30-day trial period required by rules
adopted under Section 402.1021.
Sec. 402.5522. CEASE AND DESIST ORDER. (a) If it appears
to the committee that a person who is not licensed under this
chapter is violating this chapter, a rule adopted under this
chapter, or another state statute or rule relating to the practice
of fitting and dispensing hearing instruments, the committee, after
notice and opportunity for a hearing, may issue a cease and desist
order prohibiting the person from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this
subchapter.
SECTION 24. (a) Except as provided by Subsection (b) of
this section, not later than February 1, 2012, the State Committee
of Examiners in the Fitting and Dispensing of Hearing Instruments
shall adopt rules necessary to implement the changes in law made by
this Act to Chapter 402, Occupations Code.
(b) Not later than May 1, 2012, the State Board of Examiners
for Speech-Language Pathology and Audiology and the State Committee
of Examiners in the Fitting and Dispensing of Hearing Instruments
shall adopt rules required by Section 402.1021, Occupations Code,
as added by this Act.
(c) The changes in law made by Subchapter B, Chapter 402,
Occupations Code, as amended by this Act, regarding the
prohibitions on or qualifications of members of the State Committee
of Examiners in the Fitting and Dispensing of Hearing Instruments
do not affect the entitlement of a member serving on the committee
immediately before September 1, 2011, to continue to serve and
function as a member of the committee for the remainder of the
member's term. The changes in law made by this Act apply only to a
member appointed on or after September 1, 2011.
(d) Sections 402.505 and 402.506, Occupations Code, as
added by this Act, apply only to a complaint filed with the State
Committee of Examiners in the Fitting and Dispensing of Hearing
Instruments on or after the effective date of this Act. A complaint
filed before the effective date of this Act is governed by the law
in effect on the date the complaint was filed, and the former law is
continued in effect for that purpose.
(e) Sections 402.210 and 402.302, Occupations Code, as
added by this Act, and Sections 402.303, 402.304, and 402.305,
Occupations Code, as amended by this Act, apply only to an
application for a license or renewal of a license filed with the
State Committee of Examiners in the Fitting and Dispensing of
Hearing Instruments on or after May 1, 2012. An application filed
before that date is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
SECTION 25. This Act takes effect September 1, 2011.