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  S.B. No. 663
 
 
 
 
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.  Subdivisions (1) and (3), Section 402.001,
  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.  Subsections (a) and (b), Section 402.053,
  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 [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.  Subsection (a), Section 402.057, 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.  Subsection (b), Section 402.058, 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. 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.
         SECTION 10.  Section 402.104, Occupations Code, is amended
  by amending Subsection (a) and adding Subsections (d) and (e) to
  read as follows:
         (a)  The committee shall develop and maintain an examination
  that may include written, oral, or practical tests.  The department
  shall administer or arrange for the administration of the [a
  written] examination.
         (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.  Subsection (e), Section 402.154, 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.  Subsection (a), Section 402.202, 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.  Subsections (a) and (d), Section 402.205,
  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.  Subsections (b) through (g), Section 402.209,
  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.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 663 passed the Senate on
  April 11, 2011, by the following vote: Yeas 31, Nays 0; and that
  the Senate concurred in House amendment on May 27, 2011, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 663 passed the House, with
  amendment, on May 20, 2011, by the following vote: Yeas 143,
  Nays 0, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor