Hon. John F. Boff                    Opinion No. E-636
Executive Director
Board of Examiners in the            Re: Questions relating to sales
  Fitting & Dispensing of                of hearing aids and licensing
  Hearing Aids                           of persons to fit and dis-
1212 Guadalupe                           pense hearing aids.
Austin, Texas 78701

Dear Mr. Boff:

     You have requested the opinion of this office regarding the
following two specific questions:

          “1. Can the Board require the serial number
     of the hearing aid being sold to a customer be
     included in the necessary information on the sales
     receipt?

          "2 . Is a Factory Representative, who lives
     either within or outside of the State of Texas en-
     titled to a license to fit and dispense hearing
     aids in the State of Texas?"

     In connection with your first question, we quote the follow-
ing from Section 1.14, Article 4566, Vernon's Civil Statutes:

          "(b) Every licensee shall deliver to each
     person supplied with a hearing aid, by the licensee
     or under his direction, a bill of sale which shall
     contain his signature, his printed name, the address
     of his principal office, the number of his license,
     a description of the make and model of the hearinq aid
     furnished and the amount charged therefor, and whether
     the hearing aid is new, used or rebuilt."   (Emphasis
     added.)




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Hon. John F. Boff, page 2 (M-636)


     In answering your question, we assume that the use of
serial numbers is customary practice in the industry. If this be
true, there is no question but that the serial number is a proper
element of "a description of the make and model of the hearing
aid furnished", and that the Board has the authority to require
that the serial number be recorded on the bill of sale.,

     With regard to your second question, the following is
quoted from Article 4566, Section 1,OC:

          "(a) Every person desiring to engage in fitting
     and dispensing hearing aids in the State of Texas
     shall be required to pass an examination given by
     the Texas Board of Examiners in the Fitting and Dis-
     pensing of Hearing Aids.

     "(b) The applicant shall make application, furnish-
     ing to the Secretary-Treasurer of the Board on forms to
     be furnished by the Board, sworn evidence that he has
     attained the age of 18,years, is of good moral character,
     is free of contagious or infectious disease, and has
     graduated from an accredited high school or equivalent,
     and such other information as the Board may deem
     necessary for the enforcement of this Act.

          "(c) The examination shall consist of written,
     oral or practical tests in the following areas as they
     pertain to the fitting and dispensing of hearing aids,
     to-wit:
           (1) Basic physics of sound:
           (2) The structure and function of hearing aids:
           (3) Fitting of hearing aids:
           (4) Pure tone audiometry, including air conduction
               testing and bone conduction testing;
           (5) Live voice and/or record voice speech audiometry:
           (6) Masking when indicated:
           (7) Recording and evaluation of audiograms and speech
               audiometry to determine the hearing aid candidacy;
           (8) Selection and adaption of hearing aids and testing
               of hearing aids: and
           (9) Taking of earmold impressions.




                           -3044-
Hon. John F. Boff, page 3 (M-636)


          "(d) No part of the examination shall consist
     of tests requiring knowledge of the diagnosis and/or
     treatment of any disease or injury to the human body.

           "(e) Each applicant shall be given due notice of
     the date and place of the examination and the subjects,
     areas, and/or skills that will be included within such
     examination, and there shall be no changes in said
     subjects, areas, and/or skills after the date of the
     examination has been announced and publicized nor shall
     there be more than one change or group of changes in
     any one calendar year. All examinations shall be
     conducted in writing and by such other means as the Board
     shall determine adequate to ascertain the qualifications
     of applicants. All applicants examined during a given
     calendar year shall be given the same examination.
     Every applicant successfully passinq the examination
     and meetinq all the requirements of this Act shall be
     resistered by the Board as possessinq the qualifications
     required by this Act and shall receive from the Board a
     .license to fit and dispense hearinq aids inthis state."
     (Emphasis added.)

     We note that the only exception to the requirements set
forth above are to be found in Sections 1.07 and 1.08 of
Article 4566. These two exceptions permit reciprocity with
other states which license this particular activity, and permit
the licensing of individuals who have practiced the fitting and
dispensing of hearing aids for a certain period prior to the
effective date of Article 4566. Section 1.07; which is the
so-called'"grandfather clause" permits the licensing of any
person who meets certain requirements not pertinent to this
opinion, and "has been engaged in fitting and dispensing hearing
aids in the United States of America for a period of at least
one year immediately prior to the effective date of this Act."

     A careful examination of Article 4566 reveals that no
residence requirement has been made in any part of the statute.
You are therefore advised that it is the opinion of this office
that any person, wherever resident, who can satisfy the examina-
tion requirements set forth in Section 1.06 of Article 4566 is
entitled to a license to fit and dispense hearing aids in the
State of Texas.


                          -3045-
Hon. John F. Boff, page 4    (M-636)


                        SUMMARY

               Assuming that the use of serial numbers
          is customary practice in the hearing aid in-
          dustry, such serial number is a proper element
          of a description of the make and model of the
          hearing aid furnished, and the Board of
          Examiners in the Fitting and Dispensing of
          Hearing Aids has the authority to require that
          such serial numbers be recorded on the bill of
          sale, under Article 4566, V.C.S.

              Any person, wherever resident, who cqn
          satisfy the examination requirements set forth
          in Section 1.06 of Article 4566, V.C.S., or
          qualifies under the grand-father clause or
          reciprocity provisions is entitled to allicense
          to fit and dispense hearing aids in the State of
          Texas.

                                       Ve#&ruly     yours,




                                       Attor@y    General of Texas

Prepared by Malcolm L. Quick
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman

Austin Bray
Sarah Phillips
Fisher Tyler
James Mabry

MEADE F. GRIFFIN
Staff Legal Assistant




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Hon. John F. Boff, page 5(M-636)


ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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