                          QWice of tfie RIttornep QSeneral
                                      &ate        of lltexae
DAN MORALES                             October 21,199l
 ATTORNEY
      GENERAL



     Ms. Susan Gay Dorsett                          Opinion No. DM-50
     chair
     State Committee of Bxaminers for               Re: Whether audiology students at a
       Speech-Language Pathology                    college or university are required to
       and Audiology                                obtain a temporary permit from the
     1100 West 49th Street                          Texas Board of Examiners in the Fitting
     Austin, Texas 78756-3183                       and Dispensing of Hearing Aids in order
                                                    to make ear impressions
                                                    @Q-100)
     Dear Ms. Dorsett:

             You ask whether an audiology student at a college or university is required to
     obtain a temporary training permit from. the Texas Board of Examiners in the
     Fitting and Dispensing of Hearing Aids (hereinafter, “the board”) in order to make
     impressions for earmolds to be used as parts for hearing aids.

             Articles 4566-1.01 through 4566-1.22, V.T.C.S., (hereinafter, “the act”)
     provide for the regulation of the fitting and dispensing of hearing aids. Article 4566-
     1.06 provides that “[elvery 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 Bxaminers in the Fitting and Dispensing of Hearing Aids” and
     that those passing the examination and meeting other qualifications under the act
     “shall receive from the Board a license to fit and dispense hearing aids in this state.”
     V.T.C.S. art. 4566-1.06(a), (e). For purposes of article 4566-1.06, “fitting and
     dispensing hearing aids” includes inter alia “the making of impressions for earmolds
     to be used as a part of the hearing aid.” V.T.C.S. art. 4566-1.01(f).

             The temporary training permit you refer to in your question is provided for in
     article 4566-1.09. That provision allows a person who has not taken the examination
     provided for in article 4566-1.06, but who obtains a temporary permit from the
     board, to fit and dispense hearing aids for a stated period of time or until he has
     passed the examination.


                                             p.    253
Ms. Susan Gay Dorsett - Page 2                       (DM-50)




         Article 4566-1.19 provides, in pertinent part:

                  Nothing in this Act shall be construed to apply to the
             following:

                   (1) Persons engaged in the practice ~of measuring human
              hearing as part of the academic. curriculum of. an accredited
              institution of higher learning, provided such persons or their
              employees do not sell hearing aids.

         The above-quoted provisions of article 4566-1.19 on their face permit a
student at an accredited institution of higher learning, who is there “engaged in the
practice of measuring human hearing as part of the academic curricula” to make
impressions for earmolds without being subject to board licensure or temporary
permitting or to the other requirements of the act, so long as he or his employees do
not “sell”hearing aids. Thus, if audiology students at such institutions are engaged
in the practice of measuring human hearing as part of their academic curricular
they may make impressions for earmolds without board licensing or permitting, so
long, again, as they or their employees do not “sell”hearing aids. See V.T.C.S. art.
4566-1.01(e) (defhring “[slell”or “sale”to include “a transfer of title or of the right to
use by lease, bailment, or any other contract,” but not “sales at wholesale by manu-
facturers to persons licensed under this Act, or to distributors for distribution and
sale to persons licensed under this Act”); see uLroAttorney General Opinion M-895
(1971) (an individual who sells earmolds for use as component parts of hearing aids
is “selling hearing aids”for purposes of the act).

        We note also that a brief received in connection with this request cites
Attorney General Opinion MW-555 (1982) for the proposition that audiology
students making impressions for earmolds must have a license or temporary permit
from the board., That opinion concluded, based on the provisions of subpart (3) of
article 4566-1.19 then in effect, that individuals with master’s or doctorate degrees in
audiology were nevertheless subject to the licensure and other provisons of the act if




         ‘We note that article 4512j, which provides        for regulation   of audiolcgkts,   in section   2,
subsection   (8). defmcs “[t]he practice of audiology” to include hearing measurement.




                                               p.    254
Ms. Susan Gay Dorsett - Page 3             (DM-50)




they made impressions for earmolds to be used as parts of hearing aids. At the time
Attorney General Opinion MW-555 dealt with it, subpart (3) read:

               Nothing in this Act shall be construed to apply to the
          following:

              . . . .


               (3) An individual with a master’s or doctorate degree in
          audiology from an accredited college or university may engage
          in the measurement of human hearing by the use of an\ audio-
          meter or by any means for the purpose of making selections and
          adaptations of or recommendations for a hearing aid, provided
          such personsdo not sell hearing aids.

See Acts 1981,67th Leg., ch. 774, at 2910.

      Attorney General Opinion MW-555 pointed out that article 4566-1.06 requir-
ed persons engaged in “fitting and dispensing hearing aids” to be licensed or
temporarily permitted by the board, and that article 4566-1.01(f) provided:

               “Fitting and Dispensing hearing aids” means the measure-
          ment of human hearing by the use of an audiometer or by any
          means for the purpose of making selections, adaptations and/or
          sales of hearing aids. The term also includes the sale of hearing
          aids, and the making of impressions for earmolds to be used as a
          part of the hearing aid.

‘Ibe opinion reasoned that the provisions of subpart (3) then in effect only
permitted the advanced degreed individuals described there to “engage in the
measurement of human hearing,” and that the above-quoted article 4566-1.01(f)
definition of “fitting and dispensing hearing aids” indicated that “making impressions
for earmolds” was a distinct activity from the “measurement of human hearing,” and
‘wasnot covered by the subpart (3) exemption.

       In response to Attorney General Opinion MW-555, the legislature amended
subpart (3) of article 4566-1.19 to its present form in 1983 by adding the language
“and the making of impressions for eat-molds to be used as part of a hearing aid.”




                                      p.     255
Ms. Susan Gay Dorsett - Page 4           (DE-50)




Acts 1983, 68th Leg., ch. 125, at 598; see aLro Bill Analysis, S.B. 1100, 68th Leg.
(1983).

        Subpart (3) of article 4566-1.19 both as originally adopted and as amended in
1983 is grammatically problematical when considered with the first sentence of the
article. (“Nothing in this Act shall be construed to apply to the following: . . . An
individual with a master’s or doctorate degree in audiology.. . may engage in the
measurement of human hearing.. . and the making of impressions for
earmolds . . . .“) Nevertheless, we think subpart (3), despite the grammar problem,
clearly operates as express permission for the audiologists described there to engage
in only such activities as are enumerated there without being subject to the
licensing, permitting, or other requirements of the act. Attorney General Opinion
MW-555 concluded that making impressions for earmolds was not, at that time, one
of those enumerated activities. Subpart(l), in contrast, exempts students engaged
in the study of human hearing at certain institutions from the requirements of the
act for uny activities they engage in, so long as they do not sell hearing aids.
Therefore, we do not think the analysis of subpart (3) of article 4566-1.19 in
Attorney General Opinion MW-555, which concluded that making earmolds was not
one of the permitted activities under subpart (3). is applicable to subpart (l), which
again permits the individuals described there to engage in uny activities ivithout
being subject to the act, so long as they do not “sell”hearing aids.

         Accordingly, we conclude in response to your question that pursuant to the
exemption in article 4566-1.19(l), audiology students engaged in the practice of
measuring human hearing as a part of the academic curriculum of an accredited
institution of higher learning may make impressions for earmolds to be used as parts
in hearing aids without having obtained a license or temporary permit from the
Board of Examiners in the Fitting and Dispensing of Hearing Aids, so long as the
students or their employees do not “sell”hearing aids.

                                  SUMMARY

               Pursuant to the exemption in V.T.C.S. article 4566-1.19(l),
          audiology students engaged in the practice of measuring human
          hearing as a part of the academic curriculum of an accredited
          institution of higher learning may make impressions for
          earmolds to be .used as parts in hearing aids without having
          obtained a ‘iicense or temporary permit from the Board of
          Examiners in the Fitting and Dispensing of Hearing Aids, so



                                    p.   256
Ms. Susan Gay Dorsett - Page 5            (DW50)




         long as the students or their employees do not “sell” hearing
         aids.




                                                   DAN      MORALES
                                                   Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




                                     p.   257
