HE ASTBIECNEY GENERAL
OF EXAS
June 29, 1971
Mr. John F. Boff Opinion No. M-895
Executive Director
Texas Board of Examiners in the Re: Whether certain activities
Fitting and Dispensing of relating to preparation of
Hearing Aids earmolds for hearing aids
Penthouse Apts. Room 105 constitute sales of hearing
1212 Guadalupe aids under Article 4566,
Austin, Texas 78701 Vernon's Civil Statutes.
Dear Mr. Boff:
In your letter requesting an opinion from this office,
you state the following:
"It has come to our attention that some
confusion as to the role of those individuals
employed by non-profit organizations or institu-
tions of higher learning, in the fitting and
dispensing of hearing aids in the State of
Texas exist. We would like a formal opinion
to clarify this role.
"We feel that It is understood that those
individuals employed by institutions of higher
learning, non-profit organizations, or under the
supervision of a physician and surgeon can carry
out hearing aid evaluations, hearing aid selec-
tions, hearing aid fitting (what ever the
preferred clinical terminology might be) as
long as they do not sell hearing aids."
In addition, you have advised this office that an earmold
is an essential component part of any "hearing aid" as the latter
term is defined by the provisions of Article 4566-1.01(d), Vernon's
Civil Statutes.
In this regard you question whether a clinic or individual
who takes an ear impression, has an earmold prepared from the im-
pression, pays for the mold and in turn sells the mold to an in-
dividual, is engaging in the sale of a hearing aid and is required
to be licensed to sell and dispense hearing aids by the Texas State
Board of Examiners in the Fitting and Dispensing of Hearing Aids.
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Mr. John F. Boff, page 2 (M-895)
Under the provisions of Article 4566-1.06(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,,inthe Fitting and Dis-
pensing of Hearing Aids.
The term "fitting and dispensing of hearing aids" is defined by
the provisions of Article 4566-1.01(f) as follows:
"(f) 'Fitting and Dispensing hearing aids'
means the measurement 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 im-
pressions for eaTmolds to be used as a part of
the hearing aid.
Article 4566-1.19, which exempts certain persons and
practices from the provisions of the Act, is quoted as follows:
"Nothing in this Act shall be construed
to apply to the following:
"(1) Persons engaged in the practice of
measuring human hearing as a part of the academic
curriculum of an accredited institution of higher
learning.
"(2) Persons engaged in the practice of
measuring human hearing as a part of a program
conducted by a nonprofit rrganization, provided
such organization or its employees does not sell
hearing aids.
“(3) Physicians and surgeons duly licensed
by the Texas State Board of Medical Examiners and
qualified to practice in the State of Texas.
"(4) Persons employed and directly supervised
by a physician and surgeon to test or measure human
hearing, provided such persons do not sell hearing
aids."
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_ . r
Hon. John F. Boff, page 3 (M-89,5)
The language of the above quoted provisions of these
Articles Is clear and unambiguous. A statute that is plain and
unambiguous will ordinarily be interpreted literally. . . :' 53
Tex.Jur.2d 197, Statutes, $135.
Consequently, it is our opinion that an Individual, other
than a physician, licensed to practice in this State, or a clinic,
who sells an earmold to an individual which Is intended to be used
as a component part of a hearing aid, is sellin hearing aids and
is not exempted by the provisions of Article 45%6-1.19, Vernon's
Civil Statutes, from the requirement of being licensed by the
Texas State Board of Examiners in the Fitting and Dispensing of
Hearing Aids.
SUMMARY
An individual, other than a physician licensed
to practice in this State or a clinic,whlch sells an
earmold to an individual which is intended to be used
as a component part of a hearing aid, is selling
hearing aids and Is not exempted by the provisions
of Article 4566-1.19, Vernon's Civil Statutes, from
the requirement of being licensed by the Texas State
Board of Examiners in the F ting and Dispensing of
Hearing Aids. ,,/q
,',/
Very truly yofls,
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Malcolm Quick
Bill Corbusier
Pat Bailey
Ken Nordquist
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Mr. John F. Boff, page 4 (M-895)
MEADE,F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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