18VAC80-20 Board for Hearing Aid Specialists Regulations

REGULATIONS

Vol. 32 Iss. 4 - October 19, 2015

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR HEARING AID SPECIALISTS AND OPTICIANS

Chapter 20

Proposed Regulation 

Proposed Regulation

Title of Regulation: 18VAC80-20. Board for Hearing Aid Specialists Regulations (amending 18VAC80-20-10, 18VAC80-20-30, 18VAC80-20-40, 18VAC80-20-70, 18VAC80-20-220, 18VAC80-20-230, 18VAC80-20-250, 18VAC80-20-270; repealing 18VAC80-20-280).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information:

December 16, 2015 - 1:30 p.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 200, Board Room 1, Richmond, VA 23233

Public Comment Deadline: December 18, 2015.

Agency Contact: Demetrios J. Melis, Executive Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 54.1-201 of the Code of Virginia authorizes the board to promulgate regulations. The section states, in part, that the board has the power and duty to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the board.

Purpose: The board seeks to amend its current regulations to ensure they are as least intrusive and burdensome as possible, in order to assist in providing an environment without unnecessary regulatory obstacles while still protecting the health, safety, and welfare of the public. Additionally, the board seeks to ensure its regulations are clearly written, easily understandable, and representative of the current advancements and standards of the industries.

Substance:

18VAC80-20-10. Definitions: The definitions of hearing aid specialist and licensee have been modified to align them with the statutory definition found in § 54.1-1500 of the Code of Virginia.

18VAC80-20-30. Basic qualifications for licensure: The proposed amendments modify the description of the practice to reflect the Code of Virginia and changes in 18VAC80-20-10.

18VAC80-20-40. Qualifications for a temporary permit: The proposed amendments modify the description of the practice to reflect the Code of Virginia and changes in 18VAC80-20-10. The requirement that correspondence be sent to both the permit holder and sponsor is updated to expressly exempt correspondence protected by law.

18VAC80-20-50. Fees: The proposed amendments replace specific examination fees with language authorizing examination fees to be set in accordance with the § 2.2-4300 et seq. of the Code of Virginia (Virginia Procurement Act) and with subdivision A 4 of § 54.1-201 of the Code of Virginia. Fees for wall certificates are removed and the licensure fee for reciprocity is consolidated with the initial license fee.

18VAC80-20-220. Purchase agreement: The proposed amendments require disclosure of nonrefundable fees in accordance with the Code of Virginia and prohibit the fees from being a percentage of the purchase price of the hearing aid.

18VAC80-20-230. Fitting and sale of hearing aids for children: The proposed amendments modify the description of the practice to reflect the Code of Virginia and changes in 18VAC80-20-10.

18VAC80-20-250. Testing procedures: The proposed regulations expand the standard testing frequencies to include 6000 – 8000 hertz.

18VAC80-20-270. Grounds for discipline: The proposed amendments (i) expand the grounds for disciplinary action to include probation and refusal to renew and (ii) clarify that temporary permit holders are subject to discipline by the board. The proposed amendments also modify the description of the practice to reflect the Code of Virginia and changes in 18VAC80-20-10.

18VAC80-20-280. Accountability of licensee: The proposed amendments repeal this section.

Issues: The primary advantage of the proposed amendments to the public is the board will continue to approve applicants and license professionals with safeguards in place to ensure proper competency and standards of conduct. The change of scope of prohibited acts to include permit holders will reduce fraud and better ensure the regulant population is minimally competent. Further, regulants and applicants within these professions will be able to read the board's requirements with greater clarity and understanding. The added clarity of the language in the proposed regulations will facilitate a quicker and more efficient process for applicants and regulants by enhancing their understanding of their individual requirements. Further, consumers in the public and regulators from related agencies will have a better understanding of the board's requirements that will allow them to conduct business with greater efficiency.

The primary advantage to the Commonwealth will be the continued successful regulation of hearing aid specialists who meet the minimum entry standards. The proposed amendments strengthen the ability to investigate and discipline regulants who disregard the health, safety, and welfare of the public. No disadvantage has been identified.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Hearing Aid Specialists and Opticians (Board) proposes to amend its Hearing Aid Specialists Regulations to: 1) make them conform to definitions and other language in the Code of Virginia, 2) add several frequencies to the standard air conduction test standard frequencies, 3) clarify that temporary permit holders are subject to Board discipline, 4) consolidate the initial licensure and licensure by reciprocity fees and 5) remove the examination fee (and other language pertaining to that fee) from the schedule of fees and insert language that allows the examination fee to be set outside the regulation by agreement between the Department of Professional and Occupational Regulation (DPOR) and the exam vendor so long as the vendor is chosen through rules set in the Virginia Public Procurement Act.

Result of Analysis. Benefits will likely outweigh costs for several of these regulatory changes. For at least one regulatory change, costs will likely outweigh benefits.

Estimated Economic Impact. Currently, this regulation contains definitions and other language that differs from the language contained in controlling legislation. The Board now proposes to amend the definitions for "licensee" and "hearing aid specialist" as well as add language requiring the disclosure of nonrefundable fees (which may not be a percentage of the purchase price of a hearing aid) so that regulatory language conforms to relevant language in the Code of Virginia (COV). Since the language in the COV is already legally controlling, no entity is likely to incur costs on account of these changes. To the extent that conforming regulatory language to the COV will eliminate the chance of confusion, interested parties will benefit from the added clarity these changes bring.

Currently, this regulation specifies that licensees and temporary permit holders must conduct air conduction tests at standard frequencies of 500, 1,000, 2,000 and 4,000 Hertz. Board staff reports that technology has improved for hearing tests and so the Board now proposes to add 6,000 and 8,000 Hertz to the list of required standard frequencies. Board staff also reports that this change reflects an already established and universally used standard in the hearing aid industry, so they do not expect any affected entity to have to buy any new equipment or incur any additional costs on account of this change.

Current regulatory language does not allow the Board to discipline temporary permit holders for wrongdoing but would instead require the Board to wait until permit holders got their licenses in order to discipline them. The Board now proposes to add temporary permit holders to the list of entities who are subject to Board discipline. This change will likely benefit the public as it will better protect them from temporary permit holders who are providing poor or fraudulent services or who have committed a crime that would preclude them from being licensed in the Commonwealth.

Currently, this regulation has a separate fee that individuals seeking licensure by reciprocity must pay. This fee is $140 and includes the cost of taking the licensure examination ($110). The Board proposes to eliminate the separate fee for licensure by reciprocity and require all applicants for initial licensure to pay the same fee. The fee for initial licensure is currently set at $30 and does not include the examination fee. Although on its face, this change is cost neutral for affected entities, the Board is seeking to increase the initial licensure fee to $85 in a separate action (http://townhall.virginia.gov/L/ViewStage.cfm?stageid=7104). The two actions analyzed together indicate that individuals seeking licensure by reciprocity will likely have to pay more than they currently do to become licensed. Assuming the higher initial licensure fee is promulgated, individuals seeking licensure by reciprocity will pay higher fees in all instances where the examination fee is greater than $55. Analysis of fee increases for this Board can be found at the link provided above.

The Board also proposes to eliminate the explicit examination and re-examination fees from this regulation and instead set these fees administratively based on the cost of private examination services contracted under the rules of the Virginia Public Procurement Act. This change would give the Board greater flexibility to set and change fees without having to go through the regulatory process but the general public and licensees would be adversely impacted in that their ability to receive notice of fee increases (and their ability to make public comment to try to affect Board decisions) will be greatly reduced or even eliminated. This change will increase uncertainty for these groups and will also likely lead to higher costs for licensees which may then be passed on to members of the public who use hearing aid services.

Businesses and Entities Affected. This proposed regulation will affect all current and future hearing aid specialist licensees. Board staff reports that there are currently 668 hearing aid specialists who are licensed in the Commonwealth.

Localities Particularly Affected. No localities will likely be disproportionately affected by this proposed regulatory change.

Projected Impact on Employment. Likely increased licensure fees will likely lead to at least a marginal decrease in the number of individuals who are employed as hearing aid specialists.

Effects on the Use and Value of Private Property. To the extent that professional licenses are private property of value to licensees, increasing the cost of licenses will commensurately decrease their value.

Small Businesses: Costs and Other Effects. To the extent that increasing licensure fees leads to a decrease in the number of individuals licensed as hearing aid specialists, the cost of hiring the services of the remaining, smaller pool of licensees may marginally increase for the small businesses that hire them.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The Board could likely mitigate adverse impacts for licensees and the public by leaving fees structured as they currently are.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate.

General: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The board concurs with the analysis for #1, 2, and 3 in the Summary of Proposed Amendments to Regulations. The board respectfully disagrees with #4 and 5 of the Summary, the sections titled Projected Impact on Employment and Effects on the Use and Value of Private Property, and both Small Businesses sections.

Summary.

1. Summary Item #4: The proposed regulations would "consolidate the initial licensure and licensure by reciprocity fees."

EIA position: "Although on its face, this change is cost neutral for affected entities, the Board is seeking to increase the initial licensure fee to $85 in a separate action (http://townhall.virginia.gov/L/ViewStage.cfm?stageid=7104). The two actions analyzed together indicate that individuals seeking licensure by reciprocity will likely have to pay more than the [sic] currently do to become licensed. Assuming the higher initial licensure fee is promulgated, individuals seeking licensure by reciprocity will pay higher fees in all instances where the examination fee is greater than $55."

Agency Response: The benefit of consolidating the initial licensure fee and the licensure by reciprocity fee will be that the regulations will be clearer and more easily understood by the regulants and the general public. These two fees are the same amount and serve the same purpose, but listing them separately in the regulations causes confusion for applicants. This regulatory change is meant solely to simplify language in the fees sections by reducing two separate fee entries with the same content into one entry. Many of the board's under the Department of Professional and Occupational Regulation successfully utilize this model.

The EIA states that this change is cost neutral, then proceeds to analyze a separate regulatory action, even linking to the other action. While the EIA does not explicitly state the costs outweigh the benefits of this action, it claims that individuals seeking licensure by reciprocity will likely pay higher fees. In actuality, this regulatory action does not change fees at all and uses simplified language to maintain the same fee for all applicants for licensure, whether applying by reciprocity or not. Further, the board believes this regulatory change will be beneficial to the regulants and public, independent of the separate action referenced by the EIA. In fact, this is the reason the board brought separate actions, because this simplification is necessary regardless of the actual amount of the fee.

2. Summary Item #5: The proposed regulations would remove the examination fee (and other language pertaining to the fee) from the schedule of fees and insert language that allows the exam fee to be set by agreement between a vendor, so long as the vendor is chosen in compliance with the Virginia Public Procurement Act.

EIA Position: "This change will increase uncertainty for these groups and will also likely lead to higher costs for licensees which may then be passed on to members of the public who use hearing aid services."

Agency Response: The current regulations set the examination fee at $110. By setting the exam fee in the regulations, the board is effectively unable to modernize its exam. When the exam fee is set in regulations, the process to update the exam, or change the exam, is extremely limited. Any desired change must go through the standardized regulatory review process. This also means that if the administration costs of the exam increase, whether through inflation, or other reasonable causes, and the board is unable to adjust the examination fee capped at $110, the board will have to absorb that cost, increasing its expenses and thus expedite the requirement for a fee increase action to maintain the budget balancing requirements of the Callahan Act. Removing the exam fee from the regulations frees the board from having to seek regulatory changes every time it needs to update the exam, or exam expenses change. Further, this change brings the regulation in line with most of the boards under the Department of Professional and Occupational Regulations (DPOR), including the optician regulations.

As noted in the NOIRA and Agency Background Document, the board's current written examination is a proprietary paper and pencil exam and is being phased out by the exam owner. The company that owns the exam has transitioned to a computer-based exam, and the board would like to be able to explore procuring a modernized exam, in compliance with the Virginia Public Procurement Act (PPA). By eliminating the reference to a specific fee and authorizing setting the fees based on an exam vendor negotiated in compliance with the PPA, the board will be able to adapt more quickly if it loses access to its current exam or if it is able to acquire a new, modernized exam. This allows the board to more ably fulfill its statutory mission to protect the health, safety, and welfare of the public through ensuring licensed professionals are minimally competent.

The EIA's claim that this will likely lead to higher costs for the licensees is unsupported. While the board may need to seek a change in its exam in the future, the competitive bidding process implemented under the PPA may result in a lower or equivalent exam fee.

Projected Impact on Employment.

EIA Position: "Likely increased licensure fees will likely lead to at least a marginal decrease in the number of individuals who are employed as hearing aid specialists."

Agency Response: This regulatory action does not propose a fee increase. The EIA position on the projected impact on employment appears to be directed at a separate regulatory action. The EIA does not identify how any of the proposed changes in this regulatory action would impact employment. The changes proposed in this regulatory action simplify and modernize the regulations and are not anticipated to have a negative impact on employment.

Effects on the Use and Value of Private Property.

EIA Position: "To the extent that professional licenses are private property of value to licensees, increasing the cost of licenses will commensurately decrease their value."

Agency Response: As noted above, this regulatory action does not propose a fee increase. The EIA position on the Effects on the Use and Value of Private Property appears to be directed at a separate regulatory action and does not reference any of the proposed changes in this regulatory action.

Regardless of the EIA response's relation to a separate action, the board disagrees with the characterization of an occupational license as private property. The board, in consultation with the Attorney General's office, maintains that an occupational license is a legal status conferred by the state granting special privileges to the licensee, not private property.

Further, it is not clear how increasing the cost of the license decreases its value. Changing the cost of the license does not affect its function, characteristics, or the usability of the license, factors that would normally determine its value. In this sense, it is not clear how a fee change alone can change the value of a license. The EIA takes the position that a fee increase leads to a decrease in the number licensees. If this is the case, then the license would be more scarce. A decrease in supply would likely result in increased value. So if the license is more scarce due to the fee increase, its value would increase, not decrease as the EIA indicates.

Small Businesses: Costs and Other Effects.

EIA Position: "To the extent that increasing licensure fees leads to a decrease in the number of individuals licensed as hearing aid specialists, the cost of hiring the services of the remaining, smaller pool of licensees may marginally increase for the small businesses that hire them."

Agency Response: As noted above, this regulatory action does not propose a fee increase. The EIA position on the Small Businesses: Costs and Other Effects appears to be directed at a separate regulatory action, and does not reference any of the proposed changes in this regulatory action.

Further, the changes made by this regulatory action are not anticipated to have any negative effect on small business costs. The changes in this action are clarifying changes, updates to reflect current business practices, and a consolidation and simplification of the categories of application fees. This simplification should reduce the regulatory burden on licensees, including small businesses. In fact, the board takes the position that by streamlining and simplifying its regulations, small businesses will experience reduced costs, as owners and employees will have to spend less time and resources reading and understanding the regulations.

Small Businesses: Alternative Method that Minimizes Adverse Impact.

EIA Position: "The Board could likely mitigate adverse impacts for licensees and the public by leaving fees structured as they currently are."

Agency Response: These regulatory changes are clarifying and simplifying in nature and are meant to have a positive impact on the licensee population. Further, to the extent the EIA is referring to the fee increase as fee structure, this regulatory action does not propose a fee increase.

Summary:

The proposed amendments (i) modify the definitions of "hearing aid specialist" and "licensee" and other provisions to align them with statutory definitions found in § 54.1-1500 of the Code of Virginia, (ii) exempt correspondence protected by law from the requirement that correspondence be sent to both the permit holder and sponsor, (iii) eliminate the examination fee cap and authorize examination fees to be set by agreement between the Department of Professional and Occupational Regulation and the examination vendor provided that the vendor is chosen in accordance with Virginia Procurement Act, (iv) eliminate fees for wall certificates and consolidate the licensure fee for reciprocity with the initial license fee, (v) require a hearing aid specialist to disclose nonrefundable fees and prohibit the fees from being a percentage of the purchase price of the hearing aid, (vi) expand the standard testing frequencies to include 6000 – 8000 hertz, (vii) expand the grounds for disciplinary action to include probation and refusal to renew, (viii) clarify that temporary permit holders are subject to discipline by the board, and (ix) make other clarifying changes.

CHAPTER 20
BOARD FOR HEARING AID SPECIALISTS REGULATIONS

Part I
Definitions

18VAC80-20-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Audiologist" means any person who engages in the practice of audiology as defined by § 54.1-2600 of the Code of Virginia.

"Board" means Board for Hearing Aid Specialists and Opticians.

"Department" means Department of Professional and Occupational Regulation.

"Hearing aid specialist" means a person who engages in the practice of fitting and or dealing in hearing aids or who advertises or displays a sign or represents himself as a person who practices the fitting or and dealing of in hearing aids.

"Licensed sponsor" means a licensed hearing aid specialist who is responsible for training one or more individuals holding a temporary permit.

"Licensee" means any person holding a valid license issued by the Board for Hearing Aid Specialists and Opticians for the practice of fitting and or dealing in hearing aids, as defined in § 54.1-1500 of the Code of Virginia.

"Otolaryngologist" means a licensed physician specializing in ear, nose, and throat disorders.

"Reciprocity" means an agreement between two or more states to recognize and accept one another's regulations and laws.

"Reinstatement" means having a license restored to effectiveness after the expiration date has passed.

"Renewal" means continuing the effectiveness of a license for another period of time.

"Temporary permit holder" means any person who holds a valid temporary permit under this chapter.

Part II
Entry Requirements

18VAC80-20-30. Basic qualifications for licensure.

A. Every applicant for a license shall provide information on his application establishing that:

1. The applicant is at least 18 years of age.

2. The applicant has successfully completed high school or a high school equivalency course.

3. The applicant has training and experience that covers the following subjects as they pertain to hearing aid fitting and the sale of hearing aids, accessories, and services:

a. Basic physics of sound;

b. Basic maintenance and repair of hearing aids;

c. The anatomy and physiology of the ear;

d. Introduction to psychological aspects of hearing loss;

e. The function of hearing aids and amplification;

f. Visible disorders of the ear requiring medical referrals;

g. Practical tests utilized for selection or modification of hearing aids;

h. Pure tone audiometry, including air conduction, bone conduction, and related tests;

i. Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;

j. Masking when indicated;

k. Recording and evaluating audiograms and speech audiometry to determine the proper selection and adaptation of hearing aids;

l. Taking earmold impressions;

m. Proper earmold selection;

n. Adequate instruction in proper hearing aid orientation;

o. Necessity of proper procedures in after-fitting checkup; and

p. Availability of social service resources and other special resources for the hearing impaired.

4. The applicant has provided one of the following as verification of completion of training and experience as described in subdivision 3 of this subsection:

a. A statement on a form provided by the board signed by the licensed sponsor certifying that the requirements have been met; or

b. A certified true copy of a transcript of courses completed at an accredited college or university, or other notarized documentation of completion of the required experience and training.

5. The applicant shall has not have been convicted or found guilty of any crime directly related to the practice of fitting and or dealing in hearing aids, regardless of the manner of adjudication, in any jurisdiction of the United States. Except for misdemeanor convictions that occurred five or more years prior to the date of application, with no subsequent convictions, all criminal convictions shall be considered as part of the totality of the circumstances of each applicant. The applicant review of prior convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt.

6. The applicant is in good standing as a licensed hearing aid specialist in every jurisdiction where licensed. The applicant must disclose if he has had a license as a hearing aid specialist that was suspended, revoked, or surrendered in connection with a disciplinary action or that has been the subject of discipline in any jurisdiction prior to applying for licensure in Virginia. At the time of application for licensure, the applicant must also disclose any disciplinary action taken in another jurisdiction in connection with the applicant's practice as a hearing aid specialist. The applicant must also disclose whether he has been previously licensed in Virginia as a hearing aid specialist.

7. The applicant has disclosed his physical address. A post office box is not acceptable.

8. The nonresident applicant for a license has filed and maintained with the department an irrevocable consent for the department to serve as service agent for all actions filed in any court in Virginia.

9. The applicant has submitted the required application with the proper fee as referenced in 18VAC80-20-70 and signed, as part of the application, a statement that the applicant has read and understands Chapter 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board this chapter.

B. The board may make further inquiries and investigations with respect to the qualifications of the applicant or require a personal interview or both. The board may refuse initial licensure due to the applicant's failure to comply with entry requirements. The licensee is entitled to a review of such action. Appeals from such actions shall be in accordance with the provisions of the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

18VAC80-20-40. Qualifications for a temporary Temporary permit.

A. Any individual may apply for a temporary permit, which is to be used solely for the purpose of gaining the training and experience required to become a licensed hearing aid specialist in Virginia. The licensed sponsor shall be identified on the application for a temporary permit and the licensed sponsor shall comply strictly with the provisions of subdivision 2 of this subsection B of this section.

1. A temporary permit shall be issued for a period of 12 months and may be extended once for not longer than six months. After a period of 18 months an extension is no longer possible and the former temporary permit holder shall sit for the examination in accordance with this section.

2. The board may, at its discretion, extend the temporary permit for a temporary permit holder who suffers serious personal illness or injury, or death in his immediate family, or obligation of military service or service in the Peace Corps, or for other good cause of similar magnitude approved by the board. Documentation of these circumstances must be received by the board no later than 12 months after the date of the expiration of the temporary permit or within six months of the completion of military or Peace Corps service, whichever is later.

2. B. Every applicant for a temporary permit shall provide information on upon application establishing that:

a. 1. The applicant for a temporary permit is at least 18 years of age.

b. 2. The applicant for a temporary permit has successfully completed high school or a high school equivalency course.

3. The applicant shall has not have been convicted or found guilty of any crime directly related to the practice of fitting and or dealing in hearing aids, regardless of the manner of adjudication, in any jurisdiction of the United States. Except for misdemeanor convictions that occurred five or more years prior to the date of application, with no subsequent convictions, all criminal convictions shall be considered as part of the totality of the circumstances of each applicant. Review of prior convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt.

4. The applicant for a temporary permit is in good standing as a licensed hearing aid specialist in every jurisdiction where licensed. The applicant for a temporary permit must disclose if he has had a license as a hearing aid specialist that was suspended, revoked, or surrendered in connection with a disciplinary action or that has been the subject of discipline in any jurisdiction prior to applying for licensure in Virginia. At the time of application, the applicant for a temporary permit must also disclose any disciplinary action taken in another jurisdiction in connection with the applicant's practice as a hearing aid specialist. The applicant for a temporary permit must also disclose whether he has been licensed previously in Virginia as a hearing aid specialist.

5. The applicant for a temporary permit has disclosed his physical address. A post office box is not acceptable.

6. The applicant for a temporary permit has submitted the required application with the proper fee referenced in 18VAC80-20-70 and has signed, as part of the application, a statement that the applicant has read and understands Chapter 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board this chapter.

B. C. The licensed hearing aid specialist who agrees to sponsor the applicant for a temporary permit shall certify on the application that as sponsor, he:

1. Assumes full responsibility for the competence and proper conduct of the temporary permit holder with regard to all acts performed pursuant to the acquisition of training and experience in the fitting and or dealing of hearing aids;

2. Will not assign the temporary permit holder to carry out independent field work without on-site direct supervision by the sponsor until the temporary permit holder is adequately trained for such activity;

3. Will personally provide and make available documentation, upon request by the board or its representative, showing the number of hours that direct supervision has occurred throughout the period of the temporary permit; and

4. Will return the temporary permit to the department should the training program be discontinued for any reason.

C. D. The licensed sponsor shall provide training and shall ensure that the temporary permit holder under his supervision gains experience that covers the following subjects as they pertain to hearing aid fitting and the sale of hearing aids, accessories, and services:

1. Basic physics of sound;

2. Basic maintenance and repair of hearing aids;

3. The anatomy and physiology of the ear;

4. Introduction to psychological aspects of hearing loss;

5. The function of hearing aids and amplification;

6. Visible disorders of the ear requiring medical referrals;

7. Practical tests utilized for selection or modification of hearing aids;

8. Pure tone audiometry, including air conduction, bone conduction, and related tests;

9. Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;

10. Masking when indicated;

11. Recording and evaluating audiograms and speech audiometry to determine the proper selection and adaptation of hearing aids;

12. Taking earmold impressions;

13. Proper earmold selection;

14. Adequate instruction in proper hearing aid orientation;

15. Necessity of proper procedures in after-fitting checkup; and

16. Availability of social service resources and other special resources for the hearing impaired.

D. E. The board may make further inquiries and investigations with respect to the qualifications of the applicant for a temporary permit or require a personal interview, or both.

E. F. All correspondence from the board to the temporary permit holder not otherwise exempt from disclosure, shall be addressed to both the temporary permit holder and the licensed sponsor and shall be sent to the business address of the licensed sponsor.

18VAC80-20-70. Fees.

A. All fees are nonrefundable and shall not be prorated. The date of receipt by the board or its agent is the date which that be used to determine whether or not it is on time.

B. Application and examination fees must be submitted with the application for licensure.

C. In the event that a check, money draft, or similar instrument for payment of a fee required by statute or regulation is not honored by the bank or financial institution named, the applicant or regulant shall be required to remit fees sufficient to cover the original fee, plus the additional processing charge established by the department.

The following fees apply:

Application Fee	$30	to be paid by all applicants for initial licensure except reciprocal applicants
Examination Fee	$110
Licensure Fee for Reciprocity	$140	includes exam fee
Temporary Permit Fee	$30
Re-examination Fee	$95	per written or practical part
Renewal	$20
Reinstatement	$50
Duplicate Wall Certificate	$25

D. The written examination fee shall be established in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). The practical examination fee shall be established by the department that is sufficient to cover expenses for the administration of the examination in compliance with subdivision A 4 of § 54.1-201 of the Code of Virginia.

18VAC80-20-220. Purchase agreement.

A. Each hearing aid shall be sold through a purchase agreement which that shall:

1. Show the licensee's business address, license number and, business telephone number, and signature;

2. Comply with federal and Virginia laws and regulations, United States U.S. Food and Drug Administration (FDA) regulations, the Virginia Home Solicitation Sales Act (Chapter 2.1 (§ 59.1-21.1 et seq.) of Title 59.1 of the Code of Virginia), and the Virginia Consumer Protection Act (Chapter 17 (§ 59.1-196 et seq.) of Title 59.1 of the Code of Virginia);

3. Clearly state, if the hearing aid is not new and is sold or rented, that it is "used" or "reconditioned," whichever is applicable, including the terms of warranty, if any. The hearing aid container shall be clearly marked with the same information contained in the purchase agreement.

4. Identify the brand names and model of the hearing aid being sold, and the serial number of the hearing aid shall be provided, in writing, to the purchaser or prospective purchaser at the time of delivery of the hearing aid;

5. Disclose the full purchase price;

6. Disclose the down payment and periodic payment terms in cases where the purchase price is not paid in full at delivery;

7. Disclose any nonrefundable fees established in accordance with § 54.1-1505 of the Code of Virginia. Nonrefundable fees shall not be a percentage of the purchase price of the hearing aid;

8. Disclose any warranty;

9. Explain the provisions of § 54.1-1505 of the Code of Virginia, which entitles the purchaser to return the hearing aid, in the 10-point bold face type that is bolder than the type in the remainder of the purchase agreement; and

10. Disclose that the licensee or temporary permit holder is not a physician licensed to practice medicine in Virginia and that no examination or representation made shall be regarded as a medical examination, opinion or advice;.

B. Subdivision A 10 of this section shall not apply to sales made by a licensed hearing aid specialist who is a physician licensed to practice medicine in Virginia.

18VAC80-20-230. Fitting and or sale of hearing aids for children.

1. Any person engaging in the fitting and or sale of hearing aids for a child under 18 years of age shall ascertain whether such child has been examined by an otolaryngologist or licensed physician within six months prior to fitting.

2. No child under 18 years of age shall be initially fitted with a hearing aid or hearing aids unless the licensed hearing aid specialist has been presented with a written statement signed by an otolaryngologist stating the child's hearing loss has been medically evaluated and the child may be considered a candidate for a hearing aid. The medical evaluation must have taken place within the preceding six months.

3. No child under 18 years of age shall be subsequently fitted with a hearing aid or hearing aids unless the licensed hearing aid specialist has been presented with a written statement signed by a licensed physician stating the child's hearing loss has been medically evaluated and the child may be considered a candidate for a hearing aid. The medical evaluation must have taken place within the preceding six months.

18VAC80-20-250. Testing procedures.

It shall be the duty of each licensee and holder of a temporary permit engaged in the fitting and sale of hearing aids to use appropriate testing procedures for each hearing aid fitting. All tests and case history information must be retained in the records of the specialist. The established requirements shall be:

1. Air Conduction Tests A.N.S.I. standard frequencies of 500-1000-2000-4000-6000-8000 Hertz. Intermediate frequencies shall be tested if the threshold difference between octaves exceeds 15dB. Appropriate masking must be used if the difference between the two ears is 40 dB or more at any one frequency.

2. Bone Conduction Tests are to be made on every client--A.N.S.I. standards at 500-1000-2000-4000 Hertz. Proper masking is to be applied if the air conduction and bone conduction readings for the test ear at any one frequency differ by 15 dB or if lateralization occurs.

3. Speech testings shall be made before fittings and shall be recorded with type of test, method of presentation and the test results.

4. The specialist shall check for the following conditions and, if they are found to exist, shall refer the client to a licensed physician unless the client can show that his present condition is under treatment or has been treated:

a. Visible congenital or traumatic deformity of the ear.

b. History of active drainage from the ear within the previous 90 days.

c. History of sudden or rapidly progressive hearing loss within the previous 90 days.

d. Acute or chronic dizziness.

e. Unilateral hearing loss.

f. Audiometric air bone gap equal to or greater than 15 dB at 500 Hertz, 1000 Hertz, and 2000 Hertz.

g. Visible evidence or significant cerumen accumulation or a foreign body in the ear canal.

h. Tinnitus as a primary symptom.

i. Pain or discomfort in the ear.

5. All tests shall have been conducted no more than six months prior to the fitting.

6. Post-fitting testing shall be made and recorded with type of test, method of presentation and the test results.

18VAC80-20-270. Grounds for discipline.

The board may, in considering the totality of the circumstances, fine any temporary permit holder or licensee or, and suspend, place on probation, or revoke, or refuse to renew any temporary permit or license or deny any license application issued under the provisions of Chapter 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board this chapter. Disciplinary procedures are governed by the Administrative Process Act, Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. In exercising its disciplinary function, the board will consider the totality of the circumstances of each case. Any licensee is subject to board discipline for any of the following:

1. Improper conduct, including but not limited to:

a. Obtaining or, renewing, or attempting to obtain a license by false or fraudulent representation;

b. Obtaining any fee or making any sale by fraud or misrepresentation;

c. Employing to fit and or sell hearing aids a person who does not hold a valid license or a temporary permit, or whose license or temporary permit is suspended;

d. Using, causing, or promoting the use of any misleading, deceptive, or untruthful advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or any other representation, whether disseminated orally or published;

e. Advertising a particular model or type of hearing aid for sale when purchasers or prospective purchasers responding to the advertisement cannot purchase the advertised model or type;

f. Representing that the service or advice of a person licensed to practice medicine or audiology will be used in the selection, fitting, adjustment, maintenance, or repair of hearing aids when that is not true;, or using the words "physician," "audiologist," "clinic," "hearing service," "hearing center," or similar description of the services and products provided when such use is not accurate;

g. Directly or indirectly giving, or offering to give, favors, paid referrals, or anything of value to any person who in his professional capacity uses his position to influence third parties to purchase products offered for sale by a hearing aid specialist; or

h. Failing to provide expedient, reliable and, or dependable services when requested by a client or client's guardian.

2. Failure to include on the purchase agreement a statement regarding home solicitation when required by federal and state law.

3. Incompetence or negligence, as those terms are generally understood in the profession, in fitting or selling hearing aids.

4. Failure to provide required or appropriate training resulting in incompetence or negligence, as those terms are generally understood in the profession, by a temporary permit holder under the licensee's sponsorship.

5. Violating or cooperating with others in violating any provisions of Chapters 1 (§ 54.1-100 et seq.), 2 (§ 54.1-200 et seq.), 3 (§ 54.1-300 et seq.), and 15 (§ 54.1-1500 et seq.) of Title 54.1 of the Code of Virginia or any regulation of the board this chapter.

6. The licensee, temporary permit holder, or applicant shall not have has been convicted or found guilty of any crime directly related to the practice of fitting and or dealing in hearing aids, regardless of the manner of adjudication, in any jurisdiction of the United States. Except for misdemeanor convictions that occurred five or more years prior to the date of application, with no subsequent convictions, all criminal convictions shall be considered as part of the totality of the circumstances of each applicant. Review of prior convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any pleas of nolo contendere shall be considered a conviction for the purpose of this subdivision. The record of a conviction authenticated in such form as to be admissible in evidence of the law of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt.

18VAC80-20-280. Accountability of licensee. (Repealed.)

A licensee shall be responsible for the acts or omissions of his staff in the performance of the fitting and dispensing of hearing aid services.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (18VAC80-20)

License Application, 21LIC (rev. 10/03).

Temporary Permit Application, 21TPER (eff. 10/03).

Reinstatement Application, 21REI (rev. 10/03).

Reexamination Application, 21REEX (rev. 12/00).

Hearing Aid Specialist License Application, A440-2101LIC-v3 (rev. 3/2016)

Hearing Aid Specialist Temporary Permit Application, A440-2102TP_PKG-v4 (rev. 3/2016)

Hearing Aid Specialist License Reinstatement Application, A440-2101REI-v3 (rev. 3/2016)

Hearing Aid Specialist Re-examination Application, A440-2101REEX-v2 (rev. 9/2013)

Hearing Aid Specialist Training & Experience Form, A440-21TREXP-v2 (eff. 9/2013)

VA.R. Doc. No. R14-3984; Filed September 25, 2015, 9:26 a.m.