Title of Regulation: 18VAC80-20. Hearing Aid Specialists Regulations (amending 18VAC80-20-80).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 16, 2022.

Effective Date: March 7, 2022.

Agency Contact: Stephen Kirschner, Executive Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email hearingaidspec@dpor.virginia.gov.

Basis: Section 54.1-201.5 of the Code of Virginia gives authority to the Board for Hearing Aid Specialists and Opticians 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 regulatory board.

Purpose: This regulation is being amended for consistency in laws and regulations and to reduce the regulatory burden on licensees. The board currently allows licensed opticians two years to obtain passing exam scores, while hearing aid specialists, functionally, must pass within nine months (three successive examinations offered by the Department of Health Professions). The wording of the current regulations frequently has an unintended negative consequence, where individuals who inadvertently miss a testing window or miss their exam due to illness or accident are not afforded extra time and lose passing scores from a previous exam. The board determined this change would reduce the regulatory burden on hearing aid specialist applicants. There is no additional risk to the health, safety, or welfare of the citizens by allowing applicants for licensure more time to obtain and provide passing exam scores to the board.

Rationale for Using Fast-Track Rulemaking Process: The department expects the proposed amendments to be noncontroversial because the changes will give applicants more time to obtain and provide passing exam scores to the board with their application for licensure. The direct effect of the board's regulatory changes will be limited to those who are candidates for examination and applicants for licensure as hearing aid specialists.

Substance: The proposed amendment updates this section to allow applicants for licensure two years to obtain passing exam scores on all sections.

Issues: The primary advantage of allowing applicants two years to obtain passing exam scores is that it may lead to additional economic growth opportunities by allowing applicants to avoid having to retake portions of the exam they have already passed, and thereby obtain their license faster, with less expense. This reduces the economic burden on applicants, as well as affords them the opportunity to enter the profession sooner, including increased wages that come along with the license. Additionally, implementing this change requires no additional training for candidates or applicants. There are no disadvantages to the public or individual private citizens or businesses.

The primary advantage to the Commonwealth is that the regulatory program will be more accessible to qualified applicants. Currently, qualified applicants face difficulty in providing valid passing exam scores to the board due to the short period each exam score will remain valid. There are no identified disadvantages to the agency or Commonwealth.

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 allow applicants more time to pass all sections of the hearing aid specialist licensure exam.

Background. Exam Description and Administration. The hearing aid specialist licensure exam has six sections in total. The written part has two sections: 1) Theory and 2) Rules and Regulations. The Theory section is administered by the International Hearing Society (IHS), and the Rules and Regulations section is administered by PSI, LLC (PSI). According to the Department of Professional and Occupational Regulation (DPOR), both IHS and PSI have testing centers spread across the Commonwealth. The practical part has four sections: 1) Audiogram Testing, 2) Speech Audiometry, 3) Earmold Impressions, and 4) Hearing Aid Troubleshooting and Maintenance. The four sections of the practical part are administered by DPOR at one location in Richmond.

Proposed Change. The current regulation states the following for candidates of hearing aid specialist licensure:

"C. Applicants for licensure shall pass a two part examination, of which Part I is a written examination and Part II is a practical examination.

1. The applicant shall pass each section of the written and practical examination administered by the board. Candidates failing one or more sections of the written or practical examination will be required to retake only those sections failed.

2. Any candidate failing to achieve a passing score on all sections in three successive scheduled examinations¹ must reapply as a new applicant for licensure and repeat all sections of the written and practical examination."

The Board proposes to replace the stricken text with "two years from the initial test date" to read:

"2. Any candidate failing to achieve a passing score on all sections in two years from the initial test date² must reapply as a new applicant for licensure and repeat all sections of the written and practical examination."

Fees

Estimated Benefits and Costs. The exams are offered every three months. Thus, under the current regulation, candidates must pass all six sections within a nine month window. If the candidate does not pass all six sections within 9 months, he or she would have to reapply as a new applicant and retake all sections of the exam. The proposed amendment would give candidates two years to pass all sections, without having to retake sections already passed and paying another application fee.

According to data provided by DPOR, each year there are about five to nine candidates who do not pass all sections of the exam within nine months. The proposed amendment enables these candidates, assuming that they intend to keep trying to pass the full licensure exam, to save the costs resulting from fees as well as time and transportation when they are taking exam sections after nine months from their initial test date and within two years of their initial test date. The table below describes the savings based on different potential situations.

The savings in fees paid described in the above table, would mean commensurate reductions in revenue for the three exam administrating organizations.

Having to reapply as a new applicant and retake all of the exam sections if all are not passed within nine months may discourage some candidates from continuing to attempt to become licensed. By allowing substantially more time to pass all sections without having to start from scratch if not completed within nine months, some individuals who under the current regulation may stop attempting to become a licensed hearing aid specialist may instead with the proposed amendment continue their pursuit and eventually become licensed. To the extent that this would occur, some businesses and other entities that employ licensed hearing aid specialists may benefit by a modestly larger supply of potential employees.

Businesses and Other Entities Affected. The proposed amendment particularly affects the approximate five to nine hearing aid specialist licensure candidates who each year are unable to pass all sections of the licensure examination within nine months. The proposed amendment also affects the three organizations that administer the different sections of the exam, and potential employers of hearing aid specialists. The U.S. Bureau of Labor Statistics lists the following as the top five employers of hearing aid specialists (employs the most, employs second most, etc.):³ health and personal care stores, offices of other health practitioners,⁴ other ambulatory health care services,⁵ offices of physicians, and general medical and surgical hospitals.

An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Since the proposed amendment would likely result in fewer instances of candidates retaking exam sections, the administrators of the exams would likely receive less exam fee revenue. Thus, an adverse impact is indicated.

Small Businesses⁶ Affected. The proposed amendments do not appear to adversely affect small businesses.⁷

Localities⁸ Affected.⁹ The proposed amendments neither disproportionally affect any particular locality, nor introduce costs for local governments.

Projected Impact on Employment. To the extent that some individuals who under the current regulation may give up on becoming a licensed hearing aid specialist, instead with the proposed amendment continue their pursuit and eventually become licensed, there may be a modest increase in the number of people who become employed as hearing aid specialists.

Effects on the Use and Value of Private Property. To the extent that some individuals who under the current regulation may give up on becoming a licensed hearing aid specialist, instead with the proposed amendment continue their pursuit and eventually become licensed, the supply of licensed hearing aid specialists may modestly increase. This may modestly reduce the cost to firms of hiring hearing aid specialists, which may in turn have a small positive impact on their value.

The one private entity that administers exam sections, PSI, would likely have the number of retaking of exam sections they administer reduced by less than 10 per year. Given that PSI delivers over 30 million assessments annually,¹⁰ this would have a negligible impact on the firm.

The proposed amendment does not affect real estate development costs.

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¹Bold added for emphasis.

²Ibid

³See https://www.bls.gov/oes/current/oes292092.htm

⁴"Offices of other health practitioners" includes "offices of audiologists," which likely accounts for most if not all of the hearing aid specialists employed in this category.

5"Other ambulatory health care services" includes "hearing testing services (excluding audiologist offices)," which likely accounts for most if not all of the hearing aid specialists employed in this category.

⁶Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷PSI, LLC would likely receive somewhat fewer test taking fees; but with over 2,000 employees and over 30 million assessments delivered annually (see https://www.psionline.com/company/about-us/), it does not likely meet the statutory definition of a small business.

⁸"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹⁰See https://www.psionline.com/company/about-us/

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

The amendment allows applicants more time to pass all sections of the exam. Under the new requirement, passing scores will remain valid for two years, which is consistent with other occupations, including opticians.

18VAC80-20-80. Examinations.

A. All examinations required for licensure shall be approved by the board and administered by the board, a testing service acting on behalf of the board, or another governmental agency or organization.

B. The candidate for examination shall follow all rules established by the board with regard to conduct at the examination. Such rules shall include any written instructions communicated prior to the examination date and any instructions communicated at the site, either written or oral, on the date of the examination. Failure to comply with all rules established by the board with regard to conduct at the examination shall be grounds for denial of the application.

C. Applicants for licensure shall pass a two part examination, of which Part I is a written examination and Part II is a practical examination.

1. The applicant shall pass each section of the written and practical examination administered by the board. Candidates failing one or more sections of the written or practical examination will be required to retake only those sections failed.

2. Any candidate failing to achieve a passing score on all sections in three successive scheduled examinations two years from the initial test date must reapply as a new applicant for licensure and repeat all sections of the written and practical examination.

3. If the temporary permit holder fails to achieve a passing score on any section of the examination in three successive scheduled examinations, the temporary permit shall expire upon receipt of the examination failure letter resulting from the third attempt.