Attorney General Opinion No.

The Honorable Clyde Graeber State Representative, Forty-First District 2400 Kingman Leavenworth, Kansas 66048-4230

Dear Representative Graeber:

As representative for the forty-first district you inquire whether the licensure by reciprocity standard and/or requirements found in K.S.A.74-5814 may be applied with discretion or whether the Kansas board of hearing aid examiners (hereinafter Board) is authorized only to determine whether the standard and/or requirements set by the statute have been met.

The standard and/or requirements for licensure by reciprocity are found in subsection (b) of K.S.A. 74-5814 as follows:

"(b) Whenever the board determines that another state or jurisdiction has requirements equivalent to or higher than those in effect pursuant to this act for the selling and the practice of fitting hearing aids, and such state or jurisdiction has a program equivalent to or stricter than the program for determining whether applicants pursuant to this act are qualified to sell and fit hearing aids, the board may issue certificates of endorsement to applicants therefor who hold current, unsuspended and unrevoked certificates or licenses to sell and fit hearing aids in such other state or jurisdiction. No such applicant for a certificate of endorsement pursuant to this subsection shall be required to submit to or undergo any examination, investigation or other procedure, other than the payment of the appropriate fees, pursuant to K.S.A. 74-5811 and 74-5812 and amendments to those sections in the amounts provided for in K.S.A. 74-5810a and amendments thereto and the requirement to submit documentation that the calibration of the applicant's audiometric testing equipment has been tested and verified as accurate within the preceding two-year period."

Before the board may grant a reciprocal license, it must make two findings. First, the board must determine whether another state or jurisdiction has requirements equivalent to or higher then the Kansas requirements. Second, the board must determine whether the state has a program equivalent to or stricter than the Kansas program for determining whether an applicant is qualified to sell and fit hearing aids. Once the requirements and standard have been met the statute authorizes the board to issue a reciprocal license.

The language of the statute establishes a standard that must be met before a reciprocal license may be granted. The statute does not provide any discretion; the board must determine whether the requirements of another state meet or exceed Kansas standards and whether the other state's program for determining qualification for license meets or exceeds Kansas' program. However, the board must make the determination on an individual basis. In order to understand the requirements' application we must first delineate what Kansas requirements and standards include.

Kansas requires applicants to be eighteen year of age, a high school graduate, or have continuously engaged in the practice for three years prior to application. K.S.A. 74-5811. Kansas' program requirements for qualification are found at K.S.A. 74-5813 which delineate the areas of competency for licensure in both the written and practical exams. The board requires a 75 percent passing score in each of the areas tested. Thus, in order to determine whether the standards established by the statute have been met by the applicant for licensure by reciprocity, the board must first compare Kansas requirements with the other state. Second, the board must determine whether the areas of competency tested in the other state meet or exceed Kansas requirements.

For example, in Missouri the areas tested parallel Kansas' four major categories of competence. The first area of competence involves a written examination covering fundamental knowledge of sound, the human ear and the function of hearing aids. The next three areas of competence involve tests of proficiency in the techniques used to test human hearing. These techniques include pure tone audiometry that includes air and bone conduction testing; speech audiometry that includes the ability to determine whether an individual is a good candidate for a hearing aid; and taking earmold impressions. K.S.A. 74-5813; Mo.Rev.Stat. 346.085. The Missouri board of examiners require only a seventy percent passing score overall and no grade below sixty percent in any one subject tested, 4 C.S.R. 160-2.010, unlike Kansas' 75 percent passing score. Thus, in order for the Kansas board to determine whether an applicant for licensure by reciprocity meets or exceeds Kansas' standards and requirement, the board must compare scores in the comparable areas of competency existing in both states for each individual seeking licensure by reciprocity.

It is therefore our opinion that while the board is authorized only to apply the standard set by the statute, its application involves the discretion to compare not only areas of competency but to determine whether each individual applicant has met Kansas requirements and standards in each area by a passing score of at least seventy five percent.

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Guen Easley Assistant Attorney General

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