22 Tex. Admin. Code § 277.11 - Submission to Mental or Physical Examination
(a) If the Board has probable cause to
believe that a licensee/applicant has developed an incapacity that prevents or
could prevent the applicant or license holder from practicing optometry or
therapeutic optometry with reasonable skill, competence, and safety to the
public (an incapacity), the Board shall require the licensee/applicant to
submit to a mental and/or physical examination by a physician or other
healthcare professional designated by the Board. Probable cause may include,
but is not limited to, any one of the following:
(1) sworn statements from two people, willing
to testify before the Board, that a certain licensee/applicant has developed an
incapacity;
(2) a sworn statement
from a representative of the Peer Assistance Program, stating that the
representative is willing to testify before the Board that a certain
licensee/applicant has developed an incapacity;
(3) evidence that a licensee/applicant left a
treatment program for alcohol or chemical dependency before a completion of
that program;
(4) evidence that a
licensee/applicant has engaged in the intemperate use of drugs or alcohol at a
time and under circumstances that would lead a reasonable person to believe
that the licensee/applicant has developed an incapacity;
(5) evidence of repeated arrests of a
licensee/applicant for intoxication or drug use;
(6) evidence of recurring temporary
commitments to a mental institution of a licensee/applicant;
(7) medical records showing that a
licensee/applicant has an illness or condition that results in the inability to
function properly in his or her practice; or
(8) actions or statements by a
licensee/applicant at a hearing conducted by the Board that gives the Board
reason to believe that the licensee has developed an
incapacity.
(b) Upon
presentation to the Executive Director of probable cause, the Board authorizes
the Executive Director to write the licensee/applicant requesting that the
licensee/applicant submit to a physical or mental examination within 30 days of
the receipt of the letter from the Executive Director. The letter shall state
the reasons for the request for the mental or physical examination and the
physician or other healthcare professional designated by the Executive Director
to conduct such examinations. The applicant/licensee shall authorize the
release of the results of the examination to the Board and the results shall be
submitted to the Board within 15 days of the date of the examination. The
results of any Board -ordered mental or physical examination are
confidential.
(c) If the
licensee/applicant to whom a letter requiring a mental or physical examination
is sent refuses to submit to the examination, the Board, through its Executive
Director, shall issue an order requiring the licensee/applicant to show cause
why the licensee/applicant should not be required to submit to the examination
and shall schedule a hearing on the order not later than 30 days after the date
on which the notice of the hearing is provided to the licensee. The
licensee/applicant shall be notified by either personal service or certified
mail with return receipt requested.
(d) At the hearing provided in for in
subsection (c) of this title, three members of the Board appointed by the Chair
of the Board shall determine whether the licensee/applicant shall submit to an
evaluation or that the matter shall be closed with no examination required.
(1) At the hearing, the applicant/licensee
has the burden of proof once probable cause has been established by the Board
to rebut the probable cause. The applicant/licensee and the
licensee/applicant's attorney, if any, are entitled to present testimony and
other evidence to show why probable cause has not been established requiring
the applicant/licensee to submit to the examination. An applicant/licensee is
entitled to cross-examine an expert who offers testimony at the
hearing.
(2) If, after
consideration of the evidence presented at the hearing, the panel determines
that the licensee/applicant shall submit to an examination, the panel shall
authorize the Executive Director to issue an order requiring the examination
within 60 days after the date of the entry of the order requiring examination.
The applicant/licensee shall authorize the release of the results of the
examination to the Board, and the results shall be submitted to the board
within 15 days of the date of the examination.
(3) If the panel determines that no such
examination is necessary, the panel will withdraw the request for
examination.
(e) The
provisions of this rule shall not be construed so as to prohibit other
appropriate disciplinary action under the Act, civil or criminal action and
remedy and enforcement under other laws.
Notes
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