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TITLE 22EXAMINING BOARDS
PART 14TEXAS OPTOMETRY BOARD
CHAPTER 277PRACTICE AND PROCEDURE
RULE §277.11Submission 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 president 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.


Source Note: The provisions of this §277.11 adopted to be effective December 6, 2017, 42 TexReg 6796

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