| (a) Mental or physical examination requirement.
(1) The advisory board may require a practitioner/applicant
to submit to a mental and/or physical examination by a physician or
physicians designated by the advisory board if the advisory board
has probable cause to believe that the practitioner/applicant is impaired.
Impairment is present if one appears to be unable to practice with
reasonable skill and safety to patients by reason of age, illness,
drunkenness, excessive use of drugs, narcotics, chemicals, or any
other type of material; or as a result of any mental or physical condition.
(2) Probable cause may include, but is not limited
to, any one of the following:
(A) sworn statements from two people, willing to testify
before the advisory board, the Medical Board, committees of those
boards, or the State Office of Administrative Hearings that a certain
practitioner/applicant is impaired;
(B) a sworn statement from an official representative
of the Texas Society for Respiratory Care stating that the representative
is willing to testify before the advisory board that a certain practitioner/applicant
is impaired;
(C) evidence that a practitioner/applicant left a treatment
program for alcohol or chemical dependency before completion of that
program;
(D) evidence that a practitioner/applicant is guilty
of intemperate use of drugs or alcohol;
(E) evidence of repeated arrests of a practitioner/applicant
for intoxication;
(F) evidence of recurring temporary commitments of
a practitioner/applicant to a mental institution;
(G) medical records indicating that a practitioner/applicant
has an illness or condition which results in the inability to function
properly in his or her practice; or
(H) actions or statements by a practitioner/applicant
at a hearing conducted by the advisory board or the Medical Board
that gives the advisory board or the Medical Board reason to believe
that the practitioner or applicant has an impairment.
(3) Upon presentation to the Executive Director of
probable cause, the advisory board authorizes the Executive Director
to write the practitioner/applicant requesting that the practitioner/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,
the physician or physicians the Executive Director has approved to
conduct such examinations, and the date by which the examination and
the results are to be received by the advisory board.
(4) If the practitioner/applicant to whom a letter
requiring a mental or physical examination is sent refuses to submit
to the examination, the advisory board, through its Executive Director,
shall issue an order requiring the practitioner/applicant to show
cause why the practitioner/applicant should not be required to submit
to the examination and shall schedule a hearing on the order not later
than the 30 days after the date on which the notice of the hearing
is provided to the practitioner. The practitioner/applicant shall
be notified by either personal service or certified mail with return
receipt requested.
(5) At the show cause hearing provided for in paragraph
(4) of this subsection, a panel of the advisory board's representatives
shall determine whether the practitioner/applicant shall submit to
an evaluation or that the matter shall be closed with no examination
required.
(A) At the hearing, the practitioner/applicant and
the practitioner/applicant's attorney, if any, are entitled to present
testimony and other evidence showing that the practitioner/applicant
should not be required to submit to the examination.
(B) If, after consideration of the evidence presented
at the show cause hearing, the panel determines that the practitioner/applicant
shall submit to an examination, the advisory board's representatives
shall, through its Executive Director, issue an order requiring the
examination within 60 days after the date of the entry of the order
requiring examination. A practitioner/applicant is entitled to cross-examine
an expert who offers testimony at hearing before the advisory board.
(C) If the panel determines that no such examination
is necessary, the panel will withdraw the request for examination.
(D) The results of any advisory board-ordered mental
or physical examination are confidential shall be presented to the
advisory board under seal for it to take whatever action is deemed
necessary and appropriate based on the results of the mental or physical
examination. A practitioner/applicant shall be provided the results
of an examination and given the opportunity to provide a response
at least 30 days before the advisory board takes action.
(6) In fulfilling its obligations under §604.052(1)(H)
of the Act, the advisory board shall refer the practitioner/applicant
to the most appropriate medical specialist for evaluation. The advisory
board may not require a practitioner/applicant to submit to an examination
by a physician having a specialty specified by the advisory board
unless medically indicated. The advisory board may not require a practitioner/applicant
to submit to an examination to be conducted an unreasonable distance
from the person's home or place of business unless the practitioner/applicant
resides and works in an area in which there are a limited number of
physicians able to perform an appropriate examination.
(7) The guidelines adopted under this subsection do
not impair or remove the advisory board's power to make an independent
licensing or disciplinary decision unless a temporary suspension is
convened.
(b) Chapter 180 of this title (relating to Texas Physician
Health Program and Rehabilitation Orders) shall be applied to respiratory
care practitioners who are believed to be impaired and eligible for
the Texas Physician Health Program.
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