(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.
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