(a) Mental or physical examination requirement.      
        (1) The board may require a licensee or applicant to submit to a mental and/or physical examination by a physician or physicians designated by the board if the board has probable cause to believe that the licensee or 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 acupuncture board, or the State Office of Administrative Hearings that a certain licensee or applicant is impaired;                   (B) a sworn statement from an official representative of the Texas Association of Acupuncturists or the Texas Association of Acupuncture and Oriental Medicine stating that the representative is willing to testify before the board that a certain licensee or applicant is impaired;                   (C) evidence that a licensee or applicant left a treatment program for alcohol or chemical dependency before completion of that program;                   (D) evidence that a licensee or applicant is guilty of intemperate use of drugs or alcohol;                   (E) evidence of repeated arrests of a licensee or applicant for intoxication;                   (F) evidence of recurring temporary commitments of a licensee or applicant to a mental institution; or                   (G) medical records indicating that a licensee or applicant has an illness or condition which results in the inability to function properly in his or her practice.                   (H) actions or statements by a licensee or applicant at a hearing conducted by the Board that gives the Board reason to believe that the licensee or applicant has an impairment.         
        (3) 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, the medical specialists 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 Board.       
        (4) 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 the 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.       
        (5) At the show cause hearing provided in for in paragraph (4) of this subsection, a panel of the Board's representatives shall determine whether the licensee/applicant shall submit to an evaluation or that the matter shall be closed with no examination required.                  (A) At the hearing, the licensee/applicant and the licensee/applicant's attorney, if any, are entitled to present testimony and other evidence showing that the licensee/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 licensee/applicant shall submit to an examination, the 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 licensee is entitled to cross-examine an expert who offers testimony at hearing before the 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 Board-ordered mental or physical examination are confidential shall be presented to the 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 licensee shall be provided the results of an examination and given the opportunity to provide a response at least 30 days before the Board takes action.         
        (6) In fulfilling its obligations under Section 205.3523 of the Act, the Board shall refer the licensee/applicant to the most appropriate medical specialist for evaluation. The Board may not require a licensee/applicant to submit to an examination by a physician having a specialty specified by the Board unless medically indicated. The Board may not require a licensee/applicant to submit to an examination to be conducted an unreasonable distance from the person's home or place of business unless the licensee/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 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 acupuncturists who are believed to be impaired and eligible for the Texas Physician Health Program. Rehabilitation orders entered into on or before January 1, 2010 shall be governed by law as it existed immediately before that date.     
     Source Note:        The provisions of this §183.9 adopted to be effective March 6, 2003, 28 TexReg 1883; amended to be effective May 2, 2010, 35 TexReg 3279