(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.

Source Note: The provisions of this §186.22 adopted to be effective April 3, 2017, 42 TexReg 1758