SECTION 281.6. Mental or Physical Examination

For the purposes of the Act, §§565.001(a)(4), 565.052, 568.003(a)(5), and 568.0036, shall be applied as follows.

(1) The board may discipline an applicant, licensee, or registrant if the board finds that the applicant, licensee, or registrant has developed an incapacity that in the estimation of the board would prevent a pharmacist from engaging in the practice of pharmacy or a pharmacy technician or pharmacy technician trainee from practicing with a level of skill and competence that ensures the public health, safety, and welfare.

(2) Upon a finding of probable cause, as determined by the board or an authorized agent of the board, that the applicant, licensee, or registrant has developed an incapacity that in the estimation of the board would prevent a pharmacist from engaging in the practice of pharmacy or a pharmacy technician or pharmacy technician trainee from practicing with a level of skill and competence that ensures the public health, safety, and welfare, the following is applicable.

(A) The executive director/secretary, legal counsel of the agency, or other representative of the agency as designated by the executive director/secretary, shall request the applicant, licensee, or registrant to submit to a mental or physical examination by a physician or other healthcare professional designated by the board. The individual providing the examination shall be approved by the board. Such examination shall be coordinated through the entity that contracts with the board to aid impaired pharmacists and pharmacy students. The applicant, licensee, or registrant shall:

(i) provide the entity with written notice of the appointment at least three days prior to the appointment;

(ii) execute and return to the entity an authorization for release of relevant information on the form required by the entity, within ten days of receipt of request for the release from the entity; and

(iii) follow all other procedures of the entity for each examination.

(B) The applicant, licensee, or registrant shall be notified in writing, by either personal service or certified mail with return receipt requested, of the request to submit to the examination.

(C) The applicant, licensee, or registrant shall submit to the examination within 30 days of the date of the receipt of the request.

(D) The applicant, licensee, or registrant shall authorize the release of the results of the examination and the results shall be submitted to the board within 15 days of the date of the examination.

(3) If the applicant, licensee, or registrant does not comply with the provisions of paragraph (2) of this section, the following is applicable.

(A) The executive director/secretary shall cause to be issued an order requiring the applicant, licensee, or registrant to show cause why he/she will not submit to the examination.

(B) The executive director/secretary shall schedule a hearing on the order before a panel of three members of the board appointed by the president of the board, within 30 days after notice is served on the applicant, licensee, or registrant.

(C) The applicant, licensee, or registrant shall be notified of the hearing by either personal service or certified mail with return receipt requested.

(D) At the hearing, the applicant, licensee, or registrant has the burden of proof once probable cause has been established by the board, as required by §565.062 of the Act to rebut the probable cause. The applicant, licensee, or registrant, and if applicable, the applicant's, licensee's, or registrants' attorney, are entitled to present testimony and other evidence to show why probable cause has not been established requiring the applicant, licensee, or registrant to submit to the examination. An evaluation that has not been approved by the board and coordinated by the entity that contracts with the board to aid impaired pharmacist and pharmacy students according to its procedure cannot be admitted at the hearing in lieu of one that has been properly approved and coordinated.

(E) After the hearing, the panel shall issue an order either requiring the applicant, licensee, or registrant to submit to the examination not later than the 60th day after the date of the order or withdraw the request for examination, as applicable.

Source Note: The provisions of this §281.6 adopted to be effective December 30, 1998, 23 TexReg 13073; amended to be effective December 27, 2000, 25 TexReg 12688; amended to be effective March 25, 2007, 32 TexReg 1507; amended to be effective December 7, 2010, 35 TexReg 10689; amended to be effective June 7, 2012, 37 TexReg 4045; amended to be effective September 8, 2013, 38 TexReg 5720