For the purposes of the Act, §26(a)(4), shall be applied as follows.

1. (1) The board may reprimand, fine, restrict, suspend, cancel, retire, or revoke any license granted by the board if the board finds that the applicant or licensee has developed a mental or physical incapacity that in the estimation of the board would prevent a pharmacist from engaging in the practice of pharmacy with a level of skill and competence that ensures the public health, safety and welfare.

2. (2) Upon probable cause that the applicant or licensee has developed a mental or physical incapacity that in the estimation of the board would prevent a pharmacist from engaging in the practice of pharmacy with a level of skill and competence that ensures the public health, safety, the following is applicable:

   1. (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 pharmacist or applicant to submit to a mental or physical examination by a physician or physicians designated by the board.
   2. (B) The pharmacist or applicant shall be notified in writing, by either personal service or certified mail with return receipt requested, of the request to submit to the examination.
   3. (C) The pharmacist or applicant shall submit to the examination within 30 days of the date of the receipt of the request.
   4. (D) The pharmacist or applicant 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. (3) If the pharmacist or applicant does not comply with the provisions of paragraph (2) of this section, the following is applicable.

   1. (A) The executive director/secretary shall cause to be issued an order requiring the pharmacist or applicant to show cause why he/she will not submit to the examination.
   2. (B) The executive director/secretary shall schedule a hearing before the board or the State Office of Administrative Hearings on the order, within 30 days after notice is served on the pharmacist or applicant.
   3. (C) The pharmacist or applicant shall be notified of the hearing by either personal service or certified mail with return receipt requested.
   4. (D) At the hearing, the pharmacist or applicant and if applicable, the pharmacist's or applicant's attorney, are entitled to present any testimony and other evidence to show why the pharmacist should not be required to submit to the examination.
   5. (E) After the hearing, the board shall issue an order either requiring the pharmacist or applicant to submit to the examination or withdrawing the request for examination.

Source Note:The provisions of this §281.6 adopted to be effective December 30, 1998, 23 TexReg 13073.