| (a) Rehabilitation orders entered into on or before January 1, 2010, shall be governed by this section only. (b) Purposes of rehabilitation orders. (1) To provide an incentive to a licensee or applicant to seek early assistance with drug or alcohol-related problems or mental or physical conditions that present a potentially dangerous limitation or inability to practice medicine with reasonable skill and safety. (2) To protect the public by requiring the impaired licensee or applicant to obtain treatment and/or limit or refrain from the practice of medicine while suffering from an impairment. (c) Eligibility for rehabilitation order. The board may issue a rehabilitation order for a licensee or applicant, as a prerequisite for issuing a license, for the following reasons: (1) intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician; (2) the licensee or applicant self-reported intemperate use of drugs or alcohol as set out in subsection (f) of this section, and has not previously been the subject of a substance abuse-related order of the board; (3) a court has determined that the licensee or applicant is of unsound mind; (4) the licensee or applicant has an impairment as determined by a mental or physical examination; or (5) an admission by the licensee or applicant of an illness or a physical or mental condition that limits or prevents the person's practice of medicine with reasonable skill and safety. (d) Factors for board consideration in proposing a rehabilitation order. (1) General. In determining whether to recommend a rehabilitation order to an otherwise eligible licensee or applicant, the board shall consider all relevant factors. (2) Federal and state drug and alcohol laws. Absent a showing of good cause by the licensee or applicant, the board may not grant a rehabilitation order if any of the following factors exist: (A) the licensee or applicant has been found guilty, pled guilty, or received deferred adjudication of any felony or misdemeanor related to the intemperate use of drugs or alcohol at issue; (B) the licensee or applicant was required to or voluntarily surrendered his/her drug license(s) or certification(s) issued by the Federal Drug Enforcement Administration (DEA), Texas Department of Public Safety (DPS) or comparable authority of another state in connection with a criminal investigation related to the intemperate use of drugs or alcohol at issue; and (C) the licensee's or applicant's intemperate use of drugs or alcohol led to a violation of Chapters 481 and 483 of the Texas Health and Safety Code or a violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801 et seq.). (3) The licensee or applicant and board staff may present information to the Board's representatives relevant to whether any violation of the standard of care is a result of the intemperate use of drugs or alcohol. The Board's representatives may not recommend a confidential rehabilitation order if they determine that a violation of the standard of care was a result of the intemperate use of drugs or alcohol. The board shall have complete discretion to determine whether any violation of the standard of care was a result of the intemperate use of drugs or alcohol. (4) Additional factors to be established by a licensee or applicant. Licensees or applicants otherwise eligible for a rehabilitation order should provide evidence of the following factors to be considered by the board prior to the board proposing a rehabilitation order: (A) steps taken to prevent potential future harm to the public that may include a treatment and monitoring plan; (B) existence of rehabilitative potential; (C) a clinical diagnosis of a physical or mental condition and supporting medical records; (D) that the licensee or applicant cooperated with board staff during the course of the investigation; and (E) applicability of any other mitigating factors set forth in §190.15(b) of this title (relating to Aggravating and Mitigating Factors). (5) Additional factors to be established by board staff. If applicable, board staff shall present evidence of the following factors to be considered by the board prior to the board proposing a rehabilitation order: (A) intemperate use of drugs or alcohol by the licensee or applicant in a manner affecting the standard of care; (B) a complaint alleging intemperate use of drugs or alcohol by the licensee or applicant in a manner affecting the standard of care has been received by the board, and the status of the investigation of the complaint; (C) licensee or applicant caused harm to any individual or entity; (D) licensee or applicant has a disciplinary history, including criminal convictions, disciplinary orders with board or other state medical boards, disciplinary actions by other state or federal regulatory agencies, and peer review actions by hospitals or medical societies; (E) licensee or applicant inappropriately self-treated or self-prescribed; (F) licensee or applicant violated provisions of the Act other than §§164.051(a)(4), (a)(5) and 164.052(a)(5); (G) applicability of any other aggravating factors set forth in §190.15(a) of this title. (e) Concurrent public agreed order. The board may approve a public agreed order that does not relate to standard of care violations to run concurrently with any confidential rehabilitation order, authorized by this section. (f) Requirements for self-reports. To be eligible for a rehabilitation order based on a self-report of intemperate use of drugs or alcohol: (1) the self-report must have been made to the board: (A) within five years after the last commission of intemperate use of drugs or alcohol; (B) before the filing of any criminal charges involving drugs or alcohol use; and (C) before the board receives a complaint or other report of intemperate use; (2) the licensee or applicant making the self-report has no prior board orders based on use of drugs or alcohol; (3) the licensee or applicant has not committed a violation of the standard of care as a result of the intemperate use of drugs or alcohol; (4) no valid complaint with regard to the licensee or applicant based on intemperate use of drugs or alcohol in a manner affecting the standard of care has been received by the board prior to the time the licensee or applicant signs the proposed rehabilitation order. If the board receives any complaint regarding the standard of care before the licensee or applicant signs the proposed rehabilitation order, the licensee or applicant is not eligible for a rehabilitation order unless the board makes a determination that the licensee or applicant did not violate the standard of care as a result of the intemperate use of drugs or alcohol; (5) self-reports of intemperate use of drugs or alcohol by licensees or applicants must be made through a written statement by the licensee or applicant, or the authorized agent of the licensee or applicant, submitted to the board or board staff by mail, email, messenger, telefacsimile transmission, or hand-delivery. The self-report may be made through responses provided as part of an application for a license or writing submitted for purposes of licensure renewal; and (6) the licensee or applicant must provide a complete self-report of the intemperate use of alcohol or drugs that includes, but is not limited to, the following information: (A) the approximate dates of intemperate use; (B) the extent of intemperate use; (C) the substance(s) used; (D) the method(s) of ingestion; (E) all history of substance abuse treatment to include approximate dates of treatment and the specific locations where treatment was received; and (F) a description of any incident that a reasonably prudent physician would believe could result in an allegation of the physician's violation of the standard of care that occurred during the time of intemperate use or, if no violation of the standard of care has occurred, a statement that no violation of the standard of care occurred during the time of intemperate use. (g) Guidelines for determination of a mental or physical condition. (1) Mental condition. Absent a showing of good cause, a licensee or applicant suffering from a mental condition should provide evidence to the board, including medical records, of a clinical diagnosis by a physician or mental health care provider of a condition listed under DSM-IV. (2) Physical condition. Absent a showing of good cause, a licensee or applicant suffering from a physical condition should provide evidence to the board, including medical records, of a clinical diagnosis by a physician. (3) Additional factors for consideration. A licensee's or applicant's diagnosis shall be considered along with the licensee's or applicant's: (A) current and past levels of functioning; (B) concurrent medical disorders; (C) complicating factors such as substance-related disorders; (D) compliance with treatments; (E) response to treatment; (F) prognosis; and (G) stage of recovery from the illness. (4) Hearing. An informal show compliance proceeding shall be considered an evidentiary hearing for the purposes of this subsection and in accordance with §164.202 of the Act. (h) Confidentiality. Consideration of proposed agreed rehabilitation orders shall be conducted so as to keep the identity of the licensee or applicant confidential. (1) Confidentiality may be preserved through one or more of the following: (A) confidential informal show compliance proceedings; (B) confidential modification and termination requests and proceedings; (C) executive sessions by the board and board committee; and/or, (D) redaction of identifying information when such orders are considered in open session. (2) The rehabilitation order may require the licensee or applicant to participate in activities or programs provided by a local or statewide private medical association. If the board makes such a requirement, the board shall: (A) inform the association of the licensee's duties under the order, including specific guidance to enable the association to comply with any requirements necessary to assist in the physician's rehabilitation; (B) provide to the association any information, including confidential information, that the board determines to be necessary, including a copy of the rehabilitation order; and (C) advise the association that the information provided by the board is and remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the board, in accordance with §164.205(b), Texas Occupations Code. (3) The board, board staff, and agents of the board will attempt in good faith to ensure that the terms and conditions of a rehabilitation order remain confidential. However, in order to ensure compliance with a rehabilitation order, it may be necessary to disrupt the activities of a licensee or applicant and to contact the licensee or applicant, including but not limited to telephone calls, mail, or unannounced visits to the licensee's or applicant's place of employment or residence. (4) Upon a determination by the board that licensee or applicant has violated a rehabilitation order, the rehabilitation order may become a public document and subject to the Texas Public Information Act. |
