§1063.1. Authorization to compel evaluation

A. As used in this Section, the following terms shall have the following meaning:

(1) "Evaluation" means a diagnostic assessment for impairment by a board-approved addictionist.

(2) "Impaired" or "impairment" means a condition that causes an infringement on the ability of a person to practice, or assist in the practice of, optometry sufficient to pose a danger to the public. Impairment may be caused by, but is not limited to, alcoholism, substance abuse or addiction, mental illness, or physical illness.

(3) "Licensee" means an applicant for or a person renewing any license, registration, certificate, permit, or any other designation deemed necessary to engage in or assist in the practice of optometry.

B. In determining whether or not an impairment exists, the board, upon reasonable suspicion of such impairment, shall have the authority to compel a licensee to submit to an evaluation, by such persons as the board may designate either in the course of an investigation or a disciplinary proceeding.

C. Reasonable suspicion of impairment shall be presumed based upon preliminary evidence that the licensee is impaired based on specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. For purposes of this Section, facts and inferences may be based upon, but not limited to any of the following:

(1) Observable phenomena while practicing or assisting in the practice of optometry such as direct observation of alcohol or drug use or abuse or of the physical symptoms or manifestations of being impaired due to alcohol or other drug use.

(2) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance.

(3) A report of alcohol or other drug use provided by a reliable and credible source.

(4) Evidence that a licensee has received a positive result from any drug or alcohol test during the individual's employment with an employer.

(5) Evidence that a licensee has tampered with any drug or alcohol test during the individual's employment with an employer.

(6) Evidence that a licensee has illegally manufactured, sold, distributed, solicited, possessed, used, or transferred drugs.

D. Information submitted pursuant to this Section shall be confidential and not subject to discovery by or release to any person or entity. The licensee shall submit to the board a release of information authorizing the board to obtain a report of such evaluation.

E. A licensee shall be offered, at reasonable intervals, an opportunity to demonstrate that such person can resume the competent practice or assistance in the practice of optometry with reasonable skill and safety to patients.

F. For the purpose of this Section, a licensee shall be deemed to have consented to submit to an evaluation when directed in writing by the board and further to have waived all objections to the admissibility of the testimony of the person conducting any evaluation at any proceeding or hearing before the board on the grounds that such testimony or evaluation constitutes a privileged communication.

G. In any proceeding by the board pursuant to the provisions of this Section, the record of such board proceedings involving the evaluation shall not be used in any other administrative or judicial proceeding outside of the board's jurisdiction.

H. When the board directs a licensee to submit to an evaluation, the time from the date of the board's directive until the submission to the board of the report of the evaluation shall not be included in the computation of the time limit for any hearing that may occur in the matter.

Acts 2006, No. 596, §1; Acts 2009, No. 289, §1.