8 NYCRR §§156.1, 156.2, 156.3, 156.4, 156.5, 156.12
REVISED REGULATORY IMPACT STATEMENT
Since the publication of a Notice of Proposed Rule Making in the State Register on December 24, 2019, substantial revisions were made in response to public comment, as well as in response to the COVID-19 crisis.
In response to public comment, section 156.3(g) of the Commissioner’s regulations was amended to require that school bus drills include specific instructions for pupils to advance at least 15 feet in front of the school bus before crossing a highway, rather than 10 feet, consistent with the amendment made to section 156.3(e)(4).
In order to provide flexibility for certain regulatory requirements relating to pupil transportation in response to the COVID-19 crisis, the proposed amendment has been revised as follows:
• The basic course of instruction in school bus safety required by section 156.3(b)(5)(ii) and 156.3(d)(5)(ii) and the refresher training instruction required in section 156.3(b)(5)(iii) and 156.3(d)(5)(iii) may be postponed where a school bus driver, monitor, or attendant is unable to complete such instruction due to the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis. Such instruction shall be rescheduled and completed as soon as practicable.
• Section 156.3(c)(2)(i) is amended to permit school bus driver instructors to attend the annual professional development seminar (PDS) by teleconference or videoconference for the 2019-2020 school year due to the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.
• Section 156.3(c)(3)(i) is amended to permit master instructor training programs to be provided by teleconference or videoconference for the 2019-2020 school year and to permit master instructors to attend the annual master instructor strategy meeting or PDS by teleconference or videoconference for the 2019-2020 school year due to the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.
• Section 156.3(g)(2) is amended to permit school bus drills to be postponed where such drills are unable to be conducted between March 1st and April 30th due to the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.
1. STATUTORY AUTHORITY:
Education Law §101 (not subdivided) charges the Department with the general management and supervision of all public schools and all of the educational work of the state.
Education Law §207 (not subdivided) grants general rule-making authority to the Regents to carry into effect State educational laws and policies.
Education Law §210 (not subdivided) authorizes the Regents to register domestic and foreign institutions in terms of New York standards.
Education Law §305(14)(d) authorizes the board of education or the trustee of a district and a contractor providing pupil transportation services to such district may amend a contract for pupil transportation services upon a finding that such amendment is necessary to comply with any federal, state or local law, rule or regulation imposed after the execution of such contract, or to enhance the safety of pupil transportation, as determined by the board or trustee subject to the approval of the commissioner pursuant to regulation.
Education Law §1604(23) authorizes boards of education of common school districts to contract for the conveyance of pupils residing within the district, when authorized to do so under Education Law §2021(19), by vote of the inhabitants of the district entitled to vote, or to contract for the operation, maintenance and garaging of motor vehicles owned by the district consistent with the regulations of the commissioner.
Education Law §1709 enumerates the powers and duties of boards of education of union free school districts.
Education Law §3602(7)(a)-(b) and (d) provides for the apportionment of public moneys to school districts employing eight or more teachers for pupil transportation and defines approved transportation operating expenses.
Education Law §3624 authorizes the Commissioner of Education to establish and define qualifications of school bus drivers and to make rules and regulations governing the operation of transportation facilities used by pupils. Such rules and regulations shall include acts or conduct which would affect the safe operation of such transportation facilities.
Education Law §3625 provides that every contract for transportation of school children shall be in writing and approved and filed by the superintendent of schools of the district.
Education Law §3637 directs the Commissioner to promulgate regulations requiring school districts to minimize, to the extent practicable, the idling of the engine of any school bus and other vehicles owned or leased by the school district while such bus or vehicle is parked or standing on school grounds, or in front of any school.
Vehicle and Traffic Law §509-g provides that each motor carrier shall require certain examinations and test for each bus driver it employs.
Vehicle and Traffic Law §1229-d defines “school bus attendant”, provides for screening of applicants for the position of school bus attendant by school districts, and requires the commissioner to promulgate rules and regulations requiring that every school bus attendant serving pupils with a disability receive school bus safety training and instruction relating to the understanding of and attention to the special needs of such pupils.
2. LEGISLATIVE OBJECTIVES:
Consistent with the above statutory authority, proposed amendments to Sections 156.1, 156.2, 156.3, 156.4, 156.5, and 156.12 of the Regulations of the Commissioner of Education updates such regulations to align to the current policies and procedures of the New York State Department of Motor Vehicles and the New York State Department of Transportation, as well as with current practice. Additionally, the proposed amendments provide flexibility for certain regulatory requirements in response to the COVID-19 crisis.
3. NEEDS AND BENEFITS:
The purpose of the proposed amendments to the Regulations of the Commissioner of Education is to update such regulations to align to the current policies and procedures of the New York State Department of Motor Vehicles and the New York State Department of Transportation. Additionally, the proposed amendments are intended to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. In addition to the technical amendments, the proposed amendments make the following changes:
• Allows transportation contracts to be filed with the Commissioner within 120 days of approval of the contract by the board to align with the current practice (regulations were outdated and required 30 days). Contracts which cannot be awarded by August 1 shall be filed with the Commissioner within 5 days after approval with a written explanation for the delay.
• Elimination of installation of stop arms from the list of demonstrable enhancements in pupil safety since this is now mandatory equipment.
• Clarifies that standing passengers shall not be permitted on a school bus unless it is during the first 10 days of school or due to a breakdown, crash or other unforeseen occurrence to be consistent with Education Law §3635-c.
• Clarifies the definition of school bus driver to mean any person who drives a school bus to or from school or school activities.
• Clarifies the definition of a school bus attendant to mean any person who is employed for the purpose of attending to the special needs of a child based on his or her IEP to safely embark and disembark from a school bus which is owned, leased or contracted for by a public school district or BOCES, and for the purpose of assisting the school bus driver.
• Adds a new definition for regular route to mean any trip that occurs on a regular schedule for the purpose of transporting students from a starting point to a destination and may include pick up and drop off of students enroute (home to school).
• Adds physician assistants to the list of licensed professions that can perform an examination of school bus drivers. Requires school bus drivers to be examined within eight weeks prior to the beginning of service (was previously four weeks).
• Requires the school bus driver physical performance test form to be submitted electronically to the pupil transportation unit. Prohibits the interval between physical performance tests to exceed 25 months (was previously 24 months). Clarifies that the physical performance test shall be conducted by a currently certified school bus driver instructor and aligns the proposed amendment with current practice relating to the test. Provides that no more than one re-examination per driver may be administered on the same day and that the administration of the test and the pass/fail determination shall be in accordance with the guidance from the Department. Removes old provisions which allowed additional time for districts to acquire a school bus driver instructor to perform the physical performance test.
• Clarifies the three types of school bus driver training: pre-service safety training, basic course safety training, and refresher safety training. Requires school bus drivers to have at least four hours (was previously two) of instruction on school bus safety practices which shall include at least one hour of training for the transport of children with disabilities prior to service. Requires school bus drivers to take 30 hours of basic course safety training and necessitates the required two-hour refresher training to contain at least one hour of instruction relating to the special needs of a pupil with a disability.
• Provides that a certified school bus driver instructor’s physical presence is not required during the pre-service training of school bus drivers, monitors, or attendants, provided that such training is conducted under the general supervision of such an approved school bus driver instructor.
• Provides that the school bus driver instructor advisory committee members are to be appointed for a three-year term (was previously annually) and requires them to be of good moral character.
• Provides for when a certified school bus driver instructor’s certification can be suspended or revoked by the Department.
• Includes what master instructors must do to maintain certification as a master instructor and provides for when a master instructor’s certification can be suspended or revoked by the Department.
• Adds physician assistants to the list of licensed professions that can perform an examination of school bus monitors and attendants and requires school bus monitors and attendants to be examined within eight weeks prior to the beginning of service (was previously two weeks).
• Requires the school bus monitor and attendant physical performance test form to be submitted electronically to the pupil transportation unit. Prohibits the interval between physical performance tests to exceed 25 months (was previously 24 months). Clarifies that the physical performance test shall be conducted by a currently certified school bus driver instructor and makes amendments to such test to conform with current practice. Removes the temporary waiver provision for the physical performance test for monitors and attendants. Provides that no more than one re-examination per driver may be administered on the same day and that the administration of the test and the pass/fail determination shall be in accordance with the guidance from the Department.
• Adds nonpublic schools to the list of employers whose employees serving pupils with a disabling condition must maintain CPR certification where such skills are required as part of the student’s IEP.
• Clarifies the three types of school bus monitor and attendant training: pre-service safety training, basic course safety training, and refresher safety training. Requires at least four hours of pre-service training (was previously three hours). Requires a minimum of two hours of refresher training at least two times a year and requires that such refresher training include at least one hour of instruction relating to the special needs of a pupil with a disability.
• Requires school bus drivers, when discharging pupils, to instruct pupils to cross the highway at a distance of at least 15 feet in front of the vehicle (was previously 10 feet) and to keep the school bus halted until they have reached the opposite side of the highway, street or private road and until such passengers are at least 15 feet from the bus and either off the highway, street or private road or on a sidewalk. Additionally, such instruction shall also be given during school bus drills.
• Adds the regulations of the Commissioner of the Department of Transportation to the list of regulations with which school bus drivers shall be familiar.
• Includes “exempt tracks” to the list of exceptions to when school bus drivers are required to make full stops.
• Clarifies that the operation of a wheelchair lift shall not be considered as leaving a bus unattended.
• Prohibits the use of electronic cigarettes by drivers, monitors and attendants while on a school bus.
• Provides that the administration of drills on school buses shall be in accordance with the Department’s Bus Safety Drill Guide and Compliance Form and provides that verbal bus mini safety drills should be conducted by a school bus driver prior to the beginning of every sports or activity trip.
• Requires school districts, which procure transportation through contracted vendors using an RFP, to set a minimum passing score threshold prior to evaluating RFPs, much as the State does in its grant applications, to ensure that winning bidders meet certain safety and responsibility standards.
• Provides that due to the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.
o the basic course of instruction in school bus safety and refresher training instruction may be postponed;
o school bus driver instructors may attend the annual professional development seminar (PDS) by teleconference or videoconference for the 2019-2020 school year;
o Master instructor training programs may be provided by teleconference or videoconference for the 2019-2020 school year
o Master instructors may attend the annual master instructor strategy meeting or PDS by teleconference or videoconference for the 2019-2020 school year; and
o School bus drills may be postponed where such drills are unable to be conducted between March 1st and April 30th.
4. COSTS:
(a) Costs to State government: Any state transportation aid reimbursement for school bus driver, monitor and/or attendant training would be a cost to the State.
(b) Costs to local government: There would be costs to school districts to cover costs associated with school bus driver, monitor and/or attendant training, however, a percentage of such cost would be reimbursable through state transportation aid.
(c) Cost to private regulated parties: Businesses who contract with school districts outside of the city of New York for school bus driver, attendant, and/or monitor services would incur costs from the additional training, however, contractors include training costs in their contract pricing with school districts, this would result in only a minor cost to contractors where their contract rates do not adjust right away to reflect the additional training cost. Individual school bus drivers, monitors, and attendants at school districts located within the city of New York would incur costs from the additional training, however, some contractors and school districts do provide reimbursement for such costs.
(d) Cost to the regulatory agency: There are no additional costs to the State Education Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any program, service, duty, or responsibility on local governments.
6. PAPERWORK:
There are no new forms, reporting requirements, or other recordkeeping associated with the proposed amendment.
7. DUPLICATION:
The proposed amendment does not duplicate any other existing State or federal requirements.
8. ALTERNATIVES:
The proposed amendment aligns the Regulations of the Commissioner of Education to the current policies and procedures of the New York State Department of Motor Vehicles and the New York State Department of Transportation, as well as with current practice. Additionally, the proposed amendment provides flexibility for certain regulatory requirements relating to pupil transportation in response to the COVID-19 crisis. There are no significant alternatives to the proposed amendment and none were considered.
9. FEDERAL STANDARDS:
There are no applicable Federal standards.
10. COMPLIANCE SCHEDULE:
If adopted at the April 2020 Regents meeting, the emergency rule will become effective April 7, 2020. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption at its July 2020 meeting. If adopted at the July 2020 meeting, the proposed amendment will become effective on July 29, 2020. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.