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RULES AND REGULATIONS

Title 67—TRANSPORTATION

DEPARTMENT OF TRANSPORTATION

[ 67 PA. CODE CH. 71 ]

School Bus Drivers

[40 Pa.B. 5809]
[Saturday, October 9, 2010]

 The Department of Transportation (Department), under 75 Pa.C.S. § 1509 (relating to qualifications for school bus driver endorsement), amends Chapter 71 (relating to school bus drivers) to read as set forth in Annex A.

Purpose of Chapter

 The purpose of Chapter 71 is to define more fully the requirements of 75 Pa.C.S. § 1509 by listing minimum medical requirements for school bus drivers, formulated by the Medical Advisory Board (Board). In addition to their use by the Department in connection with its responsibilities under 75 Pa.C.S. (relating to Vehicle Code), these licensing standards for school bus drivers are to be used by medical providers when conducting physical examinations of applicants for a school bus learner's permit, as well as annual school bus driver physical examinations.

Summary of Comments and Changes in Final-Form Rulemaking

 Notice of proposed rulemaking was published at 38 Pa.B. 3503 (June 28, 2008). The proposed rulemaking was also submitted to the Independent Regulatory Review Commission (IRRC) and the House and Senate Transportation Committees.

 IRRC submitted several comments on the proposed rulemaking regarding clarity and consistency of the language. The first comment noted that the Regulatory Analysis Form indicated that the proposed rulemaking should not have additional costs to school bus drivers or healthcare providers. However, IRRC noted that Lynn Foltz, a commentator, commented that the amendments would lead to additional costs, including a fee for an appointment with physician to review the results of the required tests, as well as for the Hemoglobin A1C (HbA1C) test itself. The Department notes that these amendments do not require tests that are over and above what is required for normal diabetic care. Board members have confirmed that insurance companies encourage physicians to do quarterly checks of an individual's HbA1C. In fact, physicians are audited by insurance companies to ensure compliance.

 IRRC also sought clarity in § 71.3(b)(4)(i) (relating to physical examination) regarding the removal of the term ''oral hypoglycemic medication'' and its replacement with the term ''diabetic medications.'' IRRC recommended that a listing of specific types of examples of diabetic medications be included in the final-form rulemaking. Diabetic medications can either be in the form of an insulin injection or an oral medication. The Department believes that a listing of specific medications could lead to confusion and misinterpretation of the regulation to only allow those medications listed and leaving no room for other medications developed for the treatment of diabetes in the future.

 IRRC also questioned whether drivers shall meet the requirements in § 71.3(b)(4)(i)(A)—(D) before being granted a waiver to drive a school bus. If so, IRRC recommended that clarifying language be added. The clarifying language has been added.

 Regarding § 71.3(b)(4)(i)(A), IRRC asked how the Department determined that the 12 months required for being free from various types of hypoglycemia or hypoglycemic reactions to grant an individual a waiver to drive is an appropriate amount of time, and if this time frame protects the health, safety and welfare of children being driven in school buses by drivers with these types of conditions. The Department consulted closely with the physicians on the Board who advised that an individual can readily demonstrate his ability to manage diabetes within a 12-month period. Requiring an individual to demonstrate control for 2 years rather than 1 year doesn't provide an additional degree of safety.

 Peter S. Lund, MD, FACS, President of the Pennsylvania Medical Society commented that requiring school bus drivers in § 71.3(b)(4)(i)(B) to have an average HbA1C of 8% is too restrictive. Doctor Lund relayed the opinion of Dr. Robert Gabbay, MD, PhD, Executive Director of the Penn State Institute for Diabetes and Obesity that impairment of cognitive ability is not demonstrated until HbA1C of 9%. A number of factors were used to determine what HbA1C demonstrates the individual is managing their diabetes. Physicians typically use 6.5% as a target; however, the Department also considered that both health insurance companies, as well as the American Diabetes Association (ADA) give a target HbA1C of 7%. Research shows that keeping blood sugar close to the target range lowers the risk for complications. An HbA1C of 8% translates to an average blood sugar reading of 205 mg/dl and demonstrates reasonable control. The Department concluded that a cut off at a point below, rather than at, the 9% level where cognitive impairment has been demonstrated is appropriate to safeguard the well being of students being transported by school bus in this Commonwealth.

 Also with regard to the use of the HbA1C test, the ADA objected to the use of the test result number as a standard to measure an individual's ability to operate a vehicle safely. After consultation with the ADA, the final-form rulemaking provides that the HbA1C test will not be used as a measurement to determine a driver's level of safety for driving a school bus. Rather, the HbA1C results will instead be used as a tool to identify school bus drivers that require more frequent monitoring by their health care provider to ensure that their blood glucose levels are not suggestive of hypoglycemic or hyperglycemic driving impairment.

 The ADA also commented that that the inclusion of a standard of ''hyperglycemic unawareness'' was inappropriate. It was pointed out that a driver who tends not to be sensitive to the triggers of onset of a hyperglycemic episode can nevertheless drive safely with more frequent testing before driving or at regular interval during long trips. The term has been deleted from the final-form rulemaking.

 IRRC also asked for information regarding what the new forms will look like. Unfortunately, the Department does not have draft copies of the forms available. Once this rulemaking has been vetted and close to final-form, the Diabetic Waiver and Report of Eye Examination forms will be updated with the applicable questions. The forms will not be available on the Department's web site. They will only be mailed to school bus drivers that have diabetes mellitus and require the waiver.

 IRRC also asked for clarification in § 71.3(b)(4)(v) regarding submissions to the Department and what professions are included under the term ''other health care providers.'' The Department included a definition of ''health care provider'' in the final-form rulemaking. Further clarification has also been provided by use of the term ''school transportation medical practitioner'' instead of ''school transportation physician.'' The former, ''school transportation medical practitioner,'' is defined in the existing regulation to include the same array of medical professionals as has been included in the definition of ''health care provider.''

 Finally, regarding § 71.3(b)(4)(i)(D), IRRC asked how the self-monitoring provisions of this subsection protects the driver, students and other passengers. The comment goes not to the specific amendments made in this subsection by this rulemaking, but to the effectiveness of the existing subsection generally. The safety of the students and other passengers is protected by the requirement in the subsection that, if self testing reveals an unacceptable blood glucose level, the individual ''may not drive.'' If a driver tests outside the range prior to departure, the driver may not embark; if a driver stopped to test at a required interval during a drive tests outside the range, the driver may not resume driving until appropriate measures are taken and the individual retests within the acceptable range.

Persons and Entities Affected

 This final-form rulemaking affects persons qualified or wishing to be qualified to drive a school bus, employers of school bus drivers and health care providers.

Fiscal Impact

 Implementation of this final-form rulemaking will not require the expenditure of additional funds by the Commonwealth or local municipalities. This final-form rulemaking will not impose additional costs on the medical community. It should not impose additional costs on school bus drivers because the final-form rulemaking does not require tests that are over and above what is required for normal diabetic care.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 28, 2008, the Department submitted a copy of the notice of proposed rulemaking, published at 38 Pa.B 3503, to IRRC and the Chairpersons of the House and Senate Transportation Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on August 18, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 19, 2010, and approved the final-form rulemaking.

Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

Sunset Provisions

 The Department is not establishing a sunset date for these regulations, since these regulations are needed to administer provisions required under 75 Pa.C.S. The Department, however, will continue to closely monitor these regulations for their effectiveness.

Contact Person

 The contact person for technical questions about this final-form rulemaking is R. Scott Shenk, Manager, Driver Safety Division, Bureau of Driver Licensing, 1101 South Front Street, 4th Floor, Harrisburg, PA 17104, (717) 772-2119.

Order

 The Department orders that:

 (a) The regulations of the Department, 67 Pa. Code Chapter 71, are amended by amending §§ 71.2 and 71.3 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Secretary of the Department shall submit this order and Annex A to the office of General Counsel and the Office of Attorney General for approval as to legality and form, as required by law.

 (c) The Secretary shall certify this order and Annex A and deposit the same with the Legislative Reference Bureau, as required by law.

 (d) This order shall take effect upon publication in the Pennsylvania Bulletin.

ALLEN D. BIEHLER, P. E., 
Secretary

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 5106 (September 4, 2010).)

Fiscal Note: Fiscal Note 18-411 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 67. TRANSPORTATION

PART I. DEPARTMENT OF TRANSPORTATION

Subpart A. VEHICLE CODE PROVISIONS

ARTICLE IV. LICENSING

CHAPTER 71. SCHOOL BUS DRIVERS

§ 71.2. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

CRNP—Certified registered nurse practitioner—A registered nurse licensed in this Commonwealth who is certified by the State Board of Nursing in a particular clinical specialty area and who, while functioning in the expanded role as a professional nurse, performs acts of medical diagnosis or prescription of medical therapeutic or corrective measures in collaboration with and under the direction of a physician licensed to practice medicine in this Commonwealth.

Chiropractor—A practitioner of chiropractic as defined in 75 Pa.C.S. § 1508.1(b) (relating to physical examinations).

Department—The Department of Transportation of the Commonwealth.

Driver's examination—An examination to establish the ability of a person to drive, maneuver and control a school bus with safety and knowledge of the laws and regulations relating to the operation of school buses.

HbA1C test—A Hemoglobin A1C test monitors the long-term control of diabetes mellitus.

Health care provider—A licensed physician, a CRNP, a physician assistant or a licensed psychologist, as described in 75 Pa.C.S. § 1519 (relating to determination of incompetency).

Hyperglycemia—When the level of glucose (sugar) in the blood is too high based on current guidelines established by the American Diabetes Association.

Hypoglycemic reactions—Different degrees of hypogly- cemia which are classified as follows:

 Mild—Hypoglycemia that signals a blood glucose drop, which the individual can self-correct with oral carbohydrates.
 Severe—Hypoglycemia that requires outside intervention or assistance of others or that produces confusion, loss of attention or a loss of consciousness.

Physical examination—An examination, including an eye examination, given to determine the physical and mental fitness of a person to drive a school bus safely.

Physician—A licensed physician as defined in § 83.2 (relating to definitions).

Physician assistant—A person certified by the State Board of Medicine to assist a physician or group of physicians in the provision of medical care and services and under the supervision and direction of the physician or group of physicians.

Pupil Transportation Section—The Pupil Transportation Section of the Bureau of Driver Licensing of the Department.

S endorsement—An endorsement which is added to a commercial driver's license and which authorizes the driver to operate a school bus.

School bus driver—A person who drives a school bus as defined in 75 Pa.C.S. § 102 (relating to definitions) or Chapter 171 (relating to school buses and school vehicles) except an owner or employee of an official inspection station driving the vehicle for the purpose of inspection.

School transportation medical practitioner—A licensed physician, physician assistant, certified registered nurse practitioner or chiropractor appointed or approved by a school board, or by the authorities responsible for operation of a private or parochial school. The same person may be appointed or approved as both school transportation medical practitioner and school medical practitioner.

Symptomatic hyperglycemia—High glucose levels in the blood that have caused a loss of consciousness or an altered state of perception, including, but not limited to, decreased reaction time, impaired vision or hearing, or both, or confusion.

Type I Diabetes mellitus—A chronic disease caused by the pancreas producing too little insulin to regulate blood sugar levels.

Type II Diabetes mellitus—A chronic disease marked by high levels of sugar in the blood caused by the body failing to respond correctly to natural insulin.

§ 71.3. Physical examination.

*  *  *  *  *

 (b) Requirements of physical examination. A person is physically qualified to drive a school bus if the person:

 (1) Meets the following visual requirements:

 (i) Has distant visual acuity of at least 20/40 in the better eye without corrective lenses or visual acuity corrected to 20/40 or better.

 (ii) Has at least 20/50 in the poorer eye without corrective lenses or visual acuity corrected to 20/50 or better.

 (iii) Has distant binocular acuity of at least 20/40 in both eyes with or without corrective lenses.

 (iv) Has a combined field of vision of at least 160° in the horizontal meridian, excepting the normal blind spots.

 (v) Has the ability to determine the colors used in traffic signals and devices showing standard red, green, or amber.

 (2) Has no loss of a foot, a leg, a hand, or an arm; or has been granted a waiver by the Department after competency has been demonstrated through a driving examination administered in accordance with § 71.4(b)(2) (ii) and (iii) (relating to driver's examination).

 (3) Has no impairment of:

 (i) A hand or finger likely to impair prehension or power grasping, or has been granted a waiver by the Department after competency has been demonstrated through a driving examination administered in accordance with § 71.4(b)(2)(ii) and (iii).

 (ii) One of the following:

 (A) An arm, foot, or leg likely to impair the ability to perform normal tasks associated with driving a school bus.

 (B) Another significant limb defect or limitation likely to impair the ability to perform normal tasks associated with driving a school bus.

 (C) Has been granted a waiver by the Department after competency has been demonstrated through a driving examination.

 (4) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring use of insulin or other hypoglycemic medication.

 (i) A waiver may be granted to an individual requiring the use of diabetic medications provided the individual meets all of the following:

 (A) The individual's health care provider verifies in writing that there has been no incident of a severe hypoglycemic reaction or symptomatic hyperglycemia and the individual has been free from insulin reaction resulting in loss of consciousness, attention or awareness or the requirement of assistance from another person, for the preceding 12 months.

 (B) The driver submits to a diabetic examination every 6 months, and submits the results of the examination and the results of an HbA1C test on a form provided by the Department. The healthcare provider reviewing the diabetic examination shall be familiar with the individual's past diabetic history for 24 months or have access to that history and certify that the individual is under good diabetic control.

 (I) An individual who has had two consecutive HbA1C test results of greater than 8% as required in this clause shall undergo additional diabetic examinations every 3 months. The health care provider shall review the self monitoring blood glucose logs and report the highest and lowest blood glucose levels for that 3-month period and certify that the observed blood glucose levels are not suggestive of hypoglycemic or hyperglycemic driving impairment on a form provided by the Department.

 (II) Once the results of two consecutive HbA1C tests required in this clause are 8% or less, the individual may discontinue the additional examinations and reporting required in subclause (I).

 (C) The driver submits to an annual dilated eye examination and submits the results of the examination on a form provided by the Department.

 (D) Individuals, upon hire to drive a school bus, shall manage their diabetes by complying with the following requirements:

 (I) Self-monitor blood glucose 1 hour before driving, and at least every 4 hours while driving or while otherwise on duty, by using a portable blood glucose monitoring device with a computerized memory. If blood glucose is below 80 mg/dL or above 350 mg/dL the individual may not drive until appropriate measures are taken and the individual retests within this acceptable range.

 (II) Submit the computerized glucometer results of blood glucose self-monitoring for review by the treating health care provider or a school transportation medical practitioner. The results shall also be submitted to the health care provider conducting the diabetic examination required by clause (B).

 (III) Maintaining a manual blood glucose monitoring log and submitting it, together with the glucose monitoring device's computerized log, every 6 months to the health care provider conducting the 6-month diabetic examination.

 (IV) Carrying a source of rapidly absorbable glucose at all times while driving a school bus.

 (ii) Notwithstanding the provisions in subparagraph (i), a waiver may be granted to an individual who has recently suffered from a severe hypoglycemic reaction or symptomatic hyperglycemia as long as the individual has been free from severe hypoglycemic reactions or symptomatic hyperglycemia for the preceding 12 months and the subsequent severe hypoglycemic reaction or symptomatic hyperglycemia occurred while the individual was under the care of a treating health care provider, during or concurrent with a nonrecurring transient illness, toxic ingestion or metabolic imbalance. This waiver will only be granted if the treating physician submits written certification indicating it is a temporary condition or isolated incident not likely to recur.

 (iii) A reviewing health care provider finding that the individual previously qualified for a waiver is not complying with the requirements in subsection (b)(4)(i), or is otherwise no longer qualified for the waiver shall promptly report these findings to the Department and the waiver will be rescinded.

 (iv) If the individual requiring the use of oral hypoglycemic medication or insulin does not qualify for a waiver, that individual may request an independent review of the individual's medical records. The review will be conducted by a member of the Medical Advisory Board or by another physician designated by the Department.

 (v) Submissions to the Department by physicians or other health care providers, including physician verifications and the results of diabetic examinations, shall be made on forms provided by the Department.

*  *  *  *  *

[Pa.B. Doc. No. 10-1930. Filed for public inspection October 8, 2010, 9:00 a.m.]



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