Meeting of the Board of Regents | June 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	James A. Kadamus
COMMITTEE:	Elementary, Middle, Secondary and Continuing Education
TITLE OF ITEM:	Proposed Amendment to Regulations of the Commissioner of Education Relating to School Bus Drivers, Monitors and Attendants
DATE OF SUBMISSION:	May 19, 2003
PROPOSED HANDLING:	Approval (Consent Agenda)
RATIONALE FOR ITEM:	Compliance with Laws of 2002
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY:

Attached is a proposed amendment to section 156.3 of the Regulations of the Commissioner of Education submitted for approval. Supporting materials are available upon request from the Secretary to the Board of Regents. The proposed amendment was discussed at your April 2003 meeting.

The purpose of the proposed amendment to section 156.3 is to comply with Chapters 472, 529 and 600 of the Laws of 2002 with respect to the qualifications of school bus drivers, monitors and attendants, and to establish school bus safety training and instruction requirements for attendants serving pupils with a disabling condition. Specifically, the proposed amendment requires all school bus monitors and attendants to receive pre-service and refresher training and newly hired attendants to complete a course of specialized training within the first year of employment and obtain certification in cardiopulmonary resuscitation. The proposed amendment also provides mandate relief and cost savings to school districts by permitting nurse practitioners to administer the medical exam required for school bus drivers and by permitting the physical performance test to be administered to groups of school bus drivers once every 24 months rather than 30 days before or after an individual�s road test. School districts may also conduct the first bus drill within the first seven days of school rather than the first week of school and are given more time in which to conduct the two annual refresher sessions for school bus drivers. A Notice of Proposed Rule Making was published in the State Register on March 26, 2003. An Assessment of Public Comment is attached.

VOTED: That section 156.3 of the Regulations of the Commissioner of Education be amended, as submitted, effective July 10, 2003.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207 and 3624, Vehicle and Traffic Law sections 509-g and 1229-d and Chapters 472, 529 and 600 of the Laws of 2002

Section 156.3 of the Regulations of the Commissioner of Education is amended, effective July 10, 2003, as follows:

�156.3 Safety regulations for school bus drivers, monitors, attendants and pupils.

[Education Law, �3624]

(a) Definitions. For purposes of this section:

[Approval for employment of school bus drivers. Approval for employment of a school bus driver shall be in writing on a form prescribed by the Commissioner of Education.] (1) A school bus driver shall mean any person who drives a school bus which is owned, leased or contracted for by a public school district or a board of cooperative educational services for the purpose of transporting pupils. However, for the purposes of this section, the following shall not be considered to be school bus drivers:

[(1)](i) a driver of a passenger or suburban type vehicle if such driver is a school district employee who is not ordinarily required to transport pupils and is operating such vehicle for the purpose of transporting one or more pupils to a hospital or other medical facility, a physician's office, or home for medical treatment or because of illness;

[(2)](ii) a driver of a suburban intercity coach or transit type bus, transporting pupils on trips other than between home and school, such as field trips, athletic trips, and other special transportation services; and

[(3)](iii) a parent who transports exclusively his or her own children.

(2) A school bus shall mean every vehicle owned or contracted for by a public school or board of cooperative educational services and operated for the transportation of pupils, children of pupils, teachers and other persons acting in a supervisory capacity, to or from school or school activities.

(3) A school bus monitor shall mean any person employed for the purpose of assisting children to safely embark and disembark from a school bus which is owned, leased or contracted for by a public school district or board of cooperative educational services, and for the purpose of assisting the school bus driver with maintaining proper student behavior on such school bus.

(4) A school bus attendant shall mean any person who is employed for the purpose of serving pupils with a disabling condition on a school bus which is owned, leased or contracted for by a public school district or board of cooperative educational services.

(b) School bus driver and instructor qualifications.

(1) Approval for employment. Approval for employment of a school bus driver shall be in writing on a form prescribed by the commissioner of education.

(2) Age. All drivers of school transportation conveyances shall be at least 21 years of age.

[(c)] (3) Physical fitness. [(1)] (i) . . .

[(2)] (ii) Each regular or substitute driver of a school bus owned, leased or contracted for by a school district or a board of cooperative educational services shall be examined by a physician or nurse practitioner to the extent authorized by law and consistent with the written practice agreement pursuant to Education Law section 6902(3), in accordance with the provisions of this subdivision. The physical examination shall be reported immediately on forms prescribed by the commissioner to the chief school officer of the district. The physical examination shall include, as a minimum, those requirements specified on the prescribed physical examination report. The examining physician or nurse practitioner shall require the school bus driver to undergo any diagnostic tests that are necessary to determine whether the driver has the physical and mental ability to operate safely a school transportation conveyance. Each school bus driver shall receive an annual physical examination, and each driver who is to be initially employed shall be examined within four weeks prior to the beginning of service. In no case shall the interval between physical examinations exceed a [12-month](13-month) period.

[(3)] (iii) Each regular or substitute driver of a school bus owned, leased or contracted for by a school district shall pass a physical performance test approved by the commissioner, upon recommendation of an advisory group of certified school bus driver instructors, at least once every two years. [The testing date shall coincide with the driver's requirement to take the biennial behind-the-wheel road test required by section 509-g (Article 19-A) of the Vehicle and Traffic Law.] Additionally, the test shall be administered to any driver following an absence from service of 60 or more consecutive days from his or her scheduled work duties. In no case shall the interval between physical performance tests exceed 24 months.

[(i)] (a)Except as provided in clause (d) of this subparagraph, the [A] physical performance test shall be conducted by a certified school bus driver instructor and shall assess the driver/applicant�s ability to perform the following functions of a school bus driver: repeatedly open and close a manually operated bus entrance door, climb and descend bus steps, operate hand controls simultaneously and quickly, have quick reaction time from throttle to brake, carry or drag individuals in a bus emergency evacuation, repeatedly depress clutch and/or brake pedals, and exit quickly oneself and students from an emergency door.

[(ii)] (b) . . .

[(iii)] (c) . . .

(d) School districts, boards of cooperative educational services or transportation contractors may apply to the commissioner for a temporary waiver to permit Department of Motor Vehicles (DMV) Certified 19A Examiners, employed by that carrier, to administer the physical performance test to school bus drivers employed by that carrier. Such waiver may be granted where it is established that there are insufficient certified school bus driver instructors on staff to administer the test in a timely manner. Upon the issuance of such waiver, a certified school bus driver instructor's physical presence shall not be required during the administration of the test, provided that such testing is conducted under the general supervision of a certified school bus driver instructor who is employed by such board of education, board of cooperative educational services or transportation contractor. Such certified school bus driver instructor shall instruct the DMV Certified 19A Examiner in the proper administration of the physical performance test and shall review and approve the test results of all physical performance tests administered by the examiner.

[(d)] (4) Required licenses and certification. [(1)] Each driver of a motor vehicle conveying school children shall have the appropriate operator's or commercial driver's license to operate such motor vehicle.

[(2)] (5) Pre-Service, safety training, and refresher training for school bus drivers.

(i) Pre-Service. Each school bus driver initially employed by a board of education or transportation contractor subsequent to July 1, 1973, shall have received at least two hours of instruction on school bus safety practices. Each driver of a vehicle transporting pupils with [handicapping conditions] disabilities exclusively who is initially employed subsequent to January 1, 1976, shall have received an additional hour of instruction concerning the special needs of a pupil with a [handicapping condition] disability.

(ii) During the first year of employment, each driver shall complete a [course of instruction] Basic Course of Instruction in school bus safety practices approved by the commissioner, which shall include two hours of instruction concerning the special needs of a pupil with a [handicapping condition] disability.

(iii) All school bus drivers shall receive a minimum of two hours of refresher instruction in school bus safety at least two times a year, at sessions conducted [prior to] between July 1st and the first day of school and [prior to February first]between December 1st and March 1st of each school year. Refresher courses for drivers of vehicles transporting pupils with [handicapping conditions] disabilities exclusively shall also include instruction relating to the special needs of a pupil with a [handicapping condition] disability.

(iv) Occasional drivers for other than regular routes shall not be required to receive the training specified in this paragraph. For the purposes of this paragraph, occasional driver shall mean a certified teacher employed by a school district or a board of cooperative educational services, who is not primarily employed on either a full-time or part-time basis as a school bus driver or substitute school bus driver.

[(3)] (v) Except as otherwise provided in [subparagraphs (i) and (ii)] clauses (a) and (b) of this [paragraph] subparagraph, all training required in this subdivision shall be provided by, or under the direct supervision of a school bus driver instructor [approved] certified by the commissioner. To qualify for certification as [an approved] a school bus driver instructor (SBDI), individuals shall successfully complete a school bus driver instructor training and evaluation [program] course taught by a certified master instructor. The course shall be approved by the commissioner upon the recommendation of the commissioner's School Bus Driver Instructor Advisory Committee, an advisory group consisting of at least seven certified school bus driver instructors appointed annually for such purpose by the commissioner. Each person who applies for admission to this course shall be currently employed by a public school district, board of cooperative educational services, or private contractor who is currently providing pupil transportation services for a public school district or board of cooperative educational services. [Such program shall be approved annually by the commissioner upon the recommendation of an advisory group consisting of at least seven approved school bus driver instructors appointed annually for such purpose by the commissioner. Programs] The SBDI course shall include but shall not be limited to the following content areas: planning and making presentations including lesson plans and objectives, school bus accident statistics and interpretation, effective communications, and evaluation. [Each person who applies for admission to this program shall be currently employed by a public school district, BOCES, or private contractor who is currently providing pupil transportation services for a public school district or BOCES.] Each such person shall possess a high school diploma or equivalent diploma and shall have completed [a course in instruction] the Basic Course of Instruction in school bus safety practices [approved by the commissioner]. In addition, each such person shall have completed the Advanced New York State School Bus Driver Training [Program] Course or a Department of Motor Vehicles approved Point/Insurance Reduction Program. To maintain [approval] certification, school bus driver instructors shall be required to attend the annual [refresher training seminars prescribed by the department] Professional Development Seminar (PDS) approved by the commissioner upon the recommendation of the SBDI Advisory Committee, and taught by a certified master instructor. The PDS shall provide refresher training for all SBDIs in presentation skills, lesson planning, school bus safety techniques, requirements and statistics. The PDS shall provide SBDIs with training materials for the upcoming school year safety training campaign, including information which shall be conveyed to all school bus drivers in the next two driver refreshers.

[(i)] (a) [An approved] A certified school bus driver instructor's physical presence shall not be required during training conducted upon initial employment of a school bus driver by a board of education, board of cooperative educational services or transportation contractor, provided that such training is conducted under the general supervision of such an approved instructor.

[(ii)] (b)�

(vi) Master instructors shall be certified by the commissioner to conduct training programs for individuals to become certified school bus driver instructors, and work in the development of safety training curricula including the development and delivery of the annual Professional Development Seminar. To qualify as a master instructor an individual must have been a certified school bus driver instructor for at least five years, have demonstrated the ability to teach others the concepts of the school bus safety training program, and meet such other requirements as may be prescribed by the commissioner including, but not limited to: possession of a New York State teaching certificate or employment experience in a pupil transportation position in NYS, and satisfactory completion of a mentor/training program or project.

[(e)] (6) Character requirement . . .

(c) School bus monitor and attendant qualifications.

(1) Approval for employment. Approval for employment as a school bus monitor or attendant shall be in writing on a form prescribed by the commissioner of education.

(2) Age. All school bus monitors and attendants shall be at least 19 years of age.

(3) Physical fitness. (i) Each school bus monitor and attendant shall have the physical and mental ability to satisfactorily perform his or her duties.

(ii) Each monitor or attendant may be examined on order of the chief school administrator by a duly licensed physician within two weeks prior to the beginning of such monitor's or attendant's service in each school year. The report of the physician in writing, shall be considered by the chief school administrator in determining the fitness of the monitor or attendant to carry out his or her functions. The examining physician shall require the monitor or attendant to undergo any diagnostic tests that are necessary to determine the physical and mental ability of the monitor or attendant to perform his or her duties.

(iii) Each school bus monitor or attendant of a school bus owned, leased or contracted for by a school district or board of cooperative educational services shall pass a physical performance test approved by the commissioner. Individuals employed by a school district, board of cooperative educational services or contractor as a monitor or attendant on July 1, 2003 shall have until July 1, 2004 to take and pass a physical performance test. Individuals hired as a monitor or attendant after July 1, 2003, must take and pass a physical performance test before they may assume their duties.

(a) Except as provided in clause (b) of this subparagraph, the physical performance test shall be administered by a certified school bus driver instructor and shall assess the school bus monitor or attendant�s ability to perform his or her duties including, but not limited to, the following functions: climb and descend the bus steps, carry or drag students in a bus emergency evacuation, and exit quickly oneself from an emergency door.

(b) School districts, boards of cooperative educational services, or transportation contractors may apply to the commissioner for a temporary waiver to permit Department of Motor Vehicles (DMV) Certified 19A Examiners, employed by that carrier, to administer the physical performance test to monitors and attendants employed by that carrier. Such waiver may be granted where it is established that there are insufficient certified school bus driver instructors on staff to administer the test in a timely manner. Upon the issuance of such waiver, a certified school bus driver instructor's physical presence shall not be required during the administration of the test, provided that such testing is conducted under the general supervision of a certified school bus driver instructor who is employed by such board of education, board of cooperative educational services or transportation contractor. Such SBDI shall instruct the DMV Certified 19A Examiner in the proper administration of the physical performance test and shall review and approve the test results of all physical performance tests administered by the examiner.

(c) A school bus monitor or attendant who fails any portion of the physical performance test shall be deemed unqualified to perform the duties of that position. The monitor or attendant may request a re-examination. The cost of such re-examination shall be borne by the employer if the monitor/attendant passes the re-examination, or by the monitor/attendant if he or she fails the re-examination.

(4) Required certifications. Each attendant employed by a school district, board of cooperative educational services or contractor on July 1, 2003 shall have until July 1, 2004 to obtain training and certification in cardiopulmonary resuscitation. Individuals hired after July 1, 2003 must obtain training and certification prior to assuming their duties as a school bus attendant. Thereafter, current certification in cardiopulmonary resuscitation must be maintained. School districts, boards of cooperative educational services or contractors may require monitors or attendants to maintain certification in first aid.

(5) Pre-Service, safety training, and refresher training. Each school bus monitor or attendant employed by a board of education, board of cooperative educational services or pupil transportation contractor on July 1, 2003 shall comply with the training requirements of this paragraph no later than July 1, 2004. Individuals hired after July 1, 2003 shall comply with such requirements before assuming their duties on a school bus.

(i) All school bus monitors or attendants shall receive 3 hours of pre-service instruction as prescribed by the commissioner upon recommendation of the commissioner�s School Bus Driver Instructor Advisory Committee, which shall include, but is not limited to, instruction relating to special needs transportation, school bus safety practices, child management techniques, and the proper techniques for assisting children and special needs children to safely embark and disembark a school bus.

(ii) A certified school bus driver instructor's physical presence shall not be required during training conducted upon initial employment of a school bus monitor or attendant by a board of education or transportation contractor, provided that such training is conducted under the general supervision of such certified instructor.

(iii) Specialized training. Each school bus monitor or attendant hired after July 1, 2003 shall complete within their first year of employment a Basic Course of Instruction for Monitors and Attendants. Multiple curricula may be approved for use by the commissioner. Such courses shall provide not less than 10 hours of instruction on a range of topics prescribed by the commissioner upon recommendation of the commissioner�s School Bus Driver Instructor Advisory Committee.

(iv) All school bus monitors and attendants shall receive 2 two-hour refresher training sessions annually at sessions conducted between July 1st and the first day of school and between December 1st and March 1st of each school year.

[(f)](d) Rules affecting pupils. (1) Drivers, monitors and attendants shall not allow pupils to enter or leave the bus while it is in motion.

(2) Drivers, monitors and attendants are held responsible for reasonable behavior [or] of pupils in transit.

(3) Drivers, monitors and attendants shall not allow pupils to thrust their heads or arms out of open windows.

(4) The driver of a school bus, when discharging pupils who must cross the highway, shall instruct such pupils cross the highway at a distance of 10 feet in front of the [bus] vehicle so as to be in the vision of the driver. The driver shall also keep such school bus halted with red signal lights flashing until such pupils have reached the opposite side of the highway.

(5) [Gas] Fuel tanks shall not be filled while pupils are in the bus.

[(g)] (e) Driving rules. (1) . . .

(2) . . .

(3) . . .

(4) Drivers, monitors and attendants shall not leave the school bus when children are inside except in case of emergency, and in such case before leaving the bus the driver shall stop the motor, remove the ignition key, and set the [auxiliary] parking brake [and leave the transmission in gear.]. Monitors or attendants may leave the school bus for the purposes of assisting children to embark or disembark the vehicle and to safely cross the street. Drivers, monitors and attendants shall check the vehicle to insure that no child is left behind on board unattended at the conclusion of the school bus route.

(5) Drivers, monitors and attendants shall not smoke at anytime while within a school bus. Drivers, monitors and attendants shall not [smoke,] eat or drink any liquid, or perform any act or conduct themselves in any manner which may impair the safe operation of a school bus while such vehicle is transporting pupils.

(6) Drivers shall not exceed a maximum speed limit of 55 miles per hour on any road within or outside of New York State while their school bus is being used for the transportation of pupils.

[(h)] (f) Drills on school buses. (1) . . .

(2) A minimum of three such drills shall be held on each school bus during the school year, the first to be conducted during the first [week of the fall term] seven days of school, the second between November 1st and December 31st and the third between March 1st and April 30th.

(3) . . .

(4) . . .

[(i)](g) Instruction on use of seat belts. In each school district in which pupils are transported on school buses equipped with seat safety belts, such district shall insure that all pupils who are transported on any school bus owned, leased or contracted for by the district or board of cooperative educational services shall receive instruction on the use of seat safety belts. Such instruction shall be provided at least three times each year to both public and nonpublic school pupils who are so transported and shall include, but not be limited to:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

PROPOSED AMENDMENT OF SECTION 156.3 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207 AND 3624 OF EDUCATION LAW AND SECTIONS 509-G AND 1229-D OF VEHICLE AND TRAFFIC LAW AS AMENDED BY CHAPTERS 472, 529 AND 600 OF THE LAWS OF 2002 RELATING TO SAFETY REGULATIONS FOR SCHOOL BUS DRIVERS, MONITORS, ATTENDANTS AND PUPILS

ASSESSMENT OF ISSUES RAISED BY PUBLIC COMMENT

Since publication of the Notice of Proposed Rule Making in the State Register on March 26, 2003 the following comments have been received:

1. COMMENT:

The statute should be amended to authorize nurse practitioners to administer the medical exam to monitors and attendants, and to require an annual medical examination.

DEPARTMENT RESPONSE:

The Department will consider a statutory amendment in the future. The Department chose not to require medical examinations for monitors and attendants to give flexibility to districts to make that decision based upon local needs, and to lessen compliance costs.

2. COMMENT:

The statute should be amended to require drug and alcohol testing for monitors and attendants as is required for bus drivers.

DEPARTMENT RESPONSE:

The requirement that bus drivers undergo random drug and alcohol testing is a federal requirement, and not mandated by the State. A statutory change at the national level would best originate with the State Department of Motor Vehicles.

3. COMMENT:

Requiring attendants to complete and maintain certification in CPR as a pre-requisite for employment is a significant time and cost burden to both districts and attendants. The Department should be flexible in administering this requirement and seek a statutory amendment to require that an attendant be CPR certified only if CPR skills are required in the IEP of a child they are transporting.

DEPARTMENT RESPONSE:

Chapter 472 of the Laws of 2002 requires the Commissioner to promulgate rules and regulations, which include instruction on special needs transportation for attendants. Such training shall consist of instruction in CPR and it shall be required by those hired after July 1, 2003, before assuming their duties. Attendants employed on or before July 1, 2003 have until July 1, 2004 to obtain the certification. In addition, it would be more difficult for districts to provide transportation to pupils and construct work schedules if only some of their attendant staff had CPR certification.

4. COMMENT:

Monitors and attendants are often called by other job titles such as: driver assistant, aide, and matron. Since the responsibilities of these individuals often overlap, the regulation should require that all monitors and attendants obtain and maintain CPR certification.

DEPARTMENT RESPONSE:

Since it may be costly for districts to obtain CPR certification for their attendant staff, the decision of whether or not to require all monitors to obtain certification is best made at the local level.

5. COMMENT:

The basic entrance training requirements for veteran monitors and attendants should be waived if the incumbent had the same or similar training during the past year, or had performed satisfactorily in the job title for the past one or two years.

DEPARTMENT RESPONSE:

The Department exercised the flexibility provided by Chapter 529 of the Laws of 2002 by deciding not to require veteran employees serving as monitors and attendants to complete a Basic Course of Instruction. However, Chapter 472 of the Laws of 2002 requires attendants hired after July 1, 2003 to receive school bus safety training, instruction relating to special needs, first aid and CPR, prior to assuming their duties.

6. COMMENT:

Section 156.3 (c)(5)(i) should be revised to change "children and special needs children" to "children and children with disabilities."

DEPARTMENT RESPONSE:

The suggestion will be kept under advisement, for possible action in the future, should substantive amendments to the regulation be required.

7. COMMENT:

Section 156.3(a)(2) should be amended for consistency to include the word "leased" between "owned" and "contracted."

DEPARTMENT RESPONSE:

The definition of "school bus" in section 156.3(a)(2) is similar to the definition of school bus contained in Vehicle & Traffic Law section 142, which does not use the word "leased."

8. COMMENT:

Only one person, the school bus driver, should be responsible for operation of the bus, the behavior of pupils on board, and checking to ensure pupils are not left on the bus. If multiple staff are held responsible then each may think the other checked the bus whereas no one may have.

DEPARTMENT RESPONSE:

Given the number of children left behind on buses and the serious jeopardy this poses for a child's health, it is imperative that all adults on board a bus be responsible for the safety of the children transported.

9. COMMENT:

Costs associated with testing and training monitors and attendants should be eligible for transportation aid to districts.

DEPARTMENT RESPONSE:

A statutory change would be necessary to make districts eligible for transportation aid for any expenses associated with monitors. However, if an attendant is employed as a condition of a pupil's IEP, then expenses associated with that person's employment are eligible for transportation aid.

10. COMMENT:

The July 1, 2003 implementation date will cause major problems for districts which do last minute hiring of attendants for the Summer in order to comply with the requirements of a pupil's IEP. It is very possible that districts will not be in compliance with the training requirements of the proposed regulation on July 1, 2003.

DEPARTMENT RESPONSE:

The implementation date of the requirements for monitors and attendants is established in statute, and the Commissioner does not have the authority to change such date.

11. COMMENT:

The criminal history test for monitors and attendants should be the same as that for school bus drivers.

DEPARTMENT RESPONSE:

The requirement for a criminal history check for new employees is part of the Safe Schools Against Violence in Education Act and is not part of the enabling legislation for this regulation. In addition, since monitors and attendants are not licensed under Article 19A, the requirements of the Vehicle and Traffic Law do not apply.

12. COMMENT:

The physical performance test for drivers, monitors and attendants should be administered only by 19A examiners and not school bus driver instructors (SBDIs). There is additional expense to districts in scheduling the physical performance test when it is given separate from the driving tests. SBDIs should concentrate on instruction.

DEPARTMENT RESPONSE:

In proposing to permit a small number of certified 19A examiners to administer the physical performance test, the Department sought to provide temporary relief to small districts and private contractors who might only employ one SBDI. 19A examiners are not trained or certified by the Department. SBDIs have received special training in how to administer the physical performance test, and are certified by the Commissioner to teach school bus driver, monitor and attendant safety training programs. They receive annual refresher training in school bus safety programs as required by regulation in order to maintain their certified status. 19A examiners do not possess or receive any school bus specific safety training. A 19A examiner is certified to administer Department of Motor Vehicle behind-the-wheel driver re-certification tests. Therefore, it would be inappropriate to transfer the responsibility of administering the physical performance test entirely to 19A examiners.

13. COMMENT:

19A examiners should not be permitted to administer the physical performance test for school bus drivers, monitors or attendants, even on a temporary basis through a waiver process.

DEPARTMENT RESPONSE:

The physical performance test requirements for school bus drivers have existed since 1997. During the past six years the number of SBDIs has grown from approximately 700 to over 1,100. Despite a 57 percent increase in the number of individuals available to administer the physical performance test, some districts and private contractors still have difficulty with the timely compliance of the testing requirement. Small, often rural, districts and contractors have contacted the Department concerning the high cost of administering the test to one school bus driver at a time. If a district only has one SBDI on staff, and they are responsible for all testing and training, the district might be forced to hire outside help, instead of being permitted to utilize the assistance of 19A examiners on their staff. The 19A examiner would be available to assist, not take the place of an SBDI who ultimately remains responsible for the appropriate administration of the test.

14. COMMENT:

Individuals currently employed as monitors and attendants should be exempt from the 3-hour pre-service training requirement and the 10-hour Basic Course of Instruction requirement.

DEPARTMENT RESPONSE:

Individuals hired on or before July 1, 2003 as a monitor or attendant are exempt from the requirement to take a 10-hour Basic Course of Instruction. The requirement to complete a pre-service training program remains because it is required by Chapter 472 of the Laws of 2002. However, veteran employees will have until July 1, 2004 to complete the pre-service training requirements.

15. COMMENT:

Monitors and attendants should complete the 10- hour Basic Course of Instruction within the first 6 months, rather than first year, of employment.

DEPARTMENT RESPONSE:

In developing the regulation, the Department used as a model the regulatory training requirements for school bus drivers. Where the enabling legislation was specific, the proposed regulatory language followed the statutory requirement. Where the enabling legislation was permissive, the Department mirrored the model utilized for school bus drivers. The Department was also sensitive to the present budgetary crisis at the state and local levels, and worked to keep costs down by permitting more time for compliance.

16. COMMENT:

School bus drivers, monitors and attendants should never smoke, eat or drink on a school bus, whether or not pupils are being transported.

DEPARTMENT RESPONSE:

The regulation does provide that school bus drivers, monitors and attendants may never smoke while on a school bus. This requirement is meant to help insure the respiratory health of all occupants. In addition, the Department feels that there is no justification for restricting staff from eating or drinking on a bus when pupils are not being transported. Many districts operate a multiple trip schedule to transport pupils. Transportation staff may spend long hours on the bus. It is reasonable to expect that staff should be permitted to eat a meal or have a snack on the bus during the times in between trips.

17. COMMENT:

Language should changed to require children to cross in the street in view of the driver when disembarking the bus, instead of crossing the highway at a distance of 10 feet in front of the bus, since children do not comprehend the measurement of 10 feet.

DEPARTMENT RESPONSE:

Pupils receive training in how to safely cross the street in front of a school bus, including how many steps to take away from the bus, how to wait for the bus driver's hand signal before crossing, and what to do if the horn sounds. It is not necessary or appropriate to amend the language to something less descriptive.

18. COMMENT:

The Department should provide risk assessment data to justify the regulation's adoption.

DEPARTMENT RESPONSE:

The Department is not required to prepare a risk assessment to justify the development of regulations concerning requirements for monitors and attendants. Chapter 472 and 529 of the Laws of 2002 require the Commissioner of Education to develop rules and regulations to implement the statutes. The proposed regulations have been developed to meet the statutory requirements

19. COMMENT:

The question was raised as to the availability to the Department of concrete data on which to base cost estimates.

DEPARTMENT RESPONSE:

The Department did not have access to specific data upon which to base cost estimates. Therefore, at times an estimate was used based upon information obtained from different areas of the state.

20. COMMENT:

It did not appear feasible to assume that the anticipated additional work to be performed by the Department could be absorbed by the existing level of staff and resources.

DEPARTMENT RESPONSE:

The role of Department staff has changed over the past several years from one of many staff positions directly writing curricula and conducting training to one where fewer staff positions coordinate, review and approve the work of the SBDI Corps to write curricula and conduct training. We anticipate that this model will continue in the foreseeable future and is sufficient to address the Department's responsibilities under the proposed regulations.