NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[45 Pa.B. 5741]
[Saturday, September 19, 2015]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comments Reg No. Agency/Title Comment Period Issued 18-464 Department of Transportation
School Bus Drivers; Medical Requirements
and Standards
45 Pa.B. 3711 (July 11, 2015)8/10/15 9/9/15
Department of Transportation
Regulation #18-464 (IRRC #3108)
School Bus Drivers; Medical Requirements and Standards
September 9, 2015 We submit for your consideration the following comments on the proposed rulemaking published in the July 11, 2015 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Transportation (Department) to respond to all comments received from us or any other source.
1. Persons authorized to diagnose and treat disorders and disabilities.—Consistency with statute; Economic impact.
The persons authorized to diagnose and treat disorders and disabilities are set forth in several provisions in Part II, Chapter 15 (Licensing of Drivers) of the statute, including:
• 75 Pa.C.S. § 1508.1(a) Physical examinations, which states:
Authorization to conduct examinations.—The department shall promulgate regulations to authorize specific classes of licensed practitioners of the healing arts, to include, but not be limited to, physicians, chiropractors, physician assistants and certified registered nurse practitioners, to conduct examinations required for the issuance of a driver's license and a school bus driver endorsement. (Emphasis added.)• 75 Pa.C.S. § 1518(b), Reports by health care personnel, which states:
All physicians, podiatrists, chiropractors, physician assistants, certified registered nurse practitioners and other persons authorized to diagnose or treat disorders and disabilities defined by the Medical Advisory Board shall report to the department, in writing, the full name, date of birth and address of every person over 15 years of age diagnosed as having any specified disorder or disability within ten days. (Emphasis added.)• 75 Pa.C.S. § 1519(a) Determination of incompetency, which states:
The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may require the applicant or driver to undergo one or more of the examinations authorized under this subchapter in order to determine the competency of the person to drive. The department may require the person to be examined by a physician, a certified registered nurse practitioner, a physician assistant or a licensed psychologist. . . . Vision qualifications may be determined by an optometrist or ophthalmologist. (Emphasis added.)The physical and mental criteria to be used in evaluation of a driver are found under the duties of the Medical Advisory Board in 75 Pa.C.S. § 1517(b), which states:
The board may advise the department and review regulations proposed by the department concerning physical and mental criteria including vision standards relating to the licensing of drivers under the provisions of this chapter.Proposed Clause 71.3(b)(11)(ii)(A) would limit a subsequent assessment of cognitive or emotional functioning to ''a psychiatrist, neurologist or licensed psychologist.'' This would exclude all other defined ''health care providers'' from making this assessment. However, the statute specifically directs that ''physicians, chiropractors, physician assistants and certified registered nurse practitioners,'' as well as ''other persons authorized to diagnose or treat disorders and disabilities'' can perform the diagnosis. The Department has not provided a reason for not including all health care providers from making the assessment in Clause 71.3(b)(11)(ii)(A). How can a class of health care provider, specifically designated by statute to diagnose a condition that could disqualify a driver, not be qualified to subsequently assess that same driver with the same condition for driving ability?
To be consistent with the statute, we recommend that Clause 71.3(b)(11)(ii)(A) be amended to include the health care providers established in statute. If the Department does not amend the regulation to include all qualified health care providers, it should explain how the regulation is consistent with the statute and how the cost of an assessment by a psychiatrist, neurologist or licensed psychologist is justifiable. The Department should also amend the Regulatory Analysis Form to reflect these costs imposed by the regulation.
2. Section 71.2. Definitions.—Need; Clarity.
Dementia
The second and third sentences of this definition describe the early stages and progressive nature of dementia. We do not believe these sentences are needed to understand what the Department considers to be dementia. Therefore, we recommend deleting them.
Mental or emotional disorder
As written, this definition relies on the description and definition in the ''current Diagnostic and Statistical Manual of Mental Disorders, including its introduction or International Classification of Diseases.'' If that is the standard that defines mental or emotional disorder, we recommend deleting the rest of the definition because it may conflict with a future change in the manual.
If the Department maintains this language, it should review the definition's phrasing for need and clarity. We recommend deleting the word ''important'' because it is not clear what distinction the word implies in the consideration of a symptom and what it would exclude from the definition of mental or emotional disorder. In the context of the health care provider's evaluation criteria specified in Paragraph 71.3(b)(11) and the health care provider's certification required in Subsection 71.3(c), why is the last sentence of the definition needed that states ''Some mental disorders cause poor judgment . . . that might affect driving performance''?
Neurologist and Psychiatrist
Both of these definitions include a licensed physician who is ''Board-eligible.'' We have three concerns relating to how ''Board-eligible'' is consistent with the statute and is clear.
First, 75 Pa.C.S. § 1519(a) states a person who ''may not be physically or mentally qualified to be licensed'' may be required to be examined by ''a physician, a certified registered nurse practitioner, a physician assistant or a licensed psychologist'' and for vision examination by ''an optometrist or ophthalmologist.'' There is no mention of ''Board-eligible'' in this provision of the statute for these professions. The Department should explain how including the phrase ''Board-eligible'' in the regulation is consistent with the statute.
Second, it is not clear what specific standard or minimum training the phrase ''Board-eligible'' includes. Other definitions in Section 71.2 of health care professions (CRNP, Chiropractor and Psychologist) state or imply a person must be licensed and not just eligible to be licensed. Why are Board-eligible neurologists and psychiatrists included in the definitions and what training must they meet to be Board-eligible?
Finally, these definitions use the term ''Board.'' The definitions should state more specifically which boards the Department accepts for the certifications.
Psychologist
This term is defined as ''a person licensed as a psychologist.'' We recommend adding that the person is licensed as a psychologist by the State Board of Psychology, similar to the existing definitions of ''CRNP'' and ''physician assistant.''
3. Section 71.3. Physical examination.—Clarity.
Discretion of the health care provider
Subparagraph (b)(11)(i) states,
. . . has no impairment from brain disease or deficit of cognitive function, which is likely to impair the ability to drive a school bus safely: . . . . (Emphasis added.)This provision implies the health care provider has discretion and exercises judgment in determining whether a person can drive a school bus safely. However, as written, Subparagraph (b)(11)(ii) contradicts that discretion by stating:
Has not been diagnosed with a mental or emotional disorder and does not manifest one or more of the symptoms described in subparagraph (i). An individual diagnosed with a disorder or who manifests these symptoms will be disqualified to drive a school bus. (Emphasis added.)We recommend that the Department review this language to make these provisions consistent with each other.
Process for applying for a waivers
The process to restore the individual's school bus driving privilege is specified in Clauses (b)(11)(ii)(A) and (B). However, while granting of a waiver is included in Clause (b)(11)(ii)(C), the process of applying for a waiver is not specified in the regulation. We recommend that the regulation include how to apply for a waiver.
4. Miscellaneous Clarity
• In Clause 71.3(b)(11)(ii)(A), the phrase ''licensed psychologist'' is used. Since the definition of psychologist states they must be licensed, it is redundant to use the word ''licensed'' in Clause 71.3(b)(11)(ii)(A).
JOHN F. MIZNER, Esq.,
Chairperson
[Pa.B. Doc. No. 15-1700. Filed for public inspection September 18, 2015, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
