Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-11-128.

     Title of Rule and Other Identifying Information: Chapter 392-144 WAC, School bus driver qualifications.

     Hearing Location(s): Office of Superintendent of Public Instruction, Brouillet Conference Room, 600 South Washington Street, Olympia, WA 98504-7200, on August 26, 2008, at 9:00 a.m.

     Date of Intended Adoption: August 27, 2008.

     Submit Written Comments to: Allan J. Jones, Director, Pupil Transportation, P.O. Box 47200, Olympia, WA 98504-7200, e-mail allan.jones@k12.wa.us, fax (360) 586-6124, by August 25, 2008.

     Assistance for Persons with Disabilities: Contact Penny Coker by August 25, 2008, TTY (360) 664-3631 or (360) 725-6142.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Technical changes have been made throughout the chapter. Specifically, the approval of temporary extensions will now be done by the office of superintendent of public instruction (OSPI), the due date of the verification statement and confirmation of updated records (Form 1799) will be changed to coincide with the due date school districts submit their annual required student transportation reports no later than the last business day of October; clarified the definition of a medical examination; clarified the bus driver and district reporting requirements concerning the department of licensing's action; and provided school districts the ability to develop and implement an alternative assessment of physical strength and agility upon approval from OSPI.

     Statutory Authority for Adoption: RCW 28A.160.20 [28A.160.210].

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Office of superintendent of public instruction, governmental.

     Name of Agency Personnel Responsible for Drafting: Charles Schreck, Office of Superintendent of Public Instruction, (360) 725-6136; Implementation: Martin Mueller, Office of Superintendent of Public Instruction, (360) 725-5175; and Enforcement: Allan J. Jones, Office of Superintendent of Public Instruction, (360) 725-6120.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. These revisions only apply to public school districts.

     A cost-benefit analysis is not required under RCW 34.05.328. These revisions only apply to public school districts.

July 7, 2008

Terry Bergeson

Superintendent of

Public Instruction

OTS-1723.1

AMENDATORY SECTION(Amending WSR 08-07-054, filed 3/14/08, effective 4/14/08)

WAC 392-144-020   Definitions.   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:

     (1) "School bus driver" means a person, who is employed by a school district including contracted drivers under WAC 392-144-040 (1) and (2) and as part of that employment or contract, operates a school bus as defined in WAC 392-143-010, or other motor vehicles for the regularly scheduled transportation of students between home and school. School buses shall be operated by authorized school bus drivers when transporting students. An authorized school bus driver may also transport students on field trips and other school related activities.

     (2) "A school bus driver's authorization" means an authorization issued by the superintendent of public instruction indicating that the person has met the requirements to operate a school bus or other motor vehicle for the purpose of transporting students to and from school routinely on scheduled routes and/or school activities. A school bus driver must be authorized prior to transporting students and such authorization shall continue in effect as long as the person continues to meet the requirements of this chapter. A school bus driver authorization is not valid if suspended, revoked or lapsed.

     (3) "School bus driver instructor's authorization" means an authorization issued by the superintendent of public instruction to a person successfully completing the superintendent of public instruction approved school bus driver instructor course. This authorization qualifies a person to train and verify the training of school bus drivers. This authorization shall lapse unless the holder successfully completes an annual school bus driver instructor's in-service course.

     (4) "School bus driver training course" means a course established by the superintendent of public instruction and taught by an authorized school bus driver instructor. This course shall be successfully completed by all applicants for a school bus driver's authorization.

     (5) "School bus driver annual in-service training course" means an annual course taught by an authorized school bus driver instructor. The content and minimum time requirements of such course shall be annually determined by the superintendent of public instruction and shall be required to be completed no earlier than August 1st and no later than November 1st by all authorized school bus drivers.

     (6) "School bus driver instructor's course" means a training program authorized by the superintendent of public instruction to qualify a person as a school bus driver instructor.

     (7) "School bus driver instructor's annual in-service course" means an annual required course, the content of which shall be determined by the superintendent of public instruction. Successful completion of this course prevents the instructor's authorization from lapsing.

     (8) "Serious behavioral problem" includes, but is not limited to, conduct which indicates unfitness to carry out the responsibilities related to the occupation or job performance of transporting children, such as: Dishonesty; immorality; or misuse of alcohol, a controlled substance, or a prescription drug; or furnishing alcohol or controlled substances to a minor or student. It does not include the orderly exercise during off-duty hours of any rights guaranteed under the law to citizens generally, except where such conduct indicates a safety risk for the transportation of students.

     (9) "Medical examiner's certificate" means a written verification of passing a medical examination in accordance with the standards established in 49 CFR 391.41 through 391.49, of the Federal Motor Carrier Safety Regulations.

     (a) School bus drivers must provide verification of passing a medical examination at a minimum of every twenty-four months.

     (b) School bus drivers must continue to meet these medical requirements during the time between examinations.

     (c) A school district may require more frequent examinations of any school bus driver. If a school district requires a school bus driver to be examined by a district selected physician, the school district must pay for the cost of such exam. If the driver objects to the district selected physician, a physician must be selected that is mutually acceptable.

     (d) An individual who is a diabetic being treated with insulin may hold a school bus driver authorization if they meet the following requirements:

     (i) Possess a valid commercial driver license intrastate medical waiver for diabetes from the Washington state department of licensing or a valid interstate exemption certificate for diabetes issued by the Federal Motor Carrier Safety Administration;

     (ii) Provide at a minimum of every twenty-four months to the authorizing school district(s) or employer a completed, signed copy of Form SPI 1643, Application Section, and a completed, signed copy of Form SPI 1643, Physician Evaluation Section indicating the driver's medical condition allows them to safely operate a school bus while using insulin. The Physician Evaluation Section must indicate that within the past three years, the driver has completed instruction including diabetes management and driving safety; the signs and symptoms of hypoglycemia and hyperglycemia, and what procedures must be followed if complications arise. Physician verification of participation in a diabetes education program covering these topics is required at least every three years in order to remain qualified for a school bus driver authorization;

     (iii) Provide at a minimum of every twelve months to the authorizing school district(s) or employer a completed, signed copy of Form SPI 1643, Vision Evaluation Section indicating the driver does not have any vision problems that might impair safe driving;

     (iv) Provide at a minimum of every six months to the authorizing school district(s) or employer a completed, signed copy of Form SPI 1643, HbA1c Report Section indicating values more than 5.9 and less than 9.6 (unless accompanied by the signed medical opinion that the event was incidental and not an indication of failure to control glucose levels);

     (v) Self-monitor blood glucose using an FDA approved device and demonstrate conformance with requirements (more than 100 mg/dl and less than 300 mg/dl):

     (A) Within one hour before driving vehicles transporting students; and

     (B) Approximately every four hours while on duty;

     (vi) Maintain a daily log of all glucose test results for the previous six-month period and provide copies to the authorizing school district(s) or employer, and the medical examiner or physician upon request;

     (vii) Carry a source of readily absorbable/fast-acting glucose while on duty;

     (viii) Report immediately to their employer, any failure to comply with specific glucose level requirements as listed in (d)(iv) or (v) of this subsection, or loss of consciousness or control;

     (ix) Individuals who have had a loss of consciousness or loss of control (cognitive function) due to a diabetic event do not qualify for a school bus driver authorization for one year, provided there has not been a recurrent hypoglycemic reaction requiring assistance of another person within the previous five years;

     (x) A school bus driver is no longer authorized to operate a school bus and must be immediately removed from driving duties for any of the following:

     (A) Results of the most recent HbA1c test indicating values less than 6.0 or greater than 9.5 unless accompanied by the signed medical opinion that the event was incidental and not an indication of failure to control glucose levels;

     (B) Results of self-monitoring indicate glucose levels less than 100 mg/dl or greater than 300 mg/dl, until self-monitoring indicates compliance with specifications;

     (C) Experiencing a loss of consciousness or control relating to diabetic condition;

     (D) Failing to maintain or falsifying the required records, including self-monitoring records and any section of Form SPI 1643;

     (xi) The authorizing school district or employer may request medical review of any or all signed, completed sections of Form SPI 1643, Washington State Authorized School Bus Driver Diabetes Exemption Program, and the driver's daily glucose test logs by a medical examiner or physician of their choice. The cost of this review shall be paid by the school district or employer.

[Statutory Authority: RCW 28A.160.210. 08-07-054, § 392-144-020, filed 3/14/08, effective 4/14/08. Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-020, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-009, filed 9/20/05, effective 10/21/05; 04-08-055, § 180-20-009, filed 4/2/04, effective 5/3/04; 02-18-055, § 180-20-009, filed 8/28/02, effective 9/28/02.]

     (1) Have a valid driver's license or commercial driver's license, as required by law, issued by the state department of licensing.

     (2) Satisfactorily complete the annual school bus driver in-service training course.

     (3) Hold a current and valid first-aid card which certifies that the applicant has completed a course in first aid.

     (4) Submit annually to the school district a disclosure of all crimes against children or other persons and all civil adjudications in a dependency action or in a domestic relation action and all disciplinary board final decisions of sexual abuse or exploitation or physical abuse as required by RCW 43.43.834(2) and disclosure of all convictions which may be grounds for denial, suspension, or revocation of authorization under WAC 392-144-103.

     (5) Every authorized school bus driver must continue to meet the following physical requirements:

     (a) Is physically able to maneuver and control a school bus under all driving conditions; and

     (b) Is physically able to use all controls and equipment found on state minimum specified school buses; and

     (c) Is physically able to perform daily routine school bus vehicle safety inspections; and

     (d) Has sufficient strength and agility to move about in a school bus as required to provide assistance to students in evacuating the bus. The driver must be able to move from a seated position in a sixty-five passenger school bus, or the largest school bus the driver will be operating, to the emergency door, open the emergency door, and exit the bus through the emergency door, all within twenty-five seconds. A school district may develop and implement an alternative assessment of physical strength and agility. The alternate assessment must be submitted by the school district superintendent for approval by OSPI; and

     (e) Provide verification of holding a current and valid medical examiner's certificate.

[Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-102, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-102, filed 9/20/05, effective 10/21/05.]

     (1) Misrepresenting or concealing a material fact in obtaining a school bus driver's authorization or in reinstatement thereof in the previous five years.

     (2) Having a driving license privilege suspended or revoked as a result of a moving violation as defined in WAC 308-104-160 within the preceding five years or have had their commercial driver's license disqualified, suspended, or revoked within the preceding five years; a certified copy of the disqualification, suspension, or revocation order issued by the department of licensing being conclusive evidence of the disqualification, suspension, or revocation.

     (3) ((Incurring)) Having been convicted of three or more speeding tickets of ten miles per hour or more over the speed limit within the last five years.

     (4) Having intentionally and knowingly transported public school students within the state of Washington within the previous five years with a lapsed, suspended, surrendered, or revoked school bus driver's authorization in a position for which authorization is required under this chapter.

     (5) Having intentionally and knowingly transported public school students within the state of Washington within the previous five years with a suspended or revoked driver's license or a suspended, invalid, disqualified, or revoked commercial driver's license.

     (6) Having refused to take a drug or alcohol test as required by the provisions of 49 CFR 382 within the preceding five years. Provided, That this requirement shall not apply to any refusal to take a drug or alcohol test prior to January 31, 2005.

     (7) Having a serious behavioral problem which endangers the educational welfare or personal safety of students, teachers, school bus drivers, or other coworkers.

     (8) Having been convicted of any misdemeanor, gross misdemeanor, or felony (including instances in which a plea of guilty or nolo contendere is the basis for the conviction) or being under a deferred prosecution under chapter 10.05 RCW where the conduct or alleged conduct is related to the occupation of a school bus driver, including, but not limited to, the following:

     (a) The physical neglect of a child under chapter 9A.42 RCW;

     (b) The physical injury or death of a child under chapter 9A.32 or 9A.36 RCW, excepting motor vehicle violations under chapter 46.61 RCW;

     (c) The sexual exploitation of a child under chapter 9.68A RCW;

     (d) Sexual offenses where a child is the victim under chapter 9A.44 RCW;

     (e) The promotion of prostitution of a child under chapter 9A.88 RCW;

     (f) The sale or purchase of a child under RCW 9A.64.030;

     (g) Any crime involving the use, sale, possession, or transportation of any controlled substance or prescription drug within the last ten years;

     (h) Any crime involving driving when a driver's license is suspended or revoked, hit and run driving, driving while intoxicated, being in physical control of motor vehicle while intoxicated, reckless driving, negligent driving of a serious nature, vehicular assault or vehicular homicide, within the last five years;

     (i) Provided, That the general classes of felony crimes referenced within this subsection shall include equivalent federal crimes and crimes committed in other states;

     (j) Provided further, That for the purpose of this subsection "child" means a minor as defined by the applicable state or federal law;

     (k) Provided further, That for the purpose of this subsection "conviction" shall include a guilty plea.

     (9) Having been convicted of any crime within the last ten years, including motor vehicle violations, which would materially and substantially impair the individual's worthiness and ability to serve as an authorized school bus driver. In determining whether a particular conviction would materially and substantially impair the individual's worthiness and ability to serve as an authorized school bus driver, the following and any other relevant considerations shall be weighed:

     (a) Age and maturity at the time the criminal act was committed;

     (b) The degree of culpability required for conviction of the crime and any mitigating factors, including motive for commission of the crime;

     (c) The classification of the criminal act and the seriousness of the actual and potential harm to persons or property;

     (d) Criminal history and the likelihood that criminal conduct will be repeated;

     (e) The permissibility of service as an authorized school bus driver within the terms of any parole or probation;

     (f) Proximity or remoteness in time of the criminal conviction;

     (g) Any evidence offered which would support good moral character and personal fitness;

     (h) If this subsection is applied to a person currently authorized as a school bus driver in a suspension or revocation action, the effect on the school bus driving profession, including any chilling effect, shall be weighed; and

     (i) In order to establish good moral character and personal fitness despite the criminal conviction, the applicant or authorized school bus driver has the duty to provide available evidence relative to the above considerations. The superintendent of public instruction has the right to gather and present additional evidence which may corroborate or negate that provided by the applicant or authorized school bus driver.

[Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-103, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 06-01-039, § 180-20-103, filed 12/15/05, effective 1/15/06; 05-19-107, § 180-20-103, filed 9/20/05, effective 10/21/05.]

     (a) Verification of successful completion of the school bus driver training course.

     (b) Verification that it has on file a copy of a current and valid medical examiner's certificate.

     (c) Verification that it has on file an original, current and complete school bus driver's abstract, including departmental actions, of the applicant's employment and nonemployment driving record obtained from the department of licensing verifying compliance with all provisions of this chapter. The issue date of this abstract must be within sixty calendar days prior to the date the application is being submitted for temporary authorization.

     (d) Verification that it has on file a disclosure statement in compliance with preemployment inquiry regulations in WAC 162-12-140, signed by the applicant, specifying all convictions which relate to fitness to perform the job of a school bus driver under WAC 392-144-103 and all crimes against children or other persons, that meets the requirements of RCW 43.43.834(2).

     (e) Verification that it has requested a criminal record check as required under chapter 28A.400 RCW and the date of such request.

     (f) Verification that it has on file an applicant's disclosure of all serious behavioral problems which explains the nature of all such problems and/or conditions, a listing of the names, addresses, and telephone numbers of all doctors, psychologists, psychiatrists, counselors, therapists, or other health care practitioners of any kind or hospitals, clinics, or other facilities who have examined and/or treated the applicant for such problems and/or conditions and dates of examinations, therapy, or treatment and the school district has determined that any reported serious behavioral problem does not endanger the education welfare or personal safety of students, teachers, bus drivers, or other colleagues.

     (g) Verification that the applicant complies with all of the requirements for authorized school bus drivers set forth in this chapter except for a first-aid card and/or the results of a criminal record check.

     (2) Upon approval of the temporary authorization, notice will be provided to the employing school district.

     (3) The temporary authorization shall be valid for a period of sixty calendar days. The temporary authorization may be renewed by approval of the ((regional transportation coordinator)) superintendent of public instruction when the results of the criminal background check have not been received.

[Statutory Authority: RCW 28A.160.210. 07-13-067, § 392-144-110, filed 6/18/07, effective 7/19/07. Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-110, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-111, filed 9/20/05, effective 10/21/05; 04-08-055, § 180-20-111, filed 4/2/04, effective 5/3/04; 02-18-055, § 180-20-111, filed 8/28/02, effective 9/28/02; 99-08-004, § 180-20-111, filed 3/25/99, effective 4/25/99; 96-20-042, § 180-20-111, filed 9/24/96, effective 10/25/96; 93-08-007, § 180-20-111, filed 3/24/93, effective 4/24/93.]

     (2) Conduct, which by a preponderance of the evidence, amounts to a serious behavioral problem which endangers the educational welfare or personal safety of students, teachers, school bus drivers, or other colleagues is grounds for denial, suspension, or revocation whether or not the conduct constitutes a crime. If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to denial, suspension, or revocation action. Upon such conviction, however, the judgment and sentence is conclusive evidence at the ensuing hearing of the guilt of the authorized driver or applicant of the crime described in the indictment or information, and of the person's violation of the statute on which it is based.

     (3)(a) Any person in a court-ordered treatment program for alcohol or other drug misuse shall have his or her authorization suspended until treatment is satisfactorily completed and the completion is confirmed by a state-approved alcohol or drug treatment program at which time the authorization will be reinstated.

     (b) In all cases of deferred prosecution under chapter 10.05 RCW, the authorization shall be suspended until the court confirms successful completion of the court approved treatment program at which time the authorization will be reinstated.

     (4) Emergency suspension. If the superintendent of public instruction finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, emergency suspension of an authorization may be ordered pending proceedings for revocation or other action. In such cases, the superintendent of public instruction shall expedite all due process actions as quickly as possible.

     (5)(a) Appeals and adjudicative proceedings. Any person desiring to appeal a denial, suspension, or revocation of a school bus driver authorization may do so to the superintendent of public instruction or designee in accordance with the adjudicative proceedings in RCW 34.05.413 through 34.05.494, and the administrative practices and procedures of the superintendent of public instruction in chapter 392-101 WAC.

     (b) The superintendent of public instruction may assign the adjudicative proceeding to the office of administrative hearings and may delegate final decision-making authority to the administrative law judge conducting the hearing.

     (c) The superintendent of public instruction may appoint a person to review initial orders and to prepare and enter final agency orders in accordance with RCW 34.05.464.

     (d) Any person who disagrees with the school district's determination of failure to meet any school bus driver authorization qualifications may request that the school district forward the pertinent records to the superintendent of public instruction. After review or investigation, the superintendent of public instruction shall grant, deny, suspend, or revoke the authorization.

[Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-130, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-120, filed 9/20/05, effective 10/21/05; 02-18-055, § 180-20-120, filed 8/28/02, effective 9/28/02; 99-08-004, § 180-20-120, filed 3/25/99, effective 4/25/99; 96-20-042, § 180-20-120, filed 9/24/96, effective 10/25/96; 93-08-007, § 180-20-120, filed 3/24/93, effective 4/24/93.]

     (2) The notification in writing shall identify the name of the authorized driver, his or her authorization number, the court in which the action is commenced, and the case number assigned to the action.

     (3) The failure of an authorized driver to comply with the provisions of this section is an act of unprofessional conduct and constitutes grounds for authorization suspension or revocation by the superintendent of public instruction.

[Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-140, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-135, filed 9/20/05, effective 10/21/05; 02-18-055, § 180-20-135, filed 8/28/02, effective 9/28/02; 93-08-007, § 180-20-135, filed 3/24/93, effective 4/24/93.]

     (2) The notification in writing shall be by certified or registered mail and shall identify the name of the authorized school bus driver, his or her authorization number, the court in which the action is commenced, and the case number assigned to the action.

[Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-150, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-140, filed 9/20/05, effective 10/21/05; 93-08-007, § 180-20-140, filed 3/24/93, effective 4/24/93.]

     (2) This report shall verify that each authorized school bus driver's medical examination certificate expiration date, first-aid expiration date, driver's license expiration date and most recent school bus driver in-service training date has been updated in compliance with OSPI procedures.

     (3) This report shall verify that each authorized school bus driver has made an updated disclosure in writing and signed and sworn under penalty of perjury which updates the disclosure required in WAC 392-144-102(4).

     (4) This report shall verify that a current and original school bus driver's abstract has been obtained from the department of licensing on each authorized school bus driver and the driving record is in compliance with WAC 392-144-103.

     (5) This report shall verify that each authorized school bus driver remains in compliance with the physical requirements of WAC 392-144-102(5).

     (6) This report shall be a written verification that the evaluation has been conducted in accordance with the requirements of this chapter and that all drivers are in compliance, or if all drivers are not in compliance, a list of drivers who are out of compliance and the reason for noncompliance shall be provided.

[Statutory Authority: RCW 28A.160.210. 07-13-067, § 392-144-160, filed 6/18/07, effective 7/19/07. Statutory Authority: RCW 28A.160.210 and 2006 c 263 § 906. 06-15-010, amended and recodified as § 392-144-160, filed 7/6/06, effective 8/6/06. Statutory Authority: RCW 28A.160.210. 05-19-107, § 180-20-145, filed 9/20/05, effective 10/21/05; 96-20-042, § 180-20-145, filed 9/24/96, effective 10/25/96; 93-08-007, § 180-20-145, filed 3/24/93, effective 4/24/93.]

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