PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Amendment of Part 9 of Title 15 NYCRR.

Driver license qualifications after loss of consciousness.

Authorizes nurse practitioners to evaluate motorists ability to safely operate a vehicle after a loss of consciousness episode.

Section 9.1 is amended to read as follows:

Section 9.1 Introduction and scope. Section 502 of the Vehicle and Traffic Law requires an applicant for a driver license to submit proof of fitness. This Part establishes procedures and standards to be applied by the Commissioner with respect to the licensing of persons who have experienced loss of consciousness. The Part shall be applicable to an applicant for an original license in this state who has ever suffered loss of consciousness, to an applicant for renewal of a license in this state who has suffered loss of consciousness since his last license was issued in this state, to a person who is required to submit physicians' or nurse practitioners' statements as a condition for continuing licensing, and to licensees concerning whom the Commissioner has received evidence of loss of consciousness.

Section 9.3 is amended to read as follows:

9.3 Standards of fitness. A person to whom this Part is applicable will be deemed to be fit for licensing insofar as this Part is concerned if:

(a) such person has not experienced a loss of consciousness within the previous twelve month period, and such person submits a physician's or nurse practitioner's statement confirming such fact; or

(b) such person has experienced loss of consciousness within the previous twelve month period, if such loss of consciousness was due solely to a directed change in medication by a physician or nurse practitioner, and such person submits a physician's or nurse practitioner's statement confirming such fact and the Commissioner acting after recommendation of his medical consultant finds no grounds to disagree with or to question the physician's or nurse practitioner's statement; or

(c) such person has experienced loss of consciousness within the previous twelve month period, if such person submits a physician's or nurse practitioner's statement confirming the physician's or nurse practitioner's awareness of any or all such incidents and notwithstanding such history, the physician or nurse practitioner recommends licensing by making a positive statement that, in his or her opinion, the condition will not interfere with such person's safe operation of a vehicle on the public highway, and the Commissioner acting after recommendation of his or her medical consultant finds no grounds to disagree with or to question the physician's or nurse practitioner's statement.

Subdivisions (a), (c) and (d) of section 9.4 are amended to read as follows:

(a) Upon receipt of an application for an original driver license, or for renewal of a driver license, or upon a scheduled review of a required physician's or nurse practitioner's statement, or upon receipt of evidence confirmed by a departmental hearing or investigation that a licensee has experienced loss of consciousness, if the Commissioner has not received an acceptable physician's or nurse practitioner's statement as defined in subdivision (d) of this section, or, if such a statement is received but the Commissioner's medical consultant finds grounds to disagree with or to question a recommendation of such physician or nurse practitioner made in accordance with the provisions of Section 9.3 of this part, the Commissioner shall, unless he or she deems such person's operation of a motor vehicle on a public highway to be an immediate hazard, send to such person a proposed denial or suspension of license, whichever is appropriate, with an offer to withhold such action until after a department hearing, if such hearing is requested by such person. The failure of such person to reply to the Commissioner, either accepting the denial or suspension or requesting a hearing, within thirty days of the date of such notice shall result in the imposition of the denial or suspension.

(c) For the purposes of this section, a person's operation on the public highway shall be deemed to constitute an immediate hazard if the Commissioner has received evidence from a physician or nurse practitioner that the person's condition does, in the opinion of the physician or nurse practitioner, create an immediate hazard if such person were to operate a vehicle on the public highway or, if the Commissioner has received evidence that such person's loss of consciousness has caused or contributed to a motor vehicle accident.

(d) In order for a physician's or nurse practitioner's statement to be acceptable, such statement must be submitted by a licensed physician or nurse practitioner who has attended or examined the patient within 120 days of the date of such statement, and if required by the Commissioner, may be required to be submitted by a physician licensed in a specialty appropriate to the condition in question.

Section 9.5 is amended to read as follows:

9.5 Submission of physician's or nurse practitioner's statements as a condition for licensing. The Commissioner may require the submission of physicians' or nurse practitioner's statements on a scheduled basis as a condition of licensing in those cases in which a person has experienced loss of consciousness, but meets standards of fitness as set forth in this Part, and the physician's or nurse practitioner's statement indicates that medication is being taken to meet such standards and, in the opinion of either the submitting physician, or nurse practitioner or the medical consultant to the Commissioner, the submission of such scheduled physician's or nurse practitioner's statements is considered necessary or desirable. However, this requirement shall not be applicable in any case where an individual has been seizure free without medication for a minimum period of one year and submits a physician's or nurse practitioner's statement.

Subdivision (b) of section 9.6 is amended to read as follows:

(b) Judicial review of a determination made by the Commissioner after a hearing held pursuant to this part may be had without an administrative appeal being made pursuant to Article [3·B] 3-A of the Vehicle and Traffic Law.

Heidi Bazicki, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 526, Albany, NY 12228, (518) 474-0871, email: [email protected]

Ida L. Traschen, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 526, Albany, NY 12228, (518) 474-0871, email: [email protected]

45 days after publication of this notice.

1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) provides that the Commissioner of Motor Vehicles may enact rules and regulations that regulate and control the exercise of the powers of the Department. VTL section 502(1) provides that an applicant for a driver's license shall provide proof of fitness as may be required by the Commissioner. VTL section 510(3)(b) provides that the Commissioner may suspend or revoke a driver's license due to a physical or mental disability of the licensee. Section 6902(3) of the Education Law authorizes nurse practitioners to perform diagnostic and treatment procedures as part of a written practice agreement with a supervising physician.

2. Legislative objectives: The proposed rule achieves two legislative objectives. First, it accords with section 502(1) of the Vehicle and Traffic Law, which requires driver license applicants to meet fitness standards established by the Commissioner. By allowing nurse practitioners, as well as physicians under the current practice, to review a licensee's physical condition where a licensee has experienced loss of consciousness within the previous twelve months, the Department would be substantially expanding the pool of qualified medical professionals who may evaluate whether such license holders pose a highway safety risk. Second, in accordance with Education Law section 6902(3), the Department is authorizing nurse practitioners to engage in diagnostic procedures permitted by such statute, in relation to loss of consciousness assessments.

3. Needs and benefits: This proposed regulation is necessary to permit nurse practitioners to evaluate drivers who have suffered a loss of consciousness within the previous twelve months and who seek to retain their license or have their license reinstated. Currently, the Department learns that a motorist has suffered a loss of consciousness from the licensee or license applicant, a treating physician or a law enforcement entity after an accident. Thereafter, the Department requires the motorist to present proof of his or her fitness to safely operate a motor vehicle, if he or she has had an episode of loss of consciousness within the previous twelve months, by having the motorist's physician submit the MV-80U.1 form, "Physician's Statement for Medical Review Unit." The Department's medical consultant may accept or reject the physician's conclusion, and if rejected, the Department may permissively suspend the motorist's license, pursuant to VTL section 510(3)(b), after affording the motorist an opportunity to be heard.

Under the proposed regulation, a nurse practitioner would also be authorized to conduct the examination of the motorist and evaluate whether he or she could safely operate a motor vehicle. As with a physician's assessment, our medical consultant may accept or reject the conclusion of the nurse practitioner, or the consultant may require that a specialist, such as a neurologist, also evaluate the motorist.

Since Education Law section 6902(3) provides that a nurse practitioner is authorized to perform diagnostic procedures as part of a written agreement with a supervising physician, this rule is consistent with the intent of this provision. This rule will serve to expand the pool of medical professionals who are qualified to perform loss of consciousness evaluations without diminishing the Department's commitment to highway safety.

Costs:

a. Cost to regulated parties and customers: There are no costs to regulated parties or customers.

b: Costs to the agency and local governments: There is no cost to local governments. The Department will revise the MV-80U.1 Form, "Physician's Statement for Medical Review" to include references to nurse practitioners where appropriate. This shall be done at a cost of about $500.00.

5. Local government mandates: There are no local government mandates.

6. Paperwork: The Department will revise the MV-80U.1 Form, "Physician's Statement for Medical Review" to include references to nurse practitioners where appropriate. As currently required, the person seeking licensing will have to have the MV-80U.1 filled out and filed with the Department. This form is available on the Department's website or at any local Department of Motor Vehicles Office.

7. Duplication: This proposal does not duplicate, overlap or conflict with any relevant rule or legal requirement of the State and federal governments.

8. Alternatives: Historically, the Department has only permitted a physician to complete the MV-80U.1 Form, "Physician's Statement for Medical Review." After a review of Education Law section 6902(3), however, and in consultation with the Nurse Practitioner Association of New York State, the Department concluded that nurse practitioners are both qualified and authorized to evaluate loss of consciousness cases. A no action alternative was considered but was rejected due to the reasons cited above.

9. Federal standards: The proposal does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: The Department will be able to modify the MV-80U.1 form prior to final adoption of the rule, so that compliance would begin immediately.

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not attached because this rule will not have a disproportionate impact on small businesses or local governments, nor will it impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments.

A Rural Area Flexibility Analysis is not attached, because this rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.

A Job Impact Statement is not submitted with this rule, because it will not have an adverse impact on job creation or job development in New York State.