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', physician assistants’, or nurse practitioners' statements as a condition for continuing licensing, and to licensees concerning whom the commissioner has received evidence of loss of consciousness.

Subdivisions (a), (b) and (c) of section 9.3 are amended to read as follows:

(a) such person has not experienced a loss of consciousness within the previous 12-month period, and such person submits a physician's, physician assistant’s [statement] or nurse practitioner's statement confirming such fact;

(b) such person has experienced loss of consciousness within the previous 12-month period, if such loss of consciousness was due solely to a directed change in medication by a physician, a physician assistant, or nurse practitioner, and such person submits a physician's, a physician assistant’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, physician assistant’s or nurse practitioner's statement; or

(c) such person has experienced loss of consciousness within the previous 12-month period, if such person submits a physician's, physician assistant’s or nurse practitioner's statement confirming the physician's, physician assistant’s or nurse practitioner's awareness of any or all such incidents and notwithstanding such history, the physician, physician assistant 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, physician assistant’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, physician assistant’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, physician assistant’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, physician assistant, 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 30 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, physician assistant, or nurse practitioner that the person's condition does, in the opinion of the physician, physician assistant 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, physician assistant’s or nurse practitioner's statement to be acceptable, such statement must be submitted by a licensed physician, physician assistant, 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.

The heading of section 9.5 is amended and such section is amended to read as follows:

9.5 Submission of physician's, physician assistant’s or nurse practitioner's statements as a condition for licensing.

The commissioner may require the submission of physicians', physician assistants’, or nurse practitioners’ 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, physician assistant’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, physician assistant or nurse practitioner or the medical consultant to the commissioner, the submission of such scheduled physician's, physician assistant’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, physician assistant’s or nurse practitioner's statement.

This proposed regulation is necessary to permit physician assistants to evaluate drivers who have suffered a loss of consciousness. Currently, if the Department learns that a motorist has suffered a loss of consciousness, we require the motorist to present proof of his or her fitness to safely operate a motor vehicle. The motorist’s physician or nurse practitioner submits the MV-80U.1 form, “Physician’s Statement for Medical Review Unit.” The Department’s medical consultant may accept or reject the physician’s or nurse practitioner’s conclusion, and if rejected, the Department may permissively suspend the motorist’s license, pursuant to VTL section 510(3)(b), while affording the motorist an opportunity to be heard.

Under the proposed regulation, a physician assistant would 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 or nurse practitioner’s assessment, our medical consultant may accept or reject the conclusion of the physician assistant, or the consultant may require that a specialist, such as a neurologist, evaluate the motorist.

Education Law section 6542 provides, “Notwithstanding any other provision of law, a physician assistant may perform medical services, but only when under the supervision of a physician and only when such acts and duties as are assigned to him or her are within the scope of practice of such supervising physician.” And section 3703 of the Public Health Law provides, “A physician assistant may perform any function in conjunction with a medical service lawfully performed by the physician assistant, in any health care setting, that a statute authorizes or directs a physician to perform and that is appropriate to the education, training and experience of the licensed physician assistant and within the ordinary practice of the supervising physician. This section shall not be construed to increase or decrease the lawful scope of practice of a physician assistant under the education law.” Pursuant to these sections of law, a properly license and trained physician assistant is authorized to make a medical assessment about whether a motorist may safely operate a motor vehicle.

Since this proposed rule simply reflects a physician assistant’s scope of practice as codified in the Education Law and Public Health Law, a consensus rulemaking is appropriate.

A Job Impact Statement is not submitted because this rule will have no adverse impact on job creation or job development in New York State.