The rule action in this item will be filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts revisions to 19 TAC Chapter 176, Driver Training Schools, Subchapter AA, Commissioner's Rules on Minimum Standards for Operation of Licensed Texas Driver Education Schools, and Subchapter BB, Commissioner's Rules on Minimum Standards for Operation of Licensed Texas Driving Safety Schools and Course Providers. The adopted revisions reflect changes resulting from the 81st Texas Legislature, 2009, and incorporate changes to reflect driver education industry standards.

STATUTORY AUTHORITY:

Texas Education Code (TEC), §§1001.052; 1001.053; 1001.101, as amended by House Bill (HB) 339 and HB 2730, 81st Texas Legislature, 2009; 1001.101, as amended by Senate Bill (SB) 1317, 81st Texas Legislature, 2009; 1001.1015; 1001.1025; 1001.110; and 1001.257.

EFFECTIVE DATE:

December 29, 2010.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:

HB 339 and HB 2730, 81st Texas Legislature, 2009, amended the TEC, §1001.101, to require a certain number of hours of behind-the-wheel and observation instruction and increase the total hours of behind-the-wheel driving instruction a minor receives by adding 20 hours of behind-the-wheel instruction, including at least 10 hours of instruction that takes place at night.

SB 1317, 81st Texas Legislature, 2009, amended the TEC, §1001.101, to provide for a driver education course exclusively for adults, including requirements for certain instructional topics to be included in the course and allowance for the course to be offered online.

HB 339, 81st Texas Legislature, 2009, added the TEC, §1001.1015, to require the commissioner by rule to establish the curriculum and designate the educational materials to be used in a driver education course exclusively for adults. HB 339 also required certain instructional topics to be included in a driver education course exclusively for adults and allowed this course to be offered online.

SB 1967, 81st Texas Legislature, 2009, added the TEC, §1001.1025, to require motorcycle awareness to be included in the curriculum of any driver education course or driving safety course.

SB 1107 and HB 339, 81st Texas Legislature, 2009, added the TEC, §1001.110, to state that the commissioner by rule shall require information relating to driving distractions to be included in the curriculum of any driver education course or driving safety course.

HB 339 and HB 2730, 81st Texas Legislature, 2009, added the TEC, §1001.257, to allow the commissioner to deny an instructor license if a person has accumulated 6 or more penalty points on his or her driving record during the preceding 36-month period.

The adopted revisions to 19 TAC Chapter 176, Subchapters AA and BB, update the rules to reflect statutory changes and current driver education industry standards. In addition, informal stakeholder discussions were held from July 2009-May 2010 with school districts and industry members. A draft of the proposed revisions was circulated to interested parties and comments solicited. Specifically, the following changes were made.

Subchapter AA, Commissioner's Rules on Minimum Standards for Operation of Licensed Texas Driver Education Schools

Section 176.1001, Definitions, was amended to add definitions for the terms "ADE-1317," "alternative method of instruction," "clock hour," "course content validation question," "personal validation question," and "teacher of record." In addition, definitions were clarified for the terms "break," "DE-964," and "good reputation."

Section 176.1003, Driver Education School Licensure, was amended to clarify the requirement relating to submitting the appropriate fee prior to changing school locations and the refund requirement for a student not willing to transfer to a new school location. An additional circumstance under which the Texas Education Agency (TEA) may declare a school to be closed was also added.

Section 176.1004, Driver Education School Responsibility for Employees, was amended to clarify that a student instructor-trainee may teach under the direction of an instructor who is not required to possess a supervising teacher endorsement. The requirement is less restrictive due to the decreased number of supervising teachers available in Texas. The section was also amended to add reference to ADE-1317 certificates, which are to be issued upon completion of a driver education course exclusively for adults.

Section 176.1006, Driver Education Instructor License, was amended to clarify language relating to instructor endorsements for supervising driver education teacher, driver education teacher, and teaching assistant-full and add new language relating to an endorsement for supervising teaching assistant-full. The section was also amended to specify the circumstances for which a driver education instructor may or may not receive credit for continuing education requirements. In addition, the section was amended to allow the commissioner to suspend, revoke, or deny a license to any driver education instructor who accumulates 6 or more penalty points on their personal driving record within the preceding 36 months.

Section 176.1007, Courses of Instruction, was amended as follows.

A requirement was added in subsection (b) that all driver education course content must be current with regard to data, laws, procedures, and methodology.

In subsection (b)(1), the term "teenage driver education" was changed to "minor and adult driver education" to reflect changes to the TEC, §1001.101. A requirement was added for the additional 20 hours of behind-the-wheel instruction provided by the parent, including prohibiting simulation hours from counting toward the additional 20 hours and limiting the instruction to 1 hour per day. In response to public comment, a change was made at adoption to specify the age requirement for persons who may enroll in a minor and adult driver education course as age 14 and over.

Subsection (b)(1) was also amended to specify that all driver education course curricula must meet objectives outlined in the Program of Organized Instruction in Driver Education and Traffic Safety (POI), allow photographic slides to be used as instructional aides during driver education classroom instruction, and clarify that the allowable times for in-car instruction are specific to instruction provided by the school.

Subsection (b)(1) was further amended to require a licensed driver education instructor to be present during use of multimedia systems, simulators, and multicar driving ranges; provide for certain time periods of simulation training to substitute for behind-the-wheel training and in-car observation requirements; allow a student to apply for an instructional permit with the Department of Public Safety (DPS) after completing six hours of classroom instruction in Module One of the POI if he or she enrolls in a concurrent program; and indicate when an instructor can complete a DL-42 form and send it to DPS in order to cancel a student's instruction permit.

New subsection (b)(2) was added to provide detailed criteria for traditional and online driver education courses exclusively for adults. Driver education school owners will submit the course to the TEA for review and approval. The criteria for online courses is consistent with the criteria already used for approval of online driving safety courses. Outdated adult driver education course guidelines were deleted. In addition, requirements were added that a person age 18 to under 25 must successfully complete either an entire minor and adult driver education course or an entire driver education course exclusively for adults in order to obtain a driver's license and that a person must be at least 18 years of age to be issued an ADE-1317 certificate. In response to public comment, a change was made at adoption to replace the term "syllabus" with "course curriculum content."

New subparagraphs (A)-(C) were added to subsection (c)(1) to detail the requirements for course submission and approval of a six-semester-hour instructor development course, a nine-semester-hour instructor development course, and a supervising instructor development course.

Subsection (c)(2) was amended to reduce the number of penalty points allowed on the personal driving records of students in a driver education instructor development course from 10 to 6 within the preceding 36 months. The subsection was also amended to require schools to use standards for assessing penalty points as found in the Texas Transportation Code.

Subsection (c)(5) was amended to clarify provisions relating to instruction conducted by a driver education teacher, supervising teaching assistant-full, and teaching assistant. In response to public comment, a change was made at adoption to remove the proposed requirement that a supervising teaching assistant-full or a supervising driver education teacher teach at least 25 percent of an instructor development course. This requirement was not adopted due to the current shortage of supervising teachers in the state.

Subsections (c)(6) and (d)(5) were amended to require driver education schools to submit dates, times, locations, and other pertinent information to the TEA at least ten days prior to teaching an instructor development course or a continuing education course.

Section 176.1008, Student Enrollment Contracts, was amended to allow for the use of electronic signatures on enrollment contracts and include additional information required to be in an enrollment contract, including the school's termination policy, the amount of time a student has to complete classroom instruction, and the rates for classroom and in-car lessons that correspond to actual instructional costs. In addition, the adopted amendment references the ADE-1317 certificate, requires that students be provided with a copy of the contract if they are age 18 or older, and provides for the use of a group contract for schools offering a driver education course exclusively for adults. The section was modified at adoption to remove proposed language requiring a parent to initial his or her understanding that a refund may not be forthcoming if the student withdraws prior to course completion. It was determined by TEA legal counsel that the requirement should be removed since it would allow schools to retain tuition in certain circumstances when tuition should be refunded.

Section 176.1010, Attendance and Makeup, was amended to allow for the use of electronic signatures on student records, clarify that the allowable times for driver education training are specific to instruction provided by the school, and limit the contractual timeline to complete a minor and adult driver education course to one year.

Section 176.1012, Cancellation and Refund Policy, was amended to add the requirement that refunds must correspond with actual instructional hours not provided. In addition, the interest rate on unpaid refunds was changed from 250 percent to 20 percent to better correspond with the current prime rate.

Section 176.1013, Facilities and Equipment, was amended to clarify that an office or classroom facility of any driver education program may not be in a private residence.

Section 176.1015, Student Complaints, was amended to delete the requirement that student records be maintained and available for review. The requirement continues to be stated elsewhere in driver training rules.

Section 176.1016, Records, was amended to specify that either written or electronic daily records of attendance may be used. Language relating to the individual student record form (classroom) was also clarified.

Section 176.1018, Driver Education Certificates (DE-964), was amended to include ADE-1317 certificates. The section title was also amended to include ADE-1317 certificates. The requirement that school owners keep the TEA copies of DE-964 forms was deleted. (The DE-964 was redesigned and no longer includes a TEA copy.)

New §176.1019, Alternative Method of Instruction for Driver Education Course, was added to provide for alternative methods of instruction (AMI) for a driver education course. This section allows the commissioner to approve the course content and delivery method of a driver education course. Driver education school owners will submit the course to the TEA for review and approval. The new section provides detailed criteria acceptable for the driver education AMI. The criteria is consistent with the criteria already used for approval of driving safety courses offered by alternative delivery method (ADM).

For organizational purposes, current §176.1019 was repealed and renumbered as new §176.1020, Application Fees and Other Charges. Language in subsections (a), (b), (c), (d)(1)-(15), and (e) under new §176.1020 reflects no changes from the current rule. Changes from the current rule were the addition of fees for ADE-1317 certificates in paragraph (16) and application for approval of AMI courses in paragraphs (17) and (18) and traditional and online driver education courses exclusively for adults in paragraphs (19) and (20), respectively. The fees are consistent with those already in place for similar types of certificates and course approvals.

Technical edits were also made throughout the subchapter.

Subchapter BB, Commissioner's Rules on Minimum Standards for Operation of Licensed Texas Driving Safety Schools and Course Providers

Section 176.1101, Definitions, was amended to clarify the term "new course."

Section 176.1103, Driving Safety School Licensure, was amended to clarify the effective date of school licensure and delete a circumstance under which the TEA may declare a school closed.

Section 176.1104, Course Provider Licensure, was amended to clarify the effective date of course provider licensure and require course providers to submit a new continuing education course upon license renewal.

Section 176.1105, Driving Safety School and Course Provider Responsibilities, was amended to increase the number of days allowed for a course provider to electronically submit certificate data to the TEA and require that uniform certificates of course completion contain TEA complaint contact information. In addition, a cross reference to a statute that no longer applies was deleted. In response to public comment, new subsection (b)(11) was modified at adoption to specify that the front of each uniform certificate of course completion must contain TEA complaint contact information and current division telephone number in a font that is visibly recognizable.

Section 176.1106, Administrative Staff Members, was amended to allow TEA compliance visits to be announced or unannounced.

Section 176.1107, Driving Safety Instructor License, was amended to allow a specialized driving safety instructor, specialized driving safety instructor trainer, or an instructor development course specialized driving safety instructor trainer applicant to receive credit for past certification as a National Highway Traffic Safety Association Child Passenger Safety technician or instructor. The section was also amended to require the driving safety instructor trainer, specialized driving safety instructor trainer, instructor development course driving safety instructor trainer, or instructor development course specialized driving safety instructor trainer for a newly approved course to demonstrate the ability to teach the instructor training course. Provisions prohibiting an instructor from making inappropriate advances and allowing the commissioner to suspend, revoke, or deny a license to any driving safety or specialized driving safety instructor trainer or instructor who uses inappropriate language or behavior were added. In addition, an outdated statutory reference was deleted.

Section 176.1108, Driving Safety Courses of Instruction, was amended to allow ADMs an exception from the requirement that all course content be delivered under the direct observation of a licensed instructor and require course content to contain appropriate language. In addition, changes were made to clarify submission of translator credentials or other requirements for translation of course content into languages other than English; require statistical data to be drawn from the Texas Department of Transportation or National Highway Traffic Safety Administration; specify that all driving safety course content must be current with regard to data, laws, procedures, and methodology; require courses to contain the top five contributing factors of motor vehicle crashes as identified by the Texas Department of Transportation; and add course topics for motorcycle awareness and driving distractions. The requirement that a course author be a TEA-licensed instructor was removed, clarification on the due date of course renewal was added, and a requirement that course content methodology and procedures be updated for course renewal was added. Language was deleted that requires an instructor to evaluate a continuing education course, and a provision was added to allow the TEA to approve a continuing education course presented by technology if it meets certain criteria. In addition, a cross-reference to subclauses within the section was corrected. In response to public comment, subsection (a)(1)(J)(i) was modified at adoption to clarify that a course owner shall update all course content methodology with the latest available data. In addition, a technical edit was made at adoption to correct grammar in subsection (a)(3)(A)(iii)(V).

Section 176.1109, Specialized Driving Safety Courses of Instruction, was amended to require course content to contain appropriate language and clarify submission of translator credentials or other requirements for translation of course content into languages other than English. Changes were also made to require statistical data to be drawn from the Texas Department of Transportation or National Highway Traffic Safety Administration, update course authorship requirements, delete language that requires an instructor to evaluate a continuing education course, and allow the TEA to approve a continuing education course presented by technology if it meets certain criteria. In addition, a cross-reference to subclauses within the section was corrected.

Section 176.1110, Alternative Delivery Methods of Driving Safety Instruction, would be amended to add references to 19 TAC §176.1109 and update cross-references relating to mastery of course content. Requirements would be added to specify that student activity in an ADM must be documented and include the date and time and that an ADM presented over the Internet must display the school name, school license number, course provider name, and course provider license number on the homepage and registration page. A change was made to require, rather than allow, a specified number of minutes for relevant videos. The amendment also clarified the due date of ADM renewal. In response to public comment, subsection (f)(6) was modified at adoption to clarify where course identification information must be displayed for ADMs presented over the Internet.

Section 176.1113, Facilities and Equipment, was amended to specify that the TEA will not approve any facility that contains an adult-oriented business or a facility that is required to exclude patrons because of age.

Section 176.1114, Student Complaints, was amended to require that uniform certificates of course completion contain TEA complaint contact information. In response to public comment, subsection (c) was modified at adoption to correspond with the change to §176.1105(b)(11) made at adoption.

Section 176.1117, Uniform Certificate of Course Completion for Driving Safety or Specialized Driving Safety Course, was amended to delete the requirement that a course provider must retain voided certificates for three years and remove an unnecessary cross-reference.

Technical edits were also made throughout the subchapter.

FISCAL IMPACT:

The TEA has determined that there will be fiscal implications for state government, small businesses, and individuals providing driving instruction under the Texas Transportation Code, §521.205.

The total estimated cost to the state is $97,000 in fiscal year 2011, $120,000 in fiscal year 2012, $50,000 in fiscal year 2013, $31,000 in fiscal year 2014, and $29,000 in fiscal year 2015. These estimated costs include personnel costs of $75,000 for fiscal year 2011, $95,000 for fiscal year 2012, $25,000 for fiscal year 2013, and $9,000 in each year of fiscal years 2014 and 2015; travel costs of $7,000 in fiscal year 2011, $10,000 in each year of fiscal years 2012 and 2013, $7,000 in fiscal year 2014, and $5,000 in fiscal year 2015; and other operating expenses of $15,000 in each year of fiscal years 2011-2015. The personnel costs involved are for the review, approval, and auditing of curriculum updates to the Minor and Adult Driver Education Course, the Alternative Method of Delivery for the Minor and Adult Driver Education Course, and the new Driver Education Course Exclusively for Adults. The travel costs are for the auditing and monitoring of courses by compliance staff. The operating expenses include driver education certificate printing costs for the new course. The TEA anticipates an increase in applications for fiscal years 2011 and 2012 but a decrease after the first two years.

The rule actions may cause an increase in revenue for the state. The estimated increase is $325,000 in each year of fiscal years 2011 and 2012 and $250,000 in each year of fiscal years 2013-2015. Beginning March 1, 2010, each person aged 18 to 25 is required to successfully complete a 6-hour Driver Education Course Exclusively for Adults and present a certificate (ADE-1317) to the Department of Public Safety in order to apply for a driver's license. Since March 1, 2010, the TEA has sold over 70,000 certificates to licensed commercial driver education schools at $3.00 per certificate. It is estimated that the TEA will sell a minimum of 25,000 additional certificates by the end of fiscal year 2010. This will increase revenue by approximately $285,000. The number of certificate sales will likely increase in fiscal years 2011 and 2012 but is expected to decrease and level off after that.

The estimated cost to individuals required to comply with the rule actions is $250 in each year of fiscal years 2011-2015. In addition to the 32 hours of classroom instruction, 7 hours of behind-the-wheel instruction, and 7 hours of observation with a licensed driver education instructor, parents are now required to provide their teenager with an additional 20 hours of behind-the-wheel instruction in order for them to apply for a driver's license. It is estimated that individuals will spend approximately $150 in gas and wear and tear on their personal vehicles. Adults between the ages of 18 and 25 are required to take a 6-hour Driver Education Course Exclusively for Adults in order to apply for a driver's license. The average cost of this course is $100.

The TEA has determined that there may be adverse economic impact for small businesses and microbusinesses. The estimated cost to small businesses and/or microbusinesses is $11,800 in fiscal year 2011 and $500 in each year of fiscal years 2012-2015. All licensed driver education schools are required to update their driver education curriculums, which will cost an estimated $1,500. If the school owners wish to offer the Driver Education Course Exclusively for Adults, they would have to pay either a $500 fee for a traditional course or a $9,000 fee for an online course. The schools would also have to purchase ADE-1317 certificates at $3.00 per certificate. Once the school has been licensed and the driver education course has been updated, reviewed, or approved, the only cost will be for certificates. The TEA estimates that between 1-100 small businesses and between 101-500 microbusinesses (businesses with fewer than 20 employees) would be impacted by expenses related to compliance, modifying processes, and hiring additional employees. Microbusinesses would be no more adversely impacted than small businesses.

The rule actions may cause an increase in revenue to small businesses and microbusinesses depending on the number of customers a school receives. A school may provide instruction to students numbering between zero to more than 4,000 or 5,000 depending on how aggressively the school pursues customers. The TEA anticipates that an average of 120,000 to 130,000 students will take the new Driver Education Course Exclusively for Adults in order to apply for a driver's license.

No regulatory flexibility analysis will be conducted under the Texas Government Code, §2006.002. The revisions are explicitly required by state mandate. There is no flexibility in implementing these new statutory requirements; therefore, no regulatory flexibility analysis can be performed.

PUBLIC AND STUDENT BENEFIT:

The adopted revisions to 19 TAC Chapter 176, Subchapters AA and BB, bring regulatory consistency to all driver education courses in the state. The rule actions that authorize the online driver education courses also make these courses more readily available to the general public. Currently, driver education courses exclusively for adults are unavailable in many parts of the state. In addition, the rule actions that authorize motorcycle safety and driving distractions will provide a safer driving environment for Texas drivers.

PROCEDURAL AND REPORTING IMPLICATIONS:

The adopted revisions add no new reporting requirements for school districts. Driver training school owners already track the issuance of certificates, and the adopted revisions add no new reporting requirements. The procedural changes parallel those already found in the driver education rules and in driving safety rules for ADMs.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:

The adopted revisions have no locally maintained paperwork requirements.

PUBLIC COMMENTS:

The public comment period on the proposal began September 24, 2010, and ended October 25, 2010. Attachment IV reflects a summary of public comments received and corresponding agency responses regarding the proposed revisions to 19 TAC Chapter 176, Subchapters AA and BB.

ALTERNATIVES:

None.

OTHER COMMENTS AND RELATED ISSUES:

None.

Staff Members Responsible:

Raymond F. Glynn, Deputy Commissioner, School District Leadership and Educator Quality
Jerel Booker, Associate Commissioner, Educator and Student Policy Initiatives
Julie Harris-Lawrence, Deputy Associate Commissioner, Educator Performance and Student Affairs
Chris Jones, Senior Counsel, Legal Services
Victor Alegria, Director, Driver Training Division

For additional information, email rules@tea.state.tx.us.

Page last modified on 8/30/2011.