The rule action presented 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 CC, Commissioner's Rules on Minimum Standards for Operation of Texas Drug and Alcohol Driving Awareness Programs. The adopted revisions update program requirements and statutory references and reflect changes requested by industry members. No changes were made to the rules since published as proposed.

STATUTORY AUTHORITY:

Texas Education Code (TEC), §1001.053 and §1001.103.

EFFECTIVE DATE:

February 26, 2009.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:

Vernon's Texas Civil Statutes (VTCS), Article 4413(29c), §4A, relating to drug and alcohol driving awareness programs (DADAPs), was added by the 76th Texas Legislature, 1999. Rules in 19 TAC Chapter 176, Driver Training Schools, Subchapter CC, Commissioner's Rules on Minimum Standards for Operation of Texas Drug and Alcohol Driving Awareness Programs, were adopted to be effective December 26, 1999, to implement statutory requirements for the program. Subchapter CC sets forth requirements relating to general provisions, definitions, school licensure and responsibilities, instructor licenses, programs of instruction, student enrollment forms, facilities and equipment, records, and application fees and other charges. The rules have not been amended since adoption.

VTCS, Article 4413(29c), §4A, was codified in the TEC as §1001.103 by the 78th Texas Legislature, 2003. The Texas Education Agency (TEA) conducted its statutorily-required review of rules in 19 TAC Chapter 176 in the fall of 2007 and identified the need for changes in Subchapter CC to bring rules into alignment with the TEC, §1001.103, which specifies that a DADAP must be offered in the same manner as a driving safety course. Statutory authority citations and references within the rules must be updated to reflect the re-codification of driver and traffic safety laws to the TEC, Chapter 1001. In addition, informal stakeholder discussions were held during summer and winter of 2007 with current DADAP owners. Input was also solicited from all driver training industry members.

The following adopted revisions to 19 TAC Chapter 176, Subchapter CC, update program requirements and statutory references and include changes requested by the driver training industry. The adopted revisions are allowed under the provisions of the TEC, §1001.053 and §1001.103.

Section 176.1201, General Provisions, is amended to clarify the applicability of rules in 19 TAC Chapter 176, Subchapter BB, Commissioner's Rules on Minimum Standards for Operation of Licensed Texas Driving Safety Schools and Course Providers, to DADAPs.

Section 176.1202, Definitions, is amended to revise, add, and delete definitions. The adopted amendment clarifies what is meant by course provider, pre-program and post-program exam, driver training, clock-hour, program validation question, personal validation question, drug and alcohol driving awareness program, and drug and alcohol driving awareness school. The adopted amendment also adds language to the definition of "Good Reputation" that is consistent with driving safety rules and defines public and private schools for the purposes of Chapter 176, Subchapter CC.

Section 176.1203, Drug and Alcohol Driving Awareness School Licensure, is amended to update references and terms. The adopted amendment includes clarification regarding the effective date of licenses.

Section 176.1204, Drug and Alcohol Driving Awareness School Responsibilities, is amended to add new language to address provisions for course providers. The adopted amendment clarifies the responsibilities of the course provider and of the school that are consistent with the applicable driving safety rules. The section title is also updated.

Section 176.1205, Drug and Alcohol Driving Awareness Program Instructor License, is amended to incorporate updates to licensing requirements. The adopted amendment eliminates the requirement that a DADAP instructor maintain training or work experience within 36 months. This is consistent with the rules governing other driver training instructors. In addition, the adopted amendment specifies that instructors who want to add another DADAP endorsement to a license shall submit evidence of two additional hours of training from the course provider of the drug and alcohol driving awareness program curriculum that the instructor will be licensed to teach. The adopted amendment also includes a provision to allow the commissioner to revoke the license of an instructor who exhibits certain inappropriate behaviors. The section title is also updated.

Section 176.1206, Programs of Instruction, is amended to incorporate updates to standards for DADAPs and instructor development programs. The adopted amendment allows DADAP courses to be offered in languages other than English. The adopted amendment also increases the number of students in a DADAP class from 36 to 50. This class size is consistent with that approved for a driver safety course. In addition, the adopted amendment includes specific criteria for post-program exams. The section title is also updated.

Section 176.1209, Records, is amended to include reference to a course provider.

Section 176.1210, Application Fees and Other Charges, is amended to include the application, processing, and licensing fees for alternative delivery methods (ADMs).

New §176.1211, Alternative Delivery Methods of Drug and Alcohol Driving Awareness Program Instruction, is added to provide for ADMs for an approved DADAP course. This new section allows the commissioner to approve the method of delivery and instruction of drug and alcohol awareness program instruction electronically or over the Internet. ADM course providers will submit an application to the TEA for review and approval. The adopted new rule provides detailed criteria for an acceptable ADM program. The adopted criteria are consistent with the criteria already used for approval of ADMs of driving safety courses.

No changes were made to the rules since published as proposed.

FISCAL IMPACT:

The TEA has determined that there will be fiscal implications to the state and business entities as a result of the adopted new rule on ADMs. There will be no fiscal implications for local school districts or persons.

The total estimated cost to the state is $4,000 each year in fiscal years 2009 and 2010 and $2,000 each year in fiscal years 2011-2013. This estimated cost includes personnel costs of $3,000 in each year of fiscal years 2009 and 2010 and $1,000 in each year of fiscal years 2011-2013 and travel costs of $1,000 each year in fiscal years 2009-2013. The personnel costs involved are for the review, approval, and auditing of DADAP courses and ADMs for such courses. The travel costs are for support of the compliance specialists who do the actual work of monitoring, auditing, and enforcing the statute and rules. Also, the rule actions will result in an estimated increase in revenue of $9,000 each year in fiscal years 2009 and 2010. Business entities that choose to pursue ADMs for approved DADAP courses will be required to pay a $9,000 application fee for such courses. The TEA estimates receiving two such applications over the next 24 months.

The estimated costs to the program owners and licensed schools are $20,000 in fiscal year 2009, $16,800 in fiscal year 2010, and $6,000 each year in fiscal years 2011-2013. The estimated costs are for application and approval costs that must be paid by program owners and licensed schools. In addition, there are annual costs associated with obtaining, assigning, tracking, and reporting certificates of program completion that will be borne by the program owners and licensed schools. The estimated costs for fiscal years 2009 and 2010 include the $9,000 application fee for an ADM plus ancillary costs involved in administration of such programs. Although the authority to assess and collect fees existed in the original and codified statutory language, the TEA had not previously proposed or collected such fees for ADMs for DADAP courses. Based on industry requests for closer regulation and the approval of ADMs for instruction, the TEA determined that it would be necessary to propose and collect fees for ADMs to ensure there would be no adverse fiscal impact on the state. The fees parallel those found in the driving safety industry, as required by language in the TEC, §1001.103, that reads, in part, "Except as provided by agency rule, a program must be offered in the same manner as a driving safety course." The TEA has determined that fees must be assessed to continue the mandate that the TEA division responsible for driver training be self-funded.

The TEA has also determined that there may be further economic impact for small businesses or microbusinesses as a result of the rule action; however, there is not enough information available to determine whether there may be an increase in or loss of revenue because the concept of ADMs in DADAP courses is too new to make a determination. Some small and/or microbusinesses will experience losses or gains based on their business plan and follow through regardless of the rule action. The cost of compliance is less of a factor than the execution of a viable business plan. Microbusinesses would be no more adversely impacted than small businesses. The TEA estimates that between 1-100 microbusinesses (businesses with fewer than 20 employees) could be impacted for expenses related to compliance costs, which would include application and approval fees and annual costs associated with obtaining, assigning, tracking, and reporting certificates of program completion that will be borne by the program owners and licensed schools. These costs will include the $9,000 application fee for an ADM in fiscal years 2009 and 2010 plus ancillary costs involved in administration of such programs.

In accordance with Texas Government Code, §2006.002, the TEA conducted a regulatory flexibility analysis, assessed alternatives to the proposed new ADM rule to diminish the impact on microbusinesses, and determined the following. The changes are being made at the request of small businesses and microbusinesses. DADAP course providers will not be required to offer instruction through ADMs; therefore, the rule action will not affect small businesses or microbusinesses that do not choose to pursue ADMs. The rule actions will only affect businesses choosing to participate, and it is assumed that their costs will be covered by an income stream generated by the changes in the rule actions. Businesses involved will be allowed to provide classes over the Internet or other technology reducing labor costs by the amount paid normally to an instructor. This change also benefits students who currently do not have access to a school locally. Additionally, the TEA has not adopted all of the same fees as those that exist in driving safety in order to have the least possible impact on small businesses and microbusinesses in Texas.

PUBLIC AND STUDENT BENEFIT:

The adopted revisions to 19 TAC Chapter 176, Subchapter CC, bring regulatory consistency to the DADAPs that are now taught in public and driver training schools. The adopted revisions, particularly the new rule that authorizes ADMs, make the program available through every computer in the state. Currently, DADAP classes are unavailable in many parts of the state, and the number of schools that offer the program are fewer even in metropolitan areas.

PROCEDURAL AND REPORTING IMPLICATIONS:

Program owners already track the issuance of certificates and the adopted revisions add no new reporting requirements. Procedurally, the adopted new ADM rule for DADAPs is parallel to the existing ADM rule for driving safety. Industry members who choose to offer DADAPs via alternate delivery methods would be on a level playing field as in driving safety courses.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:

None.

PUBLIC COMMENTS:

The public comment period on the proposal began on November 14, 2008, and ended December 15, 2008. No public comments were received.

ALTERNATIVES:

None.

OTHER COMMENTS AND RELATED ISSUES:

None.

Staff Members Responsible:

Adam Jones, Deputy Commissioner, Finance and Administration
Lee Deviney, Director, Financial Projects
Victor Alegria, Director, Driver Training

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

Page last modified on 8/30/2011.