11-3000-15593-1
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF TRANSPORATION
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In the Matter of Proposed Permanent Rules Relating to Special Transportation Service,
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REPORT OF THE ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge Barbara L. Neilson conducted a hearing on these rules beginning at 9:00 a.m. on December 16, 2003, at the Minnesota Department of Transportation Office of Freight and Commercial Vehicle Operations Training Room, 1110 Centre Point Curve, Mendota Heights, Minnesota. The hearing continued until everyone present had an opportunity to state his or her views on the proposed rules.
The hearing and this Report are part of a rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking process to ensure that state agencies have met all the requirements that Minnesota law specifies for adopting rules. Those requirements include assurances that the proposed rules are necessary and reasonable and that any modifications that the agency made after the proposed rules were initially published do not result in them being substantially different from what the agency originally proposed. The rulemaking process also includes a hearing, when a sufficient number of persons request one. The hearing is intended to allow the agency and the administrative law judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate.
The agency panel was comprised of Michael McKay, Program Team Leader; Fred “Buzz” Danzl, Credentialing Section Supervisor; and Laura Nehl-Trueman, Rule Coordinator. All the members of the agency panel are employed by the Minnesota Department of Transportation (“Mn/DOT” or “the Department”). Seventeen members of the public attended the hearing. Eleven persons signed the hearing register.
After the hearing ended, the record remained open for twenty days, until January 5, 2004, to allow interested persons and the Agency an opportunity to submit written comments.[2] During this initial comment period the Administrative Law Judge received three written comments. Following the initial comment period, the record remained open for an additional five business days to allow interested persons and the Agency the opportunity to file a written response to the comments submitted. The deadline for responses to the comments was January 12, 2004. One responsive comment was received. The hearing record closed for all purposes on January 12, 2004.
This Report must be available for review to all interested persons upon request for at least five working days before the Department takes any further action on the proposed amendments. When the rules are filed with the Secretary of State, the Department shall give notice on the day of filing to all persons who requested that they be informed of the filing.
Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:
1. In 1979, the Legislature established the special transportation service program. Minn. Stat. § 174.30, subd. 2, requires the Commissioner of Transportation to adopt rules that set operating standards for vehicles, drivers, and attendants who provide special transportation service. Minn. Stat. § 174.29, subd. 1, defines “special transportation service” as motor vehicle transportation designed exclusively or primarily to meet the needs of persons who are elderly, handicapped, or disabled and who are unable to use regular means of transportation but do not require ambulance service. In 1981, Mn/DOT adopted rules to establish standards for those required to be certified to operate special transportation services. Those rules were modified in 1983 and 1992.
2. In this rulemaking proceeding, Mn/DOT is proposing to amend the special transportation service rules in order to clarify and update them, conform them to changes in statute, render them consistent with other Mn/DOT motor carrier programs, and address concerns raised by providers and others. The proposed amendments to the rules include adoption of a uniform certificate of insurance consistent with a requirement in Federal Department of Transportation rules; modification of the standards to be met by drivers and attendants; equipment and inspection requirements for vehicles used in special transportation services; certification standards for continuing education courses and instructors; and sanctions and procedures for rule noncompliance.
3. On December 23, 2002, Mn/DOT published a Request for Comments on Possible Amendments to Rules Governing Special Transportation Service, Minnesota Rules, Chapter 8840 at 27 State Register 982.[3] Mn/DOT mailed the Request for Comments to those individuals on the Agency’s rulemaking mailing list and to a separate mailing list of affected and interested parties specific to this rulemaking.[4] The Request for Comments informed interested persons how to submit input on the proposed rules. A draft of the proposed rules was posted on the Department website and the web address of the draft was noted in the Request for Comments.
4. On October 15, 2003, Mn/DOT requested approval of its Additional Notice Plan and asked that a hearing be scheduled in this matter. Administrative Law Judge Barbara L. Neilson approved the Department’s Notice of Hearing and Additional Notice Plan on October 20, 2003.[5]
5. On October 27, 2003, Mn/DOT mailed the Notice of Hearing to all persons and associations who had registered their names with the agency for the purpose of receiving such notice, and to the interested and affected parties mailing list for this rulemaking.[6]
6. On October 27, 2003, Mn/DOT mailed the Statement of Need and Reasonableness to the Legislative Reference Library.[7] Also on October 27, 2003, the Notice of Hearing was mailed to certain legislators who are chairs or ranking minority members of committees with jurisdiction over the subject matter of the rules.[8]
7. On the day of the hearing, Mn/DOT placed the following documents into the record:
a. Request for Comments as published at 27 State Register 982 on December 23, 2002;[9]
b. Proposed Permanent Rules Relating to Special Transportation Service (dated October 2, 2003);[10]
c. Statement of Need and Reasonableness (dated October 22, 2003);[11]
d. Certificate of Mailing the Statement of Need and Reasonableness to the Legislative Reference Library (letter dated October 27, 2003);[12]
e. Notice of Hearing as Mailed;[13]
f. Notice of Hearing and Proposed Rules as published at 28 State Register 567 on November 3, 2003;[14]
g. Certificate of Mailing the Hearing Notice to the Rulemaking Mailing List (dated October 27, 2003);[15]
h. Certificate of Accuracy of the Mailing List (dated October 27, 2003);[16]
i. Certificate of Giving Additional Notice Pursuant to the Additional Notice Plan (dated October 27, 2003);[17]
j. Comments received following publication of the Notice of Hearing;[18]
k. Certificate of Sending the Notice and the Statement of Need and Reasonableness to the Legislators (dated October 27, 2003);[19]
l. Proposed Rule Modifications (December 16, 2003);[20] and
m. Agency Statement of introductory comments at the hearing (dated December 16, 2003).[21]
8. The Administrative Law Judge finds that Mn/DOT has met all of the procedural requirements under the applicable statutes and rules.
9. Minnesota Statutes section 14.131 requires that an agency include in its SONAR a description of its efforts to provide additional notification to persons or classes of persons who may be affected by the proposed rule or explain why these efforts were not made. Mn/DOT made significant efforts to inform and involve interested and affected parties in this rulemaking through the following actions:
a. The Request for Comments published on December 23, 2002, notified interested parties of the subject matter of the rules, the persons likely to be affected, the web address to obtain a draft of the proposed amendments, and how to comment on the possible rule amendments;[22]
b. The Request for Comments was mailed to a list of interested and affected parties, including: certified special transportation service (STS) providers; certified STS instructors; organizations, associations, and individuals representing the elderly, handicapped, and disabled persons; insurance companies; public libraries in Minnesota; and the Mn/DOT mailing list;[23]
c. Mn/DOT posted the draft rules on the agency web site (and identified the address in the Request for Comments). Written copies of the draft rule were provided upon request;[24]
d. An Additional Notice Plan was proposed for providing notice of the proposed adoption of these rules. That Plan was approved by the Administrative Law Judge on October 20, 2003;[25] and
e. Mn/DOT complied with the terms of the Additional Notice Plan by widespread distribution of the Notice of Hearing to the identified groups in the plan and dissemination of the information about the rulemaking through press releases to a variety of media outlets.
10. The Administrative Law Judge finds that Mn/DOT made appropriate efforts to provide additional notice and followed its additional notice plan.
11. Minn. Stat. § 174.30 sets out the Department’s authority to adopt rules governing special transportation services. The statute states, in relevant part, as follows:
Subd. 2. Rules. (a) The commissioner of transportation shall adopt by rule standards for the operation of vehicles used to provide special transportation service which are reasonably necessary to protect the health and safety of individuals using that service. The commissioner, as far as practicable, consistent with the purpose of the standards, shall avoid adoption of standards that unduly restrict any public or private entity or person from providing special transportation service because of the administrative or other cost of compliance.
(b) Standards adopted under this section must include but are not limited to:
(1) qualifications of drivers and attendants, including driver training requirements that must be met before a driver provides special transportation;
(2) safety of vehicles and necessary safety equipment;
(3) general requirements concerning inspection and maintenance of vehicles, replacement vehicles, standard vehicle equipment, and specialized equipment necessary to ensure vehicle usability and safety for disabled persons; and
(4) minimum insurance requirements.
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Subd. 4. Vehicle and equipment inspection; decal.
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(c) The commissioner shall provide in the rules procedures for inspecting vehicles, removing unsafe vehicles from service, determining and requiring compliance, and reviewing driver qualifications.
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Subd. 5. Rules. The rules authorized under this section shall be adopted in accordance with the provisions of the Administrative Procedure Act, sections 14.001 to 14.69.
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12. The Administrative Law Judge finds that these statutory provisions give Mn/DOT ample authority to adopt the proposed rules.
13. Minnesota Statutes, Section 14.131 requires an agency adopting rules to include in its SONAR:
(1) a description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;
(2) the probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;
(3) a determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule;
(4) a description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule;
(5) the probable costs of complying with the proposed rule, including the portion of the total costs that will be borne by identifiable categories of affected parties, such as separate classes of governmental units, businesses, or individuals;
(6) the probable costs or consequences of not adopting the proposed rule, including those costs or consequences borne by identifiable categories of affected parties, such as separate classes of government units, businesses, or individuals; and
(7) an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.
14. With respect to the first factor, Mn/DOT indicated in its SONAR that those who will primarily be affected by the proposed rule changes are certified STS providers, applicants for certification, drivers and attendants employed by STS providers, companies that insure providers, and persons who offer or teach training courses to STS drivers and attendants.[26] Users of STS will be indirectly affected through the improvement of quality and safety of the services provided.[27] The Department also pointed out that STS providers, certified instructors, and drivers and attendants who pay for their own training or physical examinations will bear the costs of the proposed rules. Beneficiaries of the proposed rules will be STS providers, drivers, attendants, insurance companies, certified instructors, and persons who use STS.[28] Mn/DOT also indicated that the general public will benefit from the proposed rules.
15. With respect to the second factor, Mn/DOT anticipates that increased costs to the agency will be “nominal.”[29] Costs, if any, will come from additional staff training regarding the new requirements and additional inspection and enforcement provisions. There will be no costs to other State agencies caused by these rules. Mn/DOT anticipates that there will be no effect on state revenues.[30]
16. With respect to the third and fourth factors, the Department maintains that the proposed rule amendments contain the least costly and the least intrusive methods of achieving the purposes and goals of the regulations. While a less costly or less intrusive method would be not to propose the additional rules at all, the Department contends that the proposed rules meet the objective of increasing safety and addressing particular problems with the existing rules. The Department does not believe that the additional cost of the proposed rules, if any, will unduly restrict any entity from providing STS. Moreover, where feasible, the Department has reduced some requirements where doing so did not interfere with safety or where the Department could obtain the information by other means. The Department did consider alternative methods of achieving the purpose of the proposed rules, but rejected them as being too costly, not justified, or inconsistent with other practices in the motor carrier industry.[31]
17. With regard to the fifth regulatory factor, the Mn/DOT expects that the costs to STS providers will increase due to the requirements for criminal background checks and licensing checks for drivers. Mn/DOT limited the financial impact by proposing to require only that certain classes of drivers be checked. The cost of the required physical examination will be borne either by the provider or passed on to the individual driver. However, the cost of the USDOT physical may be spread out by existing drivers over a two-year period. The cost of complying with the vehicle identification marking requirements will depend on the method the provider chooses (e.g., stenciling or peel-off stickers).[32]
18. Regarding the sixth factor, i.e., the costs of not adopting these rules, Mn/DOT indicated that obsolescence of the existing rules and reduced levels of safety would be among the costs or consequences associated with not adopting the rules. The Department believes that the benefits gained by the proposed rule amendments exceed the potential costs associated with this rulemaking.[33]
19. Finally, with respect to the seventh factor, Mn/DOT indicated that no federal regulations govern STS. Mn/DOT incorporated by reference some of the Federal Motor Carrier Safety regulations.[34] Accordingly, there is no conflict between the proposed rules and any federal rules.
20. Minnesota Statutes, Section 14.131, requires that an agency include in its SONAR a description of how it “considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Section 14.002 states, in relevant part, that “whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.”
21. In its SONAR, Mn/DOT’ indicated that its goal is to adopt rules that are reasonably necessary to protect the health and safety of individuals using STS. Mn/DOT attempted to develop the proposed rule amendments in a manner that is consistent with these goals while at the same time balancing the industry’s need for cost containment. Although the Department attempted to build in flexibility where possible, it contends that a true performance-based approach is not practicable because too much flexibility would expose those using STS services to unsafe conditions. Despite this, the Department has proposed some flexibility in the rule amendments by permitting variety in continuing education, multiple sources of background checks, varying approaches to marking vehicles, and easing or eliminating the requirements of specific items that must be kept in STS vehicles.
22. The Administrative Law Judge concludes that Mn/DOT has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.
23. Under Minnesota law,[35] one of the determinations that must be made in a rulemaking proceeding is whether the agency has established the need for and reasonableness of the proposed rules by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[36] Mn/DOT prepared a Statement of Need and Reasonableness (SONAR) in support of its proposed rules. At the hearing, Mn/DOT primarily relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments. The SONAR was supplemented by comments made by Mn/DOT staff at the public hearing, and by the Department’s written post-hearing comments and submissions.
24. The question of whether a rule has been shown to be reasonable focuses on whether it has been shown to have a rational basis, or whether it is arbitrary, based upon the rulemaking record. Minnesota case law has equated an unreasonable rule with an arbitrary rule.[37] Arbitrary or unreasonable agency action is action without consideration and in disregard of the facts and circumstances of the case.[38] A rule is generally found to be reasonable if it is rationally related to the end sought to be achieved by the governing statute.[39]
25. The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[40] An agency is entitled to make choices between possible approaches so long as the choice made is rational. Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[41]
26. In addition to need and reasonableness, the administrative law judge must assess whether the Department complied with rule adoption procedure; whether the rule grants undue discretion; whether the Department has statutory authority to adopt the rule; whether the rule is unconstitutional or illegal; whether the rule constitutes an undue delegation of authority to another entity; or whether the proposed language is not a rule.[42]
27. Minnesota law allows an agency to withdraw a proposed rule, or a portion of a rule, at any time prior to filing it with the Secretary of State,[43] “unless the withdrawal of a rule or a portion of the rule makes the remaining rules substantially different.”[44]
28. The standards to determine whether changes create a substantially different rule are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced . . . in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the . . . notice of hearing and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.”
29. In determining whether modifications are substantially different, the Administrative Law Judge is to consider whether “persons who will be affected by the rule should have understood that the rulemaking proceeding . . . could affect their interests,” whether the “subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the . . . notice of hearing,” and whether “the effects of the rule differ from the effects of the proposed rule contained in the . . . notice of hearing.”
30. Any substantive language that differs from the rule as published in the State Register has been assessed to determine whether the language is substantially different. Because some of the changes are not controversial, not all of the altered language has been discussed. Any change not discussed is found to be not substantially different from the rule as published in the State Register.
31. This Report is limited to discussion of the portions of the proposed rules that received critical comment or otherwise need to be examined, and it will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that each and every suggestion, including those made prior to the hearing, has been carefully read and considered. Moreover, because some sections of the proposed rules were not opposed and were adequately supported by the SONAR, a detailed discussion of each section of the proposed rules is unnecessary.
32. The Administrative Law Judge finds that the Mn/DOT has demonstrated, by an affirmative presentation of facts, the need for and reasonableness of all rule provisions not specifically discussed in this Report. The Administrative Law Judge also finds that all provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
8840.5100 Definitions.
33. Minn. Rule 8840.5100 sets out the definitions of terms used in the STS rules. Subpart 17 of the existing rules defines “special transportation service” as “motor vehicle transportation provided on a regular basis by a public or private person that is designed exclusively or primarily to serve individuals who are elderly, handicapped, or disabled and who are unable to use regular means of transportation.” The proposed rule adds the phrase “but do not require ambulance service, as defined in Minnesota Statutes, section 144E.001, subdivision 3.” The proposed rule also adds, “Special transportation service includes, but is not limited to, service provided by specially equipped buses, vans, taxis, and volunteers driving private automobiles as provided for in Minnesota Statutes, section 174.29, subdivision 1.”
34. Jay McCloskey, on behalf of the Special Transportation Service Association (STSA), urged that other facilities be included under the STS certification process. Day training and habilitation facilities and nursing homes were identified as being engaged in transportation without STS certification. Mn/DOT responded that entities eligible for certification are identified in statute and therefore, the action requested cannot be accomplished by rule.[45]
35. Minn. Stat. § 174.30, subd. 1(b), exempts certain facilities, including nursing homes licensed under Minn. Stat. § 144A.02, board and care facilities licensed under Minn. Stat. § 144.50, day training and habilitation facilities, day cares, and group home facilities licensed under Minn. Stat. § 245A.01-245A.09, unless the facility or program provides transportation to nonresidents on a regular basis and the facility receives reimbursement other than per diem payments for that service. The exemption thus applies when these facilities are transporting their own clients. As a result, Mn/DOT would be precluded by statute from extending the STS rules to encompass these types of facilities, and its decision not to take such action is well founded.
36. The new language clarifying that “special transportation service” is designed primarily to serve those who do not require ambulance service is consistent with the definition of “special transportation services” set forth in Minn. Stat. § 174.29. The definition is derived directly from the governing statute. Mn/DOT has shown that this proposed definition of a key term used in the rules is both necessary and reasonable.
8840.5400 Certificate of Compliance, General Requirements.
37. Subpart 1 of Minn. Rule 8840.5400 requires STS providers to have a current annual certificate of compliance before providing service. Vehicles used in STS are required to be inspected under the subpart. The proposed amendment to subpart 1 adds a requirement to display a decal required by a 1995 amendment to Minn. Stat. § 174.30, subd. 4. Mn/DOT proposes to delete an existing 30-day exemption to the inspection requirement for newly manufactured vehicles without wheelchair securement devices because the exemption conflicts with the statute requiring that all vehicles be inspected and issued a decal before providing special transportation service. Mn/DOT also proposes to delete language in the current rules giving the Commissioner of Public Safety authority to inspect wheelchair securement devices in STS vehicles because the Legislature gave the Department of Transportation that authority in 1995.
38. Subpart 1 of the proposed rules, as amended, has been shown to be needed and reasonable to ensure that the rules conform to the governing statute.
8840.5500 Certificate of Compliance Application.
39. Part 8840.5500 requires STS providers to apply for a new or renewed certificate of compliance using forms provided by Mn/DOT. Subpart 1 specifies where the application forms may be obtained and where they must be sent. Subpart 2 sets out the information that must be provided by the applicant on the application form. Mn/DOT is proposing changes to subpart 2 to require that the provider give the name of its business including any assumed name filed with the Secretary of State; the vehicle identification number, license plate number, and gross vehicle weight rating for each STS vehicle used; the number of wheelchair securement positions for each vehicle; and contact information for the person responsible for day-to-day operation of the service. Under the proposed rules, the applicant would need to set forth the names of corporate directors and officers, partners, board members, and owners of the applicant’s business and indicate whether any of those individuals have had a certificate of compliance suspended, denied, canceled, or revoked during the preceding year. No one objected to the requirement that this information be included on the application form. Mn/DOT explained that this information was necessary to verify that vehicles are proper for use by an STS provider, determine what vehicle construction standards will apply to a given vehicle, verify that the provider’s certification is correct, and ensure that individuals who have had a prior certificate revoked or unable to circumvent the revocation process by applying under a different business name. This portion of the proposed rules has been shown to be needed and reasonable.
40. Item B of Subpart 2 requires that certain documentation be filed with the application for a certificate of compliance (if not already on file). The proposed rules require that the documentation include evidence of insurance coverage on the provider’s vehicle in the amount specified on the Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance (known as Form E) under 49 C.F.R. § 1023. Mn/DOT indicated in the SONAR that the Form E certificate is preferable because it is an umbrella policy that covers all of the vehicles owned by the carrier, whether listed on a policy or not; it is written by an underwriter after a more extensive application and questionnaire process; and it provides for continuous certification and a thirty day notice of cancellation to the Department. The Department also explained in the SONAR that the changes in insurance documentation were necessary to remedy problems experienced in the past.[46]
41. STSA supported the Form E requirement, but expressed concern about how quickly the transition could be accomplished. STSA urged that providers be given an extension of time to make that filing. Michael Weidner, Executive Director of the Minnesota Paratransit Providers Association (MPPA), supported the Form E requirement and stated that, based upon information he had obtained from the members of the organization and their insurance agents, there would not be any additional cost associated with the use of Form E. He did, however, oppose more than a 30-day extension of time to implement the Form E filing requirement.[47]
42. In its post-hearing comments, Mn/DOT added a “special effective date” for the Form E filing requirement that specifies that subpart 2, item B, subitem (1) would be effective 60 days after the fifth working day after the notice of adoption of the rules is published in the State Register.[48] The 60-day period was proposed as “a reasonable amount of time for the insurance industry and the providers to prepare for implementation of the insurance provisions.”[49]
43. The proposed rule, as modified, is needed and reasonable to ensure that providers have adequate insurance covering all of their vehicles and Mn/DOT receives notice of cancellation. The extension of the effective date of this provision is needed and reasonable to afford adequate time to implement the Form E filing requirement. The need for an extension of the effective date of this provision was discussed at the hearing and does not constitute a substantial change in the text of the rule as published in the State Register.
44. Subpart 5 sets out the information to be recorded on the certificate when that document is issued to the STS provider. The existing language of the rule includes a requirement for identifying each certified vehicle on the certificate. At the hearing, Mn/DOT proposed to delete the requirement that each vehicle be listed on the certificate. In support of this change, Mn/DOT explained that the current rule requiring that all vehicles be listed results in a lengthy certificate of compliance, and stated that Mn/DOT may, in the future, wish to change the size of the certificate or convey the vehicle listing to the public in an electronic or separate format. The amendment is intended to afford Mn/DOT the flexibility to achieve improvements in the program.[50] Mn/DOT stated that the vehicle listings will continue to be maintained and will be available to providers and customers. Since Mn/DOT has shown that there is a need for flexibility in the format of the certificate and the vehicle information will continue to be made available, the proposed change has been shown to be both needed and reasonable. The new language was discussed at the hearing and does not amount to a substantial change in the text of the rule as originally published in the State Register.
8840.5525 Issuance and Expiration of Certificate of Compliance.
45. Part 8840.5525 sets out the process for issuing, denying, and extending certificates of compliance. Subpart 1 states:
The commissioner shall process all applications and a certificate of compliance issued or denied in writing within 30 days of the receipt of the completed application and documentation required by the commissioner.
The SONAR indicates that the 30-day issuing time period has been applied under the current rule as well, and the material in this new rule part was relocated from part 8840.5500, subpart 4 of the existing rules.[51]
46. It appears that the rule language should be clarified by adding the phrase “shall be” before the phrase “issued or denied . . . .” With the addition of this language, subpart 1 of the proposed rules has been shown to be needed and reasonable. The addition of this language is merely grammatical and will not result in a rule that is substantially different from the rule as originally published in the State Register.
47. Subpart 2 requires the Commissioner of Transportation to issue a certificate of compliance to an applicant meeting the rule requirement, “except the commissioner “may not issue a certificate of compliance” if any of three disqualifying factors occurs (revocation of a certificate during the past 180 days; a false, misleading, or fraudulent statement in the application; or the applicant’s failure to provide all requested data). The list of disqualifying factors is both needed and reasonable to ensure that persons who have previously had certificates revoked are not able to receive a new certificate during the period of revocation, certificates are not granted if the application contains false statements, and applicants who fail to provide the necessary information are not issued a certificate.
48. Although the SONAR states that “[t]he commissioner shall deny a certificate to an applicant if the conditions in items A, B, or C occur,”[52] the language of the proposed rule simply says that the Commissioner may not issue the certificate if any of the three disqualifying events occur. The use of the phrase “may not” in the proposed rule suggests that the Commissioner is permitted to exercise some discretion in deciding whether or not to issue a certificate of compliance to an applicant with a disqualifying factor. Mn/DOT has not shown that there is any reason for the Commissioner to exercise discretion where one of the disqualifying factors is present. In fact, as noted above, it appears, based upon the discussion of this rule part in the SONAR, that the Department intends to the contrary. The use of the phrase “may not” rather than “shall not” in this context may create unfettered discretion[53] and permit decision-makers to treat persons who are in similar situations differently. The rule subpart does not set forth any standards to govern the exercise of discretion by the Commissioner in such a circumstance. The use of “may not” thus constitutes a defect in the proposed rule.[54] The defect can be cured by replacing “may not” with “shall not.” The suggested language renders the rule needed and reasonable and would not make the rules substantially different than originally proposed.
49. Subpart 4 states that, “[i]f a provider’s certificate of compliance is denied, revoked, or canceled, the provider must reapply as provided in part 8840.5500.” This language is awkward since it appears to obligate a provider to reapply, even if a certificate of authority is no longer sought. The SONAR indicates that the Department intended to make clear in this portion of the proposed rules that a provider whose certificate has been denied, revoked, or canceled must submit a new application and not simply rely upon a prior application that may contain incorrect or outdated information. Consistent with this intent, the Administrative Law Judge suggests changing the language of subpart 4 to read, “If a provider’s certificate of compliance is denied, revoked, or canceled and the provider wishes to reapply, the applicant must submit a new application under part 8840.5500.” The suggested modification in the language of this subpart is not required to correct a defect, but would make the rule more consistent with Mn/DOT’s intent. The proposed rule, as modified, would not result in a rule that is substantially different than the rule as originally proposed, and has been shown to be needed and reasonable.
50. Subpart 5 specifies that a certificate of compliance expires one year from the date of its issuance and authorizes the Commissioner of Transportation to exercise discretion in extending the period of the certificate for up to thirty days, “for good cause.” “Good cause” is defined in the subpart as “circumstances beyond control or circumstances that were not reasonably foreseeable, such as a serious physical or mental incapacity or illness.” This language establishes discretion, with appropriate limits, and with properly described examples of the term defined. The one-year time period is consistent with Minn. Stat. § 174.30, subd. 4a, which requires the Mn/DOT to “annually evaluate or provide for the evaluation of each provider of special transportation service regulated under this section and certify that the provider is in compliance with the standards under this section.” Subpart 5 is needed and reasonable as proposed.
8840.5800 Enforcement: Violations, Suspensions, Revocations, and Cancellations.
51. Part 8840.5800 sets out the process for imposing sanctions on certified providers that violate the standards governing STS. Suspension and revocation are described in subparts 3 and 3a. In the proposed rules, Mn/DOT seeks to add failure to maintain insurance as an additional ground for suspension. Mn/DOT also seeks to add as grounds for revocation of the certificate of compliance situations in which a provider has “committed a pattern of violating the standards that shows a willful or reckless disregard for the health and safety of persons who use special transportation service.” No one objected to these aspects of the proposed rules. The Department has shown the need for and the reasonableness of these additional grounds for suspension and revocation.
52. Mn/DOT proposed adding a new subpart 3b that sets out the factors the Commissioner must consider in making the determination whether to revoke a certificate of compliance. The factors include the willfulness of the violations; the seriousness of the violations, including whether they resulted in or were likely to result in passenger injuries or vehicle accidents; the provider’s history of violations; and “other factors as justice may require if the commissioner specifically identifies the additional factors in the commissioner’s order.” This language, while broad, provides adequate direction to the Commissioner of Transportation to limit discretion and specific notice to the certified provider as to what conduct is being relied upon for the revocation. Subpart 3b is needed and reasonable as proposed.
53. Proposed subpart 3c relates to the sanction of cancellation of the certificate of compliance. Under the proposed rules, cancellation would be imposed where the provider failed to renew a certificate of compliance, knowingly made a material statement that was false or fraudulent, or failed to maintain insurance after a notice of suspension was issued. It is evident under part 8840.5525, subp. 5, that a certificate of compliance is renewable on an annual basis and will be cancelled one year from the date it was issued. Mn/DOT listed this basis for cancellation in subpart 3c of the proposed rules as well, in order to identify in one rule location all of the actions that will result in cancellation. The specification in the proposed rules that the certificate of compliance will be cancelled if an applicant knowingly makes a material statement that is false or fraudulent stems from Mn/DOT’s past problems with applicants providing false information about ownership and control of their company and falsifying drivers’ training certificates.[55] The insurance standard for cancellation is integrated with the changes proposed to part 8840.6000, subparts 7-11. Part 8840.6000 provides for a 45-day suspension of a provider’s certificate of compliance if the provider fails to maintain and file with the Commissioner the insurance required by this chapter of the rules. In order to avoid permanent cancellation of the certification, the provider must either comply with the rules by filing proof of insurance or request a hearing within 45 days of the date of suspension. The proposed rules also specify in subpart 9 that the certificate is deemed abandoned and must be canceled if the insurance is not obtained within 45 days. Subpart 3c of part 8840.5800 has been shown to be needed and reasonable as proposed.
54. As initially proposed, subpart 6 required that the Commissioner mail notice of suspension, revocation, or cancellation of a certificate of compliance to the provider’s last known address, and required that the notice include a concise statement of the facts alleged to constitute a violation, a reference to the law that had been violated, and a statement of the person’s right to review of the order. In its post-hearing comments, Mn/DOT noted that proposed part 8840.6000 contained a duplicate notice provision. To eliminate the redundant language, Mn/DOT proposed that subpart 6 of part 8840.6000 be deleted and that an item D be added to part 8840.5800, subpart 6, that specifies that the notice must also include the effective date of the sanction being imposed. The modifications to subpart 6 of part 8840.5800 and the deletion of part 8840.6000, subpart 6, are needed and reasonable to ensure that STS providers receive adequate notice when adverse action is proposed to be taken against them by Mn/DOT and improve the clarity of the rules by consolidating the notice provision in a single rule. The new language does not result in a rule that is substantially different from the rule as originally published in the State Register.
8840.5900 Driver Qualifications.
55. Part 8840.5900 of the proposed rules set forth the standards that STS drivers must meet in terms of their physical health, driving record, licensure for the class of vehicle operated, age and experience, and criminal history. The current rules require drivers to have an occupational physical examination before operating an STS vehicle and every two years thereafter. The current rules also specify that drivers must have vision and hearing tests and must have “no medical condition which interferes with the ability to drive safely.” Mn/DOT believes that more consistent guidelines are needed so that physicians are conducting similar physical examinations. Accordingly, the proposed rules amend subpart 1 to require that drivers meet the U.S. Department of Transportation Federal Motor Carrier Safety Administration physical qualifications standards set forth in 49 C.F.R. § 391.41, paragraphs (a) and (b), which is incorporated by reference in the proposed rules. Before driving an STS vehicle providing special transportation, a driver would be required under subpart 1a to have a valid medical examiner’s certificate under 49 C.F.R. § 391.43, which is also incorporated by reference in the proposed rules. The Commissioner of Transportation is allowed to grant waivers under subpart 1b if a person is not found to be physically qualified to drive under 49 C.F.R. §391.41, but is determined to be otherwise qualified to drive. In addition, under subpart 1c, a driver who has a driver’s license with a valid school bus endorsement may rely upon that endorsement rather than furnishing a medical examiner’s certificate under subpart 1a.
56. Andre Masson of Allina Medical Transportation objected to the requirement in the proposed rules that STS drivers have a valid medical examiner’s certificate because it excludes other physical examinations (such as the Airman’s examination) from qualifying for rule compliance. In the SONAR, the Department explained that the USDOT physical requirements are very specific and outline in detail the medical conditions that may interfere with the ability to safely operate a motor vehicle. During the hearing and in its post-hearing comments, Mn/DOT explained that other physical examinations such as the Airman’s physical were not compatible with the USDOT requirements and thus did not meet the need of ensuring the safety of STS passengers. The Department indicated in its SONAR that there already is a trend among STS providers to require the USDOT physical of their drivers, and asserted that the USDOT physical is the standard physical in the motor carrier industry.[56] For safety reasons, and consistent with the best interests of both STS providers and their customers, drivers of STS vehicles must be physically fit. Mn/DOT has shown that it is needed and reasonable to incorporate the federal physical examination standard for commercial drivers developed by the USDOT, and that there is no need to expand the rule to include other specific examinations.
57. Prior to the hearing and in a post-hearing comment, Barbara Green, Director of Transportation Services for the American Red Cross of the Saint Paul Area (Red Cross), objected to the physical examination requirement being applied to volunteer drivers and urged that it be restricted to paid drivers. The American Red Cross submitted a similar written comment during the Request for Comments stage. The Red Cross maintained that the physical examinations that volunteers already undergo through their own doctors are adequate for determining their physical health and ability to drive, and asserted that requiring an additional physical exam for volunteers will make it difficult to bring on new volunteer drivers and will result in the imposition of additional costs on volunteers or the Red Cross. The Red Cross asserted that higher administrative costs will result in less transportation services being provided.[57] Mn/DOT responded that it saw no reason to treat volunteer drivers differently than paid drivers as far as their physical health and the need to protect customers. Regarding the potential for increased costs, Mn/DOT recommended obtaining volunteer services from medical professionals to perform the required examinations. Moreover, the Department pointed out in its SONAR[58] that Mn/DOT enforcement staff have experienced problems with STS drivers under the current physical exam requirements, which rely heavily on the opinion of each particular doctor rather than the specific requirements and guidelines used by the USDOT. The Administrative Law Judge concludes that the Department has shown that it is needed and reasonable to apply the physical examination requirement to all drivers, whether paid or volunteer.
58. The existing rules establish 18 years of age and one year of experience as a licensed driver as the minimum requirement for STS drivers. The proposed rules create a separate subpart 1f for this requirement and make a small grammatical change in the language. At the hearing, Dale Victor, Interim President for the Special Transportation Association (STA), suggested changing the standard for drivers to 21 years of age and requiring three years of driving experience. Mn/DOT pointed out that the only change it had proposed making to this subpart was technical in nature, and that raising the age limit would constitute a substantial change in the proposed rule. The Department also indicated that the industry standard for other for-hire motor carrier operations is 18 years of age and emphasized that employers are free to impose additional age or experience requirements for drivers they hire.[59]
59. The Department has shown that the small technical amendment to subpart 1f is needed and reasonable to clarify the rules. Altering the rules to change the allowable age of drivers would result in the rule being significantly different from the rule as originally published in the State Register. Advance notice of such a change would be required to ensure that affected persons could comment on the effects of altering the rule.
60. At the hearing, Mn/DOT proposed to modify the language of proposed subpart 1h as published to correct an inadvertent deletion of the phrase “criminal record” and to expand the definition of that term. Subpart 1h as originally proposed specified that a driver must “not have been convicted of, and must not have pleaded guilty to, either crimes against persons or crimes reasonably related to providing special transportation services” and defined “criminal record” to mean “conviction records in which the last date of discharge from the criminal justice system is less than 15 years.” The Minnesota Bureau of Criminal Apprehension (MBCA) recommended that the proposed rule be clarified by referring to conviction records maintained both by the MBCA and other states’ criminal history repository. To clarify the definition of “criminal record,” the Department modified the proposed rules at the hearing to define criminal record to mean “the conviction records of the Minnesota Bureau of Criminal Apprehension or other states [sic] criminal history repository in which the last date of discharge from the criminal justice system is less than 15 years.”[60] This language is needed and reasonable and does not constitute substantially different language from the text of the proposed rule as originally published in the State Register. It is noted that a typographical error should be corrected by adding an apostrophe after the word “states.”
61. MPPA, STA, and other commentators requested that Mn/DOT include alcohol and controlled substance testing as part of the driver qualifications rule. Mn/DOT responded that drivers who obtain a commercial driver license must, under federal rules, meet alcohol and controlled substance testing standards. Mn/DOT declined to include such testing for all STS drivers due to the increased cost that would be incurred by providers. In its post-hearing comment, Mn/DOT noted that any provider that wishes to require alcohol and controlled substance testing as a term or condition of employment is free to do so.[61] In the SONAR, Mn/DOT noted in passing that some STS providers require their drivers to submit to alcohol and controlled substance testing even though it is not required as part of the USDOT physical exam or current state rules.[62] Mn/DOT also maintained that adding the suggested testing requirement would be a substantial change in the proposed rules, although it indicated that it will consider imposing a drug-testing requirement in future rules or statutory amendments.
62. There is no information in this rulemaking record that would allow Mn/DOT to establish standards to require alcohol and controlled substance testing, nor is there any information in the record that tends to show an ongoing problem in this area with STS drivers. Although Mn/DOT may wish to consider engaging in future rulemaking on this issue, the failure of the proposed rules involved in this proceeding to encompass alcohol and controlled substance testing does not render them defective.
63. Subpart 2a of the proposed rules clarifies that STS providers must obtain and review the driving and criminal records of their drivers before using or hiring a driver. The original version of the proposed rules continued the requirement in the current rules that driving records of employees be reviewed on an annual basis, but changed the review of criminal records to a biennial rather than annual basis. The MPPA, STA, and STSA objected to the change and urged Mn/DOT to retain the requirement that criminal records be reviewed annually. Mn/DOT considered the commentators’ proposal and agreed in its post-hearing comments to withdraw the proposed change. The Department had originally proposed the change based upon its belief that providers wanted to change the requirement to every two years. Since many providers no longer believe that a two-year background check is in the best interests of the STS industry, and in light of the comments at the hearing, Mn/DOT withdrew the amendment to subpart 2a regarding the biennial criminal background check and reverted to the current rule’s provision for an annual background check. The Administrative Law Judge finds that it is necessary and reasonable to retain the existing annual background check. The modification to the proposed rules was made in response to public comment during and after the hearing and does not result in a rule that substantially different from the rule as originally published in the State Register.
64. At the hearing, Mn/DOT proposed to modify subpart 2a to correct cross-references and refer to other state’s criminal records as “criminal history repository records.”[63] The change in terminology was suggested by the MBCA. The new language is needed and reasonable and does not constitute substantially different language from the text of the rule as published in the State Register.
8840.5910 Driver and Attendant Training Requirements.
65. Part 8840.5910 establishes training and continuing education standards for STS drivers and attendants. Subpart 2 requires drivers and attendants to complete four hours of first aid training. As initially proposed, that training was required to be provided by the American Red Cross or American Heart Association. The American Health and Safety Institute submitted a prehearing comment indicating that its organization also should be recognized as an authorized provider. At the hearing, Mn/DOT modified subpart 2 to delete references to specific first aid trainers and substitute references to “a certified instructor.” References to repealed rules were deleted and a reference to Minn. Stat. § 144E.27 added. The new language affords needed flexibility in application of the rule and provides proper cross-references. The proposed rule, as modified, has been shown to be needed and reasonable and does not constitute a substantially different rule from the rule as originally proposed.
66. MPPA supported the training requirements set forth in the proposed rules. STSA suggested that the rule could be clarified by stating that the required hours of continuing education could be obtained at any time over a three-year period. Mn/DOT confirmed that the intent of the rule was to allow drivers and attendants to complete the required continuing education credits at any time over the three-year period, and asserted that no additional rule language is needed to address this concern. The Administrative Law Judge agrees that no clarification is needed in the rule language.
67. In its post-hearing comment, Mn/DOT proposed a change to the continuing education standard in subpart 9. The new language explicitly requires the refresher first aid or emergency-care course and continuing education to be completed every three years. The new language removes potential confusion from the rule. The rule, as proposed and modified, has been shown to be needed and reasonable. The modification does not result in a rule that is substantially different from the text of the rule as originally published in the State Register.
68. Items A through D of subpart 9 specify the particular hours of instruction required in specific areas. The current rules require drivers and attendants to complete a refresher first aid course, passenger assistance, and abuse prevention training every three years. The total number of hours required every three years under the current rules is 12 or 16 hours, depending on which passenger assistance training is taken. Under the proposed rules, the total number of refresher course hours that will be needed is 15 hours, seven hours of which will be courses that are continuing education credits.
69. Jack Larson, Director of Arrowhead Transit, objected to the proposed increase in refresher training hours from 12 hours to 15 hours. Arrowhead Transit specifically objected to requiring a refresher course in defensive driving every two years. It estimated that the additional training requirements would cost $600 per year for Arrowhead Transit’s 45 drivers, not counting logistical costs stemming from the need to use other drivers to cover the routes of drivers who are engaged in training.
70. Mn/DOT responded that STS providers widely supported the defensive driving standard during the development of the proposed standards. Moreover, the Department pointed out that the total number of continuing education hours required of drivers transporting wheelchair-bound passengers is actually reduced by one hour in the proposed rules from the existing standard.[64] The proposed rules will give drivers and attendants flexibility in choosing areas of training. In addition, because the rules do not prescribe the content of continuing education courses, providers will have flexibility to create their own training program.[65] The continuing education standards in subpart 9 are needed and reasonable, and it does not appear that the minimal increase associated with the rule amendment would unduly restrict any entity from providing STS services because of cost issues.
8840.5925 Vehicle Equipment.
71. Part 8840.5925 sets forth requirements relating to safety equipment, ramps, wheelchair lifts, securement devices, and vehicle identification that must be carried on STS vehicles when they are in use. Subpart 1 of the current rules requires that each vehicle carry a dry chemical fire extinguisher with not less than a 5B:C rating. That type of extinguisher contains five pounds of chemical agent and is appropriate for use in putting out liquid and electrical fires. The proposed rules did not make any change in this rating. STSA recommended that the minimum required device be rated 10A:B:C. STSA indicated that, in addition to having twice the extinguishing capacity, the higher rated extinguisher is also more effective against solid combustibles such as wood and paper.
72. In its post-hearing response, Mn/DOT indicated that the current rule was the result of a change in 1992 that conformed the STS standard to that required of other motor carriers under 49 C.F.R. § 393.95(2)(ii).[66] The 1992 change was based on the agency’s belief that the extinguisher offered adequate protection at a lesser cost for small business providers.[67] Mn/DOT noted that rule provision is a minimum standard and that providers are free to carry extinguishers that have higher ratings. The Administrative Law Judge concludes that the portion of the proposed rules relating to the fire extinguisher to be carried has been shown to be needed and reasonable as proposed.
73. Item E of subpart 1 requires the use of an approved child-restraint system when children aged four or younger are transported by an STS provider. As originally proposed, the rule exempted taxicabs from this requirement. MPPA, STA, and STSA objected to the exemption of taxicabs from the child-restraint requirement. Mn/DOT agreed with the suggestion and indicated that it would make the requested modification by deleting the taxicab exemption, provided that the change was not found to be a substantial change by the Administrative Law Judge. Mn/DOT pointed out that the rule would only require the use of the child-restraint system when a taxi was operating as an STS operator and was dispatched to transport a young child. Moreover, the rule would not require that the vehicle be equipped with the system at all times but merely would require that the child-restraint system be “available.” As modified, item E is needed and reasonable. The notice of hearing provided fair warning that the rule part governing vehicle equipment was proposed for amendment. The modification made by Mn/DOT is within the scope of the matter announced in the notice of hearing and is a logical outgrowth of the comments submitted in response to the notice of hearing. The modification of the language of the rule made after the hearing thus does not constitute an impermissible substantial change in the rule.
74. The rules as originally proposed sought to amend Subpart 5 to delete a reference to a repealed rule and restate the substance of the repealed rule. The subpart, as originally amended, required that vehicles carrying occupied stretchers or litters must be “equipped with restraining devices for the stretcher and all seating places in the vehicle.” Allina Medical Transportation urged that the rule be modified to identify what device should be installed. After considering the comment, Mn/DOT acknowledged that proposed rule does not accomplish the agency’s intent. Mn/DOT consulted with the Emergency Services Medical Regulatory Board regarding what language might be appropriate. In its post-hearing comments, Mn/DOT modified subpart 5 to require that vehicles that carry occupied stretchers or litters comply with requirements for securement devices set forth in Minn. Stat. § 144E.103, and the federal ambulance standards referenced in Minn. Rule 4690.1500, subp. 2. As modified, subpart 5 establishes needed and reasonable securement requirements for STS vehicles that carry stretchers. The rule continues to require that providers follow the required ambulance securement standards. The modifications suggested by the Department after the hearing do not result in a substantial change to the rule as originally proposed.
75. The proposed rules add a new subpart 6 requiring that each STS vehicle display on both sides of the vehicle the provider’s business name and USDOT number or, if the provider does not have one, the STS certificate number. The name and numbers must be legible from a distance of 50 feet. Mn/DOT indicated in its SONAR that the identification of vehicles is required of other motor carriers regulated by the Department under Minn. Stat. § 221.031 and 49 C.F.R. § 390.21.[68] The Department indicated that vehicle identification requirements for STS providers would render that program consistent with the requirements of other state and federal motor carriers, ease the Department’s enforcement efforts, increase safety for those using STS services, and discourage the operation of unauthorized STS providers.
76. MPPA expressed support for the vehicle identification requirement and noted that variances should be available in appropriate cases. Arrowhead Transit objected to the registration number requirement on the grounds that it would add unnecessary costs, based in part on its understanding that the STS certificate number changes every year. Mn/DOT stated in response that the STS certificate number does not, in fact, change from year to year.
77. Objections to the display of the provider’s name on the vehicle were expressed by Colleen Bjerke, Director of Programs for the Minnesota AIDS Project; David Rompa, Director of the Minnesota Department of Human Services’ HIV/AIDS Division; Gerry Tyrrell, LISW, Lead Case Manager for Hennepin County Medical Center; and Reverend Paul Tucker and Andrea Jenkins, Co-chairs of the Minnesota HIV Services Planning Council. These commentators noted that confidentiality is a great concern among many individuals living with HIV and emphasized that, in particular, African-born people with HIV/AIDs often face severe social consequences if their medical status is known. They expressed concern that a requirement that the provider’s name be placed on vehicles would compromise that confidentiality and discourage their clients from using STS to go to health care and social service appointments that are necessary to maintain their health. The commentators suggested granting variances or requiring only that vehicles display the registration number as an alternative. John Dundon of Mobility of Disabled and Elderly, Inc., also noted that some of his passengers wanted the privacy afforded by vehicles without STS provider identification. MPPA supported the general rule that vehicles be marked with the provider’s name, but noted that variances should be made available to others where appropriate.
78. Mn/DOT proposed that the use of an assumed name (under the process established by the Minnesota Secretary of State) is an alternative to removing the name requirement. Under that process, a provider would register that it is doing business under another name. The assumed name would then be used on the vehicle, along with the actual registration number assigned to the provider. This approach affords some protection to customers who may not want it known that they are using a particular provider’s services. The Minnesota AIDS Project indicated that the use of an assumed name would not solve the problem for many clients, since that name would quickly become known throughout the community and clients frequently do not want others to know that they are eligible for any kind of special transportation. In addition, the Minnesota AIDS Project commented that clients for whom English is a second language would find the use of an assumed name difficult to understand. As an alternative, Mn/DOT suggested that providers request a variance using the process set forth in Minn. Rule 8840.6300.
79. Requiring passenger vehicles to bear legible markings identifying the carrier in some fashion is a widespread practice that improves passenger safety and public safety. This practice reassures passengers that the vehicle they are entering is, in fact, that of their certified STS provider.[69] Members of the public observing unsafe driving conduct can readily identity the vehicle by the affixed name when making a complaint.[70] Mn/DOT has provided reasonable alternatives for providers that afford reassurance to passengers who fear that social stigma will accompany the use of a particular service, including the availability of a variance from the rule requirement. The Administrative Law Judge concludes that subpart 6 has been shown to be needed and reasonable as proposed.
80. STSA suggested that transfer belts be required equipment for all vehicles. Transfer belts are strips of cloth that are wound around the waist of an attendant to provide a handhold for persons who have an unsteady gait. Mn/DOT concluded that there was no need for such a general requirement since only some passengers needed transfer belts and STS providers would be using them only where needed.[71] The omission of such a requirement does not render the proposed rules unreasonable.
8840.5950 Standards for Operation of Vehicles.
81. Part 8840.5950 sets out requirements for the operation of vehicles used in STS. The current rule requires vehicles to be inspected once per week or every 1,000 miles, whichever comes first. The proposed rules amend the list of items to be inspected to include the steering mechanism, exhaust system, frame, suspension, fuel system, and wheels and rims. Arrowhead Transportation objected to the new requirements, maintaining that this type of inspection can only be done by a mechanic and estimating that it would incur costs of about $150,000 annual to comply with the rule.[72] Mn/DOT responded that the weekly inspection did not need to be conducted by a mechanic but could simply be accomplished by the driver at no additional cost.[73] This is consistent with earlier statements made in the SONAR.[74] Mn/DOT has demonstrated that the requirement that an STS driver run through a weekly inspection checklist including the additional items is needed and reasonable to improve the likelihood that the vehicle is in good condition and may safely be used to transport customers. The Administrative Law Judge finds that the rule is needed and reasonable as proposed.
8840.6000 Insurance.
82. Part 8840.6000 sets out the requirements for obtaining a certificate of insurance. The proposed rules reference the Form E certificate requirement (discussed in earlier Findings) and set out the procedure for canceling or suspending certificates of compliance with the insurance standards. In its post-hearing comment, Mn/DOT proposed deleting “permanent” from a reference to “permanent cancellation” in subpart 5. The modification clarifies that a provider whose certificate is cancelled may reapply for certification. Subpart 6 has been deleted since the subpart’s language is incorporated in a modification to part 8840.5800 (as discussed in an earlier Finding). Part 8840.6000 has been shown to be needed and reasonable as modified. The new language does not constitute substantially different language from the text of the rule as published in the State Register.
8840.6200 Certification of Training Courses and Instructors.
83. Part 8840.6200 of the existing rules requires that training courses be approved by the Commissioner of Transportation before being offered to fulfill requirements under the STS rules and prescribes minimum standards that such courses must meet. The proposed rules also require approval by the Commissioner of particular instructors, specify a list of information required in applications for certification of a continuing education course, and require that continuing education courses be taught by a person who is knowledgeable in the specific topic of instruction by virtue of specialized training in the subject matter, teaching experience in that area, or work experience.
84. STSA supported the changes and recommended expanding the requirements to the other initial training programs that are required under part 8840.5910. In response, Mn/DOT indicated that it had not made any substantive amendments in the proposed rules to the course and instructor requirements for the initial training courses, nor had it received any requests to do so prior to the hearing. Mn/DOT also pointed out that the majority of the topics for the other training courses are already specified in rule part 8840.5910, whereas continuing education course topics are more variable. Because more information is needed in the application for continuing education courses, the Department believes that a more extensive application process for those courses is justified. Mn/DOT also emphasized that, if desired, complaints regarding allegedly substandard courses or instructors could be filed with the Department and the Department could take any necessary action. Accordingly, the Department declined to further amend the rules.[75]
85. The SONAR specifies that the certification process is needed to demonstrate the relevance of the continuing education topic, the education afforded, the curriculum provided, and the materials to be used.[76] The additional burdens imposed by the rule are unnecessary for training whose content is established by rule or statute. The Administrative Law Judge thus concludes that the proposed amendment to part 8840.6200 is needed and reasonable and that it is not rendered unreasonable by the failure to require similar certification of other types of training programs.
Authorization to Adjust Oxygen Tanks for Passengers.
86. At the hearing, Allina Medical Transportation and STA requested that Mn/DOT clarify requirements relating to the transportation of passengers using oxygen. STA asked the Department to clarify whether it is acceptable for an STS provider to transport a passenger after medical personnel set the oxygen level, even if the passenger is not able to adjust the level himself. Allina asked whether STS drivers and attendants may adjust the oxygen supply for passengers who require oxygen and are incapable of self-management, to avoid situations in which passengers experience distress while in transit.
87. In its post-hearing comments, Mn/DOT indicated that an STS provider is prohibited from providing “ambulance service” unless it is licensed to provide such service. “Ambulance service” is defined in Minn. Stat. § 144E.001, subd. 3, to mean “transportation and treatment which is rendered or offered to be rendered preliminary to or during transportation to, from, or between health care facilities for ill or injured persons or expectant mothers.” The definition goes on to state that the term “ambulance service” includes “all transportation involving the use of a stretcher, unless the person to be transported is not likely to require medical treatment during the course of transport.” In the Department’s view, “[u]sing the above ambulance standard, if the person is likely to require medical treatment during the course of transport then transportation by an ambulance and not STS is the method that must be used. Therefore, a provider may transport a person with an oxygen device if no medical treatment will be required during the course of transport.” The Department declined to further amend the rules, based on its belief that the current definitions of “ambulance” and “ambulance service” are sufficient guidance for providers transporting patients who require oxygen. Mn/DOT noted that it could address questions by providers regarding specific clients on a case-by-case basis.[77]
88. Mn/DOT does not have proper authority to promulgate a rule that conflicts with the statutory standard for the provision of ambulance services. Mn/DOT’s decision to address specific questions concerning the proper scope of STS on a case-by-case basis rather than through rulemaking is appropriate. The proposed rules are not rendered unreasonable by the Department’s decision not to amend them to address situations in which clients of STS providers use oxygen.
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:
1. The Minnesota Department of Transportation gave proper notice in this matter.
2. Mn/DOT has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural requirements of law or rule.
3. Mn/DOT has demonstrated its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1; 14.15, subd. 3; and 14.50 (i) and (ii), except as noted at Finding 49.
4. Mn/DOT has demonstrated the need for and reasonableness of the proposed rules by an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 4; and 14.50 (iii).
5. The modifications to the proposed rules which were suggested by Mn/DOT after publication of the proposed rules in the State Register do not result in rules that are substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. §§ 14.05, subd. 2 and 14.15, subd. 3.
6. The Administrative Law Judge has suggested action to correct the defect cited in Conclusion No. 3 as noted at Finding 49.
7. Due to Conclusion No. 3, this Report has been submitted to the Chief Administrative Law Judge for his approval pursuant to Minn. Stat. § 14.15, subd. 3 or 4.
8. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
9. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage Mn/DOT from further modification of the proposed rules based upon this Report and an examination of the public comments, provided that the rule finally adopted is based upon facts appearing in this rule hearing record.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the proposed rules be adopted, except where specifically otherwise noted above.
Dated: February 11, 2004
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Tape-Recorded; No Transcript Prepared
NOTICE
The Commissioner must wait at least five working days before taking any final action on the rules; during that period, this Report must be made available to all interested persons upon request.
Pursuant to the provisions of Minn. Stat. § 14.15, subds. 3 and 4, and Minn. R. 1400.2240, subp. 4, this Report has been submitted to the Chief Administrative Law Judge for his review. If the Chief Administrative LawJudge approves the adverse findings of this Report, he will advise the Commissioner of actions which will correct the defects and the Commissioner may not adopt the rules until the Chief Administrative Law Judge determines that the defects have been corrected. However, in those instances where the Chief Administrative Law Judge identifies defects which relate to the issues of need or reasonableness, the Commissioner may either adopt the Chief Administrative Law Judge’s suggested actions to cure the defects, or if the Commissioner does not elect to adopt the suggested actions, the statute requires the proposed rules be submitted to the Legislative Coordinating Commission and to the House of Representative and the Senate Policy committees with primary jurisdiction over state governmental operations for advice and comment.
If the agency chooses to follow the Chief Judge’s recommended corrections and makes the suggested changes and/or others in order to cure the defects found, the agency must resubmit the rules for review by the Chief Judge. The agency may not adopt the rules until the Chief Judge reviews all changes and determines that all defects have been corrected.
If the agency chooses to submit the rules to the Legislative Coordinating Commission and the legislative committees for review, the agency must wait at least 60 days after its submission before adopting the rules.
After the rules have been adopted, the Office of Administrative Hearings will file the rules with the Secretary of State. The agency must give notice of the rules filing to all persons who requested that they be informed.
[1] Minn. Stat. §§ 14.131 through 14.20.
[2] Minn. Stat. § 14.15, subd. 1.
[3] Ex. 1.
[4] Ex. 3 at 9.
[5] ALJ Letter, October 20, 2003; see also Ex. 9.
[6] Ex. 7.
[7] Ex. 4.
[8] Ex. 11.
[9] Ex. 1.
[10] Ex. 2.
[11] Ex. 3.
[12] Ex. 4.
[13] Ex. 5.
[14] Ex. 6.
[15] Ex. 7.
[16] Ex. 8.
[17] Ex. 9.
[18] Ex. 10.
[19] Ex. 11.
[20] Ex. 12.
[21] Ex. 13.
[22] Ex. 1.
[23] SONAR at 9.
[24] Id.
[25] SONAR at 10.
[26] SONAR at 3.
[27] Id.
[28] Id.
[29] Id.
[30]SONAR at 4.
[31] SONAR at 4-5.
[32] SONAR at 7.
[33]Id.
[34] SONAR at 8.
[35] Minn. Stat. § 14.14, subd. 2; Minn. R. 1400.2100.
[36] Mammenga v. Commissioner of Human Services, 442 N.W.2d 786 (Minn. 1989); Manufactured Housing Institute v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984).
[37] In re Hanson, 275 N.W.2d 790 (Minn. 1978); Hurley v. Chaffee, 231 Minn. 362, 43 N.W.2d 281, 284 (1950).
[38] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[39] Mammenga, 442 N.W.2d at 789-90; Broen Memorial Home v. Minnesota Department of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).
[40] Manufactured Housing Institute v. Pettersen, 347 N.W.2d at 244.
[41] Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 233 (1943).
[42] Minn. R. 1400.2100.
[43] Minn. Stat. § 14.05, subd. 3.
[44] Minn. R. 1400.2240, subp. 8.
[45] Mn/DOT Post-Hearing Comment at 13.
[46] SONAR at 21-23.
[47] MPPA Comment at 1.
[48] Mn/DOT Post Hearing Comments at 1
[49] Id.
[50] Ex. 12.
[51] SONAR at 24.
[52] Id.
[53] See Lee v. Delmont, 228 Minn. 101, 113, 36 N.W.2d 530, 538 (1949) (discretionary power may be delegated to administrative officers “[if the law furnishes a reasonably clear policy or standard of action which controls and guides the administrative officers in ascertaining the operative facts to which the law applies, so that the law takes effect upon these facts by virtue of its own terms, and not according to the whim or caprice of the administrative officers”); In re Appeal of Jongquist, 460 N.W.2d 915, 917 (Minn. App. 1990) (administrative officials are not allowed to base their actions on mere whim or their own impulse, regardless of how well-intentioned they might be)
[54] See, e.g., In the Matter of Proposed Rules Relating to the Release of Genetically Engineered Agriculturally Related Organisms, 7-0400-9285-1 (1995) (finding that the use of the term “may” in the proposed rule was defective because the rule “allowed the Commissioner to require termination and disposal of GEOs or not to so require, without a standard for decision”); In the Matter of the Proposed Permanent Rules of the Minnesota Department of Health Relating to Pools, 9-0900-9007-1 (1994) (finding that rule language stating that the Commissioner “may” require trained operators to obtain a certificate of competency, without language suggesting what standards are to be applied, was defective); In the Matter of the Proposed Permanent Rules Relating to Workers’ Compensation, 11-1900-8006-1 (1993) (a proposed rule stating that a party's request to change primary providers "may not [be] approved” where certain factors were present was found to be defective because the use of the phrase "may not" was found to create unfettered discretion).
[55] SONAR at 31.
[56] SONAR at 32-35.
[57] Red Cross Comment at 2.
[58] SONAR at 36-37.
[59] Mn/DOT Post-Hearing Comment at 3.
[60] Ex. 12 at 2.
[61] Mn/DOT Post-Hearing Comment at 2.
[62] SONAR at 35.
[63]Ex. 12 at 3.
[64] Mn/DOT Post-Hearing Comment at 4-5.
[65] SONAR at 45.
[66] Mn/DOT Post-Hearing Comment at 5.
[67] Id. at 6.
[68] SONAR at 47.
[69] SONAR at 47.
[70] Id.
[71] Mn/DOT Comment at 13.
[72] Arrowhead Transit Comment at 2.
[73] Mn/DOT Comment at 10.
[74] SONAR at 51.
[75] Mn/DOT Post-Hearing Comment at 10.
[76] SONAR at 59.
[77] Mn DOT Post-Hearing Comment at 12.