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SB-88 Pupil transportation: driver qualifications.(2023-2024)

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Date Published: 10/09/2023 09:00 PM
SB88:v91#DOCUMENT

Senate Bill No. 88
CHAPTER 380

An act to amend Section 49406 of, and to add Article 5 (commencing with Section 39875) to Chapter 1 of Part 23.5 of Division 3 of Title 2 of, the Education Code, relating to pupil transportation.

[ Approved by Governor  October 07, 2023. Filed with Secretary of State  October 07, 2023. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 88, Skinner. Pupil transportation: driver qualifications.
(1) Existing law requires the driver of a school pupil activity bus, as defined, to be subject to the regulations adopted by the Department of the California Highway Patrol governing schoolbus drivers, except as specified.
This bill would place various requirements upon a driver who provides certain transportation services for pupils, including, among others, by requiring these drivers to submit and clear tuberculosis risk assessments, as provided. The bill would require any vehicle used to provide pupil transportation for compensation by a local educational agency, as defined, to be inspected, as specified, and to be equipped with a first aid kit and a fire extinguisher.
The bill would require any local educational agency contracting with a private entity to provide pupil transportation to obtain from the private entity a written attestation that, among other things, it not have any applicable law violations, as defined, at the time of applying for the contract and that it will maintain compliance with applicable laws, as defined, for the duration of the contract. The bill would authorize a third party to report to the relevant local educational agency that the private entity the local educational agency contracted with has failed to provide a truthful attestation or has failed to maintain compliance with the applicable laws required for the duration of the contract, as specified.
The bill would apply the above-mentioned provisions to all drivers employed by a local educational agency, contracted by a local educational agency, or contracted by any entity with funding from a local educational agency, providing school-related pupil transportation, as defined, for compensation. The bill would not apply the above-mentioned provisions to (A) drivers of specified entities, (B) certain persons who are compensated to drive a pupil, (C) a school employee of a local educational agency when the employee provides transportation to pupils due to or because of the employee’s supervision of pupils for a field trip, extracurricular activity, or athletic program, or when the employee provides transportation to pupils for other activities, not to exceed 40 hours of drive time per school year per employee, (D) a driver who transports a pupil because of certain emergencies or an immediate threat to the physical safety of the pupil, (E) a driver who transports a pupil if the transportation is being provided through a Foster Youth Services Coordinating Program while a pupil’s transportation plan is being finalized, or (F) a driver during a trip for which they are authorized by the local educational agency to transport one or more pupils for a field trip when the destination is more than 200 miles from the transported pupil’s California school campus, as specified.
To the extent that the above-mentioned requirements conflict with a contract entered into between a local educational agency and a private entity before January 1, 2024, the bill would not apply those requirements until the expiration or renewal of that contract. The bill would make the provision regarding the expiration or renewal of these contracts operative on January 1, 2024, while making the remainder of the above-mentioned provisions operative on July 1, 2025. By imposing new requirements on local educational agencies, the bill would constitute a state-mandated local program.
(2) Existing law requires a governing board or county superintendent of schools providing for the transportation of pupils under contract, as provided, or any other provision of law to require as a condition of the contract the tuberculosis risk assessment, as provided, except that, at the discretion of the governing board or county superintendent of schools, that provision does not apply to a private contracted driver who transports pupils infrequently without prolonged contact with the pupils.
This bill would delete that exception for private contracted drivers. The bill would additionally extend the requirement involving a tuberculosis risk assessment to the governing body of a charter school, as specified. At the discretion of the governing board, county superintendent of schools, or governing body of a charter school, the bill would not apply the requirement involving a tuberculosis risk assessment to a private contracted driver who transports pupils infrequently and without prolonged contact with the pupils before July 1, 2025. To the extent that the bill would impose a new requirement on charter schools, the bill would constitute a state-mandated local program.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Schoolbus drivers provide an important service to our pupils and their families. They ensure the safe transportation of pupils between home and school.
(2) Schoolbus drivers and school buses are heavily regulated by the State Department of Education, the Department of Motor Vehicles, and the Department of the California Highway Patrol.
(3) In recent years, some local educational agencies have entered into multiyear and multimillion dollar contracts with app-based companies, also known as transportation network companies, to perform home-to-school transportation and other pupil transportation.
(4) The Public Utilities Commission licenses and regulates transportation network companies. Transportation network companies provide prearranged transportation services for compensation using an online platform or smartphone application to connect drivers using their personal vehicles with passengers.
(5) The Public Utilities Commission does not regulate transportation network companies when the transportation of pupils is due to or based on a contract entered into with the governing board of a school district pursuant to the Education Code.
(6) Due to this unregulated space, transportation network companies and their drivers neither fall under the rules and regulations of the Public Utilities Commission, the State Department of Education, the Department of Motor Vehicles, nor the Department of the California Highway Patrol when performing the job and duties that, until recently, have only been performed by schoolbus drivers.
(b) For the health and safety of pupils and the public, it is the intent of the Legislature that there is parity in law that applies equally to all drivers, regardless of employer and employment status, who are compensated to transport pupils.

SEC. 2.

 Article 5 (commencing with Section 39875) is added to Chapter 1 of Part 23.5 of Division 3 of Title 2 of the Education Code, to read:
Article  5. Compensated Driver Requirements

39875.
 (a) Except as provided pursuant to subdivisions (b) to (g), inclusive, this article shall apply to all drivers employed by a local educational agency, contracted by a local educational agency, or contracted by any entity with funding from a local educational agency, providing school-related pupil transportation for compensation.
(b) Nothing in this article shall be construed to apply to a driver employed by any of the following:
(1) A municipally owned transit system offering supplementary service.
(2) A congregate care facility licensed by the State Department of Social Services.
(3) A county human services agency.
(4) An entity, excluding entities with a primary purpose of providing transportation services, serving pupils experiencing homelessness that is coordinated with the homeless continuum of care in counties that have one or otherwise designated to serve children who are homeless by a county without a continuum of care.
(5) A county probation agency.
(6) Another government agency, other than a local educational agency.
(7) A foster family agency, as defined in paragraph (4) of subdivision (a) of Section 1502 of the Health and Safety Code.
(8) A tribal authority.
(c) Nothing in this article shall be construed to apply to any of the following persons who are compensated to drive a pupil:
(1) A parent or relative as defined in paragraph (2) of subdivision (c) of Section 361.3 of the Welfare and Institutions Code, or a nonrelative extended family member as defined in Section 362.7 of the Welfare and Institutions Code.
(2) A guardian.
(3) A caregiver given temporary or permanent custody of the pupil by a court, child welfare agency, tribal authority, or county probation department.
(4) A court-appointed educational rights holder.
(5) A court-appointed special advocate.
(6) A pupil who drives themself.
(d) If both of the following occur, nothing in this article shall be construed to apply to a school employee of a local educational agency when the employee provides transportation to pupils due to or because of the employee’s supervision of pupils for a field trip, extracurricular activity, or athletic program, or when the employee provides transportation to pupils for other activities, not to exceed 40 hours of drive time per school year per employee:
(1) A local educational agency makes a reasonable effort to secure a driver who meets the requirements of this article.
(2) When a local educational agency is unable to secure a driver who meets the requirements of this article, the local educational agency informs the parent, guardian, or court-appointed educational rights holder of the pupil being transported that the driver transporting their pupil does not meet the requirements of this article, unless that notice will jeopardize a pupil’s privacy rights.
(e) Nothing in this article shall be construed to apply to a driver who transports a pupil who must be immediately transported to a facility in the case of a medical or psychiatric emergency, or in the case of pupils who need to be transported immediately as the result of an emergency that arises as a result of a fire, flood, earthquake, or epidemic, or because of any order of any military officer of the United States or of the state to meet an emergency created by war, or because of an immediate threat to the physical safety of the pupil or pupils. The exemption pursuant to this subdivision involving an epidemic shall only apply to each epidemic for a period lasting no longer than one month.
(f) Nothing in this article shall be construed to apply to a driver who transports a pupil if the transportation is being provided through a Foster Youth Services Coordinating Program while a pupil’s transportation plan is being finalized. The exemption pursuant to this subdivision shall apply for a period lasting no longer than one month after the first ride is provided to that pupil under this exemption.
(g) Nothing in this article shall be construed to apply to a driver during a trip for which they are authorized by the local educational agency to transport one or more pupils for a field trip when the destination is more than 200 miles from the transported pupil’s California school campus.

39877.
 (a) A driver who provides transportation services for pupils in a vehicle with a maximum capacity of 10 or fewer persons, including the driver, shall:
(1) Hold a valid California driver’s license for the appropriate class of vehicle.
(2) Be at least 18 years of age.
(3) Pass a criminal background check, including fingerprint clearance consistent with Section 45125 for employees and Section 45125.1 for all other compensated drivers.
(4) Have a satisfactory driving record that includes none of the following:
(A) Within three years, has committed any violation that results in a conviction assigned a violation point count of two or more, as defined in Sections 12810 and 12810.5 of the Vehicle Code.
(B) Within three years, has had their driving privilege suspended, revoked, or on probation for any reason involving the unsafe operation of a motor vehicle.
(C) Has been determined by the Department of Motor Vehicles to be a negligent or incompetent operator.
(5) Not have demonstrated irrational behavior to the extent that a reasonable and prudent person would have reasonable cause to believe that the driver’s ability to perform the duties of a driver may be impaired.
(6) Not have been convicted of an offense listed in paragraph (1) of subdivision (a) of Section 13370 of the Vehicle Code, paragraph (5) of subdivision (a) of Section 13370 of the Vehicle Code, or subdivision (b) of Section 13370 of the Vehicle Code.
(7) Provide their employer or the private entity contracting with the local educational agency a report showing the driver’s current public record as recorded by the Department of Motor Vehicles and participate in the Department of Motor Vehicles’ pull-notice system.
(8) Be subjected to and comply with drug and alcohol testing consistent with Section 34520.3 of the Vehicle Code, subject to the cannabis discrimination limitations described in Section 12954 of the Government Code.
(9) (A) Complete a medical examination not more than two years prior to the driver performing pupil transportation by a physician licensed to practice medicine, a licensed advanced practice registered nurse qualified to perform a medical examination, a licensed physician assistant, or a licensed doctor of chiropractic listed on the most current National Registry of Certified Medical Examiners, as adopted by the United States Department of Transportation. The driver shall provide a copy of the Medical Examiner’s Certificate, Form MCSA-5876, or the medical examiner’s certificate of clearance to their employer or the private entity contracting with the local educational agency. Neither the driver nor the medical examiner need to submit this examination result to the Department of Motor Vehicles.
(B) The driver shall complete a medical examination pursuant to this paragraph every two years after the initial examination and provide a copy of the Medical Examiner’s Certificate, Form MCSA-5876, or the medical examiner’s certificate of clearance to their employer or the private entity contracting with the local educational agency.
(C) Within the same month of reaching 65 years of age and each 12th month thereafter, the driver shall undergo a medical examination pursuant to this paragraph and provide a copy of the Medical Examiner’s Certificate, Form MCSA-5876, or the medical examiner’s certificate of clearance to their employer or the private entity contracting with the local educational agency.
(10) Submit and clear a tuberculosis risk assessment consistent with Section 49406.
(11) Not drive for more than 10 hours within a work period, or after the end of the 16th hour after coming on duty following eight consecutive hours off duty.
(12) Complete initial training and subsequent required training sufficient to gain proficiency in all of the following:
(A) Pretrip vehicle inspections.
(B) Safe loading and unloading of passengers.
(C) Proper use of seatbelts and child safety restraints.
(D) Handling accidents, incidents, and emergency situations.
(E) Providing proper accommodations for pupils with disabilities.
(F) Defensive driving.
(G) Operations in inclement weather.
(H) Operations at night or under impaired visibility conditions.
(13) Maintain a daily log sheet and complete the daily pretrip inspection of the vehicle being driven that day, which shall include all of the following:
(A) A check of the operability of all lights, initialed by the driver before the vehicle is first driven in service that day.
(B) A check for fluid leaks, initialed by the driver before the vehicle is first driven in service that day.
(C) A check for the operability of the brakes, initialed by the driver before the vehicle is driven in service that day.
(14) Complete training at least equivalent to the American Red Cross first aid training program, or hold a valid and current first aid certificate issued by the American Red Cross or by an organization whose first aid training program is at least equivalent to the American Red Cross’ first aid training program, as determined by the Emergency Medical Services Authority.
(b) For vehicles with a maximum capacity of eight or fewer passengers, excluding the driver, only street-legal coupes, sedans, or light-duty vehicles, including vans, minivans, sport utility vehicles, and pickup trucks, shall be used for pupil transportation.
(c) Nothing in this article shall limit any additional safety or training requirements that may be imposed by the Public Utilities Commission, a local educational agency, or any government agency.

39878.
 A driver who provides transportation services for pupils in a vehicle with a capacity of more than 10 persons, including the driver, shall:
(a) Hold a valid California commercial driver’s license for the appropriate class of vehicle, endorsed for passenger transportation pursuant to Section 15278 of the Vehicle Code.
(b) Comply with paragraphs (2) to (14), inclusive, of subdivision (a) of Section 39877 if they are not already required to by law.
(c) This article shall not reduce other legal requirements placed on any driver who provides transportation services for pupils in a vehicle with a capacity of more than 10 persons, including, but not limited to, a driver of a schoolbus or school pupil activity bus.

39879.
 (a) Any local educational agency contracting with a private entity to provide pupil transportation shall obtain from the private entity a written attestation to all of the following:
(1) That it not have any applicable law violations at the time of applying for the contract.
(2) That it will maintain compliance with applicable laws for the duration of the contract.
(3) That only drivers who meet the requirements of paragraphs (1) to (14), inclusive, of subdivision (a) of Section 39877 work, or will work, under the contract between the private entity and local educational agency.
(4) That it has on file all the reports and documents required pursuant to paragraphs (1) to (14), inclusive, of subdivision (a) of Section 39877 for the duration of the contract, including, but not limited to, updated, revised, or modified reports and documents. These reports and documents shall be available for inspection by the local educational agency or any other state regulatory agency at any time.
(b) A third party may report to the relevant local educational agency that the private entity the local educational agency contracted with has failed to provide a truthful attestation as required under subdivision (a) or has failed to maintain compliance with the applicable laws required for the duration of the contract. The third party shall provide documentation to substantiate their allegation before the local educational agency considers it.
(c) Any vehicle used to provide pupil transportation for compensation by a local educational agency shall meet both of the following:
(1) Be inspected every 12 months, or every 50,000 miles, whichever comes first, at a facility licensed by the Bureau of Automotive Repair to ensure that the vehicle passes a 19-point vehicle inspection, as adopted by the Public Utilities Commission and set forth in D.13-09-045, before allowing the vehicle to be driven. This requirement does not apply to vehicles owned or contracted with a local educational agency already subject to a statutory inspection program.
(2) Be equipped with a first aid kit and a fire extinguisher.

39880.
 (a) To the extent that the requirements of this article conflict with a contract entered into between a local educational agency and a private entity before January 1, 2024, this article shall not apply until the expiration or renewal of that contract.
(b) As used in this section, “local educational agency” means a school district, county office of education, charter school, entity providing services under a school transportation joint powers agreement, or regional occupational center or program.

39881.
 As used in this article, the following definitions apply:
(a) “Applicable law” means applicable California laws within the Labor and Workforce Development Agency’s jurisdiction related to the misclassification of employees as independent contractors, including the failure to pay wages, imposing unlawful expenses on employees, failure to provide workers’ compensation insurance, and failure to remit payroll taxes as required under the Unemployment Insurance Code as well as laws protecting worker health and safety.
(b) “Applicable law violation” means a violation that has a final determination, order, judgment, or award issued against a private entity for engaging in illegal conduct related to applicable laws and that remains unabated or unsatisfied following the period during which an appeal may be made.
(c) “Congregate care facility” means a community care facility, intermediate care facility, skilled nursing facility, or a short-term residential therapeutic program.
(d) “Local educational agency” means a school district, county office of education, charter school, entity providing services under a school transportation joint powers agreement, or regional occupational center or program.
(e) “School-related pupil transportation” means home-to-school transportation, field trips, after school program-related transportation, preschool and childcare-related transportation, athletic program-related transportation, extracurricular school activity-related transportation, or any transportation of pupils to or from a school campus.
(f) “Municipally owned transit system” means a transit system owned by a city, or by a district created pursuant to Part 1 (commencing with Section 24501) of Division 10 of the Public Utilities Code.
(g) “Supplementary service” means additional service provided by a municipally owned transit system for the purpose of ensuring the regular transit service is not impacted by large loads associated with pupil passengers traveling to or from schoolsites around school bell times.

39882.
 (a) Except as provided pursuant to subdivision (b), this article shall become operative on July 1, 2025.
(b) Section 39880 shall become operative on January 1, 2024.

SEC. 3.

 Section 49406 of the Education Code is amended to read:

49406.
 (a) (1) (A) Except as provided in subdivision (j), a person shall not be initially employed by a school district, or employed under contract, in a certificated or classified position unless the person has submitted to a tuberculosis risk assessment within the past 60 days, and, if tuberculosis risk factors are identified, has been examined to determine that the person is free of infectious tuberculosis by a physician and surgeon licensed under Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, a physician assistant practicing in compliance with Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code, or a nurse practitioner practicing in compliance with Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code. If no risk factors are identified, an examination is not required. A person who is subject to the requirements of this subdivision may submit to an examination that complies with subparagraph (B) instead of submitting to a tuberculosis risk assessment.
(B) The examination required by this subdivision shall consist of either an approved intradermal tuberculin test or any other test for tuberculosis infection that is recommended by the federal Centers for Disease Control and Prevention (CDC) and licensed by the federal Food and Drug Administration (FDA). If the test is positive, the test shall be followed by an X-ray of the lungs in accordance with subdivision (f) of Section 120115 of the Health and Safety Code.
(2) The X-ray may be taken by a competent and qualified X-ray technician if the X-ray is subsequently interpreted by a physician and surgeon licensed under Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.
(3) The district superintendent of schools or their designee may exempt, for a period not to exceed 60 days following termination of the pregnancy, a pregnant employee from the requirement that a positive test for tuberculosis infection be followed by an X-ray of the lungs.
(b) Thereafter, an employee who has no identified risk factors or who tests negative for the tuberculosis infection shall be required to undergo the tuberculosis risk assessment and, if risk factors are identified, the examination, at least once every four years or more often if directed by the governing board of the school district upon recommendation of the local health officer. Once an employee has a documented positive test for tuberculosis infection conducted pursuant to this subdivision that has been followed by an X-ray, the tuberculosis risk assessment is no longer required. A referral shall be made within 30 days of completion of the examination to the local health officer to determine the need for followup care.
(c) After the tuberculosis risk assessment and, if indicated, the examination, the employee shall file with the district superintendent of schools a certificate from the examining physician and surgeon, physician assistant, or nurse practitioner showing the employee was examined and found free from infectious tuberculosis. The county board of education may require, by rule, that the certificates be filed in the office of the county superintendent of schools or maintained in the office of the county superintendent of schools if a majority of the governing boards of the school districts within the county petition the county board of education. A school district, or school districts with a common governing board, having an average daily attendance of 60,000 or more may elect to maintain the files for its employees in that school district.
(d) As used in this section, “certificate” means a certificate signed by the examining physician and surgeon licensed under Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, a physician assistant practicing in compliance with Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code, or a nurse practitioner practicing in compliance with Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, or a notice from a public health agency that indicates freedom from infectious tuberculosis. The latter, regardless of form, shall constitute evidence of compliance with this section.
(e) Nothing in this section shall prevent the governing board of a school district, upon recommendation of the local health officer, from establishing a rule requiring a more extensive or more frequent physical examination than required by this section. The rule shall provide for reimbursement on the same basis as required in this section.
(f) The tuberculosis risk assessment and, if indicated, the examination is a condition of initial employment and the expense shall be borne by the applicant unless otherwise provided by rules of the governing board of the school district. However, the governing board of a school district may, if an applicant is accepted for employment, reimburse that person in a like manner prescribed in this section for employees.
(g) The governing board of a school district shall reimburse the employee for the cost, if any, of the tuberculosis risk assessment and the examination. The governing board of a school district may provide for the tuberculosis risk assessment and examination required by this section or may establish a reasonable fee for the examination that is reimbursable to employees of the school district complying with this section.
(h) At the discretion of the governing board of a school district, this section shall not apply to those employees not requiring certification qualifications who are employed for any period of time less than a school year whose functions do not require frequent or prolonged contact with pupils.
(i) If the governing board of a school district determines by resolution, after hearing, that the health of pupils in the school district would not be jeopardized, this section shall not apply to an employee of the school district who files an affidavit stating that the employee adheres to the faith or teachings of a well-recognized religious sect, denomination, or organization and, in accordance with its creed, tenets, or principles, depends for healing upon prayer in the practice of religion, and that to the best of the employee’s knowledge and belief, the employee is free from infectious tuberculosis. If at any time there is probable cause to believe that the affiant is afflicted with infectious tuberculosis, the employee may be excluded from service until the governing board of the school district is satisfied that the employee is not afflicted.
(j) A person who transfers employment from one school or school district to another school or school district shall be deemed to meet the requirements of subdivision (a) if that person can produce a certificate that shows the person was found to be free of infectious tuberculosis within 60 days of initial hire, or the school previously employing the person verifies that the person has a certificate on file showing that the person is free from infectious tuberculosis.
(k) A person who transfers their employment from a private or parochial elementary school, secondary school, or nursery school to a school or school district subject to this section shall be deemed to meet the requirements of subdivision (a) if that person can produce a certificate as provided for in Section 121525 of the Health and Safety Code that shows that they were found to be free of infectious tuberculosis within 60 days of initial hire, or if the school previously employing the person verifies that the person has a certificate on file showing that the person is free from infectious tuberculosis.
(l) (1) A governing board, county superintendent of schools, or governing body of a charter school providing for the transportation of pupils under contract authorized by Section 39800, 39801, or any other provision of law shall require as a condition of the contract the tuberculosis risk assessment and, if indicated, the examination for infectious tuberculosis within 60 days of initial hire, as provided by subdivision (a), of all drivers transporting pupils for compensation.
(2) At the discretion of the governing board, county superintendent of schools, or governing body of a charter school, paragraph (1) shall not apply to a private contracted driver who transports pupils infrequently and without prolonged contact with the pupils before July 1, 2025.
(m) A volunteer in a school shall also be required to have on file with the school a certificate showing that, upon initial volunteer assignment, the person submitted to a tuberculosis risk assessment and, if tuberculosis risk factors were identified, was examined and found to be free of infectious tuberculosis. If no risk factors are identified, an examination is not required. At the discretion of the governing board of a school district, this section shall not apply to a volunteer whose functions do not require frequent or prolonged contact with pupils.
(n) The State Department of Public Health, in consultation with the California Tuberculosis Controllers Association, shall develop a risk assessment questionnaire, to be used to conduct tuberculosis risk assessments pursuant to this section. The risk assessment questionnaire shall be administered by a health care provider, which shall be specified on the questionnaire. This risk assessment questionnaire shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

SEC. 4.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.