12 CSR 10-24.326 - Third Party Tester and Examiner Sanction and Hearing Guidelines

PURPOSE: This rule establishes the guidelines for sanctioning third party testers and examiners for not conforming to the requirements of the third party tester contract, the laws and regulations of this state concerning commercial drivers and the provisions of the third party tester/examiner requirements produced by the Department of Revenue. It also includes the hearing rights and procedures of such parties.

(1) As used in this rule the following terms mean:

(A) Certification-the authority issued by the director of revenue to a third party tester to open a testing facility or to a third party examiner to administer testing for a third party tester;

(B) Decertification-the director of revenue's removal of authority or certification from a third party tester or examiner. Such removal shall be for a minimum period of one (1) year after which time a new application may be made; and

(C) Denial-the director does not issue a certification to a third party tester or examiner. Such tester or examiner once denied may not reapply for a period of one (1) year.

(2) The department may warn, deny, refuse to issue or renew, suspend, revoke, or decertify a third party tester or examiner's authority, whether initial or renewed. Such action may result from any violation of the third party tester contract or third party tester/examiner requirements, including but not limited to, those violations listed in the Missouri Department of Revenue Third Party Testing Program Sanctions for Examiner or Tester included herein and made a part of this rule. The department recommendations for sanctions are listed in the Department's Third Party Testing Program Sanctions for Examiners and Testers in this rule.

(3) The department shall notify the tester or examiner of its proposed action to deny, refuse to issue or renew, suspend, revoke or decertify a third party tester or examiner certification by mailing via certified mail, notice to the party's last known address in the department's records.

(4) The department's notice of proposed action shall state that the party may request a hearing on the denial, refusal to issue or renew, suspension, revocation or decertification by the department within thirty (30) days of the mailing of such notice.

(5) Failure to request a hearing shall result in the proposed action of the director becoming effective thirty (30) days from the date of mailing of notice.

(6) Upon receipt of a written request for a hearing, the director shall set a hearing date, a time and location designated by the director. Notice of hearing shall be mailed to the tester or examiner at the last known address for such entity within the department's records. Notice shall be complete upon mailing and shall state the time, date, and place of hearing and the reason or reasons for the proposed action. If a hearing is requested, the action of the director shall be stayed until a hearing is held and an order entered thereon.

(7) Such hearings shall be conducted by the director or the director's designated hearing officer. Such hearings shall be heard in substantially the same manner as provided in Chapter 536, RSMo.

(8) The director shall enter a written hearing decision and mail that decision to the party requesting the hearing at the last known address for such party in the department's records.

(9) Further review of the action of the director as a result of an administrative hearing may be taken pursuant to Chapter 536, RSMo.

(10) Nothwithstanding the provisions of section (5) of this rule the department may summarily revoke or suspend the certificate of a third party tester, without opportunity for stay, provided that the department finds that the public safety requires emergency action and it incorporates its findings to that effect in its notice of suspension or revocation. If so requested, a hearing to review the summary action and the underlying cause shall be held in an expedited time frame not to exceed thirty (30) days and the summary suspension or revocation shall be promptly determined.

MISSOURI DEPARTMENT OF REVENUE THIRD PARTY TESTING PROGRAM SANCTIONS

EXAMINER

VIOLATIONS	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE	FOURTH OFFENSE
EXAMINER RECORDKEEPING AND BUSINESS PRACTICES
Examiner conducts test while non-certified, suspended, or decertified.	Decertification
Examiner conducts tests without DOR approval or conducts tests for more than one tester.	Decertification
Examiner fails to maintain or complete records as required.	Warning letter	30-day suspension	60-day suspension	Decertification
Examiner fails to respond to DOR/MSHP request for information or fails to comply with DOR/MSHP instruction, directive, or ruling.	Suspension until complies	Decertification
EXAMINER QUALIFICATIONS
Examiner application indicates felony conviction in last five years.	Denial/Decertification
Examiner driving history indicates conviction for any alcohol related enforcement contacts (DWI, DUI, BAC, DUID, etc) in MO or any other state within last five years.	Denial/Decertification
Examiner driving history indicates a suspension, revocation, cancellation, or disqualification in MO or any other state within last five years.	Denial/Decertification
Examiner fails to attend required re-certification courses as required by the director.	Suspension until recertification course completed.	Decertification
Examiner fails to report suspension, revocation, cancellation, or disqualification.	Suspension up to one year or decertification.
SKILLS TEST ADMINISTRATION
Examiner encourages or accepts bribe or gratuity.	Decertification
Examiner falsifies records or information or misrepresents by omitting any test requirement or procedure.	Suspension up to one year and/or decertification.
Examiner fails to inform DOR/MSHP concerning civil or criminal actions related to skills test	Suspension up to one year and/or decertification.
Examiner administers skills test without proper CDL License and appropriate endorsements and/or restrictions.	30-day minimum suspension and re-audit.	Decertification
Examiner knowingly retests failed applicant within same day.	30-day suspension	60-day suspension	Decertification
Examiner allows unauthorized passengers in the test vehicle during skills testing.	Warning letter and possible re-audit	30-day suspension	60-day suspension	Decertification
Audit of examiner finds scoring and form completions inconsistent with TPT manual guidelines.	Re-audit and/or 30 day suspension	60-day suspension	Decertification

MISSOURI DEPARTMENT OF REVENUE THIRD PARTY TESTING PROGRAM SANCTIONS

TESTER

VIOLATIONS	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE	FOURTH OFFENSE
TESTER RECORDS AND BUSINESS PRACTICES
Tester operates without Department of Revenue authorization.	Application denied for minimum of five years
Tester does not maintain insurance as required per C-3 in tester contract.	Suspended until department receives proof of required insurance.	30-day suspension and must submit proof of required insurance to Department of Revenue.	Decertification
Tester does not maintain security bond as required in tester contract.	Suspended until department receives proof of required bond	Decertification
Tester does not maintain certificate of authorization for use of test site(s) as required.	Suspended until receipt of authorization and posting of certificate.	30-day suspension and must receive authorization and post certificate	Decertification
Tester uses non-certified, suspended, or decertified examiner.	Decertification
Tester uses examiner without Department of Revenue approval or allows examiner to test for more than one tester.	Decertification
Tester representative fails to attend audit/inspection without notification.	30-day suspension	60-day suspension	Decertification
Tester fails to comply with monthly reporting requirements.	Warning letter	30-day suspension	60-day suspension	Decertification
Tester fails to respond to DOR/MSHP request for information or fails to comply with DOR/MSHP instruction, directive, or ruling.	Suspension until complies	Decertification
Tester fails to maintain permanent structure and business street address.	Suspension until complies	Decertification
Tester records not maintained at each test site in centralized location.	If audit can be completed, warning letter. If audit cannot be completed, warning letter and reschedule audit.	30-day suspension	Indefinite suspension until complies	Decertification
Tester fails to notify DOR of any changes to tester or examiner status.	Warning letter	30-day suspension	Decertification
TEST SITE FACILITIES
Site does not comply with pre-trip, basic control and skills course layout, or space requirements.	Warning letter and/or up to 30-day suspension	Warning letter and/or up to 60-day suspension	Decertification

TEST ADMINISTRATION
Tester encourages or accepts bribe or gratuity.	Decertification
Tester falsifies records or information, or misrepresents by omitting, any test requirement or procedure or encourages/requires examiner to do the same.	Decertification
Tester fails to inform DOR/MSHP concerning civil or criminal actions related to complaints regarding skills testing.	Suspension up to one year pending additional action or decertification.
Tester allows examiner to administer skills test without proper CDL license and appropriate restrictions or endorsements.	30-day suspension and re-audit.	Decertification
Tester allows examiner to administer tests during non-daylight hours.	30-day suspension	60-day suspension	Decertification
Tester allows examiner to knowingly re-test failed applicant within same day.	Warning letter	30-day suspension	60-day suspension	Decertification
Tester allows examiner to administer skills tests with unauthorized passengers in test vehicle.	Warning letter	30-day suspension	60-day suspension	Decertification

Notes

12 CSR 10-24.326

AUTHORITY: sections 302.720 and 302.721, RSMo Supp. 2013, and section 302.765, RSMo 2000.* Original rule filed Sept. 27, 2001, effective April 30, 2002. Emergency amendment filed April 12, 2002, effective April 30, 2002, expired Oct. 26, 2002. Amended: Filed April 12, 2002, effective Sept. 30, 2002. Amended: Filed Feb. 17, 2015, effective Aug. 30, 2015.

AUTHORITY: sections 302.720 and 302.765, RSMo 2000.* Original rule filed Sept. 27, 2001, effective April 30, 2002. Emergency amendment filed April 12, 2002, effective April 30, 2002, expired Oct. 26, 2002. Amended: Filed April 12, 2002, effective Sept. 30, 2002. Amended by Missouri Register July 1, 2015/Volume 40, Number 13, effective 8/31/2015