TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR BARBERS AND COSMETOLOGY

Fast-Track Regulation

Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-90).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-70).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 31, 2024.

Effective Date: August 15, 2024.

Agency Contact: Kelley Smith, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 A 5 of the Code of Virginia authorizes the Board for Barbers and Cosmetology to promulgate regulations necessary to ensure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the regulatory board.

Purpose: The purpose of a 90-day temporary license is to address the delays and challenges associated with the current 45-day temporary license structure. The 90-day temporary license provides individuals with an extended timeframe to work while they go through the examination process. This adjustment acknowledges that many professionals in these fields have already met training requirements through education or apprenticeships. Allowing these individuals to work under the supervision of a licensed professional during the examination phase enables them to earn income and maintain their livelihood while pursuing licensure. By extending the temporary license to 90 days, individuals have a more reasonable period to schedule and complete the required exams. The amendments protect the health, safety, and welfare of citizens by ensuring compliance, allowing individuals to work under the supervision of a licensed professional during the temporary license period, and ensuring oversight and guidance are place. This contributes to maintaining a standard of competency and skill in service delivery, thus safeguarding the well-being of consumers. Providing a reasonable timeframe for individuals to complete the necessary exams encourages compliance with licensure requirements. The 90-day temporary license addresses time-consuming challenges with exam scheduling, enable professionals to work and earn income during the exam process, and maintains standards that safeguard the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Rulemaking Process: This action is noncontroversial and suitable for the fast-track rulemaking process as it allows individuals to work while undergoing the exam process. Temporary license holders in barbering, cosmetology, nail, wax, esthetics, and master esthetics can work while scheduling and completing the required examinations. These professionals have fulfilled the training prerequisites through either a school or apprenticeship and can earn income by working under the supervision of a licensed professional during the examination phase. Temporary license holders will operate under the guidance of a licensed individual in their respective profession.

Substance: 18VAC41-20-90 and 18VAC41-70-70 are amended to (i) revise and correct some terms, such as changing "permit" to "license" and clarifying "supervision" to appropriately reflect the term "direct supervision"; (ii) clarify that an individual must work under the direct supervision of an individual who holds the respective license; (iii) specify the professions authorized to oversee temporary license holders under their direct supervision; (iv) extend the term of a temporary license from 45 days to 90 days; (v) remove the provision requiring that an applicant for licensure schedule an examination prior to being issued a temporary license; and (vi) clarify that an individual may not receive a subsequent temporary license.

Issues: The primary advantage of the 90-day temporary license regulatory revision is removing the prerequisite to schedule the first exam before obtaining the temporary license. Eliminating the need for scheduling the exam reduces delays and creates a more efficient procedure for obtaining a temporary license. Individuals will no longer need to wait before applying for a temporary license and can do so after completing their training. This modification promotes economic stability for temporary license holders by allowing those individuals to earn money while awaiting the examination process. Additionally, working under the supervision of licensed professionals guarantees that services delivered under the temporary license holder adhere to regulatory standards, thereby enhancing consumer safety. There are no identifiable disadvantages to the public. There are no identifiable advantages or disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (board) proposes to (i) extend the duration of temporary barbering, master barbering, cosmetology, nail technician, wax technician, esthetician, and master esthetician licenses from 45 days to 90 days, (ii) eliminate a requirement that applicants register with the testing vendor for the license examination prior to being issued a temporary license, and (iii) clarify who can supervise a temporary licensee by type of license.

Background. Under the current regulations, qualified applicants for barbering, master barbering, cosmetology, nail technician, wax technician, esthetician, and master esthetician licenses are granted a 45-day temporary license to work under licensed professionals in the same discipline while waiting to take and pass the relevant professional exam. Additionally, prior to being issued a temporary license, applicants must register with the board's testing vendor to schedule their exam. The board proposes to extend the duration of the temporary licenses for these professions from 45 days to 90 days and eliminate the registration requirement. According to the board, the main purpose of the temporary licenses is to enable the qualified applicants to earn higher wages by working under supervision of a respective full licensee as soon as possible. However, the board states that the current 45-day duration is not sufficient due to prolonged waiting periods for applicants to obtain their temporary licenses. Applicants for a temporary license face two delays in scheduling their examinations. The first delay occurs during the initial exam scheduling process. Under the current regulations, individuals must schedule the first part of their license examination (test on theory) before they can receive the temporary license. Once the license is issued, it remains in effect for 45 days following the examination date. However, because exams are typically offered one to two months after they are requested, applicants have to wait one to two months before they actually get the license. The second delay occurs after the approval of the temporary license. After taking the first exam, the temporary license holder must wait an additional one to two months to take the second part of the exam (test on practice). Therefore, there is a possibility that the current 45-day temporary license may expire during this period, preventing the temporary license holder from the opportunity to continue to earn income.

The board proposes to allow individuals who completed either a training program or a registered apprenticeship, to apply to take the license examination and apply for a temporary license at the same time. Under the proposal, individuals who are issued a 90-day temporary license would be able to work under licensed professionals and earn income while waiting to take and pass the board-required examination on theory and practice. The board also proposes to clarify that temporary license holders must be supervised by fully licensed individuals in their respective discipline. The board has had inquiries from nail technicians wanting to supervise wax technicians and cosmetologists supervise barbers and vice versa. This is not permitted, and the board proposes to make it clear which professions may supervise other professions. As a result, language would be added to clarify that three professions may supervise holders of a temporary waxing license (cosmetologists, estheticians, and master estheticians); cosmetologists may supervise holders of a temporary nail license; master estheticians may supervise holders of a temporary esthetician license; and master barbers may supervise holders of a temporary barber license.

Estimated Benefits and Costs. The proposed changes would enable temporarily licensed barbers, master barbers, cosmetologists, nail technicians, wax technicians, estheticians, and master estheticians to earn higher wages for an additional 45-day period before they are fully licensed. Temporary licenses are issued only one time, for free, and cannot be extended or renewed. The board reports that monthly median income for barbers, hairstylists, and cosmetologists is $2,783, or $4,175 for a 45-day period. Thus, considering a temporary license holder would be at the beginning of their career and would likely earn below the median, they would be able to earn up to an additional $4,174 during the term of the temporary permit under the proposal. On average, the board issues approximately 250 temporary permits per year, which equates to an additional income of up to $1,043,500 per year in total. Also, working for an extended period under supervision could help individuals transition to their future careers with more ease. Thus, temporary license holders would likely benefit the most from the proposed changes.

In addition to the benefits to the temporary licensees, employers also are likely to gain from this proposal. According to the board, it is an industry practice for licensed professionals to pay a salon, shop, parlor, or a spa a booth rental fee to practice there. The average booth rental fee is $400 per month. As a result, such businesses would receive approximately an additional $600 in booth rental income individually, representing an additional $150,000 total industry income from 250 applicants per year. Furthermore, a longer temporary license duration would reduce the chances of potentially having to cease work compared to the status quo. This should benefit both licensees and their employers in terms of avoiding a potential disruption in their employment arrangement. However, it cannot be ruled out that some of the temporary permit holders may fail the theory or practice parts of the licensing exam, although the board has no data on failure rates. If the exam is a good indicator for competency as it should be, allowing a temporary license holder to practice who later fails the exam may be viewed as a potential risk to customers. The board believes that such a potential risk is minimal by pointing out to the fact that these professionals have fulfilled the training prerequisites through either a school or apprenticeship program and that they would operate under the supervision of a fully licensed individual in their respective profession. For these reasons, the board believes that the proposal maintains an appropriate standard of competency and skill in service delivery, thus safeguarding the well-being of consumers.

Businesses and Other Entities Affected. The board has averaged around 250 temporary licenses issued annually. Also, there are approximately 6,973 business licenses for shops, salons, parlors, and spas where temporary license holders may work. The proposal does not disproportionately affect any temporary license applicants.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.² An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.³ As noted, the proposal would allow temporary license holders to earn higher income for a longer period and would generate additional booth rental income for employers. The board also believes there are adequate safeguards in place to avoid any potential risk to well-being of consumers. Thus, no adverse impact appears to be indicated based on the board's assessment.

Small Businesses⁴ Affected.⁵ The Board considers all 6,793 businesses where temporary licensees may work as small businesses. However, the proposed amendments do not adversely affect small businesses.

Localities⁶ Affected.⁷ The proposed amendments do not introduce costs or other effects for localities.

Projected Impact on Employment. The proposed changes can be expected to reduce under-employment by allowing approximately 250 individuals to earn higher wages for an additional 45-day period. The extension of temporary licenses would likely add to the supply of professionals affected. However, the magnitude of the net impact on total employment cannot be determined as some of these individuals may have taken other jobs during that 45-day period.

Effects on the Use and Value of Private Property. The proposed action is expected to generate additional booth rental income for employers. Thus, the asset values of such businesses may be positively affected. No effects on the real estate development costs are expected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

³ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁴ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁵ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board for Barbers and Cosmetology concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments (i) extend the duration of temporary barbering, master barbering, cosmetology, nail technician, wax technician, esthetician, and master esthetician licenses from 45 days to 90 days; (ii) eliminate a requirement that applicants register with the testing vendor for the license examination prior to being issued a temporary license; and (iii) clarify who can supervise a temporary licensee by type of license.

18VAC41-20-90. Barber, master barber, cosmetology, nail technician, and wax technician temporary permits licenses.

A. A temporary permit license to work under the direct supervision of a currently licensed barber, master barber, cosmetologist, nail technician, or wax technician individual may be issued only to applicants for initial licensure who the board finds eligible for the applicable examination. There shall be is no fee for a temporary permit license. Except as provided in this section, an applicant holding a temporary license must be supervised by an individual holding a license in the same scope of practice.

Licensed cosmetologists may also supervise nail and waxing temporary license holders. Licensed estheticians and master estheticians may also supervise waxing temporary license holders. Licensed master barbers may also supervise barber temporary license holders.

B. The temporary permit shall license will remain in force for 45 90 days following the examination date, and no subsequent temporary license will be issued. The examination date shall be the first test date after the applicant has successfully submitted an application to the board that an examination is offered to the applicant by the board.

C. Any person continuing to practice barbering, master barbering, cosmetology, nail care, or waxing services after a temporary permit license has expired may be prosecuted and fined by the Commonwealth under §§ 54.1-111 A 1 and 54.1-202 of the Code of Virginia.

D. No applicant for examination shall be issued more than one temporary permit.

E. D. Temporary permits shall licenses will not be issued where grounds may exist to deny a license pursuant to § 54.1-204 of the Code of Virginia or 18VAC41-20-20.

FORMS (18VAC41-20)

Barber – Master Barber – Barber and Master Barber Instructor Examination & and License Application, A450-1301_EXLIC-v18 (rev. 5/2022)

Nail Technician – Nail Technician Instructor Examination & and License Application, A450-1206_07EXLIC-v19 (rev. 5/2022)

Wax Technician – Wax Technician Instructor Examination & and License Application, A450-1214_15EXLIC-v18 (rev. 5/2022)

Cosmetology – Cosmetology Instructor Examination & and License Application, A450-1201_04EXLIC-v21 (rev. 5/2022)

Temporary Permit Application, A450-1213TEMP-v3 (rev. 12/2021)

Temporary License Application, A450-1213TEMP-vs4 (rev. 8/2024)

License by Endorsement Application, A450-1213END-v18 (rev. 9/2022)

Individuals – Reinstatement Application, A450-1213REI-v13 (rev. 9/2022)

Salon, Shop, Spa &, and Parlor License/Reinstatement License or Reinstatement Application, A450-1213BUS-v16 (rev. 9/2022)

Salon, Shop &, and Spa Self Inspection Self-Inspection Form, A450-1213_SSS_INSP-v2 (eff. 5/2016)

Instructor Certification Application, A450-1213INST-v17 (rev. 10/2022)

Student Instructor – Temporary Permit Application, A450-1213ST_TEMP-v4 (rev. 12/2021)

School License Application, A450-1213SCHL-v18 (rev. 5/2023)

School Reinstatement Application A450-1213SCHL-REIN-v9 (eff. 9/2022)

School Self-Inspection Form, A450-1213_SCH_INSP-v5 (eff. 1/2022)

Licensure Fee Notice, A450-1213FEE-v11 (rev. 9/2022)

Change of Responsible Management Application, A450-1213CRM-v6 (rev. 12/2021)

Training Substitution Form, A450-1213TR_SUB-v1 (rev. 10/2021)

Training Verification Form, A450-1213TR-vs1 (eff. 5/2022)

Experience Verification Form, A450-1213EXP-v2 (eff. 7/2022)

Barber-Cosmetology Universal License App Application A450-1213ULR-v1 (eff. 7/2023)

18VAC41-70-70. Esthetician temporary license and master esthetician temporary license.

A. A temporary license to work under the direct supervision of a currently licensed esthetician or master esthetician individual may be issued only to applicants for initial licensure that who the board finds eligible for the applicable examination. There shall be is no fee for a temporary license. Except as provided in this section, an applicant holding a temporary license must be supervised by an individual holding a license in the same scope of practice.

Licensed master estheticians may supervise estheticians and waxing temporary license holders. Licensed estheticians may supervise waxing temporary license holders.

B. The temporary license shall will remain in force for 45 90 days following the examination date, and no subsequent temporary license shall be issued. The examination date shall be the first test date after the applicant has successfully submitted an application to the board.

C. Any person continuing to practice esthetics services after a temporary license has expired may be prosecuted and fined by the Commonwealth under §§ 54.1-111 A 1 and 54.1-202 of the Code of Virginia.

D. No applicant for examination shall be issued more than one temporary license.

E. D. Temporary permits shall licenses will not be issued where grounds may exist to deny a license pursuant to § 54.1-204 of the Code of Virginia or 18VAC41-70-20.

FORMS (18VAC41-70)

Esthetician – Esthetics Instructor Examination & and License Application, A450-1261_62EXLIC-v17 (eff. 5/2022)

Master Esthetician – Master Esthetics Instructor Examination & and License Application, A450-1264_65EXLIC-v18 (eff. 5/2022)

Temporary Permit Application, A450-1213TEMP-v3 (eff. 12/2021)

Temporary License Application, A450-1213TEMP-vs4 (eff. 8/2024)

License by Endorsement Application, A450-1213END-v18 (eff. 9/2022)

Training Verification Form, A450-1213TR-vs1 (eff. 5/2022)

Individual - Reinstatement Application, A450-1213REI-v13 (eff. 9/2022)

Salon, Shop, Spa &, and Parlor License/Reinstatement License or Reinstatement Application, A450-1213BUS-v16 (eff. 9/2022)

Salon, Shop &, and Spa Self Inspection Self-Inspection Form, A450-1213_SSS_INSP-vs2 (eff. 5/2016)

Instructor Certification Application, A450-1213INST-v17 (eff. 10/2022)

School License Application, A450-1213SCHL-v18 (eff. 5/2023)

School Reinstatement Application, A450-1213SCHL_REI-v9 (eff. 9/2022)

School Self Inspection Self-Inspection Form, A450-1213SCH_INSP-vs5 (eff. 1/2022)

Licensure Fee Notice, A450-1213FEE-v11 (rev. 9/2022)

Change of Responsible Management, A450-1213CRM-v6 (eff. 12/2021)

Experience Verification Form, A450-1261_64EXP-v2 (eff. 2/2023)

Esthetics-Master Esthetics Universal License App Application, A450-1261-65ULR-v1 (eff. 7/2023)