Title of Regulation: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-10, 18VAC41-20-20, 18VAC41-20-30).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 15, 2021.

Effective Date: October 1, 2021.

Agency Contact: Stephen Kirschner, 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 54.1-201.5 of the Code of Virginia gives authority to the board to promulgate regulations. It states, in part, that the board has the power and duty to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) as necessary to assure 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 this action is to provide an alternative method of qualifying for the cosmetology, barber, nail, and waxing licenses when applicants with out-of-state training are unable to demonstrate their training is substantially equivalent to Virginia's training requirements. Currently, these applicants are required to repeat a portion of the Virginia training, even when they have been successfully practicing in that field for, in some cases, decades.

The board's Standing Committee on Training reviewed this area in response to requests from the public, failed 2019 legislation covering the same issue, and as part of its general goal of reviewing its training requirements to ensure best practices and minimally burdensome regulations. The committee reviewed best practices among the 50 states regarding training requirements for out-of-state trained applicants. About 40 states allow experience to substitute for equivalent training in some form or another. To conform Virginia's requirements to national best practices, as well as ensure that individuals who have demonstrated professional competence in other states are not overly burdened, the board desires to allow five years of licensed experience to substitute for substantially equivalent training.

This change is essential to protect the health, safety, and welfare of citizens in the least burdensome way possible. The board also proposes to eliminate several subsections of its entry requirements, using simplified language and clear requirements in lieu of the current highly specific requirements using undefined terms. This change is also in line with the 2018 Regulatory Reduction Pilot Program requested by the General Assembly to streamline regulations and reduce regulatory burdens on entry into the profession.

Rationale for Using Fast-Track Rulemaking Process: The board initiated this change based on a recommendation from its Standing Committee on Training. The committee received comments regarding the difficulty for individuals with out-of-state training in obtaining a Virginia cosmetology license. Often, individuals practicing cosmetology in other states for decades are unable to qualify for the Virginia license because their training is not substantially equivalent to Virginia's. The committee, recognizing the statutory requirement that any abridgement to the right to engage in cosmetology must be no greater than necessary, determined that five years of licensed experience in another state was a sufficient substitute for Virginia's training requirements.

This rulemaking is expected to be noncontroversial because it is reducing a regulatory burden for applicants without disrupting the protection of the health, safety, and welfare.

Substance: Proposed amendments are as follows:

18VAC41-20-10. Definitions. Definitions of substantially equivalent training and substantially equivalent examinations are added.

18VAC41-20-20. General requirement for license. The language is simplified and repetitive language is eliminated. Requirement of six months of work experience for those with substantially equivalent training, but less than the required hours is removed. A provision to allow those who completed a training program that was not substantially equivalent, whether conducted in the United States or outside the country, to obtain a license based on five years of licensed experienced in that profession in the United States is added.

18VAC41-20-30. Endorsement. The language is clarified. A provision allowing endorsement for those who completed a training program that was not substantially equivalent, whether conducted in the United States or outside the country, to substitute five years of licensed experienced in that profession in the United States for substantially equivalent training is added.

Issues: The primary advantage to the public is the economic opportunity it provides by allowing otherwise qualified individuals to be able to move to and work in Virginia without having to complete additional training. It allows individuals moving to Virginia, particularly military spouses, to begin working quickly, without incurring time or expenses for additional training. This also allows employers to more easily transfer employees into Virginia. There are no disadvantages to the public.

The Commonwealth will benefit by becoming a more welcoming environment for out-of-state practitioners and increase its competitiveness among employers. The agency will benefit with a reduction in staff time in handling these applications, as applicants in this situation are usually unhappy with the current board requirements and frequently involve multiple staff and supervisors in trying to argue that their experience should qualify them for the license. There are no disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) is proposing amendments to improve licensure reciprocity by allowing individuals who have five years of licensed experience in another state to substitute their experience for the current requirement of "substantially equivalent training." The board would also define this term as well as "substantially equivalent exam."

Background. The board's Standing Committee on Training received several comments regarding the difficulty faced by individuals with out-of-state training who seek to obtain a Virginia cosmetology license. Individuals who have practiced cosmetology in other states for an extended period of time have been unable to qualify for the Virginia license because their training has not been considered "substantially equivalent," even though this term has not been defined in the regulation. Thus, the board seeks to make a number of changes that largely serve to clarify the requirements out-of-state licensees must meet in order to obtain licenses in Virginia. As per the current regulation, there are two main pathways by which an applicant with an out-of-state license may obtain a Virginia license as a barber, master barber, cosmetologist, nail technician, or wax technician: either by endorsement or by exam. To qualify by endorsement, an applicant must have a current license to practice (from another state), complete a "substantially equivalent training" program, and complete a "substantially equivalent exam." To obtain licensure by exam, applicants must first qualify to sit for a Board-approved exam and then complete the exam. In order to qualify to sit for the exam, the applicant has to either complete an approved training program or else demonstrate they have previously obtained "substantially equivalent training" that provided a certain number of required training hours based on their profession.¹ If an applicant's prior training provided fewer training hours than the regulation required, they can instead submit documentation of six months of work experience.² Although the term "substantially equivalent" is used in multiple instances, it is not currently defined in the regulation. To clarify the board's interpretation of "substantially equivalent," the board established a policy on May 13, 2013, to define "substantially equivalent training" as it applies to licensure by endorsement as follows: (i) a substantially equivalent training program, (ii) a substantially equivalent exam, (iii) 80% of required training hours, and (iv) six months experience in the past three years.³ The board then issued a guidance document on August 11, 2014, that defines "substantial equivalence in relation to licensure endorsement" as "80% of the required hours in Virginia; this definition applies to all four professions."⁴ The guidance document provides further clarifications on the requirements, including more detail for barber and cosmetologist licenses in particular. Finally, effective April 1, 2019, the minimum number of hours required for a barber to qualify for the exam was reduced from 1500 to 1100.⁵ The board's proposed changes would supersede any requirements contained in the guidance document and are intended to simplify the process for applicants with out-of-state licenses (for all four professions). Specifically, the board proposes to:

1. Define "substantially equivalent training" to mean at least 80% of the required hours in Virginia, and also curriculum content that covers Virginia's scope of practice for that profession;

2. Define "substantially equivalent exam" to mean an examination administered by the licensing entity which covers Virginia's scope of practice for that profession; Allow out-of-state applicants for endorsement and for exam to meet the training hour requirement if they have five years" work experience in the U.S.;

3. Reduce the minimum training hours for an out-of-state applicant to qualify for the exam with no work experience from 1500 to 1200 for a master barber and cosmetologist, 1100 to 880 for a barber, 150 to 120 for a nail technician, and, 115 to 92 for a wax technician; and

4. Eliminate the option for an out-of-state barber, cosmetologist, and master barber to qualify for the exam with a minimum of 1200 hours and six months of experience OR with a minimum of 1000 hours and six months of experience if they have completed the "general" or "intro" portions of the curriculum of an approved Virginia program.

Estimated Benefits and Costs. The proposed amendments would primarily benefit barbers, cosmetologists, and nail and wax technicians from other states who seek to obtain licensure and practice in Virginia by reducing the minimum training hours for an out-of-state applicant to qualify for the exam with no work experience and making the requirements easier to understand and follow. Although it may appear that the number of options for demonstrating training equivalency have been reduced, any individuals who qualified under any of the options previously listed in guidance documents would also qualify under the current requirements.

The proposed amendments do not appear to impose any new costs on applicants for licensure, either within the state or from outside the state. The board expects roughly 20 such applicants each year initially, potentially increasing to 50 applicants per year in the future across all four types of licensees. The board reports that 324 barbers, 2,509 master barbers, 41,762 cosmetologists, 8,803 nail technicians, and 1,575 wax technicians are currently licensed in Virginia, for a total of 54,973.⁶ The number of out-of-state applicants each year is thus likely to be a small fraction (0.04% to 0.09%) of the total number of current licensees, and thus would not significantly increase competition, and is unlikely to impose any indirect costs to other applicants or current licensees.

Businesses and Other Entities Affected. The proposed amendments primarily benefit the individual barber, cosmetologist, nail technician, and wax technician applicants who have been licensed by other states, or hold licenses in other countries and are seeking licensure in Virginia. The board reports that approximately 20 applicants per year would be affected by the regulatory change. The number of potential applicants who are affected by these proposed changes may increase in the future; the board expects the number out-of-state applicants to increase to roughly 50 per year. The proposed amendments could also benefit businesses that employ barbers, master barbers, cosmetologists, nail technicians, and wax technicians by increasing the supply of qualified individuals from which these firms may hire.

Small Businesses⁷ Affected. Small businesses that employ barbers, cosmetologists, or nail technicians, or wax technicians may be positively affected by the proposal in that there may be a moderate increase in the supply of qualified individuals from which to hire.

Localities⁸ Affected.⁹ The proposed amendments would not likely disproportionately affect any particular localities, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments would directly contribute to the employment of those who have a license from another state or country and seek to become licensed in Virginia. The Board expects roughly 20 such applicants each year initially, potentially increasing to 50 applicants per year in the future.

Effects on the Use and Value of Private Property. The proposed amendments may moderately increase the supply of barbers, master barbers, cosmetologists, nail technicians, and wax technicians, making it perhaps moderately easier for firms that offer these services to find qualified staff. Consequently, the proposal may moderately increase the value of such firms. Real estate development costs would not be affected.

_________________________________________

¹The regulation requires a minimum of 1100 training hours for a barber, 1500 for a master barber and cosmetologist, 150 for a nail technician, and 115 for a wax technician.

²Although the regulation establishes the minimum number of required hours, it does not clarify how many hours would be acceptable to qualify if the applicant is under the required hours. It states that if under the required hours, the applicant would need six months of work experience and would need to have completed a "substantially equivalent training program."

³See https://www.townhall.virginia.gov/L/GetFile.cfm?File=Meeting\134\18569\Minutes_DPOR_18569_v2.pdf, pages 15 and 16.

⁴For the guidance document, see https://townhall.virginia.gov/L/ViewGDoc.cfm?gdid=5503.

⁵These reductions were only made for barbers as part of the introduction of two-tier licensing for the profession. See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8318 and https://townhall.virginia.gov/l/viewmandate.cfm?mandateid=898.

⁶As of October 1, 2020. See http://www.dpor.virginia.gov/uploadedFiles/MainSite/Content/Records_and_Documents/REG_POP(1).pdf.

⁷Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

^8"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.

⁹§ 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 performed by the Department of Planning and Budget.

Summary:

The amendments provide a definition of "substantially equivalence" for training and examinations and allow individuals who have five years of licensed experience in another state to substitute their experience for substantially equivalent training.

18VAC41-20-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. All terms defined in Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia are incorporated in this chapter.

"Barber school" means a place or establishment licensed by the board to accept and train students and that offers a barber, master barber, or dual barber/master barber curriculum approved by the board.

"Business entity" means a sole proprietorship, partnership, corporation, limited liability company, limited liability partnership, or any other form of organization permitted by law.

"Direct supervision" means that a Virginia licensed barber, cosmetologist, nail technician, or wax technician shall be present in the barbershop, cosmetology salon, nail salon, or waxing salon at all times when services are being performed by a temporary permit holder or registered apprentice.

"Endorsement" means a method of obtaining a license by a person who is currently licensed in another state.

"Firm" means any business entity recognized under the laws of the Commonwealth of Virginia.

"Licensee" means any person, sole proprietorship, partnership, corporation, limited liability company, limited liability partnership, or any other form of organization permitted by law holding a license issued by the Board for Barbers and Cosmetology, as defined in § 54.1-700 of the Code of Virginia.

"Post-secondary educational level" means an accredited college or university that is approved or accredited by the Southern Association of Colleges and Schools Commission on Colleges or by an accrediting agency that is recognized by the U.S. Secretary of Education.

"Reciprocity" means a conditional agreement between two or more states that will recognize one another's regulations and laws for equal privileges for mutual benefit.

"Reinstatement" means having a license or certificate restored to effectiveness after the expiration date has passed.

"Renewal" means continuing the effectiveness of a license or certificate for another period of time.

"Responsible management" means the following individuals:

1. The sole proprietor of a sole proprietorship;

2. The partners of a general partnership;

3. The managing partners of a limited partnership;

4. The officers of a corporation;

5. The managers of a limited liability company;

6. The officers or directors of an association or both; and

7. Individuals in other business entities recognized under the laws of the Commonwealth as having a fiduciary responsibility to the firm.

"Sole proprietor" means any individual, not a corporation, who is trading under his own name, or under an assumed or fictitious name pursuant to the provisions of §§ 59.1-69 through 59.1-76 of the Code of Virginia.

"Substantially equivalent exam" means an examination administered by the licensing entity which covers Virginia's scope of practice for that profession.

"Substantially equivalent training" means at least 80% of the required hours in Virginia and curriculum content covering Virginia's scope of practice for that profession.

"Virginia state institution" for the purposes of this chapter means any institution approved by the Virginia Department of Education or the Virginia Department of Corrections.

18VAC41-20-20. General requirements for a barber, master barber, cosmetologist, nail technician, or wax technician license.

A. Any individual wishing to engage in barbering, cosmetology, nail care, or waxing shall obtain a license in compliance with § 54.1-703 of the Code of Virginia and shall meet the following qualifications:

1. The applicant shall be in good standing as a licensed barber, master barber, cosmetologist, nail technician, or wax technician in Virginia and all other jurisdictions where licensed. The applicant shall disclose to the board at the time of application for licensure, any disciplinary action taken in Virginia and all other jurisdictions in connection with the applicant's practice as a barber, master barber, cosmetologist, nail technician, or wax technician. This includes monetary penalties, fines, suspensions, revocations, surrender of a license in connection with a disciplinary action, or voluntary termination of a license. The applicant shall disclose to the board at the time of application for licensure if he has been previously licensed in Virginia as a barber, master barber, cosmetologist, nail technician, or wax technician.

Upon review of the applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein the board deems the applicant is unfit or unsuited to engage in barbering, cosmetology, nail care, or waxing. The board will decide each case by taking into account the totality of the circumstances. Any plea of nolo contendere or comparable plea shall be considered a disciplinary action for the purposes of this section. The applicant shall provide a certified copy of a final order, decree, or case decision by a court, regulatory agency, or board with the lawful authority to issue such order, decree, or case decision, and such copy shall be admissible as prima facie evidence of such disciplinary action.

2. The applicant shall disclose his physical address. A post office box is not acceptable.

3. The applicant shall sign, as part of the application, a statement certifying that the applicant has read and understands the Virginia barber and cosmetology license laws and this chapter.

4. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall disclose the following information regarding criminal convictions in Virginia and all other jurisdictions:

a. All misdemeanor convictions involving moral turpitude, sexual offense, drug distribution, or physical injury within two years of the date of the application; and

b. All felony convictions within 20 years of the date of application.

Any plea of nolo contendere shall be considered a conviction for purposes of this subsection. The record of a conviction received from a court shall be accepted as prima facie evidence of a conviction or finding of guilt. The board, in its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia.

5. The applicant shall provide evidence satisfactory to the board that the applicant has passed the board-approved examination, administered either by the board or by independent examiners.

B. Eligibility to sit for board-approved examination.

1. Training in the Commonwealth of Virginia. Any person completing an approved barber, master barber, cosmetology, nail technician, or wax technician training program in a Virginia licensed barber, cosmetology, nail technician, or wax technician school, respectively, or a Virginia public school's barber, master barber, cosmetology, nail technician, or wax technician program approved by the Virginia Department of Education shall be eligible for examination.

2. Training outside of the Commonwealth of Virginia, but within the United States and its territories.

a. Any person completing a barber, master barber, cosmetology, nail care, or waxing training program that is substantially equivalent to the Virginia program but is outside of the Commonwealth of Virginia must submit to the board documentation of the successful completion of 1,100 hours of substantially equivalent training to be eligible for examination. If less than 1,100 hours of barber training was completed, an applicant must submit a certificate, diploma, or other documentation acceptable to the board verifying the completion of a substantially equivalent barber course and documentation of six months of barber work experience in order to be eligible for examination Applicants who completed a training program that is not substantially equivalent to Virginia's training, including out of country training, may substitute five years of work experience for training. Applicants should provide their work history demonstrating five years of experience as a licensed barber, master barber, cosmetologist, nail technician, or wax technician in any other state or jurisdiction of the United States on a form provided by the board.

b. Any person completing a master barber or cosmetology training program that is substantially equivalent to the Virginia program but is outside of the Commonwealth of Virginia must submit to the board documentation of the successful completion of 1,500 hours of training to be eligible for examination. If less than 1,500 hours of master barber or cosmetology training was completed, an applicant must submit a certificate, diploma, or other documentation acceptable to the board verifying the completion of a substantially equivalent master barber or cosmetology course and documentation of six months of master barber or cosmetology work experience in order to be eligible for examination.

c. Any person completing a nail technician training program that is substantially equivalent to the Virginia program but is outside of the Commonwealth of Virginia must submit to the board documentation of the successful completion of 150 hours of training to be eligible for examination. If less than 150 hours of nail technician training was completed, an applicant must submit a certificate, diploma, or other documentation acceptable to the board verifying the completion of a substantially equivalent nail technician course and documentation of six months of nail technician work experience in order to be eligible for the nail technician examination.

d. Any person completing a wax technician training program that is substantially equivalent to the Virginia program but is outside of the Commonwealth of Virginia must submit to the board documentation of the successful completion of 115 hours of training to be eligible for examination. If less than 115 hours of wax technician training was completed, an applicant must submit a certificate, diploma, or other documentation acceptable to the board verifying the completion of a substantially equivalent wax technician course and documentation of six months of wax technician work experience in order to be eligible for the wax technician examination.

18VAC41-20-30. License by endorsement.

A. Upon proper application to the board, any person currently licensed to practice as a barber, master barber, cosmetologist, nail technician, or wax technician who is a barber, master barber, cosmetologist, nail technician, or wax technician instructor, or who is a licensed instructor in the respective profession in any other state or jurisdiction of the United States and who has completed both a training program and a written and practical examination that is substantially equivalent to that required by this chapter, may be issued a barber, master barber, cosmetologist, nail technician, or wax technician license or a barber, master barber, cosmetology, nail technician, or wax technician the respective instructor certificate, respectively, without an examination. The applicant must also meet the requirements set forth in 18VAC41-20-20 A and 18VAC41-20-100.

B. Applicants for licensure by endorsement who completed a training program that is not substantially equivalent to Virginia's training but otherwise meet all the requirements listed in subsection A of this section, may substitute five years of work experience for training. Applicants should provide their work history demonstrating five years of licensed experience in any other state or jurisdiction of the United States on a form provided by the board.

FORMS (18VAC41-20)

Barber – Barber Instructor Examination & License Application, A450-1301_02EXLIC-v14 (rev. 4/2019)

Master Barber Examination & License Application, A450-1301EXLIC-v1 (eff. 4/2019)

Cosmetology – Cosmetology Instructor Examination & License Application, A450-1201_04EXLIC-v16 (rev. 2/2017)

Nail Technician – Nail Technician Instructor Examination & License Application, A450-1206_07EXLIC-v14 (rev. 2/2017)

Wax Technician – Wax Technician Instructor Examination & License Application, A450-1214_15EXLIC-v13 (rev. 2/2017)

Master Barber Examination & License Application, A450-1301EXLIC-v16 (eff. 1/2021)

Nail Technician – Nail Technician Instructor Examination & License Application, A450-1206_07EXLIC-v17 (rev. 1/2021)

Wax Technician – Wax Technician Instructor Examination & License Application, A450-1214_15EXLIC-v16 (rev. 1/2021)

Cosmetology – Cosmetology Instructor Examination & License Application, A450-1201_04EXLIC-v19 (rev.1/2021)

Temporary Permit Application, A450-1213TEMP-v2 (rev. 2/2017)

License by Endorsement Application, A450-1213END-v11 (rev. 4/2019)

License by Endorsement Application, A450-1213END-v16 (rev. 1/2021)

Training & Experience Verification Form, A450-1213TREXP-v6 (eff. 2/2017)

Individuals – Reinstatement Application, A450-1213REI-v9 (rev. 2/2017)

Salon, Shop, Spa & Parlor License/Reinstatement Application A450-1213BUS-v9 (rev. 2/2017)

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

Instructor Certification Application, A450-1213INST-v9 (rev. 1/2018)

Student Instructor – Temporary Permit Application A450-1213ST_TEMP-v2 (rev. 2/2017)

School License Application, A450-1213SCHL-v10 (rev. 2/2017)

School Reinstatement Application A450-1213SCHL-REIN-v3 (eff. 2/2017)

School Self-Inspection Form, A450-1213_SCH_INSP-v4 (eff. 5/2016)

Licensure Fee Notice, A450-1213FEE-v7 (rev. 1/2017)

Change of Responsible Management Application, A450-1213CRM-v1 (rev. 2/2017)

Training Substitution Form, A450-1213TR_SUB-v1 (rev. 1/2021)