18VAC41-70 Esthetics Regulations

REGULATIONS

Vol. 32 Iss. 4 - October 19, 2015

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR BARBERS AND COSMETOLOGY

Chapter 70

Proposed Regulation

Title of Regulation: 18VAC41-70. Esthetics Regulations (amending 18VAC41-70-10 through 18VAC41-70-40, 18VAC41-70-60 through 18VAC41-70-110, 18VAC41-70-160, 18VAC41-70-230, 18VAC41-70-240, 18VAC41-70-260, 18VAC41-70-270, 18VAC41-70-280; adding 18VAC41-70-35; repealing 18VAC41-70-170, 18VAC41-70-220).

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

Public Hearing Information:

December 16, 2015 - 1:15 p.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 200, Board Room 1, Richmond, VA 23233

Public Comment Deadline: December 18, 2015.

Agency Contact: Demetrios J. Melis, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 54.1-201 of Code of Virginia gives authority to the Board for Barbers and Cosmetology to promulgate regulations and 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.) 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 board seeks to amend its current regulations to ensure they are as least intrusive and burdensome as possible to provide an environment without unnecessary regulatory obstacles while still protecting the health, safety, and welfare of the public. Additionally, the board seeks to ensure regulations are clearly written and easily understandable and are representative of the current advancements and standards of the industries. Furthermore, the board seeks to strengthen some of its reporting requirements and prohibited acts to address areas of vulnerabilities for the perpetration of fraud by applicants and regulants. The board is also adding regulations to allow for esthetics apprenticeships.

Substance: The proposed amendments:

18VAC41-70-10. Add new definitions of the terms "business entity," "firm," "responsible management," "sole proprietor," and "post-secondary education level" and amend the term "licensee" to clarify usage in the chapter.

18VAC41-70-20. Require applicants to disclose all felony convictions during their lifetime and certain misdemeanors within the last three years and allow that the board may deny licensure to any applicant having prior disciplinary violations for which the board deems the applicant unfit to engage in the profession.

18VAC41-70-30. Clarify endorsement requirements and extend this avenue of licensure to master estheticians.

18VAC41-70-35. Establish requirements for esthetics apprenticeships and allow exam eligibility upon successful completion of the apprenticeship by adding this new section.

18VAC41-70-40. Add requirements that if an applicant does not apply for licensure within five years of passing both exams, he must reapply and clarify that the board will only retain examination records for nonapplicants for a maximum of five years.

18VAC41-70-60. Clarify and standardize requirements for examiners and chief examiners and bring the esthetics regulations in line with other board regulations.

18VAC41-70-70. Clarify that no fees will be charged for a temporary license and that the license will not be issued where grounds exist to deny the license.

18VAC41-70-80. (i) Add the requirement that the applicant spa's license be in good standing and require applicants and all members of responsible management to disclose all felony convictions during their lifetime, certain misdemeanors within the last three years, and any prior discipline by a licensing entity and add that the board may deny licensure to any applicant having prior disciplinary violations for which the board deems the applicant unfit to engage in the profession; (ii) require disclosure of the applicant's physical address, the firm's responsible management, and certification that the applicant has read applicable laws and regulations; (iii) add the requirement that voided licenses be returned to the board within 30 days and set forth what events void a license; (iv) require any change in responsible management be reported to the board within 30 days of the change; and (v) allow the board to inspect a shop or salon during reasonable hours, and define reasonable hours.

18VAC41-70-90. (i) Add the requirement that the applicant school's license be in good standing and require applicants and all members of responsible management to disclose all felony convictions during their lifetime, certain misdemeanors within the last three years, and any prior discipline by a licensing entity and add that the board may deny licensure to any applicant having prior disciplinary violations for which the board deems the applicant unfit to engage in the profession; (ii) require disclosure of the applicant's physical address, the firm's responsible management, and certification that the applicant has read applicable laws and regulations; (iii) incorporate 18VAC41-70-170, add the requirement that voided licenses be returned to the board within 30 days, and set forth what events void a license; (iv) require any change in responsible management be reported to the board within 30 days of the change; (v) exempt schools under the Virginia Department of Education; and (vi) allow the board to inspect a school during reasonable hours, and define reasonable hours.

18VAC41-70-100. Require esthetics instructor applicants to hold a current license in esthetics and to disclose all felony convictions during their lifetime, certain misdemeanors within the last three years, and any prior discipline by a licensing entity and allow for application denial where the board deems the applicant unfit or unsuited to engage in the profession.

18VAC41-70-110. Require master esthetics instructor applicants to hold a current license in master esthetics and to disclose all felony convictions during their lifetime, certain misdemeanors within the last three years, and any prior discipline by a licensing entity and allow for application denial where the board deems the applicant unfit or unsuited to engage in the profession.

18VAC41-70-160. Clarify and standardize the requirements for failing to renew licensure.

18VAC41-70-170. Repeal this section, which is incorporated into 18VAC41-70-90.

18VAC41-70-220. Repeal this section, which is already contained within 18VAC41-70-90.

18VAC41-70-230. Add specific requirements for recordkeeping and add a requirement that schools provide certain documentation to the board within specified time periods.

18VAC41-70-240. Add the requirement that schools provide student rosters to the board twice a year at specified intervals.

18VAC41-70-260. Add certificate display requirements for apprentices.

18VAC41-70-270. (i) Clarify the disinfection process between clients; (ii) add language about disinfecting tubs and bowls used for nail care, upkeep of the immediate area around wax pots, and requiring client bathrooms with hot and cold water; (iii) add regulations regarding sanitary storage of soiled and clean linens, sanitary containers, labeling, and disinfectant for nail care; and (iv) specify what should be included in the blood spill cleanup kit.

18VAC41-70-280. (i) Provide grounds for discipline for failing to teach the approved curriculum, committing bribery, failing to respond to or providing false or misleading information to the board or its agents, and refusing to allow inspection of any shop, salon, or school; (ii) clarify and refine grounds for discipline for certain criminal convictions and failing to report convictions within a certain time period; (iii) provide grounds for discipline for allowing unlicensed activity, failing to take sufficient measures to prevent transmission of communicable disease, and failing to comply with all procedures with regard to conduct at the examination

Issues: The primary advantage of the proposed amendments to the public is the addition of the apprenticeship program as a method of entry into the profession. Currently, the only avenue for entry is through training at proprietary schools, which may be financially burdensome for some who seek to enter the profession, potentially limiting the number of estheticians who enter the workforce, thus small businesses may have a reduced number of qualified employees to hire. The existence of the Department of Labor and Industry apprenticeship structure will facilitate an efficient and expeditious outcome to this change while providing an avenue to pursue training while being paid at least minimum wage as required by the apprenticeship program. Additionally, the board will continue to approve applicants and license professionals for which it has safeguards to ensure proper competency and standards of conduct as required by statute. The addition of prohibited acts will reduce fraud and better ensure the regulant population is minimally competent. The clarification of requirements regarding sanitation and health safety will ensure that the health, safety, and welfare of the public are better served. Further, regulants and applicants within these professions will be able to read the board's requirements with greater clarity and understanding. The added clarity of the language in the proposed regulations will facilitate a quicker and more efficient process for applicants and regulants by enhancing their understanding of their individual requirements. Further, consumers in the public, as well as regulators from related agencies, will have a better understanding of board requirements, which will also allow them to conduct their business with greater efficiency.

The primary advantage to the Commonwealth will be the positive economic impact of an increase of eligible estheticians entering the workforce who go through the apprenticeship program and potentially contribute to an increase in small businesses, the strengthening of existing small businesses, and a segment of the population with higher earning potential. Additionally, the proposed regulations would provide an avenue to pursue training while being paid at least minimum wage as required by the apprenticeship program. Another advantage is the continued successful regulation of estheticians and master estheticians who meet the minimum entry standards as required by statute. The proposed amendments strengthen the department's ability to investigate and discipline regulants who disregard the health, safety, and welfare of the public. No disadvantage has been identified.

The addition of apprenticeship as a method of entry will likely have a multifaceted positive economic impact. The clarification of the proposed language will facilitate greater understanding of board requirements for all involved.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of a periodic review, the Board for Barbers and Cosmetology (Board) proposes to make many substantive and clarifying changes to its regulations. Specifically, the Board proposes to:

1) Add a definition for "responsible management" and specify that responsible management must be in good standing if already licensed in Virginia or any other political jurisdiction and must provide a physical address (rather than a post office box) to the Board,

2) Change criminal background reporting requirements,

3) Require that individuals apply for licensure within five years of taking their licensure exam,

4) Allow the Board to decline to issue licenses, temporary permits and temporary instructor permits if grounds exist that would allow the Board to deny licensure (criminal activity, disciplinary action from this Board or any other, etc.),

5) Require that voided licenses be returned to the Board within 30 days of them being voided,

6) Allow individuals to obtain required training in an apprenticeship program and to take the licensure examination after successful completion of that program,

7) Require schools that are licensed by the Board have copies of any agreements that allow them to use necessary equipment that is owned by another entity,

8) Require schools licensed by the Board to periodically provide student rosters,

9) Require a 2x2 headshot of students attending any school licensed by the Board be attached to their student record files and

10) Require all shops, salons and schools licensed by the Board to have a bathroom with hot and cold running water in their facility.

Result of Analysis. Benefits likely exceed costs for some proposed regulatory changes; for some changes, there is insufficient information to ascertain whether benefits will outweigh costs. One proposed change as written is far more expensive than it need be. Costs likely outweigh benefits for at least one proposed change.

Estimated Economic Impact. Current regulations are not written so that the Board receives information about criminal convictions or past Board disciplinary actions for individuals whose businesses are licensed as limited liability corporations (LLC). This means that owners of a licensed business that is disciplined and loses its license can incorporate a new business and apply for a license and the Board would not know about past disciplinary actions against, essentially, the same entity. Because of situations such as this, the Board now proposes to add a definition for "responsible management" to include owners and officers of an LLC and also proposes to require that such entities be in good standing with this Board as well as any others where they might be licensed. This action will allow the Board to track owners of licensed businesses and deny licensure to businesses that have been disciplined, and lost their licenses, in the past. This change is likely to benefit the public as it will keep businesses that have been disciplined in the past from opening up under a new name but likely with the same unsafe or unethical practices that lost them their license in the first place.

Current regulations require that applicants for licensure disclose, and provide corroborating paperwork, to the Board for all misdemeanor and felony convictions. Board staff reports, however, that most misdemeanor convictions would normally not be considered grounds for denial of licensure. This means that currently applicants for licensure are spending time and money to gather paperwork from whatever jurisdictions they need to, including jurisdictions very far away from Virginia, and that the Board is spending time unnecessarily looking at paperwork for legal infractions that have no bearing on whether the applicant is likely to provide safe and ethical services to their clients. To address these issues, the Board now proposes to limit the scope of convictions that applicants must report to misdemeanors involving moral turpitude that occur within three years of application for licensure and all felony convictions regardless of when they occurred. Affected applicants for licensure will benefit from this as they will not have to incur expenses for gathering paperwork associated with older misdemeanors or misdemeanors that do not involve moral turpitude, which may only be available if they physically go to the courthouses where convictions occurred. The Board will also benefit from not being inundated with paperwork that is unlikely to affect the licensing decisions they make.

Currently, individuals may apply for licensure any time after they complete training requirements and pass their licensure exams (written and practical) without time limits. The Board feels that practical methodology in fields licensed by the Board change enough over time that individuals who passed their licensure exams a long time before they actually apply for licensure may no longer be competent to practice. As a consequence, the Board proposes to specify that individuals must apply for licensure no longer than five years after they take the licensure exams. Any individuals applying for licensure past that timeframe will have to pay to take the licensure exams again (currently this costs $170 to take both). The benefits of this change will only outweigh the costs if changes within fields licensed by the Board are significant enough to render individuals incompetent to practice without refreshing their knowledge and retaking the exam. There is insufficient information to ascertain whether this would be the case.

Board staff reports that currently the Board requires applicants for licensure to disclose past crimes and disciplinary actions but that current regulations do not allow the Board to deny licensure because of the information disclosed. The Board now proposes to add language to these regulations that will allow the Board to deny the issuance of licenses, temporary permits and temporary instructor permits if they believe that any information disclosed to the Board would deem the applicant unfit or unsuited to practice in fields that are licensed by the Board. This change will likely benefit the public as it will allow the Board to decline to license individuals that have, for instance, a past history of injury to clients in other jurisdictions.

Current regulations require that the Board be notified within 30 days if a Board issued business license is voided for any reason (the business has been sold, responsible management has changed, etc.) and also require that the voided license be returned to the Board but does not specify when. Because the Board is concerned that holders of these licenses will pass them to other entities that might fraudulently set up shop with them, the Board now proposes to require that voided licenses be returned to the Board within 30 days of the change that voided them. To the extent that it is complied with, this change will greatly benefit the public as it will stop the offering of services that would be performed fraudulently under a license that does not belong to the individual(s) offering those services.

Currently, individuals who wish to obtain an esthetician's or master esthetician's license must obtain required training at one of the 48 esthetics schools in the Commonwealth; attending one of these schools costs between $15,000 and $20,000. The Board now proposes to allow an alternate path to licensure by working with the Department of Labor and Industry to set up standards for an apprenticeship program in esthetics. After these standards are set, individually licensed estheticians and master estheticians as well as esthetics spas will be able to offer apprenticeships which will allow individuals to obtain on the job training that, when successfully completed, will qualify them to take the licensure exam and become licensed. This change will benefit individuals who wish to become estheticians as it will offer them a way to become licensed that does not cost thousands of dollars. This change will also likely benefit the public as it may lead to more people entering this professional field which may, in turn, lead to the costs of esthetics services dropping. Esthetics schools will likely not benefit from this change as they will not be getting tuition from individuals who currently must use their services in order to become licensed.

The Board proposes several other regulatory changes to prevent possible fraudulent activity at licensed schools. Specifically the Board proposes to require schools that do not own equipment necessary for teaching to have copies of agreements that allow them to access equipment owned by other entities for their students to use; schools will also be required to periodically provide the Board with student rosters. These changes will allow Board staff to verify that students will have access to the equipment needed to learn Board required skills and that schools are not making up student files only when they are inspected by the Board. Board staff reports that these changes will likely cost less than $25 per year in compliance costs. These costs are likely outweighed by the benefits that will likely accrue to students who will be more likely to be guaranteed to have access to equipment necessary for their education.

The Board also proposes to require that student files include a 2x2 head and shoulder photo of the student. Board staff reports that this will be required to combat rampant testing fraud and will allow the identity of students taking licensure exams to be verified. While this change is likely to benefit the public, because fewer individuals would presumably be licensed without actually passing the licensure exam, the cost of compliance for this requirement as written will likely be far higher than it needs to be. 2x2 (passport size) photos cost between $8 and $12¹ whereas larger, more conventionally sized photos, are far cheaper. A 4x6 photo print, for instance, can be printed for as little as $0.09 at Walmart. Compliance costs for this requirement could be very easily significantly reduced if the Board changed the proposed language to require a photo that was at least 2x2 rather than exactly 2x2.

Finally, current regulations require that licensed shops, spas and schools have "a fully functional bathroom in the same building with a working toilet and sink." Some enforcement agents have allowed licensed facilities in malls to count the mall bathrooms as meeting this requirement and some enforcement agents have said that mall bathrooms do not meet this requirement. Board staff reports that the Board is concerned that allowing mall bathrooms to meet regulatory requirements will have a client wandering far afield of licensed facilities, possibly in the middle of a chemical peel. Board staff reports that the Board feels it would be safer for clients if licensed facilities are required to have bathrooms within their shops. The Board now proposes to add language to these regulations that requires licensed facilities have bathrooms that are "maintained exclusively for client use." Board staff estimates that there are approximately 15 licensed facilities that are located in malls and do not have bathroom facilities within the confines of their shops that would have to either move or build a bathroom in order to comply with this proposed regulatory change. Board staff further estimates that building a bathroom in shops that do not have them can cost between $2,000 and $10,000. Given the high cost of requiring shops to meet a stricter standard than is sometimes allowed now, costs for this proposed change likely outweigh the benefits of increased convenience for clients and possibly avoiding chemical burns if clients go to use the mall bathroom and stay away longer than they should or longer than is advised.

Businesses and Entities Affected. The Department of Professional and Occupational Regulation (DPOR) reports that the Board currently licenses 2,851 estheticians, 550 esthetics and 48 esthetics schools in the Commonwealth. All of these entities, as well as future licensees, will be affected by these proposed changes. Most, if not all, spas and schools would likely qualify as small businesses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. A new proposed requirement that individuals apply for licensure within five years of taking their licensure exam may increase costs for these individuals (as they would have to study for and retake their exam) and may slightly decrease the probability of them becoming licensed and working in fields licensed by the Board. Board staff believes from anecdotal evidence that such a situation would be extremely rare.

Effects on the Use and Value of Private Property. Proposed changes such as requiring in-shop client bathrooms where shops currently are allowed to be in regulatory compliance by being in a large facility (such as a mall) that has bathroom accommodations are likely to greatly increase costs, and lower profits, for affected shops

Small Businesses: Costs and Other Effects. Proposed requirements that impact bathroom facilities will likely increase costs for affected small businesses. Several proposed requirements, such as having to periodically provide student rosters and have 2x2 headshots attached to student files, are likely to increase costs either for schools or for both schools and their students.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The Board would likely be able to decrease costs for regulated entities by allowing photos that were larger than 2x2 for student files. The Board also may wish to revisit proposed bathroom requirements.

Real Estate Development Costs. Proposed changes such as requiring in-shop client bathrooms where shops currently are allowed to be in regulatory compliance by being in a larger facility (such as a mall) that has bathroom accommodations are likely to increase the cost of building new malls that will have barber shops or salons as tenants.

Legal Mandate.

General: 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 Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• 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,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• 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, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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¹ An internet search revealed prices for passport photos ranging from $7.99 at Walmart to $11.99 at CVS.

Agency's Response to Economic Impact Analysis: The board concurs with the analysis for items #1, 2, and #4 through 8 in the Summary of Proposed Amendments to Regulations. The board respectfully disagrees with items #3, 9, and 10.

Estimated Economic Impact:

1. Summary Item #3: The proposed regulations would require that an applicant who does not apply for licensure within five years of passing the exam must retake the exam to be eligible for licensure.

Economic Impact Analysis (EIA) Position: "The benefits of this change will only outweigh the costs if changes within fields licensed by the board are significant enough to render individuals incompetent to practice without refreshing their knowledge and retaking the exam."

Agency Response: There are several fundamental reasons for implementing this change in the regulations, not just the single issue raised by the EIA. For someone who applies for their license more than five years after taking the exam, the full scope of problems includes:

• The board cannot know whether they still possess the knowledge or skill to competently practice,

• The board does not have access to testing records older than five years to confirm the applicant truly passed the exam, and

• Changes in the industry may have made the applicant's knowledge obsolete.

Without adding this requirement, the board will face the dilemma of having to license individuals who may not be minimally competent, as well as experience increased costs for maintaining exam records in perpetuity.

Explanation: The board is statutorily required to establish the qualifications of applicants for licensure. The board utilizes written and practical examinations to establish that applicants possess the competence to engage in the profession.

There are several issues that affect competence when an applicant has not been engaged with the profession for many years. The EIA correctly identifies that changes in the industry may render an applicant's knowledge obsolete. However, the EIA fails to account for the other, more significant reason, which is that individuals who have not been engaged in the profession for five years are likely to have forgotten much of the knowledge and skill for engaging in the practice in a safe manner. The board has no way of knowing whether an individual who has not been engaged in the practice for six, 10, or 20 years still has the practical skill or information base to practice safely. Since the board regulates professions which use chemicals and must have current knowledge in preventing the transmission of communicable diseases, it is particularly important that the board meet its statutory obligation to ensure it licenses minimally competent individuals in order to protect the public. The board believes that is cannot accurately assess if an individual possesses the skill and knowledge qualifications for licensure if those skills and knowledge have not been measured in the previous five years.

Further, the EIA does not identify that the proposed regulations add the requirement that records of examinations only be kept for five years. Currently, while the regulations allow an applicant to apply any time after they have taken the exam, the board's examination vendor only maintains exam records for five years. This discrepancy means that the board has no way to verify that an applicant claiming to have passed the exam more than five years ago has truly done so. To resolve this conflict without changing the regulation, the board will have to either require the exam vendor to maintain records in perpetuity, or start maintaining these records itself. Either of these options will increase costs either through higher examination fees for the candidate or if the board were to maintain the records, it would increase the board's expenses, and ultimately licensing fees. As such, the board believes that the five year recordkeeping will result in maintaining a lower cost for licensure, in addition to protecting the public's health, safety, and welfare.

2. Summary Item #9: The proposed regulations would require a 2"x2" head and shoulder picture of the students attending any school licensed by the board be attached to their student record files.

EIA Position: "[T]he cost of compliance for this requirement as written will likely be far higher than it needs to be. 2x2 (passport size) photos cost between $8 and $12, whereas larger, conventionally sized photos, are far cheaper."

Agency Response: The proposed regulation does not specify passport photos, and can be met by any type of photo, as long as the head and shoulder portion are 2x2. The EIA assumes that the cost of this requirement will be the cost of acquiring passport photos. However, the EIA's assumptions fail to take into account that:

• This requirement is for the schools, not the students,

• The regulation does not require passport photos, and

• Students are already required to provide this 2x2 photo during the application process.

The EIA incorrectly assumes that only a passport photo would meet this requirement. However, compliance costs would only be in the $8.00-$12.00 range if the school did not provide this service and if the student chose to utilize passport photos instead of a low cost or free alternatives identified below. Further, the proposed regulation provides the board with an important tool to combat rampant fraud in the pre-licensure process.

Explanation: The board is authorized to establish the qualifications of licensure and to promulgate regulations necessary to effectively administer the regulatory system. The authority currently in 18VAC41-70-20 of the board's regulations already requires that in order to be eligible to sit for examination, a student must have completed a board-approved training program.

The language contained in proposed 18VAC41-70-230.A, requiring schools maintain a 2x2 color head and shoulder photo, is a necessary piece of fraud detection for the board to corroborate that the individual sitting for the exam is, in fact, the student who completed the training program. This regulation is being proposed, along with several other recordkeeping measures, to address fraud in the pre-licensure process.

The EIA does not take into account that the requirement is for the schools. The school would bear the requirement of maintaining the photo, and may utilize its own photograph equipment to comply with the regulation. It is likely that there will be variation in the market, with some schools generating the photo in-house, and others asking the students to provide the photo. As such, the cost of the regulation may be as little as the cost for the school in ink and printer paper.

The EIA incorrectly assumes that this requirement is met only with a passport photo. While a school may utilize a passport photo, the regulation does not specify or require a passport photo. Schools may utilize whatever sized photo they wish, as long as the head and shoulder portion is 2x2. The EIA's recommendation of using a $0.09 4x6 photo is already acceptable under the proposed regulation, as long as the head and shoulder portion meets the 2x2 criteria. In fact, as will be explained below, the board currently accepts and utilizes these types of photos for the other 2x2 photo requirements. It is worth noting that even the U.S. Department of State does not require individuals to purchase passport photos, and has a tool to allow passport applicants to take their own photo and convert it to the proper specifications for free. Schools would be able to utilize this free service to meet the board's requirements.

The EIA incorrectly assumes that this requirement will create a new financial burden. Applicants already are required to provide a 2x2 head and shoulder color photograph when they apply for licensure. This photo must be submitted along with their application. The examination vendor utilizes this photo to ensure that the individual taking the exam is the same individual who applied for licensure. These photograph requirements have been essential to the board's ability to stop testing fraud. Further, the board frequently sees 4x6 photos, whole or cut down to 2x2. The board also accepts 2x2 photographs that have been printed on home printers if they meet the standard. This recordkeeping requirement for the schools, if the school defrays the cost to the student, only means the student would have to produce an additional copy of the 2x2 photo. So even if a student chose to utilize the higher cost passport photo, since passport photos come in sets, ranging from 2 to 10 photos, there would likely be no additional cost for students utilizing passport photos.

3. Summary Item #10: The proposed regulations would add to the existing requirement that shops, salons, schools, and facilities maintain working toilet and sink, an additional requirement that the bathroom be exclusively for client use and have hot and cold running water.

EIA Position: The EIA argues that, "[g]iven the high cost of requiring shops to meet a stricter standard than is sometimes allowed now, costs for this proposed change likely outweigh the benefits…"

Agency Response: The proposed regulations address a very rare situation in which a spa does not have a bathroom exclusively for client use with hot and cold water, usually because they are situated in a mall. Spas are already required to have bathrooms, and this change is meant to clarify an ambiguity in the regulation that has caused confusion for staff and business owners. The board has encountered and foresees certain health and safety risks associated with not having this requirement, such as:

• Loss of oversight of chemical treatments while clients have left the spa, and

• Unsanitary bathroom conditions that the spa has no authority to address.

Additionally, this requirement would add a level of convenience, as patrons would not have to travel across the mall to use the bathroom. The board believes these are substantial issues for the spas that are affected. The EIA fails to adequately account for the health and safety risk this regulation is meant to address and fails to mention that the board may consider grandfathering existing businesses that would be non-compliant when this regulation takes effect.

Explanation: As the EIA explains, this regulation partially stems out of a concern regarding spas in malls. Spas are already required to have bathrooms, but spas in mall have the unique problem of not having control over the common bathroom. This has led to some confusion on the part of staff and business owners regarding spa responsibility. So, for example, the mall may temporarily shut down the bathroom for maintenance or cleaning. This would put the spa in non-compliance with the regulations, even though the spa does not have control of the situation. This lack of control over the bathroom may lead to other regulatory violations, since current regulations require the bathroom's fixtures to be in good repair, have adequate lighting, and sufficient ventilation. By specifying the bathroom must be exclusively for client use, this should help resolve this issue and reduce staff and business owner confusion.

Also, the board has expressed concern that if salons have to send their customers from one end of the mall to the other to use the bathroom, the spa is putting that client at risk. Spas use chemicals (such as those used in chemical peels) which have the potential to cause injury to clients if not used correctly, or left on the client for too long. When a client under the treatment of these chemicals leaves the spa, the spa no longer has oversight of that client. The spa cannot properly supervise the treatment or ensure that the chemicals are removed timely when the consumer is off site and subject to whatever delays they may encounter while at a shopping mall. This situation is a clear and foreseeable risk to the public which the board seeks to address.

Further, the requirement that the bathroom be for client use only addresses a re-occurring problem of shared bathrooms. The board has encountered during inspections the situations of spas sharing bathrooms with other businesses, where the spa did not have control over the sanitation of the bathroom. This left the board in the dilemma of having to cite a business for unsanitary conditions it had no control over, or not citing a business that puts its clients in unsanitary conditions.

The board is aware that there could be significant costs associated with renovating a facility to come into compliance with this proposed regulation. There are currently regulations in place that require spas to sanitize using hot water. Spas that cannot meet the new standard are likely unable to meet the current standard either, and thus are not properly sanitizing their implements. The requirement for hot and cold water is not necessarily adding a new requirement, but rather clarifying the need for hot water. Despite this, the board will consider implementing a grandfather clause for facilities that this regulation may adversely affect due to what could be very large costs to comply. It is estimated that there are very few spas that would be adversely affected by this regulation. Even with a grandfather provision, the board believes that applying the proposed regulation to new spas going forward will ensure a more sanitary and safer experience as the industry moves toward this standard.

Effects on the Use and Value of Private Property.

EIA Position: "Proposed changes such as requiring in-shop client bathrooms where shops currently are allowed to be in regulatory compliance by being in a large facility (such as a mall) that has bathroom accommodations are likely to greatly increase costs, and lower profits, for affected shops."

Agency Response: The board believes that while the very few spas that would be affected by this change would incur a one-time expense, the actual use and value of the property would increase. Adding a bathroom to a facility that does not currently have one makes the building more functional and desirable as a marketable space.

Small Businesses: Costs and Other Effects.

EIA Position: "Proposed requirements that impact bathroom facilities will likely increase costs for affected small businesses. Several proposed requirements, such as having to periodically provide student rosters and have 2x2 headshots attached to student files, are likely to increase costs either for schools or for both schools and their students."

Agency Response: As noted above, the board believes that there are very few spas, 15 or less, that would be affected by the requirement to have bathrooms exclusively for client use.

The reporting requirements being added in this action, including the 2x2 headshot, are not anticipated to have significant costs associated with compliance. The board expects that compliance costs for all of the new reporting requirements should be less than $25 annually. For those that choose to utilize digital recordkeeping, there may not be any increased costs at all. It should be noted that the board currently is contracting with an exam vendor that allows schools to maintain almost all of the required records on the vendor's online servers, at no charge to the school. Since the board has access to these servers, schools that utilize this free service would essentially automatically be in compliance with the new regulations.

Small Businesses: Alternative Method that Minimizes Adverse Impact:

EIA Position: "The board would likely be able to decrease costs for regulated entities by allowing photos that were larger than 2x2 for student files. The board also may wish to revisit proposed bathroom requirements."

Agency Response: As noted above, schools may be able to meet the 2x2 photograph requirement several ways for little or no cost. The requirement is that the head and shoulder portion of the photo be 2x2. This does not preclude the use of larger photos, only necessitates cropping the photo to meet the board's requirement. Additionally, the Department of State has a free program that converts digital photos to the standards required by the board.

The board believes that the requirement for spas to have bathrooms available exclusively for client use is necessary to protect the health, safety, and welfare of the public.

Summary:

The proposed amendments are the result of a periodic review and include clarifying text to ensure consistency with other board regulations and state and federal laws and compliance with current industry standards. Changes include (i) adding new definitions; (ii) requiring disclosure of felonies, certain misdemeanors, and disciplinary actions; (iii) allowing individuals to obtain required training in esthetics apprenticeship programs and to take licensure exams after successful completion of such a program; (iv) requiring individuals to apply for licensure within five years of taking their exams; (v) clarifying that no fee is charged for a temporary license; (vi) requiring voided licenses to be returned to the board within 30 days and clarifying what circumstances may lead to a voided license; (vii) allowing for board inspection of shops, salons, and schools during reasonable hours; (viii) requiring schools to provide specific information to the board and within required time periods; (ix) providing grounds for discipline for several prohibited actions; and (x) updating sanitation requirements for salons, shops, and schools, including requiring salons and shops to provide a client bathroom.

Part I
General

18VAC41-70-10. 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.

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

"Credit hour" means a combination of the number of hours in class each week and the number of hours per week in a laboratory by which a school may measure its course work. One unit of credit equals one hour of classroom study, two hours of laboratory experience or three hours of internship or practicum or a combination of the three times the number of weeks in the term. Emerging delivery methodologies may necessitate a unit of undergraduate credit to be measured in nontime base methods. These courses shall use the demonstration of competency, proficiency, or fulfillment of learning outcomes to ensure these courses are equivalent to traditionally delivered courses.

"Direct supervision" means that a Virginia licensed esthetician or master esthetician shall be present in the esthetics spa or esthetics school at all times when services are being performed by a temporary license holder or student.

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

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

"Licensee" means any individual, sole proprietorship, partnership, association, corporation, limited liability company, or corporation 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 Commission on Colleges or by an accrediting agency that is recognized by the U.S. Secretary of Education.

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

"Renewal" means continuing the effectiveness of a license 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.

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

Part II
Entry

18VAC41-70-20. General requirements for an esthetician license or master esthetician license.

A. In order to receive a license as an esthetician or master esthetician, an applicant must Any individual wishing to engage in esthetics or master esthetics shall obtain a license in compliance with § 54.1-703 of the Code of Virginia and meet the following qualifications:

1. The applicant shall be in good standing as a licensed esthetician in every jurisdiction 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 another jurisdiction Virginia and all other jurisdictions in connection with the applicant's practice as an esthetician. This includes but is not limited to 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 whether he has been previously licensed in Virginia as an esthetician or master esthetician.

Upon review of an applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in esthetics or master esthetics. 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 esthetics license laws and the board's esthetics regulations this chapter.

4. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall disclose a conviction, in any jurisdiction, of any misdemeanor or felony. Any plea of nolo contendere shall be considered a conviction for this purpose of this section. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt. The board, at its discretion, may deny licensure or certification to any applicant in accordance with § 54.1-204 of the Code of Virginia 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 three years of the date of the application; and

b. All felony convictions during the applicant's lifetime.

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 requirement 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 esthetics training program or a master esthetics training program in a Virginia licensed esthetics school shall be eligible for the applicable examination.

2. Training outside of the Commonwealth of Virginia. Any person completing esthetics training 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 training to be eligible for examination. If less than the required hours of esthetics training was completed, an applicant must submit a certificate, diploma, or other documentation acceptable to the board verifying the completion of a substantially equivalent esthetics course and documentation of six months of work experience as an esthetician in order to be eligible for the esthetician examination.

18VAC41-70-30. License by endorsement.

Upon proper application to the board, any person currently licensed to practice as an esthetician or master esthetician in any other state or jurisdiction of the United States and who has completed both a training program and a written examination and a practical examination requirement that is are substantially equivalent to that those required by this chapter may be issued an esthetician or master esthetician license without an examination. The applicant must also meet the requirements set forth in 18VAC41-70-20 A.

18VAC41-70-35. Apprenticeship training.

A. Licensed estheticians and master estheticians who train apprentices shall comply with the standards for apprenticeship training established by the Division of Registered Apprenticeship of the Virginia Department of Labor and Industry and the Virginia Board for Barbers and Cosmetology. Owners of esthetics spas who train apprentices shall comply with the standards for apprenticeship training established by the Division of Registered Apprenticeship of the Virginia Department of Labor and Industry.

B. Any person completing the Virginia apprenticeship program in esthetics or master esthetics shall be eligible for examination.

18VAC41-70-40. Examination requirements and fees.

A. Applicants for initial licensure shall meet the pass both a written examination and a practical examination requirement approved by the board. The examinations may be administered by the board or by a designated testing service. The board maintains discretion in determining the license requirements.

B. Any applicant who passes one part of the examination shall not be required to take that part again provided both parts are passed within one year of the initial examination date.

B. C. Any candidate failing to appear as scheduled for examination shall forfeit the examination fee.

C. D. The fee for examination or reexamination is subject to contracted charges to the board by an outside vendor. These contracts are competitively negotiated and bargained for in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). Fees may be adjusted and charged to the candidate in accordance with these contracts. The fee shall not exceed $225 per candidate.

E. Any candidate failing to apply for initial licensure within five years of passing both a written examination and a practical examination shall be required to retake both portions. Records of examinations shall be maintained for a maximum of five years.

18VAC41-70-60. Examination administration.

A. The examination shall be administered by the board or the designated testing service. The practical examination shall be supervised by a chief examiner.

B. Every esthetics or master esthetics examiner shall hold a current Virginia license in his respective profession, have three or more years of active experience as a licensed professional, and be currently practicing in that profession. Examiners shall attend training workshops sponsored by the board or by a testing service acting on behalf of the board.

C. No certified esthetics or master esthetics instructor who (i) is currently teaching, (ii) is a school owner, or (iii) is an apprentice sponsor shall be an examiner.

D. Each esthetics or master esthetics chief examiner shall (i) hold a current Virginia license in his respective profession, (ii) have five or more years of active experience in that profession, (iii) have three years of active experience as an examiner, and (iv) be currently practicing in his respective profession. Chief examiners shall attend training workshops sponsored by the board or by a testing service acting on behalf of the board.

B. E. The applicant shall follow all procedures established by the board with regard to conduct at the examination. Such procedures shall include any written instructions communicated prior to the examination date and any instructions communicated at the site, either written or oral, on the date of the examination. Failure to comply with all procedures established by the board and the testing service with regard to conduct at the examination may be grounds for denial of application.

18VAC41-70-70. Esthetician temporary license.

A. A temporary license to work under the direct supervision of a currently licensed esthetician or master esthetician may be issued only to applicants for initial licensure that the board finds eligible for the applicable examination. There shall be no fee for a temporary license.

B. The temporary license shall remain in force for 45 days following the examination date. 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. Temporary permits shall 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.

18VAC41-70-80. Spa General requirements for a spa license.

A. Any individual firm wishing to operate an esthetics spa shall obtain a spa license in compliance with § 54.1-704.1 of the Code of Virginia., and shall meet the following qualifications in order to receive a license:

1. The applicant, and all members of the responsible management, shall be in good standing as a licensed spa 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 operation of any esthetics spa or practice of the profession. This includes but is not limited to 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 the applicant has been previously licensed in Virginia as an esthetics spa.

Upon review of the applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in the operation of an esthetics spa. 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 esthetics license laws and this chapter.

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

a. All misdemeanor convictions within three years of the date of the application; and

b. All felony convictions.

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 disclose the firm's responsible management.

B. An esthetics spa license Shop or salon licenses are issued to firms as defined in this chapter and shall not be transferable and shall bear the same name and address of the business. Any changes in the name, or address, or ownership of the spa shall be reported to the board in writing within 30 days of such changes. New owners shall be responsible for reporting such changes in writing to the board within 30 days of the changes. The board shall not be responsible for the licensee's, certificate holder's, or permit holder's failure to receive notices, communications, and correspondence caused by the licensee's, certificate holder's, or permit holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board.

C. In the event of a closing of an esthetics spa, the owner must notify the board in writing within 30 days of the closing, and return the license to the board. Whenever the legal business entity holding the license is dissolved or altered to form a new business entity, the original license becomes void and shall be returned to the board within 30 days of the change. Additionally, the firm shall apply for a new license, within 30 days of the change in the business entity. Such changes include but are not limited to:

1. Death of a sole proprietor;

2. Death or withdrawal of a general partner in a general partnership or the managing partner in a limited partnership; and

3. Conversion, formation, or dissolution of a corporation, a limited liability company, or association, or any other business entity recognized under the laws of the Commonwealth of Virginia.

D. Any change in the officers of a corporation, managers of a limited liability company, or officers or directors of an association shall be reported to the board in writing within 30 days of the change.

E. The board or any of its agents shall be allowed to inspect during reasonable hours any licensed shop or salon for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter. For purposes of a board inspection, "reasonable hours" means the hours between 9 a.m. and 5 p.m.; however, if the licensee generally is not open to the public substantially during the same hours, "reasonable hours" shall mean the business hours when the licensee is open to the public.

18VAC41-70-90. School General requirements for a school license.

A. Any individual firm wishing to operate an esthetics school shall submit an application to the board at least 60 days prior to the date for which approval is sought, obtain a school license in compliance with § 54.1-704.2 of the Code of Virginia. All instruction and training of estheticians shall be conducted under the direct supervision of a certified esthetics instructor. All instruction and training of master estheticians shall be conducted under the direct supervision of a certified master esthetics instructor., and meet the following qualifications in order to receive a license:

1. The applicant and all members of the responsible management shall be in good standing as a licensed school 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 operation of any esthetics school or practice of the profession. This includes but is not limited to 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 the applicant has been previously licensed in Virginia as an esthetics school.

Upon review of the applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in the operation of an esthetics school. 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 esthetics license laws and this chapter.

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

a. All misdemeanor convictions within three years of the date of the application; and

b. All felony convictions.

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 disclose the firm's responsible management.

B. An esthetics Esthetics school license licenses are issued to firms as defined in this chapter and shall not be transferable and shall bear the same name and address as the school. Any changes in the name or the address of record or principal place of business of the school shall be reported to the board in writing within 30 days of such change. The board shall not be responsible for the licensee's, certificate holder's, or permit holder's failure to receive notices, communications, and correspondence caused by the licensee's, certificate holder's, or permit holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board. The name of the school must indicate that it is an educational institution. All signs or other advertisements must reflect the name as indicated on the license issued by the board and contain language indicating it is an educational institution.

C. In the event of a change of ownership of a school, the new owners shall be responsible for reporting such changes in writing to the board within 30 days of the changes and obtain a new license.

D. In the event of a school closing, the owner must notify the board in writing within 30 days of the closing, and return the license to the board.

C. Whenever the legal business entity holding the license is dissolved or altered to form a new business entity, the original license becomes void and shall be returned to the board within 30 days of the change. Additionally, the firm shall apply for a new license within 30 days of the change in business entity. Such changes include but are not limited to:

1. Death of a sole proprietor;

2. Death or withdrawal of a general partner in a general partnership or the managing partner in a limited partnership; and

3. Conversion, formation, or dissolution of a corporation, a limited liability company, an association, or any other business entity recognized under the laws of the Commonwealth of Virginia.

D. Any change in the officers of a corporation, managers of a limited liability company, or officers or directors of an association shall be reported to the board in writing within 30 days of the change.

E. Barber schools, cosmetology schools, nail schools, or waxing schools under the Virginia Department of Education shall be exempted from licensure requirements.

F. The board or any of its agents shall be allowed to inspect during reasonable hours any licensed school for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter. For purposes of a board inspection, "reasonable hours" means the hours between 9 a.m. and 5 p.m.; however, if the licensee generally is not open to the public substantially during the same hours, "reasonable hours" shall mean the business hours when the licensee is open to the public.

18VAC41-70-100. General requirements for an esthetics instructor certificate.

A. Upon filing an application with the Board for Barbers and Cosmetology, any person meeting the qualifications set forth in this section shall be eligible for an esthetics instructor certificate if the person Any individual wishing to engage in esthetics instruction shall meet the following qualifications:

1. Holds a current Virginian esthetician license; and The applicant shall be in good standing as a licensed esthetician 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 an esthetician. This includes but is not limited to 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 whether he has been previously licensed in Virginia as an esthetician or master esthetician.

Upon review of the applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in esthetics. 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 hold a current Virginia esthetics license;

Completes 3. The applicant shall complete one of the following qualifications:

a. Passes Pass a course in teaching techniques at the postsecondary educational level; or

b. Completes Complete an instructor training course approved by the Virginia Board for Barbers and Cosmetology under the supervision of a certified esthetics instructor or master esthetics instructor in an esthetics school and passes pass an examination in esthetics instruction administered by the board or by a testing service acting on behalf of the board.; and

3. Persons who (i) make application for licensure between September 20, 2007, and September 19, 2008, and (ii) have completed one year of documented work experience as an esthetics instructor are not required to complete subdivision 2 of this subsection.

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 three years of the date of the application; and

b. All felony convictions during the applicant's lifetime.

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.

B. Esthetics instructors Instructors shall be required to maintain a Virginia esthetician license.

18VAC41-70-110. General requirements for a master esthetics instructor certificate.

A. Upon filing an application with the Board for Barbers and Cosmetology, any person meeting the qualifications set forth in this section shall be eligible for a master esthetics instructor certificate if the person Any individual wishing to engage in master esthetics instruction shall meet the following qualifications:

1. The applicant shall be in good standing as a licensed master esthetician 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 an master esthetician. This includes but is not limited to 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 the applicant has been previously licensed in Virginia as an esthetician or master esthetician.

Upon review of the applicant's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in esthetics or master esthetics. 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.

1. Holds 2. The applicant shall hold a current Virginia master esthetician license; and

2. Completes 3. The applicant shall complete one of the following qualifications:

a. Passes Pass a course in teaching techniques at the postsecondary educational level; or

b. Completes Complete an instructor training course approved by the Virginia Board for Barbers and Cosmetology under the supervision of a certified esthetics instructor or master esthetics instructor in an esthetics school and passes pass an examination in esthetics instruction administered by the board or by a testing service acting on behalf of the board. 3. Persons who (i) make application for licensure between September 20, 2007, and September 19, 2008, and (ii) have completed one year of documented work experience as a master esthetics instructor are not required to complete subdivision 2 of this subsection.; and

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 three years of the date of the application; and

b. All felony convictions during the applicant's lifetime.

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.

B. Master esthetics instructors Instructors shall be required to maintain a Virginia master esthetician license.

18VAC41-70-160. Failure to renew.

A. When a licensed individual or entity licensee fails to renew its license within 30 days following its expiration date, the licensee shall apply for reinstatement of the license by submitting to the Department of Professional and Occupational Regulation a reinstatement application and renewal fee and reinstatement fee.

B. When an esthetician or master esthetician a licensee fails to renew his its license within two years following the expiration date, reinstatement is no longer possible. To resume practice, the former licensee shall apply for licensure as a new applicant and shall meet all current application entry requirements and shall pass the board's current examination for each respective license. Individuals applying for licensure under this section shall be eligible to apply for a temporary license from the board under 18VAC41-70-70.

C. When an esthetics spa fails to renew its license within two years following the expiration date, reinstatement is no longer possible. To resume practice, the former licensee shall apply for licensure as a new applicant and shall meet all current application requirements.

D. C. The application for reinstatement for a an esthetics school shall provide (i) the reasons for failing to renew prior to the expiration date and (ii) a notarized statement that all students currently enrolled or seeking to enroll at the school have been notified in writing that the school's license has expired. All of these materials shall be called the application package. Reinstatement will be considered by the board if the school consents to and satisfactorily passes an inspection of the school by the Department of Professional and Occupational Regulation and if the school's records are maintained in accordance with 18VAC41-70-230 and 18VAC41-70-240. Upon receipt of the reinstatement fee, application package, and inspection results, the board may reinstate the school's license or require requalification or both. If the reinstatement application package and reinstatement fee are not received by the board within six months following the expiration date of the school's license, the board will notify the testing service that prospective graduates of the unlicensed school are not acceptable candidates for the examination. Such notification will be sent to the school and must be displayed in a conspicuous manner by the school in an area that is accessible to the public. No student shall be disqualified from taking the examination because the school was not licensed for a portion of the time the student attended if the school license is reinstated by the board.

When an esthetics school fails to renew its license within two years following the expiration date, reinstatement is no longer possible. To resume practice the former licensee shall apply for licensure as a new applicant and shall meet all current application requirements.

E. D. The date a renewal fee is received by the Department of Professional and Occupational Regulation or its agent will be used to determine whether the requirement for reinstatement of a license is applicable and an additional fee is required.

F. E. When a license is reinstated, the licensee shall have the same license number and shall be assigned an expiration date two years from the previous expiration date of the license.

G. F. A licensee who that reinstates his its license shall be regarded as having been continuously licensed without interruption. Therefore, a licensee shall be subject to the authority of the board for activities performed prior to reinstatement.

H. G. A licensee who that fails to reinstate his its license shall be regarded as unlicensed from the expiration date of the license forward. Nothing in this chapter shall divest the board of its authority to discipline a licensee for a violation of the law or regulations during the period of time for which the individual or business entity was licensed.

Part V
Esthetics Schools

18VAC41-70-170. Applicants for school license. (Repealed.)

Any person, firm, or corporation desiring to operate an esthetics school shall submit an application to the board at least 60 days prior to the date for which approval is sought.

18VAC41-70-220. School identification. (Repealed.)

Each esthetics school approved by the board shall identify itself to the public as a teaching institution.

18VAC41-70-230. Records.

A. Schools are required to keep all records of hours in accordance with 18VAC41-70-190, including transcripts, course descriptions and competency examinations used to award such credit for a period of five years after the student terminates or completes the curriculum of the school. shall maintain on the premises of each school and available for inspection by the board or any of its agents the following records for the period of a student's enrollment through five years after the student's completion of the curriculum, termination, or withdrawal:

1. Enrollment application containing the student's signature and a 2x2 color head and shoulders photograph of the student,

2. Daily record of attendance containing the student's signature,

3. Student clock hours containing the student's signature and method of calculation,

4. Practical performance completion sheets containing the student's signature,

5. Final transcript,

6. Competency examinations used to award credit,

7. Course descriptions, and

8. All other relevant documents that account for a student's accrued clock hours and practical applications

B. Schools are required to keep upon graduation, termination or withdrawal written records of hours and performances showing what instruction a student has received for a period of five years after the student terminates or completes the curriculum of the school. These records shall be available for inspection by the department. All records must be kept on the premises of each school.

C. For a period of five years after a student completes the curriculum, terminates or withdraws from the school, schools are required to provide documentation of hours and performances completed by a student upon receipt of a written request from the student.

B. Schools shall produce to the board or any of its agents, within 10 days of the request, any document, book, or record concerning any student, or for which the licensee is required to maintain records, for inspection and copying by the board or its agents. The board may extend such time frame upon a showing of extenuating circumstances prohibiting delivery within such 10-day period.

C. Schools shall, within 21 days upon receipt of a written request from a student, provide documentation of hours and performances completed by the student as required to be maintained by subsection A of this section.

D. Prior to a school changing ownership or a school closing, the schools are school is required to provide to current students documentation of hours and performances completed.

E. For a period of one year after a school changes ownership, schools are required to the school shall provide, within 21 days upon receipt of a written request from a student, documentation of hours and performances completed by a current student upon receipt of a written request from the student.

18VAC41-70-240. Hours reported Reporting.

A. Schools shall provide, in a manner, format, and frequency prescribed by the board, a roster of all current students and a roster of students who attended in the preceding six months prior to the reporting deadline.

B. Within 30 days of the closing of a licensed esthetics school for any reason ceasing to operate, whether through dissolution or alteration of the business entity, the school shall provide a written report to the board on performances and hours of each of its students who have has not completed the program.

18VAC41-70-260. Display of license.

A. Each licensed spa or school shall ensure that all current licenses and temporary licenses issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the spa or school in plain view of the public. Duplicate licenses or temporary licenses shall be posted in a like manner in every spa or school location where the regulant licensee or temporary license holder provides services.

B. All licensees and temporary license holders shall operate under the name in which the license or temporary license is issued.

C. All apprenticeship cards issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

18VAC41-70-270. Sanitation and safety standards for spas and schools.

A. Sanitation and safety standards.

1. Any spa or school where esthetics services are delivered to the public must be clean and sanitary at all times.

2. Compliance with these rules does not confer compliance with other requirements set forth by federal, state, and local laws, codes, ordinances, and regulations as they apply to business operation, physical construction and maintenance, safety, and public health.

3. Licensees shall take sufficient measures to prevent the transmission of communicable and infectious diseases and comply with the sanitation standards identified in this section and shall ensure that all employees likewise comply.

B. Disinfection and storage of implements.

1. A wet disinfection unit is a container large enough to hold a disinfectant solution in which the objects to be disinfected are completely immersed. A wet disinfection unit must have a cover to prevent contamination of the solution. The solution must be a hospital grade and tuberculocidal disinfectant solution registered with the U.S. Environmental Protection Agency (EPA). Disinfectant solutions shall be used according to manufacturer's directions.

2. Disinfection of multiuse items constructed of hard, nonporous materials such as metal, glass, or plastic, which the manufacturer designed for use on more than one client, is to be carried out in the following manner prior to servicing a client:

a. Remove all foreign matter from the object, utilizing a brush if needed. Drill bits are to be soaked in acetone and scrubbed with a wire brush to remove all foreign matter;

b. Wash thoroughly with hot water and soap;

c. Rinse thoroughly with clean water and dry thoroughly with a clean paper towel;

d. Fully immerse implements into solution for a minimum of 10 minutes; and

e. After immersion, rinse articles, thoroughly dry with a clean paper towel, and store in a clean predisinfected and dry cabinet, drawer, or nonairtight covered container, or leave instruments in an EPA-registered disinfection storage solution used according to manufacturer's directions.

3. Single-use items designed by the manufacturer for use on no more than one client should be discarded immediately after use on each individual client, including but not limited to powder puffs, lip color, cheek color, sponges, styptic pencils, or nail care implements. The disinfection and reuse of these items is not permitted and the use of single-use items on more than one client is prohibited.

4. For the purpose of recharging, rechargeable tools or implements may be stored in an area other than in a closed cabinet or container. This area shall be clean.

5. All materials including cosmetic and nail brushes, sponges, chamois, spatulas, and galvanic electrodes must be cleaned with warm water and soap or detergent to remove all foreign matter. Implements should then be rinsed, thoroughly dried with a clean paper towel, and completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution. Such implements shall be soaked for 10 minutes or more, removed, rinsed, dried thoroughly, and stored in a predisinfected and dry drawer, cabinet or nonairtight covered container, or left in an EPA-registered disinfection storage solution used according to manufacturer's directions.

6. All wax pots shall be cleaned and disinfected with an EPA-registered hospital (grade) and tuberculocidal disinfectant solution with no sticks left standing in the wax at any time. The area immediately surrounding the wax pot shall be clean and free of clutter, waste materials, spills, and any other items that may pose a hazard.

7. Each esthetician must have a wet disinfection unit at his station.

8. Nail brushes; nippers; finger bowls; disinfectable or washable buffers; disinfectable or washable files, which must also be scrubbed with a brush to remove all foreign matter, and other instruments must be washed in soap and water, rinsed, thoroughly dried with a clean paper towel, and then completely immersed in an EPA-registered hospital grade and tuberculocidal disinfectant solution for 10 minutes after each use. After disinfection they must be rinsed, dried thoroughly with a clean paper towel, and placed in a dry, predisinfected, nonairtight covered receptacle, cabinet, or drawer, or left in an EPA-registered disinfectant storage system used according to manufacturer's directions.

9. Sinks, bowls, tubs, whirlpool units, air-jetted basins, pipe-less units, and non-whirlpool basins used in the performance of nail care shall be maintained in accordance with manufacturer's recommendations. They shall be cleaned and disinfected immediately after each client in the following manner:

a. Drain all water and remove all debris;

b. Clean the surfaces and walls with soap or detergent to remove all visible debris, oils, and product residues and then rinse with water;

c. Disinfect by spraying or wiping the surface with an appropriate disinfectant; and

d. Wipe dry with a clean towel.

C. General sanitation and safety requirements.

1. All furniture, walls, floors, and windows Service chairs, workstations and workstands, and back bars shall be clean and in good repair;

2. The floor surface in the immediate all work area areas must be of a washable surface other than carpet. The floor must be kept clean, and free of debris, nail clippings, dropped articles, spills, and clutter, trash, electrical cords, other waste materials, and other items that may pose a hazard;

3. Walls All furniture, fixtures, walls, floors, windows, and ceilings in the immediate work area must shall be in good repair, and free of water seepage and dirt. All mats shall be secured or shall lay flat;

4. A fully functional bathroom with a working toilet and sink must be available for clients shall be maintained exclusively for client use. There must be hot and cold running water. Fixtures must be in good condition. The bathroom must be lighted and sufficiently ventilated. There must be antibacterial soap and clean individual single-use towels or hand air-drying device for the client's use;

5. General areas for client use must be neat and clean with a waste receptacle for common trash;

6. Electrical cords shall be placed to prevent entanglement by the client or licensee; and electrical 7. Electrical outlets shall be covered by plates;

7. All sharp tools, implements, and heat-producing appliances shall be in safe working order at all times, safely stored, and placed so as to prevent any accidental injury to the client or licensee;

8. The spa area shall be sufficiently ventilated to exhaust hazardous or objectionable airborne chemicals, and to allow the free flow of air; and

9. Adequate lighting shall be provided.

C. Equipment sanitation.

1. Service chairs, wash basins, sinks, showers, tubs, tables, and workstations shall be clean. Floors shall be kept free of waste materials. Instruments shall be cleaned and disinfected after every use and stored free from contamination;

2. The top of workstands shall be kept clean;

3. The work area shall be free of clutter, trash, and any other items that may cause a hazard;

4. Equipment shall be placed so as to prevent any accidental injury to the client or licensee; and

5. Electrical appliances and equipment shall be in safe working order at all times.

D. Articles, tools, and products.

1. Any multiuse article, tool, or product that cannot be cleansed or disinfected is prohibited from use;

2. Soiled implements must be removed from the tops of work stations immediately after use;

3. Clean spatulas, other clean tools, or clean disposable gloves shall be used to remove bulk substances from containers;

4. Lotions, ointments, creams, and powders shall be kept in closed containers. A clean spatula shall be used to remove creams or other products from jars. Sterile cotton or sponges shall be used to apply creams, lotions, and powders. Cosmetic containers shall be recovered covered after each use;

5. All appliances shall be safely stored;

6. Presanitized tools and implements, linens, and equipment shall be stored for use in a sanitary enclosed cabinet or covered receptacle;

7. Soiled Clean towels, robes, or other linens and implements shall be deposited in a container made of cleanable materials and separate from those that are clean used for each patron. Clean towels, robes, or other linens shall be stored in a clean predisinfected and dry cabinet, drawer, or nonairtight covered container. Soiled towels, robes, or other linens shall be stored in a container enclosed on all sides including the top, except if stored in a separate laundry room;

8. No substance other than a sterile styptic powder or sterile liquid astringent approved for homeostasis and applied with a sterile single-use applicator shall be used to check bleeding; and

9. Any disposable material making contact with blood or other body fluid shall be disposed of in a sealed plastic bag and removed from the spa or school in accordance with the guidelines of the Virginia Department of Health and OSHA (Occupational Safety and Health Administration).

E. Chemical storage and emergency information.

1. Spas and schools shall have in the immediate working area a binder with all Material Safety Data Sheets (MSDS) provided by manufacturers for any chemical products used;

2. Spas and schools shall have a blood spill clean-up kit in the work area that contains at a minimum latex gloves, two 12x12 towels, one disposable trash bag, bleach, one empty spray bottle, and one mask with face shield or any OSHA-approved blood spill clean-up kit;

3. Flammable chemicals shall be stored in a nonflammable storage cabinet or a properly ventilated room; and

4. Chemicals that could interact in a hazardous manner (e.g., oxidizers, catalysts, and solvents) shall be separated in storage.

F. Client health guidelines.

1. All employees providing client services shall cleanse their hands with an antibacterial product prior to providing services to each client;

2. All employees providing client services shall wear gloves while providing services when exposure to bloodborne pathogens is possible;

3. No spa or school providing esthetics services shall have on the premises esthetics products containing hazardous substances that have been banned by the U.S. Food and Drug Administration (FDA) for use in esthetics products;

4. No product shall be used in a manner that is disapproved by the U.S. Food and Drug Administration (FDA) FDA; and

5. Esthetics spas must be in compliance with current building and zoning codes.

G. In addition to any the requirements set forth in this section, all licensees and temporary license holders shall adhere to regulations and guidelines established by the Virginia Department of Health and the Occupational and Safety Division of the Virginia Department of Labor and Industry.

H. All spas and schools shall immediately report the results of any inspection of the spa or school by the Virginia Department of Health as required by § 54.1-705 of the Code of Virginia.

I. All spas and schools shall conduct a self-inspection on an annual basis and maintain a self-inspection form on file for five years so that it may be requested and reviewed by the board at its discretion.

18VAC41-70-280. Grounds for license revocation, probation, or suspension; denial of application, renewal or reinstatement; or imposition of a monetary penalty.

A. The board may, in considering the totality of the circumstances, fine any licensee, certificate holder, or temporary license holder, and suspend, place on probation, or revoke or refuse to renew or reinstate any license, certificate, or temporary license, or deny any application issued under the provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia and the regulations of the board this chapter if the board finds that the licensee, certificate holder, permit holder, or applicant:

1. The licensee, certificate holder, temporary license holder or applicant is Is incompetent, or negligent in practice, or incapable mentally or physically, as those terms are generally understood in the profession, to practice as an esthetician;

2. The licensee, certificate holder, or temporary license holder fails to teach in accordance with the board-approved curriculum or fails to comply with 18VAC41-70-190 D when making an assessment of credit hours awarded.

3. The licensee, certificate holder, temporary license holder, or applicant is 2. Is convicted of fraud or deceit in the practice or teaching of esthetics, fails to teach in accordance with the board-approved curriculum, or fails to comply with 18VAC41-70-190 D when making an assessment of credit hours awarded;

4. The licensee, certificate holder, temporary license holder, or applicant attempted 3. Attempts to obtain, obtained, renewed, or reinstated a license certificate or temporary license by false or fraudulent representation;

5. The licensee, certificate holder, temporary license holder, or applicant violates 4. Violates or induces others to violate, or cooperates with others in violating, any of the provisions of this chapter or Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or any local ordinance or regulation governing standards of health and sanitation of the establishment in which any esthetician may practice or offer to practice;

5. Offers, gives, or promises anything of value or benefit to any federal, state, or local employee for the purpose of influencing that employee to circumvent, in the performance of his duties, any federal, state, or local law, regulation, or ordinance governing esthetics or master esthetics;

6. Fails to respond to the board or any of its agents or provides false, misleading, or incomplete information to an inquiry by the board or any of its agents;

7. Fails or refuses to allow the board or any of its agents to inspect during reasonable hours any licensed shop, salon, or school for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter;

6. The licensee, certificate holder, temporary license holder, or applicant fails 8. Fails to produce, upon request or demand of the board or any of its agents, any document, book, record, or copy thereof in a licensee's, certificate holder's, temporary license holder's, applicant's, or owner's possession or maintained in accordance with this chapter;

7. A licensee, certificate holder, or temporary license holder fails 9. Fails to notify the board of a change of name or address in writing within 30 days of the change for each and every license, certificate, or temporary license. The board shall not be responsible for the licensee's, certificate holder's, or temporary license holder's failure to receive notices, communications and correspondence caused by the licensee's, certificate holder's, or temporary license holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board;

8. The licensee, certificate holder, temporary license holder, or applicant publishes 10. Makes any misrepresentation or publishes or causes to be published any advertisement that is false, deceptive, or misleading;

9.The licensee, certificate holder, temporary license holder, or applicant fails 11. Fails to notify the board in writing within 30 days of the suspension, revocation, or surrender of a license or temporary license in connection with a disciplinary action in any other jurisdiction or of any license or temporary license that has been the subject of disciplinary action in any other jurisdiction; or

10. The licensee, certificate holder, temporary license holder, or applicant has been convicted or found guilty in any jurisdiction of any misdemeanor or felony. Any plea or nolo contendere shall be considered a conviction for the purpose of this section. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt;

11. The licensee, certificate holder, temporary license holder, or applicant fails to notify the board in writing within 30 days that the licensee, certificate holder, temporary license holder, or applicant has pleaded guilty or nolo contendere or was convicted and found guilty of any misdemeanor or felony.

12. Has been convicted or found guilty, regardless of the manner of adjudication, in Virginia or any other jurisdiction of the United States of a misdemeanor involving moral turpitude, sexual offense, drug distribution, or physical injury or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Review of convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt;

13 Fails to inform the board in writing within 30 days of pleading guilty or nolo contendere or being convicted or found guilty regardless of adjudication of convictions as stated in subdivision 12 of this section;

14. Allows, as an owner or operator of a spa or school, a person who has not obtained a license or a temporary permit to practice unless the person is duly enrolled as a registered apprentice;

15. Allows, as an owner or operator of a school, a person who has not obtained an instructor certificate to practice as an esthetics or a master esthetics instructor;

16. Fails to take sufficient measures to prevent transmission of communicable or infectious diseases or fails to comply with sanitary requirements provided for in this chapter or any local, state, or federal law or regulation governing the standards of health and sanitation for the practices of esthetics or master esthetics, or the operation of esthetics spas; or

17. Fails to comply with all procedures established by the board and the testing service with regard to conduct at the examination.

B. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend, place on probation, or refuse to renew or reinstate the license of any school or impose a fine as permitted by law, or both, if the board finds that:

1. An instructor of the approved school fails to teach the curriculum as provided for in this chapter;

2. The owner or director of the approved school permits or allows a person to teach in the school without an applicable current esthetics instructor certificate or master esthetics instructor certificate; or

3. The instructor, owner or director is guilty of fraud or deceit in the teaching of esthetics.

C. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend, place on probation, or refuse to renew or reinstate the license of any esthetics spa or impose a fine as permitted by law, or both, if the board finds that:

1. The owner or operator of the spa fails to comply with the sanitary requirements of an esthetics spa provided for in this chapter or in any local ordinances; or

2. The owner or operator allows a person who has not obtained a license or a temporary license to practice as an esthetician or master esthetician.

D. In addition to subsection A of this section, the board may, in considering the totality of the circumstances, revoke, suspend, place on probation, or refuse to renew or reinstate the license of any licensee or impose a fine as permitted by law, or both, if the board finds that the licensee fails to take sufficient measures to prevent transmission of communicable or infectious diseases or fails to comply with any local, state or federal law or regulation governing the standards of health and sanitation for the practice of esthetics.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (18VAC41-70)

Esthetician – Esthetics Instructor Examination & License Application, A425-1261_62EXLIC (eff. 9/11)

Master Esthetician – Master Esthetics Instructor Examination & License Application, A425-1264_65EXLIC (eff. 9/11)

Temporary Permit Application, A425-1213TP (eff. 9/11)

License by Endorsement Application, A425-1213END (rev. 2/14)

Esthetician - Esthetics Instructor Examination & License Application, A450-1261_62EXLIC-v12 (eff. 7/2016)

Master Esthetician - Master Esthetics Instructor Examination & License Application, A450-1264_65EXLIC-v13 (eff. 7/2016)

Temporary Permit Application, A450-1213TEMP-v2 (eff. 7/2016)

License by Endorsement Application, A450-1213END-v8 (eff. 7/2016)

Training & Experience Verification Form, A425-1213TREXP (eff. 9/11)

Reinstatement Application, A425-1213REI (rev. 2/14)

Salon, Shop, Spa & Parlor License Application A425-1213BUS (rev. 2/14)

Individuals - Reinstatement Application, A450-1213REI-v8 (eff. 7/2016)

Salon, Shop, Spa & Parlor License/Reinstatement Application A450-1213BUS-v8 (eff. 7/2016)

Salon, Shop & Spa Self Inspection Form, A425-1213_SSS_INSP (eff. 9/11)

Instructor Certification Application, A425-1213INST (rev. 2/14)

School License Application, A425-1213SCHL (rev. 2/14)

Instructor Certification Application, A450-1213INST-v7 (eff. 7/2016)

School License Application, A450-1213SCHL-v8 (eff. 7/2016)

School Self Inspection Form, A425-1213SCH_INSP (eff. 9/11)

Licensure Fee Notice, A425-1213FEE (rev. 2/14)

Change of Responsible Management, A450-1213CRM-v1 (eff. 7/2016)

VA.R. Doc. No. R14-3985; Filed September 25, 2015, 9:24 a.m.