COSMETOLOGY EXAMINING BOARD
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IN THE MATTER OF RULE-MAKING : ORDER OF THE
PROCEEDINGS BEFORE THE : COSMETOLOGY EXAMINING
COSMETOLOGY EXAMINING BOARD : BOARD ADOPTING RULES
: (CLEARINGHOUSE RULE 20-025)
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ORDER
An order of the Cosmetology Examining Board to amend Cos 2.03 (8) (intro.), 2.06 (5), 3.01 (1), 4.01 (1) and (3r), and 4.05 (1); to repeal and recreate Cos 2.045 and 8.02; and to create 2.046, 2.09, 4.04 (3), 4.045, 5.015, 8.005 (title), (intro.), (1), (2) and (3), and 8.01 (note); relating to cosmetology licensure and practice outside of a licensed establishment.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Explanation of board authority:
Section 15.08 (5) (b), Stats., provides that an examining board, “shall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . .” Section 227.11 (2) (a), Stats., states that an agency, “may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.” This section allows an agency to promulgate administrative rules which interpret the statutes it enforces or administers if the proposed rule does not exceed proper interpretation of the statute. Section 454.08 (1) (ag), Stats., provides that “[t]he examining board shall promulgate rules permitting the practice of electrology outside of a licensed establishment,” and that, [t]he examining board shall promulgate rules permitting the use of a chemical process in the practice of cosmetology, aesthetics, or manicuring outside of a licensed establishment, except that the examining board may not promulgate any rule that restricts the use of a chemical process in cutting or styling hair in the practice of cosmetology or applying cosmetics, oils, lotions, clay, creams, antiseptics, powders, or tonics in the practice of aesthetics.” Section 454.15 (2) (c) provides that “[s]ubject to the rules promulgated under s. 440.03 (1) and this subchapter, the examining board may revoke, limit, suspend, or refuse to issue or renew, in accordance with the severity of the violation, a license or permit issued under this subchapter or reprimand the holder of a license or permit issued under this subchapter if it finds that the holder or applicant has done any of the following… (c) Engaged in conduct in the practice of…cosmetology, aesthetics, electrology, or manicuring that evidences a lack of knowledge or ability to apply professional principles or skills.”
Related statute or rule: None.
Plain language analysis:
The Cosmetology Examining Board rules are revised as necessary to make the rules consistent with recent statutory changes, including to reflect that tanning, tattooing, and body piercing are now regulated by DSPS rather than DHS. The board also revises its health and safety requirements under ch. Cos 4 to reflect current blood-borne pathogen best practices and to provide that credo razors and pumice stones may not be used. Additionally, the rules are revised to provide that although the board will no longer require continuing education for renewal of a license generally, it may require continuing education for a licensee as a part of a disciplinary process to ensure competency.
The required 4,000 hours of experience for applicants seeking a reciprocal credential is replaced with a one-hour course on Wisconsin statutes and administrative rules that apply to the applicant’s practice. Additionally, a provision is added to reflect that service members, former service members, and their spouses may receive a reciprocal credential if they have a license in good standing in another jurisdiction that authorizes the professional practice authorized by the board credential the applicant is seeking and pay the required application fee.
The rule project also creates provisions to allow for the practice of cosmetology, aesthetics, and manicuring outside of a licensed establishment so long as the practitioner is employed at a licensed establishment, complies with professional practice and sanitary standards, displays their license to practice, and does not use a chemical process unless it is to style or cut hair, or apply cosmetics, oils, lotions, clay, creams, antiseptics, powders, or tonics in the practice of aesthetics. Electrologists may practice outside of an establishment so long as they comply with professional practice and sanitary standards.
Finally, the rule project updates the code to eliminate the cosmetologist, aesthetician, electrologist, and manicurist manager licenses.
Summary of, and comparison with, existing or proposed federal regulation:
There are no existing or proposed federal requirements.
Comparison with rules in adjacent states:
Illinois:
Illinois requires 14 hours of continuing education before renewing a cosmetology license and 10 hours to renew either a nail technician or an esthetician license (225 ILCS 410/3-7, 410/3A-6, and 410/3C-8). Illinois also offers separate cosmetology, nail technician, and esthetician instructor licenses (225 ILCS 410/3-4, 410/3A-3, and 410/3C-3).
Mobile establishments are permissible so long as the salon owner/operator registers with the state (225 ILCS 410/3D-5). It does not appear that a separate license is required to manage an establishment, however, if the owner is not a licensee they must employee a licensed practitioner to operate the establishment (225 ILCS 410/3D-5 (b)). Administrative rules do require practitioners to maintain supplies of disinfectants and other sanitary standards. There do not appear to be sanitary standards specific to mobile salons, nor a ban on the use of pumice, credo razors or chemical processes (68 Ill. Admin. Code § 1175.115).
Illinois state law does have a process allowing for expedited issuance of reciprocal credentials for active service members, their spouses, and those who were discharged from the service within the last two years. An applicant must show that they have a credential in good standing in another jurisdiction that is substantially equivalent to the Illinois credential sought, and must submit all required fees and application documents. The credential must be issued within 60 days of receipt of a completed application (20 ILCS 5/5-715). These requirements are essentially identical to the regular Illinois reciprocity application requirements found in the administrative rules, except a typical application is not expedited (68 IL. Admin. Code §1175.420).
Iowa: Iowa does not allow the practice of any of the professions regulated by the cosmetology board outside of a licensed salon or school, unless the client’s physical or mental disability prevents the client from seeking services at a salon or school (IA Admin Code § 65.2 (33)). Professions regulated by the cosmetology board are required to complete 6 hours of continuing education each biennium (IA Admin Code § 64.2(2)). Iowa does prohibit the use of certain products or techniques, including but not limited to the use of animals or substances banned or determined to be hazardous by the FDA, however it does not specifically ban the use of pumice or credo razors (IA Admin Code § 63.18). Iowa law does require cosmetology arts instructors to be licensed both as practitioners and as instructors (IA Stats. §157.8 (3) (c)). Iowa does not appear to require an establishment manager license to manage an establishment. Reciprocal licenses may be granted by the board if the applicant has held their license in another state for at least 12 of the last 24 months, pays the required licensure fee, and passes either a state or national exam depending on when the individual completed cosmetology school (IA Admin Code § 60.7). Iowa requires the board to expedite reciprocal license applications for veterans as defined under Iowa law, as long as the board determines the individual is licensed in another jurisdiction and the requirements to obtain that license are substantially equivalent to the requirements to obtain the license in Iowa. If the requirements are not substantially equivalent, the applicant may receive a provisional license to allow practice while meeting remaining requirements for equivalency (IA Stats. § 272C.4 (12)).
Michigan: The state of Michigan requires 1,500 hours of training and a two-year apprenticeship for a cosmetology license with an additional 500 hours for an instructor license. Fewer training hours are required for estheticians, electrologists, and nail technicians (MI Admin. Code R338.2163c.). Michigan does not require continuing education for license renewal. Michigan does appear to allow the use of pumice stones, so long as they are used only on one client and discarded (MI Admin. Code R 338.2179c (c)). The practice of cosmetology board licensed professions outside of an establishment is prohibited unless it is performed on-site for a participant in an event, or is done in a nursing home, old-age home, adult foster care facility, or a hospital (MI Stats. § 339.1217). Michigan statute does require the cosmetology board to promulgate rules for mobile salons, however these do not appear to be in effect at this time. Michigan law requires the board to issue a reciprocal credential if the applicant is at least 17, is of good moral character, has a license in good standing in another jurisdiction, and the requirements to obtain the license in the other jurisdiction are substantially equal to Michigan requirements (MI Stats. § 339.1211). Michigan law does allow for a temporary credential to be issued to active duty military and spouses if they hold a credential in good standing that allows for the practice of the profession they are seeking licensure for. This temporary credential is good for at least 6 months and can be extended if the person needs more time to meet licensing requirements (MI Stats. § 339.213). Minnesota: Minnesota requires eight hours of continuing education in the three years prior to renewing a license, and must include one hour in state statutes and administrative rules relevant to their practice, three hours in OSHA standards applicable to cosmetology, and four hours combined in any of product chemistry and chemical interaction, proper use and maintenance of machines and instruments, business management, professional ethics, human relations, or techniques relevant to the type of license held (MN Stats. § 155A.271 (1)). Minnesota does not appear to have a special license for cosmetology school instructors.
Minnesota provides temporary certification for the practice of cosmetology for service members, their spouses, and service members discharged within the last two years. Applicants must show documentation of service member, discharged service member, or spouse of a service member or former service member status, evidence of licensure as a cosmetologist, esthetician, advanced practice esthetician, nail technician, eyelash technician, salon manager, school manager, or instructor in another state, and payment of application fees (MN Admin. Code § 2105.0184).
Generally, to obtain a permanent reciprocal license in Minnesota an applicant must show that they are at least 17 years old, have experience of 1,550 hours for a cosmetologist, 600 hours for an esthetician, 350 hours for a nail technician, and 38 hours for an eyelash technician. The applicant must present a certification from their state examining board confirming licensure that is no more than 90 days old, evidence of passage of board approved practical and theory examinations, evidence of passage of a Minnesota specific statutes and rules examination within the last year, and payment of all required fees (MN Admin. Code § 2105.0183).
A salon must employ a licensed salon manager. Practice is allowed outside of a licensed salon if the practitioner has obtained a “homebound” or “special services” license under MN Admin. Code § 2105.0410 (3). Mobile salons are licensed, and must meet the same facility, safety, infection control, and scope of services requirements as typical licensed establishments (MN Admin. Code § 2105.0395).
Summary of factual data and analytical methodologies:
The Cosmetology Examining Board developed the proposed order after a careful review of the statutory changes and requirements.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
This rule was posted on the department’s website for public comment on the economic impact of the proposed rule, including how this proposed rule may affect businesses, local government units, and individuals, for a period of 14 days. No comments were received.
Fiscal Estimate and Economic Impact Analysis:
Attached.
Effect on small business:
None.
