GENERAL GOVERNMENT

Kentucky Board of Hairdressers and Cosmetologists

(Amendment)

 

      201 KAR 12:060. Compliance[Inspections].

 

      RELATES TO: KRS[317A.050,] 317A.060, 317A.070, 317A.140, 317A.145, 317B.020, 317B.045, 317B.050, 317B.055[317B.025]

      STATUTORY AUTHORITY: KRS 317A.060, 317B.020

      NECESSITY, FUNCTION, AND CONFORMITY: KRS [317A.050,] 317A.060[,] and 317B.020 require the board to promulgate administrative regulations governing the operation of any schools and salons of cosmetology, nail technology, threading, and esthetics, and to protect the health and safety of the public. This administrative regulation establishes inspection and health and safety requirements for all schools and salons of cosmetology, nail technology, threading, and esthetics. It also provides for inspection requirements, licensee ethical standards, and complaint processes and hearing procedures.

 

      Section 1. Public Display. (1) Each licensed facility, licensee or permit holder shall attach his or her picture to the license or permit as required by this Chapter and place it in a conspicuous area in the salon or school.

      (2) A conspicuous area shall be visible to the public and shall include:

      (a) The main entrance door or window of the premises; and

      (b) The workstation of the employee.

      (3) A salon or school manager shall have the manager’s license posted with a picture in a conspicuous area at all times.

      (4) A school shall, at all times, display in a centralized conspicuous public place the student permits of all students enrolled.

      (5) Each licensed salon, facility, or school shall post the most recent inspection report in a conspicuous area.

 

      Section 2. Inspections. (1) Any board member, administrator, or inspector may enter any establishment licensed by this board or any place purported to be practicing cosmetology, nail technology, threading, or esthetics, during normal working hours or at any time when the establishment is open to the public, for the purpose of determining if an individual, salon, or school is complying with KRS Chapters 317A or 317B, and 201 KAR Chapter 12.

      (2) A board member, administrator, or inspector may require the licensee or permittee to produce for inspection and copying books, papers, or records required by the board or pertaining to licensed activity.

      (3) Each establishment licensed by the board shall be inspected a minimum of two (2) times per year.

      (4) A salon or school shall schedule an inspection of the salon or school after an inspector twice attempts, but is unable, to inspect the salon or school.

      (5) Failure of the salon or school owner or manager to schedule an inspection within thirty (30) days of two (2) failed inspection attempts shall constitute unprofessional conduct.

      (6) The owner and manager of each establishment licensed by the board shall be responsible for compliance with KRS Chapters 317A and 317B, and 201 KAR Chapter 12.[Section 2.(1) Each licensee or permit holder shall attach his or her picture to the license or permit and place it in a conspicuous area in the salon or school.

      (2) A conspicuous area shall be visible to the general public and shall include:

      (a) The main entrance door or window of the premises;

      (b) The work station of the employee or independent contractor; or

      (c) A public area within twenty (20) feet of the main entrance.

      (3) A manager shall have the manager’s license posted with a picture in a conspicuous area at all times.

      (4) A salon or school shall post its license without a picture in a conspicuous area at all times.

      Section 3.(1) Each salon or school shall post the most recent inspection report in a conspicuous area in the salon or school.

      (2) A conspicuous area shall be visible to the general public and shall include:

      (a) The main entrance door or window of the premises; or

      (b) A public area within twenty (20) feet of the main entrance.

 

      Section 4.(1) Each establishment licensed by this board shall be inspected a minimum of two (2) times per year.

      (2) The owner and manager of each establishment licensed by the board shall be responsible for compliance with KRS Chapters 317A and 317B, and 201 KAR Chapter 12.]

 

      Section 3.[5.] Unprofessional Conduct. (1) Unprofessional conduct under KRS 317A.140 includes the following:

      (a) Intentionally withholding information or lying[It shall be unprofessional conduct to withhold information or lie] to a board member or board employee[an inspector] who is conducting a lawful inspection or investigation of an alleged or potential violation of KRS Chapters 317A or 317B, or 201 KAR Chapter 12;

      (b) A [Section 6.(1) A salon or school shall schedule an inspection of the salon or school after an inspector twice attempts, but is unable, to inspect the salon or school.

      (2) Failure of the owner or manager to schedule an inspection within thirty (30) days of two (2) attempts to inspect shall constitute unprofessional conduct.

 

      Section 7. (1) It shall be unprofessional conduct for a]salon or school remaining [to remain] open to the public if[it is] not appropriately licensed by the board;

      (c) Providing[.

      (2) It shall be unprofessional conduct for a person to provide] cosmetology, nail technology, esthetic, or threading services unless appropriately licensed or permitted by the board under 201 KAR Chapter 12; or[.]

      (d) Failure to comply with the lawful request of the board, or the board administrator, inspector, or agent for the following:

      1. Permit inspection of the licensed premises; or

      2. Permit inspection of or the copying or production of books, papers, documents, or records of information or material pertaining to activity licensed by the board or related to the provisions of Chapter 317A, Chapter 317B, or the administrative regulations promulgated by the board.

 

      Section 4. Demonstration Permits. Professional services performed outside a licensed facility must have approval of the board and display the proper permit. Permits may be obtained by completing the Demonstration Permit Application and paying the applicable fee set forth in 201 KAR 12:260.

 

      Section 5. Signage. The main entrance to any establishment licensed by the board shall display a sign indicating a beauty salon, nail salon, esthetic salon or cosmetology school. The sign shall indicate the name of the salon or school and shall be clearly visible at the main entrance of the establishment.

 

      Section 6. School Requirements. (1) A licensed school of cosmetology shall have all equipment and supplies needed to meet the curriculum outlined in 201 KAR 12:082.

      (2) A licensed cosmetology school shall be physically separated from any other place of business.

      (3) A licensed cosmetology school shall maintain, at a minimum, the following physical characteristics:

      (a) At least thirty-six (36) square feet in the clinical area for each student involved on the floor of the clinical area at any one (1) time;

      (b) At least eighteen (18) square feet in the mannequin area for each student involved on the floor of the mannequin area at any one (1) time; and

      (c) A reasonable amount of area allotted for training of students in all areas other than those previously mentioned.

      (4) All licensed cosmetology schools shall have a separate room for demonstration and study. This room shall have all necessary equipment to carry out the curriculum, a blackboard or smartboard, and classroom chairs or desks for the students' use.

      (5) All licensed cosmetology schools shall maintain sufficient lavatory facilities for student enrollment.

      (6) Booths or partitions in the student clinical area shall be low enough to permit observation of students while they are working.

      (7) Each licensed cosmetology school shall furnish a supply or dispensing room for which each student shall obtain actual experience for a period of time as indicated by the course of instruction.

      (8) The supply room shall contain additional supplies and products necessary to follow the educational curriculum as prescribed in 201 KAR 12:082 and meet the sanitation standards set forth in 201 KAR 12:100.

      (9) A licensed cosmetology school shall not guarantee a student’s work.

      (10) Within ten (10) business days of the termination, employment, or other change in school faculty personnel, a licensed cosmetology school shall notify the board of the change.

      (11) Licensed cosmetology schools shall, at all times, maintain a minimum faculty to student ratio of one (1) instructor for every twenty (20) cosmetology, nail technology, or esthetician students enrolled.

      (12) The board may approve a licensed cosmetology school to offer an esthetics course if the school maintains the following minimum equipment and supplies:

      (a) A private student changing area;

      (b) A minimum of one (1) fully equipped facial machine in the esthetics area;

      (c) One (1) sink in the clinic area with hot and cold running water;

      (d) One (1) steamer for hot towels;

      (e) Sharps container; and

      (f) All necessary supplies and products to meet the educational curriculum as prescribed in 201 KAR 12:082. All such supplies and products must also meet the sanitation standards set forth in 201 KAR 12:100.

 

      Section 7. Code of Ethics. A licensee shall:

      (1) Provide competent professional services to the consumer;

      (2) Provide a clear explanation of the services offered and the cost of those services;

      (3) Follow appropriate disinfection and sanitation requirements as established in KRS Chapter 317A and 317B and the administrative regulations promulgated thereunder;

      (4) Follow proper health profile procedures before application of any product;

      (5) Perform a thorough evaluation and consultation for each client to determine if the procedure or product is appropriate before application; and

      (6) Discuss and outline realistic expectations with the client after the evaluation.

 

      Section 8. Esthetic Restrictions. (1) An esthetician licensed by the board may not perform any of the activities listed in KRS 317B.015(1) unless under the immediate supervision of a licensed physician. "Immediate supervision" is defined as situations where a licensed physician is physically present in the same room and overseeing the activities of the esthetician at all times.

      (2) Glycolic peels are limited as follows. A glycolic peel is defined as a cosmetic resurfacing exfoliating substance which includes cosmetic use of the following:

      (a) Mixtures of thirty (30) percent alpha hydroxy acid (AHAs which include glycolic and lactic acids with a pH of three (3.0) or higher);

      (b) Zero percent beta hydroxy acid (BHAs which include salicylic acid with a pH of three (3.0) or higher);

      (c) Trichloroacetic acid (TCA) with levels less than twenty (20) percent; and

      (d) Jessner's solutions fourteen (14) percent salicylic acid, lactic acid, and two (2) percent resorcinol.

      (3) Glycolic peels exclude all other chemical and mechanical exfoliation or peeling procedures and substances, including:

      (a) Carbolic acid (phenol); and

      (b) Products listed above that exceed the stated maximum levels or combinations thereof.

      (4) Other prohibited practices include the following:

      (a) Lancets when used to penetrate the stratum corneum or remove hair or the use of lancets with blades two (2) millimeters or more;

      (b) The use of all adulterated chemical exfoliating or peeling substances;

      (c) The use of devices that penetrate beyond the stratum corneum of the epidermis; and  

      (d) The use of FDA Class II devices.

 

      Section 9. Complaint and Disciplinary Process. (1) "Complaint" means any writing received by the board, which contains the name of the complainant and alleges a violation of KRS Chapter 317A, KRS Chapter 317B, or 201 KAR Chapter 12 by a licensee.

      (2) Complaints against a person or establishment licensed by the board shall be submitted on the board’s Complaint Form, signed by the person making the complaint, and describe with sufficient detail the alleged violation(s) of KRS Chapter 317A, 317B, or the administrative regulations promulgated by the board. The Complaint Form shall be made available on the board’s website.

      (3) The board may, at any time, on its own volition conduct an investigation or inspection and initiate a complaint against licensee for a violation of KRS Chapter 317A, Chapter 317B, or 201 KAR Chapter 12.

      (4) A copy of the complaint shall be provided to the licensee along with a written request for the licensee’s response to the complaint. The licensee shall have ten (10) days from the date of receipt to submit a written response. The board may forward a copy of the licensee’s written response to the complainant with instructions to submit a written reply within seven (7) days of receipt of the response.

      (5) The board shall review the complaint, the response, and any reply, and any other relevant information or material available and take action, as it deems necessary.

      (6) Any board member who has participated in the investigation of a complaint or who has substantial personal knowledge of facts concerning the complaint, which could influence an impartial decision, shall disqualify himself or herself from participating in the adjudication of the complaint.

      (7) If, in the opinion of the board, it finds a violation of KRS Chapter 317A, Chapter 317B, or the administrative regulations promulgated by the board, but the violation is minor in nature, the board may issue a written admonishment to the licensee.

      (a) A copy of the admonishment shall be placed in the board’s permanent file of the licensee.

      (b) The licensee shall have the right to file a written response to the admonishment within thirty (30) days of its receipt and may have it placed with the admonishment in the licensee’s permanent file.

      (8) The board may discipline an applicant, licensee, or permittee by fine, reprimand, refusal to issue or renew a license, or by suspending or revoking a license or permit, or imposing probationary conditions or any combination thereof. The board may impose discipline based upon the grounds set forth in KRS 317A.140 or violation of KRS Chapter 317A, Chapter 317B, or the administrative regulations promulgated by the board.

      (9) If the board finds that grounds for discipline exist, it shall send written notice informing the applicant, licensee, or permittee of the following:

      (a) The nature of the discipline to be imposed;

      (b) The grounds upon which potential discipline is based;

      (c) The right to request a hearing under KRS Chapter 13B;

      (d) The right to be represented by counsel;

      (e) The right to present witnesses on his or her behalf; and

      (f) The right to cross-examine any opposing witnesses.

      (10) Within twenty (20) days of receipt of the board’s notice, an applicant, licensee, or permittee may request, in writing, a hearing before the board takes final action. Hearings shall be conducted in accordance with KRS Chapter 13B.

      (11) At any time during the investigative or hearing processes, the board may enter into an agreed order of settlement or accept an assurance of voluntary compliance as resolution of a complaint.

      (12) The board may resolve disciplinary matters through informal means including mediation.

 

      Section 10. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Demonstration Permit Application", October 2017; and

      (b) "Complaint Form", September 2017, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at Kentucky State Board of Hairdressers and Cosmetologists, 111 St. James Court, Suite A, Frankfort Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

 

R. KAY SWANNER, Board Chair

      APPROVED BY AGENCY: December 12, 2017

      FILED WITH LRC: December 13, 2017 at 1 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this amendment shall be held on January 22, 2018, at 9:30 a.m., at the Kentucky Board of Hairdressers and Cosmetologists. Individuals interested in being heard at this hearing shall notify this agency in writing of the intent to attend no later than five workdays prior to the hearing. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. A transcript of the public hearing will not be made unless a written transcript is requested. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed amendment. Written comments shall be accepted through 11:59 p.m. on January 31, 2018. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Julie M. Campbell, Board Administrator, 111 St. James Ct. Ste A. Frankfort, Kentucky 40601, phone (502) 564-4262, fax (502) 564-0481, email Julie.Campbell@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Julie M. Campbell

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes compliance standards and complaint procedures for all licensees under the jurisdiction of the Kentucky Board of Hairdressers and Cosmetologists.

      (b) The necessity of this administrative regulation: This administrative regulation is necessary to standardize compliance for cosmetology schools, salons, cosmetologists, estheticians, and nail technicians.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation sets compliance standards as the Board is authorized to do under Chapters 317A and 317B. This amendment places the compliance requirements in one administrative regulation for all licensed persons and establishments.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation clarifies and facilitates compliance by licensees and the Board’s enforcement of KRS Chapters 317A and 317B. The administrative regulation outlines and defines all compliance standards in one understandable administrative regulation. Additionally, this amendment details the necessary steps for filing complaints against licensees for alleged violations of KRS Chapters 317A and 317B, and 201 KAR Chapter 12.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: Currently, the standards of compliance applicable to licensed persons and establishments reside across multiple administrative regulations. This amendment consolidates all such standards into one administrative regulation, eliminating duplicative and unnecessary language where appropriate.

      (b) The necessity of the amendment to this administrative regulation: This amendment is needed to assist current and prospective licensees in understanding compliance standards enforced by the board and to assist the consumer public in understanding how to file complaints against licensees for alleged violations of KRS Chapters 317A and 317B, and 201 KAR Chapter 12.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment provides compliance standards for all licensees based on current statutory requirements in KRS Chapters 317A and 317B.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment will provide a simple and straightforward regulatory scheme for all compliance issues consistent with the authorizing statutes. It will also assist licensees in complying with the law and assist the public in determining the necessary steps to file complaints against licensees.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: There are approximately 38,000 licensees affected by the existing administrative regulations that address the various issues of compliance. Consumers wishing to file complaints against such licensees will also be affected.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: This amendment does not change the current processes, definitions, or requirements of the administrative regulations compiled. All items addressed in this amendment are currently addressed in other administrative regulations.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There is no anticipated cost to licensees because of this amendment.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): There will be a higher rate of compliance with the law due to the clarity in this amendment. Current and prospective licensees will gain an easier and better understanding of the regulatory requirements for maintaining licensure.

      (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

      (a) Initially: No additional funds are necessary initially to implement this administrative regulation.

      (b) On a continuing basis: No additional funds are necessary on an ongoing basis to implement this administrative regulation.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Current funding will not change.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: No changes or increases in fees will be needed at this time.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: No fees are created or increased directly or indirectly by this amendment.

      (9) TIERING: Is tiering applied? Tiering is not applied as the requirements of this amendment apply equally to all current and prospective licensees.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Kentucky Board of Hairdressers and Cosmetologist will be impacted.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 317A.060 and 317B.020.

      (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. This amendment will not have any added effect beyond those resulting from existing administrative regulations.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This amendment will not generate revenue for the state or local government for the first year.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This amendment will not generate revenue for the state or local government for subsequent years.

      (c) How much will it cost to administer this program for the first year? No additional cost is anticipated to administer this program for the first year.

      (d) How much will it cost to administer this program for subsequent years? No additional cost is anticipated to administer this program for subsequent years.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-): No impact

      Expenditures (+/-): No impact

      Other Explanation: None