Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Cosmetology Program
16 Texas Administrative Code, Chapter 83, amendments to §83.72

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 83, §83.72, regarding the Cosmetology Program, without changes to the proposed text as published in the July 31, 2020, issue of the Texas Register (45 TexReg 5285).

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC, Chapter 83, implement Texas Occupations Code, Chapter 1602, Cosmetologists, and Chapter 1603, Regulation of Barbering and Cosmetology.

On February 18, 2020, the Texas Commission of Licensing and Regulation (Commission) adopted amendments to Chapter 83 to implement necessary changes as required by House Bill (HB) 2847, 86th Legislature, Regular Session (2019), and recommendations from the Cosmetology Advisory Board's workgroups to reduce regulatory burdens and provide more clarity to the industry by using updated and standardized terminology. Section 83.72 was one of the rules amended by that rulemaking, and the section was amended effective March 15, 2020.

Due to a clerical error, the amended text of §83.72 incorporated into the Texas Administrative Code is not the text that was published in the January 3, 2020, issue of the Texas Register (45 TexReg 42) and adopted by the Commission on February 18, 2020. As a result, incorrect requirements are present in the currently published text of §83.72. As a short-term solution to protect the public health, safety, and welfare, the Commission adopted an emergency rulemaking on June 30, 2020, to correct the errors present in the text of §83.72. This emergency rule was published in the July 10, 2020, issue of the Texas Register (45 TexReg 4595).

The adopted rule amends §83.72 in a manner identical to the June 30, 2020, emergency rulemaking. The amendments correct errors in the text of §83.72(w)(9)-(10), reverting the requirements for Beauty Culture Schools offering the esthetician and manicurist curriculum standards to those in place prior to the March 15, 2020, changes to the section.

SECTION-BY-SECTION SUMMARY

The adopted rule amends §83.72 by reversing changes to the equipment requirements for Beauty Culture Schools offering the esthetician curriculum standards (§83.72(w)(9)) and the manicurist curriculum standards (§83.72(w)(10)).

For the esthetician curriculum standards, subsections §83.72(w)(9)(B)-(J) are amended to reflect the equipment requirements in place prior to the March 15, 2020, changes to the section. These changes remove unnecessary equipment related to other cosmetology curricula and include appropriate equipment for instruction of the esthetician curriculum standards.

For the manicurist curriculum standards, subsections §83.72(w)(10)(A)-(J) are amended to reflect the equipment requirements in place prior to the March 15, 2020 changes to the section. These changes remove unnecessary equipment related to other cosmetology curricula and include appropriate equipment for instruction of the manicurist curriculum standards.

The amendments represent a revision to the equipment requirements previously in place for the version of §83.72 effective January 15, 2018 (43 TexReg 81), until March 15, 2020. In the pre-March 15, 2020, version of the rule, the subsections were numbered §83.72(w)(10)-(11).

PUBLIC COMMENTS

The Department drafted and distributed the proposed rule to persons internal and external to the agency. The proposed rule was published in the July 31, 2020, issue of the Texas Register (45 TexReg 5285). The deadline for public comments was August 31, 2020. The Department received comments from four interested parties on the proposed rule during the 30-day public comment period. The public comments are summarized below.

Comment: One commenter stated that schools should not reopen at this time.

Department Response: This comment is outside the scope of the current rulemaking; the changes to §83.72 proposed in this rulemaking do not open or close beauty culture schools. The Department has made no changes as a result of this comment.

Comment: One commenter suggested that the rule be updated to require LED lighting instead of UV lighting in subsection (w)(10)(g).

Department Response: The Department disagrees with this comment. Changing the minimum requirements for Beauty Culture Schools is not in keeping with the purpose and scope of this rulemaking. However, this comment has been provided to the appropriate staff for consideration in future rule changes. The department has made no changes as a result of this comment.

Comment: Two commenters from North Texas Central College suggested that the requirement for paraffin baths/waxes in subsections (w)(9)(J) and (w)(10)(H) should be removed as this is an outdated technique that is rarely used.

Department Response: The Department disagrees with these comments. Changing the minimum requirements for Beauty Culture Schools is not in keeping with the purpose and scope of this rulemaking. However, these comments have been provided to the appropriate staff for consideration in future rule changes. The department has made no changes as a result of these comments.

COMMISSION ACTION

At its meeting on September 29, 2020, the Commission adopted the proposed rule as published in the Texas Register.

STATUTORY AUTHORITY

The rule is adopted under Texas Occupations Code, Chapters 51, 1602, and 1603, which authorize the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51, 1602, and 1603. No other statutes, articles, or codes are affected by the adopted rule.

  • 83.72 Responsibilities of Beauty Culture Schools.

(a) Each establishment must have a copy of the current law and rules book.

(b) Each establishment is responsible for compliance with the health and safety standards of this chapter.

(c) Notify the department of any alterations of a cosmetology establishment's floor plan.

(d) The certificate of curriculum approval shall be posted in a conspicuous place in the school. A current syllabus and lesson plan for each course shall be maintained by the school and be available for inspection.

(e) Unless the context clearly indicates otherwise, when used in this section the term "student-instructor" shall mean a student permit holder who is enrolled in an instructor course of a beauty culture school.

(f) Schools must have at least one licensed instructor on duty for each 25 students in attendance, including evening classes. A school may not enroll more than three student-instructors for each licensed instructor teaching in the school. The student-instructor shall at all times work under the direct supervision of the licensed instructor and may not service clients, but will concentrate on teaching skills. A licensed instructor must be physically present during all curriculum standard activities. No credit for instructional hours can be granted to a cosmetology student unless such hours are accrued under the supervision of a licensed instructor.

(g) Schools offering distance education must:

(1) obtain department approval before offering a course;

(2) provide students with the educational materials necessary to fulfill course requirements; and

(3) comply with the curriculum standards in §83.120(d) by limiting distance education to instruction in theory.

(h) Schools must maintain one album to display each student permit, including affixed picture, of each enrolled student. The permits shall be displayed in alphabetical order by last name, then alphabetical order by first name, and, if more than one student has the same name, by student permit number.

(i) Schools may use a time clock to track student hours and maintain a daily record of attendance or schools may use credit hours.

(j) Schools using time clocks shall post a sign at the time clock that states the following department requirements:

(1) Each student must personally clock in/out for himself/herself.

(2) No credit shall be given for any times written in, except in a documented case of time clock failure or other situations approved by the department.

(3) If a student is in or out of the facility for lunch, he/she must clock out.

(4) Students leaving the facility for any reason, including smoking breaks, must clock out, except when an instructional area on a campus is located outside the approved facility, that area is approved by the department and students are under the supervision of a licensed instructor.

(k) Students are prohibited from preparing hour reports or supporting documents. Student-instructors may prepare hour reports and supporting documents however only school owners and school designees, including licensed instructors, may electronically submit information to the department in accordance with this chapter. No student permit holder, including student-instructors, may electronically submit information to the department under this chapter.

(l) A school must properly account for the hours granted to each student. A school shall not engage in any act directly or indirectly that grants or approves student credit that is not accrued in accordance with this chapter. A school must maintain and have available for a department and/or student inspection the following documents for a period of the student's enrollment through 48 months after the student completes the curriculum standards, withdraws, or is terminated:

(1) daily record of attendance;

(2) the following documents if a time clock is used:

(A) time clock record(s);

(B) time clock failure and repair record(s); and

(C) field trip records in accordance with §83.120(e)(5);

(3) all other relevant documents that account for a student's credit under this chapter.

(m) Schools using time clocks shall, at least one time per month submit to the department an electronic record of each student's accrued clock hours in a manner and format prescribed by the department. A school's initial submission of clock hours shall include all hours accrued at the school. Delayed data submission(s) are permitted only upon department approval, and the department shall prescribe the period of time for which a school may delay the electronic submission of data, to be determined on a case by case basis. Upon department approval, a school may submit data required under this subsection in an alternate manner and format as determined by the department, if the school demonstrates that the requirements of this subsection would cause a substantial hardship to the school.

(n) Schools using credit hours shall, at the end of the course or module or if the student drops or withdraws, submit to the department an electronic record of each student's accrued credit hours in a manner and format prescribed by the department.

(o) Schools changing from clock hours to credit hours or from credit hours to clock hours must apply with the department for approval, on a department approved form, prior to making any changes.

(p) Successful completion of 1 credit hour is equal to 37.5 clock hours. This equivalency will be used for conversion between clock hours to credit hours or credit hours to clock hours and the department must periodically assess this equivalency conversion to ensure it is an acceptable industry standard.

(q) Except for a documented leave of absence, schools shall electronically submit a student's withdrawal or termination to the department within 10 calendar days after the withdrawal or termination. Except for a documented leave of absence, a school shall terminate a student who does not attend class for 30 consecutive days.

(r) Public schools shall electronically submit a student's accrual of 500 hours in math, lab science, and English.

(s) All areas of a school or campus are acceptable as instructional areas for a public cosmetology school, provided that the instructor is teaching cosmetology curricula required under §83.120.

(t) A private cosmetology school or post-secondary school may provide cosmetology instruction to public high school students by contracting with the school district and complying with Texas Education Agency law and rules. A public high school student receiving instruction under such contract is considered to be a public high school student enrolled in a public school cosmetology program for purposes of the Act and department rules.

(u) Schools may establish school rules of operation and conduct, including rules relating to absences and clothing, that do not conflict with this chapter.

(v) Schools must ensure that guest presenters possess the necessary knowledge and teaching ability to present a curriculum standard topic and that a licensed instructor is present during the guest presenter's classroom teaching.

(w) Beauty culture schools must have a classroom separated from the laboratory area by walls extending to the ceiling and equipped with the following equipment to properly instruct students enrolled at the school:

(1) if using a time clock to track student hours, one day/date formatted computer time clock;

(2) desks and chairs or table space for each student in attendance;

(3) multi-media equipment;

(4) a dispensary containing a sink with hot and cold running water and space for storage and dispensing of supplies and equipment;

(5) a suitable receptacle for used towels/linens;

(6) covered trash cans in lab area; and

(7) wet disinfectant soaking container, large enough to fully immerse tools and implements.

(8) If offering the operator curriculum standards the following equipment must be available in adequate number for student use:

(A) shampoo bowl and shampoo chair;

(B) hair drying equipment or professional hand-held hair dryers;

(C) cold wave rods;

(D) thermal iron (electric or non-electric);

(E) styling station covered with a non-porous material that can be cleaned and disinfected, with mirror and styling chair (swivel or hydraulic);

(F) mannequin with sufficient hair, with table or attached to styling station;

(G) professional hand clippers;

(H) manicure table and stool;

(I) facial chair or bed;

(J) lighted magnifying glass;

(K) dry sanitizer; and

(L) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(9) If offering the esthetician curriculum standards the following equipment must be available in adequate number for student use:

(A) facial chair or bed;

(B) lighted magnifying glass;

(C) woods lamp;

(D) dry sanitizer;

(E) steamer machine;

(F) brush machine for cleaning;

(G) vacuum machine;

(H) high frequency machine for disinfection, product penetration, stimulation;

(I) galvanic machine for eliminating encrustations, product penetration;

(J) paraffin bath and paraffin wax;

(K) mannequin head; and

(L) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(10) If offering the manicure curriculum standards the following equipment must be available in adequate number for student use:

(A) an autoclave, dry-heat sterilizer or ultra-violet sanitizer;

(B) complete manicure table with light;

(C) client chair;

(D) student stool or chair;

(E) whirlpool foot spa or foot basin;

(F) electric nail file;

(G) UV light curing system;

(H) paraffin bath and paraffin wax;

(I) air brush system; and

(J) wet disinfectant soaking containers.

(11) If offering the esthetician/manicure curriculum standards, the equipment required for the esthetician curriculum standards as listed in paragraph (9); and the equipment required for the manicure curriculum standards as listed in paragraph (10); including a wax warmer and paraffin warmer for each service, in adequate number for student use.

(12) If offering the eyelash extension curriculum standards; the following equipment must be available in adequate number for student use:

(A) facial bed or massage table that allows the consumer to lie completely flat;

(B) stool or chair;

(C) lamp;

(D) mannequin head;

(E) wet disinfectant soaking containers; and

(F) dry sanitizer.

(x) Cosmetology schools shall display in the school, in a conspicuous place clearly visible to the public:

(1) a copy of the school's most recent inspection report issued by the department; and

(2) a sign, acceptable to the department, regarding human trafficking information as required by Texas Occupations Code, Chapter 1602, §1602.408.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on September 30, 2020.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation