BILL ANALYSIS Ó
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|Hearing Date:June 23, 2014 |Bill No:AB |
| |1153 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 1153Author:Eggman
As Amended:June 16, 2014 Fiscal: Yes
SUBJECT: Master esthetician: license.
SUMMARY: Modifies the scope of practice of cosmetology and skin care.
Requires the Board of Barbering and Cosmetology (BBC) to create a
master esthetician license and establishes a scope of practice for a
master esthetician.
Existing law:
1)Establishes the Barbering and Cosmetology Act (Act), which provides
for the licensure and regulation of barbers and cosmetologists,
including the practice of skin care by licensed estheticians, by the
BBC. (Business and Professions Code (BPC) § 7300 et. seq.)
2)Establishes requirements that applicants for a cosmetology,
esthetician, barbering, manicurist and electrologist license must
meet in order to sit for the licensure examination.
(BPC §§7321, 7321.5, 7324, 7326, 7330)
3)Requires an applicant for an esthetician license to complete an
application, pay an application and examination fee, pass the
examination, and meet other educational and practice qualifications
such as the completion of an approved skin care course of
instruction that includes no less than 600 hours of practical
training and technical instruction that accords with the curriculum
established by the BBC. (BPC §§7324, 7364)
This bill:
1)Requires the Board to encourage licensees to continue to develop
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their skills in the appropriate application and use of evolving
industry techniques, products and equipment by recognizing industry
certifications that meet appropriate standards approved by the
Board.
2)Adds to the practice of cosmetology by specifying that it includes:
a) Giving facials or the practice of exfoliating or beautifying
the face, scalp, neck, or upper part of the human body by use of
"esthetic devices", hands, cosmetic preparations, antiseptics,
lotions, tonics or creams. Specifies that "esthetic devices"
include, but are not limited to, steamers, mechanical brushes,
and high frequency, galvanic current, vacuum and spray, light
emitting diode (LED), and skin analysis equipment. Requires that
esthetic devices be operated in accordance with the
manufacturer's written instructions. Requires esthetic devices
to be intended for improving the appearance of the skin, and be
noninvasive pursuant to United States (U.S.) Food and Drug
Administration (FDA) guidelines and not designed to ablate or
destroy live tissue.
b) Performing superficial exfoliation procedures on the top layer
of the skin (stratum corneum) using commercially available
products, in accordance with the manufacturer's written
instructions including but not limited to:
i) Manual scrubs including mechanical brush use which
includes application of a cosmetic product with mild abrasive
ingredients that remove dead skin cells.
ii) Superficial chemical exfoliation of the stratum corneum.
iii) Enzyme or herbal exfoliation of the stratum corneum.
iv) Extraction with a nonneedle extraction tool which includes
the manual removal of comedones (blackheads) and other surface
impurities with the use of fingers or sterile swabs.
v) Mechanical exfoliation devices such as microdermabrasion.
1)Clarifies that the practice of cosmetology includes removing
superfluous hair from the body of any person by the use of tweezers,
sugaring, nonprescription chemicals, waxing or mechanical means.
2)Adds to the practice of cosmetology by authorizing the application
of eyelashes to any person.
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3)Specifies that the practice of skin care includes:
a) Giving facials or the practice of massaging, stimulating,
exfoliating, cleansing or beautifying the face, scalp, neck or
upper part of the human body by use of hands, esthetic devices
(as described above), cosmetic preparations, antiseptics,
lotions, tonics, or creams that do not result in ablating or
destroying live tissue.
b) Performing superficial exfoliation procedures on the top layer
of the skin (stratum corneum) using commercially available
products as described above.
c) Removing superfluous hair from the body as described above.
d) Applying eyelashes to any person.
4)Clarifies that this bill does do not confer authority to practice
medicine or surgery, including but not limited to the use of
radiographs, the furnishing of drugs or invasive devices,
supervising medical personnel or diagnosing injury, illness, or
disease.
5)Grants title protection to estheticians and master estheticians
(MEs) by stating that a person who is not licensed as an esthetician
or ME in this state shall not represent himself or herself as an
esthetician or ME.
8) Requires BBC to admit to examination for a license as a ME to
practice skin care, in accordance with regulations adopted by the
BBC, any person who has made an application to the BBC in proper
form and paid the application and examination fee as required, and
who is qualified as follows:
a) Is not less than 17 years of age;
b) Has completed the 10th grade or its equivalent;
c) Is not subject to denial, as specified; and,
d) Has done at least one of the following:
i) Completed a course in skin care, consisting of not less
than 1200 hours of practical training and technical instruction
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in accordance with a curriculum established by BBC regulation
and from a school approved by the BBC;
ii) Earned a national or international diploma or
certification in advanced or ME that is recognized by the BBC;
iii) On or before January 1, 2018 holds an unexpired
cosmetologist or esthetician's license that has not been
revoked, suspended or restricted and the licensee is in good
standing and has been an active licensee for at least three of
the last five years, not subject to any disciplinary action or
criminal conviction;
iv) Practiced as a ME outside of this state for a period of
time equivalent to the study and training of a qualified person
who has completed a course in master esthetics from a school
whose curriculum meets the requirements of the BBC. Authorizes
each three months of practice to qualify for 100 hours training
toward the 1200 hours required.
1) States that an applicant eligible to sit for licensure as a ME who
fails to pass the test on the second attempt is required to qualify
for the exam after completing a 1200 hour course, or extra 600
hours if the applicant has already completed a 600 hour course.
2) Authorizes a ME to do all of the following, in addition to the
above descriptions for the practice of skin care:
a) Exfoliation procedures on the face and body using commercially
available products in accordance with the manufacturer's written
instructions including but not limited to superficial and
chemical exfoliation preparations intended to work with the
epidermal layers of the skin and combination of cosmetic
preparations intended for light and superficial exfoliation
results;
b) Services using devices or the combination of devices on the
face and body, operated in accordance with the manufacturer's
guidelines and intended for improving the appearance of the skin
so long as the devices are noninvasive (per FDA guidelines) and
not designed to ablate or destroy live tissue;
c) Extraction (defined as the process of removing sebum,
bacteria, dead cells and other waste from the skin follicle)
techniques using a disposable lancet (defined as a sterile,
small, pointed tool that is used to prick the skin and sold for a
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single use) that is required to be disposed of after each use
according to local and state requirements and held in a secure
location only accessible to the licensed ME. Extraction
techniques shall only include follicle dilation of close
comedones (blackheads) or pustules;
d) Massage techniques on the face, upper body, back, scalp, hands
and feet for the purposes of beauty which does not include
lymphedema therapies;
e) Body treatments that use water, appliances, devices and
cosmetic preparations intended to improve the appearance of the
skin;
1) Prohibits a ME from being allowed to use lasers.
2) Requires a ME course established by a school to consist of not less
than 1200 hours of practical training and technical instruction in
accordance with a curriculum established by BBC regulation and
clarifies that the ME course is not a requirement of obtaining an
esthetician license.
3) Provides that an applicant enrolling in a 1200 hour ME course who
has completed the 600 hour esthetician course from a BBC-approved
school is only required to obtain the additional 600 hours of
practical and technical training not received in the initial 600
hour esthetician course.
4) Requires a ME license to prominently state that the holder is
licensed as a master esthetician.
5) Requires a ME application and examination fee to be the actual cost
to the BBC for developing, purchasing, grading, and administering
the examination. Prohibits a ME initial license from being more
than forty dollars.
6) Makes other technical and clarifying changes.
7) States that no reimbursement is required by this bill because the
only costs that may be incurred by a local agency or a school
district will be incurred because this bill creates a new crime or
infraction, eliminates a crime or infraction, changes the penalty
for a crime or infraction, or changes the definition of a crime.
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FISCAL EFFECT: This bill is keyed "fiscal" by Legislative Counsel.
According to the Assembly Committee on Appropriations Committee
analysis dated January 6, 2014, this bill will result in "start-up
costs substantially offset by exam fees earned following license
establishment, ongoing exam costs and expert examiner costs fully
offset by exam fees and potential one-time increase in licensing fee
revenues from applicants in the first year of license availability".
The analysis also cites absorbable workload and enforcement costs to
BBC.
COMMENTS:
1. Purpose. This bill is sponsored by the Coalition for Advanced
Skincare and Education . According to the Author , the professional
spa industry has significantly gown in California since the
inception of the esthetician licensing program. The Author asserts
that "numerous California doctors and dermatologists have added
estheticians to their staff to elevate serve offerings to clients.
In fact, clients regularly visit their offices for esthetic
services, and, with the expert consultation of an esthetician, they
are referred to the doctor for advanced medical services that the
nurses and doctors perform." The Author adds that "both medi-spas
and luxury spas expect their estheticians to be educated in a
variety of specialized services and procedures." According to the
Author, technology advancements in this area have created the need
for more sophisticated training but "unfortunately, existing law
does not address a master esthetician license that will address the
gap in training and ensure consumers are protected."
2. BBC and Regulation of Estheticians. The Act regulates the practice
of barbering, cosmetology and electrolysis. Title protection is
provided for the use of the term "cosmetologist" and "barber." The
Act also regulates the specialty branches within the practice of
cosmetology of skin care and nail care. Those exempt from the Act
are generally: (1) those involved in the health care field who,
within their own scope of practice, may perform particular
procedures which would constitute the practice of barbering or
cosmetology; (2) commissioned officers in the military service, or
their attendants, when engaged in the actual performance of their
official duties; (3) persons employed in the movie, television,
theatrical, or radio business; (4) persons not receiving
compensation and done outside of a licensed establishment; (5)
persons who are demonstrating, recommending or selling hair, skin
or nail products; and (6) students performing services on the
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public while enrolled in an approved school.
BBC ensures that applicants for licensure have completed the
necessary training and passed the written and practical (hands on)
components of an examination. Examinations require that the
individual demonstrate that they possess the knowledge and skills
required to perform within the scope of their discipline while
protecting the public's health and safety.
Estheticians have been licensed in California since 1978.
According to BBC, esthetics is the practice of giving facials,
applying makeup, eyelash application, hair removal (by tweezing or
waxing), and providing skin care. It also includes beautifying the
face, neck, or upper part of the human body (shoulders and up) by
use of cosmetic preparations, antiseptics, tonics, lotions or
creams. There are at least 60,000 licensed estheticians in
California. To be a licensed esthetician, a person must complete
the 10th grade or the equivalent, complete 600 hours of training at
a BBC-approved school or have practiced skin care for a specified
period of time, and pass a written and practical examination.
Esthetician licenses are renewed every other year and licensees are
not required to obtain continuing education. Estheticians are not
allowed to provide skin piercing or laser treatments, administer
medicine, or remove skin tags or moles.
BBC has been involved in discussions related to an advanced or
master esthetician license for over five years. In 2010, Board
staff provided statistics to the Board outlining complaints
of consumer harm received by BBC related to skin care. For Fiscal
Year 2009-10, the Board received 62 skin care complaints,
including:
5 related to a facial allergic reaction
4 related to a facial burn
2 related to a facial cut
2 related to a facial infection
4 related to a skin allergic reaction
4 related to a skin burn
2 related to a skin infection
1 related to skin microdermabrasion
2 related to an allergic reaction to wax
25 related a burn from wax
4 related to a cut from wax
7 related to an infection from wax
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The Board cited only 4 cases of disciplinary action against an
esthetician in a three year period, from 2007-2010 related to skin
care.
In FY 2011-12, BBC received 77 complaints related to skin care, 2
of which included practices that proponents assert should be
performed by a ME, specifically a combination of a
microdermabrasion treatment with a light chemical exfoliation
resulting in scabs on the client's face and a peel applied in 4
layers after which the client had burns.
For FY 2012-13, BBC received 60 complaints related to skin care.
Complaints included "redness and a burning sensation", "red swollen
skin" from a diamond facial peel and extractions performed with a
lancet and burns on a client's legs and back after a body wrap.
BBC is also discussing means by which the Board can recognize
additional practices and the use of additional techniques, devices
and products through a certification process. BBC is interested in
ensuring ongoing training and education for licensees (and has
proposed multiple continuing education requirements for licensees,
none of which have come to fruition) and out of advancing that
general goal, has arisen a Board-supported effort to provide
certification to existing licensees who receive enhanced training
in a particular practice, so long as it is eligible within that
licensee's scope.
1. Sunrise Questionnaire Response. Pursuant to Government Code
Section 9148 et seq., and Senate Committee on Business, Professions
and Economic Development Rule number 31, the Committee requires
that proponents of a licensure proposal complete and submit a
"Sunrise Questionnaire" to the Committee. The Committee received a
questionnaire (Responses) from the proponents of this bill on May
28 of this year.
According to the Responses, the existing legal descriptions of the
scope of esthetic services are vague and badly outdated in the
context of a significant evolution of techniques and materials
employed in the field. The Responses states that a number of
individuals, many of them with solely 600 hours of skin care
education, have taken advantage of language imprecision and have
been offering services that should be reserved for individuals
qualifying for a ME license. Additionally, the Responses states
that "too many therapists claim expertise in certain advanced
procedures without possessing adequate training and clients tend to
trust therapist claims of competence." Proponents believe that by
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creating a ME license and scope, the state will effectively be
eliminating "barriers currently preventing the marketplace from
fully and freely functioning. Available new techniques and consumer
demand for them is in essence a tidal wave being held back by
outdated government regulation."
The Responses outline how "maltreatment by an esthetician operating
outside scope or with insufficient training impacts a consumer
initially at a physical level. Where the physical harm also affects
appearance, significant emotional and social damage may follow. In
certain fields, physical disfigurement may also result in a
meaningful reduction in earnings potential in addition to direct
additional medical expense incurred to address harm to the body
caused by the maltreatment? Vanity is part of the equation , but
another part is the pragmatic reality that physical appearance
matters in terms of social and work success. Stated another way,
choices other people make are influenced every day by judgments
they make about someone else's appearance. Those judgments may be
prejudiced, but that is the real world. Someone disfigured by an
esthetic treatment gone awry faces narrowing social and
professional opportunities."
The proponents of this bill believe that while some of these
individuals received some instruction at trade shows or in
apprenticeship arrangements and are practicing safely, others are
practicing beyond their capacity and creation of a ME license,
including careful clean-up and delineation of the current scope
descriptions, will over a period of a few years meaningfully expand
the number of practitioners well qualified to provide advanced
services. According to the Responses, the additional coursework and
theory required for a ME license will provide this individual "the
proper combination of theory and hands on experience to understand
the risks associated with a more advanced technique as well as
understand the risks associated with emerging techniques."
However, the Responses was blank in the area of measuring on a
scale of 1-5 the degree of harm that will result without a ME
license, as well as whether existing protections available to the
consumer are insufficient and whether regulation will mitigate
existing problems.
2. Master Esthetician Licensure in Other States. Currently, Utah and
Virginia offer a two-tier ME program comprised of 1200 hours of
study, similar to the provisions of this bill. Washington D.C.
also recognizes a ME and Washington state recognizes a "practice of
master esthetics".
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Utah created a ME license in 2001 with a required 1200 hours of
education and training in 2006 and has 23 schools that offer an
esthetic program. In Utah, ME means the individual can practice
any of the following when done for cosmetic purposes on the head,
face, neck, torso, abdomen, back, arms, hands, legs, feet, eyebrows
or eyelashes and not for the treatment of a medical, physical or
mental ailment:
body wraps,
hydrotherapy,
chemical exfoliation,
advanced pedicures,
sanding, including microdermabrasion,
advanced extraction,
other esthetic preparations or procedures with the use
of the hands or a mechanical or electrical apparatus which is
approved for use for beautifying or similar work performed on
the body for cosmetic purposes and not for the treatment of a
medical, physical, or mental ailment,
cosmetic laser procedures under the supervision of a
cosmetic supervisor with a physician's evaluation before the
procedure and limited to superfluous hair removal, anti-aging
resurfacing enhancements, photo rejuvenation, tattoo removal
with a physician's evaluation before the tattoo removal
procedure and lymphatic massage by manual or other means.
Washington state recognizes a "practice of master esthetics" which
authorizes all of the services for the practice of esthetics
(esthetics includes care of the skin for compensation by
application, use of preparations, antiseptics, tonics, essential
oils, exfoliants, superficial and light peels, or by any device,
except laser, or equipment, electrical or otherwise, or by wraps,
compresses, cleansing, conditioning, stimulation, superficial skin
stimulation, pore extraction, or product application and removal;
temporary removal of superfluous hair by means of lotions, creams,
appliance, waxing, threading, tweezing, or depilatories, including
chemical means; and application of product to the eyelashes and
eyebrows, including extensions, design and treatment, tinting and
lightening of the hair, excluding the scalp. Under no
circumstances does the practice of esthetics include the
administration of injections) and expands on those by also
authorizing "the performance of medium depth peels and the use of
medical devices for care of the skin and permanent hair reduction
which include but are not limited to lasers, light, radio
frequency, plasma, intense pulsed light and ultrasound."
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1. Licensure, Recognition and Regulation. According to a 2002 article
featured in the Yale Journal of Regulation, to protect the public
from potentially harmful health services rendered by unqualified
people, each state has enacted licensing laws, or practice acts.
The article noted that typically, these laws do three things: (1)
They define the practice of the profession in question; (2) they
limit that practice to people who satisfactorily complete a
specified training regime and pass an examination; and (3) they
restrict to license holders both the use of the professional title
or credentials and the performance of the defined practice
functions.
According to "A Theory of Regulation: A Platform for State
Regulatory Reform", 5:2 CAL. REG. L. REP. 3 (Spring 1985),
"Government should regulate a particular trade or profession only
after an honest assessment of the marketplace and any flaws which
present a threat of irreparable harm, or prevent normal marketplace
functioning from driving out incompetent, dishonest, or impaired
practitioners. The article outlines that "licensing is one form of
regulation but should be reserved for trades and professions in
which incompetence is likely to cause irreparable harm - that is,
harm for which money cannot compensate. If there is likely
irreparable harm, then a prior restraint- type barrier to entry
(licensing) which addresses and prevents that precise harm should
be imposed; additionally, the licensing agency should set
industrywide standards of conduct and ethics, and police violations
of those standards through a vigorous enforcement program".
According to the article, in the absence of probable irreparable
harm, numerous regulatory alternatives to licensing exist,
including the posting of a bond to ensure a fund to compensate
injured consumers, a certification program which has the effect of
disclosing information to consumers about the qualifications of a
practitioner and protects the use of a title or a permit program,
as some examples.
A practice act along with licensure confers the exclusive right to
practice a given profession on practitioners who meet specified
criteria related to education, experience, and examination, and
often is embodied in a statutory licensing act (i.e., those who are
not licensed cannot lawfully practice the profession). A practice
act is the highest and most restrictive form of professional
regulation, and is intended to avert severe harm to the public
health, safety or welfare that could be caused by unlicensed
practitioners.
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A title act and a certification or registration program, on the
other hand, reserves the use of a particular professional (named)
designation to practitioners who have demonstrated specified
education, experience or other criteria such as certification by
another organization. A title act typically does not restrict the
practice of a profession or occupation and allows others to
practice within that profession; it merely differentiates between
practitioners who meet the specified criteria, and are authorized
by law to represent themselves accordingly, (usually by a specified
title) and those who do not. Some title acts also include a state
certification or registration program, or reliance on a national
certification or registration program, so that those who use the
specified title, and hold themselves out to the public, have been
certified or registered by a state created or national entity as
having met the specified requirements. This entity may also
regulate to some extent the activities of the particular profession
by setting standards for the profession to follow, and to also
provide oversight of the practice of the profession by reporting
unfair business practices or violations of the law and either
denying or revoking a certification or registration if necessary.
In the past number of years, the Committee has considered licensure
proposals for professions, including massage therapists, makeup
artists, geriatric health care assistants and athletic trainers, to
name a few.
Athletic trainers in particular are an interesting example of a
profession seeking licensure. Specifically, athletic trainers are
allied healthcare professionals recognized by the American Medical
Association, the American Medical Society of Sports Medicine and
others who work in collaboration with a physician. Their education
is predicated upon a formalized relationship with a physician,
working under established guidelines. Athletic trainers evaluate
injuries and determine a patient's disposition, respond to
emergencies and make "split second decisions" regarding the
management of an injury as well as making decisions regarding the
course of rehabilitation. Athletic trainers also make "immediate
decisions regarding serious conditions such as concussion, spinal
cord injury, heat illness and sudden cardiac arrest without the
intervention or advice of other health care professionals" in
situations where an incorrect decision could lead to a catastrophic
or fatal outcome. An individual can become an athletic trainer by
graduating with a minimum of a bachelor's degree from an accredited
athletic training education program and by passing a national
certification examination offered by Board of Certification, Inc.
(BOC), a national body providing certification for athletic
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trainers in all 49 states where they are currently recognized. At
least 70 percent of athletic trainers practicing today hold a
master's degree or higher. Athletic trainers, like other health
care professionals, take science based courses in anatomy,
physiology, chemistry and physics and must understand all systems
of the body and their normal and pathological functions, including
biochemical functions. Yet athletic trainers are not licensed in
California and are still working this year to receive title
protection through legislation currently pending in the Senate.
This bill proposes a practice act and licensure for master
estheticians.
2. Related Legislation This Year. AB 1890 (Chau) establishes
certification and training requirements for athletic trainers and
prohibits individuals from calling themselves athletic trainers
unless they meet those requirements. ( Status: This bill is
pending in the Senate.)
3. Prior Related Legislation. SB 308 (Lieu, Chapter 333, Statutes of
2013) extends the provisions for the licensure and regulation of
the BBC, among others, as specified until January 1, 2016.
AB 864 (Skinner) of 2013 would have established the licensure and
regulation of athletic trainers through the creation of an Athletic
Trainer Licensing Committee under the Physical Therapy Board of
California. ( Status: The bill was held under submission in the
Assembly Committee on Appropriations.)
SB 1273 (Lowenthal) of 2012 was very similar to AB 864. ( Status:
The bill failed passage in this Committee.)
AB 1754 (Mendoza) of 2012 would have provided for the voluntary
certification of makeup artists, and would have defined the
practice of makeup artistry to include applying makeup,
prosthetics, lash and brow tinting, application of false eyelashes
and skin protection. ( Status: The bill was held in the Assembly
Committee on Business, Professions and Consumer Protection.)
AB 374 (Hayashi) of 2011 would have established the Athletic
Trainer Licensing Committee within the Medical Board of California
to license and regulate athletic trainers commencing January 1,
2013 and sunsetting on January 1, 2018. The bill was later amended
to provide title protection for athletic trainers. ( Status: The
bill was amended to become a bill by Assemblymember Hill that dealt
with funeral embalmers and signed by the Governor.)
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AB 1647 (Hayashi) of 2010 would have established certification and
training requirements for athletic trainers and prohibited
individuals from calling themselves athletic trainers unless they
meet those requirements. ( Status : The bill was vetoed by Governor
Schwarzenegger.)
SB 284 (Lowenthal) of 2007 would have enacted the Athletic Trainers
Registration Act prohibiting a person from representing himself or
herself as a "certified athletic trainer," unless he or she is
registered by an athletic training organization. ( Status: The
bill was vetoed by Governor Schwarzenegger.)
AB 265 (Mendoza, Chapter 50, Statutes of 2007) deleted the July 1,
2008 inoperative date for provisions excluding threading, thereby
exempting the practice from the Act indefinitely.
SB 1397 (Lowenthal) of 2006 would have enacted the Athletic
Trainers Certification Act, prohibiting a person from representing
him or herself as an athletic trainer unless he or she is certified
as an athletic trainer by an athletic training organization, as
defined. ( Status: The bill was vetoed by Governor Schwarzenegger.)
SB 1474 (Figueroa, Chapter, Statutes of 2006) among other
provisions, made it a misdemeanor for BBC licensees to use a laser
in the treatment of any human being.
AB 1793 (Bermudez, Chapter 149, Statutes of 2006) revised the
definition of threading to include the incidental trimming of
eyebrow hair and extended the exemption for licensure until 2008.
AB 614 (Lowenthal) of 2003 would have required the DCA to submit a
recommendation to the Legislature as to whether the state should
license and regulate athletic trainers by January 1, 2006, if the
DCA is provided with an occupational analysis of persons providing
athletic trainer services by July 1, 2005. ( Status: This bill was
held in this Committee to allow JCBCCP to examine whether athletic
trainers should be licensed as part of the "sunrise" process.)
AB 2789 (Lowenthal) of 2002 would have required the Department of
Consumer Affairs to review the need for licensing of athletic
trainers and undertake an occupational analysis. ( Status : This bill
was held under submission in the Assembly Committee on
Appropriations.)
4. Arguments in Support. According to the Coalition for Advanced
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Skincare and Education (Coalition), Milan Institute of Cosmetology ,
Pivot Point International , Skin Inc. Magazine and Spa Remedies LLC
this bill reflects a constructive delineation of scope of practice
between what someone licensed as an esthetician should be allowed
to perform and what other services should be reserved for a master
esthetician. According to the Coalition, consumers will be well
served by being able to understand which providers have secured
advanced learning associated with a ME license.
The Professional Beauty Federation of California (PBFC) believes
that the changes in the skin care sector since the current
esthetician license was established warrant a new license category
for a broader scope of practice in this field.
5. Arguments in Opposition. The California Society of Dermatology and
Dermatologic Surgery (CalDerm) is opposed to this bill, writing
that while recent amendments address some concerns, the bill
continues to allow alternative pathways to esthetician and advanced
esthetician licensure outside of the 1200 hours of education and
training which may allow estheticians and advanced estheticians to
practice in California without adequate knowledge of their
responsibilities under California law. CalDerm is also concerned
about provisions in the bill authorizing MEs to use medical devices
like lancets and states that the bill currently does not provide
adequate safeguards to ensure consumer safety. According to
CalDerm, creating a ME license without sufficiently defining
parameters of commensurate training could result in false public
expectation and added risk to consumers.
6. Policy Issues.
a) It does not appear as if irreparable harm has been
demonstrated as a reason for licensure.
A case has been made that the BBC's approved curriculum, ability
to recognize and oversee certain practices and allowable
practices for licensees needs to be changed and updated. In
making that case, proponents for this bill have demonstrated a
potential need for regulatory updates to recognize advances in
skin care, but have not demonstrated that California consumers
and clients of licensed estheticians are currently facing
irreparable harm by receiving services by these individuals who
have only undergone 600 hours of training. The type of harm BBC
investigates in this area may be inconvenient and personally
upsetting to consumers, but in most instances, not permanent.
Additionally, the same complaints may arise for services received
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by a ME, as it has not been proven and no data exists to ensure
that an additional 600 hours of training and a license will
prevent the same problems from occurring. There is an inherent
"buyer beware" element related to a consumer's decision to
receive and pay for beautification services and it is unclear how
a new license category will prevent consumer harm.
b) Benefit to schools.
According to the Responses, there are currently two schools in
California offering "advanced esthetics" programs. Those schools
would certainly benefit from the ability to market their programs
as resulting in what prospective students might perceive as a
"higher" license category, thus allowing the school to market to
students based on their ability to obtain a ME license by the
Board. While additional and education and training are laudable
goals for all professions, it is not clear that a 1200 hour
program guarantees competency beyond a 600 program and current
esthetician license. This bill directly points this out by
offering multiple pathways to gain a ME license that are not
directly based on education, including the ability to become a ME
after holding a cosmetology or esthetician license for at least
three of the last five years. Proponents, including providers of
liability insurance to skin care professionals, cite claims that
they believe directly show how "the lack of necessary education
and supervised, hands-on training that demonstrates skill and
thorough skin analysis, ingredient recognition and possible
product contraindications can result in serious and permanent
harm to the consumer," but some estheticians, as in other
professions, may simply be more dedicated to a long-term career
in the field and may naturally be more adept at the practice of
skin care. Similarly, some schools and training programs may
simply be of a higher quality and employ more well-trained and
progressive instructors than their counterparts. Additional
licensure options for students of one program over another should
not be the means by which the decision about program quality is
made. Students and estheticians who invest in their future
through additional education, as well as training offered by
manufacturers and vendors of skin care-related products and
devices, may be better recognized by the Board through a
certification or specialty recognition effort.
c) Potential unintended consequences and burdens placed on the
BBC.
The Board has taken a support position on this bill at recent
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meetings. However, this bill will result in additional
challenges to the BBC's operations. As noted at a Board meeting
earlier this year, authorizing lancets to be used only by MEs
could cause significant confusion for Board inspectors as they
try to differentiate between a ME, who under this bill would be
authorized to utilize and have lancets in their possession, and
an esthetician who may be working in the same salon or spa, or
using the same room while the ME is not using it. A BBC
inspector might issue a citation to the esthetician if lancets
were seen, the esthetician could contest the citation and point
out that the lancets were legitimately in the room for use by the
ME and all of this could be sorted out by the tremendously
backlogged BBC Disciplinary Review Committee (DRC). The DRC
allows an individual who has been cited and fined to appeal the
violation by appearing in person, or submitting in writing their
evidence relating to the facts and circumstances regarding the
citation. Meetings are held in Northern and Southern California
throughout the year on a monthly basis for multiple days at a
time and backlogs still remain.
Additionally, this bill forces the conversation about the Board's
inability to properly regulate all practices happening every day
in the skin care field in licensed salons throughout the state.
New, more sophisticated products and techniques, such as skin
care practices and other machines, and the use of acids and
chemicals, continue to come into the marketplace every day. The
FDA approves products and devices in this ever-expanding field at
a pace that state government is not able to keep up with. There
is a constant and continuous evolution in the world of
beautification and BBC will not be able to provide proper
recognition or licensure for a potential floodgate of new
categories seeking favor and preference through licensure among
the current BBC licensee population practicing within the
beautification industry.
SUPPORT AND OPPOSITION:
Support:
Coalition for Advanced Skincare and Education
Milan Institute of Cosmetology
Pivot Point International
Professional Beauty Federation of California
Skin Inc. Magazine
Spa Remedies LLC
25 Individuals
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Opposition:
California Society of Dermatology and Dermatologic Surgery (CalDerm)
Consultant:Sarah Mason