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| Montana Administrative Register Notice 24-121-18 | No. 11 06/07/2024 | |
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BEFORE THE BOARD OF BARBERS AND COSMETOLOGISTS DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On June 27, 2024, at 9:00 a.m., a public hearing will be held via remote conferencing to consider the proposed changes to the above-stated rules. There will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: a. Join Zoom Meeting, https://mt-gov.zoom.us/j/82871801826 Meeting ID: 828 7180 1826, Passcode: 055181 -OR- b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656 Meeting ID: 828 7180 1826, Passcode: 055181
2. The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on June 20, 2024, to advise us of the nature of the accommodation that you need. Please contact the department at P.O. Box 1728, Helena, Montana 59624-1728; telephone (406) 444-5466; Montana Relay 711; or e-mail [email protected].
3. GENERAL REASONABLE NECESSITY: In support of the Governor's Red Tape Relief Initiative, the Department of Labor and Industry (department) is conducting comprehensive reviews of the administrative rules of the professional licensing boards administratively attached to the department. This review focuses on updating rules to current standards and procedures, and eliminating unnecessary, redundant, and overburdensome regulations and those duplicated in statute. Other changes replace out-of-date terminology for current language and processes, and amend rules and catchphrases for accuracy, consistency, simplicity, better organization, streamlining, and ease of use for customers and staff. Following consideration of the department's suggested changes, the board determined it is reasonably necessary to amend 23 rules, repeal 22 rules, and adopt five new rules to align with the Red Tape Relief Initiative. The streamlined rules will increase department efficiencies by further standardizing procedures used among all licensing boards and programs. If an additional specific basis for a proposed action exists, the board will identify the reason immediately following the specific rule. It is reasonably necessary to amend the authority and implementation citations to accurately reflect all statutes implemented through the rules and provide accurate and complete sources of the board's rulemaking authority. Rule titles are amended when necessary to accurately and clearly describe a rule's content.
4. The department proposes to amend the following rule, new matter underlined, deleted matter interlined:
24.101.413 RENEWAL DATES AND REQUIREMENTS (1) through (5)(c) remain the same.
(e) through (7) remain the same.
REASON: The department is amending this rule to align with the change from "instructor" to "teacher" throughout this notice.
5. The board proposes to amend the rules as follows, new matter underlined, deleted matter interlined:
24.121.301 DEFINITIONS (17) remains the same but is renumbered (5). (26) remains the same but is renumbered (9). (37) remains the same but is renumbered (14).
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-101, 37-31-203, 37-31-204,
REASON: The board is striking the definition of "approved electrical appliances" because the board does not track or approve appliances and the term is not used in statutes or rules. The board is correcting the definition of "barber" and "barbering" to clarify that when the terms are used in rule, they include both chemical and nonchemical barbering types unless otherwise specified. It is reasonably necessary to strike (2) "approved school" as duplicative with the statutory provisions of 37-31-304, MCA, which require applicants have diplomas from all schools that are authorized to provide qualifying courses of study. It is reasonably necessary to strike the definition of "beauty culture" as it is circuitous and adds nothing to the statutory definition of "cosmetology" at 37-31-101, MCA. The board is removing "blood spill kit" from (5) as unnecessary since blood exposure is addressed in ARM 24.121.1522 and this definition adds nothing. The board is striking (6) as the term "board-approved exam" is self-explanatory. It is reasonably necessary to amend new (2) "booth renter," and remove an erroneous statutory citation. Licensees are already required to abide by all applicable statutes and rules in their practices. It is reasonably necessary to strike "cadet" and "student" instructor as the terms are not used in board statutes or rules. The board is amending the rules throughout to use "student teacher" and "teacher" to align with the statutory definitions of 37-31-101, MCA. The board is striking "change in ownership" from (9) as ARM 24.121.412 adequately addresses requirements for a change in ownership of licensed premises. It is reasonable to amend new (3) "chemical compounds" to clarify its relation to the practice of esthetics. The board is removing the overly broad definition of "clean" in (11) as unnecessary and inaccurate since "clean" cannot always be sanitary or sanitized per board rules. The board is striking (12) "clipper cuts" and (24) "free-hand methods" as unnecessary as the board does not approve individual aspects of educational materials such as methods of clipper cuts. The board is deleting (13) as "demonstration" is self-explanatory and the board has never disciplined anyone for charging for demonstration-associated services. The board is striking (14) "dermabrasion" and (15) "dermaplane." No board licensee can practice surgery, so it is not necessary to define surgery types. It is reasonably necessary to amend the definitions of "exfoliation," "microdermabrasion," and "noninvasive" for clarity and accuracy in today's esthetics industry. The board is amending new (4) to clarify that "direct supervision" is required for students performing educational activities and services. It is unnecessary to limit or list such activities individually. It is reasonably necessary to strike (18) as "distance education" is not used in board statute or rule. To align with current practices, the board is clarifying allowable distance education in ARM 24.121.604. The board is striking (19) as "embellishment" and "beautification" are only contained in the definition of "cosmetology" at 37-31-101, MCA. The definition in rule adds nothing and is not used anywhere in board rules. The board is amending the definition of "employee" at new (6) to align with other changes throughout the notice to streamline rule language. It is reasonably necessary to simplify the definition of "facial shaving" at new (8). The term is only used in barbering curricula, and the board does not approve individual shaving educational materials including shaving positions or strokes. "Injection" is removed to align with terminology and razors used in current practice. The board is removing the unnecessary definition of "hairdressing" at (25). While the term is used in the "cosmetology" definition in 37-31-101, MCA, Montana does not issue separate "hairdressing" licenses, and the definition adds nothing. The board is striking "inactive" (27) to align with the elimination of inactive status for teachers elsewhere in the rule notice. It is reasonable to remove (28) as "locker" is self-explanatory and inspectors do not inspect their contents. The board is striking (23) "foreign educated applicant" and (29) "member of the public" as the terms are self-explanatory. The board is simplifying "mobile salon or shop" at new (11) for improved readability. The board is simplifying the definition of "needles" at new (12) since storage in a sterile manner implies no wetness or humidity. Needle handling and disposal provisions are relocated to ARM 24.121.1509. The board is amending (33) to remove language that is adequately addressed in unprofessional conduct statutes and rules. The board is striking (35) "sanitized," "sanitary," and "sanitation" as unnecessary. Inspectors do not swab test during inspections, and there are adequate sanitizing procedures in subchapter 15 of the board rules. The board is striking the "single use items" definition as the term is self-explanatory and providing a non-exclusive list of just some of these items is not helpful or enforceable. The board is striking (38) and relocating relevant provisions on the supplemental barbering course to ARM 24.121.807. It is reasonably necessary to strike (39) as "very superficial" is adequately explained in the definition of microdermabrasion in this rule. It is reasonably necessary to strike (34) "patch test" and "predisposition test" and (40) "working area" as the terms are not used anywhere in board statutes or rules.
24.121.403 (2) Booth renters must
AUTH: 37-31-203, MCA IMP: 37-31-203,
REASON: The board is amending this rule to simplify and streamline provisions for ease of use including substituting "licensed premises" throughout the rules instead of listing the individual types of licensed premises. It is reasonable to strike the requirement that mobile shops have their licenses on the shop's exterior since all licensees must post their licenses in their work areas for the public to view. Mechanical exfoliation endorsement provisions in (4) are relocated to a stand-alone rule, NEW RULE I, for clarity and ease of use. It is reasonable to remove (5) as the board does not collect or monitor device training certificates. Board staff would inquire if a question arose about a licensee's qualification to use a certain device. The board is removing (6) as unnecessary since advising esthetics clients regarding skin protection is part of generally accepted standards of practice.
24.121.407 GENERAL PREMISES REQUIREMENTS (a) and (b) remain the same.
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, 37-31-311, MCA
REASON: The board is relocating the prohibition on the use of fish in their practice to ARM 24.121.1517. Premises sanitation is addressed in ARM 24.121.1501. Variance language is stricken to align with the repeal of ARM 24.121.405.
24.121.410 INSPECTIONS (2) Sanitizing and disinfecting agents must be available for inspection and clearly labeled to disclose contents and manufacturer's directions. (3) Inspectors may seize and remove prohibited items or products per ARM 24.121.1517 that are discovered during an inspection. Licensees are responsible for and must pay for any disposal costs within 30 days of being notified of the costs.
AUTH: 37-31-203, 37-31-204, MCA IMP:
REASON: It is reasonably necessary to amend this rule to eliminate several provisions that unnecessarily duplicate statutory provisions and more clearly set forth the inspection requirements. The board is removing (2)(e)(ii) as unnecessary and because it contains an erroneous internal citation. The board is relocating the provisions on sanitizing and disinfecting agents from ARM 24.121.1513 and 24.121.1514 which are being repealed. The board is relocating the prohibited items information from ARM 24.121.1517 to (3) as a more logical location.
24.121.412 NAME CHANGE, CLOSURE, OR CHANGE OF OWNERSHIP (1) (2) When there is a change in 50 percent or more of ownership, the license issued to the previous owner is void and a new license must be obtained.
AUTH: 37-31-203, MCA IMP: 37-31-203, MCA
24.121.604 (1) To qualify for licensure by examination or as an out-of-state applicant, an applicant's course of study must consist of the hours specified in 37-31-304, MCA, and include the following minimum training content: (b) through (e) remain the same but are renumbered (ii) through (v). (viii) if applicant is a Montana-licensed cosmetologist, completion of a supplemental barbering course per ARM 24.121.807. (b) through (d) remain the same but are renumbered (ii) through (iv). (f) remains the same but is renumbered (vi). (a) through (g) remain the same but are renumbered (i) through (vii). (a) through (e) remain the same but are renumbered (i) through (v). (a) through (c) remain the same but are renumbered (i) through (iii). (a) through (e) remain the same but are renumbered (i) through (v). (2) All board-issued license types have scopes that are limited to noninvasive procedures. (3) Teacher applicants see ARM 24.121.607. (4) An individual's theory and classroom practical education for licensure may be obtained through distance learning. All practical distance learning must be two-way, interactive, and real time. All floor work on the general public must occur in-person.
AUTH: IMP:
REASON: The board is amending this rule to clarify that applicants' education per 37-31-304, MCA, must include minimum course content as specified in this rule. This content is currently referenced in ARM 24.121.603 and used to determine acceptable courses of study for licensure by examination applicants. The board is amending this rule to apply to all license applicants and repealing ARM 24.121.601 and 24.121.603. Any remaining relevant provisions are relocated to this rule. The board is striking the introductory advisory statement as the clarified rule language adequately explains the analysis of acceptable education course content. The board is removing unnecessary language requiring specific haircutting teaching techniques. The board expects that schools will follow appropriate, standard educational techniques. Facial shaving is updated to use a straight edge razor to align with the amended definition in ARM 24.121.301(8). The board is adding (2) to clarify that regardless of what an applicant's out-of-state license allows for practice in that state, all of the board's licensees are limited to noninvasive procedures per ARM 24.121.301. The board is adding (4) to clarify the acceptance of distance learning in applicants' education. This has been the policy since the pandemic, and the board is now putting it in rule.
24.121.605
AUTH: IMP:
REASON: The board is amending this rule to clearly set forth the requirements for school licensure bonds. The board is removing confusing and incorrect language regarding license approval prior to school inspection. The board is striking (2) as it is not necessary to restate the types of school licenses which are clearly stated in the applications. It is reasonable to strike (8) as it is not necessary to state what types of information may be requested or utilized in an audit or disciplinary proceeding. Provisions on school policies and procedures are adequately addressed in ARM 24.121.805. The board is striking (9) to align with the repeal of ARM 24.121.806 in this notice. See REASON for the ARM 24.121.806 repeal. The board is striking (5), (10), and (11) to no longer require financial reports or detailed floor plans and instead allow the provisions of 37-31-311, MCA, to guide school license requirements. The board does not analyze or monitor a school's fiscal stability and the department's Building Codes Program is responsible for ensuring compliance with Montana's building code requirements.
24.121.606 FOREIGN-EDUCATED APPLICANTS (1) remains the same. (2) All documents submitted by a foreign-educated applicant in support of applying for licensure must be certified by a (3) Foreign document evaluations must be delivered directly from the credential-evaluating service to the (4) Applicants
AUTH: IMP:
REASON: It is reasonably necessary to amend (1) to allow the department to determine qualifications of foreign-educated applicants. The board does not have expertise in "approving" credential-evaluating entities. The board is amending (3) as it is department staff that receive and process application materials.
24.121.607
AUTH: IMP:
REASON: The board is striking (2) as nonsensical and unnecessary since education from out-of-state schools has always been accepted toward Montana licensure.
24.121.610
AUTH: IMP:
REASON: The board is amending this rule to simply state the process for requesting an exception to the diploma requirement of 37-31-304, MCA. Requests for this exception are very rare and staff will gather the applicant's relevant information for the board's consideration. It is not necessary to provide a "laundry list" of potentially relevant documentation.
24.121.611 EXAMINATION REQUIREMENTS AND PROCESS (1)
AUTH: IMP: 37-31-303, 37-31-304, 37-31-305,
REASON: The department is simplifying and streamlining this rule to set forth the required licensure examination per 37-31-304 and 37-31-305, MCA. Since the board contracts with the examination administrator, all processes are the contractor's, and all examination fees are set and collected by the contractor. The required examinations and processes are not changed.
24.121.805 SCHOOL OPERATING STANDARDS (4) Schools must provide all exiting students current and accurate transcripts. (b) remains the same but is renumbered (6). (a) through (f) remain the same.
AUTH: IMP: 37-31-311, MCA
REASON: It is reasonably necessary to strike all provisions that unnecessarily duplicate statute, including 37-1-316, 37-31-301, and 37-31-311, MCA. Written records and requests are no longer required due to the industry's use of electronic storage and transfer. The board is amending new (2) to more generally require schools adopt and maintain school policies and procedures. The board is eliminating the specific items required in school policies and will rely on schools to create and maintain policies that are consistent with industry standards and within generally accepted practices. It is reasonable to amend (3) to clarify that schools must maintain student records for even those students who may not have graduated from that school. The requirement to provide exiting students with their transcripts is being moved from ARM 24.121.809. The board is amending (6) and (7) regarding student hours and attendance records to remove duplication with 37-31-311, MCA, which requires schools keep accurate attendance records. The board is eliminating the specific items required in student files and will rely on schools to maintain records that are consistent with industry standards and within generally accepted practices. All parties to a contract are legally entitled to a copy of the contract and it is unnecessary to restate that in board rule. The board is deleting (9) as inactive status does not permit practice of any kind and the board is eliminating inactive status by repealing ARM 24.121.608. It is reasonable to strike (13) as unnecessary since schools direct students' courses and schedules and the board does not regulate this. It is reasonable to delete (16) as unnecessary since exam registration provisions are adequately described in (11) and ARM 24.121.611.
24.121.807 SCHOOL CURRICULA (i) through (iv) remain the same but are renumbered (a) through (d). (i) through (iii) remain the same but are renumbered (a) through (c). (C) remains the same but is renumbered (iii). (C) remains the same but is renumbered (iii). (iv) remains the same but is renumbered (d). (i) through (iii) remain the same but are renumbered (a) through (c). (ii) remains the same but is renumbered (b). (iii) remains the same but is renumbered (c). (7) The minimum required curriculum for a 650-hour teacher-training course is: (a) teaching methods - 245 hours including: (i) task analysis; (ii) developing instructional objectives; (iii) visual aids and their construction; (iv) motivational tools; (v) preparation of instructive materials; (vi) lesson planning (including practical theory and practical demonstration classes); (vii) fundamentals of speech and public speaking; (viii) methods of test construction; (ix) methods of evaluation or grading; and (x) curriculum planning and development; (b) general psychology - 75 hours including: (i) general teaching and counseling principles; (ii) conflict resolution; (iii) student counseling; (iv) student and teacher relationships; and (v) public relations; (c) business methods - 115 hours including: (i) recruitment; (ii) job analysis; (iii) student registration, withdrawal, and hours (tracking, completing, calculating, and verifying); (iv) ethical employee and employer relationships; (v) salon/booth rental relationship; (vi) professional ethics; and (vii) current board laws and rules; (d) advanced theory of cosmetology, esthetics, manicuring, barbering, or electrology, and the chemistry, safety, sanitation, bacteriology, physiology, anatomy, and diseases and disorders that apply to each course - 75 hours; and (e) 140 hours of teacher-training instruction at the school's discretion. (8) "Supplemental barbering course" is a course of study in a licensed school offering a barbering or barbering nonchemical course, consisting of at least 125 hours in clipper cuts and 25 hours in facial, neck, and outline shaving, taken by someone licensed in Montana or another jurisdiction to meet the educational requirements for a barber or barber nonchemical license prior to taking the board-approved exam.
AUTH: IMP:
REASON: It is reasonably necessary to strike (1) and (8) because as long as the curriculum is within board standards of this rule, the specifics of completing or extending a school's curriculum is set by the school and outside the board's authority. The board is moving the teacher-training course curriculum from ARM 24.121.1105 to (7) as a better location. The definition of "supplemental barbering course" is being moved to (8) from the definitions rule ARM 24.121.301 as a better location. It is reasonably necessary to correct "blood spill" to "blood exposure" and align with terminology changes throughout the rules. The board is adding "blood exposure procedure" to the manicuring course requirements as it is a current requirement but was inadvertently omitted from the rule. All licensee curricula must contain this training.
24.121.808 CREDITED HOURS FOR MONTANA (a) through (e) remain the same.
AUTH: IMP:
REASON: It is reasonable to strike (2) as the provisions for cosmetologists to become licensed barbers are addressed in ARM 24.121.604 and 24.121.807.
24.121.1103 (2) (3) Student (4)
AUTH: IMP:
REASON: The board is changing "instructors" to "teachers" to align with appropriate statutory terminology. It is reasonable to amend (3) to eliminate duplicating language in 37-31-301, MCA. The board is eliminating confusing language and rewriting the provisions for transferring teaching credits from other accredited colleges and universities at (4). As long as a curriculum is within board standards of this rule, the timing and acceptance of completed hours is set by the school and outside the board's authority. Provisions of (5) and (6) are relocated to ARM 24.121.805 and 24.121.611 respectively.
24.121.1105 (a) through (a)(ix) remain the same. (x) curriculum planning and development (b) educational psychology three credits or 45 hours (i) remains the same but is renumbered (a). (3) remains the same but is renumbered (4).
AUTH: IMP:
REASON: For clarity the board is moving the provisions of (1) to ARM 24.121.807. The board is rewording (2)(c) to clarify this applies to instructor courses licensed by this board. The board and department do not pre-approve any curriculum outside of its licensed courses. A teacher submitting proof of 135 qualifying hours of courses from a school with a licensed instructor course will have met the requirement without further review by staff or the board.
24.121.1501 GENERAL PREMISES (1) (2) remains the same. (a) (b) Upon alteration or remodeling of the (3) All premises must have: (a) at least one restroom (with a sink): (i) on or near the salon or shop premises; or (ii) within the confines of the mobile salon or shop; and containing: (A) a posted hand washing sign; (B) a liquid soap dispenser; (C) single service towels or an air dryer; (D) a covered garbage container; and (E) a locked closet or cabinet if storing chemicals in the restroom; (b) one sink convenient to the work areas, but not within a restroom, with hot and cold running water and: (i) connected to a sewer or septic system; or (ii) connected to a wastewater holding tank and meeting applicable wastewater laws; and (iii) a liquid soap dispenser and single service towels or an air dryer; (c) one covered soiled linen container; (d) one covered garbage container; and (e) one enclosed cabinet for storing clean towels and linens. (4) Licensees must: (a) place garbage in easily cleanable, leak proof, plastic lined, nonabsorbent covered containers and dump frequently to prevent overflow; (b) sweep hair clippings after each client; and (c) dispose of chemicals, liquids, implements, aluminum oxide crystals, or approved corundum in accordance with federal, state, and local regulations.
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: Provisions regarding restrooms, sinks, cabinets, and containers, and garbage are relocated to this rule from ARM 24.121.1505, 24.121.1507, and 24.121.1519 respectively. These rules are being repealed. The board is amending the requirements for the non-bathroom sinks at (3)(b) to allow for modern portable sinks to be used without relying on a board variance. Because such sinks now can have hot water for washing, it is not necessary to require a traditional city water and sewer connection for these non-bathroom sinks. This aligns with the repeal of the variance rule, ARM 24.121.405, in this notice.
24.121.1509 IMPLEMENTS, INSTRUMENTS, SUPPLIES, AND EQUIPMENT (a) and (b) remain the same. (a) Only microdermabrasion machines specifically manufactured for use in esthetics services are permitted. (i) through (d) remain the same. (4) For electrology: (a) A high frequency generator, galvanic generator, or electrolysis machine is required (dispersive or inactive electrode with connections to the machine, such as wet pad, metal rod, or water jar, necessary for electrology treatments). (b) Only presterilized, disposable needles may be used for electrolysis services in a licensed premises unless a properly installed, serviced, and operated autoclave is utilized for sterilization of reusable needles. (i) Needles may not be recapped, bent, or otherwise manipulated by hand prior to disposal, to avoid accidental puncture injury. (ii) Needles must be placed in a puncture-resistant sharps container immediately after use, when damaged, when contaminated before use, or when not used before the preprinted expiration date. (c) Fine-pointed epilation forceps, draping sheets or towels. and covered containers for lotions, soaps, and cotton are required.
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is striking (1) as practicing within one's scope is addressed in unprofessional conduct statute and rule. The board is deleting (2) as sanitary rules are addressed elsewhere and it is impractical to require licensees to control how their furniture and machines are made. The board is eliminating redundant language from (2) and (3) that prohibits hobby tools and certain machines. The clear language provides the only equipment that is allowed in manicuring and esthetics. There is no need to add to that. Electrology provisions are relocated to (4) from ARM 24.121.301 and 24.121.1302. Language throughout is simplified and streamlined and redundancies removed.
24.121.1511 SANITIZING AND DISINFECTING (1) All implements, equipment, and electrical instruments must be thoroughly cleaned and subjected to approved sanitizing and disinfecting processes (2) (a) detergent solutions; (b) alcohol used at 70 percent or higher strength may be used as a sanitizer with a minimum of 20 minutes contact time; (c) standard industry disinfectant; or (d) chlorine compounds, hypochlorited in liquid or powder form (household bleach), may be used as a sanitizing agent at one part per 100 concentration with a five-minute contact time. (a) remains the same. (b) flushed, cleaned, and disinfected on a regular basis. The licensee must maintain detailed cleaning (a) remains the same. (b) before each use, electrolysis tweezers and other nondisposable implements must (i) and (ii) remain the same. (c) equipment for steam or dry heat methods must be checked weekly (d) remains the same. (e) licensees must utilize outside biological monitors (8) remains the same but is renumbered (10). (11) remains the same but is renumbered (13).
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing ARM 24.121.1513 and 24.121.1514 and incorporating their provisions on sanitizing and disinfecting agents into this rule. It is reasonable to generalize the requirements for documentation of electrical equipment cleaning as the board trusts licensees to keep adequate records. Additional language changes and reorganization are for clarity and ease of use. It is reasonably necessary to amend (3) to require cleaning of all debris from implements prior to sanitizing or disinfection and not solely hair. The board is removing the requirement for a disinfectant to be "formulated for hospitals" as the board has no way to know of or check this. Additionally, the board believes the rest of the requirements in (4) ensure adequate protection of the public.
24.121.1517 IMPLEMENTS, EQUIPMENT, AND PREPARATIONS (1) Licensees must: (a) store soiled implements and equipment separately from those that have been sanitized and disinfected; (b) use clean towels for each client. Soiled towels must be kept in an appropriate container and laundered regularly; (c) use sanitary neck strips, towels, or a freshly laundered cape to keep hair clippings from contacting the client's neck; (d) not place implements, instruments, or other equipment onto garments or in garment pockets; (e) sanitize and disinfect implements, instruments, and other equipment dropped on the floor before reusing; (f) maintain and make available to the public all Safety Data Sheets (SDS) for products used on the premises; (g) store, handle, and apply all preparations to protect against contamination and dispense preparations from containers by pump, spray, or single-service spatulas; (h) when using bulk products in secondary storage containers, label the new storage container with product name, ingredients, and warnings; (i) store and apply liquid or powder astringent with a clean sterilized gauze or cotton pad; (j) use acids for chemical exfoliation only in concentrations of 30 percent or less, with a pH level of not less than 3.0; and (k) use only commercially available products for chemical exfoliation and not mix or combine any skin exfoliation products. (a) through (d) remain the same. (e) phenol, resorcinol, trichloroacetic acid (TCA), or Jessner's solution for chemical exfoliation (f) cosmetic products containing hazardous substances (3) Fish may not be utilized in the provision of any licensed service.
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: It is reasonably necessary to simplify and reorganize the provisions formerly in (1) through (6) into (1). General implements language is being moved from ARM 24.121.1515 (to be repealed) to (1) as well. The prohibition on use of fish in practice is clarified and relocated from ARM 24.121.407. The board is relocating (8) to the inspection rule, ARM 24.121.410, as a more logical location.
24.121.1522 BLOOD (1) If there is exposure to blood or other body fluids during a service, licensees and students must stop the service and before returning to service, clean the wound with an antiseptic solution and cover the wound with a sterile bandage. (2) If the hand wound is in an area that can be covered, the licensee or student shall wear a clean, fluid-proof protective glove or finger cover. If the wound is on the client, the licensee or student must wear gloves on both hands. (3) Blood-contaminated material must be disposed of in the garbage and blood-contaminated implements, instruments, supplies, equipment, and electrical equipment must be disinfected per ARM 24.121.1511. (4) Licensees must post the blood exposure procedure of this rule in all licensed premises.
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is streamlining and reorganizing this rule for clarity and ease of use. Blood spill is being changed to exposure as exposure includes spills and other potential blood contact and is the standard industry terminology. The procedures and requirements are not changing.
24.121.1523 DISEASE CONTROL (1) A licensee or student (2) A licensee or student having an infectious, contagious, or communicable disease or condition (3) A licensee or student with a discharging or infected sore on any exposed portion of the body (4) If a licensee or student detects that a client has pediculosis capitis (head lice), the licensee or student
AUTH: IMP: 37-31-204, MCA
REASON: The board is removing the unnecessarily specific standard for a disease's transmission through casual contact. If such a question resulted from an inspection or a complaint, proper investigation would be utilized to determine a disease's transmission.
6. The proposed new rules are as follows:
NEW RULE I LICENSE ENDORSEMENT (1) Licensees seeking to offer mechanical exfoliation or microdermabrasion services shall obtain an endorsement by the board prior to practicing. (a) To obtain an endorsement, licensees shall complete an additional 50 hours of continuing education in the field of microdermabrasion as follows: (i) histology of the skin; (ii) bacteriology; (iii) client consultation and protection; (iv) client pre-care and post-care; (v) product knowledge; (vi) theory of technical application of microdermabrasion; (vii) sanitation and safety; (viii) disposal of waste products; and (ix) practical application and observation. (b) A minimum of 50 percent of the required hours must be taught in theory.
AUTH: 37-31-203, MCA IMP: 37-31-203, MCA
REASON: The board is relocating language from ARM 24.121.403(4) as it is better suited to a stand-alone rule.
NEW RULE II SCHOOL EQUIPMENT (1) All schools must provide: (a) a separate classroom, other than the clinic floor, for theory or basic classes; (b) adequate restroom facilities for students and faculty; (c) one sink for hand washing, not in a restroom; (d) one serviceable school first aid kit; (e) a fire extinguisher; (f) one locker per two students; (g) one protective covering per student; and (h) for the first 15 enrolled students: (i) two covered wet sanitizers; (ii) one closed cabinet for clean linens; (iii) one covered soiled linen container; and (iv) two covered garbage containers. (i) The required equipment in (h) must be doubled for 16 to 30 students and tripled for 31 to 45 students. (2) All barbering, barbering nonchemical, or cosmetology schools offering separate barbering, barbering nonchemical, or supplemental barbering courses must provide: (a) one barber style chair and workstation with mirror per student on the clinic floor; and (b) for the first 15 enrolled students: (i) two shampoo bowls; (ii) one hair dryer (stationary or portable "roll-about"); and (iii) one hot lather machine. (c) The required equipment in (b) must be doubled for 16 to 30 students and tripled for 31 to 45 students. (3) Cosmetology schools must provide: (a) one styling chair and workstation with mirror per student on the clinic floor; and (b) for the first 15 enrolled students: (i) two shampoo bowls; (ii) one hair dryer (stationary or portable "roll-about"); (iii) two manicure tables; and (iv) one facial chair. (c) The required equipment in (b) must be doubled for 16 to 30 students and tripled for 31 to 45 students. (4) Electrology schools must provide: (a) an autoclave or dry heat sterilizer; (b) stainless steel and gold needles of various sizes per student; and (c) a clinical area divided into a minimum of two workstations for the first three enrolled students (one additional station for each additional two students) enclosed by partitions or curtains, and at least ten feet by eight feet in area. Each workstation must include: (i) one treatment table or chair; (ii) one magnifying lamp; (iii) one or more epilators offering either thermolysis, electrolysis, or the blend; and (iv) one puncture-resistant sharps container. (d) Only presterilized, disposable needles may be used for electrolysis services in a school, unless reusable needles are sterilized using an autoclave. (5) Esthetics schools or cosmetology schools offering a separate esthetics course must provide for the first five students: (a) one facial bed or chair; (b) one magnifying lamp; and (c) one facial unit consisting of a vaporizer, high frequency unit, massage brush, vacuum spray, galvanic unit, magnifying lamp, and woods lamp. (d) Beds or chairs, and lamps must be increased by one for each additional five students. (6) Manicuring schools or cosmetology schools offering a separate manicure course must provide: (a) one manicure table with chairs per student; and (b) electric nail file and appropriate bits.
AUTH: 37-31-203, 37-31-311, MCA IMP: 37-31-311, MCA
REASON: The board is repealing ARM 24.121.803 and replacing it with a more streamlined, simplified, and reorganized new rule. The board is adding the requirements for a clean linen cabinet and two covered garbage containers for all students for consistency and sanitation. The board is no longer requiring a separate lunch or break room because in today's industry, many schools are housed in shopping centers or malls with immediate access to restaurants and other areas used for breaks and resting. The board is removing the requirement for separate bathrooms based on sex since unisex bathrooms are allowed in Montana. The board is removing the excessive signage requirements as overly restrictive and unnecessary. All licensees are required by 37-1-316, MCA, to ensure their advertising and signage is accurate and not misleading. The board believes schools will provide adequate signage without specifying each required sign. It is reasonably necessary to strike the provision requiring schools to provide students with sufficient equipment and supplies since 37-31-311, MCA, already requires schools to provide adequate equipment and qualifying courses. The board is striking the requirement to provide a "current board law and rule book" for each student. The board no longer creates these books and instead provides all relevant laws and rules on the board website.
NEW RULE III CONTINUING EDUCATION – TEACHERS (1) Teachers must: (a) complete 30 hours of continuing education (CE) per renewal period with a minimum of eight hours in teaching methodology per ARM 24.121.1105; (b) affirm an understanding of the duty to comply with CE requirements at renewal; (c) select quality programs that focus on protecting the health, safety, and welfare of the public and contribute to professional knowledge and competence. Acceptable CE activities: (i) directly relate to the teacher's scope of practice; (ii) review current concepts and techniques; (iii) convey information beyond basic professional education; (iv) update knowledge on practice and advances in the profession; or (v) reinforce professional conduct or ethical obligations of the teacher; and (d) maintain CE documentation that includes the following for three years and provide documentation to the board upon request: (i) licensee name; (ii) course title and description of content; (iii) presenter or sponsor; (iv) course completion date(s); and (v) CE hours earned. (2) CE requirements do not apply until after the first renewal. (3) CE hours will not be granted for teaching a course. (4) The department may randomly audit up to 50 percent of renewed teachers. (5) Noncompliance with CE requirements may result in administrative suspension. (6) CE hours used to complete delinquent CE requirements cannot be applied toward the next reporting period. (7) CE hours required by disciplinary order cannot be applied toward the biennial 30 hours required in this rule.
IMP: 37-1-141, 37-1-306, 37-1-319, 37-1-321, MCA
REASON: The board is repealing ARM 24.121.2101 and replacing it with this new more streamlined and simplified continuing education (CE) rule. The CE requirements, timelines, and audit processes are not changing. The board will no longer grant CE credit for attendance at full board meetings to standardize with most DLI licensing boards. There is no assurance that every board meeting will contain educational material that would qualify under this rule. It is reasonably necessary to amend the requirement in (1)(c)(i) for acceptable CE to relate to a teacher's scope of practice. The current rule specifies that the scope is "defined" in statute and rule, which is not accurate.
NEW RULE IV UNPROFESSIONAL CONDUCT (1) In addition to the provisions of 37-1-316, MCA, it is unprofessional conduct for board licensees to: (a) violate a federal, state, or local law or rule relating to the conduct of the profession; (b) fail to cooperate with or respond to a department request or investigation; (c) fail to report an incident of unsafe practice or unethical conduct of another licensee to the licensing authority; (d) perform services or use machines or devices that are outside of the licensee's scope of practice; (e) practice under unsanitary or unsafe conditions; (f) commit any act of sexual abuse, misconduct, or exploitation whether or not it is related to the licensee's practice; and (g) use the traditional symbol known as the "barber pole," or any likeness thereof, in any manner that may lead the public to believe either that barbering was being practiced in, or that a licensed barber was employed by, a salon or shop that does not employ barbers.
AUTH: 37-1-319, MCA
REASON: The department is repealing ARM 24.121.2301 and replacing it with this rule to replace overly specific language with more broadly applicable statements to facilitate use and eliminate more detailed "laundry lists." These amendments will facilitate the board's disciplinary processes by utilizing standard language among the licensing boards and programs. This new rule further eliminates unnecessary duplication with the unprofessional conduct statute, 37-1-316, MCA. Instead of stating specific state or federal regulations to follow, the department is including (1)(a) to require licensees comply with all applicable laws and regulations. The board is eliminating failure to comply with continuing education requirements as this is addressed under administrative suspension law, procedure, and NEW RULE V.
NEW RULE V ADMINISTRATIVE SUSPENSION (1) The board authorizes the department to: (a) administratively suspend licenses for deficiencies set forth in 37-1-321(1)(a) though (e), MCA; or (b) file a complaint pertaining to the deficiencies in (1) that are based on repeated or egregious conduct, or that have co-occurring misconduct allegations that directly implicate public safety and may warrant formal disciplinary action. (2) An administrative suspension is not a negative, adverse, or disciplinary action under Title 37, MCA, and is not reportable under federal law and regulations implementing the Healthcare Practitioner Databank or the department's licensee lookup and license verification databank.
AUTH: 37-1-131, MCA IMP: 37-1-321, MCA
REASON: Section 37-1-321, MCA, permits the board to authorize the department to take certain non-disciplinary actions regarding licensees who are out of compliance with administrative licensure requirements such as not meeting continuing education requirements, failing to respond to continuing education audits, not paying required fees, not meeting initial licensing requirements, and noncompliance with board final orders. The board authorized the department to take these actions previously by motion. It is reasonably necessary to adopt this rule to reiterate that authorization formally, publicly, and accessibly, so the public and licensees are aware of the authorization.
7. The rules proposed to be repealed are as follows:
24.121.405 VARIANCE REQUESTS – SALONS, SHOPS, MOBILE SALONS OR SHOPS, AND SCHOOLS
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA
REASON: The board determined it is reasonably necessary to repeal this rule as it is no longer necessary to provide for a variance process. The majority of requests are about use of portable sinks in salons and shops and outside entrances to residential salons. Due to modern technology, hot water is available in these sinks without specifically requiring a hook-up to a city sewer system. See the REASONS for repealing ARM 24.121.1302 and 24.121.1505.
24.121.601 LICENSURE BY EXAMINATION
AUTH: 37-1-131, 37-31-203, MCA IMP: 37-1-131, 37-31-303, 37-31-304, 37-31-308, MCA
REASON: The board is repealing this rule and relocating all relevant provisions to ARM 24.121.604 for simplicity and ease of use. It is reasonably necessary to remove language that unnecessarily duplicates statutory provisions as well as processes that are addressed in standardized department application procedures for all boards. Licensure qualifications and application procedures remain unchanged.
24.121.602 MILITARY TRAINING OR EXPERIENCE
AUTH: 37-1-145, MCA IMP: 37-1-145, MCA
REASON: The 2023 Montana Legislature enacted Chapter 390, Laws of 2023 (House Bill 583), an act generally revising licensing and certification laws for military members, military spouses, and veterans. The bill was signed by the Governor on May 3, 2023, and will be effective July 1, 2024. It is reasonably necessary to repeal this rule to align with the bill's amendments to 37-1-145, MCA. The amended statute provides for all boards and programs to accept relevant military education, training, or service toward license qualifications. Specific board or program rules are no longer needed.
24.121.603 LICENSURE BY CREDENTIALING WITH AN OUT-OF-STATE LICENSE
AUTH: 37-1-131, 37-31-203, MCA IMP: 37-1-304, 37-31-303, 37-31-304, 37-31-305, 37-31-308, MCA
REASON: The board is repealing this rule and relocating all relevant provisions to ARM 24.121.604 for simplicity and ease of use. It is reasonably necessary to remove language that unnecessarily duplicates statutory provisions as well as processes that are addressed in standardized application procedures for all boards. Following repeal and amendments, applicants will no longer be able to submit practice experience in lieu of an approved course of training per 37-31-304, MCA, and ARM 24.121.604. Statutory language only allows applicants for teacher licensure to utilize prior practice experience per 37-31-305, MCA.
24.121.608 INACTIVE INSTRUCTOR LICENSE
AUTH: 37-1-131, 37-1-319, 37-31-203, MCA IMP: 37-1-131, 37-1-319, 37-31-203, 37-31-305, MCA
REASON: It is reasonably necessary to repeal this rule and eliminate inactive status for instructors. The historically consistent small number of inactive instructor licensees does not justify the staffing and costs associated with monitoring and renewing them. There is no inactive status for any other board licensees.
24.121.612 LICENSEE AND APPLICANT CONTACT INFORMATION
AUTH: 37-1-131, 37-31-203, MCA IMP: 37-1-131, 37-1-309, 37-31-203, MCA
REASON: It is reasonably necessary to repeal this rule as it unnecessarily repeats the statutory provisions of 37-1-309, MCA, which apply to all licensing boards.
24.121.801 INSPECTION - SCHOOL LAYOUT
AUTH: 37-1-131, 37-31-203, 37-31-311, MCA IMP: 37-1-131, 37-31-311, 37-31-312, MCA
REASON: The board is repealing this rule as unnecessary and exceeding the scope of 37-31-311, MCA. Additionally, the board does not analyze floor plans or blueprints and is striking this requirement for all premises applications. The board also has no authority to inspect for building codes compliance as this is done by another department program.
24.121.803 SCHOOL REQUIREMENTS
AUTH: 37-1-131, 37-31-203, 37-31-311, MCA IMP: 37-31-311, MCA
REASON: The board is repealing this rule and replacing it with a streamlined, simplified, and reorganized NEW RULE II. See REASON for NEW RULE II.
24.121.806 POSTSECONDARY EDUCATION STATUS
AUTH: 37-1-131, 37-31-203, MCA IMP: 37-31-101, 37-31-302, 37-31-311, MCA
REASON: The board determined it is reasonably necessary to repeal this unnecessarily restrictive rule and instead allow the governing statute, 37-31-311, MCA, to guide school licensure. The statute contains minimum standards for equipment, student-to-teacher ratio, record-keeping, and hours required for qualifying training courses. Further, schools are required to obtain and maintain a bond or security to reimburse students should a program cease.
24.121.809 STUDENT WITHDRAWAL, TRANSFER, OR GRADUATING
AUTH: 37-1-131, 37-31-203, 37-31-311, MCA IMP: 37-31-311, MCA
REASON: It is reasonably necessary to repeal this rule and relocate relevant provisions to other rules. The requirement to furnish transcripts, which include a student's standing, is moved to ARM 24.121.805. The board is simplifying this rule because as long as a curriculum is within board standards of this rule, the timing for accepting completed hours is set by the school and outside the board's authority. Because a transferred student's timing to practice on the public is addressed in contract terms between schools and transferred students, it is unnecessary to address this in the rule. Also, the board does not monitor or regulate this.
24.121.1101 APPLICATIONS TO OFFER TEACHER-TRAINING COURSES
AUTH: 37-1-131, 37-31-203, 37-31-311, MCA IMP: 37-31-305, 37-31-311, MCA
REASON: The board is repealing this rule since relevant teacher-training provisions are addressed in ARM 24.121.807, 24.121.1102, and 24.121.1105.
24.121.1301 SALON, SHOP, MOBILE SALON OR SHOP LICENSES – GENERAL INFORMATION
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, 37-31-302, 37-31-312, MCA
REASON: The board determined it is reasonably necessary to repeal this rule to avoid duplication with 37-31-312, MCA, regarding temporary permits. Additionally, the board does not analyze floor plans or blueprints and has no authority to enforce building codes compliance. Change of ownership is addressed in ARM 24.121.412.
24.121.1302 SALON, SHOP, BOOTH RENTAL, AND MOBILE SALON OR SHOP OPERATION STANDARDS
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, 37-31-302, 37-31-309, 37-31-312, MCA
REASON: The board is repealing this rule as relevant provisions have been moved to better locations. Additionally, it is reasonably necessary to delete provisions that unnecessarily duplicate statute, including 37-31-101, 37-31-204, and 37-31-309, MCA. It is unnecessary to require licensees abide by specific mobile business and building codes laws since all licensees must abide by all relevant laws and regulations per the unprofessional conduct rule, NEW RULE IV. The board is relocating provisions on electrology to ARM 24.121.1509. Restroom requirements are relocated to ARM 24.121.1501. The board is changing the time for mobile shops to report address changes to 30 days to align with requirements for other licensed premises. The board is eliminating the overly restrictive requirements for outside entrances to residential salons and shops. It is not a public safety issue for customers to briefly cross a living space to enter a residential salon. Costs to create another separate exterior entrance to a residential salon would be an unnecessary constraint on a residential shop's owner and not balanced with any public safety concerns. This aligns with the repeal of the variance rule, ARM 24.121.405, in this notice.
24.121.1505 RESTROOMS
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing this rule and combining relevant restroom provisions into ARM 24.121.1501, the general premises and sanitation rule. It is reasonable to eliminate the overly restrictive requirements for bathroom access in residential salons and shops. Current sanitation rules adequately address normal safety issues for residential salon bathrooms. It is not a public safety issue for customers to briefly cross a living space to access a residential salon's bathroom. This aligns with the repeal of the variance rule, ARM 24.121.405, in this notice.
24.121.1507 SINKS, SANITIZERS, CONTAINERS, AND CABINETS – SALONS, SHOPS, MOBILE SALONS OR SHOPS, AND SCHOOLS
AUTH: 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing this rule and relocating relevant provisions to ARM 24.121.1501. Sanitizer requirements are adequately set forth in ARM 24.121.1511.
24.121.1513 SANITIZING AGENTS
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: Relevant provisions are relocated to ARM 24.121.1511 as a more logical placement.
24.121.1514 DISINFECTING AGENTS
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: Provisions are relocated to ARM 24.121.1511.
24.121.1515 IMPLEMENTS AND EQUIPMENT STORAGE AND HANDLING
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing this rule and incorporating its provisions into ARM 24.121.1517 so all storage and handling provisions will be in a single location.
24.121.1519 WASTE DISPOSAL
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing this rule and moving its provisions to ARM 24.121.1501.
24.121.1521 PERSONAL HYGIENE
AUTH: 37-1-131, 37-31-203, 37-31-204, MCA IMP: 37-31-204, MCA
REASON: The board is repealing this rule as unnecessarily overbroad and difficult to enforce. The board has sanitation and safety rules for blood exposure and requires handwashing signs posted in restrooms. Maintaining clean hands is common sense for sanitation, and the board is not able to monitor or regulate consistent hand washing. The language regarding hand sanitizer use is unnecessary as it is not a requirement, but merely an unenforceable advisement. Dress codes are not the board's jurisdiction.
24.121.2101 CONTINUING EDUCATION – INSTRUCTORS
IMP: 37-1-141, 37-1-306, 37-1-319, 37-1-321, MCA
REASON: The board is repealing this rule and replacing it with NEW RULE III. See REASON for NEW RULE III.
24.121.2301 UNPROFESSIONAL CONDUCT
AUTH: 37-1-131, 37-1-136, 37-1-319, 37-31-203, MCA IMP: 37-1-136, 37-1-137, 37-1-316, 37-1-319, 37-31-301, 37-31-331, MCA
REASON: The board is repealing this rule and replacing it with NEW RULE IV. See REASON for NEW RULE IV.
8. Concerned persons may present their data, views, or arguments at the hearing. Written data, views, or arguments may also be submitted at dli.mt.gov/rules or P.O. Box 1728, Helena, Montana 59624. Comments must be received no later than 5:00 p.m., July 5, 2024.
9. An electronic copy of this notice of public hearing is available at dli.mt.gov/rules and sosmt.gov/ARM/register.
10. The agency maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the agency. Persons wishing to have their name added to the list may sign up at dli.mt.gov/rules or by sending a letter to P.O. Box 1728, Helena, Montana 59624 and indicating the program or programs about which they wish to receive notices.
11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
12. Pursuant to 2-4-111, MCA, the agency has determined that the rule changes proposed in this notice will not have a significant and direct impact upon small businesses.
13. Department staff has been designated to preside over and conduct this hearing.
Certified to the Secretary of State May 28, 2024.
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