An Open Apology to the Taxpayers of Delaware

from Julie Register

Dear Taxpayers of Delaware,

I feel I owe you an apology. Two years ago, I sent a letter to the Delaware Division of Professional Regulation. My intention was to help them make spas, salons and nail shops safer places for their manicure and pedicure clients. The letter inadvertently set into motion events that, in my opinion, were a waste of our tax dollars. But more importantly, it completely failed to make these places any safer. For these shortcomings, I sincerely apologize.

The Pedicure that Started it All

April 22, 2009: I went to a local, high-end salon and spa for a pedicure and manicure. The nail technician had me soak my feet in a whirlpool bath while she got her tools together for my pedicure. She pulled out an orange stick with a bright red tip (nail polish from a previous customer) and started filing it with an emery board. I asked her if she was going to use that orange stick and emery board on me. She said yes and that she always (for over 20 years) just files off the surface of orange sticks and sprays them with a blue liquid in a small unlabeled spray bottle, supposedly disinfectant. I told her that was unsanitary since that wood can’t be sterilized after being used - neither can a paper emery board. Whatever she filed off from the orange stick would be embedded in the emery board. I requested a new orange stick. She appeared to be very insulted by my request and asked me if I expected all new tools. I said yes unless they were metal and had been sterilized. She was clearly annoyed and told me it was too expensive to do that for every customer. These items can be purchased for pennies each. I was charged $60 for the pedicure and manicure. Surely a dollar of that could be used for new, clean, sanitary disposable implements. She left the room and came back with new implements. However, she still filed the “new” orange stick with the “new” emery board, so who knows if it was really new. I have had nail services at this salon on a number of other occasions by other nail technicians and never noticed disposable implements being reused. However, it did make me question if the spa's staff understood the risk of infection and fungus that nail services pose and if the spa's other cleaning practices, such as cleaning the foot baths, were adequate.

The Letter

I was troubled by that experience. I've read countless reports of serious health problems caused by unsanitary nail services with headlines such as:

• $2.919 million recovery for 74 pedicure patrons who got skin infections from improper disinfection of a salon's spa chairs
• Woman dies after contracting pedicure-related infection
• Dirty Foot Spas a Danger in Pedicures - California and Federal Health Officials Move to Protect Consumers From Aggressive Bacterial Infections at Nail Salons

I knew that all of these issues could have been prevented with safe and sanitary practices. I decided to see what Delaware's standards were for using disposables for nail services. There were none. I felt I had the responsibility to share what I knew with the state in order to make nail services safer for its citizens.

May 1, 2009: I sent a letter to Delaware's Division of Professional Regulation. In it, I related the experience above and said, "I recently had an experience at a local salon that may have exposed a problem with Delaware’s STANDARDS FOR PUBLIC HEALTH ASSURANCES IN THE PRACTICE OF COSMETOLOGY AND BARBERING (http://www.dhss.delaware.gov/dph/hsp/files/cosmoregs02.txt). I was not able to find any definitions or lists of disposable implements in the standards nor could I find any requirement that disposable implements must be discarded after being used on a client (i.e. should not be used again on other clients). Because these are not in the standards, I believe salons may be using disposable implements on multiple clients and exposing them to unnecessary risk. While reusing disposables does not seem to be specifically addressed in Delaware’s Standards, it is a risky and unsanitary practice. I recommend that it be addressed in the next revision of the standards. In the mean time, I believe the nail tech at this salon needs to be retrained in what can and cannot be sterilized and what can and cannot re-used for nail services."

The Response

June 30, 2009: I received a letter from the Investigative Supervisor of the Division of Professional Regulation. In it, he acknowledged the letter I sent (the "complaint") and explained that the "Division's investigation unit is responsible for the conduct of investigations related to complaints against professional licensees...At the conclusion of the investigation, the Division...will determine whether to close the case or forward the case to the Attorney General for prosecution."

I also received a phone call. Unfortunately, I did not record the date or the name of the person with whom I spoke. I believe it was the investigative supervisor, but it could have been a contact person from the Board of Cosmetology and Barbering. We chatted for about an hour. I explained that the purpose of my letter was not to register a complaint against this salon but to improve the standards the spas, salons and nail shops must follow. He said that he had no power to change the standards and that I would have to contact my state representative to pursue this. However, it was his responsibility to investigate this incident from a licensing viewpoint.

September 28, 2009: I received a letter from a License Investigator at the Division of Professional Regulation. In it, he said that the Division had completed an investigation of my complaint. "...The determination has been made that your complaint should be sent to the Office of the Attorney General for review and possible formal action...Law does not allow our Division to provide copies of the investigative materials or to discuss specific information obtained during the course of our investigation into your complaint. We have weighed all concerns involved in this matter and feel that the case warranted further review from the Office of the Attorney General to determine if there has been a violation of the laws, rules and reguations that govern the activities of our licensed professionals..."

I also received a phone call. Again I did not record the date or the name of the person with whom I spoke. The person explained that a violation was found when they investigated the complaint and they would pursue the matter. I thanked him for their efforts. I mentioned that purpose of the initial letter was to tighten up the standards - that prevention was more important than punishment after the fact. Again I was told that was outside their responsibilities.

April 13, 2011: I received a letter from the Investigative Supervisor of the Division of Professional Regulation with a three-page attachment. In the letter, he said, "The Division of Professional Regulation has completed the investigation of your complaint. As a final disposition to the case, the Respondent was offered and accepted the provisions of the enclosed consent agreement. A Consent Agreement contains a predetermined and acceptable level of discipline for the infraction. The consent agreement is a legal and binding disciplinary action." The consent agreement noted:

• ...On or about May 7, 2009, the Division of Public Health performed a Beauty Salon Inspection and found violations of the "State of Delaware Standards for Public Health Assurances in the Practice of Cosmetology and Barbering."
• One Safety and Sanitation violation was found under Section 81.3 for Respondent's failure to properly use and sanitize instruments.
• Respondent's code violations violated the provisions of 24 Del. C. 5113(a)(8).
• Respondent admits that the allegations in the formal complaint...are true and correct.
• Respondent, the State and the Board agree that an appropriate disciplinary sanction for this conduct shall be a Letter of Reprimand....

Final Thoughts

I truly appreciate the responsiveness of the Division of Professional Regulation. However, I think about how much time, effort and tax dollars were spent leading up to that Letter of Reprimand and am disheartened. It was never my intention to punish this salon. I seriously doubt that any practices have changed there as a result of this investigation. Prevention has not been embraced. I know there are many worse offenders. The precious resources spent on this investigation were not used to pursue them because of my letter. I have not followed up with my state representative about upgrading the state's standards - mostly because I think it is a small matter relative to their other responsibilities. I do find it interesting that they are responsible for the content of the standards for spas and salons. Worrisome, too.

The best thing I think we, as consumers, can do is know what to look for in places that offer nail services.

Here are some useful checklists: