Featured Article:

Things That Get Exercise Professionals into Trouble!

Things That Get Exercise Professionals into Trouble!

             Exercise professionals sometimes find themselves in legal trouble when they attempt to do things they are not qualified or licensed to do. Following the advice of Dr Eickhoff-Shemek can help exercise professionals stay in the gym and out of the courtroom. Take time now to subscribe to her free quarterly newsletter at www.fitnesslawacademy.com.

 

 

 

Exercise Professionals: Distinguishing “Legal” and “Professional” Scope of Practice

By JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP

 To stay within their scope of practice, exercise professionals are often informed to practice within their education, training, and experience. What exactly does this mean and why is it important? This article will answer these questions by describing the differences between the legal scope of practice and professional scope of practice.

Legal scope of practice applies to licensed professionals and can be defined as:

… the activities that an individual…is permitted to perform within a specific profession. Those activities should be based on appropriate education, training, and experience. Scope of practice is established by the practice act of the specific practitioner’s board, and the rules adopted pursuant to that act (1, p. 8).

Many professionals, such as health care providers, lawyers, counselors, dietitians, massage therapists, and barbers, must have a state license to practice. The requirement of licensure is determined by individual states. For example, not all states have a licensure requirement for those who practice dietetics.

The exercise profession is not a licensed profession — it is self-regulated through voluntary accreditation and certification programs. Anyone can practice as an exercise professional. There is only one state (Louisiana) that has licensure for “clinical” exercise physiologists. Legislative bills have been proposed in several states to license exercise professionals such as personal fitness trainers and group exercise leaders. None have become law.

Although the legal scope of practice does not apply to exercise professionals, they do need to adhere to a professional scope of practice. The professional scope of practice is applicable to all professions and vocations that require special knowledge, skills, and training. See the Figure that describes three scenarios in which exercise professionals would be practicing outside their scope. The first two scenarios reflect practicing outside the professional scope of practice and the third scenario reflects crossing over the line into a licensed profession.

Figure:  Scope of Practice Scenarios that Can Lead to Potential Legal Consequences*

 

*Reprinted with permission from: Eickhoff-Shemek J, Zabawa B, Fenaroli P. Law for Fitness Managers and Exercise Professionals. Fitness Law Academy, LLC. In press, 2020.

 Scenario #1: Many negligence lawsuits have involved injuries suffered by apparently healthy individuals due to the negligent conduct of exercise professionals (e.g., prescribing an unsafe exercise or an exercise or routine that was too intense). These professionals are practicing in a profession in which they did not first obtain the necessary knowledge and practical skills to meet the standard of care of a qualified exercise professional that they will likely be held to in a court of law. Without adequate knowledge and skills, they may not even realize what is meant by practicing within a professional scope of practice.

Scenario #2: Negligence lawsuits have also involved injuries suffered by individuals with clinical conditions because the exercise professionals did not appear to have the advanced knowledge and practical skills to work with clinical populations. In other words, they did not take the necessary precautions when designing/delivering an exercise program to help prevent the individual’s injury given his/her medical conditions. Without advanced knowledge and practical skills, they will likely not be able to meet the standard of care of a qualified clinical exercise professional, which is the standard they may be held to in a court of law.

Scenario #3: Although not as prevalent as negligence claims/lawsuits, cases in which the conduct of health/fitness professionals crossed over the line into a licensed profession have occurred. Most often, these cases have involved practicing dietetics without a license. If there is ever a question of certain practices (e.g., advice/recommendations, exercises) that might violate state licensing statutes, fitness managers and exercise professionals can check with their state’s regulatory departments or agencies and their legal counsel.

  1. Federation of State Medical Boards. Assessing Scope of Practice in Health Care Delivery: Critical Questions in Assuring Public Access and Safety, 2005. Available at: http://www.fsmb.org/siteassets/advocacy/policies/assessing-scope-of-practice-in-health-care-delivery.pdf. Accessed April 11, 2019.

******************************

Bio: JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP, Professor Emeritus (Exercise Science, University of South Florida) and President of the Fitness Law Academy, LLC, is an internationally known author and speaker. For more than 35 years, her teaching and research have focused on fitness safety, legal liability, and risk management issues. Dr. Eickhoff-Shemek is the lead author of a new textbook, Law for Fitness Managers and Exercise Professionals, to be released fall, 2020. Interested individuals can subscribe to her “free” quarterly newsletter at: www.fitnesslawacademy.com.

Photo Credit: Thanks to The U S Army via Flickr.

 

 

Read the Article

Recent Articles:

Announcement

For the next few weeks, Sportwaiver.com’s weekly post may not appear each week. My wife, and partner in life, succumbed to lymphoma. She played a major role in the website and all my publications, whether they carried her name or not. Because I know many of you knew Mary, I am posting just a part of her obituary including a photo that I took on a trip to Malaysia about three years ago. I am not sure when the next post will appear,... [read more]

Help in Recognizing Ambiguity in Your Waiver

By Doyice Cotten Ambiguity is one of the most prevalent claims when challenging the enforceability of liability waivers. This post involves a case in which a waiver is claimed to be ambiguous. We focus on the arguments by the plaintiff and the reasoning of the court in addressing the issue. Jodi Sheldon suffered serious injury while participating in a high ropes course at the Golden Bell Ranch in Colorado. She sued claiming negligence naming Golden Bell,... [read more]

Flag Football Waiver Effectiveness Depends on GOL 5-326 Ruling: Was a Fee Paid?

Marc injured his left foot in October, 2015, while playing in a League flag football game (Marc v Middle Country Ctr. Sch. Dist. 2017 NY Slip Op 51678(U)). He jumped to catch a pass, came down on a concealed sprinkler head, and suffered injury. He sued the school district since the league game was played on school district property. Prior to the game, he and the other team members had signed waivers intended to protect the school district from liability.  ... [read more]

Georgia Recreational Property Act Protects

By Doyice Cotten Last week’s post, Waiver Protects Cheerleader Organization from Liability for Negligence in Georgia, examined the effect of a waiver on the liability of Georgia All Stars (GA). The court also said that GA was protected by the Georgia Recreational Property Act (OCGA § 51-3-20 et seq.). In this post, we will examine the latter source of liability protection for some recreation providers. To review, Kimberly Shields sued RDM, LLC d/b/a Georgia All Stars for negligence when Kimberly tripped and fell from mats on the floor at an exhibition of participants’ routines for parents to view in the practice area of the gym.... [read more]

Waiver Protects Cheerleader Organization from Liability for Negligence in Georgia

By Doyice Cotten Kimberly and James Shields sued RDM, LLC d/b/a Georgia All Stars (GA) for negligence when Kimberly tripped and fell from  mats on the floor at an exhibition of participants’ routines for parents to view in the practice area of the gym. Their daughter was a participant in Special Twist (a “special needs all star cheer and dance team.”)  Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that was invited to participate in the exhibition on the night in question.... [read more]

Is an Arbitration clause in an unenforceable waiver enforceable in NJ?

By Doyice Cotten In Hojnowski v. Vans Skate Park (2006), The New Jersey Supreme Court ruled that parental waivers of liability (those signed by parents on behalf of their minor child) are not enforceable in New Jersey. In that same decision, it also ruled that parental arbitration agreements (those signed by parents on behalf of their minor child) are enforceable. The rationale in these decisions has been that a liability waiver, if enforced, takes away the rights of the minor for compensation for loss;... [read more]