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10 Years as Legal Columnist: A Review and Personal Perspective

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

doi: 10.1249/FIT.0b013e318201cfa5

10 Years a Legal Columnist: A Review and Personal Perspective.

JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP, is a professor and the coordinator of the undergraduate exercise science program at the University of South Florida in Tampa. At her former institution, the University of Nebraska at Omaha, she served as the coordinator of the master's degree program in health and fitness management. Dr. Eickhoff-Shemek's teaching and research focus on legal liability and risk management issues in the health/fitness field. She has taught a graduate legal aspects/risk management course for exercise science and health/fitness majors for 12 years and is the lead author of a groundbreaking and comprehensive textbook entitled Risk Management for Health/Fitness Professionals: Legal Issues and Strategies published by Lippincott Williams & Wilkins in 2009. Coauthors are David L. Herbert, J.D., and Daniel P. Connaughton, Ed.D. Dr. Eickhoff-Shemek is ACSM Health/Fitness Director® certified and ACSM Exercise Test TechnologistSMcertified, and a fellow of ACSM and the former Association of Worksite Health Promotion.

I cannot believe it was more than 10 years ago when Lawrence A. Golding, Ph.D., FACSM, (founding editor-in-chief of ACSM's Health & Fitness Journal®) invited me to become the Legal Aspects columnist and an associate editor of this Journal. I was very grateful for his confidence in me to serve ACSM in this capacity. Before I recognize and thank the many individuals who have assisted with this column, I dedicate my final Legal Aspects column to Dr. Betty van der Smissen (1927-2008). Betty was the first person who got me excited about learning the law and its application to the field. She was a brilliant internationally known legal scholar and considered the most quoted person in the area of sport and recreation law. In fact, I often have quoted her work in various legal columns in this Journal. Not only was Betty a wonderful mentor to many of us who teach and conduct research in this area, but I will always remember her as a gracious and supportive colleague and friend.

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In the Table, I have organized the titles of the Legal Aspects columns published during the past 10 years into 12 categories. My goal was to cover a variety of legal topics that would be relevant and useful to health/fitness professionals. As an associate editor of this Journal, I was occasionally encouraged to submit feature articles, so I also listed these in the Table that have covered various legal issues. For example, feature articles describing formal educational programs for group exercise leaders and personal fitness trainers focused on preparing professionals to teach in a safe and effective manner - an important risk management strategy. I cannot thank enough the following individuals who served as guest columnists, lead authors, or coauthors for several of the Legal Aspects columns and feature articles listed in the Table.



Legal Columns

Susan A. Blair, MSJ-MBA

David L. Herbert, J.D.

Anita M. Moorman, J.D.

Nico P. Pronk, Ph.D., FACSM

John O. Spengler, J.D., Ph.D.

Carrie J. White, MBA, J.D.

Feature Articles

Kathie Deja, M.A.

Laura J. Kruskall, Ph.D., R.D., FACSM

Melinda M. Manore, Ph.D., R.D., FACSM

Cynthia Sass, M.P.H., M.A., R.D.

Susan Selde, M.S.

Legal Columns and Feature Articles

Daniel P. Connaughton, Ed.D.

Aaron Craig (Brathwaite), M.S.

Dayna Davidson, M.A.

Some of the legal columns and feature articles were authored or coauthored by graduate students and adjunct professors who not only were interested in publishing their first article in a refereed journal but who also had professional experiences that I believe were worthy of sharing with the readers of this Journal. I also thank two members of my doctoral committee (Frank S. Forbes, J.D., and John K. Scheer, Ph.D.) who assisted me with the preparation of two feature articles that were published in this Journal before 2000 that also dealt with legal issues (1,3). Last, in addition to giving Dr. Golding special thanks, I thank the Journal's current editor-in-chief, Edward T. Howley, Ph.D., FACSM, and managing editor, Lori Tish, for the help and support they have given me the last several years. Their tireless effort and hard work continue to make this Journal the best journal for health/fitness practitioners.

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During the past 10+ years, I have observed various efforts to enhance the quality and safety of health/fitness programs such as the 1. accreditation of certifications, for example, many certifications are now accredited by the National Commission for Certifying Agencies (NCCA) or other accrediting agencies; 2. accreditation of undergraduate and graduate programs in exercise science through the Commission on Accreditation of Allied Health Education Programs (CAAHEP); and 3. legislative bills that have proposed licensure for health/fitness professionals in various states.



Although all of these efforts have merit, some have required formal education (e.g., completion of coursework and practical experiences) and some have not. For example, for an academic program to become accredited through CAAHEP, it will need to demonstrate that the coursework covers certain knowledge, skills, and abilities (KSAs) and that the students are evaluated on their ability to properly apply these KSAs. However, no formal education requirements are needed before sitting for a certification examination that is accredited by NCCA. Therefore, individuals can receive an accredited certification without any formal education.

Some of the licensure proposals have included formal educational requirements before health/fitness professionals can sit for the licensing examination. For example, the New Jersey proposal to license personal trainers and group fitness instructor requires 200 classroom hours and a 50-hour internship or an associate's degree in health and fitness (4). Some organizations have opposed this provision within these bills, claiming it will increase costs. Perhaps some costs might go up, but in the long run, I believe that a well-educated professional performs at a higher quality and safer level than one who has had no formal education. In turn, there will be an increase in revenue (increase and retain the number of participants because they will appreciate high-quality programs) and at the same time decrease costs by minimizing injuries and subsequent litigation. Others in the field have opposed such legislation because they feel that the profession should be self-regulated (e.g., through certification and accreditation) versus government-regulated (e.g., through licensure). I do not have an opinion either way, but I do believe that formal education is needed for every professional entering the field no matter if the field remains self-regulated or becomes government regulated.

Well-designed formal educational programs prepare professionals with the many KSAs they need to provide safe and effective programs, and they also assess the level of competence of professionals, that is, their ability to "bridge the gap between science and practice" - the mission of this Journal. In other words, these educational programs include a formal assessment of the professional's ability to properly apply principles of exercise when designing and delivering exercise programs. There is a difference between a qualified professional (one who possesses certain credentials) and a competent professional (one who can properly apply exercise science principles). Well-designed formal education programs prepare both qualified and competent professionals. Being both qualified and competent is essential from a legal perspective because when determining the standard of care in a negligence lawsuit, courts will investigate not only the credentials but the competence of the professional, that is, the conduct of the professional - what he/she did (or did not do) given the situation.

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Even the best formal education programs often do not adequately cover the law and its application to the health/fitness field. It is critical for health/fitness professionals to fully understand and appreciate the many legal liability exposures (situations that increase the risk of injury and subsequent litigation) that exist in the field and the risk management steps they can take to minimize these exposures. Unfortunately, many unnecessary injuries (and subsequent legal claims/lawsuits) continue to occur in the field. In addition, research continues to show that many health/fitness facilities are not adhering to the law, as well as published standards of practice that focus on safety (2). Given the many efforts to enhance quality and safety, why are unnecessary injuries and poor adherence to the law and safety practices still occurring in our profession? Perhaps it is too early to determine the effectiveness of these efforts. However, I believe it is because health/fitness professionals still are not receiving adequate education about the law and how to apply it through the development/implementation of risk management strategies. Therefore, although my role as legal columnist is ending, my passion to educate health/fitness professionals and students about the law as it pertains to the field will continue. I am currently developing two legal/risk management educational programs that I hope will help fulfill this important need in the field: 1. an online program to help prepare academicians to teach a course in this area at their university/college, and 2. a continuing education course for health/fitness professionals in which they will be able to earn continuing education credits upon successful completion.

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It has been a distinct honor and privilege to serve ACSM in this capacity during the past 10 years. I thank you, the readers of this Journal, who have supported this column, and I hope that the information provided has increased your knowledge about the various legal issues facing the profession. There is nothing more important than the safety of our participants and doing everything we can to provide the safest programs and environments possible. Enhancing safety begins by learning about the many legal liability exposures that exist in the field and risk management strategies that can help minimize these exposures.

The next legal column will be written by Anthony Abbott, Ed.D., FACSM, the new Legal Aspects columnist and associate editor for this Journal. I have known Dr. Abbott for many years and have worked with him on certain projects, for example, we coauthored a book chapter, "Legal Issues in Personal Training," published in the National Strength and Conditioning Association's Essentials of Personal Training. Dr. Abbott not only is very knowledgeable about the law and its application to the field, but also is an excellent writer. The readers of this Journal are very fortunate to have Dr. Abbott serve in this role.

This column provides general legal information and is not intended to substitute for individualized legal advice.

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1. Eickhoff-Shemek JM, Forbes FS. Waivers are usually worth the effort. ACSM Health Fit J. 1999;3(4):24-30.
2. Eickhoff-Shemek, JM, Herbert DL, Connaughton DP. Risk Management for Health/Fitness Professionals: Legal Issues and Strategies. Baltimore (MD): Lippincott Williams & Wilkins; 2009.
3. Eickhoff-Shemek JM, Scheer JK. Thumbs up or down on facility standards. ACSM Health Fit J. 1997;1(2):21-30.
4. Herbert DL. New Jersey reintroduces personal trainer legislation. Exerc Standards Malpract Rep. 2010;24(3):37-41.
© 2011 American College of Sports Medicine.