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Columns: The Legal Aspects

Scope of Practice

Abbott, Anthony A. Ed.D., FACSM, FNSCA

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doi: 10.1249/FIT.0000000000000415
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The January/February 2012 The Legal Aspects column dealt with this scope of practice concern. This article will provide a refresher on this topic covered in my 2012 column, but with an increased emphasis on scope of practice as it relates to nutrition advice provided by fitness instructors and personal trainers and their associated limitations.

Should fitness instructors or personal trainers become embroiled in litigation, it is most likely that it would be within the field of civil law that deals with torts and contracts. The instructor or trainer would probably find himself or herself defending a negligence tort for having failed to act or for having acted in a manner that reflected substandard performance (1). However, there exists the possibility that the instructor or trainer could find himself or herself in violation of criminal law. If this were the case, it would most likely be a result of violating the scope of practice.

Technically, scope of practice refers to the limitations imposed by law on different vocational pursuits, pursuits that require specific education and experience as well as demonstrated competency. Jurisdictions have their own laws, licensing bodies, and regulations that describe requirements for education, training, competency, and those activities that fall within the purview of the practitioner. In effect, what the practitioner can and cannot do defines one’s scope of practice. However, when an individual who is not licensed engages in the practices of a licensed profession, then he or she is violating the scope of practice.

The term scope of practice is not only used by national and state licensing boards for various professions to define the procedures, actions, and processes that are permitted for a licensee, but also by professional associations like the American College of Sports Medicine (ACSM) to outline responsibilities and limitations for a certificant. For example, the ACSM Certified Exercise Physiologist® (ACSM-EP®) has a “Bachelor’s degree in Exercise Science, Exercise Physiology, Kinesiology or an exercise science-based degree and is current in CPR and AED certifications.” The ACSM-EP® is skilled in the following:

  • Applying knowledge of exercise science including kinesiology, functional anatomy, exercise physiology, nutrition, program administration, psychology, and injury prevention in the health/fitness setting.
  • Performing preparticipation health screenings and fitness assessments.
  • Interpreting assessment results and developing exercise prescriptions.
  • Performing duties related to fitness management, administration, and program supervision.
  • Incorporating suitable physical activities to improve functional capacity.
  • Applying appropriate behavioral change techniques to effectively educate and counsel (nutrition) on lifestyle modification (2).

Standards and guidelines establish the parameters of appropriate practice for professions such as fitness instruction and personal training (3). However, the ACSM-EP® who strays from this job description and overreaches his or her documented competencies by intruding into the field of a licensed health care professional is in violation of criminal law as a result of exceeding or going beyond his or her scope of practice. When this is the case, the ACSM-EP® and other instructors/trainers may become guilty of a misdemeanor of the first degree and, in some cases, a third degree or even second degree felony (4).

Scope of practice outlines the range of responsibilities and, therefore, the boundaries within which the practitioner functions. The scope of practice then serves as a guide concerning what may lie well outside these boundaries, wherein they could become legally embroiled and potentially guilty of a misdemeanor or felony. Recognizing that there may be some overlap with scopes of practice of various professional fields, the ACSM-EP®, as with all fitness instructors and personal trainers, must determine where their practice ends and the practice of another professional begins (5).

When instructors or trainers take on clients, they are basically stating that they have a sufficient knowledge of exercise science and an understanding of their clients’ capabilities to provide safe and progressive exercise programming. In effect, they take on the awesome responsibility of exposing their clients to the stress of exercise without overtaxing them to the extent of causing injury and perhaps even death. Therefore, the instructor/trainer must define his or her scope of practice because of the fact that there are limits to what the instructor/trainer may do with his or her clients. These limits — what one should and should not do — are defined not only by one’s training, by a professional association’s standards and guidelines, and by the law, but also by one’s ethical responsibilities, which are frequently specified by an association’s code of ethics (6).

Clients can rightfully expect that their programs will bring about positive change without harmful effects. Generally, clients anticipate that their instructors/trainers have a significant grasp of anatomy, physiology, and exercise science to ensure safe and effective workouts. Often, clients assume that because instructors/trainers have been educated in anatomy and physiology, they have knowledge, even medical knowledge, beyond that which is required for exercise programming. Consequently, it is frequently the case that clients will pose medical questions to their instructors/trainers.

Unfortunately, instructors and trainers, in a desire to live up to their clients’ expectations, may feel pressured to provide answers to their clients’ medical questions. Rather than explaining to clients that to answer such questions would be going beyond their training and expertise, instructors/trainers may give opinions about medical concerns. This opining could verge on providing a clinical diagnosis or practicing medicine or allied health care without a license.

In light of this concern of practicing medicine without a license, it is important that instructors and trainers share with their clients that health appraisals, to include medical histories, are screening devices and not to be construed as a medical evaluation. To ascertain that there is no confusion on the part of the client, the instructor/trainer should have the client sign a witnessed statement, at the end of the medical history form, similar to the following: “The undersigned swears that the information provided is true and correct to the best of his or her knowledge and recognizes that this health appraisal is not the equivalent of a medical evaluation or diagnosis” (1).

In like manner, when the instructor or trainer is taking a client’s blood pressure, it is essential that the client understand that this action is for screening purposes only. Should the client’s pressure be abnormally high, the instructor/trainer ought not tell the client that he or she has high blood pressure but rather that he or she ought to be evaluated further by a physician before beginning an exercise program. Instructors/trainers must understand, and their clients must recognize, that they are “suspecticians” not “diagnosticians” (1).

In light of practicing allied health care without a license, there are concerns about intruding on the domain of physical therapists and dieticians. The following examples are just some of the areas in which instructors and trainers should be cautious to avoid any hint of going beyond their scope of practice and violating criminal law.

Many instructors and trainers, as part of their initial assessments/evaluations, will do a postural analysis of their clients. If abnormalities are observed, instructors/trainers are frequently noted to administer specific exercises in an attempt to correct postural deviations such as excessive lordosis, kyphosis, scoliosis, and scapular winging. They assume that stretching and strengthening exercises will encourage adaptive lengthening and shortening of muscle-tendon complexes and, thereby, improve postural alignment.

Unfortunately, a review of the literature reveals a lack of reliable data to substantiate the claims that exercise, in itself, will correct postural deviations (7). Notwithstanding this fact, the concept that instructors/trainers are testing for postural problems and then prescribing corrective exercises is tantamount to providing a diagnosis with subsequent prescriptive remedies. This falls within the domain of the physical therapist and may be viewed as an instructor/trainer exceeding his or her scope of practice and violating criminal law.

Again, the instructor/trainer who tests for postural abnormalities should provide such an assessment as a screening mechanism with the idea of referring their client to a physician or physical therapist if there are suspicions of abnormalities that could affect the client’s health. Along this line, there are numerous other abnormalities that the instructor/trainer may observe that should generate red flags, thereby warranting further clinical analysis. Such concerns might be unnatural gait, excessive foot pronation or supination, squinting patella, varus or valgus postures, excessive "Q" Angle, upper or lower cross syndromes, and the like.

Instructors/trainers are frequently asked questions regarding injury prevention and treatment. Although the instructor/trainer, through application of safe exercise programming, may help clients understand the cause for and avoidance of unnecessary injuries, the concept of treating existing injuries falls outside of his or her domain. True, minor strains and sprains may lead to an instructor’s/trainer’s recommendation that the client use the PRICE principle of prevention, rest, ice, compression, and elevation; however, when it comes to suspected plantar fasciitis, Morton neuroma, metatarsalgia, compartment syndrome, chondromalacia, and a host of other potential neuromuscular and/or musculoskeletal disorders, referral should be the action taken.

Although instructors/trainers may knowingly or unknowingly use modalities used by physical therapists, they are not licensed to practice physical therapy. Competent instructors/trainers know when it is appropriate to refer a client to a physical therapist and, by doing so, bridge the gap between fitness training and injury rehabilitation. Although many of the therapeutic interventions applied in physical therapy may appear similar to those used by fitness instructors and personal trainers, it is vital that instructors/trainers refrain from describing their services as physical therapy (8).

The practice of nutrition and dietetics without a license all too often is observed, especially among fitness instructors and personal trainers who frequently advertise that they provide nutritional counseling. The instructor/trainer who distributes business cards reflecting that he or she does nutritional counseling is typically in violation of state law unless he or she is in possession of a valid license. Most states have licensure requirements that must be met before one is able to write specific diet plans for clients.

All too often, however, instructors/trainers tell clients exactly what and how much to eat for every meal and, sometimes, what supplements to take. As a result of observing unhealthy directives from uneducated instructors/trainers, many clients have experienced severe metabolic disturbances. Such disturbances are frequently found among bodybuilding and figure competitors, who have engaged in bizarre and unsafe eating practices on the advice of self-appointed nutritional authorities. There have even been deaths of several prominent collegiate and professional athletes who have used unsafe supplements during training under warm environmental conditions (9).

One of the most highly publicized death cases due to supplement use promoted by a personal trainer was that of Capati v. Crunch Fitness. The personal trainer recommended that his female client, who was a known hypertensive, take a variety of over-the-counter nutritional and dietary supplements including some that contained ephedra. During exercise, she became ill, lost consciousness, and later died of a brain hemorrhage (4). The use of the supplement was determined to be the direct cause of her death and, therefore, met the requirements to establish negligence that resulted from the trainer’s failure to stay within his scope of practice.

If instructors/trainers are well versed in nutrition science, then it is not only acceptable but also advisable to educate clients how to develop lifelong, healthy eating habits. It is well recognized that regarding weight/fat loss, exercise alone seldom accomplishes this goal but rather should be accompanied by good nutrition habits. There is merit to the adage “the best consumer is an educated consumer.”

When providing nutrition education and eating habit recommendations, fitness instructors and personal trainers must be able to evaluate the effects of nutritional strategies. They need to recognize that individual studies should be replicated by other scientists and, if possible, a consensus developed. Meta-analyses typically will provide a quantification and the strongest evidence available relative to the effect of nutritional strategies on health and fitness (9).

Providing specific meal plans as well as marketing oneself as a nutritional or dietary counselor is illegal in most states unless one is a Licensed Dietitian/Nutritionist (LD/N), Licensed Nutrition Counselor (LNC) or Registered Dietitian (RD). In Florida, as with most states, there exists a state statute requiring that a person may not knowingly engage in the practice of dietetics and nutrition or nutrition counseling for remuneration unless that person is licensed by the state.

In addition, a person may not use the name or title "dietitian," "licensed dietitian," "nutritionist," "licensed nutritionist," "nutrition counselor," or "licensed nutrition counselor" or any other words, letters, abbreviations, or insignia indicating or implying that he or she is a dietitian, nutritionist, or nutrition counselor or otherwise hold himself or herself out as such, unless the person is the holder of a valid license issued by the state. Accordingly, businesses or facilities are prohibited from employing unlicensed persons to engage in dietetics and nutrition practice or nutrition counseling. In Florida, as with most states, a person who violates any of the preceding prohibitions commits a misdemeanor of the first degree, punishable by a fine and/or even imprisonment not to exceed one year (10).

Many instructors and trainers will align themselves with licensed nutrition counselors and/or registered dietitians that clients may be provided with specific meal plans as well as receive more detailed education and information related to healthy eating, weight loss, and weight gain. Having the availability of this type of referral network only adds to the professionalism of the instructor/trainer’s service and enhances the probability of client success. Some instructors/trainers will purchase computer programs developed by licensed nutritional professionals to legally provide detailed meal plans.

In regards to unhealthy nutritional habits and/or exercise addiction, instructors and trainers may find themselves working with clients who have personality disorders such as bulimia, anorexia nervosa, and orthorexia nervosa, disorders that require professional attention. Orthorexia nervosa, a more recently recognized disorder, deals with a fixation on healthy eating that can lead to an unhealthy set of problems, especially when persons eliminate many products and foods from a normal diet. Orthorexia nervosa defines this subset of people who are obsessed with eating healthy. Whereas anorexics are afraid of getting fat, orthorexics care less about their weight and more about their perception of health.

Another potential concern is for the instructor or trainer who has an athletic client who exhibits behavior typical of the female athlete triad. Disordered eating, amenorrhea, and osteoporosis are the serious issues with which the trainer must deal. However, as with the client suffering from bulimia, anorexia nervosa, or orthorexia nervosa, instructors/trainers are in need of health care professionals trained to deal with these personality disorders. The same can be said of the client experiencing muscle dysmorphia (bigorexia) who frequently requires serious counseling.

All too frequently, fitness instructors and personal trainers fall prey to nutritional misinformation and even quackery because they lack formal training in nutrition science. They are misled by misinterpreted data and anecdotally based claims that are commonly encountered when attempting to review supplement benefits by way of the Internet or by marketing materials found not only within health food stores but also fitness facilities. Many facilities rely on the sales of weight loss and muscle building products to bolster their income. Consequently, the instructor/trainer must be conscious of the fact that supplement companies are not regulated and that their claims founded on independent research are not equivalent to peer-reviewed research. Unfortunately, the government does not require evidence of the proven efficacy or purity of any weight loss or muscle building supplements.

Over the years, many supplements have been touted as providing health and muscle building benefits only later to be discredited by research. Frequently, supplements are thought of as being benign in that although their muscle building claims may or may not have been validated, harmful adverse effects have yet to be documented. Often, many years elapse before serious concerns develop through ongoing research. For example, creatine monohydrate has been accepted by the strength-training community as an effective and acceptable supplement without adverse effects.

Granted, over the years, there have been a number of negative studies related to creatine usage, and only recently has one surfaced that has questioned its harmlessness. True, one study does not undo previous research without replication of that positive study. The study of interest is reported in the British Journal of Cancer, in which there appeared to be a correlation between creatine and testicular cancer.

The study indicated that men who use muscle building supplements that contain creatine or androstenedione may have up to a 65% increased risk of developing testicular cancer. The study’s senior author stated, “The associated testicular germ cell cancer risk was especially high among men who started using supplements before age 25, those who used multiple supplements, and those who used them for years” (11). The take-home message is that instructors/trainers should proceed with caution when recommending nutritional supplements because they may be endangering their clients and violating their scope of practice.

Although there exists a lack of statutory laws defining explicitly what is the scope of practice for fitness instructors and personal trainers, there are numerous standards and guidelines found within published texts and authoritative literature outlining professional responsibility regarding exercise programming and nutritional recommendations. It should be noted that there exists case law where instructor/trainers have been sued for practicing medicine or allied health care without a license. Standard of Care, or that degree of care that a reasonably prudent fitness instructor or personal trainer would use under similar circumstances, must be the overriding philosophy in working with clients to ensure that one remains within his or her scope of practice and does not violate that of another profession.

References

1. Bates M. Health Fitness Management. 2nd ed. Champaign (IL): Human Kinetics; 2008.
2. American College of Sports Medicine. ACSM’s Guidelines for Exercise Testing and Prescription. 10th ed.Philadelphia (PA): Lippincott Williams and Wilkins; 2018. 453 p.
3. National Strength & Conditioning Association (NSCA). NSCA’s Essentials of Personal Training. 2nd ed. Champaign (IL): Human Kinetics; 2012. 625 p.
4. Eickhoff-Shemek J, Herbert D, Connaughton D. Risk Management for Health/Fitness Professionals. Philadelphia (PA): Lippincott Williams & Wilkins; 2009.
5. American College of Sports Medicine. ACSM’s Resources for the Exercise Physiologist. 2nd ed.Philadelphia (PA): Wolters Kluwer; 2018. 439 p.
6. Nutting M. The Business of Personal Training. Champaign (IL): Human Kinetics; 2018. 6 p.
7. Hrysomallis C, Goodman C. A review of resistance exercise and posture realignment. J Strength Cond Res. 2001;15(3):385–90.
8. National Strength & Conditioning Association (NSCA). NSCA’s Essentials of Training Special Populations. Champaign (IL): Human Kinetics; 2018. 6 p.
9. Williams M, Anderson D, Rawson E. Nutrition for Health, Fitness & Sport. 10th ed. New York (NY): McGraw-Hill Companies, Inc; 2013. 28, 565 p.
10. Florida Statutes 2018, Title XXXII, Chapter 468 Professions and Occupations, Part X Dietetics and Nutrition Practice, 468.517 Prohibitions and Penalties.
11. Li N, Hauser R, Holford T, et al. Muscle-building supplement use and increased risk of testicular germ cell cancer in men from Connecticut and Massachusetts. Br J Cancer. 2015;112(7):1247–50.
© 2018 American College of Sports Medicine.