BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:May 3, 2010           |Bill No:SB                         |
        |                                   |1043                               |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                     Bill No:        SB 1043       Author:Calderon
                     As Amended: April 28, 2010         Fiscal: No

        
        SUBJECT:   Personal trainers.
        
        SUMMARY:  Defines the term personal trainer, establishes educational  
        and training requirements for personal trainers and prohibits  
        individuals from calling themselves personal trainers unless they meet  
        those requirements.

        Existing law:
        
        1) Provides for the licensure and regulation of physical therapists  
           and physical therapy assistants by the Physical Therapy Board of  
           California (PTBC) within the Department of Consumer Affairs (DCA).

        2) Defines the practice of physical therapy as the art and science of  
           physical or corrective rehabilitation or of physical or corrective  
           treatment of any bodily or mental condition of any person by the  
           use of the physical, chemical and other properties of heat, light,  
           water, electricity, sound, massage and active, passive and  
           resistive exercise, including physical therapy evaluation,  
           treatment planning, instruction and consultative services.

        3) Provides for the licensure and regulation of occupational  
           therapists and occupational therapy assistants by the California  
           Board of Occupational Therapy (CBOT) within the Department of  
           Consumer Affairs.

        4) Defines the practice of occupational therapy, in part, as the  
           therapeutic use of purposeful and meaningful goal-directed  
           activities which engage the individual's body and mind in  
           meaningful, organized and self-directed actions that maximize  
           independence, prevent or minimize disability and maintain health.





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        This bill:

        1)Prohibits an individual from representing him or herself as or using  
          the title of "  personal   trainer  " unless one of the two following  
          requirements is met:

           a)   The person has a bachelor's degree in exercise science,  
             kinesiology, fitness science or another closely related field.

           b)   The person is certified by one of the following:

             i)     A national organization whose personal trainer  
               certification procedures are approved by the National  
               Commission for Certifying Agencies (NCCA).

             ii)    An organization accredited by either the Council for  
               Higher Education Accreditation or by the United States  
               Department of Education.

        2)Specifies that "to hold himself or herself out as a, or use the  
          title of, personal trainer" means to state or advertise or put out  
          any sign, card or other device, or to represent to the public  
          through any print or electronic media, that he or she is a personal  
          trainer.

        3)Defines "personal trainer" as an individual who has expertise in  
          developing and implementing physical fitness and training programs  
          for individuals and who provides those services for a fee to  
          individuals or through an organization (i.e. a fitness center) that  
          is compensated for making personal training services available.

        4)Excludes the following from the personal trainer definition:

           a)   Individuals who provide training in a particular discipline  
             (i.e. yoga or pilates) 

           b)   Individuals who provide training on a particular piece of  
             equipment or device such as a bicycle but does not include  
             proving advice or assistance on other aspects of physical fitness  
             and training such as body weight management, cardiovascular  
             fitness, endurance and overall muscle and strength development.


        FISCAL EFFECT:  None.  This bill is keyed "nonfiscal" by  
        Legislative Counsel.





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        COMMENTS:
        
        1.Purpose.  The Author is the Sponsor of this measure.  According to  
          the Author, "there are no requirements for a personal trainer to  
          have a required degree or certification to hold themselves out as a  
          personal trainer.  While many personal trainers have extensive  
          knowledge of the body and of fitness, many do not.  In fact, some  
          so-called "personal trainers" have had little more than a weekend  
          training course, which is often conducted online."  

        2.Background.  

           a)   Title Act vs. Practice Act Protection.  It is important to  
             note the distinction between "title act" and certification or  
             registration regulation versus "practice act" and licensing  
             regulation.  A practice act along with licensure confers the  
             exclusive right to practice a given profession on practitioners  
             who meet specified criteria related to education, experience, and  
             examination, and often is embodied in a statutory licensing act  
             (i.e., those who are not licensed cannot lawfully practice the  
             profession).  A practice act is the highest and most restrictive  
             form of professional regulation, and is intended to avert  severe   
              harm  to the public health, safety or welfare that could be caused  
             by unlicensed practitioners.

           A title act and a certification or registration program, on the  
             other hand, reserves the use of a particular professional (named)  
             designation to practitioners who have demonstrated specified  
             education, experience or other criteria such as certification by  
             another organization.  A title act typically does not restrict  
             the practice of a profession or occupation and allows others to  
             practice within that profession; it merely differentiates between  
             practitioners who meet the specified criteria, and are authorized  
             by law to represent themselves accordingly, (usually by a  
             specified title) and those who do not.  Some title acts also  
             include a state certification or registration program, or  
             reliance on a national certification or registration program, so  
             that those who use the specified title, and hold themselves out  
             to the public, have been certified or registered by a state  
             created or national entity as having met the specified  
             requirements.  This entity may also regulate to some extent the  
             activities of the particular profession by setting standards for  
             the profession to follow, and to also provide oversight of the  
             practice of the profession by reporting unfair business practices  





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             or violations of the law and either denying or revoking  a  
             certification or registration if necessary.

           SB 1043 does not establish a licensing practice act but instead  
             provides for a title act.  It restricts the use of the title  
             "personal trainer" to only those who have met certain education  
             or certification requirements.  There is no state program created  
             to provide oversight of this profession, there is instead  
             reliance on whether the person meets the education requirements  
             or if they have been certified by a national organization which  
             has been approved by specified national agencies that approve  
             programs related to personal trainers.  

           b)   Attempt to Provide Title Act Protection and Require  
             Certification for a Similar Profession.  In 2002 and 2003, then  
             Assemblymember Lowenthal introduced legislation on behalf of the  
             California Athletic Trainers Association (CATA) proposing  
             licensure for athletic trainers.   AB 2789  (2001-02 Session) was  
             amended to require a study of the issue before being held on the  
             Assembly Appropriations Committee suspense file.   AB 614  ,  
             (2003-04 Session) was held in Senate Business and Professions  
             Committee to allow the Joint Committee on Boards, Commissions and  
             Consumer Protection (Joint Committee) to examine whether athletic  
             trainers should be licensed as part of the "sunrise" process.

           In compliance with the sunrise process, CATA completed and  
             submitted the extensive "sunrise questionnaire" in support of its  
             proposal for licensure.  The athletic trainer sunrise proposal  
             was heard by the Joint Committee in January 2005.  Following this  
             hearing, the Joint Committee voted unanimously, in April 2005, to  
             reject full licensure of athletic trainers, but suggested as part  
             of this recommendation that some form of recognition of athletic  
             trainers, such as title protection, may be appropriate.

           In 2005, Senator Lowenthal introduced  SB 1397  which would have  
             enacted the Athletic Trainers Certification Act, which prohibited  
             a person from representing him or herself as an athletic trainer  
             unless he or she is certified as an athletic trainer by an  
             athletic training organization.  The bill would have regulated  
             the practice of athletic training by requiring all individuals  
             who use the title athletic trainer to meet specific education  
             standards, pass a certification exam, complete continuing  
             education and register with an athletic training organization.   
             The measure also made it an unfair business practice for a  
             registered athletic trainer to advertise or publicly represent he  
             or she as "state certified" or as "state registered" as an  





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             athletic trainer by the State of California.  Governor  
             Schwarzenegger  vetoed  the measure claiming "there is no evidence  
             that the existing unregulated status of athletic trainers poses  
             any threat to public health and safety," and this measure would  
             place unnecessary regulatory burdens on the athletic training  
             profession.

           In the sunrise questionnaire, CATA indicated that there are about  
             2,200 certified athletic trainers in California.  Only those  
             athletic trainers who have been certified by the Omaha-based  
             Board of Certification (an affiliate of the National Athletic  
             Trainers Association) are permitted to use the terms certified  
             athletic trainer" or "athletic trainer, certified."  The Board of  
             Certification certifies athletic trainers who have met the  
             qualifications and passed a national written examination.  To sit  
             for the exam, applicants for certification as an athletic trainer  
             must have completed a bachelor degree program in an athletic  
             training educational program accredited by the Commission on  
             Accreditation of Allied Health Education Programs.  In 2005,  
             there were 12 accredited entry level athletic training education  
             programs in California, as well as one graduate level program and  
             an additional six entry-level programs in candidacy for  
             accreditation.  Most of the accredited programs are in the  
             California State University system.

           The majority of certified athletic trainers in California are  
             employed in school settings, including four-year colleges and  
             universities, community colleges, high schools, professional  
             sports teams, clinics, hospitals, industrial settings or private  
             health clubs employ the rest.

        3.Attempts in Other States to Regulate Personal Trainers.  A few other  
          states have or are considering legislation to regulate personal  
          trainers.  

           Louisiana  currently licenses exercise science professionals through  
          its State Board of Medical Examiners.  Applicants must have a  
          master's level education, test scores from the American College of  
          Sports Medicine and have completed a 300-hour internship in exercise  
          physiology under the supervision of a licensed exercise  
          physiologist. 

           Georgia  Senate Resolution 1077 by Senators Jones and Seabaugh was  
          passed in 2005 to create the Senate Study Committee on the Licensure  
          of Personal Fitness Trainers to examine the state's growing and  
          unregulated personal fitness training industry and make  





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          recommendations it deems necessary or appropriate to provide  
          consumer protection.

           Maryland  House Bill 814 of 2008 by Delegate Costa would have  
          required the Board of Physicians to license and regulate the  
          practice of personal training, required all personal trainers to be  
          licensed by October 1, 2010, and specified age, education, and other  
          credential requirements required for licensure.  The measure was  
          withdrawn.

           New Jersey  considered Senate Bill 2164 by Senator Sarlo in 2008 and  
          2009, which would require new personal trainers to receive 300 hours  
          of classroom instruction, including 50 hours of unpaid internship  
          and require existing trainers to enroll in 150 hours of classroom  
          instruction.  The measure failed passage in their Legislature.   

           Massachusetts  is considering Senate Bill 870 (Moore) which will  
          require professional licensure of personal trainers.  Applicants are  
          required to have completed specified education and possess  
          certification from a nationally accredited organization, in addition  
          to an exam issued by that state's National Commission for Certifying  
          Agencies.  The bill is currently on study order and not moving this  
          year.   

           Washington D.C.'s  Department of Health recommended legislation to  
          require personal trainers to register with the Mayor and submit fees  
          biennially.  Registered personal trainers would have been regulated  
          by the Board of Physical Therapy (Board) and would operate according  
          to a scope of practice delineated by the board.  The issue did not  
          make it through the process to become law.  

         4.Policy Issue  :  Is There a Need to Regulate Personal Trainers?   SB  
          374  (Calderon, 2009) is identical to this bill.  The measure passed  
          out of this Committee in the form it is in currently, but was held  
          in the Assembly Appropriations Committee.  At the time, the Author  
          cited examples of personal trainers lacking proper knowledge of  
          physiology which in turn contributes to consumer injury.  

           Personal trainers are typically employed in private settings where  
           consumers choose to utilize their services, as opposed to other  
           similar professionals who are more typically employed in schools or  
           medical settings.  It is unclear whether requiring these  
           individuals to complete certain programs will enhance the quality  
           of their service or improve safety, particularly since there is not  
           a substantial body of data highlighting serious harm or injury  
           stemming from services offered by personal trainers in California.   





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           This measure also does not specify any recourse for a person who  
           violates the title act by calling themselves a "personal trainer"  
           without the specified degree or certification, such as stating it  
           as an unfair business practice.  The Author may want to consider  
           what penalties should apply to violation of this title act.
        

        SUPPORT AND OPPOSITION:
        
         Support:   

        None on file as of April 28, 2010.

         Opposition:  

        California Physical Therapy Association



        Consultant:Sarah Mason