BILL ANALYSIS ----------------------------------------------------------------------- |Hearing Date:May 3, 2010 |Bill No:SB | | |1043 | ----------------------------------------------------------------------- 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. SB 1043 Page 2 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. SB 1043 Page 3 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 SB 1043 Page 4 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 SB 1043 Page 5 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 SB 1043 Page 6 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. SB 1043 Page 7 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