Essential Risk Management Competencies for Exercise Professionals w/JoAnn Eickhoff-Shemek

As always , I'm your host , michael Stack , an exercise physiologist by training and a health educator and health entrepreneur by trade , and I'm fascinated by a phenomena I call the wellness paradox . This paradox , as I view it , is the trust , interaction and communication gap that exists between exercise professionals and our medical community .

This podcast is all about closing off that gap by disseminating the latest , most evidence-based and most engaging information in the health sciences .

And this conversation in episode number nine of the series is around risk management , and we're going to be talking with Joanne Eickhoff-Schemick about her article entitled Essential Risk Management Competencies for Qualified Exercise Professionals that she co-wrote with Julia Buchanan .

Now , I fully realize that the topic of law or risk management may not seem like the most exciting and enthralling topic that we could be talking about , but it's absolutely critical , particularly when you consider as a profession that is going to need to integrate in more with healthcare in the future , we will be held to the risk management standards of healthcare ,

not necessarily the slightly looser risk management standards that we've had to adhere to in the fitness industry over the years . So things that are associated with scope of practice , things that are related to data privacy and confidentiality , such as HIPAA .

So I think there's a lot of critically important information for Joanne to share in this episode and in her article to prepare us for this transition to integrating with healthcare . Any information we'd like to share with you from today's episode can be found on the show notes page . That's been going to wellnessparadoxpodcom forward slash episode ACSM9 .

That's forward slash episode ACSM 9 . That's forward slash episode ACSM 9 . Please enjoy this conversation with Dr Joanne Eickhoff-Schebek Today . We're delighted to be joined by Joanne Eickhoff-Schemick . Joanne , thank you so much for joining us .

So it's always exciting when I get to learn things along with our audience , which I know I did learn from your article , which we'll get to in a moment . But before we dive into that article and the topic for this conversation , why don't you give our audience a little bit of your background , just to provide some context for the discussion ?

I worked out , worked as a fitness manager and an exercise professional in community settings and clinical settings and did that for about 20 years and then decided I wanted to go back and earn my PhD and pursue academia and so I did that and I started teaching at the University of Nebraska at Omaha in 1994 and was there for several years and then the University

of South Florida in Tampa offered me a great job . So I moved here in 2003 and had a similar position in the exercise science program and then I retired in 2017 from USF and then I retired in 2017 from USF . And so the last seven years I've been able to continue with my research and teaching and related to ACSM .

You know I've been involved with ACSM for several decades kind of related to what we're talking about today with the Health and Fitness Journal .

Back in 2000 to 2010 , I served as the legal columnist for the journal and then , since 2020 , I've been serving as the fitness safety columnist , so it's been great to work with this journal and all the wonderful people affiliated with it , and it's just been a great experience and great honor to be involved .

That would be absolutely fascinating , but I don't want to take us down that path , because I am excited to get into this topic because you obviously have a very strong understanding of the law and risk management as it relates to our profession , but you also are an exercise professional yourself , so it's exciting when somebody has both of those areas of expertise .

So you wrote an article with your co-author in the themed issue . The article is entitled Essential Risk Management Competencies for the Qualified Exercise Professional and your co-author was Julia Buchanan , and the article talked about I believe it was one part of what will be a two-part article .

So you talked about some of the elements of this topic in this first article and I know there was a decent amount in there . But I'm going to ask you to do the hard thing and distill it down into what some of the most important points were in the article for our audience to know about .

So what we wanted to do is take a look at there's four domains with those competencies and the fourth domain is called risk management and exercise no , the profession , and I think it's . What is it ? Risk management and professional responsibility . Sorry , got the title right , but anyway .

So what we did is we wanted to select some of those risk management competencies that dealt with topics that reflect certain laws federal laws and state laws Because I don't think a lot of times exercise professionals and exercise students really get a lot of exposure to these laws , but they're very , very important to know about these laws and to comply with them in

their day-to-day operations as a fitness manager or as an exercise professional . So we tried to select those . We selected three of them for part one , and then we have another three competencies for part two , so just focusing on part one , we looked at the topics of sexual harassment . That's covered in one of the competencies .

Another topic is confidentiality policies and procedures , and another topic was the scope of practice and ethical standards . So what we did is we took each of those three risk management competencies and those topics covered in those competencies and tried to describe the laws the federal laws and state laws that are reflected in those topics .

So that was really kind of the goal is to provide that education , you know , for academicians when they're covering these competencies in their coursework , as well as for managers of fitness facilities in their training programs . You know , for example , of fitness facilities in their training programs . You know , for example , like sexual harassment .

You know fitness facilities must have a sexual harassment policy and they must train their employees about that policy and how to comply with that policy . And so we got into the law related to sexual harassment the Civil Rights Act of 1964 , title VII . That applies to employers with 15 or more employees and that it's , you know , by law you need to comply with .

You know you have to prohibit sexual harassment in the workplace and if not , you know it can be very costly .

And unfortunately , when we think of discrimination claims and sexual harassment is just one aspect or one type of , you know one type of discrimination claims these , actually these discrimination claims have increased over the years and that's kind of unfortunate . We hope to see a decrease .

So anyway , we talk about that and the importance of following the Civil Rights Act of 1964 and Title VII , the federal law , and then also the importance of state laws related to sexual harassment , of state laws related to sexual harassment , and so it's also really important that , no matter what state you work in , you also have to think about the state laws , and

sometimes these state laws are even more protective of employees than the federal law . And so you know , just getting into , you know what are those laws require and why is it important to comply with them and to minimize your legal liability risk . That's what this is all about is minimizing your legal liability risk .

And so then the second topic dealt with confidentiality policies and procedures , and of course , we get into HIPAA . Everybody's familiar with HIPAA , and so that's really important .

There's several standards that you have to follow and laws and requirements with the privacy rule , the security rule , the breach notification rules , a lot of detail in each of those and the importance of following HIPAA .

And then , if the HIPAA doesn't reply , you know HIPAA primarily applies to your you know your health plans and healthcare organizations , and so exercise professionals that work , you know , for a healthcare plan or for a healthcare organization , obviously they have to follow HIPAA . But also if you are a business associate , okay .

So , as we know , as we integrate more and more with the healthcare industry , you know we want to work with the healthcare industry , and if you are an individual or if you're a fitness facility and you want to work with a health plan or a healthcare organization and they hire you as a vendor to provide fitness and wellness services , well then , as a business

associate and as a vendor , so to speak , you also need to comply with all of the privacy , security and breach notification rules , and so that's really important as we continue to integrate , you know , with the healthcare industry , and so we get into that law .

If that HIPAA doesn't apply , okay , then the Federal Trade Commission Act applies , related to data privacy and security , so that's also important to understand . So , even if HIPAA doesn't apply for your particular situation , the FTCA probably does , and so that's important .

As well as your state laws , you also have the state privacy , security and breach notification laws , so those state laws also become very important . And then that third area .

I hope I'm not taking up too much time here , but the third area deals with scope of practice , and scope of practice and ethical standards are very important and , of course , there are laws related to scope of practice . For example , you don't want to be practicing medicine without a license ?

Okay , that's , you could face criminal charges , and I think we even give some good case examples in the article of some of these cases that have occurred in the fitness and wellness field related to violations of these laws . And so , anyway , that's important , not just the criminal charges , but also your scope of practice .

You want to make sure that you're not providing any kind of instruction or advice that would create harm to an individual , because if you harm somebody from your instruction , your advice , whatever , that person could come back and then sue you for negligence , which is a civil claim . So you've got criminal charges and civil claims .

And so it's really important that I think you know academicians , you know , cover these laws when they get into these risk management strategies , to dive deeper into these topics from a legal perspective and provide that education to the students and for fitness managers and owners also to do the same with their staff training programs , you know , to provide that

education to the students and for fitness managers and owners also to do the same with their staff training programs , you know , to provide that education to help minimize their liability as well . So that's kind of in a nutshell what we covered in the article .

I had to read it a couple of times in a few spots , because it's not something that I'm used to digesting subject matter on . I can read exercise physiology all day long , but now I'm reading things that are a little bit more litigious in nature , and so I highly encourage everyone to read the article .

But I do have a couple of follow-up questions on both the confidentiality and data privacy piece , as well as the scope of practice . But before I even get there , I want to ask a really fundamental question . I don't think a lot of people listening realize that there are federal laws and there are state laws and that those are different .

Where do people go to even find out what these laws are ? Where's the good resource just to orient themselves to these ?

We have , I think , even a definition of that in the article , and so there's a lot of . Also we have I think it's reference number 12 , where you can go into . This is a site that provides a list of these , what they call public accommodation laws at the state level .

So you can go into that site , click on your state and then you can scroll down and see all the statutes that have been passed in that state related to all different kinds of discrimination claims and so on , and so there's a lot of the resources and the references .

If people want to get into that a little bit more and reading , you know some of the information that's available through the government sites regarding the federal laws or even the state government sites and getting into reading and understanding the laws a little bit more , I have to tell you like reading federal laws and state laws is .

Well , it's not easy , okay , you know , and sometimes they're very lengthy .

You know , and they get into a lot of detail , and so that's why we try to summarize you know some of this in the article , but for me , as a person that loves you know this whole area of legal risk management I really enjoy much more reading case law and some of the case law examples in the article .

To me it's much more interesting because these are situations that actually have happened in a fitness facility or a fitness wellness program , and so that to me , makes it more relatable and more interesting and you learn a lot from reading cases and case law .

So , anyway , a lot of times you can just even search these cases by title and they're on the internet and you can get a summary of the case . So , but yeah , I think just you know , diving into some of the resources that are out there provided by our federal government and state governments to learn a little bit more about these laws .

a pound of cure . You get ahead of it up front . So how do you think about that ?

So you're kind of jumping the gun a little bit into our part two , because part two we get into one of the competencies is about preparing a risk management policy and procedures manual , and so this is where you would have policies and procedures that reflect these laws .

You have them summarized in policies and procedures , and we recommend that you have legal counsel assist you in the development of those policies and procedures , especially those that relate to laws , and so that is , I think , really important .

When I worked out in the real world , it was great for me because I worked for a nonprofit organization , the YMCA and the YWCA , and we had individuals on our board of directors who were medical experts and legal experts , and we would form what we called a risk management planning committee and we would meet periodically to talk about , okay , what are you know ,

the policies and the procedures that we need to follow , and back then , you know , 50 years ago , it was not near as complex as it is now in terms of the number of laws .

You know that , you know that fitness facilities need to comply with and so , anyway , yeah , I definitely think , having a lawyer , legal counsel , you know , a law firm that you work with to help you develop your policies and procedures and , of course , all of your contracts you know , if you have a membership contract , you have a waiver or a release of liability

contract , these all have to be , you know , approved , reviewed and approved by legal counsel to make sure they reflect state law . So there's a lot of reasons , you know , complying with laws , developing your contracts , you know , to making sure that you know that you're following the law and complying with it the best that you can .

But make sure then that you send it off to your lawyer to review it , to edit it and to make sure that it's complying with state law and federal laws .

And , of course , you know , not complying with federal laws , like HIPAA , you know , those fines , those financial penalties , also can be in the millions of dollars .

Broadly speaking , how would you advise fitness organizations to prepare for being held to that HIPAA standard ? What should they be thinking about and what should they be doing in preparation ?

But I think when , let's say , an entity like a healthcare organization , a clinic , whatever they want to contract with you as a business associate , first of all for them to do their due diligence , they are going to probably require that you send them how you have ensured that you are following the privacy , security and breach notification rules .

What policies and procedures do you have in place , and have your staff members been well-trained on those ? And so they probably will want verification from the fitness facility , the exercise professional that they have indeed addressed .

You know those requirements and because a lot of times what can happen is the covered entity could be liable for the business associate , the business associate is not following the HIPAA rules , and then there is a data breach of some type . Not only would the business associate be liable , okay , and face financial penalties , but also that covered entity could .

So that's why those covered entities will probably do their due diligence to , you know , help ensure that that business associate who they're contracting with has , you know , met those standards and the regulations that are involved .

So it's really , you know , diving into what are all those requirements the privacy , you know , the rule , the security rule , what are all of those ? And then setting up your policies and procedures . And again , you know , the other thing that we mentioned . I think we get into this maybe in part two , but the importance you know of insurance .

You know is also important as a risk management strategy . But cybersecurity insurance , okay , given the numerous data breaches that occur every day and we know this is very prevalent , but you know , having a cybersecurity expert help are going to be necessary to protect your business and to protect yourself .

And we're very good , I feel like in our industry because we've done it for a while of having general liability insurance and professional liability insurance and I don't think anyone would ever think of opening up a fitness facility without those things . But I don't think we're as attuned to the cybersecurity element .

So we'll be on the lookout for article number two to learn more about that .

But my last question , before we kind of bring this to a close , is around scope of practice , and I maybe have saved the most difficult question for last , because scope of practice , I feel like , is always such a gray area , and the area where I feel like it gets gray is when there are orthopedic issues that are an ache or a pain versus a formal injury that

might require diagnosis , or somebody has a chronic condition that they're exercising to improve , and so how do you think about drawing the lines around scope of practice for an exercise professional ? Because I feel like they work with such a wide variety of individuals , it's easy for those lines to get blurred , but it's important that they don't .

So how do you think about that ?

You know certain aches and pains , you know as we're working with them , or whatever , and what do we do in terms of our scope of practice ? Go ahead , did you have a quick ?

If you do a health history and people indicate they have X , Y and Z , you would probably require medical clearance where that healthcare provider signs the form and then that establishes that relationship between the exercise professional and the health care provider . And then staying in contact and communication , you know , with them .

Obviously you'd have a medical release signed before you would send any information to your client's physician because of you know , privacy and security kinds of things . But I think also you know when in doubt okay , you know people are complaining like a knee pain or shoulder pain or whatever it might be .

Your scope of practice is not to say , well , I think you have a rotator cuff injury or some kind of ACL injury . You would not say something like that . Okay , you would just say , look , I think if your pain and discomfort continues , you need to see your physician or your healthcare provider for a diagnosis .

You know and you know , and especially like , if they're experiencing , you know understanding the difference between pain and working a muscle or a joint group , okay . And so you know the exercise professional really needs to , you know , understand that and that distinction .

You know when somebody's experiencing pain or is it just , you know the discomfort , you know of maybe working the muscle group . You know that comes with fatigue or whatever . You know and making that distinction .

But then you know if they're continuing to have pain , your scope of practice would definitely be to refer them and not , you know , try to figure out what it is or say what it is , but just say , look , you know , if this continues , you need to get in and see your physician or your healthcare provider for a diagnosis .

So I think we got to , you know , kind of need to know , like I did , like you said , a gray area . But I say , you know , be careful , be cautious , you know , and always kind of err on the side of conservatism , and you know working with a client and you know we're here to help people and I think we always want to get across to the individual .

You know we really want to help you , but now you're having something there I can't help you with and you need to see your physician , you know , to get a diagnosis and some treatment perhaps .

So if you're making that referral , you're opening up that channel of communication . That's only going to result in a better relationship for you as an exercise professional with a provider and also it's going to put your client or your patient in a better position .

So I think that is a great way to eliminate the ambiguity there and you know when in doubt make the referral .

But you know , I think also , you know , having that two-way communication , and if the physician gives you some information about this particular exercise to do or to not do , well , then you follow that , you know , and so that's you know .

Another thing , like on a medical clearance form , you know , if the physician indicates any kind of contraindications , well it's up to that exercise professional to make sure they understand what those are and then to follow them , you know and adhere to that guidance from the health care provider .

You know things like that that are also reflected in those risk management competencies . So a little bit different approach in part two , but Great .

Acsm had asked me a couple years ago to develop a continuing education course , and if you go to the last page of the article there's the QR code that you can scan and that takes you right to that ACSM course . It's called Law for Fitness Managers , and so you can go right to the site and learn a little bit more about that course .

But I would really recommend for fitness managers and all exercise professionals to really take that course , especially if their academic programs didn't really cover very much , you know , regarding the law and legal liability .

They could at least get kind of a good overview of some of these legal and risk management responsibilities that they have and through by taking that course , you know . So I would recommend that course .

So we'll make sure we link up to that as well as the article on the show notes page . And , joanne , the last question that I'm asking all of our guests in this podcast series is if you could give our listeners the exercise professionals that are listening one piece of advice to advance and elevate our profession . What would that one piece of advice be ?

You know lawsuits are increasing , you know discrimination claims are increasing , unfortunately , and , like you said , they can be very costly , and so the best way to combat all of that is to learn the law and learn how to apply the law in your practice , and so it takes some effort , but there's a lot of reward to that , because I also think when you are

following the laws and our standards in the field , the quality of the programs that you're providing for your participants is also much higher . It's an automatic outcome of following and having a good risk management plan for your program and your facility .

So that would be my one piece of advice is just to take the time and to take a course and learn some of these things and encourage your colleagues to do the same .

Any information we'd like to share with you from today's episode can be found in the show notes page . That's by going to wellnessparadoxpodcom forward slash episode ACSM9 . That's forward slash ACSM9 .

Please be on the lookout for our next episode in this series when it drops next Monday , and don't forget to subscribe through your favorite podcast platforms Until we chat again next week , please be well .