Certification Exams and the Law
David L. Herbert
Recently some individuals within the fitness industry have addressed the issue of the “legal defensibility” of certification examinations for fitness professionals — principally, personal trainers. The issue has become of some import, due to industry efforts to enhance these professionals’ qualifications to raise their presumed competence, while, at the same time, minimizing potential legal liabilities associated with providing personal training services.
Adopting standardsCertification accreditation. Accreditation efforts began in earnest when two events occurred. The first happened when the International Health, Racquet and Sportsclub Association (IHRSA) adopted a Board of Directors’ resolution recommending that its member clubs, as of January 2006, only hire personal fitness trainers who obtained certification through a certifying agency that is accredited by the National Commission for Certifying Agencies (NCCA), or one that is recognized as an established accreditation body by the Council for Higher Education or the United States Department of Education. Fitness centers that hire 50 percent or more of their personal trainers who are in conformity with IHRSA’s recommendation are able to secure discounts on their liability insurance premiums.
Several certifying organizations have already obtained such accreditation or have opted to obtain accreditation in conformity with IHRSA’s Board of Directors resolution, including the American College of Sports Medicine (ACSM), American Council on Exercise (ACE), National Strength and Conditioning Association (NSCA), National Council on Strength and Fitness (NCSF) and the National Federation of Professional Trainers (NFPT).
Trainer standards. At about the same time that IHRSA adopted its Board of Directors’ resolution, a second event occurred to move this issue forward when others within the fitness industry moved to create the National Board of Fitness Examiners (NBFE). This Board developed a comprehensive program to recognize personal fitness trainers who have successfully passed the board examination. Individuals who have achieved certain educational standards or who have been prepared for the test by an NBFE affiliate organization, such as the Aerobics and Fitness Association of America (AFAA), can sit for the National Board. Nearly a dozen certifying organizations, including AFAA, are currently affiliated with the NBFE for these certification purposes.
The idea behind both of these efforts was to raise the “bar” as to the qualifications of personal fitness trainers by helping to ensure that only “legitimate” certifying organizations were training such professionals. The perceived need for these steps presumably came about out of a desire to avoid untoward events — mishaps — in the delivery of fitness services by such professionals, which could result in claims and suits against professionals and the facilities within which they provided service.
Defining ‘legal defensibility’Whether these described efforts will result in fewer untoward events, and thus fewer claims and suits, remains to be seen. However,what needs to be addressed and understood by professionals within the industry is the definition of the term “legal defensibility” when used in reference to any certification process. Some within the profession are now claiming that the term means protection from successful claims and suits by parties who are injured as a result of the alleged negligence of fitness professionals and the facilities within which they deliver service. When properly defined and understood, however, the term has nothing to do with any defense from negligence claims and suits. Rather, the term has reference to the ability of a certification or testing process to withstand legal challenge from those who might claim that the process is not legally valid and/or might be used as a subterfuge for arbitrary,capricious, illegal or unlawful decisions in reference to a certification, examination or employment process.
According to J. Robert Sapp, Ph.D., director of WebTycho and adjunct assistant professor at the University of Maryland University College Graduate School, Adelphi,Md., in the testing context, such as with fitness certification examinations, legal defensibility is obtained by “following the standards and best practices of psychometric principals. The document that describes these principals is the Standards for Educational and Psychological Testing, which is co-authored by the American Psychological Association, the American Educational Research Association and the National Council on Measurement in Education. Legal defensibility speaks to the design, development and deployment of the test.”
Sapp continues, “A test is generally challenged in one or more of three areas: validity, reliability and/or fairness. In this context, validity is defined by an assessment that tests what is supposed to be tested. Reliability is reflected by the consistent performance of a test. For example, if there are multiple forms on the same test, reliable test forms would give the same candidate the same score across multiple forms. Fairness means that the test only measures the testing objectives and does not favor any population class or demographic. A test may also be challenged based on its ‘cut score,’ or the minimum score necessary to pass the exam.”
Challenging legal defensibilityLegal defensibility seeks to ensure that a particular testing procedure and process does not have an impermissible or adverse effect on a protected group or does not violate a particular group’s rights. In this regard, challenges to legal defensibility can be based on, for example, the federal Civil Rights Act, which seeks to protect against discrimination based on race, color, national origin, sex or religion. Legal defensibility may also be raised when challenges are put forth to established job performance criteria or matters that attempt to exclude individuals from passing an examination or employment opportunity based on disability or handicap under such federal enactments as the Federal Rehabilitation Act or the Americans With Disabilities Act.
In regard to the meaning of legal defensibility, the Equal Employment Opportunity Commission has adopted guidelines for use by employers and others seeking to determine, through professional validation studies, whether their employment tests are job related. The guidelines should be considered by fitness professionals when seeking the real meaning of the term “legal defensibility.”These guidelines, which are contained in 29 C.F.R. (Code of Federal Regulations) Part 1607, are designed to “assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of federal law prohibiting employment practices that discriminate on grounds of race, color, religion, sex and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures. These guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results.However, all users are encouraged to use selection procedures that are valid, especially users operating under merit principles.”
Certifications are no defense“Legal defensibility,” in reference to the certification process for fitness professionals, means the ability of the process by which a certification is granted to withstand legal challenge and attack. It has absolutely nothing to do with the ability of a fitness professional or a facility to put forth a defense to a negligence claim or suit. Such a certification — whether based on an IHRSA-approved and accredited certification agency, one provided to an applicant who is trained and certified by even the best certification groups, or where one passes the NBFE examination after training and certification by an NBFE affiliate — will not provide a defense to or immunity from a negligence claim or suit. While a secondary benefit of such a certification process may hopefully provide what some may call “presumptive evidence” of qualification and competency, the defense of a negligence claim or suit pertains mainly to the ability to withstand the allegation that a breach of duty occurred that proximately caused harm or death to a client.
Those in the fitness industry should be careful to avoid communications that attempt to equate “legal defensibility,” as used in the certification context, as a concept that deals with the defense of a negligence claim or action. Certainly, in the context of certification, legal defensibility has nothing to do with either, and does not provide immunity or, in other words, freedom, from any such claims or lawsuits. Legal defensibility only relates to the process by which testing is developed and used to achieve certification.While those who are certified may be able to better withstand claims of negligence and related litigation due to the fact that legitimate certification should provide presumptive evidence of competence, each case will have to stand on its individual merits based on a professional’s adherence, or lack thereof, to the standard of care, expert testimony in reference to that matter and fact finder determinations in each case.
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Ithaca College Athletics and Events Center