The short answer is “yes.” But the real question that coaches should ask is “How big is the risk?” According to some research[1] by our law firm of 31 state laws on the unlicensed practice of medicine, conducted from January through May 2022, the vast majority of the surveyed states had not taken any action on such unlicensed practice. Our research included determining whether any cases against unlicensed persons were documented and asking a medical board representative whether they were aware of any such cases and whether the board prioritized pursuing such cases. Many of the state medical boards did not prioritize taking such action. The states we reviewed and summarized findings are listed in the following table:
| State | Any Known Cases of Unlicensed Practice of Medicine by Coaches? | Any Desire by Licensing Board to Take Action Against Unlicensed Individuals? |
| Alabama | No | Not really. Likely to get a warning on first offense. |
| Alaska | No | Unable to connect with board |
| Arizona | No | Unable to confirm with board |
| Arkansas | No | No |
| California | Exception in Statute BPC § 2053.6 | As long as exception in statute met, likely not. |
| Colorado | No | Unlikely first offense fine would be more than $500. |
| Connecticut | No | Not sure. |
| Delaware | No | No |
| Florida | Yes, but not medicine. Dietetics. See below on Florida Dietitian | Not sure |
| Georgia | No | Unable to confirm with board |
| Hawaii | No | Unlikely first offense fine would be more than $1000. |
| Idaho | No | No |
| Illinois | No | Unable to confirm with board |
| Indiana | No | Yes. If unlicensed individual gave medical or nutritional advice, board would likely charge them with a level 5 felony and prohibit that individual from applying for state’s license until they have served their time in jail and paid the fine. |
| Iowa | No | Stated they would likely pursue violators of unlicensed practice of medicine as a Class D felony, but our research found the board issuing cease and desist letters to unlicensed technicians in a laser center. |
| Kansas | No | No, unless someone gets harmed. |
| Kentucky | No | Yes, if the unlicensed person had financial gain from the unlicensed practice. |
| Louisiana | No | No |
| Maine | No | No |
| Maryland | No | Unable to confirm with board |
| Massachusetts | No | No |
| Michigan | No | No |
| Minnesota | No | Unable to confirm with board |
| Mississippi | No, but see dietary advice case, below | Unable to confirm with board |
| Missouri | No | No |
| Montana | No | No |
| Nebraska | No | Unable to confirm with board |
| Wisconsin | No | No |
Despite the lack of enforcement by most states in the above table, there have been a couple of headlines showing how health coaches in Florida and Mississippi have been penalized. Both individuals dietary and nutrition advice without any type of health professional license, such as a medical license or dietitian license or certificate. Also, as noted below, there were other nutrition-based cases in North Carolina and Ohio, described below, as well as some cases against fitness professionals. Overall, however, the cases are sparse. As our firm often tells our clients, if anyone is likely to complain about health and wellness coaches, it will be licensed professionals who feel threatened by the coach’s business model. Nevertheless, health and wellness coaches should be aware of the different ways they could be pulled into litigation. The rest of this blog provides some high level guidance.
State Licensing Board Action
As noted above, based on our cursory research, very few states have taken or are interested in taking action against health and wellness coaches for engaging in the unlicensed practice of a profession. But that doesn’t mean the tide will change and interest will increase at some point in the future. As a result, it is always better to mitigate your risk than take your chances with violating state licensing laws. Penalties for violating state licensing laws vary, but a typical list of penalties is as follows:
| Penalties for Violating State Licensing Statutes* |
|
A Cease and Desist Notice: Issued to any person violating this statute. The violation can result in a fine between $500 and $5000. Each day the unlicensed practice continues after the notice, a separate violation can be charged.
3rd Degree Felony: Minimum penalty — Fine of $1000 and mandatory period of incarceration of 1 year.
2nd Degree Felony: Practice results in serious bodily injury; Minimum penalty same as 3rd degree felony.
1st degree Misdemeanor: Minimum penalty is a fine of $500 and imprisonment for 30 days
*Florida’s Law: Unlicensed practice of a health care profession. Fla Stat. § 456.065 |
To prevent these types of penalties, health and wellness coaches need to be aware of how scope of practice is defined in applicable state statutes. For example, if health coaches provide “individualized” nutrition advice and services (e.g., nutrition assessments, nutrition counseling), it would likely be considered practicing dietetics without a license. However, if they stick to providing “general” nutrition education, it likely will not constitute the practice of dietetics. Ohio statutes provide guidance to help understand the distinction between what licensed dietitians do in their practice and what non-licensed individuals can do to prevent being exposed to any criminal penalties.
| Practice of Dietetics and General Non-Medical Nutrition Information |
|
Practice of Dietetics* — restricted to those with a license
Ø Nutritional assessment to determine nutritional needs and to recommend appropriate nutritional intake, including enteral and parenteral nutrition. Ø Nutritional counseling or education as components of preventive, curative, and restorative health care. Ø Development, administration, evaluation, and consultation regarding nutritional care standards.
* Dietetics. Ohio Rev, Code Ann § 4759-01, 2013. http://codes.ohio.gov/orc/4759 |
|
General Non-Medical Nutrition Information** — not restricted
Providing information on the following: Ø principles of good nutrition and food preparation; Ø food to be included in the normal daily diet; Ø the essential nutrients needed by the body; Ø recommended amounts of the essential nutrients; Ø the actions of nutrients on the body; Ø the effects of deficiencies or excesses of nutrients; or Ø food and supplements that are good sources of essential nutrients
** Dietetics. Ohio Rev, Code Ann § 4759-2-01(M), 2009. http://www.dietetics.ohio.gov/bulletins/bulletin8.pdf.
|
This practice of dietetics statute became relevant in Ohio Board of Dietetics v. Brown. [2] In this case, the defendant, who represented himself as a nutritionist, was charged with practicing dietetics as defined by the Ohio statute, R.C. 4759.01. In his practice, he performed nutritional assessments, recommended nutritional supplements, and engaged in nutritional counseling specifically for the purpose of treating certain complaints and ailments of his clients. After determining that the defendant was practicing dietetics as defined in the scope of practice in the Ohio statute, the appellate court granted the request from the Ohio Board of Dietetics for an injunction. Even though the defendant in this case called himself a nutritionist (not a registered dietitian), it made no difference in the court’s ruling. Courts may analyze the defendant’s behavior as it did in this case to determine if there was a violation of state licensing statutes.
Given that some health and wellness coaches have some level of nutrition education or knowledge, they may believe that they can provide individualized nutrition assessments, counseling. Perhaps they could do so in the states that have no licensure for nutrition or dietetics, or in the states that have only statutory certification. Of course in those states, they would need to be sure to avoid using any protected titles as specified in the statute. An excellent case to demonstrate this is the Liz Lipski case.[3] At the time of this case, Dr. Lipski possessed several nutrition certifications, e.g., Certified Clinical Nutrition and Certified Nutrition Specialist, as well as a doctorate degree in clinical nutrition. She was practicing nutrition in the state of North Carolina until the North Carolina Board of Dietetics/Nutrition denied her the right to continue her practice and recommended that she return to college to complete the requirements to become a Registered Dietitian. Instead she moved to Maryland to serve as the Academic Director of Nutrition and Integrative Health Programs at Maryland University of Integrative Health.[4] Maryland also requires a license to practice dietetics/nutrition but she could practice in neighboring Virginia as long as she does not use a title that is protected by this state’s statutory certification statute.
The Cooksey v. Futrell [5] case is relevant for health and wellness coaches who provide nutrition education on a website or by e-mail. An administrative code in North Carolina [6] states “Any person, whether residing in this state or not, who by use of electronic or other medium performs any of the acts described as the practice of dietetics/nutrition, but is not licensed…shall be deemed by the [State] Board as being engaged in the practice of dietetics/nutrition and subject to the enforcement provisions available to the Board.” [7] Cooksey started a website called “Diabetes Warrior” that provided various types of nutrition information including a fee-based “Diabetes Support Life-Coaching” service in which Cooksey charged a fee for providing individualized dietary advice. Once informed of this website, the Executive Director of the North Carolina Board of Dietetics/Nutrition informed him that his website – the part regarding the Diabetes Support Life-Coaching services — needed to be taken down because these services constituted practicing dietetics without a license. The Director stated “You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.” [8] An important lesson from this case is that fitness and wellness professionals who provide nutrition information to clients via a website/e-mail need to first seek legal counsel before providing these types of services. If not, they may run the risk of violating state licensing laws and/or administrative codes.
Civil Actions, Such as Negligence or Malpractice Cases
In the government cases just described, the issues dealt with conduct that violated state licensing statutes, not any conduct that caused harm. If individuals are harmed (physically or emotionally) due to the instruction/advice given to them by a health or wellness coach, it can lead to a various civil claims including negligence and gross negligence against the professional and his/her employer.
In Capati v. Crunch Fitness [9], [10] Mrs. Capati a young mother of two children, was taking medication for hypertension. While on this medication, her personal fitness trainer at Crunch Fitness advised her to take a variety of nutritional and dietary supplements including some that contained ephedra. One day, while performing squats at the Club, Mrs. Capati became very ill and later died of a stroke at the hospital. Her husband filed a $320 million wrongful death claim against the defendants (the trainer, the Club, and a variety of other defendants including Vitamin Shoppe Industries) seeking both compensatory and punitive damages. The trainer testified that he did give her advice as to certain foods and supplements but he did not inform her that there may be negative health consequences to consume those foods or supplements while on hypertension medication and while working out. The trainer probably did not realize that the combination of hypertension medication and ephedra can be lethal, i.e., he did not understand the precautions he needed to take for someone on hypertension medication. The case was settled out of court for over $4 million with the trainer and Club being liable for $1,750,000 and the other defendants being liable for the remaining amount.
Health and wellness coaches need to realize that any nutritional/dietary advice they provide to someone who is later harmed by that advice can lead to a negligence claim/lawsuit against them. Fitness/wellness professionals cannot claim, as a legally-effective defense, that they were unaware of any harmful consequences that occurred due to the nutritional advice they provided. Legal defenses to refute negligence lawsuits do exist but ignorance or lack of knowledge is not one of them. Health and wellness coaches can be found negligent for any harm they caused from their improper instruction or advice. It is best to only provide “general, non-medical nutritional information” (as described above) and refer participants/clients to a qualified dietitian/nutritionist or their primary care doctor for “individualized” advice. It also is important to realize that registered dietitians conduct different health screenings than health and wellness coaches. For example, they screen for all types of medical conditions and they also know the specific nutritional needs for individuals with medical conditions.
Practicing outside one’s scope of practice can also occur when a health and wellness professional does not have advanced knowledge and skills when needed, e.g., training someone with medical conditions. To meet the professional standard of care, exercise, nutrition, coaching and other professionals must be aware of individual medical conditions of the participant that can impose increased risks and know how to minimize those risks. If they do not know how to minimize the risks, the professional should refer the individual to a qualified professional who does, such as a professional with education/training/certification in clinical exercise or nutrition. This is evident in Baldi-Perry v. Kaifas and 360 Fitness Center, Inc. [11]
Baldi-Perry, a female with known back/neck injuries, informed her personal trainer (Kaifas) of her health history prior to training. He told her that he had extensive experience training individuals with such injuries and that he could design a safe program for her. One day prior to starting the training session, Kaifas informed her that he had established a new routine for her (circuit training with no/little rest periods) that was being performed by many at 360 Fitness Center. She reminded him of her past injuries and he responded by stating that she needed to trust him — he was the professional and did this for a living. So she performed the routine, but it resulted in many injuries and serious outcomes such as herniated cervical discs, surgery to decompress and fuse cervical discs, ongoing pain/medical care, and future surgery. In her negligence lawsuit, Baldi-Perry filed 27 claims against the trainer and 14 claims against the facility such as:
Against the trainer:
- Failed to perform proper health appraisal and fitness evaluation
- Failed to meet the representations made to the plaintiff
- Failed to distinguish exercises that were safe from those that were dangerous
Against the facility:
- Failed to hire properly trained personal trainers
- Failed to ensure trainers conduct proper health appraisals and fitness evaluations
- Negligently hired trainers who were not qualified to design exercise programs for individuals with injuries
Baldi-Perri won her case with a jury verdict of $1.4 million. She was awarded $980,000 (versus the $1.4 million) due to her being 30 percent at fault. This case was held in New York which has a comparative negligence rule meaning the damages are proportionally awarded based on the amount of fault. In this case, the court determined that the defendants were 70 percent at fault and the plaintiff was 30 percent at fault.
Important lessons can be learned from this case. First, clients will trust their wellness professional, such as personal trainers, and follow their instructions as demonstrated in this case. The general public often believes that if their fitness trainer or instructor is “certified” that they are automatically qualified and competent. However, just because someone has a certification, it does not carry much merit or credibility as described above. Much more credentialing information is needed to help determine if the exercise professional is qualified and competent.
Second, it is essential that only exercise professionals with advanced knowledge skills train individuals with medical conditions. About 50 percent of adults in the U.S. have at least one chronic condition and 25 percent have two or more chronic conditions. [12] Many adults in the U.S. also have major risk factors for chronic illnesses. For example, less than 50 percent are meeting the minimum cardiovascular (aerobic) physical activity guidelines and less than 25 percent are meeting the minimum muscle-strengthening activity guidelines.[13] Given these statistics, it is essential to have qualified and competent fitness staff members to lead exercise programs.
The third lesson from Baldi-Perri (and many other negligence lawsuits if the fitness field) is that employers can be held liable for the negligent conduct of their employees through the legal principle – respondeat superior. In addition, if employers do not properly hire, train, and supervise their employees, it can lead to many negligent claims against them as demonstrated in Baldi-Perri. Therefore, workplace wellness managers have a vested interest and an important legal duty to develop and implement risk management strategies when hiring, training, and supervising wellness staff members.
Key Takeaways to Minimize Legal Risk
Generally speaking, the risk of unlicensed practice of medicine by health and wellness coaches seems to be low, especially for those coaches who stay within the coaching scope of practice. Of course, if individuals are harmed by the health or wellness coach, the chance that a lawsuit or discipline by a government body increases. That is why it is imperative for coaches to have in place strong legal documents and solid coaching principles. Our firm can help you with that. Unlike other legal resources out there, we specialize in wellness law and our coaching templates and resources are tailored for health and wellness coaching practices. We also offer individualized legal services. With our breadth and depth of knowledge about everything health and wellness law, we are certain to be your “go-to” legal partner. Contact us today.
[1] Thank you to UW Milwaukee Healthcare Administration student Mark Mollenhauer for his help in conducting this research.
[2] Ohio Board of Dietetics v. Brown, 83 Ohio App. 3d 242 (Ohio App. LEXIS 88, 1993).
[3] Center for Nutrition Advocacy Web site [Internet]. Stories from the Field, Liz Lipski, Available at: http://nutritionadvocacy.org/stories/liz-lipski (last visited June 2, 2016).
[4] Dr. Liz Lipski, Available at: http://lizlipski.com (last visited June 2, 2016).
[5] Cooksey v. Futrell, 721 F.3d 226 (4th Cir., 2013).
[6] Electronic Practice, N.C. Admin. Code 17.0403 (2006).
[7] Id. at 231.
[8] Id. at 232.
[9] David L. Herbert, 1999. $320 Million Lawsuit Filed Against Health Club, The Exercise Standards and Malpractice Reporter 13(3):33,36 (June 1999).
[10] Wrongful Death Case of Anne Marie Capati Settled for Excess of $4 million, The Exercise Standards and Malpractice Reporter 20(3): 36 (May 2006).
[11] Baldi-Perry v. Kaifas and 360 Fitness Center, Inc. In: David L. Herbert, New York Case Against Personal Trainer Results in $1.4 Million Verdict, The Exercise, Sports and Sports Medicine Standards & Malpractice Reporter 4(4): 49, 51-55 (July 2015).
[12] Brian W. Ward, Jeannine S. Schiller, and Richard A. Goodman, Multiple Chronic Conditions among U.S. Adults: A 2012 Update, Preventing Chronic Disease 11: E62 (April 17, 2014). Available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3992293/ (last visited July 10, 2016).
[13] Physical Activity Objectives. Healthy People 2020. Available at: http://www.healthypeople.gov/2020/topics-objectives/topic/physical-activity/objectives (last visited June 2, 2016).