20 CFR 404.1004(c)
G had completed a 10-hour course of training as "patient helper." The course was taught by hospital personnel and consisted of training in such hospital procedures as bathing patients, changing their bed linen, feeding them, and assisting with all their personal needs. Upon successful completion of the course, G received a certificate which qualified her to wear a special uniform and a name tag identifying her as a patient helper. Her name was placed on a special registry maintained by the hospital for such individuals. If a patient requires the services of a patient helper, generally the first person on the list is called. After the person has worked and is finished with the case, her name is placed at the bottom of the list. However, the patient may select any patient helper on the list. The hospital's primary concern is that each patient helper has an opportunity to be selected an equal number of times. The patient also has the final authority to terminate the patient helper's services if he is not satisfied with the performance of such services.
If the services are performed in the hospital setting, the patient helper is directly responsible to the nurse in charge of the unit. If the services are performed in a patient's home, the patient helper receives instructions from the attending physician as to what type of nontechnical medical care the patient requires. For her services she is paid by the patient at a rate established by a patient helpers' organization, which is subject to change by vote of the members of the organization. Although a normal working shift is 8 hours, this may be curtailed or extended by mutual agreement of the patient helper and patient. Each patient helper furnishes her own uniform, shoes, etc. The uniform is not required by the hospital.
In order that remuneration for G's services as a patient helper may be properly reported and credited to her earnings record for social security purposes, a determination must be made as to whether these services were performed as an "employee" in employment or whether they were performed as a self-employed individual.
The term "employee" as defined in section 210(j)(2) of the Social Security Act, includes an individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. On the other hand, a person who is regularly engaged in an occupation or profession (nor otherwise excluded from the self-employment provisions in section 211 of the Act) is considered self-employed in a trade or business within the meaning of section 211(c), and the income from such trade or business is includable in computing his net earnings from self-employment. Whether an individual is an employee under the usual common-law rules, or whether he is self-employed under the provisions of section 211 of the Act, depends upon all the facts and circumstances in the particular case. The guides for determining whether an employment relationship exists are found in section 404.1004(c) of Regulations No. 4 of the Social Security Administration (20 CFR 404.1004(c)). Generally, such relationship exists when the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the manner and means by which that result is accomplished.
Generally, registered professional nurses and licensed practical nurses engaged in private duty nursing are considered to be self-employed. (See SSR 62-30, C.B. 1962 p. 43) These nurses are skilled professionals who have successfully completed prescribed courses of formal training and passed the State's licensing examination. Such nurses hold themselves out to the public as exercising an independent calling requiring specialized skills. Although some of their duties may be domestic in nature, they are incidental to their regular professional duties. They ordinarily have full discretion in administering their professional services and are not subject to a sufficient degree of control and direction to warrant a finding of an employment relationship.
Normally, an individual who is not at least a licensed practical nurse will not possess sufficient special skills to render services which are medical and professional in nature. In this connection, nurses' aides and other nonlicensed individuals who may classify themselves as practical nurses, are generally not trained or qualified to render professional nursing services according to the professional concept of nursing. These individuals frequently perform duties usually performed by domestics, i.e., bathing the patient, changing his clothes, serving meals, etc. Such services are subject to virtually complete direction and control by the persons utilizing these services. Therefore, they are usually considered employees for social security purposes.
The evidence in the instant case shows that G was neither a registered professional nurse nor a licensed practical nurse. Although she successfully completed a 10-hour training course for which she received a certificate, she did not successfully complete a prescribed course of formal training or pass the State's licensing examination for registered nurses or licensed practical nurses. The certificate she received was merely a requirement by the hospital in order to place her name on the hospital registry as an approved patient helper. Furthermore, G's duties were primarily of a domestic nature, consisting of bathing patients, serving meals, changing bed linen, lifting and moving patients, etc.
The professional nursing care of a hospital is provided by the hospital nursing staff under direct supervision of the registered nurse in charge. Although the hospital requires that the patient helpers meet certain minimum standards with respect to the services they perform in the hospital, the patient has the final authority to hire, fire, and supervise them.
Since the patients for whom G performs her services have the right to exercise a sufficient degree of direction and control in the performance of her services as is necessary to establish the relationship of employer and employee under the usual common-law rules, whether such services are in a hospital or in the patient's home, it is held that G is an employee within the meaning of section 210(j)(2) of the Social Security Act.
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