A licensed practical nurse performed nursing services in the home of a patient who had engaged her from a registry of practical nurses. Her services consisted primarily of the administration of medication and treatment prescribed by 2 physicians. She received little direction and control from the patient. Held, the practical nurse was not an employee of the patient but was engaged in a trade or business, the income from which is includible in computing her net earnings from self-employment.

R, a practical nurse, inquired at a social security district office whether she or the patient who had engaged her services was responsible for reporting her remuneration to the District Director of Internal Revenue, so that she could be credited with these earnings for purposes of old-age, survivors, and disability insurance. (The patient, B, had refused to report the earnings). The answer to R's question depends on whether she was B's employee or was self-employed. If she was B's employee, B must report R's wages (and pay taxes thereon, as required by the Federal Insurance Contributions Act), which wages would then be entered on R's social security earnings record. On the other hand, if R was self-employed, she cannot be credited with self-employment income for the year unless she reports such income to the District Director of Internal Revenue as required by the Self-Employment Contributions Act.

R had graduated as a practical nurse from the X Hospital and had recently passed a State examination for licensing. She was listed as a practical nurse in the telephone director and in a registry of practical nurses.

R was engaged by B from a registry of practical nurses to perform nursing services for B in B's home. She worked an 8-hour shift, 7 days a week. R's duties consisted of administering medicines, giving hypodermic injections, enemas, alcohol rubs, baths, and keeping a chart of the medications given. She also served food to B and washed the dishes used by B and herself. R was furnished instructions about her duties by the two attending physicians. Although she ministered to B, she was for the most part not subject to supervision or direction by B.

Under section 210(j)(2) of the Social Security Act, the term "employee" includes an individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. Whether an individual is an employee under such rules depends upon the facts in each case. The guides for determining whether an employer-employee relationship exists are found in Regulations No. 4, § 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 service, 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.

In the past several years the status of practical nurses as a group has undergone a change from one of a practically domestic role to that of a qualified semi-professional. Almost uniform statutes now in force in all 50 States require that before qualifying as a licensed practical nurse an individual must successfully complete a prescribed course of formal training and pass the State's licensing examination. By reason of these training and licensing requirements the nursing and medical professions generally recognize licensed practical nurses as qualified to render nursing services in all but the most acute or complex cases.

Licensed practical nurses who perform private duty nursing ordinarily have discretion in the exercise of their nursing services. Although they may follow instructions of an attending physician, they are for the most part not subject to sufficient supervision or control by the person for whom they are rendering services to warrant a finding that their services are performed in an employment relationship.

As in all situations where a determination as to the existence of an employment relationship is required, the complete facts and all circumstances must be considered. The pertinent factors which are of primary significance in determining whether an employment relationship exists between a licensed practical nurse and a person for whom the services are performed are: (a) the type and nature of services performed; (b) the control exercised and by whom; (c) the type of license, if any, held by the individual; and (d) whether or not the services were performed in the conduct of an independent trade, business, or profession.

R held herself out as being available to perform services as a practical nurse by being listed in the telephone directory and in the nurse's registry. She had completed formal training and was licensed according to State requirements. The services she performed were semi-professional in nature rather than those of a domestic, consisting of the administering of medications and treatments prescribed by the attending physicians; and in the performance of these services she was subject to little direction and control by B. The only domestic service rendered by R was the washing of B's dishes, which was incidental to the nursing duties.

Accordingly, it is held that R was not an employee of B since there did not exist, under the usual common-law rules, a sufficient right of control to establish the relationship of employer and employee between R and B.

When a person is regularly engaged in an occupation or profession for profit and, as to such occupation or profession, is not an employee, he is generally self-employed and, with certain exceptions not pertinent here, his net earnings from such self-employment can be credited as self-employment income. Accordingly, it is further held that R, in performing services as a practical nurse for B, was self-employed. Therefore, in order to be credited with self-employment income, R must report such income to the District Director of Internal Revenue as required by the Self-Employment Contributions Act.

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