TN 11 (11-11)

RS 02101.208 Practical and Registered Nurses

A. Definitions

1. Practical nurse

A practical nurse completes a practical nursing program and is State-licensed to provide routine patient care under the direction of a registered nurse or physician.

2. Registered nurse

A registered nurse is a skilled professional trained to render technical assistance in administering medications and treatment to sick, elderly, injured, or recuperating individuals.

B. Nurses as employees

A nurse who works for a hospital, clinic, nursing home, public health agency, or as an office attendant for a private physician is an employee when he or she:

  • works full time on the regular staff;

  • works for a salary and follows prescribed routines during fixed hours when not available for private duty nursing;

  • integrates his or her services into the employer's business; and

  • is supervised (the employer has the right to supervise and set the order of services).

Private nurses are employees when the employer can control what work is done and how it is done. The nurse may work full time or part time. The employer may hire the private nurse through an agency or from a list provided from an agency or association. The employer may pay the nurse hourly, daily, weekly, or by the job.

C. Nurses as independent contractors

A nurse is an independent contractor when he or she:

  • has full discretion to administer professional services. Full discretion is present even though the nurse may be subject to the supervision of the attending physician;

  • holds himself or herself out to the public, as exercising an independent calling requiring specialized skills;

  • is not retained full time by a nursing service purchaser and is available for private duty nursing; and

  • is retained full time by the nursing service purchaser. The work relationship between the purchaser and the nurse will terminate when the job is complete.

D. Practical nurses’ roles

The role of practical nurses has changed from domestic to qualified semi-professional.

  • Statutes in all 50 States require that an individual must successfully complete a prescribed course of formal training and pass the State's licensing exam before qualifying as a licensed practical nurse.

  • The nursing and medical professions generally recognize licensed practical nurses as qualified to render nursing services.

  • Hospitals, clinics, nursing homes, etc., frequently engage licensed practical nurses as employees of their regular staffs, as they also engage registered nurses. In these situations, the licensed practical nurses are subject to the institution’s control and direction, work for a salary, and follow prescribed routines during fixed hours.

E. Private duty nurses’ services

Licensed practical nurses that perform private duty nursing, as in the case of registered nurses, ordinarily have discretion over their nursing services.

  • Although there may be situations where they follow the instructions of an attending physician or registered nurse, they are not subject to supervision or control by the person for whom they are rendering services.

  • In private duty nursing, licensed practical nurses usually perform their services under the same conditions as registered nurses.

  • A visiting nurse is an example of a private duty nurse.

  • The titles “vocational nurse” and “attendant nurse,” as used in some States, are synonymous with “practical nurse.” See SSR 62-30 , C.B. 1961-1965, p.162.

F. Factors of nursing services

Consider the complete facts and circumstances when you make an employment relationship determination. In most cases, you may resolve the status of a nurse's services based on:

  • the type and nature of the services;

  • the control exercised and by whom;

  • the type of license, if any, held by the worker; and

  • evidence to establish, if the worker performed the services as an independent trade, business, or profession.

In some cases, you may need to consider other factors, such as pay rate, to determine the status of services. For example, practical nurses generally charge approximately three-fourths of the rate that a registered nurse charges. Charges that are substantially less than this may indicate domestic services.

G. Unlicensed nurses’ services

Nurses' aides, domestics, and other unlicensed individuals may classify themselves as practical nurses.

  • In general, they are not trained or equipped to render professional or semi-professional services according to the professional concept of “nursing.”

Unlicensed nurse’s services are similar to those performed by domestic workers.

  • Those services include bathing, grooming, reading to patients, arranging bedding and clothing, preparing and serving meals, and occasionally giving oral medication left in their custody.

  • They are subject to supervision and control, regardless of whether they work for a medical institution, physician, or in a private household. For coverage rules for domestic services performed in a private home, see RS 01901.200.

EXAMPLE 1: Mary Lamb was confined to bed at her daughter's home with an incurable respiratory ailment. At the doctor's suggestion, two licensed practical nurses were engaged to care for her during two consecutive eight-hour shifts. The nurses’ duties included bathing Mrs. Lamb, changing her attire and bedding, feeding her, administering medications at intervals prescribed by the doctor, keeping a pulse and temperature chart, and notifying the doctor of any changes in her condition. To monitor changes to her condition, the nurses rented portable oxygen equipment and administered oxygen when her breathing became labored. Mrs. Lamb’s daughter also administered oxygen to her mother when neither nurse was on duty.

The daughter did the general housekeeping and prepared all meals for Mrs. Lamb and the nurses; however, the nurses kept Mrs. Lamb's room clean and occasionally helped her daughter's children get ready for school. When the daughter became ill, the nurses did some of the household chores. Both nurses consistently reported their net earnings from private duty as self-employment income, and did so in this case.

The services administered were primarily to provide for Mrs. Lamb's medical needs. The nurses had always held themselves out as self-employed and reported their earnings accordingly. The nurses voluntarily performed the domestic services without the control of any member of the household. It appears from the facts that the nurses correctly reported their earnings as independent contractors.

EXAMPLE 2: Al Morgan obtained the services of a registered nurse through a directory of nurses. Although he had no ailments that required medical attention, he wanted a registered nurse in attendance at all times. The nurses’ duties were to read to him, handle his mail, take him for walks, eat meals with him and, in general, act as a companion. Mr. Morgan directed and controlled the manner and order in which the nurse performed her services. Whenever Mr. Morgan contracted minor ailments, the nurse administered medications left by his physician, but these duties were subordinate to those she regularly performed. Consequently, her services were those of an employee under the common-law control test. For common-law control test on classifying workers as employees, see RS 02101.020.

H. Reference

IRS Publication 926, Household Employer’s Tax Guide

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RS 02101.208 - Practical and Registered Nurses - 11/10/2011
Batch run: 07/03/2014