SECTION 218(s).-STATE AND LOCAL COVERAGE-COMMISSIONER'S RULING ON STATE'S REQUEST FOR REVIEW-KENTUCKY— STATUS OF PART-TIME MEDICAL CLINICIAN SSR 70-44 A physician is employed on a part-time basis by a county health department, an extension of the State Department of Health, pursuant to State law authorizing such employment, to conduct physical examinations of school and preschool children and school personnel. The county health department has the right to set the number of hours and days of work, the location, requires a written report of the work completed and has the right to hire or fire such physician subject to approval by the State Department of Health. The Commissioner affirmed an assessment under section 218 of the Act on the ground that such physician is an employee of the State and not self-employed, and hence covered under the State's section 218 agreement. The State of Kentucky timely requested a review pursuant to section 218(s) of the Social Security Act of an assessment of contributions due. The Secretary of Health, Education, and Welfare has delegated to the Commis sioner of Social Security authority to make reviews and findings and to give notice of his findings as required by section 218(s). The assessment made was based on the Administration's determination that the services of a phyician as a "part-time medical clinician" were performed as an employee of the State and covered under the State's coverage agreement. The State is of the view the individual was self-employed. The facts in this matter establish that the clinician, a retired physician licensed to practice medicine in Kentucky, was engaged by the Graves County Health Department, an integral unit of the State Department of Health, in 1958 and 1959 and again from May 1964 through January 1966 on a part-time but regular basis to conduct physical examinations of school and preschool children and school personnel at clinics set up by the health department. County health department officers in Kentucky are authorized by State law to employ and fix the compensation of medical, professional, and other employees subject to the approval of the State Department of Health. The clinician's services were engaged pursuant to this authority and his appointment was approved by the State Department of Health. He had no written contract and was paid by the hour for the services he performed. The clinic operated at various locations in the county. The locations were determined by the county health department officials as were the days of operation-usually 2 days a week. There is some conflict regarding how the hours of clinic operation were determined. Apparently the county health department and school officials and the clinician mutually agreed as to the hours. It would appear, however, that the final determination as to the hours of operation rested with the county health department and school officials. The clinician's duties consisted of conducting physical examinations, with the aid of full-time health department nurses, and approving and signing reports of the results of the examinations prepared by the nurses or clerks assigned to the clinic by the health department. He was not an officer of the State or county. His duties and responsibilities were not set by statute, ordinance, rule or regulation. Rather, he was instructed as to his duties by the county health department. In this regard, his duties consisted of conducting one type of physical examination and the county health department prescribed and furnished the examination report forms used. The examinations were performed on the premises of the health department and the department furnished all necessary equipment and supplies, although the clinician may have occasionally used his own stethoscope. He did not have the right to engage a substitute when he was unavailable; rather, the health department would make arrangements with another physician. He retained the right to practice privately; however, it is clear that for a significant period of years before termination of his services for the health department he was retired from private practice. He was not engaged in the same manner as other employees as he was under oral contract and was not subject to the rules of the State merit system. In addition, either he or the health department could terminate his services at any time without liability. In this regard he was not subject to termination in the same manner as other health department employees who were covered under the State merit system. He was not covered by any State or county retirement system or health insurance plan. He was not paid vacation or sick pay nor was he covered by workmen's compensation insurance. His remuneration was recorded in the county health department payroll ledger. The State and local health department officials and the clinician agreed that the professional services were not directed or controlled and that the methods employed in conducting the physical examinations could not be changed. Further, he did not receive any medical instruction. Coverage was provided, effective January 1, 1951, under the Kentucky social security coverage agreement for services of employees of the State in positions not under a retirement system. County health departments in Kentucky are extensions of the State Department of Health and services in all positions of the county health departments are performed as employees of the State as it is their primary duty to enforce State health laws and the rules and regulations of the State Department of Health. The employees of these local units are paid, in part, from State funds and the salary checks issued them are signed by an officer of the State Department of Health. In addition, the State Department of Health must approve the employment and compensation of all prospective employees of a local unit. Section (A) (2) of the Kentucky Federal-State social security coverage agreement reads in pertinent part: The term "employee" means an employee as defined in Section 210(k) of the Social Security Act. . . . Section 210(k) of the Social Security Act was redesignated as section 210(j) by the Social Security Amendments of 1960. In pertinent part, sec-. tion 210(j) reads as follows: The term "employee" means (2) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee; Subpart K of Social Security Regulations No. 4, in pertinent part, provides as follows: Section 404.1004 Who Are Employees (c) Common-Law Employees.-(1) Every individual is an employee if under the usual common-law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. (2) Generally, such relationship exists when the person for whom 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 details and means by which that result is accomplished; that is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee under the usual common-law rules. Individuals such as physicians, engaged in the pursuit of an independent . . . profession, in which they offer their services to the public, are independent contractors. . . . ... The Kentucky Revised Statutes, as pertinent hereto, provide: A health officer may employ and fix the compensation of, by contract or otherwise, subject to the approval of the State Department of Health, all medical, technical, clerical, professional and other employees necessary for the maintenance and operation of the local health department. . . . There is agreement as to the above facts. The State, however, is of the opinion this clinician and other part-time medical clinicians in the State are independent contractors. It is the State's position, in line with the views of the State Commissioner of Health, that a licensed physician in Kentucky cannot be legally directed or supervised by a lay person in the performance of a medical procedure or act. Further, not even a registered nurse can tell a physician how to give a physical examination. Since the administrative assistant of the county health department was a lay person, he had no right to direct or control the manner in which the physical examinations were performed nor did he attempt to do so. The administrative assistant was only concerned with the results of the clinician's services. It is the position of the Social Security Administration, based on the totality of the situation, that the services of the part-time medical clinician were performed in an employment relationship with the Kentucky State Department of Health, and covered under the Kentucky Federal-State agreement. The clinician was employed in connection with fulfilling government responsibility of maintenance of general health and welfare. The evidence shows that the health department had direct control and supervision over the clinician in relation to both the duties he was to perform and the manner of their performance. The administrative assistant first stated that he felt he could give instructions not only about what work was to be done, but also about the methods to be followed in doing the work. He and the State Commissioner of Health later contended that the clinician was not subject to control or direction as to the means and methods for accomplishing his duties. It is clear, however, that the health department specified the days and hours to be worked, the persons to be examined, the staff that would be present to assist in the examinations, the type of examination to be conducted and the form of the reports upon which the results of those examinations were to be filed. In addition, the health department furnished the necessary physical equipment and supplies for the examinations and the examinations were conducted upon the premises maintained and furnished by the health department. The local health unit had the right to discharge the clinician without notice and, in the event of his absence, could arrange for another physician to make the examinations. The clinician did not practice medicine but merely examined school personnel and reported his findings. Although he retained the right to practice privately, it is clear that for a significant period of years before termination in 1966 of his services for the health department he was retired from private practice. While the duties of a medical clinician normally involve judgment, intelligence, discretion, and medical knowledge, in this situation the clinician did not perform many of the duties generally associated with medical practice, such as giving treatment or advice to the ill. His professional discretion and specialized skills were thus not fully utilized. The functions that he did perform were of such nature as to be easily supervised and controlled by a nonphysician since they were basically routine and unrelated to his professional discretion, if not his skill. The Commissioner found, on review pursuant to the State's request, that the services of the part-time medical clinician were performed as an employee of the State of Kentucky and were covered under the terms of the Kentucky social security coverage agreement. On the basis of this finding, the Commissioner affirmed the assessment. SECTION 218(s).-STATE AND LOCAL COVERAGE-COMMISSIONER'S RULING ON STATE'S REQUEST FOR REVIEW-NEBRASKA REGISTRARS OF VITAL STATISTICS 20 CFR 404.1270404.1274 SSR 68-51 Pursuant to the State's request for review under section 218(s) of the Social Security Act, the Commissioner affirmed assessments made on the basis that services performed by wage earners as registrars of vital statistics, were performed as employees of the State and thus were covered under section 218 of the Social Security Act and the Nesbraska agreement for coverage of State and local employees. The State of Nebraska timely requested a review pursuant to section 218(s) of the Administration's assessments of contributions due. The Secretary has delegated to the Commissioner of Social Security authority to make reviews and findings and to give notice of his findings as required by section 218(s). The assessments were based on the Administration's determination that the services of all registrars of vital statistics were performed in an employment relationship with the State and were covered under the terms of the State's section 218 agreement with the Secretary. There are 94 registrars of vital statistics in Nebraska performing services under substantially similar conditions. They are appointed by the State Department of Health and serve during the pleasure of the Department. Their duties involve the reporting of births and deaths to the Department of Health. In this connection, the State furnished each registrar with a Manual of Instructions for County Registrars, which provides, in part, that: "The county registrar, subject to the direction and supervision of the Bureau of Vital Statistics, is responsible for the registration of all births, deaths, and fetal deaths (still-births) in his registration area." In addition, the Director of the Bureau of Vital Statistics visits local registrars occasionally and they are furnished periodic letters of instruction or advice. They are compensated for their services by fees paid by the County in which they serve. The Revised Statutes of Nebraska, as pertinent hereto, provides: 71-601 Vital statistics; duties of Department of Health. The Department of Health shall provide for the registration of births, deaths, marriages and divorces, and shall promulgate such rules as are necessary to carry out the purpose of sections 71-601 to 71-616. 71-602 Vital statistics; local registrars. The Department of Health shall appoint municipal or county clerks as local registrars, who shall have such territorial jurisdiction as may be conferred on them by the Depart ment. 71-603 Local registrars; term; deputies. Local registrars shall hold office during the pleasure of the Department of Health. They shall, immediately after their appointment, select deputies to act for them when they are absent, ill, or otherwise disqualified. 71-605 Death certificate; burial permits; how executed. (1) xxxx (2) xxxx (3) A completed death certificate shall be filed with the registrar of the county in which the death occurred before the body is interred, deposited in a vault, or otherwise disposed of. If it is impossible to complete the |