NYSBC opinion related to employment of chiropractors by physicians licensed in New York State.

I write in response to your recent inquiry regarding employment of chiropractors by physicians licensed in this state.

The fundamental principle of professional regulation holds that professional services should only be provided by those persons who have been adequately educated and trained and have provided evidence of having met acceptable standards of competence, judgment, and safety. Accordingly, sections 6512 and 6513 of the Education Law make it a violation to offer professional services or use professional titles restricted to licensees.

The hiring of licensees in one profession by those licensed in another profession is only permitted when it conforms to the legal requirements designed to protect the consumer from unlicensed practice and unnecessary charges represented by referral fees and fee splitting arrangements. For example, since section 6512 restricts certain practices to licensees in specific professions, a person licensed in one profession may not employ anyone licensed in other professions whose scopes of practice include restricted acts in which the employing licensee may not engage. Therefore, chiropractors may not employ physicians who are authorized to prescribe medication or do other medical functions not within the definition of a chiropractor's responsibilities. However, a physician may employ a chiropractor since the lawful scope of the practice of medicine subsumes the practice of chiropractic.

There is regulatory allowance for licensees to delegate professional responsibilities to certain individuals while maintaining the assurance of public safety and welfare. Section 29.1(b)(10) of the Rules of the Board of Regents on unprofessional conduct states:

"Unprofessional conduct in the practice of any profession licensed or certified pursuant to title VIII of the Education Law shall include...delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience or by licensure to perform them." [emphasis added]

Under that rule, while a licensee may delegate an act to an individual licensed in another profession, and who is trained to perform that act, it is still the licensee who is responsible under the law for the provision of all the services in his or her professional practice.

Moreover, in a 1998 opinion issued by the Department’s Office of Counsel, “any chiropractic service, provided by a chiropractor who is an employee of a physician, is limited to those services which are incident to the physician’s medical practice. Furthermore…the physician employing the chiropractor to provide those services must be competent to engage in appropriate supervision of the chiropractor’s activities. This is a consequence of the provisions of the professional misconduct statutes and regulations which govern the practices of both physicians and chiropractors.”

Finally, any person hired by a physician to provide services in his/her medical practice is an employee of that physician, not an "independent contractor." Thus, a chiropractor employed by a physician is not authorized in any way to "direct the patient's care" nor is the physician permitted to give "the chiropractor complete control" over the patients. An "absentee doctor" may be culpable under professional misconduct law, which addresses such violations as negligence and fraud.

Norman G. Cohen
Executive Secretary

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