FMLA-63 — Limitations on treatments by chiropracters to meet "health care provider" definition

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

June 19, 1995 FMLA-63

Dear
Name*,

This is in response to your letter of May 3, 1995, regarding the Family and Medical Leave Act of 1993
(FMLA) final rule published on January 6, 1995, in the Federal Register. Specifically, you request that
certain limitations on treatment that a chiropractor may perform in order to be recognized as a "health
care provider" for FMLA purposes be eliminated.

The FMLA entitles eligible employees to take leave for a serious health condition (of either the employee
or an immediate family member). "Serious health condition" is defined to include an injury, illness,
impairment, or physical or mental condition involving either inpatient care or "continuing treatment by a
health care provider." In addition, FMLA's medical certification provisions allow an employer to request
that leave for a serious health condition "...be supported by a certification issued by the health care
provider..." of the employee or family member. Section 101(6) of the Act defines "health care provider" as
a doctor of medicine or osteopathy authorized in the State to practice medicine or surgery (as
appropriate) or "any other person determined by the Secretary [of Labor] to be capable of providing health
care services."

Based on FMLA's legislative history, it is clear that Congress included the medical certification provisions
to enable employers to have a check against employee abuse of the law's leave entitlement. Only health
care providers' qualified to provide reliable medical information that supports the existence of serious
health conditions (as defined by FMLA) can fulfill that role when employers request medical certifications
to support FMLA leave requests.

After reviewing definitions under several programs, including rules of the U.S. Office of Personnel
Management and Medicare, the Department of Labor developed FMLA's regulatory definition of "health
care provider" by beginning with the definition of "physician" under the Federal Employees' Compensation
Act (FECA) (5 U.S.C. 8101(2)). Also included from the FECA definition are podiatrists, dentists, clinical
psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of
the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State
and performing with the scope of their practice as defined under State law. Added to FMLA's definition
are nurse practitioners and nurse-midwives (who provide diagnosis and treatment of certain conditions,
especially at health maintenance organizations and in rural areas where other health care providers may
not be available) performing within the scope of their practice as allowed by State law. The FMLA's
definition includes Christian Science Practitioners to reflect the Congressional intent that such
practitioners be included as expressed in colloquies on the floors of both the House and Senate, and
reflected in the Committee report accompanying Title II of FMLA applicable to Federal civil service
employees. Finally, the definition was expanded to include any health care provider that is recognized by
the employer or accepted by the group health plan (or equivalent plan) of the employer.

The rulemaking reflects a careful balancing of public comments on the issue. These comments ranged
from employer representatives that supported the most narrow definition of "health care providers" over
concerns that other persons would not be qualified to provide the reliable medical information
contemplated by FMLA's medical certification provisions, to employee advocate groups that supported an
expansive definition to include all those who give treatment of any kind.

We appreciate receiving the benefit of your views in this matter. We believe that the above-mentioned
refinements in the final rule should take care of those circumstances where the employer or the
employer's plan is willing to accept medical services by a chiropractor that go beyond the treatment
specified in the definition.

Working to Improve the Lives of America's Workers Page 1 of 2

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

I hope that this letter has been responsive to your needs. If I may be of further assistance, please do not
hesitate to contact me.

Sincerely,

Daniel F. Sweeney
Deputy Assistant Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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