Alternative Medicine and Questionable Providers: Who Is a "Health
Care Provider" Under the FMLA?

State Licensure Requirement

Doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists and optometrists are all considered "health care providers" for FMLA medical certification purposes so long as they are licensed by the state in which they practice.

Subject to certain limitations, chiropractors, nurse practitioners, nurse-midwives and clinical social workers may also be considered to be FMLA "health care providers."

State-licensed chiropractors qualify so long as they are engaged in "treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist" and they are "performing within the scope of their practice as defined under State law." 29 C.F.R. section 825.118(b)(1).

State-licensed nurse practitioners, nurse-midwives and clinical social workers also qualify so long as they are "performing within the scope of their practice as defined under State law." 29 C.F.R. section 825.118(b)(2).

Exceptions to the State Licensure Requirement

The FMLA also accepts Christian Science practitioners, provided they are listed with the First Church of Christ Scientist of Boston, Massachusetts, and subject to the employer's right to require a second or third certification from a non-Christian Science health care provider, unless such a requirement is prohibited by state or local law or by a collective bargaining agreement. 29 C.F.R. section 825.118(b)(3).

More broadly, if the employer or the employer's group health plan's benefits manager will accept certification of a serious health condition to substantiate a claim for benefits from another type of provider, such as a substance abuse program (See Washington v. Bosch Braking Sys. Corp., 1999 U.S. Dist. LEXIS 21361 (W.D. Mich. 1999), at *9), such a provider qualifies as a "health care provider" under the FMLA.

Finally, the FMLA recognizes health care providers who practice outside the United States who are authorized to practice according to the law of that country and who are "performing within the scope of his or her practice as defined under such law." 29 C.F.R. section 825.118(b)(5).

David T. Ball, Schottenstein, Zox and Dunn Co., LPA. You can contact Mr. Ball at dball@szd.com.

Council's FMLA Update 2007 and Certificate Program in FMLA and ADA Compliance and Best Practice are programs that will provide you with the latest legal developments and best practices to ensure you have the practical knowledge and tools necessary to comply with the Family and Medical Leave Act. Plus, Council offers numerous Webinars that explore the details of the FMLA. For information on dates and locations, click on the links above.