DHHS Launches Physician Waiver Program
The US Department of Health and Human Services will publish a long-awaited notice in Thursday's Federal Register announcing the start of its new waiver program for physicians on J-1 visas seeking a waiver of their two year home residency requirement. On December 19, 2002, HHS released an interim final rule amending its prior program of sponsoring physicians involved in research to also include physicians willing to provide primary care to patients in health care shortage areas.
The program will be nationwide and there are no limits on the number of waivers HHS may choose to support.
HHS held off on accepting applications under the new program until actual guidelines were written and an application form was approved by the Office of Management and Budget. That process is now complete.
The HHS program will, with notable exceptions outlined below, operate in a manner similar to the now defunct US Department of Agriculture program as well as the new Delta Regional Authority Waiver program. However, there are some restrictions in the program that will limit the pool of eligible physicians under the program more than many would like. Some of the restrictions were included in the earlier interim regulation. Others are new.
HHS indicates that it will consider information from and coordinate with State Departments of Public Health (or the equivalent), other interested government agency sponsors, HHS programs such as the National Health Service Corps and other relevant government agencies. The announcement does not, however, elaborate on what type of coordination will be maintained. Siskind Susser has learned, however, that HHS does intend to create a database that will make it possible for all agency sponsors to determine the J-1 physician population in a particular community regardless of program sponsor.
We reported earlier this year that HHS was considering making applicants initially apply for a waiver through a State 30 waiver program first and would consider applications once a program filled up. That idea has been dropped and is not included in the new program.
The new program also dropped a requirement from the interim rule that a physician possess a state license. That provision was criticized because several states do not issue licenses until a physician has a visa thus creating a "chicken and egg" problem for a doctor since a waiver is required to get a visa.
To qualify for a waiver, an applicant must meet the following requirements:
HHS will require doctors to provide three letters of recommendation from current US residents who know the J-1 physician's qualifications.
- The applicant must be a primary care physician or general psychiatrist who has completed his or her primary care or psychiatric residency training program. Primary care is defined to include general internal medicine, pediatrics, family practice, obstetrics/gynecology or general psychiatry. The requirement that residency training must actually be completed will surely be criticized since it will mean that physicians will be delayed in starting their new jobs and may even fall out of legal status during the long wait for a waiver.
Residency training must have been completed no more than 12 months before the date of the start of employment under the employment contract. An exception will be made for applications received prior to October 1, 2003. For those cases, HHS will allow applicants to apply who completed their programs after May 2002. This requirement will effectively preclude many applicants who have been on O-1 visas who have left the US and may be practicing in another country.
- The petitioning facility must show that it has actively recruited a qualified US physician in the recent past and has been unsuccessful. The employer will need to provide the names of non-foreign physicians who applied and/or interviewed for the job and the reasons why they were not hired.
- The head of the petitioning facility must sign a statement confirming that the facility is located in a designated Health Professional Shortage Area or Medically Underserved Area/Population (Mental Health Professional Shortage Areas are not mentioned but presumably were meant to be included for psychiatrists). Also, the statement should state that the facility provides medical care to Medicaid and Medicare eligible patients and the uninsured indigent. Note that the checklist being provided by HHS indicates that employers must also accept S-CHIP assignment and uses a sliding fee scale.
- The physician must sign a statement indicating that no other interested government agency waiver request is pending and will not be submitted while an HHS waiver request is pending.
- The employment contract must meet the following requirements:
- the doctor will practice in primary care or general psychiatry for a minimum of three years
- the doctor must work for 40 hours per week in a specified shortage area.
- there is no non-compete clause that would limit a doctor's ability to continue to practice in the designated community after the three year obligation period runs.
- the contract may only be terminated for cause and not by mutual agreement until the three year commitment is done. HHS may consent to a transfer, however.
- HHS is requiring applicants have their credentials verified through HHS's Federal Credentialing Program (FCP). The FCP is a partnership between the Health Resources and Services Administration, HHS and the US Department of Veterans Affairs. A waiver application will not be submitted until this process is complete. The application form is relatively simple to complete and may be submitted by fax to speed up processing. However, HHS is warning applicants that the credentialing process takes about 120 days to complete. A built in four month delay in the process will no doubt cause hardships to many physicians particularly if the waiver application cannot be submitted until after one's residency training program is completed. Many physicians will likely fall out of legal status while waiting for their waivers to clear and they risk being deported during that time.
- Employers must include a prevailing wage form with their application. This is information normally provided to the US Department of Labor as part of the H-1B visa application that happens later in the process. There is no official prevailing wage form provided to the Labor Department and it is not clear what HHS will consider acceptable.
- As was the case with the USDA program, a State health department will need to support the application and indicate so in a support/acknowledgement letter.
- Employers must sign a notarized statement that "that employer and staff were not acquainted with the J-1 physician prior to his/her application." The requirement will no doubt be controversial and some might question what difference such a requirement would make if an facility is in a severe physician shortage area and an employer can document that they have attempted to recruit in good faith. An employer arguably would want to recruit people that they know in order to find a candidate with built in ties to a community and who is likely to stay once the three year commitment is completed.
Finally, a facility must be in existence and an employer will be required to submit proof of this such as a phone book listing.
Applications will be processed in the order they are received. Also, applications must be submitted by the employer and not the physician.
HHS has already posted the program's application form on its web site at http://www.globalhealth.gov/exchangevisitor.shtml. The site contains a document checklist that includes additional items similar to other interested government agency waiver programs.
About The Author
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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