February 6, 2003
Co-authored by Robert D. Aronson, Greg H. Siskind, and Robert P. Deasy
Office of Global Health Affairs
200 Independence Ave., SW
Washington, DC 20201
Re: COMMENTS TO THE INTERIM RULE IMPLEMENTING THE EXCHANGE VISITOR WAIVER PROGRAM OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)
Dear Dr. Steiger:
The following are the comments of the American Immigration Lawyers Association (AILA) to the Interim Rule issued by the Department of Health and Human Services (HHS) which creates a formal program through which the Department shall serve as an Interested Government Agency (IGA) for International Medical Graduates seeking waivers of their two-year home residence obligation through employment in designated medially underserved communities.
The subject Interim Rule was published in the Federal Register, 67 Fed. Reg. 77,692 (December 19, 2002), with an immediately effective date. The period for public comment was set at February 3, 2003. This comment filed by AILA is submitted timely to the Department’s announced deadline.AILA is the bar association of more than 6,000 attorneys and law professors who practice and teach in the field of immigration and nationality law.
AILA members represent persons, entities, and businesses across the immigration spectrum, as well as teach and advocate on all fronts involving immigration issues. Particularly given the dynamics of this country’s healthcare system, AILA members have over the years represented the immigration interests of a broad range of medical facilities, hospitals, academic medical institutions, healthcare providers, and alien physicians in obtaining immigration benefits spanning both clinical practice and biomedical research efforts.
It is this dual background of a commitment to the overall practice and development of immigration law and policy and a more focused involvement in immigration matters within the healthcare community which form the background to the comments which AILA is now providing to you. We appreciate this opportunity to work with the Department to contribute to a national commitment of affording quality and accessible physician services to our nation’s inhabitants, regardless of their locale of residence or economic means.
Therefore, at the outset, AILA commends and supports the current efforts of the Department of Health and Human Services to create a waiver program in the public interest so as to tap into the pool of International Medical Graduates (IMGs) who will accept employment positions in practice sites designated as medically underserved in accordance with §332 of the Public Health Service Act.
We feel that this current waiver initiative by the Department of Health and Human Services is consistent with a broad range of other Congressionally enacted initiatives to facilitate the relocation and retention of physicians to designated medically underserved areas and facilities, including: the National Interest Waiver, the Conrad State 30 Program and, more generally, the J-1 Waiver Program, the National Health Service Corps, the State Loan Repayment Program, the Target Assistance Grant Program, the Community Rural Health Care Network, and the stepped up Medicare reimbursement schedules for designated rural and inner city providers. The purpose of these measures is to enhance the relocation and retention of physicians working in designated medically underserved communities, and these measures have been formulated specifically in recognition that the ongoing maldistribution patterns and the emerging physician shortage situation is a matter of public interest which needs to be forthrightly addressed.
In their totality, these are sustained, committed initiatives to provide adequate healthcare coverage to the roughly 64 million Americans living in communities which have been designated by the federal government as medically underserved, i.e., areas in which medical coverage falls short of minimally acceptable norms for adequate access to healthcare providers. This shortage is experienced most fully in Rural America as well as by many inner-city communities, and this problem is compounded by growing statistical evidence indicating an emerging and profound shortage in the overall physician population. Furthermore, this shortage pattern is disproportionately experienced by minorities, the indigent, and by many of the most vulnerable segments of American society. This basic situation of an ongoing, historically rooted maldistribution in the physician supply patterns has profound consequences to our entire national experience and forms the background for the determination by the Congress of the overall importance and the national interest implications of physician relocation to and retention in designated medically underserved communities.
We provide this brief background to highlight our strongly held belief that the current HHS initiative is consistent with a national commitment to providing adequate access to healthcare coverage. Again, we commend the Department for initiating this waiver program as a service to the public interest.
We would, though, like to raise several matters of concern and/or inquiry.
1. COORDINATION WITH OTHER AGENCIES
According to the preamble to the Interim Final Rule, "HHS will consider information from and coordinate with State Department of Public Health (or the equivalent) [and] other IGAs that request waivers.”
We believe that the Department’s efforts in support of physician placement to medically underserved communities should be part of a broad national commitment which deserves and requires coordination and communication. However, we also recognize that the various government agencies serving as IGAs might well have different objectives, policies, and mandates. As such, we would hope that the Department would not make its own program subservient to the programs of other IGAs – particularly, the State Departments of Public Health.
In this regard, our initial conversations with officials at HHS have indicated that the Department does not intend to recommend a waiver unless the physician has first submitted the case to the state and is denied because the state has exhausted all available waiver slots for the fiscal year.
AILA believes such a policy would be a mistake for several reasons. First, such a policy would create unnecessary government waste, duplication, and inefficiency. Many states do not have a "first in, first out" system where cases are considered in the order they are submitted. If they do, it is not a substantial burden to simply tell employers that after 30 qualifying cases are submitted, they should look to HHS. Many states have an entry time period and will consider all applications received during the entry period, and the State’s health department will then select the cases that appear to best meet the needs of the residents of the particular state. Therefore, each application is reviewed extensively and then the 30 slots are filled in short order. Under the system contemplated by HHS, two extensive adjudications of the same application are very likely to take place - one by the state and one by HHS. Since the state offices that adjudicate waivers are typically leanly staffed, a system of requiring two complete adjudications of a case is burdensome.
Second, State 30 programs and the HHS program may have goals that do not completely overlap and a state may not be interested in using an available slot for a physician that would otherwise meet the requirements of the HHS program. For example, a state's regulations may limit that state's waiver program to urban facilities. Or the state may reserve a certain number of waiver slots for university hospitals or for certain kinds of specialists. In any case, the states have shown a great sensitivity to local community healthcare coverage needs within the parameters of the federal program which may well lead the states to utilize its waiver program in a manner complementary to HHS’ focus on primary care practitioners.
Third, not all states adjudicate waiver applications at the beginning of a fiscal year. Some states deliberately hold back waiver slots for a later point in the fiscal year. Forcing a community to wait many additional months in order to be denied a State 30 waiver only results in the unnecessary delay in the delivery of vital health services to people in need.
Furthermore, the creation of a one-year window following conclusion of primary care medicine training makes it further infeasible to go through the entire state waiver review cycle prior to seeking a recommendation from HHS. There is simply too great a possibility that the delay resulting from the state’s deliberations would cause a waiver to age-out for HHS purposes.
Therefore, we would envision that as a matter of administrative efficiency and service to the communities, that HHS should not require a full review and adjudication by the states. Perhaps some formal consultation process would be in order in which the states would be notified of a facility’s intention of filing a waiver application to HHS.
2. TWELVE MONTH WINDOW IN ORDER TO FILE THE J-1 WAIVER APPLICATION
AILA has various questions and reservations on the stated requirement that the waiver application be filed within 12-months of the completion of training in primary care medicine.
First, as a point of clarification, we assume that the this 12-month filing deadline applies regardless of whether the alien has departed the United States or has commenced a program of specialty medical training.
Second, owing to potentially delayed HHS and INS adjudications as well as possible delays in visa issuance, we strongly urge that the twelve month filing deadline be tolled at the time that a waiver application is initially filed with HHS, rather than upon commencement of the employment itself. The interests of HHS of not sanctioning specialty care physicians to participate in the waiver program is adequately preserved by the 90-day provision of INA §214(l)(1)(C)(ii) of the Immigration and Nationality Act (INA) which basically requires a physician to agree to the commencement of employment within 90 days of the final issuance of the waiver, and this provision adequately addresses any undue postponement of a physician’s relocation to the community.
Third, while AILA understands HHS' interest in limiting its program to primary care physicians, we believe that a restriction that bars most physicians with specialty training from providing primary care services will unnecessarily deprive many deserving communities of vitally needed primary health care services.
The argument that physicians with specialty training are less likely to want to remain in a community after their three-year commitment is over is arguably not unreasonable. However, employers have an obvious incentive to hire physicians likely to remain in the community as long as possible. If the decision is made to offer a position to a physician with specialty training, it is reasonable as well to believe that the choice is the best option available. Having to search again for a new physician in three years may be an acceptable tradeoff for a community pessimistic about its chances of finding a doctor in the near or long term.
Fourth, the Interim Final Rule may also prevent some physicians with only primary care or general psychiatric training from participating in the waiver program. The Rule states that doctors must complete their primary care or psychiatric training no more than twelve months before the date of commencement of employment under the employment contract. This effectively eliminates physicians who may go abroad, but not necessarily to their home country, for more than a year after completing their primary care training. It also would eliminate physicians who engage in non-clinical medical research after their residency training. And it would eliminate primary care physicians working on O-1 visas for more than a year after completing their residency training. Some of the best qualified primary care physicians would, consequently, be ineligible to provide primary care services under the waiver program.
Fifth, there is a growing practice pattern occurring particularly in Rural America in which specialty physicians serve as primary encounter physicians, particularly since nearly all specialty physicians need to gain Board Eligibility in a primary care discipline as part of their more advanced medical training. Therefore, we would ask that HHS favorably consider allowing physicians to complete a first tier course of training in a specialty medical care discipline so as to add an additional level of potential medical service to the community. Such an additional course of training would not erode primary care capabilities, but rather would enhance a physician’s ability to serve the broad, primary care needs of the community.
Sixth, even if HHS will not rescind its total, across-the-board twelve-month rule,we think that certain allowances should be given to certain medical disciplines which clearly and unequivocally address the fundamental, primary healthcare needs of a community. In this regard, we would particularly cite the discipline of Geriatric Medicine which addresses the core, fundamental medical needs of the elderly. Similarly, the practice of General Surgery and Hospitalist Medicine fall into the same category – i.e., fundamental, primary encounter medicine of broad applicability to members of a community.
Seventh, HHS indicates that one of the Rule’s purposes is to ensure that a doctor's training is current. However, this logic dismisses completely the value of a physician's experience. This policy suggests that a completely inexperienced physician will provide better care than a seasoned doctor with extensive clinical training. Furthermore, in an effort to ensure that licensed physicians maintain their currency in new medical developments, the state licensing boards require ongoing commitments to Continuing Medical Education which, we would think, addresses HHS professed desire for physician conversancy in their areas of professional practice.
AILA therefore recommends, at minimum, that HHS approach this issue on a case-by-case basis rather than establishing a blanket rule. AILA believes that the completion of specialty training should simply be considered a factor in determining whether to grant a waiver, in conjunction with community needs and, quite importantly, the nature of the petitioning medical facility and its commitment to serving the needs of the indigent and medically underserved. We think that this is a particularly appropriate standard since the physician is absolutely bound to serve in the community for a full three year period of time in H-1B Temporary Worker status in order to fulfill a fundamental requirement of the J-1 waiver which gives both HHS as well as the INS ongoing abilities to ensure that a physician is truly serving the broad needs of the community.
3. REQUIREMENTS OF THE PHYSICIAN
The Interim Final Rule seems to impose a professional practice standard on the physician beneficiary well beyond standard professional practice standards. To this end, the Rule at § 50.4(C) requires that a physician needs to possess “outstanding qualifications, training and experience well beyond the usually expected accomplishments … and must clearly demonstrate the capability to make original and significant contributions to the program.”
Given that we are now observing roughly the tenth anniversary of a sustained effort within various government agencies to serve as IGAs for waiver purposes, we do have some empirical evidence suggesting that the caliber of IGAs going to medically underserved areas might be higher than the norm, presumably not out of professional altruism within the IGA community, but rather out of a realistic accommodation by highly talented practitioners to the imperative of getting a waiver. As a result, rural and other designated communities have benefited from receiving the services of physicians possessing a professional skill set above the norm of physicians normally engaged in practice in some of this country’s less desirable practice opportunities.
However, we categorically reject a regulatory standard of outstanding qualifications above the norm of the profession. At minimum, this is an unwarranted violation of federalism in which public healthcare worker standards have traditionally been set by the states and not the federal government. We would think and urge that a physician’s possession of a state medical license or, as suggested below, unqualified eligibility to obtain such a license would be the standard which needs to be satisfied for HHS waiver purposes. The states have the substantive and historic capability of judging physician practice standards in response to community needs, and it is absolutely unwarranted for HHS as a federal agency to usurp this essential state function.
Furthermore, over the course of the physician’s course of training and subsequent licensure application, the physician has been tested and re-tested for substantive practice knowledge and ethical conduct. The current HHS Interim Final Rule properly recognizes the need for American Board Eligibility or Certification in the specific practice area which presumably ensures adequate professional practice standards.
However, the “outstanding ability above the norm” standard appearing the Interim Final Rule does not seem to advance the caliber of the program or even to provide a realistic or appropriate standard.
4. STATE LICENSURE REQUIREMENT
The Interim Final Rule at §50.3(d)(2) conditions the approval of an HHS waiver recommendation on the physician’s possession of a state medical license. We do not think that this precise formulation of the licensure requirement is fully appropriate or that it serves the Department’s interests in ensuring the practice capabilities of a physician applicant.
We agree that the physician has the burden of establishing that he/she will possess the authorization to perform the duties of the position at the time that the employment actually commences. In many but not all instances, this authorization will be established by presentation of the license in the state of intended practice.
However, there are state jurisdictions which do not issue medical licenses until the physician has attained H-1B status, and other states condition the issuance of the license upon fulfillment of certain ministerial actions. Furthermore, many states, while acknowledging that a physician is fully license eligible, require substantial periods of time to actually issue the state medical license.
Therefore, we would suggest that HHS revise its policy somewhat in this regard. While the physician beneficiary would still bear the burden of establishing an ability to perform the duties of the position fully by the commencement date of employment, the applicant could meet this burden by producing a state medical license (either temporary or permanent) or equivalent documentation which would establish that licensure will be issued timely to the commencement date of employment.
We would parenthetically note that the INS in its H-1B adjudication process also requires production of a state medical license or confirmation that the beneficiary will possess the authorization to perform the duties of the position, which should provide HHS with another level of assurance that a recipient of an HHS waiver recommendation will not later be found to be in violation of any state licensing provision.
5. CHANGES IN EMPLOYMENT SITE
The Regulations require that any proposed change in employment situs receive the approval of HHS, as well as comply with all applicable INS and Department of Labor standards. The Regulations at §50.3(d)(4) then vests in HHS the right to approve the assignment upon a full consideration of the needs in the current and prospective communities.
We believe that this provision violates the statutory provisions of § 214(l)(1(C)(ii) of the Immigration and Naturalization Act for the following two reasons:
The Statute states that a physician beneficiary of a waiver can change employment sites within the 3-year H-1B service requirement only upon a showing of extenuating circumstances as well as relocation to another medically underserved community. We think that the term “extenuating circumstances” is a legal standard indicating a situation in which it is simply unfeasible and/or contrary to public policy to sanction a continuation of the employment relationship. The HHS standard does not create the same rigorous standard and its focus seems to be unduly on community impact rather than on a broader consideration of the balanced rights and responsibilities of the alien physician, the healthcare provider, and the community which are implicit in the Statute.
Under the Statute, it is the INS which has the authority to determine the existence of “extenuating circumstances”, and not the recommending IGA. The Statute specifically states that the Attorney General has the authority to determine the existence of extenuating circumstances.
We think that HHS by right should be consulted in instances in which changes are proposed to a physician’s place of employment. HHS can serve as an advisory body to INS. However, we do not believe that HHS can articulate standards which deviate from the statutory standards nor do we believe that HHS or any other IGA has the right to insist upon approving any proposed change in employment, as such a measure is ultra vires.
6. COMPOSITION OF THE WAIVER REVIEW BOARD
Largely as a point of inquiry as well as concern, we note that the Waiver Review Board is empowered to adjudicate waiver requests, as well as to define the general parameters and numerical limits of the HHS waiver program.
Over the years, practitioners within the Association have actively interfaced with the Waiver Review Board in J-1 waiver applications largely on behalf of academic medical institutions for physicians possessing outstanding research qualifications and who are doing work of national and international significance. Conversely, the Board is specifically prohibited from considering physician shortage issues in making waiver determinations and it does not recognize clinical excellence for waiver adjudication purposes, but rather focuses exclusively on research commitment.
In contrast to this historic function of the Waiver Review Board, the current waiver program for underserved communities is based on certain diametrically opposed considerations – i.e., the provision of clinical service to address physician manpower shortage situations at a community level.
We would be interested in understanding the mechanism which will enable a single body to perform two rather starkly contrasting waiver functions. While we have the utmost respect for the commitment to and the capability of HHS to administer its current waiver program, we would call attention to this apparent contradiction in the basic policies of a research-oriented and a clinically-based program and the inherent tensions which will conceivably arise.
Given the broad mandate of HHS to serve the various healthcare needs of this country, we would assume that either the Waiver Review Board in its current composition would draw quite heavily upon those offices and departments of HHS concerned with physician manpower issues and the maldistribution issue as being of core concerns to the integrity of the HHS waiver program. In the alternative, we would inquire whether the Department has considered the formulation of a separate waiver review panel having a specific expertise and a recognized, defined commitment to community welfare and physician manpower issues. We would further submit that it is the role of the Department of State to balance the intrinsic benefit to a medically underserved community with the inherent objective of the J-1 Exchange Visitor Program of requiring the alien’s return to the home country.
In short, we again strongly urge HHS to serve as a forceful advocate in the public interest for this initiative as intended to facilitate the relocation of physicians to designated communities in need.
AILA again commends the Department of Health and Human Services for filling the void left by the termination of the USDA and HUD waiver programs. The needs served by those programs have not gone away and, hopefully, the new HHS program will provide much needed relief to millions of Americans lacking access to primary health care.
We appreciate this opportunity to comment on the issuance by HHS of its Interim Final Rule. We believe that this waiver initiative is part of a broader national initiative to better provide for healthcare coverage in designated medically underserved areas, and certainly believe that HHS should take an active role in this effort. We again urge that HHS serve as a forceful, proactive advocate in its administration of its waiver program, and that it energetically seek to facilitate in the public interest the relocation to designated, medically underserved communities of a promising, available source of physicians represented by International Medical Graduates.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
By: Robert D. Aronson, Gregory H. Siskind, Robert P. Deasy
February 6, 2003