In 2000, President Clinton signed legislation creating the Delta Regional Authority, a federal-state partnership designed to promote economic development and improve the quality of life for the people of the Mississippi River Delta region. President Bush appointed the DRA’s first Chairman Pete Johnson who has continues to serve in this role. One of the program’s chief objectives is to improve health care for impoverished communities in the 252 counties under the DRA’s jurisdiction. Because the region has faced persistent physician shortages for many years, Chairman Johnson established a J-1 waiver program to attract international physicians to the DRA’s many communities. The program has helped dozens and dozens of communities throughout the Delta region.

Which states and counties are covered? 

The DRA covers counties and parishes in Alabama, Arkansas, Illinois, Louisiana, Mississippi, Missouri and Tennessee. The counties and parishes in the region follow the Mississippi River up to Southern Illinois. The exception is Alabama which has a number of counties included as well. The following counties are covered:

Alabama

Arkansas

Illinois

Kentucky

Louisiana

Mississippi

Missouri

Tennessee

What is the role of state health departments under the DRA program? 

The DRA adjudicates its waiver cases, but because it is a partnership between the federal government and eight states, the DRA seeks the input of state health agencies when it reviews waiver petitions. State health agencies are notified about waiver applications in their respective states and are given a timeframe in which to submit comments.

What are the recruiting requirements? 

Employers are required to undertake a good-faith effort to recruit an American physician in the same salary range, without success, for 60 days before submitting the waiver petition to the DRA. Recruiting must be undertaken at three levels:

1.  National Level: Newspapers with national circulation (e.g. USA Today) or medical journals (e.g. New England Journal of Medicine).

2.  State level: Major in-state newspaper (e.g. Jackson Clarion Ledger), local newspapers or magazines, or in-state medical journals or publications.

3.  Letters to in-state medical schools.

The DRA will also consider additional documentation such as online recruiting.

What level of commitment must the physician make?

The physician must agree to work for at least three years in a community in a DRA county or parish. The physician must provide medical care for not less than forty (40) hours a week and the work location must be a site in a Health Professional Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). Only psychiatrists can base a waiver on working in an MHPSA.

What kinds of physicians qualify for DRA waivers?

DRA waivers are available to primary care physicians (general or family practice, general internal medicine, pediatrics, obstetrics/gynecology and psychiatry). Waivers are also available to physicians working in specialty medicine, but additional requirements must be met including: 

• Providing a letter from the waiver sponsor outlining the reasons a physician with the particular specialty is needed in the area and containing information on the availability of the specialty services such as the closest location where the specialty is available, whether public transportation is available and evidence that the specialty practice would be viable.

• A description of the service area demographics

• A letter of support regarding the need for the specialty from the Chief Medical Officer of the facility where the J-1 doctor will provide services

• Two letters of support regarding the need for the specialty from local primary care physicians or facility representatives (the person writing the letter may not be affiliated with the waiver sponsor)

• Any other evidence documenting the shortage such as letters of support from other specialists or local health officers in the service area.

Note that the DRA prefers a physician to patient ration of 2000 to 1 or worse when evaluating whether a shortage is severe enough to merit a waiver.

Does the DRA permit restrictive covenants and non-compete clauses?

Contract terms such as non-compete clauses or restrictive covenants that take effect after the contract term is over are barred. DRA rules do, however, require a liquidated damages clause be included.

What is the liquidated damages clause that must be incorporated in to the employment agreement?

The following language must be incorporated in to the employment agreement (note that the contract may include an additional liquidated damages clause as long as it is independent of this language):

LIQUIDATED DAMAGES CLAUSE

Any breach or non-fulfillment of conditions will be considered a substantial breach of this agreement by you. If there is such a breach (NAME OF EMPLOYER) may, at its option, terminate this agreement immediately. In addition, it is agreed that (NAME OF EMPLOYER) will be substantially damaged by your failure to remain at (NAME OF EMPLOYER) in the practice of medicine for a minimum of three years and that, considering that precise damaged are difficult to calculate, you will agree to pay (NAME OF EMPLOYER) the sum of $250,000.00 if you fail to fulfill any portion of your minimum three-year contract. Should you perform any portion of the employment contract, you agree to pay a pro rata share based upon the number of months you failed to fulfill (i.e. $6,945.00 per month). In addition to liquidated damages, (NAME OF EMPLOYER) will recover from you any other consequential damages, and reasonable attorney fees costs and expenses, due to the failure to provide services to (NAME OF EMPLOYER) for a minimum of three years, EXCEPT THAT, the full-time practice of medicine at another licensed medical facility, in Health Professional Shortage area (as defined by the United States Public Health Service) with the Delta Regional Authority (as defined by DRA) shall be considered the same a fulltime practice of medicine at (NAME OF EMPLOYER) for purpose of this paragraph. In the event of a dispute under this paragraph, either party may submit this matter to binding arbitration.

The parties agree in consideration of compliance with the forgoing, to indemnify and hold harmless the Delta Regional Authority and / or any person, firm or corporation now or hereafter acting as agent for the DRA in any capacity, and any successors in any such capacities and successors and assigns of DRA, from and against any loss, claim, damage and expense in connection with, or arising out of, compliance with the waiver application set forth herein or any other litigation.

What are the DRA rules regarding providing care to indigent and elderly patients?

The DRA requires that physicians agree to provide health services to people without discriminating because they are unable to pay or they are paying through Medicaid, Medicare or a state equivalent indigent health care program. Facilities should also provide care on a sliding fee payment arrangement for uninsured, low income patients and post this notice publicly in the facility.

The head of the sponsoring facility must also sign a statement noting:

•  The facility is in a Health Professional Shortage Area, Medically Underserved Area, Medically Served Population, or Mental Health Professional Shortage Area (including the shortage designation ID number, the Federal Information Processing Standards county code and census tract or block numbering area number or the 9-digit zip code of the area where the facility is located)

• The facility’s record of serving Medicare, Medicaid and indigent patents for the last three years and the facility’s intention to continue serving the population

• The current patient-to-physician ratios in the practice area broken down geographically and demographically

• The name of the physician, area of study and how these skills will impact the patients at the facility

What is the application fee for a DRA waiver application?

$3000 payable via a check or money order made out to the Delta Regional Authority. The fee is non-refundable, but a partial refund (up to 50%) may be requested if a withdrawal request is submitted within twenty calendar days after the DRA receives the application. The check should be placed in a letter-sized envelope stapled to the G-28 or the employer’s cover letter if there is no G-28.

What is the timeline for adjudicating a DRA J-1 waiver?

The DRA requests the opinion of the state health agency in the state where the physician will work before granting the waiver. The state agency is given 45 days to respond. The DRA will issue a recommendation within 60 days of the date the application is initially received.

How does the DRA verify the physician and employer are complying with the program rules?

The DRA requires the physician and the facility administrator to sign a “Physician Employment Verification Form” during the physician’s first week of employment. The document is to be returned to the DRA along with documentation of the physician’s H-1B status and proof of the doctor’s possession of a license if a license wasn’t submitted with the original J-1 application.

The DRA will send a site survey form every six months during the employment agreement to verify that the physician is working at the correct location and also to collect information on the patient population being served.  The survey must be returned within 15 business days from the issued date on the survey form. Failure to return the form will result in the DRA notifying USCIS and/or DOS.

The DRA also conducts random, unannounced site visits during the three year employment period and will report compliance violations, as appropriate, to the USCIS and/or DOS.

Will the DRA sponsor National Interest Waivers?

Yes. But applicants must have previously been granted a DRA J-1 waiver or be applying for a J-1 waiver. The application should contain the following:

• A physician must submit a contract with a term of at least five years committing the physician to work in a DRA underserved county or parish

• A support letter from the physician’s employer

• A statement from the physician explaining the reason for pursuing the NIW

• An attorney letter stating, “to the best of their knowledge, the information in the application is truthful, and that he/she believes the applicant is eligible for a NIW.”

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Where can I learn more information about the DRA J-1 and NIW programs?

The DRA posts all information about the program on its web site at http://www.dra.gov/programs/doctors/.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.