The American Immigration Lawyers Association has su b mitted its comments on the US Department of Health and Human Service's recently announced J-1 waiver prog ram for primary care physicians working in underserved areas. The comment was primarily authored b y AILA mem b ers Greg Siskin d , Ro b ert Aronson and Ro b ert Deasy. The prog ram is in force, b ut from a practical viewpoint, HHS is not likely to adjudicate any cases for a few more months while it gets its procedures in place.

The comment su b mitted to the State Department reads as follows:

Fe b ruary 3, 2003

Hand Delivered

Dr. William R. Steiger

Office of Glo b al Health Affairs

200 Independence Ave., SW

Room 639-H

Washington , DC 20201

Re:     Comments to “HHS Exchange Visitor Prog ram ; Request for Waiver of the Two-Year Foreign Residence Requirement,” RIN: 0991–AB21 (67 Fed. Reg. 77692 ( Dec. 19, 2002 ))

Dear Dr. Steiger:

The following are the comments of the American Immigration Lawyers Association (AILA) to the Interim Rule issued b y the Department of Health and Human Services (HHS) which creates a fo rm al prog ram through which the Department shall serve as an Interested Government Agency (IGA) for International Medical Graduates seeking waivers of their two-year home residence o b ligation through employment in designated medically underserved communities.

The su b ject Interim Rule was pu b lished in the Federal Register, 67 Fed. Reg. 77692 ( Decem b er 19, 2002 ), with an immediately effective date. The period for pu b lic comment was set at Fe b ruary 3, 2003 . This comment filed b y AILA is su b mitted timely to the Department’s announced deadline.

AILA is the b ar association of more than 7,800 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA mem b ers represent persons, entities, and b usinesses 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 mem b ers have over the years represented the immigration interests of a b road range of medical facilities, hospitals, academic medical institutions, healthcare providers, and alien physicians in o b taining immigration b enefits spanning b oth clinical practice and b iomedical research efforts.

It is this dual b ackground 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 fo rm the b ackground to the comments which AILA is now providing to you. We appreciate this opportunity to work with the Department to contri b ute to a national commitment of affording quality and accessi b le physician services to our nation’s inha b itants, 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 prog ram in the pu b lic 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 Pu b lic Health Service Act.

We feel that this current waiver initiative b y the Department of Health and Human Services is consistent with a b road 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 Prog ram and, more gene rally, the J-1 Waiver Prog ram , the National Health Service Corps, the State Loan Repayment Prog ram , the Target Assistance Grant Prog ram , the Community Rural Health Care Network, and the stepped up Medicare reim b ursement 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 b een fo rm ulated specifically in recognition that the ongoing maldistri b ution patterns and the emerging physician shortage situation is a matter of pu b lic interest which needs to b e 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 b een designated b y the federal government as medically underserved, i.e., areas in which medical coverage falls short of minimally accepta b le no rm s for adequate access to healthcare providers. This shortage is experienced most fully in Rural America as well as b y many inner-city communities, and this pro b lem is compounded b y growing statistical evidence indicating an emerging and profound shortage in the overall physician population. Furthe rm ore, this shortage pattern is disproportionately experienced b y minorities, the indigent, and b y many of the most vulnera b le segments of American society. This b asic situation of an ongoing, historically rooted maldistri b ution in the physician supply patterns has profound consequences for our entire national experience and fo rm s the b ackground for the dete rm ina tion b y 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 b rief b ackground to highlight our strongly held b elief that the current HHS initiative is consistent with a national commitment to provide adequate access to healthcare coverage. Again, we commend the Department for initiating this waiver prog ram as a service to the pu b lic interest.

We would, though, like to raise several matters of concern and/or inquiry.

COORDINATION WITH OTHER AGENCIES

According to the pream b le to the Interim F ina l Rule, “HHS will consider info rm ation from and coord ina te with State Department of Pu b lic Health (or the equivalent) [and] other IGAs that request waivers.”

We b elieve that the Department’s efforts in support of physician placement to medically underserved communities should b e part of a b road national commitment which deserves and requires coord ina tion and communication. However, we also recognize that the various government agencies serving as IGAs might well have different o b jectives, policies, and mandates. As such, we would hope that the Department would not make its own prog ram su b servient to the prog ram s of other IGAs—particularly, the State Departments of Pu b lic 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 su b mitted the case to the state and is denied b ecause the state has exhausted all availa b le waiver slots for the fiscal year.

AILA b elieves such a policy would b e 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 in which they are su b mitted. If they do, it is not a su b stantial b urden to simply tell employers that after 30 qualifying cases are su b mitted, 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 b est 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 b y HHS, two extensive adjudications of the same application are very likely to take place—one b y the state and one b y HHS. Since the state offices that adjudicate waivers are typically lea nly staffed, a system requiring two complete adjudications of a case is b urdensome.

Second, State 30 prog ram s and the HHS prog ram may have goals that do not completely overlap and a state may not b e interested in using an availa b le slot for a physician that would otherwise meet the requirements of the HHS prog ram . For example, a state’s regulations may limit that state’s waiver prog ram to ur b an facilities. Or the state may reserve a certain num b er 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 pa ram eters of the federal prog ram which may well lea d the states to utilize the waiver prog ram in a m anne r complementary to HHS’s focus on primary care practitioners.

Third, not all states adjudicate waiver applications at the b eginning of a fiscal year. Some states deli b erately hold b ack waiver slots for a later point in the fiscal year. Forcing a community to wait many additional months in order to b e denied a State 30 waiver only results in the unnecessary delay in the delivery of vital health services to people in need.

Furthe rm ore, the creation of a one year window following conclusion of primary care medicine training makes it further infeasi b le to go through the entire state waiver review cycle prior to seeking a recommendation from HHS. There is simply too great a possi b ility that the delay resulting from the state’s deli b erations 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, HHS should not require a full review and adjudication b y the states. Perhaps some fo rm al consultation process would b e in order in which the states would b e notified of a facility’s intention of filing a waiver application to HHS.

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 b e filed within 12-months of the completion of training in primary care medicine.

First, as a point of clarification, we assume that this 12-month filing deadline applies regardless of whether the alien has departed the United States or has commenced a prog ram of specialty medical training.

Second, owing to potentially delayed HHS and INS adjudications, as well as possi b le delays in visa issuance, we strongly urge that the 12-month filing deadline b e 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 prog ram is adequately preserved b y the 90-day provision of INA §214(l)(1)(C)(ii) of the Immigration and Nationality Act (INA) which b asically requires a physician to agree to the commencement of employment within 90 days of the f ina l 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’s interest in limiting its prog ram to primary care physicians, we b elieve that a restriction that b ars 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 upon completion of their three-year commitment is argua b ly not unreasona b le. However, employers have an o b vious incentive to hire physicians likely to remain in the community as long as possi b le. If the decision is made to offer a position to a physician with specialty training, it is reasona b le as well to b elieve that the choice is the b est option availa b le. Having to search again for a new physician in three years may b e an accepta b le tradeoff for a community pessimistic a b out its chances of finding a doctor in the near or long te rm .

Fourth, the Interim F ina l Rule may also prevent some physicians with only primary care or gene ral psychiatric training from participating in the waiver prog ram . The Rule states that doctors must complete their primary care or psychiatric training no more than twelve months b efore the date of commencement of employment under the employment contract. This effectively elim ina tes physicians who may go a b road, b ut not necessarily to their home country, for more than a year after completing their primary care training. It also would elim ina te physicians who engage in non-clinical medical research after their residency training. And it would elim ina te primary care physicians working on O-1 visas for more than a year after completing their residency training. Some of the b est qualified primary care physicians would, consequently, b e ineligi b le to provide primary care services under the waiver prog ram .

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 Eligi b ility in a primary care discipline as part of their more advanced medical training. Therefore, we would ask that HHS favora b ly 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 capa b ilities, b ut rather would enhance a physician’s a b ility to serve the b road, primary care needs of the community.

Sixth, even if HHS will not rescind its total, across-the- b oard twelve-month rule, we think that certain allowances should b e given to certain medical disciplines which c lea rly 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 b road applica b ility to mem b ers 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 b etter care than a seasoned doctor with extensive clinical training. Furthe rm ore, in an effort to ensure that licensed physicians maintain their currency in new medical developments, the state licensing b oards require ongoing commitments to Continuing Medical Education which, we would think, addresses HHS’s professed desire for physician conversancy in their areas of professional practice.

AILA therefore recommends, at minimum, that HHS approach this issue on a case b y case b asis rather than esta b lishing a b lanket rule. AILA b elieves that the completion of specialty training should simply b e considered a factor in dete rm ining 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 a b solutely b ound 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 b oth HHS as well as the INS ongoing a b ilities to ensure that a physician is truly serving the b road needs of the community.

REQUIREMENTS OF THE PHYSICIAN

The Interim F ina l Rule seems to impose a professional practice standard on the physician b eneficiary well b eyond standard professional practice standards. To this end, the Rule at § 50.4(C) requires that a physician “possess outstanding qualifications, training and experience well b eyond the usually expected accomplishments…and must c lea rly demonstrate the capa b ility to make orig ina l and significant contri b utions to the prog ram .” (emphasis added).

Given that we are now o b serving 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 cali b er of IGAs going to medically underserved areas might b e higher than the no rm , presuma b ly not out of professional altruism within the IGA community, b ut rather out of a realistic accommodation b y highly talented practitioners to the imperative of getting a waiver. As a result, rural and other designated communities have b enefited from receiving the services of physicians possessing a professional skill set a b ove the no rm of physicians no rm ally engaged in practice in some of this country’s less desira b le practice opportunities.

However, we categorically reject a regulatory standard of outstanding qualifications a b ove the no rm of the profession. At minimum, this is an unwarranted violation of federalism in which pu b lic healthcare worker standards have traditionally b een set b y 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 b elow, unqualified eligi b ility to o b tain such a license would b e the standard which needs to b e satisfied for HHS waiver purposes. The states have the su b stantive and historic capa b ility of judging physician practice standards in response to community needs, and it is a b solutely unwarranted for HHS as a federal agency to usurp this essential state function.

Furthe rm ore, over the course of the physician’s training and su b sequent licensure application, the physician has b een tested and re-tested for su b stantive practice knowledge and ethical conduct. The current HHS Interim F ina l Rule properly recognizes the need for American Board Eligi b ility or Certification in the specific practice area which presuma b ly ensures adequate professional practice standards.

However, the “outstanding a b ility a b ove the no rm ” standard appearing in the Interim F ina l Rule does not seem to advance the cali b er of the prog ram or even to provide a realistic or appropriate standard.

STATE LICENSURE REQUIREMENT

The Interim F ina l 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 fo rm ulation of the licensure requirement is fully appropriate or that it serves the Department’s interests in ensuring the practice capa b ilities of a physician applicant .

We agree that the physician has the b urden of esta b lishing that he or she will possess the authorization to perfo rm the duties of the position at the time that the employment actually commences. In many b ut not all instances, this authorization will b e esta b lished b y 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. Furthe rm ore, many states, while acknowledging that a physician is fully license eligi b le, require su b stantial 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 b eneficiary would still b ear the b urden of esta b lishing an a b ility to perfo rm the duties of the position fully b y the commencement date of employment, the applicant could meet this b urden b y producing a state medical license (either temporary or pe rm anent) or equivalent documentation which would esta b lish that licensure will b e 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 confi rm ation that the b eneficiary will possess the authorization to perfo rm 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 b e found to b e in violation of any state licensing provision.

CHANGES IN EMPLOYMENT SITE

The Regulations require that any proposed change in the employment site receive the approval of HHS, as well as comply with all applica b le INS and Department of La b or standards. The Regulations at § 50.3(d)(4) then vest in HHS the right to approve the assignment upon a full consideration of the needs in the current and prospective communities.

We b elieve that this provision violates the statutory provisions of INA § 214(l)(1(C)(ii) for the following two reasons:

• The Statute states that a physician b eneficiary of a waiver can change employment sites within the three-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 te rm “extenuating circumstances” is a legal standard indicating a situation in which it is simply unfeasi b le and/or contrary to pu b lic policy to sanction a continuation of the employment relationship. The HHS standard does not create the same rigorous standard and its focus seems to b e unduly on community impact rather than on a b roader consideration of the b alanced rights and responsi b ilities 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 dete rm ine the existence of “extenuating circumstances”, and not the recommending IGA. The Statute specifically states that the Attorney General has the authority to dete rm ine the existence of extenuating circumstances.

We think that HHS b y right should b e consulted in instances in which changes are proposed to a physician’s place of employment. HHS can serve as an advisory b ody to INS. However, we do not b elieve that HHS can articulate standards which deviate from the statutory standards nor do we b elieve 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.

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 gene ral pa ram eters and numerical limits of the HHS waiver prog ram .

Over the years, AILA practitioners have actively interfaced with the Waiver Review Board in J-1 waiver applications largely on b ehalf 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 prohi b ited from considering physician shortage issues in making waiver dete rm ina tions and it does not recognize clinical excellence for waiver adjudication purposes, b ut rather focuses exclusively on research commitment.

In contrast to this historic function of the Waiver Review Board, the current waiver prog ram for underserved communities is b ased on certain diametrically opposed considerations—i.e., the provision of clinical service to address physician manpower shortage situations at a community level.

We would b e interested in understanding the mechanism which will ena b le a single b ody to perfo rm two rather starkly contrasting waiver functions. While we have the utmost respect for the commitment to and the capa b ility of HHS to administer its current waiver prog ram , we would call attention to this apparent contradiction in the b asic policies of a research-oriented and a clinically- b ased prog ram and the inherent tensions which will conceiva b ly arise.

Given the b road 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 maldistri b ution issue as b eing of core concerns to the integrity of the HHS waiver prog ram . In the alternative, we would inquire whether the Department has considered the fo rm ulation 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 su b mit that it is the role of the Department of State to b alance the intrinsic b enefit to a medically underserved community with the inherent o b jective of the J-1 Exchange Visitor Prog ram 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 pu b lic interest for this initiative as intended to facilitate the relocation of physicians to designated communities in need.

CONCLUSION

AILA again commends the Department of Health and Human Services for filling the void left b y the te rm ina tion of the USDA and HUD waiver prog ram s. The needs served b y those prog ram s have not gone away and, hopefully, the new HHS prog ram will provide much needed relief to millions of Americans lacking access to primary health care.

We appreciate this opportunity to comment on the issuance b y HHS of its Interim F ina l Rule. We b elieve that this waiver initiative is part of a b roader national initiative to b etter provide for healthcare coverage in designated medically underserved areas, and certainly b elieve 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 prog ram , and that it energetically seek to facilitate in the pu b lic interest the relocation to designated, medically underserved communities of a promising, availa b le source of physicians represented b y International Medical Graduates.

Respectfully su b mitted,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION