The General Accounting Office (“GAO”), the US government’s watchdog agency, has issued a report criticizing the J-1 home residency requirement waiver system for foreign physicians in America. The complete report, entitled FOREIGN PHYSICIANS: EXCHANGE VISITOR PROGRAM BECOMING MAJOR ROUTE TO PRACTICING IN U.S. UNDERSERVED AREAS, is included in an Adobe Acrobat format in the documents collection of our web site (www.visalaw.com/docs). The GAO begins the report by noting that “placing enough physicians in underserved areas remains a longstanding problem in the United Sates, despite many attempts to resolve the situation.” The report goes on to note that many communities are turning to non-US citizens who have just completed their graduate medical education in the Unites States as part of a J-1 Exchange Visitor Visa program. Because J-1 visas for physicians receiving graduate medical training in the US are accompanied by a requirement that the physician leave the US when his or her medical training is done, a waiver of the home residency requirement must be sought. The route most physicians use for obtaining a waiver is through the sponsorship of a government agency. Most of the agencies that sponsor waiver applications do so on the basis of a physician promising to provide primary care in an underserved area.
The GAO also notes in its introduction that the growing use of these waivers has drawn criticism. The US Department of Health and Human Services, the main agency responsible for addressing physician shortages, has taken the position that the J-1 visa is a way to pass advanced medical knowledge to other countries and that the waiver process should not be used as a means to address medical underservice in the US. HHS administers its own program to address this issue, the National Health Service Corps. Others criticize the programs for contributing to an oversupply of physicians that will actually drive up health care costs (an argument that seems to defy the most basic of economic arguments – shortages drive up costs and surpluses push them down). Supporters of J-1 programs counter that communities only use the J-1 waiver process to recruit physicians because they could otherwise not recruit qualified physicians.
The GAO report focused on three major questions:
1. How many foreign physicians with J-1 visas receive waivers, where do they practice and what are their medical specialties?
2. Do federal agencies and states effectively coordinate policies and procedures for granting these waivers?
3. To what extent are foreign physicians who receive waivers complying with waiver requirements to practice in underserved areas?
The GAO found that the number of waivers has risen from 70 in 1990 to 1,300 in 1995. In 1994 and 1995, the number of waivers processed equaled about one-third of the total identified need for physicians in the US.
According to the GAO, “a program to transfer knowledge to other countries has partially given way to a domestic placement effort that now includes professional recruiters and immigration attorneys. Almost all these waiver physicians have primary care medical specialties and they are practicing in 49 states and the District of Columbia. Their practice locations range from health centers in public housing projects to private practices affiliated with for-profit hospitals.”
The GAO’s chief criticism is that the “growing domestic placement effort is rudderless.” The agency notes that the number of agencies sponsoring waivers has risen from one in 1990 to nearly 30 federal and state agencies.
According to the GAO:
“No agency has clear responsibility for ensuring that placement efforts are coordinated. The agencies have generally operated independent of one another, resulting in overlap and oversupply, which has led to the accumulation of more physicians than needed to remove shortage designations in some states. Although the federal agencies are now working together informally, they still have differing policies, overlapping jurisdictions, and varying communication with the states. The coordination problem is compounded by the policy differences between HHS and the agencies requesting waivers for physicians. HHS believe that the physicians should return home after completing their training to meet the intent of the exchange visitor program, and the other agencies view the waiver provision as a means to secure physicians to meet the health care needs of their constituents.”
The GAO also criticized the fact that some physicians openly violate their agreements and are not serving at the facility where the sponsoring agency believed them to be (though the GAO does note that 9 out of 10 physicians in the survey were practicing in the designated facility). The practice of a physician getting a waiver on the basis of serving an underserved population group – e.g. working in a location that has been identified as having an underserved migrant group – but actually treating other segments of the population instead was also criticized.
The GAO does note that proposed regulations published by the USIA and developed in working with an informal interagency group, coupled with recent amendments to the Immigration and Nationality Act would address many of the coordination and compliance problems. Nevertheless, the GAO did make four recommendations for issues Congress should consider:
1. Clarifying how the use of waivers for these physicians fits into the overall federal strategy to address medical underservice. This should include determining the size of the waiver program and establishing how it should be coordinated with other federal programs.
2. Designating leadership responsibility for managing the program. This responsibility could be given to a single federal agency, such as HHS; to several federal agencies, for example, through a memorandum of understanding; or it could be delegated to the states.
3. Establishing penalties against facilities that fail to comply wth the requirements of the waiver.
4. Directing the entity(ies) managing the program to implement procedures and criteria for the selection and placement of physicians and for monitoring compliance with waiver requirements. These procedures and criteria could include requiring the state to clearly support the use of the physician for addressing unmet need and to show that it has sought other options for fulfilling this need.
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