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The Evolution of the Conrad Waiver Program: Ten Years of State Based J-1 Waivers to Physicians I. BACKGROUND TO THE PROGRAM As a consequence of the Health Professionals Educational Assistance Act (HPEA)[2], the J-1 Exchange Visitor Program became widely and, at times, nearly exclusively utilized by nonimmigrant physicians undertaking programs of Graduate Medical Education (GME) [3] in the United States. To that end, along with various provisions creating financial incentives to encourage more U.S. medical school graduates to pursue careers in primary care in medically underserved areas,[4] the HPEA made several amendments to the INA intended to restrict the entry of foreign physicians for employment in the profession. First, the HPEA added a new ground of inadmissibility to permanent resident status for foreign physicians who had not passed the National Board of Medical Examiners (NBME) and had not demonstrated competency in oral and written English.[5] Second, it eliminated the eligibility of alien physicians to obtain employment authorization for the clinical practice of medicine under the then-existing H-1 and H-2 visa categories.[6] Third, it also closed off availability of H-3 trainee visas for International Medical Graduates (IMGs)[7] coming to receive graduate medical education or training,[8] thereby effectively making the J-1 visa the sole route for alien nonimmigrant physicians to come to the United States for residencies and clinical fellowships. Of most relevance to this article, the HPEA added a new paragraph (iii) to INA § 212(e) which categorically subjected all aliens who came to the United States on a J-1 visa (or acquired J-1 status) to the two-year home residence requirement if they came “in order to receive graduate medical education or training.”[9] Furthermore, in contrast to waiver options for all other exchange visitors, it completely eliminated “no objection” letters from their home countries as a basis for obtaining a waiver.[10] Prior to the HPEA, IMGs who came on J-1 visas would most likely have been subject to the two-year requirement based on the skills list of their country of nationality or last residence, but could nevertheless qualify for waivers on the basis of no objection letters. After passage of the HPEA, the no objection letter was removed as a basis for obtaining a waiver recommendation, thereby enhancing the relevance of the interested government agency (IGA) waiver strategies for IMGs.[11] Although physicians can also qualify for waivers based on persecution and exceptional hardship, the substantial majority of physicians obtain waivers through IGA recommendations which is certainly not surprising given the inequities and shortages currently existing in the national healthcare system which at least in part are addressed by the entry of IMGs into the physician workforce. INA § 212(e) provides federal agencies with the exclusive authority to recommend waivers.[12] Conversely, the states lacked the statutory authority to recommend waivers of the home residence obligation. However, starting in 1994, the Congress expanded IGA authority by granting the states a numerically limited authorization to recommend waivers to clinical physicians under what came to be called the Conrad State 20 program.[13] This was done presumably owing to the states’ traditional interest in safeguarding the health and welfare of their residents, their role in licensing, disciplining, and monitoring their physician workforce, the public interest in facilitating enhanced access to physicians, and their closer working relationship with local communities, as well as the perceived inadequacies of the federal IGA programs. [14] At present, the states rather than the federal agencies have taken the lead in recommending waivers to IMGs, which represents a sharp difference from the previous situation. During the previous decade, the Department of Agriculture (USDA)[15] and, for several years, the Department of Housing and Urban Development (HUD)[16] maintained active waiver programs for physicians willing to take up positions in rural and inner-city communities, respectively. The states, in contrast, were relatively quiescent in recommending waivers because the waiver needs of physicians were adequately covered by the interventions from federal agencies. In addition, the state programs were initially regarded as relatively undesirable since physician beneficiaries of state waivers faced a three-year employment obligation in the requesting medical facility; by contrast, there was no equivalent three-year obligation until 1996 for beneficiaries of federal waivers. However, with the demise of the USDA waiver program[17] and in conjunction with the unwillingness of other federal agencies to fill this waiver void, the states have now become the primary source of waivers for IMGs. In FY 2002, for the first time waiver recommendations issued by the states numerically exceeded federal IGA waiver recommendations with the states recommending 686 waivers, whereas federal IGA waiver recommendations stood at 386.[18] In the most recently reported fiscal year, the states recommended 987 waivers.[19] While the precise numbers of federal IGA waiver cases for clinical physicians are not available, it appears that the federal agencies recommended in FY 2004 well under 100 waivers to physicians working in designated medically underserved communities. Given the relative inaction of federal agencies to serve as IGAs following the termination of the USDA waiver program, the states have now become the predominant source of government-issued waivers to clinical physicians. With the increasing popularity of the state-based waiver programs, the number of states whose waiver programs have been oversubscribed has increased substantially. In FY 2004, 20 states reported that the number of qualifying waiver applications exceeded their allotment of waivers, which represents an increase of two over the number of oversubscribed states during the immediately preceding fiscal year. [20] This shift in IGA waiver patterns from the federal agencies to the states can be attributed to a variety of factors, including: (1) the expansion of the annual allotment of waiver numbers to the states from 20 to 30; (2) the flexibility of the states to recommend waivers to medical specialists rather than solely to primary care practitioners;[21] (3) the demise of the USDA waiver program with no demonstrated commitment to pick up the slack from the Department of Health and Human Services;[22] (4) a growing receptivity by the states to maintain IGA waiver programs as part of their commitment to serving the needs of the medically underserved;[23] (5) the fact that, until recently, only beneficiaries of state-issued waivers were exempted from the H-1B quota cap;[24] and (5) the expansion of the three-year H-1B service obligation to beneficiaries of federal rather than just state waivers, thereby eliminating the previous preference of IMGs to seek waivers through federal rather than state agencies. [25] II. EVOLUTION OF THE CONRAD STATE WAIVER PROGRAM Since its inception, the Conrad waiver program has undergone a series of amendments that, in general, have provided the states with enhanced flexibilities to facilitate the relocation of physicians to communities and practice sites in need. A. Initial Program – 1994-1996 The expansion of IGA authority to the departments of health of the various states was spearheaded by Senator Kent Conrad (D-ND), dating back to provisions passed in 1994 [26] that amended the INA to authorize state or "equivalent"[27] departments of health to directly act as IGAs in support of waiver requests of petitioning facilities located in the state. In addition, the new program permitted a qualifying physician to change from J-1 to H-1B status, notwithstanding INA § 248(2) that otherwise prevents a change of status by any J-1 physician even after having received a waiver. [28] The Conrad legislation amended the INA to provide the fundamentals for all state IGA waiver programs, which initially included the following provisions:
B. Creating Greater Balance between Federal and State IGA Programs – 1996-2002 The Conrad waiver program was initially limited to the waiver programs administered by the state departments of health or their equivalent. Conversely, the federal IGA waiver programs for physicians remained subject to the general and non-physician specific IGA waiver parameters appearing in INA § 212(e). As a result, there were essentially two separate physician waiver systems – the one administered by the states that included a three-year service obligation and a second system relating to the federal agencies that did not carry any legally mandated service commitment. This disequilibrium, in conjunction with the activist waiver program then being administered by USDA, resulted in a rather severe underutilization of the state-based waiver program. In addition, the federal waiver programs for physicians were being recurrently criticized for their unfettered flexibility allowing physicians to quickly depart their initial placement site, oftentimes for practice opportunities in upscale or fully served areas. [30] In 1996, Congress passed legislation that extended authorization for the Conrad program for a six-year period until June 2002 and created greater, although not total, uniformity between the federal and state waiver programs. [31] The 1996 version of the program created a significant degree of overlap between the federal and state waiver programs, as illustrated by the fact that the IGA waiver programs for all clinical physicians were unified in one section of the INA (section 214(l)). Probably the single most important initiative to equalize the federal and state waiver programs was to make all beneficiaries of J-1 clinical waivers subject to a three-year obligatory employment obligation with the petitioning employer, absent extenuating circumstances and relocation to another qualifying facility for the balance of the three year term. The ostensible intention of this blanket three-year service obligation was to ensure that physicians who received waivers would serve the public interest by providing services to medically underserved communities for an acceptable period of time. However, the 1996 statutory amendments did not create total uniformity between the waiver programs administered by the federal agencies and the state departments of health. Rather, the 1996 amendments retained two important distinguishing features between the two waiver systems: The states remained subject to an annual numerical limit of 20 waivers, while there was no comparable numerical limitation imposed on federal agencies; and C. Expansion to 30 Waivers Per Year – 2002-2004 The Conrad state-based waiver program was extended for an additional two years through June 1, 2004, by the Department of Justice Authorization Bill of 2002. This extension included an increase in the annual waiver limit for the states from 20 to 30.[33] In addition, the states were retroactively granted an additional 10 waivers during 2002 for cases originating in that fiscal year.[34] The federal waiver programs continued to remain numerically unlimited and continued to be restricted solely to primary care physicians. As a general observation, while the state and federal waiver programs were becoming more similar to each other, various differences remained, including the following:
In its current version, the Conrad Waiver Program has been extended for an additional two-year period of time, valid until June 1, 2006.[35] Continuing in the general direction noted above, the law continues to unify the standards governing the waiver programs of both the state and federal agencies. In this regard, the current incarnation of the Conrad Waiver Program modifies the federal IGA program as follows:
The 2004 amendment, though, created one major enlargement in the state-based waiver program that does not have a corollary in the federal IGA system. Although the states continue to be restricted to 30 waivers per year, the 2004 amendments created a pilot program in which five slots of a state’s waiver allotment could be issued to physicians who are providing important safety net services to the indigent and the medically underserved, despite the fact that their physical practice site is not located in a designated medically underserved area. [37] Owing to the recent enactment of these flexibility provisions (hereinafter: Conrad Flex 5 provisions), it is still not clear how and to what degree the states will actually administer these new provisions, or even the standards which will guide state J-1 waiver officers in their adjudications.[38] The State Department has indicated that it will defer to the states in their adjudication of requests for waivers for physicians working in non-designated areas, rather than providing formal, substantive guidance on the issuance of waiver recommendations under this new initiative. [39] Given that the Conrad program’s policy objectives are to enlarge access to physicians by the indigent and medically underserved, it would seem logical to assume that the states in administering these new flexibility provisions will require a qualifying physician to serve substantial numbers or percentages of the indigent and medically underserved. Conceivably, there will be two important determinants in adjudicating waiver requests under these flexibility provisions: Nature of the medical facility. Certain medical facilities play an important role in serving the needs of a state’s indigent and medically underserved populations. For example, university systems and county hospitals serve as important safety net providers to the indigent and medically underserved, even though many such facilities are not located in designated medically underserved areas.[40] Specifically, they provide important outreach services to a state’s vulnerable population groups, particularly in specialty and tertiary care services, which are practice areas not supported at a local level. Physician’s expected practice plan. Unquestionably, there are quantifiable measures to judge the actual contributions of a physician to at-risk population groups within a state. In fact, probably no profession is subject to a higher burden of regulation and reporting than medicine. Therefore, it should be quite possible to evaluate an alien physician’s expected contributions to a state’s vulnerable population groups by considering such factors as: percentage or actual numbers of the physician’s public aid patients, expected annual write-offs of patients who have fallen through the safety net, discounted fee arrangements extended to the indigent, medical services provided to minorities, unique practice area/substantial referral network making the physician a statewide referral source for certain medical conditions, the prevalence among the poor and disadvantaged of a disease handled by the alien physician, etc.
III. CURRENT OPEN AND UNRESOLVED ISSUES IN THE CONRAD WAIVER PROGRAM Despite the fact that the Conrad waiver program has existed now in various incarnations for over 10 years, there are still significant unresolved issues. The relevant federal administering agencies of the program [41] went through rulemaking at the inception of this program and on one occasion the legacy INS issued informal policy guidance.[42] But there has been a very regrettable failure to provide ongoing guidance to account for the program’s subsequent amendments, the emerging preeminence of the states as the source of waiver recommendations, the changes in physician workforce issues, national healthcare challenges (as discussed below), and the evolving expectations of the program itself in serving the needs of vulnerable population groups. What appears here is an identification and brief discussion of ten (10) of the most nettlesome and unsettled issues, as defined through the experience of the author. 1. Full-time Service in Designated Area The statute [43] stipulates that the physician needs to practice on a full-time basis “only in the geographic area or areas which are designated … as having a shortage of healthcare professionals.”[44] Particularly in rural communities, a mechanistic application of this provision would preclude a physician from following a patient requiring hospitalization in a facility that is not physically located in a designated medically underserved area. Any such prohibition would subject the physician to malpractice exposure for grossly substandard care of treatment and compromise the patient’s overall course of treatment. Similarly, the standards are currently unclear as to the circumstances under which a physician may provide services over and above a full-time employment commitment to a designated medically underserved area, either under part-time H-1B status or working under employment authorization. The ultimate policy of the law is to provide full-time physician services to communities/practice situations in need. Once that basic policy has been met, it is arguable whether there should be any additional restrictions placed on a physician who desires to work additional hours in a non-designated community. 2. Definition of “Full-time Employment” There are a number of uncertainties as to the meaning of “full-time”, particularly within the physician context. Surgeons are generally limited to roughly 20 hours of operating time per week, depending on their area of specialization. Are they working full-time for waiver fulfillment purposes? What about on-call time – a terribly onerous obligation imposed on physicians who need to curtail their personal lives to remain available to patient needs? Are there any requirements for actual clinical time, as opposed to administrative or consultative duties? In general, we would think that the definition of “full-time employment” would be a function of the employment routines maintained by the petitioning facility and recognized more generally within the profession, rather than relying upon a mechanistic calculation of hours. But this is a heretofore open-ended and unresolved issue. 3. Requirement of Service Specifically in H-1B Status A physician beneficiary of an IGA waiver for clinical purposes needs to work for the petitioning medical facility for three years, barring the premature termination provisions of INA § 214(l)(C)(ii). The statute does not mandate that this three-year service obligation be performed exclusively in H-1B status. Rather, the requirement that the three years of service be completed specifically in H-1B status is a creation of the implementing regulations, although the statute does recognize the eligibility of a qualifying physician to change from J-1 to H-1B status.[45] However, this enlargement of change of status eligibility should not necessarily mandate that the actual required term of employment needs to be fulfilled exclusively in H-1B status as required under the current regulations. Therefore, the Service should permit physicians the flexibility to satisfy the three-year service obligation using any legal work authorization, such as an Employment Authorization Document (EAD) card based on a pending I-485 application filed on any valid basis (whether employment-based or family-based or DV lottery based), particularly given the ability to maintain H-1B status subsequent to filing an adjustment application.[46] Physicians whose J-1 waiver is under INA § 214(l) are prohibited from filing an I-485 application prior to completion of three years of service in H-1B status (and no other status) in most cases.[47] But this rule does not make sense in light of INA § 214(l)’s objective that the physician make a commitment to the community for, at minimum, the three-year period that has been deemed by the Congress to be a sufficient investment of a physician’s career to justify the waiver. In many instances, the earlier filing of an adjustment of status application would actually facilitate a physician’s overall integration into a community, particularly by providing the dependent family members with employment authorization. Such adjustment applications could not be approved until the physician has served out the three-year term of employment. But the physician should be permitted to at least apply for adjustment of status and obtain interim benefits such as EAD and Advance Parole. The emphasis should be on ensuring that the physician serves out the three-year term with any valid employment authorization, rather than mandating H-1B as the sole acceptable status for satisfying the three-year obligation. 4. Split VA Appointments Within the VA employment context, many physicians hold joint appointments between the VA and its affiliated university. Whereas the VAs generally lack the budget to provide exclusive, dedicated employment, particularly for medical specialties, they benefit substantially through this cost-sharing arrangement. In addition, this split employment is not a specially created situation for foreign physicians; rather, it is a standard, widely utilized arrangement specifically calculated to best serve the medical needs of the Department of Veterans Affairs in a cost-efficient and professional manner. Yet a mechanistic application of the full-time employment obligation would directly eviscerate a primary objective of the legislation, which is to afford qualifying veterans enhanced access to physicians. This practitioner would think that within the VA context and based precisely on accepted employment patterns within VA facilities, a split employment arrangement between a VA facility and its affiliated university institution should be recognized as sufficient for fulfilling a physician’s waiver obligations under INA § 214(l). 5. Ongoing Exemption from the H-1B Quota Cap The most recent amendment to the Conrad program exempts from the H-1B cap a physician who has received an IGA waiver and then changed into H-1B status.[48] The exemption from the H-1B cap clearly applies at the time that a physician changes from J-1 to H-1B status in order to assume the job with the petitioning employer. However, the plain language of the statute also seems to state that this H-1B cap exemption attaches personally to the physician, thereby covering subsequent changes in employment after fulfillment of the mandatory three-year service obligation. The United States Citizenship and Immigration Service (USCIS) needs to clarify this issue in order to allow section 214(l) physicians who have completed their three-year obligation to change employers even if the H-1B cap has been met. 6. 90-Day Commencement Period The law contains a stipulated, finite period of time for the physician to commit to the position.[49] But this provision of the law has recurrently been misapplied in direct derogation of the statutory language. The law does not require the physician to actually commence employment within 90 days; rather, the law requires that the “alien agrees to begin employment with the health facility or health care organization within 90 days of receiving such waiver.”[50] (emphasis added) In short, it is an agreement to commit to the employment rather than actually commencing the employment itself that is required. There are various specific reasons that would prohibit a physician from starting the employment within a 90-day period of time, such as: delays in H-1B processing, delays in issuance of the medical license, the need to complete residency or fellowship training, (which is required for Board Eligibility purposes in the field of medical practice), the need to complete clinical training to enable the physician to more capably serve as a medical practitioner, personal or extenuating circumstances, etc. The law on its face seems clear that it requires a commitment to the position rather than the actual commencement of employment, although this position has yet to be uniformly recognized by the Service. 7. Loss of Shortage Designation There remains uncertainty as to whether the loss of shortage designation following issuance of a waiver will result in a termination of the waiver itself. The preamble to the interim National Interest Waiver regulations state that a loss of designation will not result in the termination of a previously approved immigrant visa petition,[51] but in the J-1 waiver arena, the statutory language notes that the waiver will be terminated if “the alien’s employment ceases to benefit the public interest at any time during the 3-year period….”[52] USCIS should clarify that the subsequent loss of shortage designation will not lead to a revocation of the waiver itself once the waiver is issued and the physician, in reliance of the waiver, undertakes the contemplated employment. 8. Extenuating Circumstances Standard A physician who has received a waiver becomes obligated to fulfill a three-year service obligation at the petitioning employer unless there are “extenuating circumstances”[53] so as to justify the alien physician’s departure. The statute cites closure of the facility or hardship to the alien as representative examples of “extenuating circumstances.” There have not been any meaningful clarifying instructions on this standard. We would suggest that the threshold considerations should include circumstances that have arisen beyond the control of the alien beneficiary that make it unfair to continue in the employment relationship, including discriminatory working conditions (including wages) or employer demands. In many respects, the “extenuating circumstances” standard should track the policies maintained by the Department of Labor in its labor condition application enforcement standards, which in part are intended to prevent unconscionable employer policies directed toward foreign nationals. 9. Relocation to Another Designated Medically Underserved Area In its current iteration, a physician departing under the above-cited “extenuating circumstances” standard needs also “to demonstrate another bona fide offer of employment at a health facility or health care organization for the remainder of such 3-year period.”[54] This has been determined to require service for the balance of the three-year term specifically in a designated medically underserved area. The broader issue becomes whether the flexibility provisions now provide increased latitude for physicians to work in positions that benefit the indigent and medically underserved, but which are not designated medically underserved areas. As noted above, there are quantifiable measures to determine the physician’s contributions to the indigent and the medically underserved, and the state departments of health conceivably could play a major role in sanctioning a physician’s relocation to a non-designated area of public interest to serving the needs of vulnerable population groups. 10. Changeover between VA Facilities and Medically Underserved Areas As noted in the previous section, the statute creates an obligation of a three-year period of service that needs to be fulfilled, absent “extenuating circumstances” and relocation to a practice site serving the public interest for the balance of the three-year term. It is unclear whether there is the possibility of crossover between physicians receiving IGA waivers through the states and the Department of Veterans Affairs. Medical practice in both medically underserved areas and VA facilities have been recognized as serving the public interest, as substantiated by the mere fact that these specific practice situations are highlighted in the INA § 214(l) provisions. Accordingly, there should be no public policy problem with allowing for a crossover within the three-year period of time but this issue to date has not been firmly resolved. IV. THE PHYSICIAN WORKFORCE/HEALTHCARE REFORM CONSIDERATIONS Ultimately, the further extension of the Conrad waiver program will depend upon its perceived effectiveness in addressing otherwise unmet healthcare needs of the country and in revitalizing rural communities at risk. More specifically, the underlying considerations that are likely to guide the Congress in its further development and modification of this program are: 1. A consideration of the state of the physician workforce; A. The Physician Workforce The prevailing notion through the 1990s was that there were too many physicians in the workforce.[55] This situation, if correct, would carry various negative consequences to the nation, including an over utilization of physician services, an escalation of national healthcare expenditures, a drop in physician incomes, and an overall disincentive for individuals to take up the profession of medicine. As a result, there was a concerted national policy to limit the physician workforce, principally through a disinclination to fund additional medical training slots and/or create new medical schools. In addition, the prevailing theory was that managed care would address many of the inequities in the system so that workforce planning should aim for a 50-50 split between primary care [56] and specialty care physicians. The goal of physician workforce planning was not to increase the numbers of physicians; rather, it was to create incentives to distribute more equitably the physician workforce so as to better serve geographic areas and population groups that traditionally had been underserved. The current theory is vastly different. There is widespread recognition of a major and growing shortage of physicians that affects various practice areas – specialty and primary care – and is pervasive not only in designated medically underserved areas, but also throughout the nation. In a shift from previous years, the growing perception today is that the United States suffers and will continue to suffer from a shortage of physicians. COGME [57] anticipates a shortage of 85,000 physicians by 2020.[58] This is a dramatic reversal of its previous estimations.[59] Similarly, the American Medical Association has now noted a shortage of physicians and has called upon an expansion in the nation’s physician workforce [60]. A survey of medical school deans resulted in an 80% consensus on a stark shortage in physicians.[61] The Bureau of Health Professions estimates that 3400 physicians are immediately needed to address current shortfalls in non-metropolitan HPSAs and that 7,000 are required to meet reasonable workforce targets in these areas.[62] If the current numbers of family practice graduates returns to minimally acceptable levels (they are currently at 1997 levels), the density of family practice physicians in rural America and in the U.S. overall will decline after 2010.[63] One study predicts that by 2020, the nation will need 200,000 physicians in order to meet patient demand. [64] There have been a number of factors in the physician workforce that are responsible for the shortage. Younger physicians want to work fewer hours at the same time that the aging U.S. population requires more care.[65] There is the increased demand for specialists combined with less-restrictive managed care models.[66] Physician compensation schedules have lagged behind other sectors with the result that the applicant pool is increasingly turning to endeavors other than medicine, such as careers in high technology or entrepreneurial ventures. The concern of rising medical malpractice liability insurance costs and perceived need for tort reform, coupled with high levels of medical school debt, have had a chilling effect on physicians’ job satisfaction.[67] The physician workforce itself is aging, especially in rural areas; AMA Masterfile data shows that 11% of active patient care general practitioners are older than age 70.[68] The declining interest in primary care specialties among medical students (especially in rural areas) is also a contributing factor. Another factor is that the net income of primary care doctors in rural areas is less than those in urban areas because of lower reimbursement rates and greater numbers of uninsured patients in rural areas. [69] In rural areas specifically, the shortage of physicians has been attributed to factors including social and professional isolation, the availability of better hospitals and technology in cities, the flight to urban affluence, and a general decline in primary care practitioners.[70] As for whether the increase in the number of women practicing medicine addresses the shortage (the proportion of women in allopathic family practice residencies rose from only 19% in 1980 to as high as 46% as of 2003), women are less likely to practice in rural areas, as shown by AMA Masterfile date indicating that 16% of women under age 45 in family practice are located in non-metropolitan counties as compared to 24% of men.[71] As a general observation, surveys consistently document a decrease in job satisfaction in the physician workforce, thereby apparently leading to downward pressures on the number of new entrants into the profession and eroding the numbers of medical practitioners remaining in practice. [72] B. National Healthcare Reform Measures According to the National Health Service Corps, roughly 53 million Americans live in either designated medically undeserved rural communities or communities lacking acceptable access to physicians. [73] The shortage of physicians in rural areas is of particular concern. While 20% of the population of the U.S. resides in rural areas, less than 11% of physicians practice in rural communities.[74] Interestingly, about two-thirds of all Conrad waivers are issued to physicians working in rural communities.[75] Despite the fact that the supply of physicians has increased over the last 20 years, the percentage of physicians practicing primary care medicine has declined.[76] Aging rural physicians and increases in the numbers of women physicians who are less likely to practice in rural areas are recent workforce shifts.[77] Several studies have sought to determine physician practice patterns in rural areas.[78] Growing up in a rural area is the most important independent predictor of a physician’s likelihood to pursue rural practice.[79] Similarly, some data suggest that a higher debt load upon leaving training with a concomitant need for higher paying employment negatively influences the likelihood of practicing in a rural area. [80] In addition, many Americans do not have adequate access to health care. This is especially true for the 43 million Americans who have no health insurance or inadequate coverage and who, therefore, disproportionately enter the healthcare system at an advanced stage of illness rather than for preventive care, thereby further taxing physician providers. [81] In light of the above, the federal government, in conjunction with the states, has initiated a series of measures intended to enhance the access of underserved population groups to physicians, including:
What the above discussion indicates is that there is a substantial crisis in the nation’s healthcare system and, in particular, in providing sufficient numbers of physicians accessible to various vulnerable population groups. To this end, the federal government has undertaken a number of initiatives to stimulate and better rationalize the access to physicians. The utility of the Conrad waiver program needs to be considered as simply one additional initiative to addressing the nation’s healthcare needs. Roughly one-quarter of the physician workforce consists of IMGs (both foreign citizens and U.S. citizens educated overseas), and of this number, there are just over 9000 J-1 physicians.[95] There is a substantial body of evidence confirming that IMGs perform vital “gap filling” functions – i.e., that they tend to practice medicine and treat patient populations that would otherwise go unaddressed.[96] Specifically, IMGs disproportionately tend to practice in medically underserved areas and serve minority, immigrant, and underserved patient populations. IMGs work more frequently in the public sector and treat a higher proportion of patients with psychotic disorders. Psychiatrists with international medical degrees also treat more African American, Hispanic, and other minority patients.[97] It is certainly open to question whether these differing practice patterns reflects upon an inherent altruism of IMGs or a realistic accommodation to immigration requirements and/or availability of practice opportunities. In the past decade and a half, the various J-1 waiver programs have provided a major source of primary care physicians for rural underserved and short areas. The annual number of J-1 waivers granted to IMGs for practice in underserved areas increased from 70 waivers in 1990 to 1374 waivers in 1995,[98] and now still exceeds 1,000 annually.[99] Approximately a third of Conrad state 30 waivers are granted to sub-specialists, signaling that the need for medical care in underserved areas extends past primary care.[100] Two-thirds of Conrad waivers are for physicians working in rural communities. Various studies indicate that foreign-trained doctors more often practice in rural, medically underserved areas than U.S. medical graduates.[101] A 2003 analysis of primary care physicians working in HPSAs (which considered both whole and partial HPSAs) showed that 3.9% of IMGs practice in non-metropolitan HPSAs compared with 3.4% of U.S. medical graduates,[102] which is an impressive figure considering that the IMG population in such areas has developed mostly within the past ten years.[103] Arguably, this disproportionate level of IMG practice in designated medically underserved areas is precisely the result of immigration provisions which are designed to encourage many J-1 clinicians to relocate to medically underserved areas or VA facilities in order to remain in the United States. In any case, the data seems to indicate that immigration can and is being used to channel J-1 physicians into practice situations that traditionally have gone unstaffed within the healthcare system. As for the level of competency of IMGs versus their U.S. counterparts, there is no conclusive evidence in the literature that IMGs are any less or more competent than U.S. physicians.[104] Despite this fact, a 2002 report found evidence that IMGs are at greater risk than U.S. physicians for exclusion by the federal government from federally funded programs such as Medicare and Medicaid.[105] The report found no evidence that IMGs are less ethical in their Medicare and Medicaid billing practices than U.S. physicians; it did offer the possible explanation that some IMGs may need more assistance that U.S. physicians in deciphering and complying with complex federal billing procedures and suggested that state and federal agencies concerned with billing fraud and abuse might find it effective to devote more resources towards educating IMGs on improved compliance with federal reporting requirements. [106] A cutback in IMG presence in medically underserved communities would likely have a substantial impact on the adequacy of care at a significant number of community health centers which currently form a primary source of medical care for the indigent and the medically underserved.[107] As much as 15 percent of full-time positions at community health centers could go unfilled if IMGs were no longer available. As such, reducing the flow in IMGs into the U.S. could have negative consequences, potentially endangering the ability of many community health centers to provide care for the underserved. [108] V. THE FUTURE OF THE CONRAD PROGRAM In light of the discussion above, it appears that the Conrad waiver program has been a useful initiative in addressing some of the nation’s healthcare needs. In any case, this program is fully consistent with national objectives of enhancing the access of vulnerable population groups to physicians. The data strongly suggests that IMGs perform important “gap-filling” services in that their practice patterns tend to disproportionately flow into practice situations not staffed by U.S. physicians. Assuming that IMGs are not more altruistic than their U.S. counterparts, the evidence seems rather clear that the Conrad program has been an important stimulant in addressing an important national objective by linking immigration benefits to socially desirable medical practice patterns. Soon, the Congress will presumably consider an extension of the Conrad waiver program. Among the issues that likely will be considered are the following:
The states have long been regarded as the laboratories for new, innovative programs of benefit to their residents, particularly in the area of healthcare. The Conrad State 30 program represents a creative federal-state partnership ultimately resting on the ability of the states to define their physician workforce/healthcare coverage needs and to channel J-1 physicians into socially important positions serving the public interest. The states have a well-grounded understanding of community-based medical coverage needs and the Conrad State 30 program provides the departments of health of the states an additional planning tool for local needs. While this program in its implementation to date has achieved a degree of success, its further development and enlargement will hopefully provide state healthcare planners with increased latitude of action to address certain inadequacies in the healthcare system. * Robert D. Aronson is a principal in the Minneapolis-based immigration law firm of Ingber & Aronson, P.A. He has lectured and published widely on immigration issues for International Physicians for the physician, healthcare, academic, and corporate communities. He received his law degree from Indiana University and was a Fulbright Fellow at the law schools of Harvard University and Moscow State University (Russia). He is an Adjunct Professor at the University of St. Thomas and currently serves as the liaison of the American Immigration Lawyers Association (AILA) on J-1 waiver matters with the Department of State. The author is highly indebted to Dinesh Shenoy of Ingber & Aronson for his assistance in the preparation of this article and, more generally, for his commitment to exploring the intricacies of the law. He is also grateful to Palma Yanni and Rita Kushner for their assistance in finalizing this article. Portions of this article in variant fashion appeared in Aronson, Robert D. & Dinesh P. Shenoy, “Zeno’s Revenge: The Paradoxes of Interested Government Agency J-1 Waivers for Physicians”, Immigration Briefings, April & May 2004. 1. INA § 214(l); 8 USC § 1184(l). |
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