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November 2004 Newsletter I am writing this newsletter to provide analysis on the recent initiative to extend and in some ways broaden the J-1 Waiver Program for International Medical Graduates (IMGs). In particular, the Congress yesterday afternoon (November 17, 2004) reached final agreement on a two-year extension of the Conrad State 30 J-1 Waiver Program. This measure is now being sent to President Bush who is expected to sign this legislation within the next two-week period of time. This new legislation essentially preserves the current J-1 Waiver Programs through interested state and federal agencies, but adds the following four (4) changes:
The ultimate result of this legislation is threefold: 1) it endorses the benefit of the J-1 Waiver Program in promoting physician coverage to the indigent and medically underserved; 2) it narrows the gap between the waiver benefits received through the federal agencies as opposed to the states; and 3) it grants somewhat greater flexibility to the states to recommend waivers to particularly deserving practice situations. I wish to discuss below three issues of particular importance to physician employers, federal and state healthcare planners, and J-1 physicians. This new legislation retains the disparity in the number of waivers available under the Program, but removes certain other artificial distinctions between the state and federal waiver programs. Specifically, this new legislation exempts physicians holding waivers from federal agencies from the H-1B quota. At this firm, we do a great deal of work on behalf of J-1 physicians working within the Department of Veterans Affairs, and to date, this particular cohort of physicians has faced major complications in making a seamless transition from J-1 Exchange Visitor status to H-1B Temporary Worker status, given the premature exhaustion of the H-1B visa numbers. With the passage of this legislation, VA physicians as well as their counterparts through other federal agencies can change into H-1B status irrespective of the availability of H-1B visa numbers in the general immigration pool. As a consequence, such physicians will no longer face disruptions or postponements of their employment while waiting for the H-1B numbers to again become available. In addition, this legislation specifically enables federal government agencies to recommend waivers to medical specialists rather than solely to primary care practitioners. It is true that the current federal system of designating medically underserved areas relies on ratios of primary care physicians to the general population. But nearly all of the physician workforce studies notes a current and sharply escalating shortage of both primary care and specialty physicians, particularly given the increased utilization of physician services by an aging population. This legislation implicitly recognizes the beneficial role of specialty care physicians in addressing the needs of the medically underserved. Therefore, this legislation provides healthcare planners an enhanced set of tools in order to facilitate the relocation of physicians – both primary care and medical specialty practitioners – to designated medically underserved areas so as to serve the most vulnerable segments of the U.S. population. Most states have already incorporated medical specialists into their waiver programs. Hopefully, the various federal agencies recommending waivers to clinical physicians will also proactively enlarge the scope of their waiver programs so as to embrace specialty care physicians. But what is important to note here is that this federal legislation merely gives federal agencies the right to recommend waivers to medical specialists, but it does not mandate or compel this enlargement. Ultimately, it is up to the individual agencies to adopt rules and regulations for medical specialists. This new legislation creates a two-year trial program that provides state waiver officers with the right to recommend waivers for up to five physicians per year who will not be working in designated medically underserved areas. The waiver application still needs to establish that the issuance of the waiver and the placement of the physician in the applying facility will serve to the benefit of the medically underserved. But it delinks waiver eligibility from the designation of the practice site as medically underserved and instead looks to the actual benefits of the physician’s services and the track-record of the requesting facility in providing safety-net services to the medically vulnerable. In this regard, it is still up to the states to decide whether or not to amend their current waiver programs so as to take advantage of this new flexibility. Some states already receive far more waiver applications than their annual allotment of 30 numbers and may be disinclined to broaden further their waiver programs; other states – principally, those which either fail to fully utilize their annual waiver allotment or which rely heavily upon university, county, and state medical facilities to treat the indigent and medically underserved – will undoubtedly utilize these flexibility provisions. But the important point is that the states have the option to take advantage of these new flexibility provisions and to define the criteria utilized to recommend waivers for service in non-designated areas or facilities. Ultimately the J-1 Waiver Program is intended to bring needed physician services to the indigent and medically underserved, and it would seem appropriate to base waiver decisions on the recognized contributions of a heretofore non-designated facility to these population groups – i.e., the percentage of public aid patients served by the facility; the level of services provided on a sliding fee scale or that are written off; the outreach and preventive healthcare initiatives; the alternative sources of medical service among other providers in the state; demographic characteristics of individuals served in an applying facility; etc. It is important to note that these flexibility provisions are available only to the states. In contrast, waivers through federal agencies still require the requesting medical facility to be located in a designated medically underserved area or to be in its own right designated. Therefore, particularly for over-subscribed states, it would seem quite desirable if state healthcare planners were to coordinate with their federal counterparts in an effort to utilize federal waivers as the front-line resource for placements in medically underserved areas so as to free up the states to recommend waivers for physicians working in meritorious practice endeavors that are not located in designated areas. In any case, these flexibility provisions over the next two-year period of time will provide state healthcare planners with a meaningful opportunity to more fully utilize their J-1 Waiver authorization to the maximum benefit of the most medically vulnerable segments of their populations. If this initial trial period indeed proves beneficial, we will hopefully see these flexibility provisions not only made permanent, but perhaps expanded significantly. But at the same time, there are a number of issues that have not been fully incorporated into this new legislation, including the following: 1) this is not a permanent extension of the Conrad Program, but rather a limited, two-year extension and as such, the Congress will again need to debate and consider a further extension of this Program; 2) the Congress chose not to adopt an initial suggestion that would have placed all unused waiver numbers into a single national pool that could then be utilized by various oversubscribed states; and 3) when all is said and done, the states still need to function within an annual waiver limit of 30 waivers that often proves to be inadequate in order to serve fully the legitimate needs within a given state. As to this final point (and here, I editorialize heavily), healthcare issues have traditionally been a state function, and it is the state rather than the federal authorities that have an infinitely better understanding of community-based healthcare needs and the role of a given medical facility in serving the otherwise unmet needs of the indigent and the medically underserved. In short, it should be the states that are given the maximum authority to use the J-1 Waiver Program as well as other healthcare facilitation programs so as to provide adequate medical coverage to the indigent and the medically underserved. Yet, the states are still limited by annual numeric allotments and various constraints on the utilization of their waiver programs. Hopefully, the states will be further empowered to recommend waivers two years hence when the Congress again turns its attention to an extension to this particular healthcare initiative. In conclusion, though, this legislation is a very welcome initiative in stabilizing and expanding the J-1 Waiver Program. It is now up to the states and federal agencies to take advantage of these expanded, enhanced waiver opportunities that have now been incorporated into the federal law. And above all, it is the ultimate responsibility of all of the stakeholders in the J-1 Waiver process to understand that the underlying public policy to this Program is to address an otherwise unmet need for expanded access to physician services by the most medically vulnerable segments of the U.S. population. As always, please feel free to contact me with any questions or comments you may have on information appearing above or, more broadly, immigration issues of concern to you. Cordially,
ROBERT D. ARONSON
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Aronson & Associates, P.A. |