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October
2007 Newsletter October 25, 2007 SPECIAL PHYSICIAN NEWSLETTER: DEAR CLIENTS AND FRIENDS: I am writing this Newsletter in rough time proximity to October 1, which is when each state receives its new allotment of Conrad Waiver numbers. In the past, we have seen a flood of new waiver applications as the mad chase begins to lay claim to a J-1 Waiver number so as to commence the odyssey for a J-1 Physician to remain in the United States. But in speaking with the J-1 Waiver Officers of the various states as well as with physician clients and their employers, we seem to be witnessing a culmination of a trend that started several years ago in which the demand for J-1 Waivers – at least early in the waiver cycle – has eroded significantly. This erosion is concerning for three principal reasons: 1) it reflects an underlying inability of state physician workforce planners to channel physicians into socially desirable practice situations; 2) it may indicate an overall drop in International Medical Graduate (IMG) immigration, which, if true, would add increasing pressures to an already highly overstretched physician workforce; and 3) the Conrad Waiver Program, while widely regarded as a very useful, socially desirable initiative, expires this coming June, and Congressional policy makers will undoubtedly use this opportunity to consider changes in the waiver program’s architecture. So, I would like to structure this single themed, waiver-oriented Newsletter to address the following three issues: Basic review of the nature and evolution of the Conrad State Waiver Program; I. NATURE AND PURPOSE OF THE CONRAD WAIVER PROGRAM A. History of the Program Owing to a legislative enactment dating back to 1977, known as the Health Professional Educational Act (HPEA), foreign physicians have predominantly come to the United States to do their programs of Graduate Medical Education (GME) using J-1 Exchange Visitor visas. Under the provisions of the HPEA, all J-1 Clinical Physicians, regardless of their country of citizenship, fall subject to the two-year home residence obligation. Under U.S. law – specifically, § 212(e) of the Immigration and Nationality Act (INA) – once a J-1 Exchange Visitor becomes subject to the two-year home residence obligation, he/she is rendered ineligible for an H-1B visa and/or permanent residence until the home residence obligation has either been waived or fulfilled. In an odd and somewhat perplexing twist, the HPEA made physicians the only class of J-1 aliens who are barred from obtaining waivers of the two-year home residence obligation based upon the issuance by the home country of a “No Objection” letter releasing the physician from an obligation to return home. Rather, in most instances, the only recourse of a J-1 Physician for waiver purposes is to seek the recommendation of an Interested Government Agency (IGA), which, in essence, agrees to sponsor a physician for a waiver as a matter benefiting the “public interest” of the United States. Traditionally, only federal agencies (as opposed to state governmental institutions) could sponsor J-1 Physicians for waivers. Our nation’s primary federal agency involved in health-related matters, the U.S. Department of Health and Human Services, has historically shown a marked aversion to sponsoring clinical physicians for J-1 Waivers. At times, various federal agencies – most notably, the U.S. Department of Agriculture and the Department of Housing and Urban Development – have initiated J-1 Waiver Programs to facilitate the placement of physicians in rural areas and urban communities respectively, but these federal programs petered out, largely owing to their inability to monitor at a community level the compliance of physicians and their employers with their J-1 obligations. Perhaps the most active federal government waiver sponsor over the years has been the U.S. Department of Veterans Affairs, which has been forced over the years to rely upon IMGs to fill the VA’s critical physician shortage needs. In 1994, the U.S. Congress passed legislation that enlarged the scope of government waiver sponsors to include the departments of health of each of the 50 states. This legislation, sponsored by Senator Kent Conrad (D-ND), was undertaken in light of the following policy determinations: 1) there appeared to be a growing realization that the needs of the American population far outstripped the supply of domestic physicians, thereby suggesting the need to tap into new physician supply sources (i.e., foreign physicians comprise just under 25% of physicians engaged in residency and clinical fellowship training); 2) there was a maldistribution of physicians that severely and detrimentally impacted rural communities and poor, medically underserved urban neighborhoods; and 3) the state departments of health had a more intimate understanding of local community needs and better capabilities to monitor J-1 Waiver compliance at the local level. Since its inception, the Conrad Waiver Program has undergone four stages of evolution:
The current incarnation of the Conrad Waiver Program will expire on June 1, 2008. While the Program remains highly popular, legislative policy makers – presumably in conjunction with state healthcare plan officials – will use the reauthorization process as an opportunity to retool some of the waiver program. The policy considerations appear in part three of this Newsletter. B. The Program in Operation In essence, the Conrad State Waiver Program represents a partnership between the federal government and the state departments of health to enhance physician coverage in traditionally hard-to-fill placements. Beyond certain roughly sketched parameters set by the federal government of 30 waivers per state and the three-year H-1B requirement, the states have broad discretion on the actual implementation of their waiver programs. We certainly see substantial variations among the states in such areas as: waiver eligibility by medical specialists; application fees; duration of required employment; use of the Flex 5 Waiver alternative; the degree of required medical underservice; required contractual terms, such as use of non-compete clauses; attitudes toward nonprofit versus for profit medical employers; etc. In short, by design, the state departments of health are given a high measure of latitude (or to use the vocabulary of social scientists, to serve as “social laboratories”) to devise initiatives that will best serve the residents and communities of each state. Procedurally, the pathway to a waiver goes as follows:
What appears above is a quick, thumbnail run-through of the nuts and bolts of the Conrad State Waiver Program. For readers who desire more extensive information on J-1 Waivers for physicians, we encourage you to contact our office to request free copies of two of my articles that deal with J-1 Waivers for physicians:
III. CURRENT TRENDS AND UTILIZATION OF THE CONRAD WAIVER PROGRAM A. Current J-1 Utilization Trends Based on statistics compiled by the Educational Commission of Foreign Medical Graduates (ECFMG), there are 5024 J-1 Physicians currently enrolled in residency or clinical fellowship programs. This figure represents under 50% of the high-water mark of 12,000 J-1 Physicians that the ECFMG sponsored roughly a decade ago. It also represents a decrease of around 1000 from the level of the preceding year. In short, there seems to be a movement away from the utilization of the J-1 visa program to authorize IMGs to do their Medical Training Programs in the United States. So, why there has been this sharp drop-off over the years and what are its implications on physician workforce levels and community coverage options? Undoubtedly, the biggest single factor to this decrease in the J-1 visa utilization is that an increasing number of IMGs are doing their GME training under the H-1B Temporary Worker visa. This is an alternative, temporary, nonimmigrant visa classification that covers a broad range of foreign professionals working within the United States. Under current law, it is entirely possible to use the H-1B classification to support GME programs. However, in order for the foreign national to obtain H-1B coverage, the employer needs to sponsor the alien beneficiary through a series of filings made initially to the U.S. Department of Labor and ultimately to U.S. Citizenship and Immigration Services (USCIS). From a physician’s standpoint, the major advantage of the H-1B option is that is does not impose a two-year home residence obligation. Therefore, as the competition intensifies for physicians working within GME programs, an increasing number of academic medical centers are sponsoring IMGs for H-1B visas precisely as a proactive recruitment tool. In particular, many inner city and community oriented training programs provide H-1B coverage in order to entice IMGs to commit to their institutions.
In sum, there appears to be two interrelated developments in the IMG population: 1) a decrease in the J-1 Physician pool; and 2) an apparent drop-off (although the precise dimensions are not known) in the numbers of IMG Trainees in the United States. As a consequence, we have seen a sharp decrease in the number of J-1 Waiver applications, at least in the initial stages of this current cycle. B. Physician Shortage Situation But let’s also take a look at the overall state of the domestic physician workforce to determine the possible role and contributions of foreign physicians in addressing otherwise unmet healthcare coverage needs. For a wide variety of reasons, this theory has been totally debunked, and every major study indicates that there is an alarming and steadily growing deficit in the number of physicians available to practice medicine in this country. This shortage is pervasive and widespread, affecting various medical practice areas and now spreading to mainstream communities rather than being localized solely within designated medically underserved areas. Just ask any physician recruiter at nearly any medical facility in this country. Without exception, they will state that they face large numbers of open vacancies that span multiple medical disciplines, and that the pipeline for new replacement physicians appears to be drying up. In short, there is an alarming and ever-growing inability to find sufficient numbers of physician applicants for open staffing positions. In addition, as the Presidential campaigns heat up, we are already seeing a number of new proposals to expand medical coverage to the roughly 47 million Americans who lack medical insurance. At least one Presidential candidate has advocated the need to build new medical schools in order to increase physician supply. But setting aside the high costs of such an endeavor, it will likely take at least ten years before physicians from any newly constructed medical school programs at last enter into practice as physicians. There are relatively few options to access additional physicians. In general, the choices appear to be limited to the following: 1) increase the number of medical schools and residency/fellowship training slots; 2) increased efficiency in the use of new technologies, such as telemedicine; 3) increased reliance on National Healthcare Service Corp (NHSC) physicians to serve rural America; 4) utilization of non-physician providers such as Nurse Practitioners for medical needs; or 5) reliance upon IMGs as an important, desirable source for additional physicians. In short, though, there seem to be two contrary movements at play: 1) there is a major, serious, and ever-growing shortage of physicians now in practice, and this situation has extremely negative consequences given the correlation of satisfactory healthcare outcomes with accessibility to physicians; and 2) there seems to be a curtailment in the number of foreign physicians in the United States – or at least those entering under J-1 visas as a term of their waiver aspirations who can be steered into socially desirable practice arrangements. III. A PEEK INTO THE FUTURE: SOME THOUGHTS ON THE FUTURE OF THE CONRAD WAIVER PROGRAM For years, the main issue of contention has been whether an annual allotment of 30 waivers/year is sufficient to meet the objectives of the Conrad Waiver Program. In my opinion, this is simply not the key policy issue affecting IMG immigration. The real question should be whether the presence of IMGs can meaningfully serve national interests in enhancing healthcare coverage while simultaneously creating promotive policies to encourage foreign physicians to develop their lives and careers in this country in socially important medical placements. It is my opinion that Congressional policymakers need to address the following four (4) core questions:
It is still too early to discern the sentiment of the Congress as the reauthorization process starts its tortuous legislative journey to passage. But there does seem to be a growing nascent movement that would impose some type of service requirement in medically underserved communities as the quid pro quo to long-term immigration status. Quite possibly, this will result in a requirement that all IMG nonimmigrant residents and clinical fellows enter under J-1 visas, thereby eliminating the H-1B alternative for GME purposes. The underlying rationale to any such enactment would be to provide the states with an important tool for the recruitment and retention of physicians in medically underserved areas. If the reauthorized Conrad Program includes an all J-1 visa requirement, I would hope that the following provisions would also be considered in any reform legislation:
In conclusion, immigration law, by its nature, provides government policy makers with the ability to influence the professional opportunities available to foreign nationals. We unquestionably have a severe and growing healthcare coverage shortage situation in this country, and a vibrant, active Conrad Waiver Program can unquestionably serve our national objective of increasing the supply of physicians in a manner that will serve the national objective of enhanced, broadened access to trained, licensed physicians. As a nation, we can no longer ignore or minimize IMGs as a critically important source of physicians in a terribly overstretched healthcare system. But we need to be aware not only of initiatives that will funnel foreign physicians into medically at-risk communities; we also need to develop favorable immigration policies that will encourage foreign physicians to obtain immigration status in recognition of their contributions to our national healthcare system. As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to my attention. It is always a pleasure to hear from those whom we serve. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served byAronson& Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates, P.A. |