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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

HHS Launches Nationwide Physician J Waiver Program

by Gregory Siskind and Karen Weinstock

The US Department of Health and Human Services (HHS) announced in late December 2002 that it will begin acting as an interested government agency for primary care physicians agreeing to work in health care shortage areas. The program is largely designed to replace the national waiver program operated for several years by the US Department of Agriculture. That program officially closed in February of this year. The HHS program is very similar to the USDA program. However, it contains a new restriction that largely limits the program to people recently concluding primary care training. People with subspecialty training will find it difficult to qualify for the HHS waiver.

HHS currently sponsor waiver requests from physicians engaged in research of national or international significance. The new program represents a dramatic expansion of HHS' waiver functions.

While there is no limit on the numbers of waivers HHS will grant each year, the agency does note in the preamble to the program regulations that its Exchange Visitor Waiver Review Board may determine the appropriate numbers and geographic areas for waivers. These determinations will be made based on data relating to the health care needs of a particular area. According to a source at HHS, the agency will generally not issue a waiver if waivers are still available under a state Conrad program. Also, if a waiver is available from the Appalachian Regional Commission or any other regional programs that might come into force later, HHS will expect that the applicant will first seek a waiver from that agency. If the ARC or another agency indicates that it does not have the resources to handle the application or otherwise requests that HHS adjudicate the application, HHS would do so. But such procedures are still being formalized. HHS is also hoping to develop a database that will include information on waiver approvals issued by state Conrad programs and other federal programs in order to develop a complete picture on how underserved a particular community actually is. HHS notes in the preamble as well "Nor should these HHS regulations be confused with criteria applicable to the waiver program implemented by state departments of health (the Conrad program)." This is a significant statement because HHS has lobbied actively over the years to limit all shortage-based government agency waiver requests to primary care positions. The statement may signal a retreat from previous efforts by HHS to limit state programs.

The program has a couple of new features that differ from the previous USDA program. First, during the twelve month period following completion of a residency program, a doctor who has departed the US must apply for the waiver. The waiver can be pursued from outside the US. After that, HHS will not sponsor him or her. Also, HHS will only sponsor primary care physicians or psychiatrists who have completed their primary care or psychiatric residency training programs no more than twelve months before the date of commencement of employment. According to HHS, the new requirement is designed to "ensure that the physicians' primary care training is current and they are not engaged in subspecialty training." This provision will likely mean that many physicians with specialist training will utilize state Conrad programs to work in primary care positions.

The USDA regulations addressed the concern about specialist physicians accepting primary care positions but really work in their area of specialization. Instead of barring subspecialty training, the USDA prohibited doctors from working for specialist facilities in the physician's area of specialization but claiming to do primary care work. So, for example, someone with cardiology training could be approved to do primary care work in a nephrology facility. But that same cardiologist would not be approved to do primary care work in a cardiology practice.

The remainder of the HHS program rules are consistent with the USDA program and the State Department regulations. They include the following:

1. The physician must agree to perform primary care or psychiatric services. Primary care includes general internal medicine, pediatrics, family practice or obstetrics/gynecology.

2. The work must be in a Health Professional Shortage Area, Medically Underserved Area/Population or, for psychiatrists, in a Mental Health Professional Shortage Area.

3. The facility must show good faith attempts to recruit US physicians in the recent past.

4. The facility head must confirm that that the facility is located in a HPSA, MUA/P, or MHPSA and that the facility accepts Medicare, Medicaid and indigent patients. The facility must provide care on a sliding fee scale for persons at or below 200% of the poverty income level. Persons with third party insurance may be charged the full fee for services. Such a policy must be posted prominently at the facility so that patients can see it. Furthermore, the facility may not charge more than the "usual and customary" rate prevailing in the geographic area in which the services are provided.

5. The doctor cannot be pursuing more than one interested government agency waiver request at a time.

6. The doctor must work for a minimum of three years and work a minimum of 40 hours per week in the specified HPSA, MUA/P or MHPSA.

7. The contract cannot contain a covenant restricting the doctor's ability to continue working in the area after the three year period is over.

HHS waiver cases will be handled by the Office of Global Health Affairs at the Department of Health and Human Services.

HHS expects to issue instructions on actually filing cases within the next 30 days. However, a facility that is ready to apply sooner can do so even before formal instructions are released.

An application can be submitted with all of the required documentation to:

Mike Berry, Program Analyst
Health Resources Services Administration
US Department of Health and Human Services
5600 Fishers Lane
Rockville, MD 20857

Mr. Berry's telephone number is 301-443-4154. Note that HHS waivers for researchers will now be submitted to the Office of Global Health Affairs (formerly the Office of International Affairs).

For additional information, contact Greg Siskind at 800-748-3819 or 901-682-6455.

For an Adobe Acrobat PDF version of the regulation online, click here. For a text version, click here.


About The Author

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

Karen Weinstock is a partner in Siskind, Susser, Haas & Devine's new office in Atlanta, Georgia. Karen graduated law school from Hebrew University School of Law in Jerusalem, Israel and has a license to practice law both in Israel and in New York State. Karen is fluent in English, Hebrew and Arabic. Karen Weinstock worked at the Intellectual Property firm Calderon in Tel Aviv and later at Kramer-Shapira-Schneider in Jerusalem. Immediately prior to joining Siskind, Susser, Haas & Devine, Karen had a solo law practice in New York City, focusing on serving Israeli and international clientele doing business or working in the U.S. Karen authors and is the editor of SSHD's Visalaw Health Care Immigration Newsletter. Karen authored a book on the H-1B visa that will be published later this year. She can be reached by e-mail at: kweinstock@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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