Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-09-017.

     Title of Rule: Chapter 246-562 WAC, Physician visa waivers.

     Purpose: Chapter 246-562 WAC, Physician visa waivers, outlines the requirements for application and participation in the state physician visa waiver program.

     Statutory Authority for Adoption: Chapter 70.185 RCW.

     Statute Being Implemented: Chapter 70.185 RCW.

     Summary: Federal legislation passed in November 2002 increasing the number of available waivers from twenty to thirty per year. The proposed amendments add eligible physician specialties, make vacant waivers available to both primary care and specialist physicians on June 1 of each year, clarification of recruitment documentation and general clean up of the language in this chapter.

     Reasons Supporting Proposal: The proposed amendments are in response to the constituent input regarding the types of specialist physicians to be added to the eligible list of specialists as well as opening up waivers that remain available on June 1 of each year to both primary care and specialist physicians.

     Name of Agency Personnel Responsible for Drafting and Implementation: Jennell Prentice, Olympia, Washington, (360) 236-2814; and Enforcement: Kristina Sparks, Olympia, Washington, (360) 236-2800.

     Name of Proponent: Department of Health, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: In response to community input, the department is proposing the following specialists be added to the eligible list of specialties: Anesthesiology, otolaryngology (ENT), and urology. Many communities have struggled to attract United States physicians to their locations and would like to hire foreign medical graduates if they are able. Adding these specialties to the list will provide another recruitment opportunity for struggling medical communities.

     The department allocates 25% of the thirty total waivers to specialists. This breaks out to be eight specialists and twenty-two primary care physicians. In the past when the program only had twenty total waivers, the specialist waivers were filled immediately and the primary care waivers went unused. The department has proposed language that will allow any unfilled waivers on June 1 of each year to be available to either primary care or specialists. This change should allow plenty of time for communities placing primary care physicians to submit their applications as well as assuring that the waivers are filled each year.

     Existing language in WAC 246-562-060 requires employers who are not publicly funded providers to notify publicly funded providers of their intent to hire a J-1 physician. The proposed language adds the requirement for applicants hiring specialists to notify publicly funded providers of J-1 physician's employment start date within thirty days of the physician's start date. This provides the publicly funded providers with notice that there is a specialist physician in town accepting Medicaid and Medicare patients, and who has a sliding fee schedule.

     There are amendments for clarity throughout the chapter as well.

     Proposal Changes the Following Existing Rules: Many of the amendments that are not described above are for the clarification or correction of outdated references.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required because the amendments to chapter 246-562 WAC do not impose more than a minor cost on the affected industry, pursuant to RCW 19.85.030.

     RCW 34.05.328 does not apply to this rule adoption. The amendments to this chapter are primarily clarifying and corrective in nature. The nonhousekeeping amendments expand the program to increase eligibility, change procedures for application timing and change the procedure for notification.

     Hearing Location: Department of Health, Point Plaza East, 310 Israel Road S.E., Olympia, WA 98501, on August 26, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Nicole McAllister by August 13, 2003, TDD (800) 833-6388 or (360) 236-2800.

     Submit Written Comments to: Jennell Prentice, Office of Community and Rural Health, P.O. Box 47834, Olympia, WA 98504-7834, fax (360) 664-9273, by August 26, 2003.

     Date of Intended Adoption: August 27, 2003.

July 22, 2003

Mary C. Selecky

Secretary

OTS-6512.3

AMENDATORY SECTION(Amending WSR 00-15-082, filed 7/19/00, effective 8/19/00)

WAC 246-562-010   Definitions.   The following definitions shall apply in the interpretation and implementation of these rules.

     (1) "Applicant" means a health care facility that seeks to employ a physician and is requesting state sponsorship or concurrence of a visa waiver.

     (2) "Department" means the department of health.

     (3) "Board eligible" means having satisfied the requirements necessary to sit for board examinations.

     (4) "Employment contract" means a legally binding agreement between the applicant and the physician named in the visa waiver application which contains all terms and conditions of employment, including, but not limited to, the salary, benefits, length of employment and any other consideration owing under the agreement.

     (5) "Health care facility" means an entity with an active Washington state business license doing business or proposing to do business in the practice location where the physician would be employed, whose stated purposes include the delivery of medical care.

     (6) "Health professional shortage area" (HPSA) means an area federally designated as having a shortage of primary care physicians or mental health care.

     (7) "Low income" means that a family's total household income is less than two hundred percent of the federal poverty level as defined by the U.S. Federal Poverty Guidelines published annually.

     (8) "Medically underserved area" (MUA) means a federally designated area based on whether the area exceeds a score for an Index of Medical Underservice, a value based on infant mortality, poverty rates, percentage of elderly and primary care physicians to population ratios.

     (((8))) (9) "Physician" means the foreign physician, named in the visa waiver application, who requires a waiver to remain in the United States to practice medicine.

     (((9))) (10) "Sliding fee discount schedule" means a written delineation documenting the value of charge discounts granted to patients based upon financial hardship.

     (((10))) (11) "Sponsorship" means a request by the department on behalf of a health care facility to federal immigration authorities to grant a visa waiver for the purpose of recruiting and retaining physicians.

     (((11))) (12) "Visa waiver" means a federal action that waives the requirement for a foreign physician, in the United States on a J-1 visa, to return to his/her home country for a two-year period following medical residency training.

     (((12))) (13) "Vacancy" means a full-time physician practice opportunity that is based on a planned retirement, a loss of an existing physician, or an expansion of physician services in the service area.

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-010, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-010, filed 10/2/98, effective 11/2/98.]

     (2) The department may acknowledge sponsorship proposed by federal agencies, including the United States Department of ((Agriculture)) Health and Human Services.

     (3) The department may carry out a visa waiver program, or, in the event of resource limitations or other considerations, may discontinue the program. Purposes of the program are:

     (a) To increase the availability of physician services in existing federally designated shortage areas for health care facilities that have long standing vacancies;

     (b) To improve access to physician services for communities and specific under-served populations that are having difficulty finding physician services;

     (c) To serve Washington communities which have identified a physician currently holding a J-1 visa as an ideal candidate to meet the community's need for primary health care services or specialist services as allowed by WAC 246-562-080.

     (4) The department may only sponsor a visa waiver request when:

     (a) The application contains all of the required information and documentation;

     (b) The application meets the criteria contained in chapter 246-562 WAC.

     (5) The department will limit its activities:

     (a) Prior to submission of an application, the department may provide information on preparing a complete application;

     (b) For applicants that have benefited from department sponsorship previously, the applicant's history of compliance will be a consideration in future sponsorship decisions;

     (c) Because the number of sponsorships the department may provide is limited, and because the number of shortage areas is great, sponsorship will be limited. In any single program year, a health care facility in any one designated health professional shortage area or medically underserved area:

     (i) Will not be allotted more than two sponsorships; and

     (ii) Will not be allotted more than one specialist sponsorship as allowed by WAC 246-562-080(4);

     (d) In any given program year seventy-five percent of federally allocated sponsorships will be allotted for primary care physicians((.)) and twenty-five percent of federally allocated sponsorships will be allotted for specialists through May 31. Any waiver sponsorships that remain unfilled on June 1 of each program year will be available to both primary care and specialist physicians consistent with the provisions of this chapter.

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-020, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-020, filed 10/2/98, effective 11/2/98.]

     The criteria set out in chapter 246-562 WAC must also be met.

[Statutory Authority: Chapter 70.185 RCW. 98-20-067, § 246-562-050, filed 10/2/98, effective 11/2/98.]

     (a) ((Have been)) Are licensed to do business in Washington state; and

     (b) Have provided medical care in Washington state for a minimum of twelve months prior to submitting the application.

     (2) Applicants may be for-profit, nonprofit, or government organizations.

     (3) Except for state institutional and correctional facilities designated as federal shortage areas, the applicant must:

     (a) Currently serve:

     (i) Medicare clients;

     (ii) Medicaid clients;

     (iii) Low-income clients, such as subsidized basic health plan enrollees;

     (iv) Uninsured clients; and

     (v) The population of the federal designation.

     (b) Demonstrate that during the twelve months prior to submitting the application, the health care facility was providing a minimum of ten percent of the applicant's total patient visits to Medicaid clients, and/or other low-income clients.

     (c) Agree to implement a sliding fee discount schedule for the physician named in the J-1 visa waiver application. The schedule must be:

     (i) Available in the client's principal language and English; and

     (ii) Posted conspicuously; and

     (iii) Distributed in hard copy to individuals making or keeping appointments with that physician.

     (4) Applicants must have been actively recruiting to fill the practice vacancy from among qualified physicians who are graduates of United States medical schools. Active recruitment, specific to the location and physician specialty, must be for a period of not less than six months in the twelve months prior to submitting a visa waiver application to the department. Active recruitment can be demonstrated by one or more of the following methods:

     (a) Listings in national publications;

     (b) Web-based advertisements;

     (c) State-wide newspaper advertisements;

     (d) Contractual agreement with a recruiter or recruitment firm; or

     (e) Listing the position with the office of community and rural health, recruitment and retention program.

     In-house job postings and word-of-mouth recruitment are not considered active recruitment for the purpose of the J-1 physician visa waiver program; however, they can be used in addition to the methods described in (a) through (e) of this subsection.

     (5) Applicants must have a signed employment contract with the physician. Throughout the period of obligation, regardless of physician's visa status, the employment contract must:

     (a) Meet state and federal requirements;

     (b) Not prevent the physician from providing medical services in the designated shortage area after the term of employment (i.e., no noncompete clauses);

     (c) Specify the period of employment:

     (i) Three years minimum for primary care sponsorship; or

     (ii) Five years minimum for specialist sponsorship.

     (6) Any amendments made to the required elements of the employment contract, subsection (5) of this section, during the first three years for primary care physicians or five years for specialist and subspecialist physicians of contracted employment must be reported to the department for review and approval. The department will complete review and approval of such amendments within thirty calendar days of receipt.

     (7) Applicants must pay the physician prevailing wage as determined and approved by U.S. Department of Labor. Approval must be documented on a U.S. Department of Labor form ETA 9035 signed by an authorized official.

     (((7))) (8) If the applicant has previously requested sponsorship of a physician, WAC 246-562-020 will apply.

     (((8))) (9) If the applicant is not a publicly funded provider, additional criteria apply. The applicant must provide documentation of notification of intent to submit application for J-1 visa physician waiver to all publicly funded providers in HPSA or MUA designated area. Publicly funded providers include, but are not limited to, public hospital districts, local health departments, or community and/or migrant health centers.

     Notification must:

     (a) Be sent at least thirty days prior to submitting the application to the department;

     (b) Include a statement giving the publicly funded providers thirty days to provide comment to the department regarding the J-1 physician visa application; and

     (c) Provide the department's address.

     (((9))) (10) Applicants must ((notify)) provide written notice to the department ((in writing)) and all publicly funded providers in the health care facility's HPSA or MUA designated area within thirty days of the physician's start-date of employment. ((Any amendments made to the required elements of the employment contract, subsection (5) of this section, during the first three years for primary care physicians or five years for specialist and subspecialist physicians of contracted employment must be reported to the department for review and approval. The department will complete review and approval of such amendments within thirty calendar days of receipt.

     (10))) The notice must include:

     (a) The physician's name, employment start-date and practice location;

     (b) Services to be provided; and

     (c) Identification of accepted patients, such as Medicaid, Medicare, or basic health plan.

     (11) Applicants must submit status reports to the department every six months, with required supporting documentation, during the initial term of employment, three years for primary care physicians or five years for specialists.

     (((11))) (12) Applicants must cooperate in providing the department with clarifying information, verifying information already provided, or in any investigation of the applicant's financial status.

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-060, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-060, filed 10/2/98, effective 11/2/98.]

     (2) Physicians must have the qualifications described in recruitment efforts for a specific vacancy.

     (3) Physicians are considered eligible to apply for a waiver when:

     (a) They have successfully completed their residency or fellowship program; or

     (b) They are in the last six months of a residency or fellowship program, and the physician provides a letter from their program that:

     (i) Identifies the date the physician will complete the residency or fellowship program; and

     (ii) Confirms the physician is in good standing with the program.

     (4) Physicians applying as primary care physicians must:

     (a) Provide direct patient care; and

     (b) Be trained in:

     (i) Family practice; or

     (ii) General internal medicine; or

     (iii) Pediatrics; or

     (iv) Geriatric medicine; or

     (v) Obstetrics and gynecology; or

     (vi) Psychiatry and its subspecialties; and

     (c) Except for geriatric medicine and psychiatrists, not have any additional specialty training. Continuing medical education (CME) will not be considered specialty training for the purposes of this rule.

     (5) Physicians applying as specialists must:

     (a) Provide direct patient care;

     (b) Be trained in a subspecialty as defined by the Accreditation Council for Graduate Medical Education and published in the 1999-2000 Graduate Medical Education Directory, which is hereby incorporated by reference of:

     (i) Internal medicine, except for geriatric medicine; or

     (ii) Family practice, except for geriatric medicine; or a specialty as defined by the Accreditation Council for Graduate Medical Education and published in the 1999-2000 Graduate Medical Education Directory, which is hereby incorporated by reference of

     (iii) General surgery; ((or))

     (iv) Radiology-diagnostic;

     (v) Anesthesiology;

     (vi) Otolaryngology (ENT); or

     (vii) Urology.

     (6) Copies of the 1999-2000 Graduate Medical Education Directory are available from the American Medical Association or can be viewed at the Washington State Department of Health, Office of Community and Rural Health, ((2725 Harrison NW, Olympia WA 98504)) 310 Israel Road SE, Tumwater WA 98501.

     (7) Physicians must have an active Washington state medical license, unless unusual circumstances delay licensing. If the application for a Washington state medical license has been received by the Washington state medical quality assurance commission four or more weeks prior to submission of the visa waiver application, the applicant may substitute a copy of the license application and request an exception.

     (8) Physicians must be an active candidate for board certification on or before the start date of employment.

     (9) Physicians must have at least one letter of recommendation from their residency program if applying as a primary care physician or from their fellowship program if applying as a specialist that:

     (a) Addresses the physician's interpersonal and professional ability to effectively care for diverse and low-income people in the United States; and

     (b) Describes an ability to work well with supervisory and subordinate medical staff, and adapt to the culture of United States health care facilities; and

     (c) Documents level of specialty training, if any; and

     (d) Is prepared on residency program letterhead and is signed by residency program staff or faculty; and

     (e) Includes name, title, relationship to physician, address and telephone number of signatory.

     (10) The physician must comply with all provisions of the employment contract.

     (11) Physician must:

     (a) Accept Medicaid assignment; and

     (b) Post and implement a sliding fee discount schedule; and

     (c) Serve the low-income population; and

     (d) Serve the uninsured population; and

     (e) Serve the shortage designation population; or

     (f) Serve the population of a local, state, or federal governmental institution or corrections facility as an employee of the institution.

[Statutory Authority: Chapter 70.185 RCW. 02-19-084, § 246-562-080, filed 9/16/02, effective 10/17/02; 00-15-082, § 246-562-080, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-080, filed 10/2/98, effective 11/2/98.]

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-110, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-110, filed 10/2/98, effective 11/2/98.]

     (2) Applications must be mailed, sent by commercial carrier, or delivered in person. Applications may not be sent by telefax, or electronically.

     (3) The department may limit the time period during which applications may be submitted including cutting off applications after the state has sponsored all applications allowed in a given federal fiscal year.

     (4) Should multiple primary care physician applications arrive at the department on the same day, the department will rank those applications according to the following criteria:

     (a) Federally designated shortage facilities will rank first.

     (b) Those applicants serving shortage areas that require the greatest number of physicians relative to population to remove them from federal shortage status will rank second.

     (c) Publicly funded employers, such as public hospital districts, community health centers, local, state, or federal governmental institutions or correctional facilities, who have an obligation to provide care to under-served populations will rank third.

     (d) If multiple applications within a designated category arrive on the same day, those applications will be ranked within that category based on random selection.

     (e) If a ranked order cannot be determined by using the criteria in (a) through (d) of this subsection, then applications will be ranked based on random selection.

     (5) Should multiple specialist applications arrive at the department on the same day, the department will rank these applications according to the following criteria:

     (a) Federally designated shortage facilities will rank first.

     (b) Publicly funded employers, such as public hospital districts, community health centers, local, state, or federal governmental institutions or correctional facilities, who have an obligation to provide care to underserved populations will rank second.

     (c) If multiple applications within a designated category arrive on the same day, those applications will be ranked within that category based on random selection.

     (d) If a ranked order cannot be determined by using the criteria in (a) through (c) of this subsection, then applications will be ranked based on random selection.

     (6) The department will review applications within ten working days of receipt of the application to determine if the application is complete.

     (7) The department will return incomplete applications to the applicant, and provide a written explanation of missing items.

     (8) Incomplete applications may be resubmitted with additional required information. Resubmitted applications will be considered new applications and will be reviewed in date order received on resubmission.

     (9) The department will return applications that are received after the maximum number of sponsorships have been approved. This does not apply to copies of ((USDA or)) other federal J-1 applications.

     (10) The department will return sponsorship applications to applicants who have had two approved sponsorships in the current year for the shortage area.

     (11) If the Washington state medical license is pending at the time the application is submitted to the department, the department may:

     (a) Sponsor or concur;

     (b) Hold the application in order received; or

     (c) Return the application as incomplete.

     (12) The department will review complete applications against the criteria specified in this chapter ((246-562 WAC)).

     (13) The department may:

     (a) Request additional clarifying information;

     (b) Verify information presented;

     (c) Investigate financial status of the applicant;

     (d) Further investigate any comments generated by publicly funded provider notification of application for waiver;

     (e) Return the application as incomplete if the applicant does not supply requested clarifying information within thirty days of request. Incomplete applications must be resubmitted. Resubmitted applications will be considered new applications and will be reviewed in date order received.

     (14) The department will notify the applicant in writing of action taken. If the decision is to decline sponsorship, the department will provide an explanation of how the application failed to meet the stated criterion or criteria.

     (15) The department may deny a visa waiver request or, prior to U.S. Department of State approval, may withdraw a visa waiver recommendation for cause, which shall include the following:

     (a) The application is not consistent with state and/or federal criteria;

     (b) Fraud;

     (c) Misrepresentation;

     (d) False statements;

     (e) Misleading statements; or

     (f) Evasion or suppression of material facts in the visa waiver application or in any of its required documentation and supporting materials.

     (16) Applications denied may be resubmitted with concerns addressed. Resubmitted applications will be considered new applications and will be reviewed in date order received.

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-120, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-120, filed 10/2/98, effective 11/2/98.]

     (a) The required six-month reports are not submitted in a complete and timely manner.

     (b) A sponsored physician does not serve the designated shortage area and/or shortage population for the full three years of employment for primary care physicians or the full five years of employment for specialists.

     (c) A sponsored physician does not remain employed by the applicant for the full three years of employment for primary care physicians or the full five years of employment for specialists.

     (2) A health care facility may request a determination of eligibility prior to submitting an application. The department will review the situation upon receipt of a written request.

[Statutory Authority: Chapter 70.185 RCW. 98-20-067, § 246-562-130, filed 10/2/98, effective 11/2/98.]

     (2) The department may report to the U.S. Department of State and the United States ((Department)) Bureau of Citizenship and Immigration ((and Naturalization)) Services if the physician is determined to have left employment in the federally designated area.

[Statutory Authority: Chapter 70.185 RCW. 00-15-082, § 246-562-140, filed 7/19/00, effective 8/19/00; 98-20-067, § 246-562-140, filed 10/2/98, effective 11/2/98.]

     (((2) The department will not process J-1 visa waiver sponsorship applications until the effective date of the amendments to WAC 246-562-080, but may advise applicants with respect to any proposed application.

     (3) Applications received by the office of community and rural health between October 1, 2002, and the effective date of the amendments to WAC 246-562-080 will be date and time stamped, and will be processed on the effective date of the rule in the order received.))

[Statutory Authority: Chapter 70.185 RCW. 02-19-084, § 246-562-160, filed 9/16/02, effective 10/17/02; 00-15-082, § 246-562-160, filed 7/19/00, effective 8/19/00.]

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