WSR 05-17-116

EMERGENCY RULES

DEPARTMENT OF HEALTH


[ Filed August 17, 2005, 4:31 p.m. , effective August 17, 2005 ]


Purpose: The rule amendment will allow all physician specialities to be eligible for visa waiver consideration based on need criteria and will allow up to five waivers to be approved for physicians practicing in health care facilities not located in designated health professional shortage areas.

Citation of Existing Rules Affected by this Order: Amending WAC 246-562-070 and 246-562-080.

Statutory Authority for Adoption: Chapter 70.185 RCW.

Other Authority: Federal legislation Public Law 108-44.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: Foreign physicians who are in the United States on a J-1 visa for training (residency or fellowship) must at the completion of their training either return to their home country for two years or receive a waiver of the two year home requirement in exchange for working in a designated health professional area for a minimum of three years. States participating in the waiver program are authorized to approve up to 30 waivers each federal program year. The federal law authorizing the J-1 waiver program, codified as Public Law 108-441, was amended in December 2004. The amendments:

The following reasons necessitate an emergency rule amendment:

1. Federal law authorizing the J-1 waiver program, codified as Public Law 108-441, was amended in December 2004. Public Law 108-441 basically:

a. Reauthorized the program,

b. Added language allowing states to approve waivers for specialist physicians based on need criteria developed by the state, and

c. Allows states to sponsor up to five waivers to be approved in nondesignated shortage areas.

2. Placing a sufficient number of physicians in underserved areas is a longstanding problem. Many sites, unable to recruit United States trained physicians, have turned to non-United States citizens who have completed training in the United States to address this issue. Nationally it has been increasingly difficult to recruit certain specialties; as a result we have the change in the federal law. By Department of Health rule, specifically WAC 246-562-080, we have limited the types of specialties allowed in the waiver program. Unfortunately, the types of specialists needed in our state do not always fall under this limited list. Harborview Medical Center in Seattle and Yakima Regional Medical and Cardiac Center in Yakima, are examples of sites having difficulty recruiting particular specialties. They have been recruiting neurosurgeons almost constantly and are unable to find United States citizens to fill their vacancies. This speciality is difficult to recruit for due to the limited number of neurosurgeons produced each year compared to the great number of vacancies. Neurosurgeons are also necessary to maintain trauma designations as required by WAC 246-976-535. Both facilities have identified a foreign trained physician as their ideal neurosurgeon candidate, and each candidate requires a J-1 visa waiver. The need for this specialty, to the respective institutions, is critical to provision of care in our state. Due to their visa requirements, if the physicians do not receive a waiver in our state, their options are to look to other states or return to their home countries.

3. A CR-101 was filed with the code reviser and an appropriate public process initiated. In spite of all best efforts permanent rules cannot be in place by the end of the federal program year. The physicians have completed their training and are in the country on training visas which expire August 31, 2005. It is essential our rules be amended on an emergency basis to keep these physicians in Washington state. The existing rule language is not consistent with the new federal language and is the only barrier to these health care facilities accessing these physician services.

These conditions constitute good cause to find threat to the public health, safety, or welfare. The emergency rule is narrowly tailored to address the recent implementation of PL 108-441.

Because the waivers are limited to a program year that is currently in process, and the change in direction of implementation of federal law was provided after the program year was already in process, observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and would eliminate the opportunity for these two health care facilities to access the physicians during this program year. The amendments are tailored to alleviate these conditions on a temporary basis.

The above-described conditions constitute that a recent federal law interpretation by the authoritative agency requires immediate adoption of a rule according to RCW 34.05.350 (1)(b).

Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 2, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 2, Repealed 0.

Date Adopted: August 17, 2005.

M. C. Selecky

Secretary

OTS-8258.1


AMENDATORY SECTION(Amending WSR 98-20-067, filed 10/2/98, effective 11/2/98)

WAC 246-562-070   Criteria for the proposed practice location to be served by the physician.   (1) The proposed practice location must be located in:

(a) A federally designated primary care health professional shortage area(s); or

(b) A federally designated mental health professional shortage area(s) for psychiatrists; or

(c) A federally designated whole-county medically under-served area(s); or

(d) A combination of federally designated areas.

(2) If the federal designation is based on a specific population, the health care facility must serve the designated population.

(3) If the practice location is in both a population designation area and a medically under-served area, the designated population must be served.

(4) If the practice location is not located in a federally designated shortage area or whole-county medically under-served area, the applicant must meet the criteria in WAC 246-562-075.

(5) The health care facility named in the visa waiver application may be an existing practice location or a new practice location ((for the health care facility named in the visa waiver application)). If a new practice location is planned, additional criteria apply. New practice locations must:

(a) Have the legal, financial, and organizational structure necessary to provide a stable practice environment, and must provide a business plan that supports this information;

(b) Support a full-time physician practice;

(c) Have written referral plans that describe how patients using the new primary care location will be connected to existing secondary and tertiary care if needed.

[Statutory Authority: Chapter 70.185 RCW. 98-20-067, 246-562-070, filed 10/2/98, effective 11/2/98.]


NEW SECTION
WAC 246-562-075   Criteria for waiver sponsorships in nondesignated shortage areas.   Public Law 108-441 allows states to sponsor up to five waivers each program year for physicians who will practice medicine in a health care facility that is not located in a designated health professional shortage area but serves patients who reside in designated shortage areas. Waivers will not be open to physicians practicing in nondesignated shortage areas until April 1 of each program year. For waiver approval, the health care facility must:

(1) Provide care to patients who reside in designated shortage areas.

(a) Describe the facility's service area.

(b) Provide a patient visit report based on patient origin by zip code. At least twenty percent of total patient visits must come from patients who reside in designated shortage areas.

(2) Describe who will benefit from the physician's services.

(a) Identify the percentage of Medicaid and Medicare patients who will have access to this physician.

(b) Describe how the facility will assure access to this physician for low-income or uninsured patients.

(c) Explain if the physician has language skills that will benefit patients at this facility.

(3) Provide a detailed report of the extensive recruitment efforts made to recruit a U.S. physician for the specific position that the J-1 physician will fill.

(a) Explain why this physician is necessary at this location.

(b) Explain why it is difficult to recruit a U.S. physician for this location.

(c) Provide the number of physicians interviewed for this position.

(d) Provide the number of physicians offered this position.

[]


AMENDATORY SECTION(Amending WSR 03-19-054, filed 9/11/03, effective 10/12/03)

WAC 246-562-080   Criteria for the physician.   (1) The physician must not have a J-1 visa waiver pending for any other employment offer.

(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) Specialist waivers are available to nonprimary care physician specialties. 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;

(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, 310 Israel Road SE, Tumwater WA 98501.)) Applicants submitting an application for a specialist physician must:

(a) Demonstrate a need for the nonprimary care specialty by addressing one of the following need criteria:

(i) The physician specialty is needed to meet state or federal health care facility regulations; for example, to maintain the hospital trauma designation level.

(A) Identify the regulation; and

(B) Address how facility is currently meeting this regulation.

(ii) The physician specialty is needed to address a major health problem in the facility service area.

(A) Identify the health problem and how this specialty will address it;

(B) Provide incident rates of the pathology and tie diagnosis codes to payer mix (i.e., How many patients are affected and how many are low-income or uninsured?); and

(C) If this specialty is not available in the community, identify the nearest location where this specialty service can be obtained.

(iii) The physician specialty is needed to address population-to-physician ratio because the current ratio does not meet national standards.

(A) Provide the population-to-physician ratio for the specialty, include source for data provided;

(B) Provide the number of physicians (FTE) practicing this specialty in the same HPSA/facility service area;

(C) Provide the distance to the nearest physician practicing the same specialty; and

(D) Describe how the demand for the specialty has been handled in the past.

(b) Describe the referral system that includes:

(i) On-call sharing;

(ii) Affiliation agreements with other health care entities, specifically with community and migrant health centers or other safety providers in the service area.

(c) Provide at least one letter of support for this type of physician specialty from a primary care provider practicing with a safety net system outside of the applicant's organization.

(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. 03-19-054, 246-562-080, filed 9/11/03, effective 10/12/03; 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.]

Washington State Code Reviser's Office