Preproposal statement of inquiry was filed as WSR 98-06-077.

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

Purpose: Provide increased access to physician services in areas with high population-to-physician ratios.

Statutory Authority for Adoption: RCW 70.185.040.

Statute Being Implemented: Chapter 70.185 RCW.

Summary: Proposed rule specifies how the department may act on requests from Washington applicants to sponsor a physician visa waiver, allowing a foreign-trained physician to serve in a federally designated shortage area.

Reasons Supporting Proposal: Rules will make it easier for applicants to determine if the department can act as sponsor, will guide applicants in making the request, and will allow the department to target the program to high need areas. Department actions will be legally defensible.

Name of Agency Personnel Responsible for Drafting: Callie Wilson, Kelly Shaw, Verne Gibbs, 2725 West Harrison Avenue, Suite 500, (360) 705-6770; Implementation: Kelly Shaw, Verne Gibbs, 2725 West Harrison Avenue, Suite 500, (360) 705-6770; and Enforcement: N/A - optional program, initiated by constituent request.

Name of Proponent: [Department of Health], governmental.

Rule is necessary because of federal law, 8 USC Sec. 1184(1) and 22 CFR 514.44(e). Rule is designed to carry out option allowed in federal law.

Explanation of Rule, its Purpose, and Anticipated Effects: Despite an adequate number of physicians in the state of Washington to meet the needs of Washington residents as a whole, the existing physician supply is not distributed across the state to meet physician access needs. Adequate access to public health services, emergency services, and basic medical care depends on a suitable distribution of medical care providers, including physicians.

The purpose of this rule is to describe how the department will exercise an option allowed under federal law. The option is to sponsor physician visa waivers, requested by Washington state employers, for foreign-trained physicians. The physicians and employers must commit to full-time employment for three years in a federally-designated shortage area.

The anticipated effect is to increase the pool of physician candidates available to Washington state employers attempting to fill long-standing vacancies in areas documented to be chronically short of physicians. In turn, the residents of those areas will receive increased access to physician services.

Proposal does not change existing rules.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

and

Economic Impact Analysis

This report contains two analyses: An economic impact analysis (EIA) and a small business economic impact statement (SBEIS).

The EIA determined the cost to comply with the proposed rule is $500 to $750. The businesses that are using this option are hospitals, medical clinics and medical practices. They will be incurring this cost in addition to about $150,000 of first year costs associated with employing a physician. The nonrecurring cost per dollar of sales for a small business, and for a large business, is in the range of $.003 to $.004 for the first year.

The EIA also assessed the Department of Health's (DOH's) program administration costs. There is no fee envisioned at this time, but the analysis describes the public benefit purchased by the costs incurred by DOH to administer the program described in chapter 246-562 WAC.

The SBEIS describes how the costs are not imposed in a disproportionate manner on small businesses. While costs are alike for large and small businesses, they are mitigated by the voluntary nature of the program and the overall attempt to keep regulation at a minimum. Both large and small businesses benefit.

Background: The Department of Health provides recruitment assistance as authorized in RCW 70.185.020. In October 1994 there were changes to a federal law, Public Law 103-416, that allowed state health departments to act as physician sponsors under certain conditions. The state is limited to twenty sponsorships in each federal fiscal year.

Federal law was amended in 1996 to bring various federal programs into alignment, and to extend the authority for state sponsorship to the year 2002. Federal regulations were adopted in 1997 that applied to some, but not all physicians who would ultimately practice in Washington state.

Chapter 246-562 WAC is designed to give guidance to Washington state employers who request DOH to exercise its authority to act as a sponsor. It is also intended to target those sponsorships, as intended by the federal program, to those areas in highest need of primary care physician services.

At this time, a physician visa waiver is scrutinized by the United States Information Agency (part of the state department), the Immigration and Naturalization Service, the Department of Labor (for wage and working condition issues) and, sometimes, if acting as a rural area sponsor, by the Department of Agriculture (USDA).

Complying with chapter 246-562 WAC will help the applicant meet the federal requirements. These ultimately must be met for successful physician recruitment.

Past Sponsorships: In 1995, the Department of Health (DOH), sponsored eight physicians. All continue to serve in shortage areas of the state. In 1996, DOH participated in six sponsorships, and all of these physicians are currently serving, also. Likewise, USDA sponsored successful physician placements.

In 1997, using the same criteria as before, DOH received twenty requests, and sponsored each. Three of the twenty are not serving now, and two were unable to start, a total of five of the twenty. Washington residents will benefit if all twenty sponsorships are for viable practice locations. It became clear that in the future, the twenty waiver sponsorships would be a scarce resource.

Reason for Rules: In 1997 DOH made an inventory of policies that might need to be in regulation. The department determined that there would be a public benefit to regulation to assure:

Applicants using a state slot would be able to meet federal requirements,

The sponsorships would be targeted to long-standing vacancies, and

Washington residents will benefit from access to physician services.

In summary, the twenty slots are a limited resource. Failure to target to employers who can effectively meet federal requirements will, in effect, impose a cost on others, of a lost opportunity. No one is required to use the program, it is offered as a service to Washington employers who wish the department to exercise this optional authority.

What does it cost to comply with chapter 246-562 WAC? No one is required to use the program, it is offered as a service to Washington employers who wish the department to exercise this optional authority.

What does it cost a business to comply? The application form, designed to assist the applicant to assemble both state and federal documentation, was reviewed for the burden it imposes for state requirements, beyond the federal requirements. We determined the costs of meeting state application requirements above the obligatory federal requirements to be in the range of $500 to $750. The discussion below describes how this was determined.

Assumptions used in determining cost of compliance. The following assumptions are used:

Immigration attorney costs: $3,000 - 5,000

Minimal difference if state supplies a form, may be cost savings

Typical and intended applicant will have the required information at hand

The employer/physician combination responding to the application will use an immigration attorney. The costs may be borne by either party or may be split. The costs of the legal assistance needed to secure the employment relationship of a foreign trained physician (including other requirements beyond J-1 waiver) will continue to range from $3,000 to $8,000, depending on the complexity of the case and the presence of family members. These costs were established by a survey in 1995. They are still valid.

The brevity of using a check box, as provided in the application provided by DOH, instead of document creation for each item, will result in a cost savings for people who are paying an hourly rate, and no change for people who have negotiated a flat fee.

Item with most extensive documentation will be rarely imposed or required. State documentation required will be readily at hand for the intended prospective users. It is unlikely that this program will be used for a new start-up location, and this is the one area requesting extra documentation. This cost was imposed to assure that new locations had the capacity to serve, and thus meet the goals of the program.

The department reserves the right to verify information. Only if there is doubt that a business exists, or Medicaid contracts are possible, will additional documentation be assembled. The department will carry most of the cost of verification activity from public sources.

Our recent experience shows that it is possible to create the appearance of a medical service capacity on paper, with no existing facility. It is also possible to assert an intention to serve vulnerable populations, without any capacity to do so. It is not our intention for this ease of application to continue. This would not serve residents of Washington, or the typical applicant. The typical applicant serves low-income and vulnerable populations, has the capacity to do this, and is seeking to fill a long-standing physician vacancy.

Other State Documentation Required: Assembling information may require a private employer (but not public applicants) to formally put a relationship with a public provider in writing. This is assumed to require three hours of executive time. It will not be required of most applicants.

Regardless of using an attorney, if an employer wishes to use the J-1 waiver program for hiring a physician, five days of executive time and two days of clerical time will be required above the effort normally involved in hiring a physician for initial paperwork. This assumes that the organization will need a unique contract developed to meet federal and state requirements, different from the contract the employer would have used.

Ongoing reporting will require one day of clerical effort a year and two hours of executive and one hour physician time a year.

Situations not Anticipated by this Analysis: This analysis does not anticipate the costs that might be incurred by an entity that does not yet serve vulnerable populations. A practice could change the client base in order to be able to use this program, and might incur costs not reflected here.

It is conceivable that one might try to create a practice setting solely for the purpose of hiring a foreign-trained physician. This would require costs that are not captured here. Our intent is to fill existing long-standing vacancies, in practices currently serving vulnerable populations. The WAC will, in the future, limit to the intended employers.

Costs Related to Complying with both Federal and State Requirements:

Chapter 246-562 WAC

PHYSICIAN VISA WAIVERS

NEW SECTION

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) "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 and any other considerations owing under the agreement.

(4) "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.

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

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

(7) "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.

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NEW SECTION

WAC 246-562-020  Authority to sponsor visa waivers. (1) The department of health may assist communities to recruit and retain physicians, or other health care professionals, as directed in chapter 70.185 RCW, by exercising an option provided in federal law, 8 U.S.C. Sec. 1184(l) and 22 C.F.R. 514.44(e). This option allows the department of health to sponsor a limited number of visa waivers each federal fiscal year if certain conditions are met.

(2) The department may also concur in sponsorship proposed by federal agencies, including the United States Department of Agriculture. The department will apply the same criteria to concurrence requests as it applies to applications for state sponsorship.

(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 primary care physician services;

(c) To serve Washington communities who 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.

(4) The department may only sponsor or concur in 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 year, a health care facility will not be granted more than two sponsorships in any one designated shortage area served.

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NEW SECTION

WAC 246-562-040  Principles that will be applied to the visa waiver program. (1) The visa waiver program is considered a secondary source for recruiting qualified physicians. It is not a substitute for broad recruiting efforts for graduates from U.S. medical schools.

(2) Sponsorship may be offered to health care facilities that can provide evidence of sustained active recruitment for the vacancy in the practice location with a physician who has specific needed skills.

(3) Sponsorship is intended to support introduction of physicians into practice settings that promote continuation of the practice beyond the initial contract period.

(4) Sponsorship will be for an employment situation where there is community support and a collegial professional environment.

(5) The visa waiver program will be used to assist health care facilities that provide care to all residents of the federally designated under-served area. When a federal designation is for an under-served population, the health care facility must provide care to the under-served population.

(6) Sponsorship is available to health care facilities that can document the provision of needed services, regardless of public or private ownership.

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NEW SECTION

WAC 246-562-050  Review criteria. Applicants and physicians must meet the criteria established in 8 U.S.C. 1184(l) and 22 C.F.R. Sec. 514.44(e) which are incorporated by reference. Copies of these provisions may be requested from the department by writing to the Washington State Department of Health, Office of Community and Rural Health, Visa Waiver Program, PO Box 47834, Olympia, WA 98504-7834.

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

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NEW SECTION

WAC 246-562-060  Criteria for applicants. (1) Applicants must be existing health care facilities licensed to do business in Washington state. The applicant must provide medical care for a minimum of twelve months prior to submitting a visa waiver application to the department.

(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 Medicare clients, Medicaid clients, low-income clients, such as subsidized basic health plan enrollees and uninsured clients; and 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.

(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 must be for a period of not less than six months prior to submitting a visa waiver application to the department.

(5) Applicants must have a signed employment contract with the physician. The employment contract:

(a) Must meet state and federal requirements;

(b) Must not prevent the physician from providing medical services in the designated shortage area after the term of employment.

(6) Applicants must pay the physician at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment opportunity or the prevailing wage level for the position in the area of employment, whichever is higher.

(7) If the applicant has previously requested sponsorship of a physician, WAC 246-562-130 will apply.

(8) If the applicant is not a publicly funded provider, additional criteria apply. Publicly funded providers include, but are not limited to, public hospital districts or community health centers. The applicant must provide a letter from each of the publicly funded providers serving the federally designated shortage area. The letter must:

(a) Describe a mutually supportive relationship;

(b) Confirm that the proposed addition of a physician will benefit the federally designated shortage area;

(c) Explain how the applicant, through call coverage, referral, or other mechanism will contribute to meeting the local needs.

(9) Applicants must notify the department of the physician's start-date of employment and of any changes in the physician's employment status during the initial three years of employment.

(10) Applicants must submit status reports to the department every six months, with required supporting documentation, during the initial three-year term of employment.

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

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NEW SECTION

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) 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.

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NEW SECTION

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) The physician must provide direct patient care and be trained only in the following five primary care areas:

(a) Family practice; or

(b) General internal medicine; or

(c) Pediatrics; or

(d) Obstetrics and gynecology; or

(e) Psychiatry.

(4) 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.

(5) Physicians must have at least one recommendation from their residency program 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.

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

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NEW SECTION

WAC 246-562-090  Application form. (1) Physician visa waiver program application forms are available and may be requested from: Washington State Department of Health, Office of Community and Rural Health, Visa Waiver Program, PO Box 47834, Olympia, WA 98504-7834.

(2) Applications must be completed in their entirety, addressing all state and federal requirements, and must include all required documents as specified in the application form.

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NEW SECTION

WAC 246-562-100  Criteria applied to federally designated facilities. Local, state, or federal institutions that are federally designated with a facility designation may request state sponsorship. Physician services may be limited to the population of the institution. All other state and federal requirements must be met.

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NEW SECTION

WAC 246-562-110  Concurrence with United States Department of Agriculture or other federal waiver requests. Concurrence with federal waiver requests will be offered to applicants who:

(1) Submit an application with a written request for a letter of concurrence;

(2) Meet all federal requirements; and

(3) Meet all state requirements.

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NEW SECTION

WAC 246-562-120  Department review and action. (1) The department will review applications for completeness in date order received.

(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 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 to remove them from federal shortage status will rank second.

(c) Publicly funded employers, such as public hospital districts and community health centers, 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) The department will review applications within ten working days of receipt of the application to determine if the application is complete.

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

(7) 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.

(8) The department will return applications that are received after the maximum number of sponsorships have been approved. This does not apply to requests for concurrence.

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

(10) 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.

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

(12) The department may:

(a) Request additional clarifying information;

(b) Verify information presented;

(c) Investigate financial status of the applicant.

(13) 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.

(14) The department may deny a visa waiver request or, prior to USIA 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.

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

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NEW SECTION

WAC 246-562-130  Eligibility for future participation in the visa waiver program. (1) Health care facilities may be denied future participation in the state visa waiver program if:

(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.

(c) A sponsored physician does not remain employed by the applicant for the full three years of employment.

(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.

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NEW SECTION

WAC 246-562-140  Department's responsibility to report to the United States Information Agency. (1) The department may report to the United States Information Agency if the applicant or physician is determined to be out of compliance with any of the provisions of this chapter.

(2) The department may report to the United States Information Agency if the physician is determined to have left employment in the federally designated area.

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NEW SECTION

WAC 246-562-150  Appeal process. (1) The applicant or physician may appeal the following department decisions:

(a) To deny or withdraw a visa waiver sponsorship;

(b) To deny or withdraw a sponsorship concurrence;

(c) Determination that the applicant or physician is out of compliance with this chapter; or

(d) Determination that the applicant is not eligible for future participation in the visa waiver program.

(2) The appeal process is governed by the Administrative Procedure Act (chapter 34.05 RCW), chapter 246-10 WAC, and this chapter.

(3) To initiate an appeal, the applicant must file a written request for an adjudicative proceeding within twenty-eight days of receipt of the department's decision.

(4) The request shall be mailed, by a method showing proof of receipt, to the Adjudicative Clerk Office, PO Box 47879, 2413 Pacific Avenue, Olympia, WA 98504-7879.

(5) The request must contain:

(a) A specific statement of the issue or issues and law involved;

(b) The grounds for contesting the department's decision; and

(c) A copy of the department's decision.

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