Original Notice.

Preproposal statement of inquiry was filed as WSR 99-15-101.

Title of Rule: J-1 Physician Visa Waiver, chapter 246-562 WAC.

Purpose: Providing inclusion of certain specialists and subspecialist in waiver sponsorship.

Statutory Authority for Adoption: RCW 70.185.040.

Statute Being Implemented: RCW 70.185.010.

Summary: Proposed amendment allows the department to sponsor specialist waiver applications for waiver of visa requirements. Provides clarification of existing rule language.

Reasons Supporting Proposal: Broadening the purpose and allowing limited specialist physician sponsorship will create flexibility within the existing program, while maintaining the federal intent of increase access to primary care.

Name of Agency Personnel Responsible for Drafting: Juno Whittaker, 2725 Harrison Avenue N.W., Olympia, WA, (360) 705-6773; Implementation: Kelly Shaw, 2725 Harrison Avenue N.W., Olympia, WA, (360) 705-6763; and Enforcement: N/A - optional program, initiated by constituent.

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

Rule is necessary because of federal law, 8 U.S.C. Sec. 1184(1) and 22 C.F.R. 514.44(e). Rule is designed to carry out option allowed in federal law.

Explanation of Rule, its Purpose, and Anticipated Effects: Department of Health acts [as] a sponsor for physician visa waivers. This is an optional activity under federal law that allows certain foreign trained physicians to remain in the United States subject to full time employment contract in an area of high need. These amendments broaden the physician types eligible for sponsorship to include certain subspecialists and specialists. Broadening the physician types eligible for the program makes it more likely that a full complement of physicians will be able to participate in the program.

Proposal Changes the Following Existing Rules: The primary amendment addresses the inclusion of specialists in the J-1 program. The J-1 waiver program currently has twenty sponsorships available. Under the proposed rule, five sponsorships (25%) in any single program year will be available for providers with subspecialty training in the following specialties: Internal medicine, family practice, general surgery, or radiology-diagnostic. Sites are allowed two sponsorships each program year, only one of these may be a specialist.

Additional amendments include:

•	Applicant posting and implementing a sliding fee scale.
•	Implementation plan.
•	Clarifying language regarding contractual changes, employment status and visa status.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This is an optional program. The proposed amendments do not affect the cost of exercising the option to use the program in hiring a physician.

RCW 34.05.328 applies to this rule adoption. The rule is a significant rule because is establishes qualification and/or standards for issuance, suspension, or revocation of a license. No one is required to apply to the program, the department is exercising the option provided under federal law. However, residents of Washington may substantially benefit from the program and applicants may be excluded based on the proposed amendments.

Hearing Location: 2725 West Harrison Avenue, Suite 500, Hearings Room, Olympia, WA 98502, on July 6, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Earl Meyer by June 30, 2000, (360) 705-6770, TDD (360) 664-0064 or 1-800-833-6388.

Submit Written Comments to: Juno Whittaker, OCRH, P.O. Box 47834, Olympia, WA 98504-7834, fax (360) 664-9273, by June 30, 2000.

Date of Intended Adoption: July 10, 2000.

May 23, 2000

M. C. Selecky

Secretary

OTS-3893.3

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

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.

(((4))) (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.

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

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

(10) "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.

(((7))) (11) "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.

(((8))) (12) "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.      98-20-067, § 246-562-010, filed 10/2/98, effective 11/2/98.]

(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)) acknowledge 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)) 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 ((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 program year, a health care facility ((will not be granted more than two sponsorships in any one designated shortage area served)) 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. Twenty-five percent of federally allocated sponsorships will be allotted for specialists.

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-020, filed 10/2/98, effective 11/2/98.]

(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)) that:

(a) Have been licensed to do business; 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 Medicare clients; Medicaid clients; low-income clients, such as subsidized basic health plan enrollees; 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.

(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 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:)) Throughout the period of obligation, regardless of physician's visa status, the employment contract must:

(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;

(c) Specify the period of employment:

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

(ii) Five years minimum for specialist sponsorship.

(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)) 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) 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. 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. Notification must be sent at least thirty days prior to submitting the application to the department. Publicly funded providers include, but are not limited to, public hospital districts, local health departments, or community and/or migrant 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 in writing 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)). 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) Applicants must submit status reports to the department every six months, with required supporting documentation, during the initial ((three-year)) term of employment, three years for primary care physicians or five years for specialists.

(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.

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-060, filed 10/2/98, effective 11/2/98.]

(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))) Physicians applying as primary care physicians must:

(a) Provide direct patient care; and

(b) Be trained in:

(i) Family practice; or

(((b))) (ii) General internal medicine; or

(((c))) (iii) Pediatrics; or

(((d))) (iv) Obstetrics and gynecology; or

(((e))) (v) Psychiatry and its subspecialties; and

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

(4) 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; or

(ii) Family practice; 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; and

(v) Be an active candidate for board certification on or before the start date of employment.

(c) 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.

(5) 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))) (6) 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; 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.

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

(8) 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.

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-080, filed 10/2/98, effective 11/2/98.]

((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.)) In the event an applicant for a USDA or other federal agency J-1 waiver submits a copy of an application to the department, the department will acknowledge receipt of the copy of the application.

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-110, filed 10/2/98, effective 11/2/98.]

(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 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 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) 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 and community health centers, 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.

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

(((7))) (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.

(((8))) (9) 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)) copies of USDA or other federal J-1 applications.

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

(((10))) (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.

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

(((12))) (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.

(((13))) (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.

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

(((15))) (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.      98-20-067, § 246-562-120, filed 10/2/98, effective 11/2/98.]

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

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-140, filed 10/2/98, effective 11/2/98.]

(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)) a request for approval of an employment contract amendment;

(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.

[Statutory Authority: Chapter 70.185 RCW.      98-20-067, § 246-562-150, filed 10/2/98, effective 11/2/98.]

(1) Notwithstanding any other provision of this chapter, this rule governs the allocation of departmental J-1 visa waiver sponsorships of specialists and primary care physicians during the federal fiscal year which ends September 30, 2000.

(2) Ten working days after the effective date of this rule, the department will determine:

(a) The number of J-1 visa waiver sponsorships already approved during the federal fiscal year which ends September 30, 2000;

(b) The number of pending primary care applications which the department has determined to be complete.

The department will subtract the sum of these two numbers from twenty which is the total number of J-1 visa waiver sponsorships the federal government has allocated to the state of Washington for the federal fiscal year ending September 30, 2000. The department will multiply the difference between these two numbers by .25. In the event the product of this operation is a whole number, the department will allocate that number of J-1 visa waiver sponsorships to specialists for the federal fiscal year ending September 30, 2000. In the event the product of this operation is not a whole number, the department will determine the larger of the two whole numbers between which the product falls, and will allocate that number of J-1 visa waiver sponsorships to specialists for the federal fiscal year ending September 30, 2000. All other J-1 visa waiver sponsorships available during the federal fiscal year ending September 30, 2000, will be allocated to primary care physicians.

(3) The department will not accept J-1 visa waiver sponsorship applications from specialists until ten days after the effective date of the amendments of which this rule is a part, but may advise specialists with respect to any proposed application.

(4) The department will prioritize among specialists applying for J-1 visa waiver sponsorships for the federal fiscal year ending September 30, 2000, using criteria generally applicable to the selection of specialists under this chapter.

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