No. 28181 (New Rule): R434-100. Physician Visa Waivers

DAR File No.: 28181
Filed: 08/30/2005, 09:57
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes criteria to determine whether it is in the public interest to request a J-1 visa waiver for a physician and to establish the procedures for the submission, review, and disposition of applications.

 

Summary of the rule or change:

The proposed rule includes the maximum number of visa waivers that can be granted annually, J-1 visa physician eligibility criteria, health care facility request criteria, contract requirements between the J-1 visa physician and health care facility, application deferral processing criteria determined by the department, and program improvements that may be required by the health care facility and the J-1 visa waiver physician.

 

State statutory or constitutional authorization for this rule:

Section 26-1-18, and 22 CFR 41.63

 

Anticipated cost or savings to:

the state budget:

Some cost to revise, print, and distribute the new rule to health care facilities throughout the state and J-1 visa waiver physician applicants. Administrative costs are absorbed within current workload and staffing.

 

local governments:

This rule does not require an increased workload or cost to local governments. Cost savings are anticipated through the recruitment and retention of J-1 visa waiver physicians by hospitals, clinics, community health centers, or local health departments who will hire the physicians to serve the medically underserved populations of the State of Utah.

 

other persons:

Changes to this rule do not require an increased workload or cost to other persons. Savings are anticipated through the recruitment and retention of J-1 visa waiver physicians by hospitals, clinics, community health centers, or local health departments who will hire the physicians to serve the medically underserved populations of the State of Utah.

 

Compliance costs for affected persons:

There are no compliance costs associated with affected persons. This will only affect the providers.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

Businesses impacted by the J-1 visa waiver program, which allows medically underserved populations in Utah to access physician services, should be positively impacted by this rule. David N. Sundwall, MD, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Systems Improvement, Primary Care and Rural Health
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

 

Direct questions regarding this rule to:

Don Beckwith or Erin L Olsen at the above address, by phone at 801-538-6818 or 801-538-6214, by FAX at 801-536-0940 or 801-538-6387, or by Internet E-mail at [e-mail] or [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/17/2005

 

This rule may become effective on:

10/18/2005

 

Authorized by:

David N. Sundwall, Executive Director

 

 

RULE TEXT

R434. Health, Health Systems Improvement, Primary Care and Rural Health.

R434-100. Physician Visa Waivers.

R434-100-1. Authority and Purpose.

(1) Sections 1182(e) and 1184 of Title III of the Immigration and Nationality Act and 22 CFR 41.63 provide that the state may request a waiver of the federal two year home residence requirement on behalf of J-1 visa physicians each fiscal year if they work in a medically underserved area of the state and if the waiver is in the public interest. Section 26-1-18 authorizes the Utah Department of Health to implement this program.

(2) This rule establishes the criteria to determine whether it is in the public interest to request a J-1 visa waiver for an applicant. It establishes the procedures for the submission, review, and disposition of applications.

 

R434-100-2. Definitions.

As used in this rule:

(1) "Department" means the Utah Department of Health.

(2) "Health care facility" means a doctor's office, local health department, clinic or licensed health care facility where a J-1 visa waiver physician may work under the supervision of the sponsoring physician.

(3) "Principal" means any person who owns 10% or more beneficial or equitable interest in the health care facility.

 

R434-100-3. Maximum Number of Visa Waivers.

(1) The Department may recommend J-1 visa waivers up to the maximum number of eligible J-1 visa waivers that have been granted in a federal fiscal year. If the maximum number of J-1 visa waivers have been granted, the Department shall consider pending applications in the following federal fiscal year in the order each was received.

(2) Each health care facility may make up to two requests per federal fiscal year.

 

R434-100-4. Physician Eligibility.

(1) A physician is eligible to apply for a J-1 visa waiver recommendation if he:

(a) is enrolled in or has completed a minimum three year postgraduate training program in the United States accredited by the Accreditation Committee on Graduate Medical Education or the American Osteopathic Association Bureau of Professional Education prior to submitting an application;

(b) has passed the examination requirements for licensure as a physician or surgeon or osteopathic physician or surgeon in Utah, pursuant to rule established by the Division of Occupational and Professional Licensing; and

(c) has the specialty training and previous work experience that corresponds to the health care facility's recruitment descriptions.

 

R434-100-5. Requests.

The health care facility or the physician must submit to the Department a written request for the J-1 visa waiver.

(1) The request must include from the health care facility:

(a) documentation of its recruitment efforts to hire a qualified United States citizen for at least one immediate prior year for the position the J-1 visa waiver physician seeks to fill;

(b) documentation that it implements a sliding fee scale, payment schedule, or similar method that demonstrates that it provides discounts to medically indigent patients; and

(c) an assurance letter that the health care facility and its principals are not under investigation for, under probation for, or under restriction for:

(i) Children's Health Insurance Program, Medicaid, or Medicare fraud;

(ii) violations of Division of Occupational and Professional Licensing statute or rules; or

(iii) other violations of law that may indicate that it may not be in the public interest that a waiver of the two-year home residency requirement be granted.

(2) The request must include from the physician:

(a) a completed application that includes all professional experience, education, licenses and certificates, research, honors, professional memberships, and three professional references;

(b) a copy of all IAP-66 forms "Certificate of Eligibility for Exchange Visitor (J-1) Status" and INS forms I-94 for the physician and his or her spouse and children; and

(c) the case number issued by the United States Department of State indicating payment of the federal fee required to apply for the visa waiver.

(3) The request must also include:

(a) a copy of the complete contract between the J-1 visa waiver physician and the health care facility;

(b) any required processing fees; and

(c) other information requested by the Department as may be reasonably necessary to determine whether it is in the public interest that a waiver of the two-year home residency requirement be granted.

 

R434-100-6. Contract Requirements.

To obtain a state recommendation that the visa waiver is in the public interest, the contract that the applicant submits must meet the following criteria:

(1) The contract must be for employment at a health care facility:

(a) located within a federally designated primary care Health Professional Shortage Area;

(b) that has been operating for at least one year;

(c) whose principals are free from default on any federal or state scholarship or loan repayment program offered by the National Health Service Corps or by the state under Title 26, Chapter 50;

(d) that it or its principals are not under investigation for, under probation for, or under restriction for:

(i) Medicaid or Medicare fraud;

(ii) violations of Division of Occupational and Professional Licensing statute or rules; or

(iii) other violations of law that may indicate that it may not be in the public interest that a waiver of the two-year home residency requirement be granted.

(e) that accepts all Medicaid, Medicare, Children's Health Insurance Program, Primary Care Network and Utah Medical Assistance Program eligible patients; and

(f) that implements a sliding fee scale, payment schedule, or similar method that demonstrates that it provides discounts to medically indigent patients.

(2) The contract must provide:

(a) that the physician agrees to meet the requirements set forth in section 214(k) of the Immigration and Nationality Act, 8 USC 1184(k);

(b) the specific address of the health care facility where the physician will practice medicine;

(c) a description of the geographic area that will be served by the physician;

(d) that the physician agrees to work an annual full-time equivalency of 40 hours in patient care per week;

(e) for an obligation committing both parties to three years of employment; and

(f) that the physician agrees to begin employment at the health care facility within 90 days of the waiver being granted;

(3) The contract shall not contain a "non competition" clause or other provision that would discourage or inhibit the physician from working anywhere in the state upon termination of his employment with the health care facility.

 

R434-100-7. Application Deferral.

(1) The Department may defer processing of a request if the health care facility or any of its principals is under investigation or awaiting trial for possible:

(a) Medicaid or Medicare fraud;

(b) violations of Division of Occupational and Professional Licensing statute or rules; or

(c) other violations of law that may indicate that it may not be in the public interest that a waiver of the two year home residency requirement be granted.

(2) The Department may defer processing of a request if the health care facility or any of its principals is under probation or has entered a plea in abeyance for any alleged violation of the elements listed in subsection (1).

(3) A physician applicant may seek to obtain a J-1 visa waiver as an employee of another health care facility if the Department has deferred processing of a request under subsections (1) or (2).

(4) If a health care facility for which a request has been deferred desires the Department to remove the deferral, it must notify the Department and provide documentation that the reason for the deferral no longer exists.

 

R434-100-8. Program Improvement.

The Department may require the health care facility and J-1 visa waiver physician to provide information regarding the performance, commitment to the medically underserved area, service obligation fulfillment, and any other information regarding their experience under the J-1 visa waiver as is reasonably necessary for the administration of the program.

 

KEY: waiver, underserved, physicians

2005

26-1-18