OHIO FALL CLE CONFERENCE J-1 WAIVERS: A NEEDED CURE TO PHYSICIAN RECRUITMENT Robert D. Aronson Fredrikson & Byron, P.A. Minneapolis, MN Michael M. Jolic Sharon & Kalnoki LLC Independence, OH

Focus of Program CONVERSELY: J-1 WAIVERS: Program will only tangentially touch on other aspects of IMG immigration challenges J-1 WAIVERS: Particularly based on Interested Government Agency (IGA) recommendations

Structure of Program -A Few Words About IMG Immigration Fundamental Concepts History and Evolution of J-1 Waivers - in Particular, the Conrad State 30 Waiver Program IMG Waiver Theories Basic Construct of the Conrad Waiver Program Ohio Waiver Program Searching for Alternatives: HHS & ARC Clinical Waivers Future of Conrad Waiver Program

Basic Building Blocks of IMG Waivers: Definition of Terms International Medical Graduate (IMG) Graduate Medical Education (GME) Educational Commission of Foreign Medical Graduates (ECFMG) Primary Care vs. Specialty Care Accreditation Council of Graduate Medical Education (ACGME) © 2016 Fredrikson & Byron, P.A.

Basic Building Blocks of IMG Waivers: Definition of Terms Medically Underserved Designations Health Professional Shortage Area (HPSA) Medically Underserved Areas (MUA) Medically Underserved Populations (MUP) Miscellaneous designations © 2016 Fredrikson & Byron, P.A.

A Word About the Purpose of Medically Underserved Designation Schemas

Focus on Medically Underserved Designations HPSA Primary Care Physician: Population Ratios Geographic Area vs. Population Group vs. Facility designation MUA 4 values: 1)physician ratios; 2)infant mortality; 3) poverty levels; 4) geriatric population MUP Identifying population groups facing barriers to physician access (ex: economic barriers ; cultural and/or linguistic barriers) © 2016 Fredrikson & Byron, P.A.

IMG Pathway to Medical Practice: Indispensable Role of GME Need for GME as a prerequisite to state medical licensure Medical examination process Role of ECFMG: Ascertaining medical competence Administering IMG match program to GME J-1 visa eligibility (per delegation from DOS) © 2016 Fredrikson & Byron, P.A.

VISA Options for GME J-1 Exchange Visitor (predominating) H-1B O-1 EAD (J-2 EAD) © 2016 Fredrikson & Byron, P.A.

Health Professions Educational Assistance Act (P. L Health Professions Educational Assistance Act (P.L. 94-484): Emergence of Blanket Two Year Home Residence Obligation

J-1 Physician Options Upon Completing GME © 2016 Fredrikson & Byron, P.A.

3 IMG Waiver Theories(INA 212(e)) Exceptional hardship to anchor relative Persecution Interested Government Agency (IGA) (Missing: No Objection) © 2016 Fredrikson & Byron, P.A.

4 Employment Paradigms for IGA Waiver Recommendations Direct employment relationship with federal agency (VA; DOD) Outstanding research in the public interest (hybrid IMG activity) Clinical work of relevance to federal agency (ARC; DRA; HHS; potentially others) State Dept. of Health (Conrad State 30 Waiver Program) © 2016 Fredrikson & Byron, P.A.

COMMON FEATURES OF FEDERAL IGA WAIVER & CONRAD WAIVER: EXPAND THE SAFETY-NET IN A MANNER SERVING THE PUBLIC INTEREST © 2016 Fredrikson & Byron, P.A.

Evolution of Conrad Waiver Program Initial Program: 1994- 1996 Creating Greater Balance between Federal and State Waiver Programs: 1996-2002 Expansion of Waiver Numbers: 2002-2004 Further Leveling Out the Playing Field: 2004 – 2008 Maintaining the Status Quo: 2008 - © 2016 Fredrikson & Byron, P.A.

Conrad Waiver Program Sunsets: September 30, 2016: THEN WHAT? Termination of program? Simple Extension? Revisions to Program? Reengineering IMG Immigration? © 2016 Fredrikson & Byron, P.A.

Federal Requirements for a Conrad Waiver Limit of 30 Waivers/Fiscal Year Medically Underserved Placements: Up to 30 FLEX Waivers: 10 3-Year H-1B Employment Obligation Need to Agree to Work in Position within 90 days of Waiver Issuance Exemption from H-1B cap © 2016 Fredrikson & Byron, P.A.

Issue Areas for State Action Primary Care vs. Specialty Care Limitations on Underserved Designation Limitations to Employers FLEX Policy Non-Compete © 2016 Fredrikson & Byron, P.A.

Issue Areas for State Action Departure Policies Reporting Requirements Application Fees Merit-Based or FIFO Processing Policies © 2016 Fredrikson & Byron, P.A.

Issue Areas for State Action Departure Policies & Reporting Requirements: Are They Necessary? Are They Enforceable? Liquidated Damages Non-Competes © 2016 Fredrikson & Byron, P.A.

Issue Areas for State Action Characteristics of Employer: Public Assistance Provider Charity Care Policy Public Outreach/Statewide Resource Academic Medical Centers Primary Care: Definition Who Provides Primary Care Services? © 2016 Fredrikson & Byron, P.A.

OHIO Waiver Program Preference for primary care, but specialty care physicians eligible FLEX possible 40 hours/week of direct patient care Nature of healthcare facility: Medicare/Medicaid; charity care; sliding fee schedule Application filed for Ohio state medical license $3,571 filing fee © 2016 Fredrikson & Byron, P.A.

Identification of OHIO Program Priorities Primary care defined Mental health physicians working in mental health HPSAs Hierarchy of facility placements Primary care in HPSA & psychiatry specialties in mental health HPSAs Primary care in MUA/Ps on list of Eligible Public & Children's Hospitals in MUAs and Eligibility MUA/Ps All other primary care placements © 2016 Fredrikson & Byron, P.A.

Identification of OHIO Program Priorities Non-Primary Care Placements in HPSA and mental health HPSA Eligible public and children’s hospitals in MUAs Other MUA/Ps All other © 2016 Fredrikson & Byron, P.A.

Mandatory Contractual Terms for OHIO Waivers The complete address(es) of the practice location(s). A full-time, 40-hour work week in direct clinical care for three years (On-call and travel time is not counted in the required 40-hour work week). © 2016 Fredrikson & Byron, P.A.

Mandatory Contractual Terms for OHIO Waivers A statement documenting that the J-1 physician candidate agrees to begin work within 90 days of receipt of the J-1 waiver and the H-1B visa A competitive salary for the area The statement: “Any change or amendment to the employment contract must adhere to Ohio Dept. of Health (ODH) J-1 Visa Waiver requirements.” Signature and date by both employer and physician © 2016 Fredrikson & Byron, P.A.

Prohibited Provisions in OHIO Waiver Contracts A non-compete clause Termination without cause or by mutual agreement until the statutorily required three (3) years have expired. Allowance for changing or adding practice site without prior approval from ODH and USCIS © 2016 Fredrikson & Byron, P.A.

Prohibited Provisions in OHIO Waiver Contracts Only one employment agreement is permitted between the sponsor and the J-1 physician during the physician’s 3-year obligation Contracts that may be in place for physicians on O-1 visas prior to receipt of J-1 visa waiver approval must be terminated before the physician’s J-1 visa waiver obligation start date © 2016 Fredrikson & Byron, P.A.

Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece List the sponsoring organization Identification of practice site (if different) and name and specialty of J-1 physician applicant Define the service area for the sponsoring organization and practice site, if different. © 2016 Fredrikson & Byron, P.A.

Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece Provide site-specific staffing information, including total number of positions by specialty and number of vacancies Describe how this request will address unmet need in the service area for the medical specialty of the J-1 physician applicant © 2016 Fredrikson & Byron, P.A.

Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece Document that efforts to recruit a U.S. citizen physician for the same specialty and site have been conducted over the past twelve months and have been unsuccessful. A summary description is requested. Do not submit copies of ads, emails, recruitment frim contracts, etc. © 2016 Fredrikson & Byron, P.A.

Adjudication Process Within the Ohio Department of Health: Comments of Colleen Schwartz © 2016 Fredrikson & Byron, P.A.

Respective Perceptions of OHIO Waiver Program: Discussion © 2016 Fredrikson & Byron, P.A.

J-1 Waiver Program of Department of Health and Human Services © 2016 Fredrikson & Byron, P.A.

Restrictive Features Facility designation: Section 330 funded CHC; Rural Health Clinic; Native American/Alaskan Native tribal facility Practice eligibility: limited to primary care Commencement date of practice: within 1 year of completing primary care residency Geographic designation: HPSA score of 07 or higher © 2016 Fredrikson & Byron, P.A.

Comparative Advantages: No quota limitation No application fee Somewhat underutilized: 73 issued in FY2016 © 2016 Fredrikson & Byron, P.A.

A Few Words on Appalachian Regional Commission (ARC) J-1 Waiver Program HPSA site Within ARC defined area Restrictive definition of primary care Liquidated damages ($250,000) Requires “official” state endorsement © 2016 Fredrikson & Byron, P.A.

Open and Unresolved Issues in Conrad/J-1 Waiver Program Identifying country of fulfillment (and relationship to Statement of Need) Qualitative nature of home residence: Physical presence/ Residence J-2 country of fulfillment J-2 immigration options Standards of full-time employment/What is regarded as clinical activity © 2016 Fredrikson & Byron, P.A.

Open and Unresolved Issues in Conrad/J-1 Waiver Program Organic needs of physicians: Clinical practice/hospital coverage Service in H-1B status: What is basis? Breaks in H-1B employment Split appointments (generally for academic physicians) Ongoing exemption from H-1B cap © 2016 Fredrikson & Byron, P.A.

Open and Unresolved Issues in Conrad/J-1 Waiver Program 90-day commencement period Loss of shortage designation Extenuating circumstance issue Transfer into FLEX employment position © 2016 Fredrikson & Byron, P.A.

Putting the Pieces Together Waivers/immigration as IMG recruitment tool Working with healthcare employers Working with the state Role of the attorney © 2016 Fredrikson & Byron, P.A.

Questions? © 2016 Fredrikson & Byron, P.A.