Oregon Bulletin
February 1, 2011
Rule
Caption: Physician VISA Waiver Program
Rules.
Adm.
Order No.: OHP 7-2010
Filed with Sec. of
State: 12-29-2010
Certified to be
Effective: 1-1-11
Notice Publication
Date: 12-1-2010
Rules Ren. &
Amend: 333-005-0000 to 409-035-0000,
333-005-0010 to 409-035-0010, 333-005-0020 to 409-035-0020, 333-005-0030 to
409-035-0030, 333-005-0040 to 409-035-0040, 333-005-0050 to 409-035-0050,
333-005-0060 to 409-035-0060
Subject: The Oregon Health Authority, Office for Oregon Health
Policy and Research needs to amend and renumber OAR 333-005-0000 through
333-0005-0060 to 409-035-0000 through 409-035-0060. The rule is being moved
from Chapter 333 (Public Health Division) to Chapter 409 (Office for Oregon
Health Policy and Research) to align and update references consistent with
agency reorganization. Rule language is being clarified and amended to comply
with changes in federal regulation 22 CFR 41.63. The current rules require 20%
of patient visits to be either Low Income Uninsured or Medicaid recipients.
Proposed language allows inclusion of Medicare patient visits in the 20% (see
409-035(3)(c)). The proposed rules also respond to a change in federal law that
allows up to ten J-1 physician placements per year to practice in federally
non-designated areas so long as they will treat patients from federally
designated areas. Changes to this rule will allow a greater ability to serve
clients in areas where there is a physician shortage.
Rules Coordinator: Zarie Haverkate—(503) 373-1574
409-035-0000
Purpose of the Physician Visa
Waiver Program
The purpose of the Physician Visa Waiver program is to
make recommendations to the United States Department of State for waivers of
the foreign country residency requirement on behalf of physicians holding visas
who seek employment in federally designated areas having a shortage of
physicians. These rules set forth the requirements for Oregon to make requests
for waiver of the foreign country residency requirement as authorized under 8 U.S.C.
secs. 1182(e) and 1184(l).
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0000 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0010
Definitions
For the purposes of this Division, the following
definitions apply:
(1) “Application” means the Physician Visa Waiver
Program application form and accompanying documentation.
(2) “Authority” means the Oregon Health Authority.
(3) “Department of State” means the federal agency that
reviews J-1 applications.
(4) “Flex Option” means the placement of a physician in
an area that is not federally designated, who will serve patients living in
designated shortage areas.
(5) “Health Care Facility” means the clinic or hospital
that employs the J-1 physician.
(6) “Health Services and Resources Administration”
(HRSA) means the branch of the Department of Health and Human Services that
designates federal shortage areas.
(7) “Health Care Shortage Area” means a geographic area
or site approved by HRSA. Categories include Health Professional Shortage area
(HPSA), Medically Underserved Area (MUA), and Medically Underserved Population
(MUP).
(8) “J-1 Application” refers to the application form
and supporting material submitted jointly by the health care facility and the
J-1 physician to the Authority.
(9) “J-1 Physician” means allopathic or osteopathic
physician who is requesting a waiver of the two-year foreign country residency
requirement in order to practice in a facility that is either located in a
federally designated shortage area or serves patients living in designated
shortage areas.
(10) “Low Income” means a patient whose income does not
exceed 200% of the current Federal Poverty Guidelines (see:
http://aspe.hhs.gov/poverty).
(11) “Mental Health Facility” means an agency that
provides mental health services in an outpatient, residential, or hospital
setting.
(12) “Primary Care Physician” means a physician
licensed in Oregon to practice family medicine, general internal medicine,
obstetrics and gynecology, pediatrics, or general psychiatry.
(13) “United States Citizenship and Immigration
Services” means the agency that replaced the Immigration and Naturalization
Service, effective March 1, 2003.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0010 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0020
Health Care Facility Participation
Requirements
(1) Federally Qualified Health Centers with a HPSA
score at or above the requirements of 22CFR41.63 shall apply for a J-1 Waiver
through the United State Department of Health and Human Services (see:
http://www.globalhealth.gov/exchangevisitorprogram/index.html); Federally
Qualified Health Centers with a HPSA score below the requirements of 22CFR41.63
shall apply through the Authority.
(2) If a health care facility is located in a Medically
Underserved Area (MUA) or Medically Underserved Population (MUP) that is not a
Health Professional Shortage Area (HPSA), or if the request is for a flex
option, then the facility must obtain prior approval from the Authority and
provide documentation substantiating the area’s need for a physician.
(3) In order to qualify for the Oregon Physician Visa
Waiver Program the health care facility must:
(a) Identify the nature of the business entity seeking
to employ the physician, including but not limited to domestic or foreign
professional corporation, domestic or foreign private corporation, LLC, or
partnership, and provide a certificate of existence or proof of authorization
to do business in Oregon;
(b) Have provided care for a minimum of six months in
Oregon, or supply evidence of stability such as HRSA funding, prior to
submitting an application;
(c) Currently serve Medicare, Medicaid, and low income
uninsured patients that are members of the population of the local HRSA
designation. A minimum of 20% of the total current patient visits must be
Medicaid, Medicare, or other low-income patients. At least half of the 20%
requirement, i.e. 10%, must be Medicaid and low income uninsured patients,
excluding Medicare.
(d) Post a sliding fee schedule in the primary
languages of the population being served;
(e) Document attempts to actively recruit an American
doctor for at least six months prior to submission of the application;
(f) Execute an employment contract with the physician
that includes the following provisions:
(A) Duration of at least three years;
(B) Wages and working conditions comparable to those
for a graduate from an American medical school;
(C) A signed U.S. Department of Labor Prevailing Wage
Form (ETA-9035);
(D) May not include a non-compete clause or restrictive
covenant that prevents or discourages the physician from continuing to practice
in any designated area after the term of the contract expires;
(E) Specifies the geographic shortage area within
Oregon in which the physician will practice or, if requesting a flex option,
the shortage area or areas where prospective patients live;
(F) The physician shall treat all patients regardless
of their ability to pay;
(G) The physician shall provide patient care on a
full-time basis, a minimum of 40 hours per week;
(4) The health care facility shall submit to the
Authority a fee of $2,000 and two original copies of the application packet for
each waiver requested.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0020 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0030
Physician Participation
Requirements
In order to qualify for consideration by this program
the physician must:
(1) Obtain a Department of State case number prior to
submitting an application to the Authority;
(2) Submit a completed application that:
(a) Documents having, or having applied for, an active
Oregon medical license. If the residency or fellowship is not completed, the
license application may be listed as “pending”;
(b) Documents board certification or, if the residency
or fellowship is not yet completed, board eligibility upon completion of the
program;
(c) Includes either a “No Objection” letter from the
home country, or a statement that the physician is not contractually obligated
to return to the home country.
(d) Includes a signed and dated statement certifying
that the physician does not have any other pending J-1 waiver requests;
(e) Provides a letter of recommendation from the
department head of the physician’s residency or fellowship program;
(f) Includes evidence of graduation or of the projected
date of graduation from the residency or fellowship program.
(g) Documents an agreement to begin employment with the
health care facility within 90 days from the date the waiver is granted;
(h) Includes a copy of the medical degree or diploma,
translated into English;
(i) Includes legible copies of all DS 2019 Forms;
(j) Documents satisfactory completion of all
examinations required by the United States Citizenship and Immigration
Services;
(k) Includes a curriculum vita that documents the
physician’s date of birth, city and country of birth.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0030 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0040
Application Review Process
(1) The Authority shall review completed health care
facility applications that meet all requirements of 409-035-0020. Potential
physician participants must meet all requirements set forth in 409-035-0030.
(2) The following factors shall be considered in determining
whether to recommend a request for waiver of the foreign country residency
requirement:
(a) The type of medicine to be practiced. Eighty
percent of the slots allotted for each federal fiscal year are reserved for
primary care physicians as defined in OAR 409-035-0010. Applications from
community health centers with HPSA scores below 7 and from mental health
facilities shall receive priority.
(b) Geographic distribution of physicians. To the
extent possible, the Authority shall attempt equitable distribution of waiver
requests for eligible areas of the state. The number of physicians already
working under waivers or recommended for waivers in a particular geographic
area shall be taken into consideration.
(c) Facility patient profile. The health care
facility’s percentage of patient visits which are covered by the state Medicaid
program, Medicare, or are low income, uninsured.
(3) The Authority shall return incomplete applications,
including application fees. The Authority shall process completed resubmitted
applications, including fees, as of the new date of receipt.
(4) The Authority shall review each completed
application and notify the applicant of the results within 15 business days.
(5) The Authority shall forward recommended waiver
requests to the Department of State. The Department of State shall forward
waiver requests recommended for approval to the United States Citizenship and
Immigration Services, which shall determine whether to issue or deny the
waiver.
(6) The Authority may re-allocate positions based on a
review of current access needs in the state. The Authority may also recommend
or decline to recommend a waiver request.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0040 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0050
Monitoring and Follow-up
Requirements
In order to maintain participation in the Physician
Visa Waiver Program the health care facility must:
(1) Notify the Authority in writing as soon as the
physician starts work;
(2) Promptly submit semi-annual reports signed by the
physician and the Chief Executive Officer of the health care facility verifying
the physician’s employment. The first report is due six months after employment
begins, and every six months thereafter, until the term of the contract is
complete. Failure to submit timely, accurate reports shall result in a report
of non-compliance to the United States Citizenship and Immigration Services.
(3) Notify the Authority immediately of any change or
prospective change in the physician’s employment status.
(4) Allow Authority auditors access to health care
facility and physician records.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0050 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
409-035-0060
Transfer of J-1 Waiver Physician
Obligation
(1) A physician who is granted a visa waiver and who
encounters a practice failure due to extenuating circumstances may, with
Authority approval, finish the three-year service obligation at another
approved health care facility. A written transfer request must be submitted to
the Authority documenting the need for the transfer.
(2) The request must include the reason for transfer,
proposed new employer, the health care facility director’s name, practice name,
address, telephone number, and proposed date of transfer.
(3) The original employer must provide a letter
releasing the physician from the employment contract and providing an
explanation for the termination. The Authority may waive this requirement if
the original employer is in non-compliance with federal requirements, federal
or state law, or with these rules.
(4) The new employer must:
(a) Provide a letter of intent to employ the physician;
(b) Provide a copy of the new employment contract;
(c) Meet health care facility participation
requirements as set forth in these rules;
(d) Work with the physician to jointly submit
semi-annual Verification of Employment forms as required by the Authority.
Stat. Auth.: ORS 409.745
Stats. Implemented: ORS 409.745
Hist.: PH 14-2003(Temp), f.
9-25-03 cert. ef. 10-1-03 thru 3-29-04; PH 11-2004, f. 3-25-04, cert. ef.
3-29-04; Renumbered from 333-005-0060 by OHP 7-2010, f. 12-29-10, cert. ef.
1-1-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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