[Federal Register: December 19, 2002 (Volume 67, Number 244)]
[Rules and Regulations]
[Page 77692-77697]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de02-11]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 50
RIN: 0991-AB21
HHS Exchange Visitor Program; Request for Waiver of the Two-Year
Foreign Residence Requirement
AGENCY: Office of the Secretary, HHS.
ACTION: Interim final rule with opportunity for public comment.
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SUMMARY: This interim final rule with comment period amends the
regulations governing requests for the waiver of the two-year foreign
residence requirement of the Health and Human Services (HHS) Exchange
Visitor Program. These revisions permit institutions and health care
facilities to submit to HHS requests for waiver of the two-year home-
country physical presence requirement for physician Exchange Visitors
to deliver health care services in underserved areas.
DATES: These interim final regulations are effective December 19, 2002.
As discussed below, comments on the regulations are invited but must be
received by February 3, 2003.
ADDRESSES: Written comments should be addressed to Dr. William R.
Steiger, Office of Global Health Affairs, 200 Independence Ave., SW.,
Room 639-H, Washington, DC 20201. All comments received will be
available for public inspection and copying at the above address,
weekdays (Federal holidays excepted) between the hours of 9:00 a.m. and
5:30 p.m.
FOR FURTHER INFORMATION CONTACT: Dr. William R. Steiger, Office of
Global
[[Page 77693]]
Health Affairs, 200 Independence Ave., SW., Room 639-H, Washington, DC
20201. Telephone: 202-690-6174; Fax: 202-690-7127.
SUPPLEMENTARY INFORMATION: The U.S. Exchange Visitor Program,
administered by the Department of State, seeks to promote peaceful
relations and mutual understanding with other countries through
educational and cultural exchange programs. Under one facet of this
program, foreign national physicians may come to the United States to
participate in graduate medical education programs under J-1 visas.
Upon completion of the graduate medical education program and
expiration of the visa and prior to pursuing permanent residency, the
Exchange Visitor physician must return to his or her country of
nationality or last country of legal permanent residence for a minimum
of two years to share the benefit of the knowledge and experience
gained in the United States. Under limited and exceptional
circumstances, an Exchange Visitor may obtain a waiver of the
requirement to return home. An avenue through which a waiver may be
obtained is by a request made, on the Exchange Visitor's behalf, by an
interested United States Government Agency (IGA). Numerous Federal
agencies have sought waivers as IGAs.
The vast majority of IGA requests for waivers involve international
medical graduates who entered the United States to pursue graduate
medical education or training. Historically, HHS has restricted its
activity as an IGA to requesting waivers for researchers whose research
could have national or international significance. In contrast, the
Department of Agriculture and the Appalachian Regional Commission have
been the most active IGAs seeking waivers for physicians to provide
services in Health Professional Shortage Areas (HPSAs) or Medically
Underserved Areas and Populations (MUA/Ps). On April 16, 2002, the
Department of Agriculture announced it would process its pending waiver
requests and then cease participation as an IGA.
Pursuant to section 332 of the Public Health Service Act, HHS
designates areas, facilities or population groups as HPSAs if they meet
the criteria specified in 42 CFR part 5. HPSA designations are
separated into three categories: those for shortages of primary medical
care, dental, and mental health professionals. HHS publishes lists of
the designated areas annually in the Federal Register, and publishes
updates to the list on the HHS web site periodically. Pursuant to Sec.
330(b)(3)-(6), HHS also designates areas and population groups as MUA/
Ps based on established criteria that indicate a shortage of personal
health services.
HHS is committed to increasing access to care for the nation's most
medically underserved individuals. In accordance with this mission, HHS
has decided to request waivers for physicians to provide primary care
services in HPSAs and MUA/Ps and for psychiatrists to provide care in
Mental Health HPSAs. In determining whether to request a waiver for an
Exchange Visitor to deliver primary health care services, HHS will
consider information from and coordinate with State Departments of
Public Health (or the equivalent), other IGAs that request waivers, HHS
programs such as the National Health Service Corps, and other relevant
government agencies. This change in HHS's role requires amendment of
the HHS regulations governing J-1 visa waiver requests.
The Secretary recognizes that the determination of need for health
care services in specific geographic areas is affected by services
provided by physicians holding nonimmigrant visas, as well as
physicians assigned to these areas under HHS programs, such as the
National Health Service Corps. On a related issue, during the first
quarter of calendar year 2003, the Secretary intends to propose
revisions to the regulations governing the designation of HPSAs and
MUA/Ps.
HHS continues to endorse the philosophy that Exchange Visitors are
committed to return to their country of nationality or last legal
permanent residence home for at least two years after completing their
program. Consistent with this philosophy, the regulations provide that
the HHS Exchange Visitor Waiver Review Board may determine the
appropriate numbers and geographic areas for waivers for the delivery
of health care service. These determinations would be made based on
data relating to the health care needs of the relevant areas.
The HHS eligibility criteria established under this rule are solely
for the purpose of requesting HHS to act as an IGA and are consistent
with the Department of State regulations governing such waiver
requests. HHS eligibility requirement criteria for waiver requests are
in addition to and independent of the existing waiver and visa criteria
established by the Immigration and Naturalization Service (INS), the
Department of State, and the Department of Labor. HHS stresses that its
waiver regulations do not relieve alien physicians from their
responsibility to comply with visa requirements on a timely basis to
maintain lawful status. Nor should these HHS regulations be confused
with criteria applicable to the waiver program implemented by state
departments of health (the Conrad program).
Alien physicians are strongly encouraged to begin the waiver
process as early as they possibly can while still in the residency
training program. Early filing of the waiver request by the alien
physician, coupled with timely processing of the request by the
relevant government agencies, will facilitate the timely completion of
the waiver process before the authorized J-1 admission expires, and the
physician's subsequent application for change of nonimmigrant status
from J-1 to H-1B.
HHS also notes that during the 12-month period following completion
of the residency training program, an alien physician who has departed
from the United States is still eligible to apply for an IGA waiver. He
or she may pursue the waiver from abroad. If the waiver is granted, the
alien physician may then procure an H-1B visa and seek admission to the
United States to begin working in the location specified in the
employment contract and approved by HHS.
The HHS criteria for waiver requests incorporate the requirements
currently imposed by the Department of State regulations that govern
waiver requests from IGAs based on the need for the delivery of health
care services. In brief, the criteria for a waiver recommendation by
HHS acting as an IGA are as follows:
1. Eligibility to apply for HHS waiver requests is limited to
primary care physicians, and general psychiatrists who have completed
their primary care or psychiatric residency training programs no more
than 12 months before the date of commencement of employment under the
contract described in the paragraph below. This 12-month eligibility
limitation is to ensure that the physicians' primary care training is
current and they are not engaged in subspecialty training. This HHS
eligibility requirement relates only to eligibility for an HHS waiver
recommendation and does not relieve physicians of the responsibility to
maintain their lawful status. Primary care physicians are defined as:
physicians practicing general internal medicine, pediatrics, family
practice or obstetrics/gynecology and who are willing to work in a
primary care HPSA or MUA/P; and general psychiatrists willing to work
in a Mental Health HPSA.
[[Page 77694]]
2. The petitioning health care facility must establish that it has
recruited actively and in good faith for U.S. physicians in the recent
past, but has been unable to recruit a qualified United States
physician.
3. The head of a petitioning health care facility must execute a
statement to confirm that the facility is located in a specific,
designated HPSA or MUA/P, and that it provides medical care to Medicaid
and Medicare eligible patients and the uninsured indigent.
4. The Exchange Visitor must execute a statement that he or she
does not have pending, and will not submit, other IGA waiver requests
while HHS processes the waiver request.
5. The employment contract must require the Exchange Visitor to
practice a specific primary care discipline for a minimum of three
years, 40 hours per week in a specified HPSA or MUA/P. It may not
include a non-compete clause that limits the Exchange Visitor's ability
to continue to practice in any HHS-designated primary care or mental
health HPSA or MUA/P after the period of obligation. The contract must
be terminable only for cause and not terminable by mutual agreement
until completion of the three-year commitment, except that the contract
may be assigned to another eligible employer, subject to approval by
HHS and consistent with all applicable INS and Department of Labor
requirements.
6. Both the employer and the alien physician must submit
information to HHS as the Secretary may reasonably require.
7. Both the employer and the alien physician must comply with all
applicable Department of State, Department of Labor, INS, and HHS
statutes, regulations and policies.
HHS notes that if an alien physician acquires H-1B nonimmigrant
status following approval by the INS of a request for waiver, then he
or she becomes subject not only to the terms and conditions of the
waiver, but also the terms and conditions of the H-1B nonimmigrant
status. Failure to comply with those conditions will make that
physician subject to removal from the United States by the INS.
This rule also amends the HHS regulations by replacing references
to the United States Information Agency (USIA) with the Department of
State, following the consolidation of USIA and the Department of State
as mandated by the Foreign Affairs Agencies Consolidation Act of 1998.
The amendments to 45 CFR Part 50 are as follows:
(1) Revise Sec. 50.1 to replace the reference to ``the United
States Information Agency'' with ``the Department of State'' to reflect
the reorganization of the two agencies.
(2) In Sec. 50.2 revise paragraph (b) to delete the ``s'' in
``Exchanges Visitor Program''; revise paragraph (c) to replace the
reference to ``Office of International Affairs'' with the ``Office of
Global Health Affairs''; remove the parenthetical examples in sentence
three and add a new sentence at the end to authorize the Exchange
Visitor Waiver Review Board to establish a workgroup to review requests
for waivers for the delivery of health care services; and redesignate
and move former paragraph (d) to new Sec. 50.6(a) entitled
``Procedures for submission of application to HHS.''
(3) In Sec. 50.3 redesignate and move former paragraphs (a)(1)
through (3) to new Sec. 50.4 entitled ``Waivers for research,'' and
revise former Sec. 50.3 to include policy for waivers for the delivery
of health care services.
(4) Revise Sec. 50.4 to redesignate, remove former paragraph (b)
as unnecessary and move former paragraph (a) to make it paragraph (b)
of new Sec. 50.6. Retitle Sec. 50.4 as ``Waivers for research'' and
insert former paragraphs Sec. 50.3 (a)(1) through (3) as new
paragraphs (a) through (c). Revise new paragraph (a) to remove the
sentence which reads ``The Board will not request a waiver when the
application demonstrates that the exchange visitor is needed merely to
provide services for a limited geographical area and/or to alleviate a
local community or institutional manpower shortage, however serious.''
(5) Add a new Sec. 50.5 entitled ``Waivers for the delivery of
health care service'' to provide criteria for requests for waivers
based on a need for the provision of health care service.
(6) Add new Sec. 50.6 entitled ``Procedures for Submission of
application to HHS'' and insert former paragraph Sec. 50.2(d) as
paragraph (a), and former paragraphs Sec. 50.4(a) and (b) as
paragraphs (b) and (c).
(7) Redesignate former Sec. 50.5 as new Sec. 50.7.
(8) Remove former Sec. 50.6 as unnecessary.
(9) Add new Sec. 50.8 entitled ``Compliance'' to note the
enforcement authority of INS and the responsibility of the alien
physician for compliance with the terms and conditions of both the
applicable visa status and of the waiver.
Justification for Omitting Notice of Proposed Rulemaking
Notice and public comment and delayed effective date have been
waived for these amendments because it has been found for good cause in
accordance with 5 U.S.C. 553 that notice and comment are
``impracticable, unnecessary or contrary to the public interest.''
Since the mid-1990's, the Department of Agriculture placed more
than 3,098 physicians in underserved areas in 48 states through its J-1
visa waiver program. While the Department of Agriculture will no longer
be doing so, there remains a critical need for physicians in many parts
of the United States that HHS is prepared to help meet by expanding its
role in the J-1 visa waiver program and improving coordination of the
placement of physicians in these areas. Any delay in implementation of
these regulations would harm the medical needs of these vulnerable
populations. Health care entities which will apply for exchange-visitor
waivers have been unable to recruit adequate numbers of physicians to
provide health services within their geographic areas. While the health
care needs of underserved areas have decreased through the success of
programs such as the National Health Service Corps and waivers
requested by state public health departments, chronic shortages of
physicians continue in certain geographic areas. Without Exchange
Visitor physicians to help fill this gap, the health care needs of the
populations in these areas remain unmet.
Accordingly, the Secretary has determined, in accordance with 5
U.S.C. 553 and HHS policy, that it would be unnecessary and contrary to
the public interest to follow proposed rulemaking procedures in the
issuance of these regulations or to delay their effective date.
However, comments will be accepted at the above listed address for a
period of 45 days following the publication of these regulations.
Economic and Regulatory Impact
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when rulemaking is
necessary, to select regulatory approaches that provide the greatest
net benefits (including potential economic, environmental, public
health, safety distributive and equity effects). In addition, under the
Regulatory Flexibility Act (RFA of 1980), if a rule has a significant
economic effect on a substantial number of small entities, the
Secretary must specifically consider the economic effect of a rule on
small entities and analyze regulatory options that could lessen the
impact of the rule.
Executive Order 12866 requires that all regulations reflect
consideration of
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alternatives of costs, of benefits, of incentives, of equity, and of
available information. Regulations must meet certain standards, such as
avoiding an unnecessary burden. Regulations which are ``significant''
because of cost, adverse effects on the economy, inconsistency with
other agency actions, effects on the budget, or novel legal or policy
issues, require special analysis.
The Department has determined that the resources required to
implement the requirement in these regulations are minimal. Therefore,
according to the RFA and the Small Business Regulatory Enforcement Act
of 1996, which amended the RFA, the Secretary certifies this action
will not impose a significant burden on a substantial number of small
entities. The Secretary has also determined that this action does not
meet criteria for a major rule as defined by Executive Order 12866 and
would have no major effect on the economy of Federal expenditures.
We have determined that the rule is not a ``major rule'' within the
meaning of the statute providing for Congressional Review of Agency
Rulemaking, 5 U.S.C. 801. Similarly, the rule will not have effects on
State, local and tribal governments and on the private sector such as
to require consultation under the Unfunded Mandates Reform Act of 1995.
Further, Executive Order 13132 establishes certain requirements
that an agency must meet when it promulgates a rule that imposes
substantial direct compliance costs on State and local governments,
preempts State law, or otherwise has Federalism implications. We have
reviewed the action herein under the threshold criteria of Executive
Order 13132, Federalism, and have determined that this action would not
have substantial direct effects on the rights, roles and
responsibilities of States.
Paperwork Reduction Act of 1995
This rule at 45 CFR Part 50 contains collection of information
requirements subject to Office of Management and Budget (OMB) Review
under the Paperwork Reduction Act (PRA) of 1995. These collection of
information requirements are necessary to carry out the provisions of
the Exchange Visitor program. In order to fairly evaluate whether an
information collection should be approved by OMB, section 3506(c)(2)(A)
of the PRA requires that we solicit comment on the following issues:
[sbull] Whether the information collection is necessary and useful
to carry out the proper functions of the agency;
[sbull] The accuracy of the agency's estimate of the information
collection burden;
[sbull] The quality, utility, and clarity of the information to be
collected; and
[sbull] Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
Section 50.4 of the rule contains information collection
requirements currently approved under OMB Control Number 0990-0001.
Sections 50.5(e)(4) and (5) of the rule contain disclosure
requirements.
Section 50.5(e)(4) requires facilities or practices sponsoring an
Exchange Visitor waiver request for the delivery of health care to post
a notice of the charges for services. On an annual basis it is
estimated that it will take 300 practices one hour each to prepare and
post such notices. The total annual burden associated with this
requirement is 300 hours.
Section 50.5(e)(5) of the rules contains the requirements for the
submission of evidence that the applicant made unsuccessful efforts to
recruit a U.S. physician. The burden associated with these requirements
is the time and effort necessary for an applicant to submit the
documentation. On an annual basis it is estimated that it will take 300
applicants two hours each to and submit this documentation. The total
annual burden associated with this requirement is 600 hours.
The Department will submit a copy of this Rule to the Office of
Management and Budget (OMB) for its review of the information
collection requirements described above. These requirements are not
effective until OMB has approved them.
If you comment on any of these information collection requirements,
please mail copies directly to the following:
Cynthia Agens Bauer, OS Reports Clearance Officer, Room 503H,
Humphrey Building, 200 Independence Avenue SW., Washington DC, 20201;
and
Office of Information and Regulatory Affairs, Office of Management
and Budget, Room 10235, New Executive Office Building, Washington, DC
20503, ATTN: Allison Eydt, HHS Desk Officer.
National Health Objectives for the Year 2010
The Public Health Service is committed to achieving the health
promotion and disease prevention objectives of Healthy People 2010.
This is an HHS-led effort to set priorities for national attention. The
activities covered by these amendments are related to the priority area
(Access to Quality Health Services) in Healthy People 2010, which is
available online at http://www.health.gov/healthypeople.
Smoke-Free Workplace
This program is not subject to the Public Health Systems Reporting
Requirements.
List of Subjects in 45 CFR Part 50
Cultural exchange programs, Immigration, Health care, Medical care,
Health professions, Health facilities, aliens.
Dated: September 20, 2002.
William R. Steiger,
Director, Office of Global Health Affairs.
Approved: September 27, 2002.
Tommy G. Thompson,
Secretary.
Accordingly, 45 CFR Part 50 is amended as follows:
PART 50--U.S. EXCHANGE VISITOR PROGRAM--REQUEST FOR WAIVER OF THE
TWO-YEAR FOREIGN RESIDENCE REQUIREMENT
Paragraph 1. The authority citation for part 50 continues to read
as follows:
Authority: 75 Stat. 527, 22 U.S.C. 2451 et seq., 84 Stat, 116, 8
U.S.C. 1182 (e).
Par. 2. Section 50.1 is revised to read as follows:
Sec. 50.1 Authority
Under the authority of Mutual Educational and Cultural Exchange Act
of 1961 (75 Stat. 527) and the Immigration and Nationality Act as
amended (84 Stat. 116), the Department of Health and Human Services is
an ``interested United States Government agency'' with the authority to
request the Department of State to recommend to the Attorney General
waiver of the two-year foreign residence requirement for Exchange
Visitors under the Mutual Educational and Cultural Exchange Program.
HHS eligibility requirement criteria for waivers are in addition to and
independent of the existing waiver and visa criteria established by the
Immigration and Naturalization Service (INS), the Department of State,
and the Department of Labor. The waiver regulations described in this
part do not relieve alien physicians seeking a waiver of the 2-year
foreign residence requirement from complying with the terms and
conditions imposed on their admission to the United States.
Par. 3. Section 50.2 is amended by:
1. Revising paragraphs (b) and (c).
2. Removing paragraph (d).
The revisions read as follows:
[[Page 77696]]
Sec. 50.2 Exchange Visitor Waiver Review Board.
* * * * *
(b) Functions. The Exchange Visitor Waiver Review Board is
responsible for making thorough and equitable evaluations of
applications submitted by institutions, acting on behalf of Exchange
Visitors, to HHS for a favorable recommendation to the Department of
State that the two-year foreign residence requirement for Exchange
Visitors under the Exchange Visitor Program be waived.
(c) Membership. The Exchange Visitor Waiver Review Board consists
of no fewer than three members and two alternates, of whom no fewer
than three will consider any particular application. The Director of
the Office of Global Health Affairs, Office of the Secretary, is an ex
officio member of the Board and serves as its Chairman. The Director
may designate a staff member of the Office of the Secretary to serve as
member and Chairman of the Board in the Director's absence. The
Assistant Secretary for Health appoints two regularly assigned members
and two alternates to consider applications concerning health,
biomedical research, and related fields. The Chairman may request the
heads of operating divisions of the Department to appoint additional
members to consider applications in other fields of interest to the
Department. The Board may obtain expert advisory opinions from other
sources. The Board may establish a workgroup from the operating
divisions of the Department to consider applications for waivers based
on the need for the delivery of health care services to underserved
populations.
Par. 4. Section 50.3 is revised to read as follows:
Sec. 50.3 Policy.
(a) Policy for waivers. The Department of Health and Human Services
endorses the philosophy that Exchange Visitors are committed to return
home for at least two years after completing their program. This
requirement was imposed to prevent the Program from becoming a stepping
stone to immigration and to ensure that Exchange Visitors make
available to their home countries their new knowledge and skills
obtained in the United States. The Department will request waivers for
the delivery of health care service to carry out the Department's
mission to increase access to care for the nation's most medically
underserved individuals. However, in keeping with the philosophy of the
Program, the Exchange Visitor Waiver Review Board may determine the
appropriate numbers and geographic areas for waivers for the delivery
of health care service.
(b) Criteria for waivers. The Exchange Visitor Waiver Review Board
carefully applies stringent and restrictive criteria to its
consideration of requests that it support waivers for Exchange
Visitors. Each application is evaluated individually based on the facts
available.
(c) Waiver for members of Exchange Visitor's family. Where a
decision is made to request a waiver for an Exchange Visitor, a waiver
will also be requested for the spouse and children, if any, if they
have J-2 visa status. When both members of a married couple are
Exchange Visitors in their own right (i.e., each has J-1 visa status),
separate applications must be submitted for each of them.
Par. 5. Section 50.4 is revised to read as follows:
Sec. 50.4 Waivers for research.
In determining whether to request a waiver for an Exchange Visitor
engaged in the conduct of research, the Board considers the following
key factors:
(a) The program or activity at the applicant institution or
organization in which the Exchange Visitor is employed must be of high
priority and of national or international significance in an area of
interest to the Department.
(b) The Exchange Visitor must be needed as an integral part of the
program or activity, or of an essential component thereof, so that loss
of his/her services would necessitate discontinuance of the program, or
a major phase of it. Specific evidence must be provided on how the loss
or unavailability of the individual's services would adversely affect
the initiation, continuance, completion, or success of the program or
activity. The applicant organization/institution must clearly
demonstrate that a suitable replacement for the Exchange Visitor cannot
be found through recruitment or any other means. The Board will not
request a waiver when the principal problem appears to be one of
administrative, budgetary, or program inconvenience to the institution
or other employer.
(c) The Exchange Visitor must possess outstanding qualifications,
training and experience well beyond the usually expected
accomplishments at the graduate, postgraduate, and residency levels,
and must clearly demonstrate the capability to make original and
significant contributions to the program. The Board will not request a
waiver simply because an individual has specialized training or
experience or is occupying a senior staff position in a university,
hospital, or other institution.
Sec. 50.5 [Redesignated as Sec. 50.7]
Par. 6. Redesignate Sec. 50.5 as Sec. 50.7
Par. 7. New section Sec. 50.5 is added to read as follows:
Sec. 50.5 Waivers for the delivery of health care service.
In determining whether to request a waiver for an Exchange Visitor
to deliver health care service, the Board will consider information
from and coordinate with State Departments of Public Health (or the
equivalent), other ``interested government agencies'' which request
waivers, and other relevant agencies. The Board requires the following
criteria for requests for waivers for the delivery of health care
service:
(a) The Exchange Visitor must submit a statement that he or she
does not have pending and will not submit any other ``interested
government agency'' waiver request while HHS processes the waiver
request being submitted.
(b) Waivers are limited to primary care physicians and general
psychiatrists who have completed their primary care or psychiatric
residency training programs no more than12 months before the date of
commencement of employment under the contract described in subparagraph
(d). This 12-month eligibility limitation is to ensure that the
physicians' primary care training is current and they are not engaged
in subspecialty training. This HHS eligibility requirement relates only
to eligibility for an HHS waiver request and does not relieve
physicians of the responsibility to maintain lawful status. Alien
physicians are strongly encouraged to begin the waiver process as early
as they possibly can while still in the residency training program.
Early filing of the waiver request by the alien physician, coupled with
timely processing of the request by the relevant government agencies,
will facilitate the timely completion of the waiver process before the
authorized J-1 admission expires, and the physician's subsequent
application for change of nonimmigrant status from J-1 to H-1B.
(c) Primary care physicians are defined as: physicians practicing
general internal medicine, pediatrics, family practice or obstetrics/
gynecology willing to work in a primary care Health Professional
Shortage Area (HPSA) or Medically Underserved Area or Population (MUA/
P); and general psychiatrists who are willing to work in a Mental
Health HPSA. Note: these HHS eligibility criteria for waivers are in
addition to and independent of the
[[Page 77697]]
existing waiver and visa criteria established by the Immigration and
Naturalization Service (INS), the Department of State, and the
Department of Labor.
(d) The Exchange Visitor must have entered a contract with the
applicant employer. This contract must:
(1) Require the Exchange Visitor to provide primary medical care in
a facility physically located in an HHS-designated primary care HPSA or
MUA/P, or general psychiatric care in a Mental Health HPSA.
(2) Require the Exchange Visitor to complete a term of employment
of not less than three years providing primary care health services for
not less than 40 hours per week.
(3) Require the Exchange Visitor to:
(i) Be licensed by the State where he or she will practice;
(ii) Have completed a residency in one of the following
specialties: family practice, general pediatrics, obstetrics/
gynecology, general internal medicine, or general psychiatry; and
(iii) Be either board certified or board eligible in the relevant
primary care discipline.
(4) Be terminable only for cause until completion of the three-year
commitment, except that, with the agreement of the alien physician, the
employer may assign the contract to another eligible employer with the
prior approval of HHS and compliance with all applicable INS and
Department of Labor requirements. Prior to approving an assignment of
the contract, HHS will review and consider the health care needs of the
alien physician's current and proposed new locations, as well as the
reasons for the request.
(5) Not contain a restrictive covenant or non-compete clause which
prevents or discourages the physician from continuing to practice in
any HHS-designated primary care HPSA or MUA/P or Mental Health HPSA
after the period of obligation under the contract has expired.
(6) Provide that any amendment to the contract complies with all
applicable Federal statutes, regulations and HHS policy.
(7) Be consistent with all applicable Federal statutes, regulations
and HHS policy.
(e) The facility or practice sponsoring the physician:
(1) Must provide health services to individuals without
discriminating against them because either they are unable to pay for
those services or payment for those health services will be made under
Medicare or Medicaid.
(2) May charge no more than the usual and customary rate prevailing
in the geographic area in which the services are provided.
(3) Must provide care on a sliding fee scale for persons at or
below 200 percent of poverty income level. Persons with third-party
insurance may be charged the full fee for service.
(4) Must post a notice in a conspicuous location in the patient
waiting area at the practice site to notify patients of the charges for
service as required in this paragraph.
(5) Must provide evidence that the applicant facility made
unsuccessful efforts to recruit a physician who is a United States
physician for the position to be filled by the Exchange Visitor.
(6) Must provide a statement by the head of the facility to confirm
the facility is located in a specific, designated HPSA or MUA/P, and
that it provides medical care to Medicaid and Medicare eligible
patients and to the uninsured indigent.
(f) The employer and the alien physician must submit information to
the Secretary at the times and in the manner that the Secretary may
reasonably require.
Par. 8. Revise Sec. 50.6 to read as follows:
Sec. 50.6 Procedures for Submission of application to HHS.
(a) The Exchange Visitor Waiver Review Board will review
applications submitted by private or non-federal institutions,
organizations, or agencies or by a component agency of HHS. The Board
will not accept applications submitted by Exchange Visitors or, unless
under extenuating and exceptional circumstances, other U.S. Government
Agencies.
(b) Applications, instruction sheets and information are available
from the Executive Secretary, Exchange Visitor Waiver Review Board. An
authorized official of the applicant institution (educational
institution, hospital, laboratory, corporation, etc.) must sign the
completed application. The applicant institution must send the
completed application to the address indicated on the instruction
sheet.
Par. 10. New section 50.8 is added to read as follows:
Sec. 50.8 Compliance.
If an alien physician acquires H-1B nonimmigrant status following
approval by the INS of a request for waiver, then he or she becomes
subject not only to the terms and conditions of the waiver, but also
the terms and conditions of the H-1B nonimmigrant status. Failure to
comply with those conditions will make that physician subject to
removal from the United States by the INS.
[FR Doc. 02-31972 Filed 12-17-02; 8:45 am]
BILLING CODE 4165-15-P