ARC on Waiver of J-1 Physicians HRR
Posted Jul 25, 2003
As mentioned in Part 4 of our J-1 Overview series, IGAs for Physicians, the Appalachian Regional Commission (ARC), under specific circumstances, will request that the two-year home residency requirement (HRR) be waived for particular physicians. This article outlines the ARC waiver requirements and provides guidance for physicians who may be eligible for an ARC waiver.
Who is Eligible for ARC Waiver?
Generally, a physician requesting an ARC waiver of the two-year HRR must practice for three years in a rural Appalachian area that has been identified by the U.S. Department of Health and Human Services (DHHS) as a Health Professional Shortage Area (HPSA.) The physician must be sponsored by the state in Appalachia where s/he will work and must have the governor of that state send a written recommendation to the federal co-chair. The physician must provide the federal co-chair with a signed and notarized J-1 Visa Policy Affidavit and Agreement, a sample of which may be found on the ARC WebSite. Requests approved by the federal co-chair will then be forwarded to the U.S. Department of State, which will then forward the recommendation to the Bureau of Citizenship and Immigration Services (BCIS) for final adjudication.
Conditions for Physician to Obtain the ARC Waiver
A physician who seeks a waiver of the HRR via the ARC must work for three years for at least 40 hours per week at a facility within a designated HPSA. HPSAs are designated by DHHS, and must be areas in which the doctor to patient ratio exceeds 1:3,500. With the exception of certain obstetricians, the 40-hour requirement should not include travel or on-call time.
The employment contract between the physician requesting an ARC HRR waiver and the sponsoring facility may not contain a covenant not to compete. However, the contract must contain a liquidated damages clause, requiring that the physician agree to pay $250,000 for failure to fulfill his or her three-year contract. This clause should also allow the employer to recover from the physician any consequential damages or attorneys' fees associated with the physician’s failure to serve the three-year term. The physician may only be excused from the employment contract if s/he engages in the full-time practice of medicine at an alternative ARC HPSA facility.
The HPSA must be located within the Appalachian Region. Appalachia spans from southern New York to northern Mississippi and includes the entire state of West Virginia as well as parts of the following states: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia. Please note that a physician requesting an ARC waiver must work in the Appalachian region and not merely in a state of which a portion is considered Appalachia.
Requirements for Physician Requesting ARC Waiver
The physician must hold an appropriate state license to cover the Appalachian region in which s/he intends to practice. The physician must also have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry.
The physician must also prove past and continued compliance with all BCIS laws and regulations. Put otherwise, s/he must provide the federal co-chair with documentation demonstrating maintenance of valid legal status in the U.S.
Conditions Required of the Sponsoring Facility
The sponsoring facility is required to make a “reasonable good-faith effort” to recruit a U.S. doctor for the exchange visitor’s position in the same salary range within the six months immediately preceding the waiver request. Accordingly, it is important that the sponsor maintain a record of its recruitment efforts. These may include advertisements placed in newspapers and medical journals, as well as notices sent to medical schools located in the appropriate Appalachian state.
The sponsor must provide nondiscriminatory health services to Appalachian residents. Specifically, it must provide health services to individuals regardless of whether they are able to pay for the services or whether payment will be made under Medicare or Medicaid. The sponsor may only charge patients the “customary rate” for the particular HPSA and must provide sliding scale discounts for individuals whose household income is at or below 200 percent of the poverty rate. It is important to note, however, that individuals carrying third-party insurance may be required to pay the full service fee. These fee requirements must be conspicuously posted in the sponsoring facility’s waiting room. Some sponsors will also be required to provide evidence demonstrating that they intend to provide services and, in the past, have provided services to medically indigent, Medicare, and Medicaid patients.© The Law Office of Sheela Murthy, P.C.
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