[co-author: Ronda Leduc]
On August 8, 2014, the Minnesota Department of Health unveiled significant changes to its Conrad J-1 waiver program for international medical graduates. The program changes will be implemented during the 2015 waiver program, which begins October 1, 2014. In addition to updated program guidelines, the process by which applications are reviewed will also undergo substantial modification. The J-1 waiver program changes are associated, in part, to the retirement of Lawrence "Lorry" Colaizy, who has overseen Minnesota's J-1 waiver program since its inception in 1994. The new waiver coordinator, Darwin Flores Trujillo, will assume responsibility for Minnesota's J-1 waiver program on October 1, 2014.
J-1 international medical graduates are automatically subject to a two-year foreign residence requirement, which requires them to return to their home countries for two years following completion of their medical training programs. This requirement can be waived in return for the physician's agreement to provide medical services in a medical shortage area for three years under the Conrad 30 J-1 Waiver Program. The Conrad 30 program allows each state's Department of Health to sponsor up to 30 international medical graduates each year for waivers of the two-year foreign residency requirement. As such, international physicians requiring J-1 waivers can be excellent candidates for medical facilities in rural, urban and other traditionally underserved areas, and can play an important role in an organization's workforce development strategy.
Historically, Minnesota has accepted Conrad 30 J-1 waiver applications on a first-come, first-served rolling review basis from October 1 until all 30 waiver numbers were filled. As applications were received, they were assigned a review number to ensure that applications were reviewed in the order they were received. Once applications were received, they were reviewed for completeness and readiness to submit to the U.S. Department of State and assigned a Conrad 30 State number. If any component was found missing or in conflict with state or federal J-1 waiver guidelines, the application was removed from the review list and the applicant was given the opportunity to revise or supplement the application.
New Waiver Review Process
Under Minnesota's new waiver review process, J-1 waiver applications will be accepted only during a defined application period running from September 15 to the last business day of November. Applications will be subjected to a two-part review consisting of an initial review for minimum legal requirements, followed by a secondary review by a committee to select the 30 applications that best meet the department's waiver criteria and needs. The secondary committee review will be competitive based on a comparison of all qualified applications filed before the application deadline. The secondary review will weigh "soft" factors, such as average appointment wait times, recruitment difficulties, percentage of Medicare/Medicaid patients served by the facility, and other subjective elements that support the waiver application.
Although applicants, employers and/or their legal counsel may call the department with questions during the application period and before applications are submitted, we expect much less technical assistance and feedback under the new process. Unlike the prior review process, there will be no chance to revise submitted applications should any deficiencies be found during either stage of the review process. Also, due to the competitive nature of the new program, employers who submit multiple applications will essentially be competing with themselves for a waiver number. In cases where an employer submits multiple applications for the same facility, the employer will need to indicate priorities and provide detailed explanations for the prioritized need.
At the end of the application period, the department will post on its website the number of qualified applications received. If there are fewer than 30 applications submitted by the deadline, the department may extend the application period. If the application period is extended, applications received during the extension will be reviewed in the order received. Any applications that were not selected during the initial review process may be revised and resubmitted during the extension period.
Key Changes to Minnesota J-1 Waiver Program Guidelines
Several general changes to the waiver guidelines have also been introduced, including the following:
The 40-hour per week work requirement is now defined as 40 hours of "direct patient care."
The J-1 waiver physician will need to agree in writing that he or she has no other active waiver applications pending in any category.
The two-year wait before beginning the permanent residence process has been eliminated.
Letters of reference are no longer required.
The proof of licensure requirement has been changed to "proof of licensure or active application." Proof of active application may be in the form of an email from the Minnesota Board of Medical Practice.
A description of the effect of a waiver denial is no longer required in the application.
The liquidated damages clause in Physician's Affidavit has been deleted.
The semi-annual reporting requirement following waiver recommendation has been removed.
Due to the competitive nature of the new review process, we recommend that potential J-1 waiver employers pay close attention to the following issues:
J-1 Waiver Application Timing: Employers will need to plan ahead to be ready for the application window — September 15 to the last business day of November. This will require advanced planning in J-1 physician recruiting, contract negotiations and information gathering. Also, keep in mind that because of the new application window and review process, a J-1 waiver application will, in many cases, not be processed as quickly as in the past.
Recruitment: Difficulty and the length of time spent recruiting for a J-1 waiver position will be one of the "soft factors" considered by the secondary review committee. Applicants who have been recruiting for the position for an extended time will get preference over those that have recently begun recruitment. Employers who are considering hiring a J-1 physician should begin to recruit for the position as early as is feasible.
Employment Contracts: Under the new waiver program, employers will no longer be able to amend contracts once applications are submitted for review. As such, exceptional care will be needed to ensure that all required Minnesota J-1 waiver provisions are included in the employment contract or contemporaneous attachments. Also, the reasonableness of any non-compete or liquidated damages clause in an employment contract will be taken into consideration by the review committee. The inclusion of such clauses will need to be carefully considered, as applications with unreasonable contract terms may be given a lower priority.
Other Soft Factors: Employers should also be prepared to provide quality "soft" information to support waiver applications to satisfy the subjective considerations of the secondary review committee. Examples include such information as average appointment wait times; recruitment difficulty; proportion of charity care provided by the facility; and percentage of Medicare/Medicaid patients served. The number of recent waivers approved for the health care facility or health system will be also taken into account during the review process, including the retention history of those waivers. Other extenuating circumstances specific to the physician's situation will also be considered, such as whether or not the physician has a family member living or working in the area, or any other unique, unanticipated circumstances such as the unexpected loss of a physician leaving the facility without physician coverage.
More information on the Minnesota Department of Health's Conrad 30 J-1 Waiver Program is available at its website.
Physician J-1 waivers are complex, and a deep understanding of Minnesota's new J-1 waiver guidelines and review process is vital to obtaining a highly sought-after Conrad 30 J-1 waiver recommendation process.