For years, the United States has faced a physician shortage. Population growth, aging, the COVID-19 pandemic, and recent medical legislative changes have highlighted that these shortages are not evenly distributed across all areas of the country. Rather, rural communities, minorities, children, and the elderly are disproportionally afflicted by the shortages. The president of the American Medical Association, Jesse M. Ehrenfeld, MD, highlighted in a recent address to the National Press Club the urgency of the crisis of physician shortages throughout the United States. Among some of the staggering statistics cited were 83 million Americans do not have access to a primary care physician, 90% percent of US counties do not have a pediatric ophthalmologist, and 80% percent are without an infectious disease specialist. It is projected that by 2034, there will be a shortage of up to 124,000 physicians. This leaves medical associations and legislatures alike turning to existing immigration programs to fill the gap in these underserved populations. The current programs and system haven’t kept up with demand either and would require updates to be a true beacon of hope for the crisis.
Currently about a third of medical residents in the United States are international medical graduates (“IMG”). Noncitizen IMGs can receive medical residency training in the United States through either the H-1B or J-1 visa with about half of IMGs receiving this training while on a J-1 visa. The J-1 is an exchange visa that allows IMGs to receive training in the United States on the condition that IMGs return to their home country for at least two years. To combat physician shortages, the Conrad 30 Waiver Program was authorized in 1994. Initially limited to 20 slots, the program was subsequently expanded, allocating 30 waivers to each state to exempt J-1 physicians from the two-year home residency requirement. In exchange, physicians agree to begin employment within 90 days of receiving the waiver and provide at least three years of full-time clinical service in a health professional shortage area (“HPSA”) or medically underserved area (“MUA”).
Each state runs its own Conrad 30 waiver program and may impose additional requirements, timelines, and restrictions in how they allocate their waiver slots. In Pennsylvania, for example, medical facilities in HPSA or MUA locations have a two-month period starting on October 1st to submit applications for prospective hires in J-1 status. Physicians are not allowed to have more than one Conrad 30 waiver application submitted on their behalf in a given fiscal year so once a physician commits to an employer, if their waiver application is not selected and approved by the state, employers must scramble to find alternative options for the physician or rescind offers of employment and seek replacements. In rural underserved areas, this is usually a difficult process as medical facilities have already experienced unsuccessful recruitment efforts to hire non-waiver subject physicians. Historically, Pennsylvania is among the 24 states that use all of its 30 waiver slots each fiscal year, meaning that the majority of states have unused slots that are unclaimed. States that reach their 30-slot quota must turn away physicians who are able and willing to provide medical services to underserved communities but because of the J-1 home residency requirements may be unable to obtain work authorization and remain in the United States.
From 2001 to 2020, the Conrad program recruited 18,504 physicians, however, that is still not enough to meet the demand in underserved areas and several states are urging lawmakers to make changes to the program to allow for an increase to the current 30 waiver slots. The Conrad State 30 and Physician Access Reauthorization Act and the Senate companion bill were introduced in early 2023 to reauthorize the program for three years, to expand the number of slots available to 35, and provide further adjustments depending on nationwide physician shortages. To date, the program has not even been reauthorized.
More recently, on January 11, 2024, a bipartisan bill called Districting Our Country’s Transfer of Residency Slots (“DOCTORS”) Act was introduced in an effort to address nationwide physician shortages by reallocating unused waivers from the Conrad 30 waiver program to states, like Pennsylvania, who use their maximum number of waivers. A Senate version of the bill was introduced on September 5, 2023. Under the proposed DOCTORS Act, states will be required to report the number of unused waivers at the end of each fiscal year (September 30th) to the Secretary of State. The Secretary will calculate the total unused waivers, divide them by three, and disburse those equally back to the states that used their maximum 30 slots in the previous fiscal year. In 2021, for example, 369 Conrad 30 waivers went unused. Under the DOCTORS Act, the Secretary would report 369 unused waivers, and divide by three, meaning 123 waivers would be retained for distribution to maximum cap states in the following fiscal year.
The question remains whether either of these proposed bills will have the desired effect of getting much-needed physicians to practice in underserved areas. For example, in Pennsylvania, there are numerical limits to how many waivers an organization may sponsor in a fiscal year. Even if unused numbers are reallocated, medical facilities that need these additional resources may not benefit from these increases unless those numerical limitations are raised or eliminated.
While these proposed bills hold promise and may provide much-needed physicians to underserved areas, particularly to those in maximum cap states, they have not gained much traction in either the House or the Senate. Without action, further advocacy from stakeholders will be needed to push for these changes at both the state and nationwide levels.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 7, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
