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Certificates for Certain Health Care Workers
December 9, 2002
Director, Regulations and Forms
Services Division
Immigration and Naturalization Service
425 I Street NW, Room 4034
Washington , DC 20536
Ref: INS No. 2080-00 Certificates for Certain Health Care Workers
Gentlemen:
On behalf of the American Academy of Physician Assistants, which represents the country's 45,000 practicing physician assistants (PAs), I write to offer comments on proposed rules for certification of certain foreign health care workers (8 CFR Parts 103, 212, 214, 245, 248 and 299).
The Academy is pleased to see the Service publish stringent standards and procedures for the recognition of organizations that will certify alien health care workers. Several countries around the world have recently expressed interest in establishing physician assistant education programs and incorporating PAs into their health care systems. Consequently, we expect that there will be a need in the future to assess the credentials of foreign-trained PAs who wish to enter the United States. It is critical that this assessment be conducted by reputable organizations such as the Commission on Graduates of Foreign Nursing Schools (CGFNS).
You have requested public comments and suggestions on a number of issues. The Academy agrees that the certification process should apply to foreign health care workers coming to the United States on a temporary basis (nonimmigrant aliens) as well as on a permanent basis (immigrants), including those applying for an adjustment of their status. We also agree that students should be exempt. We do not agree, however, that an exemption should be extended to the spouse and dependent children of an immigrant or nonimmigrant alien if the spouse or dependent children intend to work in one of the covered health care occupations. The certification system was established because it is important to verify a health care worker's education, training, license, and experience, as well as his or her proficiency in English. Individuals should not be permitted to bypass this screening by virtue of being married to, or the dependent of, another health care worker. We recommend the following amendment:
§212.15 Certificates for foreign health care workers.
(b)(3) The spouse and dependent children of any immigrant or nonimmigrant
alien who do not intend to perform labor in a health care occupation
listed in paragraph (c) of this section.
On the question of whether foreign health care workers who have been trained in the United States, or who possess a valid state license, should be subject to the health care certification requirement, the Academy sees no reason why this would be necessary. We disagree with the Service's interpretation of the law and congressional intent. The purpose of the certification process, as we understand it, is to assess training and experience received outside the United States to determine if it is comparable to that provided in the U.S. Verifying the receipt of an American education therefore seems unnecessary.
The law also requires the screening organization to verify that an alien's license is authentic and unencumbered. We interpret this language to mean that aliens who have practiced with fraudulent credentials, or who have restrictions on their licenses in their country of origin, should not be certified. If a health care worker is licensed in the United States, he or she has met the qualifications for practice as delineated in state law. These qualifications are generally graduation from an accredited educational program and passage of a licensing examination. If restrictions are subsequently placed by the state on a license due to some infraction of the law, the health care worker is under the jurisdiction of the state licensing agency and there is no appropriate action to be taken by the INS. Therefore, we fail to see why even a streamlined process should be required.
The next issue raised by the Service concerns the designation of additional health care occupations that would be subject to certification. Two factors have been identified as relevant to the consideration of which occupations fall under §212(a)(5)(C) of the Act - licensure and direct effect on patient care. It is our belief that licensure is required for any health occupation that reasonably poses a risk to patient health and that these two factors overlap considerably. We define licensure as any regulatory process that controls entry to practice; some states use the term "certification" or "registration," but in fact do not permit individuals to practice without approval from the state.
There are many other health care occupations that could be added to the list, such as dentists, dental hygienists, pharmacists, clinical social workers, psychologists, and radiologic technologists. Congress has set immigration requirements for physicians, nurses, and "health care workers." The last category is comprehensive. There is no reason to limit the covered occupations to therapists, technicians, and PAs.
On the question of whether definitions of covered health care occupations should be added to the regulations, the Academy believes that it is difficult to write definitions that would be meaningful to individuals working in the health care systems of other countries. For example, the definition or description of physician assistant used by the AAPA is as follows:
Physician assistants practice medicine with supervision by licensed
physicians. As members of the health care team, PAs provide a
broad range of medical services that would otherwise be provided by
physicians.
A companion description reads:
Physician assistants are health professionals licensed to practice medicine
with physician supervision. Physician assistants are qualified by graduation
from an accredited physician assistant educational program and/or certification
by the National Commission on Certification of Physician Assistants.
Within the physician-PA relationship, physician assistants exercise autonomy
in medical decision-making and provide a broad range of diagnostic and
therapeutic services. The clinical role of physician assistants includes primary
and specialty care in medical and surgical practice settings in rural and urban
areas. Physician assistant practice is centered on patient care and may include
educational, research, and administrative activities.
There are many variations in state law definitions, but the essential elements in defining physician assistants are that PAs practice medicine, or provide medical services (which can be identified as examining, diagnosing, treating, prescribing medication, and counseling patients) as delegated by, and with the supervision of, licensed physicians. State laws frequently include in their definitions of physician assistant references to graduation from PA educational programs accredited by the Accreditation Review Commission on Education for the Physician Assistant and passage of the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants.The title "physician assistant" is easily misunderstood, even in the United States. It does not translate accurately into other languages and could be misconstrued to mean any "assistant to a physician." It is not uncommon for graduates of foreign medical schools to assume that they qualify to be physician assistants by virtue of their training.
Speaking for a profession that has struggled for more than 30 years to establish a unique identity, we would like to discourage the Service from using any definition that could contribute to or cause additional confusion.
We concur with the Service's decision not to require CGFNS to submit an application for credentialing status, but to subject CGFNS to ongoing scrutiny and review. Although the Service has made a decision to recognize more than one credentialing organization for each health occupation, we believe this could be problematic. It seems obvious that the procedures and fees of credentialing organizations could differ and that aliens will be drawn to the one that conducts a less rigorous assessment and charges lower fees. The result could potentially put the public at risk.
The Academy supports the publication of interim rules in the Federal Register indicating which organizations have been authorized to certify foreign health care workers. Once finalized, the list should then be posted on the INS Web site. Publication of interim rules would provide interested parties with an opportunity to comment on a particular organization and provide information that might have been overlooked by the agency.
The standards that an organization must meet in order to be authorized to issue certificates are excellent. We believe that they should be considered standards, rather than guidelines, and we strongly encourage INS not to approve any organization that fails to comply with all of the criteria.
Regarding the review of approved credentialing organizations, the Academy supports the agency's decision to conduct comprehensive reviews every five years. However, each organization should be required to submit annual reports to INS including information such as a summary of all screening activities (as enumerated in §212.15(k)(3)(viii)), auditor's reports, and other information. Should review of these materials reveal non-compliance with the published standards, the Service should conduct an unannounced on-site inspection of the organization.
We agree that the timeliness of the screening process and the fees charged to applicants are two excellent parts of the review process. We suggest that INS also examine the process by which educational comparability standards are developed, the consistency with which they are applied, the organization's resources for maintaining current information on education abroad, its systems to protect against fraud and abuse and conflict of interest, and other operational policies and procedures.
Based on our recommendations for ongoing review and periodic reevaluation of credentialing organizations, the Academy suggests that a fee of $230 to accompany Form I-17 is insufficient. Organizations that are in the business of providing needed credentials to alien health care workers will charge fees that, at a minimum, cover the cost of their operations. The government should set its fees at a level that, in addition to the cost of approving the initial application, will provide the resources necessary for the Service to monitor continually and reevaluate these organizations.
The Academy disagrees strongly with the Service's initial decisions regarding English proficiency testing services and scores. It is our recommendation that only the Test of English as a Foreign Language (TOEFL) be used for physician assistants. The passing score should be the same as that required for physicians; that is, 550 for the paper-based version, 213 for the computer-based version. English language proficiency for PAs must be equal to the standard set for physicians. Both physicians and PAs practice medicine and use medical terminology; both must be able to communicate effectively with patients, administrators, and colleagues; and both must be able to order and understand diagnostic and other laboratory test results, make entries in patient charts, read the medical literature, and comply with federal, state, and institutional regulations.
Setting test passage scores based on a baccalaureate degree requirement is arbitrary and could endanger the public health and safety. Physician assistants do not have a baccalaureate degree requirement for their educational programs. There are currently 134 accredited PA programs, approximately half of which offer a master's degree. A handful offer an associate degree; the rest are at the baccalaureate level. The credential offered by the sponsoring educational institution is less important than the fact that PA education is competency based, meaning that students must demonstrate proficiency in various areas of medical knowledge and must meet behavioral and clinical learning objectives. Many other professions, such as lawyers, dentists, and physicians, also offer competency based degrees.
Because of the historical variation in credentials awarded at the completion of a physician assistant educational program, it is unusual to find a degree requirement for PAs in state law. Only a few states specify a degree among the qualifications for licensure as a PA. Nevertheless, PAs have a wide-ranging scope of practice and their patient care responsibilities are substantial.
Given our recommendation that TOEFL be the only examination used to assess the English language proficiency of PAs, we naturally oppose the Service's suggestion that screening organizations develop their own tests of written and spoken English. The Academy also believes that approved test scores should be published as interim or final rules in the Federal Register before being posted on the INS Web site.
Regarding Part 212 - Documentary Requirements: Non-immigrants; Waivers; Admission of Certain Inadmissible Aliens; Parole, the Academy is very pleased to see the language of §212.15(a)(3):
A certificate or certified statement described in this section does not
constitute professional authorization to practice in that health care
occupation.
This is an extremely important statement that should be included on all informational materials and applications sent to alien health care workers by the credentialing organizations.
As mentioned previously, the Academy recommends the addition of the following language in §212.15(b)(3):
The spouse and dependent children of any immigrant or nonimmigrant alien who do not intend to perform labor in a health care occupation listed in paragraph (c) of this section.
In §212.15(c), Covered health care occupations , we recommend deletion of the phrase "regardless of where he or she received his or her education or training."New language should be inserted in §212.15(g), similar to the language in subsection (4)(i), indicating that "an alien seeking to perform labor in the United States as a physician assistant must obtain the following scores on the English tests administered by ETS: Test of English as a Foreign Language: Paper-Based 550, Computer-Based 213. The certifying organizations shall not accept the results of the MELAB, the TOEIC, or the IELTS for the occupation of physician assistant."
In addition, we recommend that the passing scores for the Test of Written English (TWE) and the Test of Spoken English (TSE) should be uniform for all the covered health occupations. It would be acceptable to us to use the scores specified for physical and occupational therapy; that is, 4.5 on the Test of Written English and 50 on the Test of Spoken English. We can find no justification for the variation in minimum passing grades on these examinations. All workers in the covered health care occupations should have high levels of English proficiency in order to function in the American health care system.
The Academy supports the standards for credentialing organizations listed in §212.15(k). However, we suggest that credentialing organizations, in addition to including representation on their governing boards from the disciplines being evaluated, also be required to have committees composed of recognized expert members from those disciplines. The role of the committees would be to determine the criteria by which foreign education would be evaluated for comparability to education in the United States. These criteria should be developed using a process that invites comment and input from members of the health care occupation in question, including representative national associations.
We also suggest that the requirement found in §212.15(k)(8)(iv), regarding the tracking of performance of certificate-holders on state licensure or certification examinations, is unrealistic. We question whether a credentialing organization, having issued a certificate to an alien health care worker, can successfully obtain information on that individual's eventual performance on a state or national examination. Maintaining contact with the certificate-holder over the period of time that might elapse before the individual took an exam, would be extremely difficult. Exam results would probably not be obtainable by the credentialing organization from any primary source; rather, the organization would have to rely on the individual to report the results. This makes the data unverifiable and of little value.
The Academy recommends amending §212.15(l), Service review of the performance of certifying organizations, to reflect a requirement for credentialing organizations to submit, on an annual basis, information related to their activities and finances, as previously recommended.
We would be happy to provide any additional information about the physician assistant profession that you may need. Please feel free to contact me or Nicole Gara, Vice President, Government and Professional Affairs ( nicole@aapa.org ; 703-836-2272 ext 3202).
Sincerely,
Stephen C. Crane, PhD
Executive Vice President/
Chief Executive Officer
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Last Revised: 10/14/03
