44:63:01:01. Definitions. Terms used in this article mean:
(1) "Application," a complete set of materials, as determined by the department per chapter 44:63:02, submitted by an employing facility on behalf of a J-1 physician seeking waiver of the physician's J-1 visa requirement to return to the physician's home country for a minimum of two years upon expiration of the visa;
(2) "Department," the Department of Health;
(3) "Employing facility," a facility located in or serving residents of a shortage area in South Dakota as determined by the department that has made a bona fide employment offer to a J-1 physician, that has submitted a J-1 visa waiver request in the form of an application to the department, and that is incorporated under the laws of the State of South Dakota;
(4) "Full time," an average of 40 hours of medical practice per week, meaning a four week minimum of 128 hours seeing patients on an ambulatory or in-patient basis and 32 hours administrative work;
(5) "USCIS," U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security;
(6) "J-1 physician," a physician who is in possession of a temporary exchange visitor (J-1) visa to pursue graduate medical education in the United States, or possessed J-1 status and remains subject to the two-year home residence requirement, and is seeking a waiver of a J-1 visa home country residency requirement through the practice of medicine to shortage area residents;
(7) "Secretary," secretary of the Department of Health;
(8) "Shortage area," a geographic area, population group, or facility in South Dakota that is designated by the federal government as a medically underserved area or health professional shortage area. The designation must be in effect at the time an application is received by the department;
(9) "Urban location," any municipality having a population of 50,000 or more persons as well as any area within ten miles of the boundaries of the municipality.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
CHAPTER 44:63:02
FORM AND CONTENT OF WAIVER APPLICATIONS
Section
44:63:02:01 Case number.
44:63:02:02 Order of documents submitted.
44:63:02:03 Letter from facility.
44:63:02:04 Information required from facility.
44:63:02:05 Data sheet DS-3035.
44:63:02:06 J-1 waiver affidavit.
44:63:02:07 Federal forms.
44:63:02:08 Eligibility to be licensed to practice.
44:63:02:09 J-1 physician curriculum vitae.
44:63:02:10 Employment contract.
44:63:02:11 Contractual obligation to home country.
44:63:02:12 Repealed.
44:63:02:13 Medical licensure.
44:63:02:14 Evidence of shortage designation status.
44:63:02:15 J-1 physician statement.
44:63:02:16 Out of status explanation, when applicable.
44:63:02:17 Form G28, when applicable.
44:63:02:18 I-94 entry and departure cards.
44:63:02:19 Examinations required by USCIS.
44:63:02:20 Repealed.
44:63:02:02. Order of documents submitted. Each application shall consist of documents submitted in the following order:
(1) Data sheet DS-3035;
(2) Employment contract;
(3) J-1 waiver affidavit;
(4) Federal forms (IAP-66//DS2019);
(5) Letter from facility;
(6) Evidence of shortage designation status;
(7) J-1 physician statement;
(8) J-1 physician curriculum vitae;
(9) Out of status explanation, when applicable;
(10) Form G28, when applicable;
(11) I-94 entry and departure cards;
(12) Contractual obligation to home country;
(13) Appendix 1 Information required from facility;
(14) Appendix 2 Examinations required by USCIS;
(15) Appendix 3 Eligibility to be licensed to practice; and
(16) Appendix 4 Medical licensure.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:03. Letter from facility. A letter signed by the employing facility administrator shall comprise part of the application. The letter shall request the department to act as an interested governmental agency in recommending waiver of the home country residency requirement for the named J-1 physician. The letter shall also describe the employing facility, including organizational structure, services offered, and service area.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:04. Information required from facility. Every application shall include a series of statements, all clearly labeled under separate headings describing the following:
(1) Recruitment efforts. The employing facility shall summarize and provide copies of advertisements, any agreements with placement services, and other evidence documenting the extent to which the employing facility has been unsuccessful in recruiting qualified U.S. physicians. In the absence of such evidence, a narrative which sets forth in convincing detail such unsuccessful recruitment efforts shall be included;
(2) Summary of J-1 physician's expected practice arrangement. The employing facility shall describe:
(a) The J-1 physician's proposed responsibilities;
(b) How the J-1 physician's employment will satisfy important unmet needs of the shortage area; and
(c) How the J-1 physician will satisfy his or her practice obligation in terms of practice location, practice hours, and responsibility for taking calls;
(3) Equivalency of J-1 compensation. The employing facility shall state that the J-1 physician's salary or other forms of financial support is at a level equivalent to that of other physicians in the region, taking into account such variables as training, experience, and specialty involved. The statement should itemize the guaranteed three-year base salary, benefits, insurance, and amount of leave;
(4) Retention of J-1 physician beyond the 3-year obligation. The employing facility shall state its plans for retaining the J-1 physician beyond the three-year obligation period;
(5) Effect of waiver denial. The employing facility shall state the effect on the shortage area population to be served if the waiver is denied; and
(6) Service to the underserved. The employing facility shall describe the shortage area to be served by the J-1 physician and state that the facility accepts Medicare/Medicaid patients as well as medically indigent patients.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:06. J-1 waiver affidavit. Each application shall include an affidavit signed by the J-1 physician. The department shall furnish each J-1 physician a copy of an unsigned affidavit upon request by the employing facility.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:07. Federal forms. A copy of the IAP-66//DS2019 (certificate of eligibility for exchange visitor J-1 status) for each year the J-1 physician was in J-1 status.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:08. Eligibility to be licensed to practice. A copy of the J-1 physician's South Dakota medical license or proof of ability to be licensed in the state of South Dakota by the beginning of the employment contract period shall be included in the application.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:10. Employment contract. Each application shall include a complete copy of the minimum three-year employment contract between the J-1 physician and the employing facility. The J-1 physician and the employing facility shall sign and date the contract. The employment contract shall include the following:
(1) Name and address of the employing facility;
(2) Name and address of the J-1 physician;
(3) The specific shortage area in which the J-1 physician will practice;
(4) That the J-1 physician will practice full-time;
(5) That the J-1 physician will practice a minimum of 64 hours per four week period direct patient care within the shortage area identified in the contract;
(6) That the J-1 physician may provide up to 96 additional hours per four week period under any of the following conditions:
(a) Providing care to patients in either the hospital inpatient or outpatient department if the hospital is shown to serve a significant portion of shortage area residents;
(b) Clinical outreach to underserved populations residing in a shortage area, whether directly in person or by electronic means. If by electronic means, the remote site must be located within a shortage area. If provided in person, the setting must be located in a shortage area;
(c) Public health services if approved by the department; or
(d) Direct patient care in a facility or setting that serves the underserved, as evidenced by the posting of a notice of a discounted fee program as an adopted policy of the facility. The discounted fee program shall meet or exceed the following minimum standards: 100% of the federal poverty level (FPL) or less = 100% discount; 101% to 125% of the FPL, inclusive, = 80% discount; 126% to 150% of the FPL, inclusive, = 60% discount; 151% to 175% of the FPL, inclusive, = 40% discount; and 176% to 200% of the FPL, inclusive, = 20% discount;
(7) That the J-1 physician will begin employment at such facility within 90 days of receiving the waiver as well as continue to work at the facility for a total of not less than three years;
(8) That the J-1 physician will accept assignment under the Social Security Act § 1842(b)(3)(ii) as full payment for all services for which payment may be made under part B of Title XVIII of such act (Medicare);
(9) A sentence describing what field of medicine the J-1 physician will practice;
(10) Language requiring that the contract be terminated only for cause and cannot be terminated by mutual agreement until after expiration of the required three-year period of service;
(11) No noncompete clause or provision that purports to limit the J-1 physician's ability to remain in the area upon completion of the contract;
(12) An attachment provided by the department titled "J-1 Employment Contract Policy of the South Dakota Department of Health"; and
(13) A statement by the foreign medical graduate that the graduate agrees to meet the requirements set forth in section 214(l) of the Immigration and Nationality Act in compliance with 22 CFR 41.63(e)(3)(iii).
Source: 28 SDR 47, effective October 4, 2001; 29 SDR 107, effective February 3, 2003; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:11. Contractual obligation to home country. Each application shall contain a statement, signed by the J-1 physician, as to whether the J-1 physician is contractually obligated to his or her home country. If so obligated, a copy of a letter from the home country stating it has no objection to the J-1 physician remaining in the U.S. shall be attached to the statement.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:12. Permanent residence. Repealed.
Source: 28 SDR 47, effective October 4, 2001; 45 SDR 45, effective October 8, 2018.
44:63:02:13. Medical licensure. Each application shall include a statement signed by the J-1 physician stating that all the J-1 physician's medical licenses are in good standing and that he or she is not subject to any criminal investigation or proceedings by any medical licensing authority.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:14. Evidence of shortage designation status. Each application shall include evidence that the service area is designated as a health professional shortage area or a medically underserved area or both.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:15. J-1 physician statement. A statement from the physician regarding the reasons for not wishing to fulfill the two-year home country residence requirement to which the physician agreed at the time of acceptance of exchange visitor status shall be included in the application.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:16. Out of status explanation, when applicable. An explanation shall be included in the application if the physician spent any period of time in some other visa status, out of status, or outside of the United States.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:17. Form G28, when applicable. A form G-28 shall be included in the application from an attorney or accredited representative. A letterhead from a law office may be used as a substitute for form G-28 if an attorney represents the applicant.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:20. Letters of recommendation. Repealed.
Source: 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
CHAPTER 44:63:03
PROCEDURES
Section
44:63:03:01 Acceptance of applications.
44:63:03:02 Review of applications.
44:63:03:03 Incomplete applications.
44:63:03:04 Complete applications -- Favorable review.
44:63:03:05 Complete applications -- Unfavorable review.
44:63:03:06 Annual limit on number of applications.
44:63:03:01. Acceptance of applications. Only applications consisting of the unbound original from the employing facility shall be considered for review.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:03:02. Review of applications. The order in which applications are reviewed shall be based on the date upon which they are received. Upon receipt, each application shall be verified for completeness and evidence that the J-1 physician will provide full-time service to a shortage area. If, on any given date, the number of applications received exceeds the number of available waiver slots, the reviewers may consider the following factors:
(1) Primary care/specialty care;
(2) Rural/urban location;
(3) Impact on service to South Dakota's underserved populations;
(4) Number of recent waivers approved for the applying health care facility/health system;
(5) Number of recent waivers approved for the applying geographic location within the state;
(6) Any other factor or special circumstance the department considers relevant to the review process.
If reviewers intend to consider the factors listed above in evaluating an application, the employing facility will be allowed to submit supplemental information.
Source: 28 SDR 47, effective October 4, 2001; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:03:03. Incomplete applications. One written request to the employing facility shall be made for any materials not included in the application. If the requested materials are not received within 30 days of the date of the written request, the application will be rejected and returned.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:03:04. Complete applications -- Favorable review. If a complete application is selected for recommendation by the department, the following shall occur:
(1) A letter signed by the secretary shall be added to the application stating that it is in the public interest that a waiver of the two-year home country residency requirement be granted;
(2) The secretary may also add necessary documentation showing the area selected for practice by the J-1 physician is a shortage area;
(3) The letter and application materials shall be delivered to the appropriate federal authorities; and
(4) A copy of the letter shall be delivered to the employing facility.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:03:05. Complete applications -- Unfavorable review. If a complete application is not selected for recommendation by the department, the secretary shall notify the employing facility in writing as to the reasons for the determination. The written notice and application shall be sent to the employing facility.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:03:06. Annual limit on number of applications. The annual number of applications that can be reviewed and recommended for approval is limited to 30, beginning on October 1 of each year.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005.
General Authority: SDCL 36-2-22.
CHAPTER 44:63:04
REPORTING REQUIREMENTS
Section
44:63:04:01 Annual reports required.
44:63:04:02 Transfer reports required.
44:63:04:03 Sanctions.
44:63:04:01. Annual reports required. Commencing one year after the J-1 physician begins employment with the employing facility and every year thereafter for a period of three years, a representative of the employing facility and the J-1 physician shall certify the employment status of the J-1 physician. The department shall send a form to the employing facility and J-1 physician which includes the following:
(1) Any changes in the J-1 physician's practice location;
(2) Any changes in the J-1 physician's employment status; and
(3) Dated signatures of both the J-1 physician and either the chief executive officer of the employing facility or a representative of the chief executive officer.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:04:02. Transfer reports required. Before a J-1 physician may be transferred to a different practice location, the employing facility shall complete the "J-1 Visa Physician Transfer Application Form" and submit the completed form to the department for review. If the transfer application materials support the requested transfer, a letter of concurrence signed by the Secretary shall be sent to the current employing facility. A copy of the physician's notification to USCIS and the U.S. Department of State shall be submitted to the department following approval of the transfer.
Source: 31 SDR 214, effective July 4, 2005.
General Authority: SDCL 36-2-22.
44:63:04:03. Sanctions. If an employing facility fails to comply with the reporting requirements laid out in this chapter, the employing facility may be barred from the program for a period of up to five years, as determined by the department.
Source: 31 SDR 214, effective July 4, 2005.
General Authority: SDCL 36-2-22.
44:63:05:01. Amount of fee. Each application shall be accompanied by a nonrefundable fee of $200 payable to the department. The department shall return all applications not accompanied by the required fee.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
CHAPTER 44:63:06
SPECIAL PROGRAM
Section
44:63:06:01 Creation of special program.
44:63:06:02 Location of J-1 practice.
44:63:06:03 Form and content of special program waiver applications.
44:63:06:01. Creation of special program. Based upon federal authorization, up to ten J-1 physicians may annually receive waiver of their J-1 visa obligation. Such applications shall meet the requirements of this chapter.
Source: 31 SDR 214, effective July 4, 2005; 35 SDR 183, effective February 2, 2009.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:06:02. Location of J-1 practice. Prior to January 2 of each federal fiscal year, the department may not approve more than five applications submitted on behalf of a J-1 physician who proposes to practice under the special program within any urban area, and the department may not approve more than five applications submitted on behalf of a J-1 physician who proposes to practice under the special program within any non-urban area. The department may approve any application on or after that date.
Source: 31 SDR 214, effective July 4, 2005; 35 SDR 183, effective February 2, 2009; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:06:03. Form and content of special program waiver applications. Any application submitted pursuant to this chapter shall comply with all provisions of this article, with the following modifications.
(1) In addition to the requirements outlined in § 44:63:02:03, the letter from facility shall state that the application is submitted under the "Special Program Requirements" of the South Dakota J-1 Visa Waiver Program. The letter from facility may also state that in the event the application cannot be considered for the Special Program, such application be otherwise considered;
(2) The employment contract required pursuant to § 44:63:02:10 shall include all shortage areas served by the J-1 physician; and
(3) The provisions of subdivisions 44:63:02:10(5) and (6) do not apply to the employment contract.
Source: 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
