AUTHOR: Otieno Ombok
At a time when other states, such as New York, are liberalizing their MD licensure requirements for foreign physicians, Texas appears to be headed in the opposite direction. In an unprecedented move likely to affect the ability of hospitals and physician groups in Texas to hire foreign physicians, the Texas Medical Board has enacted changes to the licensure requirements and restrictions on physicians who are not U.S. citizens or permanent residents. Physicians applying for Texas medical license who are not U.S. citizens, U.S. permanent residents or conditional permanent residents are subject to a mandatory service requirement beginning September 1, 2012. The new requirement, authorized in Section §155.0045 of the Medical Practice Act, Texas Occupation Code, requires such physicians to practice full-time, for three years, in a medically underserved area (MUA), a Health Professional Shortage Area (HPSA) in Texas, or at a Texas institution that maintains a graduate medical education program. The new rule exempts physician-applicants who practiced medicine in Texas prior to September 1, 2012, for at least one year under a postgraduate training permit, temporary license, or limited license, or who submitted an initial application for full licensure prior to September 1, 2012. Full-time practice is defined as a minimum of 20 hours a week for a 40-week duration in a given year. See http://www.tmb.state.tx.us/professionals/physicians/applicants/mandatoryServiceRequirement.php
Until recently, New York generally restricted issuance of full MD license only to U.S. citizens and permanent residents. The State allowed issuance of a limited license to foreign physicians on work visas, provided they work in a medically underserved area. However, a federal appeals court, in Dandamudi v. Tisch, 2012 WL 2763281 (2d Cir. July 10, 2012), held the New York statute barring persons who were not U.S. citizens or legal permanent residents from obtaining a pharmacist’s license is unconstitutional and violates the Equal Protection Clause. Following this decision, New York now issues unlimited licenses in various professions to qualifying foreign professionals, without restrictions. The New York education department has confirmed that it no longer issues limited licenses, only unrestricted licenses. For physicians, New York will issue an unrestricted license to H-1B physicians, regardless of the employer’s/facility’s health shortage designation. This means foreign physicians in New York on work visas, such as H-1B, may work in hospitals that are not located in medically underserved areas (provided they are not subject to the three-year J-1 waiver service requirement).
Employers in Texas should consider the new requirement when recruiting foreign physicians, particularly those coming out of residency/fellowship training and those already on work visas with other employers. While the mandatory service requirement is unlikely to affect J-1 waiver foreign physicians coming out of residency/fellowship training as they generally will have to work three years in an underserved area as a condition of their J-1 waiver, the requirement is likely to adversely impact out-of-state J-1 waiver physicians or those who have undertaken their graduate medical training in H-1B visa status.