Screening Organization Files Suit Against INS

The dispute over who has authority to screen foreign health professionals seeking entry to the United States reached a boiling point last month as the Commission on Graduates of Foreign Nursing Schools (CGFNS) filed suit to force the Immigration and Naturalization Service (INS) to approve a CGFNS screening process. The suit asks the federal district court to force INS and the Department of State to rescind current policy directives and approve CGFNS certification of alien health care workers.

The battle over certification authority stems from passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The federal act mandates a screening process for foreign health care workers wishing to practice in the U.S. and specifically names CGFNS as an organization qualified to evaluate the credentials of health care professionals other than physicians. However, INS has refused to accept CGFNS certifications pending the promulgation of regulations to implement the act.

In public statements announcing the lawsuit, CGFNS stated that, "The suit was filed after more than 19 months of frustrating but ultimately fruitless negotiation, principally with the Immigration and Naturalization Service, aimed at getting INS to agree to have CGFNS begin doing what Congress had already specifically authorized…." The commission also complained of "arbitrary, capricious and unlawful directives regarding the immigration of foreign health care workers." Named as defendants in the suit are the U.S. Department of Justice, INS, Attorney General Janet Reno, Secretary of State Madeleine Albright and INS Commissioner Doris Meissner.

At issue is whether the language of the 1996 act automatically gives CGFNS authority to proceed with certification. The commission argues that Congress designated CGFNS by name and specifically mandated it to certify all foreign-educated health care workers except physicians. INS, on the other hand, has been unwilling to establish procedures for certification and has issued a directive to its field personnel waiving the screening requirement until new regulations are promulgated.

As a result, hundreds of visa applicants have gone through the VisaScreen process administered by the International Commission on Healthcare Professionals (ICHP), but have not yet received their certification. At the same time, because of the INS waiver, hundreds of other foreign health care workers have entered the United States without going through any kind of screening process.

Another bone of contention is to what extent the act authorizes CGFNS to screen health care professionals other than nurses. IIRIRA contains a provision that certification can be provided by other organizations "approved by the Attorney General and the Secretary of Health and Human Services."

The National Board of Certification of Occupational Therapists (NBCOT) and the Federation of State Boards of Physical Therapy (FSBPT), for instance, have argued that CGFNS lacks the expertise to certify non-nursing professions and representatives of these groups have met with INS officials to offer screening services tailored to those professions.

According to John Mirone, vice president of FSBPT, it would be inappropriate for CGFNS to screen other professions. "It is extremely rare to have a specific entity named in legislation," Mirone said. "And it is not consistent with the intent of Congress to grant exclusive certification authority."

Although the standoff affects CGFNS current and potential revenue flow, the group's lawsuit does not seek damages. It does, however, ask for reimbursement of legal costs and attorneys' fees.

The dispute may reach another milepost later this summer when INS makes public its draft interim regulations, currently being reviewed by the Office of Management and Budget. But unless the temporary regulations accede to CGFNS's demands for exclusive certification authority, the lawsuit is likely to go forward.

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