MU LAW COMMENT TO USCIS: ALLOW H-1Bs WHEN APPLICANT HAS HEALTHCARE WORKER CERTIFICATE

The USCIS and Department of Homeland Security recently issued a lengthy proposed rule. As per US law, USCIS and DHS had to ask the public for our comments about their proposed rule.  Many lawyers and the public commented on the proposed rule.

The proposed rule covers many areas.  Musillo Unkenholt's comments focused on one area: asking DHS to allow one-year H-1B approvals in instances where the alien does not hold a license, but does hold a Healthcare Worker Certificate.

The most common Healthcare Worker Certificates are Visa Screen, FCCPT Type 1 Certificates and NBCOT Certificates.

Click here to read our complete comment

The Musillo Unkenholt comment is also on Regulations.gov.

FCCPT: ICMT CLAIMS ARE FALSE

The Foreign Credentialing Commission on Physical Therapy (FCCPT) has posted notice on its website that the Indian College of Management & Technology is making false claims about its relationship with FCCPT.  FCCPT issued a cease and desist letter to ICMT on August 26, 2015. 

According to FCCPT, ICMT claims to provide “A Program 100% Approved and Accepted by F.C.C.P.T, USA”.  FCCPT comments that “ICMT has no working relationship with FCCPT, and FCCPT has not approved coursework completed at ICMT. FCCPT accepts some coursework completed at ICMT study centers for recognized Indian Universities with recognized physiotherapy education programs. However, all credits must be granted by the Universities.”   FCCPT reminded applicants to limit their coursework to recognized educational institutions if the applicants want their coursework to be credited.

FCCPT PILOTING EXPEDITED SERVICE

The Foreign Credentialing Commission on Physical Therapy is launching a pilot program, offering expedited completion of reviews.  The Expedited Service program guarantees completion within six weeks.  The reviews have traditionally taken eight weeks.  An Expedited Service can be requested at any time prior to the start of a review and up to two weeks after the start of the review.

FSBPT ELIMINATING DISTINCTION BETWEEN GENERAL EDUCATION AND PROFESSIONAL EDUCATION

Starting November 1, 2014, the Federation of State Boards of Physical Therapy (FSBPT) will eliminate the distinction between General Education and Professional Education.  This is a modification of the Interpretive Guidelines for the FSBPT Coursework Tool (CWT).

The Coursework Tool accepted by all member boards to evaluate whether a foreign educated PT or PTA’s education is substantially equivalent to a US PT or PTA education.

FSBPT’s Board issued a comprehensive notice letting the public know that the Board “did not approve this change lightly”.  The Board explained that the elimination of the distinction had been considered for several years and had been recommended by the FSBPT’s Foreign Educated Standards Committee.  Notably, within US education and within the criteria developed by the Commission on Accreditation in Physical Therapy Education (CAPTE), there is no such term as general education.  The new policy does not to eliminate the required courses within General Education, but it does eliminate the artificial distinction between Professional Education and General Education.

For foreign-educated PTs, this change could be helpful.  Presently the CWT requires 150 total credits, which is comparable to what is needed for a US post-graduate degree.  In many international PT programs these general courses are embedded into the PT professional courses, not completed ahead of entry. The current model would not allow the evaluator to give credit as a general course since it was taken as part of their professional coursework.

Previously, some foreign-educated PTs education was found to be incomparable to a US-educated because of the distinction between Professional Education and General Education.  This resulted in some foreign-educated PTs having to take “make-up” classes, usually from CLEP.  As the Board correctly points out, “to ask an applicant to complete a prerequisite after completing professional curriculum seems counterintuitive, and sets up an unreasonable barrier to licensure.”  

NPTE HANDBOOK

The FSBPT, which produces the US Physical Therapy Exam, has just produced an NPTE Candidate Handbook, along with a revamped Fixed Testing webpage.

The Candidate Handbook outlines the FSBPT's position on testing security and the protection of the integrity of the exam. It includes a section on recalling and sharing questions from prior exams.

The NPTE is the property of the FSBPT and is protected by contract, trade secret, and federal copyright laws. It is a violation of those laws, and thus illegal, to share any information whatsoever about any NPTE question. In particular, sharing information about a NPTE question recalled from memory or asking someone who has taken the NPTE to share such information is illegal.

The Candidate Handbook includes a helpful Frequently Asked Questions section, a Test Content Outline, and Sample Questions.

The revamped webpage streamlines the important information about the exam, including testing dates and helpful hints.

ONLY FOUR NPTE EXAMS IN 2013

To little fanfare, the Federation of State Boards of Physical Therapy has announced that there will only be four National Physical Therapy Exam testing dates offered in 2013. The exam dates for 2013 are expected to be released in mid-2012.

The FSBPT is offering five exams in 2012 and offered three exams in the second-half of 2011. FSBPT notes that:

We understand and appreciate that more test dates – not fewer – is what our stakeholders would like. However, in order to maintain the validity of the exam and maintain the current score reporting process, we are able to offer only four dates in 2013.

FSBPT began fixed date testing on July 1, 2011, as a result of concerns over the security of the exam. The NPTE is only offered in the United States and is the only one of the three major healthcare licensing exams to have adopted a fixed date testing schedule. The NCLEX-RN (Registered Nurse) and the OTR (Occupational Therapy) exams are offered around the world and on most business days. Both the NCLEX-RN and the OTR exams have not had notable security breaches, unlike the NPTE.

SEATING OPTIONS FOR THE NPTE

The next National Physical Therapy Exam is scheduled for December 5, 2011. The NPTE’s website regularly publishes the lists of test sites and the number of seats that are available for each site. The list breaks down by individual Prometric facility. Prometric is the independent test administrator for the NPTE. The NPTE is written and graded by the Federation of State Boards of Physical Therapy (FSBPT).

FSBPT to have fixed testing for all applicants

The FSBPT has just announced that they will be using a fixed test date for all applicants regardless of country of education or nationality. The FSBPT’s web-page posting makes clear that this was in part in response to their unsuccessful defense of the NPTE-i program in Georgia. The fixed test dates for 2011 are:

· September 7, 2011 (Wednesday)

· October 20, 2011 (Thursday)

· December 5, 2011 (Monday)

In 2012, the FSBPT has committed to five testing days.

In February a Georgia judge ruled that the FSBPT's previous NPTE-i testing scheme violated Georgia law. The Georgia judge’s decision did not address whether or not the NPTE-i violated Georgia discrimination and due process Constitutional issues. Those issues may be addressed in an appeal, should the FSBPT chose to appeal the Georgia court’s decision.

To some degree an appeal would be moot in light of the FSBPT’s actions today. MU commends the FSBPT for producing a fair and equitable testing system.

FSBPT’S POLICY RULED INVALID AND UNENFORCEABLE IN GEORGIA

by Chris Musillo and Cindy Unkenholt

As readers of this blog certainly are aware, last summer the FSBPT took the unprecedented action of barring graduates from schools located in Egypt, India, Pakistan and the Philippines from taking the National Physical Therapy Examination (NPTE).

On February 9, a Georgia court ruled that the FSBPT’s policy is illegal in Georgia. Barring any last minute legal maneuvers by the FSBPT and/or the Georgia State Board of Physical Therapy, impacted applicants for licensure in Georgia should soon be able to both apply for licensure and have the same availability to take the NPTE as every other applicant. If the Georgia State Board fails to offer a test, it will be in contempt of the court order.

This leads MU to predict an increase in applications for licensure through Georgia until other State Boards insist that the FSBPT allow their candidates unrestricted access to the NPTE or are forced to do so through similar litigation.

MU, through our association with the AAIHR, worked hard on the legal effort. We are very pleased to see that the Georgia court has found in favor of the Physical Therapists and did not allow an illegal policy to continue

The Decision presently is limited to applicants to Georgia. Other states are free to adopt the Georgia court’s ruling. MU is working through our association with the AAIHR to see that the logic behind the Georgia decision is applied to other states. It is now incumbent on other state boards of Physical Therapy immediately to:

1) resume processing of all qualified applications for Physical Therapy licensure;
2) obtain immediate authorization (through an emergency Board Meeting if necessary) to declare the actions of the FSBPT impermissible; and
3) notify the FSBPT that each State Board mandates that all candidates who are deemed eligible and authorized to take the NPTE be immediately accommodated without respect to country of education.

Any readers to this Blog are encouraged to call their state boards. The FSBPT must be encouraged to rescind this policy on a national basis. It is only with pressure on the State Boards that the policy will be nationally rescinded.

Unquestionably, the integrity of the NPTE must be maintained. However, it must be maintained in a nondiscriminatory and legal manner that does not penalize innocent individuals.

Specifically, the court has agreed that the policy of the FSBPT which barred access to the NPTE to certain Physical Therapists based upon the country of education was impermissible and has entered Declaratory Judgment and a Permanent Injunction against the FSBPT and the Georgia State Board. The Court specially barred the Georgia Board and the FSBPT from:

a. enforcing the Testing Prohibition, in whole or in part, in the Georgia;
b. taking any action which would prohibit candidates eligible for physical therapy licensure under Georgia law from registering for and taking the NPTE;
c. engaging in any action that would subject candidates eligible for physical therapy licensure under Georgia law who graduated from physical therapy programs in Egypt, India, Pakistan, or the Philippines to any testing requirements, measures, conditions, terms, or circumstances different than those imposed on all other candidates eligible for physical therapy licensure in Georgia;
d. permitting any individual or entity to impose testing requirements, measures, conditions, terms, or circumstances inconsistent with Georgia law upon any candidate eligible for physical therapy licensure in Georgia.

If you have any questions or would like any additional information, please do not hesitate to contact Chris Musillo or Cindy Unkenholt.

NPTE-i Registration and Lawsuit

Physical Therapists educated in the Philippines, India, Egypt and Pakistan are now eligible to register for the NPTE-i. The NPTE-i is the FSBPT’s licensing exam will be given on May 25, 2011. FSBPT claims that the segregated exam is necessary because of pervasive, ongoing security breaches by graduates of physical therapy schools from these countries, although their evidence for this claim is unavailable to the public.

Several plaintiffs sued the Georgia Board of Physical Therapy earlier this week. The lawsuit alleges that the FSBPT’s examination policy is discriminatory and violates both federal and state law, and that this discrimination is intentional.

The lawsuit also names the FSBPT as a Defendant. Success in that lawsuit likely will compel the FSBPT to revoke their policy, although it may take many months before any resolution is reached. If you are interested in participating in the lawsuit, you are encouraged to contact the AAIHR, which is working with the lawsuit’s Plaintiffs.

AAIHR to sue FSBPT over Discrimination Policy

The AAIHR just has announced that it will be pursuing a legal strategy against the FSBPT. The AAIHR has been working with several Attorneys General (AG) offices in strategic states to outline the governance issues and vulnerability of the states based on the FSBPT action. It also has hired litigation counsel, Latham and Watkins, a major litigation firm. The litigation counsel has prepared a Complaint against Georgia and FSBPT on behalf on plaintiffs. The Complaint will be filed soon.

If the lawsuit in Georgia is successful, it likely will end the FSBPT’s discriminatory test administration policy. AG's offices in several states have been contacted and made aware of the AAIHR’s position. Many states have expressed off-the-record concern about the FSBPT’s actions. Because of the deliberate nature of the state’s AG’s offices, the AAIHR has chosen the litigation path.

The AAIHR is looking for additional members to support their action. If you can contribute financially, please contact AAIHR President, Patty David.

MU is an associate member of the AAIHR and has been working with the AAIHR to outline the legal strategy. We have donated both time and funding to the effort.

NPTE-i Registration and Filing Fee

The NPTE has just announced that, contrary to prior indications, there will not be any difference in registration fees for the regular NPTE and the NPTE-i. The registration fee remains $370.00. Readers are alerted that registration for the May 2011 NPTE-i begins November 1. It is unclear what the demand for the exam will be and so qualified applicants are encouraged to register.

California Board Webcast on FSBPT

by Cindy Unkenholt

California continues to fight the disciminatory actions of the FSBPT. The Physical Therapy Board of California's October 11, 2010 teleconference regarding the FSBPT action on the NPTE will be webcasted live. All interested parties may watch it via the webcast.

NPTE-i

As expected, the FSBPT today announced that the NPTE-i (formerly the NPTE-YRLY) will be given twice in 2011, starting with the first NPTE-I exam on May 25, 2011 and the second in December. The exam will be given in all 50 states, along with the District of Columbia, Puerto Rico and the Virgin Islands.

The NPTE-i expected to be substantially similar to the regular NPTE.

Here is the calendar of important dates for the first exam:

November 1, 2010 – Registration opens with FSBPT
November 8, 2010 – Scheduling opens with Prometric
February 22, 2011 – Registration closes
March 15, 2011 – Last date for jurisdictions to approve PT candidates for NPTE-i
April 1, 2011 – Last date for candidates to schedule with Prometric

May 25, 2011 – TEST DATE NPTE-i PT
June 8, 2011 – Scores reported to jurisdictions

It remains to be seen how the State Board of California reacts to this announcement, since the NPTE-i does not comply with the two alternatives that California outlined in its recent letter to the FSBPT.

Predicting This Week

MU doesn’t like to do too much crystal ball gazing unless we are confident of its information and the information is public. Two things will almost certainly happen this week:

1. The FSBPT is likely to formally announce its plan for the NPTE-YRLY exam. The plan will be slightly better than what they’ve published so far, but not much more. Check their blog for the formal announcement, which should come Thursday.

2. It appears that Sen. Robert Menendez will formally introduce his immigration bill to Congress. Unfortunately the bill has virtually no chance of approval anytime soon, although some are holding out hope that the bill can get traction during the lame-duck session, in November and December.

What is "propensity" and what is "widespread"?

The FSBPT’s September 22, 2010 update to their blog attempts to answer the question, “Why didn’t you stop testing for all candidates?” Their answer, however, should raise significant issues about the logic behind their policy and their standard of review.

The blog posting says that graduates from universities from the four restricted countries – India, Philippines, Pakistan, and Egypt -- have apparently shown a “propensity” toward “widespread” sharing of NPTE questions. The FSBPT has yet to define “propensity” and “widespread” in any dialogue with members of the public and state boards of Physical Therapy. Every time the FSBPT hides behind these vague words, it calls into serious question the FSBPT’s rationale and raises questions of this policy’s true intent.

The FSBPT also says that “the exam itself has not been compromised by any groups beyond the restricted groups". This of course, does not mean that it hasn't been compromised by any individuals within those groups. If compromised questions were exposed to the internet (and every indication is that they were), then individuals beyond the restricted groups have cheated. To say otherwise is disingenuous.

Moreover, since there are many more individuals in non-restricted groups, the standard of review for these groups should be greater because the damage would be far greater. For instance, if there are 1,500 restricted country test takers and 10 percent have cheated, then there are 150 restricted country cheaters.

On the other hand, if there are 15,000 non-restricted country test takers and just 1 percent has cheated, then there are 150 additional cheaters. American patients don’t care about the nationality of the cheaters; they just want all 300 cheaters to be banned from the test. The FSBPT’s program catches the first 150, but does nothing about the second 150.

FSBPT and State Action

by Chris Musillo and Cindy Unkenholt

As readers of the MU Healthcare Immigration Law Blog surely are aware, the FSBPT recently enacted a policy that bars graduates of Philippine, Egyptian, Indian, and Pakistani schools from sitting for and taking the National Physical Exam until 2011. This policy was enacted in July 12, 2010 and was formulated after analysis by the NPTE uncovered replication of actual test questions.

Ultimately the FSBPT is beholden to its stakeholders, the 50 State Boards of Physical Therapy. One such State Board, California, has just sent the FSBPT a strongly-worded letter, which sets an October 1 deadline for the FSBPT to rescind their discriminatory policy or suspend the NPTE for all test-takers. A copy of this letter is available on the MU website.

At the FSBPT's annual meeting in late October, it will more fully outline its plans for the future of the NPTE to their membership and to their stakeholders. This dialogue has already begun and may result in an amended policy in advance of the annual meeting.

The FSBPT's aims are valid. Test takers who cheat should be penalized before sitting for NPTE. In some instances, the penalty should be an outright prohibition against taking the exam.

While the FSBPT's aim is valid, their remedy is imperfect. MU lawyers Chris Musillo and Cindy Unkenholt have been working with employers, recruiters, physical therapists, immigration lawyers, and other industry leaders with the goal of remedying or modifying the policy, which we believe violates both federal and state discrimination laws.

In order to make sure that your State Board is part of this dialog, please urge your State Board to make their opinion known to the FSBPT.

FSBPT's odd policies continue to baffle

Yesterday, the FSBPT announced on their webpage that any post- July 11 NPTE test-takers would have their results held until at least October 1, 2010, if they graduated from a school in the Philippines, India, Egypt or Pakistan. The scores are being held pending a psychometric review of each test-takers’ results. Certain post-July 11 test takers should expect to have their scores invalidated; while others’ test results will be allowed to stand.

As has been consistently the case since the July 12 announcement, the FSBPT has been vague and inconsistent in their message. This vagueness and inconsistency calls into question the FSBPT’s ability to manage this situation.

With this latest webpage notice, the FSBPT has not explained what it looks for when it performs the psychometric review. More oddly, test takers whose scores have been invalidated may still be eligible to take the NPTE-YRLY in 2011 if they continue to meet their states’ eligibility requirements. This goes against the purpose of a review, which is presumably to protect the US public from cheating test takers.

Is the FSBPT’s Policy impacting you?

Have you been impacted by the FSBPT’s discriminatory policy against Philippine, Indian, Egyptian, and Pakistani graduates? If so, please contact Chris Musillo or Cindy Unkenholt. We are working with like-minded immigration attorneys, recruiters, staffing companies, and other stakeholders with a goal of solving this crisis.

We presently are limiting our scope only to those who hold US immigration status – US citizens, US Legal Permanent Residents, and valid nonimmigrant visa holders (for example H-4 or F-1). You should also have filed a state license application or have the necessary criteria to file the state license application. Again, if you fit this profile, please contact either one of us.

Combating the FSBPT’s Discrimination Policy

As we have previously posted, the FSBPT's July 12 policy barred graduates from universities in the Philippines, India, Egypt and Pakistan from sitting for the NPTE. Under the FSBPT’s current policy, graduates from those four countries will be given their own separate but equal exam starting in the Fall of 2011.

MU knows that several states have begun contacting the FSBPT to inquire if the FSBPT can speed up this process or rescind it. Some states may act in the next few days.

Once the letter is issued, it will be incumbent on the FSBPT to reconsider alternatives to their separate but equal approach or run the risk of legal action. MU is also aware of several different parties and states that are consulting with attorneys to evaluate their legal options. Legal action is the least –desired course of action. If you have been denied an opportunity to take the NPTE and you are in the US and would like to help remedy the FSBPT’s policy, please contact Cindy Unkenholt or Chris Musillo.