Caring for an Older America: Building a Sustainable Domestic Nursing Workforce

Transcription

1 Caring for an Older America: Building a Sustainable Domestic Nursing Workforce By Laura Jolley University of Virginia Law School Tied for Fourth Place

2 I. Introduction We live in an aging America. In 2008, the older population, commonly defined as persons sixty-five years or older, 1 represented 12.8% of the U.S. population, or approximately one in every eight Americans. 2 By the year 2030, an estimated nineteen percent of the American population will be over age sixty-five. 3 With aging comes a greater need for health care services. A 2008 Institute of Medicine report noted that the older population accounts for twenty-six percent of all physician office visits, thirty-five percent of all hospital stays, thirty-four percent of all prescriptions, and thirty-eight percent of all emergency medical service responses. 4 In response to the increasing older population, industries that serve older adults will undergo substantial growth in the next ten years. 5 Further, financial pressure on hospitals to discharge patients sooner will drive up the demand for long-term care admissions for older adults at nursing facilities. 6 The nursing workforce provides a substantial fraction of health care services to older adults, so as the aging population continues to increase so will the nursing workforce need to in order to meet this increased demand. As it stands, our current nursing workforce is too small and inadequately trained to meet the health care challenges facing the U.S. Building a more robust nursing workforce will require an array of initiatives and investments aimed at increasing the training, recruitment, and retention 1 Traditionally, in the U.S. age sixty-five is the beginning of old age since this is when Americans become eligible for full Social Security benefits. See U.S. Department of Health and Human Services Administration on Aging, A PROFILE OF OLDER AMERICANS 4 (2009), available at 2 Id. 3 Grayson K. Vincent & Victoria A. Velkoff, THE NEXT FOUR DECADES THE OLDER POPULATION IN THE UNITED STATES: 2010 TO (2010), available at 4 Institute of Medicine, RETOOLING FOR AN AGING AMERICA: BUILDING THE HEALTH CARE WORKFORCE 45 (2008), available at 5 Center for Health Workforce Studies School of Public Health University at Albany, THE IMPACT OF THE AGING POPULATION ON THE HEALTH WORKFORCE OF THE UNITED STATES 121 (2006). [hereinafter Center for Health Workforce Studies]. 6 Id. 1

3 of nurses within our workforce. This Note proposes that the United States current reliance on the immigration of foreign-trained nurses as a recruitment initiative is not a responsible solution to achieving nursing workforce sustainability or meeting the demand for health care services for our aging population. Reliance on the immigration of foreign-trained nurses misplaces the necessary incentives for the investment in domestic strategies that are more suitable to the development of a sustainable and proficient nursing workforce able to meet the growing demands of an aging America. Further, reliance on foreign-trained nurses adversely affects the provision of health care in lower-income countries. The development of a self-sufficient nursing workforce that is able to address the needs of our aging country is good domestic and global policy and will require a robust, long-term, and coordinated commitment to domestic initiatives. The recent passing of the Patient Protection and Affordable Care Act (PPACA) represents a unique opportunity for the development of a comprehensive, systematic approach to nursing selfsufficiency. Part I of this Note describes the structure of the U.S. nursing workforce. Part II details the current and projected shortfalls of nurses in the U.S. Part III examines the U.S. s recruitment and employment of foreign-trained nurses to fill domestic nursing shortfalls. Part IV describes the factors that push and pull foreign-trained nurses into the U.S. market. In Part V this Note outlines the benefits to the U.S. and foreign countries from the U.S. s reliance on foreign-trained nurses. In contrast, Part VI delineates the challenges created by the reliance on foreign-trained nurses to fill domestic shortfalls. Finally, Part VII sets forth recommendations for developing a more sustainable nursing workforce able to care for our aging population. Recommendations fall into three categories: (1) recommendations to build a stronger domestic nursing workforce through solutions funded and implemented in the U.S; (2) 2

4 recommendations that focus on collaborative efforts to build self-sufficient nursing workforces in low- and middle-income countries, and (3) recommendations for the implementation of safety mechanisms if the U.S. continues to rely on foreign-nurses to fill domestic shortfalls. I. Nursing in the U.S. The nursing profession is comprised of multiple individual nursing occupations. The generic descriptor nurses is used to refer to registered nurses (RN), licensed practical nurses (LPN), nursing aides, and home health aides. While the educational requirements and responsibilities for the various nursing cadres differ, the nursing profession as a whole is responsible for direct patient care in most health care settings. Educational requirements for RNs vary and consist of either a bachelor s degree in nursing, an associate s degree in nursing, or a diploma from a hospital-administered nursing school. 7 In order to obtain a state license, a registered nurse must pass the National Council Licensure Examination Registered Nurse (NCLEX-RN). 8 Fifty-eight percent of RNs are employed in hospital settings 9 where older adults make up thirty-eight percent of all hospital stays. 10 RNs are also employed in nursing and other residential facilities (eight percent), in home health care (five percent), and in health offices and clinics (eleven percent). 11 Only four percent of registered nurses are employed in education and teaching. 12 RNs are primarily responsible for providing direct patient care, educating and advising patients and their caregivers, and developing and managing nursing care plans Center for Health Workforce Studies, supra note 5, at National Council of State Boards of Nursing, (last visited Dec. 14, 2010). 9 Center for Health Workforce Studies, supra note 5, at Institute of Medicine, supra note 4, at Center for Health Workforce Studies, supra note 5, at Id. 13 Id. at

5 The educational background of LPNs also varies, but all LPNs are required to complete a state approved nursing program, which typically lasts one year, and pass a state-based licensing exam, the National Council Licensure Examination Practical Nurse (NCLEX- PN). 14 Nearly half of all LPNs have an associate s degree and five percent have a bachelor s degree. Nursing and residential care facilities employ thirty-two percent of LPNs, hospitals twenty-eight percent, health care offices sixteen percent, and home health care agencies six percent. 15 LPNs are under the supervision of RNs and physicians, and are primarily responsible for bedside care (i.e. changing dressings, attending to the general comfort of the patients). Teaching facilities only employ three percent of LPNs. 16 No formal education is required for nursing aides. Training is often provided at the health care facility or in community colleges. However, home health aides are required to pass a competency exam in order for Medicare to reimburse their employer for their services. 17 The majority of nursing aides are employed in nursing and residential care (fifty-one percent) followed by hospitals (twenty-five percent). 18 II. Creation of a Domestic Nursing Shortage As is the general population, the nursing workforce is also aging. In fact, the nursing workforce is out-aging the general workforce. The median age for the American workforce overall is forty-years old, while the median age for RNs is forty-three and forty-four for LPNs. 19 By 2020, forty-five percent of RNs will have reached retirement age and similar percentages of LPNs are expected to reach retirement age in the next ten years. 20 In addition to large numbers 14 National Council of State Boards of Nursing, (last visited Dec. 14, 2010). 15 Center for Health Workforce Studies, supra note 5, at Id. 17 Id. at Id. 19 Id. at Id. 4

6 of nurses retiring, work hours are shown to decline for RNs and LPNs after age fifty-five, from a mean of more than thirty-three hours a week for nurses younger than fifty-five to a mean of fewer than thirty-one hours for those over age fifty-five. 21 In contrast, nursing and home health aides have a greater percentage of workers under age forty-five, and a median-age of only thirtynine, one year younger than the American workforce as a whole. 22 It is more difficult, however, to assess the supply of nursing and home health aides, as they are not required to attain a degree or licensure, but turnover and retention problems are very serious for this occupation. 23 Factors that contribute to the high turnover rates for nursing aides, particularly those employed in nursing facilities, include low salaries, little to no benefits, challenging work conditions with high rates of workplace injury, and very limited possibilities for career advancement. 24 In all nursing cadres reimbursement issues, poor working conditions, and extensive regulatory requirements are contributing factors to the continual shortage of workers. 25 Domestic nursing schools are also not able to keep up with the demand for nursing services. 26 The American Association of Colleges of Nursing found that nearly 30,000 qualified applicants were turned away from baccalaureate nursing programs and as many as 150,000 from all nursing programs in 2005 because of shortages of faculty, resources, space, and clinical 21 Id. 22 Id. at Id. at Patricia Keenan, Commonwealth Fund, THE NURSING WORKFORCE SHORTAGE: CAUSES, CONSEQUENCES, PROPOSED SOLUTIONS, 3 (2003). 25 Kevin C. Fleming, Jonathan M. Evans, & Daryl S. Chutka, Caregiver and Clinician Shortages in an Aging Nation, 78 MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH 1026, 1027 (2003); Center for Health Workforce Studies, supra note 5, at Daniel Polsky, Julie Sochalski, Linda H. Aiken & Richard A. Cooper, Leonard Davis Institute of Health Economics, MEDICAL MIGRATION TO THE U.S.: TRENDS AND IMPACT, 1 (2007), available at 5

7 placement sites. 27 This shortage has produced RN vacancy rates of ten to fifteen percent in U.S. hospitals and nursing homes. 28 While the U.S. is currently suffering from a shortage of nurses, the shortage is only estimated to grow larger as the demand increases and more nurses retire. The Bureau of Labor Statistics predicts that between the years of 2008 and 2018 registered nurses and home health aides will be the two fastest growing occupations in the U.S. 29 Specifically, as illustrated in Figure 1 below, between the years 2008 and 2018 registered nurses are estimated to have a total of 1.03 million job openings due to growth of the health care industry and replacement needs. LPNs, nursing aides, and home health aides are predicted to experience similar increases with total job openings of 391,300, 422,300 and 1.3 million, respectively. The increase in the number of new and replacement openings represents large increases in these sectors. For instance, as illustrated in Figure 2, this is a fifty percent increase in home health aides and a twenty-two percent increase in registered nurses needed to meet the growing demand of the health care system. Figure 1: Predicted total job openings due to growth and replacement needs for all nursing cadres for Linda H. Aiken, U.S. Nurse Labor Market Dynamics Are Key to Global Nurse Sufficiency,42 HEALTH SERVICES RESEARCH 1299,1303 (2007). 28 Daniel Polsky, Sara J. Ross, Barbara L. Brush & Julie Socharlski, Trends in Characteristics and Country of Origin Among Foreign-Trained Nurses in the United States, , 97 Am. J. Public Health 895, 895 (2007) [hereinafter Polsky, Trends in Characteristics]. 29 T. Alan Lacey & Benjamin Wright, Bureau of Labor Statistics, Occupational Employment Projections to 2018, MONTHLY LABOR REVIEW, 82, 84 (2009). 30 Id. at

8 Figure 2: Percentage increase estimated for for nursing workforce by cadre. 31 Further, studies have repeatedly shown a very strong relationship between inadequate staffing and adverse patient outcomes, including mortality. 32 Despite the current shortage, predictions of a much greater nursing shortage in the future, and data showing a relationship between inadequate staffing and poor health outcomes the U.S. 31 Id. at Joint Comm n on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Addressing the Evolving Nursing Crisis 14 (2003). 7

9 lacks a coordinated response to this domestic nursing shortage. The U.S. states have implemented various piecemeal approaches through public-private partnerships and with funding from Title VIII of the Public Health Service Act. However, no systematic approach exists and various interest groups, such as Filipino nursing organizations, the Foreign Nurse Taskforce, and immigration focused law centers have successfully lobbied Congress to amend our immigration laws such that the recruitment of foreign-trained nurses has become a primary strategy for increasing the supply of nurses in the workforce. 33 III. Recruitment of foreign trained nurses One of the United States responses to the increasing nursing shortage is the recruitment and employment of foreign nurses. Globally, there is a very long history of recruiting and employing foreign trained nurses, but in the 2000s the world started seeing international nursing recruitment at a magnitude never seen before. 34 In 2000, about 181,000 foreign-trained RNs were working in the U.S., representing 9.1% of the nursing workforce. 35 Increasingly other health professions, particularly physicians, in low- and middle-income countries are retraining as nurses influenced by the migration potential of a registered nursing degree. Between 2000 and 2007, 3500 Filipino physicians retrained as nurses and left the Philippines for nursing jobs abroad, and an additional 4000 Filipino physicians enrolled in nursing schools. 36 Almost one- 33 See e.g., Patricia Pittman, Amanda Folsom, Emily Bass & Kathryn Leonhardy, AcademyHealth, NURSE RECRUITMENT: STRUCTURE AND PRACTICES OF A BURGEONING INDUSTRY 6 (2007); Hammond Law Group, RETROGRESSION: THE END OF FOREIGN NURSE RECRUITING? (2004), available at Barbara Marquand, Philippine Nurses in the U.S.: Yesterday and Today, MINORITY NURSE, available at Moira Herbst, Immigration: More Foreign Nurses Needed? BLOOMBERG BUSINESS WEEK, June 21, 2009, available at 34 Barbara L. Brush, Julie Sochalski, & Anne M. Berger, Imported Care: Recruiting Foreign Nurses to U.S. Health Care Facilities, 23 HEALTH AFFAIRS 78, 79 (2004). 35 Polsky, Trends in Characteristics, supra note 28, at Aiken, supra note 27, at

10 third of foreign-trained nurses in the U.S. come from the Philippines. 37 The second largest source of foreign-trained nurses in the U.S. is the Caribbean and Latin America, followed by high-income regions such as Canada, Western Europe, and Australia. 38 Recruitment from other high-income countries, such as Canada, creates a domino effect, with high-income countries that lose nurses to the U.S., then recruiting in low-income countries to fill their vacancies. More recently, more foreign nurses are coming from Africa, and less from Asia. Compared with the foreign nurses immigrating in the 1990s, new foreign trained RNs in 2000 were twice as likely to come from low-income countries and thirty percent more likely to come from countries with a low supply of nurses. 39 About eighty percent of foreign-born nurses working in the U.S. are from low- and middle-income countries and are approximately equal in number to the entire nurse supply of Canada. 40 According to current immigration law, foreign-trained nurses on employment-based visas are only allowed to fill positions as professional nurses, which include registered and advanced practice nurses. However, there are incidents in which recruitment agencies for health care organizations hire foreign-trained registered nurses for registered nursing positions, but once the RN arrives in the U.S. he or she is placed in a lower nursing cadre position (i.e. LPN or nursing aide positions). 41 Thus, while immigration law only formally allows professional nurses to immigrate on employment-based visas, foreign trained nurses are also filling in lower nursing cadres as well. IV. Push and pull factors fueling the immigration of nurses 37 Id. 38 Id. at Polsky, Trends in Characteristics, supra note 28, at Richard A. Cooper & Linda H. Aiken, Health Services Delivery: Reframing Policies for Global Migration of Nurses and Physicians A U.S. Perspective, 7 POL Y, POLITICS, & NURSING PRACTICE 66S, 68S (2006). 41 Press Release, U.S. Equal Employment Opportunity Comm n, EEOC Announces $2.1 million Settlement of Wage Discrimination Suit for Class of Filipino Nurses (Mar. 2, 1999), available at 99.html. 9

11 Health workforce experts often define the migration flow of nurses enabled by pull factors, recipient country-based polices or opportunities that attract nurses, and push factors, home country conditions that push nurses out of their home workforce. 42 A. Pull factors 1.) U.S. shortage The U.S. has the largest nursing workforce in the world, which includes nearly twenty percent of the world s professional nurses and fifty percent of the world s English speaking professional nurses. 43 With such a large proportion of the world s nurses, seemingly small shortfalls in the nursing workforce in the U.S. can exert a great global pull. In 2006, the U.S. passed the U.K. as the world s largest importer of nurses with around 15,000 foreign-trained nurses passing the registered nursing licensing exam (NCLEX-RN). 44 Thus, the U.S. s continual shortage of nurses has set the stage for the creation of a global nursing migration pathway. 2.) Economic, social, and educational factors The United States has become the destination of choice for many foreign-trained nurses due to several economic, social, and educational factors. For instance, higher wages in the U.S., opportunities to pursue advanced education, and a higher standard of living are all commonly cited reasons for nurse migration. 45 U.S. recruitment agencies, acknowledging the pull effect of education, have included advanced training 42 Donna S. Kline, Push and Pull Factors in International Nurse Migration, 2Q. J. OF NURSING SCHOLARSHIP 107, 108 (2003). 43 Aiken, supra note 27, at Id. 45 Id. at

12 opportunities, such as a U.S.-based master s level education, to further incentivize nurses to migrate to the U.S Aggressive recruitment Aggressive recruitment by hospitals, nursing homes, and commercial recruiting firms of foreign-trained nurses is also a primary pull factor. 47 Not only do hospitals and nursing homes independently recruit overseas for nurses, but they hire private for-profit recruitment agencies that work as brokerages as well. 48 Based in the Philippines, India, and other key country locations recruitment agencies work to advance the foreign nursing students access to information about working overseas, English language training, and exam preparation courses. 49 Formally shouldered by migrating nurses, facilities now cover the cost of immigrating as part of their recruitment efforts. 50 Additionally, foreigntrained nurses take the U.S. registered nurse licensing exam, NCLEX-RN, overseas now to streamline their recruitment process into the U.S. nursing workforce U.S. immigration law Recognizing the chronic nursing shortage in the U.S., Congress has traditionally taken an approach that eases requirements and is conducive to the issuing of nonimmigrant and immigrant visas for professional nurses. Table 1 in the appendix provides an overview of the various immigration laws Congress has passed to address domestic nursing shortfalls. a. Non-immigrant temporary visas 46 Brush, supra note 34, at Aiken, supra note 27, at Brush, supra note 34, at Id. at Id. 51 Id. 11

13 U.S. immigration law has a long history of permitting foreign-born nurses to work in the United States through the statutory creation of temporary work visas. The H-1C temporary non-immigrant visa for registered nurses was the most recent example of this. 52 While this temporary visa expired at the end of December 2009 and Congress has yet to renew it, it still has the possibility of being renewed in the future. Prior to the congressional creation of the H-1C visa in 1999, nurses had available to them an H-1A temporary non-immigrant visa, which was issued to more than 10,000 foreign nurses between 1995 and The H-1A category was replaced with the H-1C nonimmigrant visa category for professional nurses and several differences exist between the two visa categories, primarily with the H-1C visa being more restrictive. For instance, under H-1C a much smaller number of visas (only 500) could be allocated annually and facilities that recruited nurses under the H-1C category were required to file an attestation with the Secretary of Labor that the facility meets multiple requirements, including that it is located in a health professions shortage area. 54 Only fourteen hospitals in the U.S. were qualified to hire H-1C non-immigrant nurses. A facility was also restricted in that at any one time it could not employ H-1C nurses in a number that exceeds 33 percent of the total number of registered nurses employed at the facility. 55 Additionally, a facility was required to take significant steps designed at reducing the facility s dependence on non-immigrant registered nurses. 56 However, a facility could bring in multiple registered nurses under a single attestation and was not required to take more than one significant step (e.g. operating a training program for registered nurses at the facility) if it could 52 8 USC 1101(a)(15)(H)(i) (2010). 53 Kline, supra note 42, at U.S.C. 1182(m)(2)(A) (2010) U.S.C (m)(2)(a)(vii) U.S.C. 1182(m)(2)A)(iv); 8 U.S.C (m)(2)(b). 12

14 demonstrate that a second step was not reasonable. 57 A registered nurse that was to be admitted under a H-1C visa was required to have: (1) obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education or has received nursing education in the United States; (2) has passed an appropriate examination... or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and (3) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility. 58 Further, under the statute, an H-1C nurse was admissible for three years, and was not authorized to perform nursing services at any worksite other than one controlled by the facility that submitted the attestation. 59 While the H-1C visa category is currently expired, legislatures have and continue to attempt to extend this visa category, such as through the Emergency Nurse Supply Relief Act proposed by Rep. Robert Wexler in May Even if this category is not renewed, there will continue to be nurses working under the H-1C visa category for the next three years in the U.S., until the last few nurses that applied for this visa before its expiration have completed their three-year visa term. b. Legal permanent resident (LPR) visas for nurses While the most recent version of the non-immigrant nurse visa has not furthered the employment of large numbers of foreign-trained nurses due to its numerical and facility restrictions, employment based visas for foreign-trained nurses seeking legal 57 8 U.S.C (m)(2)(b)(i); 8 U.S.C. 1182(m)(2)(B)(iv) U.S.C. 1182(m)(1)(A)-(C) U.S.C. 1182(m)(2)(A)(viii)(I). 60 Diomedes J.Tsitouras & Maria Pabon Lopez, Flatlining: How the Reluctance to Embrace Immigrant Nurses is Mortally Wounding the U.S. Health Care System 12 J. HEALTH CARE L. & POL Y 235, 250 (2009). 13

15 permanent residency are much more heavily used. Congress has designed the U.S. s immigration policy in such a way as to streamline the process for nurses to become legal permanent residents. Through a Department of Labor regulation, registered nurses are included in a category known as Schedule A. If an occupation appears on Schedule A the employer can skip the Department of Labor application process and go directly to the Department of Homeland Security with the immigrant visa petition, this significantly fast tracks the process. 61 Currently, Schedule A only includes professional nurses, physical therapists and certain non-citizens of exceptional ability. 62 The schedule A category is intended to cover occupations for which there are not sufficient United States workers who are able, willing, qualified, and available. 63 According to the regulation, an employer can apply for an immigrant visa for a professional nurse if the foreign-trained nurse has (1) received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); (2) [] holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment; or (3) [] has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). 64 Foreign trained nurses are eligible for an employment based category three immigrant visa (EB-3). Annual numerical restrictions limit the EB-3 visa category, but on several occasions Congress has authorized the carry over of unused employmentbased visas authorized from previous years, but never filled, in an attempt to increase the number of nurses able to immigrate. 65 For instance, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of CFR (2010) CFR C.F.R C.F.R (c)(2). 65 Aiken, supra note 27, at

16 allowed the State Department to release 50,000 employment-based (EB-3) visas that were unused from previous years making them available to eligible nurses from India, China, and the Philippines. 66 While Congress designed the H-1C non-immigrant visa to only be temporary, foreign-trained nurses legally in the U.S. under the temporary visa can apply to have their status adjusted to a legal permanent resident. If a nurse meets the requirements for a professional nurse under Schedule A and an employer is willing to file a EB-3 visa application on his or her behalf, a nurse who originally entered the U.S. as a temporary worker and restricted to facilities in health professions shortage areas can become a lawful permanent resident employable anywhere in the U.S. 67 Further, if a nurse has filed for adjustment of status and waiting for a determination for more than 180 days, his or her work authorization is portable and he or she is eligible to work with another employer as long as the new employment remains within the nursing profession. 68 U.S. Census data revealed that in 2000, sixty-three percent of foreign-born RNs were U.S. citizens by naturalization, illustrating that the majority of nurses who come to the U.S. stay permanently. 69 The above discussion on non-immigrant and immigrant visas for nurses only takes into account nurses that are entering the U.S. under employment provisions in the Immigration and Nationality Act. Many nurses also enter on family based visas or as students and acquire work authorization through other immigration pathways. 70 B. Push factors 66 Tsitouras, supra note 60, at U.S.C. 1154(a)(F) (2010) U.S.C. 1154(j). 69 Aiken, supra note 27, at Id. at

17 1. Poor working conditions in sending countries There are multiple working conditions in sending countries that tend to push nurses and other health care workers into employment in high-income countries. For instance, nursing salaries are often low in sending countries in comparison to other careers within the country and particularly in comparison to available salaries in highincome countries. In many sending countries due to the re-structuring of government salaries as a result of loan requirements from the World Bank and International Monetary Fund, health budgets and thus health workers salaries have been greatly reduced and have remained low. 71 Additionally, a median annual nursing salary in the Philippines in 2006 was approximately $2,000 whereas a similarly trained nurse in the U.S. was $57, A large pay differential between sending countries and receiving countries works to push nurses to emigrate. Additionally, a large wage differential creates the opportunity for nurses working abroad to send remittances to family members still residing in the sending country and functions as a push factor. In 2004, the Central Bank of the Philippines reported total remittances (from all occupations) of $8.5 billion, which represents ten percent of the country s gross domestic product. 73 Other factors related to working conditions also tend to push health workers into immigrating to high-income countries such as professional isolation, lack of research opportunities, and occupational health risks associated with inadequate facilities Advanced educational opportunities 71 Tsitouras, supra note 60, at Id. 73 M.A. Kana, From Brain Drain to Brain Circulation, 4 JOS J. OF MEDICINE 8, 9 (2007). 74 Id. 16

18 Many foreign-trained health workers come to the U.S. for additional training opportunities that might not be available in their home country. However, it is very common for students after completing their education or advanced degree to never return to their home country. Nurses cite multiple reasons for this including a lack of research funding in their home country, poor research facilities, and a lack of educational opportunities for their children Instability Economic and political instability in countries can greatly influence the migration of professionals from a country. Health workers are not exempt to this and countries with chronic poverty and civil war are very likely to see a large emigration of their health workforce. 76 V. Benefits to the U.S. & Foreign Countries A. Health care provision for aging America One of the greatest benefits that the U.S. receives from employing foreign-trained nurses is being able to address the health care needs of aging America. The 2000 census reported that of new entrants to the U.S. registered nurse workforce 17.5% of foreign-trained nurses were entering employment in nursing homes, compared to only 6.6% of U.S.-trained nurses. 77 This represents a rather dramatic shift from the U.S. Census data from 1990, which reported that only 6.3% of foreign-trained nurses entering the workforce were doing so through employment in nursing homes. 78 However, there is little evidence that foreign-educated nurses locate in areas of medical need in any greater proportion than native-born nurses. Studies have found that foreign 75 Id. 76 Id. 77 Polsky, Trends in Characteristics, supra note 28, at Id. 17

19 trained nurses are much less likely to settle in rural areas than U.S.-trained nurses and that less than two percent of foreign-born nurses live outside metropolitan areas, compared to eighteen percent of native-born nurses. 79 The settlement of foreign-trained nurses in primarily metropolitan areas cuts against one of the main purposes of having relaxed immigration laws, which is to place foreign-nurses in underserved areas where employers are unable to attract U.S. trained-nurses and the greatest nursing shortages exist. B. Increases in the diversity of the nursing workforce The international recruitment of nurses increases the diversity of the U.S. nursing workforce. The U.S. is becoming increasingly diverse and having a nursing workforce that reflects a similar diversity is certainly advantageous. U.S. trained nurses are more likely to be white than foreign-trained nurses, 90% compared to 32.4% respectively. 80 While foreign-trained nurses increase the diversity of the workforce overall, half of all foreign-trained nurses are Asian, and only a very small percentage are traditionally underrepresented minorities, either Hispanic or black. 81 C. Remittances and brain circulation Foreign countries can greatly benefit from the remittances that foreign-trained nurses send to families still residing in their home country. For instance, as was discussed above, in 2004 nearly ten percent of the Philippines gross domestic product came from remittances. 82 Brain circulation occurs when health workers travel overseas for advanced training and the sharing of ideas, and upon completion of the training return to his or her home country to serve as an expert and train others. If nurses come to the U.S. to receive advanced training, and 79 Aiken, supra note 27, at Id. at Id. 82 Kana, supra note

20 then return to their home country with this new expertise it can be very beneficial for the sending country. However, many of the health workers that travel abroad for training never return to their home country. In response, in order to encourage brain circulation and not brain drain, some training programs are now requiring that health workers return and work in their home country for a certain number of years after degree or certificate completion. 83 VI. Challenges created by reliance on foreign-trained nurses to address domestic shortfalls The use of foreign-trained nurses provides a multitude of benefits to the U.S. and older Americans, but it also creates several challenges both domestically and abroad. These challenges include unknowns about the quality of care provided, questions on the ability of foreign-nurses to assimilate into the American health care system, concerns over the abuse of temporary non-immigrant H-1C visa nurses by facilities, and the depletion of the nursing workforces of low and middle-income countries. A. Quality of care & ability to assimilate There has been relatively little research or data collected on how, if at all, the quality of care differs between U.S. and foreign-trained nurses. Similarly, researchers have not systematically evaluated the ability of foreign-trained nurses to assimilate into the American healthcare system. 84 The Commission on Graduates of Foreign Nursing Schools (CGFNS) is a non-profit organization developed in It was created in response to the U.S. Department of Labor's concern over a large number of immigrant visas being allocated to nurses who were 83 See, e.g. Global Scholarship Alliance, (last visited Dec. 14, 2010). 84 Brush, supra note 34, at Commission on Graduates of Foreign Nursing Schools, (last visited Dec. 14, 2010). 19

21 unable to pass state licensing exams after arriving in the U.S. 86 CGFNS serves to evaluate foreign nursing education credentials and conduct predictive testing on foreign-trained nurses to determine the probability of passing state licensing exams prior to being issued an immigrant visa. 87 The CGFNS examination is offered in source countries and covers nursing skills, English language proficiency, and cultural competency. 88 Once a nurse passes the examination he or she is issued a CGFNS certificate that qualifies the foreign-trained nurse for an EB-3 immigrant visa. 89 Additionally, forty states require that foreign-trained nurses have a certificate from the CGFNS prior to taking the NCLEX-RN and becoming licensed in the state. 90 Researchers, however, have conducted few studies to evaluate the effectiveness of the CGFNS in evaluating skills, language, and cultural competency. Cultural competency is important not only for interactions with patients, but also interactions with other health care workers, particularly other nurses. Interestingly, a study conducted on the ability of foreign-trained nurses and U.S. nurses to relate to one another found that U.S. - and foreign-trained nurses generally share a core set of professional values, such as clinical autonomy and collegiality, and work together to further goals such as increased professional status. 91 B. Depression of registered nursing wages Facilities that submitted an attestation for the recruitment of non-immigrant nurses under the H-1C visa, had to attest that the employment of a foreign-trained nurse would not adversely affect the wages and working conditions of registered nurses similarly employed. 92 The statute 86 Id. 87 Id. 88 Id C.F.R (c)(2) (2010). 90 Commission on Graduates of Foreign Nursing Schools, (last visited Dec. 14, 2010). 91 Aiken, supra note 27, at U.S.C. 1182(m)(2)(A)(ii)-(iii) (2010). 20

22 also required that foreign-nurses be paid the wage rate of similarly situated U.S. trained nurses. 93 In order to enforce this, the Secretary of Labor is required to undertake an investigation of the facts attested to by the facility if a complaint is filed and the Secretary finds that there is reasonable cause to believe that the facility has either failed to meet the conditions attested to or misrepresented a material fact. 94 If, a facility is found in violation of its attestation, particularly relating to the payment of foreign-trained nurses at the wage rate, the facility can be assessed a civil monetary penalty (not more than $1000 per nurse), will not be approved for petitions for the employment of nurses for one year, and is required to provide back pay to any foreign-trained nurses. 95 With requirements such as these in place, it creates a disincentive for facilities to increase the wages of U.S. trained nurses in an effort to recruit and retain domestic nurses within the facility. It is also debatable whether a health care worker will report a facility in violation to the Secretary of Labor and, if so, whether the sanctions are really great enough to discourage a facility s behavior of paying foreign-trained nurses below the wage rate. Standards are more lenient for nurses applying for legal permanent residence, in that the Department of Labor has pre-determined that wages and working conditions of United States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A occupations. 96 Thus, facilities are not required to complete an attestation, but when petitioning for the employment-based immigrant visa they must submit a prevailing wage determination with the application. 97 Similar to the non-immigrant visa, this statutory requirement does not create an incentive for wage increases for similarly situated U.S. trained registered nurses. Further, hospitals have noted that the initial cost of recruiting foreign nurses is 93 Id U.S.C. 1182(m)(2)(E)(ii)-(v). 95 Id CFR (2010) CFR (b)(1). 21

23 higher than that of hiring domestic nurses, but many feel that money is saved in the long run due to a reduced turnover of foreign trained nurses. Nurses on an H-1C visa are tied to the employment, and thus unable to leave, and many recruitment agencies assure full or partial remuneration to facilities if recruited nurses do not meet their contractual obligations. 98 Thus, from a hospital s point of view, recruiting abroad may be less costly than raising salaries, increasing benefits, and providing other economic incentives needed to retain domestic nurses. 99 In contrast, some studies have shown that the annual income of foreign-trained nurses is considerably higher than their U.S. trained counterparts, although, at least half of this difference is likely from foreign-trained nurses older age, longer work hours, and location within states with higher nursing wages. 100 C. Exploitation of foreign-trained nurses Of great concern, is the exploitation of foreign-trained nurses once they arrive in the U.S. The requirements of the H-1C non-immigrant visa, tie foreign-trained nurses to their employment site. Additionally, many nurses are unaware at the time of recruitment that the employment is only on a temporary basis. Foreign-trained nurses are particularly vulnerable to exploitation because they often lack a social and support network in the U.S. The American Nurses Association documented multiple instances of exploitation, and worked with several organizations to develop a code of ethics for the industry. 101 To comply with the code, institutions are required to provide nurses with information on their rights prior to the signing of an employment contract. 102 Further, there have been occasions in which foreign-trained nurses 98 Brush, supra note 34, at Id. 100 Polsky, Trends in Characteristics, supra note 28, at Lori Aratanti, Code Aims to Aid Nurses, WASHINGTON POST, Sept. 6, 2008, available at Id. 22

24 have successfully brought claims against facilities for exploitation. For example, in Villaneuva v. Woodbine Healthcare Center sixty-five Filipino nurses filed an employment discrimination claim against a nursing facility and received a 2.1 million dollar settlement. 103 The claim was filed for the facility s action in hiring foreign-trained registered nurses in nursing aid positions and paying those that were hired in registered nursing positions $6.00 less per hour than similarly situated U.S. trained registered nurses at the facility. 104 The Department of Labor also investigated the facility for the wage rate violation, requiring the facility to pay back wages to the nurses. 105 D. Brain drain of nursing workforce from low- and middle-income countries The U.S. s reliance on foreign-trained nurses is leaving many low- and middle- income countries starved for their own health workers. Because the U.S. nursing workforce is so large, even a small increase in the number of RNs immigrating to the U.S. can represent a large proportion of the sending country s nurses. For instance, between the years of 1990 and 2000 the 11.1% of RNs who entered the U.S. from Africa, represented more than one percent of the entire supply of African nurses. 106 Even a country like India, where human resources are the country s natural resource, has a nurse to population ratio of only 80 nurses per 100,000 people. 107 The Philippines has a slightly higher nurse to population ratio of 169 nurses per 100,000 people, but comparatively both countries are much lower than high-income countries such as the U.S. and U.K. with a nurse density of 937 and 1212 respectively. 108 Sub-Saharan African countries typically have some of the lowest health worker to population ratios. For 103 U.S. Equal Employment Opportunity Comm n, supra note Id. 105 Id. 106 Polsky, Trends in Characteristics, supra note 28, at Lincoln Chen et al., World Health Org., WORKING TOGETHER FOR HEALTH, Annex 4 (2006), available at Id. 23

25 instance, Malawi and Zimbabwe have nurse to population ratios of fifty-nine and seventy-two per 100,000 people. 109 (See Figure 3 for country comparisons). Figure 3: Nurses per 100,000 people in select countries 110 In the Philippines, the government encourages the migration of nurses to higher-income countries, partly due to the remittances sent to the country from nurses working overseas. However, the health care system in the Philippines struggles with the high emigration rate of its nurses. The country has a low nurse density and the nurses that are lost are often those that are experienced and/or serving as teaching staff. 111 Additionally, not only is international nurse recruitment depleting the nursing workforce in other countries, but in countries like the Philippines where physicians are re-training as nurses, it is depleting multiple levels of the health care system. 112 Since the majority of RNs in the U.S. workforce are reporting to have naturalized, and thus decided to remain in the U.S. permanently, 109 Id. 110 Id. 111 Kline, supra note 42, at Aiken, supra note 27, at

26 there appears to be very little brain circulation taking place with nurses taking new skills back to their home countries. 113 The current immigration laws are also designed in such a way that nurses are able to come to the U.S. to work on a permanent basis through the EB-3 visa much more easily, than on a temporary basis. Even without the expiration of the current H-1C visa category, when the temporary visa was still available, the restrictions for this category were much greater on facilities than the restrictions are for facilities recruiting foreign-trained nurses to immigrate as legal permanent residents. Further, the U.S.'s current international development and immigration policies are antagonistic to one another. The U.S. provides billions of dollars in foreign aid, through contributions to the Global Fund, the development and funding of the President s Emergency Plan for AIDS Relief (PEPFAR), and multiple bi-lateral agreements to the very same countries, from which hospitals and nursing homes then recruit nurses from to meet domestic shortfalls. 114 Consequently, countries are unable to harness the financial assistance into actionable gains in the delivery of health care because countries are without the necessary health workers to vaccinate, distribute medications, and staff clinics and hospitals. Countries also face little incentive to invest in the development of a robust and highly skilled nursing workforce when many of their graduates either upon graduation or after gaining considerable experience will join the workforces of high-income countries. Additionally, in most sending countries the government is primarily responsible for financing nursing education, unlike in the U.S. where students must 113 Id. at See, e.g., Media Note, U.S. Dep t of State, U.S. Funding Pledge for HIV/AIDS, Malaria, Tuberculosis Fund (Oct. 5, 2010), available at United States President s Emergency Plan for AIDS Relief, MAKING A DIFFERENCE: FUNDING, available at 25

27 privately finance their education, leaving many countries without a return on their investment in nurses. 115 VIII. Recommendations for developing a more sustainable nursing workforce Recommendations fall into three general categories. The first category (1) consists of recommendations to build a stronger domestic nursing workforce through solutions funded and implemented in the U.S. The second category of recommendations (2) focuses on collaborative efforts to build self-sufficient nursing workforces in low- and middle-income countries. The third category of recommendations (3) consists of safety mechanisms for implementation if the U.S. continues to rely on foreign-nurses to fill domestic shortfalls. (1) Domestic solutions for a domestic shortfall The first step in satisfying our domestic nursing workforce needs is the development of a national heath workforce policy. Without a national health workforce policy, the U.S. lacks a coordinated national commitment to building a sustainable domestic workforce. The passing of the Patient Protection and Affordability of Care Act (PPACA) represents an opportune moment in which to develop this coordinated plan. PPACA specifically addresses the health care workforce and commands the development of a National Health Care Workforce Commission. 116 The Commission is responsible for reviewing the health care workforce needs of the U.S. annually and reporting on these needs to Congress. 117 Further, the Commission is to pay particular attention to the health workforce needs of special populations, such as the aging population in America. 118 Unfortunately, missing from the Commission is the mission of 115 See generally WORLD BANK, The Nurse Labor and Education Markets in the English-Speaking CARICOM: Issues and Options for Reform, 2 (2009), available at U.S.C. 294q (2010). 117 Id. 118 Id. 26

28 developing a national health workforce strategy, even though the Commission is required to report on the state of the health workforce and make recommendations to Congress. PPACA has listed building nursing workforce capacity at all levels as a high priority topic, and provides extensive funding for studies of effective mechanisms for financing education and training in health care careers. 119 Specifically, it authorizes state health workforce development grants, funding for centers that will provide geriatric education and training, geriatric career incentive awards for advanced practice nurses, and a loan repayment and scholarship program for nurses pursuing advanced education to become teaching faculty. 120 There are also nurse retention grants authorized through PPACA for facilities that develop career ladder programs and other retention efforts that focus on increasing nurse involvement in the organizational and clinical decision-making process of a health care facility. 121 PPACA appears to be a step in the right direction with multiple initiatives aimed at domestic programming in an effort to increase the stock of U.S. trained nurses. However, the U.S. still needs to create a national domestic workforce policy to coordinate and complement these efforts. This policy needs to focus on three primary areas: increasing training capacity, recruitment, and the retention of U.S. nurses. Many of PPACA s provisions are targeted at these areas, but a comprehensive plan that details the current programs available, levels of funding, and future goals for the nursing workforce would allow for a more systematic and transparent approach. The following include specific recommendations for inclusion in a national health workforce policy focusing on increasing the training capacity, recruitment, and retention of U.S.-trained nurses. (1) Increasing training capacity U.S.C U.S.C. 297o; 42 U.S.C U.S.C. 296p-1. 27