[Congressional Record Volume 140, Number 7 (Wednesday, February 2, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                                 NAFTA

                                 ______


                       HON. THOMAS J. BLILEY, JR.

                              of virginia

                    in the house of representatives

                      Wednesday, February 2, 1994

  Mr. BLILEY. Mr. Speaker, when the North American Free-Trade Agreement 
[NAFTA] was debated it was my intention to have correspondence between 
the Federation of State Medical Boards of the United States, Inc., and 
the Office of the U.S. Trade Representative included as part of my 
remarks. It is important to have this correspondence included in the 
Congressional Record, for it explains how NAFTA will not preempt the 
authority of State medical boards.
  Unfortunately, due to a clerical error, these letters were not part 
of my remarks. For that reason, I wanted to take this opportunity to 
place the correspondence into the Congressional Record.
                                                     Office of the


                                    U.S. Trade Representative,

                                                   Washington, DC.
     Ms. Dorothy G. Harwood, J.D.,
     Assistant Vice President, Administrative and Legislative 
         Affairs, the Federation of State Medical Boards of the 
         United States, Inc., Fort Worth TX
       Dear Ms. Harwood: Thank you for your letter of November 9 
     outlining the results of your review of the North American 
     Free Trade Agreement. Your letter addresses the five issues 
     most asked about by medical professionals and other concerned 
     individuals.
       We agree with your interpretations of Chapter 12 and 
     Chapter 16 of the NAFTA, and how they will affect the duties 
     of State medical boards. The NAFTA does not permit Mexican or 
     Canadian health care professionals--or any profession service 
     providers--to circumvent state licensing and certification 
     procedures. The NAFTA does not permit Mexican or Canadian 
     professionals to practice a licensed profession in the United 
     States, even on a temporary basis, without meeting all 
     applicable state licensing criteria and receiving such a 
     license. Nor does the NAFTA require any change in state 
     certification or licensing criteria or procedures, except for 
     citizenship or permanent residency requirements. The 
     Statement of Administrative Action presented to the Congress 
     by the President also states this very clearly.
       I appreciate the effort you have made in taking the time to 
     thoroughly review the NAFTA. If you need additional 
     information, please do not hesitate to contact my office.
           Sincerely,

                                            Donald S. Abelson,

                               Assistant U.S. Trade Representative
              for Services, Investment, and Intellectual Property.
                                 ______

                                       Federation of State Medical


                            Boards of the United States, Inc.,

                                 Fort Worth, TX, November 9, 1993.
     Re North American Free Trade Agreement.

     Ambassador Michael Kantor,
     U.S. Trade Representative,
     Washington, DC.
       Dear Ambassador Kantor: The Federation of State Medical 
     Boards is a national organization, the members of which are 
     the state medical licensing and disciplinary boards in the 
     fifty states, the District of Columbia, Guam, Puerto Rico and 
     the Virgin Islands. The Federation has examined the North 
     American Free Trade Agreement in an attempt to determine its 
     effect, if any, upon state medical board licensing 
     activities, an issue of great concern to our membership and 
     to the public. Our review has focused primarily on the issue 
     of whether NAFTA will preempt a state's authority to license 
     physicians. We believe NAFTA does not preempt the licensing 
     authority of the states, and we are writing to you for 
     confirmation or refutation of our interpretation of the 
     treaty.
       Under NAFTA's definitions physician services fall under 
     professional services and are addressed in Chapter Twelve 
     ``Cross-Border Trade in Services'' and Chapter Sixteen 
     ``Temporary Entry for Business Persons.'' Using these chapter 
     titles, we have stated our conclusions and presented our 
     reasoning for these conclusions on the topics of licensing 
     and certification, mutual recognition of licensed 
     professionals, and temporary entry procedures.


                     cross-border trade in services

       1. It is our conclusion that state medical board licensing 
     standards are not pre-empted.
       NAFTA's objective in relation to licensing is to prevent 
     licensing requirements from being ``unnecessary barriers to 
     trade.'' Art. 1210, sec. 1 provides that any state licensing 
     requirements be 1) based on objective and transparent 
     criteria, 2) not be unduly burdensome, and 3) not constitute 
     a disguised restriction on the provision of services across 
     borders. These standards are not necessarily preemptive of 
     the states' licensing authority. A state can set its own 
     licensure requirements as long as the requirements fall 
     within these standards. Requirements not based upon 
     competence or which are considered to restrict trade will 
     have to be revised or eliminated by the states.
       NAFTA sets requirements for processing applications for 
     licenses and certifications (Annex 1210.5). NAFTA requires 
     that upon receipt of complete applications a determination 
     on the application and notification of that determination 
     must be made within ``a reasonable time''. Upon receipt of 
     an incomplete application the applicant must be informed 
     ``without undue delay'' of the status of the application 
     and what information is necessary to complete the 
     application. Thus, although a state licensing board may be 
     obliged to review licensure applications of physicians 
     from NAFTA countries, the board may apply the same 
     standards and criteria in reviewing the qualifications of 
     these applicants as it applies to domestic applicants. If 
     such items as educational and training qualifications are 
     not within the state's established standards, the state 
     will be under no obligation to grant a license to an 
     individual just because that person is a citizen of a 
     NAFTA party.
       2. It is our conclusion that Art. 1203 ``most favored 
     nation'' designation will not change state licensure 
     requirements or standards.
       Article 1210, section 2(a) expressly states that most 
     favored nation treatment (Art. 1203) does not require the 
     recognition of education, experience, licenses or 
     certifications obtained in other countries. Although NAFTA 
     countries must give each other adequate opportunity to 
     demonstrate that their respective education, experience, or 
     licenses or certifications should be recognized, any process 
     by which these issues are discussed in the context of medical 
     licensure will not lead to coercive efforts to force a 
     state's acceptance of any element of an applicant's 
     qualifications.
       3. It is our conclusion that some state medical boards' 
     requirements concerning citizenship and permanent residency 
     will be affected by NAFTA.
       Art. 1206 of NAFTA requires elimination of all citizenship 
     and permanent residency requirements for licensing of 
     professionals within two years after implementation of the 
     treaty. As a result of this provision, any state seeking to 
     maintain citizenship or permanent residency requirements may 
     need to seek an exception, or ``reservation'' from NAFTA. A 
     board seeking such a reservation will not, however, be 
     subjected to any dispute settlement cases under the treaty.
       4. It is our conclusion that the provisions dealing with 
     mutual recognition of licensed professionals do not require 
     automatic recognition of credentials of physicians of other 
     countries.
       Contrary to the concept of automatic recognition of 
     credentials, the provisions of Annex 1210.5 suggest and 
     encourage, but do not mandate, the development of standards 
     and criteria for licensing which are mutually acceptable to 
     all of the countries under the Agreement. Education, 
     examination, experience, conduct and ethics, professional 
     development and re-certification, scope of practice, local 
     knowledge and consumer protection are given as possible but 
     not exclusive criteria upon which the NAFTA parties may 
     develop such standards. It is our understanding that the 
     section will not be used to force NAFTA countries to agree to 
     any common standards, but is suggestive only.


                  Temporary Entry For Business Persons

       1. It is our conclusion that Chapter 16 provisions do not 
     prohibit state medical boards from applying applicable 
     licensure standards to physicians.
       Annex 1602, section D, pertains only to physicians desiring 
     to enter the United States to teach or research, not 
     physicians wanting to practice medicine temporarily in the 
     U.S. The purpose of this Chapter is to simplify the 
     documentation required for physicians desiring to teach or 
     research temporarily in a NAFTA country. This chapter does 
     not circumvent state licensure requirements, and a citizen of 
     a NAFTA country seeking to enter the U.S. even in a teaching 
     or research capacity will be required to meet licensure 
     requirements of a given state as required for the activities 
     that individual will undertake.
       We look forward to your comments about our interpretations 
     of this important document. If our interpretation is 
     incorrect on any points, please inform us so that we may 
     reevaluate our position based on new information.
       Thank you in advance for your consideration of and prompt 
     response to this letter.
           Yours truly,

                                      Dorothy G. Harwood, J.D.

                                         Assistant Vice President,
     Administrative and Legislative Affairs.

                          ____________________