Most people who have obtained a residency or fellowship position can breathe a sigh of relief after a successful Match Day – your aspirations have been realized and it is now a mere matter of signing a training contract with your program and getting ready to train. But in some instances, that contentment can be interrupted by either the realization that the resident- or fellow-to-be can no longer go through with the Match commitment, or even that the program may now be seeking to void the Match. In either case, the National Residency Matching Program (NRMP) has policies and procedures for “waiver” (or, in some cases, “deferral”) of Match commitments that must be strictly followed. In many cases, it is critical to have competent advice and guidance in either requesting or opposing a waiver request.
The NRMP’s current Waiver Policy describes the Match waiver process, which is also explained on its “Requesting a Waiver” webpage. Among other things, the policy explains that waivers are available in three circumstances: (1) Ineligibility, i.e., “the applicant is confirmed to be ineligible to begin training in the matched position(s) by the start date”; (2) Hardship, i.e., “the NRMP determines that the fulfillment of the commitment would cause unanticipated, serious, and extreme hardship”; and (3) Change of Specialty/Leaving Medicine, i.e., “an applicant has accepted an advanced position or a fellowship position and has elected to change specialties, subspecialties, or leave medicine and has requested a waiver no later than January 15 before the start of the training year.”
In my experience, most waiver requests involve the first two circumstances. For example, it is not uncommon to see a resident who is set to graduate from residency and has a fellowship lined up become subject to an untimely extension of residency or even dismissal/non-renewal. In those instances, the fellowship program may then seek a waiver on the grounds that the fellow-to-be is ineligible to start the fellowship on time. However, this may be premature, especially if there is still a pending internal due process appeal of the action that would create the ineligibility. It may also be that a deferral of the Match would be better than a complete waiver.
”Unanticipated, serious, and extreme hardship” is also a common reason for waiver requests. As the quoted text implies, there must be some fairly exceptional circumstances to justify the NRMP deviating from its default of requiring Match participants to honor their Match commitment. For residents and fellows, this might be a new and serious medical condition (for oneself or their family), financial difficulties, or a change in circumstances at the matched program/institution that materially and adversely affects the sought-after training. On the program side of things, waivers are often sought when they believe that the applicant had not disclosed or falsely reported important information about their background, qualifications, or status.
Protect yourself and your interests with these other SDN articles on potential legal issues in residency:
As a resident or a fellow, whether you are on the receiving end of a waiver request or you are the one making the request, it can be a stressful process with pitfalls for the uninitiated.
If your program is seeking a waiver of your Match with them, you will have a very brief period to respond, sometimes as little as five days. So, it is imperative to seek counsel from an experienced advocate as soon as possible. From having handled numerous waiver requests, I know it is important to supply the NRMP with ample facts and policy rationale in opposition to such requests. In some cases, a request for a waiver may also trigger an NRMP investigation for a suspected Match Violation, which must also be addressed properly.
Likewise, if you are seeking a waiver of your Match commitment with a program, it is critical to have a detailed and relevant explanation—citing key facts and policy—to support your request. This requires careful planning that is best started in collaboration with experienced counsel as soon as possible after the need for a waiver becomes apparent.
The current Waiver Policy, adopted in September 2021, differs from the prior version in some important ways. A new provision now limits applicants to a total of three waiver approvals and warns that “[a]pplicants requesting subsequent waivers may be subject to a violation investigation by the NRMP.” It is also now less clear that, as in the past, when the NRMP granted a waiver to a program based on circumstances that suggested a possible Match Violation by the applicant, no violation investigation would be pursued.
There are other factors to consider, including that if a waiver is granted, the party who opposed the waiver can seek reconsideration (unless the waiver was due to ineligibility). Unlike when the NRMP finds a Match Violation, final decisions on waiver requests cannot be appealed beyond reconsideration or arbitrated. Deferral can be an alternative to a waiver if both parties to the match are in agreement. Bear in mind that only the NRMP can grant a waiver; applicants and programs aren’t permitted to release one another on their own.
Navigating this process can be challenging. Missteps or inaction can have lasting consequences, especially since the NRMP reserves the right to begin a Match Violation investigation related to issues relating to waiver requests. Confirmed violations can lead to sanctions, including being excluded from the Match for a period of years.
It can make all the difference to have an experienced hand guiding you through this process. I would urge all medical students, residents, and fellows who are seeking or opposing waiver requests to reach out to see how we may be able to assist.
Read more about Greg’s practice here, and you can contact him at gpc@browngold.com.
Greg Care is a lawyer who specializes in resident physician disciplinary Issues, employment, commercial litigation, appeals, civil rights, and disability rights. The protection of employees’ and students’ rights is a priority for Greg.