How do I get a waiver from the Match? Tips on obtaining an NRMP Match Waiver.

On March 13, 2023, tens of thousands of aspiring physicians learned whether they have a guaranteed residency training position starting July 1, 2023. At noon eastern time on Friday, March 17, 2023, those who were fortunate enough to have been matched learn their fate. As explained in a recent article in The Philadelphia Inquirer, what those unfamiliar with the Match process find so surprising is the binding nature of the Match. As the article correctly notes:

“It’s not like applying to college or even medical school, where the applicant may have more than one option. Nor is it like applying for other jobs, where you can negotiate the terms, perhaps using an offer from another institution as leverage. What it says in the envelope is what goes. You don’t get multiple choices.”

But what if things have changed since the rank deadline? What if family, health, or military obligations have changed or unexpectedly made it difficult or impossible to fulfill a Match commitment? Anticipating these circumstances, the NRMP puts in place a mechanism to be excused, or “get out of”, a Match commitment. But it is not so simple as “I changed my mind”, “I got a more appealing offer elsewhere”, or “I didn’t realize how cold it was”. Per its webpage on requesting a waiver:

Under the terms and conditions of the NRMP Match Participation Agreement, all matches are binding.  If for any reason an applicant or program cannot or will not honor the binding commitment, a waiver must be obtained from the NRMP. Applicants and programs are not authorized to release each other from the binding commitment.

Indeed, our office has seen numerous incidences of both an applicant and a residency program being subjected to discipline (or a Match Violation) for failure to heed this important warning, and have previously blogged on the subject.

To the extent you are eligible to begin training on time, the standard for a waiver is an “unanticipated serious and extreme hardship”.  It is the responsibility of the party seeking the waiver to demonstrate the extent of the unanticipated serious or extreme hardship. Of note: matched applicants are REQUIRED to notify their matched program director of the applicant’s request for a waiver BEFORE making the waiver request.  This is for many reasons, not the least of which is to permit the program the opportunity to see if it can allay or quell any concerns the matched applicant is relying upon for waiver of the commitment.  In addition, NRMP is more likely to grant a waiver if the program consents to, and does not oppose, the matched applicant’s request.  Programs can also seek a waiver from a match commitment, and, more often than not, the matched applicant objects to, and opposes, the granting of such a waiver.

While the NRMP’s online system is set up to permit individuals to make waiver requests on their own, we would caution doing so without first, and at least, consulting an attorney with experience in such matters. The NRMP has strict, complex procedures that are followed when it comes to waiver requests. Our office has encountered multiple applicants whose waiver requests, which should have been granted, were denied because the applicant did not include certain facts and/or evidence to which the NRMP would have given great weight. If you decide to go it alone, remember cornerstones: the reason for seeking a waiver must be unanticipated (that is, something you could not have learned of before the Rank Deadline) and would cause a serious and extreme hardship. Keep in mind that, while subjective, NRMP does generally not find the hardship of “moving across the country” or “being away from family and loved ones” to be a serious and extreme hardship. Waiver requests that almost always get granted (provided proper evidence is provided) in our experience include, among other things, the unanticipated need to care for a sick loved one or an unanticipated military deployment. There are many reasons between “I changed my mind” (waiver denied) and “I am a reservist and have received call-up orders and am required to deploy”  (waiver granted) that make the process somewhat unpredictable. Hiring a lawyer who can provide advice and counsel and assist in the wording of the waiver request could be the difference between a grant and a denial.

When representing clients in their dealings with NRMP and residency programs, our experienced attorneys have, on multiple occasions:

• Successfully obtained waivers on behalf of our clients, resulting in the client’s release from the previously binding match commitment;
• Successfully opposed waiver requests filed by residency training programs, thereby requiring the program to fulfill its match commitment and offer employment to, and train, our clients;
• Successfully overturned, by way of application for reconsideration, the approval of a waiver request granted to a program for release from a matching commitment, resulting in our client, who had previously lost their opposition to the program’s waiver request, being employed by and training with the program that sought and was initially granted the waiver;
• Successfully defended clients accused of violating the Match, including where the violation alleged originated from a program’s request for a waiver from its commitment, resulting in no finding of a Match Violation for our client; and
• Successfully defended clients who, in their own waiver requests or responses to waiver requests, made statements that caused the NRMP to make allegations of a Match Violation, resulting in no finding of a violation by our client.

If you have any questions or concerns about compliance with any NRMP policies, including with respect to seeking or opposing a request for a waiver from a binding Match Commitment or responding to Match Violation investigations, our experienced attorneys stand ready to assist.

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