Tips for Avoiding a Match Violation in Connection with a Match Waiver

The Rank Order List Certification deadline has now passed, and, with it, the time to have withdrawn from the Match. Countless fourth year medical students and medical school graduates eagerly await to learn their fate.  Those who do not Match would be well served to quickly overcome their disappointment and immediately familiarize themselves with the rules for SOAP, Round 1, which begins at 9:00 am EDT on March 17, 2022.  Failing to obtain an offer through SOAP, while disappointing, does not close the door on obtaining a training position with a July 1, 2022 start date, as every year, once-filled positions become available. Previously filled PGY-1 training positions become available for a wide variety of reasons, including:

• Failed criminal background check during onboarding
• Failed drug test during onboarding
• Ineligibility due to immigrations status/work authorization status change
• Inability to obtain training license/permit from state medical board
• Any other change in circumstances prior to the commencement of the training program.

If you are fortunate enough to Match, but find yourself in a situation where, for whatever reason, you are unable to fulfill your binding Match Commitment, the NRMP will, in narrow circumstances, excuse you (or the program) from the commitment.  The exclusive method by which to obtain release from the binding Match Commitment is by way of making a Waiver Request.  The NRMP Waiver Policy, which was modified in September 2021, sets forth and identifies the criteria for obtaining a waiver.  A waiver will be granted by NRMP if:

1. 1. 1. The applicant is confirmed to be ineligible to begin training in the matched
         position(s) by the start date;
      2. The NRMP determines that the fulfillment of the commitment would cause
         unanticipated, serious, and extreme hardship; or
      3. The 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.

The requestor must demonstrate to the reasonable satisfaction of the NRMP that the criteria for issuance of a waiver are present.  In our prior blog article titled “Avoiding Match Violations“, we posted a link to the most common NRMP Match violations students make, which NRMP has supplemented on its website with a list of most common policy breaches resulting in a Match Violation.  Among common breached of the Match Participation Agreement is the failure to fulfill start training pursuant to a binding Match Commitment without first obtaining the permission of NRMP to do so.  As noted on the NRMP ‘Requesting a Waiver’ page on its website:  Applicants and programs are not authorized to release each other from a binding commitment. NRMP warns that all students and programs keep in mind the following:

• Once a waiver has been requested, applicants cannot apply for, discuss, interview for, or accept a position in another program until a waiver has been granted.
• Programs cannot discuss, interview for, or offer the matched position to an applicant until a waiver has been granted.
• The responsibility rests with the applicant or program to demonstrate the extent of the unanticipated serious or extreme hardship.
• Waivers based on change of specialty must be requested by January 15 prior to the start of training. Because of this timing, applicants in the Main Residency Match^® who match to positions that begin in the year of the Match do not qualify for change of specialty waivers for those positions.
• If a waiver is granted, an applicant may accept a position in another program or participate in a future Match and the program may recruit for the position. If a waiver is not granted, the applicant and program are expected to honor the binding commitment.

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 if 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.  The NRMP has strict, complex procedures that is follows when it comes to waiver requests.  Any individual who finds themselves seeking, or being on the wrong end of a program seeking, a Match waiver, should consult an attorney with experience in such matters.

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 fulfil 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 match 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 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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