I have had the good fortune of representing candidates successfully in obtaining waivers from the National Resident Matching Program (NRMP), the multimillion dollar nonprofit responsible for ensuring a fair and equitable match of qualified medical trainees to suitable training programs. NRMP waivers are difficult to obtain and should only be sought in the right case. I have only attended one NRMP arbitration in my career in part because the cases seldom proceed to arbitration, and because it is generally recognized that it is often very difficult though not impossible to prevail where the standard of review is arbitrary and capricious. Also, undertaking an NRMP arbitration (which goes well beyond what is required for a waiver) is a significant investment–estimated legal fees range anywhere from 50K to 100K given the time and preparation required. Many residents I have represented simply do not have this kind of money unless they are fortunate to have family backing them. The NRMP is generally represented by a large litigation firm out of their D.C. office, and the arbitrations are generally attended by its CEO and/or Chief Policy Officer, both of whom appear to operate like corporate executives. Both are seasoned and articulate, but frankly appear disinterested in the sacrifice residents have made to get through medical school and residency. Neither has any direct experience with residency or medical training. They are, by all appearances and based on my review of cases to date, ruthlessly efficient in their approach. The NRMP office itself is a surprisingly large, slick corporate office in the heart of the nation’s capital–feels not at all like a nonprofit. Feels more like the office of a digital media company in Silicon Valley, albeit with a barely detectable smack of academic flavor.
In the recent arbitration, I was co-counsel with a highly seasoned litigator in the DC area who is one of the few attorneys I know who actually has significant arbitration experience against the NRMP and has won at arbitration against the NRMP. We co-prosecuted a recent case given its complexity and my specialized knowledge of the various residency issues at play and the peculiar “matching” process for the particular case. From a common sense standpoint, the facts were tragic. A highly qualified and gifted medical resident was pressured into an after-the-fact agreement to paper an out-of-match offer and acceptance into an NRMP “matched” fellowship. It was, in my opinion, unprecedented and quite inconsistent with what residents (myself included years ago when I was a resident matching at Stanford) understand to be a match (i.e. a process where the NRMP agreement protects both the program and the applicant from the vagaries of multiple choices and multiple candidates and provides reliability and commitment where there is true choice and true selection). There was no true choice for the resident in this case, and the very notion there was a contract was tenuous when measured by basic principles of contract law.
Reflecting on the last few years of waiver litigation and this recent arbitration, it is clear to me that Congress should evaluate the function of the NRMP with the following queries:
a. Should a nonprofit be given so much reign on decisions impacting the ability of residents to practice after or during residency, particularly where decisions on waivers and sanctions can derail a resident for years (not months)?
b. Is the unbridled authority of the NRMP at odds with legislative mandates and federal dollars funding residency positions in order to fill the demand for qualified physicians–in other words, does the NRMP in aggregate delay numerous qualified physicians with excessive sanctions and rigid rules which ultimately result in delayed entry of numerous qualified physicians into the workforce?
c. Should the NRMP be held accountable to a different standard of review–the NRMP is not a governmental agency (though it has enjoyed some Congressional protection after the antitrust litigation years ago) and thus query what is the appropriate standard of review? It should not be arbitrary and capricious, and particularly where there is a question as to enforceability of the contract itself, should the standard in fact be in line with applicable state law on which party has the burden to prove the enforceability of the contract?
d. Are NRMP penalties doled out equitably? There is some evidence to suggest that the NRMP will routinely hand out match participation bars (where the resident’s career is literally put on hold for anywhere from 1-3 years) while similarly culpable programs are only listed as match violators but can continue to recruit residents. The impact of the bar on residents is life changing and devastating, while the impact of listing sanctions are not surprisingly modest at best.
Litigators like me will continue to represent residents in NRMP proceedings, but it is apparent to me that the NRMP is enjoying unprecedented and overreaching authority in a manner that is inconsistent with the federal dollars allocated for residency training and in a manner that does not weigh the sacrifices of residents and fellows in training appropriately. Query whether a legislative mandate is needed to reform the current system, including consideration of making the NRMP accountable and more transparent in its decision-making. The place to start would be a systematic congressional audit of the NRMP’s decision-making process, including sanctions and waiver grants, and a careful analysis of lost training time accruing to residents in aggregate. I personally reviewed numerous waiver decisions, and many of the narratives departed from common sense in their outcome and the severity of the sanctions enforced.
The NRMP was ironically founded by medical residents in the 50’s. It was founded in part to protect residents from the vagaries of a highly leveraged process. That process now is arguably leveraged by the NRMP itself. Its powers and authority are improperly insulated by a misleading pseudo agency status and overly protective standard of review for its decisions. Its operation and impact has departed significantly from the original charter and is at odds with the significant federal dollars spent on training physicians.