Summertime, for many, marks the beginning of longer days and more sunshine. As an academic medical institution, it also marks the end of one academic year and the commencement of another, and with a new academic year comes new agreements or contracts of appointment for its residents and fellows, as each are promoted to a new program year. For programs accredited by the Accreditation Council of Graduate Medical Education (“ACGME”), there are specific requirements for what can and should be included in its resident and fellow agreements. Aside from its ACGME requirements, it is also important for an institution to consider what additional contractual provisions it should include in its resident and fellow contracts. Below are ACGME’s requirements and other contract provisions that an institution should review and include in such contracts prior to the beginning of each academic year.

ACGME Institutional Requirements

Per ACGME Institutional Requirement IV.C, a Sponsoring Institution, the entity that oversees, supports, and administers an ACGME-accredited residency/fellowship program, must ensure that incoming residents/fellows are given a written agreement of appointment that outlines the terms and conditions of their appointment to a program. A resident/fellow is then re-appointed or promoted to the next program year upon their completion of the previous program year and typically will need a new written agreement of appointment. Because of this, Sponsoring Institutions should review their agreements prior to providing to residents/fellows to ensure that its agreements include the following ACGME Institutional Requirements:[1]

• An outline of the resident’s/fellow’s responsibilities (which may include, but is not limited to, compliance with the institution’s mission, vision and values, policies and procedures, standards of conduct, and quality improvement and compliance programs);  

• The duration of appointment which typically includes the start and end date of the academic year;

• An outline of financial support for the resident/fellows, including stipends, reimbursement of travel expenses, etc.;

• The conditions for reappointment and promotion to a subsequent post-graduate year (“PGY”) level which can vary based on the resident/fellows current PGY level and as required in the institutions relevant policies and procedures;

• Reference to and/or an outline of the institution’s grievance and due process policies and procedures;

• Specifics surrounding the institution’s professional liability insurance, including a summary of pertinent information regarding coverage as outlined in the ACGME Institutional Requirements;

• A provision that addresses the resident/fellow benefits as required by the ACGME, which must include, but is not limited to:

  • Health insurance benefits for residents/fellows and their eligible dependents;

  • Disability insurance for residents/fellows;

  • Vacation and leave(s) of absence for residents/fellows, including medical, parental, and caregiver leave(s) of absence, that are compliant with applicable laws; and

  • Timely notice of the effect of leave(s) of absence on the ability of residents/fellows to satisfy requirements for program completion.

• Any information, if applicable, related to eligibility for specialty board examinations; and

• A reference to institutional policies and procedures regarding resident/fellow clinical and education work hours and moonlighting.

It is important to note that under ACGME rules, an institution cannot include in its resident/fellow agreements or otherwise require a resident/fellow to sign a non-compete or restrictive covenant.

Other Legal Contractual Considerations

In addition to the ACGME requirements listed above, a Sponsoring Institution should consider the following provisions when drafting or reviewing their resident/fellow agreements:

• Behavior and Professionalism Provisions –  ACGME requires the Sponsoring Institution to ensure that its programs provide a professional, equitable, respectful, and civil environment that is free from unprofessional behavior, including discrimination, sexual and other forms of harassment, mistreatment, abuse, and/or coercion. The inclusion of a provision that adheres to this requirement may be beneficial to include in the resident/fellow agreement to provide notice to the residents/fellows of the institutions policies and procedures related to such behaviors.[2]

• Termination Provision – A carefully drafted termination provision that contemplates various situations where the resident’s/fellow’s agreement can or will be terminated should be included in the agreement. This provision should, at a minimum, contemplate the following: 1) termination related to program closure or reductions; 2) termination due to the disability of the resident/fellow; 3) termination due to the non-renewal, non-promotion, or dismissal of the resident/fellow; and 4) for cause termination subject to the violation of other institutional policies and procedures, e.g., HR policies, Medical Staff By-Laws. While the ACGME requirements do not address whether a termination for convenience clause is permitted in the resident/fellow agreements, including such a provision is highly frowned upon.

• Other Contract Provisions – These provisions include, but are not limited to the release of information, ownership of medical records, hospital duties and responsibilities, any applicable employment related state law provisions, i.e., background check requirements, etc.

By using the above information as guidance, a Sponsoring Institution should review their resident/fellow contracts annually to ensure substantial compliance with ACGME Institutional Requirements and to ensure that its agreements encompass the needs of the institution.

[1] ACGME may additionally require the Sponsoring Institutions to maintain and implement specific policies and procedures related to the provisions required in the resident/fellow contracts. These requirements are outlined herein.

[2] ACGME requires policies and procedures specific to resident/fellow behavior that a Sponsoring Institution is required to maintain, but that are not necessarily required to include in the resident/fellow agreement.