Aaron S. Kesselheim, M.D., J.D., M.P.H., and Kirsten E. Austad, B.S.
NEJM | January 12, 2011
Despite their medical school diplomas, medical interns and residents are not yet full-fledged physicians. But does it follow that interns and residents should still be considered students? Some in the medical profession think so. In recent years, the Accreditation Council for Graduate Medical Education (ACGME) has sought to limit residents’ work hours and protect them from performing certain routine job-related tasks that might rightfully be expected of employees, such as drawing blood or transporting patients. These restrictions reflect a desire to preserve residents’ ability to focus on their educational development.
In the eyes of the law, however, the answer may be different. For example, in malpractice cases, residents can be judged according to the same standard of care as more senior physicians. In 1999, the National Labor Relations Board (NLRB) declared residents to be employees, and thus able to join unions, on the basis of their direct patient care and receipt of compensation and standard employment-related benefits. The NLRB found that the educational component of residency “complements, indeed enhances, the considerable services the Hospital receives from the house staff, and for which the house staff are compensated.”1
Now, in the case of Mayo Foundation for Medical Education and Research, et al. v. United States, the Supreme Court has added its weighty voice to the question of whether residents are workers or students. The centerpiece of the controversy was the 1935 Federal Insurance Contributions Act (FICA), which provided for supplemental taxes on employers and employees that fund the Social Security program. An amendment in 1939 created a student exemption for a “service performed in the employ of . . . a school, college, or university . . . if such service is performed by a student enrolled in and regularly attending classes at such school, college, or university.” In its regulations, the U.S. Treasury announced that the student exemption would apply for a service performed “incident to and for the purpose of pursuing a course of study” at the institution.
The issue of whether medical residents fit under the student exemption lay quiescent — with many hospitals paying FICA taxes on residents as if they were employees — until the 1990s, when the Social Security Administration sought to recover unpaid taxes from the University of Minnesota, which had long considered its house staff to be exempt from FICA. The case reached the Eighth Circuit Court of Appeals, which ruled in favor of the university because an analysis of the particular residency program led to the conclusion that “the primary purpose for the residents’ participation in the program is to pursue a course of study rather than to earn a livelihood.”2 After that 1998 decision, sponsors of residency programs throughout the country filed thousands of claims to recover paid FICA taxes. In the resulting litigation, other Circuit Courts held that residents could qualify for the student exemption. The Treasury ultimately compromised by conceding existing refund claims and promulgating a new prospective regulation. Its “clarifying” regulation — which became effective April 1, 2005 — states that in all cases “the services of a full-time employee are not incident to and for the purpose of pursuing a course of study” and specifies that residents working more than 40 hours per week are categorically ineligible for the student exemption.
The Mayo Foundation and the University of Minnesota sued to overturn the Treasury’s new regulation. Supported by numerous hospitals and academic medical centers in friend-of-the-court briefs, Mayo and Minnesota offered both functional and structural reasons why house officers should legally be considered students. They compared a residency’s function to that of an undergraduate degree: a residency is usually chosen on the basis of academic opportunities, and completion of an accredited program is required for practicing medicine in the United States. They also argued that residency training involves characteristics of other programs of learning, including supervised work, educational curricula, and numerous lectures and conferences. In fact, they claimed that “the academic program of a medical resident is virtually indistinguishable from that of a third- or fourth-year medical student,” because both learn from a combination of hands-on care and didactics.3
In defense of the Treasury regulation declaring residents to be employees, government lawyers pointed to residents’ vast patient care responsibilities, which absorb 85 to 90% of their time and take precedence over educational conferences. Legislative history also arguably supported the Treasury, including the fact that although the 1939 FICA amendments contained an additional clause specifically excluding from the definition of employment the “service performed as an interne in the employ of a hospital,” the intern-specific language was dropped in 1965. An accompanying report noted that the rationale was to “give young doctors an earlier start in building up social security protection”: exempting residents from paying FICA taxes could be detrimental, since certain minimum contributions (depending on a person’s age) are required for eligibility for disability benefits.
At stake in Mayo v. United States were substantial financial implications for academic medical centers and their house staff. The taxes at issue amount to about $700 million per year for U.S. hospitals and academic medical centers.4 These resources may otherwise be well spent on patient care and medical education. FICA taxes also amount to about $4,000 a year in an individual resident’s salary, a sum that could certainly benefit residents, whose high levels of debt can influence their specialty and career choices.
On January 11, 2011, the Supreme Court ruled in an 8-to-0 decision (Justice Elena Kagan was recused) that the Treasury regulation making residents categorically ineligible for the student exemption was a “perfectly sensible” way of distinguishing education from service for the purposes of the tax code. Chief Justice John Roberts wrote that residents could reasonably be construed as “the kind of workers that Congress intended to both contribute to and benefit from the Social Security system.”
Indeed, although residencies allow physicians to learn by serving as physicians in an environment of structured oversight, a resident differs in notable ways from a “student” who is “enrolled in and regularly attending classes.” Whereas medical students participate in a multidisciplinary plan of study and engage in clinical clerkships to learn from residents and attending physicians without any true service obligations (except when they are acting as sub-interns), residents serve as a workforce. Mayo and Minnesota have denied receiving economic value from the work of residents, arguing that they “permit their residents to care for patients purely for educational purposes . . . residents do not provide a net economic benefit.”3 This contention, however, is implausible: residents are clearly indispensable to the care provided at the hospitals where they are employed, even if their work is reviewed by supervising physicians. Moreover, the ACGME requirements regarding didactic time and educational benchmarks for residents face objections from many hospitals that need to find costly replacement providers for lost work time.5
The Supreme Court’s decision in Mayo v. United States may have other, indirect legal implications as well. Residents could find additional support in the Court’s unambiguous holding for efforts to enforce other workplace rights, such as unemployment benefits (e.g., after hospital closure) or protection under the Family Medical Leave Act. Residents may not be fully trained physicians, but there are benefits to not being labeled as “students” in the eyes of the law.
This article (10.1056/NEJMp1100414) was published on January 12, 2011, at NEJM.org.
Disclosure forms provided by the authors are available with the full text of this article at NEJM.org.
From the Division of Pharmacoepidemiology and Pharmacoeconomics, Department of Medicine, Brigham and Women’s Hospital and Harvard Medical School, Boston (A.S.K., K.E.A.), and the Edmond J. Safra Center for Ethics at Harvard University, Cambridge, MA (K.E.A.).
- Boston Medical Center Corporation and House Officers’ Association/Committee of Interns and Residents. 330 N.L.R.B. 30 (1999).
- Minnesota v. Apfel, 151 F.3d 742 (8th Circuit, 1998).
- Brief for the Petitioners, Mayo Foundation for Medical Education and Research, et al. v. U.S., No. 09-837 (Aug. 2010).
- Brief for the United States, Mayo Foundation for Medical Education and Research, et al. v. U.S., No. 09-837 (Sept. 2010).
- Nuckols TK, Bhattacharya J, Wolman DM, Ulmer C, Escarce JJ. Cost implications of reduced work hours and workloads for resident physicians. N Engl J Med 2009;360:-2215Full Text | Medline