A Partial Win for Non-501(c)(3) Nonprofits & PSLF

When the Department of Education started reversing FedLoan’s employment certification form (ECF) decisions about qualifying employment, people were rightfully troubled. The American Bar Association (and four individuals) sued.

The case is over, and three out of the four won. That’s nice, but the fourth would have made all the difference.

The memorandum opinion from Justice Timothy J. Kelly filed on February 22 is helpful in understanding why. In summary, Kelly calls out the Department of Education for being both terrible and unconvincing:

The Court concludes that Defendants acted arbitrarily and capriciously when the Department changed its interpretation of the PSLF regulation in two ways without displaying awareness of its changed position, providing a reasoned explanation for that decision, and taking into account the serious reliance interests affected.

 

The Suit

PSLF-qualifying employment is straightforward in cases of government or 501(c)(3) work. The lawsuit, which concerns shifting definitions of non-501(c)(3) nonprofit eligibility, hinges on this part of the PSLF law (emphasis mine):

[A] borrower’s eligibility for the PSLF Program is not determined by her job responsibilities, but rather by whether her employer qualifies as a “public service organization.” Under the regulation, “public service organization” includes any government organization, not-for-profit organization classified under Section 501(c)(3) of the Internal Revenue Code, or not-for-profit private organization that is not classified under Section 501(c)(3) so long as it “provides [qualifying] public services” and does not engage in certain disqualifying activities. […] The qualifying “public services” include, among many others, “public interest law services,” “public education,” and “public service for individuals with disabilities and the elderly.”

The lawsuit alleged that the DoE changed the roles by adopting three new standards: the “Primary Purpose” standard, the “School-like Setting” standard, and the “Outright Provision of Services” standard.

These were essentially changed to limit the number of qualifying non501(c)(3) organizations by saying that an organization needs to not just supply public interest law services but to have that be its primary purpose; that an organization cannot just provide public education but most do so in a school-like setting; that it must provide “public service for individuals with disabilities and the elderly” directly and not just facilitate the provision by others.

The court agreed that the “primary purpose” and “school-like setting” rules were changed after the fact illegally. The court didn’t agree about the “outright provision” standard.

The American Bar Association (ABA) was the lead plaintiff. It initially qualified as a PSLF-employer because it provides public interest law services. Later on, this decision was reversed because the Department of Education decided that providing public interest law services was not its primary purpose. As we’ll see, the Department of Education changed the rules and pretended it didn’t. Not Kosher.

In the claim that lost, The Vietnam Veterans of American (VVA) was the employer. Although it “provides advocacy and support services to Vietnam veterans,” it does so be helping Veterans apply for and receive support services–but does not provide them directly. For totally obvious reasons, helping veterans in this capacity is meritless and should earn no governmental support.

As the law says, it’s not the work that matters, it’s the employer. Unfortunately, the direct provision requirement was felt by the court to be a valid reading of the initial law, and there was no written evidence/proof that the Department’s interpretation of this component changed over time.

 

What does this all mean, and how did we get here?

In 2016, the Department of Education basically said that FedLoan’s employer certification form (ECF) approvals don’t really count and could be reversed at any time including when applying for PSLF itself after 10 years. The Court shot them down pretty robustly: The DoE can’t just change the interpretation of the law in order to maliciously reduce the number of people who qualify for forgiveness. This is extremely reassuring. If your job should qualify and you get the go ahead, a reversal is unlikely to hold up in court. More or less.

There’s a big exception, which has to do with the failed fourth plaintiff.

The court pulled back from holding the DoE accountable to uphold FedLoans’ “mistakes” by reaffirming that the details really matter. The DoE can reverse FedLoan’s ECF approvals if it can justify the mistake as a “contractor error,” even if fixing that “mistake” would be devastating to the borrower.

Unlike the other cases where internal Department and FedLoan communications made clear that the Department was changing the rules after the fact, there is no clear evidence that the “outright provision” standard had changed over time. Remember: it doesn’t really matter what you do, it matters who you did them for.

The bottom line: if you have a some approved ECFs for a non-501(c)(3) organization that does something similar (i.e. something good but not direct), your PSLF-eligibility is not safe.

 

The Victors

The DoE basically tried to get off on a technicality, arguing that its capricious denial letters were not “final agency actions” (which is required for judgment in cases like this). They argued that nothing is “final” until the formal PSLF application is reviewed:

The Department does not make a final determination on eligibility
for PSLF until the borrower files her application . . . after making 120 qualifying payments.

The Court didn’t bite and pointed out that, more or less, it would take a special kind of idiot to be denied but keep working in a job that would doom them financially and then apply anyway years later in the vain hope that the government would throw them a bone.

[T]he mere possibility that an agency might reconsider in light of
‘informal discussion’ and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.

[..]

[The] Court concludes that the Department changed the standards by which it assessed whether non-501(c)(3) not-for-profit organizations qualified as public service organizations under the PSLF Program. Moreover, these changes were arbitrary and capricious because, in adopting the new standards, the Department failed to display awareness of its changed position, provide a reasoned analysis for that decision, and take into account the serious reliance interests affected.

[..]

Defendants argue that the denial letters did not have “an immediate or significant practical effect” on the Individual Plaintiffs because their “eligibility for PSLF had not yet been finally determined.” […] This is nonsense. In the face of growing debt burdens, the Individual Plaintiffs structured their careers and long-term financial plans around their eligibility for the PSLF Program. The Department’s determinations quite obviously had an “immediate” and “significant” impact on their ability to plan their careers and finances, despite the fact that they have not had (and may never have) the opportunity to submit an application for loan forgiveness.

Hear, hear!

 

Organizational Losers

The Court wasn’t interested in forcing the DoE to entertain requests to change its mind about qualifying organization-status:

As an employer, the ABA has no such rights or obligations, since it has no possible claim to loan forgiveness. And indeed, there is no procedure set out in [the PSLF law] or the Department’s guidance by which an employer can seek to validate whether it meets the definition of a “public service organization” in a manner similar to the process available for borrowers to track the number of eligible payments they have completed.

The flaw in appellants’ [finality] argument is that the ‘consequences’ to which they allude are practical, not legal.

So while the court can see how important it is for a non-profit to qualify for PSLF in order to attract and retain talent, this is not a legal consequence. Because, despite Citizens United and its toxic effect on campaign finance, organizations are not people, have no property rights, and thus no claim to PSLF.

There is no formal or legal appeals process for an organization to win back its status or appeal a rejection.

 

The non-501(c)(3) takeaway

Where you work can make all the difference. Again, government or 501(c)(3) work is a non-issue.

For those working at non-501(c)(3) organizations, when you worked matters, a lot. Because the rules changed.

If you started working in 2016 or later (or 2014 for public educational services), you probably were always under the new tighter definition. In this case, hopefully your job actually meets the requirements avoe. If it didn’t, you were probably denied already (“appropriately”). If you have an approved ECF, and your job doesn’t line up, this may have been a FedLoan contractor error and could be reversed. If you worked earlier and were rejected, like the plaintiffs in the case, than the DoE may have changed the rules on you and cheated.

Otherwise, look at your job and see if it passes the sniff test. Don’t ask yourself if you’re doing a public good–that’ how people got in trouble in the first place. It doesn’t matter what you do. Ask yourself if your job checks the right boxes.

Explanations for the 2019 Official Step 1 Practice Questions

The 2019 set was recently updated in February. Of the 117 questions in the PDF, only two have been changed, which I’ve answered below. The order and content otherwise appear unchanged, including the three multimedia questions at the end of the online version.


Please see last year’s 2018 explanations for the remainder.

The many comments at the bottom of that page may prove helpful for those with additional questions. You’re never the only one to struggle.


48. E – When people go camping, you should be thinking of zoonotic infections. Fun fact, New Mexico leads the country in cases of plague. Yes, that plague: Yersinia pestis. The “bubonic” part of bubonic plague refers to the swollen infected nodes (“buboes”) characteristic of the disease, which often involve the groin (bubo is the Greek word for groin, who knew?). In this case, they’re also describing a necrotic epitrochlear node. Classic treatment is with aminoglycosides, which bind to the 30s ribosomal subunit. (Note that Tularemia, caused by another gram-negative bacteria Francisella tularensis can present similarly but is more common in the midwest. Regardless, the two are often lumped together, the antimicrobial treatment is similar, and the answer in this case would be the same).

69. E – Catalase and coagulase-positive gram-positive cocci = staph aureus. mecA-positivity means the bacteria carry the gene that confers methicillin-resistance, hence MRSA. Of the choices, MRSA is treated with vancomycin.

Patriot Act inadvertently demonstrates the needless complexity of student loans

Hasan Minhaj, discussing student loans on his Netflix show Patriot Act.

You can’t call loan servicers financial terrorists. Terrorists take responsibility for their actions.

Full clip:

Minhaj spends a lot of time slamming Navient, which makes sense because Navient is terrible.

It’s a solid episode that also spends a nice amount of time lambasting Betsy DeVos (please see her 60 Minutes interview with Colbert commentary), the completely unqualified Trump appointee for Secretary of Education, whose main claim to fame in her current role is being wrong in everything she does and generally being an embarrassment. She was apparently picked because she is rich; she has no qualms practicing petty cronyism; and she believes in charter schools, defunding struggling public schools, and especially loves voucher programs that allow people to siphon money out of cash-strapped school districts to help them pay for private school.

But perhaps the best part is at the 17-minute mark, when Patriot Act inadvertently demonstrates the often-confusing and needless complexity of federal student loans by including a news clip that incorrectly describes the requirements for PSLF!

The expository clip states that both Direct and FFEL loans qualify for PSLF. FFEL loans don’t! The FFEL loan problem is one of the most common disqualifying reasons unsavvy borrowers get nailed for when applying for PSLF, and it has not and likely will never be addressed by Congress.

The clip also says you need to work at any non-profit organization. But that’s also wrong! In addition to government work, PSLF is specifically for 501(c)3 organizations or other orgs that provide certain qualifying services approved on a case by case basis.

Even a 27-minute segment on a well-produced show has a hard time getting it right.

 

ABPN? Also sued.

Hot on the heels of last week’s anti-ABR lawsuit (which itself followed the ABIM lawsuit), two psychiatrists have submitted a very similar class action suit against the American Board of Psychiatry and Neurology (hat tip Dr. Wes). And by “very similar” I mean it’s mostly the same lawyers, it’s filed in the same Northern District of Illinois, and it really is very similar.

But the financials in question are even more eye-catching:

Between 2004 and 2017, after the advent of ABPN MOC, ABPN’s “Program service revenue” account exceeded its “Program service expenses” account by a yearly average of $8,777,319, as reported in its Forms 990 for those years. During that same period of time, ABPN’s “Net assets or fund balances” account skyrocketed 730%, from $16,508,407 to $120,727,606. In other words, at year-end 2017, as ABPN MOC revenue continued to grow, ABPN net assets (assets less liabilities) more than septupled, which included, according to its 2017 Form 990, almost $102 million in cash, savings, and securities.

$102 million. What could they possibly need a war chest of that size for? Fighting lawsuits, one presumes.

And then:

[Executive compensation includes] overly generous compensation paid to current ABPN President and CEO, Dr. Faulkner, who was hired by ABPN in 2006 as Executive Vice President, its most senior staff position. In 2007, he was paid total compensation of $500,726 as Executive Vice President. Dr. Faulkner became ABPN President and CEO in 2009. In 2017, the last year for which data could be located, his total compensation as President and CEO was $2,872,861, including a bonus of $1,884,920. Thus, as ABPN MOC revenue continued to grow, Dr. Faulkner’s total compensation almost sextupled.

No words.

Class Action Lawsuit Against the ABR

Radiology joined the ranks of physician-led class action lawsuits against the ABMS member boards last week when interventional radiologist Sadhish K. Siva filed a complaint on behalf of radiologists against the ABR for (and I’m paraphrasing) running an illegal anticompetitive monopoly and generally being terrible.

You can read the full 30-page suit if you’re interested. Legal writing is generally not of the page-turning variety, but there are still some great lines.

Regarding MOC (emphasis mine):

[The] ABR admits that no studying will be necessary for [the new MOC program] OLA and that ABR “doesn’t anticipate” incorrect answers “will happen often.” ABR also confirms on its website that “[t]he goal with all OLA content is that diplomates won’t have to study.” When a question is answered incorrectly, an explanation of the correct answer is provided so that when a similar question is asked in the future it can be answered correctly. Unsurprisingly, ABR admits it does “not anticipate a high failure rate.”

In short, to maintain ABR certification under OLA, a radiologist need only spend as little as 52 minutes per year (one minute for each of 52 questions) answering questions designed so as not to require studying, and for which ABR anticipates neither incorrect answers nor a high failure rate.

Because OLA has been designed so that all or most radiologists will pass, it validates nothing more than ABR’s ability to force radiologists to purchase MOC and continue assessing MOC fees.

Burn!

Though not called out in the lawsuit, this argument also applies to the Certifying Exam (a second, superfluous exam taken after the Core Exam, after graduating residency, and after already practicing independently as a radiologist). This may be in part because the angriest radiologists are the ones who paid for and then passed what should have been a 10-year recertification exam only to be told they had to start shelling out and doing questions right after. But the main reason is likely that the suit primarily asserts that the monopolistic behavior at play includes the ABR illegally tying mandatory MOC to its “initial certification product,” and the Certifying Exam—though suspect–is part of the initial certification process.

Interesting fact that I did not know about MOC & the insurance market:

In addition, patients whose doctors have been denied coverage by BCBS because they have not complied with MOC requirements, are typically required to pay a higher “out of network” coinsurance rate (for example, 10% in network versus 30% out of network) to their financial detriment.

It’s amazing how these organizations, which are completely unaccountable, have become such integral parts of so many different components of the healthcare machine from hospital credentialing to insurance coverage.

Speaking of that power:

The American Medical Association (“AMA”) has adopted “AMA Policy H-275.924, Principles on Maintenance of Certification (MOC),” which states, among other things, that “MOC should be based on evidence,” “should not be a mandated requirement for licensure, credentialing, reimbursement, network participation or employment,” “should be relevant to clinical practice,” “not present barriers to patient care,” and “should include cost effectiveness with full financial transparency, respect for physician’s time and their patient care commitments, alignment of MOC requirements with other regulator and payer requirements, and adherence to an evidence basis for both MOC content and processes.” ABR’s MOC fails in all of these respects.

And lastly:

[The] ABR is not a “self”-regulatory body in any meaningful sense for, among other reasons, its complete lack of accountability. Unlike the medical boards of the individual States, for example, as alleged above, ABR is a revenue-driven entity beholden to its own financial interests and those of its officers, governors, trustees, management, and key employees. ABR itself is not subject to legislative, regulatory, administrative, or other oversight by any other person, entity, or organization. It answers to no one, much less to the radiologist community which it brazenly claims to self-regulate.

Final burn!

Whether or not the suit will convince a jury that an illegal monopoly is at play, I don’t know. I can take a pretty confident educated guess as to what radiologists are rooting for. It’s pretty clear that while MOC can engender a controversy, the ABR’s efforts can’t meaningfully impact the quality of radiology practiced by its diplomates or have a significant effect on patient care.