The OFCCP made its next move in the continuing battle over whether it has jurisdiction over health care providers. On Wednesday, April 25, 2012, the OFCCP rescinded Directive 293, its most current guidance for assessing whether health care providers or insurers (collectively “HCPs”) are federal contractors or subcontractors for purposes of OFCCP jurisdiction. Click here for more information about Directive 293. The OFCCP’s move was driven by the December 31, 2011 passage of the National Defense Authorization Act of 2012 (NDAA), which provides that a TRICARE managed care support contract that includes the requirement to establish, manage, or maintain a network of providers is not a covered contract for OFCCP’s purposes. Click here for more information about the NDAA.

On April 25th, the OFCCP also hosted a Webinar to discuss its jurisdiction over HCPs. Here is what you need to know:

  • Despite the passage of the NDAA, the OFCCP will not concede it lacks jurisdiction over TRICARE providers and is pursuing its position in the pending OFCCP v. Florida Hospital of Orlando case. (For more information about the Florida Hospital litigation, see here.) Instead, the OFCCP has merely put “on hold” all compliance evaluations for HCPs where the only basis for OFCCP’s jurisdiction is a TRICARE managed care support contract.
  • The OFCCP made clear it will do a deep dive into the federal contracts of HCPs to determine if there is a basis independent of TRICARE for OFCCP jurisdiction (such as a contract with the Department of Health and Human Services, the Veterans Administration, or the Department of Justice). The OFCCP vowed to move forward with compliance evaluations of HCPs now if it can find a non-TRICARE hook for continuing the review.
  • If your organization is a HCP with a compliance evaluation that was put on hold with the passage of the NDAA, watch your mailboxes: the OFCCP will be contacting such contractors by letter beginning April 30, 2012 letting them know whether the OFCCP believes the only basis of jurisdiction is TRICARE and that the investigation is placed “on hold” or whether OFCCP believes it has an independent basis for jurisdiction and will continue its review.

The OFCCP also indicated that contractors who are subsequently selected for compliance evaluation while Florida Hospital is pending going forward will be subject to the same “on hold” or “move forward” policy depending on whether TRICARE is the only basis on which OFCCP may assert jurisdiction.