Ruling Focuses On Employer's Participation In TRICARE

The Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) has won another major battle in its war to establish jurisdiction over hospitals and other health care providers. An administrative law judge (ALJ) decided, without a hearing, that the Florida Hospital of Orlando (FHO) is subject to federal affirmative action laws by virtue of its agreement to provide health care services to eligible TRICARE beneficiaries. OFCCP v. Fla. Hosp. of Orlando, DOL OALJ No. 2009-OFC-00002 (October 18, 2010).

This ruling is significant because many hospitals and health care providers have been operating under the assumption that they are not covered by the federal affirmative action laws and, therefore, have not been complying with federal contractor requirements. Consequently, these hospitals are generally unprepared should the OFCCP select them for an affirmative action compliance evaluation.

This case was recently appealed to the DOL's Administrative Review Board. Until a decision is reached, however, health care entities should closely analyze their relationship with federal government agencies through HMOs, provider networks, and the like, and consult with counsel to determine whether they must comply with federal contractors' affirmative action obligations, including: 1) developing written affirmative action plans (AAPs) for minorities and women, and for covered veterans and the disabled; 2) preparing adverse impact analyses of hires, promotions and terminations; 3) analyzing compensation practices for discrimination; 4) filing EEO-1 and Vets 100(A) Reports; 5) posting required notices and invitations to self identify; 6) notifying state employment service delivery system agencies of job openings; and 7) complying with detailed recordkeeping requirements.