The OFCCP’s efforts to gain jurisdiction over health care providers has been the subject of a historic debate and of conflicting federal and administrative court decisions regarding its scope. With the implementation of Directive 293 on December 16, 2010, however, the Agency solidified its position that it has jurisdiction to review the AAPs of health care providers if there is “any agreement or arrangement between a Federal contractor and any person, not in an employer/employee relationship (1) for the purchase, sale or use of personal property or non-personal services, which in whole or in part is necessary to the performance of a contract, or (2) under which any portion of the Federal contractor’s obligations under the contract is performed, undertaken or assumed.”
Accordingly, the OFCCP has opined that both hospitals and health care providers will generally be found to be subcontractors if they provide treatment or services to federal employee health benefits provider insureds through agreements with health plans or Tricare beneficiaries. Additionally, arrangements under Medicare Advantage Part C and Part D will now likely result in an assertion of jurisdiction by the OFCCP. Currently, the scope of the Agency’s jurisdiction is on appeal in federal court; however, the OFCCP is actively proceeding and asserting that it has jurisdiction now.