OFCCP recently published a final rule and confirmed the agency does not have jurisdiction over TRICARE providers. TRICARE is a federal health care program for active and retired military personnel, their families, survivors and certain former spouses and others registered in the Defense Enrollment Eligibility Reporting System (DEERS).
The rule provides clarity to an ongoing contract issue going back a decade, as noted in our previous blog. Historically, OFCCP believed it had jurisdiction over TRICARE providers, and pursued it in the case of OFCCP v. Florida Hospital of Orlando. However, after an Administrative Review Board ruled otherwise in 2012, OFCCP issued a moratorium in 2014 for five years indicating the agency would “limit its enforcement activities,” including administratively closing open or scheduled audits of TRICARE providers, and extended the moratorium in 2018.
It is critical to understand the rule, effective next month, and how it applies to your organization. To that end, OFCCP noted they will retain authority over TRICARE providers holding separate covered Federal contracts or subcontracts. We recommend partnering with procurement or related staff and counsel to identify all Federal contracts received. You can also visit the Federal Procurement Data System to search for contract information. An organization may be both, a Federal contractor subject to equal employment opportunity and affirmative action obligations, and a TRICARE provider. For TRICARE only organizations, the rule does not change anything from the moratorium other than providing clarity and removing TRICARE providers from jurisdiction permanently.
Finally, the agency took a step further by exercising its enforcement discretion under the “national interest exemption” in case their interpretation is incorrect and the rule is overturned in the future.
“Thus, even if OFCCP had authority over Federal health care providers who participate in TRICARE (which this rule clarifies it does not), OFCCP has determined that special circumstances in the national interest justify granting the exemption as it would improve uniformed service members' and veterans' access to medical care, more efficiently allocate OFCCP's limited resources for enforcement activities, and provide greater uniformity, certainty, and notice for health care providers participating in TRICARE.”
The exemption, usually invoked to respond to natural disasters such as hurricane, expires and does not provide a get out of a jail card. Please visit OFCCP’s TRICARE FAQ page for additional information.
By Yesenia Avila, Consultant at DCI Consulting Group