Directive 2021-01* has extended OFCCP’s current enforcement moratorium for all Veterans Affairs Health Benefits Program (VAHBP) providers** by two years, through May 7, 2023. Historically, OFCCP has provided a moratorium for healthcare subcontractors of TRICARE (Directive 2014-01) and VAHBP providers (Directive 2018-02).
Under OFCCP’s current moratorium, VAHBP providers are exempt from enforcement of affirmative action obligations and compliance evaluations until May 7, 2023. A 2014 OFCCP Directive (2014-01) provided a moratorium for only TRICARE subcontractors, but in 2018 OFCCP released Directive 2018-02 extending the moratorium for another five years and expanding the coverage to include VAHBP providers. The 2018 extension was exercised to allow OFCCP time necessary to provide feedback to stakeholders in their final rule for TRICARE providers, effective August 31, 2020. The final rule determined OFCCP lacks authority to regulate healthcare contractors and subcontractors based solely on TRICARE coverage, but even then OFCCP also established a national interest exemption for all TRICARE contracts. The final rule did not alleviate VAHBP providers from OFCCP’s laws, so OFCCP removed its enforcement obligations of VAHBP providers through sub-regulatory language, such as Directive 2021-01.
Like previous OFCCP sentiments, the agency has extended the moratorium with reasoning that OFCCP oversight and regulatory burdens could be a contractual deterrent for healthcare providers, thus removing OFCCP’s affirmative action enforcement would increase healthcare access for active and retired service members and their family. During the current moratorium period OFCCP will consider issuing a national interest exemption for VAHBP providers.
*Directive 2021-01 “does not relieve any VAHBP providers as to enforcement of nondiscrimination obligations or being subject to discrimination complaint investigations.”
**”VAHBP providers” is a term used by OFCCP to include health care providers contracting with the U.S. Department of Veteran Affairs. Seek direction from your legal counsel to determine OFCCP contractual coverage.
By Marcelle Clavette, Consultant at DCI Consulting Group