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On April 25, 2012, the OFCCP announced that it rescinded its Directive 293, which is the OFCCP policy that determines if healthcare providers and insurers who use TRICARE are covered contractors or subcontractors. It was rescinded due to recent changes in the healthcare industry and pending litigation; such as, the OFCCP vs. Florida Hospital of Orlando.
Furthermore, the OFCCP stated it is putting compliance evaluations on hold for healthcare providers and insurers where TRICARE is the only reason for jurisdiction of a compliance evaluation. The OFCCP will mail letters to notify employers if the compliance evaluation is on hold.
While the OFCCP acknowledges the hold, they are still interested in including TRICARE as a subcontract and continue to pursue the issue. For example, OFCCP argued that the National Defense Authorization Act of 2012 (NDAA) is not retroactive; therefore, employers who received the letter prior to the passing of the NDAA should still have to comply.
In the meantime, OFCCP will continue scheduling compliance evaluations for employers where there is another basis for jurisdiction other than TRICARE. For example, it may include Federal Employee Health Benefit Plan, Medicare Part C or D, and contracts or subcontracts where services were provided to the Departments of Defense, Federal Bureau of Prisons, Health and Human Services, Homeland Security, and the Veterans Affairs Executive Branch.
If an employer receives a letter from the OFCCP notifying them that a compliance evaluation will move forward, the employer has 30 days from the date they received the letter to provide the OFCCP with the information requested. The affirmative action plan (AAP) that should be submitted is the one on the original scheduling letter.
While these updates are still in their infancy, it is important for Federal contractors and subcontractors to continue taking the necessary steps to comply with the OFCCP in preparation for future changes.