Tuesday, March 18, 2014

Hearing Held Last Week on H.R. 3633 and OFCCP Issue

Dana Halvorson and Dianne De La Mare 

As we've mentioned before, AHCA/NCAL supports Rep. Tim Walberg’s legislation, Protecting Health Care Providers from Increased Administrative Burdens Act (H.R. 3633). This legislation clarifies that certain recipients of payments from the Federal Government related to the delivery of health care services to individuals shall not be treated as Federal contractors by the Office of Federal Contract Compliance Programs (OFCCP) based on the work performed or actions taken by such individuals that resulted in the receipt of such payments. AHCA/NCAL believes it is important to advocate against any further expansion of the U.S. Department of Labor’s OFCCP’s jurisdiction. Implementation costs for initial compliance with OFCCP’s requirements could range from as much as $10K upfront; and subsequent compliance could add an additional $5K annually. 

OFCCP enforces the affirmative action and equal employment opportunity requirements that are written into the federal government’s agreements with government contractors or subcontractors. Medicare Parts A and B, as well as Medicaid, are considered insurance reimbursement agreements, and are outside the scope of OFCCP jurisdiction. Participants in Medicare Parts C (Medicare Advantage) and D, the Military Health Care System (TRICARE) and the Federal Employees Health Benefits Program (FEHBP); may be considered federal contractors or subcontractors subject to OFCCP enforcement. Participants with the U.S. Department of Veteran’s Affairs (VA) are subject to OFCCP enforcement. For the last several years, AHCA staff have worked tirelessly in negotiations with VA to make available nationwide a new VA/Civilian nursing facility contract vehicle, known as an “agreement,” that would excuse NF providers from most of the OFCCP requirements, and replace the current VA contracts. AHCA is currently awaiting the final rule. 

AHCA/NCAL remains concerned about the lack of clarity regarding OFCCP jurisdiction for Medicare Parts C and D, TRICARE and FEHBP. Most recently, the House Committee on Education and the Workforce Subcommittee on Workforce Protections held a hearing on March 13 on H.R. 3633, which can be viewed here along with the witness list and testimony. Chairman Walberg noted in his opening hearing statement that “as a result of the bipartisan concerns addressed in this legislation [H.R. 3633], the Department of Labor proposed earlier this week a limited delay of its regulatory approach. In a letter to the committee leadership, Secretary Perez promised a five year moratorium of new OFCCP enforcement activities against TRICARE providers.” The Chairman’s entire opening statement can be found here.

AHCA/NCAL will continue to carefully monitor this issue and any future developments.

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