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Congress urged to stop OFCCP jurisdiction grab

March 21, 2014

The AHA March 13 urged Congress to pass the Protecting Health Care Providers from Increased Administrative Burdens Act, H.R. 3633, legislation that would prevent the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) from expanding the reach of its regulatory oversight to hospitals and other health care organizations that care for uniformed service members and other federal employees.

In testimony before a House Education and Workforce Subcommittee on Workforce Protections’ hearing on the bill, AHA outside counsel Curt Kirschner said OFCCP is meddling where it doesn’t belong. Kirschner, an attorney with the Jones Day law firm in San Francisco, said H.R. 3633 would clarify the existing limits of OFCCP’s jurisdiction without disturbing the agency’s authority over institutions that have voluntarily entered into federal contracts; prevent needless and costly litigation over the classification of health care providers as federal contractors and subcontractors; and remove obstacles to hospitals and other health care providers providing health care services to members of the military, federal employees and their families.

OFCCP is responsible for ensuring
federal contractors and subcontractors follow federal nondiscrimination hiring requirements. In recent years, it has sought to expand its jurisdiction over hospitals that participate in health plans offered under Tricare, the Federal Employees Health Benefit Program and Medicare Part C or D. The agency claims that treating patients under these programs creates a federal contract.

AHA-supported legislation, the fiscal year 2012 National Defense Authorization Act (NDAA) – signed into law on Dec. 31, 2011 – sought to clarify that Tricare network providers should not be considered federal subcontractors and should not be subject by OFCCP to compliance requirements that apply to federal contractors and subcontractors. Despite the legislation, OFCCP continued to litigate a case against Florida Hospital of Orlando.

The agency took enforcement
action against the hospital over its role as a provider in a Tricare network. The case has been before a Labor administrative law judge. Tricare provides health care coverage to uniformed service members and their families.

OFCCP’s “persistent attempts to circumvent the NDAA confirm the need for legislation that places clear limits on the agency’s jurisdiction,”
Kirschner told the subcommittee.

“At a time when lowering health care costs is one of the nation’s top policy concerns, the OFCCP is making an aggressive jurisdictional land grab that will increase the administrative costs for hospitals and other health care providers,” he said. “This assertion of jurisdiction runs counter to federal statutes, the regulations of OFCCP’s sister agencies and plain common sense. The AHA urges Congress to end the uncertainty that the OFCCP has created by passing H.R. 3633 and clarifying once and for all that participation in a federally funded health benefit program does not subject health care provides to OFCCP jurisdiction.”

For more on Kirschner’s testimony, click on:
http://tinyurl.com/kzjezjg.