In December of 2010, the Office of Federal Contract Compliance Programs (OFCCP) took the position that hospitals were subject to its jurisdiction as a result of contracts to provide care under TRICARE, the federal government’s healthcare program for active duty and retired military and their families.
This issue has been litigated in both Pennsylvania and in Florida without relief for hospitals. Congress and President Obama, however, may have come to the rescue, at least to some degree (and how it relates to healthcare hiring).
President Obama signed the National Defense Authorization Act for Fiscal Year 2012. Section 715 of the bill states that network providers and providers of medical service are not subcontractors that are subject to OFCCP jurisdiction based solely on TRICARE participation.
A victory? Perhaps. This provision only addresses jurisdiction based on TRICARE participation. The law does not affect other bases for coverage, such as contracts with the Veterans Administration, the Department of Defense, or other federal agencies. The OFCCP, certainly, doesn’t believe the issue is dead. OFCCP Director Shiu is reportedly assessing the agency's policies and has stated, "This isn't over yet." She claims that the NDAA provision is "likely to create confusion and will unfairly deny many workers the benefits and protections that our laws ensure."
I asked Ted Kinney, Ph.D., head of our Healthcare Consulting Team what all of this means to our hospital clients:
“Our advice remains the same whether the OFCCP has jurisdiction or not: ensuring job-related and legally defensible selection processes is a best practice. While this new legislation should provide a little breathing room for many healthcare providers, it does not suggest that our employment laws are less important or that compliance is an obsolete consideration. Organizations should still focus on documenting selection decisions, minimizing adverse impact while maximizing prediction, and designing hiring processes for efficiency and consistency. In the end, we should view our employment laws as reminders to make decisions based only on job related factors that predict future work behavior. By doing so, we will remain compliant AND will continue to make sound business decisions by selecting only the top talent in our candidate pool based on those data points most predictive of future success.”