OFCCP Scores Surprising Victory in its Continuing Battle for Jurisdiction Over Healthcare Providers Based on TRICARE Participation

On July 22, 2013, the Office of Federal Contract Compliance Programs (OFCCP) won a surprising victory before the Department of Labor’s (DOL) Administrative Review Board (ARB), breathing new life into the agency’s efforts to assert jurisdiction over healthcare providers.

For nearly five years, OFCCP has been tenaciously pursuing jurisdiction over healthcare providers based on the theory that providers participating in, and receiving more than $50,000 in reimbursement from, the Department of Defense’s (DOD) TRICARE program qualify as federal government subcontractors required to comply with the agency’s regulations.

In December 2011, when Congress passed legislation apparently designed to reject OFCCP’s position, the agency’s director, Patricia Shiu, responded that “this is not over yet,” and continued to pursue an action against Florida Hospital of Orlando arguing that the Congressional action had not divested the agency of its jurisdiction.

And in October 2012, after the ARB ruled in favor of Florida Hospital, OFCCP again refused to accept defeat. OFCCP filed a motion before the ARB asking it to reconsider its decision and stating in its brief that notwithstanding the ARB’s decision in Florida Hospital, OFCCP “intends to continue to schedule and attempt to review hospitals because they are TRICARE network providers.”

The ARB, in an extremely unusual move, granted OFCCP’s request for reconsideration and then issued a new opinion last week holding, by a three-to-two vote, that the 2011 legislation did not foreclose all of OFCCP’s arguments for jurisdiction. The case has now been remanded back to an administrative law judge (ALJ) for further proceedings.

Significant legal questions remain unanswered by this new decision, and years of additional litigation may still lie ahead for Florida Hospital and the OFCCP. It is not clear whether the agency will now resume aggressively scheduling TRICARE participants for audits or wait for a more final resolution. Given this uncertainty, prudent health care providers should be thinking carefully about their options now and deciding whether to challenge OFCCP jurisdiction or avoid litigation by either ending their participation in TRICARE or complying with OFCCP’s requirements. Continue reading about this development here.

By David Goldstein

This information is intended to be educational and should not be considered legal advice on any specific matter.

Wal-Mart To Hire Veterans

Wal-Mart, the world's largest retailer and nation's largest private employer, is making a pledge to boost its sourcing from domestic suppliers and hire more than 100,000 veterans.

The plans were to be announced as part of an address by Bill Simon, president and CEO of Wal-Mart's U.S. business, at an annual retail industry convention in New York.

Wal-Mart (WMT) also projects that it will hire more than 100,000 recently discharged veterans in the next five years. Honorably discharged veterans will have a "place to go", says Wal-Mart's Simon, according to prepared text supplied by the discounter. The hiring pledge, which will begin on Memorial Day, covers veterans within 12 months of leaving active duty. Most of the jobs will be in Wal-Mart's stores or its Sam's club locations. Some will be in the company's distribution centers.

"Let's be clear; hiring a veteran can be one of the best decisions any of us can make," Simon plans to say in his address to retailers gathered on the third day of the four-day National Retail Federation convention. "Veterans have a record of performance under pressure. They're quick learners, and they're team players. These are leaders with discipline, training, and a passion for service. There is a seriousness and sense of purpose that the military instills, and we need it today more than ever."

Wal-Mart says it believes it is already the large private employer of veterans in the country. Last year, 225,000 active duty troops became veterans, according to the Department of Veterans Affairs.

The company says that it has spoken to the White House about its commitment, and said the First Lady Michelle Obama's team has already expressed an interest in working with Wal-Mart and with the rest of the business community.

In the next several weeks, the White House will convene the Department of Veterans Affairs, the Department of Defense and major U.S. employers to encourage businesses to make significant commitments to train and employ American's returning veterans, according to Simon's prepared text.

First lady Michelle Obama, who spearheaded a White House drive to encourage businesses to hire veterans, praised Wal-Mart's announcement, calling it "historic."

"We all believe that no one who serves our country should have to fight for a job once they return home," Mrs. Obama said in the statement. "Wal-Mart is setting a groundbreaking example for the private sector to follow."

Source: Associated Press

This information is intended to be educational and should not be considered legal advice on any specific matter.

Candidates with disabilities await employers

Source: U.S. Department of Labor

 

The U.S. Department of Labor's Office of Disability Employment Policy, in collaboration with the U.S. Department of Defense's Office of Diversity Management and Equal Opportunity, today launched the 2013 Workforce Recruitment Program database, a recruitment resource for employers seeking a diverse workforce that includes employees with disabilities.

The database contains profiles of postsecondary students and recent graduates with disabilities, including veterans, representing a wide variety of academic backgrounds and degree levels. Candidates who are seeking summer employment as well as recent graduates looking for regular full-time positions have been interviewed and pre-screened by federal recruiters.

Click here for more.

This information is intended to be educational and should not be considered legal advice on any specific matter.