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Alert: TRICARE Subjects Hospitals to Affirmative Action Requirements

According to a recent Department of Labor Office of Administrative Law Judge (“ALJ”) ruling, if a hospital facility accepts patients under TRICARE, the health care program serving Uniformed Service members, retirees and their families, that facility may be subject to federal affirmative action requirements. See (OFCCP v. Fla. Hosp. of Orlando, DOL OALJ, No. 2009-OFC-00002, 10/18/10).

Granting summary judgment to the Office of Federal Contract Compliance Programs (“OFCCP”), the ALJ held that a Florida hospital is a federal subcontractor because it participates in a health care provider network established by Humana Military Healthcare Services Inc. (“Humana”), which has a federal contract with the Department of Defense’s TRICARE Management Activity, and performs a “portion” of Humana’s obligations under its government contract by providing medical services to TRICARE beneficiaries.

The ruling makes clear that the Florida hospital, as well as other hospital facilities that provide similar services through a TRICARE administrator, must comply with the affirmative action and equal employment opportunity obligations enforced by the OFCCP under Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act.

These obligations are significant and may include:

  • Maintaining a written affirmative action plan
  • Filing EEO-1 and Vets 100/100A reports
  • Ensuring nondiscrimination in employment
  • Posting certain notices
  • Establishing and maintaining certain recordkeeping practices and other equal employment opportunity practices
  • Granting the OFCCP access to its facilities to conduct and complete compliance evaluations

Hospitals and other health care providers should immediately review their contractual obligations to determine whether they are federal contractors or subcontractors under the OFCCP’s jurisdiction. The fact that contracts with TRICARE administrators do not specifically mention affirmative action or other EEO obligations is not determinative. Often these clauses are automatically incorporated by law into certain subcontracts.

Compliance with affirmative action obligations is a significant undertaking. For questions or more information on affirmative action obligations, contact any member of Gentry Locke’s Employment Law or Government Contracting Practice Groups.

Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.

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