In a move aimed to divest the Office of Federal Contract Compliance Programs of jurisdiction over hundreds of potential federal subcontractors, Congress passed Section 715 of the National Defense Authorization Act on December 15, 2011, and President Obama signed it into law on December 31, 2011. This portion of the NDAA provides as follows:
For the purpose of determining whether network providers under [TRICARE] provider network agreements are subcontractors for purposes of the Federal Acquisition Regulation or any other law, a TRICARE managed care support contract that includes the requirement to establish, manage, or maintain a network of providers may not be considered to be a contract for the performance of health care services or supplies on the basis of such requirement.
As our readers recall, an Administrative Law Judge ruled in October 2010 that health care providers that contract to be part of a network of TRICARE providers (as opposed to just being reimbursed for treating TRICARE beneficiaries) are subcontractors within the meaning of federal affirmative action laws and regulations. Shortly thereafter, the OFCCP issued a Directive outlining its approach to determining whether health care providers are covered subcontractors. The NDAA negates the effect of the ALJ decision and the OFCCP's Directive.
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