Legal Alert Update: Will Congress Exempt Health Care Providers from Affirmative Action Obligations?

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On December 14, 2011, the House passed H.R. 1540, the National Defense Authorization Act (NDAA), which included language with respect to exempting TRICARE providers from OFCCP jurisdiction.

In our previous legal alert, we informed you that the Senate passed the NDAA on December 1, 2011, which exempts TRICARE network providers from the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP). On December 13, 2011, a conference report was passed to reconcile the differences between the House and Senate versions; the conference report contained the following language:

In establishing rates and procedures for reimbursement of providers and other administrative requirements, including those contained in provider network agreements, the Secretary shall to the extent practicable maintain adequate network of providers, including institutional, professional, and pharmacy. For the purpose of determining whether network providers under such 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.

Please see full alert below for more information.

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