The Bureau of National Affairs has recently obtained and published a directive signed on December 16, 2010, by Patricia Shiu, Director of the Office of Federal Contract Compliance Programs. The Directive, entitled “Coverage of Health Care Providers and Insurers,” follows three decisions addressing OFCCP jurisdiction over health care providers. The Directive has not yet been published by the OFCCP.

Summary of Directive

The Directive sets forth and explains the rationale for jurisdiction over health care providers as determined in OFCCP v. UPMC Braddock and OFCCP v. Florida Hospital of Orlando: health care providers that agree to provide medical goods or services in furtherance of a prime contractor’s agreement with the federal government are federal subcontractors and subject to OFCCP’s jurisdiction (even if nothing in their contracts so states). The OFCCP says that health care entities providing medical services through an HMO agreement with the government or agreeing to provide medical services through a TRICARE network are federal subcontractors. On the other hand, following OFCCP v. Bridgeport Hospital, the OFCCP reiterates that simply being reimbursed by an insurer, where the insurer has not contracted to provide medical services, will not render a health care provider a federal subcontractor.