Senate Clears Defense Bill Extending National Guard Reemployment Rights, Clarifies that Certain TRICARE Health Care Entities Are Not Subject to OFCCP Requirements

On December 1, 2011 the Senate passed 93-7 the National Defense Authorization bill that extends reemployment rights to members of the National Guard mobilized for domestic emergencies, and stipulates that certain health care providers under the TRICARE network are not to be considered subcontractors subject to Office of Federal Contract Compliance Programs (OFCCP) requirements.

USERRA Rights

Introduced by Sen. Roy Blunt (R-MO), Amendment 1133 to the National Defense Authorization Act for Fiscal Year 2012 (S. 1867) would amend sections of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides certain employment and reemployment rights to returning service members, and prohibits employers from taking adverse actions against them. Specifically, the amendment would extend these rights to members of the National Guard who have been called up to carry out homeland security missions in the United States. Current law does not afford National Guard members serving domestically the same USERRA protections it does for those serving overseas. The amendment revises section 4312 of USERRA to include full time National Guardsmen called up for federal homeland security missions for possible exemption from the Act’s 5-year limit on service. This amendment had been introduced as a standalone bill – the National Guard Employment Protection Act (H.R. 1811, S. 1823) – in both the House and Senate this year, but had failed to advance.

TRICARE

Another provision in the Senate bill would prevent current efforts to extend federal affirmative action obligations to hospitals that participate in or accept reimbursement through the TRICARE program. TRICARE is the Department of Defense’s health care program for active duty and retired military and their families. As previously discussed, the OFCCP has taken the position – as articulated in an agency directive issued last year – that providers participating in TRICARE are government subcontractors subject to various affirmative action and equal employment opportunity compliance requirements enforced by OFCCP.

To counter this position, Section 702 of the defense bill includes the following provision that explicitly excludes TRICARE institutional, professional, and pharmacy network providers from being considered subcontractors:

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 networks of providers, including institutional, professional, and pharmacy. Network providers under such provider network agreements are not considered subcontractors for purposes of the Federal Acquisition Regulation or any other law.

Notably, the House’s version of the defense authorization bill (H.R. 1540) does not contain an analogous exclusion. The House and Senate versions of the bill must therefore be reconciled.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.