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OFCCP Issues Final Rule Exempting TRICARE Providers From OFCCP Compliance Authority

The final rule also established a national interest exemption from Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 for health care providers with agreements to furnish medical services and supplies to individuals participating in TRICARE. The national interest exemption acts as a second layer of protection for TRICARE providers. Even if the final rule was later overturned, the OFCCP, through the exemption, determined that special circumstances exempt TRICARE providers from compliance as it would improve uniformed service members’ and veterans’ access to medical care, more efficiently allocate OFCCP’s limited resources for enforcement activities, and provide greater uniformity, certainty, and notice for health care providers participating in TRICARE. 

Despite the final rule and national interest exemption, TRICARE providers remain subject to all other federal, state, and local laws prohibiting discrimination and providing for equal employment opportunity

Under the final rule, the OFCCP will retain authority over health care providers participating in TRICARE if they hold a separate covered federal contract or subcontract that is not for providing health care services under TRICARE. Health care providers with more than one federal contract are encouraged to consult with legal counsel to confirm any ongoing federal affirmative action requirements.

This arrangement is not unexpected for health care providers participating in TRICARE. The OFCCP proposed the preliminary version of this rule in November 2019. There has also been internal moratorium in place prohibiting the investigation of TRICARE providers since 2014. This final rule memorializes the preliminary rule and internal memoranda into law. The final rule will become fully effective 60 days after it is published in the federal register, which is currently scheduled for August 31, 2020.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 189


About this Author

Lindsey M. Hogan Labor & Employment Attorney Faegre Drinker Biddle & Reath Chicago, IL

Lindsey Hogan provides sophisticated counsel to employers and businesses during complex employment disputes, commercial litigation and investigations. Lindsey manages case execution from start to finish with an uncompromising focus on the client’s goals and best interests. She represents employers in jurisdictions throughout the country.

Employment Litigation 

Lindsey serves as litigation counsel for employers facing class and collective actions stemming from wage and hour disputes under the Fair Labor Standards Act, the Illinois Minimum Wage Law, the Illinois Wage Payment...

Grayson F. Harbour Labor & Employment Faegre Drinker Biddle & Reath Indianapolis, IN

Grayson Harbour assists companies as they navigate matters related to labor and employment. He is particularly interested in the intersection of technology, privacy and law as applied to the modern workforce. 

Past Experience

Grayson has a host of experience in cybersecurity, including conducting cybersecurity compliance assessments, researching cybersecurity policy issues and managing engagements-focused preventative measures using HIPAA, NIST 800-53, NIST 800-171, and other security frameworks. As a legal intern with Rolls-Royce North America, Grayson made recommendations for company-wide privacy and cybersecurity training, developed and delivered presentations on online privacy compliance, and researched and wrote memoranda on litigation, contracts, cybersecurity, employment and international law issues.

Grayson worked as the student policy analyst for the Center of Applied Cybersecurity Research at Indiana University from 2016 to 2019. His research focused on the cybersecurity needs of the National Science Foundation’s large research facilities.  

Grayson also worked as a summer associate with Christovich & Kearney in New Orleans, where he supported in researching and analyzing a wide variety of legal issues, including the support of cases heard in both civil and common law jurisdictions. 

Personal Interests

Grayson is a documentary film enthusiast. He previously worked at a documentary production company and presented at his alma mater’s documentary film showcase. A director himself, Grayson won the best student short film at the Hollywood Reel Independent Film Festival in 2015. He also screened a documentary short at the same festival in 2016. 

Grayson grew up in Houston, Texas and was blessed with parents that took him to the Johnson Space Center a few too many times. He is fascinated with the history of manned spaceflight. In his free time, Grayson is committed to discovering the best breakfast food Indiana has to offer.