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Is Your Organization Exempted From OFCCP Jurisdiction Under the VA MISSION Act?

The U.S. Department of Veterans Affairs (VA) Maintaining Internal Systems and Strengthening Integrated Outside Networks (MISSION) Act of 2018’s primary objectives are to provide veterans with greater access to health care in VA facilities and communities, to expand benefits for caregivers, and to improve the VA’s ability to retain and recruit the best medical providers. In Section 107 of the VA MISSION Act, Congress exempted federal contractors who enter into agreements with the VA under 38 U.S.C. § 1703A and/or 38 U.S.C. § 1745 from the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP).

This exemption operates in the same manner as the TRICARE moratorium established in OFCCP Directive 2014-01. Under the moratorium, TRICARE subcontractors are exempted from affirmative action obligations. On July 2, 2020, OFCCP released the final rule on “Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers,” which made the TRICARE moratorium permanent. While the final rule focuses on the TRICARE moratorium, OFCCP also took the opportunity to address the exemption under the VA MISSION Act. Specifically, OFCCP discusses Veterans Care Agreements (VCAs) under 38 U.S.C. §1703A. VCAs provide the VA with “the authority to enter into … arrangements to address gaps in care that may arise in hospital care, medical services, and/or extended care services.” Despite the statutory language of the VA MISSION Act, in the final rule, OFCCP takes the position that VCAs are under its jurisdiction because 38 U.S.C. § 1703A(i)(2)(B)(ii) states that VCAs are subject to “all laws that protect against employment discrimination or that otherwise ensure equal employment opportunities.” Therefore, according to OFCCP, “the statutory language of the 2018 VA MISSION Act, standing alone, does not serve to remove these agreements from OFCCP’s authority.”

OFCCP also took the time to address VA Community Care Networks (CCNs).The agency describes a CCN as a “third-party network manager that is a prime contractor with VA.”OFCCP distinguishes TRICARE providers from CCN providers because “the CCN is a contract to create a network of providers and coordinate the provision of care, but is not a contract for the provision of care itself.”Because CCNs are generally “competitively bid [f]ederal contacts” and the VA MISSION Act does not contain language defining CCNs as noncontractual, OFCCP did not exempt CCNs from its jurisdiction.

With the release of the final rule, federal contractors can no longer solely rely on Section 107 of the VA MISSION Act to claim that they do not fall under OFCCP jurisdiction. Instead, federal contractors may want to also examine other factors besides just the statutory language of the VA MISSION Act to determine OFCCP jurisdiction.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 203
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About this Author

T. Scott Kelly, Defense Contracting Attorney, Shareholder, Ogletree Deakins Law firm
Shareholder

Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.  He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  Mr. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions...

205-986-1024
Shareholder

For 20 years, Jay has advised companies on a variety of workplace issues including preparing and enforcing non-competition agreements, dealing with complex employee leave issues, defending employment discrimination lawsuits, and providing advice on difficult workplace issues.  Jay has written extensively on Alabama’s newly amended restrictive covenant law and has enforced and defended restrictive covenant cases in state and federal courts.  Jay provides ongoing support to clients who are managing long-term, complicated leave and accommodation issues by helping them to...

205-986-1021
Tina Lam Associate Birmingham Employment
Associate

Tina earned her J.D. and M.B.A. in May 2012 from Samford University, where she served as an Associate Editor and later as an Articles Editor for the American Journal of Trial Advocacy. She also served as Justice of Phi Alpha Delta, President of Women in Law, Associate Director of Cumberland’s Trial Advocacy Board, Lieutenant Governor of Alabama for Regional Affairs for the American Bar Association Student Division, and member of the Career Development Advisory Board. Tina also interned for the Honorable Elisabeth A. French of the Jefferson County Circuit Court.

After law...

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