HERE’S THE RACK-UP AFTER THE UPMC CASE DECISION
I was going to write about the provocative way OFCCP currently selects contractors and contractor establishments for audit, but the tenor and volume of calls and e-mail traffic to my desk in the last two weeks from health care clients and industry representatives have persuaded me I need to wade NOW into the health care-OFCCP thicket. Apart from straightening out the welter of confusion regarding OFCCP’s coverage of the health care industry, I discuss below how to value hospital contracts (which is very tricky, as it turns out). I also discuss what kinds of federal contracts are not covered and do not subject companies to OFCCP’s jurisdiction if the companies receive these kinds of federal monies. And, along the way, I explain UPMC’s four failed defenses to OFCCP jurisdiction over it and why all four lost arguments were entirely predictable (as I first predicted in 2006). There is also a lot of information in this posting about government contracting issues and strategies.
First, health care institutions were OFCCP’s number one audit target in the most recent (March 27, 2013) round of OFCCP CSALs (“Corporate Scheduling Announcement Letters”…these are the so-called “Notice Letters” just giving a company a “heads-up” warning that OFCCP may soon be auditing them). Moreover, dozens of major hospitals are already receiving OFCCP audit Scheduling Letters setting the recipient hospitals down for immediate audit. (By the way, ignore all the OFCCP Blogs which have it absolutely wrong when they write that OFCCP is conducting “routine, random” audit selections. OFCCP got rid of “routine, random” selections of contractors for audit two years ago. OFCCP now targets industries…but that was the story I was going to write, with its numerous additional wrinkles and sub-topics, until OFCCP’s health care audit barrage knocked that audit story to a later column. Ah, so little space, so much to write about with this active Administration.) …
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
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