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H.R. 3633, PROTECTING HEALTH 

CARE PROVIDERS FROM INCREASED 

ADMINISTRATIVE BURDENS ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, MARCH 13, 2014 

Serial No. 113–51 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

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COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

George Miller, California, 

Senior Democratic Member 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Mark Pocan, Wisconsin 

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C O N T E N T S 

Page 

Hearing held on March 13, 2014 ............................................................................ 1 

Statement of Members: 

Courtney, Hon. Joe, Ranking Member, Subcommittee on Workforce Protections ........................................................................................................... 8 

Prepared statement of ............................................................................... 8 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 7 

Statement of Witnesses: 

Carrato, Thomas, President, Health Net Federal Services, Arlington, VA . 19 

Prepared statement of ............................................................................... 21 

Goldstein, David, Shareholder, Littler Mendelson P.C., Minneapolis, MN . 34 

Prepared statement of ............................................................................... 36 

Graves, Fatima, G., Vice President for Education and Employment, National Women’s Law Center, Washington, DC ........................................... 27 

Prepared statement of ............................................................................... 29 

Kirschner, Curt, Partner, Jones Day, The American Hospital Association, 

San Francisco, CA ......................................................................................... 10 

Prepared statement of ............................................................................... 13 

Additional Submissions: 

Mr. Courtney: 

United States Government Accountability Office (GAO), report 

TRICARE Multiyear Surveys Indicated Problems with Access to 

Care for Nonenrolled Beneficiaries ...................................................... 50 

Ms. Graves: 

Prepared statement of ............................................................................... 158 

Chairman Walberg: 

Letter dated February 3, 2014, from Parkinson, Mark, President 

and CEO, American Health Care Association (AHCA) ...................... 44 

Letter dated March 11, 2014, from Perez, Thomas, E., Secretary 

of Labor ................................................................................................... 3 

Letter dated December 6, 2013, from Pollack, Rick, Executive Vice 

President, American Hospital Association ........................................... 42 

Letter dated April 3, 2013, from Waligora, Larry, Chairman, Association of Federal Health Organizations .................................................. 166 

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H.R. 3633, PROTECTING HEALTH 

CARE PROVIDERS FROM INCREASED 

ADMINISTRATIVE BURDENS ACT 

Thursday, March 13, 2014 

House of Representatives, 

Subcommittee on Workforce Protections, 

Committee on Education and the Workforce, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:08 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Kline, DesJarlais, Rokita, 

Bucshon, Hudson, Courtney, Fudge, and Pocan. 

Staff present: Janelle Belland, Coalitions and Members Services 

Coordinator; Molly Conway, Professional Staff Member; Ed Gilroy, 

Director of Workforce Policy; Christie Herman, Professional Staff 

Member; Benjamin Hoog, Senior Legislative Assistant; Marvin 

Kaplan, Workforce Policy Counsel; Nancy Locke, Chief Clerk; 

James Martin, Professional Staff Member; Daniel Murner, Press 

Assistant; Brian Newell, Deputy Communications Director; 

Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy 

Clerk; Alexa Turner, Legislative Assistant; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority Staff Director; Melissa 

Greenberg, Minority Staff Assistant; Eunice Ikene, Minority Staff 

Assistant; Brian Kennedy, Minority Senior Counsel; Brian Levin, 

Minority Deputy Press Secretary/New Media Coordinator; Richard 

Miller, Minority Senior Labor Policy Advisor; Megan O’Reilly, Minority General Counsel; Michael Zola, Minority Deputy Staff Director; and Mark Zuckerman, Minority Senior Economic Advisor. 

Chairman WALBERG. A quorum being present, the subcommittee 

will come to order. Good morning. I would like to welcome our 

guests and thank our witnesses for being with us as we discuss 

H.R. 3633, the Protect Health Care Providers from Increased Administrative Burdens Act. 

The bill is a result of the Committee’s continued oversight of the 

Department of Labor, which shed light on an unprecedented effort 

by the Office of Federal Contract Compliance Programs (OFCCP) 

to exert jurisdiction over health care providers who participate in 

certain federal programs. H.R. 3633 would rein in this executive 

overreach, prevent an administrative nightmare for health care 

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providers, and help some of the nation’s most vulnerable citizens 

maintain access to care. 

OFCCP is responsible for enforcing federal nondiscrimination 

and affirmative action requirements on federal contractors. Today’s 

discussion isn’t about whether we support the important policies 

that the agency enforces. No one should be denied because of 

their—denied employment because of their gender, their disability, 

race, or religion. All employers have a moral and legal obligation 

to provide a work environment free of discrimination, including 

those who receive taxpayer dollars. The goal of our oversight and 

the legislation is to ensure the agency does its job effectively and 

responsibly. 

In the past, we have encouraged OFCCP to streamline the myriad of requirements federal contractors must follow. As one witness 

from St. Jude Children’s Hospital testified, the current regulatory 

scheme is, quote—‘‘all stick and no carrot,’’ end quote. Simplifying 

the process would strengthen the rights of workers by making it 

easier for employers to understand their responsibilities and comply with the law. 

Workers, employers, and taxpayers would be better served if 

OFCCP spent its time improving the current regulatory structure 

rather than unilaterally imposing a broken system on more workplaces. Yet that is precisely what the agency is trying to do, by exerting jurisdiction over hospitals and other health care providers 

who see patients covered by various federal programs, such as 

TRICARE and the Federal Employee Health Benefits Program. 

As a result of the bipartisan concerns addressed in this legislation, the Department of Labor proposed, earlier this week, a limited delay of its regulatory overreach. In a letter to the Committee 

leadership, Secretary Perez promised a five year moratorium of 

new OFCCP enforcement activities against TRICARE providers. 

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Chairman WALBERG. Without objection, this letter will be included in the hearing record. Hearing no objection, it will be included. 

While we welcome this development, it is ironic the Secretary’s 

letter refers to a law that includes specific language stating health 

care providers in TRICARE are not subcontractors. This law was 

enacted after the department took action against a Florida hospital. Regardless of any statutory ambiguity the administration 

thinks exists, the will of Congress is clear: OFCCP interference in 

TRICARE must stop. 

While I appreciate the Secretary’s response and attempt to address it with a workable solution—and I say that sincerely and 

have appreciated the conversations with Secretary Perez—I truly 

believe the Secretary’s letter may have convinced some to withhold 

and even withdraw early support from the bill. 

But I have asked my colleagues, aren’t you concerned about what 

happens five years from now? Does this letter offer TRICARE providers the long-term certainty they need? What about those who 

serve seniors through Medicare, or those who serve federal employees, both noticeably absent from this moratorium. If OFCCP intends to regulate TRICARE providers, it can just as easily impose 

its will on other federal programs, as well. 

At a recent hearing, the senior Democratic member of the subcommittee commended a witness for, and I quote—‘‘raising some 

important issues about the impact on programs that help our 

TRICARE military retirees and active duty folks in terms of making sure that we maintain access for hospital services,’’ end quote. 

Our colleague then expressed the desire to, quote—‘‘work out 

some of the kinks revealed during the hearing.’’ And I must admit 

that my colleague has attempted to do that. But I am honestly disappointed to say the kinks we discussed in December still exist, despite the Secretary’s letter. 

If the Secretary has accomplished anything he has signaled to 

our TRICARE providers the day of reckoning is only delayed. Any 

sensible provider will use these few years to decide whether it is 

in their best interest to continue operating in a TRICARE network. 

Many may decide the administrative burden looming on the horizon is simply too much to bear. 

As a result, veterans, servicemembers, and their families will 

lose access to care. Let me repeat that. As a result of the department’s policy, veterans, servicemembers, and their families will 

lose access to care; maybe not now, but soon. 

As policymakers, we shouldn’t accept political half-measures that 

merely kick the can down the road. The American people expect 

better. 

However, it is my hope we can continue working together, and 

we will, to provide a lasting solution to this problem not just for 

our active and retired military service personnel, but also for our 

seniors and the men and women who serve in the federal workforce. H.R. 3633 provides the long-term solution they, and their 

families, deserve. 

I will now yield to our distinguished colleague, the senior Democratic member of the subcommittee, Representative Courtney, for 

his opening remarks. 

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[The statement of Chairman Walberg follows:] 

Good morning. I’d like to welcome our guests and thank our witnesses for being 

with us as we discuss H.R. 3633, the Protecting Health Care Providers from Increased Administrative Burdens Act. 

The bill is the result of the committee’s continued oversight of the Department 

of Labor, which shed light on an unprecedented effort by the Office of Federal Contract Compliance Programs to assert jurisdiction over health care providers who 

participate in certain federal programs. H.R. 3633 would rein in this executive overreach, prevent an administrative nightmare for health care providers, and help 

some of the nation’s most vulnerable citizens maintain access to care. 

OFCCP is responsible for enforcing federal nondiscrimination and affirmative action requirements on federal contractors. Today’s discussion isn’t about whether we 

support the important policies the agency enforces. No one should be denied employment because of their gender, disability, race, or religion. All employers have a 

moral and legal obligation to provide a work environment free of discrimination, including those who receive taxpayer dollars. 

The goal of our oversight and the legislation is to ensure the agency does its job 

effectively and responsibly. In the past we’ve encouraged OFCCP to streamline the 

myriad requirements federal contractors must follow. As one witness from St. Jude 

Children’s Hospital testified, the current regulatory scheme is ‘‘all stick and no carrot.’’ Simplifying the process would strengthen the rights of workers by making it 

easier for employers to understand their responsibilities and comply with the law. 

Workers, employers, and taxpayers would be better served if OFCCP spent its 

time improving the current regulatory structure, rather than unilaterally imposing 

a broken system on more workplaces. Yet that is precisely what the agency is trying 

to do by asserting jurisdiction over hospitals and other health care providers who 

see patients covered by various federal programs, such as TRICARE and the Federal Employee Health Benefits Program. 

As a result of the bipartisan concerns addressed in this legislation, the Department of Labor announced earlier this week a limited delay of its misguided approach. In a letter to the committee, Secretary Perez promised a five year delay of 

new OFCCP enforcement activities against TRICARE providers. 

Without objection, the letter will be included in the hearing record. 

While we welcome this development, it’s ironic the secretary’s letter refers to a 

law that includes specific language stating health care providers in TRICARE are 

not subcontractors. This law was enacted after the department took action against 

a Florida hospital. Regardless of any statutory ambiguity the administration thinks 

exists, the will of Congress is clear: OFCCP interference in TRICARE must stop. 

The secretary’s letter may have convinced some to withhold and even withdraw 

earlier support for the bill. But I have to ask my colleagues: Aren’t you concerned 

about what happens five years from now? Does this letter offer TRICARE providers 

the longterm certainty they need? What about those who serve seniors through 

Medicare or those who serve federal employees, both noticeably absent from this socalled moratorium? If OFCCP intends to regulate TRICARE providers, it can just 

as easily impose its will on other federal programs as well. And can someone please 

explain how a letter from one administration can control the actions of another? 

At a recent hearing, the senior Democratic member of the subcommittee commended a witness for ‘‘[raising] some important issues about the impact on programs that help our TRICARE military retirees and active duty folks, in terms of 

making sure that we maintain access for hospital services.’’ Our colleague then expressed a desire to ‘‘work out some of the kinks’’ revealed during the hearing. I am 

disappointed to say the kinks we discussed in December still exist, despite the secretary’s letter. 

If the secretary has accomplished anything, he has signaled to our TRICARE providers the day of reckoning is only delayed. Any sensible provider will use these few 

years to decide whether it’s in their best interest to continue operating in a 

TRICARE network. Many may decide the administrative burden looming on the horizon is simply too much to bear. As a result, veterans, service members, and their 

families will lose access to care. Let me repeat that: As a result of the department’s 

policy, veterans, service members, and their families will lose access to care. Maybe 

not now, but soon. 

As policymakers, we shouldn’t accept political half-measures that merely kick the 

can down the road. The American people expect better. I am disappointed my friend 

and colleague, Representative Courtney, is no longer a cosponsor of this important 

legislation. However, it is my hope we continue working together to provide a lasting solution to this problem, not just for our active and retired military service personnel, but also for our seniors, and the men and women who serve in the federal 

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workforce. H.R. 3633 provides the long-term solution they and their families deserve. 

I will now yield to our distinguished colleague, the senior Democratic member of 

the subcommittee, Representative Courtney, for his opening remarks. 

Mr. COURTNEY. Well, thank you, Mr. Chairman. And I thank you 

for your kind words. I have nowhere to go but downhill after those 

nice compliments. And I would just say that, you know, to me this 

is a situation of whether you want to look at it as a glass half full 

or half empty in terms of the movement that has occurred from the 

Department of Labor since the last hearing that took place. 

I think it is important, though, to sort of set the context for what 

happened in 2011, when the NDAA was enacted, with language 

which called for the department to withhold enforcement through 

OFCCP. Mr. Kline and I were conferees on that measure, and it 

was in response to real-life concrete issues out there with 

TRICARE access for veterans. Again, I have the honor of representing the largest military installation in New England, with 

the Groton sub base 8,000 sailors. We hold veterans in active duty 

council meetings that my office organizes on a regular basis. And 

it has been a chronic issue in terms of finding providers who accept 

TRICARE coverage and, frankly, has absolutely nothing to do with 

OFCCP. 

The GAO has been studying this issue for years. And they, in 

fact, just issued an updated report in 2013, where they talked 

about provider acceptance for TRICARE where, again, it is lower 

than Medicare, far lower than Medicare, and lower than Medicaid 

in some instances, which is saying something in terms of the aversion that—whether it is—well, hospitals, by and large, because of 

their 501(c)(3) status, almost have to accept patients. But frankly, 

the provider community in an outpatient basis, it is a real problem. 

And I have talked to everyone from specialists to dentists, primary 

care docs who, in many instances, just provide free care because 

they just want to avoid the hassle of dealing with TRICARE. 

And, again, it has absolutely nothing to do with OFCCP. However, in the context of that chronic finding that has been going on 

here at the Armed Services Committee, in 2011 the Committee, 

through conference, included language which again said, you know, 

we are not gonna try and create another obstacle or another barrier for providers in TRICARE. And the language was enacted. By 

the way, you have to give credit. This was a Senate initiative, but 

the House did accept, in conference, the language. We acceded to 

that language. 

So fast forward, we had the hearing recently. And it is clear that 

the Florida case and other actions by the department, the department really was not reading the language in a way that I think 

was clear congressional intent. There was ‘‘may’’ language instead 

of ‘‘shall’’ language; there was some disparity they were pointing to 

in terms of report language that was attached to the NDAA. And 

the agency was still sort of chugging forward. 

We also, though, had an intervening event. Which is, we have a 

new Secretary of Labor, who was just confirmed in late December, 

who, in my opinion has really responded to the oversight function 

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of this subcommittee, as the Chairman and I discussed the other 

day. 

They issued new rules on OSHA for the grain elevator issue that 

this subcommittee raised, and pulled back the department in terms 

of that complaint which we heard here. And I believe the letter 

which he submitted a couple days ago is, in fact, exactly the same 

type of approach that Secretary Perez has signaled in the short 

time that he has been in office. Again, the letter clearly states that 

they will issue a five year moratorium. Any enforcement actions or 

compliance actions will be suspended. And he has personally told 

me that the Florida case will be withdrawn. And I want to make 

sure that is absolutely crystal clear on the record. 

Again, this is a letter. This is not a stipulated judgment that, you 

know, is entered in front of a judge. But there is no question the 

good faith that the Secretary has exercised in the last couple of 

months—and frankly, I think it is time that, you know, he is a 

former legislator, by the way—he really respects the legislative 

branch. And he worked for Senator Kennedy. He has made it clear 

that he does not regard us as the enemy or as a, you know, entity 

that should just be sort of overlooked. And I frankly think we 

should approach this as a glass half-full. That, in fact, five years 

is a long time in terms of this administration will be long gone in 

five years. 

There will be who knows in the White House, in the Secretary 

of Labors. It is without prejudice, everybody retains all their rights 

in terms of whatever sort of view of the NDAA language that is on 

the books. And that we should, frankly, continue to engage him on 

whether or not there are issues regarding Medicare or FEHBP. 

This is not a person who is taking the attitude that, you know, he 

will not listen or talk or discuss with the Congress. 

So based on that, I am willing to reward good behavior. And I 

am willing to step back from this legislation and embrace the good 

faith that he has exercised. And also, at the same time, recognize 

that the OFCCP has done great work in terms of opening up opportunities for women, for minorities and for disabled veterans, which 

I am sure we are gonna hear from our witness today about the fact 

that is part of their charge—is not only to try and create obstacles. 

I mean, it is the complete opposite. If they have actually tried to 

create employment opportunities for disabled veterans and veterans and the recent initiative—which, again, is gonna try and sort 

of push contractors to get that unemployment rate for veterans 

down—is, in my opinion, something that we want federal taxpayer 

money to be accomplishing. 

So in any case, I want to thank the Chairman again. I do not 

regard, you know, the efforts of this subcommittee to be sort of a 

partisan, you know, witch hunt kind of thing. It was a sincere effort to move forward and try and fix a problem. In my opinion, the 

Secretary has met us halfway and I think we should, you know, 

take a bow, or you should take a bow, for your work on this issue. 

And that we should continue to build on that momentum to try 

and, again, get smarter policy that accomplishes the goals that we 

all want. 

And with that, I yield back. 

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10 

Chairman WALBERG. I thank the gentleman. And I would concur 

that this subcommittee, our effort will be to move policy forward 

in the right direction. And part of that is pushing, where necessary, 

to get further. But also a reality of what is possible. And for that 

reason, we have the hearing today to give us more information. 

Pursuant to committee rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow statements, questions for the record 

and other extraneous material referenced during the hearing to be 

submitted in the official hearing record. 

It is now my pleasure to introduce our distinguished witnesses. 

Mr. Curt Kirschner is a partner at Jones Day in San Francisco, 

California. What is the weather out there? Never mind. And is testifying on behalf of the American Hospital Association. 

Mr. Thomas Carrato—did I get that close? 

Mr. CARRATO. Yes, sir. 

Chairman WALBERG. Is president of Health Net Federal Services 

in Arlington, Virginia. Mr. Carrato retired as a rear admiral in the 

Commissioned Corps of the United States Public Health Service. 

Ms. Fatima Goss Graves serves as the vice president for education 

and employment at the National Women’s Law Center in Washington, D.C. Welcome. Mr. David Goldstein is a shareholder with 

the firm Littler Mendelson in—it is too cold to speak—Minneapolis, 

Minnesota. Mr. Chairman, help me with that Minnesota stuff. 

Mr. KLINE. [Off mike.] 

Chairman WALBERG. Thank you. Before I recognize each of you 

to provide your testimony, let me briefly explain our lighting system. And I think I will be brief on that. It is like a traffic light, 

as you know. You will have five minutes to give your testimony. 

We will try to keep as close to that as possible, and you will help 

me if you will. When the light turns yellow you have a minute left. 

When it is red, wrap up as quickly as possible. We will hold that 

policy for our subcommittee members, as well, under their questioning. 

That being said, Mr. Kirschner we welcome you and recognize 

you for five minutes of testimony. 

STATEMENT OF MR. CURT KIRSCHNER, PARTNER, JONES DAY, 

SAN FRANCISCO, CA (TESTIFYING ON BEHALF OF THE 

AMERICAN HOSPITAL ASSOCIATION) 

Mr. KIRSCHNER. Good morning, Chairman Walberg, Ranking 

Member Courtney, and distinguished members of the subcommittee. My name is Curt Kirschner, and I am a partner in the 

Jones Day law firm. Today, I am testifying on behalf of the American Hospital Association in support of H.R. 3633, the Protecting 

Health Care Providers from Increased Administrative Burdens Act. 

A more thorough discussion of the AHA’s support of the bill is included in written testimony submitted to the subcommittee, which 

I request be introduced into the record. 

In my oral comments today, I wanted to explain why, from the 

AHA’s perspective, H.R. 3633 remains an important bill to be introduced and why, in our view, the DOL’s proposal is insufficient. 

H.R. 3633 will clarify that hospitals are not subject to the OFCCP’s 

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jurisdiction solely as a result of their participation in Medicare, 

TRICARE, or the Federal Employees Health Benefit Program, also 

known as FEHBP. 

Previously, OFCCP has acknowledged in its own internal directives that it does not have jurisdiction over hospitals that treat 

beneficiaries of these federally-funded plans. More recently, however, the OFCCP rescinded those directives and sought to expand 

its jurisdiction over health care providers based solely on their participation in these programs. I had the opportunity to appear before 

the subcommittee last December, where I offered testimony demonstrating that the OFCCP’s assertion of jurisdiction over hospital 

providers in these circumstances is inconsistent with both federal 

law and regulations. 

Moreover, the OFCCP has not given any reasonable explanation 

for its shifting position. The only recent relevant legal change is 

the one cited by the Chairman, which is Congress’ adoption, in 

2011, of section 715 of the National Defense Authorization Act, 

which explicitly sought to preclude OFCCP jurisdiction over hospitals participating in TRICARE. Despite this statute, the OFCCP 

continues to assert jurisdiction over TRICARE providers. And that 

is true, despite the fact that the DOL has now said there may be 

a moratorium on enforcement. They are still asserting jurisdiction 

over the providers. 

The agency’s continuing attempts to circumvent the NDAA confirm the need for legislation placing clear limits on the OFCCP’s 

jurisdiction. The OFCCP proposes an alternative to H.R. 3633, 

which is a vaguely-defined, case by case basis to determine jurisdiction. As best as the AHA can tell, the OFCCP, under this approach, 

attempts to distinguish between hospitals that participate in feefor-service plans from those that participate in managed care plans 

under these federally-funded programs. From the perspective of 

America’s hospitals, this is a distinction without a difference. 

Fee-for-service plans and managed care plans are simply different mechanisms for reimbursing health care providers for the 

care that they provide to their patients; in this case, 

servicemembers, federal employees, and their families. Under any 

of these plans, the role of the hospital is essentially the same. That 

is, to provide quality care for the plan participant. The OFCCP has 

provided no guidance regarding which of the nearly 300 FEHBP 

plans, and more than 10 TRICARE plan options, contain sufficient 

elements of managed care such that a hospital participating in that 

plan would be deemed to be a federal subcontractor. 

Already, Florida Hospital of Orlando and three hospitals affiliated with the University of Pittsburgh Medical Center have spent 

years in litigation after refusing to concede to the OFCCP’s jurisdiction. The AHA urges Congress to clarify the law so that hospitals are not forced to choose between submitting to the OFCCP’s 

burdensome regulations on the one hand, or spending years bogged 

down in costly legal proceedings on the other. The OFCCP’s expansionist agenda is forcing hospitals to make another difficult choice: 

whether to provide care to family servicemembers and federal employees at all. 

Rather than risk a jurisdictional claim from the OFCCP, some 

hospitals may simply decide to opt out of federally-funded health 

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plans, further straining the available provider networks. The 

DOL’s proposal contained in this March 11 letter is not a solution, 

in our view. The proposal does not address at all the role of 

FEHBP and Medicare programs. Even for TRICARE, the letter assumes federal contractor status of hospital providers, despite 

NDAA 715, and merely delays the enforcement of the OFCCP’s ambiguous standards, potentially asserting jurisdiction over conduct 

that occurs during that five year period. 

In sum, at a time when lowering health care costs is one of the 

nation’s top policy concerns, H.R. 3633 would clarify, once and for 

all, that participation in a federally-funded health benefit program 

does not subject hospitals to the OFCCP’s jurisdiction. The AHA 

urges Congress to pass this important bill. 

Thank you for the opportunity to provide these comments to the 

subcommittee. 

[The statement of Mr. Kirschner follows:] 

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Chairman WALBERG. Thank you. 

And now we turn to Mr. Carrato for your five minutes of testimony. Thank you. 

STATEMENT OF MR. THOMAS CARRATO, PRESIDENT, HEALTH 

NET FEDERAL SERVICES, ARLINGTON, VA 

Mr. CARRATO. Great. Chairman Walberg, Ranking Member 

Courtney, distinguished members of the Committee, thank you for 

the opportunity to testify on efforts to expand the jurisdiction of 

the Office of Federal Contract Compliance Programs. Classifying 

TRICARE network providers as federal subcontractors poses significant issues for the TRICARE program, our network providers, 

and the beneficiaries we jointly serve. Appreciate the opportunity 

to address this issue today. 

Health Net Federal Services provides physical and behavioral 

health care services to the Department of Defense and the Department of Veterans Affairs, among others. These programs include 

TRICARE, the DOD’s Military Family Life Counseling Program, 

and the VA’s patient-centered Community Care Program. We have 

watched the legal action involving OFCCP with great concern. I 

don’t want to focus on legal arguments or litigation. The issue I 

want to address is how will OFCCP’s position affect TRICARE 

beneficiaries and our ability to provide military members and their 

families access to high-quality providers, especially in locations far 

from military treatment facilities. Our primary concern is not a 

legal point or an argument about the limits of an agency’s jurisdiction, but how can we best serve our customer and our beneficiaries. 

OFCCP has asserted that providers of health care services in our 

managed care networks are federal subcontractors. We firmly believe that they are not subcontractors, and that any attempt to 

classify them as such will have significant negative impact on the 

ability of TRICARE beneficiaries to obtain high-quality accessible 

medical care. The risk for TRICARE is twofold. The first is that we 

will have difficulty getting providers to join our networks. Providers sign contracts with us and not the federal government. They 

may not be willing or able to shoulder the additional burdens of 

OFCCP compliance. 

The second risk is that if OFCCP is successful, instead of assuming the burden of compliance, providers will leave our networks. 

There are 55 sole community hospitals and 151 critical access hospitals in our TRICARE network. If any of those left it would leave 

a significant gap in access that would impact military families and 

the military member. We require all of our providers, as part of 

their contract, to adhere to all state, federal and local laws, including any applicable affirmative action laws. We believe expanding 

OFCCP’s jurisdiction over TRICARE will make it more difficult to 

build and retain provider networks. 

Ultimately, this will mean fewer options for the military members, families and retirees who rely on TRICARE, and will significantly limit their ability to obtain the level of care they need from 

a provider of their choice. Health Net believes that to ensure military beneficiaries have ready access to needed health care services 

providers in TRICARE networks must be exempted from the 

OFCCP regulation. The uncertainty that currently exists in the law 

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continues to negatively affect our ability to provide high-quality, 

accessible health care for millions of our nation’s most deserving 

citizens, the men and women of our uniform services, and their 

families. 

Thank you for your time. I am prepared to answer any questions 

you may have. 

[The statement of Mr. Carrato follows:] 

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Chairman WALBERG. Thank you. 

Ms. Graves, we recognize you for your five minutes of testimony. 

Thank you for being here. 

STATEMENT OF MS. FATIMA GOSS GRAVES, VICE PRESIDENT 

FOR EDUCATION AND EMPLOYMENT, NATIONAL WOMEN’S 

LAW CENTER, WASHINGTON, D.C. (MINORITY WITNESS) 

Ms. GRAVES. Thank you. Thank you, Chairman Walberg, Ranking Member Courtney and distinguished members of the subcommittee. Thank you for the opportunity to testify today on the 

important topic of civil rights obligations of federal contractors and 

subcontractors. 

Over the last 40 years, the National Women’s Law Center has 

been involved in virtually every major effort to secure and defend 

women’s legal rights and equal opportunity in the workplace. And 

I am pleased to continue that work today by speaking about the 

key role that civil rights enforcement plays in ensuring equal opportunity for American workers. 

I will begin with some background on the Office of Federal Contracts Compliance Programs enforcement. For nearly 50 years, the 

federal government has operated with the long-standing principle 

that companies that have the privilege of profiting from doing business with the federal government should not be permitted to discriminate in employment. 

And this is for good reason. The taxpayer dollars used to buy 

goods and services from companies simply should not support discrimination. And the many federal contractors that play by those 

rules should not have to compete at a disadvantage with those who 

do discriminate. So the important work done by OFCCP in enforcing these nondiscrimination obligations also helps employers tap 

into a diverse pool of talent that leaves them and the broader economy stronger. OFCCP’s measures require that federal contractors 

take notice of race and gender and disability and protected veteran 

status in the course of formulating policies designed to foster equal 

opportunity. 

These measures require that contractors not discriminate, that 

they take affirmative steps to ensure a diverse workplace, and that 

they document these steps. And these steps are directly related to 

increasing employment opportunities and ensuring nondiscrimination. By requiring that contractors take appropriate steps to document employment practices, OFCCP is able to affirmatively assess 

whether there are indicators of discrimination. And in turn, 

through the process of record-keeping and data collection and analysis, an employer can engage in a self-evaluation that may prompt 

it to self-correct its own unfair practices. 

And at the very least, both OFCCP and federal contractors will 

have the data that they need to track progress in providing equal 

employment opportunities. It is worth noting that few contractors 

are actually subject to an OFCCP affirmative compliance review. 

Only about 4,000 compliance reviews are conducted each year out 

of about 170,000 contractor establishments, which amounts to 

around a 2 percent chance of being reviewed. And only federal contractors and subcontractors that have at least 50 employees and at 

least 50,000 in contract dollars are required to develop affirmative 

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action plans. These are the plans that help contractors identify and 

analyze potential problems in the contractor’s workforce. 

So the systematic approach to civil rights complaints that 

OFCCP takes, both historically and currently, helps to improve opportunities for a wide range of workers. Studies that have assessed 

the effective Executive Order 11246 have indicated that the makeup of federal contract workforces changed significantly in the years 

following the issuance of the executive order. One study of over 

70,000 federal contractors found that female employment by federal 

contractors increased by over 15 percent between 1974 and 1980, 

while it rose by only 2 percent in non-federal contractor settings. 

And throughout the years, OFCCP has implemented a number of 

initiatives that have aided in the integration of the workforce in industries such as construction, in higher education, mining, ensuring opportunity in sectors with long histories of unfair treatment 

in hiring, promotion, and compensation. For example, in 1975, pursuant to a legal settlement reached with the National Women’s 

Law Center, OFCCP targeted hiring and employment practices for 

women in colleges and universities around the country, improving 

opportunities for women in higher education. 

And it is measures like these that have really strengthened 

American businesses considerably and made them more effective. 

Moreover, OFCCP’s current strategic priorities, especially its focus 

on pay discrimination, its focus on opening opportunities in highwage occupations like construction, the new regulations for veterans and for persons with disabilities, these all follow in that 

same tradition. In sum, the key role that OFCCP has played in improving economic security for workers and their families really cannot be overstated. The OFCCP process has expanded opportunities 

for workers over time, has made federal contracting more efficient, 

and has strengthened businesses. 

Thank you again for the opportunity to be here today, and I look 

forward to any questions. 

[The statement of Ms. Graves follows:] 

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Chairman WALBERG. Thank you. 

Now, Mr. Goldstein, we recognize you for your testimony. 

STATEMENT OF MR. DAVID GOLDSTEIN, SHAREHOLDER, 

LITTLER MENDELSON P.C., MINNEAPOLIS, MN 

Mr. GOLDSTEIN. Thank you, Chairman Walberg, Ranking Member Courtney, distinguished members of the Committee. Thank you 

for this opportunity to testify. I have a deep personal sense of the 

importance and the history of this Congress. And, accordingly, it is 

a great honor to be here today. 

I am a shareholder in the Minneapolis office of Littler 

Mendelson. I am speaking to you today on my own behalf and not 

on behalf of my firm. I have represented government contractors in 

connection with OFCCP compliance for over 25 years. Like most of 

my clients, I believe in the importance of equal employment opportunity and in the importance of diversity in our workplaces. I believe it is essential to the success of our businesses. Accordingly 

and, again, like most of my clients, I support the basic mission of 

the OFCCP. 

In recent years, there has been a significant controversy regarding OFCCP’s efforts to assert jurisdiction over health care providers. One of the arguments that the OFCCP has asserted in support of jurisdiction over health care providers has been providers’ 

participation in TRICARE, the program designed to provide health 

care benefits to members of the military and their families. Whether it is good policy to impose additional regulations on health care 

providers at this time is a question on which reasonable people can 

disagree. Indeed, it appears that there are differences of opinion regarding this issue between executive agencies within the current 

administration. 

The Department of Defense and the Office of Personnel Management have expressed a belief in the importance of being able to 

contract with providers to offer health care services for the military 

and federal employees without having to subject these providers to 

OFCCP’s regulations. These agencies believe, correctly I think, that 

imposing such requirements limits the number of providers that 

are willing to offer such services. The OFCCP, on the other hand, 

believes that it needs to regulate such providers, arguing that it 

can do so without imposing unreasonable burdens. 

Other individuals are testifying today regarding the merits of 

this debate. I am here, though, because I understood this issue to 

have been resolved, at least with regard to TRICARE, when Congress passed the National Defense Authorization Act for fiscal year 

2012. That measure included language that was widely and reasonably understood as putting an end to this debate by providing that 

the OFCCP could not exercise jurisdiction based on providers’ participation in TRICARE. This was a very important outcome because it appeared to provide health care providers with certainty, 

and allowed them to decide what to do. 

I can tell you that during this period of uncertainty regarding 

OFCCP jurisdiction my colleagues and I spent a great deal of time 

discussing with health care clients the costs and burdens that come 

with OFCCP compliance. We see, we actually see, health care providers making decisions not to participate in TRICARE and in 

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other programs and arrangements because the costs of compliance 

are simply greater than the benefits of participation. And we are 

talking not only about financial costs of compliance, but also how 

OFCCP regulations impact the ways in which providers deliver 

services to their patients. 

For now, OFCCP is continuing in its efforts to establish jurisdiction over TRICARE participants through litigation against a particular health care provider, Florida Hospital of Orlando, which has 

disputed OFCCP’s assertion of jurisdiction based on TRICARE. To 

outside observers, the OFCCP’s continued pursuit of TRICARE jurisdiction, even after Congress has acted, is shocking. The Florida 

hospital case is still working its way through administrative proceedings. We are likely years away from a final judicial decision. 

In the meantime, providers remain uncertain as to their obligations 

should they agree to participate in TRICARE. 

The interests of health care providers, their patients, including 

members of the military, federal employees and their families, as 

well as taxpayers would be best served by a final resolution—a 

final resolution—of the TRICARE issue. I believe that this final 

resolution came from Congress in December 2011. Ideally, the Department of Labor would accept this and stop fighting against the 

fact that Congress has already spoken. Absent that, the best option 

would be passage of the Protecting Health Care Providers from Increased Administrative Burdens Act. 

The third best option would be to let the courts finally resolve 

this issue by letting Florida Hospital go through to a resolution. By 

contrast, the proposal offered by the Department of Labor in its letter of March 11, 2014 represents neither a compromise nor a positive step. To the extent that the department’s proposal would not 

end the Florida Hospital litigation and does not represent commitment by the OFCCP to relinquish its claims of jurisdiction over 

TRICARE participants in non-audit contexts such as complaint procedures, nothing is being resolved. On the other hand, the extent 

that the department’s proposal would end the Florida Hospital litigation and, therefore, prevent a final resolution of the issue in the 

courts, I am personally concerned. 

It has taken more than five years for the Florida Hospital case 

to get to the point where it is now. A final determination may still 

be years away, but at least it is on the horizon. The Department 

of Labor’s proposal, on the other hand, means at least five more 

years of uncertainty. And those are five more years during which 

health care providers are going to remain on the sidelines and not 

participate in programs that may subject them to OFCCP’s jurisdiction. And finally, accepting this proposal would reinforce a very 

disturbing trend that contractors have seen at the OFCCP in the 

context of compliance reviews, and that is an indifference by the 

agency to the letter of the law when, in its judgment, the letter of 

the law is inconsistent with the agency’s goals. 

Thank you, and I look forward to answering any questions you 

may have. 

[The statement of Mr. Goldstein follows:] 

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Chairman WALBERG. Thank you. I thank each of the panelists for 

your testimony. Without objection, I would submit two letters from 

the American Hospital Association and the American Health Care 

Association for the record. Both of these organizations express their 

support for H.R. 3633. 

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Chairman WALBERG. Hearing none, they will be part of the 

record. 

Mr. Kirschner, as we have discussed, the Secretary of Labor has 

proposed limiting OFCCP’s enforcement activities for five years by 

instructing OFCCP to not initiate compliance audits for TRICARE 

providers, though the letter calls them subcontractors, and closing 

any open or scheduled compliance audits. OFCCP will also provide 

information, materials and technical assistance training to 

TRICARE providers during this five year period. At the end of the 

five year delay, OFCCP will begin conducting compliance audits at 

TRICARE hospitals and health care providers. 

OFCCP will also continue taking the position in litigation that 

TRICARE providers are subcontractors. On the basis of that, in 

your opinion, does this proposal address the problems you have described and negate the need for the Protecting Health Care Providers from Increased Administrative Burdens Act? 

Mr. KIRSCHNER. Not at all. While we appreciate Secretary 

Perez’s efforts to try to address the situation, we believe that what 

the Secretary has outlined in his letter does not really address in 

any substantive way the concerns that the AHA has brought forward. First of all, the letter does not at all address the FEHBP or 

Medicare Part C and D. So those very significant programs would 

be left unaddressed. For example, the FEHBP has more than 8 million participants in it seeking care at hospitals all across the country. That would be unaddressed by this issue. 

Even with respect to TRICARE, section 715 of the NDAA, we believed, answered this question already by saying that there isn’t 

contractor status for providers under TRICARE. Secretary Perez’s 

letter assumes that they are contractors, and essentially just kicks 

the can down the road for enforcement. What America’s hospitals 

need is greater clarity about whether they are or are not contractors. And in our view, under the regulations, under the statutes 

that are applicable, participants in TRICARE should not be considered to be federal contractors any more than participants in 

FEHBP or Medicare. 

Chairman WALBERG. Thank you. 

Mr. Carrato, referencing the letter from the Secretary of Labor 

again, do you believe a five year moratorium will provide TRICARE 

providers needed relief and certainty? And secondly, how do you 

foresee the impact of this delay, And maybe more importantly, in 

enforcement affecting the decisions of TRICARE providers to remain in your network? 

Mr. CARRATO. I concur with the comments from Mr. Kirschner. 

It doesn’t solve the problem. It kicks the can down the road. I think 

the fundamental issue is one of the points made by Mr. Kirschner, 

and that is the classification of TRICARE providers. When you get 

into the area of classifying them as subcontractors, that brings on 

a host of additional burden. And the uncertainty that the five year 

moratorium would bring, it does leave providers on the sideline. 

And we are actually starting to see this present itself more as we 

are building the network to support the VA’s new Patient-Centered 

Community Care program, where we are required to build networks of providers. 

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And more and more of our hospital providers are delaying decisions or just flatly telling us no. And this is one of the reasons they 

cite. 

Chairman WALBERG. Thank you. 

Mr. Goldstein, again going on that train of thought, for the 

record, will this delay of compliance audits specifically, while training hospitals in what they need to do for the future, will it alleviate 

the uncertainty hospitals? And secondly, will hospitals still have to 

make the tough decisions whether to sign up to care for TRICARE 

and federal employee health benefits patients and, ultimately, likely face OFCCP regulation? 

Mr. GOLDSTEIN. It does not help the problem, Mr. Chairman. 

There are hospitals that are sitting on the sidelines now, unwilling 

to participate in TRICARE pending a resolution of the Florida Hospital of Orlando litigation. The proposal from the Secretary of 

Labor merely says there is no resolution for at least five years 

down the road, and also makes it clear that OFCCP is continuing 

to take the position that the military authorization Act did not take 

away its jurisdiction. So it means at least five, and maybe 10, years 

more of uncertainty during which providers are not willing to provide services to our servicemen and women and their families. 

Chairman WALBERG. Thank you. 

I now recognize, for five minutes of questioning, my ranking 

member and friend, Mr. Courtney. 

Mr. COURTNEY. Great. Thank you, Mr. Walberg. 

Mr. Goldstein, can you tell me who is gonna be taking the oath 

of office for President in January of 2017? 

Mr. GOLDSTEIN. I cannot. 

Mr. COURTNEY. And let me ask you this. Will it be Barack 

Obama? 

Mr. GOLDSTEIN. Not without a constitutional amendment. 

Mr. COURTNEY. Right. And the likelihood of that happening is 

zero between now and then. 

Mr. GOLDSTEIN. I would agree on that. 

Mr. COURTNEY. That is a really pretty safe assumption? Okay. 

And the proposal from the Secretary of Labor, Ms. Graves, was 

for a five year moratorium. Is that correct? 

Ms. GRAVES. That is right. 

Mr. COURTNEY. And if we do the math, okay, we are talking 

about 2019 is when this issue could be revisited in terms of any 

type of enforcement on it. Isn’t that your understanding? 

Ms. GRAVES. That is correct. 

Mr. COURTNEY. And there will be a new President. And since the 

Secretary of Labor serves at the will of the President there will actually be a new Secretary of Labor in place at that point. Isn’t that 

correct? 

Ms. GRAVES. That is right. 

Mr. COURTNEY. Okay. You know, I don’t know, maybe it is my 

Irish-Catholic upbringing but, you know, our fatalism says that 

there is no such thing as perfect certainty in life. But a five year 

moratorium in terms of audit, given the fact that pushes this well 

beyond the end date of this administration, would seem to suggest 

that this issue really is being, I think, pretty dramatically dealt 

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with by the Secretary in terms of any of the issues that people are 

concerned about. Isn’t that correct, Ms. Graves? 

Ms. GRAVES. Yes, I think so. And I think it provides the Department of Labor an opportunity to provide training and outreach and 

additional clarity for contractors. 

Mr. COURTNEY. Thank you. Now, you know, you talked about 

some of the new initiatives by OFCCP in terms of trying to protect 

classes of the population that frankly have struggled in terms of 

employment opportunities. And one of the groups that you mentioned was veterans. Can you talk about that in terms of OFCCP’s 

advocacy for veterans over the years, disabled veterans and certainly now, recently, all veterans? 

Ms. GRAVES. Well, really importantly, last year OFCCP put out 

new regulations around the administration of the statute that requires nondiscrimination and that contractors take affirmative 

steps with regard to protected veterans. So that requires contractors to establish hiring benchmarks, and conduct overreach and recruitment. And they have been engaged, not only just in putting 

out those regs, but taking the additional steps of providing training 

and outreach to make sure that people really understand them. 

Mr. COURTNEY. And again, that didn’t happen out of context. I 

mean, it was because there actually is a real problem out there in 

terms of the nagging higher unemployment for veterans versus the 

rest of the population. And the OFCCP, I think, is responding to 

that in terms of using the contracting, you know, precedence as a 

way of trying to bring that unemployment rate down. I mean, isn’t 

that the whole history that led up to the new rules? 

Ms. GRAVES. Absolutely. It is absolutely connected to the extraordinary high rates of veteran—high unemployment rates of veterans. 

Mr. COURTNEY. And so, you know, when we talk about this agency—which, you know, we have heard today that somehow it is sort 

of, you know, looking for a power grab or jurisdiction—I mean, in 

terms of its history as far as veterans are concerned, in fact it is 

really the opposite. I mean, they have actually been out there trying to, again, create opportunities for veterans, again, consistent 

with their history of advocating for diversity in the workforce. Isn’t 

that correct? 

Ms. GRAVES. Right. And I think it is important to think about 

what jurisdiction means. What it means is that the contractor then 

has an obligation to really think about these protected categories 

of workers, and conduct outreach and recruitment. So this is absolutely tied to the employment opportunities for veterans and, you 

know, on the basis of race and sex and disability, as well. 

Mr. COURTNEY. Great. Thank you. 

So my time is almost up, Mr. Chairman. I want to enter into the 

record the GAO report which came out last April which, again, was 

on the question of TRICARE challenges in terms of—I will get it 

here somewhere, but—okay, the multiyear surveys indicate problems with access to care for non-enrolled beneficiaries. And I would 

actually like to point to, again, the section which talks about provider acceptance of TRICARE. And this goes back well before this 

administration. Forty-one percent, only 41 percent, of mental 

CEWDOCROOM with DISTILLER

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health providers in this report have expressed a willingness to take 

TRICARE. 

And it has absolutely nothing to do with OFCCP. There is a 

chronic issue of reimbursement and complexity in terms of interacting with—and, again, I have worked with Health Net and they 

have done good work with my caseworkers out there. But, you 

know, there are much bigger problems out there in terms of what 

I am hearing from providers than the fact that, again, there is a 

Florida case which will be withdrawn. Which, you know, in 25 

years in practice I always thought a withdrawn case by the other 

side was actually a good thing. But I guess, you know, some people 

view it differently. But anyway, I have asked that be admitted to 

the record. 

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Chairman WALBERG. Without objection? Hearing none, it will be 

admitted. I thank the gentleman. 

Now I recognize my good friend and colleague, NASCAR colleague, from North Carolina, Mr. Hudson. 

Mr. HUDSON. Thank you, Mr. Chairman. And I am a proud supporter of this bill. And, frankly, I am outraged by the arrogance 

and the overreach by this agency, OFCCP. Congress clearly signaled our intent. And to paraphrase one of my colleagues, Congress 

doesn’t pass suggestions, Congress doesn’t pass things that we hope 

will happen. Congress passes laws. And the law has to be followed, 

Mr. Chairman, and the law was made very clear in 2011. 

And the response from this agency was Congress has overstepped 

their bounds by telling us what we can do. That is outrageous. And 

now the response is, from the Secretary, well, we will do a moratorium for five years so we won’t violate the intent of Congress for 

five years. But at the end of the five years, the heck with what 

Congress passed because we don’t have to follow the law. And, 

frankly, that is outrageous, Mr. Chairman. 

But I will address my question to Mr. Kirschner. You know, I 

travel my district in North Carolina. We have got rural hospitals 

that are, frankly, dealing with a lot of costs due to compliance with 

regulations and laws from the state and federal level. And, frankly, 

these hospitals are struggling. And with the cost of Obamacare, the 

uncertainty created by the new health care law and, frankly, having this regulation hanging over their head is just one more burden. 

And what I guess my question to you, Mr. Kirschner, would be 

could you highlight what some of the burdens and the regulations 

that have to do with nondiscrimination, federal workforce compliance that hospitals have to deal with anyway? What are the costs 

in time and resources that are involved with complying with the 

law the way it exists now? 

Mr. KIRSCHNER. The American Hospital Association is deeply 

concerned about the survival rate of hospitals, particularly those in 

rural areas. Hospitals, on average, spend approximately 20 percent 

of their revenues on administrative overhead already, separate 

from the OFCCP compliance. There are any number of laws that 

are applicable to them and will remain applicable: Title VII, state 

nondiscrimination laws, the Americans with Disabilities Act, 

FMLA, the NLRA. There is a whole alphabet soup of laws that will 

remain applicable. 

In addition, there is oversight provided by HHS and the Office 

of Civil Rights that is applicable specifically to hospitals that will 

remain. So there is a lot of oversight already and nondiscrimination obligations that exist for every hospital. 

To become a federal contractor then imposes a whole new scheme 

of obligations that non-federal contractors do not have to comply 

with. There may be some underlying similarities with respect to 

nondiscrimination compliance, but there is a reporting obligation 

for federal contractors that other employers do not have to do. 

There is a variance in terms of the estimate of hours per time 

that will take. There was a reference earlier to the St. Jude Medical Center’s prior testimony that said that there is hundreds and 

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hundreds of extra hours that are necessary just due to compliance 

with the recordkeeping obligations of the OFCCP. 

So the added burden is really the concern that we have, where 

hospitals may be unknowingly and unclearly becoming federal contractors despite what Congress has said in section 715 of the 

NDAA and, in our view, the OFCCP’s very vague and ambiguous 

standards for what makes you a federal contractor. 

Mr. HUDSON. Well, I appreciate that. And it is stunning to think 

about 20 percent cost going towards just compliance. That is—you 

know, you think about any business—and a hospital is a business, 

whether it is a for-profit or not-for-profit hospital—in the business 

of taking care of their patients. And, frankly, we have a large 

TRICARE population, Mr. Chairman, in North Carolina in my district. And I want there to be incentives for people to provide- for 

more providers to engage in TRICARE. 

And so I appreciate the testimony of the witnesses today. And, 

Mr. Chairman, again, I am very supportive of this legislation. I 

thank you for your work. 

And I will yield back the balance of my time. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize my friend and colleague from the great state 

of Ohio, and sharer of the Great Lake Erie, for her five minutes. 

Ms. FUDGE. Thank you very much, Mr. Chairman. I thank all of 

you for being here today. 

Ms. Graves, you cite in your testimony a study that found female 

employment by federal contractors increased seven times as much 

between 1974 and 1980. A period which includes the establishment 

of OFCCP in 1978. That increase is significantly higher than in periods where there was not federal contracting settings such as we 

have today. Do you think that the health care industry could benefit from the unique responsibilities and enforcement mechanisms 

of OFCCP, like the affirmative action plan? 

Ms. GRAVES. Well, certainly. You know, to begin with, there is 

clear, documented discrimination based on race and sex in the 

health care industry. There have been a number of studies that 

have talked about that, that have talked about the wage gap between male and female physicians, the race discrimination that occurs among physicians. But beyond that, diversity in the health 

care workforce is very much tied to the core purpose in providing 

quality patient care. There is evidence that diversity in the health 

care field absolutely improves patient care. 

The other thing is that OFCCP is slightly different from some of 

the other agencies because of its affirmative enforcement scheme. 

And this is especially important when we are talking about types 

of discrimination that is difficult to detect. So hiring discrimination, pay discrimination, these types discrimination the individuals 

are not as likely to know that they have experienced it. 

Ms. FUDGE. Thank you very much. 

Mr. Kirschner, in your testimony from December 14, 2013 you 

cited the testimony of Ms. Dana Bottenfeld—Bottenfield. And she 

talked about the frustration she had with affirmative action plan 

procedures. Do you further agree with her testimony that she believes that these procedures, these affirmative action plans, are important? 

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Mr. KIRSCHNER. I am not familiar with the extent that—the specific quote that you are referring to from the December testimony. 

Ms. FUDGE. I am quoting from you. 

Mr. KIRSCHNER. I know that. I am generally familiar with her 

testimony. I would say that four hospitals that have knowingly 

agreed to become federal contractors—and they accept the obligations that flow with that—then it is important for those hospitals 

to comply with the law. Which would include having affirmative action programs and otherwise complying with the OFCCP. 

Ms. FUDGE. Thank you very much. So you agree with her testimony. 

Mr. Carrato, in your testimony you indicate that you are proud 

to be the longest-serving managed care contractor. And, certainly, 

I know that is important, and I applaud you, as well, and congratulate you. Health Net is justified to feel this way and I agree, having 

served the Department of Defense and the Veterans Administration for 25 years or better. A high-quality product is provided by 

your company. Do you think that some of the pride that you feel 

may also be a result of meeting and exceeding the high standards 

that are embedded in any federal contract, including those requirements enforced by OFCCP? 

And I ask that because I think it is very important for us to understand we are using taxpayers’ dollars, we are held to a higher 

standard and should be held to a higher standard. And that it is 

not an entitlement to do business with the federal government. 

And so I ask the question because since you have been so successful that means that you have at least met, and/or exceeded, the requirements of a contract. 

Mr. CARRATO. Yes. You know, Health Net Federal Services is a 

federal contractor. And we are a federal contractor. Certainly, affirmative action and diversity in the workplace we have benefited 

from. We understand the issue of veterans’ unemployment. We 

have joined with the White House supporting the joining forces effort. We are committed to, you know, employing veterans. And we 

are committed to diversity. 

The issue today is the hospitals and providers that are in our 

network. I think the issue is classification. As network providers, 

they are required, as Mr. Kirschner said, to comply with, and we 

enforce that in our contracts with all affirmative action state-local 

regulation. We just believe that OFCCP classifying them as contractors and subcontractors just brings additional regulatory burden. And as they are making a business decision whether to continue to support our men and women in uniform and our veterans, 

many are staying on the sidelines. And most, if not all, are very 

concerned. And this five year moratorium will not alleviate those 

concerns. 

Ms. FUDGE. Well, certainly I disagree. 

But I yield back, Mr. Chairman. My time has expired. 

Chairman WALBERG. I thank the gentlelady. 

And now I recognize the distinguished chairman of the Education 

and Workforce Committee, Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. Thanks to the witnesses 

for being here today. Mr. Goldstein, real pleasure to see you. I 

know you hated to leave balmy Minnesota to come out here, but— 

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Mr. GOLDSTEIN. To windy Washington. 

Mr. KLINE. A sacrifice you are willing to make. Good to see you 

all, and thanks for the testimony. 

I hate that we are in this position. Because I can’t speak for the 

Ranking Member, but I think that he and I both believed that we 

had addressed this in the National Defense Authorization Act. And, 

certainly, I believe that the will of Congress was made pretty clear 

in terms of OFCCP’s jurisdiction here. And yet here we are. We 

have got a lawsuit in Florida, we have got you here, we have hospitals—I am going to get to you in just a minute, Mr. Kirschner. 

A lot of uncertainty out there about what they are supposed to do. 

And the Secretary has said he is going to have a moratorium on 

enforcement. 

The law doesn’t go away, the interpretation doesn’t go away, a 

subcontract is still a subcontract. But for five years, they are not 

going to enforce it. Although they are apparently going to have people helping hospitals to understand how they are going to have to 

comply in five years from now. So I was struck a little bit, that, 

apparently, the suggestion—at least it was implied, or I inferred, 

that the solution here would be to have a better President, a better 

Secretary of Labor and then this will go away. 

That is a terrible position for us to be in. It is a terrible position 

for the providers to be in. So it seems to me that Congress is going 

to have to speak again, hence this legislation to make it clearer 

that jurisdiction of OFCCP doesn’t apply here. It matters—and we 

have had this discussion many times in this Committee and the 

full Committee—how we write laws. And the clearer we are and 

the more explicit we are, the less chance there is for misinterpretation. We have, oh, I think it is a couple of million people now employed by the federal government in the bureaucracies. 

We have tens of thousands of pages of regulations that come 

every year that individuals and businesses and unions and everybody has to read, understand, and try to deal with. But when we 

write law and we think we are being clear about it, and we still 

get in this position, I, and I think many of my colleagues, are fairly 

frustrated. So I want to get to the impact, and I am going to go 

to you, Mr. Kirschner, because you mentioned it earlier. This isn’t 

a question of just deciding to be nondiscriminatory. This is a question of additional reporting, additional paperwork—a burden, if you 

will—added to everything that was already there, all those things 

you talked about earlier, state law and the ADA and all of those 

things, this is added on to that. 

And so you have got providers who, by a couple of testimony 

here, are actively considering or have already considered not providing the service for TRICARE, for example. And as somebody 

who had his health care provided by TRICARE and whose family 

did for many years, I would—-—that would be very, very painful. 

That would be an awful thing to happen. So can you again talk 

about what this OFCCP jurisdiction is doing to that workload. 

And by the way, the moratorium, as I said, doesn’t change the 

law. It just changes whether or not they are going to enforce the 

law. But could you address that for us one more time again, what 

happens here and why hospitals are saying we don’t want to do 

this? 

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Mr. KIRSCHNER. Sure. If a hospital is a federal contractor, then 

there is a whole scheme of regulations that do apply to them, ranging from how they track intake of applicants and how they report 

that, how they create reports related to affirmative action and 

other items. And these are done in a very particular way, as required by the OFCCP, that is unrelated to the normal business operations of the hospital. So it is not as if the hospital has its reports that it just has to turn over to the OFCCP. Rather, the 

OFCCP requires the hospitals to maintain information and gather 

information in a way unrelated to anything else that they do. 

There are hundreds of hours that are required to be done by the 

hospital just to comply on a regular basis with the OFCCP regulations. And when there is an audit, those audits can last for years 

and they can be very time-consuming. 

Mr. KLINE. So I see my time is about to expire. So there is a legitimate business decision that is going to have to be made based 

on cost in dollars and cost in time. And we are going to have people 

who will suffer. I see my time has expired. 

I yield back. 

Chairman WALBERG. You—you may continue, Mr. Chairman. I 

just wanted to have that opportunity to say that to you, and recognize the next time I have that opportunity you would— 

Mr. KLINE. No, let me be clear here. I yield back. 

[Laughter.] 

Chairman WALBERG. I thank the Chairman. 

Now I recognize my friend and colleague from Indiana, Mr. 

Rokita. 

Mr. ROKITA. I thank the Chair and I thank the witnesses, and 

good morning to each of you. 

I want to quickly go to Mr. Kirschner here, and just simply ask 

if you had anything to add about Ms. Graves’ testimony. It was 

characterized that you agreed with what she was saying, at an 

early on question. Did you want anything else on the record? 

Mr. KIRSCHNER. My statement is that to the extent that a hospital or other contractor has an obligation, as a bona fide contractor, to comply with an affirmative action program I think that 

is legitimate. But what I don’t think is legitimate is that if a hospital signs up for a contract, and is told in that contract that they 

are not a federal contractor, has no clear knowledge that they are 

a contractor, and then after the fact the OFCCP comes in and says, 

‘‘Oh, by the way, for the last X number of years you may not have 

known this, but you were a federal contractor and you have been 

out of compliance with the law for years.’’ 

That is the situation we are trying to clarify and, with support 

of this bill, to make it clear that providers under these federallyfunded health plans are not federal contractors. 

Mr. ROKITA. Yes, that we are going to follow the rule of law, not 

the rule of man. 

Mr. KIRSCHNER. Right. 

Mr. ROKITA. Yes, thanks. I am getting that sense here at the 

hearing today. It is a shame, though, and I associate my comments 

with the full Committee Chairman, that we have to say again what 

we intended the first time. 

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Mr. Goldstein, you note in your testimony, you talked about, the 

Florida Hospital of Orlando case. And, you know, one of the reasons we are here today is that the board took, what you say was, 

an unprecedented action. If I understand it right, the ALJ initially 

agreed with the hospital that they weren’t going to be contractors 

or subcontractors. And then the full board, the review board, then 

kicked it back down, where it now sits at the ALJ level. Can you 

expand on that? Why is this so unprecedented? 

Mr. GOLDSTEIN. What happened is, the administrative review 

board originally agreed with Florida Hospital and found that 

OFCCP did not have jurisdiction because of the congressional action. It was done and it would have resolved the issue, and it would 

have been clear TRICARE does not create OFCCP jurisdiction. 

Mr. ROKITA. Yes. 

Mr. GOLDSTEIN. OFCCP asked the administrative review board, 

which basically represents the judgment of the Department of 

Labor—asked it for reconsideration. Which, in my experience— 

Mr. ROKITA. Which is not unusual. Oh, that is unusual. 

Mr. GOLDSTEIN. In my experience, that is very unusual. 

Mr. ROKITA. Okay. 

Mr. GOLDSTEIN. If not unprecedented, and the ARB granted that 

reconsideration which, again, is very unusual if not unprecedented. 

And in a divided opinion, found that this act of Congress did not, 

in the judgment of three of the board members, divest OFCCP of 

jurisdiction. Sent the case back down to an administrative law 

judge for further proceedings, basically delaying the final day when 

a federal district court gets to determine what did Congress actually mean when it enacted section 715. 

Mr. ROKITA. So when you say ‘‘unprecedented,’’ do you mean that 

it is unprecedented within the jurisdiction and precedential decisions of the Department of Labor’s administrative review board? Or 

within federal government agencies, as a whole? 

Mr. GOLDSTEIN. To my knowledge, within the ARB; I don’t know 

the answer with regard to federal agencies as a whole. 

Mr. ROKITA. Okay, thank you. 

Mr. Carrato, thank you for your testimony today. The Department of Labor—of course, and the reason why we are here—stated 

TRICARE providers are subcontractors of the federal government. 

I guess what I am wondering, though—and I want you to expand 

on it—they seem to be the moose on the table, the Department of 

Labor. But do other federal agencies consider TRICARE providers 

to be federal contractors? I mean, that is to say are there broader 

issues associated with the OFCCP’s— 

Mr. CARRATO. Yes, there are much broader issues. And I think, 

historically, this question has come up as to how to classify providers. And in addition to OFCCP regulation, there are a host of 

flow-down provisions that would flow to federal contractors: you 

know, the FAR, the DFAR, which requires certain cost accounting 

systems, disclosure statements. So there would be—if TRICARE 

providers were, indeed, classified as contractors, there would be a 

host of additional burdens. So to my knowledge today, no other federal agency—to include the Department of Defense—considers 

them subcontractors. 

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Mr. ROKITA. Oh, and I am just thinking about this, I guess. That 

if they were considered ultimately, legally, contractor to subcontractors, now they would be subject to the President’s new executive order on raising the minimum wage. 

Mr. CARRATO. Correct. 

Mr. ROKITA. Which would have costs as well. 

Mr. CARRATO. All flow-down provisions. 

Mr. ROKITA. Right. Mr. Kirschner? 

Mr. KIRSCHNER. Yes. If I may just add to that, the Department 

of Defense actually has its own regulation classifying providers in 

TRICARE as not federal contractors. So it is not just that they 

haven’t taken a position, but they have taken a position contrary 

to that taken by the OFCCP. And the Office of Personnel Management, similarly, has a regulation classifying participants in the 

FEHBP program as not federal contractors. And the OFCCP has 

disagreed with them, as well. 

Mr. ROKITA. Rule of law versus rule of man. 

Mr. Chairman, I yield back. 

Chairman WALBERG. I thank the gentleman. 

I recognize now a second distinguished representative from Indiana, the birthplace of my first two kids, Mr. Bucshon. 

Mr. BUCSHON. Thank you very much. Thanks to the panel for 

being here today, and I will give you my background. I was a cardiovascular and thoracic surgeon prior to coming to Congress in 

2010, and have been in the health care industry for 30 years since 

I went to medical school in the mid-1980s. And my wife is also a 

physician, an anesthesiologist, who currently continues to practice 

medicine. 

And, you know, I have recruited physicians, I have recruited all 

kinds of other health care employees as the president of my medical group. And so when, Ms. Graves, you commented and you 

made the allegation that the health care industry has purposefully 

continued to discriminate based on sex and race and other things 

I take offense to that. Because I think that I would like you to submit, for the record, evidence, which you have specifically on the 

health care industry, that there is discrimination. That is not a 

question. So I know you turned your mike on, but I am not asking 

for a response. 

Ms. GRAVES. Oh, it wasn’t a question? Oh. 

Mr. BUCSHON. But whatever hearing I go to, whatever subject, 

when I hear people make allegations that may or may not be substantiated I always ask witnesses, regardless of the subject, to submit their evidence and data to the subcommittee and to my personal office to back up those claims. 

Because my wife has been hired by multiple different hospitals 

and she gets paid the exact same amount as any other anesthesiologist that they hire. I have hired a female cardiovascular and thoracic surgeon for my practice, paid exactly the same as the male 

cardiovascular and thoracic surgeons, as are any of the other employees. 

So if you would, for the record, submit the evidence that you 

have that proves what your claim, that there is still discrimination. 

Ms. GRAVES. I would be pleased to do that. 

Mr. BUCSHON. Thank you. 

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Mr. Carrato, in your testimony your expressed concerns about 

Health Net’s ability to provide military members and their families 

access to high-quality providers, especially in rural areas and areas 

far from military treatment facilities, where there are already 

shortages of providers. And I would just like to say, in Evansville, 

Indiana there is a VA clinic but there is no VA hospital, and patients have to go to St. Louis, which is about three hours away, for 

surgery if they needed that, for heart surgery. 

You mentioned that specialties are already in short supply—psychiatry, neurosurgery, and dermatology, for example. Could you 

elaborate on the extent of the shortages and the access issues already? 

Mr. CARRATO. Certainly. And as you well know, there are certain 

specialties in short supply. You know, adolescent psychiatry, dermatology. And as a business decision, providers need to make a decision how to titrate their panel of patients. And the reimbursement rates, as Mr. Courtney mentioned, don’t make TRICARE the 

most attractive payer to participate in. So any additional burden or 

regulation makes our ability to recruit and retain providers much 

more difficult. And it essentially is supply and demand. 

And in certain rural areas where we place our military installations—you know, Watertown, New York, Fayetteville, North Carolina, rural Indiana, as you said—there is not the abundance of providers, and they have to make a business decision. They have to 

decide what payers that they want to support. 

Mr. BUCSHON. Thank you, very much. Because I do represent a 

very rural area. And not only for military veterans, but for everyone, access to health care providers, particularly specialists, is becoming a critical issue across our nation, not only for—again, for 

people in the military. 

And in my medical practice I had the opportunity to treat many 

veterans. And frequently, if they were requested by the VA to be 

transferred to another facility I did it for free, and wrote it off, and 

got my hospital to do the same. Because I didn’t feel it was fair 

that their families and them had to travel three hours for heart 

surgery, when I could do it, you know, down the street. 

Mr. CARRATO. Right. 

Mr. BUCSHON. And so I am going to go on the record and say 

that since I have been in medical practice and in Congress I support the ability for military veterans to have a card in their pocket 

and get health care at their facility of choice, regardless of whether 

that is the VA system or private facilities, if there is not access to 

the appropriate VA care within a reasonable area around them. 

With that, Mr. Chairman, I yield back. 

Chairman WALBERG. I thank the gentleman. I thank the panel 

for your response to our questions and, for our colleagues, the questions that you had, hoping leading to greater understanding. 

So now I recognize the Ranking Member, Mr. Courtney, for his 

closing remarks. 

Mr. COURTNEY. Thank you, Mr. Chairman. And, again, I want to 

again tip my hat to you and your staff in terms of, again, flushing 

this issue out. And, in my opinion, resulting in accomplishing real 

change in terms of what was clearly an issue about interpretation 

of a statute that Congress acted on and I think had clear intent. 

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And a new Secretary of Labor who listened, and has really talked 

to people and interacted with people. 

You know, I think, in my sort of final thoughts here I just want 

to make the observation that if H.R. 3633 were to pass the House, 

pass the Senate and be signed into law by the President—which I 

frankly think there is a high level of skepticism in my mind that 

actually would happen—the fact of the matter is, is the next day 

we would still have a terrible challenge in terms of access to health 

care for TRICARE. 

I mean, the issues that have been identified by GAO, the issues 

that I have heard over and over again in the last seven years in 

terms of retirees and veterans who qualify for TRICARE, getting 

access to care is all about reimbursement and doctors and providers’ willingness to basically lose their shirts every time they 

take on a new patient. 

And, again, the GAO study clearly demonstrates that. Again, I 

think every person on this subcommittee, if, you know, we were 

given the opportunity to really kind of, again, boost the financial 

support for that program there would be strong support for it. In 

fact, the Senate had a measure a couple days ago Senator Sanders 

proposed which, again, would have a historic new investment in 

terms of veterans health care services. In my opinion, that is clearly the best way to strengthen the network of access for veterans in 

this country. 

You know, the focus here today, obviously, though is on the question of OFCCP jurisdiction. Again, I think that the Secretary could 

have, you know, gone into the Washington, D.C. crouch and listened to the lawyers, maybe, and his agency and said I am not 

gonna extend myself to try and listen to people and do anything. 

But the fact is, is that, as in the case of OSHA recently, he has 

really shown a willingness to listen to Congress and to react. 

And to come out with something that—again, I am disappointed, 

frankly, that people have dismissed here today some of the witnesses about the value of it. A five year moratorium, again, takes 

this out of the scope of this administration. Nobody is stipulating 

to anything in terms of, you know, you are not being subject to a 

court order or relinquishing your legal position here in terms of the 

interpretation of the prior bill. Which, by the way, the language of 

that is different than H.R. 3633. 

It is not like we are just re-passing that language. I mean, there 

is ‘‘shall’’ language now in this as opposed to ‘‘may’’ language before. So, you know, again I have been around enough lawyers to 

know that people can fight over, you know, a couple words, or commas even sometimes in terms of the way statutes get written. But 

the fact is, is I think that this Secretary has shown a willingness 

to, in my opinion, give a very robust area of certainty on whether 

or not OFCCP jurisdiction is gonna, in fact, apply towards 

TRICARE providers. 

And, frankly, I don’t think he is done in terms of that dialogue 

and that discussion. That, you know, we are, I think, gonna still 

see him in our Committee rooms and in our offices, and is willing 

and open to continue this discussion as far as other programs are 

concerned in terms of Medicare and FEHBP. This is not someone 

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though, in my, you know, estimation has shown, you know, again, 

just a rigidity or unwillingness to talk and interact with people. 

So I practiced law for over 20 years. I was with a bunch of litigators who were fearless and loved, you know, the conflict and going 

into the courtroom. But we had a sign that hung in our office that 

was a quote from Abraham Lincoln, which said, ‘‘Discourage litigation. Persuade your neighbors to compromise whenever you can. 

Point out to them how the nominal winner is often the real loser 

in fees, expenses and waste of time.’’ And, you know, I would remind you of that quote in order to what the Secretary did in terms 

of where we are today. 

Again, I respect the Chairman’s passion on this issue. And it 

may be that this issue is gonna come to the floor. But, again, this 

is a Congress whose batting average isn’t that great in terms of 

getting across the finish line. And I think it is gonna run into resistance maybe further along in the process. And I think, in the 

meantime, you can take credit for accomplishing something here in 

terms of having the department reevaluate its position. 

As the Secretary said, I did the forensics. He did the forensics 

to understand better what the Armed Services Committee did and 

he made an adjustment. And I think that is a great accomplishment, and something that you should be very proud of. 

And with that, I yield back. 

Chairman WALBERG. I thank the gentleman. And I would concur 

with much of your sentiment there. And it is not a purpose of this 

hearing to necessarily push forward a piece of legislation. And you 

are right, we don’t have a great record of getting our colleagues on 

the other side of the Capitol to take up legislation—good, bad or 

indifferent—and move it forward. However, it is important to have 

the discussion. 

I also certainly applaud the Secretary. This little note paper is 

my notes I took sitting in my red 2006 Hemi Dodge 2500, threequarter ton pickup truck outside of a town hall in Grand Ledge, 

Michigan, on the banks of the Grand River, when the Secretary 

was willing to call me and talk about this issue. So I appreciate 

that very much. And we have had open dialogue in my office and 

in my pickup truck. And wherever he was, I have no idea, at that 

point in time. But we discussed that. 

And we need to continue discussing it. I appreciated the letter 

that he sent. It didn’t include every item that we discussed that 

afternoon. That would have been included in the letter. So there is 

certainly more discussions I will have with him, and ask why. We 

can assume things. But for the record, and in the reality, we want 

to make sure things are solid, buttoned up, and move forward. But 

I think it even goes beyond that. I am willing to give credit where 

credit is due, and enabling ability to help us work together is great. 

But in the end, we want to make sure we have a framework in 

place that not only encourages economic growth, the opportunity 

for health care to be there and available. Certainly, everyone in 

this subcommittee and on the full Committee would never, never 

countenance anything that denied employment because of an individual’s gender or their disability, their race, or their religion, or 

the fact that they were military veterans. But on the other side of 

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tainty in place, at the very least, that decisions are made that will 

take away opportunities for people to have the type of care that, 

in this country, they ought to have. 

That would have the opportunity to have employment in facilities 

that are viable and growing and moving forward and, in fact, expanding to meet the needs of this great citizenry we represent. I 

think, as well, this is an opportunity to make sure that the dialogue, the debate that we even had yesterday on the floor of the 

House, pushing back on our executive, making decisions and, in 

fact, rewriting laws without the authority that the Constitution 

gives, regardless of party, the issue of the separations of power. 

The authority that the people have. As Washington said, I believe 

it was, when asked about our government, ‘‘Here, the people rule.’’ 

And we are the elected representatives of the people to represent 

them and, on their behalf, make laws. And expect those laws— 

good, bad or indifferent—until changed, to be the law of the land. 

And that is my concern. That we have not got to that point right 

now with OFCCP, and their description, definition of who a subcontractor is or a provider. And they are, in fact, as I believe, going 

against what was decided by law in the NDAA provision. 

So this is a worthy discussion to continue. We will go on. I am 

certain I will talk with the secretary. I am certain that we will 

push for adequate solution. 

But I also want to make sure that we don’t have simply five 

years of uncertainty. And ultimately, decisions made on the basis 

of the fact that we can’t just be uncertain for five years. We are 

gonna make decisions now that impact, sadly, in negative ways the 

people that we ought to be serving. 

So I appreciate this hearing today. We will certainly continue on 

in various ways. But we want to move forward for the good our 

country, for the good of our citizens and so that everybody has opportunity equal to all. 

There being no further business, the Committee stands adjourned. 

[Additional Submissions by Ms. Graves follow:] 

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[Additional Submissions by Chairman Walberg follow:] 

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[Whereupon, at 11:33 a.m., the subcommittee was adjourned.] 

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