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Education & Labor Committee Republicans

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Walberg Statement: "H.R. 3633, the Protecting Health Care Providers from Increased Administrative Burdens Act"

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 proposed earlier this week a limited delay of its regulatory approach. In a letter to the committee leadership, Secretary Perez promised a five year moratorium of new OFCCP enforcement activities against TRICARE providers.

Without objection, this 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.

While I appreciate the secretary’s response and attempt to address the situation with a workable solution, I truly believe 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 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 “[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. While my colleague has attempted to do that, 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 workforce. H.R. 3633 provides the long-term solution they and their families deserve. 

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