Does Oklahoma's law requiring health care providers to participate in the state's Health Information Exchange (HIE) violate the state constitutional right to opt out of any health care system?

Plain-English summary

Senator Standridge asked whether requiring health care providers to participate in Oklahoma's Health Information Exchange (HIE) violates Article II, § 37 of the Oklahoma Constitution. That constitutional provision was added by State Question 756 in 2010 (a 64.73%-passed measure intended to opt Oklahoma out of the federal Affordable Care Act). It says, "[a] law or rule shall not compel, directly or indirectly, any . . . health care provider to participate in any health care system."

The AG's answer: there is no constitutional violation, because participation in Oklahoma's HIE is effectively voluntary. The reasoning chain:

1. Section 4002.5 (Medicaid managed care) only applies to providers who voluntarily contract with Medicaid. Choosing whether to be a Medicaid provider is itself voluntary, so the HIE requirement that flows from Medicaid participation is not "compulsion."

2. Section 1-133 (general HIE participation) appears to require all licensed providers in the state to use the HIE. But the OHCA Board promulgated an emergency rule (OAC 317:30-3-35) on August 3, 2023, that grants an exemption to "any health care provider who registers an exemption" with the Office of the State Coordinator for HIE. The exemption "shall be granted" upon request, with no further criteria. The rule also exempts providers without EHR systems and substance abuse treatment facilities outright.

Because any provider who does not want to participate can opt out by submitting a simple form, the HIE is, in practice, an opt-in system. That is not "compulsion" within the meaning of Article II, § 37.

The AG declines to answer Senator Standridge's second question (can the State require providers to contract with a private HIE entity?), reasoning that as long as participation is voluntary, the question is hypothetical. AG opinions decline hypothetical or abstract questions.

A footnote signals the result could change if the emergency rule is withdrawn or the Legislature makes participation absolute. The AG also flags an inconsistency: § 4002.5(L) (Medicaid HIE participation) does not have the same broad exemption as § 1-133(C). The AG suggests the Legislature may want to revisit § 4002.5(L) to align it with the OHCA exemption rule.

What this means for you

If you are an Oklahoma health care provider

You are not required to participate in the HIE. You can request an exemption and the OHCA will grant it. Practical steps:

• Locate the Exemption Registration Form on the OHCA website (forms.office.com link in the opinion's footnote 5).
• Submit the form. The exemption is granted on request and renews annually unless you withdraw it.
• The exemption also relieves you from subscription and connection fees.

If you want to participate, no action is required. You can connect to the HIE through approved EHR systems.

If you are a Medicaid provider in Oklahoma's managed care program

Your situation is more complex. Section 4002.5(L) requires participating providers in the State's managed care Medicaid program to use the HIE. The OHCA emergency rule speaks to § 1-133, not § 4002.5(L), so its application to Medicaid providers is unclear. The AG's footnote 4 says the analysis of § 4002.5(L) is "outside the scope" of this opinion.

Practical steps:

• If you are a managed-care Medicaid provider, ask OHCA whether the exemption rule extends to you. The opinion suggests it does in practice, but the legal relationship between § 4002.5(L) and the rule is not fully resolved.
• Watch for legislative action: the AG explicitly suggested the Legislature revisit § 4002.5(L) to align it with the exemption framework.

If you do not have an EHR system

You are categorically exempt under OAC 317:30-3-35(d)(2). No registration needed.

If you operate a substance abuse treatment facility

You are categorically exempt under OAC 317:30-3-35(d)(2).

If you are at OHCA

The opinion confirms your emergency rule is the constitutional safety valve that keeps the HIE statute from violating Article II, § 37. Repromulgating the emergency rule as a permanent rule will preserve the constitutional posture. If the rule lapses, the constitutional question reopens.

If you are an Oklahoma legislator

Two action items:

1. Consider whether to amend § 4002.5(L) to make Medicaid managed-care HIE participation also subject to the OHCA exemption framework, removing the inconsistency the opinion flags.
2. If you want to make HIE participation truly mandatory, you would need to either repeal Article II, § 37 by constitutional amendment or limit § 37 to a different scope. Under the current Constitution, mandatory participation is constitutionally barred.

If you are a patient

This opinion does not change your rights as a patient. The HIE only governs provider participation. Your rights to access your own medical records, opt out of HIE data sharing as a patient, and so on, are governed by HIPAA and other patient-specific laws.

Common questions

Q: What is Oklahoma's Health Information Exchange?
A: A statewide electronic health information exchange that allows providers to share patient medical information securely and electronically. Oklahoma's HIE is operated by a private entity governed by its stakeholders, designated by the State under 63 O.S. § 1-133.

Q: What is Article II, § 37?
A: The "health care opt-out" amendment passed by Oklahoma voters in 2010 as State Question 756, an Affordable Care Act response. It bars laws and rules from compelling people, employers, or providers to participate in any health care system.

Q: Why isn't this an unconstitutional compulsion?
A: The OHCA emergency rule grants an exemption to any provider who asks. Compulsion requires no opt-out; this is opt-in by request. The AG treats functional voluntariness as constitutional voluntariness.

Q: What happens if the OHCA emergency rule expires?
A: Without the rule, § 1-133(C) becomes a true mandate, and the constitutional question reopens. The AG's footnote 8 says: "[t]o the extent the emergency rule is withdrawn or not repromulgated as a permanent rule, or the Legislature otherwise makes participation an absolute requirement, the analysis and answer to each of your questions may change."

Q: Why didn't the AG answer the second question (about contracting with a private HIE entity)?
A: AG opinions can decline hypothetical questions. Because no provider is currently compelled to contract with the HIE, the question is hypothetical.

Q: Was State Question 756 about Obamacare?
A: Yes. The opinion is direct: "Unequivocally, the message of State Question 756 was 'Oklahomans want no part of Obamacare.'" The amendment was passed shortly after the federal ACA, and the federal litigation in Pruitt v. Sebelius (E.D. Okla. 2013) confirmed it was adopted as an Oklahoma response.

Q: What about Medicare?
A: Medicare and Medicaid currently do not require HIE participation as a condition of provider participation, but federal regulators have signaled that may change in the future. The opinion notes this in footnotes about the federal HITECH Act and ONC HIT strategy.

Q: Are providers paid to participate?
A: Federal HITECH funds offered incentives for HIE adoption, including a 90/10 federal match through 2021. Most direct incentive programs have ended. Providers now generally pay subscription fees to participate (which are waived for those who claim the exemption).

Q: Does this opinion bind OHCA or future administrations?
A: AG opinions are binding on state officials except where they declare a statute unconstitutional. This opinion concludes the statute is constitutional as currently administered, so it is binding on OHCA. Future administrations could change OHCA's rule, but the constitutional analysis would then need to be reassessed.

Background and statutory framework

Oklahoma's HIE was authorized by 63 O.S. § 1-133 and related statutes. The HIE is a private entity governed by stakeholders, designated by the State to be the central electronic exchange for Oklahoma health care information. The federal HITECH Act of 2009 provided incentives for state-level HIE adoption, and OHCA implemented Oklahoma's HIE under those incentives.

Article II, § 37 was added to the Oklahoma Constitution by State Question 756 in 2010. The amendment had three core protections:

1. No law shall compel any person to participate in a health care system.
2. No law shall compel any person to participate in a health care plan, including a public option.
3. No law shall compel direct payment to or restrict payment to any healthcare provider in lawful exchange for services.

The AG focuses on the first protection because that is the one the HIE statute potentially implicates.

The OHCA emergency rule (OAC 317:30-3-35) was approved by Governor Stitt on August 3, 2023, two months before this opinion. The rule's expansiveness is what saves the statute. By making the exemption automatic on request, the rule transforms a statutory mandate into a practical opt-in.

The AG's quasi-judicial declination of the hypothetical question rests on Richardson v. OTC (2017), which holds that justiciable matters are "definite, concrete, and capable of a decision granting or denying specific relief of a conclusive nature." Speculative questions about future regulatory regimes are not justiciable, and the AG (acting in a quasi-judicial capacity per 2015 OK AG 8 and Turpen) can decline them.

Citations and references

Constitution and statutes:
- Okla. Const. art. II, § 37 (Health care opt-out)
- 63 O.S. § 1-133 (Health Information Exchange)
- 56 O.S. § 4002.5 (Medicaid managed care HIE)
- OAC 317:30-3-35 (Emergency exemption rule)

Cases:
- State ex rel. Pruitt v. Sebelius, 2013 WL 4052610 (E.D. Okla. 2013) (Article II, § 37 was Oklahoma's ACA response)
- State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763 (AG quasi-judicial role)
- Richardson v. State ex rel. Okla. Tax Comm'n, 2017 OK 85, 406 P.3d 571 (justiciability)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-11.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-11

The Honorable Rob Standridge
Oklahoma State Senate, District 15
2300 N. Lincoln Boulevard, Room 418
Oklahoma City, OK 73105

October 12, 2023

Dear Senator Standridge:

This Office has received your request for an Attorney General Opinion in which you ask, in effect, the following questions:

1. Does requiring health care providers to participate in Oklahoma's Health Information Exchange ("HIE"), as set forth in title 63, section 1-133 of the Oklahoma Statutes, violate article II, section 37 of the Oklahoma Constitution?

2. Can the State of Oklahoma require physicians and other health care providers to contract with Oklahoma's HIE, which is a private entity?

I. SUMMARY

This Office concludes that Oklahoma's HIE does not violate article II, section 37 of the Oklahoma Constitution. Article II, section 37 provides, in pertinent part, that "[a] law or rule shall not compel, directly or indirectly, any . . . health care provider to participate in any health care system . . . ." Through exemptions afforded under Oklahoma law and an emergency administrative rule, participation in Oklahoma's HIE is voluntary. Accordingly, there is no compulsion to participate in a health care system and therefore no violation of article II, section 37 of the Oklahoma Constitution.

With respect to your second question, the fact that participation in Oklahoma's HIE is currently voluntary renders your question entirely hypothetical or abstract. "[T]he Attorney General is not required to render opinions on hypothetical or abstract questions," and, in the interest of exercising judicial discretion, in this instance will not.

II. BACKGROUND

Article II, section 37 was placed on the November 2010 ballot as State Question 756. The people of Oklahoma ultimately approved the state question with 64.73% of the vote, and it went into effect on November 12, 2010.

Article II, section 37 addresses participation in health care systems, health insurance, and direct payments for health care services. Pertinent to this opinion, section 37 provides that "[a] law or rule shall not compel, directly or indirectly, any . . . health care provider to participate in any health care system." OKLA. CONST. art. II, § 37(B)(1). The term "health care system" is defined as "any public or private entity whose function or purpose is the management of, [or] processing of . . . health care data or health care information for its participants."

More than a decade after the passage of State Question 756, two Oklahoma laws—title 56, section 4002.5 and title 63, section 1-133—were enacted relating to the utilization of a state-designated HIE. Subject to certain exceptions and exemptions, these statutes generally require health care providers to report data to and utilize the state-designated HIE.

Section 4002.5 is limited to each "participating provider" in the State's managed care Medicaid program. Whether any particular health care practitioner chooses to contract with Medicaid or accept employment with a contracted entity is, of course, an individual decision that the practitioner makes voluntarily.

With respect to the limitations of section 1-133, the Legislature has authorized the OHCA Board to promulgate administrative rules allowing exemptions from the requirements of section 1-133, including "on the basis of financial hardship, size, or technological capability of a health care provider or such other bases as may be provided by rules promulgated by the Board." OHCA recently promulgated an emergency rule that guarantees an exemption to any provider who does not want to participate in Oklahoma's HIE, regardless of whether the provider is a Medicaid provider.

III. DISCUSSION

A. Oklahoma's HIE does not violate article II, section 37 of the Oklahoma Constitution, because participation in Oklahoma's HIE is currently voluntary.

State law does not require practitioners to participate in the State's HIE, unless they voluntarily enroll as Medicaid providers or decide not to request a readily granted exemption from title 63, section 1-133(C) of the Oklahoma Statutes under the OHCA Board's newly approved emergency rule. As a practical matter, participation currently is discretionary.

Turning to section 1-133(C), that law generally requires "all health care providers . . . who are licensed by and located in this state [to] report data to and utilize" Oklahoma's HIE. The OHCA Board's emergency rule on Oklahoma's HIE was approved by Governor Stitt on August 3, 2023. The rule provides for multiple broad exemptions from the general requirement to report data and utilize the HIE.

The rule provides that any health care provider who registers an exemption with the Office of the State Coordinator for HIE "shall be granted such exemption and shall not be subject to pay subscription fees and/or connection fees." OAC 317:30-3-35(f)(1-2). Additionally, an exemption "will automatically renew annually unless the provider withdraws their exemption and elects to participate." Such a broad and unconditional exemption process transforms the statutory requirement into something more akin to an election that can be accepted or rejected according to the provider's preferences.

B. Judicial discretion requires restraint in answering abstract or hypothetical questions.

Even though the Attorney General is an executive officer of the State of Oklahoma, he or she acts in a quasi-judicial capacity when issuing Attorney General Opinions. "One of the requirements . . . [when] acting in a quasi-judicial capacity is to determine if a matter is 'justiciable.'" Justiciable matters are "definite, concrete, and capable of a decision granting or denying specific relief of a conclusive nature." Courts "will not decide abstract or hypothetical questions," and this Office may decline to do so as well.

Presently, because participation in Oklahoma's HIE is voluntary, answering your second question requires engaging in an entirely hypothetical and abstract discussion of a non-justiciable matter. Accordingly, this Office refrains from answering your second question.

It is, therefore, the official Opinion of the Attorney General that:

Because of the broad exemption under the current version of Oklahoma Administrative Code 317:30-3-35, there is no compulsion to participate in a health care system and no violation of article II, section 37.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

MARIA MAULE
SENIOR ASSISTANT ATTORNEY GENERAL