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

In 2023, Senator Rob Standridge asked whether Oklahoma's laws requiring health care providers to use the state-designated Health Information Exchange (HIE) violated article II, § 37 of the state constitution. That provision says a law or rule shall not compel a health care provider, directly or indirectly, to participate in a health care system.

The Attorney General found no violation under the rules then in effect. A provider chose whether to enter the managed-care Medicaid program covered by 56 O.S.2021, § 4002.5(L). For the broader requirement in 63 O.S.2021, § 1-133(C), an emergency Oklahoma Health Care Authority (OHCA) rule gave an exemption to any provider who registered for one. The rule also flatly exempted providers without an electronic health record system and providers classified as substance abuse treatment facilities. Because participation was discretionary, the opinion found no unconstitutional compulsion.

Standridge also asked whether the State could require providers to contract with a private HIE entity. The Attorney General declined to answer that hypothetical question because providers were not then required to contract. Footnote 8 cautions that withdrawing the emergency rule, failing to make it permanent, or making participation absolute could change the analysis and answer. The opinion does not decide the validity of such a future mandate.

What this means for you

If you are an Oklahoma health care provider

At the time of this October 2023 opinion, the OHCA emergency rule said any provider who registered an exemption with the Office of the State Coordinator for HIE "shall be granted such exemption" and would not owe HIE subscription or connection fees. The opinion says the exemption renewed annually unless withdrawn. It also identifies categorical exemptions for providers without an EHR system or service and for substance abuse treatment facilities. Check the rule currently in force before relying on any of those 2023 procedures.

If you participate in managed-care Medicaid

The opinion says the OHCA rule guaranteed an exemption to a provider who did not want to participate in HIE, "regardless of whether" that provider treated members in Oklahoma's managed-care program. Footnote 4 expressly leaves the legal effect of § 4002.5(L) on that rule outside the requested analysis. If the Legislature supported the rule, the Attorney General suggested it might revisit § 4002.5(L) to repeal it or make the exemption's application explicit. For a current compliance decision, check both the statute and the current OHCA rule.

If you administer the HIE or draft legislation

The opinion's constitutional answer depends on the broad exemption available when it was issued. It does not say every future HIE requirement would be unconstitutional. Footnote 8 expressly says the answer "may change" if the exemption rule is withdrawn, is not made permanent, or the Legislature makes participation absolute.

Common questions

Did the opinion strike down Oklahoma's HIE statute?

No. It concluded that participation was voluntary under the 2023 law and emergency rule, so there was no violation of article II, § 37.

Could a provider without an EHR system still be required to join?

The opinion says the 2023 emergency rule "flatly exempts" providers that did not own or subscribe to an EHR system or service. The same passage names substance abuse treatment facilities. It does not evaluate later versions of the rule.

How did providers request the general exemption?

The opinion describes registration with the Office of the State Coordinator for HIE and says the exemption "shall be granted" on request. It reports that the exemption automatically renewed each year unless the provider withdrew it and elected to participate. These details describe the 2023 emergency rule.

Was the Medicaid HIE requirement treated the same way?

The opinion says joining managed-care Medicaid was voluntary. It also says the emergency rule's exemption was available regardless of Medicaid participation. Footnote 4 declines to analyze the effect of § 4002.5(L) on that rule and suggests legislative clarification if the Legislature supported the broad exemption.

What if the emergency rule expires or a future law makes HIE participation mandatory?

The opinion does not resolve that future question. Its footnote 8 says its analysis and answers "may change" if the rule is withdrawn or not made permanent, or if the Legislature otherwise makes participation an absolute requirement.

Why was the private-entity contract question unanswered?

Because HIE participation was voluntary under the then-current system, the Attorney General treated a compulsory contract as hypothetical and declined to issue an opinion on it.

Background and statutory framework

Oklahoma voters approved article II, § 37 as State Question 756 in 2010. It bars laws or rules that compel a health care provider to participate in a "health care system," defined to include an entity managing or processing health care data. The opinion discusses two later HIE provisions: § 4002.5(L) for participating providers in managed-care Medicaid and § 1-133(C) for licensed Oklahoma providers more broadly. The latter authorized OHCA to make exemption rules.

The OHCA Board's emergency rule, approved in August 2023, offered the broad exemptions on which the opinion relied. The opinion does not resolve how a later rule, statutory amendment, or absolute mandate would fare under the constitution. It also notes that its second question, a mandatory contract with a private HIE, was abstract under the regulatory system it examined.

Source

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

Original opinion text

GENTNER DRUMMOND

ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-11
The Honorable Rob Standridge October 12, 2023

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

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... .” OK Const. art. II, § 37(B)(1) (emphasis added). 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. 2006 OK AG 35. To do otherwise is premature.

Il.
BACKGROUND

Article II, section 37 was placed on the November 2010, ballot as State Question 756 after it was passed by a joint resolution of the Oklahoma Legislature (Senate Joint Resolution 59). The people

313 N.E. 21ST STREET * OKLAHOMA CITY, OK 73105 + (405) 521-392] * Fax: (405) 521-624 The Honorable Rob Standridge A.G. Opinion Oklahoma State Senate, District 15 Page 2

of Oklahoma ultimately approved the state question with 64.73% of the vote, and it went into effect on November 12, 2010.

Prior to placing State Question 756 on the ballot, the Speaker of the Oklahoma House of Representatives requested that a prior administration of this Office remove the final paragraph of the ballot title. See Letter from Chris Benge, Speaker of the Okla. H.R. to Drew Edmondson, Okla. Att’y Gen. (June 22, 2010) (on file with author). In response, Attorney General Edmondson declined the request, stating that the language in the final paragraph was necessary, in part, because one of the primary purposes of the measure was the State opting out of the Patient Protection and Affordable Care Act (“‘ACA” or “Obamacare”). See Letter from Drew Edmondson, Okla. Att’y Gen. to Chris Benge, Speaker of the Okla. H.R. (July 7, 2010) (on file with author). Representative Mike Thompson, who co-authored the measure to place the state question on the ballot, said State Question 756 “is the answer to a [sic] Oklahoma citizens about opting out of Obama care.” Id. Unequivocally, the message of State Question 756 was “Oklahomans want no part of Obamacare.” Opinion, SQ 756: Health Care Opt-Out, OKLAHOMAN (Oct. 17, 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.” Id. at (A)(3).

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

'See also State ex rel. Pruitt v. Sebelius, No. CIV-11-30-RAW, 2013 WL 4052610 at *5 (E.D, Okla. Aug. 12, 2013) (explaining how the effective date “makes clear that the Oklahoma provision was adopted in response to the ACA ... ‘to immunize [Oklahoma] citizens from federal law’”) (citation omitted); Attorney General-Elect Ready to Defend Opting Out of Federal Health Care Law, NEWS 9 (Nov. 3, 2010, 6:21 PM), https://www.news9.com/story/5e35b39a83eff40362bee3c8 /attomey-generalelect-ready-to-defend-opting-out-of- federal-health-care-law; Leighanne Manwarren, State Question 756 Asks Oklahomans to Opt Out of the Federal Health Care Plan, OKLA, GAZETTE (Oct. 28, 2010), https://www.okgazette.com/news/state-question-756-asks- oklahomans-to-opt-out-of-the-federal-health-care-plan-2948572; Barbara Hoberock, House Veto Override Puts Opt- Out Bill on Ballot, TULSA WORLD (May 26, 2010), https://tulsaworld.com/news/local/govt-and-politics/house-veto- override-puts-opt-out-bill-on-ballot/article_2 1e57429-ef12-56a4-8e67-fe9dd97af9a3.htm!; Julie Bisbee, Oklahoma Senate Backs Public Vote on Federal Health Care Opt Out, OKLAHOMAN (May 6, 2010), https://www.oklahoman.com/story/news/politics/20 10/05/06/oklahoma-senate-backs-public-vote-on-federal-health- care-opt-out/61251286007/.

HIE “allows health care professionals and patients to appropriately access and securely share a patient’s medical information electronically[,]” to, among other things, “[p]rovide safer, more effective care tailored to patients’ unique medical needs.” See OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION TECHNOLOGY (“ONC HIT”), https://www.healthit.gov/topic/health-it-and-health-information-exchange-basics/health-information- exchange (last visited Oct. 11, 2023).

After the enactment of the Health Information Technology for Economic and Clinical Health Act (“HITECH”), as part of the American Recovery and Reinvestment Act of 2009, the federal government offered significant financial incentives for health care providers to adopt electronic health records (“EHR”) and participate in The Honorable Rob Standridge A.G. Opinion Oklahoma State Senate, District 15 Page 3

providers to report data to and utilize the state-designated HIE. See 56 O.S.2021, § 4002.5(L); 63 O.S.2021, § 1-133(C). Section 4002.5 is limited to each “participating provider” in the State’s managed care Medicaid program, defined as “a provider who has a contract with or is employed by a contracted entity to provide services to Medicaid members . . . .” 56 O.S.2021, § 4002.2(15). 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. Medicaid providers must affirmatively enroll in Medicaid. See Oklahoma Health Care Authority (“OHCA”), https://oklahoma.gov/ohca/providers/provider-enrollment.html (last visited Oct. 11, 2023).

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.” 63 O.S.2021,
§ 1-133(C). As will be discussed in greater detail below, 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 who treats members within Oklahoma’s managed care program. See OAC 317:30-3-35. As a result of the prohibitions and mandates that appear to exist in article II, section 37, title 63, section 1-133 and title 56, section 4002.5, respectively, this opinion addresses whether the statutory provisions violate those in the constitution. In this Office’s opinion, they do not.

HIEs, including a 90/10 federal match rate through 2021. CENTERS FOR MEDICARE & MEDICAID SERVICES (“CMS”), ONC HIT, Principles and Strategy for Accelerating Health Information Exchange (HIE) (Aug. 7, 2013), https://www.healthit.gov/sites/default/files/acceleratinghieprinciples_strategy.pdf; CMS, Federal Financial Participation for HIT and HIE, — https://www.medicaid.gov/medicaid/data-systems/health-information- exchange’ federal!-financial-participation-for-hit-and-hie/index. htm! (last visited Oct. 11, 2023).

Health care providers are not currently required to join an HIE as a condition of participation for Medicare or Medicaid, but could well be, in the future. See CMS, ONC HIT, Principles and Strategy for Accelerating Health Information Exchange (HIE) (Aug. 7, 2013), https://www.healthit.gov/sites/default/files/acceleratinghieprinciples
_strategy.pdf (“HHS’ approach to accelerating HIE among health care providers is expected generally to follow a natural lifecycle of incentives followed by payment adjustments and finally through conditions of participation in Medicare and Medicaid programs as HIE becomes an established enabler of patient-centered care delivery.”).

3However, not all Medicaid member populations are part of the State’s managed care program, including, “the aged, blind, and disabled populations,” 56 O.S.2021, § 4002.3a(A)(2), and American Indians and Alaska Natives, the latter of which may opt into managed care. 56 O.S.2021, § 4002.3c. As a result, the requirement to submit data through Oklahoma’s HIE may not apply to all Medicaid providers, including, for instance, providers who only treat members exempted from the State’s managed care program, like gerontologists. The Honorable Rob Standridge A.G. Opinion Oklahoma State Senate, District 15 Page 4

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.

As detailed above, the requirement to use Oklahoma’s HIE is only triggered if a health care practitioner voluntarily elects to enroll in Medicaid. Because section 4002.5 is contingent on a voluntary decision of the practitioner, there is no violation of article II, section 37.

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. 63 O.S.2021,
§ 1-133(C). The statute also allows OHCA to authorize exemptions from participation “on the basis of financial hardship, size, or technological capability . . . or such other bases as may be provided by rules promulgated by” OHCA’s Board. Id. 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.

First, the rule flatly exempts health care providers that do not currently own or subscribe to an EHR technology system or service, and it exempts health care providers classified as substance abuse treatment facilities. See OAC 317:30-3-35(d)(2). Then, the rule most significantly 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.” Id. at (f)(1-2) (emphasis added). Stated otherwise, a blanket exemption from the HIE “shall be granted” to any health care provider who asks for such an exemption. An easily accessible Exemption Registration Form is located on OHCA’s website. OHCA, https://forms.office.com/Pages/ResponsePage.aspx?id=ZHeywmpg-CE-CnKL Ys8yxaxk5dkedSt

GrCkW70U20nZU0041SZFZMTZZVFRDUFVCNINZMVRZSORCUSQIOCNOP Weu (last
visited Oct. 11, 2023). Additionally, an exemption “will automatically renew annually unless the provider withdraws their exemption and elects to participate.” OAC 317:30-3-35(f)(3). Such a broad and unconditional exemption process transforms the statutory requirement into something

‘Because it is outside the scope of your question, this opinion will not analyze the effect of title 56, section 4002.5(L) of the Oklahoma Statutes on the OHCA Board’s rule, which statute only applies to Medicaid providers within the State’s managed care program. However, if the Legislature supports the OHCA Board’s rule—which grants an exemption to participation in the State’s HIE to any provider who asks for an exemption, regardless of whether the provider is a Medicaid provider within the managed care program—it may want to revisit the language in title 56, section 4002.5(L), either to repeal it or to make explicit that exemptions to participation under title 63, section 1-133(C) equally apply to title 56, section 4002.5(L).

5The Office of the State Coordinator for Health Information Exchange is a division of OHCA. See 63 0.8.2021, § 1-132.1. The Honorable Rob Standridge A.G. Opinion Oklahoma State Senate, District 15 Page 5

more akin to an election that can be accepted or rejected according to the provider’s preferences. Simply put, the State is just not requiring physicians and other health care providers to contract with a private entity® for services under the present regulatory system.

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, OKLA. CONST. art. VI, § 1(A), he or she acts in a quasi-judicial capacity when issuing Attorney General Opinions. See 2015 OK AG 8, { 16 (citing State ex rel. York v. Turpen, 1984 OK 26, { [11], 681 P.2d 763, 767).’ “One of the requirements . . . [when] acting in a quasi-judicial capacity is to determine if a matter is ‘justiciable.”” 2006 OK AG 35. Justiciable matters are “definite, concrete, and capable of a decision granting or denying specific relief of a conclusive nature.” Richardson v. State ex rel. Okla. Tax Comm’n, 2017 OK 85, 7 5, 406 P.3d 571, 573 (citation omitted). Courts “will not decide abstract or hypothetical questions,” id., and this Office may decline to do so as well, in appropriate circumstances. 2006 OK AG 35.

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 317:30-3-5, 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

Although the State “[m]Jay temporarily serve as the state-designated entity” as part of a “transition plan,” Oklahoma’s HIE is a private entity, “whose primary business activity is [HIE] and which is governed by its stakeholders.” 63 O.S.2021, § 1-133(A)(2), (B)(3).

7The 2015 Opinion references paragraph 9 of Turpen; however, the appropriate reference is to paragraph 11.

®To 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.