Judge Will Decide If the Statute Creating the Oklahoma Health Care Exchange is Unconstitutional

Posted By: Micah Perkins Legislation,

On November 21, 2023 the Daily Oklahoman reported that The Honorable Anthony Bonner, an Oklahoma County judge, will soon reach a decision regarding a contentious lawsuit targeting the Oklahoma Health Care Authority and its health information exchange system. 

The lawsuit, initiated in early October by the Oklahoma Fraternal Order of the Police and four medical professionals in Oklahoma County, calls for a declaration of the unconstitutionality of the statutes sanctioning and establishing the exchange. Additionally, the legal action seeks a temporary injunction to suspend the transfer of any private medical information until a conclusive court decision is made on the fate of the information exchange. 

At the heart of this legal battle is Senate Bill 1369, which came into effect in 2021 and created the Health Information Exchange at the Oklahoma Health Care Authority. The bill stipulates that while individuals retain rights to the data they provide to the exchange, they also grant a nonexclusive license for others involved in their medical care to retrieve and utilize this information.  

Critics, including privacy advocates and mental health professionals, have expressed apprehension about these regulations. They fear that the new provisions could deter individuals from seeking medical treatment if they become aware that their personal information might be accessed by unauthorized parties. 

The Oklahoma Fraternal Order of Police is concerned that its members’ private information may be leaked, hacked, or used to extort officers.  

In fact, in February of 2022 the Oklahoma Health Care Authority self-reported a leak of its own to the U.S. Department of Health and Human Services Office of Civil Rights, which reportedly included names, dates of birth, addresses, Social Security numbers, and account information of 8,629 individuals. 

On November 17, 2023, Judge Anthony Bonner heard arguments regarding the lawsuit. Attorney Robert McCampbell, representing the state, advocated for the dismissal of the lawsuit, citing the Oklahoma Constitution's allowance for the Legislature to establish a health information exchange. McCampbell contended that doctors were not compelled to join the exchange. 

McCampbell's argument hinged on an opinion by Attorney General Gentner Drummond, asserting that the exchange aligns with the state constitution.  

In response, attorney Bob Burke, representing the four physicians, and Austin Vernier, representing the Fraternal Order of Police, countered that the basis for the Attorney General's opinion rested on the flawed assumption of voluntary participation by medical service providers. They highlighted a hastily constructed rule by the Oklahoma Health Care Authority, allowing providers to opt out of the exchange while the actual statute mandates healthcare providers to report data to and use the exchange. 

Burke stressed that this compelled participation violated privacy rights and raised concerns about the indiscriminate access to individuals' medical records without their explicit consent. He emphasized the potential for third-party administrators to sell personal medical information, labeling it a troubling invasion of privacy. 

Judge Bonner announced he would issue an order declaring if the statute establishing the Health Information Exchange is unconstitutional within the next two weeks.

Content generated by Chat GPT 3.5 Additional content and editing by Micah Perkins, LPC, LADC. 

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