The Oklahoma Health Care Authority (OHCA) Board voted to table the approval of an emergency rule related to Gov. Kevin Stitt’s recent anti-abortion executive order, which asked the agency to take certain actions regarding provider contracting.
The proposed emergency rule works to implement the executive order by requiring all Oklahoma Medicaid, or SoonerCare, providers to submit a signed attestation disclosing whether they or any related entities engage in abortion-related activities, including referral or affiliation. Board members expressed concerns surrounding a lack of clarity on what certain words, like affiliation, mean in this instance.
The OHCA board plans to have a special meeting to reach Stitt’s deadlines.
What does the executive order say?
Stitt issued an executive order July 31, which asked OHCA to update its credentialing and contracting procedures to exclude certain providers or entities from new or renewed participation in SoonerCare. That includes:
- Those who perform, refer for or are affiliated with the performance of abortions not permitted under state law.
- Those under common ownership or control with an entity engaged in abortion-related activities inconsistent with state law.
The order directs OHCA to conduct a review and revision of its provider credentialing standards to ensure only providers who “are fully aligned with Oklahoma’s public policy objectives, including the protection of unborn life,” can participate in the state Medicaid program.
It requires all providers to submit a signed attestation disclosing whether they, or any related entities, engage in “abortion-related activities,” as a condition of participation in Oklahoma’s Medicaid program.
Those attestations were sent out via email Monday. It asks providers to attest to two statements, based on a definition of abortion in state statute, and to provide details regarding their response.
A letter sent to providers notes that failing to complete, sign and return the attestation by 5 p.m., Nov. 21, will be considered non-compliance with the executive order. It said providers could experience payment suspension, and contract denial or termination.
Rhiannon Wheeler Sisk, one of OHCA’s managing attorneys, said Tuesday any entity and individual provider contracted through SoonerCare has to fill out an attestation. She said the agency has an implementation deadline of Nov. 28.
“At that point, anyone who's not responded, we will be reaching out again, saying, ‘Do you need assistance? Do you have questions?’ so that they have an additional period to fill that out and get it back to us before we take any action,” Wheeler Sisk said.
Wheeler Sisk said OHCA has sole discretion to determine if providers are in compliance with Oklahoma public policy.
“We're going to do our best to handle these things on a case-by-case basis so that we are not just automatically terminating contracts or automatically suspending payments to a large number of providers because we too are concerned about that,” Wheeler Sisk said. “We want to make sure that we’re taking care of our members.”
Stitt’s executive order requires OHCA to submit a written report to the governor’s office at the end of the year, outlining enforcement efforts, compliance and the number of impacted providers.
What did board members have to say?
Board Vice Chairman Alex Yaffe presented a list of proposed rule changes for the OHCA board’s consideration Tuesday.
Discussions regarding the provider attestation rule lasted about an hour. Yaffe said tribes and providers expressed concerns about “vague language, scope of affiliated entities, potential overreach and due process.”
Board member Dr. Jeffrey Cruzan said he has questions on the word “affiliated.” In the policy that would be amended to include the emergency rule, the term "affiliates" is defined as “persons having a relationship in which any of them directly or indirectly controls or has the ability to control one or more of the others.”
“I don't know if that just simply means a referral, because is that a control?” Cruzan said. “Does it mean I have a voting privilege? What does that actually mean?
“To the best of my ability, I can attest to what I do, but I really don't know what somebody else does,” Cruzan added.
The executive order itself does not provide any definitions for terms like “abortion-related activities” or “affiliate,” Wheeler Sisk said. She said the older rule they’re amending includes the definition of affiliate, and she thinks, for ease, it could be used as a baseline.
Other board members expressed concerns, including Yaffe, who asked if, for example, a primary care provider attests they are in compliance, whether there is a follow-up to make sure that is true, based on what definitions are interpreted to be.
“If there is a determination by OHCA that a provider is in violation of this attestation, there are significant repercussions with medical boards, with insurance, other commercial insurance carriers, with malpractice insurance carriers,” Yaffe said. “Because if you lose a federal contract, that stays with you your entire life, and you may not get any other contracts.”
Board member Kevin Corbett said guidance should be offered to support providers and give them consistent advice on how this would be administered.
Oklahoma Medicaid Director Christina Foss said if board members want to table the rule and make some changes, they can do so based on their own recommendations. That could be brought back to a special meeting.
Yaffe moved to table the vote on the emergency rule. The board voted to approve that motion.
Board Chairman Marc Nuttle said he hopes to help the board resolve confusion.
“And, if we need another executive order, I'm glad to go get one,” Nuttle said.
An OHCA spokesperson told StateImpact the agency is still accepting attestations.
“When those definitions are clarified, or whenever, if we need to clarify anything, then the providers will have the opportunity to amend or resubmit if needed,” the spokesperson said.
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