Is Oklahoma's health information exchange an invasion of privacy? A look at the arguments in a lawsuit

An Oklahoma County judge said he would decide soon whether or not to dismiss a lawsuit against the Oklahoma Health Care Authority and its health information exchange system.

In early October, the state's largest police union and four physicians filed a lawsuit in Oklahoma County, asking the court to declare unconstitutional the statutes that authorized and set up the exchange. The lawsuit also seeks a temporary injunction to halt the transfer of any private medical information until a court can decide the fate of the information exchange.

The lawsuit is a response to Senate Bill 1369, which became law in 2021. The measure created the Health Information Exchange at the Oklahoma Health Care Authority. Under the bill, any person who provides information and data to the health care information exchange retains a property right to that data but-also “grants to the other participants or subscribers a nonexclusive license to retrieve and use that information or data under relevant state or federal privacy laws.”

Privacy advocates and mental health professionals said they were concerned by the rules. They said they were worried the new rules would make people less willing to seek treatment if they knew their personal information could be viewed by others.

Are doctors compelled to upload patient information to Oklahoma's information exchange? A look at the arguments

Last Friday, Oklahoma County District Judge Anthony Bonner heard arguments in the lawsuit. Attorney Robert McCampbell, representing the state, said the lawsuit should be dismissed. The Oklahoma Constitution, McCampbell said, allows the Legislature to set up an health information exchange.

McCampbell said doctors were not being compelled to join the exchange, even though a large number of doctors and hospitals treat Medicaid and Medicare patients and are required by state law to upload their patients' information.

McCampbell's argument, centered around an opinion by Attorney General Gentner Drummond, said the exchange does not violate the state constitution. McCampbell wrote the plaintiffs lack the standing to pursue a claim, adding that the plaintiffs failed to state a claim where relief can be granted.

More: Police, physicians say Oklahoma's system for sharing medical records is unconstitutional

"To the extent a response is required, the allegations are vague and do not specify what portions of the statue or emergency rule it references," McCampbell wrote. "As such (we) are without sufficient information to admit or deny the allegations and therefore deny the same."

The defendants, McCampbell wrote, admit that all providers who apply for an exemption will be granted one.

Oklahoma City attorney Bob Burke represented the four physicians in the lawsuit; Austin Vernier, from Bethany, represented the 6,000 members of the Fraternal Order of Police.

Burke said the argument to dismiss the case was "flat out wrong."

"The basis for the AG's opinion is the incorrect assumption that medical service providers participation in the HIE is voluntary," Burke said in a statement to the Oklahoman. "The AG and counsel for the defendants point to a hastily constructed rule by the Oklahoma Healthcare Authority that says any health care provider who wants to may opt out of the statute that created the HIE. (It) is painfully clear to those citizens of this state who want to keep their medical records private that the statute says health care providers shall report data to and utilize the HIE."

Because of that, the exchange, Burke said, was a violation of privacy.

"It scary," Burke said. "By the defendants’ rules, if I get hurt in a car wreck and go to an emergency room, that hospital is allowed to retrieve my medical records, even if I was aware of the HIE and told the third party administrator of the system to not allow my information to be viewed."

An individual, Burke said, can’t keep the third party from selling their information. "It is a scary invasion of privacy," he said.

Bonner said he would issue an order within two weeks.

This article originally appeared on Oklahoman: Ruling coming soon on suit over Oklahoma's health information exchange