A vote from the Oklahoma Health Care Authority board to approve an emergency rule related to Gov. Kevin Stitt's recent anti-abortion executive order failed in a Monday special meeting. Members cited concerns about the order's legality and impact on providers.
The proposed emergency rule worked to implement the July 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.
A news release from July states this order follows the U.S. Supreme Court's decision in Medina v. Planned Parenthood South Atlantic. The court ruled that a South Carolina woman and Planned Parenthood don't have a legal right to sue South Carolina for its decision to exclude Planned Parenthood from the state's Medicaid program based on the organization's provision of abortions.
"It's no secret that money given to organizations like Planned Parenthood here in Oklahoma is used for abortions in other states," Stitt told StateImpact. "As Governor, it's my job to ensure that Oklahoma taxpayer dollars are only used for purposes that align with Oklahoma values."
Deadlines for implementation were set in the executive order, with plans to wrap up toward the end of the year. Providers were given until 5 p.m. Nov. 21 to return their completed and signed attestation. Those attestations were emailed to providers Sept. 29.
A rule was first considered in a Sep. 30 meeting. Board members moved to table it, citing concerns about a lack of clarity on what words like affiliation meant and the consequences providers could face. A provider could be denied, excluded, not renewed or terminated from participating in Oklahoma Medicaid if they were found to be noncompliant.
OHCA sought to provide clarity through an FAQs document and a revised rule considered during their board's special meeting. The rule included definitions of "affiliated with," "refer for" and "abortion-related activities."
Cori Loomis, an attorney at McAfee & Taft who attended the meeting to represent the Oklahoma State Medical Association during public comment, thanked the board for working to parse out the rule's details. But she said providers were still anxious.
"And a lot of them view it as, 'Is this like a gotcha moment?'" Loomis said.
One of those providers is Dr. Angela Hawkins, chair of the Oklahoma section of the American College of Obstetricians and Gynecologists. She said the language was very confusing and broad, creating a threat of misinterpretation that could result in the loss of providers' Medicaid contracts."Which then affects their practice [and] affects their patients," Hawkins said.
As board members discussed the revised rule, member Clark Jolley, a former state senator, argued the executive order was out of Stitt's purview, and it should be up to the Legislature.
He referenced a state statute Stitt relies on in his order, which prohibits health plans offered within the state from including coverage of elective abortions. He said the order goes a step further beyond measures passed by the legislature.
"I believe it could be considered legal error for this board, which is granted specific statutory authority to govern the policies of this agency, to align our agency's permanent rules based upon an executive order that uses an undelegated exercise of authority, instead of a statute passed through the legislature or legislative branch, upon which a close constitutional authority is vested," Jolley said.
Jolley said he wants to seek an opinion from the attorney general on whether the board must abide by the order's directive.
Vice chair Alex Yaffe said 77,000 contracted OHCA providers are in limbo.
Sending out attestations to providers before the board acted "was problematic," he said. He encouraged the board to vote down a motion to approve the rule and supported the agency getting more precise details and an extension.
"If not, I imagine that there will be folks in the provider community that will seek declaratory judgment for a temporary injunction to stay the execution of these attestations until we get cleared either from the courts or from the attorney general," Yaffe said.
Board chair Marc Nuttle praised this idea, saying he's concerned about the impact on providers and, in turn, Oklahomans' access to care.
"If you have 1,000 out of 77,000 that rejected it as some sort of boycott – now, who gets hurt on this?" Nuttle said. "Well, the citizens of Oklahoma."
The board's vote to pass the rule failed, with members Yaffe, Tanya Case and Jolley voting no, John Christ abstaining, and Nuttle and Kim Leland voting in favor. Dr. Jeffrey Cruzan recused himself. Members Phillip Kennedy and Kevin Corbett weren't present.
Yaffe said he thinks if the agency continues on the path of requiring attestations for credentialing and contracting with providers, it is asking for litigation.
"What I wish is that we could work with the governor's office to get clarity on what his intent is on this executive order, to work with our legislative partners and to try to get rules passed that are both in line with what his opinion is and his executive order is, but can also align with this board's thoughts," Yaffe said.
Nuttle said, as a lawyer, he doesn't think you can enforce attestation without rules, guidelines and policy.
The board unanimously approved a motion to seek the attorney general's opinion. It also unanimously passed a resolution to request that Nuttle and OHCA CEO Clay Bullard engage with Stitt to seek clarification on the order and work with him to postpone enforcement of the attestation requirement until rules have been passed by the board.
The agency did not respond to questions sent by StateImpact on what comes next for providers before publication. The board's next meeting is January 21, 2026.
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