Volume 97 — No. 3 — March 2026 ALSO INSIDE: Leave No Veteran Behind • Law Day 2026 OBA Leadership Academy: Meet Class Nine • PRC/PRT Annual Reports Health Law
JOIN AN OBA COMMITTEE TODAY! ONE ASSOCIATION MANY OPPORTUNITIES Get more involved in the OBA, network with colleagues and work together for the betterment of our profession and our communities. More than 20 active committees offer you the chance to serve in a way that is meaningful for you. Now is your opportunity to join other volunteer lawyers in making our association the best of its kind!
contents March 2026 • Vol. 97 • No. 3 PLUS 44 Leave No Veteran Behind By Judge Rebecca Brett Nightingale 48 Meet the Ninth Class of the OBA Leadership Academy 53 Chief Justice Colloquium on Civility and Ethics 54 OBA Day at the Capitol 55 Law Day 2026: Volunteers Needed! 56 Professional Responsibility Commission Annual Report 64 Professional Responsibility Tribunal Annual Report THEME: Health Law Editor: Melissa DeLacerda FEATURES 8 In Health Care, What You Don’t Know May Hurt You By Cori Loomis and Luke Moyer 14 Modern Legal Considerations for Medical and End-of-Life Care in Oklahoma By Corinne Taylor-Davis 22 HIPAA Compliance for Oklahoma Attorneys: Practical Tips and Compliance Considerations By Lauren K. Lindsey 26 Processing Health Records With AI Under HIPAA By Jason T. Seay, Philip D. Hixon and Richard M. Cella 32 Independent Practice, Supervision and Scope: A Legal Guide for PAs and APRNs in Oklahoma By Fareshteh H. Hamidi 40 Pillars Under Pressure: The Epidemic of Violence Against Nurses By Layla J. Dougherty DEPARTMENTS 4 From the President 6 Bar News in a Minute 68 From the Executive Director 70 Law Practice Tips 74 Oklahoma Bar Foundation News 78 Bench & Bar Briefs 80 In Memoriam 83 Editorial Calendar 84 Classified Ads 88 The Back Page PAGE 55 – Law Day 2026: Volunteers Needed
THE OKLAHOMA BAR JOURNAL 4 | MARCH 2026 administration of justice. They also emphasize cultural sensitivity and unbiased conduct, calling on lawyers to refrain from behavior that “exhibits or is intended to appeal to or engender bias” based on characteristics such as race, gender or disability. The standards also make clear that zealous representation does not require incivility or abrasive conduct. Lawyers are reminded that reasonable people can disagree without being disagreeable and that effective representation often is enhanced rather than hindered by courtesy and restraint. These expectations should not be merely aspirational. By guiding behavior that fosters respect and trust, the standards help maintain public confidence in the legal system. They also support lawyers in delivering competent and ethical service and reinforcing professional identity and public accountability. As OBA president, I am always excited to share the many ways the OBA supports its members in achieving these guiding principles. The Office of the Ethics Counsel is one example of the assistance the association provides. OBA members can call or email to obtain informal advice and interpretations of the rules of attorney conduct. The service is confidential and free for OBA members! The Office of the Ethics Counsel may be reached at 405-416-7055 or ethicscounsel@okbar.org. I encourage all Oklahoma lawyers to take advantage of this member benefit to ensure they adhere to the highest ethics standards of our profession. HAVE YOU EVER FOUND YOURSELF UNSURE how to proceed when a possible conflict arises or some other potentially thorny situation presents itself? The OBA Standards of Professionalism1 are a resource all Oklahoma lawyers should know about. Twenty years ago, the Board of Governors adopted the standards to set expectations for attorney behavior that go far beyond the minimum legal requirements, emphasizing honesty, civility and service as central pillars of legal practice. The standards outline how lawyers should conduct themselves with the public, clients, courts and other lawyers. They offer a framework for elevating professionalism in a system that relies on trust, respect and ethical conduct, representing the level of behavior we expect from each other and the public expects from us. The Standards of Professionalism were intended to fill the gap between rules and real-world practice, recognizing that minimum conduct, dictated by disciplinary rules, is not always sufficient to sustain the dignity and effectiveness of the legal profession. They remind us that the practice of law is a learned profession grounded in public service, integrity and civility. For practicing attorneys, this matters in everyday interactions. The standards call for prompt communication with clients and opposing counsel, truthful representations to courts and parties and proactive efforts to avoid needless costs, delays and conflict. Lawyers are encouraged to participate in pro bono work and organized activities that improve the Bearing the Standard: Why the OBA Standards of Professionalism Matter to Lawyers From the President By Amber Peckio Amber Peckio is a solo practitioner with the Amber Law Group of Tulsa. 918-895-7216 amber@amberlawgroup.com (continued on page 73)
MARCH 2026 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN DAVIS Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org Volume 97 — No. 3 — March 2026 AMBER PECKIO, President, Tulsa; JANA L. KNOTT, President-Elect, El Reno; S. SHEA BRACKEN, Vice President, Edmond; D. KENYON WILLIAMS JR., Immediate Past President, Sperry; MOLLY A. ASPAN, Tulsa; BENJAMIN J. BARKER, Enid; CODY J. COOPER, Oklahoma City; KATE N. DODOO, Oklahoma City; PHILIP D. HIXON, Tulsa; CHRIS D. JONES, Durant; CHAD A. LOCKE, Muskogee; KRISTY E. LOYALL, El Reno; BLAYNE P. NORMAN, Wewoka; WILLIAM LADD OLDFIELD, Ponca City; JEFF D. TREVILLION, Oklahoma City; LUCAS M. WEST, Norman; ALEXANDRA J. GAGE, Chairperson, OBA Young Lawyers Division, Tulsa The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $85 per year. Law students registered with the OBA and senior members may subscribe for $45; all active members included in dues. Single copies: $8.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2026 Oklahoma Bar Association. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director; Gina L. Hendryx, General Counsel; Julie A. Bays, Director of Management Assistance Program; Chris Brumit, Director of Administration; Beverly Petry Lewis, Administrator MCLE Commission; Gigi McCormick, Director of Educational Programs; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; John Morris Williams, Executive Consultant; Loraine Dillinder Farabow, Jana Harris, Jamie Jagosh, Katherine Ogden, Assistant General Counsels Barbara Acosta, Les Arnold, Jordyn Banta, Gary Berger, Hailey Boyd, Cassie Brickman, Amber Brumit, Cheryl Corey, Lauren Davis, Nickie Day, Ben Douglas, Melody Florence, Matt Gayle, Emily Buchanan Hart, Steve Jagosh, Debra Jenkins, LaRica Krischel, Rhonda Langley, Durrel Lattimore, Renee Montgomery, Jaycee Moseley, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair BECKY R. BAIRD, Miami MARTHA RUPP CARTER, Tulsa MELANIE WILSON RUGHANI, Oklahoma City EVAN A. TAYLOR, Norman MAGDALENA A. WAY, El Reno ALEX C. WILSON, Muskogee DAVID E. YOUNGBLOOD, Atoka
THE OKLAHOMA BAR JOURNAL 6 | MARCH 2026 Bar News in a Minute VOLUNTEER FOR LAW DAY ON MAY 1 Law Day will be celebrated statewide on Friday, May 1. Ask A Lawyer, as well as other Law Day-related events, will be held across Oklahoma, and volunteers are needed to make the day a success! There is an additional need for Spanish-speaking volunteers in Tulsa and Oklahoma counties for Ask A Lawyer throughout the day. To volunteer in Tulsa County, contact Mary Clement at mary@clementlegalok.com. To volunteer in Oklahoma County, contact Christi Chandler at office@okcbar.org. For other counties, visit www.okbar.org/cobar to contact your county bar president for Law Day chair information. County Law Day chairs, email communications@okbar.org with your contact information and details about your Law Day events. Visit www.okbar.org/lawday for more information. A NEW WAY TO EARN MCLE CREDIT Recently, the Oklahoma Supreme Court amended the rules for mandatory continuing legal education to include writing scholarly articles that are published in the Oklahoma Bar Journal. The MCLE Commission will award 6 credits per published article for each contributing author. Contact OBA Communications Director and Oklahoma Bar Journal Managing Editor Lori Rasmussen at lorir@okbar.org to learn more about this opportunity. Visit https://bit.ly/3ZepRZ3 to read the Supreme Court order. LHL DISCUSSION GROUPS TO HOST APRIL MEETINGS Monthly Discussion Groups: The Lawyers Helping Lawyers monthly discussion group will meet Thursday, April 2, in Oklahoma City at the office of Tom Cummings, 701 NW 13th St. The group will also meet Thursday, April 9, in Tulsa at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200. Women’s Discussion Groups: The Tulsa women’s discussion group will meet Tuesday, April 21, at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200; the Oklahoma City women’s discussion group will also meet Thursday, April 23, at the first-floor conference room of the Oil Center, 2601 NW Expressway. Each meeting is facilitated by committee members and a licensed mental health professional. The small group discussions are intended to give group leaders and participants the opportunity to ask questions, provide support and share information with fellow bar members to improve their lives – professionally and personally. Visit www.okbar.org/lhl for more information, and keep an eye on the OBA events calendar at www.okbar.org/events for upcoming discussion group meeting dates. SAVE THE DATE FOR THE OBA MIDYEAR CONFERENCE Save the date for the 2026 OBA Midyear Conference! This year’s event, which will be held June 17-19 at the OKANA Resort in Oklahoma City, will focus on CLE opportunities for all practitioners as well as programming for solo and small-firm practitioners. Just like the previous Solo & Small Firm Conference, the Midyear Conference will take place in a casual, family-friendly resort setting. We can’t wait to see you there! IMPORTANT UPCOMING DATES OBA Day at the Capitol will be held Tuesday, March 10, from 9 a.m. to 3 p.m. at the Oklahoma Bar Center in Oklahoma City. Law Day will be celebrated statewide on Friday, May 1. Visit www.okbar.org/lawday for more information. Be sure to docket the OBA Midyear Conference, to be held June 17-19 at the OKANA Resort in Oklahoma City.
MARCH 2026 | 7 THE OKLAHOMA BAR JOURNAL CONNECT WITH THE OBA THROUGH SOCIAL MEDIA Are you following the OBA on social media? Keep up to date on future CLE, upcoming events and the latest information about the Oklahoma legal community. Connect with us on LinkedIn, Facebook and Instagram. LET US FEATURE YOUR WORK We want to feature your work on “The Back Page” and the Oklahoma Bar Journal cover! All entries must relate to the practice of law and may include articles, reflections or other insights. Poetry, photography and artwork connected to the legal profession are also welcome. Photographs and artwork relating to featured topics may also be published on the cover of the journal. Email submissions of about 500 words or high-resolution images to OBA Communications Director Lori Rasmussen at lorir@okbar.org. 2026 CHIEF JUSTICE COLLOQUIUM ON CIVILITY AND ETHICS The Oklahoma Supreme Court invites you to attend the third annual Oklahoma Chief Justice Colloquium on Civility and Ethics. This year’s event, to be held April 1, will feature guest speakers U.S. Sen. James Lankford and former Oklahoma Attorney General Michael C. Turpen. Register at ok.webcredenza.com. REGISTER NOW FOR THE 2026 SOVEREIGNTY SYMPOSIUM Registration is open for the 38th annual Sovereignty Symposium. This event, presented by the OCU School of Law, will be held June 15-16 at the OKANA Resort in Oklahoma City. The symposium is currently inviting proposals for panel presentations and writing and poster competitions. The deadline for submissions is March 27. Visit www.sovereigntysymposium.com to learn more about the event. OBA DAY AT THE CAPITOL IS MARCH 10 On Tuesday, March 10, join us for this year’s OBA Day at the Capitol. The morning will kick off with speakers covering bills of interest, how to talk to legislators, legislative updates and more. Attendees will then have the opportunity to visit with legislators. Visit www.okbar.org/dayatthecapitol for more information and to register.
MARCH 2026 | 9 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Health Law In Health Care, What You Don’t Know May Hurt You By Cori Loomis and Luke Moyer HEALTH CARE PROVIDERS CANNOT PAY FOR BUSINESS GENERATION Paying for business generation is so commonplace that there are countless terms used to describe the practice: finder’s fees, referral fees, origination fees, sourcing fees, placement costs, etc. The list goes on. Some professions are sustained almost entirely on these types of fees. But in the context of federal health care programs, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), use a markedly different word to describe those arrangements: fraud. The same types of arrangements that are ubiquitous in other sectors are prohibited by a federal criminal statute called the AntiKickback Statute (AKS),1 which makes it a felony offense for anyone to knowingly and willfully solicit or receive any remuneration for referring an individual to a health care provider for the furnishing of a service payable under a federal health care program. The statute covers the other side of the transaction as well – anyone who knowingly and willfully offers or pays remuneration to induce a person to refer an individual to a health care provider for the furnishing of a service payable under a federal health care program is also guilty of a felony. In plain terms, paying to receive health care referrals or being paid to make health care referrals may result in a wardrobe that is less business casual and more jail-appropriate. Just ask Mary Smettler-Bolton, age 71, of Oakland County, Michigan. Her role in what appears to be a run-of-the-mill kickback scheme, under which the owners and operators of home health companies paid Ms. Smettler-Bolton for referrals, resulted in a federal conviction and a maximum potential penalty of 10 years in prison, according to a DOJ press release.2 Federal regulators take AKS violations seriously, citing the increased cost to federal health care programs caused by kickback THE HEALTH CARE INDUSTRY IS, PERHAPS, THE MOST REGULATED INDUSTRY in the United States. Business practices that are common and acceptable in other industries may be illegal in the health care industry. Lawyers who do not routinely practice health care law and do not stay up to date on the complex web of laws and regulations applicable to health care providers need to be careful not to inadvertently provide incorrect advice in reliance on legal principles of another industry that do not translate to the health care industry. The purpose of this article is to outline examples of situations in which business practices commonly used in other industries may cause real legal issues in the health care industry. Some key health care laws are counterintuitive and esoteric, and what you don’t know may hurt you.
THE OKLAHOMA BAR JOURNAL 10 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. schemes. In fact, the DOJ has an entire unit, staffed with 80 experienced white-collar prosecutors, focused exclusively on prosecuting health care fraud, including AKS violations.3 And if the regulators don’t detect the conduct, you can bet the False Claims Act bar will; Congress explicitly provided that AKS violations may form the basis of a False Claims Act lawsuit,4 including qui tam lawsuits brought by private plaintiffs. HEALTH CARE PROVIDERS CANNOT POST PICTURES FROM WORK OR RESPOND TO NEGATIVE ONLINE POSTS ABOUT THEM No one hates social media more than a hospital’s privacy officer. Why, you ask? Consider a few common scenarios: A group of new lab techs gathers around a table for a group photo, not noticing the lab order that is plainly visible in the resulting social media post, “First Day!” A labor and delivery nurse posts a picture of a brandnew family, “Look at Mom and Dad, so proud!” A physical therapist posts a photo of a happy but exhausted patient after a successful session, “Progress!” In each of the situations, the people posting the photos are happy and clearly proud of the work they are doing. Many employers would literally pay to get that type of positive, organic social media interaction. Enter the privacy officer, whose job it is to ruin the fun. What the privacy officer knows (and what our well-intentioned, if misguided, influencers will soon find out) is that disclosing “protected health information” (PHI) may violate the privacy rule5 that HHS implemented in connection with the Health Insurance Portability and Accountability Act (HIPAA), as amended. PHI is defined broadly to include most types of “individually identifiable health information,”6 almost certainly including the lab order and patients posted on social media. The privacy rule generally requires health care providers to obtain a written “authorization” prior to disclosing PHI.7 Verbal consent, especially in the context of social media posts, is typically not enough.8 The privacy officer knows, from much experience, that written authorizations are usually not obtained prior to making a spontaneous social media post. So the privacy officer will likely be forced to analyze the situation as a potential PHI breach, a laborious analysis dictated by HHS regulations,9 with the threat of HHS taking enforcement action lurking in the background. The privacy officer wonders, for perhaps the thousandth time, why they invented social media. It’s going to be a long day. The hospital’s chief marketing officer is also having a long day. One of the system’s employed physicians emailed this morning, demanding “DECISIVE ACTION” to address “THE INSIDIOUS MISINFORMATION ONE OF OUR PATIENTS POSTED ONLINE” (emphasis in original). The misinformation the physician is referencing is a Google review that accuses the physician of “malpractice that gave me a heart attack” (1 star). But, the physician points out, the patient’s heart attack “HAD ABSOLUTELY NOTHING TO DO WITH [the physician’s] QUALITY OF CARE AND EVERYTHING TO DO WITH THE PATIENT’S LOVE FOR FAST FOOD AND CHEESE CURDS” (emphasis in original). The physician would like the chief marketing officer to “GO ON THE OFFENSIVE” and post a detailed rebuttal explaining how the patient’s choices, and not the clinical decision-making of the physician, are to blame for the patient’s ailments. While marketing officers in other industries can and do rebut false reviews, our chief marketing officer is constrained by the same privacy rules that apply to the above social media posts. Disclosing the patient’s dietary choices and lifestyle, even to rebut a misleading public review, would likely involve a disclosure of PHI in violation of the privacy rule. HEALTH CARE PROVIDERS CANNOT PROVIDE SERVICES AT A DISCOUNT OR FOR FREE Helping people in need by either providing services, supplies or medications for free or at a discount sounds like a good thing, right? If a patient is having problems paying the full cost of a service or medication, providers often want to help by agreeing to waive their cost-sharing amounts under their health coverage as an accommodation to the patient. However, doing so can raise legal issues. From the payor’s perspective, there are two potential issues. First, payors typically contract with providers to pay, in part, based on the provider’s usual charges. The OIG has taken the position that routinely waiving copayments misrepresents the provider’s actual charges. Second, payors require copays and deductibles as a mechanism to curtail overutilization of services and reduce costs. Waiving cost-sharing is counterproductive to these goals.10 In the 1994 Special Fraud Alert: Routine Waivers of Copayments or Deductibles Under Medicare Part B,11 the OIG warned against the
MARCH 2026 | 11 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. following practices: 1) advertisements that state, “Medicare Accepted as Payment in Full,” “Insurance Accepted as Payment in Full” or “No Out‐of‐Pocket Expenses”; 2) advertisements that promise that “discounts” will be given to Medicare beneficiaries; 3) the routine use of “financial hardship” forms, which state that the beneficiary is unable to pay the coinsurance/deductible (i.e., there is no good faith attempt to determine the beneficiary’s actual financial condition); 4) the collection of copayments and deductibles only when the beneficiary has Medicare supplemental insurance (Medigap) coverage (i.e., the items or services are “free” to the beneficiary); 5) charges to Medicare beneficiaries that are higher than those made to other persons for similar services and items (the higher charges offset the waiver of coinsurance); and 6) the failure to collect copayments or deductibles for a specific group of Medicare patients for reasons unrelated to indigency (e.g., a supplier waives coinsurance or deductible for all patients from a particular hospital in order to get referrals). The OIG has indicated that it will not enforce the Civil Monetary Penalties Law (CMPL) and the AKS against providers who waive copays and deductibles based on the legitimate and documented financial hardship of the patient. The CMPL specifically excludes from the definition of “remuneration” the waiver of copays and deductibles if all of the following conditions are satisfied: 1) The waiver is not offered as part of any advertisement or solicitation, 2) the person does not routinely waive coinsurance or deductible amounts and 3) the person a) waives the coinsurance and deductible amounts after determining in good faith that the individual is in financial need or b) fails to collect coinsurance or deductible amounts after making reasonable collection efforts.12 On July 8, 2024, the OIG updated its “General Questions on Fraud and Abuse Authorities” (FAQs)13 related to the AKS and the CMPL with clarifications regarding waiving patients’ cost-sharing amounts pursuant to health care providers’ financial assistance policies. In the new FAQs (specifically Nos. 13-16), the OIG cites the AKS safe harbor and CMPL exception for waivers of cost-sharing amounts, which permits providers to waive patients’ cost-sharing amounts, provided that the waivers are not routine, not advertised, and made based on a good-faith, individualized assessment of financial need. Generally, it’s recommended that providers draft and implement a financial assistance policy that is consistently followed to make sure all patients in similar situations are addressed in the same manner and that proper documentation of a patient’s need is obtained. Using the federal poverty level is a good benchmark, but providers can incorporate “presumptive” categories of people entitled to financial assistance in their financial assistance policies, such as those on Medicaid. Providers can and often do add or permit other categories, such as the high cost of care and other special circumstances. CONCLUSION Health care law is not for the uninitiated. Its idiosyncrasies can turn otherwise routine legal work into a minefield for the unsuspecting practitioner, and the above examples are just the tip of the iceberg. Health care providers can also face steep fines or other consequences for seemingly innocuous oversights, like: Forgetting to sign a contract14 Forgetting to check this database,15 or this one,16 and (just to be safe) this one,17 this one,18 and this one too,19 prior to hiring or contracting with certain individuals No one hates social media more than a hospital’s privacy officer.
THE OKLAHOMA BAR JOURNAL 12 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Forgetting to include the correct esoteric contract clause in the correct esoteric contract20 And so many others When dealing with any issue that might have regulatory health care implications, sometimes it’s best to phone an expert to seek guidance – because what you don’t know may hurt you. ABOUT THE AUTHORS Cori Loomis is a health care attorney with McAfee & Taft who draws upon her extensive experience working in both private practice and public service to represent and counsel providers on a broad range of transactional, operational, legislative, administrative and regulatory compliance matters. In addition to working in private practice for more than 20 years, she previously served as the compliance officer and HIPAA privacy official for OU and as general counsel for the Oklahoma State Medical Association. Luke Moyer is a health care lawyer with McAfee & Taft whose practice encompasses the areas of health care transactions, day-to-day business consulting, federal and state administrative and regulatory compliance and HIPAA and health privacy matters. He is a certified information privacy professional/United States (CIPP/US), with extensive experience advising health care providers on emerging areas of privacy and security risk. He received his undergraduate degree from OSU and his J.D. from the TU College of Law. ENDNOTES 1. 42 U.S.C. §1320a-7b(b). 2. Press Release, U.S. Dept. of Justice, “Michigan Woman Convicted of $1.4M Health Care Kickback Scheme,” (Nov. 22, 2024), https://bit.ly/4t5HxDN. 3. U.S. Dep’t of Just., Criminal Div., Health Care Fraud Unit, https://bit.ly/4rfVbCI (last visited Oct. 7, 2025). 4. 42 U.S.C. §1320a-7b(g). 5. 45 C.F.R. Part 164, Subpart E. 6. 45 C.F.R. §160.103. 7. 45 C.F.R. §164.508. 8. 45 C.F.R. §164.506(b)(2). 9. 45 C.F.R. Part 164, Subpart D. 10. (42 USC 1390a‐7b(b)). Violations may result in a five-year prison term, $25,000 criminal penalty, $50,000 administrative penalty, treble damages and exclusion from Medicare and Medicaid (Id.; 42 CFR 1003.102). The Affordable Care Act also made an AKS violation an automatic violation of the False Claims Act, which may result in additional penalties of $5,500 to $11,000 per claim submitted and repayment of amounts improperly received (42 USC 1320a‐7a(a)(7); 42 CFR 1003.102). 11. https://bit.ly/4t70PbX. 12. (42 USC 1320a‐7a(i)). The AKS also contains an exception for cost‐sharing waivers for inpatient hospital services if certain conditions are satisfied (see 42 USC 1001.925(k)). 13. https://bit.ly/4rfVtJO. 14. See, e.g., 42 C.F.R. §411.357 (listing exceptions to the so-called Stark Law, many of which require contracts to be “signed by the parties”). 15. U.S. Dep’t of Health & Human Servs., Office of Inspector Gen., Exclusions Database, https://exclusions.oig.hhs.gov (last visited Oct. 10, 2025). 16. U.S. Gen. Servs. Admin., System for Award Management (SAM), Exclusions Search, https://sam.gov/search/?index=ex (last visited Oct. 10, 2025). 17. U.S. Dep’t of Health & Human Servs., Health Res. & Servs. Admin., Nat’l Practitioner Data Bank, Continuous Query, www.npdb.hrsa.gov/hcorg/pds.jsp (last visited Oct. 10, 2025). 18. Okla. State Bd. of Med. Licensure & Supervision, Licensee Search, www.okmedicalboard.org/search (last visited Oct. 10, 2025). 19. Ctrs. for Medicare & Medicaid Servs., Open Payments, https://openpaymentsdata.cms.gov (last visited Oct. 10, 2025). 20. See, e.g., 42 C.F.R. 420.302 (establishing a “[r]equirement for access clause in [certain health care] contracts”); 45 C.F.R. §164.504(e) (establishing requirements for “[b]usiness associate contracts”).
THE OKLAHOMA BAR JOURNAL 14 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Health Law Modern Legal Considerations for Medical and End-of-Life Care in Oklahoma By Corinne Taylor-Davis COMMON HEALTH CARE PLANNING DOCUMENTS Health Care Powers of Attorney (HPOAs) Health care powers of attorney (aka medical powers of attorney, medical proxies or HPOAs) are legal documents in which a person (known as the “principal”) names a trusted third party as a medical decision-maker on their behalf (their “health care agent” or “medical proxy”).1 HPOAs can be as simple as just naming a health care agent, or they can be multiple pages long with specific directions and limitations about the type of medical care a principal would and would not wish to receive. Often written as part of a broad estate plan, HPOAs may also be individually drafted in preparation for surgery requiring anesthesia, when declining health makes planning future medical care a priority or when a person with fluctuating physical or mental health desires a third party to step in immediately during future times of instability. Importantly, an HPOA lacks the authority to enforce end-oflife decision-making2 – this can only be addressed by an advance directive.3 It should also be noted that while an HPOA may request that any DNR (do-not-resuscitate) issued be respected, an HPOA itself cannot stop emergency medical professionals from resuscitation efforts – only medical orders, such as DNRs and physician orders for life-sustaining treatments (POLST), can be used for this purpose.4 Consequently, it’s very important for practitioners to ensure we fully understand the exact needs our clients have in order to draft and advise upon the documents necessary to affect their wishes. ATTORNEYS DRAFTING ESTATE PLANS AND PRE-SURGERY DOCUMENTS have multiple options for ensuring a client’s wishes are followed in the case of incapacitation. Understanding the key differences between these options is necessary when helping our clients access the future health care they desire. Notably, Oklahoma’s statutory health care power of attorney form does not provide for critical end-of-life decision-making without a separate advance directive. Additional provisions may also need to be included to counteract or enforce other important choices. Further, as medical care becomes progressively complex as our clients age and experience dementia, mental illness and/or access issues, it is becoming increasingly necessary that attorneys customize bare-bones statutory documents. This article explains Oklahoma-specific issues related to common legal health care documents and how attorneys can use advanced provisions to fully address the concerns of each unique client.
MARCH 2026 | 15 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Advance Directives Advance directives are legal documents that not only name a trusted medical decision-maker but also allow the principal to make legally enforceable endof-life decisions in advance of a medical crisis.5 Specifically, an advance directive allows a principal to choose when lifesaving measures should be stopped if they are medically incapable of making their own decision while in one of the following states: 1) a terminal illness with no reasonable expectation of recovery, 2) a persistent vegetative state or 3) an end-stage condition that results in incompetency and complete physical dependency. In some jurisdictions, HPOAs and advance directives are included in the same statutory form, which leads to the powers being discussed interchangeably. In Oklahoma, however, the powers are controlled by two separate statutes and statutory forms,6 which can lead to the accidental exclusion of end-of-life decision- making if only an HPOA is written. Notably, the Oklahoma statutory HPOA form specifically advises that it cannot be used to make decisions regarding artificial nutrition and hydration (tube feeding and IV). Instead, these choices must be set forth and initialed separately, substantially following the statutory advance directive form. The importance of this decision is magnified for principals who express fear of “being kept alive in a vegetative state,” similar to the case of Terri Schiavo.7 Oklahoma law prohibits the removal of artificial nutrition and hydration under such circumstances, unless an advance directive has been written.8 As withholding artificial nutrition and hydration may be the only way to allow a principal in such a state to die naturally, choosing to draft an advance directive over (or in addition to) an HPOA is critical. HPOA and Advance Directive Combination While Oklahoma’s statutory advance directive form must be
THE OKLAHOMA BAR JOURNAL 16 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. substantially followed to be effective, Oklahoma’s statutory HPOA form rejects such formalities.9 Consequently, they may be combined,10 and end-of-life decision-making can be part of a standard estate planning practice, even for young families. As death and incompetence are often not foreseeable, creating documents that plan for the worst allows principals to protect their dignity, even when they are unable to speak for themselves. CREATING EFFECTIVE HPOAS AND ADVANCE DIRECTIVES An HPOA or advance directive may be created by any competent person over the age of 18.11 The document(s) must be in writing, signed by the principal and witnessed by two adults who are not named as agents and who are not heirs of the principal.12 An HPOA may be notarized instead of witnessed; an advance directive must be witnessed.13 For ease of interstate portability, the author recommends both witnesses and a notary. The agent chosen by a principal may not be one of the principal’s health care providers at a long-term health care facility, unless that person is related to the principal.14 When HPOAs are Effective By default, HPOAs are written to only become effective when a physician determines a principal is no longer able to make their own medical decisions (incompetence).15 This can mean physical inability, such as being in a coma or under anesthesia, or psychiatric inability, such as advanced dementia or unmedicated schizophrenia. Some HPOAs may be drafted to require both the attending physician and a second physician to determine incompetence before the agent may make decisions on the principal’s behalf. Less commonly, HPOAs may be written to become effective immediately upon signing. This type of immediate HPOA may be used for a person with fluctuating mental health, when there are language barriers between a principal and expected medical caregivers or when there are complex needs that may slow down care. It is important to note that immediately effective HPOAs cannot override the will of a mentally competent adult. Instead, immediately effective HPOAs work as a form of delegation, allowing the health care agent to seek medical care on behalf of the principal in a faster and easier manner without the need for a doctor to make an incompetency determination for every decision. HPOAs are revocable by the principal at any time, in writing or by communicating the same to a health care provider.16 When Advance Directives Are Effective An advance directive is only effective when a principal can no longer make their own medical decisions, as determined by the principal’s attending physician and another physician.17 This can be as a result of permanent physical unconsciousness or psychological incapacity. An advance directive may be revoked by the principal at any time, in any manner, regardless of mental or physical state.18 When HPOAs Are Not Effective Importantly, HPOAs signed by individuals who are already facing incompetency are not legally enforceable. Further, decisions made by a health care agent under an improper HPOA that are against a principal’s wishes may be deemed a violation of the principal and the principal’s constitutional rights.19 This point should be particularly emphasized for principals with fluctuating mental illness, where forced medication, treatment and/or involuntary institutionalization may later become necessary, or for individuals experiencing advanced dementia, where combative behavior may increase in frequency. Attorneys can avoid an ethical grey area by properly screening their clients for incapacity and seeking consultation with a mental health provider when advisable. When Advance Directives Are Not Effective Like HPOAs, advance directives signed by individuals without capacity are not legally enforceable. Because of the permanent nature of advance directives, the consequences for their fraudulent creation are significantly greater than those of HPOAs. Agents who Sample forms for health care power of attorney, advance directive for health care and advance directive for mental health treatment can be found at https://bit.ly/4qcJLyy or by scanning the QR code.
MARCH 2026 | 17 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. falsely create or coerce a principal into creating an advance directive are guilty of a felony.20 Practitioners who undertake proper undue influence screening can avoid these bad actors and help prevent elder abuse. Attorneys who feel an older client is being taken advantage of by their caregiver may report the abuse to Adult Protective Services.21 ASSESSING HPOA/ADVANCE DIRECTIVE PRINCIPALS Accordingly, it is incredibly important for practitioners to ensure the competency of the person for whom they are drafting an HPOA or advance directive. The attorney assessment worksheet and the undue influence screening tool found in the Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers22 (the handbook) are excellent resources for helping properly assess whether a principal is competent to sign an HPOA or advance directive or if, instead, a guardianship is necessary. After an initial interview, the handbook suggests the attorney use the following chart to consider how to proceed with possible representation of an individual with diminished capacity: Client Capacity Action Options No or minimal evidence of diminished capacity. Proceed with representation and transaction. Mild concerns – Some evidence of diminished capacity, but less than substantial. 1) Proceed with representation/transaction. An associated note to the file may be helpful to document your conclusion. 2) Explore decision support strategies to reinforce capacity. 3) Consider medical referral if medical oversight lacking. 4) Consider consultation with mental health professional. 5) Consider referral for formal clinical assessment to substantiate conclusion, with client consent. More than mild concerns about capacity even with decision supports, or decision- support is not available. 1) Explore decision support strategies further to reinforce capacity. Clear documentation of concerns and actions contemplated or taken will be important here. 2) Medical referral if medical oversight lacking. 3) Consultation with mental health professional. 4) Refer for formal clinical assessment, with client consent. Severe concerns – Client clearly lacks capacity to proceed with representation and transaction. 1) The representation cannot proceed, and alternative legal approaches must be taken (for example, working with family members). 2) Referral to mental health professional to confirm conclusion. 3) Do not proceed with case; or withdraw, after careful consideration of how to protect client’s interests. 4) If an existing client, consider protective action consistent with MRPC 1.14(b).
THE OKLAHOMA BAR JOURNAL 18 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. PERSONALIZED HPOA AND ADVANCE DIRECTIVE PROVISIONS HPOAs and advance directives both include sections where a principal can provide additional limitations or directions to their agent. This often-ignored space is an important aspect of medical planning, not only legally speaking but also from an emotional standpoint. It is in this space where an attorney can help their client feel truly heard and in control of their future. The following are some advanced provisions to consider including. Dementia Provisions While the statutory advanced directive addresses ending lifesaving measures if a principal is experiencing “an end-stage condition ... which results in severe and permanent ... incompetency” because dementia and Alzheimer’s disease are fluctuating conditions, specific language can help ensure a principal’s wishes are properly affected. Dementia/Alzheimer’s provisions can be simple, or they can be extremely detailed. A simple provision could look similar to the following: If I am in an advanced stage of dementia, and I do not have the quality of life that my agent believes I would want, I request that no lifesaving treatment be given. I wish to be given comfort care only (including but not limited to sedation when appropriate). My agent should be given all options available to aid in a peaceful death. Compassion & Choices’ dementia advance directive23 (excerpt below) is a great resource for families seeking to dig in and make a specific plan for a wide range of dementia-related issues: Live as Long as Possible Treat Me but Not Aggressively Allow a Natural Death If my physician or health care provider has determined my dementia has progressed to advanced or late stage, then I want If I require around-the-clock (24 hour) assistance and supervision, then I want If I no longer recognize my loved ones, then I want If I am unable to walk or move safely without assistance from a caregiver, then I want If I am unable to bathe and clean myself without assistance from a caregiver, then I want If I am unable to remain at home and have to live in a nursing facility, then I want If I no longer have control of my bladder (urinary incontinence) or bowels (bowel or fecal incontinence), then I want If I am no longer aware of my surroundings (where I am, the date/year, who is with me), then I want If I am unable to clearly communicate my thoughts or needs (words and phrases do not make sense), then I want Advance Directive for Mental Health Treatment Principals who experience fluctuating mental illness and wish to be proactive instead of risking arrest and/or involuntary commitment should consider completing an advance directive for mental health treatment. Similar to a standard advance directive, the mental health advance directive allows for a principal to choose a trusted agent to assist them in seeking mental health care when in a state of diminished capacity and
MARCH 2026 | 19 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. to proactively consent or decline specific mental health treatment in advance of needing it. The directive becomes effective when a psychiatrist and another physician determine that the principal is unable to receive and/or evaluate and/or communicate to an extent that they lack capacity. In Oklahoma, “mental health treatment” includes the following by default: convulsive treatment, treatment with psychoactive medication and admission to and retention in a health care facility for a period of up to 28 days.24 A principal may modify this consent as well as outline their own unique needs, such as medication regimen, preferred hospital(s), trusted medical provider(s), successful conflict de-escalation techniques and/or other special instructions to their agent. Hospice and Dying at Home Hospice is a widely misunderstood and greatly underutilized end-of-life tool. Covered under Medicare, hospice provides free medical support to those at the end of life with a goal of easing suffering and making the last six months of a person’s life as pleasant as possible. The majority of the author’s clients express a sincere interest in dying at home and not in a hospital. However, the typical time spent on hospice is only around three weeks, and over 30% of Americans end up dying in the hospital.25 Including a simple provision stating a principal’s preference to die at home with the aid of hospice can make a significant difference in the quality of life and death of our clients. Addressing Pregnancy The recent Georgia case of Adriana Smith has sparked debate across the country with respect to whether a permanently unconscious woman should be forced to carry a pregnancy to term.26 The Oklahoma advance directive form specifically states that a pregnant woman cannot be taken off life support unless she states so in her advance directive ahead of time. For female principals of childbearing age, consider including the following permissive (not obligatory) provision: I specifically authorize that during a course of pregnancy, if my health care proxy believes I would not wish to be kept alive, that they may opt to remove life-sustaining treatment and/ or artificially administered hydration and/or nutrition shall be withheld or withdrawn. LGBTQ+ Issues While Obergefell27 rights are no longer in immediate danger,28 attorneys assisting clients who are part of LGBTQ+ communities may wish to include explicit protections, in case the right to gay marriage is ever challeneged again. The author includes the following provision in her documents for her LGBTQ+ clients: When a person is named as a relative in this document, that person shall be treated as the relationship listed, regardless of any (non-divorce/DV) governmental/judicial decisions, actual blood relation, or court record. Religious and Secular Preferences Religious or secular choices are also a way of helping our clients feel empowered to know they will die with the principles with which they lived. For religious families, outlining specific hospital(s) of choice, requesting the principal’s spiritual leader provide a blessing at the end of life and requesting religious services can help a client feel less nervous about dying. For secular families, specifically requesting to only be admitted to a secular hospital(s) can help ensure the principal feels safe and that their choices will be honored, regardless of religious affiliation. The following provision can help bolster this confidence: Any physician unwilling to comply with my directive shall immediately transfer my care to another health care provider. Until my care is transferred and accepted by a willing provider, my attending physician must comply with the medical treatment regardless of objection, if lack of action would likely result in my death. 63 OK Stat §3101.9 (Physician or health care provider unwilling to comply with act). CONCLUSION Every individual deserves the peace of mind that comes from knowing their health care wishes will be honored. By carefully preparing an HPOA and an advance directive and by adding provisions that reflect personal values and unique needs, attorneys can help their clients maintain control even during times of incapacity.
THE OKLAHOMA BAR JOURNAL 20 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. ABOUT THE AUTHOR Corinne Taylor-Davis is the founder of Rosetta Law, the plain language law firm. Ms. TaylorDavis’ practice focuses on approachable estate planning and small business counsel. She is passionate about helping her clients understand their options and develop pragmatic solutions in language everyone understands. Ms. Taylor-Davis received her law degree from Suffolk University Law School and her business degree from Southern New Hampshire University. ENDNOTES 1. See 63 O.S. §§3111.1-13 (Oklahoma Health Care Agent Act). 2. See 63 O.S. §3111.5. 3. See 63 O.S. §3101.4(B). 4. POLSTs (physician orders for life-sustaining treatment) and DNRs (do-not-resuscitate) are medical orders that may only be drafted by physicians. See 63 O.S. §§3105.1-5 (Physician Orders for Life-Sustaining Treatment Act); 63 O.S. §§3131.1-14 (Oklahoma Do-Not-Resuscitate Act). As this article’s focus is on how attorneys can assist clients, the author has chosen not to further expound on these forms. 5. See 63 O.S. §§3101.1-3102A (Oklahoma Advance Directive Act). 6. See 63 O.S. §3111.5 (power of attorney for health care form); 63 O.S. §3101.4 (advance directive form and procedures). 7. Radhika Chalasani, “A Look Back: The Terri Schiavo Case,” www.cbsnews.com, March 31, 2016, https://bit.ly/4qjtvMm. 8. See 63 O.S. §3080.3; 63 O.S. §3080.4. 9. See 63 O.S. §3111.5. 10. The HPOA form names a health care “Agent,” whereas the advance directive form names a “Health Care Proxy.” The author combines these sections, substantially following the advance directive form and including agent obligations. 11. See 63 O.S. §3111.3; 63 O.S. §3101.4. Individuals under the age of 18 may create HPOAs and advance directives in certain circumstances. See 63 O.S. §2602. 12. See 63 O.S. §3111.3; 63 O.S. §3101.4. 13. Id. 14. See 63 O.S. §3111.3(B). 15. See 63 O.S. §3111.3(C). 16. See 63 O.S. §3111.4. 17. See 63 O.S. §3101.4. 18. See 63 O.S. §3101.6. 19. In re Guardianship of Moe, 81 Mass. App. Ct. 136, 960 N.E.2d 350 (Mass. App. Ct. 2012) (guardian sought to end pregnancy against the wishes of schizophrenic principal, held in violation of due process). 20. See 63 O.S. §3101.11. 21. For additional examples of how HPOAs and advance directives may involve elder abuse, see Lori Stiegel, “Legal Issues Related to Elder Abuse, A Pocket Guide for Law Enforcement,” American Bar Association Commission on Law and Aging, 2014, https://bit.ly/46uSllf. 22. American Bar Association Commission on Law and Aging American Psychological Association, Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2021, https://bit.ly/3ZKFRCm. 23. Compassion & Choices, “Dementia Values and Priorities Tool,” 2025, https://bit.ly/4tfqgbz. 24. See 63 O.S. §43A-11-106. 25. Mamta Bhatnagar and Keith R. Lagnese, “Hospice Care,” PubMed, StatPearls Publishing, March 13, 2023, https://bit.ly/4koZvxq. 26. Becca Longmire, “Son of Georgia Woman Who Gave Birth While Brain Dead Is ‘Making Progress’ in the Hospital, Says Family,” People, 2025, https://bit.ly/4qlMjL5. 27. Obergefell v. Hodges, 576 U.S. 644 (2015). 28. Davis v. Ermold, cert. denied, No. 25-125 (U.S. Nov. 10, 2025).
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