Mandate Issued: 02/23/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE DON ANDREWS, JUDGE
K. Shadid, RIGGS, ABNEY, NEAL, TURPEN ORBISON & LEWIS,
Oklahoma City, Oklahoma, for Plaintiff/Appellee,
M. Nantois, Joseph H. Young, Rebecca I. Burton, OKLAHOMA
HEALTH CARE AUTHORITY, Oklahoma City, Oklahoma, for
Kenneth L. Buettner, Chief Judge
Defendants/Appellants Oklahoma Health Care Authority and Joel
N. Gomez,  in his capacity as Administrator of
the Oklahoma Health Care Authority, (collectively, the OHCA)
appeal from an order granting a temporary injunction
prohibiting the OHCA from terminating Plaintiff/Appellee
Haisam Al-Khouri, M.D.'s contract to provide health care
services to SoonerCare (Medicaid) members. Dr. Al-Khouri
sought declaratory relief that the administrative process for
appealing the immediate termination of his SoonerCare
provider agreement violated due process and injunctive relief
prohibiting the OHCA from terminating his provider agreement.
We hold the trial court abused its discretion by granting a
temporary injunction. Dr. Al-Khouri does not have a property
interest in continued participation in Medicaid programs and,
therefore, has failed to demonstrate clear and convincing
evidence of his likelihood of success on the merits of his
due process claim. The temporary injunction is vacated and
this case is reversed and remanded.
Dr. Al-Khouri is a licensed psychiatrist and has been a
Medicaid provider in Oklahoma since 1993. In a letter dated
September 23, 2016, the OHCA confirmed Dr. Al-Khouri's
SoonerCare General Provider Agreement (Provider Agreement)
had been received and updated. On November 29, 2016, the OHCA
issued a letter immediately terminating Dr. Al-Khouri's
Provider Agreement for multiple contract violations related
to the quality of care provided to SoonerCare members,
including failure to adhere to applicable professional
standards and failure to adhere to the OHCA's patient
medical record documentation requirements. The termination
letter outlined the reasons for termination and that, based
on those reasons, the OHCA was terminating Dr.
Al-Khouri's contract immediately to protect the health
and safety of its members. Dr. Al-Khouri did not appeal the
termination of his contract pursuant to OAC 317: 2-1-12.
Rather, on December 16, 2016, Dr. Al-Khouri filed this
lawsuit seeking injunctive and declaratory relief. Dr.
Al-Khouri claims the recent changes to the OHCA's
administrative procedures for reviewing the immediate
termination of provider agreements, specifically OAC 317:
2-1-12, violate procedural due process protections afforded
under the Fourteenth Amendment to the United States
Constitution and Article II, § 7 of the Oklahoma
Constitution and do not comply with Article II of
Oklahoma's Administrative Procedures Act (APA), 75 O.S.
§§ 308a-323. Dr. Al-Khouri argues the new rule
provides only a "desk review" of the decision but
that due process requires a full post-termination evidentiary
hearing. The district court issued a temporary restraining
order December 19, 2016, prohibiting the OHCA from
terminating Dr. Al-Khouri's contract and temporarily
reinstating him as a SoonerCare provider. The trial court
held an evidentiary hearing December 28, 2016, took the
matter under advisement, and extended the restraining order.
On January 27, 2017, the trial court found the procedures
provided in OAC 317: 2-1-12(2) violated due process and
granted Dr. Al-Khouri's application for a temporary
injunction. The trial court also found the OHCA was subject
to Article II of the APA and that Dr. Al-Khouri was entitled
to minimum due process, including a full post-termination
evidentiary hearing. The OHCA appeals. 
Matters involving the grant or denial of injunctive relief
are of equitable concern. Dowell v. Pletcher, 2013
OK 50, ¶ 5, 304 P.3d 457. A judgment issuing or refusing
to issue an injunction will not be disturbed on appeal unless
the lower court has abused its discretion or the decision is
clearly against the weight of the evidence. Id. This
Court will consider all the evidence on appeal to determine
whether the trial court's grant of a temporary injunction
was an abuse of discretion. See id.
The grounds for issuing a temporary injunction are: (1) the
likelihood of success on the merits, (2) irreparable harm to
the party seeking injunctive relief if relief is denied, (3)
relative effect on the other interested parties, and (4)
public policy concerns arising out of the issuance of
injunctive relief. See Daffin v. State of Okla. ex rel.,
Okla. Dep't of Mines, 2011 OK 22, ¶ 7, 251 P.3d
741. The need for an injunction must be shown by clear and
convincing evidence, and the nature of the injury must not be
speculative in nature. Id.
The OHCA contends Dr. Al-Khouri failed to prove by clear and
convincing evidence his likelihood of success on the merits
of his due process claim and, therefore, a temporary
injunction was unwarranted. "[A] procedural due process
challenge first requires the existence of either a
fundamental right or a constitutionally protected
'property or liberty' interest." Ross v.
Peters, 1993 OK 8, ¶ 24, 846 P.2d 1107; see Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564,
569-71 (1972); The OHCA argues Dr. Al-Khouri does not have a
protected property interest in continued participation in
Medicaid programs and, therefore, he is not entitled to due
In his appellate brief, Dr. Al-Khouri does not respond to or
cite any authority rebutting the OHCA's primary argument
that he did not have a protected property interest and,
therefore, did not demonstrate a likelihood of success on the
merits. However, in his Petition, Dr. Al-Khouri claims that,
based on the terms of the Provider Agreement and his
long-time participation as a Medicaid provider, he had a
reasonable expectation of continued participation in
Oklahoma's Medicaid programs. Dr. Al-Khouri asserts that
this reasonable expectation of continued participation in the
Medicaid programs constitutes a protected property interest,
thereby implicating due process. While the trial court in
this case found OAC 317: 2-1-12 violates due process, it did
not make specific findings of fact as to whether Dr.
Al-Khouri had a protected property or liberty interest or as
to his likelihood of success on the merits of his due process
claim.  Whether a provider has a property
interest in continued participation in Medicaid programs is
an issue of first impression in Oklahoma.
Procedural due process applies only to property and liberty
interests protected by state or federal constitutions.
See Board of Regents of State Colleges v. Roth, 408
U.S. 564, 569-71 (1972). To determine whether due process
requirements apply, we must look to the nature of the
interest at stake. See id. at 570-71.
To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.
Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions
are defined by existing rules or understandings that stem
from an independent source such as state law--rules or
understandings that secure certain benefits and that support
claims of entitlement to those benefits.
Id. at 577. A protected property interest must be
based on an independent source such as a law, rule, or
mutually explicit understanding. See Koerpel v.
Heckler, 797 F.2d 858, 864 (10th Cir. 1986). Dr.
Al-Khouri has not identified any state statute or regulation
creating such a property interest. Rather, he points to the
terms of the Provider Agreement and his long-time
participation in the Medicaid program as the sources of his
property interest. Dr. Al-Khouri ...