Home Health & Hospice Week

Law- and policy-makers are starting to look at catching up with artificial intelligence advances, but is it too little, too late?

The Biden administration has secured “a broader commitment to ensure AI is deployed safely and responsibly in healthcare ... from a group of 28 healthcare provider and payer organizations to help move toward safe, secure, and trustworthy purchasing and use of AI technology,” the Department of Health and Human Services says in a release.

And at the Centers for Medicare and Medicaid Services specifically, the agency “is exploring whether algorithms used by health plans and providers to identify high-risk patients and manage costs can introduce inappropriate bias and restrictions in the delivery of medically appropriate health care services,” HHS says. “Prior authorization policies and procedures may have a disproportionate impact on underserved populations and may delay or deny access to certain services.”

For example: In Kentucky, Medicare Advantage enrollees have filed a class action lawsuit against MA insurer Humana Inc. for using AI Model nH Predict “to override real treating physicians’ determinations as to medically necessary [post-acute] care patients require,” according to the suit.

A similar class action suit revolving around AI was filed in Minnesota against UnitedHealthcare last month. And a broader class action suit against CIGNA was filed in California federal court in July, regarding denials based on its PXDX algorithm.

New: Policymakers seem to be paying attention. “CMS is now requiring Medicare Advantage organizations to ensure that they are making medical necessity determinations based on the circumstances of the specific individual, as opposed to using an algorithm or software that doesn’t account for an individual’s circumstances,” HHS pledges in the release.

The lawsuits follow an investigative journalism piece by STAT profiling the use of AI to cut off seniors’ extended care coverage at www.statnews.com/2023/03/13/medicare-advantage-plans-denial-artificial-intelligence.

“Health insurance companies have rejected medical claims for as long as they’ve been around,” but “artificial intelligence is now driving their denials to new heights in Medicare Advantage,” the news outlet claims.

But don’t expect algorithms and AI to disappear altogether.

A paper published Dec. 15 by HHS Agency for Healthcare Research and Quality researchers in JAMA Network Open “addresses the use of healthcare algorithms and provides the healthcare community with guiding principles to avoid repeating errors that have tainted the use of algorithms in other sectors,” HHS says in a separate release.

“AHRQ’s guiding principles are an important start in addressing potential bias,” AHRQ Director Dr. Robert Valdez says in the release. “Algorithm developers, algorithm users, healthcare executives, and regulators must make conscious decisions to mitigate and prevent racial and ethnic bias in tools that may perpetuate healthcare inequities and reduce care quality.” v

Note: Links to the complaints against Humana, UHC, and CIGNA are at https://litigationtracker.law.georgetown.edu/litigation/barrows-et-al-v-humana-inc. The JAMA article is online at https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2812958.