On June 6, 2024, Humana Inc. (“Humana”), filed a motion to dismiss the Plaintiffs claims in the matter alleging the misuse of an AI model in post-acute care determinations under Medicare Advantage brought in the U.S. District Court for the Western District of Kentucky.
There are many similarities between the arguments made by Humana and those recently made by UnitedHealth Group, Inc., in a similar suit previously covered by the Digital Health Law Group. The allegations set forth in the Plaintiffs Amended Complaint against Humana can also be more fully seen in previous coverage.
MEDICARE ACT AND CMS REGULATIONS
Humana argues that coverage criteria and processes used for Medicare Benefits are “exclusively governed by federal law,” and specifically, the Medicare Act and Centers for Medicare and Medicaid Services (“CMS”) regulations.
It asserts that its’ status as a Medicare Advantage Organization (“MAO”), also results in Humana being “governed exclusively” by the Medicare Act.
The Medicare Act is said to “expressly preempt” state-law causes of action, including those brought by the Plaintiffs and Humana asserts that such preemption was built into the Act to “ensure uniform administration of the Medicare Act nationwide” when it comes to “coverage criteria for Medicare Benefits,” and overseeing “how MAOs administer those Medicare Benefits.”
FOUR-STEP ADMINISTRATIVE REVIEW PROCESS
Humana argues that “[e]very cause of action in the [Plaintiffs’] Amended Complaint arises under the Medicare Act because they stem from Human’s review and denial of termination of coverage for Plaintiff’s Medicare Benefits.”
It also asserts that “any Medicare beneficiary who disagrees with a benefit determination … must exhaust a four-step administrative review process that concludes with potential review by the Medicare Appeals Council, a federal agency authorized to issue final benefit determinations on behalf of the Secretary of Health and Human Services (“HHS”).
According to Humana, none of the Plaintiffs have completed this process, saying in its’ motion that “each of the named Plaintiff’s only partially completed” the four-steps.
ARGUMENTS AS TO PROPER DEFENDANT
Having argued that the four-step administrative review process concludes with a determination by the Medicare Appeals Council on behalf of the Secretary of HHS, Humana argues that only the Secretary of HHS can be sued for the relief that the Plaintiffs are seeking and that the action has been improperly brought against itself.
STANDARD FOR USE OF AI IN COVERAGE DETERMINATIONS
Like UnitedHealth Group, although it does not address factual matters surrounding its alleged use of an AI model for coverage determinations, Humana does state what it believes to be the applicable standard. It says that according to CMS, an “algorithm or software tool may be used to assist MA plans in making coverage determinations, but it is the responsibility of the MA organization to ensure that the algorithm or artificial intelligence complies with all applicable rules for how coverage determinations by MA organizations are made.”
Categories: AI
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