New regulations requiring Medicare Advantage (MA) organizations to ensure non-discriminatory use of artificial intelligence and automated systems have been proposed by the Centers for Medicare & Medicaid Services (CMS). These AI provisions are part of a broader proposed rule titled “Contract Year 2026 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly.” The comprehensive rule includes major policy changes spanning multiple areas, including vaccine cost sharing, insulin cost sharing, behavioral health benefits, marketing and communications requirements, drug coverage, dual eligible special needs plans, utilization management, and network adequacy.
Artificial intelligence tools in healthcare risk deepening existing inequities and creating new forms of discrimination in medical care delivery. The rule notes that “there have been many instances of algorithmic discrimination, where the use of AI has resulted in deepening bias and discrimination, exacerbating existing inequities within the health care system.” Studies have shown this bias particularly affects historically marginalized communities. As cited in the rule, “A study in the Journal of Biomedical Informatics determined that people of color or individuals with lower socioeconomic status typically have less complete electronic health records (EHRs). The study demonstrates that as advances in AI are incorporated into the clinic, patients of lower socioeconomic status and patients of color, can receive differential treatment in early disease detection and risk prediction.”
Under the proposed rule, Medicare Advantage organizations must comply with specific requirements to prevent AI discrimination in healthcare delivery. It states that “MA organizations could maintain compliance by:
- ensuring that they understand, recognize, and limit the impact of biased data inputs within any AI and/or automated system they utilize;
- creating and following a process to regularly review any automated system they utilize to ensure that the use of the automated system is non-discriminatory; and
- ensuring that outputs with a known discriminatory bias (such as expected utilization or predictability of payment or both) are not used within an MA organization’s automated system in a manner that discriminates in the delivery of services.”
Medicare Advantage organizations bear primary responsibility for ensuring AI compliance in healthcare delivery. The rule emphasizes that “in the event that an MA organization licenses an AI or automated system, or contracts with a third party for services that are furnished using one of these tools, the MA organization will be held responsible.”
The proposed AI regulations would take effect for Contract Year 2026. CMS is accepting public comments on the proposed rule until January 27, 2025.
Categories: AI, Uncategorized
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