Public Citizen Model State Law Regulating the Use of Artificial Intelligence in Healthcare Coverage Decisions

(a) Any corporation or person who makes determinations or provides advice about third party payment for any health care provision that uses an artificial intelligence, algorithm, or other software tool for the purpose of utilization review or that contracts with or otherwise works through an entity that uses an artificial intelligence, algorithm, or other software tool for the purpose of utilization review shall comply with this section and shall ensure all of the following:

(1) The artificial intelligence, algorithm, or other software tool bases its determination on the following information, as applicable:

(A) An enrollee’s medical or other clinical history.

(B) Individual clinical circumstances as presented by the requesting provider.

(C) Other relevant clinical information contained in the enrollee’s medical or other clinical record.

(2) The artificial intelligence, algorithm, or other software tool does not base its determination solely on a group dataset.

(3) The artificial intelligence, algorithm, or other software tool is fairly applied, including in accordance with any applicable regulations and guidance issued by the federal Department of Health and Human Services.

(4) The artificial intelligence, algorithm, or other software tool is configured and applied in a standard consistent manner for all subscriber groups and covered individuals so that the resulting decisions are the same for all patients with similar clinical presentation and considerations.

(5) The artificial intelligence, algorithm, or other software tool is open to inspection for audit or compliance reviews by the state health commissioner.

(6) How the artificial intelligence, algorithm, or other software tool is used in the utilization review process and the nature and degree of human review and oversight shall be disclosed [in the written policies and procedures required by the state] [to the state regulator and the public].

(7) The artificial intelligence, algorithm, or other software tool’s performance, use, and outcomes are reviewed and revised [at least quarterly] to maximize accuracy and reliability.

(8) The artificial intelligence, algorithm, or other software tool does not directly or indirectly cause harm to the enrollee.

(b) The artificial intelligence, algorithm, or other software tool shall not deny, delay, or modify a determination to provide health care services. An adverse determination of provision of health care services shall be made only by a licensed physician or a licensed healthcare professional competent to evaluate the specific clinical issues involved in the health care services requested by the provider, by reviewing and considering the requesting provider’s recommendation, the enrollee’s medical or other clinical history, as applicable, and individual clinical circumstances.

 

Important Note: In certain states, generic terms like “carrier,” which may be used in the drafting process, may not include CHIP, Medicaid, and Medicare Advantage. In these cases, additional language will be needed in the legislation to ensure these programs are covered.