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The expanded use of artificial intelligence (AI) in the delivery of health care continues to receive increased attention from lawmakers across the country. Although AI regulation is still in its early developmental stages, there are various efforts underway to address the unintended negative consequences stirred by AI technology, particularly in health care and other key sectors. These efforts are demonstrated in the Biden AdministrationÔÇÖs Blueprint for AI Bill of Rights published in October 2022 as well as in legislative efforts to address use of AI in the healthcare space, such as use of AI when conducting certain medical diagnoses, guiding nursesÔÇÖ decision-making, and regulating use of AI to support eye assessments. With the potential for AI to produce unintended discriminatory results, regulatory initiatives to restrict discrimination through AI and related technologies have become a priority.

AI involves the use of machine learning technology, software, automation, and algorithms to perform tasks and make rules and predictions based on existing datasets and instructions. The concern lies in the fact that AI technology may be trained using data that is not representative of the actual population, leading to patterns of bias and discrimination that are effectively baked into the AI technology. Furthermore, AI technologies may focus on “dominant” patterns to the exclusion of others, further exacerbating potential discrimination issues.

To address these concerns, California has proposed legislation to regulate AI in the healthcare industry. Assembly Bill 1502, introduced by Assemblymember Pilar Schiavo, aims to ban health care service plans or health insurers from discriminating on the basis of race, color, national origin, sex, age, or disability through the use of clinical algorithms in decision making. This bill specifically targets the use of AI and allows for the use of clinical algorithms that rely on variables to appropriately make decisions, including identifying and addressing health disparities. This legislation demonstrates California’s commitment to tackling discriminatory practices stemming from AI use in healthcare.

Another bill, Assembly Bill 331, introduced by Assemblymember Rebecca Bauer-Kahan, provides a general framework for regulating algorithmic discrimination in the use of automated decision tools that make consequential decisions. Consequential decisions refer to actions affecting individual rights and opportunities, such as health care, health insurance, employment, education, housing, and financial services. The bill sets forth requirements for impact assessments, notice and explanation obligations, opt-out mechanisms, disclosure requirements, and governance programs with administrative and technical safeguards. Deployers, those using the tools to make consequential decisions, would need to adhere to these requirements to mitigate foreseeable risks of algorithmic discrimination. Assembly Bill 331 also establishes a private right of action against Deployers for algorithmic discrimination and grants the California Attorney General and other public attorneys the authority to bring civil actions for injunctive relief, declaratory relief, and attorney’s fees and litigation costs against Developers or Deployers.

In this rapidly evolving landscape of AI in health care, the AI legalese decoder can play a crucial role in helping entities assess and address the potential discriminatory impact of their AI systems. By using advanced algorithms and machine learning capabilities, the AI legalese decoder can analyze complex legal language and provide clear and concise explanations of the legal requirements imposed by proposed legislation like AB 1502 and AB 331. The AI legalese decoder can assist health care entities in identifying potential areas of non-compliance, ensuring they understand their responsibilities and can effectively utilize automated decision tools while mitigating the risks of algorithmic discrimination. Additionally, the AI legalese decoder can help legal counsel and relevant stakeholders navigate the intricacies of AI regulation and contribute to the development of safe and effective AI systems in health care.

With the potential impact of these proposed bills on the regulation of AI technology in health care, it is crucial for health care entities to conduct critical assessments and execute appropriate interventions. By consulting with legal counsel and utilizing tools like the AI legalese decoder, health care entities can ensure compliance with evolving AI regulations and contribute to the creation of an inclusive and non-discriminatory AI-driven health care system. While the fate of these bills in the California legislature remains uncertain, they provide valuable insight into how lawmakers may approach regulating AI technology in health care moving forward, serving as a potential standard for other states to follow.

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