US Lawmakers Call for AI Oversight in Medicare Coverage
WASHINGTON, June 26, 2024 -- Reps. Jerrold Nadler (NY-12), Judy Chu (CA-28), and Sen. Elizabeth Warren (MA) led 45 House Members and 4 Senators in a bicameral, bipartisan letter this week urging the Centers for Medicare and Medicaid Services (CMS) to increase oversight of artificial intelligence (AI) and algorithmic software tools used to guide coverage decisions in Medicare Advantage (MA) plans. This follows a letter that Reps. Chu and Nadler sent to CMS in November 2023 expressing the need for guardrails on the use of AI and algorithms to determine coverage for seniors.
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“We remain concerned about MA plans’ use of prior authorization, specifically their ongoing use of artificial intelligence (AI) and algorithmic software to guide coverage decisions. Plans continue to use AI tools to erroneously deny care and contradict provider assessment findings,” wrote the Members to CMS Administrator Chiquita Brooks-LaSure.
Several MA insurers are using unregulated algorithms and AI tools to determine when to cut off payment for patient treatments, leaving vulnerable seniors—who have spent their lives paying into Medicare—left to either pay for their care themselves or go without it. Late last year, two separate lawsuits were filed against two insurance companies accusing both of implementing AI to cut costs by denying coverage.
“We believe CMS must be more proactive in monitoring plans’ use of AI and algorithm-driven tools. MA plans cannot be allowed to side-step oversight by claiming that these tools are mere ‘guidance,’” the Members continued. “Given that we do not know what inputs are used for the algorithms and AI tools currently being used, it is difficult to know the accuracy of the information they generate and whether the inputs comply with the regulations. Absent a prohibition on the use of such tools altogether, CMS should limit their use until a systematic evaluation can be conducted on how these tools are impacting care.”
Earlier this year, CMS finalized rulemaking and issued guidance stating that MA plans are required to make medical necessity determinations in prior authorization 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. For example, in a decision to terminate post-acute care services, an algorithm or software tool can be used to assist providers or MA plans in predicting a potential length of stay, but that prediction alone can’t be used as the basis to terminate post-acute care services. While this was a positive step, it is unclear how CMS plans to enforce this guidance to ensure that plans do not inappropriately create barriers to care.
The Members therefore urged CMS to take the following steps to prohibit the inappropriate use of prior authorization by MA plans when using AI/algorithmic software:
- Clarify the specific elements that must be contained in prior authorization denial notices.
- Establish an approval process to review AI and algorithmic tools and their inputs to ensure the integrity of their use and conduct a review of algorithm and AI tools currently being used.
- Prohibit the use of AI/algorithmic tools and software from use in coverage denials until a systematic review of their use can be completed.
- Clarify how CMS distinguishes between uses of algorithms or software that account for individual circumstances and those that do not; specify what criteria, methods, or data will be used to determine this distinction; and clarify how this requirement will be enforced and communicated to plans.
- Clarify when MA organizations are able to use internal coverage criteria when making medical necessity determinations for basic Medicare benefits.
- Impose a minimum time period during which MA plans cannot issue a termination notice after their prior termination decision has been reversed by a Medicare contractor.
“Medicare Advantage plans are entrusted with providing medically necessary care to their enrollees. We encourage CMS to incorporate the measures outlined above to protect Medicare beneficiaries and prevent future AI-related harms in health care,” the Members concluded.
Other signers of the letter include Senators Mike Braun (R-IN), Sherrod Brown (D-OH), Bernie Sanders (I-VT), and Tina Smith (D-MN), and Representatives Mark Pocan (WI-02), Lloyd Doggett (TX-35), Grace Napolitano (CA-31), Mark Takano (CA-39), Raúl Grijalva (AZ-07), Rosa DeLauro (CT-03), Donald S. Beyer, Jr. (VA-08), Katie Porter (CA-47), Chellie Pingree (ME-01), Bonnie Watson Coleman (NJ-12), Barbara Lee (CA-12), Jamie Raskin (MD-08), Nydia Velázquez (NY-07), Mark DeSaulnier (CA-10), Tony Cárdenas (CA-29), Pramila Jayapal (WA-07), David Trone (MD-06), Alexandria Ocasio-Cortez (NY-14), Julia Brownley (CA-26), Eleanor Holmes Norton (DC-At Large), Betty McCollum (MN-04), Kevin Mullin (CA-15), Alma Adams (NC-12), Becca Balint (VT-At Large), Sheila Jackson Lee (TX-18), Sylvia Garcia (TX-29), James P. McGovern (MA-02), Summer Lee (PA-12), Delia Ramirez (IL-03), Dwight Evans (PA-03), Glenn Ivey (MD-04), Rashida Tlaib (MI-12), André Carson (IN-07), Danny K. Davis (IL-07), Jan Schakowsky (IL-09), Jesús “Chuy” García (IL-04), Nanette Barragán (CA-44), Cori Bush (MO-01), Bennie Thompson (MS-02), Jamaal Bowman (NY-16), Henry C. “Hank” Johnson, Jr. (GA-04), Robert Garcia (CA-42), Greg Casar (TX-35), Lisa Blunt Rochester (DE-AL), and Terri Sewell (AL-07).
“While we appreciate the steps that CMS has taken so far to rein in inappropriate denials by Medicare Advantage plans, as outlined in this letter, additional steps must be taken to ensure that MA enrollees are adequately protected against the misuse of prior authorization” said David Lipschutz, Associate Director of the Center for Medicare Advocacy. “In our experience, MA plans’ use of AI or algorithmic software has led to more inappropriate denials and premature terminations of care – this must end,” said David Lipschutz, Associate Director/Senior Policy Attorney at Center for Medicare Advocacy.
“AMRPA represents over 700 inpatient rehabilitation hospitals and units (IRH/Us) across the country. Our members, and their patients, have experienced firsthand the devastating impacts to clinical care that can result from Medicare Advantage (MA) plans’ prior authorization determinations. Of particular concern is MA plans’ ongoing use of artificial intelligence algorithms that inappropriately and systematically deny care and contradict the clinical judgment of physicians who are experts in rehabilitation medicine. We appreciate the request by Congressional Members for CMS to take additional steps to clarify and place guardrails around inappropriate uses of these tools, such as algorithms that drive post-acute care placements based solely on cost rather than patient needs. We specifically applaud the effort to review these tools and establish an approval process that ensures complex medical decisions are not overridden by an algorithm, but are instead made by the patient’s physicians and clinical care team,” said Chris Lee, Board Chair, American Medical Rehabilitation Providers Association.
“Medicare Advantage insurers using AI to deny needed care to seniors and people with disabilities means sacrificing patient needs on the altar of corporate greed. CMS must expand upon the steps it has already taken to improve oversight of companies using AI to deny care that would be covered by traditional Medicare. It is time to protect enrollees by cracking down on Medicare Advantage insurers using AI to deny needed care through additional reporting requirements and increased enforcement actions against bad actors,” said Lisa Gilbert, Executive Vice President at Public Citizen.
“LeadingAge’s nonprofit and mission driven members, who serve older adults in nursing homes, home health and other care settings, have first-hand experience of Medicare Advantage (MA) plans’ inappropriate use of prior authorization to deny, shorten and limit MA enrollees’ access to medically necessary Medicare benefits. And the volume of denials – and flouting of Medicare rules – is increasingly common, thanks to plans’ growing reliance on artificial intelligence (AI) and algorithmic software to make these determinations. We appreciate the remedies to these issues outlined by Rep. Judy Chu (D-CA) and Sen. Elizabeth Warren (D-MA); implementation by Centers for Medicare and Medicaid Services (CMS), which we fully support, would ensure MA plans fulfill their obligation to provide enrollees equitable access to Medicare services,” said Katie Smith Sloan, President and CEO of LeadingAge.
“MA already had a major problem with prior authorization, and that was before AI came around. AI is not a magic wand that can be waved and fix this problem. In fact, without proper oversight, AI has – and will – only make this problem worse. We encourage CMS to act and protect patients with these sensible guardrails,” said Wendell Potter, President of the Center for Health and Democracy.
The letter can be read here.
Source: U.S. Congress Rep. Jerrold Nadler
