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March/April 2024    Volume 5 Issue 2
Health Law Connections

Artificial Intelligence and the Standard of Care in the Post-Acute and Long Term Care Setting

This Feature Article is brought to you by AHLA's Post-Acute and Long Term Services Practice Group.
  • March 01, 2024
  • Jeff Duncan , Lane Powell PC

On October 30, 2023, President Biden issued an Executive Order titled “Safe, Secure and Trustworthy Artificial Intelligence.”1 The Executive Order begins with the pronouncement that “Artificial intelligence (AI) holds extraordinary potential for both promise and peril” and that broadly casts this mixed shadow from “hiring to housing to healthcare.” That AI-related Executive Order came less than a month after the U.S. Senate Committee on Finance announced its investigation related to “[a]n alarming report” by the Department of Health and Human Services (HHS) Office of Inspector General “that numerous Medicaid Managed Care Organizations (MCOs) had staggeringly high rates of denial of health services for patients.”2 The Finance Committee expressly singled out concerns related to Medicaid MCOs’ use of AI tools as part of prior authorization processes. To that end, the Finance Committee stated it was seeking “documentation and answers to a series of questions, including . . . a description of all algorithms, including machine learning and artificial intelligence algorithms, that a company used in prior authorization decisions separated by approvals, partial denials, and full denials for 2018-2022 for any and all MCOs that a company operated within that time frame.”3 These governmental actions mirror a distrust of AI among the public for diverse reasons ranging from individual privacy concerns to real or perceived conflicts of interest between AI tool designers and those impacted by AI tools to frequent reports of AI-related errors that amplify these concerns.4 Paired with similar governmental interventions and ongoing (if not increasing) public distrust of AI, these concerns help highlight for the senior living and long term care (SL/LTC) industry that the rapidly expanding development, experimentation, and use of AI bring optimism for potential advancements in resident and patient care and services, but not without risks and uncertainty.


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