Lawmakers seek tougher AI restrictions for Medicare Advantage

A bipartisan group of senators and U.S. representatives is putting pressure on the Biden administration to get tougher on Medicare Advantage carriers' use of artificial intelligence and related technologies.

The Centers for Medicare and Medicaid Services recently issued guidance specifying standards for Medicare Advantage insurers' use of AI tools. More than 50 lawmakers, however, want CMS Administrator Chiquita Brooks-LaSure to go further regarding AI and coverage decisions, including by barring algorithmic software in claim denials pending a full review of its use.

Related: Medicare Advantage prior authorizations targeted in new bill

“We believe CMS must be more proactive in monitoring plans’ use of AI and algorithm-driven tools," says the letter led by Rep. Judy Chu (D-Calif.), Rep. Jerrold Nadler (D-N.Y.) and Sen. Elizabeth Warren (D-Mass.). Sen. Mike Braun (R-Ind.) is also a signatory.  

CMS said in February that Medicare Advantage insurers can use AI and other technologies in coverage decisions, but the tools cannot be used to override other rules or medical necessity standards.

The lawmakers want more restrictions, including an approval process for the inputs to current and future AI tools and a minimum time period barring MA plans from issuing a termination notice after the reversal of a previous termination decision.

They also want greater clarification regarding which elements are included in prior authorization denial notices and how CMS determines if AI programs account for individual circumstances.

"MA plans cannot be allowed to side-step oversight by claiming that these tools are mere 'guidance,'" the lawmakers wrote to Brooks-LaSure. "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."

Short of barring the use of AI and algorithms in coverage determinations entirely, the lawmakers would like CMS to at least "limit their use until a systematic evaluation can be conducted on how these tools are impacting care."

A CMS spokesperson said the agency received the letter and will respond to the members of Congress. 

Insurance trade group AHIP didn’t address the specifics of the letter’s concerns about AI, but stressed prior authorizations serve a useful purpose.

"Prior authorization helps ensure that patients receive safe, evidence-based care, and that coverage is as affordable as possible. Plans welcome the opportunity to work with providers and policy makers to continue to simplify and accelerate this important process," a spokesperson said in a statement.

The Medicare Advantage advocacy group Better Medicare Alliance did not respond to requests for comment.

Lawmakers on both sides of the aisle introduced a bicameral bill earlier this month to toughen standards on prior authorizations in Medicare, dubbed the Improving Seniors’ Timely Access to Care Act of 2024. The bill would require extensive reporting on the use of AI, a standard electronic prior authorization system and time limits on responses to prior authorization requests.

CMS set similar deadlines in January for prior authorizations.

UnitedHealth Group and Humana have faced lawsuits over the alleged use of AI tools in determining coverage.

Katie Smith Sloan, the president and CEO of LeadingAge, which represents nursing homes, said in a news release regarding the lawmakers' letter that Medicare Advantage plans use prior authorizations to limit access to care.

"The volume of denials — and flouting of Medicare rules — is increasingly common, thanks to plans’ growing reliance on artificial intelligence and algorithmic software to make these determinations," Sloan said.