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Proposed Rule Tackles Discrimination From Algorithms

Federal Insider: September 2022

The Department of Health and Human Services (HHS) called out the potential for diagnostic algorithms to harm patients based on racial and other forms of discrimination in a proposed rule that strengthens universal protections against discrimination in healthcare in section 1557 of the Affordable Care Act. The proposed rule “explicitly prohibits discrimination in the use of clinical algorithms to support decision-making,” according to HHS.

The agency offers as an example a common laboratory algorithm, estimated glomerular filtration rate (eGFR). “Reliance on the eGFR clinical algorithm may lead to discrimination against patients based on race and ethnicity,” the rule says. HHS notes that the race factor in some eGFR algorithms makes Black patient’s kidneys seem 16% healthier than white patients’, even though Black people are four times as likely to have kidney failure and make up 35% of people on dialysis while representing 13% of the population.

Moreover, healthcare providers are responsible for any discriminatory effect of using such algorithms—even if they neither took part in the algorithm’s development nor understand how it works. “Clinical algorithmic tools are pervasive. The fact that a covered entity did not design the algorithm or does not have knowledge about how the tool works does not alleviate their responsibility to ensure that they do not take actions that result in discrimination,” the rule says. “In sum, this part does not hold covered entities liable for clinical algorithms that they did not develop but holds entities liable under this proposed section for the decisions they make in reliance on such algorithms.”

HHS advises that when evaluating an algorithmic tool, clinicians ask whether the tool’s developers properly validated and tested it in different populations to identify hidden bias, “and whether it allows barriers to access to be found and rectified, among other things.”

National Uninsured Rate Reaches All-Time Low

The Department of Health and Human Services (HHS) released a new report showing that the national uninsured rate reached an all-time low of 8% in the first quarter of 2022, with 5.2 million people having gained coverage since 2020. The prior low was 9% in 2016.

In an accompanying paper published by HHS researchers, Medicaid expansion was shown to have improved preventive care and financial security for adults with disabilities, which the administration said is further evidence of how coverage expansion improves health equity (Health Serv Res 2022; doi: 10.1111/1475-6773.14034).

The largest changes in the uninsured rate for low-income adults occurred in states that recently expanded Medicaid. Only about 5.45% of adults 18-64 reported having Marketplace coverage in early 2022. That’s compared to 4.4% in 2020, reflecting approximately two million additional adult Marketplace enrollees.

HHS Expands HIV Prevention Funding

Department of Health and Human Services (HHS) Secretary Xavier Becerra announced more than $20 million in funding to expand HIV prevention, testing, and treatment services at health centers, part of the agency’s Ending the HIV Epidemic in the U.S. initiative. The program aims to reduce the number of new HIV infections in the U.S. by 90% by 2030.

Health centers will use the funding to expand access to medication and testing, Becerra said, and to strengthen partnerships with community organizations such as Ryan White HIV/AIDS Program-funded organizations and health departments.

Such community partnerships are even more important as the country faces the monkeypox outbreak, Becerra said. As part of the monkeypox outbreak response, the administration is working to provide vaccines for individuals at higher risk of exposure, and the Ryan White HIV/AIDS Program has begun allocating an initial allotment of vaccines for people with HIV, people who are low income, and those who are uninsured.

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