Senators weigh whether health-care AI needs a leash

AI is already changing health care. Senators are trying to catch up.

The Senate Finance Committee contemplated the future yesterday: artificial intelligence and its potential applications to health care.

And it turns out the future looks an awful lot like the past and present: Democrats want regulations. And the industry wants money.

“There are a lot of reasons to be optimistic,” Finance Committee Chair Ron Wyden (D-Ore.) said. But, he warned, algorithms need regulation and accountability to make sure they aren’t producing bad or biased recommendations that deny care or lead to inappropriate care.

He expressed outrage at the results of 2019 research led by Ziad Obermeyer, a University of California at Berkeley associate professor, who found that one commercial algorithm recommended less health care for Black patients based on historical cost data.

“How does such a flawed system make its way into general use?” Wyden said. “Nobody’s watching. No guardrails. No guardrails to protect the patients from flawed algorithms and AI systems.” 

It’s unclear whether this algorithm is still being marketed, Obermeyer testified later.

The hearing marked Congress’s latest attempt to wrap its head around the newest AI systems, which can mimic some forms of human reasoning to make predictions and calculations, or generate text and images that look deceptively human-created.

Wyden touted his “Algorithmic Accountability Act,” a bill intended to force companies to assess their own products and require the Federal Trade Commission to collect and report data on AI systems. But Republicans indicated that they don’t want to move quickly on the emerging technology. 

AI is already prevalent in health care; doctors use the systems to distill patient visits into clinical notes and to point out potentially cancerous lesions or polyps, for example. Accordingly, there’s big Washington muscle behind the algorithms: CNBC counts a 185 percent surge — from 158 to over 450 — in the number of organizations lobbying on AI regulations.

Industry leaders — and the committee’s Republicans — didn’t explicitly refute the need for regulations at Thursday’s hearing. But their vision for it was more constrained and, in one instance, raised the question: Can tech watchmen watch the tech watchmen?

Take Sen. Bill Cassidy (R-La.), who mused at the end of the hearing that AI models could wind up rating AI models. Asking for responses from witnesses, he reminded them to “please be tight with your answers” — and cut them off soon after most told him that humans needed to evaluate the models.

“Practically, that seems like that’s going to be incredibly cumbersome,” he informed University of Chicago Provost Katherine Baicker. “That seems impossible,” he told Mark Sendak, co-leader of Duke’s Health AI Partnership, about the researcher’s proposals on the need for local human oversight of algorithms.

The committee’s senior Republican, Sen. Mike Crapo (Idaho), acknowledged in a statement the importance of “transparency” in AI systems. But he also decried the idea of quickly legislating on AI through “one-size-fits-all, overly rigid, and unduly bureaucratic laws.”

While proposals to regulate AI were contentious, one idea drew support from Republicans, the panel’s witnesses and even some Democrats: the need for industry to be paid for its innovations.

“As game-changing AI-enabled devices and other technologies emerge, Medicare coverage and payment policies must keep pace,” Crapo said in his statement.

Sen. Bob Menendez (D-N.J.) noted that according to recent research, Medicare reimburses “fewer than 20” AI services, before asking whether more payments would be useful. Other senators also indicated support for more cash to the industry.

Peter Shen, head of digital and automation at Siemens Healthineers, proposed that tech manufacturers submit cost data to Medicare and receive five years of payments. Otherwise, the government’s “inconsistent, unpredictable” approach would stifle innovation, he argued.

Sendak said health providers lack infrastructure and training to use AI, noting the billions of dollars the government spent to encourage them to adopt electronic health records. “We need similarly bold action now,” he said in written testimony.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF — an independent source of health policy research, polling and journalism.

On the Hill

J&J, Merck and Bristol Myers Squibb CEOs hit Capitol Hill

KFF Health News senior correspondent Arthur Allen brings us this dispatch from the Senate’s Health, Education, Labor and Pensions Committee, where Chair Bernie Sanders (I-Vt.) on Thursday grilled drug company executives over the prices of their products — to the consternation of most of his Republican colleagues.

Sanders, who describes himself as a democratic socialist, hauled in executives from Merck, Johnson & Johnson and Bristol Myers Squibb for a hearing with threats to subpoena them if they didn’t voluntarily show.

Noting that after previous hearings he’s held, Eli Lilly cut its monthly insulin price to $35 and Moderna’s top executive promised free coronavirus vaccines for Americans who needed them, Sanders asked the CEOs to promise to lower U.S. prices to what governments in Japan and France pay for the drugs. They declined.

The committee’s senior Republican, Cassidy, accused Sanders of grossly oversimplifying the issue to hold “a public verbal stoning.”

We “threaten a subpoena when CEOs are suspicious that they won’t get a fair shake. Hold the hearing, get the sound bites, then pick another set of CEOs for a show trial,” he said. “But we don’t pass meaningful legislation.”

Sen. Chris Murphy (D-Conn.) conducted what may have been the most rhetorically effective inquiry. Responding to Bristol Myers Squibb CEO Chris Boerner’s emphasis on the importance of patient choice in the U.S. health-care system, he noted the dire choices faced by a constituent using Bristol Myers’s Eliquis blood thinner.

“Here’s her choice,” Murphy said. “Her choice is to pay the $350 and go without food or pay her rent late, or not take the drug and risk heart attack or stroke. Is that the choice you’re talking about?”

“That is a choice no patient should have to make,” Boerner replied, adding, “We have priced Eliquis … consistent with the value it brings.”

It was all in a day’s theater, but Sen. Mike Braun (R-Ind.) warned darkly of coming government regulation.

“You do a pretty good job making the pill. You completely default on how it gets from where you make it to who uses it,” he told the executives. You “better figure it out before it’s too late.”

Sen. Bernie Sanders (I-Vt.):

Sen. Bill Cassidy (R-La.):

Meanwhile …

Rep. Cathy McMorris Rodgers, chair of the powerful Energy and Commerce Committee, is retiring. 

The Washington state Republican, who leads the House panel that oversees federal health agencies and the broader health-care sector, announced yesterday that she wouldn’t run for reelection, per our colleague Dan Diamond. 

• “We will spend this year honoring the Committee’s rich history — plowing the hard ground necessary to legislate on solutions to make people’s lives better and ensure America wins the future,” McMorris Rodgers said in a statement. 

Under McMorris Rodgers, the panel has focused heavily on price transparency in health care, and her bipartisan Lower Costs, More Transparency Act passed the House in December.

The House on Wednesday also passed a McMorris Rodgers-backed bill that bans federal health programs from using a metric, Quality-Adjusted Life Years, when making policy decisions; Republicans said the measure could discriminate against people with disabilities. The legislation was fiercely opposed by Democrats, who said it could weaken federal oversight and be a backdoor for pharma to attack metrics that play a role in setting prices.

But Rep. Frank Pallone Jr. (N.J.), the top Democrat on the panel, on Thursday praised his GOP counterpart for their repeated collaborations. “Cathy and I have been able to get important legislation passed to lower health care costs, increase transparency in hospital pricing, and move the ball forward on establishing a comprehensive national data privacy standard,” Pallone said in a statement.

Rep. Cathy McMorris Rodgers (R-Wash.):

Agency alert

HHS finalizes updates to substance use confidentiality regulations

The Department of Health and Human Services finalized a rule yesterday that seeks to help medical professionals better coordinate care for individuals with substance use disorder. 

Under the rule, providers will be able to share a patient’s treatment records after receiving one-time consent, among other changes. 

A closer look: Required by Congress through the Coronavirus Aid, Relief and Economic Security Act, the new policy is aimed at better aligning privacy measures in substance use disorder programs with the standards outlined in the Health Insurance Portability and Accountability Act. 

In other news from HHS …

The federal health department will prioritize contracts and orders that promote national defense over those for other health resources, according to a final rule issued yesterday that incorporates lessons from the coronavirus pandemic and 2022’s national infant formula shortage. 

From our notebook

USC announces new Schaeffer Institute of public policy in D.C.

The Leonard D. Schaeffer Institute for Public Policy & Government Service — funded with a $59 million gift from former federal health official Leonard D. Schaeffer and his wife, Pamela — will be based at the University of Southern California’s campus in Dupont Circle, the school said Thursday. One of the new institute’s goals: promoting policies and education that help shore up democracy at a time when trust in government has faded, Leonard Schaeffer and school officials said. 

It’s the California university’s latest bid to influence policy discussions in Washington, our colleague Dan Diamond notes, often thanks to funding from Schaeffer. The longtime health-care leader oversaw Medicare and other programs during the Carter administration and later became CEO of health insurance giant WellPoint. USC in 2009 also established the Schaeffer Center for Health Policy & Economics, thanks to a gift from the family; that center will become part of the new institute.

In other health news

• People familiar with the Centers for Disease Control and Prevention’s panel of independent vaccine experts are baffled as to why more than half of its seats are empty, with nominations for some new members sent to HHS in early 2023, Stat’s Helen Branswell reports. 
• Former chief White House medical adviser Anthony S. Fauci will reflect on his 40-year career as an infectious-disease expert serving under seven presidents in a memoir set to be released this June, Hillel Italie reports for the Associated Press.
• A new study found that people who received twice the amount of naloxone were no more likely to survive an opioid overdose than those given a standard 4-milligram dose — but they did have more severe withdrawal effects. 

Health reads

Republican effort to restore abortion rights in Missouri folds (By Summer Ballentine | The Associated Press )

CDC investigating gastrointestinal illness on luxury cruise ship (By Johnny Diaz | The New York Times)

In crisis, she went to an Illinois facility. Two years later, she still isn’t able to leave.

Quote of the week

“The people of Florida aren’t stupid.” 

— Florida Supreme Court Chief Justice Carlos Muñiz, responding to state Attorney General Ashley Moody’s claim that the language of an abortion rights ballot measure is problematically vague.

Sugar rush

Thanks for reading! We’ll see you Monday.