California Attorney General Rob Bonta launched a novel investigation on August 31, 2022, focused on health equity, examining how health care providers address racial and ethnic disparities in their utilization of commercially available decision-making technologies. While the Office of Attorney General ("OAG") acknowledges that there are many factors that may contribute to disparities in health care access, quality, and outcomes, the OAG asserts that bias in decision-making tools/algorithms is likely a contributor to such disparities. In the OAG's view, unfair bias in violation of applicable California and federal non-discrimination laws is perpetuated if these technologies systematically benefit certain patients relative to historically disadvantaged groups with comparable health care needs.

Rather than issuing subpoenas or civil investigative demands, the OAG has requested that 30 hospitals and health systems provide by October 15, 2022:

  • A list of commercially available or purchased decision-making tools, products, software systems, or algorithmic methodologies currently utilized assisting or contributing to the performance of any of the following functions—
    • Clinical decision support, including clinical risk prediction, screening, diagnosis, prioritization, and triage;
    • Population health management, care management, and utilization management;
    • Operational optimization (e.g., office or operating room scheduling);
    • Payment management, including risk assessment and classification, billing and coding practices, prior authorization, and approvals; and
  • The purposes for utilizing these tools/algorithms, how these tools/algorithms inform decisions, and any policies, procedures, training, or protocols applying to use of these tools/algorithms.

The OAG notes its belief that these tools/algorithms are not fully transparent to health care consumers and notably health care providers themselves. Importantly, the OAG describes this information request as the "first step." While the OAG's investigation appears to be one of the first, there likely will be more given increased industry focus upon health equity. Health care providers should consider: (i) identifying and assessing utilized technologies for the possibility of a disparate impact in application; and (ii) evaluating guidelines and training to avoid potential unintended negative consequences to vulnerable patient groups.

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