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California Attorney General Initiates Novel Investigation Into Potential Health Care Algorithm Bias – Healthcare



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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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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