As the Trump presidency looms, the Department of Health and Human Services’ Office for Civil Rights is trying to reinforce its anti-discrimination rules on artificial intelligence. The office sent a missive last week that included a reminder for the health care industry: AI products they use can’t discriminate against certain patients. The office also offered suggestions for how to comply with OCR’s regulations. In a final rule last year, HHS reinstated antidiscrimination protections that the Trump administration removed in 2020. Those protections prohibit discrimination based on race, color, national origin, sex, age and disability. Health systems must also ensure their telehealth technologies, in addition to AI products, don’t result in discriminatory care. The rule requires providers to take “reasonable steps” to identify and mitigate potential discrimination. What are reasonable steps? OCR highlights a few ways to comply: — Review Section 1557 of the Affordable Care Act, which prohibits discrimination. — Look at peer-reviewed studies of the AI product in use. — Implement an AI registry that monitors AI performance. — Ask AI vendors for information about their technology and the data it’s trained on. Once providers identify any problems, health systems and payers can take a wide variety of approaches to fix them, including building policies around how the tool is used, training staff and running audits to ensure their AI isn’t running afoul of the law. In the letter, OCR Director Melanie Fontes Rainer reiterated a point she’s made publicly: Each potential violation is handled case by case. When reviewing whether a health system, provider or insurer made reasonable efforts to suss out discrimination, the office will take into account the entity’s size, resources and the information it had access to at the time of the infraction. The office will also examine whether the tool was used as intended by the developer and approved by regulators, as well as if the entity had a process in place for evaluating the tool’s impact on patients. Even so: In October, Rainer acknowledged that OCR’s rules could change under a new administration, though she doesn’t believe that should be the case. “We should not have rights flipped on and off like a light switch,” she told Ruth onstage at the health care conference HLTH in Las Vegas. The Trump administration could — as it has in the past — narrow OCR’s civil rights rules to roll back protections for LGBTQ+ patients and other protected classes and give health systems and payers more ability to refuse services and coverage based on religious beliefs.
| 
