Ensuring Nondiscrimination in the Use of AI is Good Medicine

Artificial intelligence (AI) has the potential to revolutionize health care - bringing efficiency, innovation, and cost savings to one of the nation’s most critical sectors that impacts every person. By automating routine tasks, enhancing diagnostic accuracy, and streamlining patient care, AI can alleviate the burden on health care providers while improving patient outcomes. A practical, market-driven approach to AI in health care — one that protects against discrimination and safeguards patient privacy — aligns with values of fairness, accountability, and responsible innovation.

To support fairness, accountability, and responsible innovation, the HHS Office for Civil Rights’ (OCR) Section 1557 of the Affordable Care Act (Section 1557) final rule prohibits health care providers, health plans, and other covered entities from discriminating against individuals through their use of patient care decision support tools, including AI. This is consistent with HHS’s Strategic Plan for the Use of Artificial Intelligence to Enhance and Protect the Health and Well-Being of Americans.

That’s why OCR issued a “Dear Colleague” letter explaining how covered entities, including health care practitioners and insurers, can safely introduce and use AI tools into their operations. The letter reminds covered entities of their ongoing duty make reasonable efforts to identify uses of AI tools that create discrimination risks by relying upon input variables that measure race, color, national origin, sex, age, and disability, and of their ongoing duty to make reasonable efforts to mitigate those discriminatory risks.¹

Ensuring that organizations operate AI tools without unlawful discrimination is not just an ethical imperative — it’s a pragmatic approach. Discrimination in AI-driven health care tools — whether intentional or unintentional — can lead to uneven care, diminished trust, and financial risks, such as lawsuits or regulatory interventions. Addressing these issues head-on by designing systems that work equitably across diverse populations enhances public confidence and expands market potential. By ensuring AI solutions reach and serve every person equitably, companies and healthcare providers can tap into broader demographics and to broaden their client services while reflecting core ideals of equal opportunity and personal responsibility.

Privacy and security are equally vital. Protecting sensitive health data is paramount when it comes to AI in health care. Patients need to trust that their information is secure, and health care entities that demonstrate a commitment to privacy and compliance with laws such as the Health Insurance Portability and Accountability Act (HIPAA) will thrive. Robust data safeguards protect patients and reduce the risk of damaging and costly data breaches – a significant matter for health information privacy for patients, a costly mitigation endeavor for health care entities, and a major cybersecurity threat to patient care.

Implementing standards to ensure fairness and protect privacy is a common-sense approach that encourages health care entities to modernize responsibly. Transparency in how AI systems are developed and deployed in the clinical setting can drive patient confidence without stifling innovation. This approach supports health care innovation where ethically developed AI tools rise to the top, benefitting patients and providers.

Section 1557’s nondiscrimination requirements through the use of patient care decision support tools, including AI, strikes the right balance — one that supports innovation, promotes free enterprise, and respects individual rights. Ensuring AI in health care is fair, privacy-conscious, and secure achieves all these goals. By championing responsible AI practices, leaders can advance a vision of healthcare that is both cutting-edge and aligned with American values, creating a system where AI businesses and the health care industry flourishes and patients thrive.

If you believe that you or someone you know has been subjected to unlawful discrimination due to a health care provider’s or health insurance plan’s use of AI, please let us know by submitting a complaint to my office: https://ocrportal.hhs.gov/

Endnotes

¹ These specific requirements go into effect on May 1, 2025.