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New Final Regulation Prohibiting Algorithmic Discrimination by Health Care Providers and Payers

Epstein Becker Green

May 20, 2024
1:00 p.m. - 1:45 p.m. ET

On May 6, 2024, the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) published its final rule, applying section 1557 of the Affordable Care Act to algorithms used by covered entities, including health care providers and payers.

The rule goes beyond simply prohibiting algorithmic discrimination and requires certain due diligence by health care providers and payers in the form of a compliance program. Such a program is linked to ongoing monitoring of certain public sources of information about algorithmic discrimination and the adoption of certain risk management program elements to ensure that algorithms used by the covered entity, whether bought or built internally by the covered entity, avoid the risk of discrimination. The preamble to the rule makes it clear that covered entities that use algorithms cannot simply rely on developers from whom they acquire those algorithms.

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