Hospices’ compliance and legal risks could be rising alongside their increased use of artificial intelligence (AI) technologies, according to law experts.
More providers are leaning into AI-enabled tools to improve quality, compliance and clinical documentation, according to Bryan Nowicki, partner at the law firm Husch Blackwell.
Hospice organizations that are not currently considering or using AI could be falling behind the learning curve of effective and compliant utilization, Nowicki said during a recent Husch Blackwell podcast. AI tools are quickly evolving in regulatory oversight practices and in end-of-life care delivery. Providers need to keep pace with the trends to sustain changes on the horizon, he stated.
“We know the government is making use of AI, and that’s not necessarily making life easier for hospices,” Nowicki said. “AI went from an afterthought to front and center. If you’re not on top of it now, and you try to get into it later, you might be missing a lot of the learning process about how to use AI effectively. What are some of the pitfalls? You want to make sure you grasp onto those opportunities and understand some of the concerns.”
Hospices need a cautious approach to AI use, particularly amid lagging regulatory frameworks that oversee these specific technologies, Nowicki said. Following hospice and healthcare regulations is essential to compliance, with AI-enabled documentation and patient communication as areas of concern.
The physician narrative is a focal point of AI compliance risk, Nowicki stated. For example, if physicians use AI to check the narrative’s accuracy to verify patient eligibility, questions may arise on the human versus technology-assisted composition components.
Clinical documentation and patient eligibility issues are the most common reasons that can trigger an audit or increased regulatory focus for a provider. Hospices need policies and staff training that help clinicians understand what is and is not compliant AI use, according to Nowicki.
Hospices may be unaware of the most common ways that AI is being used among clinical and back-office staff, according to Taylor Crossley, associate at Husch Blackwell.
“Shadow AI use” among staff is posing increasingly challenging hidden legal and compliance risks for hospices, Crossley said. Examples of shadow use include staff using AI to help write family communications or patient visit notes, she explained. Using AI tools in this manner could be a potential breach of patients’ legal rights and healthcare regulations, Crossley stated.
Staff shadow AI use may be linked to potential issues related to protected health information (PHI) and violations of healthcare regulations in the Health Insurance Portability and Accountability Act (HIPAA).
Hospices need to have a clear strategy of embedding AI into their clinical and back-office workflows, Crossley said. Staff education and policies around safe, compliant use is also key to avoiding legal issues, she said.
Hospices seeking strong compliance need to examine the current AI utilization activities among staff and operations, including areas of billing and auditing, according to Crossley. Having this understanding will help guide the structure of their AI oversight policies, she indicated.
“With this shadow use, it’s not like there is a bad intention by staff members using AI. They’re just trying to work more efficiently,” Crossley said during the podcast. “Hospices and other providers have to have an acceptable use policy that explicitly addresses consumer AI tools. Having that in place to make sure that you’re addressing that shadow AI use policy and bring it out into the light.”
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