Hospices need adaptive policies that address the various uses of artificial intelligence (AI) across their clinical and organizational operations. Providers lacking governance around these evolving technologies may face significant operational and compliance risks, according to legal experts.
Hospices are navigating a complex compliance landscape as AI tools increasingly come into the mix of care delivery, said Tayor Crossley, associate at the law firm Husch Blackwell. Leaders may not be aware of the diverse ways that AI is being used across their organizations.
A lack of insight and oversight around technology utilization can result in myriad challenges that threaten a hospice’s sustainability, Crossley stated.
“The biggest risk is the gap between what the AI tool generates and what a human has actually reviewed,” Crossley told Hospice News. “In terms of your AI use, it creates a bunch of different records for the same encounter. It’s getting all of your privacy protection policies in place over all of that different kind of documentation. It’s the concern that potentially a breach could come from the AI use by your employees. The two biggest [risks] are privacy and cybersecurity.”
Among hospices’ current legal risks is “shadow AI use,” Crossley said. This practice involves hospice staff using unapproved and unauthorized AI tools, which can result in HIPAA violations.
Organizations need policies that explicitly prohibit or regulate shadow AI use, including ongoing training around what tools and practices are appropriate versus a potential breach. HIPAA violations can challenge hospices financially, as well as reputationally among their referral partners and communities, Crossley indicated.
Providers are navigating several legal risks as AI technology rapidly changes, according to Crossley. Hospices need careful consideration when it comes to choosing AI platform vendors, particularly regarding a company’s data retention and privacy policies.
Hospices need a strong AI governance program with staff education and technology utilization policies, particularly as regulation and oversight of these technologies falls behind the curve of innovation, Crossley said.
“Hospices that will navigate AI successfully are the ones that treat it as a governed clinical and compliance tool today, rather than waiting for the perfect regulatory framework,” Crossley said. “There is no reason to wait for regulatory structure to catch up. Map every AI tool that you already have in use, including shadow use. Adopt or update written AI acceptable use and governance policy that covers both clinical and back-office. You’ve got to educate your staff on approved tools, the risk of unauthorized use and the importance of clinical judgement and patient-centered care.”
Federal and state agencies have increasingly employed AI-enabled technologies in their enforcement activities. Providers lack clarity around the ways that these tools are being used, and how their daily and long-term operations might be affected, according to Bryan Nowicki, partner at Husch Blackwell.
The U.S. Centers for Medicare & Medicaid Services (CMS) has addressed the fraudulent activity in several ways, including integrating data-driven and AI-assisted methodologies. These technologies scour large volumes of billing and clinical documentation, but quantity has not necessarily equated to quality in AI-assisted auditing practices, Nowicki said.
AI tools have in some cases have missed patient eligibility certifications during audits when the documentation was actually present in electronic medical records, according to Nowicki. Hospices are having a “difficult time” responding to these types of AI-driven audits, potentially due to a lack of human-guided regulatory oversight, he stated.
In addition to technology-assisted oversight, regulators may also be considering policies that govern, or potentially require, AI use across different aspects of healthcare delivery, according to Nowicki.
“The government might begin to have an expectation of AI as a compliance tool,” Nowicki told Hospice News. “Does that become the standard of care for hospices once it’s developed well enough for CMS to say, ‘You need to be using AI to avoid problems.’ It needs to allow for flexibility and not a cookie-cutter approach as we go forward. But where do you draw the line? CMS is going to draw a line somewhere, and hospices might want to draw it somewhere else. That’s what the future battles will be over.”
Companies featured in this article:
