Artificial Intelligence in Healthcare, Assault & Battery, and Possible Coverage Changes

Today we continue with our series on bills the Legislature is currently considering, looking at AI in healthcare, assault and battery, and (possibly) huge changes to coverage. You can see our prior newsletter on what’s being considered here. 

Artificial Intelligence 

With Artificial Intelligence so much in the news of late, it’s unsurprising a few bills have been proposed on the topic. AB 3030 would regulate all hospitals and physician offices using generative AI. That is defined as “artificial intelligence that can generate derived synthetic content, including images, videos, audio, text, and other digital content.” But it would only apply to clinical information, not scheduling, billing, and administrative messages. Essentially, if AI is used to communicate clinical information, the bill would require providers to use a disclaimer—regardless of the communication medium—and inform patients how they can reach a human provider. 

SB 1120 aims to regulate how disability insurers and HMO’s can use AI when conducting utilization review. Use of AI (and the insurer’s policies involving AI use) must: 

• Be based on the actual patient’s history and the individual circumstances the patient’s provider presents; 
• Not discriminate based on any protected characteristics (race, sex, other health conditions, etc.) and must be “fairly and equitably” applied; 
• Be open to inspection; 
• Have established policies for accountability; 
• Not allow data to be misused; and  
• Not “directly or indirectly” harm an insured. 

The rules would also apply to an insurance company’s use of algorithms and “other software tools” for UR usage. Further, if services are denied or delayed based on medical necessity, a human would first have to review the provider’s request and the insured’s history and clinical circumstances. 

Assault & Battery 

Assault and battery against doctors and nurses who are providing emergency care outside hospitals or clinics is already punishable by imprisonment and a fine. AB 977 would expand the law to include other hospital healthcare workers. And it would cover emergency services provided inside an emergency department. Hospitals with an ED would also have to post a notice that assaulting or battering staff is a crime. 

Coverage Issues 

There are three notable bills that could significantly impact healthcare coverage in different ways. SB 516 and 1290 have already passed the Senate and are under review in the Assembly. The most significant healthcare overhaul proposal is AB 2200—Universal Healthcare. It has not passed the Assembly and looks to be stalled in the Appropriations committee. Given the potentially massive costs of creating a universal, California-paid-for system, and given the current budget woes in Sacramento, it seems unlikely this one will pass. But it does keep coming up, so it is worth noting. 

First, as to SB 516, the bill would ban insurance companies from requiring contracted doctors from having to get pre-authorization for: 1) a covered service if 2) the insurer approved at least 90% of that provider’s pre-authorization requests in the prior year. It would similarly ban using pre-authorization for routinely approved services. There would be certain exemptions, reviewed annually. The bill would also require the pre-authorization process to be done electronically. 

Next, SB 1290 could change the benchmark plan used since the advent of Obamacare in California in 2012. Specifically, the state made the Kaiser Foundation Health Plan Small Group HMO 30 the plan all small-group and individual plans have had to mirror, in terms of minimum benefits offered to insureds. If this bill passes, the Legislature would review those benefits and look to find a new benchmark plan for 2027 and beyond. Depending on what new plan is selected as the benchmark, a whole new list of required benefits might follow. It has garnered support from numerous advocacy groups, including the Association of California Life and Health Insurance Companies, the Association of Health Plans, CalChiro, and the California Dental Association. 

The last bill would be the biggest of the bunch—both in length and impact—but is also the least likely to pass this year. It is AB 2200, and it would create “CalCare” to provide universal, single-payor healthcare for everyone in California, along with what it describes as “a healthcare cost control system.” But that last item, costs, seems to be the main problem. With California’s budget crisis, most observers see the costs to the state as too exorbitant to be feasible this year. Given the Governor and Legislature just negotiated a delay in implementing last year’s SB 525 (the healthcare minimum-wage increase), it seems unlikely they will approve a bill this expensive. If they do, however, the bill would essentially eliminate private health insurance and ban participating providers from billing anyone eligible for CalCare for a covered benefit. Given the low likelihood of its passing, we will hold our analysis for now. If it regains traction, we will have a much more detailed article on it. Stay tuned. 

Best,

Keith W. Carlson and Nima A. Jalali