Medicare’s AI Experiment Faces Scrutiny: EFF Files FOIA Lawsuit
SAN FRANCISCO – The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) lawsuit against the Centers for Medicare & Medicaid Services (CMS) seeking records about a program utilizing artificial intelligence (AI) to evaluate requests for medical care. The program, known as WISeR (Wasteful and Inappropriate Service Reduction), has raised concerns about potential delays or denials of necessary medical care due to algorithmic bias and lack of transparency.
What is WISeR and Why the Concern?
Announced last year by CMS Administrator Dr. Mehmet Oz, WISeR employs AI to assess prior authorization requests from Medicare beneficiaries. Prior authorization, previously uncommon in original Medicare, requires healthcare providers to obtain advance approval from insurers before delivering certain treatments or services. The program is currently rolled out in six states, potentially impacting as many as 6.4 million Medicare beneficiaries [1].
Critics worry about the lack of clarity surrounding how the AI algorithms function, including the data used for training. Concerns center on potential algorithmic bias, privacy violations, and wrongful denials of care. Healthcare experts, providers, and lawmakers have voiced alarms that WISeR could harm patients if adequate safeguards aren’t in place.
Incentivizing Denials
A key concern is the incentive structure built into WISeR. Contracted companies are partially compensated based on the volume of healthcare services they deny, receiving up to 20 percent of the associated savings. Reports surfaced shortly after the launch indicating delays in care approval, communication issues, and administrative burdens for healthcare providers [2].
EFF’s FOIA Request and Lawsuit
Earlier this year, EFF submitted a FOIA request to CMS, seeking records related to WISeR, including agreements with software vendors, testing data for accuracy and bias, and audit reports. To date, CMS has not provided these records, prompting the lawsuit.
“The public has a right to grasp more about the algorithms driving decisions around their healthcare,” said Tori Noble, Staff Attorney at EFF. “Without greater transparency, patients, providers, and policymakers will continue to be left in the dark.”
EFF’s Ongoing Work in AI and Access to Knowledge
Kit Walsh, EFF’s Director of AI and Access-to-Knowledge Legal Projects, emphasized the risks of algorithmic decision-making in healthcare. Walsh has over ten years of experience at EFF working on issues related to free speech, net neutrality, copyright, coders’ rights, AI, and neurotech [3], [4]. She holds a J.D. From Harvard Law School and a B.S. In neuroscience from MIT.
EFF acknowledges the assistance of Stanford Law School’s Juelsgaard Intellectual Property & Innovation Clinic in preparing this lawsuit.
For the complaint: https://www.eff.org/document/complaint-eff-v-cms-medicare-wiser-foia