States are writing their own rules for AI in health care

State of play: Colorado in May enacted one of the first comprehensive state AI laws, which places limits on developers and deployers of AI systems that make "consequential decisions," including in health care.

• "The federal government is particularly ineffective and slow these days," said Colorado state Rep. Brianna Titone (D), a sponsor of the bill. "The states really need to step up" to make sure conversations around ethical and responsible use of AI are happening, she said.
• Utah's AI office is working to regulate mental health chatbots. Many health care workers in the state also have to disclose when they have generative AI interact with a consumer.
• State medical and osteopathic boards this spring also adopted recommendations for best practices for governing the use of AI in clinical care.

Yes, but: States have many more health AI proposals than enacted policies, said Valerie Rogers, senior director of government relations at the Healthcare Information and Management Systems Society.

• Several states are trying to restrict health insurers' use of AI to assess whether to pay for care, Bloomberg Law reported.
• In California, a state bill's proponents have worked through health insurers' concerns with the policy. But it could still be held up because of the added cost to the state's managed care fund.
• Bill sponsor state Sen. Josh Becker (D) told Axios that Senate appropriators will decide whether to allocate money for the policy this week.

Policymaking on AI and health will likely pick up in 2025, Rogers said.

• "States do feel under some pressure to rise to the challenge … particularly around privacy, around security, to limit bias or any sort of discriminatory use of AI," she said.

The big picture: States can often make policy quicker than the federal health bureaucracy and with specific community needs in mind.

• Still, state officials have run into many of the same problems as their D.C. counterparts, like the lack of clear definitions on AI and differing stakeholder opinions.

Between the lines: Regulating AI use in health care on a state-by-state basis may create a patchwork system that's difficult for users and developers to navigate. That's not practical in the long run for many generative AI technologies, said Jennifer Geetter, a partner at law firm McDermott Will and Emery.

• "There are states that take different approaches to other health regulatory topics, but at a broad level, people move across states, technology moves across states, data moves across states, and risk moves across state lines," Geetter said.

• States are making an effort to collaborate on their AI policies, including in the health sector, through convening groups like the National Conference of State Legislatures, said Colorado's Titone. An open forum doesn't solve all the problems, though.
• "You can't just copy and paste a law into someone else's statute book and expect it to work exactly the same," she said.

What to watch: The federal government is slowly making progress toward national regulations on health AI. The Biden administration in late July reorganized its health IT offices in part to better focus on regulating artificial intelligence.

• Last week, Food and Drug Administration officials promised transparent and predictable guardrails for the use of artificial intelligence in drug development, Axios' Peter Sullivan reported.
• But FDA leaders didn't commit to a timeline for laying out those rules.

The health care and technology industries themselves are still hashing out their own opinions on what transparency, safety and efficacy for AI look like in practice, said Brian Anderson, CEO of the Coalition for Health AI. The group brings together health systems, payers and tech giants like Google and Microsoft.

• "Give us a year, and we'll come back to you with some pretty important agreements," Anderson told Axios.