Healthcare Algorithms and Discrimination

Eisenberg & Baum’s AI Fairness and Data Privacy Department has been investigating the use of Medical & Clinical Algorithms that harms individuals based on race, gender, and economic status.

Working alongside Patient Advocates, Medical and Healthcare Professionals who are dedicated to promote justice and in the healthcare systems where diversity, equity, and prioritization of life over profit is needed, Eisenberg & Baum’s AI Fairness Group, led by Juyoun Han, has been investigating and advocating on behalf of individuals and public-interest organizations.

Current Investigations:

Removal of Race from the eGFR equation (Learn more)

Juyoun Han submitted testimony to the National Kidney Foundation (Learn more)

Collaboration with 1in9 Charities, Inc. – Juyoun Han: Speaker at Film Screening (Learn more)

Collaboration with the Institute of Justice and Healing and White Coats for Black Lives for advocacy and education.

COVID-19 Resource Distribution and Disparities that Adversely Impact Communities of Color

Study: Allocation of COVID-19 Relief Funding to Disproportionately Black Counties (Learn more)

“Is artificial intelligence worsening COVID-19′s toll on Black Americans?” (Learn more)

Removal of Race from the eGFR equation

What is the eGFR and How Does it Affect Racial Minorities?

One of the main calculations used to assess kidney health, estimated glomerular filtration rate (eGFR), was adjusted in 1999 to apply a race coefficient to those patients who self-identified as Black, in an attempt to address the fact that the data used to make decisions regarding kidney health had been derived almost exclusively from white people.
This race modifier resulted in a systematic overestimation of the kidney health of Black patients, leading to inaccurate assessments of Black patient’s health and delaying treatment for Black patients, as well as perpetuating the unscientific notion that race is a biological instead of social construct and ignoring the substantial diversity that exists within ethnic or self-identified racial groups.
The National Kidney Foundation and American Society of Nephrology are now recommending the race coefficient’s removal and replacement with a formula that prioritizes accuracy, inclusiveness, and standardization.

NKF-ASN Task Force

In response to concerned voices within the medical, scientific, and patients’ communities, The National Kidney Foundation and American Society of Nephrology have been reassessing the use of the eGFR raced based score and created the NKF-ASN Task Force in September, 2020 in order to examine “every aspect of the inclusion of race in calculations that estimate adult kidney function and are used in both diagnosis and treatment” (kidney.org). The Task Force organized forums to solicit input from various interested stakeholders to be incorporated into a final report on the inclusion of race in diagnosing kidney diseases, set for release in mid-2021.

Task Force Statement on Interim Report

In the wake of these forums, the NKF and ASN Presidents released a joint statement calling for “ending use of the race coefficient modifier when calculating estimated glomerular filtration rate (eGFR) for US residents who self-identify as Black,” according to reporting from Medscape. This interim report on the inclusion of race in diagnosing kidney diseases concludes that “1) race modifiers should not be included in equations to estimate kidney function and 2) current race-based equations should be replaced by a suitable approach that is accurate, inclusive, and standardized in every laboratory in the United States.” The final report from the NKF-ASN task force will be released later in 2021.

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Juyoun Han submits written testimony to the National Kidney Foundation in support of removing race from calculations that estimate adult kidney function

“I support the removal of race from the eGFR equation.”

Juyoun Han, Esq., Partner in Eisenberg & Baum, LLP’s AI Fairness and Data Privacy Practice Group, addressed the National Kidney Foundation in written testimony earlier this year, presented before the Institute of Justice and Healing, referencing the estimated glomerular filtration rate (eGFR) equation for determining kidney health.

Han’s testimony included “a survey of legal and business risks that hospitals must consider in knowingly using the racially-biased eGFR test.”

According to Han’s testimony, health institutions that use race-based clinical algorithms may be held liable under a wide range of federal, state, and local laws and regulations:

Federal Laws: Title VI and Section 1557 of the Affordable Care Act prohibit race-based discrimination, which applies to a health program that receives federal financial assistance, including hospitals and institutions that receive Medicare or Medicaid reimbursements.
State and Municipal Laws: Laws of states and municipalities often provide an even stronger legal protection against race discrimination.
U.S. Department of Health and Human Services – Patients’ Bill of Rights: The Patients’ Bill of Rights set forth by the U.S. Department of Health and Human Services and state regulations underscores the importance of informed consent for medical decision-making, which is violated where a hospital uses race-based formulas to dictate a patient’s medical care options.
Contract Breach: The continued use of the eGFR test may be found to breach the material terms of contract between patients and hospitals, and may constitute professional negligence.

Han further detailed ways in which hospitals can be proactive to avoid legal liability:

Conduct an interdisciplinary impact study of race-based eGFR equations engaging a diverse team of experts, IT departments and vendors.
Inform patients about the race-adjusted equations and/or its alternatives before making clinical decisions.
Update knowledge about race-based medicine in education and training.

FULL TESTIMONY HERE: Juyoun Han Testimony to National Kidney Foundation

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Healthcare Algorithms and Discrimination