"Prescribing Algorithmic Discrimination' by Jennifer D Oliva and Elizabeth Pendo
comments In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (PDMPs) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.
Research demonstrates that clinical overreliance on the risk scores generated by PDMP algorithms motivates clinicians to refuse to treat—or to inappropriately treat—marginalized and stigmatized patient populations, including individuals with or perceived of suffering from substance use disorder and patients with chronic, complex disabilities. This article provides a framework for challenging such PDMP algorithmic discrimination as disability discrimination. It contends that Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and Section 1557 of the Accountable Care Act can be engaged to protect vulnerable patients from PDMP-related algorithmic discrimination and provides recommendations to strengthen the 2022 Section 1557 proposed rule concerned with clinical-decision algorithmic discrimination, to harmonize new and existing antidiscrimination protections, and to improve implementation and enforcement efforts in this context.
