Special Topic: Fifty rulebooks, for now

Show Notes

The White House wants one national AI rulebook instead of fifty. Physicians should accept it only if it keeps the states' rules on AI in medicine or protects patients at least as well.

Read the special topic and its sources: https://physicianintheloop.org/specials/fifty-rulebooks-for-now/

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Fifty rulebooks, for now

The White House wants one national AI rulebook instead of fifty. Physicians should accept it only if it keeps the states' rules on AI in medicine or protects patients at least as well.

On Oct. 6 Britain's government accepted all 44 recommendations that a commission led by doctors of the National Health Service had made on the regulation of AI in health care. It promises a working group so that patients have access to redress when their care falls below what is reasonably expected, and it will consider what patients should be told when AI is used in their care. These are commitments, with details due by next spring, not yet rules.

In America the argument is about who may write such rules at all. The White House has asked Congress to preempt, or override, state AI laws that "impose undue burdens," in favor of "a minimally burdensome national standard," "not fifty discordant ones." Yet the rules that keep a clinician answerable for what AI does in a patient's care, and keep the patient informed, are being written in the states. Physicians should support a national standard only if it leaves those rules in place, as a bipartisan House bill appears to do. They should oppose any preemption of those rules, whether by executive order, agency statement or statute, that comes without a federal floor at least as protective.

An executive order signed last December told the Justice Department to set up a task force to challenge state AI laws. The order also called for legislation preempting state AI laws "that conflict with the policy set forth in this order," while sparing those on child safety, data centers, states' own use of AI and "other topics as shall be determined." Health care is not on that list. In July a bipartisan group of House members introduced the FRONTIER Act, which would bar states from imposing new duties on AI developers over the catastrophic risks of their models: how they disclose those risks, report incidents and submit to outside audits. It leaves states free to regulate how AI systems are used, as long as no duties fall on developers for how models are built, trained, tested or released.

The state rules at stake are specific, and two have been on California's books since 2024. One bars health plans and insurers from letting software deny, delay or modify care on grounds of medical necessity; only a licensed physician or other qualified clinician, weighing the patient's own history, may make that call. Another requires a health facility, clinic or practice whose generative AI communicates with patients about their clinical information to say so and explain how to reach a human, unless a licensed clinician has reviewed the message. Pennsylvania may be next. On Sept. 30 its House passed a bill 144 to 59. It would require health care facilities that use AI in clinical decisions to tell patients so in plain language, keep AI from superseding a clinician's decisions and forbid penalizing a clinician solely for exercising independent judgment.

In a national survey last November, with questions from University of Michigan researchers, more than half of adults wanted to be asked for permission each time AI is used to diagnose them or choose a treatment. A survey records preferences, not effects on health. Federal rules cover part of the ground: Medicare Advantage plans must base coverage on the individual patient, and an algorithm alone cannot be the basis for denying a hospital admission. But for a Californian whose health plan the state regulates, the rule that a physician or other qualified clinician, not software, decides medical necessity comes from the state, as does the label on an AI-written message about her care. Preempt those laws without a replacement and she loses both.

The case for preemption has real force: fifty rulebooks also serve patients badly. A company selling software nationwide could have to satisfy each state's definitions, labels and reviews. An industry group, the Consumer Technology Association, counts more than 240 health AI bills introduced this year across 43 states, and says state privacy laws already create a system "in which patients' rights can change depending on where they live." The case for preemption adds that laws giving clinicians the final say also leave physicians holding the liability for tools that others chose.

Each point has force, and none makes the case for preemption without a standard. If a patient's rights should not depend on where she lives, the remedy is a national floor, not the removal of protections some states already give. The industry group itself calls for "a consistent, risk-based federal AI framework that protects patients," with monitoring after deployment. The liability point is the hardest to answer, and Britain has not answered it either: its working group on who is responsible for what "will not determine or redistribute responsibilities," though work on guidance about indemnity continues. That argues for a national law whose terms physicians help to write, not for giving up the states' rules in the meantime.

Medical societies should put one condition to Congress: no preemption of state rules on the use of AI in medicine unless a federal law first keeps a clinician answerable for the decisions software informs, protects the clinician who overrules it, and requires that patients be told in plain language when AI is used in their care. Those terms matter most because the states' laws and bills already offer them, and because most adults surveyed say they want to be told.

Britain began by asking a commission led by its doctors what the rules for medical AI should say, and accepted every answer. America is being asked to decide first who may write the rules, and to leave what they say about medicine for later. Until Washington offers a rulebook that protects patients at least as well, the fifty it would replace should stand.

This special topic was read by an AI voice. Its sources are linked at physicianintheloop.org.