
 
		HEALTH ALLIES 
 The potential applications of  
 machine learning and artificial  
 intelligence (“AI”) to cancer  
 prevention, detection, and  
 treatment are nearly limitless. From  
 targeting lesion detection during  
 colonoscopies,1 to individualizing breast  
 cancer risk assessments,2 to optimizing  
 chemotherapy regimens,3 AI and machine  
 learning have already proven useful in  
 cancer care. And, as partnerships between  
 clinical research stalwarts and tech giants  
 make clear,4 progress on discovering and  
 building out these applications is only just  
 beginning.  
 As an increasing number of health care  
 providers integrate these technologies into  
 their practices, however, new legal and  
 regulatory questions emerge. This article  
 provides a brief introduction to these  
 emergent questions: How will AI in cancer  
 care be regulated? How will patient privacy  
 considerations be addressed? And will using  
 new technologies expose providers to  
 heightened levels of liability?  
 Regulation and  
 Reimbursement 
 The FDA is racing to keep up with  
 medical-technological developments. In  
 recent years, a new unit dedicated to  
 digital health was created,5 and the FDA is  
 piloting a streamlined regulatory model for  
 digital health software.6 Nevertheless, the  
 current regulatory framework lags behind  
 the technology. This regulatory delay  
 can create legal challenges for health  
 care providers eager to adopt promising  
 developments in AI.  
 As the FDA develops new models for  
 regulating fast-moving AI technology,  
 payors are also playing catch-up. In  
 2020, the Centers for Medicare &  
 Medicaid Services (CMS) approved the  
 first reimbursement for an AI-augmented  
 health service—Viz.ai, software that  
 identifies signs of a stroke on CT.7 This  
 groundbreaking rule by CMS opens the  
 door for additional reimbursement for  
 services involving AI. 
 Privacy  
 The development of AI relies on vast  
 quantities of data collected from a huge  
 number of patients. This reliance on  
 individuals’ health information necessarily  
 raises questions about whether such  
 use of data violates the Health Insurance  
 Portability and Accountability Act of 1996  
 (HIPAA) and state health privacy laws.  
 These questions have only just begun to  
 play out. Google, which has partnered with  
 a number of health care institutions to  
 Real Concerns with  
 Artificial Intelligence 
 Legal and Regulatory Considerations in the Use  
 of Artificial Intelligence for Cancer Diagnosis and  
 Treatment 
 By Brandon Kulwicki, Attorney,  
 and Caitlin Bell-Butterfield,  
 Law Clerk, Hall, Render, Killian,  
 Heath & Lyman, P.C. 
 8 DALLAS MEDICAL JOURNAL  •  October 2021