On May 17, 2024, Colorado Governor signed into regulation, Senate Bill 24-205, the Colorado Artificial Intelligence (AI) Act (the “Act”). The regulation will take impact on February 1, 2026 and the Colorado Attorney General can have unique enforcement authority. As previewed in our prior weblog publish, the Act focuses on shopper safety points when corporations develop AI instruments and imposes obligations on builders (i.e., creators) and deployers (i.e., customers) of “excessive danger” AI methods. “High-Risk” AI methods (“HRAIS”) are outlined as any AI system that “makes, or is a considerable consider making, a consequential resolution.” A considerable issue means one which (1) “assists in making a consequential resolution”; (2) “is able to altering the result of a consequential resolution”; and (3) “is generated by a man-made intelligence system.” A consequential resolution is a call that has a cloth authorized or equally important impact on issues associated to training, employment, monetary lending providers, a vital authorities service, healthcare providers, housing, insurance coverage, or authorized providers. This article particularly opinions the impression the Act has on healthcare providers.
As referenced within the Act, 42 U.S. Code § 234 defines healthcare providers as “any providers supplied by a well being care skilled, or by any particular person working underneath the supervision of a well being care skilled, that relate to (A) the prognosis, prevention, or therapy of any human illness or impairment; or (B) the evaluation or care of the well being of human beings.” Therefore, if a developer or deployer of HRAIS conducting enterprise in Colorado makes use of the system to find out whether or not healthcare providers must be supplied or denied, the developer or deployer shall (i) publicly confide in customers the kind of HRAIS being developed or getting used; (ii) confide in the Attorney General when HRAIS is being deployed or has triggered algorithmic discrimination; (iii) develop a danger administration coverage and governance program; and (iv) full an impression evaluation for the HRAIS, amongst different necessities. Entities coated underneath the Health Insurance Portability and Accountability Act (“HIPAA”) are exempt from the Act if they supply AI-generated suggestions that require a well being care supplier to take motion to implement the advice. Given this exemption, well being care entities that aren’t HIPAA regulated and people which are utilizing blackbox AI (i.e., the place the advice is pushed out with a healthcare supplier to take motion) wouldn’t be exempt.
We will hold our readers posted on additional developments, because the Colorado legislature intends to check and probably revise the invoice earlier than it goes into impact. In the interim, please don’t hesitate to contact your Sheppard Mullin Healthy AI crew, within the occasion you’re a developer or deployer and would love help with the preparation of risk-management insurance policies and procedures and draft kind notices and disclosures in anticipation of the compliance deadline.