Across industries, more and more organizations (especially those in financial services, health care and life sciences, manufacturing, retail, technology, and transportation) are implementing or considering the use of artificial intelligence (“AI”) in their operations. AI refers to the ability of machines to simulate human intelligence to perform such tasks as making decisions, planning, and recognizing sounds or objects. As AI technology becomes more sophisticated and valuable as a driver of efficiencies, businesses and society as a whole will undergo seismic shifts. These shifts will pose legal and business uncertainties, as laws evolve and organizations adapt to change.
With its multidisciplinary capabilities and transactional, regulatory, and litigation experience, Epstein Becker Green is well positioned to advise clients—from startups to Fortune 500 companies—on how to reap the benefits of AI while minimizing their legal and business risks. Epstein Becker Green attorneys provide guidance on such issues as AI’s impact on the workplace, data privacy and security, and health care services and reimbursement.
AI in the Workplace
From algorithms analyzing employee data, to computer and robotic laborers in retail and manufacturing, to the rise of the on-demand worker, AI has disrupted how virtually every workplace operates. AI technologies are being deployed to assist human resource (HR) departments with hiring, promoting, counseling, and terminating employees; drones and driverless cars/trucks are being developed to transform the delivery of goods; and online markets are replacing retail brick-and-mortar establishments. Although some predict that AI will cause widespread loss of employment, others suggest that AI can be used as a tool to help human employees improve functionality or it can create new positions for human workers. Employers must develop a strategic plan for the changing design of the workplace.
Epstein Becker Green attorneys provide counseling and advice on the many issues that an organization must consider when introducing or utilizing AI in the workplace, including issues relating to:
- Compliant usage of HR technology (i.e., people analytics, digital interview platforms, chatbots, big data)
- Wearables in the workplace and accessibility
- Union avoidance, collective bargaining, and labor relations
- Wage and hour disputes
- Workplace data privacy and security
- Employment-related litigation
- Employee benefits and compensation design and compliance
- Workplace transition policies
- eDiscovery of data collected by machines
- Occupational health and safety (OSHA)
In addition, the firm provides corporate transactional services and, through affiliate EBG Advisors, strategic workplace management consulting services.
Data Privacy and Security
Many AI solutions, by their very nature, collect and store large amounts of employee, patient, or personal data. However, some technologies may collect information that, although necessary for the task at hand or the improvement of the AI technology, could violate an individual’s privacy rights. For example, the audio and video recording functionality of AI, as well as fingerprint, retina, and facial scanners, used for everything from access to a facility or room or time keeping to wellness program participation, may violate federal or state laws and regulations. And the collection of patient data through health-related devices and apps could give rise to violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Epstein Becker Green attorneys provide advice to organizations utilizing AI on best practices to minimize security threats and address privacy issues, including how to:
- Properly store and protect sensitive employee, patient, and personal data from unauthorized access by third parties or exposure through a breach
- Comply with the patchwork of international, federal, and state privacy laws when handling sensitive data needed for AI
- Comply with cybersecurity laws and standards
- Create effective cybersecurity policies and vulnerability tests
Health Care Services and Reimbursement
The use of AI has exploded in the health care industry, from assisting physicians and other providers in diagnosing and treating patients, to predicting diseases by analyzing complicated medical data, to making data entry and coding processes more efficient. Even hospital rooms and the delivery of medicine are being transformed by the use of robotics, remote telehealth services, and health and wellness apps.
However, while health care organizations are embracing products and services enabled by AI, they face challenges not only in complying with complex and confusing federal and state statutes and regulations but also in getting reimbursed for these services. Historically, the federal government has been slow to establish new and innovative payment models for reimbursing emerging technologies. Thus, for example, it’s unclear whether AI-enabled patient advice performed by companies and clinicians other than a physician would get paid when the current “fee for service” system values physician work when paying for patient interaction.
Epstein Becker Green, a thought leader in the health care industry for more than 40 years, counsels health care organizations that are developing or utilizing AI on how to:
- Comply with the laws governing licensure, the practice of medicine (including telehealth/telemedicine), fee-splitting, and other topics that affect the operations and utilization of AI products and services
- Comply with Food and Drug Administration regulations impacting the manufacture and marketing of digital health products
- Pursue strategies to optimize reimbursement for AI-enabled services
- Navigate health care legal and regulatory frameworks not designed for AI solutions
In addition, our affiliates, EBG Advisors and National Health Advisors, are advising clients on numerous AI issues—addressing business strategy, policy analysis, data analytics, regulatory compliance, performance improvement, and payment/reimbursement for services and technology.