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How to skirt AI rules, according to the FDA

The ideas and innovators shaping health care
Jan 31, 2024 View in browser
 
Future Pulse

By Daniel Payne, Carmen Paun, Erin Schumaker and Ruth Reader

TECH MAZE

A doctor prepares a prescription on a computer screen on September 5, 2012 in Berlin, Germany.

Even AI that summarizes doctors' notes could affect care, a new JAMA paper argues. | Adam Berry/Getty Images

Did federal regulators give artificial intelligence developers a roadmap to avoid their oversight?

In a limited way, they did, according to University of Maryland researchers.

In a new paper in JAMA, the researchers say the FDA inadvertently revealed a loophole when it said that some AI products, such as those that summarize doctors’ notes, wouldn't be considered medical devices subject to FDA rules. The loophole was included in the FDA’s guidance for “clinical decision support software,” which it issued in September 2022.

The guidance, released just two months before ChatGPT revolutionized AI, suggested that the agency didn’t consider note-taking AI within its purview because such technology doesn’t make specific predictions or disease estimates.

That’s too bad, the researchers argue, because AI that merely tries to make sense of the mountains of clinical documentation could still need regulatory oversight and harm patients without it.

How so? The words the AI chooses to create the summaries could nudge clinicians in one direction or another.

AI systems have also exhibited bias toward producing what a target audience expects — which could reinforce a doctor’s own biases.

Meanwhile, even small errors in summarizing notes could adversely affect care delivery.

What’s next? The authors say that even if the FDA were to seek to write rules for AI that summarize doctors’ notes, it might fail without receiving explicit new authority from Congress.

 

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This is where we explore the ideas and innovators shaping health care.

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Share any thoughts, news, tips and feedback with Carmen Paun at cpaun@politico.com, Daniel Payne at dpayne@politico.com, Ruth Reader at rreader@politico.com or Erin Schumaker at eschumaker@politico.com.

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FORWARD THINKING

Christophe, a former French soldier, holds a cup as he sits at the "Athos" house - a place that welcomes veterans with traumas - in Toulon, southern France, on May 26, 2021. - Some 2,800 French servicemen suffering from psychological injuries have been recorded from 2010 to 2019, five times more than the number of physically injured. In the army alone, 70% of the 1,000 wounded on long-term sick leave suffer from   post-traumatic stress disorder (PTSD). (Photo by Nicolas TUCAT / AFP) (Photo by NICOLAS TUCAT/AFP via Getty Images)

An avatar therapist can always find time for an appointment. | AFP via Getty Images

Virtual reality powered by AI could help close the gap between the number of people who could benefit from therapy and the number of therapists available to treat them.

That is, if people don’t mind meeting with a therapy bot, POLITICO’s Gregory Svirnovskiy reports.

Researchers at Cedars-Sinai Medical Center in Los Angeles say their small study in which 14 people met with a therapy avatar in relaxing settings shows promise. npj Digital Medicine published the study on Jan. 26.

The avatar relied on XAIA, short for the eXtended-reality Artificial Intelligence Assistant, a large language model, to guide its exchanges with the participants during 30-minute sessions.

The participants brought up issues such as divorce, job loss, and substance abuse and testified to the program’s benefits.

What did they like? The avatar’s accessibility, anonymity, empathy and calming demeanor.

Even so: Some people preferred the deeper and more nuanced engagement that comes from interaction with real therapists.

Why it matters: An estimated 57.8 million adults lived with mental illness in 2021, according to the National Survey on Drug Use and Health. But almost 55 percent of adults with mental illnesses don’t receive treatment, per Mental Health America’s 2023 Access to Care Ranking. Availability — and cost — continues to be a central issue.

“While this technology is not intended to replace psychologists — but rather augment them — we created XAIA with access in mind, ensuring the technology can provide meaningful mental health support across communities,” Brennan Spiegel, one of the study’s authors, said in a press release.

Of note: The technology could have merit, but the study is too small to draw definitive conclusions and more robust research is needed.

 

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INNOVATORS

This illustration image shows tablets of opioid painkiller Oxycodone delivered on medical prescription taken on September 18, 2019 in Washington,DC. - Millions of Americans sank into addiction after using potent opioid painkillers that the companies churned out and doctors freely prescribed over the past two decades. Well over 400,000 people died of opioid overdoses in that period, while the companies involved   raked in billions of dollars in profits. And while the flood of prescription opioids into the black market has now been curtailed, addicts are turning to heroin and highly potent fentanyl to compensate, where the risk of overdose and death is even higher. (Photo by Eric BARADAT / AFP) (Photo by /AFP via Getty Images)

Researchers are pursuing new pain medications that don't pose an overdose risk. | ERIC BARADAT/AFP via Getty Images

Imagine a prescription opioid that alleviates pain but can’t cause an overdose.

California-based Ensysce Biosciences is working to bring one to market, and the Food and Drug Administration gave its efforts a boost this month when it granted its experimental opioid the agency’s breakthrough designation. That means the FDA wants the drug developed and reviewed faster than usual because preliminary evidence shows it could be better than similar medicines.

The drug has already cleared a Phase I clinical trial funded by the National Institute on Drug Abuse.

How it works: The experimental drug is an oxycodone derivative combined with an inhibitor of the digestive enzyme trypsin, which activates the opioid in the intestine.

If people take more than the prescribed amount, the inhibitor will block the enzyme, impeding the opioid from passing into the bloodstream.

“And that’s where you’re getting this overdose protection,” Ensysce CEO Lynn Kirkpatrick told Carmen.

Bragging rights: The company said it believes the drug is the first in any drug class to come with oral overdose protection.

“It’s quite incredible that the FDA granted a breakthrough status to an opioid product,” Kirkpatrick said, noting health care experts and politicians are wary of the pain relievers since overprescribing has caused hundreds of thousands of fatal overdoses over the past two decades.

“We do need opioids. We just need safer opioids, and I'm glad they recognized the fact that we have innovation in the opioid field,” Kirkpatrick said of the FDA.

 

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