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After Election Win, California’s AG Turns to Investigating Hospital Algorithms for Racial Bias

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SACRAMENTO, Calif. – California Attorney General Rob Bonta sailed to victory in the Nov. 8 election, continuing his progressive record on reproductive rights, gun control and social justice reform. As he charts his next four years, the 50-year-old Democrat wants to fight racial discrimination in healthcare, including by examining software programs and decision-making aids used by hospitals to treat patients.

Bonta, the first Filipino American to serve as the state’s chief attorney, in August asked 30 hospital directors for a list of the commercial software programs their facilities use to support clinical decisions, schedule operating rooms, and guide billing practices. In return, he offered them confidentiality. His goal, Bonta told KHN, is to identify algorithms that may direct more attention and resources to white patients than minorities and increase racial disparities in healthcare access, quality and outcomes.

“Unequal access to our healthcare system needs to be fought and reversed, not perpetuated and propagated, and algorithms have the power to do both,” Bonta said.

It’s too early to know what Bonta will find, and his office won’t name the hospitals involved. The California Hospital Association said in a statement that such bias “has absolutely no place in the medical treatment of patients in any nursing facility,” and declined to comment further.

Proponents have high hopes for what Bonta will find — and for the next four years. “We expect to see a lot more of him in this full term,” said Ron Coleman Baeza, managing director of policy for the California Pan-Ethnic Health Network. “Its a lot to do.”

Last year, Governor Gavin Newsom named Bonta attorney general after Xavier Becerra left the position to join the Biden administration as secretary of the US Department of Health and Human Services. In the November 8 election, which earned him his first full term, Bonta faced Republican challenger Nathan Hochman, a former federal attorney who campaigned for the prosecution of violent criminals and the removal of the deadly synthetic opioid fentanyl from the streets. In contrast, Bonta advocated gun control and the decriminalization of low-level drug offenses and in January advised law enforcement officials not to prosecute women for murder if a fetus dies, even if their drug use contributed to the death.

In unofficial results, Bonta had about 59% of the statewide vote, compared to 41% for Hochman.

Bonta, formerly a state representative representing the East Bay, is eligible to run for a second full term, which could give him a nearly 10-year term.

His wife, Democratic State Assembly Member Mia Bonta, was among officials discussing her abortion experience after a leaked draft U.S. Supreme Court opinion released in May revealed that Justices Roe v. Wade would probably pick up. After they did so, the Attorney General threatened legal action against local jurisdictions that attempted to enact abortion bans.

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Bonta called health care a right for all Californians and said he wants to help people of color and low-income communities have more access to doctors and treatments, as well as better care. “It’s something I’ve actively worked on as an elected official throughout my career and even before that,” said Bonta, whose father helped organize health clinics for farm workers in the Central Valley.

But health equity remains an elusive goal, even as it has become a buzzword among health advocates, researchers, policymakers and leaders. And as with most aspects of the state’s mammoth healthcare system, progress has been slow.

The Newsom administration, for example, will require managed care plans to sign new Medicaid contracts to hire a chief equity officer and commit to reducing health inequalities, including in child and maternal care. The state’s Medicaid program, known as Medi-Cal, serves nearly 15 million people – most of whom are black. But those changes won’t come until 2024 at the earliest.

State legislatures also seek to minimize racial discrimination through legislation. For example, in 2019 they passed legislation mandating implicit bias training for healthcare providers who care for pregnant women. Black women are three times more likely to die from childbirth than white women.

In recent years, researchers have begun to warn that racial discrimination is baked into the diagnostic algorithms doctors use to make their treatment decisions. One model predicted a lower success rate for vaginal births in Black and Hispanic women who had previously had a cesarean section than in white women, but did not take into account marital status and patient insurance type, both of which can affect the success rate of a vaginal birth. Another, used by urologists, associated black patients who came to the emergency room with “flank pain” with a lower likelihood of kidney stones than non-black patients — although the software’s developers didn’t explain why.

Some researchers compared such medical algorithms to risk assessment tools used in the criminal justice system, which may lead to higher bail amounts and longer prison terms for black defendants. “If the underlying data reflect racist social structures, then their use in predictive tools perpetuates racism in practice and policy,” they wrote in the New England Journal of Medicine in 2020.

Bonta seeks the collaboration of the hospital industry in his algorithm investigation, identifying racial and ethnic differences as injustices that require action. He said he believes his investigation is the first of its kind and that it falls under the California Department of Justice’s responsibility to protect civil liberties and consumers. “We have a lot of depth,” he said of his agency of 4,500 people.

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Coleman Baeza and other healthcare consumer advocates said the attorney general should also oversee not-for-profit hospital mergers to ensure healthcare facilities aren’t shedding beds in underserved communities and cracking down on predatory medical lending, particularly in dental care.

“They are violating existing consumer protections, and that falls squarely within the purview of the AG,” said Linda Nguy, a senior political advocate for the Western Center on Law and Poverty.

Nguy urged Bonta to address underperforming health plans if they don’t contract with enough providers to allow patients to get appointments on time, even though California’s Department of Managed Health Care is the state’s primary health insurance regulator.

“During Covid, health plans have essentially been given a pause in reporting on their timely access. But that hiatus is over and the plans must meet those requirements,” Nguy said. “He can request this usage data.”

Bonta remains coy about a specific breed-related issue.

His office has supported the California Remediation Task Force, which this year released a nearly 500-page preliminary report that found black Californians had shorter life expectancies and poorer health outcomes than other groups. In surveys of hospitals across the country, black patients with heart disease receive “older, cheaper, and more conservative treatments” than white patients, the report said.

The task force might recommend cash compensation for black Californians who can make connections to enslaved ancestors, but Bonta did not support that plan. The final report is due in July.

“If we can move the needle, then we should,” Bonta said. “There’s a whole bunch of different possible solutions, ways to get there.”

This story was produced by KHN, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the three major operational programs of the KFF (Kaiser Family Foundation). KFF is a donated non-profit organization that provides information on health issues to the nation.

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