A federal judge in Minnesota has denied UnitedHealth Group’s request to narrow the scope of discovery in an ongoing lawsuit that accuses the insurer of using artificial intelligence to wrongfully deny Medicare Advantage members post-acute care.
The case, filed in 2023 by the families of two deceased Medicare Advantage members, challenges the company’s use of the nH Predict algorithm, which was developed by NaviHealth, a care management company acquired by Optum in 2020. The plaintiffs allege the tool overrides physicians’ decisions and led to premature denials of medically necessary services, forcing families to pay out of pocket.
In February, a federal judge allowed the lawsuit to partially move forward, dismissing several claims but permitting allegations of breach of contract and breach of the implied covenant of good faith and fair dealing to proceed. Those claims focus on whether UnitedHealthcare honored its evidence of coverage terms, which state that coverage decisions for members would be made by clinical staff and physicians.
UnitedHealth later sought to split discovery into two stages, beginning with a narrow focus on whether the company used nH Predict instead of physicians to make coverage determinations for the named plaintiffs. Broader discovery would follow only if the plaintiffs survived summary judgment.
In the Sept. 8 order, the Minnesota judge denied that request, finding that splitting discovery would create unnecessary delays, duplicative litigation and disputes over whether certain discovery requests related to class action certification or the merits of the case. The court noted that UnitedHealth had already resisted discovery in earlier stages of the case and said its proposal would ultimately work against the plaintiffs.
The naviHealth Predict tool is not used to make coverage determinations, an Optum spokesperson previously told Becker’s.
“The tool is used as a guide to help us inform providers, families and other caregivers about what sort of assistance and care the patient may need both in the facility and after returning home. Coverage decisions are based on CMS coverage criteria and the terms of the member’s plan. This lawsuit has no merit, and we will defend ourselves vigorously.”
The use of artificial intelligence has become a particular concern in the Medicare Advantage program. Humana was also sued in 2023 for allegedly using nH Predict to wrongfully deny MA members’ medical claims. In August, a federal judge dismissed some state-law claims but allowed others, including breach of contract and fraud, to proceed’
Lawmakers have expressed increasing concern about the role of AI algorithms in making healthcare decisions. In February 2024, CMS issued guidance clarifying that while algorithms can assist in predicting patient needs, they cannot solely dictate coverage decisions.
