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Executive briefing: Strategic inflection points in digital health & health tech

The digital health and health tech sectors are undergoing a period of accelerated transformation amidst a fragmented regulatory landscape. Companies are looking within and to peers to determine how to pursue innovation while balancing financial and regulatory risks in this challenging landscape, while investors are waiting for leaders to emerge.  This briefing outlines four critical inflection points that are redefining the market.

1. AI in Healthcare: Building Trust and Embracing Risk Amidst Regulatory Uncertainty

Inflection Point: With no clear federal legal framework for AI in healthcare, organizations must work with internal and external stakeholders to build trust and understanding of the technology while proactively managing risk to drive adoption.  

  • Addressing Knowledge Gaps: Many patients lack the context to evaluate AI-driven decisions. Public-facing materials and clinician communication are key to bridging this gap. Empowering patients to engage with their own medical data – the information AI uses – establishes transparency and can build trust in AI-assisted care. 
  • Progress, Not Perfection: The question isn’t whether AI is perfect—it’s whether it’s better than current alternatives. Humans also make mistakes, but human error is more acceptable to the public than AI error. Framing AI as a tool for enhancement, not replacement, helps build trust. Communicating success stories to overcome negative perceptions in the court of public opinion is an important step in advancing AI within healthcare. 
  • Risk Without Regulation: The absence of federal AI regulation requires healthcare organizations to build internal frameworks for risk quantification and mitigation. 
  • Human-in-the-Loop Models as a De-Risking Strategy: At this time, AI is most often being deployed as clinical decision support—not as a replacement for clinicians. These models must be pressure-tested by competent humans to avoid hallucinations and ensure accountability. From a legal standpoint, the source of error—human or machine—doesn’t change the risk. What matters is whether the output was pressure-tested by a qualified reviewer.  

Investor Insight: Back companies that treat AI governance as a strategic asset, not just a compliance checkbox. The strongest players combine defensible frameworks, clear accountability, and alignment with emerging federal and state guidance with real-world evidence and proven use cases. Models that embed meaningful human oversight, anchored by the pedigree and expertise of the individuals in that loop, reduce both clinical and regulatory risk. That combination makes them far more investable and better positioned for long-term adoption. 

2. Payment Model Volatility: Navigating the Cash-Pay Surge and Reimbursement Gaps

Inflection Point: The traditional reimbursement ecosystem is now one of many paths for digital health companies. 

  • Cash-Pay Expansion: We see continued growth in cash-pay models given challenges with health plan coverage and consumer preferences to leverage virtual models for certain treatments, such as weight loss.  
  • Reimbursement Realities: Many digital health companies are opting out [...]

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Partnering with Legal at the Critical AI/Healthcare Crossroads

The intersection of AI and healthcare is outpacing the development of laws and regulations governing the technology. Even in the early days of AI transformation, this is creating uncertainty for healthcare organizations. Leveraging existing frameworks and creating a culture of collaborative compliance can help organizations navigate these challenges without stifling innovation.

Sumaya Noush, partner at McDermott Will & Emery, and Megan Harkins, Compliance and Regulatory Counsel at Innovaccer, discussed the role of legal teams in healthcare AI innovation in a podcast recorded at Becker’s 15th Annual Meeting.

Top Takeaways

  • AI is rapidly advancing in healthcare. It can help identify diseases, predict patient risk, and improve workflows. However, the legal system is having a hard time keeping up with it.
  • The lack of regulation in AI can lead to novel and unpredictable legal challenges, including lawsuits that apply old rules to new technologies.
  • Cross-border AI legal guidance is more unified and can serve as a gold standard for AI companies and healthcare organizations leveraging AI in any jurisdiction.
  • Compliance by design, where legal and compliance considerations are integrated from the start, can help organizations navigate the regulatory minefield while maintaining their innovative edge.
  • AI in healthcare will probably stay in a state of regulatory uncertainty for a while. Case law development is important for future regulation.

Making Innovation Actionable

“Flexibility within a framework” and legal-business collaboration is essential to navigate change in a highly regulated industry like healthcare.

In today’s fast-moving, tech-driven world, effective lawyers – both in-house and outside counsel – function as strategic business partners to turn creative ideas into workable, real-world solutions that exist on the right side of the law. To do this effectively and create a defensible record, it is important for compliance, legal, and business stakeholders to collaborate proactively and to ensure that innovation is guided by a clear understanding of legal requirements and ethical standards.

Lack of AI regulations in healthcare is leading to a “wild West” situation, but organizations can find guidance in existing standards and frameworks.

The gap in AI law can make it hard for healthcare organizations to adopt the new technologies, especially in the United States, where laws are often more fragmented than in other countries. US-regulated organizations can look to the EU as a bellwether for where AI oversight in the US may go. In the meantime, working within old-school healthcare regulations and operating from the place that what is true for humans and healthcare entities is still true for the AI tools that are then embedded to support the practices, provides a compliant path forward for US health industry players. That means applying existing laws and frameworks like HIPAA, recording and consent laws, IP law, and others, to novel technologies to data use cases. Voluntary commitment to industry standards like NIST and ISO 42001 can provide a structured, compliance-driven approach to AI management.

Dig deeper and listen to the full podcast here




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Inside the ONC’s Plans to Regulate Health AI: Proposal on Predictive Decision Support Interventions

The Department of Health and Human Services Office of the National Coordinator for Health Information Technology (ONC) published a notice of proposed rulemaking on April 18, 2023, titled “Health Data, Technology, and Interoperability: Certification Program Updates, Algorithm Transparency, and Information Sharing,” or HTI-1.

HTI-1 includes proposals that would create new transparency and risk management expectations for artificial intelligence (AI) and machine learning (ML) technology that aid decision-making in healthcare. Importantly, ONC’s proposal includes requirements for a broad set of technologies based on algorithms or models that could be used by many types of users, for any purpose, irrespective of the technology’s risk profile and regardless of who developed the algorithm or model. If finalized, ONC’s HTI-1 proposal for AI/ML technologies they define as “Predictive Decision Support Interventions” will significantly impact the development, deployment and use of AI/ML tools in healthcare. As of June 14, 2023, comments on the HTI-1 proposed rule are due on June 20, 2023.

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Introducing McDermott’s AI in Healthcare Resource Center

Stay up-to-date and in-the-know on the surge of developments impacting AI in healthcare.

Our global, cross-practice team has curated links to key AI-related resources from legislative and executive bodies, government agencies and industry stakeholders in one easy-access location to help you stay current and engage in the AI conversation. We will continuously update this page as new developments emerge.
You will find:

  • Opportunities for public comment from lawmakers and government agencies to help you shape AI policy
  • Healthcare-specific policy and regulatory initiatives and legislative activity to watch
  • Frameworks, playbooks, whitepapers, blogs and more from key stakeholders
  • Insights and analysis from McDermott’s global healthcare, privacy and health policy leaders

Access now and subscribe for updates. 




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