EFF sues CMS over deployment of Medicare prior authorization AI
A nonprofit advocacy group focused on digital civil rights and online privacy has filed a lawsuit against the Centers for Medicare & Medicaid Services (CMS), seeking more information about a multi-state pilot program where the agency is testing the use of AI to automate prior authorization claims in six states—in this case for traditional Medicare, something typically not hindered by the pre-approval process.
In its complaint, the Electronic Frontier Foundation (EFF) says CMS has failed to respond to a Freedom of Information Act (FOIA) request that sought more information about the AI initiative, which the government has dubbed “WISeR (Wasteful and Inappropriate Service Reduction).”
As of January 1, 2026, New Jersey, Ohio, Oklahoma, Texas, Arizona and Washington are using artificial intelligence and machine learning to make hard decisions on cost containment and patient care delivery that CMS said is aimed at reducing fraud and improving efficiency.
However, a coalition of Democrats in Congress are skeptical. Instead, they fear the AI is simply putting a barrier between patients and providers, where Medicare’s fee-for-service model is now effectively looking a lot more like the tightly controlled reimbursement model seen from Medicare Advantage, the privatized version of the program.
One way to get to the bottom of what’s really happening is a FOIA request. As EFF noted in an announcement, CMS has been less-than-transparent about some of the most pertinent facts, such as what algorithms and methodology WISeR is using for its work, what safeguards are in place to spot flaws, and what data sets are being used to train the models.
We do know that CMS has chosen a number of private companies to effectively act on the WISeR methodology—but what that means in terms of “algorithmic bias, privacy violations, and wrongful denials of care” is still unknown.
It’s those missing gaps that spurred the EFF to file its lawsuit.
"Tasking an algorithm with making determinations about treatment can create unwarranted—and even discriminatory—delays or denials of necessary medical care," Kit Walsh, EFF’s Director of AI and Access-to-Knowledge Legal Projects, said in the announcement. "Given these serious risks, the public requires transparency that it hasn't gotten.”
“We're suing to get badly needed answers about how Medicare's AI experiment works,” she added.
The advocacy group said it submitted its FOIA request earlier this year, asking for records related to the WISeR deployment, including agreements CMS made with vendor participants, and any testing done on AI models to root out hallucinations and bias.
"The public has a right to know more about the algorithms driving decisions around their healthcare," Tori Noble, Staff Attorney at EFF, said in a statement. "Without greater transparency, patients, providers, and policymakers will continue to be left in the dark.”
To date, EFF says CMS has not handed over any records at all. Now, it’s asking a court to force it to comply.
Incentivized to deny
According to EFF, the companies participating in the WISeR pilot are compensated, in part, by the “associated savings” they generate from denying medical claims. Hospitals and providers in pilot states have already reported incidents of delayed patient care and administrative snafus associated with the new Medicare prior authorizations, the advocacy group said, citing a Modern Healthcare story.
Notably, the vendors participating in the WISeR framework are already using AI for medical claims and billing. The list of participants in the pilot includes Cohere Health, Genzeon Corporation, Humata Health, Innovaccer, Virtix Health and Zyter.
This is a developing story.
Chad is an award-winning writer and editor with over 15 years of experience working in media. He has a decade-long professional background in healthcare, working as a writer and in public relations.