[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 2997 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
1st Session
S. 2997
To protect the independent judgment of health care professionals acting
in the scope of their practice in overriding AI/CDSS outputs, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 9, 2025
Mr. Markey (for himself and Mr. Blumenthal) introduced the following
bill; which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To protect the independent judgment of health care professionals acting
in the scope of their practice in overriding AI/CDSS outputs, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Right to Override Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
TITLE I--POLICIES FOR USING AND OVERRIDING AI/CDSS
Sec. 101. Policies with respect to using and overriding AI/CDSS.
Sec. 102. Enforcement.
Sec. 103. Regulations.
TITLE II--ADVERSE EMPLOYMENT ACTIONS; WHISTLEBLOWER PROTECTIONS
Sec. 201. Prohibition on adverse employment actions.
Sec. 202. Whistleblower protections.
Sec. 203. Enforcement.
Sec. 204. Regulations.
TITLE III--GENERAL PROVISIONS
Sec. 301. Educational materials for covered entities and health care
professionals.
Sec. 302. State enforcement.
Sec. 303. Rule of construction.
Sec. 304. Non-preemption.
SEC. 3. DEFINITIONS.
In this Act:
(1) Adverse employment action.--The term ``adverse
employment action'', with respect to a health care
professional, includes--
(A) the termination, suspension, or demotion of the
health care professional from a job;
(B) any disciplinary action or retaliatory
investigation against the health care professional;
(C) the imposition of a work schedule that is more
burdensome to the health care professional;
(D) the failure of the health care professional to
receive, or any adverse adjustment in the ability of
the health care professional to receive, a promotion;
(E) the denial of the health care professional in
receiving or being eligible to receive--
(i) compensation, including the denial of
an increase in compensation; or
(ii) any other job-related benefit or
opportunity, including for telework, training,
or travel;
(F) revocation of admitting privileges;
(G) a reassignment of a duty or the assignment of a
duty inappropriate for the job, skill set, or
experience of the health care professional;
(H) a change in the ability to practice at a
location for which the health care professional would
otherwise be able;
(I) an adverse evaluation or performance review;
(J) any other modification to the terms,
conditions, or privileges of employment or work of the
health care professional that, from the perspective of
a reasonable person, puts the health care professional
in a materially adverse position when compared to the
position of the professional prior to the modification;
and
(K) any other action or inaction that results in
the health care professional being in a materially
adverse position when compared to the position of the
professional prior to the action or inaction.
(2) Artificial intelligence clinical decision support
system; ai/cdss.--The term ``artificial intelligence clinical
decision support system'' or ``AI/CDSS'' means technology
that--
(A) supports decision-making based on algorithms,
or models, based in clinical practice guidelines or
that derive relationships from training data, including
such algorithms or models that are developed using
unsupervised learning models; and
(B) produces an output that results in a
prediction, classification, recommendation, evaluation,
or analysis.
(3) AI/CDSS output.--The term ``AI/CDSS output'' means any
recommendation, decision, or other output of AI/CDSS.
(4) Commerce; industry or activity affecting commerce.--The
terms ``commerce'' and ``industry or activity affecting
commerce'' have the meanings given such terms in section 101 of
the Family and Medical Leave Act of 1993 (29 U.S.C. 2611).
(5) Covered entity.--The term ``covered entity''--
(A) means any individual or entity that--
(i) employs, or otherwise engages in the
performance of work for remuneration, a health
care professional; and
(ii) is engaged in commerce (including
government), or an industry or activity
affecting commerce (including government); and
(B) includes such an individual or entity that is--
(i) a health care facility in any setting,
such as a nurse's office in a school setting;
or
(ii) a health plan or an administrator of a
health plan.
(6) Engaged in the performance of work for remuneration.--
The term ``engaged in the performance of work for
remuneration'', with respect to an individual performing work
for a covered entity, includes the individual having admitting
privileges for the covered entity without regard to whether
such individual is employed by such entity.
(7) Health care professional.--The term ``health care
professional''--
(A) means an individual--
(i) licensed, registered, or certified
under Federal or State laws or regulations to
provide health care services; or
(ii) required to be so licensed,
registered, or certified but that is exempted
by other statute or regulation; and
(B) includes--
(i) an individual described in subparagraph
(A) without regard to whether the individual
works at a health care facility, including a
home health aide or a home care provider; and
(ii) an individual who is employed by, or
otherwise engaged in the performance of work
for remuneration for, a health plan to make
prior authorization determinations or other
determinations regarding coverage under a
health plan.
(8) Health care services.--The term ``health care
services'' means any services that relate to--
(A) the diagnosis, prevention, or treatment of any
human disease or impairment;
(B) the assessment or care of the health of human
beings; or
(C) making prior authorization determinations or
other determinations regarding coverage under a health
plan.
(9) Health plan.--The term ``health plan'' has the meaning
given the term in section 3000 of the Public Health Service Act
(42 U.S.C. 300jj).
(10) Override.--The term ``override'', with respect to an
AI/CDSS output, means making a decision contrary to such
output.
(11) Override data.--The term ``override data''--
(A) means any data related to adherence to or
deviation from AI/CDSS outputs; and
(B) includes--
(i) any such data that is metadata or audit
data; or
(ii) any such data related to a particular
health care professional or group of health
care professionals, or related to a particular
AI/CDSS.
(12) State.--The term ``State'' has the meaning given the
term in section 3000 of the Public Health Service Act.
TITLE I--POLICIES FOR USING AND OVERRIDING AI/CDSS
SEC. 101. POLICIES WITH RESPECT TO USING AND OVERRIDING AI/CDSS.
(a) In General.--A covered entity that uses AI/CDSS shall--
(1) adopt and adhere to a policy with respect to such
usage--
(A) that ensures that AI/CDSS outputs are not
substituted for the independent judgment of a health
care professional employed by, or otherwise engaged in
the performance of work for remuneration for, the
covered entity while such health care professional is
acting in the scope of practice of such health care
professional;
(B) that allows such a health care professional to
override an AI/CDSS output in a timely manner if, at
the time of the override, in the judgment of the health
care professional acting in the scope of practice of
the health care professional, such an override is
appropriate for the patient, or as necessary to comply
with applicable law, including civil rights law;
(C) that allows health care professionals and their
representatives to provide feedback on AI/CDSS,
including incorrect or biased outputs that require
frequent override; and
(D) that prohibits the sharing of override data
on--
(i) a specific health care professional; or
(ii) a group of health care professionals
when the identity of those professionals can be
reasonably inferred;
(2) inform health care professionals employed by, or
otherwise engaged in the performance of work for remuneration
for, the covered entity, and the representatives of such health
care professionals, of the policy under paragraph (1),
including the presence of AI/CDSS in the workplace and the
ability of such health care professionals to override an AI/
CDSS output;
(3) provide training to such health care professionals on--
(A) how to use AI/CDSS;
(B) the circumstances where an AI/CDSS override is
appropriate;
(C) how to override an AI/CDSS output;
(D) AI/CDSS development processes and any data or
other inputs involved in such processes; and
(E) any potential limitations for AI/CDSS,
including any potential areas of bias in the AI/CDSS;
(4) establish and maintain an AI/CDSS committee that
shall--
(A) convene upon the date that is later of--
(i) the date of the adoption of AI/CDSS at
the covered entity; or
(ii) 120 days after the date of enactment
of this Act;
(B) be comprised of at least as many non-managers
as managers;
(C) include membership of any labor organization,
or other authorized representative, of health care
professionals employed by, or otherwise engaged in the
performance of work for remuneration for, the covered
entity;
(D) provide consultation to the covered entity in
developing policies and practices related to the use of
AI/CDSS, including policy required under subparagraphs
(A) through (D) of paragraph (1); and
(E) meet at least quarterly to--
(i) review implementation of policies
adopted by the covered entity with respect to
AI/CDSS; and
(ii) report to the covered entity on
findings and suggestions for improvements; and
(5) review--
(A) all findings and suggestions from the AI/CDSS
committee provided under paragraph (4)(E)(ii); and
(B) any other feedback from health care
professionals employed by, or otherwise engaged in the
performance of work for remuneration for, the covered
entity on the AI/CDSS technology and the policies of
the entity with respect to such technology, including
by reviewing any such feedback on patterns of issues
with the AI/CDSS, such as incorrect or biased outputs
that require frequent override.
(b) Data Sharing Exception.--The prohibition under subsection
(a)(1)(D) shall not apply--
(1) in a case in which a covered entity is informing a
patient or an authorized representative of a patient about a
decision rendered in the administration of the care of such
patient; or
(2) in a case of a civil, criminal, or administrative
action involving medical malpractice, negligence, or violation
of any law.
(c) Oversight Mechanism.--Nothing in this Act shall prohibit a
covered entity from reviewing the performance outcomes of AI/CDSS.
SEC. 102. ENFORCEMENT.
(a) In General.--Except as provided in subsection (c), the
Secretary of Health and Human Services, acting through the Office for
Civil Rights (referred to in this title as the ``Secretary''), shall
receive, investigate, and attempt to resolve, including through
imposing civil monetary penalties, complaints of violations of this
title in the same manner as the Secretary receives, investigates, and
attempts to resolve, including through imposing civil monetary
penalties, complaints of violations of part C of title XI of the Social
Security Act (42 U.S.C. 1320d et seq.).
(b) Civil Monetary Penalties.--The provisions of section 1128A of
the Social Security Act (42 U.S.C. 1320a-7a) (other than subsections
(a) and (b) and the second sentence of subsection (f)) shall apply to
the imposition of a civil monetary penalty under this section in the
same manner as such provisions apply to the imposition of a penalty
under such section 1128A.
(c) Exception.--No complaint of a violation of this title shall be
referred to the Attorney General for investigation as a criminal
violation.
SEC. 103. REGULATIONS.
(a) In General.--The Secretary may prescribe such regulations as
may be necessary to carry out this title.
(b) Consultation.--In prescribing any regulations authorized under
this section, the Secretary--
(1) shall consult with the Secretary of Labor; and
(2) may consult with--
(A) other Federal agencies that have expertise in
artificial intelligence or health care; and
(B) other Federal agencies that have jurisdiction
over labor and employment issues, including the Equal
Employment Opportunity Commission, the Department of
Justice, and the National Labor Relations Board.
TITLE II--ADVERSE EMPLOYMENT ACTIONS; WHISTLEBLOWER PROTECTIONS
SEC. 201. PROHIBITION ON ADVERSE EMPLOYMENT ACTIONS.
No covered entity shall take an adverse employment action against a
health care professional employed by, or otherwise engaged in the
performance of work for remuneration for, the covered entity because
the health care professional overrides an AI/CDSS output in a manner
consistent with the requirements under section 101.
SEC. 202. WHISTLEBLOWER PROTECTIONS.
No covered entity shall discriminate or retaliate (including
through intimidation, threats, coercion, or harassment) against any
individual employed by, or otherwise engaged in the performance of work
for remuneration for, the covered entity--
(1) because the individual exercises, or attempts to
exercise, any right provided under this Act; or
(2) because the individual (or another individual or
representative acting at the request of the individual) has--
(A) filed a written or oral complaint to the
covered entity or a Federal, State, local, or Tribal
government entity of a possible violation of this Act;
(B) sought assistance or intervention with respect
to an AI/CDSS-related concern from the covered entity,
a Federal, State, local, or Tribal government, or any
individual or entity representing workers;
(C) instituted, caused to be instituted, or
otherwise participated in any inquiry or proceeding
under or related to this Act;
(D) given, or is about to give, any information in
connection with any inquiry or proceeding relating to
any right provided under this Act;
(E) testified, or is about to testify, in any
inquiry or proceeding relating to any right provided
under this Act; or
(F) discussed a possible violation of this Act with
a co-worker.
SEC. 203. ENFORCEMENT.
(a) Enforcement by Department of Labor.--
(1) Investigation.--
(A) In general.--To ensure compliance with this
title, the Secretary of Labor (referred to in this
title as the ``Secretary'')--
(i) shall have--
(I) the investigative authority
provided under section 11(a) of the
Fair Labor Standards Act of 1938 (29
U.S.C. 211(a)); and
(II) the subpoena authority
provided under section 9 of such Act
(29 U.S.C. 209); and
(ii) may req