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HOUSE BILL NO. 668
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on Communications, Technology and Innovation
on ________________)
(Patron Prior to Substitute--Delegate Maldonado)
A BILL to amend the Code of Virginia by adding a section numbered
54.1-2400.1:1
, relating to use of artificial intelligence system by mental health service providers; civil penalty.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered
54.1-2400.1:1
as follows:
§
54.1-2400.1:1
.
Use of artificial intelligence by mental health service providers
;
civil
penalty
.
A. As used in this section:
"Administrative support" means tasks performed to assist a
mental health service provider in the delivery of
mental health services that do not involve
therapeutic
communication. "Administrative support" includes
(i)
managing appointment scheduling and reminders,
(ii)
processing billing and insurance claims, and
(iii)
drafting general communications related to mental health services logistics that do not include
therapy or counseling.
"Artificial intelligence system" means any machine learning-based system that, for any explicit or implicit objective, infers from the inputs such system receives how to generate outputs, including content, decisions, predictions, and recommendations, that can influence physical or virtual environments. "Artificial intelligence system" does not include any artificial intelligence system or general purpose artificial intelligence model that is used for development, prototyping, and research activities before such artificial intelligence system or general purpose artificial intelligence model is made available to deployers or consumers.
"Mental health service provider" has the same meaning as
p
rovided
in §
54.1-2400.1
.
"Peer support" means services provided by individuals with lived experience of mental health conditions or recovery
from substance use that are intended to offer encouragement, understanding, and guidance without clinical intervention.
"Religious counseling" means counseling provided by clergy members, pastoral counselors, or other religious leaders acting within the scope of their religious duties if the serv
ices are explicitly faith-based and are not represented as clinical mental health services or therapy services.
"Therapeutic communication" means any verbal, nonverbal, or written interaction conducted in a clinical or professional setting that is intended to diagnose, treat, or address an individual's mental, emotional, or behavioral health concerns. "Therapeutic communication" includes (i) direct clinical interactions with clients that constitute the
delivery
of therapy or psychotherapy services; (ii) providing independent clinical guidance, strategies, or interventions designed to achieve mental health outcomes; (iii) offering emotional support, reassurance, or empathy in response to psychological or emotional distress, including suicidal or violent ideations; (iv) collaborating with clients to develop or modify therapeutic goals or treatment plans; and (v) offering behavioral feedback that constitutes the delivery of therapy or psychotherapy services
.
B.
A mental health service provider may use
an
artificial intelligence system to assist in providing
therapy or counseling services if such mental health service provider maintains f
ull responsibility for all interactions, outputs, and data use associated with the system.
No licensed professional shall be permitted to use
an
artificial intelligence
system
in providing
therapy or counseling services pursuant to this subsection when the session is recorded or transcribed unless:
1
. The
mental health service provider discloses to the
patient or the patient's legally authorized representative
(i) that
an
artificial intelligence
system
will be used and (ii)
the specific purpose of the artificial intelligence system that will be used
;
and
2
.
At the initial appointment, the
mental healt
h service provider discloses its artificial intelligence
system
use
and policies
related to such use and the patient or the patient's legally authorized representative provide
s
written
or digital
consent
to
the
use of
an
artificial intelligence
system
as permitted by this section
. The mental health service provider shall give notice
of any change in its
policies
related to the use of
an
artifici
al intelligence
system
to
any
patient or
such
patient's legally authorized representative
who has consented to the use of
an
artificial intelligence
system
pursuant to this subdivision
.
C.
A person
or business entity
may not provide, advertise, or otherwise offer therapy or counseling services, including through the use of
an
artificial intelligence
system
, to the public in th
e
Commonwealth unless the therapy or counseling services are conducte
d by a mental health service provider.
D. A mental health service provider may use
an
artificial intelligence
system
only to the extent that such use meets the requirements of subsection B.
No mental health service provider shall allow
an
artificial intelligence
system
to:
1. Make independent therapeutic decisions;
2. Directly interact with clients in any form of therapeutic communication
without provider oversight
;
or
3. Generate therapeutic recommendations
, diagnose
,
or implement
treatment plans without review
, oversight,
and approval by the licensed professional
.
E. All records kept by a mental health service provider and all communications between an individual seeking therapy or
counseling
services and a mental health service provider
shall be confidential
pursuant to the requirements of §
32.1-127.1
:
03 and shall not be disclosed
unless such disclosure complies with the requirements of §
32.1-127.1:03
.
F.
This section does not apply to religious counseling, peer support, or
self-help materials and educational resources that are available to the public and do not purport to offer therapy or counseling services.
G. Any person who violates the provisions of this section shall be subject to a civil penalty not to exceed $10,000.
Such penalty shall be collected by the Department of Health Professions and
shall be deposited into the general fund.