Vermont H 816: An act relating to regulating the use of artificial intelligence in the provision of mental health services

Bill Text

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No. 156. An act relating to regulating the use of artificial intelligence in
the provision of mental health services.
(H.816)
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. PURPOSE
It is the purpose of this act to safeguard individuals seeking mental health
services in Vermont from psychological harm, including death by suicide, by
ensuring that these services are delivered by mental health professionals and
not independently by artificial intelligence systems.
Sec. 2. 3 V.S.A. § 129a is amended to read:
§ 129a. UNPROFESSIONAL CONDUCT
(a) In addition to any other provision of law, the following conduct by a
licensee constitutes unprofessional conduct. When that conduct is by an
applicant or person who later becomes an applicant, it may constitute grounds
for denial of a license or other disciplinary action. Any one of the following
items or any combination of items, whether the conduct at issue was
committed within or outside the State, shall constitute unprofessional conduct:
* * *
(30) For any mental health professional, engaging in the prohibited use
of artificial intelligence pursuant to 18 V.S.A. § 7115.
* * *
Sec. 3. 18 V.S.A. § 7115 is added to read:
§ 7115. PROHIBITED USES OF ARTIFICIAL INTELLIGENCE

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(a) As used in this section:
(1) “Artificial intelligence” means an engineered or machine-based
system that varies in its level of autonomy and that can, for explicit or implicit
objectives, infer from the input it receives how to generate outputs that can
influence physical or virtual environments.
(2) “Mental health professional” means an individual licensed, certified,
or rostered, respectively, to provide mental health services as a physician
pursuant to 26 V.S.A. chapter 23 or 33; an advanced practice registered nurse
specializing in psychiatric mental health pursuant to 26 V.S.A. chapter 28; a
psychologist pursuant to 26 V.S.A. chapter 55; a peer support provider or peer
recovery support specialist pursuant to 26 V.S.A. chapter 60; a social worker
pursuant to 26 V.S.A. chapter 61; an alcohol and drug abuse counselor
pursuant to 26 V.S.A. chapter 62; a clinical mental health counselor pursuant
to 26 V.S.A. chapter 65; a marriage and family therapist pursuant to 26 V.S.A.
chapter 76; a psychoanalyst pursuant to 26 V.S.A. chapter 77; an applied
behavior analyst pursuant to 26 V.S.A. chapter 95; a nonlicensed or
noncertified psychotherapist or a noncertified psychoanalyst; or any other
professional who provides mental health services.
(3) “Mental health services” means services provided to diagnose, treat,
or address an individual’s mental health or behavioral health through
therapeutic communications and therapeutic decisions.

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(4) “Therapeutic communication” means a written, verbal, or nonverbal
interaction intended to diagnose or treat any type of mental or behavioral
health concern, provide ongoing recovery support, or provide clinical advice
on diagnosis, treatment, or recovery support, such as:
(A) engaging in direct interactions with clients or patients for the
purpose of understanding or reflecting the client’s or patient’s mental health
condition;
(B) providing clinical guidance, strategies, or interventions;
(C) offering clinical support, including reassurance or empathy in
response to emotional or psychological distress;
(D) collaborating with a patient or client to develop or modify
treatment plans or therapeutic mental health goals; and
(E) delivering feedback intended to promote growth or address
mental health outcomes.
(5) “Therapeutic decision” means the final clinical determination
regarding diagnosis or the selection, modification, or termination of treatment
or care.
(b) A corporation or entity shall not provide, advertise, or otherwise offer
mental health services, including through the use of artificial intelligence, to
the public unless the mental health services are:
(1) provided by a mental health professional; or

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(2) part of an approved institutional review board or privacy board study
in accordance with 45 C.F.R. § 164.512(i)(1)(i)(A) and (B).
(c)(1) A violation of this section by a corporation or entity shall be deemed
a violation of the Consumer Protection Act, 9 V.S.A. chapter 63. The Attorney
General has the same authority, and private parties have the same rights and
remedies, as provided under 9 V.S.A. chapter 63, subchapter 1.
(2) Nothing in this section shall be construed to preclude or supplant any
other statutory or common law remedies.
(d) Nothing in this section shall preclude a mental health professional who
is operating within the professional’s scope of practice from utilizing artificial
intelligence tools that are compliant with the Health Insurance Portability and
Accountability Act of 1996, Pub. L. No. 104-191, provided that the mental
health profess