Illinois enacted the Wellness and Oversight for Psychological Resources Act, establishing standards for the use of AI technology in the provision of therapy and psychotherapy services.
The Act aims to protect consumers by ensuring that behavioral health services are not delivered by unlicensed or unqualified providers – which includes “unregulated” AI systems.
- The use of AI tools without the involvement of a licensed professional is limited to “administrative” and “supplementary support” services, which expressly do not include therapeutic communications with clients.
The Act is similar to recent efforts in Utah, Colorado and elsewhere in that it specifically addresses the use of AI technology in delivering talk therapy services, but as outlined below, the Act goes further than other recent efforts in ways that are materially important to healthcare innovation.
Key Terms in the Act
Licensed professionals include clinical psychologists, social workers, counselors, marriage and family therapists, certified alcohol and drug counselors, music therapists and advanced practice psychiatric nurses, among others.
Therapeutic communication means interactions intended to diagnose, treat or address mental, emotional or behavioral health concerns. It includes, among other communications: direct interactions with clients to understand or reflect their thoughts, emotions or experiences; providing guidance, therapeutic strategies or interventions; and offering emotional support, reassurance or empathy in response to psychological or emotional distress.
Administrative support means tasks that assist a licensed professional in delivering therapy or psychotherapy services that do not involve communication, such as scheduling, billing, maintaining records or drafting generalized content about therapy logistics that does not include therapeutic advice.
Supplementary support means tasks that help a licensed professional deliver therapy or psychotherapy services but are not 1) therapeutic communications or 2) administrative support. Examples include maintaining client records and therapy notes, analyzing anonymized data to track progress (subject to review by a licensed professional), and identifying and organizing external resources for client use.
Therapy or psychotherapy services means services provided to diagnose, treat or improve an individual’s mental or behavioral health.
Questions and Answers
Can AI engage in therapeutic communication? No, at least not independently (i.e., licensed professionals can endorse and deliver communications generated by AI if they determine that they are appropriate). This appears to prohibit AI tools such as chatbots from directly interacting with end users.
Can AI deliver therapy in lieu of a licensed professional? No. The Act states that only licensed or certified personnel may deliver therapy and psychotherapy services. The licensed professional may not allow AI to independently make therapeutic decisions, interact directly with clients in a therapeutic context, generate treatment plans without professional review, or be used to detect a client’s emotions or mental state.
Can AI be used for administrative support? Yes. The Act allows licensed professionals to use AI tools for administrative support tasks that do not involve communication, such as scheduling, billing, maintaining records or analyzing anonymized data. No patient consent is required.
Can AI provide supplementary support to licensed professionals? Yes. If the supplementary support involves recording or transcribing the therapeutic session, consent is required.
What consent is required to use AI to deliver supplementary support? Licensed professionals cannot use AI to deliver supplementary support unless 1) the patient (or their representative) is informed in writing that AI will be used and why that AI tool is being used, and 2) the patient or their representative consents to the use of AI in writing. Note that the written consent may be provided electronically.
Can consent be included in an existing consent or terms of use? No. As defined, “consent” excludes the acceptance of a general or broad terms of use agreement that contains descriptions of AI along with other unrelated information. This suggests that, similar to HIPAA authorizations, the AI consent must be a separate, stand-alone document. “Consent” also excludes “an individual hovering over, muting, pausing or closing a given piece of digital content,” and “an agreement obtained through the use of deceptive actions.”
Can client records and/or data be utilized to train AI solutions? Yes, with consent (where required), and assuming compliance with other applicable federal and state privacy laws.
Are there any exceptions? Yes. Peer support, religious counseling and “self-help materials and educational resources that are available to the public and do not purport to offer therapy or psychotherapy services” are exempt from the Act.
What about health coaches? Health coaches are not “licensed professionals” as defined in the Act, which only allows licensed professionals to provide therapy or psychotherapy services. Companies delivering health coaching services should confirm that the services their coaches deliver do not constitute “therapy or psychotherapy services” as defined in the Act.
What penalties apply? Violations of the Act may result in civil penalties of up to $10,000 per violation, assessed by the Department of Financial and Professional Regulation following a hearing.
Takeaways
Entities leveraging AI while providing behavioral health services to clients located in Illinois should take immediate note and examine their practices.
- This new law now prohibits AI solutions, including chatbots, from interacting directly in therapeutic communications with clients in a clinical or professional setting.
- AI tools can still be used to provide administrative support, however Illinois now requires stand-alone, written patient consent when AI is utilized to support the delivery of behavioral health services (i.e., “supplementary support”).
- Only qualified licensed or certified professionals are authorized to provide “therapy or psychotherapy services.” No person can offer or advertise such services unless they are provided by a qualified licensed or certified professional. While peer support, religious counseling and “self-help materials and educational resources that are available to the public and do not purport to offer therapy or psychotherapy services” are exempt from the Act, the Act casts a wide net.
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