In early August, Illinois enacted the Wellness and Oversight for Psychological Resources Act (HB 1806, or the “Act”), making it the first state to pass a law regulating the use of AI[1] in the delivery of therapy and psychotherapy services. The Act, which took immediate effect, imposes guardrails on the use of AI to provide decision-making therapeutic support services, but permits the use of AI for administrative and supplementary tasks, subject to certain consent requirements. This blog post summarizes the Act and addresses its potential implications for the use of agentic AI by Illinois therapy providers.
Scope of the Act
Under the Act, only licensed professionals may provide, advertise, or otherwise offer therapy or psychotherapy in Illinois.[2] A “licensed professional” includes any individual who is licensed in Illinois to provide therapy or psychotherapy, such as clinical psychologists, social workers, professional counselors, and marriage and family therapists.[3] The Act addresses three categories of AI-supported services: (i) administrative support; (ii) supplementary support; and (iii) independent therapeutic decision-making or therapeutic communication.
Permitted Uses of AI in Therapy Services
The Act allows Illinois licensed professionals to use AI to provide administrative support, such as scheduling appointments, processing insurance and billing claims, and drafting general communications related to therapy logistics that do not include therapeutic advice.[4] Additionally, such professionals may continue to use AI to provide supplementary support, such as maintaining client records including therapy notes, analyzing anonymized data to track client progress, and identifying referrals.[5] However, if a client session is recorded or transcribed, the Act requires licensed professionals to obtain written consent from clients to use AI for supplementary support.[6] The client or their legally authorized representative must be informed in writing that AI will be used and the specific purpose of the AI tool or system.[7] The written consent must be affirmative and unambiguous – a general terms of use agreement (e.g., a general consent to treatment form) incorporating information about the use of AI is insufficient to establish consent under the Act.[8]
Prohibited Uses of AI in Therapy Services
Most significantly, the Act prohibits the use of AI to: (i) make independent therapeutic decisions; (ii) directly provide therapeutic communication to clients; (iii) generate therapeutic recommendations or treatment plans without review and approval by the licensed professional; or (iv) detect emotions or mental states.[9] “Therapeutic communication” is defined broadly, to include “any verbal, non-verbal, 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.”[10] Any individual, corporation, or entity found to be in violation of the Act will be subject to a civil penalty of up to $10,000 per violation, and may be subject to an investigation by the Illinois Department of Financial and Professional Regulation.[11] The Act also specifies that therapy or psychotherapy records may not be disclosed except as required under the Mental Health and Developmental Disabilities Confidentiality Act.[12]
Implications for Agentic AI
Agentic AI – autonomous AI systems capable of performing a wide range of tasks, including providing lab results, recognizing emotions and mental health concerns, and even contacting emergency services if a user is in crisis – is being deployed in therapy and psychotherapy practices across the country. The Act’s prohibition on independent therapeutic decision-making by AI poses challenges for providers and businesses looking to use agentic AI in Illinois to recognize and act upon a user’s mental health status. Providers and businesses using this technology will need to ensure that their agentic AI’s capabilities do not fall under independent therapeutic decision-making or therapeutic communication. Moreover, businesses will need to obtain clear and affirmative written consent from clients to use these tools for supplementary support tasks. While agentic AI has immense promise for the future, providers and businesses must ensure their use falls within the bounds of Illinois’s novel restrictions.
FOOTNOTES
[1] The Act references the Illinois Human Rights Act to define “artificial intelligence”: “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.” 775 Ill. Comp. Stat. 5/2-101(M).
[2] HB 1806 § 20(a).
[3] HB 1806 § 10.
[4] HB 1806 § 15(a).
[5] HB 1806 § 10.
[6] HB 1806 § 15(b).
[7] HB 1806 § 15(b).
[8] HB 1806 § 10.
[9] HB 1806 § 20(b).
[10] HB 1806 § 10.
[11] HB 1806 § 30.
[12] HB 1806 § 25.