A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 5 TO CHAPTER 1, TITLE 40, SO AS TO PROVIDE DEFINITIONS RELATED TO ARTIFICIAL INTELLIGENCE AND THERAPY OR PSYCHOTHERAPY; TO PROVIDE THAT A LICENSED PROFESSIONAL SHALL NOT BE PERMITTED TO USE ARTIFICIAL INTELLIGENCE TO ASSIST IN PROVIDING SUPPLEMENTARY SUPPORT IN THERAPY OR PSYCHOTHERAPY WHERE THE CLIENT'S THERAPEUTIC SESSION IS RECORDED UNLESS THE PATIENT IS INFORMED THAT ARTIFICIAL INTELLIGENCE WILL BE USED AND FOR WHAT PURPOSE AND THE PATIENT CONSENTS TO THIS USE; TO PROVIDE THAT AN INDIVIDUAL, CORPORATION, OR ENTITY MAY NOT OFFER THERAPY OR PSYCHOTHERAPY SERVICES, INCLUDING THROUGH THE USE OF INTERNET-BASED ARTIFICIAL INTELLIGENCE, UNLESS THE THERAPY OR PSYCHOTHERAPY SERVICES ARE CONDUCTED BY A LICENSED PROFESSIONAL; TO PROVIDE THAT A LICENSED PROFESSIONAL MAY NOT ALLOW ARTIFICIAL INTELLIGENCE TO MAKE INDEPENDENT THERAPEUTIC DECISIONS; TO REQUIRE THAT ALL RECORDS KEPT BY A LICENSED PROFESSIONAL BE KEPT CONFIDENTIAL; TO PROVIDE EXCEPTIONS; AND TO PROVIDE PENALTIES FOR VIOLATIONS.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 1, Title 40 of the S.C. Code is amended by adding:

 

Article 5

 

Artificial Intelligence and Therapy or Psychotherapy

 

    Section 40-1-700.  For the purposes of this article:

    (1) "Administrative support" means tasks performed to assist a licensed professional in the delivery of therapy or psychotherapy services that do not involve communication. "Administrative support" includes, but is not limited to:

       (a) managing appointment scheduling and reminders;

       (b) processing billing and insurance claims; and

       (c) drafting general communications related to therapy logistics that do not include therapeutic devices.

    (2) "Artificial intelligence" means any machine-based system or algorithm, including machine learning models, predictive analytics, and decision support systems, that analyze data and generate recommendations or predictions.

    (3) "Licensed professional" means an individual who holds a valid license issued by this State to provide therapy or psychotherapy services, including:

       (a) a licensed clinical psychologist;

       (b) a licensed clinical social worker;

       (c) a licensed social worker;

       (d) a licensed psychiatrist;

       (e) a licensed professional counselor;

       (f) a licensed marriage and family therapist;

       (g) addiction counselor; and

       (h) any other professional authorized by this State to provide therapy or psychotherapy services.

    (4) "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.

    (5) "Permitted use of artificial intelligence" means the use of artificial intelligence tools or systems by a licensed professional to assist in providing administrative support or supplementary support in therapy or psychotherapy services where the licensed professional maintains full responsibility for all interactions, outputs, and data use associated with the system and satisfies the requirements of Section 40-1-710.

    (6) "Religious counseling" means counseling provided by clergy members, pastoral counselors, or other religious leaders acting within the scope of their religious duties if the services are explicitly faith-based and are not represented as clinical mental health services, therapy, or psychotherapy services.

    (7) "Supplemental support" means tasks performed to assist a licensed professional in the delivery of therapy or psychotherapy services that do not involve therapeutic communication and that are not administrative support. "Supplemental support" includes but is not limited to:

       (a) preparing and maintaining client records, including therapy notes;

       (b) analyzing anonymized data to track client progress or identify trends, subject to review by a licensed professional; and

       (c) identifying and organizing external resources or referrals for client use.

    (8) "Therapeutic communication" means 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. "Therapeutic communication" includes, but is not limited to:

       (a) directing interactions with clients for the purpose of understanding or reflecting their thoughts, emotions, or experiences;

       (b) providing guidance, therapeutic strategies, or interventions designed to achieve mental health outcomes;

       (c) offering emotional support, reassurance, or empathy in response to psychological or emotional distress;

       (d) collaborating with clients to develop or modify therapeutic goals or treatment plans; and

       (e) offering behavioral feedback intended to promote psychological growth or address mental health conditions.

    (9) "Therapy or psychotherapy services" means services provided to diagnose, treat, or improve an individual's mental health or behavioral health. "Therapy or psychotherapy services" does not include religious counseling or peer support.

 

    Section 40-1-710.  A licensed professional shall not be permitted to use artificial intelligence to assist in providing supplementary support in therapy or psychotherapy where the client's therapeutic session is recorded or transcribed unless:

    (1) the patient or the patient's legally authorized representative is informed in writing:

       (a) that artificial intelligence will be used; and

       (b) of the specific purpose for which the artificial intelligence tool or system will be used; and

    (2) the patient or the patient's legally authorized representative provides written consent to the use of artificial intelligence.

 

    Section 40-1-720.  (A) An individual, corporation, or entity may not provide, advertise, or otherwise offer therapy or psychotherapy services, including through the use of internet-based artificial intelligence, to the public in this State unless the therapy or psychotherapy services are conducted by a licensed professional.

    (B) A licensed professional may use artificial intelligence only to the extent the use meets the requirements of Section 40-1-710. A licensed professional may not allow artificial intelligence to:

       (1) make independent therapeutic decisions;

       (2) directly interact with clients in any form of therapeutic communication;

       (3) generate therapeutic recommendations or treatment plans without review and approval by the licensed professional; or

       (4) detect emotions or mental states.

 

    Section 40-1-730.  All records kept by a licensed professional and all communications between an individual seeking therapy or psychotherapy services and a licensed professional shall be confidential and shall not be disclosed except as required pursuant to Section 44-22-100.

 

    Section 40-1-740.  The provisions contained in this article do not apply to:

    (1) religious counseling;

    (2) peer support; and

    (3) self-help materials and educational resources that are available to the public and do not purport to offer therapy or psychotherapy services.

 

    Section 40-1-750.  (A) A civil penalty, in an amount not to exceed ten thousand dollars, shall be assessed by the appropriate licensing board for each violation of this article. The amount of the penalties assessed shall be based on the degree of harm and the circumstances of the violation. An individual, corporation, or entity found in violation of this article shall pay the civil penalty within sixty days of the imposed civil penalty.

    (B) A licensed professional's licensing board shall have authority to investigate any actual, alleged, or suspected violation of this article.

 

SECTION 2.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 3.  This act takes effect upon approval by the Governor.

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