Vermont Legislature SmartTranscripts:

[Unidentified House conferee (Chair/lead)]: Good morning, everyone. This is the conference committee for h eight sixteen, an act relating to regulating the use of artificial intelligence in the provision of mental health services. Just wanna welcome everyone. And I think we will because of time, there's so much going on at this late stage. I think we'll just jump right into letting our alleged counsel go through the differences between the two versions of the bill. Sure.

[Katie McGlynn, Office of Legislative Counsel]: Good morning, Katie McGlynn, Office of Legislative Council. I sent everyone a side by side summary last night. Let me pull that up. Okay. So, it's not organized by act or bill number or section number because those section numbers don't all match up, instead it's organized by topic. Both bills have a purpose section. The house version is a bit longer. It's safeguarding individuals seeking mental health services in Vermont, by ensuring therapeutic judgment, clinical decision making, therapeutic communication remain responsibility of a mental health professional, instead of delegated to an AI system. Respecting individual choice in selecting mental health services, allowing responsible use of AI for administrative, operational, documentation, quality improvement functions that support access efficiency and innovation in mental health services. Conversely, in the as past Senate version, we're also safeguarding individuals seeking mental health services from psychological harm by ensuring that mental health services are delivered by mental health professionals and not independently by AI systems. So you're picking up the concept in that first bullet in the Senate version. The next section is the unprofessional conduct for certain OPR regulated licensees and applicants. This is very much the same. In concept, you use slightly different words. In the Senate, the phrase engaging in the prohibited use of AI was used to replace misuse because it was tracking the title and the preceding section prohibited uses of artificial intelligence. And it was cross referencing that section, so it was just tracking the language used there. So that's the difference there. The next section is the prohibited uses section. So you have definitions. Some of the definitions are fairly similar. The definitions of AI are similar, with the exception that the House version includes generative AI in the definition of AI, whereas the Senate version doesn't have a definition of generative AI. Both sections have a definition of therapeutic communication,

[Unidentified House conferee (Chair/lead)]: but they are not identical.

[Katie McGlynn, Office of Legislative Counsel]: And we can dive into that in more detail if you wanna look at it, but I know we are short

[Unidentified House conferee (Chair/lead)]: on time.

[Katie McGlynn, Office of Legislative Counsel]: In the House version, subsection B prohibits a person, corporation, or other entity from offering, providing, or advertising mental health services in the state that represents AI as providing therapeutic judgment, diagnosis, treatment, or therapeutic communication. In the Senate version, you're prohibiting a corporation or other entity, not an individual, from providing, advertising, or otherwise offering mental health services, including through the use of AI to the public, unless a mental health professional, unless mental health services are provided by a mental health professional, approved and reviewed. In the house version, we have language that the section doesn't prohibit the use or disclosure of AI for administrative purposes, documentation, operational purposes, as long as professional clinical responsibility is used. We have similar language with regard to the violations that this is enforced under the Consumer Protection Act by the AG's office. The Senate version has a civil penalty of $10,000 There's not a penalty in the House version. Both bills have language that this does not preclude or supplant other remedies. And then the Senate version has a subsection D that is not in the House version, but I think it captures much of what is trying to be done in the next section for the House. So this section does not preclude mental health professional operating within their scope of practice from utilizing AI tools that are HIPAA compliant so long as a mental health professional reviews and approves any mental health services. So I think that sort of summarizes a lot of what this next section does. This next section was only in the House version. It has a lot of definitions that didn't make it into the Senate version, including definitions of administrative support, clinical responsibility, consent, peer support, religious counseling, supplementary support, etcetera. In this section, it authorizes a mental health professional to use AI for administrative support, supplementary support, and operational and quality improvement functions, like scheduling, billing, maintenance of clinical records, so long as a mental health professional retains that sole clinical responsibility. In subsection C, use of AI for administrative support and supplementary tasks, including transcription and reporting, subject to privacy protections already in statute. Patient consent is required when AI is used to record identifiable therapeutic communications. In subsection D, it prohibits a mental health professional from using AI innovator that allows AI to independently make therapeutic decisions or generate treatment plans. This section does not prohibit a mental health professional from disclosing or describing a mental health professional's use of AI for administrative support. Then in subdivision three, the section does not apply to religious counseling, non certified peer support providers, generalized education self help resources. They do not report to offer mental health services. Okay, now there's language that is only in the Senate version, and that includes having parallel language to the OTR professional responsibility language that was up above, but this pertains to the Board of Medical Practice Regulated Licensee and Applicants, because there are a few individuals under your definition of mental health professional who are regulated by the Board of Medical Practice, not just OPRs. So now, parallel language for all professions, and there is a report in the Senate version, it is not in the House version, that requires OPR and the Board of Medical Practice to submit a report to the General Assembly, obtaining recommendations on the regulation of the use of AI by regulated professions this coming January. And then, an area of concurrence that you both would like the bill to take effect on passage. So that is is it, but I can spend a little more time if there's anything you wanna drill down on.

[Unidentified House conferee (Chair/lead)]: Thank you very much. Thank you. That was great. Any questions on the side by side that we went through just now? Great. Well, we obviously felt good about the version that we sent back to you, so we're curious about what, you know, what were the issues that brought us here today. We'd love to hear. You could share with that, that would be great. First of all, thank you for your work. I think you tightened up a lot of what we did. Just notably in section seventeen, seven fifteen. So thank you for that. I think you've made things more concise and clear in many places. We heard from providers immediately that they had concerns that this would limit them from using evidence based digital therapeutics. And that is something that we really don't even do. So things like apps to help them with insomnia. There are also emerging tools that are cutting edge and they're definitely the way to the future that clinicians need in order to really step into modern therapy. And these are things that help people with schizophrenia, for example. So we want to support the evolution of this field and we want to support providers who overwhelmingly contacted us. The psychological associations in Vermont and New Hampshire who had testified in our community. However, they felt the changes that were made really empowered them to do those things with the digital therapeutics. We also heard from researchers who with the language that developed and evolved to would have prohibited them from doing any research to develop those tools. I spoke with a researcher at Dartmouth who works with a lot of Vermont patients to develop tools. So our, you know, our patients are actively informing these studies, and he would lose his research rates if we went forward with that. So we don't want break that either. I also heard from technology companies who provide you services and tools. They were concerned that the $10,000 private rights action would one, it was debt duplicative to what's already existing in the consumer protection laws that Vermont has. And two, it would allow repeated potentially repeated claims against them for each use. And so I I didn't think that was fair. We thought we'd recommend removing that line of 2,000 and the providers agreed with less than 100. I think one last thing that, you know, just for clarification, I didn't quite understand the need to have HIPAA in there because HIPAA is more around data privacy and protection, sort of on the back end that we've seen these tools. It's not on the front end. Where we're really looking at is the interface of where these tools are deployed and how they interact with patients versus the data storage and protection after the use. So I would suggest that we focus on, you know, making sure that people are using tools that are evidence based. And finally, the Office of Professional Regulation, we recommend that they be added to Brian, what's the name of the council?

[Unidentified Senate conferee]: Yeah. The Artificial Intelligence Advisory

[Unidentified House conferee (Chair/lead)]: Council? Yeah. Which we already have in Vermont. They agreed they wanted to be added to that. And so we recommend that rather than them working with the board

[Katie McGlynn, Office of Legislative Counsel]: of medical practice to come up

[Unidentified House conferee (Chair/lead)]: with a support, that they be added to that council where they can really bring a voice for for mental health and other providers that they regularly to that council and then give us a little more comprehensive report on what they think for that in practice it should be at a dignity institution. Instead of the board member. Yes. Okay. So just to recap, make sure I'm understanding. It sounds as though you would like us to remove the $10,000 civil panel being You'd like us to replace the board medical practice with OKR of the AI working group from. And what was the is there something else? If you look at the document, draft number 1.2 is the Director of the Community of Conference that Katie dropped it. Katie did a great job of highlighting those things that I noted. Is it that how to go to the Senate? Have to report from the community conference. Did you get one? Maybe I do. Yeah.

[Unidentified Senate conferee]: I just noticed that on page three the changes begin and they're highlighted in yellow.

[Unidentified House conferee (Chair/lead)]: Thank you. You. They're highlighted in yellow so you can see all of the changes that we are recommending.

[Unidentified Senate conferee]: There's a change to definition, right? On page three, that doesn't have the line numbers, but it's highlighted. There's change in the mental health services definition that we're suggesting, right? You explain Well, don't see the I can look for the original. Because I know there was an issue with we had heard something about the definition having

[Unidentified House conferee (Chair/lead)]: This aligns with the definition of permanent health services. So we want to be consistent regionally with what people are doing, and so we've been it had been requested by providers that we aligned to for each episode of management. Okay. So there are some small word changes throughout the bill. And then the main the three main pieces are being aligning the mental health service definition with Maine, dollars 10,000 civil penalty, and replacing OCR with the of medical practice. Yeah, I would love

[Unidentified Senate conferee]: to hear from you.

[Katie McGlynn, Office of Legislative Counsel]: Jumping Also, subsection B on page four, there's language that allows the use of tools approved by an institutional review board or privacy board for That's the purpose of a great. Yeah, absolutely.

[Unidentified House conferee (Chair/lead)]: Okay,

[Unidentified Senate conferee]: super. So, I think what I would highlight is in the language changes. You'll notice we added clinical in, a bunch, and mental health in a bunch, and then refined the definition of mental health services. That's what I just wanted to say. Like, lot of the yellow is Yeah, that's So I think you did boil it down to the I believe it's four key things. Right? There's the definition changes, OPR instead of board of medical practice, the, fine being removed, what was the fourth one you just put this to just Thank you. The research exemption, or whatever you want to call it.

[Unidentified House conferee (Chair/lead)]: Questions from the Senate side at this point? Anything else you would like to offer?

[Unidentified Senate conferee]: I would just say I appreciate that you worked on this and the other AI bill, and that you brought it forward, and that I think we're only suggesting these changes because we heard this is how it works. We heard feedback afterwards, and we were responding to that, and we started the conference committee because it was quicker, and I appreciate your understanding.

[Unidentified House conferee (Chair/lead)]: So we appreciate you also trying to protect Vermonters and protect vulnerable folks who, are in need of mental health counseling. This is just a great It's way to a good start. I do have a lot of work to do with that question. Yes, I did start. So, I'm looking at the definition that you have on page three, and it includes behavioral health.

[Unidentified Senate conferee]: Which we defined in the log recently, remember that? Yeah, did find it recently. Yeah, finally.

[Unidentified House conferee (Chair/lead)]: And how many practitioners have we got who would be subject to this? Probably a few.

[Unidentified Senate conferee]: Quite a few. Yeah. Okay.

[Unidentified House conferee (Chair/lead)]: Then my other question is with regard to the Board of Medical Practice and why you would exclude them if they have oversight over specific areas of medical counseling. Are they on the AI Council?

[Unidentified Senate conferee]: No, we do. We are in 08/14, which the governor did sign. It's an effect on passage. Soon we will see the Vermont Medical Society appointing someone. So there will be an MD or someone connected to the MDs on there, but there is not Board of Medical Practice representation currently and they won't be added. They could be included through the language, you the language in the in 08/14 that says I forgot how the other Correct. Stakeholders. Yeah. Exactly. Yeah.

[Unidentified House conferee (Chair/lead)]: And but OPR is on the advisory board? I'm trying to remember.

[Unidentified Senate conferee]: They're not. But we would be this we would be adding them with this. Yeah. And it makes sense to me. We added the treasurer because they're looking at public finance, and since we're asking them to look at regulated professions.

[Unidentified House conferee (Chair/lead)]: Well, okay. That'll be an interesting discussion. Yeah, that will be. Many interesting discussions. Might I suggest that we only have about seven minutes before the next conference committee. I think we need to stop. Yeah, the three of us and the PTK Would as you all, could you possibly wait outside while we have a quick conversation to see what's our next steps could be? Is that alright?

[Unidentified Senate conferee]: You asked me to wait.

[Unidentified House conferee (Chair/lead)]: Like If you don't mind, just wait a few minutes.

[Unidentified Senate conferee]: Yeah. I won't go. I won't go anywhere.

[Unidentified House conferee (Chair/lead)]: I get to chat. He's right. Thank you.

[Katie McGlynn, Office of Legislative Counsel]: Stand by the portrait.

[Unidentified House conferee (Chair/lead)]: Appreciate that. And then we can go up.