From The National Law Review, Jean Marie R. Pechette, Neal D. Shah, Joelle M. Wilson, Catherine Kozlowski, Matthew T. Lin:
Artificial Intelligence (AI) is significantly influencing the field of behavioral health, offering potential advancements in diagnostics, treatment, and patient outcomes. The application of AI technologies ranges from virtual mental health assistants and predictive analytics to AI-enabled chatbots for therapy and AI-integrated Electronic Health Records (EHR) for diagnosis and treatment. These technologies are expected to expand further as trust in AI systems grows.
Despite the transformative potential of AI in behavioral health, the legal and regulatory implications are uncertain. The US lacks a comprehensive federal law that regulates AI development and use. However, efforts are underway to address potential risks, including promoting transparency, ensuring fairness, and protecting privacy and security of health information.
Key legal risks associated with the use of AI in behavioral health treatment include data privacy, algorithm bias, and professional liability. Data privacy risks involve ensuring compliance with HIPAA, 42 CFR Part 2, and state privacy laws.
Providers can mitigate these risks to some extent by obtaining informed consent from patients before using AI tools, vetting third-party vendors offering AI solutions for adherence to data privacy and security rules, seeking transparency from developers and vendors about the data on which AI tools were trained, and reviewing the scope of professional liability coverage before adopting AI-enabled tools.
While AI holds significant promise for transforming behavioral health care, it’s crucial to anticipate and address the evolving regulatory frameworks and legal risks associated with AI applications. AI regulation is a moving target, and anticipating and mitigating legal risks will be key to fostering a trustworthy and secure environment for both practitioners and patients.