58-60-118. Mental health chatbots -- Affirmative defense.
(1) As used in this section: "Mental health chatbot" means the same as that term is defined in Section. 13-72a-101 "Supplier" means the same as that term is defined in Section. 13-11-3
(2) It is an affirmative defense to liability in an action brought under Subsectionor Subsectionif the supplier demonstrates that the supplier: 58-1-501(1) 58-1-501(2) created, maintained, and implemented a policy that meets the requirements of Subsection (3); maintains documentation regarding the development and implementation of the mental health chatbot that describes: foundation models used in development; training data used; compliance with federal health privacy regulations; user data collection and sharing practices; and ongoing efforts to ensure accuracy, reliability, fairness, and safety; filed the policy with the division as described in Subsection (4); and complied with all requirements of the filed policy at the time of the alleged violation.
(3) A policy described in Subsection (2)(a) must: be in writing; clearly state: the intended purposes of the mental health chatbot; and the abilities and limitations of the mental health chatbot; and describe the procedures by which the supplier: ensures that licensed mental health therapists are involved in the development and review process; ensures the mental health chatbot is developed and monitored in a manner consistent with clinical best practices; conducts testing, prior to making the mental health chatbot publicly available and regularly thereafter, to ensure that the output of the mental health chatbot poses no greater risk to a user than that posed to an individual in therapy with a licensed mental health therapist; identifies reasonably foreseeable adverse outcomes to, and potentially harmful interactions with, users that could result from using the mental health chatbot; provides a mechanism for a user to report any potentially harmful interactions from use of the mental health chatbot; implements protocols to assess and respond to risk of harm to users or other individuals; details actions taken to prevent or mitigate any such adverse outcomes or potentially harmful interactions; implements protocols to respond in real time to acute risk of physical harm; reasonably ensures regular, objective reviews of safety, accuracy, and efficacy, which may include internal or external audits; provides users any necessary instructions on the safe use of the mental health chatbot; ensures users understand they are interacting with artificial intelligence; ensures users understand the intended purpose, capabilities, and limitations of the mental health chatbot; prioritizes user mental health and safety over engagement metrics or profit; implements measures to prevent discriminatory treatment of users; and ensures compliance with the security and privacy provisions of 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subparts A, C, and E, as if the supplier were a covered entity, and applicable consumer protection requirements, including Sections,, and. 13-72a-201 13-72a-202 13-72a-203
(4) To file a policy with the division under this section, a supplier of a mental health chatbot: shall provide to the division: the name and address of the supplier; the name of the mental health chatbot supplied by the supplier; the written policy described in Subsection (3); and a fee set in accordance with Section; 63J-1-504 shall file in a manner established by the division; and may provide to the division: any revisions to a policy filed under this section; or any other documentation the supplier elects to provide.
(5) The division: shall provide a means for a supplier of a mental health chatbot to file under this section; and may impose an annual filing fee set in accordance with Section. 63J-1-504
(6) The affirmative defense described in this section applies only in an administrative or civil action alleging a violation of: Subsection; or 58-1-501(1) Subsection. 58-1-501(2)
(7) Nothing in this section shall be construed to: bar the division from bringing an action under Subsectionor Subsectionagainst the supplier of a mental health chatbot; or 58-1-501(1) 58-1-501(2) recognize a mental health chatbot as a licensed mental health therapist.