13 states, and the patient can't consent

Thirteen states require every party in a conversation to consent before it can be recorded, and none of those laws were written with a pediatric speech session or a home health visit in mind. If you are a solo occupational therapist or speech-language pathologist running an AI scribe, that gap matters more to you than it does to almost any other reader of this site, because in your caseload the person legally entitled to consent is frequently not the person being recorded. A four-year-old in a school session cannot consent. A stroke patient with expressive aphasia may not be able to. A parent, a guardian, or a healthcare power of attorney has to do it instead, and most AI scribe consent guidance published so far, including the guidance built for psychotherapists and primary care physicians, never mentions that problem at all.

Six questions solo OT and SLT clinicians are actually asking about AI scribe consent, answered with the state statutes and professional guidance that currently exist. None of it was drafted for your caseload specifically. All of it applies to you anyway.

1. Do I need patient consent to use an AI scribe in OT or SLT sessions?

Yes as best practice everywhere, and yes as a hard legal requirement in 13 states regardless of your specialty. The federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act, 1968) and the Electronic Communications Privacy Act set a one-party consent floor for recorded conversations, meaning your own consent as the clinician is technically sufficient under federal law (Scribing.io, "AI Scribing Laws by State," 2026). States are free to set a stricter standard, and 13 have: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington all require every party to consent before a conversation is recorded (compiled from Scribing.io and NotuDocs state consent law summaries, 2026, citing individual state wiretap statutes; confirm current statutory text before relying on this list). These are general wiretapping laws, not therapy-specific ones, so a home visit or a school consultation is covered exactly the same as an adult outpatient session.

AOTA's Policy E.19 on ethical AI use, effective April 2025, makes the same point specifically for occupational therapy: when AI tools are used during recorded sessions for transcription, documentation, or data analysis, individuals must be informed in advance of the recording, the intended use, the scope of data collection, and how the information will be stored and shared, with informed consent obtained (American Occupational Therapy Association, Policy E.19, direct PDF, effective April 2025). ASHA's position is thinner: its Code of Ethics Principle II gives certified professionals a general duty to evaluate any technology used in practice, but ASHA has not published an AI-specific consent standard of its own (American Speech-Language-Hearing Association, "Generative Artificial Intelligence for Clinicians," asha.org, 2026).

So what for you: treat consent as required everywhere you practice, not only in the 13 states where it is a hard legal line, because AOTA already expects it of you regardless of your state's wiretap statute.

2. Is my state a one-party or all-party consent state, and does that settle it?

Check the list above first, but do not stop there. If you see telehealth clients, the state that governs is wherever the patient is physically sitting during the session, not where you are licensed or based, and the more restrictive of the two states' laws applies when they differ (Scribing.io, 2026). A Pennsylvania-based clinician, in an all-party state, seeing a telehealth client visiting family in a one-party state is governed by the one-party rule for that session. The same clinician seeing a client physically in California is governed by California's all-party rule, Penal Code Section 632, no matter where the clinician sits.

Illinois deserves a specific warning. It is both an all-party consent state and the only state with a law written specifically for AI in therapy: Public Act 104-0054, the Wellness and Oversight for Psychological Resources Act, effective August 2025, requires explicit written consent before AI-assisted recording or transcription and sets civil penalties up to $10,000 per violation (NotuDocs, "State-by-State AI Consent Laws for Therapists," 2026, citing the enrolled Act). That law is written for psychotherapy services specifically and does not, on its text, extend to occupational therapy or speech-language pathology. Illinois's underlying all-party wiretap statute, 720 ILCS 5/14-2, applies to you regardless of specialty and carries its own separate penalty structure. Do not read a psychotherapy-specific statute as covering your caseload, and do not assume that the absence of an OT- or SLT-specific law means the general wiretap statute does not apply. Both are true in Illinois at once.

So what for you: if any client sits in one of the 13 states during a session, ambient recording without documented consent is a state-law question independent of HIPAA, and your BAA does not touch it.

3. Who actually consents when the patient is a child in a school-based session?

The parent or guardian, and this is where OT and SLT practice genuinely diverges from AI consent guidance written for adult outpatient therapy. Under FERPA's school-official exception, a district may share education records, which can include therapy notes and any AI-generated transcript, with an outsourced provider only if that provider performs an approved institutional function, remains under the district's direct control, stays within the district's approved purpose, and is covered by the district's annual FERPA notice (34 CFR 99.31(a)(1), summarized in TrueMadeAI's district guide to FERPA and AI in K-12 schools, published 11 August 2026). None of that approval runs through the family. If you are contracted into a school or seeing a student under an IEP, the district typically controls whether an AI tool can touch that record at all, and a signed HIPAA BAA with your AI vendor does nothing to satisfy a FERPA data-sharing agreement, because FERPA and HIPAA are separate statutes governing separate categories of record.

The practical failure mode is not malicious, it is procedural. A solo SLT brings a personal AI scribe subscription into a contracted school placement without checking whether the district has approved that specific vendor, and the recording becomes a FERPA disclosure the district never authorized, independent of whether a parent would have said yes if asked.

So what for you: before using any AI scribe in a school-based or IEP-related session, confirm in writing that the vendor is covered by the district's existing data agreement. If it is not, a parent's willingness to consent does not fix that.

4. What about home visits, does everyone in the room need to consent?

In the 13 all-party states, yes, and a home visit typically has more people in it than a clinic appointment. A caregiver, a spouse, another family member, or a home health aide who is present and audible on the recording is a party to that conversation under most state wiretap statutes, not a bystander outside its scope. Practically, your consent conversation at the start of a home visit needs to cover everyone likely to speak, not just the patient.

The second complication is capacity. When a patient has a cognitive impairment, following a stroke or with an advanced dementia diagnosis for example, consent typically needs to come from whoever holds legal authority to make healthcare decisions for that patient, most often a healthcare power of attorney or a court-appointed guardian. That authority should be confirmed and documented before you record, not assumed from a family member simply being present. This overlaps with an obligation you already carry independent of AI: occupational therapists and speech-language pathologists are named mandated reporters for abuse and neglect of vulnerable adults in at least Connecticut, Arizona, Oregon, and Colorado (state mandated-reporter statutes, checked 2026-07). An AI recording that happens to capture evidence of neglect does not change who you have to report to or when, and it does not get to sit unreviewed in a transcript while you decide.

So what for you: build a one-line habit into every home visit, name everyone in the room out loud before you start recording, and confirm who is legally authorized to consent if the patient cannot.

5. Does my AI scribe's BAA already cover this?

No, and this is not a hypothetical risk. A Business Associate Agreement satisfies HIPAA, which governs how protected health information is stored, transmitted, and disclosed once you have it. It says nothing about whether you were allowed to record the conversation in the first place, and that second question is what state wiretap law answers. A proposed class action filed against Sutter Health and MemorialCare in April 2026 alleges their clinicians used Abridge's ambient AI scribe to record patient conversations without informed consent, citing California's Invasion of Privacy Act, the Confidentiality of Medical Information Act, and the federal Wiretap Act, not HIPAA (Washington et al. v. Sutter Health, N.D. Cal., case no. 4:26-cv-03012-KAW, corroborated via Northeastern University School of Law and HIPAA Journal reporting). The complaint does not allege a HIPAA violation. Abridge held a signed BAA with its health-system clients throughout.

Filings expanded in 2026 to include Sharp HealthCare, with that complaint alleging the AI tool auto-inserted consent statements into more than 100,000 patient charts that were never actually obtained from the patients they describe (Medscape and Becker's Hospital Review, August 2026). California's Penal Code Section 637.2 lets a plaintiff recover $5,000 per violation with no proof of actual harm required, and that figure is per violation, not a per-lawsuit cap.

So what for you: ask your AI scribe vendor two separate questions, not one. Does it sign a BAA, and separately, does its default setup require documented patient consent before it starts listening. A yes to the first question is not a yes to the second.

6. What does a real AI-recording consent form need to say?

Four things, based on what the strictest current state and professional standards already require. Name the tool and explain in plain language what it does with the session: whether it records audio, creates a transcript, and how long that content is stored (the core requirement in both Illinois's Public Act 104-0054 and AOTA's Policy E.19). State whether a signed BAA is in place, separately from the recording question. Describe who reviews the AI's output before it becomes part of the clinical record, since every professional-body position published so far puts final responsibility on the licensed clinician, not the tool. And give the client, or whoever is consenting on their behalf, an explicit way to decline without it affecting care, documented at the point of refusal rather than assumed from silence.

One thing that does not satisfy any of this: burying an AI disclosure inside a general intake form or a broad terms-of-use document alongside unrelated information. Illinois's law and every state bill modeled on it specifically require the consent to be tied to the AI use itself, not folded into paperwork the client is unlikely to read line by line.

So what for you: if your current intake paperwork mentions AI once, in a general technology disclosure and nowhere else, that is very likely not enough in an all-party consent state, and it is worth 20 minutes this week to check.

The bottom line

Nothing here is a reason to avoid AI documentation tools in OT or SLT practice. The tools that map five stages of an OT episode of care or track SLT progress against a goal bank save real time, and that case is made elsewhere on this site. But the consent question in your caseload is structurally different from the one built into most AI scribe compliance guides, because the person who has to say yes is so often not the person in the chair. Build the habit of naming that person explicitly, every visit, before recording, and most of the legal exposure closes on its own. For the same BAA-versus-wiretap-law gap playing out in physical therapy, see your AI scribe's BAA covers HIPAA, it doesn't cover this $5,000-a-patient lawsuit. For the safeguarding duties that sit alongside consent when a patient cannot advocate for themselves, see AI HIPAA rule delayed to 2027, safeguarding duty isn't.

Related: Your AI scribe's BAA covers HIPAA, it doesn't cover this $5,000-a-patient lawsuit  ·  AI HIPAA rule delayed to 2027, safeguarding duty isn't  ·  $20 vs $150: ChatGPT or an AI scribe

This article is for informational purposes only and does not constitute legal advice. State recording-consent statutes and AI-specific healthcare laws change frequently; confirm current requirements with legal counsel licensed in your state before relying on anything above.