(a) For the purpose of this section, the following terms have the following meanings.      
        (1) "Mental health provider" means a licensee or any other licensed mental health professional, including a licensed social worker, a chemical dependency counselor, a licensed marriage and family therapist, a physician, a psychologist, or a member of the clergy. Mental health provider also includes employees of these individuals or employees of a treatment facility.       
        (2) Sexual contact means:                  (A) deviate sexual intercourse as defined by the Texas Penal Code, §21.01;                   (B) sexual contact as defined by the Texas Penal Code, §21.01;                   (C) sexual intercourse as defined by the Texas Penal Code, §21.01; or                   (D) requests or offers by a licensee for conduct described by subparagraph (A), (B), or (C) of this paragraph.         
        (3) "Sexual exploitation" means a pattern, practice, or scheme of conduct, including sexual contact, that can reasonably be construed as being for the purposes of sexual arousal gratification or sexual abuse of any person. The term does not include obtaining information about a client's sexual history within standard accepted practice while treating a sexual or relationship dysfunction.       
        (4) "Therapeutic deception" means a representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client's or former client's counseling.       
      (b) A licensee must not engage in sexual contact with or sexual exploitation of a person who is:      
        (1) a client;       
        (2) an LPC Associate supervised by the licensee; or       
        (3) a student of a licensee at an educational institution at which the licensee provides professional or educational services.       
        (4) Sexual contact that occurs more than five years after the termination of the client relationship, cessation of supervision of an LPC Associate, or termination of professional or educational services provided to a student of the licensee at a post-secondary educational institution will not be deemed a violation of this section, if the conduct is consensual, not the result of sexual exploitation, and not detrimental to the client. The licensee must demonstrate there has been no exploitation in light of all relevant factors, including, but not limited to:                  (A) the amount of time that has passed since therapy terminated;                   (B) the nature and duration of the therapy;                   (C) the circumstances of termination;                   (D) the client's, LPC Associate's, or student's personal history;                   (E) the client's, LPC Associate's, or student's current mental status;                   (F) the likelihood of adverse impact on the client, LPC Associate, or student and others; and                   (G) any statements or actions made by the licensee during the course of therapy, supervision, or educational services suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client, LPC Associate, or student.         
      (c) A licensee must not practice therapeutic deception of a client.     
      (d) It is not a defense under subsections (b) - (c) of this section, the sexual contact, sexual exploitation, or therapeutic deception with the client, LPC Associate, or student occurred:      
        (1) with the consent of the client, LPC Associate, or student;       
        (2) outside the professional counseling sessions of the client or student; or       
        (3) off the premises regularly used by the licensee for the professional, supervisory, or educational services provided to the client, LPC Associate, or student.       
      (e) The following may constitute sexual exploitation if done for the purpose of sexual arousal or gratification or sexual abuse of any person:      
        (1) sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, and:                  (A) is offensive or creates a hostile environment, and the licensee knows, should know, or is told this; or                   (B) is sufficiently severe or intense to be abusive to a reasonable person in the context;         
        (2) any behavior, gestures, or expressions which may reasonably be interpreted as seductive or sexual;       
        (3) sexual comments about or to a person, including making sexual comments about a person's body;       
        (4) making sexually demeaning comments about an individual's sexual orientation;       
        (5) making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in counseling;       
        (6) requesting details of sexual history or sexual likes and dislikes when not necessary for counseling of the individual;       
        (7) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;       
        (8) kissing or fondling;       
        (9) making a request for a date;       
        (10) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;       
        (11) any bodily exposure of genitals, anus or breasts;       
        (12) encouraging another to masturbate in the presence of the licensee; or       
        (13) masturbation by the licensee when another is present.       
      (f) A licensee must report sexual misconduct as follows:      
        (1) If a licensee has reasonable cause to suspect a client, LPC Associate, or student has been the victim of sexual exploitation, sexual contact, or therapeutic deception by another licensee or a mental health provider, or if a client, LPC Associate, or student alleges sexual exploitation, sexual contact, or therapeutic deception by another licensee or a mental health services provider, the licensee must report the alleged conduct not later than the third business day after the date the licensee became aware of the conduct or the allegations to:                  (A) the prosecuting attorney in the county in which the alleged sexual exploitation, sexual contact or therapeutic deception occurred; and                   (B) the Council and any other state licensing agency which licenses the mental health provider if the conduct involves a licensed individual.         
        (2) Before making a report under this subsection, the reporter must inform the alleged victim of the reporter's duty to report and must determine if the alleged victim wants to remain anonymous.       
        (3) A report under this subsection must:                  (A) identify the reporter;                   (B) identify the alleged victim, unless the alleged victim has requested anonymity;                   (C) express suspicion sexual exploitation, sexual contact, or therapeutic deception occurred; and                   (D) provide the name of the alleged perpetrator.         
     Source Note:        The provisions of this §681.42 adopted to be effective November 19, 2020, 45 TexReg 8139