The Texas Behavioral Health Executive Council adopts new §681.38, relating to Conflicts, Boundaries, Dual Relationships, and Termination of Relationships. Section 681.38 is adopted without changes to the proposed text as published in the March 31, 2023, issue of the Texas Register (48 TexReg 1707) and will not be republished.

Reasoned Justification.

This adopted new rule transfers the existing requirements regarding conflicts, boundaries, dual relationships, and termination of relationships with clients from current §681.41 to this new rule.

List of interested groups or associations against the rule.

None.

Summary of comments against the rule.

A commenter voiced opposition to this rule by stating that the prohibition of non-therapeutic relationships was too vague and restrictive for special populations and small communities, such as the deaf community. The commenter requested adding clarifying language to the rule that prohibits non-therapeutic relationships with current or former clients in which the therapist has power, authority, or detrimental influence over the client.

Another commenter voiced opposition to the prohibitions against non-therapeutic relationships with clients contained in subsection (d) of the rule. The commenter opined that the absolute prohibition against romantic or sexual relationships with clients is appropriate, but the commenter asserts that a growing body of research suggests that not all boundary crossing with clients is bad and in some instances can be helpful. The commenter requested amending the rule to focus on prohibiting harm that could reasonably have been anticipated instead of having an absolute prohibition against all non-therapeutic relationships.

Lastly, a commenter voiced concern and confusion regarding subsection (b) of the rule, wondering what the purpose of this part of the rule was and asserting that it will require a licensee to inform prospective clients that all services are being provided because the licensee needs the income. Additionally, the commenter felt subsection (c) was too vague and asked for further guidance or examples of how to define and measure professional boundaries.

List of interested groups or associations for the rule.

None.

Summary of comments for the rule.

None.

Agency Response.

The Executive Council declines to amend the rule as requested by the commenters. With the exception of subsection (d), the language in this rule is identical to the language in current §681.41. While grammatical changes have been made to subsection (d) these changes were made for the purposes of clarity, the substance of this subsection has not changed, so its requirements and prohibitions are the same. Licensees engaging in non-therapeutic relationships with clients has been prohibited under §681.41 since at least 2003. And in 2010 the prohibition against non-therapeutic relationships, found in §681.41, was amended to the standard that it is today. A licensee may not engage in a non-therapeutic relationship with a client unless it begins more than two years after the end of the therapeutic relationship, the non-therapeutic relationship is consensual, not the result of exploitation by the licensee, and is not detrimental to the client. Additionally, a licensee may not engage in sexual contact with a client unless it begins more than five years after the end of the therapeutic relationship, the non-therapeutic relationship is consensual, not the result of exploitation by the licensee, and is not detrimental to the client.

The language in subsection (b) is identical to what is currently in §681.41, and this language has existed in the rule since at least 2010. This subsection allows licensees that are providing professional counseling services to a client to promote other activities, services, or products that either facilitate the counseling process or help achieve counseling goals, but if the licensee has a personal or business interest in these other activities, services, or products then the licensee must disclose the interest to the client and must not exert any undue influence over the client when promoting these activities, services, or products.

The language in subsection (c) is identical to what is currently in §681.41, and this language has existed in the rule since at least 2003. Previously the requirement for licensees to set and maintain professional boundaries was followed by a prohibition against dual relationships which was defined as non-therapeutic relationships. In 2010 this part of §681.41 was amended with the same language as stated in subsection (c) of this rule, and it was followed by the prohibitions against non-therapeutic relationships similar to those stated in subsection (d). If the commenter is looking for more guidance or information as to how to understand and comply with subsection (c) then the commenter can look to subsection (d).

At this time, the Texas State Board of Professional Counselors and the Executive Council do not find it necessary or appropriate to change the standards listed in subsections (b), (c), or (d) which have all existed for a long time.

Statutory Authority.

The rule is adopted under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Behavioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

Additionally, the Executive Council adopts this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which vests the Executive Council with the authority to adopt rules necessary to perform its duties and implement Chapter 507 of the Tex. Occ. Code.

In accordance with §503.2015 of the Tex. Occ. Code the Texas State Board of Examiners of Professional Counselors previously voted and, by a majority, approved to propose the adoption this rule to the Executive Council. The rule is specifically authorized by §503.2015 of the Tex. Occ. Code which states the Board shall propose to the Executive Council rules regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice; continuing education requirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter.

The Executive Council also adopts this rule in compliance with §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications necessary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education requirements; or a schedule of sanctions unless the rule has been proposed by the applicable board for the profession. In this instance, the underlying board has proposed this rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Texas Occupations Code and may adopt this rule.

Lastly, the Executive Council also adopts this rule under the authority found in §2001.004 of the Tex. Gov't Code which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.