Commerce, Occupational and Professional Licensing

Rule R156-64

Deception Detection Examiners Licensing Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 33780
Filed: 06/22/2010 10:46:57 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division and Deception Detection Examiners Board reviewed the rule and determined changes should be made to clarify parts of the definition and unprofessional conduct sections to address polygraph counter measures that are becoming more frequently utilized.

Summary of the rule or change:

In Section R156-64-102, added definitions for new terms "activity sensor" and "concealed information exam". Renumbered remaining subsections. In Subsection R156-64-502(8), amendments clarify the number of deception detection examinations that can be completed in a 24-hour period; Subsection R156-64-502(9) amendments provide three types of deception detection exams to be given and the duration of each type of examination; Subsection R156-64-502(10), amendment provides that after 01/01/2011, it will be considered unprofessional conduct for failing to use an activity sensor in all testing unless the examinee suffers from a diagnosed medical condition that contraindicates its use.

State statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Section 58-64-101
• Subsection 58-1-202(1)(a)

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $75 to print and distribute the rule once the proposed amendments are made effective. Any printing and mailing costs incurred will be absorbed in the Division's current budget. In addition, the proposed amendments will cost state agencies who are involved in deception detection examinations approximately $500 per sensor to purchase an activity sensor if the agency is not already in compliance with the requirement. The Division is not able to determine how many state agencies will need to purchase the sensors.

local governments:

The proposed amendments will cost local government agencies who are involved in deception detection examinations approximately $500 per sensor to purchase an activity sensor if the agency is not already in compliance with the requirement. The Division is not able to determine how many local government agencies will need to purchase the sensors.

small businesses:

The proposed amendments will cost small businesses who are involved in deception detection examinations approximately $500 per sensor to purchase an activity sensor if the business is not already in compliance with the requirement. The Division is not able to determine how many small businesses involved in deception detection exams will need to purchase the sensors.

persons other than small businesses, businesses, or local governmental entities:

The proposed amendments only apply to licensed deception detection examiners and applicants for licensure in that classification. The proposed amendments will cost licensed deception detection examiners approximately $500 per sensor to purchase an activity sensor if the individual/company is not already in compliance with the requirement. The Division is not able to determine how many licensees/companies involved in deception detection exams will need to purchase the sensors.

Compliance costs for affected persons:

The proposed amendments only apply to licensed deception detection examiners and applicants for licensure in that classification. The proposed amendments will cost licensed deception detection examiners approximately $500 per sensor to purchase an activity sensor if the individual/company is not already in compliance with the requirement. The Division is not able to determine how many licensees/companies involved in deception detection exams will need to purchase the sensors.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing requires those who administer polygraphs to purchase an activity sensor for each device which would detect countermeasures taken by examinees. Affected persons will see a cost of approximately $500 per sensor, but such cost is mitigated by the increased reliability of examinations. The industry that makes these sensors will see a correlating fiscal benefit.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Clyde Ormond at the above address, by phone at 801-530-6254, by FAX at 801-530-6511, or by Internet E-mail at cormond@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/16/2010

Interested persons may attend a public hearing regarding this rule:

• 07/28/2010 01:00 PM, Heber Wells Bldg, 160 E 300 S, Conference Room 402, Salt Lake City, UT

This rule may become effective on:

08/23/2010

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-64. Deception Detection Examiners Licensing Act Rule.

R156-64-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 64, as used in Title 58, Chapters 1 and 64 or this rule:

(1) "Activity sensor" means a sensor attached to a deception detection instrument that is approved for use by the manufacturer of the instrument for placement under the buttocks of the examinee to detect movement and attempts at countermeasures by the examinee.

([1]2) "Clinical testing" means a deception detection examination which is not intended to supplement and assist in a criminal investigation.

([2]3) "Comparison question" means a nonrelevant test question used for comparison against a relevant test question in a deception detection examination.

(4) "Concealed information exam" means a recognition examination administered to determine whether the examinee recognizes elements of a crime not reported to the public that are known only to the individual who engaged in the behavior, an investigator or both.

([3]5) "Deception detection case file" means written records of a polygraph exam including:

(a) case information;

(b) examinee information;

(c) a list of all questions used during the examination;

(d) copies of all charts recorded during the examination; and

(e) either the audio or video recording of the examination.

([4]6) "Experienced deception detection examiner" means a deception detection examiner who has completed over 250 deception detection examinations and has been licensed or certified by the United States Government for three years or more.

([5]7) "Irrelevant and relevant testing" means a deception detection examination which consists of relevant questions, interspersed with irrelevant questions, and does not include any type of comparison questions.

([6]8) "Irrelevant question" means a question of neutral impact, which does not relate to a matter under inquiry, in a deception detection examination.

([7]9) "Post conviction sex offender testing" means testing of sex offenders and includes:

(a) sexual history testing to determine if the examinee is accurately reporting all sexual offenses prior to a conviction;

(b) maintenance testing to determine if the examinee is complying with the conditions of probation or parole; and

(c) specific issue examinations.

([8]10) "Pre-employment exam" means a deception detection screening examination administered as part of a pre-employment background investigation.

([9]11) "Qualified continuing professional education" means continuing education that meets the standards set forth in Section R156-64-304.

([10]12) "Relevant question" means a question which relates directly to a matter under inquiry in a deception detection examination.

([11]13) "Screening exam" means a multiple issue deception detection examination administered to determine the examinee's truthfulness concerning more than one narrowly defined issue.

([12]14) "Specific issue/single issue examination" means a deception detection examination administered to determine the examinee's truthfulness concerning one narrowly defined issue.

([13]15) "Supervision" means general supervision as established in Subsection R156-1-102a(4)(c).

([14]16) "Unprofessional conduct" as defined in Title 58, Chapters 1 and 64, is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-64-502.

 

R156-64-103. Authority - Purpose.

This rule is adopted by the [d]Division under the authority of Subsection 58-1-106(1)(a) to enable the [d]Division to administer Title 58, Chapter 64.

 

R156-64-502. Unprofessional Conduct.

"Unprofessional conduct" includes:

(1) not immediately terminating the examination upon the request of the examinee;

(2) not conducting a pre-examination review with the examinee reviewing each question word for word prior to conducting the examination;

(3) attempting to determine truth or deception on matters or issues not discussed with the examinee during the pre-examination review;

(4) basing decisions concerning truthfulness or deception upon less than:

(a) two charts for a pre-employment exam;

(b) two charts for a screening exam that is to be followed by a specific issue exam; or

(c) three charts for all other exams;

(5) conducting an examination if the examinee is not physically present and aware that an examination is being conducted;

(6) using irrelevant and relevant testing techniques in other than pre-employment and periodic testing, without prior approval of the [d]Division in collaboration with the [b]Board;

(7) using a polygraph instrument that does not record as a minimum:

(a) respiration patterns recorded by two pneumograph components recording thoracic and abdominal patterns;

(b) electro dermal activity reflecting relative changes in the conductance or resistance of current by the epidermal tissue;

(c) relative changes in pulse rate, pulse amplitude and relative blood volume by use of a cardiograph;

(d) continuous physiological recording of sufficient amplitude to be easily readable by the examiner; and

(e) pneumograph and cardiograph tracings no less than one-half inch in amplitude when using an analog polygraph instrument;

(8) conducting [more than five deception detection examinations ]in a 24 -hour period more than:

(a) five specific issue examinations;

(b) five clinical examinations;

(c) five screening examinations;

(d) five pre-employment examinations; or

(e) 15 concealed information examinations;

(9) [conducting an examination of less than a 90 minute duration]conducting an examination of less than the required duration as follows:

(a) 30 minutes for a concealed information exam;

(b) 60 minutes for a pre-employment exam; and

(c) 90 minutes for all other exams;

(10) [conducting a pre-employment examination of less than a 60 minute duration]failing, after January 1, 2011, to use an activity sensor in all testing unless the examinee suffers from a diagnosed medical condition that contraindicates its use;

(11) not audibly recording all criminal/specific examinations and informing the examinee of such recording prior to the examination;

(12) during a pre-employment pre-test interview or actual examination, asking any questions concerning the subject's sexual attitudes, political beliefs, union sympathies or religious beliefs unless there is demonstratable overriding reason;

(13) publishing, directly or indirectly, or circulating any fraudulent or false statements as to the skill or method of practice of any examiner;

(14) dividing fees or agreeing to split or divide the fees received for deception detection services with any person for referring a client;

(15) refusing to render deception detection services to or for any person on account of race, color, creed, national origin, sex or age of such person;

(16) conducting an examination:

(a) on a person who is under the influence of alcohol or drugs; or

(b) on a person who is under the age of 14 without written permission from the person's parent or guardian;

(17) not providing at least 20 seconds between the beginning of one question and the beginning of the next;

(18) failing during a pretest interview to specifically inquire whether the individual to be examined is currently receiving or has in the past received medical or psychiatric treatment or consultation;

(19) failing to obtain a release from the individual being examined or a physician's statement if there is any reasonable doubt concerning the individual's ability to safely undergo an examination;

(20) not using a numerical scoring system in all specific examinations;

(21) not creating and maintaining a record for every examination administered;

(22) creating records not containing at a minimum the following:

(a) all charts on each subject properly identified by name and date and if the exam was performed on an analog polygraph instrument, signed by the examinee;

(b) an index, either chronological or alphabetical, listing:

(i) the names of all persons examined;

(ii) the type of exam conducted;

(iii) the date of the exam;

(iv) the name of the examiner;

(v) the file number in which the records are maintained;

(vi) the examiner's written opinion of the test results; and

(vii) the time the examination began and ended;

(c) all written reports or memoranda of verbal reports;

(d) a list of all questions asked while the instrument was recording;

(e) background information elicited during the pre-test interviews;

(f) a form signed by the examinee agreeing to take the examination after being informed of his or her right to refuse;

(g) the following statement, dated and signed by the examinee: "If I have any reason to believe that the examination was not completely impartial, fair and conducted professionally, I am aware that I can report it to the Division of Occupational and Professional Licensing";

(h) any recordings made of the examination; and

(i) documentation of an instrument functionality check on a quarterly basis including a calibration chart ;

(23) expressing a bias in any manner regarding the truthfulness of the examinee prior to the completion of any testing;

(24) conducting a clinical polygraph examination of a sex offender without holding a current certification from the American Polygraph Association for post conviction sex offender testing;

(25) not maintaining records of all deception detection examinations for a minimum of three years; and

(26) failing to conform to the generally accepted and recognized standards and ethics of the profession including those established by the American Polygraph Association Code of Ethics, dated January 10, 1999, and Standards of Practice, dated January 20, 2007, which are hereby incorporated by reference.

 

KEY: licensing, deception detection examiner, deception detection intern

Date of Enactment or Last Substantive Amendment: [ November 24, 2008 ] 2010

Notice of Continuation: April 9, 2007

Authorizing, and Implemented or Interpreted Law: 58-64-101; 58-1-106(1)(a); 58-1-202(1)(a)