R156-64-502. Unprofessional Conduct

  (1) "Unprofessional conduct for all classifications under this chapter includes:

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

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

  (c) 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;

  (d) conducting an examination:

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

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

  (e) 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;

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

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

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

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

  (j) 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 September 1, 2015, and Standards of Practice, dated September 1, 2015, which are hereby incorporated by reference.

  (2) "Unprofessional conduct" specific to deception detection examiners and deception detection examiner interns includes:

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

  (b) not conducting a pre-examination review with the examinee where each question is reviewed word for word;

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

  (d) basing decisions concerning truthfulness or deception upon data that fails to meet the following minimum standards:

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

  (ii) two charts for a screening examination that is to be followed by a specific issue/single issue examination;

  (iii) three repetitions of each question on a directed lie screening exam; or

  (iv) three charts for all other exams;

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

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

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

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

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

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

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

  (g) conducting in a 24-hour period more than:

  (i) five specific issue/single issue examinations;

  (ii) five clinical examinations;

  (iii) five screening examinations;

  (iv) five pre-employment examinations; or

  (v) 15 concealed information examinations;

  (h) conducting an examination of less than the required duration as follows:

  (i) 30 minutes for a concealed information exam;

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

  (iii) 90 minutes for all other exams;

  (i) failing to use an activity sensor in all testing unless the examinee suffers from a diagnosed medical condition that contraindicates its use;

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

  (k) 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 a demonstratable overriding reason;

  (l) splitting, or dividing fees received for deception detection services or otherwise paying any person for referring a client;

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

  (n) not using a validated scoring method in all examinations;

  (o) creating deception detection case files not containing at a minimum the following:

  (i) 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;

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

  (A) the names of all persons examined;

  (B) the type of exam conducted;

  (C) the date of the exam;

  (D) the name and license number of the examiner;

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

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

  (G) the time the examination began and ended;

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

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

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

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

  (vii) 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";

  (viii) any recordings made of the examination; and

  (ix) documentation of an instrument functionality check as mandated by the manufacture of the instrument being used; and

  (p) 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.